[Senate Report 118-310]
[From the U.S. Government Publishing Office]
Calendar No. 730
118th Congress} { Report
SENATE
2d Session } { 118-310
======================================================================
BRING OUR HEROES HOME ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2315
TO PROVIDE FOR THE CREATION OF THE MISSING
ARMED FORCES AND CIVILIAN PERSONNEL RECORDS
COLLECTION AT THE NATIONAL ARCHIVES, TO
REQUIRE THE EXPEDITIOUS PUBLIC TRANSMISSION TO
THE ARCHIVIST AND PUBLIC DISCLOSURE OF MISSING
ARMED FORCES AND CIVILIAN PERSONNEL RECORDS, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 19 (legislative day, December 16), 2024.--Ordered to be
printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2025
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
ADAM SCHIFF, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Lena C. Chang, Director of Governmental Affairs
Emily I. Manna, Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 730
118th Congress} { Report
SENATE
2d Session } { 118-310
======================================================================
BRING OUR HEROES HOME ACT
_______
December 19 (legislative day, December 16), 2024.--Ordered to be
printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2315]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2315) to provide
for the creation of the missing Armed Forces and civilian
personnel Records Collection at the National Archives, to
require the expeditious public transmission to the Archivist
and public disclosure of missing Armed Forces and civilian
personnel records, and for other purposes, having considered
the same, reports favorably thereon with an amendment in the
nature of a substitute and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis of the Bill, as Reported.............3
V. Evaluation of Regulatory Impact.................................12
VI. Changes in Existing Law Made by the Bill, as Reported...........12
I. Purpose and Summary
S. 2315, the Bring Our Heroes Home Act, would establish the
Missing Armed Forces and Civilian Personnel Records Collection
at the National Archives and Records Administration (NARA) and
require executive agencies to identify, locate, and transmit
any Missing Armed Forces and civilian personnel records in
their possession to NARA for placement in the collection. Any
record that an executive agency attempts to withhold because it
contains classified information would be sent to an independent
review board established under the legislation. That review
board would consist of five individuals who would determine
whether the release of the record should be postponed due to
concerns regarding classified materials. The chair of the
review board would be appointed by the President and confirmed
by the Senate. The Senate Majority Leader, the Senate Minority
Leader, the Speaker of the House, and the Minority Leader of
the House would each recommend one individual for each of the
other four board positions.
Under the bill, records that are less than 25 years old at
the time of review by NARA would be subject to strict criteria
for declassification due to the increased risk that they may
contain sensitive classified material. Records older than 25
years at the time they are reviewed would be subject to less
stringent declassification criteria, allowing for greater
efficiency and transparency in disclosing these records.
II. Background and Need for the Legislation
Currently, records related to missing armed forces and
civilian personnel can be found across several federal
agencies, including the Department of Defense, Department of
State, and intelligence community agencies.\1\ While next of
kin may request the case file of missing loved ones, much of
the information related to missing personnel cases remains
classified and can be withheld from case files.\2\ Family
members or loved ones who are not next of kin must utilize the
Freedom of Information Act request process, which can take
months or years to obtain records and often produces records
with significant redactions.\3\
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\1\Defense POW/MIA Accounting Agency, Family Member Guide (Aug. 11,
2021) (https://www.dpaa.mil/Portals/85/Family%20Members%20Guide%20-
FINAL%20Dec%208.pdf).
\2\Defense POW/MIA Accounting Agency, Notice of Generic Classified
Information (Feb. 10, 2000) (https://www.dpaa.mil/Resources/Generic-
Case-Files/).
\3\Amy Hilbert, ``The Federal Government is Likely to Receive a
Record Number of FOIA Requests Again in 2024,'' Government Executive
(Oct. 15, 2024) (https://www.govexec.com/technology/2024/10/federal-
government-likely-receive-record-number-foia-requests-again-2024/
400228/).
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After 25 years, classified information becomes eligible for
automatic declassification, but a Public Interest
Declassification Board (PIDB) report found that only about half
of the classified information reviewed for automatic
declassification each year is actually declassified, resulting
in a backlog of tens of millions of pages of records. In its
report, the PIDB recommended that the federal government pursue
topic-based declassification rather than simply prioritizing
records by age, in order to accelerate declassification for
records of significant public interest.\4\ In the past,
Congress has prioritized certain topics for declassification by
creating special collections to identify and disclose records
of particular importance. For example, the President John F.
Kennedy (JFK) Assassination Records Collection Act, which
passed in 1992, created a central depository for the collection
of records related to JFK's assassination.\5\ More recently,
Congress passed and the President signed into law the Civil
Rights Cold Case Records Collection Act, requiring NARA to
create a collection of government documents related to civil
rights cold cases.\6\
---------------------------------------------------------------------------
\4\Public Interest Declassification Board, Setting Priorities: An
Essential Step in Transforming Declassification (Dec. 2014) (https://
www.archives.gov/files/declassification/pidb/recommendations/setting-
priorities.pdf).
\5\Pub. Law No. 102-526.
\6\Public Law No: 115-426.
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This legislation builds on that precedent by creating a
collection of Missing Armed Forces and civilian personnel
records to help families identify their lost loved ones.
III. Legislative History
Senator Mike Crapo (R-ID) introduced S. 2315, the Bring Our
Heroes Home Act, on July 13, 2023, with original cosponsors
Senators Jeanne Shaheen (D-NH), James Risch (R-ID), Marsha
Blackburn (R-TN), John Thune (R-SD), Bill Cassidy (R-LA), and
Mike Rounds (R-SD). The bill was referred to the Committee on
Homeland Security and Governmental Affairs. Senator Elizabeth
Warren (D-MA) joined as an additional cosponsor on September 7,
2023. Senators Alex Padilla (D-CA) and Jacky Rosen (D-NV)
joined as additional cosponsors on September 13 and 14, 2023,
respectively. Senators Angus King (I-ME) and Tammy Duckworth
(D-IL) joined as additional cosponsors on October 16, 2023.
Senators Maggie Hassan (D-NH) joined as a cosponsor on
September 17.
The Committee considered S. 2315 at a business meeting on
November 20, 2024. At the business meeting, Senators Peters
offered a substitute amendment. The Peters substitute amendment
altered the requirements for Senate confirmation of Review
Board members, requiring that only the Chairperson be Senate-
confirmed. It clarified that the Review Board can only operate
once it has quorum, which must include the Senate-confirmed
Chairperson. The substitute amendment also changed the
conflict-of-interest review structure so that the Director of
the Office of Government Ethics must be consulted in ensuring
that members of the Review Board, as well as the Executive
Director and staff, do not have any conflicts of interest.
Finally, the substitute amendment made other changes to ensure
the Committee has continuing oversight jurisdiction of the
Review Board and that the Chair, Ranking Member, and designated
staff shall receive adequate security clearances to conduct
necessary oversight. The Committee adopted the Peters
substitute amendment by unanimous consent, with Senators
Peters, Hassan, Rosen, Ossoff, Blumenthal, Butler, Lankford,
and Hawley present.
The bill, as amended by the Peters substitute amendment,
was ordered reported favorably by roll call vote of 8 yeas to 0
nays, with Senators Peters, Hassan, Rosen, Ossoff, Blumenthal,
Butler, Lankford, and Hawley voting in the affirmative.
Senators Carper, Sinema, Paul, Johnson, Romney, Scott, and
Marshall voted yea by proxy, for the record only.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
Bring Our Heroes Home Act.
Section 2. Findings, declarations, and purposes
Subsection (a) details Congress's findings and declarations
and explains that the bill was written to address records the
U.S. government may possess that would shed light on the
ultimate fate of missing service men and women, as well as
civilian personnel.
Subsection (b) states that the purposes of the bill are:
(1) to create the Missing Armed Forces and Civilian Personnel
Records Collection at NARA and (2) to require expeditious
transmission of missing Armed Forces and civilian personnel
records to NARA, as well as public disclosure of these records,
subject to narrow exceptions, as set forth in this Act.
Section 3. Definitions
This section defines the terms ``Archivist,''
``collection,'' ``Director,'' ``executive agency,'' ``Executive
Branch Missing Armed Forces and Civilian Personnel Record,''
``government office,'' ``missing armed forces and civilian
personnel,'' ``Missing Armed Forces and Civilian Personnel
Record,'' ``missing person,'' ``National Archives,'' ``official
investigation,'' ``originating body,'' ``public interest,''
``record,'' and ``Review Board.''
Section 4. Missing Armed Forces and Civilian Personnel Records
Collection at The National Archives
Subsection (a) requires the Archivist of the United States
(Archivist) to establish the Missing Armed Forces and Civilian
Personnel Records Collection 90 days after a quorum is
established on the Missing Armed Forces and Civilian Personnel
Records Review Board. The Archivist must begin collecting these
records, prepare a subject guidebook and index to the
Collection, and establish the criteria and acceptable formats
for executive agencies to use in transmitting records.
Subsection (b) requires the Review Board to promulgate
regulations to establish guidelines and processes for
disclosing records in the Collection.
Subsection (c) provides that the Senate Homeland Security
and Governmental Affairs Committee and the Houe committee on
Oversight and Accountability shall have continuing oversight
over the collection.
Section 5. Review, identification, transmission to The National
Archives, and Public Disclosure of Missing Armed Forces and
Civilian Personnel Records by Government Offices
Subsection (a) directs all government offices to locate all
missing Armed Forces and civilian personnel records in its
control and prepare a copy of each record for transmission to
the Archivist per regulations on proper formatting. Each
government office shall certify under penalty of perjury
whether it has searched thoroughly for all such records and
whether copies of these records have been transmitted to the
Archivist. Government offices are barred from damaging or
destroying missing Armed Forces and civilian personnel records.
If a missing Armed Forces and civilian personnel record has
already been made available or public, a government office may
not withhold it from the Archivist. If a government office
decides to substantially redact or withhold a missing Armed
Forces and civilian personnel record, then the head of this
agency must submit an unclassified and publicly releasable
report to the Archivist, Review Board, and the appropriate
committees of the Senate and House justifying the action.
Subsection (b) specifies that each government office must
transmit all missing Armed Forces and civilian personnel
records to either the Archivist or the Review Board within 180
days of the first Review Board quorum. The Review Board must
promulgate regulations for these disclosures. No later than 180
days after the Review Board's first quorum, the Archivist must
locate and identify all missing Armed Forces and civilian
personnel records in the custody of NARA that remain
classified, in whole or in part. The Archivist must make each
classified missing Armed Forces and civilian personnel record
available for review by executive agencies through the National
Declassification Center. The Archivist must also notify a
government office if any of its relevant classified records are
identified and located. Those missing Armed Forces and civilian
personnel records that are already public shall be added to the
Collection without any review. The Defense POW/MIA Accounting
Agency, Department of Defense Military Service Casualty
Offices, and the Department of State Service Casualty Offices
are exempt from this subsection.
Subsection (c) requires that within 180 days of the first
quorum of the Review Board, all government offices must start
transmitting copies of the missing Armed Forces and civilian
personnel records in their custody, possession, or control to
the Archivist. This process must be completed no later than one
year after the first quorum of the Review Board.
Subsection (d) mandates that agencies must periodically
review all the missing Armed Forces and civilian personnel
records of which they postponed transmission or release every
five years after the Review Board terminates. If the government
agency reviewing records that have been postponed determines
that continued postponement is justified, the agency shall
provide to the Archivist an unclassified written description of
the reason for the continued postponement. The Archivist must
then highlight this unclassified written description and make
it available on a publicly accessible website administered by
NARA. Ten years after the Review Board's first quorum, all
missing Armed Forces and civilian personnel records must be
disclosed in full unless an exemption is received, under the
following process. (1) An agency must recommend in writing that
disclosure be postponed. (2) The written recommendation must be
provided to the Archivist in an unclassified and publicly
releasable form. The recommendation must include a
justification for the postponement with clear and convincing
evidence that the identifiable harm is of such gravity that it
outweighs the public interest in disclosure. Additionally, the
written recommendation must have a recommended specified time
at which, or a specified occurrence following which, the
records may be appropriately disclosed to the public. (3) The
Archivist must transmit all recommended postponements and the
Archivist's recommendation to the President. (4) The President
must send certification to the Archivist that continued
postponement is required because the identifiable harm, as
demonstrated by clear and convincing evidence, is of such
gravity that it outweighs the public interest in disclosure.
Section 6. Grounds for postponement of public disclosure of records
Subsection (a) establishes the exceptions for public
disclosure of missing Armed Forces and civilian personnel
records created 25 years before the Archivist's review that may
pertain if the two prongs of the standard are satisfied.
Subsection (a)(1) provides the first prong is whether the
record meets one of the following: (1) military plans, weapons
systems, or operations; (2) foreign government information; (3)
intelligence activities (including covert action), intelligence
sources or methods, or cryptology; (4) foreign relations or
foreign activities of the United States, including confidential
sources; (5) scientific, technological, or economic matters
relating to the national security; (6) United States Government
programs for safeguarding nuclear materials or facilities; (7)
vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services
relating to the national security; or (8) the development,
production, or use of weapons of mass destruction.
Subsection (a)(2) provides the second prong, which is a
balancing test. The threat posed by the public disclosure of
the missing Armed Forces and civilian personnel record or
information must be of such gravity that it outweighs the
public interest in disclosure.
Subsection (b) details the postponement process for records
created 25 years before the Archivist's review. Under this
standard, public disclosure can be postponed according to a
different two prong test and both prongs must be satisfied by
clear and convincing evidence.
Subsection (b)(1) provides the first prong, which is
whether the release of information is expected to: (1) reveal
the identity of a confidential human source, a human
intelligence source, a relationship with an intelligence or
security service of a foreign government or international
organization, or a nonhuman intelligence source, or impair the
effectiveness of an intelligence method currently in use,
available for use, or under development; (2) reveal information
that would impair U.S. cryptologic systems or activities; (3)
reveal formally named or numbered U.S. military war plans that
remain in effect, or reveal operational or tactical elements of
prior plans that are contained in such active plans; or (4)
reveal information, including foreign government information,
that would cause serious harm to relations between the United
States and a foreign government, or to ongoing diplomatic
activities of the United States.
Subsection (b)(2) provide the second prong of the test,
which is consideration of the threat posed by the public
disclosure if the missing Armed Forces and civilian personnel
record or information is of such gravity that it outweighs the
public interest in disclosure.
Subsection (c) explains the overarching set of exceptions
that can be used to postpone the public disclosure of records
regardless of how long before the Archivist's review they were
created. Postponement may occur if: (1) the public disclosure
of the information would reveal the name or identity of a
living person who provided confidential information to the
United States and would pose a substantial risk of harm to that
person; (2) the public disclosure of the information could
reasonably be expected to constitute an unwarranted invasion of
personal privacy, and that invasion of privacy is so
substantial that it outweighs the public interest; (3) the
public disclosure of the information could reasonably be
expected to cause harm to the methods currently in use or
available for use by members of the Armed Forces to survive,
evade, resist, or escape; or (4) the public disclosure of such
information would conflict with U.S. law or regulations.
Section 7. Establishment and powers of the Missing Armed Forces and
Civilian Personnel Records Review Board
Subsection (a) authorizes the establishment of an
independent executive branch entity, the Missing Armed Forces
and Civilian Personnel Records Review Board (Review Board) ,
charged with ensuring and facilitating the review, transmission
to the Archivist, and public disclosure of missing Armed Forces
and civilian personnel records.
Subsection (b) describes the composition of the Review
Board. The President shall nominate and the Senate shall advise
and consent on the Review Board's Chair. The Speaker of the
House, the Minority Leader of the House, the Senate Majority
Leader, and the Senate Minority Leader shall each recommend to
the President one member of the Review Board. The President
shall appoint the other four members of the Review Board.
Subsection (b)(2) requires that Review Board members must be
appointed without regard to political affiliation, not be
executive agency employees, have high national professional
reputations in their fields, and other qualifications. The
President must consult with the Office of Government Ethics
when considering the appointment of members of the Review
Board. Moreover, the President should appoint members after
receiving recommendations from the American Historical
Association, the Organization of American Historians, the
Society of American Archivists, the American Bar Association,
veterans' organizations, and organizations representing
families of missing Armed Forces and civilian personnel.
Subsection (c) requires other executive agencies to
expedite review and consideration of security clearances for
members of the Review Board.
Subsection (d) directs the nomination of the Review Board
Chair to be referred to the Senate Committee on Homeland
Security and Governmental Affairs for consideration.
Subsection (e) provides that vacancies on the Review Board
would be filled within 60 days using the same method used to
appoint the vacant member.
Subsection (f) defines a quorum of the Review Board as the
Chair and a majority of other members.
Subsection (g) states that members of the Review Board can
be removed only through impeachment by Congress or the
President acting because of inefficiency, neglect of duty,
malfeasance in office, physical disability, mental incapacity,
or any other condition that substantially impairs the
performance of the member's duties. Removed Review Board
members can bring civil actions in the U.S. District Court for
the District of Columbia.
Subsection (h) details compensation for members of the
Review Board.
Subsection (i) lists the duties of members of the Review
Board, including primarily considering and rendering a decision
on a determination by a government office to seek to postpone
the disclosure of a missing Armed Forces or civilian personnel
record.
Subsection (j) enumerates the Review Board's powers. The
Board has the authority to direct government offices to
transmit to the Archivist missing Armed Forces and civilian
personnel records; direct government offices to transmit
substitutes and summaries of missing records that can be
publicly disclosed to the fullest extent; and obtain access to
missing records that have been identified by a government
office. The Board may also direct a government office to make
available to the Board, and if necessary investigate the facts
surrounding, additional information, records, or testimony from
individuals, which the Board has reason to believe is required
to fulfill its functions and responsibilities. The Board is
authorized to hold such hearings, sit and act at such times and
places, take such testimony, receive such evidence, and
administer such oaths as the Board considers advisable to carry
out its responsibilities. It is empowered to hold individuals
in contempt for failure to comply with directives and mandates
issued by the Board under this Act subtitle, which shall not
include the authority to imprison or fine any individual. The
Board may require any government office to account in writing
for the destruction of any records relating to the loss, fate,
or status of missing Armed Forces and civilian personnel. It
may receive information from the public regarding the
identification and public disclosure of missing Armed Forces
and civilian personnel records. Finally, the Board is
authorized to make a final determination regarding whether a
missing Armed Forces or civilian personnel record will be
disclosed to the public or whether public disclosure of the
missing record will be postponed, notwithstanding the
determination of an executive agency.
Subsection (k) provides for witness immunity.
Subsection (l) provides the Senate Committee on Homeland
Security and Governmental Affairs and the House Committee on
Oversight and Reform with continuing legislative oversight
jurisdiction with respect to the official conduct of the Review
Board and the disposition of postponed records after
termination of the Review Board. Moreover, either committee
must be granted access to any records held or created by the
Review Board no later than 10 days after submitting a request.
In addition, the Chairman and Ranking Members of these
committees, and designated Committee staff, shall be granted
all security clearances and accesses held by the Review Board,
including to relevant Presidential and department or agency
special access and compartmented access programs.
Subsection (m) directs the Administrator of the General
Services Administration to provide administrative services for
the Review Board on a reimbursable basis.
Subsection (n) permits the Review Board to issue
interpretive regulations.
Subsection (o) requires that two years after enactment of
this Act, the Review Board must vote to determine whether all
government offices have complied with the obligations,
mandates, and directives. The Review Board shall terminate on
the date that is 4 years after the date of swearing in of the
Board members. The Board must submit reports to Congress,
including a complete and accurate accounting of expenditures
during its existence, and shall complete all other reporting
requirements. Moreover, upon termination of the Review Board,
the Board shall transfer all Board records to the Archivist for
inclusion in the Collection, and no record of the Board shall
be destroyed.
Section 8. Missing Armed Forces and civilian personnel records Review
Board personnel
Subsection (a) directs the Review Board to appoint an
Executive Director no later than 45 days after its initial
meeting. The Executive Director must be a U.S. citizen,
appointed without regard to political affiliation, and not have
conflicts of interest with the Review Board. The Board must
consult with the Office of Government Ethics when considering
who to appoint as Executive Director. The Review Board cannot
appoint a person who does not have a security clearance, but
other agencies must expedite review and consideration of
applications for security clearances of people nominated as
Executive Director.
Subsection (b) permits the Review Board to hire staff who
must be U.S. citizens and shall not have had any previous
involvement with any official investigation or inquiry relating
to the loss, fate, or status of missing Armed Forces and
civilian personnel. The Review Board must consult with the
Office of Government Ethics in considering the hiring of staff.
The Board cannot appoint staff who do not have security
clearance, but other agencies must expedite review and
consideration of applications for security clearances of people
nominated as staff.
Subsection (c) details the compensation of the Executive
Director and staff.
Subsection (d) permits the Review Board to create advisory
committees per the Federal Advisory Committee Act (5 U.S.C.
App.).
Section 9. Review of records by the missing Armed Forces and civilian
personnel records Review Board
Subsection (a) directs that within 90 days of the date upon
which all members are sworn in, the Review Board shall publish
an initial schedule for review of all missing Armed Forces and
civilian personnel records, which the Archivist shall highlight
and make available on a publicly accessible website
administered by NARA. And, not later than 180 days of the date
upon which all members are sworn in, the Review Board must
begin reviewing of missing Armed Forces and civilian personnel
records, as necessary.
Subsection (b) generally requires the Review Board to
direct that all records that relate, directly or indirectly, to
the loss, fate, or status of missing Armed Forces and civilian
personnel be transmitted to the Archivist and disclosed to the
public in the Collection, in the absence of clear and
convincing evidence that the record is not a missing Armed
Forces and civilian personnel record. However, if the Review
Board approves the postponement of any such records, it shall
seek to provide for the disclosure of segregable parts,
substitutes, or summaries of the missing Armed Forces and
civilian personnel record. The Review Board must also determine
in consultation with the originating body whether which of the
following alternative forms of disclosure shall be made by the
originating body: (1) any reasonably segregable particular
information in a missing Armed Forces and civilian personnel
record; (2) a substitute record for that information which is
postponed; or (3) a summary of a missing Armed Forces and
civilian personnel record.
The Review Board must send to the Archivist, the Senate
Committee on Homeland Security and Governmental Affairs, and
the House Committee on Oversight and Accountability, an
unclassified and publicly releasable report containing a
description of all postponed public disclosures, in whole or
part, of missing Armed Forces and civilian personnel records.
This report should also include recommendations on the
specified time at which, or a specified occurrence following
which, the material may be appropriately disclosed to the
public. 30 days after the Review Board decides whether the
release of a missing Armed Forces and civilian personnel record
must be publicly disclosed or postponed, the Board must notify
the head of the originating agency and make the determination
available of a publicly available website. The Review Board
must also notify the President and the specified congressional
committees of this determination. Any missing Armed Forces and
civilian personnel records discovered after the Review Board
terminates must be sent to the Archivist and the congressional
committees for review, ongoing oversight and, as warranted,
referral for possible enforcement action relating to a
violation of this subtitle and determination as to whether
declassification of the missing Armed Forces and civilian
personnel record is warranted.
Subsection (c) provides that starting 60 days after the
date on which the Review Board first approves the postponement
of disclosure of a missing Armed Forces and civilian personnel
record, the Review Board must, every 30 days thereafter,
highlight and make accessible on a publicly available website a
notice that summarizes the postponements approved by the Review
Board.
Subsection (d) requires the Review Board submit a report
annually regarding its activities to the House Committee on
Oversight and Reform; the Senate Committee on Homeland Security
and Governmental Affairs; the President; the Archivist; and the
head of any government office whose records have been subject
to Review Board activity.
Section 10. Disclosure of Other Materials and Additional Study
Subsection (a) explains that the Review Board may request
the Attorney General to petition any court of the United States
or of a foreign country to release any information relevant to
the loss, fate, or status of missing Armed Forces and civilian
personnel that is held under seal of the court. The Board may
also request that the Attorney General petition any court of
the United States to release any information relevant to loss,
fate, or status of missing Armed Forces and civilian personnel
that is held under the injunction of secrecy of a grand jury.
Subsection (b) expresses the sense of Congress that the
Attorney General should assist the Review Board to unseal any
records that the Board determines to be relevant and held under
seal by a court or under the injunction of secrecy of a grand
jury. Additionally, it expresses the sense of Congress that the
Secretary of State should work to obtain records in the custody
of the Russian Federation, the People's Republic of China, and
the Democratic People's Republic of Korea, and contact any
other foreign government that may hold information relevant to
the loss, fate, or status of missing Armed Forces and civilian
personnel, and seek disclosure of such information. Finally, it
expresses the sense of Congress that all agencies should
cooperate fully with the Review Board to seek the disclosure of
all information relevant to the loss, fate, or status of
missing Armed Forces and civilian personnel consistent with the
public interest.
Section 11. Rules of construction
Subsection (a) explains that when this Act requires
transmission of a record to the Archivist or public disclosure,
it shall take precedence over any other law (except section
6103 of the Internal Revenue Code of 1986), judicial decision
construing such law, or common law doctrine that would
otherwise prohibit such transmission or disclosure, with the
exception of deeds governing access to or transfer or release
of gifts and donations of records to the U.S. government.
Subsection (b) explains that nothing in this Act shall be
construed to eliminate or limit any right to file requests with
any executive agency or seek judicial review of the decisions
under section 552 of title 5, United States Code.
Subsection (c) explains that nothing in this Act subtitle
shall be construed to preclude judicial review under chapter 7
of title 5, United States Code, of final actions taken or
required to be taken under this Act subtitle.
Subsection (d) explains that nothing in this Act subtitle
revokes or limits the existing authority of the President, any
executive agency, the Senate, or the House of Representatives,
or any other entity of the government to publicly disclose
records in its custody, possession, or control.
Subsection (e) explains that to the extent that any
provision of this Act subtitle establishes a procedure to be
followed in the Senate or the House of Representatives, such
provision is adopted as an exercise of either chamber's
rulemaking power.
Section 12. Requests for extensions
This section permits government offices to request
extensions to comply with deadlines based off the first quorum
of the Review Board. The Review Board may grant such requests
for good cause and provide extensions as determined
appropriate.
Section 13. Termination of effect of Act
Subsection (a) makes clear that the provisions regarding
the appointment and operations of the Review Board shall
terminate when the Board terminates.
Subsection (b) provides that the remaining provisions of
this Act will continue in effect until the Archivist certifies
to the President and Congress that all missing Armed Forces and
civilian personnel records have been made available to the
public in accordance with this Act.
Section 14. Authorization of appropriations
This section authorizes to be appropriated such sums as are
necessary to carry out this Act subtitle, to remain available
until expended.
Section 15. Severability
This section provides that if any provision of this Act, or
the application thereof to any person or circumstance, is held
invalid, the remainder of this Act and the application of that
provision to other persons not similarly situated or to other
circumstances shall not be affected by the invalidation.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Changes in Existing Law Made by the Bill, as Reported
This legislation would make no change in existing law,
within the meaning of clauses (a) and (b) of subparagraph 12 of
rule XXVI of the Standing Rules of the Senate, because this
legislation would not repeal or amend any provision of current
law.
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