[Congressional Record (Bound Edition), Volume 155 (2009), Part 8]
[Senate]
[Pages 10863-10883]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. REID (for Mr. Kennedy (for himself, Mr. Leahy, Ms. Snowe, 
        Ms. Collins,  Mr. Specter, Mr. Schumer, Mr. Durbin, Mrs. 
        Feinstein, Mr. Levin, Ms. Mikulski, Mr. Whitehouse, Mr. Cardin, 
        Ms. Klobuchar, Mr. Lieberman, Mrs. Gillibrand, Mr. Merkley, Mr. 
        Reed, Mr. Nelson, of Florida, Mr. Kerry, Mr. Bingaman, Mr. 
        Dodd, Mr. Bayh, Mr. Udall of Colorado, Mrs. Shaheen, Mr. 
        Harkin, Mr. Brown, Mrs. Murray, Mr. Casey, Mr. Johnson, Mr. 
        Lautenberg, Mr. Nelson of Nebraska, Ms. Landrieu, Ms. Cantwell, 
        and Mr. Akaka)):
  S. 909. A bill to provide Federal assistance to States, local 
jurisdictions, and Indian tribes to prosecute hate crimes, and for 
other purposes; to the Committee on the Judiciary.
  Mr. KENNEDY. Mr. President, hate crimes harm innocent victims, 
terrorize entire communities, and threaten the very fabric of our 
nation. They send a poisonous message that some Americans deserve to be 
victimized solely because of who they are or who they are perceived to 
be. Hate crimes offend the fundamental ideals on which Nation was 
founded. They can not be tolerated in any free society, and it is long 
past time to enact legislation to correct the deficiencies in the 
current federal hate crimes statute.
  For far too long, law enforcement has been forced to investigate hate 
crimes with one hand tied behind its back. Now is the time to change 
this. This bill strengthens the Federal Government's ability to 
investigate and prosecute hate crimes. It removes the excessive 
restrictions currently existing in federal law. It offers Federal 
assistance for investigating and prosecuting hate crimes to State and 
local law enforcement. It provides training grants for local law 
enforcement to combat hate crimes committed by juveniles.
  The first Federal hate crimes statute was passed over 40 years ago in 
1968, soon after the assassination of Dr. Martin Luther King, Jr. It 
authorized the Federal Government to investigate and prosecute crimes 
committed against individuals because of their race, color, religion, 
or national origin. The original statute was a major advance in the 
march of progress, but it is now a generation out of date.
  The time has come to stand up for all victims of hate crimes--victims 
like Matthew Shepard, for whom this bill is named. Matthew died a 
horrible death in 1998 at the hands of two men who singled him out 
because of his sexual orientation. Since Matthew's murder, his mother 
has worked courageously to make sure that we never forget the suffering 
that her son endured, and to remind Congress that it has a 
responsibility to protect individuals like her son. Yet today, more 
than 10 years after Matthew's death--10 years--we still have not 
modernized our hate crimes laws. How long are we going to wait?
  The bill we are introducing today expands the current hate crimes 
statute and gives Federal, State, local, and tribal authorities greater 
ability to investigate and prosecute hate crimes effectively. The bill 
closes flagrant loopholes in the current statute that prevent or 
undermine the prosecution of the individuals who commit these vicious 
crimes.
  This bill broadens the original Federal hate crimes statute by 
prohibiting crimes based on a victim's actual or perceived sexual 
orientation, gender, gender identity, or disability.
  According to FBI statistics, hate crimes based on sexual orientation 
make up approximately 17 percent of all hate crimes. Considering that 
gays and lesbians make up approximately 3 percent of the population, 
the FBI statistics suggest that gays and lesbians are victimized at a 
rate approximately 6 times higher than that of the average American. 
Research suggests that hate-motivated violence against gay, lesbian, 
bisexual, and transgender citizens is particularly extreme. As these 
statistics and the research make clear, hate crimes are a very real 
danger to gay, lesbian, bisexual, and transgender citizens. We must 
act--without further delay--to correct these unacceptable deficiencies 
in current law and protect all citizens from these brutal crimes.
  Our bill also increases the Federal Government's ability to prosecute 
hate crimes. It removes the prerequisite that a victim be engaged in a 
``federally protected activity'' before the Federal Government can 
prosecute an offender under the statute. This restrictive provision is 
outdated, unwise, and unnecessary, particularly when one considers the 
unjust outcomes that can result from limiting prosecution to offenders 
to target victims participating in one or more of the following 6 
narrow categories of federally protected activity: attending or 
enrolling in a public school or public college; participating in a 
benefit, service, privilege, program, facility or activity administered 
by a state or local government; applying for or working in private or 
state employment; serving as a juror in a state court; using a facility 
of interstate commerce or a common carrier; or enjoying public 
accommodations or places of exhibition or entertainment. We know that 
individuals may be victimized while engaging in activities that are not 
included in this list of activities--they could be victims while 
engaging in routine activities, going about their normal day. Americans 
should be protected from hate crimes in everything they do. There 
should be no distinction between hate crimes occurring while a victim 
is engaged in a routine activity or one of the six specified federally 
protected activities described above.
  This bill corrects a gap in the current hate crimes statute that 
limits prosecution to offenders who interfere with a victim's 
participation in certain federally protected activities. In June 2003, 
six Latino teenagers went to a family restaurant on Long Island. The 
teenagers knew one another from involvement in community activities and 
have come together to celebrate a birthday. As the group entered the 
restaurant, three men who were leaving the bar assaulted the teenagers, 
pummeling one boy and severing a tendon in his hand with a sharp 
weapon. During the attack, the men yelled racial slurs and one 
identified himself as a skinhead. Two of the men were tried under the 
current Federal hate crimes law and were acquitted. The jurors said 
they acquitted the offenders because the Government failed to prove 
that using a restaurant was a federally protected activity. The result 
in this case is just one example of the inadequate protections provided 
under current law. The bill we introduce today will eliminate the 
federally protected activity requirement and give jurors greater 
ability to convict all perpetrators of hate crimes.
  The bill modernizes the Federal Government's ability to prosecute 
hate crimes, but it fully respects the primary role of state, local, 
and tribal law enforcement authorities in responding to hate crimes in 
their jurisdictions. The bill protects these local interests with a 
strict certification process, which requires the Federal Government to 
consult with state and local

[[Page 10864]]

officials before prosecuting a Federal case. In accord with 
certification, it is our belief that the vast majority of hate crimes 
will continue to be prosecuted at the State and local level.
  In addition, our bill authorizes the Justice Department to increase 
the number of Department personnel to prevent and respond to hate 
crimes. This increase will enable Federal authorities to develop the 
manpower necessary to act effectively to prevent and respond to hate 
crimes.
  The bill also authorizes the Justice Department to provide needed 
investigative resources to state and local law enforcement during these 
challenging economic times. This expansion of federal assistance is 
meant to supplement, not supplant, the efforts of state and local law 
enforcement authorities, so that hate crimes can be effectively 
investigated and prosecuted in the future.
  Hate crimes investigations tend to be expensive, requiring 
considerable law enforcement effort, and extensive use of grand juries. 
The bill expands the Justice Department's opportunity to provide 
support for these expenses. It authorizes the Attorney General to offer 
grants of up to $100,000 to help state, local, and tribal law 
enforcement officials manage the high costs of investigating and 
prosecuting hate crimes. It also authorizes the Justice Department to 
award grants to State, local, and tribal authorities for programs that 
combat hate crimes committed by juveniles, including programs designed 
to train local law enforcement officers in identifying, investigating, 
prosecuting and preventing hate crimes. These measures will help ensure 
that state and local authorities have the resources necessary to 
successfully combat and prosecute hate crimes.
  Collecting data on hate crimes is important for analyzing crime 
trends and tailoring effective criminal policy. Our bill increases the 
Federal Government's ability to monitor hate crimes by requiring the 
FBI to increase the statistics it collects about such crimes. 
Currently, the FBI collects hate crimes data on race, religion, sexual 
orientation, ethnic background, and disability. Our bill requires the 
FBI to collect new statistics on hate crimes based on an individual's 
gender or gender-identity, and hate crimes committed by juveniles. By 
increasing the amount of data collected by the FBI, we will be able to 
better understand the gravity of the hate crimes committed in our 
communities.
  Hate crimes are a festering problem, causing terror in neighborhoods 
across America. According to the most recent statistics released by the 
FBI, there were at least 9,527 victims of hate-motivated crimes in 
2007. Based on that number, an average of 26 victims per day were 
terrorized as a consequence of their race, religion, sexual 
orientation, ethnic background, or disability. The FBI's statistics 
reveal that race-related hate crimes are the most common type of hate 
crimes, comprising approximately 50 percent of all hate crimes reported 
to the FBI. That said, crimes based on religion, sexual orientation, 
and ethnic background occur with alarming frequency as well.
  These hate crimes statistics are disturbing, but they represent only 
the tip of the iceberg of hate crimes occurring in America. The 
Southern Poverty Law Center, the Human Rights Campaign, and the US 
Bureau of Justice Statistics agree that the FBI's hate crimes numbers 
do not reflect the actual number of hate crimes occurring in our 
communities each year. The Southern Poverty Law Center estimates that 
the annual number of hate crimes committed in the U.S. is close to 
50,000. In addition, the Human Rights Campaign states that a hate crime 
occurs every 6 hours. Survey data from the Bureau of Justice 
Statistics' biannual National Crime Victimization Survey estimates that 
an average of 191,000 hate crime victimizations take place each year. 
Based on this survey, over 540 people are victimized each day, based on 
their race, religion, sexual orientation, ethnic background, or 
disability--more than 22 victims per hour. These statistics are not 
just shocking--they are shameful. It is time for Congress to 
specifically address the serious problem of hate crimes in America.
  In addition to the legal impact of this bill, its symbolic impact is 
equally important. This bill emphasizes the devastatingly unique nature 
of hate crimes. It says we recognize that hate crimes provide 
aggressors with the means to attack an entire community through a 
single act of violence, and send a message of fear that vastly 
transcends the immediate crime and its victim. It shows we understand 
that hate crime offenders should be prosecuted for committing a crime 
against an entire community. After so many years of inaction, we in 
Congress have an obligation to demonstrate that we understand how hate 
crimes affect our nation's communities.
  It takes only a brief survey of any major news outlet to find 
horrifying stories of hate crimes and the inability of law enforcement 
to prosecute offenders for their acts of hate. The 1999 murder of four 
women in Yosemite National Park graphically illustrates the need to 
include gender in our hate crimes statute. These four women were 
murdered by a man who admitted having fantasized about killing women 
for most of his life. These women lost their lives for one reason--
because they were women. We need to send a clear message that we will 
not accept such acts of hate. Without this bill, however, such a crime 
cannot be federally prosecuted as a hate crime.
  Gender identity must also be included in our definition of those 
characteristics protected by a hate crimes statute. Many are familiar 
with the story of Brandon Teena, who was raped and beaten in Humboldt, 
Nebraska in 1993 by two male friends after they discovered that he was 
living as a male but was anatomically female. The local sheriff refused 
to arrest the offenders, and they later shot and stabbed Brandon to 
death.
  A more recent, less well-known incident occurred when Fred C. 
Martinez Jr., a Navajo transgender youth, was murdered while walking 
home from a party. Fred was killed for one reason alone--because he was 
a transgender youth. By passing this bill, the Senate will send a 
strong message that hate crimes based on sexual identity are 
unacceptable and perpetrators of such crimes will face tough criminal 
penalties under Federal law.
  Hate crimes against disabled Americans are very disturbing and 
deserve protection at the Federal level as well. In October 2002, two 
deaf girls, one of whom was wheelchair bound due to cerebral palsy, 
were harassed and sexually assaulted by four suspected gang members in 
a local park. The girls were attacked because they were disabled and 
unable to defend themselves. Although the alleged perpetrators were 
prosecuted, the assaults could not be charged as hate crimes because no 
State or Federal protections for disability-based hate crimes existed 
in Federal or State law. This must change.
  These are only a few examples of the hate perpetrated against 
individuals in America based on their sexual orientation, gender, 
gender identity, and disability. We can no longer allow any of these 
communities to live in fear. Crimes based on an individual's sexual 
orientation, gender, gender identity, or disability must be prosecuted 
for what they are--crimes of hate.
  Individuals should not only be protected from hate crimes because of 
their actual characteristics; they must also be protected from hate 
crimes based on the inaccurate perceptions of others. Last year in 
Brooklyn, New York, Jose Sucuzhanay was walking arm in arm with his 
brother, Romel Sucuzhanay, after attending a church party. According to 
officials, about half a block from Jose's home, a black sports utility 
vehicle drove by and the two men in the vehicle began shouting what 
witnesses described as vulgarisms against Hispanics and gay men. The 
car stopped and one of the two men approached Jose and smashed a beer 
bottle over the back of his head. The other man then took an aluminum 
baseball bat from the rear of the vehicle and repeatedly struck Jose on 
his shoulder, ribs, and back. Once Jose fell to the ground, he received 
several full-forced, crushing blows to his head with the

[[Page 10865]]

aluminum baseball bat. Jose, a father of two and local real estate 
agent, died 5 days later because of the hate-motivated attack. He did 
not deserve to lose his life because he was perceived to be gay. That 
is why the bill we are introducing today criminalizes crimes based on 
the perceived characteristics of a victim.
  We also know that hate crimes covered by current Federal law--based 
on race, religion, national origin, and color--still occur and must be 
prosecuted. Following the 2008 presidential election, three men in New 
York went on a rampage attacking African-American residents of Staten 
Island in response to the historic election of President Barack Obama. 
The men attacked one 17-year-old African-American man with a metal pipe 
and collapsible baton. They attacked another African-American man by 
pushing him to the ground. They assaulted still another man, whom they 
mistakenly believed was African-American, by mowing him down with a car 
while yelling racial epithets at him. Clearly, this demonstrates that 
race-based violence is continuing at an unacceptable level, and we must 
act to help law enforcement more vigorously deal with hate crimes.
  Hate crimes legislation has the support of President Obama, a 
majority of Congress, 26 State Attorneys General, and a broad coalition 
of law enforcement, civic, religious, and civil rights groups. Recent 
history shows that Congress is ready to make hate crimes legislation 
into law. In 2007, the Senate voted 60 to 39 in support of a similar 
hate crimes bill. An equally powerful statement was made by the House 
when it voted 237 to 180 for the hate crimes bill introduced that year. 
As a Senator, President Obama voted to support hate crimes legislation. 
Now, as President, he has included the expansion of hate crimes in his 
civil rights agenda. The political will of our Nation is clear--it is 
time for this bill to become law.
  Over 300 law enforcement, civil rights, civic, and religious 
organizations have endorsed our bill, including the International 
Association of Chiefs of Police, the National District Attorneys 
Association, the National Sheriffs Association, the Police Executive 
Research Forum, the Leadership Conference on Civil Rights, the Anti-
Defamation League, the Human Rights Campaign, and the Interfaith 
Alliance. All these diverse groups have come together to say that now 
is the time for us to protect our fellow citizens from the brutality of 
hate-motivated violence. They strongly support this legislation because 
they know it is a balanced and sensible approach that will bring 
greater protection to our citizens, along with much-needed resources 
for local and State law enforcement fighting hate crimes.
  Passing this bill will send a message, loud and clear, that those who 
victimize individuals because of their race, color, religion, national 
origin, sexual orientation, gender, gender identity, or disability will 
go to prison. In addition, passing this bill will provide Federal, 
State, local, and tribal authorities with stronger means to prosecute 
crimes of hate. It has been over 10 years since Matthew Shepard was 
left to die on a fence in Wyoming because of who he was. It has also 
been 10 years since this bill was initially considered by Congress. In 
those 10 years, we have gained the political and public support that is 
needed to make this bill become law. Today, we have a President who is 
prepared to sign hate crimes legislation into law, and a Justice 
Department that is willing to enforce it. We must not delay the passage 
of this bill. Now is the time to stand up against hate-motivated 
violence and recognize the shameful damage it is doing to our Nation.
  Mr. LEAHY. Mr. President, this is National Crime Victims' Rights 
Week--a time when communities in Vermont and across the Nation 
recognize the needs of crime victims, and work together to promote 
victims' rights and services. There is no more important time than now 
to renew our commitment to address the needs of crime victims and their 
families.
  Today, I am pleased to join Senator Kennedy, Senator Collins, and 
more than 30 other Senators from both sides of the aisle to reintroduce 
the Matthew Shepard Hate Crimes Prevention Act of 2009. This is a 
bipartisan bill designed to combat crimes that have long terrorized 
communities and remain a serious problem in this country. This 
legislation is a matter of simple justice. It is past time for Congress 
to enact this bill and strengthen the Federal Government's role in 
preventing and punishing crimes motivated by hate.
  I commend Senator Kennedy for his leadership over the last decade in 
working to expand our Federal hate crimes law, and I am proud to once 
again be an original cosponsor of this legislation. A bipartisan 
majority of the Members in the House of Representatives voted to pass 
this legislation in the last Congress. Unfortunately, there were 
partisan attempts to filibuster and prevent passage of the Senate bill. 
The measure was ultimately attached to the Department of Defense 
Authorization bill with the bipartisan support of 60 Senators. While I 
am disappointed that the hate crime provision was taken out of that 
bill at conference, I am hopeful that our efforts to enact this civil 
rights measure into law will be successful this year.
  Violent crimes motivated by prejudice and hate are tragedies that 
haunt American history. From the lynchings that plagued race relations 
for more than a century, to the well-publicized slayings of Matthew 
Shepard and James Byrd, Jr., in the 1990s, this is a story that we have 
heard too often in this country. Unfortunately, in my home state of 
Vermont, there have been two attacks in recent years that appear to 
have been motivated by the victims' religion or sexual orientation.
  Perhaps the most persuasive evidence that hate crimes are becoming 
more prevalent and more nationalized is a leaked copy of the Department 
of Homeland Security report on violent extremism in the United States. 
The report is nothing short of chilling.
  The DHS report found that ``the economic downturn and the election of 
the first African American president present unique drivers for 
rightwing radicalization and recruitment'' and these elements in turn 
have the potential to drive hate groups to carry out violence. It also 
found that anti-immigrant fervor by organized hate groups ``has the 
potential to turn violent.'' The DHS report concluded that the ``advent 
of the Internet'' has potentially made ``extremist individuals and 
groups more dangerous and the consequences of their violence more 
severe.''
  Of course, these findings comport with a recent Southern Poverty Law 
Center, SPLC, report on hate group activity in the United States 
entitled ``The Year in Hate.'' The SPLC repot found that activity by 
known domestic hate groups has increased by 50 percent since 2000, from 
602 hate groups in 2000, to 926 hate groups in 2008. The recent and 
rapid growth in hate group activity is simply astonishing.
  It remains painfully clear that as a Nation, we still have serious 
work to do in protecting all Americans from these crimes and in 
ensuring equal rights for all our citizens. While the answer to hate 
and bigotry must ultimately be found in increased tolerance, 
strengthening our Federal hate crimes laws is a step in the right 
direction.
  The Matthew Shepard Hate Crimes Prevention Act of 2009 improves 
existing law by making it easier for Federal authorities to investigate 
and prosecute crimes based on race, color, religion, and national 
origin. Victims will no longer have to engage in a narrow range of 
activities, such as serving as a juror, to be protected under Federal 
law. This bill also expands Federal protections to include the problem 
of hate crimes committed against people because of their sexual 
orientation, gender, gender identity, or disability, which is a key and 
long-overdue expansion of protection. Finally, this bill provides 
assistance and resources to state, local, and tribal law enforcement to 
address hate crimes.
  This bill strengthens Federal jurisdiction over hate crimes as a 
back-up, but not a substitute, for state and local law enforcement. 
States will still bear primary responsibility for prosecuting

[[Page 10866]]

most hate crimes, which is important to me as a former state 
prosecutor. In a sign that this legislation respects the proper balance 
between Federal and local authority, it has received strong bipartisan 
support from state and local law enforcement organizations across the 
country.
  Moreover, this bill accomplishes the critically important goal of 
protecting all of our citizens without compromising our constitutional 
responsibilities. It is a tool for combating acts and threats of 
violence motivated by hatred and bigotry. But it does not target pure 
speech, however offensive or disagreeable. The Constitution does not 
permit us in Congress to prohibit the expression of an idea simply 
because we disagree with it. To paraphrase Justice Oliver Wendell 
Holmes, the Constitution protects not only freedom for the thought and 
expression we agree with, but freedom for the thought that we hate. I 
am devoted to that principle, and I am confident that this bill does 
not contradict it.
  We crafted this legislation after long and thoughtful consultation 
with many of the advocates who work so hard to promote civil rights and 
with Justice Department attorneys in the field who work on hate crimes 
prosecutions every day. It contains changes to Federal hate crime law 
that will improve the law's operation and implementation. I want to 
thank the Leadership Conference on Civil Rights, Human Rights First, 
and the more than 300 law enforcement, civil rights, religious, and 
other professional organizations for their assistance with and support 
for this legislation, and for their tireless work on behalf of hate 
crimes victims in the United States.
  The crimes targeted in this bill are particularly pernicious crimes 
that affect more than just their victims and those victims' families. 
They inspire fear in those who have no connection to the victim other 
than a shared characteristic such as race or sexual orientation. That 
is wrong. All Americans have the right to live, travel and gather where 
they choose. In the past we have responded as a Nation to deter and to 
punish violent denials of civil rights. We have enacted Federal laws to 
protect the civil rights of all of our citizens for nearly 150 years.
  The Matthew Shepard Hate Crimes Prevention Act continues that great 
and honorable tradition, and brings us one step closer towards ensuring 
an America that values tolerance and protects all of its people. I hope 
all Senators will support passing this important bipartisan bill this 
year.
  Mrs. FEINSTEIN. I wish today to support the Matthew Shepard Hate 
Crimes Prevention Act of 2009. I want to thank and commend my friend 
and colleague, Senator Kennedy, for his leadership and dedication on 
this important issue. It is long past time that we move to bring 
existing Federal hate crimes law into the 21st century.
  I have been an original cosponsor of the Hate Crimes Prevention Act 
since it was first introduced in the Senate over a decade ago.
  And I am proud to join today with my colleagues--Senators Kennedy, 
Leahy, Specter, Collins, Snowe, Schumer, Durbin, and others--to 
reintroduce this legislation, which will once and for all send a 
message: We will no longer turn a blind eye to hate crimes in this 
country.
  This legislation is a crucial step toward prosecuting crimes directed 
at thousands of individuals who are the targets of brutal and senseless 
violence.
  The current Federal hate crimes law simply does not go far enough. It 
covers only crimes motivated by bias on the basis of race, color, 
religion or national origin.
  This bill improves the current Federal hate crime law by including 
crimes motivated by gender, gender identity, sexual orientation, and 
disability.
  Specifically, the Matthew Shepard Crimes Prevention Act of 2009 
expands on the 1968 definition of a hate crime.
  Under current Federal law, hate crimes only cover attacks based on 
race, color, religion, and national origin.
  Under the proposed bill, hate crimes will include: gender, gender 
identity, sexual orientation, and disability.
  The bill enables States, local jurisdictions, and Indian tribes to 
apply for Federal grants in order to solve hate crimes and provides 
Federal agents with broader authority to aid State and local police.
  Additionally, the bill amends the Hate Crime Statistics Act to allow 
law enforcement agencies to gather additional data on violent crimes 
committed out of hate.
  The bill also includes a ``Rule of Construction'' to ensure that it 
does not intrude on first amendment protected rights to freedom of 
speech.
  I believe that it is time for Congress to expand the ability of the 
Federal Government to investigate and prosecute anyone who would target 
victims because of hate. In States that have already enacted hate 
crimes laws, the Federal Government must provide the resources to 
ensure that those crimes do not go unpunished. We can and must do more.
  Across the Nation, horrific instances of violence are occurring that 
this bill would work to fight against. I would like to share just a few 
examples:
  In February 2008 in Oxnard, CA, Lawrence ``Larry'' King, a 15-year-
old boy was shot and killed by a fellow classmate at his junior high 
school. Larry, who had told his classmates he was gay, had long been 
harassed and bullied at school. The way he was treated is unacceptable, 
and his death was a tragic and poignant reminder of why it is so 
important to stop bullying and violence in our schools.
  In Laurel, DE, earlier this month, three teenagers were charged with 
robbing and assaulting a 31-year-old developmentally disabled man. The 
victim was walking home one Friday evening from his brother's house in 
the Laurel Village Mobile Home Park and was dragged into a wooden area, 
beaten, and robbed of his wallet and keys. The victim's mother later 
found him and took him to the hospital where he was treated for a 
concussion.
  Lastly, one of the most well-known cases in California happened in 
West Hollywood to actor Trev Broudy in 2002. The night of the attack, 
Trev Broudy was hugging a man on a street. Three men with a baseball 
bat savagely attacked the actor and left him in a coma for 
approximately 10 weeks. As a result of the attack, Trev suffered brain 
damage, lost half of his vision, and has experienced trouble hearing.
  The crimes are brutal. The attackers targeted their victims because 
of who they are. Yet, none of these crimes can be prosecuted as a 
Federal hate crime.
  These are not isolated instances.
  These crimes occur all too often.
  According to the latest FBI statistics, there were almost 7,700 hate 
crime incidents in the United States in 2007. Of those, 1,789 occurred 
in California, with 15 percent of those based on sexual orientation.
  Nationally, approximately 50.8 percent were motivated by racial bias, 
18 percent were motivated by religious bias, 17 percent were motivated 
by sexual orientation, and 13.2 percent were motivated by ethnicity or 
national origin bias. One percent involved a bias against a disability.
  Even more disturbing is the fact that these FBI statistics show only 
a fraction of the problem because so many hate crimes are unreported.
  The Southern Poverty Law Center, a nonprofit organization located in 
Montgomery, AL and internationally known for its tolerance education 
programs, estimates that the actual number of hate crimes committed in 
the United States each year is closer to 50,000 as opposed to the 
nearly 8,000 cases reported to the FBI.
  A close analysis of hate crimes rates demonstrates that groups that 
are now covered by current laws--such as African Americans, Muslims, 
and Jews, report similar rates of hate crimes victimizations as gays 
and lesbians--who are not currently protected.
  Every person's life is valuable. Congress must act to protect every 
individual who is targeted simply because of who they are.
  We must also stop the way that hate crimes terrorize communities. 
When people are targeted because of who they are, they often live in 
fear and

[[Page 10867]]

communities suffer from tension and a lack of trust. These are crimes 
that damage our social fabric, and we must send a clear message that we 
cannot tolerate this kind of intimidation in the United States.
  This is not a new bill. It was first introduced in 1998. It has 
passed the Senate numerous times: in 2000, 2002, and 2004 as an 
amendment to the Department of Defense, Authorization bill. It has also 
passed the House in 2007 as a stand-alone bill and in 2006 as an 
amendment to the Adam Walsh Act. But still, it has not been enacted 
into law.
  In addition, last Congress, this body passed this legislation 
favorably as an amendment to the Defense authorization bill, but the 
amendment was removed from the final version of the bill that the 
President signed.
  This legislation is bipartisan and has broad coalition support. It is 
supported by 26 State attorneys general and over 300 law enforcement, 
professional, educational, civil rights, religious, and civic 
organizations.
  I hope that my colleagues will join me in supporting it and working 
to enact it into law in this Congress.
  Let us send a message to all Americans that we will not turn a blind 
eye to hate crimes and will instead support the values of tolerance and 
community that unite us as Americans.
                                 ______
                                 
      By Mr. MERKLEY:
  S. 911. A bill to amend the Truth in Lending Act to prohibit 
prepayment penalties, and for other purposes; to the Committee on 
Banking, Housing, and Urban Affairs.
  Mr. MERKLEY. Mr. President, I am introducing two pieces of 
legislation to address the very heart of our economic crisis--the 
housing market and the deceptive lending practices that have placed 
millions of homes at risk of foreclosure.
  In the last few years, millions of families were led into 
unsustainable home mortgages that pushed our country into an economic 
crisis unprecedented in our lifetimes. Instead of fulfilling a dream 
and contributing to a secure financial future, home mortgages have too 
often become a check for stripping wealth from working Americans.
  These two bills, the Transparency for Homeowners Act, S. 911, and the 
Promoting Mortgage Responsibility Act, S. 912, will put an end to 
deceptive and unfair mortgage practices that played a pivotal role in 
tricking American families to accept risky and unsustainable mortgages.
  Two key factors drew families into these mortgages that paved the way 
for this recession. First, steering payments.
  Steering payments were paid to brokers who enticed unsuspecting 
homeowners into deceptive and expensive mortgages. These secret bonus 
payments, often called yield spread premiums, turned home mortgages 
into a scam. A family would go to a mortgage broker to get advice in 
getting the best possible loan. The family would trust the broker to 
give advice because, quite frankly, they were paying the broker for 
that service. But what the borrower did not realize is that the broker 
would earn thousands of bonus dollars from the lender if the broker 
could convince the homeowner to take out a high-priced mortgage, such 
as one with an exploding interest rate, rather than a plain vanilla 30-
year fixed rate mortgage.
  The second factor is prepayment penalties. Prepayment penalties added 
insult to injury. After the homeowners realized they had been steered 
into an unsustainable mortgage, they soon discovered that a large 
prepayment penalty made it too costly for them to refinance to a more 
affordable loan. They were locked into that first destructive loan they 
did not fully understand when it was presented.
  This scam has had a tremendous impact. A study for the Wall Street 
Journal found that 61 percent of the subprime loans that originated in 
2006--that is 61 percent that originated in 2006--went to families who 
qualified for prime loans. More than half the borrowers who qualified 
for a prime loan ended up with a subprime loan because of these 
steering payments, putting millions of American families at risk. This 
is simply wrong--a publicly regulated process designed to create a 
relationship of trust between families and brokers but that leaves 
borrowers unaware of payments that take place, putting them into 
expensive and destructive mortgages.
  I call your attention to a New York Times editorial published on 
April 9 entitled ``Predatory Brokers.'' This editorial highlighted the 
problem. The Times concluded that:

       The first step must be to outlaw the kickbacks that lenders 
     pay brokers for steering clients into costlier loans.

  The editorial went on to say that:

       The most clearly unethical form of payment is the so-called 
     yield-spread premium.

  My friends, it is difficult to overstate the damage that has been 
done by these practices. An estimated 20,000 Oregon families will lose 
their homes to foreclosure in 2009. Nationwide, an estimated 2 million 
families will lose their homes this year. And the total of foreclosed 
families is predicted to reach 9 million by 2012.
  The legislative solutions I propose are very simple. The bills I am 
introducing today will ensure these practices do not again haunt the 
mortgage business in America. First, the Transparency For Homeowners 
Act ends the secret steering payments to lenders who lead homeowners 
into deceptive mortgages they cannot afford over the long term. Second, 
the Promoting Mortgage Responsibility Act prohibits lenders from 
issuing costly financial penalties that prevent homeowners from 
refinancing into a more affordable loan.
  It is simple: an end to steering payments and an end to prepayment 
penalties. We should recognize that not only have these practices 
damaged the financial foundations for our families and millions of 
families at the retail level--turning the American dream of home 
ownership into an American nightmare--but these practices, which 
resulted in a huge surge in subprime lending, set the stage for the 
disaster that would come and is still unfolding on Wall Street and 
crippling economies around the world.
  My legislation will restore transparency to the mortgage lending 
process and help make home ownership a stable investment for families 
once again. The time has come for us to make sure that secret steering 
payments and paralyzing prepayment penalties never again haunt American 
families. Let us restore the American dream of home ownership.
                                 ______
                                 
      By Mr. CORNYN (for himself and Mr. Harkin):
  S. 913. A bill to amend the Internal Revenue Code of 1986 to expand 
workplace health incentives by equalizing the tax consequences of 
employee athletic facility use; to the Committee on Finance.
  Mr. CORNYN. Mr. President, I rise to introduce the Workforce Health 
Improvement Program Act of 2009, otherwise known as the WHIP Act. This 
bipartisan bill I introduce today is the same legislation I introduced 
in the 110th Congress. I am very pleased to be joined again by my good 
friend and colleague, Senator Tom Harkin, who shares my commitment to 
helping keep America fit.
  Public health experts unanimously agree that people who maintain 
active and healthy lifestyles dramatically reduce their risk of 
contracting chronic diseases. And as the government works to reign in 
the high cost of health care, it is worth talking about what we all can 
do to help ourselves. As you know, prevention is key, and exercise is a 
primary component in the prevention of many adverse health conditions 
that can arise over one's lifetime. A physically fit population helps 
to decrease health-care costs, reduce governmental spending, reduce 
illnesses, and improve worker productivity.
  According to the Centers for Disease Control and Prevention, CDC, the 
economic cost alone to businesses in the form of health insurance and 
absenteeism is more than $15 billion. Additionally, the CDC estimates 
that more than \1/3\ of all US adults fail to meet minimum 
recommendations for aerobic physical activity based on the 2008 
Physical Activity Guidelines for Americans. With physical inactivity 
being a

[[Page 10868]]

key contributing factor to overweight and obesity, and adversely 
affecting workforce productivity, we quite simply need to do more to 
help employers encourage exercise.
  Given the tremendous benefits exercise provides, I believe Congress 
has a duty to create as many incentives as possible to get Americans 
off the couch, up, and moving.
  With this in mind, I am introducing the WHIP Act.
  Current law already permits businesses to deduct the cost of on-site 
workout facilities, which are provided for the benefit of employees on 
a pre-tax basis. But if a business wants or needs to outsource these 
health benefits, they and/or their employees are required to bear the 
full cost. In other words, employees who receive off-site fitness 
center subsidies are required to pay income tax on the benefits, and 
their employers bear the associated administrative costs of complying 
with the IRS rules.
  The WHIP Act would correct this inequity in the tax code to the 
benefit of many smaller businesses and their employees. Specifically, 
it would provide an employer's right to deduct up to $900 of the cost 
of providing health club benefits off-site for their employees. In 
addition, the employer's contribution to the cost of the health club 
fees would not be taxable income for employees--creating an incentive 
for more employers to contribute to the health and welfare of their 
employees.
  The WHIP Act is an important step in reversing the largely 
preventable health crisis that our country is facing, through the 
promotion of physical activity and disease prevention. It is a critical 
component of America's health care policy: prevention. It will improve 
our Nation's quality of life by promoting physical activity and 
preventing disease. Additionally, it will help relieve pressure on a 
strained health care system and correct an inequity in the current tax 
code.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 913

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Workforce Health Improvement 
     Program Act of 2009''.

     SEC. 2. EMPLOYER-PROVIDED OFF-PREMISES HEALTH CLUB SERVICES.

       (a) Treatment as Fringe Benefit.--Subparagraph (A) of 
     section 132(j)(4) of the Internal Revenue Code of 1986 
     (relating to on-premises gyms and other athletic facilities) 
     is amended to read as follows:
       ``(A) In general.--Gross income shall not include--
       ``(i) the value of any on-premises athletic facility 
     provided by an employer to its employees, and
       ``(ii) so much of the fees, dues, or membership expenses 
     paid by an employer to an athletic or fitness facility 
     described in subparagraph (C) on behalf of its employees as 
     does not exceed $900 per employee per year.''.
       (b) Athletic Facilities Described.--Paragraph (4) of 
     section 132(j) of the Internal Revenue Code of 1986 (relating 
     to special rules) is amended by adding at the end the 
     following new subparagraph:
       ``(C) Certain athletic or fitness facilities described.--
     For purposes of subparagraph (A)(ii), an athletic or fitness 
     facility described in this subparagraph is a facility--
       ``(i) which provides instruction in a program of physical 
     exercise, offers facilities for the preservation, 
     maintenance, encouragement, or development of physical 
     fitness, or is the site of such a program of a State or local 
     government,
       ``(ii) which is not a private club owned and operated by 
     its members,
       ``(iii) which does not offer golf, hunting, sailing, or 
     riding facilities,
       ``(iv) whose health or fitness facility is not incidental 
     to its overall function and purpose, and
       ``(v) which is fully compliant with the State of 
     jurisdiction and Federal anti-discrimination laws.''.
       (c) Exclusion Applies to Highly Compensated Employees Only 
     if No Discrimination.--Section 132(j)(1) of the Internal 
     Revenue Code of 1986 is amended--
       (1) by striking ``Paragraphs (1) and (2) of subsection 
     (a)'' and inserting ``Subsections (a)(1), (a)(2), and 
     (j)(4)'', and
       (2) by striking the heading thereof through ``(2) apply'' 
     and inserting ``Certain exclusions apply''.
       (d) Employer Deduction for Dues to Certain Athletic 
     Facilities.--
       (1) In general.--Paragraph (3) of section 274(a) of the 
     Internal Revenue Code of 1986 (relating to denial of 
     deduction for club dues) is amended by adding at the end the 
     following new sentence: ``The preceding sentence shall not 
     apply to so much of the fees, dues, or membership expenses 
     paid to athletic or fitness facilities (within the meaning of 
     section 132(j)(4)(C)) as does not exceed $900 per employee 
     per year.''.
       (2) Conforming amendment.--The last sentence of section 
     274(e)(4) of such Code is amended by inserting ``the first 
     sentence of'' before ``subsection (a)(3)''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after the date of the 
     enactment of this Act.
                                 ______
                                 
      By Mr. SPECTER:
  S. 914. A bill to establish an independent Cures Acceleration Network 
agency, to sponsor promising translational research to bridge the gap 
between laboratory discoveries and life-saving therapies, to 
reauthorize the National Institutes of Health, and for other purposes; 
to the Committee on Health, Education, Labor, and Pensions.
  Mr. SPECTER. Mr. President, the bill that I am introducing today 
would authorize the establishment of the Cures Acceleration Network, 
CAN. This new $2 billion agency would provide funds to translate 
research discoveries from the bench to the bedside and would operate as 
an independent agency. It would not be part of the Department of Health 
and Human Services. The CAN would make awards outside of the 
traditional funding stream to accelerate the development of cures and 
treatments including but not limited to drugs, devices, and behavioral 
therapies. The CAN would have a flexible expedited review process to 
get monies into the hands of the grantees as quickly as possible. These 
development funds would complement the research dollars provided to the 
National Institutes of Health, NIH, and would not compete or take 
monies away from the NIH.
  The bill also would raise the authorization level of the National 
Institutes of Health to $40 billion in fiscal year 2010, elevate the 
Center for Minority Health and Health Disparities to Institute status, 
and implement a new conflict-of-interest provision.
  While the NIH funds much of the basic biomedical research at 
universities across the country, the CAN would take those findings 
found through basic research and provide funding to fill the gap 
between laboratory discoveries and life-saving medical therapies. This 
funding gap--often referred to as ``the valley of death'' arises after 
Federal basic-science support ends and before investors are willing to 
commit to a promising discovery. Very often finding funds to fill this 
gap is a daunting challenge, especially during a period of economic 
downturn, when investors have fewer resources to invest. This has had a 
severe impact on America's biotechnology industry.
  The need for the CAN is clear: Capital raised by America's 
biotechnology companies fell 55 percent in 2008 compared to 2007. Also 
relative to 2007, 90 percent of small public biotechnology companies 
are now operating with less than 6 months of cash on hand. In the last 
5 months alone, at least 24 U.S. public biotech companies have either 
placed drug development programs on hold or cut programs altogether. 
These companies have postponed clinical trials to treat melanoma, 
cervical cancer, lupus, chemotherapy side effects for breast cancer 
patients, multiple sclerosis, diabetes and atherosclerosis, drug trials 
to treat non-Hodgkin's lymphoma, testing of pandemic flu vaccine, 
trials to treat plaque psoriasis and heart disease, and a treatment for 
mesothelioma.
  In short, without adequate funding--these companies will be unable to 
take these products to the development stage, the basic research done 
by the NIH will be lost, and many patients will die waiting for drugs 
and devices to give them a better quality of life.
  The CAN would fund two types of grant awards, each with an 
authorization of $1 billion in the first year and additional funds in 
succeeding fiscal years.
  The Cures Acceleration Grant Awards will provide grant awards of up

[[Page 10869]]

to $15 million per year per project with out-year funding available. 
These awards would be available to applicants who do not have access to 
private matching funds.
  The Cures Acceleration Partnership Awards also would provide grants 
for up to $15 million per year per project with additional funds 
available in the out-years. However, grant awards would require a match 
of three Federal dollars to one grantee dollar, as a way to partially 
offset development costs.
  For both grant types, the CAN Board may waive the award limitation as 
well as modify the matching requirement.
  Eligible grantees would include public or private entities such as 
institutions of higher education, medical centers, biotechnology 
companies, universities, patient advocacy organizations, pharmaceutical 
companies and academic research institutions.
  To provide for expedited FDA approval, the grantees must also 
establish protocols that comply with FDA standards to meet regulatory 
requirements at all stages of development, manufacturing, review, 
approval and safety surveillance of a medical product.
  The provisions of the Bayh-Dole Act would apply.
  The CAN grant proposals would be evaluated by a 24-member board 
comprised of experienced individuals of distinguished achievement, and 
representative of a broad range of disciplinary interests including: 
venture capitalists and business executives with experience in managing 
scientific enterprises; scientists with expertise in the fields of 
basic research, biopharmaceuticals, drug discovery, drug delivery of 
medical products, bioinformatics, gene therapy or medical 
instrumentation, regulatory review and approval of medical products; 
and representatives of patient advocacy organizations.
  The Chairman and Vice Chairman of the CAN shall be appointed by the 
President with the advice and consent of the Senate. The term of office 
of each member of the Board shall be 2 years. The CAN board also will 
include ex-officio members representing the National Institutes of 
Health, the Food and Drug Administration and the Department of Defense, 
the Department of Veterans Affairs and the National Science Foundation. 
The CAN board will meet four times each calendar year, with 12 board 
members and representatives of the ex-officio members present at each 
meeting. The board will be supported by an executive director and other 
employees that the Board deems necessary to ensure efficient operation 
of the CAN.
  The Chairman of the CAN shall have authority to enter into an 
interagency agreement with the Center for Scientific Review at the 
National Institutes of Health to utilize advisory panels to review 
applications, and to make recommendations to the CAN.
  The increases that have been made in medical research over the past 
20-30 years have dramatically improved the survival rates for many 
diseases--deaths from coronary artery disease declined by 18 percent 
between 1994 and 2004. Stroke deaths also fell by 24.2 percent during 
that same time period. The five-years survival rates for Hodgkin's 
lymphoma have increased from 4 percent in the 1960s to more than 86 
percent today. Survival rates for localized breast cancer have 
increased from 80 percent in the 1950s to 98 percent today. Over the 
past 25 years, survival rates for prostate cancer have increased from 
69 percent to almost 99 percent. So we are seeing real progress. But 
for many other maladies, the statistics are not so good.
  These medical advances do not happen overnight. It takes time and 
money for research institutions to develop scientists skilled in the 
latest research techniques and to develop the costly infrastructure 
where research takes place.
  Regrettably, Federal funding for NIH has steadily declined from the 
$3.8 billion increase provided in 2003--when the 5-year doubling of 
that agency was completed. Had we provided sustained increases of $3.5 
billion per year, plus inflation since 2003, we would have $23 billion 
more in funding for today. The shortfall due to inflationary costs 
alone is $5.2 billion. This flagging investment in medical research, 
many believe, served to discourage bright young investigators from 
entering this field of study.
  The $10 billion for the National Institutes of Health that was 
included in stimulus package provided an immediate infusion of new 
research dollars for medical research. While these funds will only make 
up for a portion of what was lost since 2003, it is a step in the right 
direction. But much remains to be done. Additional dollars must be 
found for the 2010 appropriation and beyond.
  The $40 billion contained in the legislation that I am introducing 
today will help to re-energize our investment in medical research, 
support a new generation of young scientists and invest in the health 
of our Nation.
  The bill also contains a provision which requires the Director of NIH 
to enforce conflict-of-interest policies, requiring primary 
investigators with financial interests to provide a detailed report how 
the grant recipient will manage the investigator's conflict-of-
interest.
  The legislation also elevates the National Center for Minority Health 
and Health Disparities to Institute status, a designation that will 
lead to more resources to address the health status of minority and 
other medically underserved communities.
  While some might argue that at a time when our economy is struggling 
we cannot afford to invest more in medical research. The fact is that 
research offers the only hope of saving lives, allowing our citizens to 
lead longer, more productive lives and saving billions of dollars in 
health care cost. To those critics I would say we cannot afford not to 
invest in medical research. This is not simply good social policy; it 
is good economic policy as well.
  Mr. President, I ask unanimous consent that the text of the bill and 
a list of supporters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 914

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Cures Acceleration Network 
     and National Institutes of Health Reauthorization Act of 
     2009''.

     SEC. 2. CURES ACCELERATION NETWORK.

       (a) Definitions.--In this section--
       (1) the term ``medical product'' means a drug, device, 
     biological product, or product that is a combination of 
     drugs, devices, and biological products;
       (2) the terms ``drug'' and ``device'' have the meanings 
     given such terms in section 201 of the Federal Food, Drug, 
     and Cosmetic Act; and
       (3) the term ``biological product'' has the meaning given 
     such term in section 351 of the Public Health Service Act.
       (b) Establishment of the Cures Acceleration Network.--There 
     is established an independent agency to be known as the Cures 
     Acceleration Network (referred to in this section as 
     ``CAN''), which shall--
       (1) be under the direction of a CAN Review Board (referred 
     to in this section as the ``Board''), described in subsection 
     (d); and
       (2) award grants and contracts to eligible entities, as 
     described in subsection (e), to accelerate the development of 
     cures and treatments of diseases, including through the 
     development of medical products and behavioral therapies.
       (c) Functions.--The functions of the CAN are to--
       (1) identify and promote revolutionary advances in basic 
     research, translating scientific discoveries from bench to 
     bedside;
       (2) award grants and contracts to eligible entities;
       (3) provide the resources through grants and contracts 
     necessary for independent investigators, research 
     organizations, biotechnology companies, academic research 
     institutions, and other entities to develop medical products 
     for the treatment and cure of diseases and disorders;
       (4) reduce the barriers between laboratory discoveries and 
     clinical trials for new therapies;
       (5) facilitate priority review in the Food and Drug 
     Administration for the medical products funded by the CAN; 
     and
       (6) accept donations, bequests, and gifts to the CAN.
       (d) CAN Board.--
       (1) Establishment.--There is established a Cures 
     Acceleration Network Review Board (referred to in this 
     section as the ``Board''), which shall direct the activities 
     of the Cures Acceleration Network.
       (2) Membership.--

[[Page 10870]]

       (A) In general.--
       (i) Appointment.--The Board shall be comprised of 24 
     members who are appointed by the President and who serve at 
     the pleasure of the President.
       (ii) Chairperson and vice chairperson.--The President, by 
     and with the advice and consent of the Senate, shall 
     designate, from among the 24 members appointed under clause 
     (i), one Chairperson of the Board (referred to in this 
     section as the ``Chairperson'') and one Vice Chairperson.
       (B) Terms.--
       (i) In general.--Each member shall be appointed to serve a 
     4-year term, except that any member appointed to fill a 
     vacancy occurring prior to the expiration of the term for 
     which the member's predecessor was appointed shall be 
     appointed for the remainder of such term.
       (ii) Consecutive appointments; maximum terms.--A member may 
     be appointed to serve not more than 3 terms on the Board, and 
     may not serve more than 2 such terms consecutively.
       (C) Qualifications.--
       (i) In general.--The President shall appoint individuals to 
     the Board based solely upon the individual's established 
     record of distinguished service in one of the areas of 
     expertise described in clause (ii). Each individual appointed 
     to the Board shall be of distinguished achievement and have a 
     broad range of disciplinary interests.
       (ii) Expertise.--The President shall select individuals 
     based upon the following requirements:

       (I) For each of the fields of--

       (aa) basic research;
       (bb) medicine;
       (cc) biopharmaceuticals;
       (dd) discovery and delivery of medical products;
       (ee) bioinformatics and gene therapy;
       (ff) medical instrumentation; and
       (gg) regulatory review and approval of medical products,

     the President shall select at least 1 individual who is 
     eminent in such fields.
       (II) At least 4 individuals shall be recognized leaders in 
     professional venture capital or private equity organizations 
     and have demonstrated experience in private equity investing.
       (III) At least 8 individuals shall represent disease 
     advocacy organizations.

       (3) Ex-officio members.--
       (A) Appointment.--In addition to the 24 Board members 
     described in paragraph (2), the President shall appoint as 
     ex-officio members of the Board--
       (i) a representative of the National Institutes of Health, 
     recommended by the Secretary of the Department of Health and 
     Human Services;
       (ii) a representative of the Office of the Assistant 
     Secretary of Defense for Health Affairs, recommended by the 
     Secretary of Defense;
       (iii) a representative of the Office of the Under Secretary 
     for Health for the Veterans Health Administration, 
     recommended by the Secretary of Veterans Affairs;
       (iv) a representative of the National Science Foundation, 
     recommended by the Chair of the National Science Board; and
       (v) a representative of the Food and Drug Administration, 
     recommended by the Commissioner of Food and Drugs.
       (B) Terms.--Each ex-officio member shall serve a 3-year 
     term on the Board, except that the Chairperson may adjust the 
     terms of the initial ex-officio members in order to provide 
     for a staggered term of appointment for all such members.
       (4) Responsibilities of the board.--The Board shall--
       (A) advise the Chairperson with respect to policies, 
     programs, and procedures for carrying out the Chairperson's 
     duties; and
       (B) review applications for grants and contracts under 
     subsection (e) and make recommendations to the Chairperson.
       (5) Authority of the chairperson.--The Chairperson may--
       (A) prescribe regulations regarding the manner in which the 
     Chairperson's duties shall be carried out, as the Chairperson 
     determines necessary;
       (B) appoint employees, subject to civil service laws, as 
     necessary to carry out the Chairperson's functions;
       (C) define the duties, and supervise and direct the 
     activities, of any employees appointed under subparagraph 
     (B);
       (D) use experts and consultants, including a panel of 
     experts who may be employed as authorized by section 3109 of 
     title 5, United States Code;
       (E) accept and utilize the services of voluntary and 
     uncompensated personnel and reimburse such personnel for 
     travel expenses, as described in paragraph (7)(B);
       (F) make advance, progress, or other payments without 
     regard to section 3324 of title 31, United States Code;
       (G) rent office space in the District of Columbia for use 
     by the CAN;
       (H) enter into agreements with other Federal agencies to 
     carry out oversight of the grant program under subsection 
     (e), which agreements may include provisions for financial 
     reimbursement for the oversight provided by such agencies; 
     and
       (I) make other necessary expenditures.
       (6) Meetings.--
       (A) In general.--The Board shall meet 4 times per calendar 
     year, at the call of the Chairperson.
       (B) Quorum; requirements; limitations.--
       (i) Quorum.--A quorum shall consist of a total of 13 
     members of the Board, excluding ex-officio members, with 
     diverse representation as described in clause (iv).
       (ii) Chairperson or vice chairperson.--Each meeting of the 
     Board shall be attended by either the Chairperson or the Vice 
     Chairperson.
       (iii) Limitation.--No member or ex-officio member of the 
     Board may attend more than 2 meetings of the Board each 
     calendar year with the exceptions of the Chairperson and Vice 
     Chairperson, who may attend all such meetings.
       (iv) Diverse representation.--At each meeting of the Board, 
     there shall be not less than one scientist, one 
     representative of a disease advocacy organization, and one 
     representative of a professional venture capital or private 
     equity organization.
       (7) Compensation and travel expenses.--
       (A) Compensation.--Members shall receive compensation at a 
     rate to be fixed by the Chairperson but not to exceed a rate 
     equal to the daily equivalent of the annual rate of basic pay 
     prescribed for level IV of the Executive Schedule under 
     section 5315 of title 5, United States Code, for each day 
     (including travel time) during which the member is engaged in 
     the performance of the duties of the Board. All members of 
     the Board who are officers or employees of the Untied States 
     shall serve without compensation in addition to that received 
     for their services as officers or employees of the United 
     States.
       (B) Travel expenses.--Members of the Board shall be allowed 
     travel expenses, including per diem in lieu of subsistence, 
     at rates authorized for persons employed intermittently by 
     the Federal Government under section 5703(b) of title 5, 
     United States Code, while away from their homes or regular 
     places of business in the performance of services for the 
     Board.
       (e) Grant Program.--
       (1) Grants and contracts.--The Chairperson shall, through 
     the Board of the CAN, award grants and contracts to eligible 
     entities to assist such entities in carrying out projects 
     described in paragraph (3).
       (2) Award process.--The Chairperson of the Board may award 
     a grant or contract under this subsection to an eligible 
     entity only upon the approval of a majority of a quorum of 
     the Board.
       (3) Use of funds.--Funds awarded under this subsection 
     shall be used--
       (A) to accelerate the development of cures and treatments, 
     including through the development of medical products, 
     behavioral therapies, and biomarkers that demonstrate the 
     safety or effectiveness of medical products; or
       (B) to help the award recipient establish protocols that 
     comply with Food and Drug Administration standards and 
     otherwise permit the recipient to meet regulatory 
     requirements at all stages of development, manufacturing, 
     review, approval, and safety surveillance of a medical 
     product.
       (4) Eligible entities.--To receive a grant or contract 
     under this subsection, an entity shall--
       (A) be--
       (i) an individual;
       (ii) a group of individuals; or
       (iii) a public or private entity, which may include a 
     private or public research institution, an institution of 
     higher education, a medical center, a biotechnology company, 
     a pharmaceutical company, a disease advocacy organization, a 
     patient advocacy organization, or an academic research 
     institution;
       (B) submit an application containing--
       (i) a detailed description of the project for which the 
     entity seeks such grant or contract;
       (ii) a timetable for such project;
       (iii) an assurance that the entity will submit--

       (I) interim reports describing the entity's--

       (aa) progress in carrying out the project; and
       (bb) compliance with all provisions of this section and 
     conditions of receipt of such grant or contract; and

       (II) a final report at the conclusion of the grant period, 
     describing the outcomes of the project; and

       (iv) a description of the protocols the entity will follow 
     to comply with Food and Drug Administration standards and 
     regulatory requirements at all stages of development, 
     manufacturing, review, approval, and safety surveillance of a 
     medical product; and
       (C) provide such additional information as the Chairperson 
     may require.
       (5) Study sections of the center for scientific review.--
       (A) In general.--The Chairperson may enter into an 
     interagency agreement with the Center for Scientific Review 
     within the National Institutes of Health to use the study 
     sections of such Center to review applications submitted 
     under paragraphs (4)(B) and additional information submitted 
     under (4)(C) and to make recommendations to the Board. The 
     Chairperson shall promulgate regulations and procedures to--
       (i) ensure that each study section reviewing applications 
     is composed of diverse members, as described in subparagraph 
     (B);

[[Page 10871]]

       (ii) require such study sections to create written records 
     summarizing--

       (I) all meetings and discussions of the study section; and
       (II) the recommendations made by such study section to the 
     Board; and

       (iii) make the records described in clause (ii) available 
     to the public in a manner that protects the privacy of 
     applicants and panel members and any proprietary information 
     from applicants.
       (B) Membership.--The Chairperson shall ensure that the 
     study sections of the Center for Scientific Review that 
     review applications submitted under this subsection are 
     selected solely on the basis of established records of 
     distinguished service and include--
       (i) for each of the fields of--

       (I) basic research;
       (II) medicine;
       (III) biopharmaceuticals;
       (IV) discovery and delivery of medical products;
       (V) bioinformatics and gene therapy; and
       (VI) medical instrumentation,

     at least 2 individuals with expertise in such fields;
       (ii) at least 3 representatives of professional venture 
     capital or private equity organizations with demonstrated 
     experience in private equity investing; and
       (iii) at least 3 representatives of disease advocacy 
     organizations.
       (C) Financial compensation.--Any agreement under 
     subparagraph (A) shall include an arrangement whereby the 
     Chairperson reimburses the Center for Scientific Review for 
     the services provided under such subparagraph.
       (6) Awards.--
       (A) The cures acceleration partnership awards.--
       (i) Initial award amount.--Each award under this 
     subparagraph shall be not more than $15,000,000 per project 
     for the first fiscal year for which the project is funded, 
     which shall be payable in one payment, except that the 
     Chairperson of the Board may increase the award amount for an 
     eligible entity if the Board so determines by a majority 
     vote.
       (ii) Funding in subsequent fiscal years.--An eligible 
     entity receiving an award under clause (i) may apply for 
     additional funding for such project by submitting to the 
     Board the information required under subparagraphs (B) and 
     (C) of paragraph (4). The Chairperson may fund a project of 
     such eligible entity in an amount not to exceed $15,000,000 
     for a fiscal year subsequent to the initial award under 
     clause (i) if the Board so determines by majority vote.
       (iii) Matching funds.--As a condition for receiving a grant 
     or contract under this subparagraph, an eligible entity shall 
     contribute to the project non-Federal funds in the amount of 
     $1 for every $3 awarded under clauses (i) and (ii), except 
     that the Chairperson may waive or modify such matching 
     requirement by a majority vote of the Board.
       (B) The cures acceleration grant awards.--
       (i) Initial award amount.--Each award under this 
     subparagraph shall be not more than $15,000,000 per project 
     for the first fiscal year for which the project is funded, 
     which shall be payable in one payment, except that the 
     Chairperson of the Board may increase the award amount for an 
     eligible entity if the Board so determines by a majority 
     vote.
       (ii) Funding in subsequent fiscal years.--An eligible 
     entity receiving an award under clause (i) may apply for 
     additional funding for such project by submitting to the 
     Board the information required under subparagraphs (B) and 
     (C) of paragraph (4). The Chairperson may fund a project of 
     such eligible entity in an amount not to exceed $15,000,000 
     for a fiscal year subsequent to the initial award under 
     clause (i) if the Board so determines by majority vote.
       (7) Suspension of awards for defaults, noncompliance with 
     provisions and plans, and diversion of funds; repayment of 
     funds.--The Chairperson may suspend the award to any entity 
     upon noncompliance by such entity with provisions and plans 
     under this section or diversion of funds.
       (8) Audits.--The Chairperson may enter into agreements with 
     other entities to conduct periodic audits of the projects 
     funded by grants or contracts awarded under this subsection.
       (9) Closeout procedures.--At the end of a grant or contract 
     period, a recipient shall follow the closeout procedures 
     under section 74.71 of title 45, Code of Federal Regulations 
     (or any successor regulation).
       (f) Staff.--The CAN may employ such officers and employees 
     (including experts and consultants), appointed by the 
     Chairperson, as may be necessary to enable the CAN to carry 
     out its functions under this section, and may employ and fix 
     the compensation of such officers and employees.
       (g) Gifts, Bequests, and Devises.--
       (1) In general.--The CAN may accept donations, bequests, 
     and devises, with or without conditions, and transfers for 
     tax purposes, for the purpose of aiding or facilitating the 
     work of the CAN subject to the following:
       (A) In any case in which money or other property is 
     donated, bequeathed, or devised to the CAN without 
     designation for the benefit of which such property is 
     intended, and without condition or restriction other than 
     that such property be used for the purposes of the CAN, such 
     property shall be deemed to have been donated, bequeathed, or 
     devised to the CAN and the Chairperson shall have authority 
     to receive such property.
       (B) In any case in which any money or other property is 
     donated, bequeathed, or devised to the CAN with a condition 
     or restriction, such property shall be deemed to have been 
     donated, bequeathed, or devised to the CAN whose function it 
     is to carry out the purpose or purposes described, or 
     referred to, by the terms of such condition or restriction, 
     and the Chairperson shall have authority to receive such 
     property.
       (C) For the purposes of subparagraph (B), if one or more of 
     the purposes of such a condition or restriction is covered by 
     the functions of the CAN, or if some of the purposes of such 
     a condition or restriction are covered by the CAN, the Board 
     shall determine an equitable manner for distribution by the 
     CAN of the property so donated, bequeathed, or devised.
       (D) For the purpose of Federal income tax, gift tax, and 
     estate tax laws, any money or other property donated, 
     bequeathed, or devised to the Chairperson pursuant to 
     authority derived under this subsection shall be deemed to 
     have been donated, bequeathed, or devised to, or for the use 
     of, the United States.
       (h) Conflicts of Interest.--
       (1) In general.--The Chairperson shall develop and enforce 
     conflict of interest policies for the CAN and shall respond 
     in a timely manner when such policies have been violated by a 
     recipient of funds provided under a grant or contract awarded 
     under this section.
       (2) Information.--
       (A) In general.--In the case in which the principal 
     investigator for a recipient described under subparagraph (B) 
     has a conflict of interest, the Chairperson shall require the 
     recipient to provide to the Chairperson the following 
     information:
       (i) The degree of the primary investigator's financial 
     interest, estimated to the nearest $1,000.
       (ii) A detailed report explaining how the recipient will 
     manage the primary investigator's conflict of interest.
       (B) Recipient.--A recipient described in this subparagraph 
     is a recipient--
       (i) of a grant or contract awarded under subsection (e); 
     and
       (ii) that receives more than $250,000 under such grant or 
     contract.
       (i) Authorization of Appropriations.--For purposes of 
     carrying out this section, there are authorized to be 
     appropriated--
       (1) for fiscal year 2010, $1,000,000,000 for awards 
     described under subsection (e)(6)(A), including associated 
     administrative costs;
       (2) for fiscal year 2010, $1,000,000,000 for awards 
     described under subsection (e)(6)(B), including associated 
     administrative costs; and
       (3) such sums as may be necessary for subsequent fiscal 
     years.

     SEC. 3. ORGANIZATION OF NATIONAL INSTITUTES OF HEALTH.

       (a) Redesignation of Center on Minority Health and Health 
     Disparities.--Title IV of the Public Health Service Act (42 
     U.S.C. 281 et seq.) is amended--
       (1) by redesignating subpart 6 of part E as subpart 20;
       (2) by transferring subpart 20, as so redesignated, to part 
     C of such title IV;
       (3) by inserting subpart 20, as so redesignated, after 
     subpart 19 of such part C; and
       (4) in subpart 20, as so redesignated--
       (A) by redesignating sections 485E through 485H as sections 
     464z-3 through 464z-6, respectively;
       (B) by striking ``National Center on Minority Health and 
     Health Disparities'' each place such term appears and 
     inserting ``National Institute on Minority Health and Health 
     Disparities''; and
       (C) by striking ``Center'' each place such term appears and 
     inserting ``Institute''.
       (b) Purpose of Institute.--Subsection (h) of section 464z-3 
     of the Public Health Service Act, as so redesignated, is 
     amended--
       (1) in paragraph (1), by striking ``research endowments at 
     centers of excellence under section 736.'' and inserting the 
     following: ``research endowments--
       ``(1) at centers of excellence under section 736; and
       ``(2) at centers of excellence under section 464z-4.''; and
       (2) in paragraph (2)(A), by striking ``average'' and 
     inserting ``median''.
       (c) Technical Amendment.--Section 401(b)(24) of the Public 
     Health Service Act (42 U.S.C. 281(b)(24)) is amended by 
     striking ``Center'' and inserting ``Institute''.
       (d) Conforming Amendment.--Subsection (d)(1) of section 903 
     of the Public Health Service Act (42 U.S.C. 299a-1(d)(1)) is 
     amended by striking ``section 485E'' and inserting ``section 
     464z-3''.

     SEC. 4. CONFLICTS OF INTEREST.

       Section 402 of the Public Health Service Act (42 U.S.C. 
     282) is amended by adding at the end the following:
       ``(m) Enforcement of Conflict of Interest Policies.--
       ``(1) In general.--The Director shall develop and enforce 
     the conflict of interest policies for the National Institutes 
     of Health

[[Page 10872]]

     and shall respond in a timely manner when such policies have 
     been violated by a recipient of funds provided under a grant 
     or contract awarded under this title.
       ``(2) Information.--
       ``(A) In general.--In the case in which the principal 
     investigator for a recipient described under subparagraph (B) 
     has a conflict of interest, the Director shall require the 
     recipient to provide to the Director the following 
     information:
       ``(i) The degree of the primary investigator's financial 
     interest, estimated to the nearest $1,000.
       ``(ii) A detailed report explaining how the recipient will 
     manage the primary investigator's conflict of interest.
       ``(B) Recipient.--A recipient described in this 
     subparagraph is a recipient--
       ``(i) of a grant or contract awarded under this title; and
       ``(ii) that receives more than $250,000 under such grant or 
     contract.''.

     SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

       (a) Authorization of Appropriations.--Section 402A of the 
     Public Health Service Act (42 U.S.C. 282a) is amended by 
     striking paragraphs (1) through (3) of subsection (a) and 
     inserting the following:
       ``(1) $40,000,000,000 for fiscal year 2010; and
       ``(2) such sums as may be necessary for each of fiscal 
     years 2011 and 2012.''.
       (b) Office of the Director.--Subparagraph (b) of section 
     402A of the Public Health Service Act (42 U.S.C. 282a(b)) is 
     amended by striking ``2007 through 2009'' and inserting 
     ``2010 through 2012''.

                               Supporters

       Autism Speaks, Association of Minority Health Professions 
     Schools, Morehouse School of Medicine, Meharry Medical 
     College, Charles Drew University of Medicine and Science, 
     Cure Alzheimer's Fund, American Thoracic Society, Scleroderma 
     Foundation, NephCure Foundation, National Marfan Foundation, 
     Crohn's and Colitis Foundation of America, Pulmonary 
     Hypertension Association, Biotechnology Industry 
     Organization, Melanoma Research Foundation, Alzheimer's 
     Association, Medical Library Association, Association of 
     Academic Health Sciences Libraries, American Lung 
     Association, Lupus Research Institute, S.L.E. Lupus 
     Foundation, Friends of Cancer Research, College on Problems 
     of Drug Dependence, Parkinson's Action Network.
                                 ______
                                 
      By Mr. GREGG:
  S. 917. A bill provide assistance to Pakistan under certain 
conditions, and for other purposes; to the Committee on Foreign 
Relations.
  Mr. GREGG. Mr. President, I rise today to introduce legislation that 
provides the President with extraordinary, but critical authority under 
section 451 of the Foreign Assistance Act of 1961 with respect to 
assistance for Pakistan.
  Specifically, the bill allows the President to reprogram up to 
$500,000,000 of previously appropriated foreign operations funds for 
assistance for Pakistan if the President determines that it is in the 
vital national security interests of the U.S. to do so.
  The President must still report promptly to Congress on the exercise 
of this authority, and it is my expectation--although not legally 
binding--that reprogrammed funds will be reimbursed in subsequent 
annual or supplemental appropriations bills.
  Extended until September 30, 2010, this authority is required because 
of the increasingly dire situation in Pakistan and alarming news 
reports of territorial gains by extremists. While I do not pretend to 
have the answers to Pakistan's myriad challenges, I do know that the 
administration lacks the necessary authority to reprogram significant 
funds to respond to further political and economic deterioration in 
that country. Should the government of Pakistani President Zardari 
collapse, the administration will need maximum flexibility in its 
response.
  I can anticipate some may have a knee jerk reaction to the provision 
of such extraordinary authority. In response, I would remind my 
colleagues that regardless of their opinions of Pakistan's messy 
political situation, events in Pakistan directly impact Afghanistan--
and our troops on the ground there.
  Of course, this is in addition to the impact that destabilization 
would have on Pakistan's nuclear complex, specifically the combination 
of dozens of nuclear weapons, untested security systems, and a surplus 
of Islamic militants in the area. These issues are at the forefront of 
our security interests in the region and would exacerbate exponentially 
the impact of destabilization.
  It might interest my colleagues to know that current law limits 
section 451 reprogram authority to $25,000,000. In contrast, the 
supplemental budget request seeks $4,000,000,000 in special transfer 
authority for the Department of Defense to meet emerging requirements. 
Surely, the State Department should also have increased flexibility to 
react promptly to the economic and security needs of Pakistan should 
the worst case scenario transpire.
  I urge the relevant Committee to consider and act upon this 
legislation quickly.
                                 ______
                                 
      By Mr. AKAKA:
  S. 919. A bill to amend section 1154 of title 58, United States Code, 
to clarify the additional requirements for consideration to be afforded 
time, place, and circumstances of service in determinations regarding 
service-connected disabilities; to the Committee on Veterans' Affairs.
  Mr. AKAKA. Mr. President, I am today introducing the proposed 
Clarification of Characteristics of Combat Service Act of 2009. This 
legislation is designed to address concerns which have been noted 
during the Committee's oversight visits to VA regional offices. From 
the review of claims folders as part of ongoing oversight, Committee 
staff has noted that VA adjudicators often fail to factor in the 
existence of common occurrences when considering claims from combat 
veterans because there is no formal evidence on the matters in question 
in the claimant's official military records.
  When common hazards exist in particular areas where our armed forces 
have or are serving, a means must be established to determine whether a 
particular veteran's claim of exposure to such hazard or matter is 
consistent with the circumstances of service in that area, even without 
evidence in individual official records. This proposed bill would 
establish a mechanism by requiring VA to promulgate regulations that 
would include standards that VA adjudicators would use for evaluating 
the consistency between lay evidence and claimed matters, such as 
exposure to factors common to servicemembers serving in particular 
combat areas.
  This proposed bill is intended to result in recognition by VA that, 
where there is evidence of common events, a veteran's testimony, if 
consistent with other evidence, would be accepted without requiring 
specific, formal evidence of individual exposure to the event. By law, 
lay testimony is currently recognized in claims where a veteran served 
in a military unit which participated in combat. While this bill is not 
intended to provide a presumption of service-connection for any 
particular disability, it should improve the accurate adjudication of 
claims in those cases where a veteran served in an area where certain 
events or exposures are widespread.
  For example, there is widespread agreement that those who have served 
in Iraq since the start of the conflict there have been exposed to 
improvised explosive devices--IEDs. However, based on Committee 
oversight, it appears that it often happens that, when a veteran 
applies for compensation for disabilities related to IED exposure, such 
as tinnitus, the claim may be denied if the veteran's service medical 
record does not show treatment for tinnitus in service or otherwise 
documents exposure to an IED. Since it would be highly unusual to find 
documentation of treatment where a veteran in a combat zone has 
consulted with medical personnel for a relatively minor condition, such 
as exposure to an IED which did not cause acute observable injury, the 
formal records would not be of use to the claimant. The regulations 
required by the legislation I am introducing would likely include 
provision for conceding exposure to an IED in claims brought by 
veterans who served in Iraq.
  Another example of the problems that the legislation is designed to 
address involves claims from Korean war veterans, many of whom were 
exposed to extreme cold, but whose records may not have documentation 
of treatment for a cold injury or information on the actual temperature 
to which they were exposed. I would anticipate that the regulations 
required by this

[[Page 10873]]

legislation would provide for VA to concede exposure to subfreezing 
temperatures in such cases if consistent with the location where the 
veteran served.
  I expect that this measure should speed the processing by claims, by 
not requiring each veteran to individually establish by official 
government records, which often do not document individual 
participation, exposure to one or more events which are well 
established as circumstances involving the place and type of the 
veteran's service.
  In closing, I note that this legislation has been developed in 
consultation with VA and with a variety of individuals and groups 
interested in VA claims but I do not view it as a final approach. I 
look forward to working with my colleagues on the Committee and in the 
Senate, as well as with those with an interest in this issue, to 
improve this bill so that combat veterans of the current conflicts and 
of earlier conflicts who allege exposure to well-recognized events will 
not be burdened by requirements of acquiring official evidence of 
individual participation in such events. This should help veterans 
receive the benefits they deserve in a timely manner. I urge support 
for this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 919

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Clarification of 
     Characteristics of Combat Service Act of 2009''.

     SEC. 2. CLARIFICATION OF ADDITIONAL REQUIREMENTS FOR 
                   CONSIDERATION TO BE AFFORDED TIME, PLACE, AND 
                   CIRCUMSTANCES OF SERVICE IN DETERMINATIONS 
                   REGARDING SERVICE-CONNECTED DISABILITIES.

       Subsection (a) of section 1154 of title 38, United States 
     Code, is amended to read as follows:
       ``(a)(1) The Secretary shall include in the regulations 
     pertaining to service-connection of disabilities the 
     following:
       ``(A) Additional provisions in effect requiring that in 
     each case where a veteran is seeking service-connection for 
     any disability due consideration shall be given to the 
     places, types, and circumstances of such veteran's service as 
     shown by such veteran's service record, the official history 
     of each organization in which such veteran served, such 
     veteran's medical records, and all pertinent medical and lay 
     evidence.
       ``(B) Additional provisions specifying that, in the case of 
     a veteran who served in a particular combat zone, the 
     Secretary shall accept credible lay or other evidence as 
     sufficient proof that the veteran encountered an event that 
     the Secretary specifies in such regulations as associated 
     with service in particular locations where the veteran served 
     or in particular circumstances under which the veteran served 
     in such combat zone.
       ``(C) The provisions required by section 5 of the Veterans' 
     Dioxin and Radiation Exposure Compensation Standards Act 
     (Public Law 98-542; 98 Stat. 2727).
       ``(2) In paragraph (1)(B), the term `combat zone' means a 
     combat zone for purposes of section 112 of the Internal 
     Revenue Code of 1986 or a predecessor provision of law.''.
                                 ______
                                 
      By Mr. CARPER (for himself, Ms. Collins, Mr. Lieberman, and Mr. 
        Voinovich):
  S. 920. A bill to amend section 11317 of title 40, United States 
Code, to improve the transparency of the status of information 
technology investments, to require greater accountability for cost 
overruns on Federal information technology investment projects, to 
improve the processes agencies implement to manage information 
technology investments, to reward excellence in information technology 
acquisition, and for other purposes; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. CARPER. Mr. President, I rise today to introduce two bills, S. 
920 and S. 921, that I believe could represent the most sweeping 
reforms of government information technology management reform we've 
considered in some time.
  I would like to start by addressing the IT Investment Oversight and 
Waste Prevention Act.
  Every year, agencies spend billions of dollars on IT investments that 
they believe will increase productivity, reduce costs, or improve 
customer service. But agencies often fail to properly plan and manage 
their investments. Rather, nearly one third of all Federal IT 
investments are considered by OMB to be ``poorly planned.'' Many of 
these investments will be delivered over budget, behind schedule, and 
not performing up to agencies' original expectations.
  Some might say that we just shouldn't make these kinds of 
investments. But many of them are critical to agency missions.
  My colleagues and I on the Homeland Security and Governmental Affairs 
Committee's Subcommittee on Federal Financial Management, which I 
chair, have held four hearings on the issue of troubled IT investments 
now, including one today. And what we've learned is that some agencies 
can't keep the expected cost of their investments down or deliver them 
on time as promised. Nor do these agencies, in many cases, have 
qualified IT experts they can turn to before a project spirals out of 
control. The bill I have put forward today along with a number of my 
colleagues addresses these issues.
  Our bill starts by requiring the Office of Management and Budget to 
increase the transparency of funded IT investments on a public website. 
OMB created such a website, known as VUE-IT, this past July following 
one of our subcommittee hearings. Our bill would ensure that VUE-IT or 
whatever similar site the new Obama team creates has the cost, 
schedule, and performance necessary for Congress and the general public 
to know if a project is a success or should be scrapped.
  Our bill also requires that agency plans for new IT systems must 
contain a clear business case and provide complete and accurate 
information before the OMB approves the investments. Although this 
sounds like a simple concept, it doesn't always happen. And OMB has 
historically been unwilling to turn down an agency IT request.
  To correct this, our bill also empowers OMB and agency Chief 
Information Officers to take action if they realize a project isn't 
going as planned, before it spirals out of control. This action could 
be the assignment of highly-trained IT experts who could help bring 
projects back on track.
  Lastly, our bill recognizes that there are a lot of innovative and 
hardworking federal employees that deserve recognition for the work 
they do in information technology. Our bill requires the Office of 
Personnel Management to provide agencies guidance on programs that can 
be set up to reward employees for their excellence.
  Now, I would like to discuss my next bill titled the United States 
Information and Communications Enhancement Act of 2009.
  Everyday, massive amounts of information are transmitted across the 
global information infrastructure. Some of this information is routine 
email between friends and family. Much of it, however, consists of 
highly sensitive military information, however, or commercial secrets.
  As all of us can attest to, increasing global interconnectivity has 
greatly increased our productivity and ability to communicate. However, 
it has also increased our responsibility to make sure this information 
is protected.
  The Federal Government stores within its databases some of our 
nation's most critical military, economic, and commercial secrets. 
Great harm could be caused if it were to fall into the wrong hands. 
Knowing this, hackers, criminal organizations, and even other countries 
are spending a good deal of money and time trying to access it.
  In fact, just last week we learned that someone had gone online and 
stolen our military's most advanced jet fighter plans with the stroke 
of a button. The cost to the American taxpayer for this single incident 
is approximately $300 billion worth of research and development, and an 
incalculable amount if the information were to ever be used against us.
  Unfortunately, many agencies have not done as much as they should be 
doing to prevent these cyber intrusions. Instead they have been led to 
believe that producing plans about cyber security is equivalent to 
actually monitoring and protecting their networks. My bill will correct 
this.

[[Page 10874]]

  First, my bill recognizes that there needs to be a coordinating 
office to oversee the multiple agencies that have a hand in cyber 
space. Today, the NSA and the Departments of Homeland Security and 
Defense all have different roles when it comes to securing cyber 
networks in the federal government and the private sector. Their 
efforts are largely uncoordinated and ineffective. This bill creates a 
White House office with a director confirmed by the Senate whose major 
responsibility would be to rectify this situation
  My bill also ensures that agencies are spending scarce resources 
effectively. Instead of agencies wasting precious resources producing 
security plans that are outdated as soon they are printed, my bill 
requires agencies to continuously monitor their networks for cyber 
intrusions and malicious activities, take steps to address their 
vulnerabilities, and then regularly test whether the steps they are 
taking to secure their networks are effective.
  My bill also requires the General Service Administration to harness 
the significant purchasing power of the federal government to purchase 
more secure hardware and software. This is the model the Air Force used 
a few years ago with Microsoft and it led to a savings of approximately 
$98 million in one year and an enhanced security posture. This is a 
successful model that we should continue throughout the federal 
government.
  Lastly, my bill recognizes that the Department of Homeland Security 
has taken the lead among civilian agencies in protecting the perimeter 
of the federal government but lacks some of the necessary authority and 
technical people necessary to realize a more secure civilian cyber 
space. Therefore, our bill will require agencies to develop policy and 
guidance for coordinating with US-CERT and give the Director of US-CERT 
the ability to hire the personnel needed to defend our national 
security.
  I look forward to working with my colleagues to get these important 
and necessary reforms enacted before it's too late. I think everyone 
can agree that computers, the Internet, and cutting-edge technology 
have greatly benefited our government and our society. But we also need 
to recognize that it has greatly increased the threats we face on a 
daily basis.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 920

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Information Technology (IT) 
     Investment Oversight Enhancement and Waste Prevention Act of 
     2009''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The effective deployment of information technology can 
     make the Federal Government more efficient, effective, and 
     transparent.
       (2) Historically, the Federal Government has struggled to 
     properly plan, manage, and deliver information technology 
     investments on time, on budget, and performing as planned.
       (3) The Office of Management and Budget has made 
     significant progress overseeing information technology 
     investments made by Federal agencies but continues to 
     struggle to ensure that such investments meet cost, schedule, 
     and performance expectations.
       (4) Congress has limited knowledge of the actual cost, 
     schedule, and performance of agency information technology 
     investments and has difficulty providing the necessary 
     oversight.
       (5) In July 2008, an official of the Government 
     Accountability Office testified before the Subcommittee on 
     Federal Financial Management, Government Information, Federal 
     Services, and International Security of the Committee on 
     Homeland Security and Governmental Affairs of the Senate, 
     stating that--
       (A) agencies self-report inaccurate and unreliable project 
     management data to the Office of Management and Budget and 
     Congress; and
       (B) the Office of Management and Budget should establish a 
     mechanism that would provide real-time project management 
     information and force agencies to improve the accuracy and 
     reliability of the information provided.

     SEC. 3. REAL-TIME TRANSPARENCY OF IT INVESTMENT PROJECTS.

       Section 11302(c)(1) of title 40, United States Code, is 
     amended by striking the period at the end and inserting the 
     following: ``, including establishing a Website, updating the 
     Website on a quarterly basis, and including on the Website, 
     not later than 90 days after the date of the enactment of the 
     Information Technology (IT) Investment Oversight Enhancement 
     and Waste Prevention Act of 2009--
       ``(1) the cost, schedule, and performance of all major 
     information technology investments using earned-value 
     management data based on the ANSI-EIA-748-B standard;
       ``(2) accurate quarterly information since the commencement 
     of the project;
       ``(3) a graphical depiction of trend information since the 
     commencement of the project;
       ``(4) a clear delineation of investments that have 
     experienced cost, schedule, or performance variance greater 
     than 10 percent over the life cycle of the investment;
       ``(5) an explanation of the reasons the investment deviated 
     from the benchmark established at the commencement of the 
     project; and
       ``(6) the number of times investments were rebaselined and 
     the dates on which such rebaselines occurred.''.

     SEC. 4. IT INVESTMENT PROJECTS.

       (a) Significant and Gross Deviations.--Section 11317 of 
     title 40, United States Code, is amended to read as follows:

     ``SEC. 11317. SIGNIFICANT AND GROSS DEVIATIONS.

       ``(a) Definitions.--In this subchapter:
       ``(1) Agency head.--The term `Agency Head' means the head 
     of the Federal agency that is primarily responsible for the 
     IT investment project under review.
       ``(2) ANSI eia-748-b standard.--The term `ANSI EIA-748-B 
     Standard' means the measurement tool jointly developed by the 
     American National Standards Institute and the Electronic 
     Industries Alliance to analyze Earned Value Management 
     systems.
       ``(3) Appropriate congressional committees.--The term 
     `appropriate congressional committees' means--
       ``(A) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       ``(B) the Committee on Oversight and Government Reform of 
     the House of Representatives;
       ``(C) the Committee on Appropriations of the Senate;
       ``(D) the Committee on Appropriations of the House of 
     Representatives; and
       ``(E) any other relevant congressional committee with 
     jurisdiction over an agency required to take action under 
     this section.
       ``(4) Chief information officer.--The term `Chief 
     Information Officer' means the Chief Information Officer 
     designated under section 3506(a)(2) of title 44 of the 
     Federal agency that is primarily responsible for the IT 
     investment project under review.
       ``(5) Core it investment project.--The terms `core IT 
     investment project' and `core project' mean a mission 
     critical IT investment project designated as such by the 
     Chief Information Officer, with approval by the Agency Head 
     under subsection (b).
       ``(6) Director.--The term `Director' means the Director of 
     the Office of Management and Budget.
       ``(7) Earned value management.--The term `Earned Value 
     Management' means the cost, performance, and schedule data 
     used to determine project status and developed in accordance 
     with the ANSI EIA-748-B Standard.
       ``(8) Grossly deviated.--The term `grossly deviated' means 
     cost, schedule, or performance variance that is at least 40 
     percent from the Original Baseline.
       ``(9) Independent government cost estimate.--The term 
     `independent government cost estimate' means a pragmatic and 
     neutral analysis, assessment, and quantification of all costs 
     and risks associated with the acquisition of an IT investment 
     project, which--
       ``(A) is based on programmatic and technical specifications 
     provided by the office within the agency with primary 
     responsibility for the development, procurement, and delivery 
     of the project;
       ``(B) is formulated and provided by an entity other than 
     the office within the agency with primary responsibility for 
     the development, procurement, and delivery of the project;
       ``(C) contains sufficient detail to inform the selection of 
     an Earned Value Management baseline benchmark measure under 
     the ANSI EIA-748-B standard; and
       ``(D) accounts for the full life cycle cost plus associated 
     operations and maintenance expenses over the usable life of 
     the project's deliverables.
       ``(10) IT investment project.--The terms `IT investment 
     project' and `project' mean an information technology system 
     or information technology acquisition that--
       ``(A) requires special management attention because of its 
     importance to the mission or function of the agency, a 
     component of the agency, or another organization;
       ``(B) is for financial management and obligates more than 
     $500,000 annually;
       ``(C) has significant program or policy implications;
       ``(D) has high executive visibility;
       ``(E) has high development, operating, or maintenance 
     costs;

[[Page 10875]]

       ``(F) is funded through other than direct appropriations; 
     or
       ``(G) is defined as major by the agency's capital planning 
     and investment control process.
       ``(11) Life cycle cost.--The term `life cycle cost' means 
     the total cost of an IT investment project for planning, 
     research and development, modernization, enhancement, 
     operation, and maintenance.
       ``(12) Original baseline.--
       ``(A) In general.--Except as provided under subparagraph 
     (B), the term `Original Baseline' means the ANSI EIA-748-B 
     Standard-compliant Earned Value Management benchmark 
     established at the commencement of an IT investment project.
       ``(B) Grossly deviated project.--If an IT investment 
     project grossly deviates from its Original Baseline (as 
     defined in subparagraph (A)), the term `Original Baseline' 
     means the ANSI EIA-748-B Standard-compliant Earned Value 
     Management benchmark established under subsection (e)(3)(C).
       ``(13) Significantly deviated.--The term `significantly 
     deviated' means Earned Value Management variance that is at 
     least 20 percent from the Original Baseline.
       ``(b) Core IT Investment Projects Designation.--Each Chief 
     Information Officer, with approval by the Agency Head, 
     shall--
       ``(1) identify the major IT investments that are the most 
     critical to the agency; and
       ``(2) designate any project as a `core IT investment 
     project' or a `core project', upon determining that the 
     project is a mission critical IT investment project that--
       ``(A) represents a significant high dollar value relative 
     to the average IT investment project in the agency's 
     portfolio;
       ``(B) delivers a capability critical to the successful 
     completion of the agency mission, or a portion of such 
     mission;
       ``(C) incorporates unproven or previously undeveloped 
     technology to meet primary project technical requirements; or
       ``(D) would have a significant negative impact on the 
     successful completion of the agency mission if the project 
     experienced significant cost, schedule, or performance 
     deviations.
       ``(c) Cost, Schedule, and Performance Reports.--
       ``(1) Quarterly reports.--Not later than 14 days after the 
     end of each fiscal quarter, the project manager designated by 
     the Agency Head for an IT investment project shall submit a 
     written report to the Chief Information Officer that 
     includes, as of the last day of the applicable quarter--
       ``(A) a description of the cost, schedule, and performance 
     of all projects under the project manager's supervision;
       ``(B) the original and current project cost, schedule, and 
     performance benchmarks for each project under the project 
     manager's supervision;
       ``(C) the quarterly and cumulative cost, schedule, and 
     performance variance related to each IT investment project 
     under the project manager's supervision since the 
     commencement of the project;
       ``(D) for each project under the project manager's 
     supervision, any known, expected, or anticipated changes to 
     project schedule milestones or project performance benchmarks 
     included as part of the original or current baseline 
     description;
       ``(E) the current cost, schedule, and performance status of 
     all projects under supervision that were previously 
     identified as significantly deviated or grossly deviated; and
       ``(F) any corrective actions taken to address problems 
     discovered under subparagraphs (C) through (E).
       ``(2) Interim reports.--If the project manager for an IT 
     investment project determines that there is reasonable cause 
     to believe that an IT investment project has significantly 
     deviated or grossly deviated since the issuance of the latest 
     quarterly report, the project manager shall submit to the 
     Chief Information Officer, not later than 14 days after such 
     determination, a report on the project that includes, as of 
     the date of the report--
       ``(A) a description of the original and current program 
     cost, schedule, and performance benchmarks;
       ``(B) the cost, schedule, or performance variance related 
     to the IT investment project since the commencement of the 
     project;
       ``(C) any known, expected, or anticipated changes to the 
     project schedule milestones or project performance benchmarks 
     included as part of the original or current baseline 
     description;
       ``(D) the major reasons underlying the significant or gross 
     deviation of the project; and
       ``(E) a corrective action plan to correct such deviations.
       ``(d) Determination of Significant Deviation.--
       ``(1) Chief information officer.--Upon receiving a report 
     under subsection (c), the Chief Information Officer shall--
       ``(A) determine if any IT investment project has 
     significantly deviated; and
       ``(B) report such determination to the Agency Head.
       ``(2) Congressional notification.--If the Chief Information 
     Officer determines under paragraph (1) that an IT investment 
     project has significantly deviated and the Agency Head has 
     not issued a report to the appropriate congressional 
     committees of a significant deviation for that project under 
     this section since the project was last required to be 
     rebaselined under this section, the Agency Head shall submit 
     a report to the appropriate congressional committees, the 
     Director, and the Government Accountability Office that 
     includes--
       ``(A) written notification of such determination;
       ``(B) the date on which such determination was made;
       ``(C) the amount of the cost increases and the extent of 
     the schedule delays with respect to such project;
       ``(D) any requirements that--
       ``(i) were added subsequent to the original contract; or
       ``(ii) were originally contracted for, but were changed by 
     deferment or deletion from the original schedule, or were 
     otherwise no longer included in the requirements contracted 
     for;
       ``(E) an explanation of the differences between--
       ``(i) the estimate at completion between the project 
     manager, any contractor, and any independent analysis; and
       ``(ii) the original budget at completion;
       ``(F) a statement of the reasons underlying the project's 
     significant deviation; and
       ``(G) a summary of the plan of action to remedy the 
     significant deviation.
       ``(3) Deadline.--
       ``(A) Notification based on quarterly report.--If the 
     determination of significant deviation is based on a report 
     submitted under subsection (c)(1), the Agency Head shall 
     notify Congress and the Director in accordance with paragraph 
     (2) not later than 21 days after the end of the quarter upon 
     which such report is based.
       ``(B) Notification based on interim report.--If the 
     determination of significant deviation is based on a report 
     submitted under subsection (c)(2), the Agency Head shall 
     notify Congress and the Director in accordance with paragraph 
     (2) not later than 21 days after the submission of such 
     report.
       ``(e) Determination of Gross Deviation.--
       ``(1) Chief information officer.--Upon receiving a report 
     under subsection (c), the Chief Information Officer shall--
       ``(A) determine if any IT investment project has grossly 
     deviated; and
       ``(B) report any such determination to the Agency Head.
       ``(2) Congressional notification.--If the Chief Information 
     Officer determines under paragraph (1) that an IT investment 
     project has grossly deviated and the Agency Head has not 
     issued a report to the appropriate congressional committees 
     of a gross deviation for that project under this section 
     since the project was last required to be rebaselined under 
     this section, the Agency Head shall submit a report to the 
     appropriate congressional committees, the Director, and the 
     Government Accountability Office that includes--
       ``(A) written notification of such determination, which--
       ``(i) identifies the date on which such determination was 
     made; and
       ``(ii) indicates whether or not the project has been 
     previously reported as a significant or gross deviation by 
     the Chief Information Officer, and the date of any such 
     report;
       ``(B) incorporations by reference of all prior reports to 
     Congress on the project required under this section;
       ``(C) updated accounts of the items described in 
     subparagraphs (C) through (G) of subsection (d)(2);
       ``(D) the original estimate at completion for the project 
     manager, any contractor, and any independent analysis;
       ``(E) a graphical depiction that shows monthly planned 
     expenditures against actual expenditures since the 
     commencement of the project;
       ``(F) the amount, if any, of incentive or award fees any 
     contractor has received since the commencement of the 
     contract and the reasons for receiving such incentive or 
     award fees;
       ``(G) the project manager's estimated cost at completion 
     and estimated completion date for the project if current 
     requirements are not modified;
       ``(H) the project manager's estimated cost at completion 
     and estimated completion date for the project based on 
     reasonable modification of such requirements;
       ``(I) an explanation of the most significant occurrence 
     contributing to the variance identified, including cost, 
     schedule, and performance variances, and the effect such 
     occurrence will have on future project costs and program 
     schedule;
       ``(J) a statement regarding previous or anticipated 
     rebaselining or replanning of the project and the names of 
     the individuals responsible for approval;
       ``(K) the original life cycle cost of the investment and 
     the expected life cycle cost of the investment expressed in 
     constant base year dollars and in current dollars; and
       ``(L) a comprehensive plan of action to remedy the gross 
     deviation, and milestones established to control future cost, 
     schedule, and performance deviations in the future.
       ``(3) Remedial action.--
       ``(A) In general.--If the Chief Information Officer 
     determines under paragraph (1)(A) that an IT investment 
     project has grossly deviated, the Agency Head, in 
     consultation

[[Page 10876]]

     with the Chief Information Officer and the appropriate 
     project manager, shall develop and implement a remedial 
     action plan that includes--
       ``(i) a report that--

       ``(I) describes the primary business case and key 
     functional requirements for the project;
       ``(II) describes any portions of the project that have 
     technical requirements of sufficient clarity that such 
     portions may be feasibly procured under firm, fixed-price 
     type contract;
       ``(III) includes a certification by the Agency Head, after 
     consultation with the Chief Information Officer, that all 
     technical and business requirements have been reviewed and 
     validated to ensure alignment with the reported business 
     case;
       ``(IV) describes any changes to the primary business case 
     or key functional requirements which have occurred since 
     project inception; and
       ``(V) includes an independent government cost estimate for 
     the project conducted by an entity approved by the Director;

       ``(ii) an analysis that--

       ``(I) describes agency business goals that the project was 
     originally designed to address;
       ``(II) includes a gap analysis of what project deliverables 
     remain in order for the agency to accomplish the business 
     goals referred to in subclause (I);
       ``(III) identifies the 3 most cost-effective alternative 
     approaches to the project which would achieve the business 
     goals referred to in subclause (I); and
       ``(IV) includes a cost-benefit analysis, which compares--

       ``(aa) the completion of the project with the completion of 
     each alternative approach, after factoring in future costs 
     associated with the termination of the project; and
       ``(bb) the termination of the project without pursuit of 
     alternatives, after factoring in foregone benefits; and
       ``(iii) a new baseline of the project is established that 
     is consistent with the independent government cost estimate 
     required under clause (i)(V); and
       ``(iv) the project is designated as a core IT investment 
     project and subjected to the requirements under subsection 
     (f).
       ``(B) Submission to congress.--The remedial action plan and 
     all corresponding reports, analyses, and actions under this 
     paragraph shall be submitted to the appropriate congressional 
     committees and the Director.
       ``(C) Reporting and analysis exemptions.--
       ``(i) In general.--The Chief Information Officer, in 
     coordination with the Agency Head and the Director, may 
     forego the completion of any element of a report or analysis 
     under clause (i) or (ii) of subparagraph (A) if the Chief 
     Information Officer determines that such element is not 
     relevant to the understanding of the difficulties facing the 
     project or that such element does not further the remedial 
     steps necessary to ensure that the project is completed in a 
     timely and cost-efficient manner.
       ``(ii) Identification of reasons.--The Chief Information 
     Officer shall include the reasons for not including any 
     element referred to in clause (i) in the report submitted to 
     Congress under subparagraph (B).
       ``(4) Deadline and funding contingency.--
       ``(A) Notification and remedial action based on quarterly 
     report.--
       ``(i) In general.--If the determination of gross deviation 
     is based on a report submitted under subsection (c)(1), the 
     Agency Head shall--

       ``(I) not later than 45 days after the end of the quarter 
     upon which such report is based, notify the appropriate 
     congressional committees and the Director in accordance with 
     paragraph (2); and
       ``(II) not later than 180 days after the end of the quarter 
     upon which such report is based, ensure the completion of 
     remedial action under paragraph (3).

       ``(ii) Failure to meet deadlines.--If the Agency Head fails 
     to meet the deadline described in clause (i)(II), additional 
     funds may not be obligated to support expenditures associated 
     with the project until the requirements of this subsection 
     have been fulfilled.
       ``(B) Notification and remedial action based on interim 
     report.--
       ``(i) In general.--If the determination of gross deviation 
     is based on a report submitted under subsection (c)(2), the 
     Agency Head shall--

       ``(I) not later than 45 days after the submission of such 
     report, notify the appropriate congressional committees in 
     accordance with paragraph (2); and
       ``(II) not later than 180 days after the submission of such 
     report, ensure the completion of remedial action in 
     accordance with paragraph (3).

       ``(ii) Failure to meet deadlines.--If the Agency Head fails 
     to meet the deadline described in clause (i)(II), additional 
     funds may not be obligated to support expenditures associated 
     with the project until the requirements of this subsection 
     have been fulfilled.
       ``(f) Additional Requirements for Core IT Investment 
     Project Reports.--
       ``(1) Initial report.--If a remedial action plan described 
     in subsection (e)(3)(A) has not been submitted for a core IT 
     investment project, the Agency Head, in coordination with the 
     Chief Information Officer and responsible program managers, 
     shall prepare an initial report for inclusion in the first 
     budget submitted to Congress under section 1105(a) of title 
     31, United States Code, after the designation of a project as 
     a core IT investment project, which includes--
       ``(A) a description of the primary business case and key 
     functional requirements for the project;
       ``(B) an identification and description of any portions of 
     the project that have technical requirements of sufficient 
     clarity that such portions may be feasibly procured under 
     firm, fixed-price contracts;
       ``(C) an independent government cost estimate for the 
     project;
       ``(D) certification by the Chief Information Officer that 
     all technical and business requirements have been reviewed 
     and validated to ensure alignment with the reported business 
     case; and
       ``(E) any changes to the primary business case or key 
     functional requirements which have occurred since project 
     inception.
       ``(2) Quarterly review of business case.--The Agency Head, 
     in coordination with the Chief Information Officer and 
     responsible program managers, shall--
       ``(A) monitor the primary business case and core 
     functionality requirements reported to Congress and the 
     Director for designated core IT investment projects; and
       ``(B) if changes to the primary business case or key 
     functional requirements for a core IT investment project 
     occur in any fiscal quarter, submit a report to Congress and 
     the Director not later than 14 days after the end of such 
     quarter that details the changes and describes the impact the 
     changes will have on the cost and ultimate effectiveness of 
     the project.
       ``(3) Alternative significant deviation determination.--If 
     the Chief Information Officer determines, subsequent to a 
     change in the primary business case or key functional 
     requirements, that without such change the project would have 
     significantly deviated--
       ``(A) the Chief Information Officer shall notify the Agency 
     Head of the significant deviation; and
       ``(B) the Agency Head shall fulfill the requirements under 
     subsection (d)(2) in accordance with the deadlines under 
     subsection (d)(3).
       ``(4) Alternative gross deviation determination.--If the 
     Chief Information Officer determines, subsequent to a change 
     in the primary business case or key functional requirements, 
     that without such change the project would have grossly 
     deviated--
       ``(A) the Chief Information Officer shall notify the Agency 
     Head of the gross deviation; and
       ``(B) the Agency Head shall fulfill the requirements under 
     subsections (e)(2) and (e)(3) in accordance with subsection 
     (e)(4).''.
       (b) Inclusion in the Budget Submitted to Congress.--Section 
     1105(a) of title 31, United States Code, is amended--
       (1) in the matter preceding paragraph (1), by striking 
     ``include in each budget the following:'' and inserting 
     ``include in each budget--'';
       (2) by redesignating the second paragraph (33) (as added by 
     section 889(a) of Public Law 107-296) as paragraph (35);
       (3) in each of paragraphs (1) through (34), by striking the 
     period at the end and inserting a semicolon;
       (4) in paragraph (35), as redesignated by paragraph (2), by 
     striking the period at the end and inserting ``; and''; and
       (5) by adding at the end the following:
       ``(36) the reports prepared under section 11317(f) of title 
     40, United States Code, relating to the core IT investment 
     projects of the agency.''.
       (c) Improvement of Information Technology Acquisition and 
     Development.--Subchapter II of chapter 113 of title 40, 
     United States Code, is amended by adding at the end the 
     following:

     ``SEC. 11319. ACQUISITION AND DEVELOPMENT.

       ``(a) Purpose.--The objective of this section is to 
     significantly reduce--
       ``(1) cost overruns and schedule slippage from the 
     estimates established at the time the program is initially 
     approved;
       ``(2) the number of requirements and business objectives at 
     the time the program is approved that are not met by the 
     delivered products; and
       ``(3) the number of critical defects and serious defects in 
     delivered information technology.
       ``(b) OMB Guidance.--The Director of the Office of 
     Management and Budget shall--
       ``(1) not later than 180 days after the date of the 
     enactment of this section, prescribe uniformly applicable 
     guidance for agencies to implement the requirements of this 
     section, which shall not include any exemptions to such 
     requirements not specifically authorized under this section; 
     and
       ``(2) take any actions that are necessary to ensure that 
     Federal agencies are in compliance with the guidance 
     prescribed pursuant to paragraph (1) not later than 1 year 
     after the date of the enactment of this section.
       ``(c) Establishment of Program.--Not later than 120 days 
     after the date of the enactment of this section, each Chief 
     Information Officer, upon the approval of the Agency Head (as 
     defined in section 11317(a) of title 40, United States Code) 
     shall establish a program to improve the information 
     technology (referred to in this section as `IT') processes 
     overseen by the Chief Information Officer.

[[Page 10877]]

       ``(d) Program Requirements.--Each program established 
     pursuant to this section shall include--
       ``(1) a documented process for IT acquisition planning, 
     requirements development and management, project management 
     and oversight, earned-value management, and risk management;
       ``(2) the development of appropriate metrics that can be 
     implemented and monitored on a real-time dashboard for 
     performance measurement of--
       ``(A) processes and development status of investments;
       ``(B) continuous process improvement of the program; and
       ``(C) achievement of program and investment outcomes;
       ``(3) a process to ensure that key program personnel have 
     an appropriate level of experience, training, and education, 
     at an institution or institutions approved by the Director, 
     in the planning, acquisition, execution, management, and 
     oversight of IT;
       ``(4) a process to ensure that the agency implements and 
     adheres to established processes and requirements relating to 
     the planning, acquisition, execution, management, and 
     oversight of IT programs and developments; and
       ``(5) a process for the Chief Information Officer to 
     intervene or stop the funding of an IT investment if it is at 
     risk of not achieving major project milestones.
       ``(e) Annual Report to OMB.--Not later than the last day of 
     February of each year, the Agency Head shall submit a report 
     to the Office of Management and Budget that includes--
       ``(1) a detailed summary of the accomplishments of the 
     program established by the Agency Head pursuant to this 
     section;
       ``(2) the status of completeness of implementation of each 
     of the program requirements, and the date each such 
     requirement was deemed to be completed;
       ``(3) the percentage of Federal IT projects covered under 
     the program compared to all of the IT projects of the agency, 
     listed by number of programs and by annual dollars expended;
       ``(4) a detailed breakdown of the sources and uses of the 
     amounts spent by the agency during the previous fiscal year 
     to support the activities of the program;
       ``(5) a copy of any guidance issued under the program and a 
     statement regarding whether each such guidance is mandatory;
       ``(6) the identification of the metrics developed in 
     accordance with subsection (b)(2);
       ``(7) a description of how paragraphs (3) and (4) of 
     subsection (b) have been implemented and any related agency 
     guidance; and
       ``(8) a description of how agencies will continue to review 
     and update the implementation and objectives of such 
     guidance.
       ``(f) Annual Report to Congress.--The Director of the 
     Office of Management and Budget shall provide an annual 
     report to Congress on the status and implementation of the 
     program established pursuant to this section.''.
       (d) Clerical Amendments.--The table of sections for chapter 
     113 of title 40, United States Code, is amended--
       (1) by striking the item relating to section 11317 and 
     inserting the following:

``11317. Significant and gross deviations.'';

and
       (2) by inserting after the item relating to section 11318 
     the following:

``11319. Acquisition and development.''.

     SEC. 5. IT TIGER TEAM.

       (a) Purpose.--The Director of the Office of Management of 
     Budget (referred to in this section as the ``Director''), in 
     consultation with the Administrator of the Office of 
     Electronic Government and Information and Technology at the 
     Office of Management and Budget (referred to in this section 
     as the ``E-Gov Administrator''), shall assist agencies in 
     avoiding significant and gross deviations in the cost, 
     schedule, and performance of IT investment projects (as such 
     terms are defined in section 11317(a) of title 40, United 
     States Code).
       (b) IT Tiger Team.--
       (1) Establishment.--Not later than 180 days after the date 
     of the enactment of this Act, the E-Gov Administrator shall 
     establish a small group of individuals (referred to in this 
     section as the ``IT Tiger Team'') to carry out the purpose 
     described in subsection (a).
       (2) Qualifications.--Individuals selected for the IT Tiger 
     Team--
       (A) shall be certified at the Senior/Expert level according 
     to the Federal Acquisition Certification for Program and 
     Project Managers (FAC-P/PM);
       (B) shall have comparable education, certification, 
     training, and experience to successfully manage high-risk IT 
     investment projects; or
       (C) shall have expertise in the successful management or 
     oversight of planning, architecture, process, integration, or 
     other technical and management aspects using proven process 
     best practices on high-risk IT investment projects.
       (3) Number.--The Director, in consultation with the E-Gov 
     Administrator, shall determine the number of individuals who 
     will be selected for the IT Tiger Team.
       (c) Outside Consultants.--
       (1) Identification.--The E-Gov Administrator shall identify 
     consultants in the private sector who have expert knowledge 
     in IT program management and program management review teams. 
     Not more than 20 percent of such consultants may be formally 
     associated with any 1 of the following types of entities:
       (A) Commercial firms.
       (B) Nonprofit entities.
       (C) Federally funded research and development centers.
       (2) Use of consultants.--
       (A) In general.--Consultants identified under paragraph (1) 
     may be used to assist the IT Tiger Team in assessing and 
     improving IT investment projects.
       (B) Limitation.--Consultants with a formally established 
     relationship with an organization may not participate in any 
     assessment involving an IT investment project for which such 
     organization is under contract to provide technical support.
       (C) Exception.--The limitation described in subparagraph 
     (B) may not be construed as precluding access to anyone 
     having relevant information helpful to the conduct of the 
     assessment.
       (3) Contracts.--The E-Gov Administrator, in conjunction 
     with the Administrator of the General Services Administration 
     (GSA), may establish competitively bid contracts with 1 or 
     more qualified consultants, independent of any GSA schedule.
       (d) Initial Response to Anticipated Significant or Gross 
     Deviation.--If the E-Gov Administrator determines there is 
     reasonable cause to believe that a major IT investment 
     project is likely to significantly or grossly deviate (as 
     defined in section 11317(a) of title 40, United States Code), 
     including the receipt of inconsistent or missing data, or if 
     the E-Gov Administrator determines that the assignment of 1 
     or more members of the IT Tiger Team could meaningfully 
     reduce the possibility of significant or gross deviation, the 
     E-Gov Administrator shall carry out the following activities:
       (1) Recommend the assignment of 1 or more members of the IT 
     Tiger Team to assess the project in accordance with the scope 
     and time period described in section 11317(c)(1) of title 40, 
     United States Code, beginning not later than 14 days after 
     such recommendation. No member of the Tiger Team who is 
     associated with the department or agency whose IT investment 
     project is the subject of the assessment may be assigned to 
     participate in this assessment. Such limitation may not be 
     construed as precluding access to anyone having relevant 
     information helpful to the conduct of the assessment.
       (2) If the E-Gov Administrator determines that 1 or more 
     qualified consultants are needed to support the efforts of 
     the IT Tiger Team under paragraph (1), negotiate a contract 
     with the consultant to provide such support during the period 
     in which the IT Tiger Team is conducting the assessment 
     described in paragraph (1).
       (3) Ensure that the costs of an assessment under paragraph 
     (1) and the support services of 1 or more consultants under 
     paragraph (2) are paid by the major IT investment project 
     being assessed.
       (4) Monitor the progress made by the IT Tiger Team in 
     assessing the project.
       (e) Reduction of Significant or Gross Deviation.--If the E-
     Gov Administrator determines that the assessment conducted 
     under subsection (d) confirms that a major IT investment 
     project is likely to significantly or grossly deviate, the E-
     Gov Administrator shall recommend that the Agency Head (as 
     defined in section 11317(a)(1) of title 40, United States 
     Code) take steps to reduce the deviation, which may include--
       (1) providing training, education, or mentoring to improve 
     the qualifications of the program manager;
       (2) replacing the program manager or other staff;
       (3) supplementing the program management team with Federal 
     Government employees or independent contractors;
       (4) terminating the project; or
       (5) hiring an independent contractor to report directly to 
     senior management and the E-Gov Administrator.
       (f) Reprogramming of Funds.--
       (1) Authorization.--The Director may direct an Agency Head 
     to reprogram amounts which have been appropriated for such 
     agency to pay for an assessment under subsection (d).
       (2) Notification.--An Agency Head who reprograms 
     appropriations under paragraph (1) shall notify the Committee 
     on Appropriations of the Senate and the Committee on 
     Appropriations of the House of Representatives of any such 
     reprogramming.
       (g) Report to Congress.--The Director shall include in the 
     annual Report to Congress on the Benefits of E-Government 
     Initiatives a detailed summary of the composition and 
     activities of the IT Tiger Team, including--
       (1) the number and qualifications of individuals on the IT 
     Tiger Team;
       (2) a description of the IT investment projects that the IT 
     Tiger Team has worked during the previous fiscal year;
       (3) the major issues that necessitated the involvement of 
     the IT Tiger Team to assist

[[Page 10878]]

     agencies with assessing and managing IT investment projects 
     and whether such issues were satisfactorily resolved;
       (4) if the issues referred to in paragraph (3) were not 
     satisfactorily resolved, the issues still needed to be 
     resolved and the Agency Head's plan for resolving such 
     issues;
       (5) a detailed breakdown of the sources and uses of the 
     amounts spent by the Office of Management and Budget and 
     other Federal agencies during the previous fiscal year to 
     support the activities of the IT Tiger Team; and
       (6) a determination of whether the IT Tiger Team has been 
     effective in--
       (A) preventing projects from deviating from the original 
     baseline; and
       (B) assisting agencies in conducting appropriate analysis 
     and planning before a project is funded.

     SEC. 6. AWARDS FOR PERSONNEL FOR EXCELLENCE IN THE 
                   ACQUISITION OF INFORMATION SYSTEMS AND 
                   INFORMATION TECHNOLOGY.

       (a) In General.--Not later than 180 days after the 
     enactment of this Act, the Director of the Office of 
     Personnel Management shall develop policy and guidance for 
     agencies to develop a program to recognize excellent 
     performance by Federal Government employees and teams of such 
     employees in the acquisition of information systems and 
     information technology for the agency.
       (b) Elements.--The program referred to in subsection (a) 
     shall, to the extent practicable--
       (1) obtain objective outcome measures; and
       (2) include procedures for--
       (A) the nomination of Federal Government employees and 
     teams of such employees for eligibility for recognition under 
     the program; and
       (B) the evaluation of nominations for recognition under the 
     program by 1 or more agency panels of individuals from 
     government, academia, and the private sector who have such 
     expertise, and are appointed in such a manner, as the 
     Director of the Office of Personal Management shall establish 
     for purposes of the program.
       (c) Award of Cash Bonuses.--As part of the program referred 
     to in subsection (a), the Director of the Office of Personnel 
     Management, in consultation with the Director of the Office 
     of Management and Budget, shall establish policies and 
     guidance for agencies to award to any Federal Government 
     employee or teams of such employees recognized pursuant to 
     the program a cash bonus authorized by any other provision of 
     law to the extent that the performance of such individual so 
     recognized warrants the award of such bonus under such 
     provision of law.
  Ms. COLLINS. Mr. President. I am pleased to join Senator Carper in 
reintroducing a bill that will improve agency performance and 
Congressional oversight of major federal information-technology, IT, 
projects. We introduced this bill last Congress and offer it for 
consideration again because it will strengthen oversight of technology 
investments to help prevent the waste and misuse of taxpayer dollars.
  The well-publicized cost and performance problems with the Census 
Bureau's handheld computers for the 2010 Census--with its troubling 
implications for the next House reapportionment and for the allocation 
of Federal funds--represent only the most recent and conspicuous 
failure in a long trail of troubles that also includes critical IT 
projects like the FBI's Virtual Case File initiative.
  The 2010 Census is notable among projects that have drawn our 
attention, not only because of its great scope and expense, but because 
of its history of unheeded cautions. For years, warnings of potential 
dangers came from experts sought out by the Census Bureau itself and 
from the Commerce Department's own Inspector General.
  The implications of this lack of proper planning and oversight are 
evident in the burgeoning estimate for the life-cycle cost of the 2010 
Census. The Bureau initially estimated that the 2010 Census would cost 
the taxpayers about $11.3 billion dollars; today, the estimated cost is 
more than $14 billion.
  Another example is the Department of Homeland Security's, DHS, 
efforts since 2004 to integrate its financial management systems. DHS 
spent approximately $52 million on one failed attempt before abandoning 
the project nearly two years later. According to GAO, this attempt 
likely failed because DHS had not developed an overall financial 
management transformation strategy that included financial management 
policies and procedures, standard business processes, a human capital 
strategy, and effective internal controls. DHS spent approximately $52 
million and now has little, if anything, to show for it.
  The Department of Homeland Security is now attempting another 
consolidation of its financial information technology systems. It is 
essential that, this time, the Department sufficiently plan and monitor 
its cost, schedule, and performance targets.
  During the 108th Congress, the Committee on Governmental Affairs 
investigated the botched automated record-keeping project for the 
federal employees' Thrift Savings Plan, TSP. This project was 
terminated in 2001 after a four-year contract produced $36 million in 
waste that was charged to the accounts of TSP participants and 
beneficiaries. A second vendor needed an additional $33 million to 
bring the system online, years overdue and costing more than double its 
original estimate.
  In a 2004 letter from the Federal Retirement Thrift Investment Board 
to the Governmental Affairs Committee, the Board characterized the 
project as ``ill-fated,'' and acknowledged the importance of careful 
planning, task definition, communication, proper personnel, and risk 
management--all of which were lacking on that project.
  Large IT project failures have cost US taxpayers literally billions 
of dollars in wasted expenditures. Perhaps even more troubling is the 
fact that when Federal IT projects fail, they can undermine the 
government's ability to defend the nation, enforce its laws, or deliver 
critical services to citizens. Again and again, we have seen IT project 
failures grounded in poor planning, ill-defined and shifting 
requirements, undisclosed difficulties, poor risk management, and lax 
monitoring of performance.
  Unfortunately, as the Government Accountability Office, GAO, 
continues to report, Federal IT projects still fall short in their use 
of effective oversight techniques to monitor development and to spot 
signs of possible trouble.
  The GAO reported that the Federal Government spent over $71 billion 
in fiscal year 2009 on IT projects. Most of that spending was 
concentrated in two dozen agencies that have approximately 800 major 
projects underway.
  When the GAO reviewed a random sampling of these major Federal IT 
projects, they found that 85--nearly half the sample--had been 
``rebaselined.'' Eighteen of those projects have been rebaselined three 
or more times. For example, the Department of Defense Advanced Field 
Artillery Tactical Data System has been rebaselined four times; a 
Veterans Affairs Health Administration Center project has been 
rebaselined 6 times.
  Rebaselining can reflect funding changes, revisions in project scope 
or goals, and other perfectly reasonable project modifications. But as 
the GAO notes, ``[rebaselining] can also be used to mask cost overruns 
and schedule delays.'' All major federal agencies have rebaselining 
policies, but the GAO concludes that they are not comprehensive and 
that ``none of the policies are fully consistent with best practices.''
  The bill that Senator Carper and I are introducing will go far toward 
addressing the weaknesses identified by the GAO and will reduce the 
risks that important Federal IT projects will drag on far beyond 
deadlines, fail to deliver intended capabilities, or waste taxpayers' 
money.
  Our bill will improve both agency and Congressional oversight of 
large Federal IT projects. For all major investments, the bill requires 
agencies to track the Earned Value Management index, a key cost and 
performance measure, and to alert Congress should that measure fall 
below a defined threshold.
  The bill requires additional reports to Congress as well as specific 
corrective actions should those same indicators continue to worsen. 
Further, because the bill's performance thresholds are based on 
original cost baselines, rebaselining can no longer serve as a tactic 
to hide troubled projects. Where severe shortfalls remain uncorrected, 
agencies are prohibited from committing additional funds to the project 
until the required corrective actions are taken.
  Our bill would not make Congress a micro-manager of Federal 
projects--especially in so complex a field as information technology. 
But it will ensure

[[Page 10879]]

that, for these important investments, agencies will be required to 
track key performance metrics, inform Congress of shortfalls in those 
metrics, and provide Congress with follow-up reports, independent cost 
estimates, and analyses of project alternatives when the original 
projects have run off course.
  The bill also provides that each covered agency identify to Congress 
their top mission-critical projects. Those ``core investments'' would 
be subject to additional upfront planning, reporting, and performance 
monitoring requirements. This will help ensure that agencies apply 
extra vigilance to these projects at the planning stage, and not just 
when execution begins.
  In addition to tracking cost and schedule slippage, agencies making 
core IT investments must provide a complete ``business case'' that 
outlines the need for the project and its associated costs and 
schedules; produce a rigorous, independent, third-party estimate of the 
project's full, life-cycle costs; have the agency CIO certify the 
project's functional requirements; track these functional requirements; 
and report to Congress any changes in functional requirements, 
including whether those changes concealed a major cost increase.
  To help agencies deliver IT projects on time and on budget, the bill 
also provides two new support mechanisms.
  First, agency heads would be required to establish an internal IT-
management program, subject to OMB guidelines, to improve project 
planning, requirements development, and management of earned value and 
risk.
  Second, the Director of OMB and its E-Gov Administrator would be 
required to establish an IT Tiger Team of experts and independent 
consultants that can be assigned to help agencies reform troubled 
projects. In addition, the E-Gov Administrator can recommend that 
agency heads mentor or replace an IT project manager, reinforce the 
management team, terminate the project, or hire an independent 
contractor to report on the project.
  These and other provisions will help improve project planning, avoid 
problems in project execution, provide early alerts when problems 
arise, and promote prompt corrective action.
  In projects where difficulties persist, our bill provides strong 
remedies. For projects that exhibit a performance shortfall of 20 
percent or more, the agency head involved must not only alert Congress 
but also provide a summary of a concrete plan of action to correct the 
problem. If the shortfall exceeds 40 percent, agencies have six months 
to take required remedial steps or else suspend further project 
spending until those steps are completed.
  If the provisions of this bill had been in force during the past 
decade, early indicators of trouble and prompt warnings to Congress 
might have helped prevent much of the added cost, decreased 
functionality, and increased anxiety we now see surrounding the 
handheld computers that were intended to streamline the 2010 Census. 
The additional scrutiny of plans and costs required by this bill might 
have saved some of the billions wasted on other IT projects that 
ultimately landed on high-risk lists.
  I urge every Senator to support this much-needed and bipartisan bill.
                                 ______
                                 
      By Mr. CARPER:
  S. 921. A bill to amend chapter 35 of title 44, United States Code, 
to recognize the interconnected nature of the Internet and agency 
networks, improve situational awareness of Government cyberspace, 
enhance information security of the Federal Government, unify policies, 
procedures, and guidelines for securing information systems and 
national security systems, establish security standards for Government 
purchased products and services, and for other purposes; to the 
Committee on Homeland Security and Governmental Affairs.
  Mr. CARPER. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 921

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``United States Information 
     and Communications Enhancement Act of 2009'' or the ``U.S. 
     ICE Act of 2009''.

     SEC. 2. FINDINGS.

       The Congress finds the following:
       (1) The development of an interconnected global information 
     infrastructure has significantly enhanced the productivity, 
     prosperity, and collaboration of people, business, and 
     governments worldwide.
       (2) The information infrastructure of the United States is 
     a strategic national resource vital to our democracy, 
     economy, and security.
       (3) The Federal Government must increasingly rely on a 
     trusted and resilient information infrastructure to 
     effectively and efficiently communicate with and deliver 
     services to citizens, enhance economic prosperity, defend the 
     Nation from attack, and recover from natural disasters.
       (4) Since 2002 the Federal Government has experienced 
     multiple high-profile breaches that resulted in the theft of 
     sensitive information amounting to more than the entire print 
     collection contained in the Library of Congress, including 
     personally identifiable information, advanced scientific 
     research, and prenegotiated United States diplomatic 
     positions.
       (5) On March 12, 2008 witnesses testified before a hearing 
     held by the Subcommittee on Federal Financial Management, 
     Government Information, Federal Services, and International 
     Security of the Committee on Homeland Security and 
     Governmental Affairs of the Senate that--
       (A) implementation of the Federal Information Security 
     Management Act of 2002 (Public Law 107-296; 116 Stat. 2135) 
     wastes agency resources on paperwork exercise instead of 
     security;
       (B) agencies do not fully understand what information they 
     hold, who has access to that information, and whether the 
     information has been compromised; and
       (C) agencies lack effective coordination for mitigating and 
     responding to cyber-related incidents.
       (6) The Federal Information Security Management Act of 2002 
     (Public Law 107-296; 116 Stat. 2135) needs to be amended to 
     increase the coordination of agency activities to enhance 
     situational awareness throughout the Federal Government using 
     more effective enterprise-wide automated monitoring, 
     detection, and response capabilities.

     SEC. 3. COORDINATION OF FEDERAL INFORMATION POLICY.

       Chapter 35 of title 44, United States Code, is amended by 
     striking subchapters II and III and inserting the following:

                 ``SUBCHAPTER II--INFORMATION SECURITY

     ``Sec. 3551. Definitions

       ``(a) Except as provided under subsection (b), the 
     definitions under section 3502 shall apply to this 
     subchapter.
       ``(b) In this subchapter:
       ``(1) The term `adequate security' means security 
     commensurate with the risk and magnitude of harm resulting 
     from the loss, misuse, or unauthorized access to, or 
     modification, of information.
       ``(2) The term `Director' means the Director of the 
     National Office for Cyberspace.
       ``(3) The term `incident' means an occurrence that actually 
     or potentially jeopardizes the confidentiality, integrity, or 
     availability of an information system or the information the 
     system processes, stores, or transmits or that constitutes a 
     violation or imminent threat of violation of security 
     policies, security procedures, or acceptable use policies.
       ``(4) The term `information infrastructure' means the 
     underlying framework that information systems and assets rely 
     on in processing, transmitting, receiving, or storing 
     information electronically.
       ``(5) 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; and
       ``(C) availability, which means ensuring timely and 
     reliable access to and use of information.
       ``(6) The term `information technology' has the meaning 
     given that term in section 11101 of title 40.
       ``(7)(A) 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--
       ``(i) the function, operation, or use of which--
       ``(I) involves intelligence activities;
       ``(II) involves cryptologic activities related to national 
     security;
       ``(III) involves command and control of military forces;

[[Page 10880]]

       ``(IV) involves equipment that is an integral part of a 
     weapon or weapons system; or
       ``(V) subject to subparagraph (B), is critical to the 
     direct fulfillment of military or intelligence missions; or
       ``(ii) is protected at all times by procedures established 
     for information that have been specifically authorized under 
     criteria established by an Executive order or an Act of 
     Congress to be kept classified in the interest of national 
     defense or foreign policy.
       ``(B) Subparagraph (A)(i)(V) does not include a system that 
     is to be used for routine administrative and business 
     applications (including payroll, finance, logistics, and 
     personnel management applications).

     ``Sec. 3552. National Office for Cyberspace

       ``(a) There is established within the Executive Office of 
     the President an office to be known as the National Office 
     for Cyberspace.
       ``(b) There shall be at the head of the Office a Director 
     who shall be appointed by the President, by and with the 
     advice and consent of the Senate. The Director of the 
     National Office for Cyberspace shall administer all functions 
     under this subchapter and collaborate to the extent 
     practicable with the heads of the appropriate agencies, the 
     private sector, and international partners. The Office shall 
     serve as the principal office for coordinating issues 
     relating to achieving an assured, reliable, secure, and 
     survivable global information and communications 
     infrastructure and related capabilities.

     ``Sec. 3553. Authority and functions of the National Office 
       for Cyberspace

       ``(a) The Director shall develop and implement a 
     comprehensive national cyberspace strategy to ensure a 
     trusted and resilient communications and information 
     infrastructures that--
       ``(1) enhances economic prosperity and facilitates market 
     leadership for the United States information and 
     communications industry;
       ``(2) deters, prevents, detects, defends against, responds 
     to, and remediates interruptions and damage to United States 
     information and communications infrastructure;
       ``(3) ensures United States capabilities to operate in 
     cyberspace in support of national goals; and
       ``(4) protects privacy rights and preserving civil 
     liberties of United States persons.
       ``(b) Notwithstanding any provision of law, regulation, 
     rule, or policy to the contrary, the National Office for 
     Cyberspace may--
       ``(1) direct the sponsorship of the security clearances for 
     Federal officers and employees (including experts and 
     consultants employed under section 3109) whose 
     responsibilities involve critical infrastructure in the 
     interest of national security; and
       ``(2) employ experts and consultants under section 3109 for 
     cyber security-related work.
       ``(c) With respect to responsibilities with the Federal 
     Government, the National Office for Cyberspace shall--
       ``(1) provide recommendations to agencies on measures that 
     shall be required to be implemented to mitigate 
     vulnerabilities, attacks, and exploitations discovered as a 
     result of activities required pursuant to this section;
       ``(2) oversee the implementation of policies, principles, 
     standards, and guidelines on information security, including 
     through ensuring timely agency adoption of and compliance 
     with standards promulgated under section 3556;
       ``(3) to the extent practicable--
       ``(A) prioritize the policies, principles, standards, and 
     guidelines developed under section 3556 based upon the 
     threat, vulnerability and consequences of an information 
     security incident; and
       ``(B) develop guidance that requires agencies to actively 
     monitor the effective implementation of policies, principles, 
     standards, and guidelines developed under section 3556;
       ``(4) require agencies, consistent with the standards 
     promulgated under such section 3556 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;
       ``(5) coordinate and ensure that the development of 
     standards and guidelines under section 20 of the National 
     Institute of Standards and Technology Act (15 U.S.C. 278g-3) 
     and standards and guidelines developed for national security 
     systems are, to the maximum extent practicable, complementary 
     and unified;
       ``(6) oversee agency compliance with the requirements of 
     this subchapter, including coordinating with the Office of 
     Management and Budget to use any authorized action under 
     section 11303 of title 40, to enforce accountability for 
     compliance with such requirements;
       ``(7) review at least annually, and approving or 
     disapproving, agency information security programs required 
     under section 3554(b); and
       ``(8) coordinate information security policies and 
     procedures with related information resources management 
     policies and procedures.
       ``(d)(1) After consultation with the appropriate agencies, 
     the Director shall oversee the effective implementation of 
     governmentwide operational evaluations on a frequent and 
     recurring basis to evaluate whether agencies effectively--
       ``(A) monitor, detect, analyze, protect, report, and 
     respond against known vulnerabilities, attacks, and 
     exploitations;
       ``(B) report to and collaborate with the appropriate public 
     and private security operation centers and law enforcement 
     agencies; and
       ``(C) mitigate the risk posed by previous successful 
     exploitations in a timely fashion and in order to prevent 
     future vulnerabilities, attacks, and exploitations.
       ``(2) Not later than 30 days after receiving an operational 
     evaluation under this subsection, the Director shall ensure 
     agencies evaluated under paragraph (1) develop a plan for 
     addressing recommendations and mitigating vulnerabilities 
     contained in the security reports identified under paragraph 
     (1), including a timeline and budget for implementing such 
     plan.
       ``(e) Not later than March 1 of each year, the Director 
     shall submit a report to Congress on the overall information 
     security posture of the communications and information 
     infrastructure of the United States, including--
       ``(1) the evaluations conducted under subsection (d) for 
     the United States Government;
       ``(2) a detailed assessment of the overall resiliency of 
     the communications and information infrastructure 
     effectiveness of the United States and the United States 
     Government including the ability to monitor, detect, 
     mitigate, and respond to an incident;
       ``(3) a detailed assessment the information security 
     effectiveness of each agency, including the ability to 
     monitor, detect, mitigate, collaborate, and respond to an 
     incident;
       ``(4) a detailed assessment of operational evaluations 
     performed during the preceding fiscal year, the results of 
     such evaluations, and any actions that remain to be taken 
     under plans included in corrective action reports under 
     subsection (d);
       ``(5) a detailed assessment of the development, 
     promulgation, and adoption of, and compliance with, standards 
     developed under section 20 of the National Institute of 
     Standards and Technology Act (15 U.S.C. 278g-3) and 
     promulgated under section 3554, and recommendations for 
     enhancement;
       ``(6) a detailed assessment of significant deficiencies in 
     the information security and reporting practices of the 
     Federal Government as applicable to each agency;
       ``(7) planned remedial action to address deficiencies 
     described under paragraph (6), including an associated budget 
     and recommendations for relevant executive and legislative 
     branch actions;
       ``(8) a summary of the results of the independent 
     evaluations under section 3555; and
       ``(9) a detailed assessment of the effectiveness of 
     reporting to the National Cyber Investigative Joint Task 
     Force under section 3554.
       ``(f) Evaluations and any other descriptions of information 
     systems under the authority and control of the Director of 
     National 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.
       ``(g)(1) In collaboration with the private sector and in 
     coordination with the Director of the Office of Management 
     and Budget, the National Institute of Standards and 
     Technology, and the General Service Administration, the 
     Director shall develop and implement policy, guidance, and 
     regulations that cost effectively enhance the security of the 
     Federal Government, including policy, guidance, and 
     regulations that--
       ``(A) to the extent practicable, standardize security 
     requirements (also known as `lock-down configurations') of 
     commercial off-the-shelf products and services (including 
     cloud products and services) purchased by the Federal 
     Government;
       ``(B) to the extent practicable, obtain products and 
     services with security configuration baselines consistent 
     with available security standards and configurations and 
     guidelines developed by the National Institute of Standards 
     and Technology;
       ``(C) incentivize agencies to purchase standard products 
     and services through the General Service Administration in 
     order to reduce the vulnerabilities and costs associated with 
     custom products and services; and
       ``(D) enable purchasing decisions to reasonably and 
     appropriately account for significant supply chain security 
     risks associated with any particular product or service.
       ``(2) Not later than 180 days after the date of enactment 
     of the United States Information and Communications 
     Enhancement Act of 2009, and annually thereafter, the 
     Director shall submit a report to Congress that includes--
       ``(A) a description of the cost savings and security 
     enhancements that can be achieved by using the purchasing 
     power of the Federal Government; and
       ``(B) recommendations for legislative or executive branch 
     actions necessary to achieve such cost savings.

[[Page 10881]]



     ``Sec. 3554. Agency responsibilities

       ``(a) The head of each agency shall--
       ``(1) be responsible for--
       ``(A) providing information security protections 
     commensurate with the risk and magnitude of the harm 
     resulting from unauthorized access, use, disclosure, 
     disruption, modification, or destruction of--
       ``(i) information collected or maintained by or on behalf 
     of the agency; and
       ``(ii) information systems used or operated by an agency or 
     by a contractor of an agency or other organization on behalf 
     of an agency;
       ``(B) complying with the requirements of this subchapter 
     and related policies, procedures, standards, and guidelines, 
     including--
       ``(i) information security standards promulgated under 
     section 3556;
       ``(ii) information security standards and guidelines for 
     national security systems issued in accordance with law and 
     as directed by the President; and
       ``(iii) ensuring the standards implemented for information 
     systems and national security systems under the agency head 
     are complementary and uniform, to the extent practicable; 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 3556, for information security classifications and 
     related requirements;
       ``(C) implementing policies and procedures to cost 
     effectively reduce risks to an acceptable level; and
       ``(D) continuously testing and evaluating information 
     security controls and techniques to ensure that they are 
     effectively implemented;
       ``(3) delegate to an agency official designated as the 
     Chief Information Security Officer the authority to ensure 
     and enforce compliance with the requirements imposed on the 
     agency under this subchapter, including--
       ``(A) overseeing the establishment and maintenance of a 
     security operations capability that on an automated and 
     continuous basis can--
       ``(i) detect, report, respond to, contain, and mitigate 
     incidents that impair adequate security of the information 
     and information infrastructure, in accordance with policy 
     provided by the Director, in consultation with the Chief 
     Information Officers Council, and guidance from the National 
     Institute of Standards and Technology;
       ``(ii) collaborate with the National Office for Cyberspace 
     and appropriate public and private sector security operations 
     centers to address incidents that impact the security of 
     information and information infrastructure that extend beyond 
     the control of the agency; and
       ``(iii) not later than 24 hours after discovery of any 
     incident described under subparagraph (A), unless otherwise 
     directed by policy of the National Office for Cyberspace, 
     provide notice to the appropriate security operations center, 
     the National Cyber Investigative Joint Task Force, and 
     inspector general;
       ``(B) collaborating with the Administrator for E-Government 
     and the Chief Information Officer to establish, maintain, and 
     update an enterprise network, system, storage, and security 
     architecture framework documentation to be submitted 
     quarterly to the National Office for Cyberspace and the 
     appropriate security operations center, that includes--
       ``(i) documentation of how technical, managerial, and 
     operational security controls are implemented throughout the 
     agency's information infrastructure; and
       ``(ii) documentation of how the controls described under 
     subparagraph (A) maintain the appropriate level of 
     confidentiality, integrity, and availability of information 
     and information systems based on--

       ``(I) the policy of the Director;
       ``(II) the National Institute of Standards and Technology 
     guidance; and
       ``(III) the Chief Information Officers Council recommended 
     approaches;

       ``(C) developing, maintaining, and overseeing an agency 
     wide information security program as required by subsection 
     (b);
       ``(D) developing, maintaining, and overseeing information 
     security policies, procedures, and control techniques to 
     address all applicable requirements, including those issued 
     under sections 3553 and 3556;
       ``(E) training and overseeing personnel with significant 
     responsibilities for information security with respect to 
     such responsibilities; and
       ``(F) assisting senior agency officials concerning their 
     responsibilities under paragraph (2);
       ``(4) ensure that the agency has trained and cleared 
     personnel sufficient to assist the agency in complying with 
     the requirements of this subchapter and related policies, 
     procedures, standards, and guidelines;
       ``(5) ensure that the agency Chief Information Security 
     Officer, in coordination with other senior agency officials, 
     reports biannually to the agency head on the effectiveness of 
     the agency information security program, including progress 
     of remedial actions; and
       ``(6) ensure that the Chief Information Security Officer 
     possesses necessary qualifications, including education, 
     professional certifications, training, experience, and the 
     security clearance required to administer the functions 
     described under this subchapter; and has information security 
     duties as the primary duty of that official.
       ``(b) Each agency shall develop, document, and implement an 
     agencywide information security program, approved by the 
     Director under section 3553(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--
       ``(A) 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; and
       ``(B) that recommend a prioritized description of which 
     data and applications should be removed or migrated to more 
     secure networks or standards;
       ``(2) penetration tests commensurate with risk (as defined 
     by the National Institute of Standards and Technology and the 
     National Office for Cyberspace) for agency information 
     systems; and
       ``(3) information security vulnerabilities are mitigated 
     based on the risk posed to the agency;
       ``(4) 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 3556;
       ``(iii) minimally acceptable system configuration 
     requirements, as determined by the Director; 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;
       ``(5) subordinate plans for providing adequate information 
     security for networks, facilities, and systems or groups of 
     information systems, as appropriate;
       ``(6) role-based security awareness training to inform 
     personnel with access to the agency network, 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;
       ``(7) to the extent practicable, automated and continuous 
     technical monitoring for testing, and evaluation of the 
     effectiveness and compliance of information security 
     policies, procedures, and practices, including--
       ``(A) management, operational, and technical controls of 
     every information system identified in the inventory required 
     under section 3505(b); and
       ``(B) management, operational, and technical controls 
     relied on for an evaluation under section 3555;
       ``(8) 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;
       ``(9) to the extent practicable, continuous technical 
     monitoring for detecting, reporting, and responding to 
     security incidents, consistent with standards and guidelines 
     issued by the Director, including--
       ``(A) mitigating risks associated with such incidents 
     before substantial damage is done;
       ``(B) notifying and consulting with the appropriate 
     security operations response center; and
       ``(C) notifying and consulting with, as appropriate--
       ``(i) law enforcement agencies and relevant Offices of 
     Inspectors General;
       ``(ii) the National Office for Cyberspace; and
       ``(iii) any other agency or office, in accordance with law 
     or as directed by the President; and
       ``(10) 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) submit an annual report on the adequacy and 
     effectiveness of information security policies, procedures, 
     and practices, and

[[Page 10882]]

     compliance with the requirements of this subchapter, 
     including compliance with each requirement of subsection (b) 
     to--
       ``(A) the National Office for Cyberspace;
       ``(B) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       ``(C) the Committee on Commerce, Science, and 
     Transportation of the Senate;
       ``(D) the Committee on Government Oversight and Reform of 
     the House of Representatives;
       ``(E) the Committee on Homeland Security of the House of 
     Representatives;
       ``(F) other appropriate authorization and appropriations 
     committees of Congress; and
       ``(G) the Comptroller General.
       ``(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 of this subchapter;
       ``(C) information technology management under this chapter;
       ``(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);
       ``(G) internal accounting and administrative controls under 
     section 3512 of title 31; and
       ``(H) performance ratings, salaries, and bonuses provided 
     to the Chief Information Security Officer and supporting 
     personnel taking into account program performance; 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 National Office for 
     Cyberspace, 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) and 
     operational evaluations required under section 3553(d).
       ``(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. 3555. 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 under this section shall consist of--
       ``(A) testing of the effectiveness of information security 
     policies, procedures, and practices of a representative 
     subset of the information systems of the agency; and
       ``(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.
       ``(b)(1) For each agency with an Inspector General 
     appointed under the Inspector General Act of 1978 (5 U.S.C. 
     App.) or any other law, 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.
       ``(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) The evaluation required by this section may be based 
     in whole or in part on an audit, evaluation, or report 
     relating to programs or practices of the applicable agency.
       ``(d) 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.
       ``(e) 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.
       ``(f) The Comptroller General shall--
       ``(1) not later than 180 days after the date of enactment 
     of the United States Communications and Information 
     Enhancement Act of 2009 and after collaboration with the 
     Director and the Inspectors General, develop and deliver 
     standards for independent evaluations as required under this 
     section that are risk-based and cost effective;
       ``(2) periodically evaluate and report to Congress on--
       ``(A) the adequacy and effectiveness of agency information 
     security policies and practices; and
       ``(B) the implementation of the requirements of this 
     subchapter.

     ``Sec. 3556. Responsibilities for Federal information systems 
       standards

       ``(a)(1) The Secretary of Commerce shall, on the basis of 
     standards and guidelines developed by the National Institute 
     of Standards and Technology under paragraphs (2) and (3) of 
     section 20(a) of the National Institute of Standards and 
     Technology Act (15 U.S.C. 278g-3(a)), prescribe standards and 
     guidelines pertaining to information systems, including 
     national security systems.
       ``(2)(A) Standards prescribed under subsection (a)(1) shall 
     include information security standards that--
       ``(i) to the extent practicable, are unified with standards 
     and guidelines developed for information systems and national 
     security systems to ensure the adequacy and effectiveness of 
     information security and information sharing;
       ``(ii) 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
       ``(iii) are otherwise necessary to improve the security of 
     information and information systems, including information 
     stored by third parties on behalf of the Federal Government.
       ``(B) Information security standards described in 
     subparagraph (A) shall be compulsory and binding.
       ``(b) The President may disapprove or modify the standards 
     and guidelines referred to in subsection (a)(1) if the 
     President determines such action to be in the public 
     interest. The President's authority to disapprove or modify 
     such standards and guidelines may not be delegated. Notice of 
     such disapproval or modification shall be published promptly 
     in the Federal Register. Upon receiving notice of such 
     disapproval or modification, the Secretary of Commerce shall 
     immediately rescind or modify such standards or guidelines as 
     directed by the President.
       ``(c) To ensure fiscal and policy consistency, the 
     Secretary shall exercise the authority conferred by this 
     section subject to direction by the President and in 
     coordination with the Director of the Office of Management 
     and Budget and the National Office for Cyberspace.
       ``(d) The National Office for Cyberspace and the head of an 
     agency may employ standards for the cost effective 
     information security for information systems within or under 
     the supervision of that agency that are more stringent than 
     the standards the Secretary prescribes under this section if 
     the more stringent standards--
       ``(1) contain at least the applicable standards made 
     compulsory and binding by the Secretary; and
       ``(2) are otherwise consistent with policies and guidelines 
     issued under section 3553.
       ``(e) The decision by the Secretary regarding the 
     promulgation of any standard under this section shall occur 
     not later than 6 months after the submission of the proposed 
     standard to the Secretary 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).''.

     SEC. 4. AUTHORITY AND RESPONSIBILITY OF THE UNITED STATES 
                   COMPUTER EMERGENCY READINESS TEAM IN RELATION 
                   TO FEDERAL AGENCIES.

       (a) Definition.--In this section:
       (1) The term ``agency'' has the meaning given under section 
     3502(1) of title 44, United States Code.
       (2) The term ``US-CERT'' means the United States Computer 
     Emergency Readiness Team.
       (b) Purposes.--The purposes of this section are to 
     recognize that US-CERT--
       (1) is charged with providing response support and defense 
     against cyber attacks for agencies and information sharing 
     and collaboration with State and local government, industry, 
     and international partners;
       (2) interacts with agencies, industry, the research 
     community, State and local governments, and others to 
     disseminate reasoned and actionable cyber security 
     information to the public;
       (3) provides a way for citizens, businesses, and other 
     institutions to communicate and coordinate directly with the 
     United States Government about cyber security; and
       (4) has continually enhanced its ability to monitor, 
     detect, and respond to information security incidents that 
     affect the Federal Government.
       (c) Coordination With US-CERT.--The head of each agency 
     shall ensure that the Chief Information Officer, Chief 
     Information Security Officer, and security operations centers 
     under the direction of that agency head shall establish 
     policies, procedures, and guidance to effectively coordinate 
     with the Director of US-CERT in a timely fashion to detect, 
     report, respond to, contain, and mitigate incidents that 
     impair adequate security

[[Page 10883]]

     of the information and information infrastructure.
       (d) Review and Approval.--In coordination with the 
     Administrator for Electronic Government and Information 
     Technology, the Director of the National Office for 
     Cyberspace shall review and approve the policies, procedures, 
     and guidance established in subparagraph (c) to ensure that 
     US-CERT has the capability to effectively and efficiently 
     detect, correlate, respond to, contain, and mitigate 
     incidents that impair the adequate security of the 
     information and information infrastructure of more than 1 
     agency. To the extent practicable, the capability shall be 
     continuous and technically automated.
       (e) Security Clearances; Experts and Consultants.--
     Notwithstanding any provision of law, regulation, rule, or 
     policy to the contrary, the Director of US-CERT may--
       (1) direct the sponsorship of the security clearances for 
     Federal officers and employees (including experts and 
     consultants employed under section 3109) whose 
     responsibilities involve critical infrastructure in the 
     interest of national security; and
       (2) employ experts and consultants under section 3109 for 
     cyber security-related work.

     SEC. 5. AUTHORITY AND RESPONSIBILITY OF DEPARTMENTS NOT 
                   RELATED TO MILITARY FUNCTIONS.

       (a) Definitions.--In this section:
       (1) Agency.--The term ``agency''--
       (A) means--
       (i) an Executive department defined under section 101 of 
     title 5, United States Code; and
       (ii) an Executive agency that has multiple components which 
     have separate and distinct enterprise architectures; and
       (B) shall not include--
       (i) the Department of Defense; or
       (ii) any component of an Executive agency that is 
     performing any national security function, including military 
     intelligence.
       (2) Executive agency.--The term ``Executive agency'' has 
     the meaning given under section 105 of title 5, United States 
     Code.
       (b) Purpose.--The purpose of this section is to recognize 
     that--
       (1) agencies have developed and maintained separate and 
     distinct enterprise architectures that inhibit the ability of 
     an agency to ensure that components of that agency have 
     effectively implemented security policies, procedures, and 
     practices;
       (2) the separate and distinct enterprise architectures have 
     in many instances been at the detriment of securing the 
     agency information infrastructure (the civilian cyberspace) 
     and exposed that infrastructure to unnecessary risk for an 
     extended period of time; and
       (3) a more uniform agency enterprise architecture will be 
     more efficient and effective for the purposes of information 
     sharing and ensuring the appropriate confidentiality, 
     integrity, and availability of information and information 
     systems.
       (c) Agency Coordination.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the head of each agency shall ensure 
     that components of that agency shall establish an automated 
     reporting mechanism that allows the Chief Information 
     Security Officer and security operations center at the total 
     agency level to implement and monitor the implementation of 
     appropriate security policies, procedures, and controls of 
     agency components.
       (2) Approval and coordination.--The activities conducted 
     under paragraph (1) shall be--
       (A) approved by the Director of the National Office for 
     Cyberspace; and
       (B) to the extent practicable, in coordination and 
     complementary with activities--
       (i) described under section 4; and
       (ii) conducted by the Administrator for E-Government and 
     Information Technology.

     SEC. 6. TECHNICAL AND CONFORMING AMENDMENTS.

       (a) Table of Sections.--The table of sections for chapter 
     35 of title 44, United States Code, is amended by striking 
     the matter relating to subchapters II and III and inserting 
     the following:

                 ``subchapter ii--information security

``Sec. 3551. Definitions.
``Sec. 3552. National Office for Cyberspace.
``Sec. 3553. Authority and functions of the National Office for 
              Cyberspace.
``Sec. 3554. Agency responsibilities.
``Sec. 3555. Annual independent evaluation.
``Sec. 3556. Responsibilities for Federal information systems 
              standards.''.
       (b) Other References.--
       (1) Section 1001(c)(1)(A) of the Homeland Security Act of 
     2002 (6 U.S.C. 511(c)(1)(A)) is amended by striking ``section 
     3532(3)'' and inserting ``section 3551(b)''.
       (2) Section 2222(j)(6) of title 10, United States Code, is 
     amended by striking ``section 3542(b)(2))'' and inserting 
     ``section 3551(b)''.
       (3) Section 2223(c)(3) of title 10, United States Code, is 
     amended, by striking ``section 3542(b)(2))'' and inserting 
     ``section 3551(b)''.
       (4) Section 2315 of title 10, United States Code, is 
     amended by striking ``section 3542(b)(2))'' and inserting 
     ``section 3551(b)''.
       (5) Section 20(a)(2) of the National Institute of Standards 
     and Technology Act (15 U.S.C. 278g-3) is amended by striking 
     ``section 3532(b)(2)'' and inserting ``section 3551(b)''.
       (6) Section 8(d)(1) of the Cyber Security Research and 
     Development Act (15 U.S.C. 7406(d)(1)) is amended by striking 
     ``section 3534(b)'' and inserting ``section 3554(b)''.

     SEC. 7. EFFECTIVE DATE.

       This Act (including the amendments made by this Act) shall 
     take effect 30 days after the date of enactment of this Act.

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