[Congressional Record (Bound Edition), Volume 148 (2002), Part 17]
[Senate]
[Pages 22964-23105]
[From the U.S. Government Publishing Office, www.gpo.gov]




                HOMELAND SECURITY ACT OF 2002--Continued

  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, what is the pending business?
  The PRESIDING OFFICER. We are postcloture on H.R. 5005.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that I may soon 
make a unanimous consent request that the time be charged against the 
pending measure.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Disaster Relief

  Mr. BAUCUS. Mr. President, soon, I am going to ask unanimous consent 
to take up the emergency disaster relief bill that the Senate passed 
earlier with over 79 votes on September 10, 2002.
  The only difference between my consent request today and that 
amendment is today's bill reimburses the $752 million of section 32 
funds that were used to pay for the livestock compensation program 
earlier this year. This all really stems from the agricultural disaster 
our country has been facing for the last year and, frankly, in 
preceding years.
  In 1996, not too many years ago--that is the year before the drought 
began in Montana--our producers earned $847 million from wheat sales. 
In 2001, 4 years later into the drought--we have had a series of 
droughts in Montana--producers made just $317 million from wheat sales, 
a 62-percent decline.
  That 62-percent decline in sales is through absolutely no fault of 
Montana wheat producers. These farmers haven't been cooking the books. 
This is not an Enron matter or a WorldCom matter. They have not been 
taking exorbitant bonuses at the expense of their shareholders. They 
have been farmers and ranchers working the soil and doing their very 
best, in many cases, just to survive. They are dedicated, honest, plain 
folks, raising livestock for our country and the world, raising 
agricultural and grain products to try to make ends meet. They need our 
help.
  The drought is no longer touching only isolated pockets of our 
country; it has become an epidemic that is affecting a majority of our 
Nation.
  According to the U.S. Department of Agriculture, 49 percent of our 
Nation's counties were declared an agricultural disaster in 2001; 78 
percent of our counties were declared a disaster in 2002; 38 percent of 
those counties were declared a disaster in both 2001 and 2002.
  So it is in many parts of the country. In fact, a map I displayed in 
this body earlier showed that the western half of the United States 
basically is experiencing drought conditions, and the eastern United 
States as well. Now, there are also pockets. In Montana, for example, 
there are some counties where farmers are devastated and other counties 
where they harvested a bit of a crop.
  In any event, if you are a farmer who has lost his crop continuously 
and you are having a very difficult time making ends meet, I say you 
deserve our help.
  According to the New York Times, on May 3 of this year:

       In eastern Montana, more than a thousand wheat farmers have 
     called it quits rather than try to coax another crop out of 
     ground that has received less rain in the last 12 months than 
     many deserts get in a year.

  It is anticipated that another 1,300 wheat producers will call it 
quits this year if disaster assistance is not provided.
  Continuing, Mr. President, that same New York Times article--this is 
an eastern newspaper, not Montana:

       Those people, small businesses and rural communities have 
     been devastated by an unpredictable and uncontrollable 
     national phenomenon.

  On September 3, 2002, the Wall Street Journal also printed an 
article:

       The United States may be looking at the most expensive 
     drought in its history inflicting economic damage far beyond 
     the farm belt.

  Producers every day hope, plead, ask that Congress help them a little 
bit.
  I could go on at great length. I am not going to go on at great 
length except to say many times we have brought up this measure. It 
passed the Senate by a large margin both times, and the other body has 
said no, basically because the White House has said no. That is a fact. 
Nobody denies that fact. I will ask again today; we still do have time 
today or tomorrow, however long we are here, to help our farmers. This 
is a disaster payment; it is an emergency disaster payment. This is 
what America does. If we have hurricanes, we provide disaster 
assistance. If we have floods, we provide disaster assistance. We have 
other natural disaster phenomena in this country, and the Government 
provides assistance to help the people get back on their feet. That is 
all we are asking.
  If we pass this legislation today, the other body can take it up and 
pass it, and the President can sign it. It is that simple.
  As we near the end of this session and approach the holiday season, 
the very least we can do is provide disaster assistance to our farmers 
and ranchers, many of whom are either going out of business or about to 
go out of business because of an agricultural disaster, in most cases, 
drought and in some parts of our country it is flooding.
  I see our distinguished majority leader on the floor. I am quite 
certain he wants to speak on this matter as well. It is a huge issue in 
many parts of our country. It is very much hoped we can take disaster 
assistance up and pass it at this time. I yield now to my colleague 
from South Dakota.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Mr. President, I commend the distinguished Senator from 
Montana. He has been at this now for over a year. The very first 
conversation I had about drought assistance was with Senator Baucus 
over a year ago. I believe it was in connection with

[[Page 22965]]

the economic stimulus package of a year ago. It has been 278 days since 
the Senate acted. So he has been at it for over a year. We, as a 
Senate, have been at it now for 278 days.
  I must say, we can go all the way back to a year ago when Senator 
Baucus made the case that if you want economic stimulus in our part of 
the country, there is no better economic stimulus than to provide some 
drought assistance.
  I would use the word economic salvation. This is more than stimulus 
in our part of the country. This is salvation. This is the only way we 
can provide some salvation to ranchers and farmers who otherwise will 
not be here a year from now. We have done everything we know how to do. 
We have passed amendments. We have passed legislation in various forms. 
We have offered the House an opportunity to negotiate with us. We have 
suggested to the White House: Act alone. It does not matter, use 
whatever vehicle you will, but get it done.
  How in the name of economic stimulus can we ignore a large part of 
our geographic population, a large part geographically of our country? 
If these people are without this assistance, the rural communities 
associated with these people simply cannot survive.
  I thank the Senator from Montana for his leadership and for again 
coming to the floor to remind our colleagues of the import of this 
question, of the urgency that we get something done before we leave. 
This may be the last day. We may not be in session after today. If we 
do not do it today, we will not do it. What kind of a message does that 
send to rural America, to farmers and ranchers who have been waiting 
now 278 days for the Congress to complete its work?
  We voted, as he said, overwhelmingly--overwhelmingly, Republicans and 
Democrats. I would hope we were not doing that just for a political 
cover because this is far more important than political cover. This is 
economic survival. This will provide the only salvation to the farmers 
and ranchers who are desperately looking to Washington for help. Let's 
do it right. Let's provide this assistance. Let's agree with this 
request. Let's get this assistance to them quickly. Let's save them 
before it is too late. I hope we will do that this afternoon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, there are many Senators who wish to speak 
on this because it is so important. I ask unanimous consent that I be 
able to yield to other Senators without losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. Mr. President, I yield to my good friend from Minnesota.
  Mr. DAYTON. Mr. President, I thank the distinguished senior Senator 
from Montana for his leadership on this matter. As the majority leader 
said, the Senator has been superb in his leadership on this for now 
over a year and has been speaking out not only on behalf of Montana 
farmers but on behalf of thousands of Minnesota farmers who have also 
been devastated over the last 2 years and have not seen $1 of disaster 
aid provided to our State.
  The message is: If you are a pharmaceutical company and you have that 
kind of political clout, you will be taken care of by the Congress. If 
you are a company that has run away from this Nation to hide your tax 
obligation, you get a special consideration stuck in the bill that came 
over from the House of Representatives which we just voted on this 
morning. If you are a farmer in Minnesota, however, Montana, or 
elsewhere and you have been devastated by conditions beyond your 
control, the Congress is going to turn its back on you, the 
administration is going to turn its back on you.
  As the Senator pointed out, this Senate has not turned its back on 
farmers on disaster aid. The 2002 farm bill--and I served with the 
Senator from Montana on the Senate Agriculture Committee--had 
agriculture disaster assistance in that measure, but, again, the House 
and the administration turned a cold shoulder and had no funding 
whatsoever, and the conference report came back after many days of 
negotiation with the House unyielding and the administration unyielding 
in their position of not providing disaster assistance.
  The farmers in my State of Minnesota have lost over three quarters of 
a billion dollars in crop devastation in the last 2 years--three-
quarters of a billion dollars in 2 years, and not $1 back from the 
Federal Government. That is why people lose their faith and trust in 
Government because we do the wrong things for the wrong people and we 
do not do the right things for the right people. By ``we,'' I mean the 
collective bodies, because this Senator and the majority of the Senate 
have said again and again: We want to stand with those farmers who are 
suffering the greatest losses, who are being wiped out.
  Over half the crops in my region have been wiped out over each of the 
last 2 years.
  I say let's stand with the farmers. I stand proudly with the Senator 
from Montana. I thank him for his leadership. Let's make one last plea 
to this body and the House and the administration to do what is right 
and do what is urgently needed on behalf of farmers in my State and 
elsewhere in this country.
  I thank the Chair, and I thank the Senator from Montana for yielding 
to me.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I now yield as much time as he consumes to 
the Senator from North Dakota, an ardent fighter on behalf of 
agriculture, I might add.
  Mr. DORGAN. Mr. President, I thank the Senator from Montana for 
bringing this issue before the Senate again and again.
  It is interesting what people consider a priority in this Congress. 
We have voted on this issue of drought relief and disaster assistance 
for farmers in the Senate. Seventy-nine Members of the Senate voted to 
do something. We passed legislation for $5.9 billion. Let me tell you 
why we did that.
  This map shows what happened to a major part of the country. A major 
part of our country suffered a devastating drought. In my State, we had 
that extreme drought in the southwestern corner. We also had extreme 
moisture and therefore flooding in the northeastern corner.
  Let me show a picture of two farmers in the same State. This farmer 
is standing on his land that looks like a moonscape. Put seeds in that 
ground and nothing grows. Is that a disaster? It is if you put all your 
hopes, dreams, and capital into the ground. We had literally a 
moonscape. No pasture, no crops in these areas.
  In the same State, flooded land. Drought and flooding. No crop.
  Now, when family farmers suffer this circumstance, they cannot make 
it from one year to the next. One of my colleagues said we really ought 
to name droughts. We do name hurricanes. If a hurricane came through 
tomorrow and it took a portion of the country and flattened it, 
immediately airplanes would leave Washington, DC, FEMA would be on the 
airplane, other governmental offices would be on the plane, and they 
would be rushing there. Why? Because Hurricane Andrew, Emma, or 
Hurricane Myrtle hit land. We would all understand this was a disaster. 
All of the mechanisms of the Federal Government racheting up to try to 
deal with disasters would be on the way to help.
  But this gripping, relentless drought that occurred in our country, 
with flooding in some other parts, is something that happens over time. 
So there are enough people in Congress--including the President of the 
United States--who decided we do not want to do anything; we want to 
block this. We passed disaster assistance by 79 votes in the Senate. 
Bipartisan. The Speaker of the House and the President say, We do not 
want it, we will not do it.
  My colleague from Minnesota made an appropriate point. What did they 
have time to do? As to the question of whose side are you on, at least 
part of the answer this morning is we are on the side of corporations 
who want to

[[Page 22966]]

renounce their citizenship and move offshore to stop paying taxes to 
the United States Government, or at least minimize those taxes. We 
would like to become citizens of Bermuda, some corporations say. So 
this morning the vote in the Senate was to say, at least by the 
majority, regrettably, we would like to help those companies. The 
Senate already voted to say if you want to renounce your American 
citizenship, you ought not be getting American contracts with the 
Federal Government.
  In the homeland security bill they have stuck in a little piece that 
says let's make it easier for corporations that renounce their 
citizenship to get these contracts. That was a priority. It was a 
priority, for those corporations that renounce their citizenship, to 
help them out. We had the time and the will by some in Congress to help 
them out.
  It is interesting, exactly the same people who do not want to lift a 
finger to help family farmers are saying we would like to help out 
these poor corporations that renounce their citizenship.
  Mr. BAUCUS. Will the Senator yield?
  Mr. DORGAN. I yield the floor.
  Mr. BAUCUS. How many family farmers in North Dakota are able to move 
offshore to Bermuda and not pay income taxes? How many would you guess 
could do this?
  Mr. DORGAN. The answer is zero. But the answer would be zero if every 
farmer had the opportunity to do it. Do you know why? Because our 
farmers are Americans. They do not want to move anywhere. They do not 
want to become citizens of Bermuda. They do not want to avoid paying 
income taxes. They would love to pay income taxes for a change. They 
would like an opportunity to have an income to pay income tax.
  There is no income with a moonscape farm or when your crop is under 
water. Our farmers would not move to Bermuda for tax purposes.
  Mr. BAUCUS. And that means they do not have to pay income tax.
  Mr. DORGAN. Yes. They consider that unpatriotic.
  The question is, why does Congress have time to help those 
corporations that renounce their citizenship but it does not have time 
to pass a piece of legislation that deals with disaster?
  The point the Senator from Minnesota made is an important point. They 
have the opportunity and the will, apparently, to help drug companies 
but not family farmers.
  It was Tom Paxon a couple of decades ago, when Congress gave some 
financial assistance to Poland, who wrote a song that said, ``I'm 
changing my name to Poland.''
  Well, the question is, What is important to the Congress? Do you have 
to change your name to get some help? My farmers are named Johnson, 
Olson, Christianson, Larson. And they are out there and they put 
everything they have in the ground in North Dakota. They do it on a 
hope and a prayer that somehow it will rain enough, not rain too much, 
the insects will not come, the disease will not come, and they raise a 
crop and take it out of the ground and take it to the elevator for some 
money. That is a hope beyond hope with a natural disaster.
  We have a responsibility, if we care about rural America, care about 
family farmers and care about the special culture they provide for this 
country and contribution they make to this country, we have a 
responsibility to help in tough times. That is what we ought to do, to 
extend a helping hand to say, we would like to help you during these 
tough times.
  Yet, I regret, in answer to the question, Whose side are you on, too 
many decided to block this. They blocked it at the White House, blocked 
it at the speaker's office in the other body. The Senator from Montana 
has been on the floor before--again and again and again. I am proud to 
have been here with him to say this is a priority for us. This is not a 
giveaway. It is not something that is not desperately needed. This is a 
responsibility as Americans to say to others in this country when they 
need help, here is a helping hand.
  I am proud to have served in both the House of Representatives and 
the Senate. In every circumstance on every occasion where someone in 
this country has been injured, hurt, or disadvantaged by fires and 
floods and earthquakes and tornados and so many natural disasters, I am 
proud to say I have voted to provide disaster assistance to them 
because I believe that is the best of what we should do in this 
country.
  I will never, ever vote against that kind of assistance to people who 
are down and out and need help. That is why I would have expected this 
Congress and this President to join us, 79 Members of the Senate, 
Republicans and Democrats, to provide disaster help now when it is 
needed.
  I regret we may now, in the waning hours, leave this session with an 
objection to the unanimous consent request, after it has already passed 
the Senate by 79 votes and after the House is somewhere scattered 
across America--done with their business, they will have left this 
Congress and left undone a significant piece of legislation that should 
have been saying to America's family farmers, beset by disaster, that 
this country cares about you and this country wants to help you in a 
time of need.
  Again, let me say thanks to the Senator from Montana for his effort 
today. I fully support him.
  Mr. BAUCUS. I thank the Senator. I notice my colleagues are coming 
over. This is an important matter, and we have an opportunity and we 
owe it to our people to get this legislation passed.
  I yield to my friend from Michigan, Senator Stabenow.
  Ms. STABENOW. Mr. President, I thank my friend from Montana who has 
been such a leader on this issue. We have all joined on the floor time 
and time again to talk about the need for emergency assistance, for 
disaster assistance in our States. As a member of the Senate 
Agriculture Committee, I stand with my colleagues to indicate that 
Michigan has been under a disaster from flooding, from drought, from 
changing temperatures. We had our cherry growers this past year find 
extraordinarily high temperatures in April, only to see freezes just a 
few weeks later. This has stopped the ability for practically any 
cherries to end up on the trees this year. It is incredible, the fact 
that they have essentially been wiped out, not including what has 
happened the last 2 years for our grape growers, what has consistently 
been the battle for our apple growers, what we have seen from dry beans 
in Michigan, asparagus.
  I could go on and on. We have had harmed numerous crops in Michigan. 
We have seen consistent emergencies come as a result of weather.
  This is not only an issue for our family farmers but for the business 
community as well. When we do not have the cherries on the trees, our 
processors do not have any business. We are seeing processing plants 
that are cutting back or closing. This is a ripple effect throughout 
the economy in Michigan. I am sure in other States, as well.
  This is truly a disaster. As my colleagues have said, if this were a 
hurricane, if this were a tornado, if this were another circumstance, 
we would all be joined together to help communities that find 
themselves in a disaster situation because of no fault of their own. 
This is no less a disaster. It is no less a situation out of the 
control of our farmers and all of those involved in agriculture.
  I thank the Senator from Montana again and stand, as I have 
throughout this process, with the Senator. This is our last opportunity 
to do this and to indicate to our family farmers, to agriculture across 
this country, that we understand what you are going through; that we 
support you and we will provide the same assistance we would for any 
other disaster and emergency that might occur.
  I strongly hope we will be able to prevail in getting some action 
today.
  Mr. BAUCUS. I might ask a question of the Senator. Did the Senator by 
any chance vote for disaster assistance to aid other parts of the 
country, such as, say, New York City?

[[Page 22967]]


  Ms. STABENOW. Absolutely. As our leader has just indicated, we are 
consistently coming together on a bipartisan basis to support important 
efforts. I was proud to stand with all my colleagues in the time of 
need of New York and New Jersey and all those who were affected after 
9/11. We consistently have requests from FEMA that come forward, to 
which it is necessary that we respond, and we do that and we step up 
together. Honestly, for the life of me, I do not understand why, when 
it comes to our farmers, we do not have the same bipartisan support nor 
the same support from the administration. It is deeply concerning.
  I very much hope as we come to the end of the session that we could 
come together and stand up for those who fight hard every day against 
the elements. They are in a tough job. They cannot control whether it 
rains or shines. Yet they are putting food on our tables, as well as 
around the world, and providing for a very important part of our 
economy. I hope we stand up for them at this time.
  Mr. BAUCUS. Mr. President, I yield to the Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I thank Senator Baucus of Montana; 
Senators Dorgan and Conrad of North Dakota; Senator Stabenow of 
Michigan; my colleague, Tom Daschle of South Dakota; and others who 
have risen on the floor to talk about the urgent need for disaster 
relief to the agricultural sector of our economy. It seems 
extraordinary to me that at a time when we have passed disaster relief 
for earthquakes in California, hurricanes in Florida or New York or 
whatever--whenever there is a natural disaster that has occurred, our 
country has come together. Our colleague, Ben Nelson of Nebraska, 
suggests perhaps we ought to give names to these droughts. If it was 
Drought Hugo or Drought Andrew, perhaps there would be a different 
perception at the White House.
  I was profoundly disappointed this summer when President Bush 
traveled all the way to Mount Rushmore, in fact, to announce to the 
agricultural sector that there would be no relief other than what 
meager amount there might be available in the farm bill. That was never 
designed to address natural disasters. We have always dealt with 
disasters in the agricultural sector or any other sector of the economy 
on an individual basis. Some years we have them, some we do not. There 
is no slush fund in the farm bill designed to be utilized for a 
disaster relief. It is simply not put together that way.
  Yet we know we could do a full $6 billion level of drought relief and 
do it in a fiscally responsible fashion because, in fact, the farm 
bill, over the course of this next year, is going to be using less 
countercyclical payments, and those payments will not be required, and 
that will come to around a $6 billion savings. It is not a technical 
offset, we know that, but it is a fiscally responsible way we can go 
about doing this.
  But to single out agriculture for the first time ever in this 
unprecedented way strikes me as an extraordinarily bad precedent. 
Republican and Democratic administrations alike in the past have 
supported disaster relief when disasters occur. It is not like we seek 
relief every time we have a little shortage of rain or a little problem 
of one kind or another. That is the nature of agriculture. But what we 
have here is a devastating circumstance that has damaged agriculture in 
a significant way in some 37 different States, at least, across the 
country. Yet we have an administration for the first time ever saying 
we will help tornado victims, we will help hurricane victims, will help 
earthquake victims, but if you are in the agricultural sector, forget 
about it. We are not going to be there for you. That is a precedent 
that is of profound consequence to the agricultural sector all across 
our country.
  In South Dakota, the State university tells us the loss to the 
economy is already in excess of $2 billion in our small State. 
Obviously this ripples up and down every Main Street of every 
community. Those who are the least capitalized, the younger producers, 
are the first to be forced off the land at a time when we have a 
demographic problem as it is in terms of keeping our young people and 
young leaders in our rural communities. It has an enormous impact. We 
will be feeling the effects for years and years to come. Even if we 
were to have this disaster relief, as Senator Baucus well knows, this 
would not make people whole. This would not make it as though the 
disaster had not occurred. This would simply get people by through the 
winter so they can know whether they have to continue to disperse their 
herds or whether they would continue to farm at all--they would have 
that knowledge. They would be in the hope next year things would turn 
better.
  As it is, we have had a 2001 and 2002 drought, 2 years back to back. 
On top of that, we have unfair trade policy, concentration in the 
agricultural sector, and all kinds of conditions at work to lower the 
price that our producers get in too many cases and it simply gangs up 
on our producers to the point where income is falling off a radical 
level this year--down at least 23 percent this year; last year it 
wasn't good. What we are going to find is a depopulation of this part 
of the country.
  If we were seeking something unique and special for the agricultural 
sector that no other sector gets, it would be one thing, but what we 
are looking for is equity, fairness. I ask my good friend, the Senator 
from Montana, who has played such a lead role in helping to raise this 
issue, is there any logic, is there any equity in singling out the 
agricultural sector to be devoid of any kind of disaster relief as 
opposed to any other sector that faces a natural disaster in America? 
Why should agriculture be the one sector that is told to drop dead when 
you have a natural disaster in your region?
  Mr. BAUCUS. I thank my friend. Frankly, I was going to ask him 
roughly the same question; namely, what possible reason could the 
administration have, the other side of the body have, for saying no? 
What possible reason? Can you even think of a reason? The only one I 
can think of is, perhaps, that it costs money. That cannot be a reason 
when we spend so much money in so many areas where there is no 
disaster, no emergency. This is black and white. This is so easy. As 
the Senator has so articulately said, in so many instances it is the 
American way to help parts of the country that suffer natural 
disasters, America is there. America has a big heart. We are there. We 
are Americans. We work together to help other Americans who suffer 
disasters.
  The Senator has mentioned earthquakes. We know of the devastating 
earthquakes, say in California and we were there. We know of the 
devastating hurricanes in Florida or on the eastern coast, and we have 
been there. We know of other floods and we have been there. All of us 
together have been there. As the Senator said, it has been nonpartisan, 
it has just been America.
  But for some reason, and I cannot fathom what the reason is, the 
White House said no to this disaster; said no. The other body, on the 
other side, said no. The only possible reason I can think of, as the 
Senator has suggested, for some reason they think they can get away 
from it because farmers and ranchers are kind of stoic. They are good 
people. They do not raise the rafters. They don't take to the streets. 
They are good, solid people.
  I think the Senator from Minnesota made a good point earlier. He 
said, and frankly this is very poignant, it is ironic: When our beloved 
late departed colleague, Senator Wellstone, often said, there are other 
people--there are law firms, lobbyists, who can represent big companies 
in Washington, DC. But he, Senator Wellstone, was there to represent 
the people who don't have big lobbyists and well-heeled people. He, 
Senator Wellstone, is there to represent the people. That is our job. 
It is the job of both sides of the aisle, to represent the people. It 
is the job of both ends of Pennsylvania Avenue to represent the people.
  Now we have our nation's farmers and ranchers, down and out--there 
are not better, more decent, hard-working, wonderful, people in America 
than our farmers and our ranchers. They don't complain. They work 
really hard. They do their very best. Yet the administration and the 
other body is turning their backs to them.

[[Page 22968]]

  It reminds me sometimes of New York. The current occupant of the 
Chair from New Jersey certainly knows this phenomenon. Certainly, when 
an administration or Congress says no to something New York wants, the 
headlines are: Drop dead. The administration says drop dead.
  Clearly this administration, the other party, to our farmers and 
ranchers has said: Drop dead.
  The Senator made another excellent point; namely, the farm bill is 
not designed to take care of natural disasters. You must have a crop to 
participate in the Farm Bill. There is no slush fund, the Senator said, 
in the farm bill.
  The farm bill is irrelevant to this phenomenon, this disaster, we are 
facing. For the life of me, I cannot understand. Maybe drought is just 
a ``silent killer,'' as some of our colleagues mentioned earlier. It is 
not on the front pages. It is the silent killer in different parts of 
the country. You do not see it coming slowly, but it just as pernicious 
and devastating, if not more so.
  Mr. JOHNSON. Mr. President, I thank my colleague for his insight 
because I think he is exactly right. While the damage is as great as 
with any other disaster, it takes a matter of days and weeks and months 
for this to occur, as opposed to the headline-grabbing earthquake or 
tornado or hurricane that may take a day or two and grab headlines.
  I invite my colleagues from the House who have refused to even hold 
hearings on this issue, much less have a vote of any kind on disaster 
relief, and I invite the administration to come to my part of the 
country to look at what has happened to those fields, to those farms, 
and to those ranches. The liquidation of herds has already taken place. 
The equity built up for generations has been lost over the course of 
this last year. Again, we find a stone wall relative to disaster relief 
for agriculture.
  I applaud the leadership of my colleague from Montana, and my 
colleague from South Dakota, Senator Daschle, and Senators Dorgan, 
Conrad, Nelson, and others who have done so much to highlight the 
equity and the common sense of this action. It is my hope that before 
we leave this place, we can in fact see to it that our rural parts of 
America get the same kind of attention, the same kind of concern, and 
the same kind of compassion that every other part of America and every 
other sector gets when they have unmitigated disasters facing them.
  I yield my time.
  Mr. BAUCUS. Mr. President, I have the floor. Before I yield time to 
the Senator from North Dakota, I see the distinguished minority leader. 
I ask if he can wait for a short while so the Senator from North Dakota 
can give his statement, if that is OK with the Senator from 
Mississippi.
  Mr. LOTT. Mr. President, I would be glad to withhold. I hope it 
doesn't take too long.
  Mr. BAUCUS. I am giving him in a little nudge.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I thank the Senator from Montana. I thank 
the Republican leader. I appreciate that.
  As you can imagine, this is deadly serious for the people I 
represent. This picture says it all. This is what southwestern North 
Dakota looks like. It looks like a moonscape. Nothing grew this year. 
It is the most devastating drought that many have faced since the 
1930s. Many would say it is an even more devastating drought than we 
had in the 1930s because absolutely nothing grew this year. It is a 
devastation.
  One of the newspapers in our State published this headline: 
``Disaster Aid Just Common Sense.'' This is my hometown newspaper. They 
said: Look, this is a circumstance that demands a response. Always 
before, we have given disaster assistance to every other part of the 
country in every other circumstance, but not here.
  The President of the United States says take the aid out of the farm 
bill. There is no disaster aid in the farm bill. That was specifically 
precluded. But the farm bill can provide the funding because the 
savings from the farm bill will directly provide the amount of money 
necessary for disaster assistance.
  Here is the circumstance we face, according to the USDA. Net farm 
income is going to go down 21 percent even though prices are higher. 
Even though farm program payments will be lower, farm income is going 
to plunge. It is going to plunge because of natural disasters in every 
part of the country. Obviously, it is very acute in the Midwest--
especially Montana, North Dakota, and Minnesota.
  I end by reminding colleagues of what Senator Wellstone, who so 
tragically died, said in his last days. He was fighting for disaster 
aid. He said: ``Politics delays aid for northwest Minnesota farmers.''
  Senator Wellstone may be prophetic in what he said because he was 
afraid that politics would kill the disaster assistance that is so 
desperately needed.
  In my State, literally hundreds, and perhaps thousands, of farm 
families will be forced off the land if we don't do what we have always 
done in the past; that is, provide disaster assistance--a disaster 
package that can be fully offset and fully funded by savings out of the 
farm bill. Because of these natural disasters, and because we have had 
drought and floods, production is less and prices are higher. That 
means payments are less from the farm bill. That money could be used to 
pay for disaster assistance that is so desperately needed.
  I plead with my colleagues. I plead with them. Let us do now what we 
have always done in the past. When any part of the country suffered a 
disaster, we helped. We should do no less now.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of S. 3099, the bill to provide emergency 
disaster assistance to agricultural producers, that the bill be read a 
third time and passed, that the motion to reconsider be laid upon the 
table, and that any statements thereon be printed in the Record.
  Mr. President, before I ask the Chair to put that question, let me 
just say that I plead with my good friend, the minority leader--soon to 
become the majority leader--from Mississippi. I know he is about to 
object. But I urge him to not object at this point.
  Maybe there is a way to work something out here. I say that because 
this is not a political gesture. As the Senator well knows, Mississippi 
farmers are hurt for various reasons. As a final good-faith, bipartisan 
way to work something out with the White House, if he can possibly 
figure it out--I don't want to put the Senator on the spot. Believe me. 
I don't. I am only putting it this way because this could be the last 
day we are in session, and we still have an opportunity here. I wonder 
if the Senator might not object. As the Senator from North Dakota 
pointed out very well, there really is no cost to this because the farm 
bill costs will be about this amount less because of the way the farm 
bill works; namely, with the drought we have less production and higher 
prices and much less in government payments made to farmers, it works 
out to be very close to the amount of disaster assistance to farmers 
and ranchers who suffer from a natural disaster.
  I know it is a long shot. I am still going to make the request. We 
haven't given up around here trying to help our people.
  Mr. LOTT. Mr. President, reserving the right to object, I have no 
doubt about the seriousness of the sponsors of this effort. Also, I am 
sure the administration and the Congress are going to continue to look 
at this to find ways to be of assistance in every way that is possible 
and that is needed.
  There are a couple of serious problems with this, though. First of 
all, we do not really know what the cost will be. We are being told it 
wouldn't cost anything because it would come out of the agriculture 
bill. I thought I heard another Senator say you can't take it out of 
the agriculture bill that we passed because it is prohibited. I am not 
sure exactly how that would work.
  Second, this bill came straight to the floor. It didn't come through 
the committee. I have a lot of faith, even

[[Page 22969]]

though I disagree sometimes with the leadership on the Agriculture 
Committee. My colleague from Mississippi, Senator Cochran, is certainly 
sensitive to agricultural disasters. He will be the chairman of the 
Agriculture Committee next year. We will have a chance to revisit this. 
But no committee considered it; it was just brought straight to the 
floor.
  For those reasons and others, and the fact that the House will not 
have an opportunity to fully consider it, or even take it up at this 
late date, I would have to object. So I do object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Montana.
  Mr. BAUCUS. Mr. President, I am gravely disappointed that there is 
objection.
  Our farmers cannot wait, frankly, until next year. It looks like they 
are going to have to wait now. Those who are still farming, those who 
are still raising livestock are going to have to somehow dig deeper, if 
you pardon the pun, to make a living, scratching off the land.
  I am baffled. I am totally baffled. This case is so clear. With all 
due respect to my colleague from Mississippi, he made two inconsistent 
points. I heard no real reason, just an objection, as is any Senator's 
right under the rules of the Senate.
  But, nevertheless, we have spoken. And I will fight this in January; 
that is, we will figure out some way to help our farmers and ranchers 
who are suffering from these disasters, just as other people around the 
country get aid when they experience disasters.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Edwards). The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I thank you for this 
opportunity to speak today regarding the importance of disaster relief 
yet this year.
  Now, in just the last few minutes it became fairly clear this is now 
going to have to carry over. And I respectfully disagree with the 
Republican leader that this should be carried over. I do understand the 
rules and will have to abide by them, but I think it is important to 
point out that while the legislation may wait, the people who need 
these funds for their very survival are not going to be able to wait. 
They are going to sell off their land. Many are selling their herds 
right now. They will not wait because they can't wait. We will have to 
wait for this legislation and do the best we can.
  But I would like to quickly thank Senator Baucus and certainly 
Senator Daschle for their tireless efforts to provide drought 
assistance. And I certainly associate myself with the comments made by 
Senator Conrad from North Dakota, who I think very eloquently laid out 
the numbers and what the implications are relative to the need for this 
disaster relief in his State.
  Nebraska isn't much different. Much of our land looks like a 
moonscape because the pastures have had inadequate precipitation for a 
number of months and, in many cases, years, and they do not come back 
quickly. Without water, without snow, without the precipitation 
required, the grass simply will not grow.
  This body has twice passed drought assistance--twice. We first passed 
it as drought relief. Then we passed it as part of the Interior 
appropriations process. We tried to include it in the farm bill.
  Yet as we come to the conclusion of this 107th Congress, the House 
has failed to act. We must try one more time to get the point across so 
that, as the year turns from 2002 to 2003, there will still be a 
recollection that just because the year has changed, the conditions 
have not changed; they continue, unfortunately.
  We are here not to make a point, although a point must, in fact, be 
made, but to get the necessary drought assistance for our farmers and 
ranchers in those areas of our country that are experiencing a 
continuing drought, a multiyear drought, that is devastating to their 
economic well-being today and threatens to be even more devastating in 
the days ahead.
  Some are worried, apparently, about the cost. I, too, as a fiscal 
conservative, am worried about the cost. But I must ask, what would we 
do if it was a different kind of natural disaster, let's say a 
hurricane or a flood or an earthquake, some other kind of disaster?
  It is not that the people in this body are not worried about the 
cost; it is that when we have emergencies, we respond to those 
emergencies without looking for offsets because we recognize 
emergencies are special situations. They cannot be simply provided for 
within the current budget or in a future budget.
  On disaster relief, the Congressional Budget Office has said 
Government spending is down, almost enough to pay for this disaster 
relief, because of this year's high commodity prices. Why cannot we see 
our way clear, in some manner, before the end of the year, or right 
after the beginning of the new year, to put disaster relief on the 
continuing resolution or be the first order of business in the next 
Congress?
  If some believe this drought is really not as damaging as other 
natural disasters, I invite them to come to Nebraska and visit with our 
farmers and our ranchers and take a look at the landscape and begin to 
understand that if our farmers and ranchers are unable to make it 
financially, the lenders will require them to sell their land, to sell 
their herds, to go into bankruptcy.
  This damaging drought is not only a problem for farmers and ranchers, 
but it devastates main street Nebraska, main street North Dakota, the 
main street in any community that depends primarily for its existence 
on successful agriculture. If you talk to the merchants in these small 
communities, they will tell you what is happening to their business. 
They are going under. They are not making it. They are worried about 
not only next year but making it this year. Because if you don't have 
money coming from agriculture, these communities are going to wither, 
and they are not going to be able to make it.
  So I only suggest, half in jest, that we begin to label droughts, 
because if this was ``Drought Andrew'' or ``Drought Margaret,'' it 
would have some identity that could attract emergency aid for a 
disaster. We make a mistake in not having these droughts named after an 
individual, as we do with hurricanes, because then these natural 
disasters, these natural events, that occur over a continuing period of 
time might have a substance that could attract the attention of those 
who are today saying: Well, let's put it off until next year.
  I can assure you, if we had another type of disaster today, it is 
very unlikely it would be put over until next year. If we had had a 
hurricane last month or the month before, I can absolutely assure you, 
it would not have been put over until next year.
  I don't think it can be any more clear to me that America's farmers 
and ranchers need this effort in our Senate to go forward. We need the 
House to pass disaster relief. I have seen so much of the damage 
firsthand. I have been across the State. I see the reports. This summer 
I was on a dryland farm that has had crops--some good, some bad--for 70 
years. During the Dust Bowl years that farm produced a crop. This year 
there is no crop--for the first time in 70 years, and perhaps long 
before that, certainly in the recollection of the owners of that farm. 
They can only go back 70 years. But they know there has never been a 
year until this year where they have not had a crop.
  A family farmer in my hometown of McCook, NE, Dale Dueland, whom I 
have known since the days he crawled across his family's floor--he is 
not going to like me saying that, but I remember when he was that 
little boy in that farmhouse, and today he is a man with children, and 
with a successful farming operation, except for the drought. It is not 
simply because of prices but because it does not matter what the price 
is if you do not have a crop.
  He does not have a crop. He said he would have a zero yield on his 
900 acres of dryland corn. It would not matter if corn went to $5; if 
you don't have anything to sell because of a disaster of

[[Page 22970]]

this kind, you are not going to be able to make it. His poor crop 
performance is not the result of poor planning or poor farming or 
nondrought-related weather. This is the result of a natural disaster 
that has been going on in some cases for over 2 years.
  For much of my State, this is, in fact, a no-yield year or, at best, 
a low-yield year.
  Al Davis from Hyannis, NE, told me that ``each day places another 
nail in the coffin of many individual ranchers in Nebraska and on the 
Great Plains. Many ranchers have already thrown in the towel and are 
liquidating portions of their herds,'' which will have an impact not 
only today but tomorrow, the next year, and the next year, because 
rebuilding herds is not a singular event that occurs in a short 
timeframe. It takes years to build a herd. It takes only days to 
liquidate a herd.
  Annette Dubas, who owns a ranch and farm in western Nance County in 
Nebraska, told me that after the third year in a row of drought 
conditions, some farmers in her area have already been forced out while 
others have been working two jobs just to be able to keep their farm 
going. That is neither a happy situation nor is that a good thought 
about what the future is going to hold. They are going to have to be 
able to sell or they are going to have to be able to have a crop or 
they are simply going to go out of business.
  These are not big time corporate farms. Nebraska law bans corporate 
farming. These are family farmers who are being driven out of business 
for the first time in generations. These farms have been in their 
families for many generations; in some cases, 100 years or more. 
Farmers and ranchers have not only been let down by Mother Nature, they 
have been let down by those in the Senate and House who have blocked 
efforts to provide disaster relief despite its severity and despite 
CBO's savings indications.
  We can't keep denying relief to those in need. Maybe the procedure is 
that it be put over for another couple months. But it must be one of 
the first things, if not the first thing, that this Senate and the 
House take up after the beginning of the year in the new Congress. We 
cannot allow the House to remain idle on the issue. We need the White 
House to support this bill, and we cannot allow objections from those 
few who don't understand that this drought is no different than a flood 
or a hurricane or an earthquake to stop us from providing relief. We 
must, in fact, recognize the savings from the farm bill are there. And 
if need be, we need to get it as part of this drought assistance.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I want to say, before the Senator from 
Nebraska leaves the floor, that the statement made by the Senator from 
Nebraska, former Governor, should be a primer for someone trying to lay 
out a case. He laid out a case as well as I have ever heard. He talked 
about the State itself, about individual people. It is compelling.
  Nevada, of course, does not have large agricultural interests. We 
have some agricultural interests. But the Senator from Nebraska has 
done as good a job as I have ever heard in presenting a case.
  I hope the people of Nebraska know what an advocate they have in the 
Senator from Nebraska. When students study how to lay out a case, 
whether it is for farm aid or whether it is for anything else, 
reviewing the statement of the Senator from Nebraska makes the case in 
point.
  Mr. NELSON of Nebraska. Mr. President, I thank my friend from Nevada. 
The challenge we have in Nebraska is laid out by the fact that this is 
about the present but also the future. The future will be dim if we are 
not able to take care of the problems that have developed in the past 
and continue today. It is about young people, the future of the State, 
and the future food needs for the people of this country. Everybody 
will be continually adversely affected if we don't remedy this 
situation as soon as possible. If it can't be before January 7 of this 
coming year, it would still be early enough.
  The PRESIDING OFFICER. The Senator from Michigan.


          Bay Mills Indian Community Land Claim Settlement Act

  Ms. STABENOW. Mr. President, I rise today to discuss another bill, a 
very important bill to communities in Michigan, a bill I introduced 
earlier this year, S. 2986, the Bay Mills Indian Community Land Claim 
Settlement Act. I also, on a personal note, thank Patty Bouch of my 
staff for her excellent work on this issue. She has been diligently 
focused for a number of months now in working with all those interested 
in this issue.
  S. 2986 provides for congressional approval of a land claim 
settlement agreement reached earlier this year by the State of 
Michigan, Governor Engler, and the Bay Mills Indian community of 
Brimley, MI. The agreement settles the tribe's longstanding claim to 
over 110 acres of land that was once deeded to the Governor of the 
State to hold in trust for the ancestral bands of the Bay Mills Indian 
community.
  This land, now called Charlotte Beach, MI, was later sold for unpaid 
taxes and without the knowledge of the bands or consent of the State. 
In agreeing to extinguish the historical land claim in the area, the 
Bay Mills Indian community will be granted alternative lands in the 
State as outlined in the settlement agreement. These alternative lands 
are located in Port Huron, MI, and would become part of the reservation 
of the Bay Mills Indian community.
  Furthermore, the legislation directs the Secretary of the Interior to 
take these alternative lands into trust as land obtained in a 
settlement of a land claim under the Indian Gaming Regulatory Act. The 
Senate Committee on Indian Affairs held a hearing on S. 2986 on October 
10 of this year. I am very appreciative of Chairman Inouye's 
willingness to hold the hearing, particularly that week, in light of 
the fact that the Iraq resolution was being debated at that time on the 
floor. It was a very serious week with much happening. I am grateful 
for his willingness to hold the hearing and to work with me on this 
issue as we have moved through the process.
  The hearing afforded me and House colleagues in attendance and my 
constituents a forum to explain the merits and the need for the 
legislation. I appreciate the fact my House colleagues, Congressman 
Bart Stupak and Congressman Dave Bonior, were in attendance. They 
testified in support of S. 2986 as it directly affects their current 
congressional districts.
  Before the committee, Congressman Stupak discussed his past efforts 
to remedy this land claim for the Charlotte Beach landowners in his 
district. He has worked on the issue for the last 8 years. He has been 
trying to resolve it. He believes that S. 2986 will grant the clear 
property title to the landowners in Charlotte Beach, MI who have 
inadvertently been involved in an issue greater than themselves.
  The settlement of this land claim will also greatly benefit a 
community in Michigan. Port Huron, MI is a community that is in great 
need of new economic development and jobs. The citizens of Port Huron 
can look directly across the waters at a casino in Canada--right across 
the bridge. There is a large bridge that goes from Port Huron to 
Sarnia. They watch every day as people drive across that bridge, 
citizens of Michigan and the United States taking their dollars to 
Canada where there are more jobs now as a result of that establishment.
  On the other side we have a community desperately in need of jobs. 
This community has wrestled with economic development and what to do. 
In June of 2001, they had a referendum and the voters of that 
community, after thoughtful discussion and debate, voted by a 55 to 45 
percent margin to show their support for potential gaming activities in 
their community.
  This was done, as in any community, with thoughtfulness about what 
the alternatives are. I know they are very frustrated at the fact that 
they can look at job loss, economic loss right across the river from 
them.
  Should my legislation pass this Congress, Port Huron could be the 
last

[[Page 22971]]

U.S.-Canadian border crossing in my State to have gaming, which would 
provide some desperately needed economic development and job creation 
for a community where the unemployment rate exceeds both the State and 
the national unemployment rate.
  Unemployment in Port Huron is nearly 12 percent and the community 
desperately needs new economic development and jobs. They have a plan 
now. Community leaders have come together and developed a plan that 
will work for them. It will create jobs in the building and 
construction industry, and it will create long-term jobs in the service 
industry as it relates to this project. They are urgently asking us to 
pass this legislation. They are ready to go to work and get it done. 
They ask that we pass this now in the final day of the session. It is 
very important to them that this be passed this year and not next year.
  Mr. President, I ask unanimous consent that the Committee on Indian 
Affairs be discharged from further consideration of S. 2986 and the 
Senate proceed to the immediate consideration of the bill; that the 
bill be read the third time, passed; and that the motion to reconsider 
be laid upon the table, without any intervening action or debate.
  Mr. REID. Mr. President, reserving the right to object, first, let me 
say to my dear friend, the junior Senator from Michigan, I don't oppose 
Indian gaming. I am responsible for writing the Indian Gaming Act. It 
was done many years ago. I am still a member of the Indian Affairs 
Committee. I haven't liked the way the law has gone with the Indian 
Gaming Act, but I follow what the courts have decreed.
  I think there have been some very good things happening in the 
country in Indian gaming. They have been taken advantage of on a number 
of occasions, but that is the way it is in a lot of different 
businesses. I don't oppose Indian gaming, I repeat. While I had some 
concerns initially, they basically have been met, and I have had some 
very good relations with Indian gaming operators and operations across 
the country.
  I oppose this legislation that my friend from Michigan has asked be 
passed by voice vote today. I oppose it for a number of reasons, not 
the least of which is that the legislation would undermine the gaming 
compacts that were approved by the Michigan State Legislature after 
years of careful and deliberate negotiations.
  Senator Stabenow's bill would circumvent the terms negotiated in all 
11 tribal-State compacts, including the compact to which Bay Mills is a 
party, which prohibits off-reservation gaming in the absence of a 
revenuesharing agreement involving all of Michigan's Federally 
recognized tribes.
  Additionally, in recent gaming compacts, the tribes involved all 
agreed to limit themselves to one gaming site for each tribe; yet this 
legislation would allow Bay Mills, which already has two gaming 
facilities, to open still another facility hundreds of miles from its 
reservation and in direct competition with the tribes in the lower 
peninsula.
  Secondly, allowing a tribe to settle a land claim and receive trust 
land hundreds of miles from their reservation for the express purpose 
of establishing a gaming facility sets a very dangerous precedent.
  This pursuit of off-reservation gaming operations should continue to 
follow the procedures outlined in the Indian Gaming Regulatory Act, 
Public Law 100-497, which authorizes tribal gaming operations on off-
reservation ``after-acquired lands'' where the land to be acquired has 
no relationship to the land upon which the claim was based.
  Let me say that the first gaming compact ever approved with an Indian 
tribe in the history of the country was done in Nevada. So it is not as 
if Nevada is here opposing this request. The first compact ever 
approved in the country was in Nevada. That is still an ongoing 
operation and a very successful one.
  The proposed casino would be located just north of Detroit on a major 
link to Ontario that is in the lower corner of the lower peninsula. Bay 
Mills is located in the upper peninsula. The legislation is 
fundamentally flawed because it allows Bay Mills to establish gaming 
facilities under the guise of settling a land claim.
  The land claim is simply--and everybody knows this--an excuse to take 
land into trust for off-reservation gaming.
  I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. WYDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Mr. President, I ask unanimous consent that I be permitted 
to speak for up to 15 minutes and that the time be charged postcloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.


              Health Care That Works for All Americans Act

  Mr. WYDEN. Mr. President, recently I introduced with Senator Hatch 
health care legislation, the Health Care that Works for All Americans 
Act. I come to the floor today because I think many Senators are 
frustrated about the inability to make more progress on the health care 
issue in this session of the Senate. I want to take a few minutes and 
talk about what I think the key principles are for this country to make 
headway with respect to health care.
  The three principles that I believe are central on this health care 
issue are, first and foremost, to make sure the public is involved from 
the ground floor. Again and again, what we have seen is health care 
legislation proposed that is attacked by special interest groups, and 
then it goes nowhere. The public gets understandably confused about the 
discussion, and the bill dies.
  Under the Wyden-Hatch legislation, the public would get the first 
crack at looking at the key issues, which are: What are the essential 
services that people feel strongly about? How much would they cost? And 
who would pay for them?
  The second feature of our legislation is that it establishes a 
process to ensure that Congress actually votes for meaningful and 
comprehensive health reform. The last time Congress took a crack at 
this, almost a decade ago, there were not even votes in Congress on the 
legislation.
  The third principle we ought to zero in on with respect to health 
care for the future is that it has to be bipartisan. The Wyden-Hatch 
legislation is literally the first bipartisan effort in comprehensive 
health reform in a decade.
  I come to the Chamber today to say those three principles--involving 
the public at the outset, ensuring there will be an actual vote by the 
Congress on comprehensive legislation, and that the bill be 
bipartisan--ought to be the core of the Senate's effort to reform the 
health care system.
  Today I wish to take a couple of minutes to talk about a central part 
of our legislation, and that is what to do about rising health care 
costs in America.
  Rising costs in American health care are a runaway train, and the 
American people have literally been tied to the track. Again and again, 
small businesses come up to us and say they have been subjected to 15-, 
20-, 25-percent rate hikes year after year. This is all before the 
demographic tsunami comes in 2010 and 2011 when we will have millions 
of baby boomers, and right now millions of working families, some with 
insurance, some without, that cannot afford doctor visits and disease 
treatments and the drugs they need. So certainly at the center of any 
effort to reform health care has to be putting the brakes on those 
rising costs that are literally a runaway train in our society.
  There are going to be tough choices. If resources are limited, we 
have to make some tough calls about how to allocate those resources and 
to focus on some of the ethical and moral questions that are inherent 
in rising costs.

[[Page 22972]]

The tough moral and ethical considerations that will be necessary to 
contain them are stark realities, but they have to be faced if this 
country's health care system is going to work for all.
  My colleague from Utah, Senator Hatch, and I have proposed in our 
legislation, the Health Care that Works for All Americans Act, a 
specific plan so that citizens can face those realities and fashion a 
better health care system.
  Under our proposal, the American people will have a chance--a chance 
they have not had in 57 years since health care reform was tackled by 
Harry Truman in the 81st Congress--the American people will have a 
chance, before the special interest groups have at it, to talk about 
the kind of health care system they believe makes sense for them.
  Our legislation has two major components: A public participation 
process at the outset over a relatively short period of time, and a 
guaranteed vote in both Houses of the Congress on the people's 
recommendations.
  When it comes to health care costs, there is a lot for the public to 
examine. We are now spending 15 percent of our gross domestic product 
on health care. The last time it was looked at, the country spent more 
than $1.4 trillion on medical care, a 10-percent increase from the 
previous year.
  If you divide $1.4 trillion by the number of people in this country, 
it comes to almost $5,000 for every man, woman, and child. Tens of 
millions of our citizens, in addition, slip through the cracks every 
day, even as our Nation pours more and more money into health care.
  We are going to have to take a look at where the money is going. A 
study that has now been published on the Web site of the journal Health 
Affairs attributes spending increases primarily to higher hospital 
costs and prescription drugs. Hospitals are raising prices to make up 
for declining insurance, Medicaid and Medicare reimbursement, and the 
money they lose treating patients with no insurance at all. Moreover, a 
backlash against the tight hospitalization controls of managed care has 
clearly contributed to rising costs.
  There are a host of relentless forces converging on American health 
care. Technological innovations seem to be coming at us from every 
area, and each miracle cure comes with a high cost. More and more 
health information is available through the Internet through sites such 
as WebMD and health.gov. It shows up on the ticker on all the 24-hour 
news channels, and each new discovery drives up the demand for care. If 
CNN runs a story on a medical breakthrough at 9:30 in the morning, it 
seems that an hour or so later we will be getting calls at our offices 
asking if Medicare or Medicaid or various insurance plans will pick up 
that coverage.
  We have an extraordinary appetite for health care, for new 
treatments, but sometimes when we order these, we are not sure we are 
getting what is medically effective. We are not sure we are getting 
services that are worth the money. And most importantly, there is no 
way to measure it.
  This is all compounded by the baby boomer explosion. Already, elderly 
people make up 15 percent of the population and spend 40 percent of our 
health care dollars. Folks are not just getting older, they are living 
longer. Those additional lives and the care that is necessary is going 
to require more funding. Life expectancy has risen more in the last 50 
years than it did in the preceding 5,000. In the last months of their 
longer lives, Americans are spending more money than ever on health 
care. But money does not always give the best results for a suffering 
individual.
  As a direct result of health spending increases in 2001, the Health 
Affair Study that I noted said health insurance costs have risen 
sharply, but at the same time coverage is getting harder and harder for 
many to get. The costs have gone up two ways. The first is with simple 
premium increases. Insurance companies are asking purchasers to pay 
more for the policies. The second way is through something called 
buydown. Employers who subsidize insurance reduce available benefits 
and ask employees to pay a higher share of the subsidized premium. 
Employees often get lower wages, even as they pay more for health 
insurance, with no guarantee their insurance will meet their needs. 
When you combine that significant hike in premiums--12 percent has been 
one assessment by the Kaiser Foundation--with a 3-percent increase in 
the number of cases of the buydown, the total cost of insurance has 
risen about 15 percent this year.
  Nationally, businesses are still paying three-quarters or more of 
employees' premium costs, but it is harder and harder for companies and 
individuals to absorb those cost increases year after year. Fully 60 
percent of those who have no insurance work for small businesses. For 
the self-employed or for those who have to buy their own insurance, 
premium increases at this point have priced many plans out of reach.
  If someone is listening today and saying, ``The health care system 
works fine for me,'' let's also reflect on the fact that while it may 
work for you, it is not working for tens of millions of others. The 
fact is, every single day in America those who have no coverage, those 
who are going without, in effect, get subsidized by those who do have 
coverage.
  If an individual listens today and says, ``I am in pretty good shape; 
things are going well for me,'' I only point out for the millions who 
do not have coverage right now, those people are subsidized by those 
who think everything is fine.
  The fact is, it is just not right to leave millions of Americans in 
this country with a feeling of helplessness and a sense that when they 
go to bed at night they can see that train, that runaway train of 
health care costs I have mentioned bearing down on them.
  The legislation Senator Hatch and I have proposed gives Americans the 
power to put the brakes on rising costs. It offers regular citizens the 
opportunity to make tough choices about spiraling medical bills. We 
will be addressing, if our bill can pass, the tough questions of health 
care directly related to our families: The question of what kind of 
care do people believe is most essential; how much are people willing 
to pay; how do you contain the costs without sacrificing quality of 
care; what about the government or private business being required to 
pay part of the cost.
  My bottom line is pretty simple. It is time, finally, after 57 years 
of trying the same thing--writing bills in Washington, DC, only to have 
them attacked by special interests--it is time to try something 
different, and that is to give the people of this country a chance to 
make the judgment on calls with respect to what kind of health services 
they want, how much those services are going to cost, and who is going 
to pay. The alternative is to continue to spend more and more on a 
system that, while scientifically prodigious, is flawed in many of the 
administrative ways in which it is carried out.
  At a time when America is becoming a nation of health care haves and 
have-nots, this country can do better. We have many of our providers 
and businesses already making tough choices as they try to deal with 
growing costs. I know scores of small businesses in Oregon and across 
this country who are dying to offer their people good coverage, and 
they have had difficulty offering it without effective policies to 
contain those rising costs.
  Senator Hatch and I believe with a different approach it will be 
possible to reign in the costs, but it all has to begin--and begin in a 
fashion that has not been tried for 57 years--with the American people 
being given the opportunity to make some of the tough calls. The fact 
is, the options in the cost containment area do involve hard calls. The 
Kaiser Commission, for example, on the uninsured, on Medicaid, recently 
laid out a number of cost containment measures currently employed by 
our public health programs. They range from some that I think are 
progressive to some that I think would make the problems that we have 
today in health care even more serious.
  According to Kaiser, the main way public health programs are cutting 
costs is by cutting payments to providers. Private insurers then follow

[[Page 22973]]

suit, paying less to providers for each patient seen and for each 
procedure performed or for each bed the hospital provides. Then, in 
effect, the Robin Hood approach kicks in in a dramatic way with those 
who do get payments, in effect, giving services to those who lack it. 
But when the cutbacks get severe, when the reimbursements continue to 
go down as we have seen in so many facilities, those providers, those 
health care facilities that have a great sense of community and caring, 
just cannot offer the services anymore. Instead of or even in addition 
to cutting provider payments, some insurers and public health programs 
are cutting back on what services they will cover, reducing the 
availability of some services. Unfortunately, services are often cut 
with no regard to their overall effectiveness--only for their cost.
  Many types of health care programs are asking patients to pay more at 
the time of service--higher copayments. Higher copayments are also 
becoming a regular feature at the pharmacy, as prescription drugs are 
one of the biggest reasons behind rising costs. Options include those 
higher copays, requiring more prior authorization for prescriptions, 
requiring or covering only generics, or even limiting the number of 
covered prescriptions per month.
  I want to pause to note a couple of issues here--first, that 
prescription drugs are on the table in the Wyden-Hatch legislation, 
just as long-term care and Medicare and Medicaid and private insurance 
are. Senator Hatch and I are placing no limits on what the American 
people can discuss and decide to change. And second, efforts to cut 
rising drug costs are perfect example of the range of choices that 
folks will face in this national discussion. Some of the choices for 
cutting costs seem good and fair. Some seem punitive and unfair. 
Senator Hatch and I just believe that Americans have enough sense to 
tell the difference.
  People participating in the health care discussion prescribed in our 
bill will take a look at some of the toughest cost-cutters being 
employed today. In the case of private insurance, companies refuse to 
cover pre-existing conditions. They deny policies to people whose care 
is likely to be expensive. In the case of public insurance, States make 
last-ditch efforts to cut costs by limiting the number of people to 
whom coverage is available.
  All across America today, mothers will tell their children that you 
don't always get everything you want in this life. That's the stark 
reality people are going to have to face when it comes to reforming the 
health care system. The key will be to find solutions that do the best 
job of splitting the difference, cutting costs and providing essential, 
effective health care services.
  Cost containment is not enough. Our health care dollars must buy 
quality care, that not only treats disease but also prevents it 
whenever possible. That's the best cost containment. Failing that, care 
that manages diseases to slow or prevent their progression may be the 
next best thing. Disease management is a growing component of health 
care today. Instead of allowing months to go by between doctor visits, 
patients with chronic illnesses meet or speak regularly with nurses or 
other health care providers to monitor their specific condition. 
Doctors have concerns about their patients being treated or advised by 
others, and all the kinks aren't worked out of this system yet. But the 
result, in many cases, is a reduction in the number of expensive 
complications and hospital stays.
  I want to see Americans educated about disease management, preventive 
care, and every other option available for reforming health care. 
That's why the Wyden-Hatch Act calls for the publication of a Citizens' 
Guide to the Health Care System. A panel that's a cross-section of 
Americans using and running the health care system today will produce 
it. It will be designed so folks can be fully informed when the public 
participation portion of the process begins.
  To me, some of these cost containment methods seem fairer than 
others; some seem more sensible than others. The American people should 
have the change to decide--because what's being done now isn't working. 
Benefits are usually considered in terms of cost-benefit, which 
basically measures how much money you save for every dollar you spend. 
Another way of looking at procedures and practices is their cost-
effectiveness, which is how much good you do with every dollar.
  Let me explain why I believe it is folly to continue to address 
questions of health care and health coverage as purely economic 
considerations. The problem is, and families know this, it doesn't all 
boil down to money. You're not just dealing with a bottom line. You're 
talking about maintaining people's health and about the basic care they 
have a right to expect. Sometimes you're literally talking about life 
and death. It's time America started recognizing its ethical and moral 
responsibilities with respect to health care, and acting on them.
  This is not the seismic shift it sounds to be. Just as individual 
insurers and state health administrators are making choices about how 
to contain costs, American citizens are making moral choices around 
their kitchen tables every day. People already have to answer questions 
like, it okay to put off the colorectal screening my insurance won't 
cover because I really need to pay for my mother's prescription 
medicines? If we pay for Jennifer's broken arm, does Bobby have to wait 
a year to get braces?
  Doctors and hospitals are already making ethical choices about what 
care to get and give, or how much cost the hospital is willing to 
absorb before cutting services. The question that must be answered is 
still the same: do Americans want these choices made as they are now, 
in a back-door way? Or do they want a chance to discuss these issues at 
the front door, decide on them as a community, and then ask Congress to 
deliver a health care system based on the country's values?
  A better way to make decisions is to look at what we are and are not 
able to do on a societal level, instead of deciding what we are and are 
not able to do for a give patient at a given time. If that sounds 
tough, it is. But Mr. President, I'm here to urge that America tackle 
these issues head on and turn them to the advantage of as many people 
as possible. That's far better plan then letting back-door decisions 
suck away more funds and resources and deny people decent care.
  It's time to look at questions on a broader scale. Is $315,000 of 
public money better spent on one liver transplant and follow-up care 
for a 70-year old man with cirrhosis, or on 3,000 preventive well-baby 
visits costing about $100 each? Does a woman with known risk factors 
for breast cancer have a right to a mammogram every year even if I have 
to help pay for it?
  Because these choices are so tough, a variety of think tanks and 
great minds have tackled these issues, including Arthur Kaplan at the 
University of Pennsylvania, Daniel Callahan at the Hastings Center and 
others. I admire their thoughtful work. Their conclusions and study 
have provided valuable direction on these issues.
  I believe that at the end of the day, only the citizens of this 
country can make the fundamental choices that affect their health and 
their well-being--and health and well-being of the society in which 
they live.
  Researchers shows that Americans believe that there are certain basic 
rights when it comes to health care and no one should be forced to go 
without. If it's been confirmed that the American people feel that way, 
the key is to find out what the basics are and go from there. This 
country won't get anywhere on health care reform until we do.
  Let me explain a little further. Most Americans operate on the idea 
that they should have the latest tests and treatments on demand. That's 
possible--if America spends more of its dollars on health care and 
other budget items like educations take the hit. But spending more 
doesn't necessarily buy better health care. More and more people are 
being let without even the essential health care services, let alone 
the latest drugs and procedures.
  Let me be clear. I'm not talking about keeping people from spending 
their own money on whatever kind of health care they want. If someone

[[Page 22974]]

wants to rebuild himself limb by limb and has the money to pay for it, 
I say go for it. But when it comes to the health care system as a 
whole, we can't just spend money for the sake of spending money. Health 
care dollars must be used in better ways, or the people of this country 
must decide that it's okay to keep spending and keep leaving people 
out.
  I don't believe that's the way America wants it to work. As Marcia 
Angell wrote in the New York Times, there are some essential services 
in which we all agree the public has stake, and health care should be 
one of them. For example, no one I know thinks of our country as a 
place where it's okay for babies to go untreated because Mom and Dad 
are in financial straits.
  Postponing care sometimes places more strain on the health care 
system. If a baby doesn't get treated at the beginning of an ear 
infection, he may have to be treated as it goes further along, probably 
in the emergency room at a much higher cost than if he'd had a 
pediatrician to see in the first place. If he's not treated, and ends 
up with hearing damage, the costs will skyrocket not only in the health 
care system, but also in the educational system to meet his special 
needs.
  More than a decade ago, the people in my home State of Oregon 
realized the interconnectedness of everyone in the health care system. 
Folks realized that no amount of money would ever be enough to pay for 
all the health care Oregonians wanted, and that too many people were 
doing without health care at all. So the people of my state took on the 
tough task of sitting down and deciding what the basics were, what 
health care no one should have to do without.
  That may sound like an easy task; if you could just sit and make a 
list of all the things you'd like health care coverage to pay for, you 
would be able to do that without much trouble. But there's a flip side. 
The question Oregonians faced over and over again was, okay: if we want 
this fundamental service covered, what do we have to give up? What 
can't we afford to cover for anyone, if we want everyone to have at 
least some help? Those questions sometimes translated into 
heartbreaking real-life situations, where people using public health 
care couldn't get the latest and greatest innovations on demand. But 
lives were saved because people using public health care were able to 
get the basic when they needed them. That tradeoff, for the most part, 
made the tough choices worthwhile.
  Now, Senator Hatch and I are not asking America to come up with a 
list of 880 health procedures in order of importance. But we are 
looking for a general idea of people's priorities--so that Congress can 
act on them when it's time for health care reform.
  I believe there are some priorities our people already agree on. I 
think they agree that 18,000 Americans shouldn't have to die every year 
just because they can't get health insurance and health care. I believe 
280 million people will agree they'd rather cover the cost of 
preventive services than get stuck with the much higher costs of 
preventable diseases that go unchecked. I think with some serious 
discussion, they can agree on some basic concepts of how and where our 
limited health care dollars should be spent to help the most people. I 
believe 280 million people can agree on a lot more than you think.
  Some might say Americans aren't going to want to talk about this, 
that the idea of not paying for someone's liver transplant to take care 
of babies isn't fit talk for the public. But I believe Americans have a 
right to this discussion. These choices are going to get made, one way 
or the other, and I want them made in the open with the input of the 
people I'm here to represent. The stakes are just too high not to 
include the American people. And I believe they're up to the task.
  To help Americans understand what's at stake, and make informed 
decisions, the dissemination of information will be key. I believe the 
Citizens' Health Guide will be a real eye-opener for most people--for 
instance, when they find out this: Medicare Part A will pay for 
prescription drugs when a patient is in the hospital. Part B will pay 
nothing for those same drugs on an outpatient basis. Some doctors are 
sticking patients in the hospital to the tune of thousands of dollars 
just to get their medicine to them. That money can't be spent, then, on 
preventive services or any other more beneficial health care concerns. 
Don't you think when people see the connection, they will insist on 
making a change?
  Health care works like an ecosystem in this country. The consequence 
of every decision, and every reform effort, snakes through the system 
as a whole. Addressing health care properly, that, means addressing it 
as a system entire. Ad hoc is not going to work.
  Just as a good doctor wouldn't prescribe a medicine that would treat 
one symptom but leave the disease to run rampant, it's time to stop 
with the piecemeal reforms that put a Band-Aid on the sucking chest 
wound of the health care system. To be most effective, you can't just 
make decisions on broken bones one day, organ transplants the next and 
something else the next day like they don't have any effect on each 
other. This country needs a way to consider the moral and ethical 
choices already being made that affect not just one person or one 
family, but the entire health care system. As hard as it's going to be, 
it must be done. The Wyden-Hatch bill provides a path to do that.
  Yes, there are economic choices to be made about health care in this 
country. The runaway train of rising costs must be stopped somehow. And 
there are moral questions underlying every economic decision. The 
Wyden-Hatch proposal is built around the idea that these questions are 
simply too important to duck any longer. People deserve the chance to 
discuss their own moral and ethical priorities when it comes to health 
care, and to decide what's best for them and for our society as a 
whole. Only then can Congress deliver health care reform that truly 
works for all.
  That's why our bill, the Health Care that Works for All Americans 
Act, centers on that public participation portion, and then guarantees 
the people a vote in both houses of Congress.
  Perhaps the people of this country will choose one or more cost-
containment measures being used today. Perhaps in examining their own 
ethics, they'll come up with new ideas. What Senator Hatch and I want 
to guarantee is that their voices will be heard--and that this Congress 
will act, with a mandatory vote in both houses--to make the people's 
vision for health care come to pass. I believe that if Congress chooses 
to put the people in charge, Americans will choose to fight rising 
costs, make tough moral choices, and direct this country toward better 
health care for everyone.
  That is the point at which we have reached. That is why it is not 
right to leave so many underserved in so many communities without 
adequate health care.
  I urge, finally, that as we leave and reflect on what is needed to 
reform the health care system in the next session, that the three 
principles in the Wyden-Hatch legislation of involving the money, 
forcing a vote in the Congress on the reforms that come from the 
people, and making it bipartisan guide our work in the next session.
  I yield the floor.


                           Order of Procedure

  Mr. REID. Mr. President, I ask unanimous consent that all time, 
postcloture, be considered expired except for the following: 60 minutes 
under the control of Senator Byrd, 70 minutes under the control of 
Senator Lieberman, 70 minutes under the control of Senator Thompson or 
their designees; that 20 minutes of Senator Thompson's time be under 
the control of Senator Specter; that 15 minutes of the time of Senator 
Lieberman be under the control of Senator Dodd; 15 minutes be under the 
control of Senator Sarbanes; 10 minutes under the control of Senator 
Carper; and 10 minutes under the control of Senator Clinton; leaving 
Senator Lieberman, I believe, 20 minutes.
  Again, it will be 70 minutes under the control of Senator Lieberman; 
Senator Dodd would have 15 minutes, Senator

[[Page 22975]]

Sarbanes 15 minutes, Senator Carper 10 minutes, Senator Clinton 10 
minutes, leaving Senator Lieberman 15 minutes, with Senator Daschle 
having the final 5 minutes to close the debate.
  That upon the use or yielding back of all time, the bill be read the 
third time, and the Senate proceed to vote on passage of the bill; 
provided further that the 10 minutes prior to the vote be controlled by 
the two leaders, with the majority leader controlling the final 5 
minutes, without further intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, if I could further ask the Chair to consider 
this unanimous consent request.
  I ask unanimous consent that upon the adoption of the conference 
report to accompany H.R. 3210, the terrorism risk insurance bill, the 
Senate then proceed to the consideration of Calendar No. 762, H.J. Res. 
124, the continuing resolution; that no amendments or motion be in 
order to the joint resolution; that there be up to 3 hours for debate, 
with the time equally divided and controlled between the chairman, 
Senator Byrd, and the ranking member, Senator Stevens, of the 
Appropriations Committee, or their designees; that upon the use or 
yielding back of time, with no intervening action or debate, the joint 
resolution be read a third time and the Senate vote on passage of the 
joint resolution.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, the only thing I would ask is I hope, 
because I did move quite hurriedly here, that the time, the 70 minutes 
that Senator Lieberman has adds up to 70 minutes. I am quite sure that 
it does.
  The PRESIDING OFFICER. It does.
  Mr. REID. I appreciate everyone's cooperation. I ask unanimous 
consent that the time I have just enunciated not start running until 4 
o'clock so people have time to get over here. But at 4 o'clock, I ask 
that the time I have outlined here would begin to run and that anyone 
who has the floor at 4 o'clock, they would have to yield to one of 
these individuals who control the time at that hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I ask unanimous consent that I be allowed 
to speak for up to 10 minutes as in morning business.
  The PRESIDING OFFICER. The Senator might speak for up to 8 minutes.


                Honoring the Generosity of Andre Agassi

  Mr. ENSIGN. Mr. President, when I was first considering a run for 
office almost 10 years ago, I found a quote from Chaplain Lloyd John 
Ogilvie to be especially inspirational in helping me make my decision. 
Chaplain Ogilvie once said:

       You may only make a small difference, but that does not 
     relieve you of the responsibility to make that difference.

  I want to tell you today about a constituent of mine who continues to 
raise the standard for how much difference one person can make.
  The world knows this man as a top-ranked tennis star whose 
personality and success of the court have made him an American 
favorite. In Las Vegas, however, he's admired for his generosity and 
dedication to making a difference in the lives of our children.
  Andre Agassi was born and raised in Las Vegas. Although he started 
playing tennis as a toddler, he won his first professional title in 
1987. He has won at each of the four major professional tennis 
tournaments, and he holds a gold medal from the 1996 Olympics. As much 
as Las Vegans love to watch their ``son'' winning on the court, our 
hearts hold a special place for his devotion to underprivileged, 
abused, and at-risk children in Las Vegas.
  You see, a top-ranked tennis player who has won as many tournaments 
as Andre has accumulates a good amount of wealth. Throw in a few 
lucrative endorsement deals, and you have someone who could live 
extremely comfortably for the rest of his life. He could become his own 
island with very few cares in the world. Unfortunately, many successful 
people do just that.
  Andre Agassi, on the other hand, created the Andre Agassi Charitable 
Foundation. Its Board of Directors is impressive and is led by another 
son of Las Vegas, Andre's best friend and president of Agassi 
Enterprises, Perry Rogers. I can't think of many other organizations 
that have made the impact that this one has. Its goal is simple:

       To assist those underprivileged, abused and abandoned 
     children who may be deprived of basic options in life. The 
     foundation funds a combination of emotional, physical and 
     academic programs designed to enhance a child's character, 
     self-esteem and career possibilities.

  Among the programs funded by the Andre Agassi Charitable Foundation 
are the Agassi Center for Education and the Andre Agassi Cottage for 
Medically Fragile Children at Clark County's public shelter for abused 
and neglected children. The Agassi Boys and Girls Club, which sees over 
2,000 members during the year and features a tennis team and a 
basketball program, provides a safe after-school facility and a 
wonderful learning environment.
  The Foundation, through the Assistance League of Las Vegas, provides 
the means for new clothes for well over 2,000 destitute and homeless 
children; helps to send 20 physically challenged or disadvantaged 
children to camp for a week each summer; and introduces fourth and 
fifth graders to symphonic music.
  There are many more programs funded by the Andre Agassi Charitable 
Foundation, but I want to tell you about the Andre Agassi College 
Preparatory Academy, known in Las Vegas as Agassi Prep, and located in 
the heart of an at-risk community.
  Agassi Prep is a charter school that focuses on technology, college 
preparation, cultural activities, and expanded involvement in community 
affairs. It also seeks to enhance character, respect, motivation, and 
self-discipline.
  While HUD and the State of Nevada contributed significantly to the 
school, the core funding came from Andre Agassi's Foundation. The 
school's principal, Wayne Tanaka, is a distinguished educator who, in 
line with the goals of the Foundation, will truly impact the students 
who are fortunate enough to benefit from Andre Agassi's generosity and 
dedication.
  I also want to share with you the reach of Andre Agassi's deep-seated 
concern for Las Vegas' at-risk children.
  Since 1995, the Foundation has held the Grand Slam for Children 
concert benefits. The yearly event continues to draw some of the 
biggest names in entertainment, hundreds of volunteers, and crowds of 
almost 10,000. As someone who looks forward to this event every year, I 
can assure you--there is no better show on earth. This year's benefit 
featured Elton John, Martina McBride, Carlos Santana, Robin Williams, 
Babyface, and Rod Stewart. And that's just the entertainment.
  A live and silent auction before the show included sports items from 
Shaquille O'Neal, Wayne Gretzky, Greg Maddux, Muhammed Ali, and tennis 
lessons from Agassi and his wife, Stefanie Graf. I share these names 
with you because they are a testament to the respect that Andre Agassi 
and his Foundation have earned from so many different people.
  When I tell you that Andre Agassi continues to raise the standard for 
how much difference one person can make, I mean it literally. Since its 
inception in 1995, the Foundation has raised $23.6 million to help at-
risk children. That includes $5.6 million from this year's Grand Slam 
for Children--$1.4 million more than last year.
  That's $23.6 million over 7 years, with every penny going to assist 
children. All administrative and overhead costs are funded through 
contributions made by Andre Agassi or Agassi Enterprises, Inc. When you 
step back and think about the enormous impact that this man has had in 
Las Vegas, it is incredible.
  I share the story of Andre Agassi's impact on Las Vegas with the hope 
that it will challenge and inspire other successful people to make 
their own difference in this world. We all have a responsibility to 
leave this world a better place, even if--as Chaplain Ogilvie stated--
we make only a ``small difference.''
  Words are not enough to thank Andre for the way he has changed the 
lives of

[[Page 22976]]

so many children. But Andre, your acts of loving kindness will touch 
not just the children you help today. They will make a difference for 
generations to come. Thank you for making a difference in our community 
and for setting an example for us all.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. Might I inquire of the business before the Senate?
  The PRESIDING OFFICER. There are 2 minutes remaining on general 
debate.
  Mr. BURNS. I ask unanimous consent that the time I use be a part of 
the Thompson amendment of the homeland security bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Homeland Security

  Mr. BURNS. Mr. President, I rise today after talking with staff and 
going through what we are going to do with homeland security. This 
legislation provides the framework of the largest reorganization of 
Government in many, many years; in fact, going all the way back to the 
Depression days in the 1930s. But it is done because we are facing one 
of the greatest security challenges that this country has faced in its 
26-year history from an enemy that identifies with no specific nation, 
an enemy that has shown us that fear is really something that erodes 
our freedoms--and we learn how fragile they are and how fragile our 
economy is.
  Is it a perfect piece of legislation to leave the Congress and go 
downtown to be signed by the President? It is legislation that he has 
wanted and it has taken us too long to pass.
  There are parts of this piece of legislation that concern most of us. 
We have been around here long enough to know that once we pass a piece 
of legislation--no matter what the subject might be--we find that the 
administrative rule writers interpret it differently than we do. 
Sometimes the net result is not exactly how we envisioned it, and maybe 
not even how the President envisioned it.
  There are sections in here which I am very concerned about. I think 
as legislators in this body we must pay attention to how the 
administrative rules are written and how some of the Departments are 
moved into one called Homeland Security.


                           Drought Assistance

  I was interested a while ago in the statement on the floor about 
drought assistance to our farmers. No State has been hit harder than my 
State of Montana. No one can argue that there is a need. In fact, we 
have worked for over a year and a half with our colleagues here in the 
Senate, in the House of Representatives, and with the administration to 
get relief to our farmers and ranchers. We have been unsuccessful to 
date for a variety of reasons.
  There is drought assistance already in the appropriations process 
that this Senate this year did not get passed--some $500 billion in 
rounded figures. But it wasn't allowed to move because of the debate on 
forest health.
  Maybe this is the wrong place to talk about forest health. 
Nonetheless, I could see no logic at all in every night turning on the 
television, looking at the news, and watching America's forests go up 
in flames, and then denying the money and the change in policy--a 
change in policy that would have allowed us to prevent or at least take 
away some of the possibilities for such catastrophic fires as we have 
experienced in the last 2 years.
  We were denied that--commonsense things, the relatively minor 
commonsense things that we have to do to our forests in order to make 
them healthy and productive and beautiful, as America envisions its 
national forests.
  I am reluctant to raise false hopes for our farmers right now and say 
this is going to be done in the closing hours of the 107th Congress--
unless it is done in January, or whenever we take up the appropriations 
bills. We have 11 more of them to pass. I imagine we will again try to 
develop some drought assistance for those States that have been hit 
hard this year by drought, and to help my farmers who are in the fifth 
year of drought in that part of the country.
  We see a little bit of posturing going on here on the floor today. I 
do not like it. That wasn't the reason I was going to stand up here and 
talk in the first place. Nonetheless, I had to discuss this topic.
  I notice that my friend from Kansas has come to the floor, and he has 
a problem, too, in Kansas. I think his State was probably the hardest 
hit this year of any State.
  The PRESIDING OFFICER (Ms. Stabenow). The Senator from Kansas.
  Mr. ROBERTS. Madam President, would the distinguished Senator from 
Montana yield for a question?
  Mr. BURNS. I will.
  Mr. ROBERTS. The Senator really alerted me to this. And I apologize 
for not watching on our closed-circuit television. Apparently some of 
our distinguished colleagues across the aisle are thinking about 
resurrecting the $6 billion emergency disaster relief package and 
putting it on the continuing resolution. Is that the case?
  Mr. BURNS. That was the case, plus I think there have been a couple 
of suggestions made by our colleagues across the aisle. That is part of 
it. With the House being gone and not coming back, it would seem that 
this would be an exercise that could not be successful.
  Mr. ROBERTS. Madam President, I would like to ask if the Senator 
would yield for another question.
  Mr. BURNS. I will yield.
  Mr. ROBERTS. How on Earth do you take a $6 billion disaster relief 
bill, which I happened to vote for, that was part of the Interior 
appropriations bill, as I recall--and, as I recall, the majority 
leadership filled the legislative tree and basically prevented this 
Senator from introducing an alternative to the $6 billion package that 
this Senator thought might stand a chance of approval from the 
administration, might stand a chance in regard to the hurdle that any 
disaster bill faces to get through the House Agriculture Committee.
  I am going to be very candid. There were certain farm groups and 
certain commodity organizations that did not want to consider any 
disaster legislation for fear of opening up the farm bill and having 
something happen to their payment limits. So you had the leadership of 
the House Agriculture Committee saying no. You had the administration 
saying no in regard to further expenditures over and above the $180 
billion we spent on a 10-year farm bill. You had the emergency 
assistance bill--not on Agriculture appropriations but on Interior 
appropriations.
  Then, all of a sudden, we couldn't get any action on the Interior 
appropriations bill because there was a controversy in regard to forest 
management. Is that not the case?
  I know the Senator worked very hard, because of the State he 
represents, in regard to forest management as part of that Interior 
appropriations bill. But the disaster relief money was attached to the 
Interior appropriations bill, and then we couldn't move it. We couldn't 
get any action on this floor.
  Is that about correct?
  Mr. BURNS. Madam President, the Senator is correct. I am ranking 
member on that Interior Appropriations Committee. There was money to 
replenish the U.S. Forest Service for the moneys they had expended on 
firefighting. That was also in there and needed, and would have passed. 
But we got into a situation on forest health, and the other side would 
not budge on some very commonsense recommendations to the Forest 
Service on how we go about cleaning up our forests. I am sorry it 
happened that way.
  I would say to my Agriculture leaders, to my farmers, and to the 
farmers in Kansas who, by the way, are not really interested in inside 
baseball here in Washington, DC--a 17-square-mile logic-free 
environment--they are interested in not only what the farm legislation 
that we passed late last spring would do for them but also how we deal 
with disasters. None of those issues were covered.
  But the Senator from Kansas is right on. We have all voted for 
disaster assistance until we have just run our little fingers to the 
bone only to find it blocked by other legislation or parliamentary 
procedures.
  Mr. ROBERTS. Madam President, I would like to ask the Senator to 
yield

[[Page 22977]]

for several additional questions. I am a little confused about this.
  Mr. BURNS. I yield.
  Mr. ROBERTS. I have a bone to pick. I want to see if the Senator from 
Montana shares the same bone.
  Let us go back to the original problem of why in the Great Plains and 
the great States of Montana, Wyoming--and move over into South Dakota, 
Nebraska, Kansas, which, yes, this year was the hardest hit State. Many 
other States incurred bad weather and disaster conditions. But why did 
this happen? The Good Lord was not willing. The Good Lord sometimes 
doesn't have the creeks rise too much, or there is too much water in 
terms of the creeks. From time to time we have disaster bills. They 
tend to come during even-numbered years, by the way.
  We have made a lot of progress in crop insurance. There has been crop 
insurance reform. But when you have a total disaster, and you lose your 
grain crop throughout the grain-producing areas, you would think you 
would have a disaster bill.
  Now, let me back up. I know one Senator from Kansas--this Senator 
from Kansas--who said, as we go through the consideration of the new 
farm bill, $180 billion--make that $200 billion really over 10 years 
because the budget was 10 years long--that you would at least think 
there would be some provision in there for a farmer who had no crops, 
no crops to harvest. The Senator knows that. You have gone through that 
up in Montana, how many years--1, 2, 3, 4, 5 years maybe?
  Now, what did the new farm bill, I would ask the Senator, have? We 
had four different components, four different payments, four different 
ways to invest in agriculture.
  We changed the old farm bill, which was a direct income supplement, 
to a price support farm bill, and there were four ways your farmers 
could be helped. No. 1, we increased the loan a tad. We decided the 
loan rate would become an income protection device but--guess what--the 
prices over the loan rate do not do you any good.
  Then you had something called a loan deficiency payment. That means 
if the price were below the loan rate, you would get that amount. 
Well--guess what--the price is above the loan rate, so you don't get 
the loan deficiency payment.
  Then you also had a target price deficiency payment. It is a little 
confusing, all this gobbledygook, with all the agricultural acronyms 
and everything to do with farm bills.
  But--guess what--the price was above the target price, so he did not 
get or the farmer did not get or she did not get or that person did not 
get any help from the target price deficiency payment. So we are zero 
for three.
  Then we had a direct payment.
  Now, in the wisdom of the farm bill conference, of which this member 
did not serve--I am not going to get into that, as to how that ratio 
came down, and who was prevented from being on the conference, and who 
was not; I could, but I will not--but in the wisdom of the conference, 
they said: We are going to keep a direct payment just to make sure that 
if these other things don't work, and the farmer still wouldn't have a 
crop, the price is increased. We are going to have a direct payment. 
That was 6 cents a bushel in regard to wheat. And the corresponding 
numbers were true in regard to corn and other crops--6 cents.
  Why do I mention that? Because all the way through this, both you and 
I said--Senator Cochran said, most of us on this side said--don't go 
down this road with this new farm bill and apply it to the 2002 crop 
year because any farm bill is too complex to really figure out, with 
all the fishhooks and all the saddle burrs, to try to get it in place 
for 2002.
  What we would have had under the old farm bill--much maligned by the 
other side, constantly, day after day after day, for 4 or 5 years--the 
Freedom to Farm Act was a direct payment called an AMTA payment. Then 
we were going to double that because of the problems we were having. 
That was 60 cents a bushel. Now, there is a big difference between 6 
cents and 60 cents.
  I have given this speech to my farmers. Why do I give it to my 
farmers? Because they are desperate. We had the worst drought since the 
1930s. It may have been hotter in some years, and it may have been 
dryer in some years, but it has never been hotter and dryer in the same 
year. So they lost all their crops. Now, we were able to get some 
livestock assistance, but disaster assistance, as compared to the old 
farm bill, which would have provided them 60 cents a bushel, it did not 
happen.
  So all the critics on our side of the aisle, and some on the other 
side, who say, well, we have a new farm bill, we are going to give the 
farmer four mailboxes to open--the loan rate; nope, nothing there. The 
loan deficiency payment; nope, nothing there. Are we going to have the 
target price deficiency payment? No, nothing there. We are going to 
have a direct payment--6 cents, as compared to the 60 cents we would 
have had if we applied the new farm bill to 2003.
  Now, that is my bone to pick because my farmers are hurting. And now 
after having a $6 billion emergency disaster bill that I voted for, in 
regards to the Interior Appropriations Committee, we have those with 
the temerity and chutzpah who will come to the continuing resolution 
and say, we are going to do it now, unless we shut down Government?
  You know the administration is not going to support that. You know 
the House has already left town. You know the House Agriculture 
Committee, representing certain interests in agriculture, does not want 
to mess with the payment limitations. This is a horse going nowhere--
nowhere.
  The handling of this has been highly political. The election is over. 
There are some who wanted an issue and not a bill. They got the issue. 
And I guess the result in South Dakota proved that. OK, it is over. But 
why you bring up this particular effort for disaster assistance during 
this particular time is beyond me. It is not going anywhere. People 
crawl out of train wrecks faster than this bill will ever get passed 
and signed and provide real relief. And the farmers are not interested 
in this.
  The Senator pointed out a long time ago, our farmers are not 
interested in politics or agriculture gobbledygook or legislative 
parliamentary gobbledygook as well.
  I urge my colleagues who are thinking about this, don't do this. Now, 
when can we do this? We can do it in the omnibus bill.
  We had some indication from the administration they will be a little 
bit more forward thinking. I don't want to leave them out of my tirade 
here. I am not happy with this administration. I tried to explain that 
wheat country was in a dire situation, that the farm bill didn't work. 
And it was sort of: Oh, well, you know. And we are saving money we are 
not spending on the farm bill, so I think we could score it. But there 
is no way they are going to do that.
  So I just don't see why we are going through this exercise. And it 
has obviously got me mighty exercised because my farmers are hurting. 
Land values are starting to decline. Their lenders have already told 
them they hit their cap.
  We have farmers who are mortgaging their place and their equipment in 
order to stay in business, and we sit here and introduce an emergency 
disaster relief bill to the tune of $6 billion that is not going 
anywhere. That is not right, especially in a lame duck session.
  So I would ask the Senator, finally, a question. You are going to 
work with me, I know. I just talked to the majority leader about this, 
and I will talk to the minority leader about this. He is a good man. He 
has been on the Agriculture Committee on the House side. He has been 
the driving force in regards to the Agriculture Committee and the farm 
program policy in this session.
  Let's get it done in the omnibus bill when we have a chance to get it 
done. If we need offsets, we will find offsets. Otherwise, we are 
putting at great risk a lot of farmers in this part of the country on 
the Great Plains. Quite frankly, other people, other farmers, other 
farm groups, other commodity groups apparently don't care--apparently 
don't care. Well, by golly, I care.

[[Page 22978]]

I know the Senator from Montana cares. So let's don't go down this 
road.
  What is going to happen is, you are going to have to vote against a 
$6 billion bill in a lame duck session of Congress, when the election 
is over, with no hope of actually getting the thing done. Farmers are 
damned tired of that, and so am I.
  So my question is, to the distinguished Senator from Montana, let's 
work together with the plan we have already put together during the 
omnibus bill.
  I just talked to the chairman-to-be of the Appropriations Committee, 
Senator Stevens, and he said, yes, he will work with us. The 
administration said they will work with us. And we can get some real 
help to farmers at the appropriate time.
  So would the Senator work with me in that regard? That is the 
question.
  Mr. BURNS. Madam President, I would be glad to work with him. But I 
am sure glad we didn't get him stirred up where he is really excited 
about this issue. No one gets exercised more than the good Senator from 
Kansas.
  That is the common-sense way to approach it. There is no question 
about it. I would like to see it happen that way.
  I just wish that we could do something on forest health. I think 
there is a chance of doing that this time.


                           Homeland Security

  Madam President, before I relinquish the floor, though, I just want 
to express my concerns again about homeland security, and in some 
areas.
  As you know, we have spent the last 3 years trying to pass a privacy 
bill. We have worked with Senator Hollings, the chairman of the 
Commerce Committee, and also working with the Judiciary Committee. I 
would hope we can now do a privacy bill coming up in the next Congress.
  I notice the Senator from New York is on the floor, and I am looking 
forward to working with her on the E-911 caucus because we know we have 
a lot of work to do on spectrum and spectrum management and how we 
apply our emergency first responders in the days to come because of 
this challenge we have before us. So I will be watching very closely as 
the administration rules are written on this piece of legislation. 
There it is right there. I can't even pack it back to the office. I 
probably couldn't understand most of what I read in there, if I did. 
But, nonetheless, those are the issues I think are very important.
  Americans value their freedom. They value the privileges of living in 
this country, but they also value something else; that is, their 
personal privacy. A database or anything else that could be done in 
this is a great mistake. Whenever we start doing R&D on technologies 
that would allow us to invade the privacy of an individual citizen, 
whether it be in wireless communications or in the Internet or the 
firewalls we might burn, and before that technology is transferred into 
the agency that is in charge of gathering intelligence, there should be 
a firewall in there.
  I hope whenever they write the administrative rules they will be 
sensitive to that and will allow congressional oversight before that 
technology is transferred. It is very sensitive.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.


                           Homeland Security

  Mrs. CLINTON. Madam President, I want to associate myself with the 
remarks of the Senator from Montana about the importance of the 
implementation of the Homeland Security Department, particularly as it 
affects the privacy issues that will be raised going forward. Further, 
I would like to add a few other cautionary notes to the legislative 
record as we are about to, in a few hours, vote on this Department.
  My friend from Montana raises some of the important issues, and there 
are indeed others as well that we will have to be vigilant about and 
hopefully involved in going forward.
  Mr. BURNS. Will the Senator yield so I could correct a terrible 
mistake I just made?
  Mrs. CLINTON. Certainly, I am happy to yield.
  Mr. BURNS. I think I identified her as the Senator from Arkansas when 
I should have said the Senator from New York.
  Mrs. CLINTON. I appreciate that correction.
  Mr. BURNS. I would like to correct it, if I could.
  Mrs. CLINTON. I thank the Senator. I appreciate that.
  Mr. BURNS. I thank the Senator for yielding.
  Mrs. CLINTON. I must confess I thought he was referring to the 
Senator from Arkansas who perhaps was in the Chamber.
  As I said, I appreciate the Senator's yellow, flashing lights about 
some of the issues we are about to contend with going forward in the 
Homeland Security Department. In the months following September 11, 
which are really the time period that has brought us to this day, we 
knew as a Nation we had to take some additional steps, some 
unprecedented steps to protect ourselves. I believe we have attempted 
to do so certainly with respect to our men and women in military 
uniform.
  I am very proud of the support we have given to our armed forces. I 
am proud to represent the 10th Mountain Division in upstate New York. 
When I go there, when I speak with the young officers and enlisted men 
who come to see me or when I go to Fort Drum to see them, I feel 
confident I can look them in the eye and tell them we are doing all we 
know to do to make sure they are ready, well equipped, and compensated 
appropriately. They are trained to the best of their abilities, and we 
are doing all as a Nation we can to support them.
  I do not have that same level of confidence when I go to my 
firehouses, my police stations, my emergency rooms throughout New York. 
I cannot look into the eyes of our firefighters, our police officers, 
our emergency responders and tell them we have done all we need to do 
to make sure they are as well prepared, well trained, and safe in their 
defense here in the homeland.
  So are we safer today than we were on the morning of September 11, 
2001? The answer is only marginally. Because somewhere along the way, 
we have not kept that laser-like focus we needed to match our will and 
our resources and to get those resources to the front lines at home as 
we have around the world.
  The people who we are going to count on to make our homeland safer 
are the ones who will pick up the phone when we dial 911. They will 
respond to the call. They will leave the firehouse and the police 
station. They will leave the emergency room. They will be there in 
order to protect us.
  The votes we cast this afternoon for the creation of a Homeland 
Security Department are just that. They are votes to create a 
Department here in Washington.
  My hope is the approval of this bill will set into motion a necessary 
reorganization process that will ultimately result in improved 
coordination, information sharing, and a stronger, safer America.
  But we have to be absolutely clear to the American people about what 
it is we are voting for. This bill has to do with structural 
reorganization. There are many things in this bill we absolutely need 
to make us safer. Unfortunately, there are many things in this bill 
that have absolutely nothing to do with our security.
  I am concerned that Americans will believe, because we have passed 
this bill, our Nation is safer. But when we pass it and when Americans 
read about it or see coverage about it on television, they need to know 
this measure does not increase patrols or technology along our northern 
borders. It does not give our firefighters, police officers, and 
emergency personnel the resources, training, and equipment they 
desperately need. It does not increase security measures at our ports, 
our railroads, our public transportation systems. It does not increase 
our capability of detecting biological, chemical, radiological, and 
nuclear weapons.
  What this bill does is fall short on many important measures. We had 
the opportunity to do this right, to do more than create a Department. 
The Senate's original bill coming out of the

[[Page 22979]]

Governmental Affairs Committee under Senator Lieberman's leadership, on 
a bipartisan vote, would have included critical measures that would 
make our country safer today. In the end, we failed to act on those 
critical measures.
  There is a lot in this bill that secures the future for special 
interests at the expense of the security of the American people. I 
believe those who are using this legislation as a vehicle for their own 
particular commercial or special interest have done this country a 
grave disservice.
  That is why Congress cannot stop with this vote. As the distinguished 
Senator from Montana said: We have to watch this process with 
vigilance. We have to be involved in the rulemaking. We have to ask the 
hard questions about resources. We have to continue to fight to make 
sure every substantive measure we need to enhance our security gets 
passed in the next Congress.
  Let's start with the obvious. Let's support our first responders. 
They are the ones who are our front line soldiers at home. We need to 
do what we have been asked to do by mayors and police and fire 
commissioners. They have asked us for direct funding that they can best 
utilize to make sure those firehouses stay open, those hazardous 
material suits and equipment are bought and available. That is why I 
still believe we should pass legislation I introduced last November 
that would provide direct funding to local communities--the Homeland 
Security Block Grant Act.
  We also know the recent report by former Senators Hart and Rudman, 
the terrorism panel's report, clearly states we are not doing enough to 
support our first responders. That report expressed grave concern that 
650,000 local and State police officers still operate without close 
U.S. intelligence information to combat terrorists.
  We have not done enough to help local and state officials detect and 
respond to biological attacks. The report expressed concerns that our 
firefighters and local law enforcement agencies still--more than a year 
later--do not have the proper equipment to respond to a chemical or 
biological attack. And they don't even have the communications systems 
that will let them talk to each other--police departments, fire 
departments--across municipal and county lines in an emergency.
  Madam President, I was also greatly disappointed that the SAFER Act, 
which would have allowed our Nation to hire 25,000 more firefighters 
over the next couple years, was completely eliminated from the bill. 
This is the time to do more for our first responders, not less.
  We also have to act immediately to secure our Nation's nuclear power 
infrastructure. While the homeland security bill creates a new 
Department, it does not adequately address the real threat of terrorist 
capabilities and desires to destroy our nuclear powerplants. Last year, 
Senators Jeffords, Reid, and I introduced the Nuclear Security Act. We 
moved that act through the committee. It is unfortunate the bill does 
not address nuclear security, particularly with respect to our nuclear 
powerplants. We clearly have a problem there, as we do with 
radiological attacks from a a so-called dirty bomb.
  Every day that goes by without us having those resources available in 
local communities around our country to respond is a day I cannot look 
into the eyes of my constituents and say, yes, we are safer today than 
we were.
  We have all gone over the many provisions in the bill that have 
absolutely nothing to do with security. I regret deeply that they were 
included in this bill, and the impact of them will be known for years 
to come.
  Madam President, this bill, which does some good by helping us better 
focus here in Washington, does not do nearly enough of what needs to be 
done out in our country. I am particularly concerned that New York does 
not have a specific coordinator as the bill provides for Washington, 
DC. We know from every intelligence report that New York City is still 
a high-risk area.
  This bill has much that perhaps can make us safer, but nothing that 
will immediately do so; and it does not address the most serious issues 
with respect to the resources that are needed.
  There is an article in this day's Washington Post about how the fact 
that we have not funded the war on terrorism here at home means that 
money--even if it passes in January--will not get to the people who 
need it the most for quite some number of months.
  This is, unfortunately, a day where we have adopted a piecemeal 
approach to homeland security without the resources and the 
comprehensive strategy that many experts have recommended. I hope we 
will come back in January and address the gaps in our homeland defense 
strategy going forward.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time to the Senator from Idaho?
  Mr. CRAIG. Madam President, I yield myself time from Senator 
Thompson's time.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Madam President, I came to the floor for two purposes this 
afternoon. I will briefly speak about H.R. 5005, our homeland security 
legislation, which will become law in a reasonable time, possibly 
today, to suggest I am really not going to play the political game that 
has been played with this bill for the last 2 months, and that is being 
caught up again in the rhetoric of the hour--that somehow you don't 
need to structurally change the way Government thinks, that you can 
spend billions of dollars ahead of time to get it done.
  You do need to change the way Government thinks. You do need to 
change the culture of the Federal bureaucracy. You do need to 
coordinate. That is what we are doing because, clearly, to anyone on 
this floor, or anyone in any of the committees that have spent the last 
several years analyzing what happened prior to 9/11, and following 9/
11, it became very clear our agencies did not connect, they did not 
coordinate, they did not communicate, and the culture of the day--and 
probably a prevailing attitude--was somehow what happened would not 
happen here, didn't allow us to come to attention.
  Well, we are now at attention. We have already spent billions of 
dollars getting there--both in the fine city of New York, which was 
tragically hit, and across this country. My State of Idaho alone--a 
State of 1.2 million people--for its first responders is going to get a 
couple million dollars more this year. That is significant money for 
beginning the process of coordinating and training and communicating, 
right hand to left hand, local responders to State responders to 
Federal responders.
  There is a long way to go, but to suggest that the step we are taking 
today is unnecessary, or for 2 months did not prevail and, therefore, 
the bill is no good, shame on those who want to play the politics of 
the moment, because the politics of the moment is this country has 
decided to make a major step in the right direction.
  I will tell you that I can pick the bill apart and say there are bits 
and pieces in there I don't like. I agree, in part, with the Senator 
from New York and the Senator from Montana that it will take due 
diligence, that we should not suspect that what we pass today goes on 
autopilot. My guess is we will be back next year making refinements in 
it. I am not quite confident that it protects the privacy of the 
citizens of our country in our pursuit for security in a fashion I 
would want to see happen.
  I am glad we gave the President the flexibility not to be tied up in 
the bureaucracy of the public employees unions, but to give them an 
ample opportunity to express their concern; but in the end, in a 
national crisis, to give the chief executive of our country the 
latitude he or she should have and must have to make this system work. 
That is what we finally won the day over.
  I am sorry the other side lost that fight, but the country won, and 
the legislation we bring today is a significant and appropriate step 
forward. I will probably be here on the floor within a couple of months 
offering some amendments, and my guess is my colleagues

[[Page 22980]]

from both sides of the aisle will be doing the same. But to demagog our 
way into a new form of Government in the context of homeland security, 
shame on us.
  The politics of that day is over. The reality of what we must do is 
now at hand and this Senate is stepping forward, as it should, to get 
the job done.
  I said I came to the floor to talk about a couple of other issues. I 
have been watching from my office the great politics of agricultural 
drought disaster. What I heard on the floor was in itself a bit of a 
disaster. For one full month, we had a bill on the floor with drought 
assistance in it. When the bill was controlled by the other side, which 
had the majority, I innocently came to the floor and said, hey, why 
don't we add an amendment on forest health? Why don't we get to the 
business of thinning and cleaning the seven or eight million acres of 
land that is desperately in need of our caretakership and our 
stewardship that, by every estimation, is a tinderbox waiting to 
explode, like the seven million acres that burned this year across our 
public forest lands, that burned up 2,800 homes and cost us 25 lives.
  But for one full month, the other side refused to vote on it. Why? 
Because of the November 5 election. They didn't want to put their 
people at risk, or what they thought was risk, to vote for a good piece 
of legislation that would have passed the Interior bill and would have 
put forth the drought legislation and the money that was talked about 
on the floor.
  What I witnessed over the last hour is raw politics that won't get 
done. The Senator from Kansas came down a bit exercised a few moments 
ago, and he had every right to say, shame on them, it is politics, it 
won't happen--and it won't happen. What will happen is we are going to 
come back to a new Congress on the 7th of January called the 108th 
Congress. We are going to swear in some new Senators and convene, and 
we are going to have a new organizational resolution; we are going to 
have chairmen. And already, at that moment on the 8th, 9th, 10th, and 
beyond, we are going to move, I believe, 11 appropriation bills that 
didn't get cared for this year, that somehow, on their watch, didn't 
happen. In those, we are going to take care of drought and a lot of 
other things that should have been done a long time ago. Sure, we have 
anxious farmers. They have every reason to be anxious. But now to blame 
us and bog up the works and put our Government in a stall at this 
moment, all in the name of agricultural politics, is, in itself, wrong. 
I have farmers who have suffered from drought. I want to help them, and 
we will help them. We will help them in January. Why do we come to the 
Chamber today and play the politics of the game that will not happen? I 
think we all know. It makes for good rhetoric and probably a few 
headlines back home. But it will not accomplish the mission at hand, 
and the mission at hand is to solve our agricultural drought problems, 
and to do so in a responsible, meaningful way that actually produces 
policy so the farmer can go to the farm service office and say: I have 
a problem and here is my loss. And that farm service officer can say: 
And here is the program, and here is how we can help you.
  That is not going to occur probably until we legislate it in January 
and it becomes law sometime in early February. Then, I say to my 
colleagues on the other side, pick up the phone and call your farmer 
and say: Go to the farm service office, take your records and your 
losses, and they will calculate what you deserve based on the program 
at hand. That is how one delivers a message home. That is how one 
solves a problem that exists.
  What has happened in this Chamber is the last moments of the last 
hour of the last day of the 107th, is that somehow a great amount of 
politics got played out. Some of it worked and some of it did not work, 
and we just heard some of it that will not work.
  We are about to vote, though, on homeland security, and in the end, 
over the course of the next 3 to 4 years, it will work because it must 
work. We must be able in a real way, in a material way, to say to our 
friends and neighbors and civilian populations at home that the world 
is a safer place, and we made it safer by the ability to craft a 
government a good deal more sensitive to the reality of our current 
circumstances, to change the culture of the CIA, the FBI, the Border 
Patrol, and the INS in a way that creates a level of communication that 
knows what the right hand and the left hand are doing in concert. Yes, 
allows us a level of training and expertise at the very local of levels 
so when that first responder goes out on the line, they have every bit 
the skill and the equipment necessary to determine if they and/or the 
population they serve are at risk because of a potential terrorist act.
  That is our charge. We do not do it overnight. It should have been 
done 2 months ago. The politics of the day would not have allowed that, 
but November 5 changed that, and that is why we are here and why we 
will pass this bill today in its whole form, and it will go to the 
President's desk for his signature.
  Then, frankly, the hard work begins. If I were the administrator 
selected to craft a homeland security agency out of the bureaucracies 
that will fight down to their very last bureaucratic breath to hang on 
to some authority, I would say it is a monstrous task. But we will be 
here helping that administrator along because we know it is so 
necessary for our country to have an agency that can respond to a new 
threat to this Nation and to freedom-loving people all around the 
world.
  I hope out of the frustration of the day and the rhetoric that has 
occurred that, in the end, we will pass legislation and get on with the 
business at hand, but I thought it was incumbent upon myself to come to 
the Chamber to talk briefly about the idea that a drought has occurred, 
not just on farmlands across this country, but in the reality of the 
politics right here. And that drought is, we only have so much we are 
going to get done, and we better return come January and finish the 
work that should have been done months ago. This side is up to it, and 
I trust my colleagues on the other side will join us in a fair and 
bipartisan way to make that happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. I yield myself 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Madam President, I am pleased to see that the Senate is 
finally ready to pass legislation creating a Department of Homeland 
Security. My colleagues and I on the Governmental Affairs Committee, 
under Senator Lieberman's leadership, began this process more than a 
year ago. When we first started out, I must admit that I had some 
reservations about making such dramatic changes to the way the Federal 
Government is organized. The hearings Senator Lieberman chaired during 
the first half of this year, however, showed me how truly ill prepared 
we really are to face the threat of terrorism. That is why I supported 
the original version of Senator Lieberman's homeland security bill when 
it came before the Governmental Affairs Committee on May 22, 2002, some 
time before President Bush released his proposed reorganization plan. I 
supported it again on July 24 after we incorporated a number of the 
President's recommendations into our original draft.
  I believe we need to create a strong Department of Homeland Security 
that brings together under one roof the various Federal agencies 
charged with preventing and responding to terrorist attacks. I am a 
little disappointed, however, that we appear ready to do so in a way 
that disregards a good deal of the hard work that went into the 
bipartisan bill we reported out of Governmental Affairs.
  Among other things, the bill before us today abandons a compromise 
arrived at in committee on information sharing and the Freedom of 
Information Act and includes INS restructuring language that is 
different from anything included in the President's proposal, the 
House-passed bill or anything that we have debated here in the

[[Page 22981]]

Senate. It also includes some controversial provisions we have never 
seen before that seemingly appeared overnight. In the 108th Congress, 
we can and should have a debate on tort reform. We can and should have 
a debate on the safety of childhood vaccines. What we should not have 
done is hastily slip brand new provisions into this critically 
important bill without debate at the behest of special interests. There 
are three changes, however, that are of the most concern to me.
  First, there is the new personnel language. This bill gives the 
Secretary of Homeland Security and the Director of the Office of 
Personnel Management (OPM) almost total authority to rewrite Federal 
civil service laws for Department of Homeland Security employees 
related to hiring and firing, job classification, pay, rules for labor-
management relations, performance appraisal and employee appeals to the 
Merit Systems Protection Board. Thinking that the Secretary and OPM 
could not possibly know what kind of personnel system was needed at the 
new Department before they were able to start putting it together, our 
committee maintained current law and asked the Secretary to report on 
his or her progress in setting the Department up at least every 6 
months and to ask Congress for specific changes in civil service 
protections to meet specific Department needs.
  As a former Governor who had to reorganize parts of his own State's 
government, I can appreciate President Bush's desire to have as much 
flexibility as possible when creating something as large, complex and 
important as a Department of Homeland Security. However, I do not 
believe it's necessary to give him or his new Secretary the power to 
unilaterally change or waive workplace rules over the objections of 
Department employees and Congress. That is why I supported the 
compromise put forward by Senators Nelson, Breaux, and Chafee before we 
adjourned for the election. That language would have left the most 
important civil service protections related to union rights and 
employee appeals untouched and set up a system of binding arbitration 
so that the Secretary and OPM would have to work out any personnel 
system they draft with the employees who will be required to work under 
it. I wish that the personnel language in this bill was closer to that 
contained in Nelson-Breaux-Chafee bipartisan compromise.
  The second issue that is of concern to me in this bill is the 
language on collective bargaining rights. It says that the President 
can only use the authority he currently has to remove employees' 
collective bargaining rights on employees transferred into the new 
Department if their agency's mission materially changes and their 
duties involve intelligence, counterintelligence, or investigative work 
directly related to a terrorism investigation. It gives him broad 
authority to waive this test, however, and to use his authority 
regardless of whether or not the mission of the relevant agency has 
changed. Our committee-passed bill would have required the 
administration to go through the Federal Labor Relations Authority to 
remove employees' collective bargaining rights. I was comfortable with 
that provision, but even more so with the Nelson-Breaux-Chafee 
compromise on this issue, which includes the same restrictions on the 
President's authority included in this bill but which gives Department 
employees the assurances that their collective bargaining rights will 
not be taken away arbitrarily simply because they are working in 
something called the Department of Homeland Security. I wish this bill 
offered future employees of the Department of Homeland Security as much 
assurance that their rights would be protected.
  My greatest disappointment with this bill is the glaring omission of 
any meaningful provisions to improve the security of our Nation's 
railroads. It is inexplicable that we stand ready to create a 
Department of Homeland Security that does nothing to protect the 
millions of Americans who travel by rail every day. After the tragedy 
of September 11, this Congress and the President moved quickly to 
stabilize and secure our aviation system and to create the 
Transportation Security Administration with the mission of protecting 
all transportation modes.
  The Congress followed suit with the Maritime Transportation Security 
Act of 2002 to protect our ports and maritime industry, which 
successfully passed in the Senate last week. And now it seems that the 
Over-the-Road Bus Security legislation is poised to pass this body. Yet 
in all these efforts, we have done little to protect rail from 
terrorist attacks and security threats, creating an Achilles heel in 
our Nation's efforts to secure our transportation system. For all of 
our commendable focus and attention on preventing future attacks 
against the aviation industry, it is unconscionable that we would not 
work to ensure that the roughly 25 million intercity passengers and 
many millions more that commute aboard our trains are as safe as the 
ones in our skies.
  How can we ignore the FBI warnings made a few weeks ago that al-Qaida 
is considering directly targeting U.S. passenger trains and that 
operatives may try to destroy key rail bridges and sections of track to 
cause derailments? How could the Senate have voted to appropriate $2 
million to remove jars of formaldehyde and alcohol from the 
Smithsonian's buildings here on the Mall because of their threat to the 
Capitol and yet leave the rail tunnel traveling under the Senate and 
House office buildings and the Supreme Court unprotected from terrorist 
attack? How can we end the 107th Congress having approved increased and 
strengthened security programs for every single transportation mode 
except rail, a mode we know that al-Qaida may currently be targeting?
  In creating the Department of Homeland Security, we had the chance to 
address this omission. We could have included provisions to secure the 
nation's critical rail infrastructure and facilities and augment the 
mission of the Transportation Security Administration. Recognizing the 
obvious need for greater rail security early on, Senators Hollings, 
McCain and others worked within the Commerce Committee to produce a 
bipartisan rail security bill to protect Amtrak and our vital rail 
infrastructure from attack or sabotage. This bill, S. 1550, was 
supported by the Bush Administration and reported unanimously out of 
the committee.
  They understood the important role that Amtrak played immediately 
following the tragic events of September 11, when, with the aviation 
system shut down and our highways clogged or closed, Amtrak kept people 
safely moving in the northeast and across the country. They know it is 
essential that we provide Amtrak with the means to harden their 
physical assets and protect the safety and security of the traveling 
public if we want to ensure that Amtrak can serve the nation in the 
future as it did after September 11. They realized that more people use 
Amtrak's Pennsylvania Station in one day than use all of New York's 
three airports combined. They recognized that, like our other modes, 
our rail network is essential to the mobility, defense, and economic 
vitality of our nation. Yet their efforts have been blocked in this 
body and our railroads remain largely unprotected.
  Following the Commerce Committee's good work and seeing the logical 
role for rail security within the new Department, I offered, and the 
Committee voted to accept, a rail security amendment to Senator 
Lieberman's homeland security bill during the our markup in July. My 
amendment authorized funds through the Secretary of Homeland Security 
for critical security and safety needs across Amtrak's national 
network. Totaling $1.2 billion, my amendment authorized funds to assist 
the diligent efforts already being made by Amtrak's police force and 
other law enforcement agencies, giving them the tools to focus on real 
threats beyond the harmless rail fans police were chasing away as 
described in an article on the front page of the Washington Post last 
week. The amendment included: $375 million to finance systemwide 
security and safety enhancements. These funds would have been used to 
immediately address serious security risks by protecting 
infrastructure, stations, and facilities across the

[[Page 22982]]

entire Amtrak system. Amtrak's top priorities to be addressed with 
these funds include:
  No. 1, securing tunnels, bridges, interlockings, towers, and yard and 
station facilities with surveillance equipment, perimeter fencing, 
security lighting, bomb detection equipment and bomb resistant 
trashcans for stations, vehicle barriers and other measures.
  No. 2, investing in passenger information systems to allow the 
creation of watch lists and passenger manifests for tracking purposes 
and data sharing between Amtrak Police Department and the FBI. 
Currently, Amtrak does not have the realtime ability to track who is 
onboard its trains.
  No. 3, communications and command/control upgrades to track and 
locate trains enroute, to ensure adequate radio coverage across the 
Amtrak system, and to provide automated data for incident response and 
crisis management;
  $778 million for life-safety and security improvements to the Amtrak 
tunnels in New York, Baltimore and Washington. The life-safety problems 
with the tunnels on the northeast corridor are well documented and 
require immediate action. The tunnels in New York, 1910, Baltimore, 
1872, and Washington 1904 are nearing, or are over 100 year olds and 
constitute safety hazards due to problems with emergency exits and 
ventilation. Of specific concern, is a possible terrorist action 
involving these tunnels, which have limited evacuation capacity, 
antiquated stairwells, and poor lighting. The results could be 
catastrophic. The funds will enhance life safety features within the 
tunnels, including:
  No. 1. Washington, $40 million: upgraded emergency access and egress, 
improved ventilation and communications. This tunnel sees 50 Amtrak/VRE 
trains a day and 2 million passengers annually. Additionally, these 
tunnels pass directly under the Supreme Court and House and Senate 
Office Buildings.
  No. 2, Baltimore, $60 million: New fire standpipes; improved lighting 
and communications, egress improvements; and a preliminary design study 
of tunnel replacement options. This tunnel sees 125 Amtrak/MARC trains 
a day.
  No. 3, New York, $678 million, 6 tunnels: upgraded ventilation, 
access, and egress through new stairways and shafts; structural 
rehabilitation for tunnel access, and improved lighting and signage. 
The 6 New York Amtrak tunnels provide access to Penn station for 
Amtrak, New Jersey Transit and the Long Island Railroad. They are 
gateway to New York and the heart of the Northeast Corridor. Work on 
the tunnels has already begun with $220 million from the Long Island 
Railroad and the FRA, through $100 million from FY '02 DOD supplemental 
Appropriations Act. Funds authorized in this amendment would complete 
work on 3 of the 4 rebuilt ventilation and escapes shafts, dramatically 
improving the safety of passengers should an emergency occur in the 
tunnels;
  $55 million for wrecked equipment repair to ensure Amtrak adequate 
fleet capacity in the event of a national security emergency. At the 
time of my amendment, 96 damaged and wrecked cars and five locomotives, 
or nearly one out of every fifteen Amtrak cars, were sitting idle, out 
of service, and awaiting repair. Without these cars, Amtrak is in 
serious danger of being able to provide adequate equipment to service 
its current routes, let alone offer additional service should there be 
another national emergency. With these funds, Amtrak could have 
repaired about half of these, and have some equipment up and running 
again within 90 days. In our effort to strength the security of the 
homeland, that we must provide Amtrak with the equipment it needs to 
serve the existing routes and to handle increased traffic should 
another security crisis occur.
  After the Governmental Affairs markup and the inclusion of this 
amendment to the Lieberman substitute, I worked with Senators Hollings 
and McCain to create a bipartisan rail security package based on the 
previous Committee work and my amendment that would authorize needed 
resources while ensuring proper oversight and accountability. We agreed 
to work together to add this package to the homeland security 
legislation, in whatever form it took. I believe that Senator McCain 
spoke briefly about his commitment to enhancing the security of our 
railroads on the floor last week, and I want to thank him for working 
with us to create a sound security proposal. I know that he and Senator 
Hollings share my disappointment that we have not been able to get this 
package included in the current homeland security bill. Though we were 
unable to achieve success today, we are committed to doing so next 
year, and I urge my colleagues to join this effort. Until we have 
passed a rail security package, we cannot honestly say that we have 
secured our national transportation system.
  In conclusion, today we missed a tremendous opportunity to truly 
secure our entire transportation network. Surely, we all agree that 
doing so is one of the Federal government's chief responsibilities. 
Debates about the future of Amtrak should not stand in the way of this 
effort. The fact is that, today, several thousands of riders are on 
Amtrak trains and hundreds of thousands more use Amtrak's tracks for 
their daily commute to work. Securing these facilities and these 
services is not an issue that can wait. As the intelligence community 
has already warned, the risks to America's railroads are real and exist 
as we speak. We have a responsibility to act to protect our people and 
our nation. We must pass rail security legislation as soon as possible.
  Mr. KOHL. Madam President, I rise to discuss two provisions of the 
Homeland Security bill, those substantially transferring the Bureau of 
Alcohol, Tobacco and Firearms, ``ATF,'' to the Department of Justice 
and modifying and improving our explosives laws.
  A driving force behind the President's blueprint for the reorganized 
Government is the need for the various agencies and bureaus charged 
with enforcing Federal law to work more cooperatively and effectively 
in defending the country against terrorism. The President's plan 
shifted several agencies charged with different aspects of Federal law 
enforcement to the proposed Department of Homeland Security, including 
the Secret Service and the Bureau of Customs, both formerly housed in 
the Department of the Treasury.
  Unfortunately, this realignment of Treasury's law enforcement 
agencies left out one vitally important bureau, one that has as its 
primary mission the enforcement of the explosives and firearms laws. 
The ATF has been the cornerstone of the Federal law enforcement 
functions at Treasury for decades, but now under the President's plan, 
it would be left as the only major law enforcement presence in the 
entire Department.
  The Department of the Treasury is entrusted with responsibilities 
primarily in the area of monetary policy such as budgets, taxes, and 
currency production and circulation. In contrast, the ATF's mission 
consists of enforcing the firearms, arson, and explosives laws as well 
as the criminal and regulatory functions of the alcohol and tobacco 
laws. Clearly, these two missions do not jibe.
  ATF serves an important role not only in the enforcement of the 
criminal laws regarding firearms, explosives, alcohol and tobacco, but 
also in waging the war on terrorism. We only need to remember the 
litany of terrorist bombings from the first attack on the World Trade 
Centers to Beirut in 1982, the East Africa embassies, the U.S.S. Cole, 
Khobar Towers, and Oklahoma City, among others, to understand the 
importance of the ATF's expertise in explosives and firearms on the war 
on terrorism. Indeed, in the last 20 years, the vast majority of 
terrorist attacks with Americans as targets have used explosives or 
firearms. Any effort to strengthen our homeland security that does not 
take note of this fact is a half measure.
  This bill understands ATF's importance in the war on terrorism by 
moving it to the Department of Justice where it can coordinate its 
efforts more easily with the FBI, DEA, and

[[Page 22983]]

the other premier Federal law enforcement agencies. In addition, the 
bill authorizes the ATF for the first time as the Bureau of Alcohol, 
Tobacco, Firearms and Explosives, ATFE, and refocuses its mission. It 
will no longer be responsible for collecting alcohol and tobacco fees, 
but instead will focus entirely on the criminal enforcement of the 
explosives, firearms, arson, and tobacco and alcohol smuggling laws.
  The amendment makes clear that along with the transfer of enforcement 
of the explosives, firearms, and arson laws, the new ATFE will have 
jurisdiction over the criminal statutes in title 18 of the United 
States Code as they relate to tobacco or alcohol laws. These few 
criminal statutes are the extent of ATFE's jurisdiction over alcohol 
and tobacco. All alcohol and tobacco revenue collection and related 
regulatory functions performed by the current ATF will remain under the 
jurisdiction of the Tax and Trade Bureau of the Treasury Department.
  The renaming of the Bureau is more than simply symbolic. The addition 
of the ``E'' to the name of the Bureau demonstrates the importance of 
explosives in their mission. To coordinate better law enforcement 
training in explosives, we created the Explosives Training and Research 
Facility at Fort AP Hill, VA, where Federal, State and local law 
enforcement agents from around the country will be trained to 
investigate bombings.
  We trust that the Attorney General and the Department of Justice in 
conjunction with the Department of the Treasury will make ATFE's 
transition as efficient as possible. Moving a large law enforcement 
agency is not easily done. For that reason, the Homeland Security bill 
permits a sufficient time frame for the transitions to occur both to 
the new Department of Homeland Security as well as the ATFE's 
transition to the Department of Justice. It is our intent that the ATFE 
be permitted as much time to complete its transition as the other 
bureaus and agencies being shifted to the Department of Homeland 
Security.
  At the Department of Justice, the ATFE will have primary 
responsibility for the enforcement of the firearm, arson and explosives 
laws as well as criminal alcohol and tobacco laws. In that role, the 
ATFE will be able to work cooperatively with the FBI and the DEA in 
enforcing the criminal law while at the same time taking the lead when 
the case under investigation is primarily within their jurisdiction. 
According to recent news reports, the FBI and the ATF do not always 
have the best of relations. In fact, despite a long-standing memorandum 
of understanding between the two agencies allocating responsibilities, 
there is still a fair amount of competition between the two when it 
comes to areas where their respective jurisdiction overlaps. Now, with 
the ATFE working under the same leadership as the FBI, the Attorney 
General will be able to sort out these differences and maximize the 
cooperation between the two agencies. More cooperation will lead to a 
better focus on the war on terrorism.
  The establishment of the ATFE at the Department of Justice gives the 
Government a dynamic weapon in the war on terrorism and in the every 
day battle against violent crime involving explosives, firearms and 
arson. We look forward to the ATFE joining the Department of Justice 
and its other law enforcement agencies. We also look forward to the 
ATFE maximizing its capabilities in enforcing the explosives, firearms, 
and arson laws and fighting the war on terrorism.
  In addition to transferring ATF to the Department of Justice, this 
measure contains a subtitle that modifies our explosives laws. This 
provision is an amended version of S. 1956, the Safe Explosives Act, 
which was introduced earlier this year by Sen. Orrin Hatch and me and 
H.R. 4864, the Anti-Terrorism Explosives Act, which was introduced 
earlier this year by Chairman Sensenbrenner.
  The Senate Judiciary Committee unanimously approved the measure this 
summer. I want to explain some of the provisions in this title of the 
bill and provide a more detailed section by section analysis of it.
  Following the September 11 terrorist attacks on the World Trade 
Center and the Pentagon, we have had a growing sense that Congress 
needs to close numerous gaps in Federal law to help prevent future 
disasters. The current explosives laws are effective, but the Safe 
Explosives Act closes some loopholes and significantly improves its 
administration.
  The Safe Explosives Act effects two major changes in our explosives 
laws: first, it creates a systematic method of enforcing our laws 
regarding who can and cannot purchase and possess explosives; and 
second, it makes some commonsense additions to the list of people who 
are barred from purchasing and possessing explosives.
  Creating a systematic method for enforcing our laws makes sense in 
the current environment. Most Americans would be stunned to learn that 
in some States it is easier to get enough explosives to take down a 
house than it is to buy a gun, get a driver's license, or even obtain a 
fishing license. Currently, it is too easy for would-be terrorists and 
criminals to obtain explosive materials. Although permits are required 
for interstate purchases of explosives, there are no current uniform 
national limitations on the purchase of explosives within a single 
state by a resident of that State. As a result, a patchwork quilt of 
State regulations covers the intrastate purchase of explosive 
materials. In some States, anyone can walk into a hardware store and 
buy plastique explosives or a box of dynamite. No background check is 
conducted, and no effort is made to check whether the purchaser knows 
how to properly use this deadly material. In at least 16 States, there 
are little to no restrictions on the intrastate purchase of explosives.
  By addressing the intrastate sale and possession of explosives, the 
Safe Explosives Act would help close one such loophole that allows 
potential terrorists and criminals easy access to explosive materials. 
Let me elaborate. As I said, under current law anyone who is involved 
in interstate shipment, purchase, or possession of explosives must have 
a Federal permit. This legislation creates the same requirement for 
intrastate purchases. It calls for two types of permits for these 
intrastate purchasers: user permits and limited user permits. The user 
permit lasts for 3 years and allows unlimited explosives purchases. The 
limited user permit also expires after 3 years, but only allows six 
purchases per year. We created this two-tier system so that low-volume 
users would not be burdened by regulations. The limited permit, like 
the user permit, imposes commonsense rules such as a background check, 
monitoring of explosives purchases, secure storage, and report of sale 
or theft of explosives. However, the Safe Explosives Act does not 
subject the limited user to the record keeping requirements currently 
required for full permit holders.
  In addition to closing the intrastate loophole, this measure expands 
slightly the class of people who are barred from purchasing or 
possessing explosives. Current federal law prohibits certain categories 
of people from purchasing and possessing explosives. However, some 
important categories, such as people in the United States on a tourist 
visa, are not included in current federal explosives law. The committee 
feels that in addition to being barred from obtaining a firearm, these 
people should also be prohibited from purchasing and possessing 
explosive materials.
  Overall, this measure strikes a reasonable balance between stopping 
dangerous people from getting explosives and helping legitimate users 
obtain and possess explosives. Most large commercial users already have 
explosives permits because they engage in interstate explosives 
transport. These users would not be significantly affected by our 
legislation. The low-volume users will be able to quickly and cheaply 
get a limited permit. And high-volume intrastate purchasers who are 
running businesses that require explosives should easily be able to get 
an unlimited user permit. Also, the measure will not affect those who 
use black or smokeless powder for recreation, as the legislation does 
not change current

[[Page 22984]]

regulations on those particular materials.
  Our goal is simple. We must take all possible steps to keep deadly 
explosives out of the hands of dangerous individuals seeking to 
threaten our livelihood and security. The Safe Explosives Act is 
critical legislation, supported by the administration. It is designed 
solely to the interest of public safety. It will significantly enhance 
our efforts to limit the proliferation of explosives to would be 
terrorists and criminals. It will close a loophole that could 
potentially cause mass destruction of property and life.
  Let me thank the many people who assisted us in drafting these 
provisions. Senators Hatch and Leahy and Chairman Sensenbrenner were 
vital, as were Senators Baucus and Grassley. The staff and leadership 
of the Department of Treasury, the Department of Justice and the ATF 
were invaluable. We all worked together cooperatively and in close 
collaboration, and I believe that the finished product reflects the 
professionalism and dedication of the staff of those agencies. They are 
all to be congratulated.
  I ask unanimous consent that a section-by-section analysis of the 
measure be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Section-by-Section Analysis of Title XI, Subtitle C

     Section 1121--Short title
       The short title of this bill is the ``Safe Explosives 
     Act.''
     Section 1122--Permits for purchasers of explosives
       First, the following terms referenced in the bill are 
     defined: permittee, alien, and responsible person.
       Second, this section would require all purchasers of 
     explosives to obtain a permit from the Treasury's Bureau of 
     Alcohol, Tobacco, and Firearms (ATF), a process that includes 
     a background check, thereby reducing the availability of 
     explosives to terrorists, felons, and others prohibited by 
     law from possessing explosives. Although permits are now 
     required for interstate purchases, there are no current 
     Federal limitations on the purchase of explosives within a 
     single state by a resident of that state.
       The new permit requirement would significantly enhance the 
     government's ability to prevent the misuse and unsafe storage 
     of explosives. As part of the permit application and renewal 
     process, ATF would conduct background checks on all 
     individuals wishing to acquire or possess explosives 
     materials. Applicants would also be required to submit 
     photographs and fingerprints along with their applications, 
     to ensure that a thorough background check can be completed. 
     Fingerprints are not necessary to conduct a background check, 
     however it significantly reduces the work and amount of time 
     for the positive identification of applicants, and therefore 
     will greatly reduce the application turnaround time and 
     workload for ATF.
       In the case of a corporation, partnership or association, 
     the applicant would be required to submit fingerprints and 
     photographs of responsible persons, meaning those individuals 
     who possess the power to direct the management and policies 
     of the corporation, partnership or association pertaining to 
     explosive materials. Consistent with ATF's current policy, 
     this section does not require corporate applicants for 
     explosives licenses to list every single corporate director 
     or officer as a ``responsible person'' on its application for 
     a license or permit. Those officials within the corporation 
     who have no power to direct the management and policies of 
     the applicant with respect to explosive materials need not be 
     listed on the application. For example, in a large 
     corporation that uses explosives in just one of many business 
     activities, there may be many corporate officials who have no 
     responsibilities or authority in connection with the 
     explosives aspects of the company's business. These officials 
     would not be listed as ``responsible persons'' on the 
     application, and would not need to submit fingerprints or 
     photographs to ATF. Furthermore, if corporate bylaws provide 
     that certain high-level corporate officials do not have the 
     power or authority to direct the management and policies of 
     the corporation with respect to explosive materials, then 
     such officials will not be considered to be responsible 
     persons.
       We encourage the Secretary to strive for balanced 
     enforcement. In so doing, the Secretary should avoid imposing 
     unnecessary burdens on applicants for explosives licenses and 
     permits. There is no reason to require background checks for 
     corporate officials who have no responsibilities or authority 
     in connection with the explosives aspect of a company's 
     business. By the same token, companies have an obligation to 
     be forthright with the ATF, and we expect them to err on the 
     side of overinclusiveness in deciding who may be a 
     responsible person.
       This section will also require applicants to list the names 
     of all employees who will have possession of the explosive 
     materials, so that the ATF can verify that these individuals 
     are not prohibited from receiving or possessing explosives. 
     In order to prevent an overload of employee background checks 
     all at once for the ATF, current licenses and permits will 
     remain valid until that license or permit is revoked, 
     expires, or until a timely application for renewal is acted 
     upon. Under current law, it is too easy for would-be 
     terrorists and criminals to obtain access to explosive 
     materials by obtaining jobs (such as driving trucks) with 
     explosives licensees. These expanded requirements would also 
     apply to entities seeking to obtain a license to sell 
     explosives.
       It is the Committee's intention that ATF should work 
     closely with the regulated industry to develop guidance as to 
     which employees are considered to be in ``possession'' of 
     explosive materials in the course of their employment. 
     Applicants for explosives licenses or permits are not 
     required to list every single employee of the business. 
     Instead they are only required to list employees who are 
     expected to possess explosive materials as part of their 
     duties.
       In developing these standards, ATF should be guided by the 
     case law interpreting the term ``possession'' under the Gun 
     Control Act of 1968, GCA, as amended. It is well established 
     that possession under the GCA may be demonstrated through 
     either actual or constructive possession. Actual possession 
     exists when a person is in immediate possession or control of 
     an object, and includes instances where a person knowingly 
     has direct physical control over the object at a given time. 
     Thus, employees who physically handle explosive materials 
     would clearly be in possession of those materials. This would 
     include, among others, employees who handle explosive 
     materials, as defined by the law as part of a production 
     process; employees who handle explosive materials in order to 
     ship, transport, or sell them; and employees who actually use 
     the explosive materials. All of these employees, as well as 
     any other employees who actually possess explosive materials 
     as part of their duties, must be listed on the application 
     for a license or permit.
       Where direct physical contact is lacking, a person may 
     nonetheless have constructive possession where he or she 
     knowingly has the power and the intention at a given time to 
     exercise dominion and control over the explosives, either 
     directly or through others. Accordingly, this section would 
     require applicants for licenses or permits to list all 
     employees who will have constructive possession of explosive 
     materials as part of their duties. For example, an employee 
     who drives a truck with an explosives load is in constructive 
     possession of the explosives even though he may not 
     physically handle them. This individual has dominion and 
     control over the explosives while he transports them; 
     furthermore, he could easily divert them from their intended 
     destination. Such an individual should be subject to the 
     background check requirements of the amended law. Similarly, 
     a supervisor at a construction site who keeps the keys for 
     the building in which the explosives are stored, and directs 
     the use of explosives by other employees, would be in 
     constructive possession of those explosives.
       Finally, this section recognizes the distinction between 
     small individual users of explosives and large commercial 
     users by creating a new ``limited permit'' for those 
     infrequent purchasers. The limited permit allows a purchaser 
     to make no more that six purchases of explosives within a 12-
     month period, and the permit is only valid for purchases 
     within the purchaser's state of residence. While limited 
     permit holder must pass the background check like all other 
     permit applicants, they are not subject to spot inspections 
     imposed on full permit holders. To ensure that holders of 
     limited permits are not violating law by acquiring explosive 
     materials more than six times a year, this section requires 
     anyone selling explosives to a limited permit holder to 
     report the sale to the ATF. This allows the ATF to monitor 
     misuse by limited permit holders, and investigate suspicious 
     volume purchases by such individuals, while allowing 
     infrequent users to access more than enough for their needs. 
     Holders of limited permits would also be required to report 
     their distribution of excess stocks of explosives to other 
     permittees or licensees.
       All permittees, limited or otherwise, are subject to 
     inspection by the ATF to ensure that the explosives are being 
     properly stored. In the interest of minimizing the turnaround 
     time for approval of licenses and permits, and in order to 
     avoid overburdening ATF with an onrush of inspections 
     immediately after this act takes effect, the bill gives ATF 
     the discretion to defer immediate inspection of license and 
     permit applicants at the time of application. However, 
     because of concern for public safety, a provision requires 
     ATF to inspect both permitees and licensees within three 
     years of issuing a license or permit. Specifically, ATF must 
     inspect limited permitees prior to a third consecutive 
     renewal, and licensees or user permitees prior to the first 
     renewal. It also increases the amount of time ATF has to 
     approve or deny an application to 90 days. This will allow

[[Page 22985]]

     ATF ample time to conduct thorough background checks, 
     especially important immediately following enactment of the 
     bill when there will likely be a surge in applications. These 
     provisions were put in the bill at the request of the House.
       This section also includes an important measure that 
     ensures privacy for employees or potential employees of a 
     company that applying for a user permit that are subject to a 
     background check. The provision requires the Secretary of the 
     Treasury to notify the employer as to whether or not an 
     employee passes the background check. However, should an 
     individual not pass the employer will not be told the reason 
     why. Rather, the employee will be notified as to the 
     reason(s) for not passing.
     Section 1123--Persons prohibited from receiving or possessing 
         explosive materials
       This proposal expands the list of those people who are 
     prohibited from purchasing or possessing explosives to 
     include: mental incompetents, aliens other than lawful 
     permanent resident aliens, people dishonorably discharged 
     from the military, and Americans who have renounced their 
     citizenship. The addition of such categories to the list of 
     prohibited persons recognizes the potential for terrorists or 
     other criminals to use explosives to carry out their attacks 
     and brings the explosives law in line with most categories of 
     prohibited people in the Gun Control Act.
       Congress has already determined that the possession of 
     firearms by the above categories of people is dangerous to 
     society. In order to combat terrorism and other violent 
     crime, it is essential that Federal law prohibit the receipt 
     or possession of explosive materials by such individuals 
     already deemed too dangerous to possess firearms. The 
     language relating to non-immigrant aliens differs slightly 
     from that in the Gun Control Act, as technical changes have 
     been made to improve the clarity of the provision.
     Section 1124--Requirement to provide samples of explosive 
         materials and ammonium nitrate
       This section would enhance the ATF's ability to solve cases 
     involving explosives by requiring Federally licensed 
     explosives manufacturers and importers and persons who 
     manufacture or import ammonium nitrate to provide to ATF, 
     upon request, with samples of, or chemical information on, 
     the products they manufacture or import. The ATF fulfills a 
     critical investigative role in the solving of crimes or acts 
     of terrorism committed by explosives. Such information is 
     essential to ATF's ability to prevent and solve bombings and 
     to trace explosive materials that are used in terrorist 
     activities and other violent crimes by matching residue with 
     the manufacturers' samples. Also, the ability to evaluate 
     such samples as well as information on the chemical 
     composition of these products will allow the ATF to 
     familiarize themselves with products that may be diverted to 
     criminal misuse.
     Section 1125--Destruction of property of institutions 
         receiving federal financial assistance
       This section expands ATF's authority to investigate 
     destruction of property by fire or explosion if the property 
     receives federal assistance.
     Section 1126--Relief from disabilities
       This section allows for a person who is prohibited from the 
     above mentioned explosive material possession, purchase, etc. 
     to apply to the Attorney General for relief from 
     disabilities. The Attorney General may grant that relief if 
     the circumstances regarding the disability are such that the 
     applicant is not likely to be dangerous to the public if 
     allowed to work with the above mentioned explosive materials, 
     and that it would not be contrary to the best interest of the 
     public.
     Section 1127--Theft reporting requirement
       According to this section, all licensees and permittees are 
     required to report the known theft of explosive materials 
     from that user no later than 24 hours after the discovery of 
     theft. Failure to do so can result in a fine not more than 
     $10,000, or imprisonment not more than 5 years, or both. It 
     is essential that ATF investigate theft of explosives in 
     order to prevent accidental or criminal misuse.
     Sec. 1128--Authorization of appropriations
       This section authorizes the appropriation to carry out the 
     provisions of the bill.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. I yield myself 5 minutes from the time of Senator 
Thompson and 5 minutes from the time of the leader.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Madam President, this legislation to create a new 
Department of Homeland Security will result in the most significant 
transformation of the executive branch in over 50 years and is of 
fundamental importance to our national security. I believe that 
Congress has the responsibility to establish a new Department of 
Homeland Security this year, before we adjourn for we know that those 
wishing to do our nation harm will not wait for us to act.
  The longer we delay, the longer we leave vulnerabilities in place, 
the longer we consciously rely upon a fragmented system to guard our 
homeland. While creating a new department in and of itself will not be 
sufficient to safeguard our homeland, it will bring much needed focus 
and coordination to the task.
  In the year since the terrorist attack, much has been done to make 
our nation more secure. Congress has approved billions of dollars to 
secure our borders, protect critical infrastructure, train and equip 
first responders, and better detect and respond to biological or 
chemical attacks. Our brave men and women in uniform have fought 
valiantly in the war against terrorism and have secured important 
victories in Afghanistan.
  The creation of the Department of the Homeland Security is the next 
step in our efforts to secure our nation against another terrorist 
attack. The task before us is daunting. This sweeping reorganization 
dwarfs any corporate merger. It involves some 170,000 employees and a 
budget of nearly $40 billion.
  Despite the magnitude and challenge of the task, there should be no 
doubt about the need for this new cabinet department. Currently, as 
many as 100 Federal agencies are responsible for homeland security, but 
not one has homeland security as its primary mission. When that many 
entities are responsible, nobody is really accountable, and turf 
battles and bureaucratic disputes are inevitable.
  If we are to overcome these problems and create a workable national 
security structure, then we must unite the current patchwork of 
governmental entities into a new Department of Homeland Security. The 
new agency will work to secure U.S. borders, ports, and critical 
infrastructure. It will synthesize and analyze intelligence from 
multiple sources, lessening the possibility of intelligence 
communication breakdowns. And it will coordinate security activities 
now undertaken separately by agencies like the Customs Service, the 
Federal Emergency Management Agency, and the Immigration and 
Naturalization Service so that the resulting effort will be greater 
than the sum of its parts. The new Department for Homeland Security 
will help to remedy many of the current organizational weaknesses and 
to protect us against future attacks.
  As a member of the Senate Governmental Affairs Committee, which held 
extensive hearings on the reorganization, I had the opportunity to 
consider carefully myriad ideas and concepts about the creation of the 
Department. We heard testimony from Governor Ridge, from Director 
Mueller of the FBI, from Director Tenet of the CIA, and from numerous 
other experts. They all shed light on the problems that have impaired 
our ability to defend our homeland, and on the threats that we now face 
and that will inevitably challenge us in the future.
  While strongly supporting the creation of the Department, I believe 
that we also must protect the traditional roles of institutions and 
agencies that are important to America's economic and social fabric. In 
particular, the Coast Guard's traditional functions--such as search and 
rescue and marine resource protection--must be maintained.
  Since the attacks of September 11, the Coast Guard's focus has 
shifted to homeland security. The Coast Guard plays an essential role 
in homeland security, and I believe that it should play a leading role 
in the new Department. If, however, the current resource allocation is 
maintained, and the Coast Guard continues to assume new 
responsibilities, its traditional missions may be jeopardized.
  Prior to September 11, port security accounted for approximately 2 
percent of the Coast Guard's resources. Immediately following the 
terrorist attacks, the Coast Guard deployed 59 percent of its resources 
to port safety and security missions. As a result, many of the aircraft 
and vessels used for search and rescue were far removed from their 
optimal locations for search and rescue. Even after the immediate 
impact of September 11 attacks subsided, its impact on the resources of 
the Coast

[[Page 22986]]

Guard remained. Indeed, the Coast Guard continues to devote fewer hours 
to its traditional functions than it did before 9/11.
  Because of the Coast Guard's importance to coastal areas throughout 
our Nation, any reduction in its traditional functions is of great 
concern. Last year alone, the Coast Guard performed over 39,000 search 
and rescue missions and saved more than 4,000 lives. On a typical day, 
the Coast Guard saves 10 lives, interdicts 14 illegal immigrants, 
inspects and repairs 135 buoys, and helps more than 2,500 commercial 
ships navigate into and out of U.S. ports. In short, the Coast Guard's 
traditional missions are of vital importance and must be preserved.
  Let me take a minute to talk about the Coast Guard's importance in my 
home State of Maine. Each year, the Coast Guard performs about 300 
search and rescue missions in my State. These missions are literally a 
matter of life and death. Just a few weeks ago, the Coast Guard saved 
two Maine fishermen from their burning boat off the coast of 
Massachusetts after a 12 hour search.
  Since October 1999, fourteen fishermen have lost their lives off the 
coast of Maine. Commercial fishing is one of the most dangerous of 
occupations. How many more fisherman or recreational boaters would have 
died or been injured if the nearest Coast Guard cutter were not in 
port? How many more will lose their lives if the local Coast Guard 
stations must devote the majority of their time to homeland security 
alone? I agree that the Coast Guard must perform homeland security 
functions. But it is critically important that it not do so at the 
expense of its traditional missions.
  Senator Stevens and I addressed these concerns during the 
Governmental Affairs Committee's mark-up of the original homeland 
security bill. We offered a successful amendment to preserve the 
traditional functions of the Coast Guard.
  The compromise bill ensures that the Coast Guard's non-homeland 
security functions will be maintained after its transfer into the new 
Department, and also provides for flexibility to ensure our national 
security. As our amendment provided, the compromise homeland security 
bill has the Commandant of the Coast Guard report directly to the 
Secretary of Homeland Security, thus ensuring direct access for the 
Commandant's views. The protections for the Coast Guard will help 
safeguard our coastal communities' economies, way of life, and loved 
ones, while Americans, wherever they live, can rest assured that the 
Coast Guard will perform its necessary and vital homeland security 
functions.
  Similarly, I am pleased that the compromise bill incorporates a 
provision that Senator Levin and I proposed to create a Special 
Assistant position in the Secretary's office to promote public/private 
partnerships and to ensure that the business community has a place to 
go to ask questions, voice concerns, and provide feedback. It is 
important to bear in mind that our homeland security and economic 
security are closely linked, and that the failure of one jeopardizes 
the other. Our economic vitality makes us strong and capable of 
defending our nation against external and internal threats.
  The issue of personnel and management flexibility, unfortunately, 
became the most controversial issue in this homeland security debate. 
The creation of the new Department will transfer approximately 170,000 
current Government employees who are covered by a large number of 
different work rules, personnel systems, and labor agreements from 
other departments and agencies. Given the pressing importance of the 
new Department, and the vital functions it will perform, we need to 
grant the new Secretary appropriate but not unlimited authority to 
create a flexible, unified new personnel system that meets the 
Department's unique demands.
  This legislation strikes the right balance. Initially, the 
Administration sought power for the Secretary to unilaterally modify 
all of the civil service laws which I opposed. The administration 
compromised and will have flexibility in only those areas it deemed 
vital to the Department's efficient functioning.
  Also, I would note that there are many safeguards to prevent abuse of 
this authority that we are granting the Department, including a 
requirement I authored requiring that any changes made to the appeals 
rights of the Department's employees be made only to ``further the 
fair, efficient and expeditious resolution'' of workers' appeals. 
Additionally, any changes made will now be subject to mediation, unlike 
the Administration's initial proposal, which only called for 
notification.
  As we create a new Department of Homeland Security, it is critically 
important that we remember those on the front lines of any emergency: 
our police, our firefighters, our EMS personnel. I am disappointed that 
the compromise bill fails to include important amendments that I 
offered with Senators Feingold and Carper, and that were adopted both 
in committee and on the Senate floor.
  The compromise bill includes an Office for State and Local Government 
Coordination, but it lacks the provisions needed to ensure that the new 
Department coordinates and communicates adequately and efficiently with 
state and local first responders. Senators Feingold, Carper and I would 
have placed a Department liaison in each State, thereby enhancing the 
Department's ability to work effectively with first responders, who 
perform such a critical role in our homeland defense. In my role as 
chairman of the Governmental Affairs Committee, I plan next year to 
revisit this issue to ensure that the new Department and our first 
responders can work efficiently together not at cross purposes when 
emergencies arise.
  The new Department of Homeland Security is an essential component of 
our response to current and future threats. As the brutal attacks of 
September 11th demonstrated, distance from our enemies and the barrier 
of oceans no longer suffice to protect our nation. The bill that we are 
considering today is an important step in making our homeland more 
secure.
  I reserve any unused time for Senator Thompson.
  The PRESIDING OFFICER (Ms. Cantwell). The Senator from Connecticut.
  Mr. DODD. I will yield myself 15 minutes off the majority side. I 
would like to be notified by the Chair when 5 minutes have expired. I 
would like to separate the remarks: 5 minutes spent on the homeland 
security issue, and then 10 minutes on terrorism insurance, of which I 
will be yielding some brief time to colleagues who want to be heard on 
that matter. Senator Sarbanes, the chairman of the Banking Committee, 
will be coming to the floor at which time he will also have 15 minutes 
to talk about terrorism insurance or other matters he may want to 
raise, in which case we will try to have our remarks appear 
continuously, if we can, regarding terrorism insurance.
  On the issue of homeland security, I am going to vote for this bill 
in the end when we are called upon, in several hours, to do so.
  First of all, let me commend my colleague from Connecticut, who has 
been the manager of this bill along with Senator Thompson of Tennessee 
for the last number of weeks and months since this bill has been part 
of the debate in the Senate.
  I want to commend Joe Lieberman. My colleagues should know--and I am 
sure they remember this--he introduced this legislation in October of 
last year. The committee marked up that bill, I think, with just 
Democratic votes out of the Government Affairs Committee to bring a 
homeland security bill to this Chamber.
  I am delighted to hear that we now have strong bipartisan support for 
this effort. But let us be clear about the history. The history is that 
Joe Lieberman offered this idea to this body. It was his committee 
under his leadership that marked up that bill and sent it to the floor 
on a partisan vote, unfortunately. We are now going to vote on it.
  I will vote for passage of the bill before the Senate today, but I 
will do so with deep reservations. I believe that

[[Page 22987]]

the bill before us does far too little to adequately protect average 
Americans from the dangers posed by terrorists. And regrettably, it 
does far too much to protect special interests favored by the majority 
party in the other body. That having been said, I believe that, on the 
whole, the bill will make America marginally more secure and I would 
rather err on the side of improving security than on the side of 
inaction. I will to look for every opportunity to make improvements in 
Department of Homeland Security in the months ahead.
  This bill does take a step in the right direction by creating a 
unified department that can focus on security. Effectively reorganizing 
parts of the federal government can improve our security. The bill will 
allow the Department of Homeland Security to coordinate activities that 
have previously been conducted by two dozen separate agencies. This 
bill will allow the Administration to consolidate layers of government 
and if the Administration does this well, it should improve the way our 
government collects and shares information. By eliminating redundancy 
and conflicts within the government, the new department can make it 
easier to identify and respond quickly to threats as they emerge.
  Further, if the Administration wisely uses the authority granted to 
it in this bill, it should be able to improve security at our borders. 
This bill authorizes the administration to completely revamp our 
immigration and naturalization services. If the Administration uses 
this authority to truly modernize immigration services, it will be able 
to avoid problems like those we have all read about cases where the 
immigration and naturalization services issued student visas improperly 
because of computer errors, poor record-keeping, and lax analysis of 
information.
  Still, despite these and several other constructive provisions, this 
bill could have done more to strengthen homeland security. For example, 
it could have done more to foster better coordination and to better 
prepare local communities to respond to emergencies that may occur. I 
offered an amendment that would have authorized the Department of 
Homeland Security to establish a grant program to help local fire 
departments address the chronic understaffing problems that plague so 
many local departments. The International Association of Firefighters 
and the International Associate Fire Chiefs have estimated that we need 
at least 75,000 additional firefighters in this country just to meet 
pre-9/11 staffing needs. Since 9/11, firefighter labor shortages have 
become even more of a problem across the country. Senator Warner and I 
recognized the full extent of the problem of firefighter understaffing 
shortly after September 11, 2001, and we wrote legislation to help 
solve the problem. The amendment I offered was based on the bill that 
Senator Warner and I wrote. The amendment also built on the FIRE Act, 
which Senator DeWine and I authored in 2000. The FIRE Act, which became 
law thanks in large part to the effort of Senators Warner and Levin, 
has provided more than $400 million to train and equip tens of 
thousands of firefighters around the country. Understaffing has become 
such a problem, that according to the International Association of 
Firefighters, nearly \2/3\ of all fire departments cannot meet minimum 
safety standards.
  I also attempted to offer a second amendment to provide equitable pay 
for federal law enforcement officers. This amendment would have ensured 
that the federal government could retain highly-qualified and 
experienced law-enforcement professionals. All over the country, 
federal law enforcement officers are retiring from the federal service 
because they can make more money working in the private sector or for 
state and local governments. In New York, San Francisco, and Los 
Angeles, where living expenses are high, the FBI reported that 65% of 
its agents have been on the job for less than 5 years. This statistic 
reflects the fact that experienced officers would rather leave the 
Federal service than accept transfers to these expensive cities where 
they cannot provide adequately for their families.
  Don't get me wrong, all of the men and women who serve as Federal law 
enforcement officers do an outstanding job. But I also believe that 
experience is an invaluable asset and I think we need to make sure that 
the talent that comes with experience is available to the Federal 
government. Our Federal law enforcement services should be more than 
just a training ground--our law enforcement officers should be among 
the most experienced and highly skilled in the world so that they can 
provide the high degree of protection that the American people so 
rightly deserve.
  The bill before us would have been far better if it had more fully 
addressed the critically important needs of firefighters and federal 
law-enforcement officers. Sadly, however, their needs are all but 
ignored in this legislation. I intend to seek any and every opportunity 
in future to remedy this shortcoming. A homeland security bill that 
largely ignores the needs of these dedicated civil servants can only be 
considered a partial success.
  Instead of focusing on the interests of the American people and those 
of firefighters and law officers, the bill before us contains numerous 
special interest provisions that help large corporations and do nothing 
to ensure the safety of the American public. In fact, I believe that 
some of the provisions in this bill could potentially cause harm to the 
public.
  One provision of particular concern will bar parents from seeking 
legal redress from pharmaceutical companies whose drugs may have caused 
autism in their children. Parents would be barred from pursuing 
complaints through the courts and instead would be forced into the 
Federal Vaccine Injury Compensation Program, which limits damages to 
$250,000. I have supported reasonable tort reform in the past, but this 
provision changes the rules in the middle of the game for people who 
are already before the courts. Under this provision, pending lawsuits 
that have absolutely nothing to do with homeland security will likely 
be dismissed and parents who claim their children have become autistic 
due to corporate malfeasance will be denied their day in court.
  The homeland security bill before us also guts an amendment offered 
by Senator Wellstone, which would have prohibited the government from 
contracting with companies that have moved their headquarters overseas 
to avoid taxes in the United States. Under the current bill, the 
Secretary of Homeland Security has broad authority to contract with 
these corporate expatriates. This provision is a welcome relief to 
those companies that would dodge their patriotic duty at a time of war 
by relocating to foreign shores.
  I am concerned about another provision in the bill that exempts the 
new Department's advisory committees from the open meetings 
requirements of the Federal Advisory Committee Act (FACA). Agencies 
throughout government use advisory committees that function under open 
meetings rules and the open meetings law is careful to protect 
discussions and documents that involve sensitive information. The law 
currently applies to the Department of Defense, the Department of 
Justice, the State Department, the National Security Agency, and 
others. In my view, the administration has failed to make the case for 
exempting the Homeland Security Department from the requirement that 
records for committee meetings should make available to the public.
  Another blatantly unnecessary and misguided element of the bill would 
create a very narrow university-based homeland security research center 
program. Based on the criteria outlined in the bill, the research 
center that would be created is described so narrowly that it appears 
that only a handful of universities--including Texas A&M University--
might qualify to host the center. This provision amounts to Congress 
intervening to pick winners and losers in the field of science. The 
Democratic amendment would have eliminated the list of highly specific 
criteria that appears to direct the science center program to 
particular universities. This bill would have been

[[Page 22988]]

better if that amendment had succeeded.
  I invite anyone who may be interested to call up the Web site at the 
White House to get an idea about what the homeland security bill looks 
like. This is what it looks like. It is 35 pages long. This is the bill 
the White House submitted as the homeland security bill. That is what 
you will get if you call up the Web site. What we are actually going to 
vote on is this. The bill I just showed you is 35 pages long. The bill 
we are going to vote on is 484 pages long. Once the House leadership 
got their hands on this bill, it grew by 450 pages. Most of the 
extraneous material has nothing to do with homeland security. It has a 
lot to do with special interests, but not homeland security. When you 
call up that White House Web site and you ask for the bill, you are 
going to get the short version, but we are going to vote on this 
monstrosity of 484 pages.
  I am told that the White House and others are going to clean this up 
in the coming Congress. They have a major job to do.
  There are provisions in this bill that have no bearing and no 
relationship whatsoever to homeland security that were stuck in here in 
an act of arrogance by the leadership in the other body. They assumed 
they could put anything they wanted in here and then send it over and 
we would have to support it. Most of us know that these matters have no 
business being in this bill.
  There are a number of provisions, of course, in the bill that Senator 
Lieberman authored that are included here and therefore deserving of 
support.
  That is the quandary in which we find ourselves. There are good 
pieces here that truly deal with the necessity of bringing agencies of 
Government together so we can respond more effectively and efficiently 
to terrorists--a matter we have to confront. But it is a tragedy they 
have taken language and then added to it all of these other provisions 
in these 484 pages.
  There are some things that are left out as well. I want to commend my 
colleague from Maine, Senator Collins, as did our colleague from New 
York, Senator Clinton, for talking about the absence of dealing with 
first responders. It seems unfair, to put it mildly, that we are not 
dealing here with the police, firefighter, and emergency medical 
services personnel. We're not giving them the kind of support and 
backing that will be necessary if we are struck with another terrorist 
attack.
  I am hopeful as we reconvene the 108th Congress in January that we 
will be getting on with the business of doing what we can to see to it 
that those provisions to help first responders are going to become the 
law of the land.
  There have been provisions passed already that deal with homeland 
security, but, unfortunately, the President decided to sequester those 
funds.
  For those who may not understand what sequester is, that is 
tantamount to a veto--about $150 million--sitting down there just 
waiting for the President's signature which would become available to 
deal with homeland security.
  But again, there are good provisions in the original Lieberman 
proposal and many of those provisions remain intact. For those reasons, 
despite the fact that the bill includes a lot of things that do not 
deserve to be in here, and on the commitments we have received from the 
Republican leadership as well as the White House to scrub this 
legislation and get rid of a lot of these things that have been added 
on here, I will support this bill.
  But when you call up that Web site, you might ask them where the 
other 450 pages are which you won't get.
  In closing, I would have preferred to lend my support to a more 
focused, more effective, homeland security bill. I tried to improve 
this bill, but at the end of the day this is the best we could do given 
the opposition we faced. I presume that this is not the last 
opportunity Congress will have to address homeland security. In the 
months ahead, I will continue to fight for improvements to the 
department we are creating. I will continue to fight for cops, not 
corporations; firefighters, not firms. America's security from 
terrorism depends on the men and women who wake up every morning, put 
on uniforms from state and local agencies across the country, and place 
themselves at risk for our nation. We owe them--and the Americans they 
are sworn to protect--more than this bill provides. But to do nothing 
would be to provide even less, and that is not wise under the present 
circumstances. This bill is a start toward a more rational and 
effective approach to strengthening security for all Americans here at 
home. For that reason I will support this homeland security bill.


                    the terrorism risk insurance act

  Madam President, I rise today in support of the conference report on 
the Terrorism Risk Insurance Act of 2002. This conference report 
represents a truly bipartisan, bicameral compromise. The Senate 
overwhelmingly supported the underlying legislation, which I 
introduced, along with Senators Sarbanes, Reid, and Schumer, in June of 
this year by a vote of 84-14.
  This conference report closely mirrors the Senate-passed bill, and in 
many regards has been improved by negotiations with the House.
  Late last week, the House passed this conference report by voice 
vote. It is my fervent hope that the Senate will move shortly to 
support it as well.
  In the 14 months since September 11, 2001, Congress has taken many 
important steps to protect our Nation from the new threat of terrorism. 
Most of these measures have focused on protecting our Nation's physical 
security--such as our new anti-terrorism laws, airport security 
legislation, and other initiatives to shore up our ``homeland 
defense.''
  But we cannot, and must not, fail to respond to the effects that the 
new threat of terrorism are having on our Nation's economic security.
  The goal of the September 11 terrorists was not simply to cause an 
enormous loss of life--it was also to derail America's economy; to 
undermine the consumer and investor confidence that serves as the 
cornerstone of our free enterprise system.
  It is, therefore, by no means an overstatement to say that a robust 
American economy, and continued American prosperity, are as vital to 
defeating the aims of terrorists as is protecting American lives.
  As a result of the September 11 attacks, during the past year, 
several critical sectors of the economy--real estate, commercial 
lending, aviation, construction, and others--have experienced 
significant disruptions because of the difficulty in finding terrorism 
insurance. By some estimates, this has cost American workers thousands 
of jobs and cost our economy tens of billions of dollars in economic 
growth activities--at a time our economy can surely use responsible 
economic stimulus.
  The bottom line is that the insurance which protects America's 
buildings, businesses, homes, and workers from terrorist acts is no 
longer readily available or affordable. The impact on our economy of 
the shortage and expense of terrorism insurance has been detrimental.
  According to the Real Estate Roundtable, over $15 billion worth of 
new real estate projects across the country have been stalled or 
canceled because of a continuing scarcity of terrorism insurance during 
the past year.
  The Risk Insurance Management Society, RIMS, recently released a 
survey which revealed that 71 percent of its membership found it very 
difficult or impossible to obtain adequate terrorism insurance. Also, 
84 percent felt that their companies were inadequately covered against 
a future terrorist attack, while nearly 70 percent had no terrorism 
coverage whatsoever.
  Rating agencies like Moody's have downgraded the credit ratings of 
nearly $5 billion in commercial mortgage backed securities because 
terrorism insurance could not be obtained on the underlying properties.
  It has estimated that the lack of terrorism insurance has caused 
construction workers to potentially lose up to 300,000 jobs because 
projects couldn't get financing without such insurance. According to 
Edward Sullivan, President of the Building and Construction

[[Page 22989]]

Trades, AFL-CIO, ``The unavailability of terrorism risk insurance is 
hurting the construction industry by making the cost and risk of 
undertaking new building projects prohibitive. Building projects are 
being delayed or canceled for fear that they may be future terrorist 
targets. Lenders are refusing to go forward with previously planned 
projects where terrorism insurance coverage is no longer available. As 
a result, construction workers are losing job opportunities.''
  Just last week, a survey conducted by the New York City Comptroller 
cited the ``dramatic'' increases in commercial insurance premiums 
coupled with a ``significant decline'' in the availability of insurance 
since the September 11 attacks. The comptroller has urged the passage 
of federal legislation--such as that contained in this conference 
report.
  Without Federal action, the General Accounting Office has warned that 
another terrorist attack would seriously impact America's economy by 
exposing businesses and property owners to potentially enormous 
losses--losses that could wipe out those businesses as well as the 
businesses that insure them.
  No one wants to think about another terrorist attack. However, our 
free market system, in order to function efficiently, has to factor the 
risk of such an attack into its economic thinking.
  The fact is, experts are estimating that, should another attack 
comparable to the September 11 attacks take place, only about 20 
percent of the losses would be covered. This exposes our economy--and 
our entire country to a significant--and in the opinion of many, an 
unacceptable level of vulnerability.
  We are here today to address this vulnerability. The passage of this 
conference report will go a long way toward calming our nervous 
insurance marketplace, and allow American businesses to continue to 
invest, and expand--in short, to continue business as usual.
  This conference report makes sense because it calls upon the Federal 
Government to act only as an insurer of last resort. The private 
insurance industry will maintain front-line responsibility to do what 
it does best: calculate risk, assess premiums, and pay claims to 
policyholders.
  The insurance industry is paying off the losses from the September 11 
attacks, estimated to be roughly $30 billion--$40 billion. And the 
industry has made clear that despite this unprecedented loss, it 
remains strong and solvent.
  Insurance isn't something we think about every day, yet it is vital 
to the overall health of our economy. By protecting people and 
property, goods and services in every sector of America's $10 trillion 
economy, insurance provides the stability and certainty required to 
keep our economic engine humming. Every prospective homeowner needs 
insurance to obtain a mortgage from a bank. Similarly, industries as 
diverse as commercial real estate, shipping, construction, 
manufacturing, and even ``mom and pop'' retailers require insurance to 
obtain credit, loans, and investments necessary for their normal 
business operations.
  So although insurance isn't something we can touch and feel, its 
availability is as vital to rebuilding our economy in the aftermath of 
September 11 as bricks and beams will be to rebuilding lower Manhattan.
  But the private insurance market cannot at this time bear the full 
risks of future attacks. As part of our defense against terrorism, and 
specifically to maintain the strength of America's economy, our 
government must share, at least temporarily, some of the risk 
associated with damage from terrorist acts.
  And that's what the Terrorism Risk Insurance Act of 2002 does--by 
establishing a temporary Federal program under which the government 
would share the risk of future terrorist attacks with the insurance 
industry for up to three years.
  In order to protect the American taxpayer, federal cost-sharing would 
become available only if total losses from terrorist attacks exceed $10 
billion in the first year of the program. Insurers and policyholders 
would retain responsibility for the initial $10 billion in losses. This 
industry retention increases gradually throughout the life of the 
program.
  For losses between $10 billion and $100 billion, the government would 
assume responsibility for 90 percent of the costs. Should losses top 
$100 billion, Congress would determine the appropriate mechanism for 
ensuring payment.
  For payments made by the federal government for insured losses during 
the course of a year, the Treasury Secretary will recoup the difference 
between total industry costs and $10 billion. The recoupment will be 
accomplished through a surcharge on policyholders.
  In order to insure that insurance consumers are both adequately 
informed and able to take full advantage of this program, several key 
consumer protections are included. Insurance companies are prohibited 
from discriminating amongst consumers in their offering of terrorism 
coverage. This conference report, like the Senate-passed bill, requires 
that insurers offer terrorism coverage in all of their property and 
casualty policies during the first 2 years of the program.
  Additionally, at the time that policies are offered, purchased, or 
renewed, insurers must provide a clear and conspicuous disclosure of 
the premiums charged for terrorism insurance. Insurance consumers may 
not be charged for coverage that is not explicitly disclosed.
  Lastly, nothing in this legislation prohibits state insurance 
regulators from retaining full authority to disapprove any rates or 
forms that violate state laws.
  Simply put, our bill would ensure that the federal government would 
provide a temporary backstop to bring stability to a part of the 
economy that was seriously destabilized on September 11, 2001 against 
future terrorist attacks. This is the only way to bring full confidence 
back into the insurance markets that are so vital to our Nation's 
overall economic health.
  This conference agreement is based on three important principles. 
First, it makes the American taxpayer the insurer of last resort. The 
insurance industry maintains front-line responsibility to do what it 
does best: calculate risk, assess premiums, and pay claims to 
policyholders.
  Second, it promotes competition in the current insurance marketplace. 
Competition is the best way to ensure that the private market assumes 
the entire responsibility for insuring against the risk of terrorism, 
without any direct government role, as soon as possible.
  Third, it ensures that all consumers and businesses can continue to 
purchase affordable coverage for terrorist acts.
  Some say such a plan would be an unwarranted ``bailout'' of the 
insurance industry. Far from it. Not only will this measure be 
temporary, but any money the Federal Government spends through the 
program will go to victims of terrorism, not insurance companies. This 
conference report is needed to protect insurance consumers--consumers 
who need and deserve the stability promoted by this conference report.
  America will win this war on terrorism. But to do so, our economic 
front must remain strong. Preserving the availability of terrorism 
insurance will act as ``homeland defense'' for our economy.
  We must remember, on September 11 the terrorists did not target just 
the World Trade Center and Pentagon--they targeted our entire Nation. 
And we must have a national response. This conference report is part of 
that response.
  Madam President, I would like to particularly thank, of course, the 
chairman of the Banking Committee, Senator Sarbanes, for his leadership 
and support.
  I would also like to thank the President of the United States. We 
would not be passing terrorism insurance were it not for the efforts of 
the White House that weighed very significantly in trying to bring this 
bill to closure and fruition.

[[Page 22990]]

  This bill has been around for a long time--since October of last 
year. We have dealt at a number of levels with the physical security of 
our Nation since 9/11. But our Nation's security is complete without 
dealing with our economic security, and this terrorism insurance 
conference report is designed to do just that.
  As a result of the efforts of Senator Sarbanes, of Senator Corzine, 
and of my colleague, Senator Schumer from New York, Senator Jack Reed 
of Rhode Island as well as others who have worked on this legislation.
  Additionally, I would like to thank Congressman Mike Oxley of Ohio, 
chairman of the House Financial Services Committee, and John Lafalce, 
the ranking member for their efforts on this front as well.
  I thank the Members who worked so diligently on this legislation. We 
spent a great deal of time on liability issues. In the end, we were 
able to strike a fair compromise. It is truly a bipartisan bill. It is 
bicameral in that both Chambers have been involved in the structure of 
this language. At lot of hours were spent--until the wee hours of the 
morning on one particular night until 5 a.m. working with the House and 
Senate staff to work out the differences and come to a final agreement 
on a conference report.
  I know there are those in the other Chamber and some here who would 
have liked this bill to become the vehicle for tort reform. But the 
reality is we needed to deal with terrorism insurance and this 
legislation does just that.
  Again, I thank the President of the United States. I have been 
critical of the President on numerous occasions. He deserves 
commendation here. But for his efforts and his staff to pull this 
together, we would not be talking about a final product. I am very 
grateful to him and to my colleagues and staff for their work.
  I would like to particularly thank Alex Sternhell of my staff who 
worked tirelessly on this product for the past year to try to get us to 
a point where we can pass terrorism insurance.
  Again, I thank those who have contributed so much to this conference 
report.
  Senator Sarbanes, Chairman of the Banking Committee, has played an 
invaluable role. Other conferees, Senators Schumer and Jack Reed, were 
critical to reaching consensus on this important legislation. Senators 
Corzine, Clinton, and Ben Nelson also make important contributions.
  I would also like to acknowledge the hard work of Senators Daschle 
and Reid, who tirelessly shepherded this bill through the legislative 
process. I would like to thank my colleagues in the House, Mike Oxley 
and John LaFalce.
  Also, Treasury Secretary Paul O'Neill and Undersecretary Peter Fisher 
and other members of the Treasury Department--Pat Cave, Laura Cox, Ed 
DeMarco, Mario Ugoletti--who put in long hours in order to ensure that 
the mechanics of the Federal backstop created in this conference report 
are sound.
  And lastly, I would like to thank the staffs of the Senate and House 
who played a critical role in this conference report:
  Sarah Kline, Aaron Klein, Didem Nasanci, Polly Trottenberg of the 
Senate Banking Committee.
  Terry Hains, Robert Gordon, Charles Symington, Michael Paese, and 
Lawranne Stewart of The House Financial Services Committee.
  I would also like to recognize two members of the Legislative 
Counsel's office Laura Ayoud and Paul Callen, who have performed their 
duties so capably and in a nonpartisan fashion that is so important to 
the legislative process.
  This conference report is about economic security. As important as 
our physical security is, our economic security is critically 
important. This conference report is an important piece of ensuring our 
nation's economic security. I look forward to the coming hours and days 
when the President will sign this bill into law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Madam President, I understand I have 15 minutes on this 
bill.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. SARBANES. Does the Senator also seek to speak on this bill?
  Mr. SPECTER. Madam President, if I may respond, I will seek 
recognition. I will be glad to wait until the Senator from Maryland 
concludes. I do intend to seek recognition to speak on the homeland 
security bill.
  Mr. SARBANES. Will the Senator allow us to use up the time that we 
have on this bill--I have 15 minutes and Senator Dodd has 5 left--so we 
can complete the consideration of that?
  Mr. SPECTER. I would be agreeable to that. If I might propound a 
unanimous consent that, at the conclusion of the 20 minutes referred to 
by the Senator from Maryland, I be recognized for 20 minutes which I 
have on homeland security.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. I thank the Chair. And I thank my colleague from 
Maryland.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Madam President, let me try to parcel out the time 
here.
  The Senator needs 3 minutes, as I understand it.
  Mr. SCHUMER. Yes.
  Mr. SARBANES. And the Senator from New Jersey needs 3 minutes. And 
the Senator from Rhode Island?
  Mr. REED. Three minutes.
  Mr. SARBANES. That is 9 minutes. And the Senator from Nebraska, 3 
minutes?
  Mr. NELSON of Nebraska. Yes.
  Mr. SARBANES. Madam President, I yield 3 minutes each to Senators 
Schumer, Corzine, Reed, and Nelson of Nebraska, and reserve the other 3 
minutes for myself. And then Senator Dodd, I think, still has just 
under 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SARBANES. I will use my time at the end.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Madam President.
  I thank my chairman of the Banking Committee for yielding. I want to 
make a few brief points both on terrorism insurance and on homeland 
security.


                           Homeland Security

  First, on homeland security, briefly, I will vote for the bill. I 
think it is a far-from-perfect measure. In fact, reorganizing the 
Government does not really do most of the job we need to do. It will 
not make the computers at the INS put those on a terrorist watch list 
on that list. It will not make the Coast Guard patrol out to 200 miles.
  We are going to have to spend some dollars. And we are going to have 
to do some work within the agencies after we reorganize them.
  So it is a first step. It is better than nothing, but I hope and pray 
that this Nation will understand that if we just do this on homeland 
security, and nothing else, we are woefully unprepared. When we come 
back in January, it ought to be our highest priority.


                          Terrorism Insurance

  Madam President, on terrorism insurance, I, first, thank my 
colleagues from Maryland, Connecticut, New Jersey, Rhode Island, 
Nebraska, and everyone else who worked so long and hard on this 
legislation. This is vital to our cities and our country.
  Right now, there are hundreds of thousands of construction jobs not 
filled because there is no terrorism insurance. There are billions of 
dollars worth of construction projects not being undertaken because we 
do not have terrorism insurance. And there are higher costs for even 
those who can get terrorism insurance, putting a large crimp in the 
economy.
  Right now, when our economy is swishy soft, this insurance bill is 
the shot in the arm the economy needs. Thankfully, at this last hour, 
after the perils-of-Pauline voyage that took over a year, this bill is 
about to pass this Chamber, be put on the President's desk, and be 
signed into law.
  It comes none too soon because we desperately need it. We need to 
allow our companies to know that if, God forbid, there is a second 
terrorist incident--we hope and pray there isn't--

[[Page 22991]]

the Government will be there as a backup.
  To some of the ideologues who have opposed this bill, I would suggest 
to them that the Government has always been behind insurance in times 
of war. We have always had that. And this new terrorism is a time of 
war.
  To those who say, well, let the market take over, we never did that 
under huge and new circumstances out of the control of individuals, 
without any predictive ability. So insurance companies have no 
knowledge of what they face.
  We are going to have to do more. We are going to have to deal with 
life insurance. We are going to have to deal with workers' compensation 
insurance. All of these things, in this brave, new post-9/11 world, 
need some Government help and Government involvement or the economy 
will come to a standstill.
  So I want to say, thank God we passed this bill. My city and State, 
many of the larger cities and States throughout the country, 
desperately need it. We hope it will move to the President's desk 
quickly and be signed into law and remove a major roadblock on the path 
to recovery that this country needs.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SCHUMER. Thank you, Madam President. Again, I thank the Senator 
from Maryland for his generous yielding of time.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Madam President, I thank Chairman Sarbanes for yielding me 
time. But also I thank and commend my colleagues who worked so 
diligently on this important legislation: Senators Schumer, Corzine, 
and Nelson of Nebraska, and particularly Senator Dodd. Senator Dodd 
really led the charge on this important effort, and together with his 
electoral reform legislation, he has made major contributions in this 
session. I commend him and thank him for his leadership.
  This is a vitally important issue. After September 11, the reaction 
of the insurance industry to the potential of terrorist attack was 
contraction coverage. Premiums went up, coverage has shrunk, and many 
organizations, particularly many properties, could not secure 
insurance. That inhibited economic growth, and that inhibition 
continues to weigh on our economy.
  This legislation, we hope, and I hope, will go a long way to start 
reviving activity, particularly construction activity and real estate 
activity. But the effects of this legislation go beyond simply the 
property market and the real estate market.
  One of the interesting aspects of the 9/11 attacks was the fact that 
workers' compensation insurance was put at risk because, as you 
realize, workers' compensation, under law, must cover practically all 
injuries to workers. And if there is a terrorist event in a particular 
locale, it is likely that hundreds, perhaps even thousands, of workers 
could be injured. Those liabilities fall on very few companies. Without 
reinsurance, those companies cannot operate.
  In my home State of Rhode Island, there is one workers' compensation 
insurance company which is actually a quasi-governmental entity. It is 
supported by the State. If that company failed, literally the State of 
Rhode Island would be on the hook to provide the resources to pay 
workers' compensation claims. It would be a great blow to my State.
  This legislation also provides help and reinsurance for workers' 
compensation claims. So it is legislation whose effect, and beneficial 
effect, will go throughout our entire economy. It will help, I hope, to 
stimulate economic activity. And it certainly will give, I hope, 
business men and women the confidence to, once again, undertake real 
estate projects, undertake economic activity, and do those things which 
are so essential for our continued economic prosperity.
  Once again, this has been a long and arduous process. It has taken 
months. It has been the result of great effort and great diligence and 
great patience by my colleagues, again, particularly by Senator Dodd.
  I am pleased we are passing it this evening. I hope the President 
will sign it quickly. I hope we can get on to other legislation that 
will assist our economy in a material way, in a positive way.
  I thank the Senators, and I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.


                           Homeland Security

  Mr. CORZINE. Madam President, I, too, want to speak to the terrorism 
insurance legislation, but I also would like to make a brief comment 
with regard to homeland security.
  I will be voting to support the creation of the Department of 
Homeland Security. Like many of my colleagues, this was a close call. 
Unfortunately, there were far too many adds to what was presented to us 
in this 484-page document, things that were really special interests, 
not the people's interests. They have been enumerated with regard to 
pharmaceuticals, colleges and universities, et cetera. It is 
unfortunate. And there are many details that are left out with regard 
to chemical plant security, nuclear powerplants, railroads, other 
issues that I think are vital.
  Finally, we really have not dealt with the appropriations process to 
make sure that our first responders, the people who really are fighting 
the war on terrorism day to day have the resources to do their job. It 
is not even dealt with in this 484-page effort, and it is a serious 
shortcoming. It will move the ball down the field, but we are not where 
we should be. We have a lot of work to do. It is unfortunate that we 
have done it, in my view, in a halfhearted way here.


                          Terrorism Insurance

  Madam President, with regard to terrorism insurance, this is about 
the economy. It really is quite simple. This was never about the 
insurance industry. This was about making sure that investments would 
go forward in the construction, commercial real estate field. It was 
about making sure there was not a tax on the consumer, on everything 
from whether you went to a football game, or any kind of process you 
needed to have terrorism insurance to make sure that our economy is 
working efficiently. This was missing since September 11. And it is 
absolutely essential that we got to this compromise.
  I cannot tell you, cannot tell my colleagues, how proud I am to have 
seen the tremendous work that both Senators Sarbanes and Dodd performed 
to try to get a compromise.
  The holdup on this was never about the need to push forward to 
protect our economy, to support our industry. This was about tort 
reform, issues that really were relevant to protecting the economic 
security of the American people. Their tenacity, their effectiveness in 
negotiating compromise has led to a great result. I can only say 
congratulations to them, to the others who helped bring it about. The 
President was certainly at the forefront.
  I hope my colleagues will support the terrorism insurance 
legislation. I am very appreciative of the help of my senior 
colleagues.
  The PRESIDING OFFICER. The Senator from Nebraska.


                          Terrorism Insurance

  Mr. NELSON of Nebraska. I thank my esteemed colleague from Maryland 
for the opportunity to rise today in strong support of the conference 
report to S. 2600. I commend Senator Dodd and all those who have worked 
to bring this together after having passed it earlier. It is now a 
great opportunity for us to come back and pass it in its final form.
  It is about the economy; it is not simply about insurance. The 
economic impact of the events of September 11 have had a continuing 
devastating impact on our commercial real estate market, mortgage 
lenders, the construction industry, the investment community, and other 
segments of our economy. Many of these areas have yet to recover and do 
not look for recovery for a long time.
  Fundamentally, this is a jobs bill. It is just one small step 
Congress can take to help stimulate our weak economy by providing this 
Federal backstop--not a bailout--for catastrophic losses resulting from 
acts of terrorism in the future.

[[Page 22992]]

  It is estimated that the property damage alone from the attack on the 
World Trade Center is about $50 billion. While the carriers involved in 
this loss have indicated they could cover these losses while 
maintaining their solvency, we can only speculate as to where and when 
the next attack might come and the nature and extent of the damages. 
Without this backup, all insurers providing this coverage, if they do 
provide it, will only risk not being able to respond to the next loss.
  The underlying premise of insurance is the ability of the insurer to 
assess the nature and the extent of the loss, applying actuarial 
principles, the historical approach to determine the likelihood of 
loss, and then calculating the premiums necessary to build reserves 
sufficient to cover that loss. Clearly, under these circumstances, 
without a historical perspective, there is no way for insurers to 
realistically underwrite for the risk of terrorist attack.
  Who among us knows where or when the next event might occur, what the 
nature of the attack might be, and what type and extent of loss might 
be sustained? Will it be primarily property damage? Will it be massive 
loss of life in a concentrated area such as we had with the World Trade 
Center? Will it be a chemical or biological agent released or will it 
be a dirty bomb? These are the questions to which we don't know the 
answers.
  The fact is, we cannot make those decisions without knowing what the 
opportunity will be for the next terrorist attack. We all hope there 
won't be one, but insurance is against that kind of loss that you don't 
necessarily expect but you anticipate could in fact happen. The long-
term effect on our industry would be devastating.
  I hope we will all rise today in support of this important 
legislation. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Madam President, I am pleased that we will shortly, I 
assume, be passing this legislation, although I understand we have to 
go through a cloture vote prior to reaching the legislation itself. I 
wanted to underscore that this represents an extraordinary effort on 
the part of many people. I particularly recognize the leadership my 
able colleague from Connecticut, Senator Dodd, provided on this issue. 
We have been working at this now for about a year. So it has been a 
long time coming. It is fair to say that we would never have reached 
this point without Senator Dodd's commitment to this issue and his 
tireless efforts with respect to this legislation.
  I also thank the majority leader, Senator Daschle, who was 
consistently trying to get terrorism insurance legislation, despite 
efforts by many to turn it into something over and above that.
  Senators Schumer and Reed, our colleagues on the conference 
committee, made significant efforts to move the bill forward. And also 
Senator Corzine, although he wasn't on the conference committee, was 
very closely involved in developing this legislation. Of course, 
Chairman Oxley and Congressman LaFalce, our colleagues in the House, 
were obviously instrumental in moving the legislation through the other 
body.
  I also want to take a moment to underscore the outstanding work done 
by staff on this legislation. We come to the floor and, of course, 
Members are deeply involved. And I particularly underscore Senator 
Dodd's efforts in this regard. But there are staff who back us all up.
  I particularly want to recognize from the Banking Committee staff 
Sarah Kline, Aaron Klein, and Alex Sternhell, who worked literally day 
and night on this matter. Also Steve Harris, Marty Gruenberg and Steve 
Kroll, and the staff of our conferees: Didem Nisanci from Senator 
Reed's office, and Polly Trottenberg from Senator Schumer's office; and 
while he was not a conferee, Senator Corzine's staffer, Roger 
Hollingsworth, also participated throughout.
  I also want to recognize the hard work and the professionalism that 
our legislative counsels brought to this process: Laura Ayoud from the 
Senate legislative counsel's office, who is just an outstanding 
professional and renders great service to this body, and Paul Callen 
from the House legislative counsel's office. Laura Ayoud stayed up all 
night working on this legislation. I simply want to underscore that.
  We have had strong support for this legislation from the 
administration. The President has indicated that he will sign it. The 
administration was instrumental in dealing with some of the objections 
that were actually raised more with respect to items that are not in 
the legislation rather than items that are in it. In the course of 
this, we have developed a piece of legislation which I believe will 
address the challenge that confronts us.
  We have had troubling reports about the availability of terrorism 
insurance, and the impact of that upon the economy.
  Since the tragic attacks of September 11th, many property and 
casualty insurers are excluding coverage of losses from acts of 
terrorism from the policies they write. In those cases where terrorism 
insurance is available, it is often unaffordable, and very limited in 
the scope and amount of coverage. The Banking Committee explored this 
issue in two days of hearings shortly after the attacks, in which we 
heard from Treasury Secretary O'Neill, CEA Chairman R. Glenn Hubbard, 
insurance regulators, business and insurance leaders, and outside 
experts. The testimony of these witnesses helped to define the scope of 
the problem in the insurance marketplace and to shape our thinking on 
the appropriate solution.
  The fact that so many properties are uninsured or underinsured 
against the risk of terrorism could have a negative effect on our 
economy and our recovery if there were to be another terrorist attack. 
In the event of another attack, many properties would have to absorb 
any loses themselves, without the support of insurance. As a result, 
the GOA has observed, ``another terrorist attack similar to that 
experienced on September 11th could have significant economic effects 
on the marketplace and the public at large.''
  But even in the absence of another attack, the lack of insurance can 
hinder economic activity. The GAO has found example of ``large projects 
canceling or experiencing delays . . . with a lack of terrorism 
coverage being cited as a principal contributing factor.''
  Most industry observes are of the opinion that, given time, the 
insurance industry will develop the capacity and the experience that 
will allow them to underwrite the terrorist risk. However, those 
conditions do not appear to exist today. In the interim experts believe 
that a Federal reinsurance backstop of limited duration would give the 
insurance markets the necessary time to stabilize.
  The conference report before us establishes a temporary, three-year 
backstop under which the Federal Government will share the risk of loss 
from future terrorist attacks with the insurance industry. The program 
is triggered when the Secretary of the Treasury, in concurrence with 
the Secretary of State and the Attorney General, certifies that an 
event meets the definition of an act of terrorism provided in the 
legislation.
  The Terrorism Insurance Program requires that insurers pay a share of 
losses before Federal assistance becomes available. Each insure that 
suffers losses in a terrorist attack will be responsible for paying out 
a certain amount in claims--an insurer deductible--based on a 
percentage of that insurer's direct earned premiums from the previous 
calendar year. Beyond their deductibles, insurance companies will 
continue to have `skin in the game,' as they will be liable for a 
copayment for additional losses. For losses above an insurer's 
deductible, the Federal government will cover 90 percent while the 
insurer will pay 10 percent.
  These provisions are intended to create partnership between insurers 
and the Federal Government in the event that losses occur. By requiring 
companies both to cover initial losses and to continue to share in 
additional losses, this program provides the coverage and

[[Page 22993]]

the certainty of the Federal backstop while also providing incentives 
to promote a healthy private market. And while no system is perfect, 
the legislation grants the Treasury Secretary certain powers, such as 
the ability to audit and inspect claims, that are necessary to protect 
the government against unscrupulous behavior. It is our intent that 
insurers do not alter their behavior in an attempt to procure more 
value from this program than they would otherwise receive from the 
course of their natural business practices.
  In addition to limiting the exposure of individual insurance 
companies, the legislation also includes certain mechanisms to limit 
the exposure of the Federal Government, first by requiring the 
insurance marketplace as a whole to absorb a prescribed amount of any 
terrorism losses--$10 billion for year 1; $12.5 billion for year 2; and 
$15 billion for year 3--and second, by capping total losses covered by 
the program at $100 billion per year. Any Federal payments made before 
the prescribed insurance marketplace retention is reached must be 
recouped by the Secretary of the Treasury through a policyholder 
surcharge.
  One of the guiding principles of this bill is that, to the extent 
possible, state insurance law should not be overridden. To that end, 
the bill respects the role of the state insurance commissioners as the 
appropriate regulators of policy terms and rates. Each state 
commissioner currently has the responsibility to ensure that insurance 
rates are not inadequate, unfairly discriminatory, or excessive, and 
this legislation does not change that responsibility.
  At the same time, in order to ensure that the Federal program will 
work as intended, certain Federal requirements are needed to ensure 
that consumers of terrorism insurance will benefit from this program.
  For example, insurance companies will be prohibited from 
discriminating amongst their policyholders by picking and choosing 
which ones to cover for terrorism. The bill requires that insurance 
companies must offer terrorism coverage in all of their property and 
casualty policies during the first two years of the program. The 
Secretary has discretion to extend their important requirement to the 
third year of the program.
  In addition, insurers must provide policyholders with clear and 
conspicuous disclosure of the premium charged for terrorism coverage 
and the existence of a sizeable Federal backstop. This disclosure is 
intended to enhance the competitiveness of the marketplace by allowing 
consumers to comparison-shop for the best rate on terrorism insurance. 
In addition, the disclosure is intended to make policyholders aware 
that the Federal Government will be sharing the costs of terrorism 
losses with their insurers, to help the policyholders assess the 
appropriateness of the premium being offered.
  Moreover, the bill ensures that the State regulators and the Federal 
Government will have access to the information needed to assess the 
impact of this program on insurance consumers. The Secretary is 
required to compile annually information on the terrorism risk premiums 
being charged by insurers].
  This is a limited bill in duration. Of course, the objective is that 
by the end of that time, the insurance market will have come fully back 
into play and that these matters can be dealt with in a more 
traditional way.
  But as the Senator from Connecticut has pointed out frequently, as we 
have addressed the issue over the course of this last year, we face 
extraordinary circumstances created by the risk of terrorism. This 
legislation represents a reasonable and rational response to this 
challenge.
  I urge my colleagues to support this legislation.
  The PRESIDING OFFICER. The Senator has used 2 minutes.
  The Senator from Connecticut.
  Mr. DODD. I have 2 minutes remaining?
  The PRESIDING OFFICER. Two and a half minutes remaining.
  Mr. DODD. Madam President, let me again thank my colleagues for their 
work. I mentioned Mike Oxley of Ohio, chairman of the House Banking 
Committee, and John LaFalce. John LaFalce and I were elected to 
Congress together back in the 1970s. He has made a decision to retire 
from his service in the Congress. I thank him for a remarkable record 
of public service over the more than 2\1/2\ decades.
  I also thank some of the White House staff in addition to our own 
staff here. I include all the names in the remarks I have already 
submitted. I want to thank Nick Calio and Matt Kirk of the White House 
legislative operations. I commend them for their efforts.
  They helped to broker this final agreement. You need to have people 
at the executive branch who are willing to try to put pieces together. 
They are two very professional staff people. The President is fortunate 
to have them working with him. I know that in the process of doing so, 
they disappointed some. I know how they strongly agreed with some of 
the people they disappointed on substantive matters but believe they 
are serving their President and the country well in coming to a final 
conclusion that is fair to all. I thank them for their professionalism 
and straightforwardness in dealing with these difficult matters.
  I thank Senator Daschle and Senator Lott for their leadership as 
well. Both leaders have done a very fine job.
  Mark Childress of Senator Daschle's staff was tremendously helpful on 
this legislation. Senator Sarbanes is absolutely correct that we don't 
often give those staff members who put in countless hours on matters 
like this the credit they deserve. But were it not for Mark and Senator 
Daschle's other staff members working with Alex Sternhell of my office, 
and Senator Sarbanes' staff, we would not have been able to achieve 
this result.
  This conference report is about economic security. As important as 
our physical security is, our economic security is critically 
important. This conference report is an important piece of ensuring our 
nation's economic security. I look forward to the coming hours and days 
when the President will sign this bill into law.
  I yield the floor.
  Mr. SPECTER. Madam President, I have sought recognition to comment 
about the legislation on homeland security, which I believe the Senate 
is about to pass. It has been accurately characterized as historic 
legislation. It reorganizes the Government of the United States of 
America to meet the threat of terrorism.
  On September 11, 2001, this country sustained a devastating loss, a 
loss deeply emblazoned on the minds of all Americans. With the attacks 
on the World Trade Center, the attack on the Pentagon, and the plane 
that went down in Somerset County, PA, it was obvious that we faced a 
very extraordinary threat.
  We should have taken action against al-Qaida long before September 
11. There were many warning signals available. Osama bin Laden was well 
known for his jihad against the West, against our values, against our 
civilization. Osama bin Laden was indicted for killing Americans in 
Mogadishu in 1993. Osama bin Laden was indicted for blowing up the U.S. 
embassies in Africa in 1998. He was known to have been involved with 
al-Qaida and the terrorism against the destroyer Cole, and he had made 
his announcement of his worldwide jihad.
  But the United States has historically been reluctant to take 
preemptive action. We did little in responding to the attacks on the 
embassies of August 20, 1998. When we sent a missile to Afghanistan, it 
went to an empty factory. When we put a missile in a factory in the 
Sudan, it may or may not have been a factory with chemical weapons. But 
then, with the events of 9/11, it became apparent that we had to 
respond, and we had to respond very dramatically and emphatically.
  Senator Lieberman and I introduced legislation on October 11, 2001--
exactly 1 month after the 9/11 attack. It was apparent to many of us at 
that time that we needed to have an office of homeland defense and a 
Secretary with power to deal with the many agencies

[[Page 22994]]

that would be involved. First and foremost among those agencies, in my 
view, was the coordination of activities among our intelligence 
agencies.
  When I was chairman of the Intelligence Committee in the 104th 
Congress, I introduced legislation in 1996 to bring all of the 
intelligence agencies under one umbrella, under the Director of Central 
Intelligence. That had been the spot that was supposed to coordinate 
all of the intelligence activities.
  But the fact of the matter was that the Director of the CIA did not 
have that authority because there were too many independent agencies--
the Defense Intelligence Agency, the National Security Agency, the 
counterintelligence of the FBI, intelligence units in the State 
Department, and intelligence units spread throughout the Government--
and there were fierce battles on turf, and the coordination was not 
undertaken.
  As a result of not having all of the intelligence agencies under one 
umbrella, the United States paid a very heavy price. It is my view that 
had all of the dots been on the board, had there been coordination at 
all of these intelligence agencies under one umbrella, we might well 
have prevented September 11.
  After the fact, we learned that in July there was a very important 
FBI report coming out of Phoenix, AZ, about a suspicious man taking 
flight training, and he had a big picture of Osama bin Laden in his 
living quarters. That memorandum was buried somewhere in the FBI 
headquarters. We found out after the fact that the CIA had information 
on two al-Qaida agents at Kuala Lumpur. The CIA did not tell the FBI or 
the Immigration and Naturalization Service that those agents came into 
the United States, and they were two of the suicide bombers on 9/11.
  There was information about a man named Zacarias Moussaoui. The FBI 
field office in Minneapolis made an effort to get a warrant under the 
Foreign Intelligence Surveillance Act. They never got the warrant. They 
were using the wrong standard. They were using a standard of probable 
cause of 51 percent. The FBI agent testified that the U.S. attorney in 
Minneapolis thought he had to have a 75- to 80-percent probability.
  The fact is that, under the law, Gates v. Illinois, an opinion by 
Justice Rehnquist--now the Chief Justice, then an Associate Justice on 
the Court--says that probable cause is judged by the totality of the 
circumstances and suspicion, and had the warrant been obtained under 
the Foreign Intelligence Surveillance Act, the computer of Zacarias 
Moussaoui was a virtual treasure trove of information.
  Then a man named Murad, a Pakistani, a member of al-Qaida, gave a 
statement in 1995 that al-Qaida had plans in 1995 to load explosives on 
an airplane and fly them into the White House or into the CIA. Then you 
had the experience with the trade towers themselves, attacked in 1993 
by al-Qaida's agents. They had made an effort to blow up one of the 
towers to try to topple into the other tower to destroy them both. It 
was known that they were very unhappy about their failure.
  So the risks were present, but there was not coordination. We didn't 
bring all of those dots onto one screen. When FBI Director Mueller 
testified before the Judiciary Committee in early June, I asked him 
about all of these facts and concluded that there was a veritable 
blueprint had all of these dots been put together. That is what we have 
an opportunity to do now with homeland security, under the direction of 
the Secretary of Homeland Security.
  I had submitted an amendment, which would have given the Secretary 
greater authority than is present in the existing bill. The Secretary 
of Homeland Defense, under the existing legislation, may request that 
the agencies coordinate, but the Secretary does not have the authority 
to direct, and I believe that is a significant failing in this bill.
  When the House of Representatives passed a homeland security bill 
last Wednesday and, in effect, left town, sending a bill to the Senate, 
it was pretty much a matter of take it or leave it. If I had pressed my 
amendment to do what I thought was a very important improvement, to 
give the Secretary authority to direct all of these agencies, the bill 
would have had to go back to conference, and the Members of the House 
of Representatives had dispersed. They are present only in pro forma 
session. They can take some technical amendments without reconvening, 
but to press a substantive amendment would have sent the matter back 
for a conference, and it would have delayed the matter perhaps as long 
as April of next year.
  I had a long discussion on this matter with homeland security 
adviser, former Governor Tom Ridge, and pressed the point. Then I 
discussed the matter with Vice President Cheney and sought some sort of 
a commitment that the administration would look favorably upon this 
kind of an amendment when we reconvened. The Vice President said he 
could not speak for the President. I talked to President Bush, who 
urged me not to press the amendment, and I told him I would not because 
I did not want to tie up the bill. I did not want to put on a 
substantive amendment that would have required a conference.
  Early in the 108th Congress, I will refile that amendment to give the 
Secretary of Homeland Security the authority to direct these agencies 
because I am still concerned about their turf battles. Turf battles in 
Washington, DC are endemic and epidemic. It is too serious a matter to 
engage in turf battles any longer. Now is the time where we have to use 
all of our resources to prevent another attack.
  We have made very significant advances on a number of lines--on the 
Border Patrol, the Immigration and Naturalization Service. We put up $3 
billion last year on serums to deal with smallpox and anthrax, such as 
Cipro. That came through the Subcommittee on Labor, Health, Human 
Services, and Education. Senator Harkin, then the chairman, and I, 
ranking member, took the lead in putting up that money. All of these 
precautions in building up the hospital infrastructure and giving 
assistance to the fire departments is vital. Having coordination with 
Federal, State, and local authorities is vital, but if we have to 
respond to an attack, if we do not prevent an attack, then we will be 
in very bad shape. That is why I do believe our efforts have to be 
directed to preventing another attack.
  I discussed also with the administration, with Governor Ridge, Vice 
President Cheney, and President Bush the labor-management relations 
issue. I believe we could have worked out an accommodation which would 
have been satisfactory to all parties.
  When we had the amendment offered by the Senator from Nebraska, Mr. 
Nelson, cosponsored by Senator Chafee and Senator Breaux, there was 
initial confusion as to whether the two paragraphs of the Breaux 
amendment, which incorporated the so-called Morella amendment from the 
House bill, was in place of, substituted for, or in addition to.
  In a colloquy with the distinguished Senator from Connecticut, we 
established the amendment was in addition to and did not remove the 
President's national security authority to take steps if national 
security was endangered. That model could have been applied to the 
other five chapters on flexibility.
  The Subcommittee on Labor, Health, Human Services, and Education will 
schedule hearings promptly when we reconvene the 108th Congress to go 
into these issues, to have a thorough airing, have people from the 
Office of Personnel Management come in and explain what they need; to 
have labor representatives come in and explain what they have in mind, 
in order to work out an accommodation which is satisfactory for all 
parties to maintain a high level of morale.
  We also have to be concerned about provisions in this bill which 
could have the effect of trampling on civil liberties and 
constitutional rights. There is no doubt about the danger posed by al-
Qaida, but there is similarly no doubt that we cannot give up our civil 
liberties and our constitutional rights

[[Page 22995]]

in our efforts to combat al-Qaida. If we do that, if we give up our 
civil liberties, al-Qaida would have, in effect, won.
  There is an ongoing responsibility for oversight, and that 
responsibility will fall on the shoulders of the Governmental Affairs 
Committee and the Judiciary Committee to see to it that the detention 
of aliens is based upon some reason; to see to it that if American 
citizens are tried in a military court that there is an observance of 
constitutional rights. There is grave concern in America that we be 
protected from another terrorist attack, but there is also grave 
concern that we be careful in the preservation of our civil liberties.
  Madam President, how much of my 20 minutes remains?
  The PRESIDING OFFICER. Six minutes and 26 seconds.
  Mr. SPECTER. Madam President, I notice the Senator from Connecticut 
has come to the Chamber. In his absence, I had commented that the 
Senator from Connecticut, Senator Lieberman, and I, had introduced 
homeland security back on October 11, 2001.
  There was resistance in many quarters to having a Department of 
Homeland Security. Governor Ridge, at that time, and I had discussed 
the matter. I have worked very closely with Tom Ridge for many years--
12 years in the Congress and two terms as Pennsylvania's distinguished 
Governor. Governor Ridge said he was sure the people would not say no 
to the President; he could walk down the hall, and he could solve the 
problems.
  I had a view, having been chairman of the Intelligence Committee and 
knowing what goes on in the CIA, that it was not going to be that easy; 
that the man in charge of homeland security really needed some muscle.
  Having worked on the Judiciary Committee chairing the oversight 
committee on the FBI, I knew the problems there. I knew the turf 
battles, and I thought the adviser in charge of homeland security 
needed some muscle.
  Senator Lieberman and I constructed that bill, when we had hearings. 
We reintroduced an updated version last May, and it has had a number of 
developments. I do believe it is going to be necessary to revisit some 
provisions. I mentioned two--the authority of the Secretary to direct 
the intelligence agencies to consolidate under one umbrella, and a 
refinement of some of the provisions on labor-management relations.
  Then the House of Representatives passed a bill on Wednesday and sent 
it to the Senate on Thursday. Senator Lieberman offered an amendment to 
strike which was voted upon earlier today.
  I agreed with a great deal of what Senator Lieberman had to say. I 
felt it necessary to vote against Senator Lieberman's amendment because 
that would have called for a conference, the appointment of conferees, 
and great delay. It could have been delayed until April.
  We have been asked a lot of questions about this. Yesterday in 
Pennsylvania in a number of meetings, a number of people asked me about 
it. I told them about the old statement: You never want to see 
legislation or sausage made. If you saw what the House of 
Representatives did, the bill they sent over here and some of its 
provisions gave sausage a bad name. But we are going to work through 
it. We are going to pass the bill.
  It is not unusual for the Congress, for the Senate to be confronted 
with a bill which has a lot of clunkers, which has a lot of problems, a 
lot of major disadvantages. Then we have to make a public policy 
determination as to whether the advantages outweigh the disadvantages.
  In my judgment, it is not even a close call at this point. We have to 
have a Department of Homeland Security to protect America.
  Again, I compliment my colleague from Connecticut. I compliment the 
Senator from Tennessee, Mr. Thompson, for the tremendous job he has 
done on the bill, and the Senator from Texas, Mr. Gramm, and his swan 
song. It is a tough legislative battle, but before the stroke of 
midnight, I believe we will have moved ahead. I am told by the White 
House that the President intends to sign this bill early next week. He 
is not going to let any grass grow under anybody's feet. We are going 
to do our best to protect America and try to prevent another terrorist 
attack.
  I yield the floor.


                             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.
  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

[[Page 22996]]

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 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

[[Page 22997]]

     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 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.

[[Page 22998]]


  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 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

[[Page 22999]]

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 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

[[Page 23000]]

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 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

[[Page 23001]]

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 23002]]

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

[[Page 23003]]

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 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

[[Page 23004]]

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 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

[[Page 23005]]

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 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

[[Page 23006]]

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, 
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

[[Page 23007]]

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 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

[[Page 23008]]

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 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.
  On 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

[[Page 23009]]

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. 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.

[[Page 23010]]


  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 
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 of 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 sound 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

[[Page 23011]]

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 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.

[[Page 23012]]

  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 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

[[Page 23013]]

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 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

[[Page 23014]]

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 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

[[Page 23015]]

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 
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.

[[Page 23016]]

  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 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

[[Page 23017]]

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 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.

[[Page 23018]]

  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 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.

[[Page 23019]]

  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, 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

[[Page 23020]]

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 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

[[Page 23021]]

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 
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

[[Page 23022]]

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 released by Senators 
Hart and Rudman.
  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.

[[Page 23023]]

  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 operate 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 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

[[Page 23024]]

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.
  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

[[Page 23025]]

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 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

[[Page 23026]]

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.
  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

[[Page 23027]]

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.
  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.

[[Page 23028]]

  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

[[Page 23029]]

formula. Under that bill, management could deprive transferred 
employees of their collective bargaining rights if 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

[[Page 23030]]

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 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

[[Page 23031]]

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 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

[[Page 23032]]

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.
  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?''

[[Page 23033]]

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 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

[[Page 23034]]

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 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

[[Page 23035]]

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 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

[[Page 23036]]

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 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,

[[Page 23037]]

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 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. vulnera-
bilities.
  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

[[Page 23038]]

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 compro-
mise 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 com-pro-mise 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 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

[[Page 23039]]

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.
  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

[[Page 23040]]

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 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 vulnera-
bilities 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

[[Page 23041]]

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 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 prioriti-
zation 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 prioriti-
zation 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.

[[Page 23042]]


  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 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

[[Page 23043]]

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 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

[[Page 23044]]

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 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.

[[Page 23045]]

  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 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,

[[Page 23046]]

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.
  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.

[[Page 23047]]

  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 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

[[Page 23048]]

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 
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

[[Page 23049]]

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.
  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.

[[Page 23050]]

  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.
  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

[[Page 23051]]

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 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.

[[Page 23052]]

  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 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

[[Page 23053]]

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 
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

[[Page 23054]]

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.

[[Page 23055]]

            Subtitle B--Critical Infrastructure Information

Sec. 211. Short title.
Sec. 212. Definitions.
Sec. 213. Designation of critical infrastructure protection program.
Sec. 214. Protection of voluntarily shared critical infrastructure 
              information.
Sec. 215. No private right of action.

                    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.

[[Page 23056]]

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.
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.

[[Page 23057]]

       (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 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.

[[Page 23058]]

       (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.

      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.

[[Page 23059]]

       (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.
       (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,

[[Page 23060]]

     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);
       (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

[[Page 23061]]

       (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 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.

[[Page 23062]]

       (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 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;

[[Page 23063]]

       (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:
       (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

[[Page 23064]]

     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.
       (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.

[[Page 23065]]

       (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.--
       (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

[[Page 23066]]

     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 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.

[[Page 23067]]

       (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 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.

[[Page 23068]]



     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).
       (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.

[[Page 23069]]

       (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 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).

[[Page 23070]]

       (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.
       (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

[[Page 23071]]

     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 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.

[[Page 23072]]

       (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 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

[[Page 23073]]

     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 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;

[[Page 23074]]

       (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 are 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;
       (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

[[Page 23075]]

     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.
       (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:

[[Page 23076]]

       (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.

     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

[[Page 23077]]

     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).
       (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.

[[Page 23078]]

       (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 
     offices 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
       (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--

[[Page 23079]]

       ``(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--
       (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

[[Page 23080]]

     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 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

[[Page 23081]]

     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.
       ``(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

[[Page 23082]]

     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).

[[Page 23083]]



     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:
       (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.

[[Page 23084]]

       (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 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

[[Page 23085]]

     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 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.

[[Page 23086]]



     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 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.''.

[[Page 23087]]

       (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.
       (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

[[Page 23088]]

       (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.
       (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.

[[Page 23089]]

       (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 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

[[Page 23090]]

     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 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

[[Page 23091]]

     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.
       (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--

[[Page 23092]]

       ``(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
       ``(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)--

[[Page 23093]]

       (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.
       (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).

[[Page 23094]]

       ``(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 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

[[Page 23095]]

       ``(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
       ``(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.

[[Page 23096]]



     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.''.

     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

[[Page 23097]]

       (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 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;

[[Page 23098]]

       ``(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.
       (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).

[[Page 23099]]

       (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 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

[[Page 23100]]

     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.
       ``(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

[[Page 23101]]

     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.--
       (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--

[[Page 23102]]

       (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, 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.

[[Page 23103]]

       (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, 
     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''.

[[Page 23104]]

       (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 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.''.

[[Page 23105]]

       (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.

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