[House Report 116-300]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-300
======================================================================
DEPARTMENT OF HOMELAND SECURITY OFFICE OF CIVIL RIGHTS AND CIVIL
LIBERTIES AUTHORIZATION ACT
_______
November 19, 2019.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Thompson of Mississippi, from the Committee on Homeland
Security, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 4713]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 4713) to amend the Homeland Security Act of 2002
to make certain improvements in the Office for Civil Rights and
Civil Liberties of the Department of Homeland Security, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 5
Hearings......................................................... 6
Committee Consideration.......................................... 7
Committee Votes.................................................. 9
Committee Oversight Findings..................................... 9
C.B.O. Estimate, New Budget Authority, Entitlement Authority, and
Tax Expenditures............................................... 10
Federal Mandates Statement....................................... 10
Statement of General Performance Goals and Objectives............ 10
Duplicative Federal Programs..................................... 10
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits.......................................................
Advisory Committee Statement.....................................
Applicability to Legislative Branch..............................
Section-by-Section Analysis of the Legislation................... 11
Changes in Existing Law Made by the Bill, as Reported............ 14
Additional Views................................................. 20
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Homeland Security Office
of Civil Rights and Civil Liberties Authorization Act''.
SEC. 2. OFFICER FOR CIVIL RIGHTS AND CIVIL LIBERTIES.
(a) In General.--Section 705 of the Homeland Security Act of 2002 (6
U.S.C. 345) is amended--
(1) in the section heading, by striking ``establishment of'';
and
(2) by striking subsections (a) and (b) and inserting the
following new subsections:
``(a) In General.--There is established within the Department an
Office for Civil Rights and Civil Liberties. The head of such Office is
the Officer for Civil Rights and Civil Liberties, who shall report
directly to the Secretary.
``(b) Responsibilities.--The Officer for Civil Rights and Civil
Liberties shall carry out the following responsibilities:
``(1) Oversee compliance with constitutional, statutory,
regulatory, policy, and other requirements relating to the
civil rights and civil liberties of individuals affected by the
programs and activities of the Department.
``(2) Integrate civil rights and civil liberties protections
into all programs and activities of the Department.
``(3) Conduct civil rights and civil liberties impact
assessments, as appropriate.
``(4) Conduct periodic reviews of policies, procedures, and
activities of the Department relating to civil rights and civil
liberties.
``(5) Provide policy advice, recommendations, and other
technical assistance relating to civil rights and civil
liberties to the Secretary and to heads of components,
directorates, and offices and other personnel within the
Department.
``(6) Review, assess, and investigate complaints, including
complaints filed by members of the public, and information
indicating possible abuses of civil rights or civil liberties
at the Department, unless the Inspector General of the
Department determines that any such complaint or information
should be investigated by the Inspector General.
``(7) Initiate reviews, assessments, inspections, and
investigations of the administration of the programs and
activities by the Department relating to civil rights and civil
liberties, as the Officer determines necessary.
``(8) Coordinate with the Privacy Officer to ensure that--
``(A) programs, policies, and procedures involving
civil rights, civil liberties, and privacy
considerations are addressed in an integrated and
comprehensive manner; and
``(B) Congress receives appropriate reports regarding
such programs, policies, and procedures.
``(9) Lead the equal employment opportunity programs of the
Department, including complaint management and adjudication,
and promote workforce diversity and merit system principles.
``(10) Make publicly available through accessible
communications channels, including the website of the
Department--
``(A) information on the responsibilities and
functions of, and how to contact, the Officer; and
``(B) reports that are issued by the Officer upon
completion of investigations carried out pursuant to
paragraph (6) or (7).
``(11) Engage with individuals and communities whose civil
rights and civil liberties may be affected by programs and
activities of the Department, including by informing such
individuals and communities about report and redress processes
and advising the Secretary and heads of components,
directorates, offices, and other personnel within the
Department of any concerns raised by such individuals and
communities.
``(c) Coordination With Inspector General.--
``(1) Authority to investigate possible abuses.--The Officer
for Civil Rights and Civil Liberties may investigate any matter
referred to in paragraph (6) or (7) of subsection (b) after
fulfilling the coordination requirements under paragraph (2)
with respect to such matter.
``(2) Coordination requirements.--
``(A) Referral of matters to inspector general.--
Before initiating any investigation described under
paragraph (1), the Officer for Civil Rights and Civil
Liberties shall refer the matter and all related
complaints, allegations, and information to the
Inspector General of the Department.
``(B) Inspector general responsibilities.--
``(i) Determination and notification.--Not
later than 30 days after the receipt of a
matter referred under subparagraph (A), the
Inspector General shall--
``(I) make a determination regarding
whether the Inspector General intends
to initiate an audit or investigation
of the matter referred under
subparagraph (A); and
``(II) notify the Officer of such
determination.
``(ii) Audits and investigations.--If the
Inspector General notifies the Officer for
Civil Rights and Civil Liberties that the
Inspector General intends to initiate an audit
or investigation, the Inspector General shall--
``(I) initiate such audit or
investigate by not later than 90 days
after providing such notification; or
``(II) not later than three days
after the end of the 90-day period
specified in subclause (I), notify the
Officer that such audit or
investigation was not initiated.
``(C) Provision of assistance.--At the request of the
Inspector General, the Officer for Civil Rights and
Civil Liberties may provide assistance to the Inspector
General on any investigation or audit initiated by the
Inspector General based on a referral under
subparagraph (A).
``(D) Investigation by officer.--The Officer for
Civil Rights and Civil Liberties may investigate a
matter referred to the Inspector General under
subparagraph (A) only if--
``(i) the Inspector General notifies the
Officer for Civil Rights and Civil Liberties
that the Inspector General does not intend to
initiate an audit or investigation relating to
that matter; or
``(ii) the Inspector General provides
notification under subparagraph (B)(ii)(II)
that an audit or investigation was not
initiated.
``(d) Transparency.--
``(1) Complaints.--In the case of a complaint made concerning
allegations of abuses of civil rights and civil liberties under
paragraph (6) of subsection (b), the Officer for Civil Rights
and Civil Liberties shall--
``(A) provide to the individual who made the
complaint notice of the receipt of such complaint
within 30 days of receiving the complaint; and
``(B) inform the complainant of the determination of
the Officer regarding the initiation of a review,
assessment, or investigation within the Office, a
referral to the Inspector General of the Department, or
any other action taken.
``(2) Investigations.--In the case of an investigation
initiated by the Officer pursuant to paragraph (6) or (7) of
subsection (b), upon the conclusion of the investigation, the
Officer shall produce a report on the investigation which--
``(A) shall include the findings and recommendations
of the Officer;
``(B) shall be made publicly available;
``(C) shall not include any personally identifiable
information related to any individual involved in such
investigation; and
``(D) may include a classified appendix, as the
Officer determines appropriate.
``(3) Submittal to heads of operational components.--The
Officer shall transmit a copy of each report produced under
paragraph (2) to the Secretary and to the relevant head of each
relevant operational component of the Department.
``(4) Reports to congress.--Upon the conclusion of any
investigation conducted by the Officer for Civil Rights and
Civil Liberties under paragraph (6) or (7) of subsection (b),
the Officer shall submit to Congress a report on the
investigation, which shall be prepared and submitted without
any prior comment or amendment by the Secretary, Deputy
Secretary, or any other officer or employee of the Department,
unless the Officer seeks such comment.
``(e) Component Civil Rights and Civil Liberties Officer.--The head
of each of the operational components of the Department shall designate
a career appointee (as such term is defined in section 3132 of title 5,
United States Code) from such component as the Officer for Civil Rights
and Civil Liberties of that component. The Officer for Civil Rights and
Civil Liberties of each such component shall coordinate with and
provide information to the Officer for Civil Rights and Civil Liberties
of the Department on matters related to civil rights and civil
liberties within the components.
``(f) Access to Information.--The Officer for Civil Rights and Civil
Liberties of the Department--
``(1) shall have access to all records, reports, audits,
reviews, documents, papers, recommendations, and other
materials available to the Department that relate to programs
and operations with respect to the responsibilities of the
Officer under subsection (b); and
``(2) may, to the extent the Officer determines necessary,
and subject to the approval of the Secretary--
``(A) issue a subpoena to require the production, by
any person other than a Federal agency, of all
information, documents, reports, answers, records,
accounts, papers, and other documentary evidence
necessary in the performance of the responsibilities of
the Officer under this section; and
``(B) administer to or take from any person an oath,
affirmation, or affidavit, whenever necessary in the
performance of the responsibilities of the Officer
under this section.
``(g) Annual Report.--Not later than March 31 of each year, the
Officer for Civil Rights and Civil Liberties of the Department shall
submit directly to the President, the President of the Senate, the
Speaker of the House of Representatives, and the appropriate committees
and subcommittees of Congress, a report on the implementation of this
section during the year preceding the year during which the report is
submitted. Each such report shall include, for the year covered by the
report--
``(1) any allegations of abuse described under subsection
(b)(6) and any actions by the Department or a component,
directorate, or office of the Department that the Officer
identifies as responsive to such allegations;
``(2) a list of Department programs and activities for which
civil rights and civil liberties impact assessments were
conducted, or policy advice, recommendations, or other
technical assistance was provided;
``(3) any recommendations issued by the Officer to the
Secretary or the head of a component, directorate, or office,
together with information on the status of the implementation
of such recommendations;
``(4) information on the diversity and equal employment
opportunity activities of the Department, including information
on complaint management and adjudication of equal employment
opportunity complaints and efforts to ensure compliance
throughout the Department with equal employment opportunity
requirements;
``(5) a description of any efforts to engage with individuals
and communities whose civil rights and civil liberties may be
affected by activities carried out by the Department, including
public meetings; and
``(6) information on total staffing for the Office of Civil
Rights and Civil Liberties, including--
``(A) the number of full-time, part-time and contract
support personnel; and
``(B) information on the number of employees whose
primary responsibilities include supporting the Officer
in carrying out paragraph (9) of subsection (b).''.
(b) Clerical Amendment.--The item relating to section 705 in section
1(b) of the Homeland Security Act of 2002 is amended to read as
follows:
``Sec. 705. Officer for civil rights and civil liberties.''.
SEC. 3. COMPTROLLER GENERAL REVIEW.
Not later than 180 days after the date of the enactment of this Act,
the Comptroller General of the United States shall submit to Congress a
report on subsection (b)(11) of section 705 of the Homeland Security
Act of 2002 (6 U.S.C. 345), as amended by section 2.
Purpose and Summary
H.R. 4713, the ``Department of Homeland Security Office of
Civil Rights and Civil Liberties Authorization Act,'' was
introduced to strengthen the role of the Office for Civil
Rights and Civil Liberties (CRCL) within the Department of
Homeland Security (DHS or Department) as it works to ensure the
protection of individual rights for those affected by DHS
programs and activities. This bill authorizes CRCL to integrate
civil rights and civil liberties into all Department programs
and activities by reviewing Departmental policies, procedures,
and activities; reviewing, assessing, and investigating
complaints and information indicating possible abuses of civil
rights and civil liberties; conducting civil rights and civil
liberties impact assessments; and providing recommendations and
other technical assistance to the Secretary of Homeland
Security (Secretary) and heads of the operational components of
the Department, among other functions. The bill seeks to
improve the effectiveness of CRCL within the Department by
granting the DHS CRCL Officer authority to access all
Department records necessary to carry out the Officer's work
and to issue subpoenas, as necessary and subject to the
approval of the Secretary, to non-federal entities.
Additionally, the bill requires the head of each operational
component to designate a CRCL officer within its respective
component to coordinate with and provide information to the DHS
CRCL Officer on matters related to civil rights and civil
liberties. To improve transparency regarding CRCL findings, at
the conclusion of any investigation conducted by CRCL, the
investigatory report is required to be submitted to Congress
without any prior comment or amendment by the Secretary, Deputy
Secretary, or any other officer or employee of the Department,
unless the DHS CRCL Officer seeks such comment.
Background and Need for Legislation
DHS personnel interact with millions of people from across
the country and around the world every day. Therefore, it is
imperative that the DHS Office for Civil Rights and Civil
Liberties be better integrated in the policymaking process and
Departmental operations. Under current law, the DHS CRCL
Officer is authorized to assist the Secretary, directorates,
and offices of the Department in developing and implementing
Department policies and procedures to ensure that the
protection of civil rights and civil liberties is appropriately
incorporated into programs and activities, but in practice,
CRCL has not always been provided an opportunity to weigh in on
DHS' programs and policies that clearly impact individuals' and
communities' civil rights and civil liberties. Specifically,
the Committee learned that CRCL received no information from
the Department before the controversial travel ban was
implemented in January 2017.\1\ A former CRCL official has
reported that CRCL was also not consulted when DHS instituted
family separation at the southern border.\2\
---------------------------------------------------------------------------
\1\Letter to Rep. Yvette D. Clarke from DHS Inspector General John
Roth (March 20, 2017), https://www.documentcloud.org/documents/3522287-
DHS-Investigation.html. The letter states that CRCL attempted to
initiate an investigation into the implementation of Executive Order
(EO) #13769, indicating that CRCL was not involved prior to the
implementation.
\2\Shuchart, Scott, ``Careless cruelty: Civil servants said
separating families was illegal. The administration ignored us,'' The
Washington Post (Oct. 25, 2018), https://www.washingtonpost.com/news/
posteverything/wp/2018/10/25/feature/civil-servants-said-separating-
families-was-illegal-the-administration-ignored-us/.
---------------------------------------------------------------------------
The ``Department of Homeland Security Office of Civil
Rights and Civil Liberties Authorization Act'' seeks to enhance
CRCL operations within DHS by clarifying that the DHS CRCL
Officer is charged with integrating civil rights and civil
liberties into all Department programs and activities and by
establishing CRCL officers within each of the Department's
operational components. The designation of component-level CRCL
officers should improve coordination among the components and
CRCL Office at DHS Headquarters on matters with CRCL
implications. The Committee is concerned that components may
fail to share information with CRCL in a timely manner whether
the requested information is regarding an investigation of a
complaint or compliance with Equal Employment Opportunity (EEO)
requirements. Components are not required to respond to CRCL
information requests or recommendations for remedial actions
within any set timeframes. CRCL and DHS components often
negotiate turnaround times, but these agreements may be
ignored, which could lead to lengthy delays in resolving
complaints. When CRCL and a component disagree, there is
currently no formal method for escalating and resolving the
dispute at the secretarial level. H.R. 4713 attempts to rectify
this issue by authorizing CRCL access to all Department records
necessary to carry out its work and to issue subpoenas, as
necessary and subject to the approval of the Secretary, to non-
federal entities.
Finally, for the work of CRCL to be effective, increased
transparency and independence is necessary. Presently, CRCL's
annual reports contain summaries of the investigations
conducted within that year but do not contain any of the
recommendations made by CRCL. Additionally, the Committee has
learned that the annual reports are far less informative than
are the reports written at the conclusion of a review,
assessment, inspection or investigation, which are not made
public.\3\ H.R. 4713 seeks to enhance CRCL's effectiveness and
ensure accountability by requiring that investigative reports
and reviews of Department programs be made publicly available
and submitted to Congress without any prior comment or
amendment by the Secretary, Deputy Secretary, or any other
officer or employee of the Department, unless the CRCL Officer
seeks such comment.
---------------------------------------------------------------------------
\3\Shuchart, Scott, ``Building Meaningful Civil Rights and
Liberties Oversight at the U.S. Department of Homeland Security,'' The
Center for American Progress (April 2019), https://
cdn.americanprogress.org/content/uploads/2019/03/28064808/DHS-Civil-
Rights-Oversight-report1.pdf.
---------------------------------------------------------------------------
Hearings
For the purposes of section 103(i) of H. Res 6. of the
116th Congress, the following hearings were used to develop
H.R. 4713:
On March 26, 2019, the Committee held a
hearing entitled ``The Department of Homeland
Security's Family Separation Policy: Perspectives from
The Border.'' The Committee received testimony from
Jennifer Podkul, Director of Policy, Kids in Need of
Defense; Michelle Brane, Director for Migrant Rights
and Justice, Women's Refugee Commission; Julie M.
Linton, Co-Chair, Immigrant Health Special Interest
Group, American Academy of Pediatrics; and Tim Ballard,
Founder and CEO, Operation Underground Railroad.
On April 30, 2019, the Committee held a
hearing entitled ``The Impacts of Trump Policies on
Border Communities.'' The Committee received testimony
from Jon Barela, Chief Executive Officer, The
Borderplex Alliance; Efren Olivares, Racial and
Economic Justice Director, Texas Civil Rights Project;
Mark Seitz, Most Reverend Bishop, Catholic Diocese of
El Paso, Texas, U.S. Conference of Catholic Bishops;
and Mark Napier, Sheriff of Pima County, Southwestern
Border Sheriff's Coalition.
On June 4, 2019, the Committee held a
hearing entitled ``Perspectives on TSA's Policies to
Prevent Unlawful Profiling.'' The Committee received
testimony from W. William Russell, Acting Director,
Homeland Security and Justice Team, U.S. Government
Accountability Office; Sim J. Singh, Senior Manager of
Policy & Advocacy, The Sikh Coalition; and Janai
Nelson, Associate Director-Counsel, NAACP Legal Defense
and Educational Fund, Inc.
On July 10, 2019, the Committee held a
hearing entitled ``About Face: Examining the Department
of Homeland Security's Use of Facial Recognition and
Other Biometric Technologies.'' The Committee received
testimony from John Wagner, Deputy Executive Assistant
Commissioner, Office of Field Operations, U.S. Customs
and Border Protection, U.S. Department of Homeland
Security; Austin Gould, Assistant Administrator,
Requirements and Capabilities Analysis, Transportation
Security Administration, U.S. Department of Homeland
Security; Joseph R. DiPietro, Chief Technology Officer,
United States Secret Service, U.S. Department of
Homeland Security; and Charles H. Romine, Director,
Information Technology Laboratory, National Institute
of Standards and Technology, U.S. Department of
Commerce.
Committee Consideration
The Committee met on October 23, 2019, with a quorum being
present, to consider H.R. 4713 and ordered the measure to be
reported to the House with a favorable recommendation, with
amendments, by unanimous consent.
The following amendments were offered:
An amendment offered by Mr. Rogers.
Page 2, line 21, insert ``protections'' after ``civil
liberties''.
Page 2, line 25, insert ``, procedures,'' after
``policies''.
Page 2, line 26, insert ``relating to civil rights and
civil liberties'' after ``Department''.
Page 3, line 2, insert ``relating to civil rights and civil
liberties'' after ``technical assistance''.
Page 3, line 8, insert ``at the Department'' after ``civil
liberties''.
Page 3, line 12, insert ``inspections,'' after
``assessments,''.
Page 3, line 14, insert ``relating to civil rights and
civil liberties'' after ``Department''.
Page 4, line 18, insert ``report and'' before ``redress''.
Page 4, after line 22, insert the following:
``(c) Coordination With Inspector General.--
(1) Authority to investigate possible abuses.--The
Officer for Civil Rights and Civil Liberties may
investigate any matter referred to in paragraph (6) or
(7) of subsection (b) after fulfilling the coordination
requirements under paragraph (2) with respect to such
matter.
(2) Coordination requirements.--
(A) Referral of matters to inspector
general.--Before initiating any investigation
described under paragraph (1), the Officer for
Civil Rights and Civil Liberties shall refer
the matter and all related complaints,
allegations, and information to the Inspector
General of the Department.
(B) Inspector general responsibilities.--
(i) Determination and notification.--
Not later than 30 days after the
receipt of a matter referred under
subparagraph (A), the Inspector General
shall--(I) make a determination
regarding whether the Inspector General
intends to initiate an audit or
investigation of the matter referred
under subparagraph (A); and (II) notify
the Officer of such determination.
(ii) Audits and investigations.--If
the Inspector General notifies the
Officer for Civil Rights and Civil
Liberties that the Inspector General
intends to initiate an audit or
investigation, the Inspector General
shall--(I) initiate such audit or
investigate by not later than 90 days
after providing such notification; or
(II) not later than three days after
the end of the 90-day period specified
in subclause (I), notify the Officer
that such audit or investigation was
not initiated.
(C) Provision of assistance.--At the request
of the Inspector General, the Officer for Civil
Rights and Civil Liberties may provide
assistance to the Inspector General on any
investigation or audit initiated by the
Inspector General based on a referral under
subparagraph (A).
(D) Investigation by officer.--The Officer
for Civil Rights and Civil Liberties may
investigate a matter referred to the Inspector
General under subparagraph (A) only if--(i) the
Inspector General notifies the Officer for
Civil Rights and Civil Liberties that the
Inspector General does not intend to initiate
an audit or investigation relating to that
matter; or (ii) the Inspector General provides
notification under subparagraph (B)(ii)(II)
that an audit or investigation was not
initiated.
Page 4, line 23, strike ``(c)'' and insert ``(d)''.
Page 5, line 11, strike ``Office or'' and insert
``Office,''.
Page 5, line 12, insert ``, or any other action taken''
before the period.
Page 5, line 20, strike ``and''.
Page 5, after line 20, insert the following: (C) shall not
include any personally identifiable information related to any
individual involved in such investigation; and
Page 5, line 21, strike ``(C)'' and insert ``(D)''.
Page 5, line 24, strike ``COMPOENENTS'' and insert
``COMPONENTS''.
Page 6, after line 2, insert the following:
(4) Reports to congress.--Upon the conclusion of any
investigation conducted by the Officer for Civil Rights
and Civil Liberties under paragraph (6) or (7) of
subsection (b), the Officer shall submit to Congress a
report on the investigation, which shall be prepared
and submitted without any prior comment or amendment by
the Secretary, Deputy Secretary, or any other officer
or employee of the Department, unless the Officer seeks
such comment.
Page 6, line 3, strike ``(d)'' and insert ``(e)''.
Page 6, line 10, strike ``report'' and insert ``coordinate
with and provide information''.
Page 6, line 11, insert ``on matters related to civil
rights and civil liberties within the components''.
Page 6, line 12, strike ``(e)'' and insert ``(f)''.
Page 6, line 13, strike ``shall''.
Page 6, line 14, insert ``shall'' before ``have access''.
Page 6, line 18, insert ``and'' after the semicolon.
Page 6, beginning on line 19, strike paragraphs (2) and (3)
and insert the following:
(2) may, to the extent the Officer determines
necessary, and subject to the approval of the
Secretary--(A) issue a subpoena to require the
production, by any person other than a Federal agency,
of all information, documents, reports, answers,
records, accounts, papers, and other documentary
evidence necessary in the performance of the
responsibilities of the Officer under this section; and
(B) administer to or take from any person an oath,
affirmation, or affidavit, whenever necessary in the
performance of the responsibilities of the Officer
under this section.
Page 7, line 7, strike ``(f)'' and insert ``(g)''.
Page 7, beginning on line 12, strike ``without any prior
comment or amendment by the Secretary, Deputy Secretary, or any
other officer or employee of the Department,''.
An amendment offered by Ms. Jackson Lee.
Add at the end of the bill the following:
SEC. 3. COMPTROLLER GENERAL REVIEW.
Not later than 180 days after the date of the enactment of
this Act, the Comptroller General of the United States shall
submit to Congress a report on subsection (b)(11) of section
705 of the Homeland Security Act of 2002 (6 U.S.C. 345), as
amended by section 2.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
No recorded votes were requested during consideration of
H.R. 4713.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Congressional Budget Office Estimate, New Budget Authority, Entitlement
Authority, and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office.
Federal Mandates Statement
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Duplicative Federal Programs
Pursuant to clause 3(c) of rule XIII, the Committee finds
that H.R. 4713 does not contain any provision that establishes
or reauthorizes a program known to be duplicative of another
Federal program.
Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 4713, as amended, seeks to
improve the effectiveness of CRCL to ensure DHS preserves
individual's rights and liberties, fairness, and equality while
carrying out its mission. The bill will enhance CRCL's
operations by requiring a CRCL officer to be designated within
each operational component to coordinate with and provide
information to the DHS CRCL Officer on matters related to civil
rights and civil liberties and grant the DHS CRCL Officer more
authority to investigate potential civil rights and civil
liberties abuses. H.R. 4713 also directs CRCL to provide to any
individual who makes a complaint notice of the receipt of such
a complaint within 30 days and requires direct reporting to
Congress on completed investigations and publication of such
reports.
Advisory on Earmarks
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule
XXI.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides that the bill may be cited as the
``Department of Homeland Security Office of Civil Rights and
Civil Liberties Authorization Act.''
Sec. 2. Officer for Civil Rights and Civil Liberties
This section amends section 705 of the Homeland Security
Act of 2002 to authorize an Office for Civil Rights and Civil
Liberties (CRCL) within the Department of Homeland Security and
clarify that the head of such office is the Officer for Civil
Rights and Civil Liberties, who shall report directly to the
Secretary of Homeland Security.
This section requires the Officer to carry out the
following responsibilities:
(1) oversee compliance with constitutional, statutory,
regulatory, policy, and other requirements relating to the
civil rights and civil liberties of individuals affected by the
programs and activities of the Department;
(2) integrate civil rights and civil liberties protections
into all programs and activities of the Department;
(3) conduct civil rights and civil liberties impact
assessments, as appropriate;
(4) conduct periodic reviews of policies, procedures, and
activities of the Department relating to civil rights and civil
liberties;
(5) provide policy advice, recommendations, and other
technical assistance relating to civil rights and civil
liberties to the Secretary and to heads of components,
directorates, and offices and other personnel within the
Department;
(6) review, assess, and investigate complaints, including
complaints filed by members of the public, and information
indicating possible abuses of civil rights or civil liberties
at the Department, unless the Inspector General of the
Department determines that any such complaint or information
should be investigated by the Inspector General;
(7) initiate reviews, assessments, inspections, and
investigations of the administration of the programs and
activities by the Department relating to civil rights and civil
liberties, as the Officer determines necessary;
(8) coordinate with the Privacy Officer of the Department
to ensure that programs, policies, and procedures involving
civil rights, civil liberties, and privacy considerations are
addressed in an integrated and comprehensive manner and that
Congress receives appropriate reports regarding such programs,
policies, and procedures;
(9) lead the equal employment opportunity programs of the
Department, including complaint management and adjudication,
and promote workforce diversity and merit system principles;
(10) make publicly available through accessible
communications channels, including the website of the
Department, information on the responsibilities and functions
of, and how to contact, the Officer and reports that are issued
by the Officer upon completion of investigations; and
(11) engage with individuals and communities whose civil
rights and civil liberties may be affected by DHS programs and
activities, including by informing such individuals and
communities about report and redress processes and advising
Department leadership and personnel on concerns raised by such
individuals and communities.
For the officer to adequately carry out these
responsibilities, the Committee expects Department and
component leadership to consult with CRCL prior to the adoption
and issuance of policies, directives, or regulations and
provide the DHS CRCL Officer adequate time to properly advise
on potential civil rights and civil liberties impacts of such
policies, directives, or regulations. The Committee expects the
same of Department and component leadership prior to the
establishment of Department programs and activities.
Consequently, the Committee expects more frequent issuance of
CRCL impact assessments of the activities undertaken by DHS and
its components.
The Committee expects the DHS CRCL Officer to proactively
self-initiate reviews, assessments, inspections, and
investigations of the administration of programs and activities
by the Department to assess civil rights and civil liberties
implications in addition to being responsive to complaints
filed or concerns raised by members of the public. As CRCL
experienced a 20 percent increase in complaints received during
Fiscal Year 2018, the Committee expects CRCL to identify and
track trends in complaints and adequately respond to such
trends.\4\ Regarding onsite visits and inspections conducted by
CRCL, the Committee expects CRCL to have the capacity to do
follow-on visits and inspections to ensure compliance with
recommendations issued at the conclusion of initial visits and
inspections. The Committee expects the Department to submit a
budget request to provide adequate resources to ensure that
CRCL achieves and maintains such oversight capacity.
---------------------------------------------------------------------------
\4\DHS CRCL Budget Briefing Documents provided to Committee Staff
(April 4, 2019).
---------------------------------------------------------------------------
This section clarifies that before the DHS CRCL Officer
initiates any investigation relating to any matter regarding
complaints filed by members of the public, information
indicating possible abuses of civil rights or civil liberties
at the Department, and the administration of the programs and
activities by the Department relating to civil rights and civil
liberties, the CRCL Officer must refer the matter and all
related complaints, allegations, and information to the
Inspector General of the Department. This section requires the
Inspector General, not later than 30 days after the receipt of
a referred matter, to make a determination regarding whether
the Inspector General intends to initiate an audit or
investigation of the referred matter and notify the CRCL
Officer of such determination. If the Inspector General
notifies the CRCL Officer that the Inspector General intends to
initiate an audit or investigation, the Inspector General is
required to initiate such audit or investigate by not later
than 90 days after providing such notification or notify, not
later than three days after the end of the 90-day period, the
CRCL Officer that such audit or investigation was not
initiated. If the Inspector General provides the latter
notification or notifies the CRCL Officer that the Inspector
General does not intend to initiate an audit or investigation
relating to a referred matter, the CRCL Officer is authorized
to investigate such matter.
This section also authorizes the CRCL Officer to assist the
Inspector General, upon request, on any investigation or audit
initiated by the Inspector General based on a referral from
CRCL.
The Committee believes that there are opportunities for the
Inspector General to involve CRCL in investigations of shared
interest and that such investigations would benefit from such
collaboration.
Additionally, this section directs CRCL to provide to any
individual who makes a complaint notice of the receipt of such
a complaint within 30 days and inform the complainant of the
determination of the CRCL Officer regarding the initiation of a
review, assessment, or investigation within CRCL, a referral to
the Inspector General of the Department, or any other action
taken.
This section requires that, in the case of any
investigation initiated by the CRCL Officer, the CRCL Officer
produce a report that includes findings and recommendations.
The report shall be made publicly available and shall not
include any personally identifiable information related to any
individual involved in such investigation. The report may
include a classified appendix, as the CRCL Officer determines
appropriate. The CRCL Officer is required to transmit a copy of
each report produced at the conclusion of an investigation to
the Secretary, head(s) of the relevant operational
component(s), and to Congress. The reports to Congress shall be
prepared and submitted without any prior comment or amendment
by the Secretary, Deputy Secretary, or any other officer or
employee of the Department, unless the Officer seeks such
comment.
The Committee expects that, in the case of findings or
recommendations, Department and component leadership may wish
to issue responses to such findings or recommendations.
However, the Committee expects CRCL to maintain and exert
operational independence and therefore expects that findings
and recommendations are not influenced or amended in any shape
or form by any non-CRCL officer or employee of the Department.
This section requires the head of each operational
component to designate a CRCL officer within its respective
component to coordinate with and provide information to the
CRCL Officer of the Department on matters related to civil
rights and civil liberties. Additionally, this section
authorizes the CRCL Officer to access all Department records
necessary to carry out the CRCL Officer's work and to issue
subpoenas, as necessary and subject to the approval of the
Secretary, to non-federal entities and administer to or take
from any person an oath, affirmation, or affidavit, when
necessary. Lastly, this section requires the CRCL Officer to
submit to the President and Congress an annual report setting
forth the activities of CRCL for the prior year, including
information on diversity and Equal Employment Opportunity (EEO)
activities. The report must, among other items, include a
description of all recommendations the CRCL Officer made to
senior DHS leadership in the prior year, along with the status
of each recommendation.
Regarding the CRCL Officer's authorization to access to
information, the Committee expects such access to include, as
appropriate, legal analyses related to civil rights and civil
liberties implications of programs and policies of the
Department produced within the Department. As it relates to the
annual report, the Committee expects the inclusion of
Department diversity demographic data and expects such data to
be made publicly available on the website of the Department.
Sec. 3. Comptroller General review
This section requires the Comptroller General of the United
States to submit a report to Congress on DHS CRCL's efforts to
carry out the responsibility of engaging with individuals and
communities whose civil rights and civil liberties may be
affected by DHS programs and activities, including by informing
such individuals and communities about report and redress
processes and advising Department leadership and personnel on
concerns raised by such individuals and communities.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Homeland
Security Act of 2002''.
(b) Table of Contents.--The table of contents for this Act is
as follows:
Sec. 1. Short title; table of contents.
* * * * * * *
TITLE VII--MANAGEMENT
Sec. 701. Under Secretary for Management.
* * * * * * *
[Sec. 705. Establishment of Officer for Civil Rights and Civil
Liberties.]
Sec. 705. Officer for civil rights and civil liberties.
* * * * * * *
TITLE VII--MANAGEMENT
* * * * * * *
SEC. 705. [ESTABLISHMENT OF] OFFICER FOR CIVIL RIGHTS AND CIVIL
LIBERTIES.
[(a) In General.--The Officer for Civil Rights and Civil
Liberties, who shall report directly to the Secretary, shall--
[(1) review and assess information concerning abuses
of civil rights, civil liberties, and profiling on the
basis of race, ethnicity, or religion, by employees and
officials of the Department;
[(2) make public through the Internet, radio,
television, or newspaper advertisements information on
the responsibilities and functions of, and how to
contact, the Officer;
[(3) assist the Secretary, directorates, and offices
of the Department to develop, implement, and
periodically review Department policies and procedures
to ensure that the protection of civil rights and civil
liberties is appropriately incorporated into Department
programs and activities;
[(4) oversee compliance with constitutional,
statutory, regulatory, policy, and other requirements
relating to the civil rights and civil liberties of
individuals affected by the programs and activities of
the Department;
[(5) coordinate with the Privacy Officer to ensure
that--
[(A) programs, policies, and procedures
involving civil rights, civil liberties, and
privacy considerations are addressed in an
integrated and comprehensive manner; and
[(B) Congress receives appropriate reports
regarding such programs, policies, and
procedures; and
[(6) investigate complaints and information
indicating possible abuses of civil rights or civil
liberties, unless the Inspector General of the
Department determines that any such complaint or
information should be investigated by the Inspector
General.
[(b) Report.--The Secretary shall submit to the
President of the Senate, the Speaker of the House of
Representatives, and the appropriate committees and
subcommittees of Congress on an annual basis a report
on the implementation of this section, including the
use of funds appropriated to carry out this section,
and detailing any allegations of abuses described under
subsection (a)(1) and any actions taken by the
Department in response to such allegations.]
(a) In General.--There is established within the Department
an Office for Civil Rights and Civil Liberties. The head of
such Office is the Officer for Civil Rights and Civil
Liberties, who shall report directly to the Secretary.
(b) Responsibilities.--The Officer for Civil Rights and Civil
Liberties shall carry out the following responsibilities:
(1) Oversee compliance with constitutional,
statutory, regulatory, policy, and other requirements
relating to the civil rights and civil liberties of
individuals affected by the programs and activities of
the Department.
(2) Integrate civil rights and civil liberties
protections into all programs and activities of the
Department.
(3) Conduct civil rights and civil liberties impact
assessments, as appropriate.
(4) Conduct periodic reviews of policies, procedures,
and activities of the Department relating to civil
rights and civil liberties.
(5) Provide policy advice, recommendations, and other
technical assistance relating to civil rights and civil
liberties to the Secretary and to heads of components,
directorates, and offices and other personnel within
the Department.
(6) Review, assess, and investigate complaints,
including complaints filed by members of the public,
and information indicating possible abuses of civil
rights or civil liberties at the Department, unless the
Inspector General of the Department determines that any
such complaint or information should be investigated by
the Inspector General.
(7) Initiate reviews, assessments, inspections, and
investigations of the administration of the programs
and activities by the Department relating to civil
rights and civil liberties, as the Officer determines
necessary.
(8) Coordinate with the Privacy Officer to ensure
that--
(A) programs, policies, and procedures
involving civil rights, civil liberties, and
privacy considerations are addressed in an
integrated and comprehensive manner; and
(B) Congress receives appropriate reports
regarding such programs, policies, and
procedures.
(9) Lead the equal employment opportunity programs of
the Department, including complaint management and
adjudication, and promote workforce diversity and merit
system principles.
(10) Make publicly available through accessible
communications channels, including the website of the
Department--
(A) information on the responsibilities and
functions of, and how to contact, the Officer;
and
(B) reports that are issued by the Officer
upon completion of investigations carried out
pursuant to paragraph (6) or (7).
(11) Engage with individuals and communities whose
civil rights and civil liberties may be affected by
programs and activities of the Department, including by
informing such individuals and communities about report
and redress processes and advising the Secretary and
heads of components, directorates, offices, and other
personnel within the Department of any concerns raised
by such individuals and communities.
(c) Coordination With Inspector General.--
(1) Authority to investigate possible abuses.--The
Officer for Civil Rights and Civil Liberties may
investigate any matter referred to in paragraph (6) or
(7) of subsection (b) after fulfilling the coordination
requirements under paragraph (2) with respect to such
matter.
(2) Coordination requirements.--
(A) Referral of matters to inspector
general.--Before initiating any investigation
described under paragraph (1), the Officer for
Civil Rights and Civil Liberties shall refer
the matter and all related complaints,
allegations, and information to the Inspector
General of the Department.
(B) Inspector general responsibilities.--
(i) Determination and notification.--
Not later than 30 days after the
receipt of a matter referred under
subparagraph (A), the Inspector General
shall--
(I) make a determination
regarding whether the Inspector
General intends to initiate an
audit or investigation of the
matter referred under
subparagraph (A); and
(II) notify the Officer of
such determination.
(ii) Audits and investigations.--If
the Inspector General notifies the
Officer for Civil Rights and Civil
Liberties that the Inspector General
intends to initiate an audit or
investigation, the Inspector General
shall--
(I) initiate such audit or
investigate by not later than
90 days after providing such
notification; or
(II) not later than three
days after the end of the 90-
day period specified in
subclause (I), notify the
Officer that such audit or
investigation was not
initiated.
(C) Provision of assistance.--At the request
of the Inspector General, the Officer for Civil
Rights and Civil Liberties may provide
assistance to the Inspector General on any
investigation or audit initiated by the
Inspector General based on a referral under
subparagraph (A).
(D) Investigation by officer.--The Officer
for Civil Rights and Civil Liberties may
investigate a matter referred to the Inspector
General under subparagraph (A) only if--
(i) the Inspector General notifies
the Officer for Civil Rights and Civil
Liberties that the Inspector General
does not intend to initiate an audit or
investigation relating to that matter;
or
(ii) the Inspector General provides
notification under subparagraph
(B)(ii)(II) that an audit or
investigation was not initiated.
(d) Transparency.--
(1) Complaints.--In the case of a complaint made
concerning allegations of abuses of civil rights and
civil liberties under paragraph (6) of subsection (b),
the Officer for Civil Rights and Civil Liberties
shall--
(A) provide to the individual who made the
complaint notice of the receipt of such
complaint within 30 days of receiving the
complaint; and
(B) inform the complainant of the
determination of the Officer regarding the
initiation of a review, assessment, or
investigation within the Office, a referral to
the Inspector General of the Department, or any
other action taken.
(2) Investigations.--In the case of an investigation
initiated by the Officer pursuant to paragraph (6) or
(7) of subsection (b), upon the conclusion of the
investigation, the Officer shall produce a report on
the investigation which--
(A) shall include the findings and
recommendations of the Officer;
(B) shall be made publicly available;
(C) shall not include any personally
identifiable information related to any
individual involved in such investigation; and
(D) may include a classified appendix, as the
Officer determines appropriate.
(3) Submittal to heads of operational components.--
The Officer shall transmit a copy of each report
produced under paragraph (2) to the Secretary and to
the relevant head of each relevant operational
component of the Department.
(4) Reports to congress.--Upon the conclusion of any
investigation conducted by the Officer for Civil Rights
and Civil Liberties under paragraph (6) or (7) of
subsection (b), the Officer shall submit to Congress a
report on the investigation, which shall be prepared
and submitted without any prior comment or amendment by
the Secretary, Deputy Secretary, or any other officer
or employee of the Department, unless the Officer seeks
such comment.
(e) Component Civil Rights and Civil Liberties Officer.--The
head of each of the operational components of the Department
shall designate a career appointee (as such term is defined in
section 3132 of title 5, United States Code) from such
component as the Officer for Civil Rights and Civil Liberties
of that component. The Officer for Civil Rights and Civil
Liberties of each such component shall coordinate with and
provide information to the Officer for Civil Rights and Civil
Liberties of the Department on matters related to civil rights
and civil liberties within the components.
(f) Access to Information.--The Officer for Civil Rights and
Civil Liberties of the Department--
(1) shall have access to all records, reports,
audits, reviews, documents, papers, recommendations,
and other materials available to the Department that
relate to programs and operations with respect to the
responsibilities of the Officer under subsection (b);
and
(2) may, to the extent the Officer determines
necessary, and subject to the approval of the
Secretary--
(A) issue a subpoena to require the
production, by any person other than a Federal
agency, of all information, documents, reports,
answers, records, accounts, papers, and other
documentary evidence necessary in the
performance of the responsibilities of the
Officer under this section; and
(B) administer to or take from any person an
oath, affirmation, or affidavit, whenever
necessary in the performance of the
responsibilities of the Officer under this
section.
(g) Annual Report.--Not later than March 31 of each year, the
Officer for Civil Rights and Civil Liberties of the Department
shall submit directly to the President, the President of the
Senate, the Speaker of the House of Representatives, and the
appropriate committees and subcommittees of Congress, a report
on the implementation of this section during the year preceding
the year during which the report is submitted. Each such report
shall include, for the year covered by the report--
(1) any allegations of abuse described under
subsection (b)(6) and any actions by the Department or
a component, directorate, or office of the Department
that the Officer identifies as responsive to such
allegations;
(2) a list of Department programs and activities for
which civil rights and civil liberties impact
assessments were conducted, or policy advice,
recommendations, or other technical assistance was
provided;
(3) any recommendations issued by the Officer to the
Secretary or the head of a component, directorate, or
office, together with information on the status of the
implementation of such recommendations;
(4) information on the diversity and equal employment
opportunity activities of the Department, including
information on complaint management and adjudication of
equal employment opportunity complaints and efforts to
ensure compliance throughout the Department with equal
employment opportunity requirements;
(5) a description of any efforts to engage with
individuals and communities whose civil rights and
civil liberties may be affected by activities carried
out by the Department, including public meetings; and
(6) information on total staffing for the Office of
Civil Rights and Civil Liberties, including--
(A) the number of full-time, part-time and
contract support personnel; and
(B) information on the number of employees
whose primary responsibilities include
supporting the Officer in carrying out
paragraph (9) of subsection (b).
* * * * * * *
ADDITIONAL VIEWS
H.R. 4713 reauthorizes and expands the authorities of the
Office of Civil Rights and Civil Liberties (CRCL) at the
Department of Homeland Security (DHS). The bill outlines the
responsibilities of the CRCL, including ensuring compliance by
DHS and its components with the Constitution, as well as
implementing laws and regulations related to civil rights and
civil liberties.
The bill, as amended, is intended to give CRCL authorities
that are comparable to the authorities of the DHS Privacy
Office. The amendment offered by Ranking Member Mike Rogers (R-
AL) and adopted in Committee included several provisions to
ensure that the authority granted CRCL was not more expansive
than that of the DHS Privacy Office.
The Rogers amendment included a provision to ensure that
the new authority granted CRCL would not be used to engage in
duplicative activities or investigations. DHS has numerous
offices engaged in investigating violations of the civil rights
of individuals. To ensure these offices coordinate to avoid
wasteful duplicative investigations, the Rogers amendment
requires CRCL to inform the Office of the Inspector General
(OIG) prior to starting an investigation and receive
confirmation that OIG will not conduct its own investigation on
the matter.
H.R. 4713 also grants CRCL access to DHS documents on
programs and operations, provides it with subpoena powers, and
the authority to administer an oath or take an affidavit. The
Rogers amendment requires the Secretary to approve the use of
subpoena authority and the authority to administer oaths.
Committee Republicans believe these authorities should be
exercised only in the rarest of circumstances and only after
approval by the Secretary. We expect that DHS and its
components would view cooperation with CRCL as standard
operating procedure and provide relevant documents when
requested. However, in utilizing the authority provided, CRCL
must respect generally accepted exceptions to document
production.
Finally, the bill also requires the issuance of a report
after an investigation and an annual report on the activities
of CRCL. The Rogers amendment requires that personally
identifiable information be protected in the report of an
investigation. It also allows for comment by the Secretary and
the components on the activity report of CRCL. Although an
investigative report does not require comment from DHS or its
components, we expect CRCL would seek the guidance of the
Secretary and the components whenever possible during an
investigation to ensure it is conducted in a fair and equitable
manner.
The Committee received informal views and technical
drafting assistance on H.R. 4713 from DHS, but not with
sufficient time to fully adjudicate them. While the Rogers
amendment addresses most of the issues raised by DHS, Committee
Republicans encourage the majority to work with the Department
to address outstanding issues.
This legislation, as amended, is not intended to
significantly broaden the authority of CRCL. It is merely
intended to grant CRCL the authorities necessary to conduct
meaningful inquiries into abuses of civil rights and civil
liberties within DHS.
Mike Rogers.
[all]