Congressional Record: September 4, 2002 (Senate)
Page S8155-S8180
HOMELAND SECURITY ACT OF 2002
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of H.R. 5005, which the clerk will state.
The senior assistant bill clerk read as follows:
A bill (H.R. 5005) to establish the Department of Homeland
Security, and for other purposes.
The PRESIDING OFFICER. Under the previous order, the Senator from
Connecticut is recognized to call up amendment No. 4471.
Mr. REID. Madam President, will the Senator from Connecticut yield to
let me say a word or two?
Mr. LIEBERMAN. I will.
Mr. REID. Madam President, I have been a part of some conversations.
I think the two leaders are going to have Senator Lieberman and Senator
Thompson, the managers, determine what is relevant. I don't think they
are going to do that. They will follow your lead on that.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Amendment No. 4471
Mr. LIEBERMAN. Madam President, I call up amendment No. 4471 and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The senior assistant bill clerk read as follows:
The Senator from Connecticut [Mr. Lieberman] proposes an
amendment numbered 4471.
The PRESIDING OFFICER. Madam President, I ask unanimous consent that
further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Tuesday, September 3,
2002, under "Text of Amendments.")
Mr. LIEBERMAN. Madam President, this legislation is a result of the
bipartisan work of the committee, and the occupant of the chair, the
Senator from Missouri, has been a contributing member of it. It was
endorsed by our committee on July 25 by a 12-to-5 vote. I believe very
strongly that this deserves passage by the full Senate.
The substitute I am offering was modified in two respects after the
committee held its business meetings in July. First, we added an offset
to certain direct spending in the bill related, in fact, to civil
service reform. Second, we have clarified earlier language about the
conduct of risk and threat assessment by the new Department. Both
changes were made after canvassing members of our committee and with
the approval of the majority of the committee. I will describe them in
more detail in a few moments.
This amendment, almost a year in the making, would create a focused
and accountable Department of Homeland Security to enable our domestic
defenses to rise to the unprecedented challenge of defeating terrorism
on our home soil. Our defenses are either disorganized or organized for
another day that is past.
This bill aims to reorganize our homeland defenses to meet the
unprecedented threats from terrorism that are sadly part of the 21st
century. This amendment would also create a White House office to
ensure coordination across the many offices involved in the fight
against terrorism, including intelligence, diplomatic and law
enforcement agencies, foreign policy agencies, and economic assistance
agencies that will remain outside the Department.
We recognize that the threat of terrorism on American soil will
painfully be with us for some time. Therefore, the American people
deserve and demand a Government equipped to meet and beat that threat.
This committee-endorsed bill is presented in three divisions. Division
A establishes a Department of Homeland Security, a White House office,
and a national strategy for combating terrorism. Division B
incorporates the provisions of the bipartisan Kennedy-Brownback reform
of the Immigration and Naturalization Service.
We are going to hear a lot during the debate, I am confident, about
the need for further reorganization of the constituent agencies we have
brought together in this bill. But the committee-endorsed bill actually
does undertake a massive reorganization of the one agency that just
about everyone agrees is in desperate need of reform, and that is the
INS. Division C incorporates consensus civil service reforms,
themselves the product of intensive collaboration and discussion over a
period of time--months and perhaps years--that were added as an
amendment by the bipartisan team of Senators Voinovich and Akaka.
I expect we will hear people saying that our legislation hasn't given
the President all the management flexibility he has asked for. Of
course, that is literally true because we believe the administration's
request simply went too far, usurping not only the fundamental
responsibility of Congress to adopt civil service laws, but to
undermine important protections that guard the workplace and Federal
workers against favoritism and also that create some limits on the
executive, some sense of accountability that is placed on those who
have sway over those who have chosen to serve the public as Federal
employees.
I urge my fellow Senators on both sides of the aisle to look
carefully at the reforms we have incorporated and the new flexibilities
that we do provide, which are sensible and significant indeed and, I
believe, if passed, would give the Secretary of Homeland Security more
management flexibility than any Secretary operating under current law
has ever had.
I know this promises to be a controversial discussion, a serious
discussion, and sometimes a passionate discussion. I look forward to
airing our differences, resolving them, and getting a good bill to
conference and then to the President's desk, certainly by the end of
this session.
We in the Congress have accomplished great and seemingly daunting
tasks in the past; but, honestly, I can think of few in my time in the
Senate, which is now 14 years, that have been more critical to our
common future and cry out to us to work across party lines, to raise
America's guard against the savage, inhumane, cunning threat
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of international terrorism. In fact, that is what happened on our
committee.
The legislation I offer today was, as I have said, endorsed in July.
It was endorsed in a bipartisan vote of the Governmental Affairs
Committee. That marked the end of one of many stages in the bill's
development in our committee. All told, we have been at this for almost
a year now--more than 11 months. We have worked with colleagues on both
sides of the aisle. We have worked with experts in the field in various
aspects of counterterrorism and homeland security. We have worked very
closely since June 6--when President Bush endorsed the idea of a
Department of Homeland Security--with the President and his staff at
the White House.
We gleaned insight and learned a lot from 18 hearings of the
Governmental Affairs Committee that were held after September 11 on
this subject and dozens of hearings held by other committees of the
Congress.
I must say that I am proud for our committee of the product of these
labors. This legislation puts forth a creative, constructive, and
comprehensive solution to the core homeland security challenges we now
face.
Our legislation differs in some respects, including some important
ones from the House-passed bill and also from the President's proposal.
We are going to hear people dwell on those differences for much of the
debate. That is understandable. In some ways, it would be surprising if
legislation as significant and this large were passed without dissent.
In some ways, it would be not only surprising but unhealthy. The spirit
of debate and controversy is here, and I hope out of it we will emerge
with a very strong bill. In the case of each significant difference, I
believe in the path we have taken, and I look forward to explaining
why.
Let me say again we cannot allow the differences to overshadow the
vast common ground on which we stand. Mahatma Gandhi said: "Honest
disagreement is often a good sign of progress." He had a point. With a
bill this big, as I said, I would be uneasy if the Senate began the
process in total unison.
Let's realize the underlying reality and not lose sight of it. Just
about everyone in this Chamber, on both sides of the aisle, understands
the urgent necessity of reordering and reorganizing our capabilities to
detect danger, protect Americans from attack, and respond in the event
of an incident. That consensus should guide us and should ultimately
dominate here. In fact, it is hard to find a Member of the Senate or
the other body who will say they are against the creation of a
Department of Homeland Security. People have different ideas about how
one or another piece of it might look, but there is no one I have heard
who is really against the creation of this Department.
In the end, that is because I think people understand that the
current state of disorganization in the Federal Government's apparatus
for responding to homeland security threats is dangerous. The
consensus, therefore, for responding to that disorganization is by
organizing the Federal Government better to meet those threats, to
protect our people, to protect our infrastructure, to see the threats
before they emerge through good intelligence and law enforcement, to
invest in science and technology, to make protection of the American
people at home easier and more effective. In the end, I am confident
that we will pass a bill creating a Department of Homeland Security,
and the sooner the better.
The American people understand why the creation of a strong
accountable Homeland Security Department is the best way forward. They
know that the formation of such a Department will not of itself win our
war against terrorism. Obviously, we need to continue to encourage and
support our military that is on the front lines of offense against the
al-Qaida forces that struck us on September 11 and clearly remain out
there in the shadows scheming, arming, readying themselves to strike us
again.
The disadvantage we now have in defending ourselves because of our
disorganization can no longer be afforded. Today, as former Assistant
Secretary of Defense Ashton Carter told our committee on June 26:
"Homeland security remains institutionally homeless."
It is well stated, "Homeland security remains institutionally
homeless." Everyone is in charge, therefore, no one is in charge. Our
legislation would give this vital mission a home under a single roof
and a firm foundation with someone, the Secretary, clearly in charge
with the responsible authority and accountability and hopefully the
resources to get results.
For the first time, we would require in statute close and ongoing
White House coordination of the many other pieces of the fight against
this 21st century threat--terrorism--and those pieces could not be
included in the Homeland Security Department. They include defense,
diplomacy, finance, law enforcement, and others.
For the first time, we, through this legislation, would require a
comprehensive assessment of threats and vulnerability so that we
understand the worst threats and the best ways to respond. We need a
blueprint today. We do not have it. For the first time, we would create
a new intelligence division focused on the threats to our homeland,
equipped to truly connect the intelligence and law enforcement dots
from Federal, State, and local agencies, from human and signal
intelligence, from closed and open sources, from law enforcement and
foreign sources, including particularly the Counterterrorism Center at
the CIA.
These dots were not connected before September 11. We lived to
experience the disastrous consequences of that failure.
For the first time, we would bolster emergency preparedness and
response efforts to ensure that all layers and levels of Government are
working together to anticipate and prepare for the worst. Today,
coordination is the exception, not the rule, and that is no longer
acceptable.
For the first time, we would build strong bonds between Federal,
State, and local governments to target terrorism. State and local
officials are clearly on the front lines as first responders and, as I
like to say, first preventers in the fight against terrorism.
Today, local communities are already expending funds to better
protect their people and their assets post-September 11. They are
waiting for help. They need better training, new tools, and a
coordinated prevention and protection strategy. That absence of
coordination and failure of adequate support for State and local first
responders and first preventers is no longer justifiable.
For the first time, we would bring key border and national entry
agencies together to ensure that dangerous people and goods and
containers are kept out of our country without restricting the flow of
legal immigration and commerce that nourishes the Nation.
Today, threats to America may be slipping through the cracks because
of our disorganization, and that is indefensible. For the first time,
we would promote dramatic new research and technology development
opportunities in homeland defense. This war has no traditional
battlefield, as I have said. One of the nontraditional battlefields
where we must emerge is the laboratory with science and technology.
This bill would leverage Government and academic research capabilities
and focus private sector innovation on the challenge. Today these
efforts are blurred and dispersed, and that is unwise.
For the first time under this proposal, we would facilitate close and
comprehensive coordination between the public and private sectors to
protect critical infrastructure. Fully 85 percent of our critical
infrastructure is owned and operated by the private sector, but our
Government is not now working systematically with those companies to
identify and close vulnerabilities in, for example, communications
networks, electric grids or food distribution systems. That is
unbearable.
Finally, our legislation would adopt consensus civil service reforms
to give Government new tools to manage it. These bipartisan reforms,
introduced by Senators Voinovich and Akaka, would provide significant
new management flexibility in hiring employees and shaping the
workforce, while assuring that the basic public accountability of the
civil service system is not summarily dissolved.
Under our bill, new flexibilities will increase accountability,
strengthen the chain of command, and give the Secretary and agencies
throughout our
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Government the ability to put the right people in the right place at
the right time to defend the security of the American people.
As the writer H.G. Wells once said, "Adapt or perish--now as ever--
is nature's inexorable imperative."
That is our choice today. Adapt and get stronger, or grow weaker;
adapt, or give the American people reason to live in fear; adapt, or
live at the mercy of our cruel and cunning terrorist enemies rather
than being in control of our own destiny, as a great people should be.
So that we have an understanding of why this legislation takes the
form it does, let me tell you briefly how it has evolved. It has been a
very careful and collaborative process, nearly a year in the making.
Last October, Senator Specter and I introduced legislation to create a
Department of Homeland Security. That was S. 1534. That legislation
drew heavily on the recommendation of the Hart-Rudman Commission on
National Security in the 21st Century, which was chartered by the
Secretary of Defense and supported by both the President and Congress,
with the mission of providing the most comprehensive Government-
sponsored review of our national security in more than 50 years.
The Commission released three reports in 1999, 2000, 2001,
respectively. Its third report, phase 3, entitled "Roadmap for
National Security: Imperative for Change," warned that we would soon
face asymmetrical and terrorist threats and would need a focused
Cabinet-level homeland security agency with adequate budget authority
and direct accountability to the President to detect and counter those
threats.
The Commission's conclusion, headed by our former colleagues Gary
Hart and Warren Rudman, was issued on January 31, 2001, more than a
half year before the day of darkness, September 11, 2001. Their
conclusion included this statement: "The United States is today very
poorly organized to design and implement any comprehensive strategy to
protect the homeland."
Senators Hart and Rudman, and the other distinguished members of the
Commission, made their case effectively and, I might say, eloquently.
But the attacks of September 11 tragically drove the message home as no
words could or, unfortunately, did. We were suddenly and clearly aware
that we were more susceptible than we ever expected to the brutality of
terrorism directed against innocent Americans for one reason only:
Because they were Americans.
No matter their origin, in terms of ethnicity, religion, race,
gender, age, place in life, new American or born American, but just
because they were Americans in America, they were targets. We realized
we were susceptible to that kind of violent extremism and we did not
have the organizational capabilities to leverage our strengths and
protect ourselves to the best of our ability.
So the bill I was privileged to introduce with my colleague from
Pennsylvania, Senator Arlen Specter, making it obviously bipartisan,
last October, hewed closely to the model proposed by the Hart-Rudman
Commission and also drew on recommendations made by the Gilmore
Commission and others. We called for a new Department made up of the
Coast Guard, Customs, Border Patrol, and FEMA, as well as some smaller
offices on critical infrastructure protection and emergency
preparedness.
The compelling need for such a Department was reinforced in those 18
hearings before the Governmental Affairs Committee during which 85
different witnesses testified on various aspects of homeland security.
We learned a great deal also from dozens of other hearings by other
committees on both sides of the Hill. So for those who may worry or
suggest that we are moving more rapidly than we should, this is the
record: Painstaking, deliberative, extensive consultation,
investigation, education by experts, and an openness to ideas wherever
they came from because of the critical necessity to do something to
protect our security.
As chairman of the committee, I have been guided by a maxim that was
used about foreign and defense policy, which is that partisanship stops
at our Nation's coasts. In the same way, since this new enemy, the
terrorists, has brought warfare within the United States of America, I
say when we are discussing matters of homeland security, partisanship
also must stop. That is the spirit in which our committee has gone
forward.
We discovered, whether the subject was anthrax in the mail or port
security or critical infrastructure protection, that the Federal
Government is now lacking an approach to our problems that is either
strong enough or coordinated enough to meet what we now know, post-
September 11, is the reality of the challenge to us. In other words, we
are dividing our strengths at a time when we should be multiplying
them.
Again and again, the same message emerged from the witnesses who came
before us, in big bold letters one might say: We still are not
adequately prepared for terrorism at home, and a strong Cabinet-level
Department, encompassing the key programs related to homeland security,
is the necessary first step to addressing those deficiencies and
closing those vulnerabilities.
The need for such a Department was further underscored by our
experience with the Office of Homeland Security that was established
last October by Executive Order of the President. The President
appointed Gov. Tom Ridge to fill that position. Governor Ridge is an
able, hard-working public servant. He has had the President's
confidence and his ear from the very start. But we saw then, and the
President would later acknowledge, that the office simply lacked the
budgetary and organizational authority to reshape the Federal
bureaucracy to define priorities and to get results. Only a Cabinet-
level Secretary in charge of the Cabinet-level Department could
accomplish that task.
In the debate that has already begun and clearly will go on in
consideration of this bill, the President and the administration and
their allies in this Chamber are saying we have not given the Executive
enough management flexibility. The fact is that flexibility must come
with power. It was our bill almost a year ago, in contrast to the
President's position, that wanted to give the Executive the authority
to be able to carry out the necessary changes in the Federal
bureaucracy.
So to portray somehow that this bill is protective of the Federal
bureaucracy is not right. In fact, the President's original position
that this task could be carried out by an Office of Homeland Security
did not give that office the power. It had no management flexibility
because the constituent agencies exercised the authority they had under
law which was superior to the director of the office. Therefore, in
that sense, as well as all the specific senses in which we give
management flexibility to the Executive, we are proposing a Department
with a strong Secretary. That is the way to get the job done: blend the
employees together, encourage them to work together, and set standards
for them achieving homeland security. That can only be done by a strong
Secretary.
At the same time, however, it became apparent that no single
Department could address all of the Federal programs or coordinate all
the programs of all the Federal agencies engaged in homeland security
or in the war on terrorism. Therefore, last May, Senator Specter and I
combined our proposal with legislation introduced by our colleague from
Florida, Senator Bob Graham, chairman of the Intelligence Committee,
calling for the creation of a National Office for Combating Terrorism
within the White House to coordinate Federal antiterrorism efforts
government-wide.
In contrast to the position created for Governor Ridge by Executive
Order, this office would be a Senate confirmed-position, with full
accountability and authority as well as statutory power to review
Federal budgets related to terrorism.
The combined legislation that we have before the Senate in the form
of this substitute amendment which I have introduced this afternoon,
resulted from, as I said, Senator Specter and I joining with Senator
Graham. Obviously, there is more added by the committee. That
legislation originally was introduced on May 2, and considered by the
Senate Governmental Affairs Committee on May 22 of this year, and
reported out on a 9-to-7 vote--a vote exactly split along party lines.
On June 6, we got a surprise, a welcome surprise. We gained another
supporter, a most important supporter. That was, of course, President
George
[[Page S8158]]
Bush. This, I believe, was a recognition by the President--he said so
in his own words--that the Office of Homeland Security, as it was
created by Executive Order, was just too weak to get the job done. That
is what we had been arguing for months. That announcement was followed
by a legislative proposal from the administration. We were pleased to
see the administration's bill encompass almost all the S. 2452
provisions regarding a Department of Homeland Security.
It went further, however, and also proposed that additional programs
and agencies be transferred to the new Department--and there were some
good ideas there--to ensure the new administration proposals were
properly considered and necessary adjustments made to our legislation.
As chairman of the Governmental Affairs Committee, I held four
additional hearings on aspects of the President's proposal.
Incorporating the insight from those hearings, as well as input from
extensive discussion with colleagues, including committee chairmen and
ranking members, we prepared an expanded version of S. 2452. The
expanded version went a considerable way toward incorporating the
proposals the President and the administration made that had not been
made part of our original bill. It was further amended during two very
thoughtful, constructive days of committee deliberation and was
ultimately endorsed by our Senate Governmental Affairs Committee by a
bipartisan vote of 12 to 5. That is what I offered as a substitute
amendment to H.R. 5005. The amendment I now offer is the product of
this lengthy and healthy process of consultation and deliberation. I
thank my colleagues in the Senate for indulging me in this brief
history expedition, and I want to say why I take the time to discuss
the time it took; and that is to demonstrate that we have gone a great
distance to hone this bill, to be open to input from anyone, to reach
consensus, to modify, and amplify different sections.
The Department we have designed would for the first time combine,
under a single chain of command and under the leadership of a single
Secretary who is accountable to the President and the people, dozens of
agencies and offices responsible for homeland security.
The Department's overarching mission, as stated in Section 101 of
this amendment, is twofold: To promote homeland security, particularly
with regard to terrorism; and to carry out the other functions and
promote the other missions of entities transferred to the Department as
provided by law. That is a very important statement.
As much attention as the first part of the mission, homeland
security, will get in this debate, the second half cannot be forgotten
because even though this Department's very reason for being created is
to intelligently organize our Government's homeland security efforts,
many of its constituent agencies perform vital, non-homeland security
duties, as well. They cannot and will not stop doing that work.
Our bill, in clear and unequivocal language, requires the Department
to uphold these other missions and functions.
The extent to which the constituent agencies and programs that are
brought into this Department can both protect homeland security and
continue to carry out the other responsibilities will depend on the
extent to which we in Congress, through the appropriations process, are
prepared to support this new Department.
The Secretary will be responsible for running the Department and for
developing policies and plans for the promotion of homeland security.
The legislation also charges the Secretary with including State and
local governments, tribes, and other entities who, again, are first
responders and first preventers of the fight against terrorism in every
State and city and county and town in our country. The Secretary must
consult them, with the Secretary of Defense and also State officers,
regarding possible integration of the U.S. military, including the
National Guard, into all aspects of the homeland security strategy and
its implementation. The Guard is a mighty force, with an historic
mission which was originally, of course, to protect homeland security.
It has tremendous potential in this new 21st century, in responding to
this 21st century threat to our security without making it by any
stretch, kind of a Federal constabulary. But the Guard has
extraordinary skill and equipment sophistication and can play a very
constructive role here.
We also have charged the Secretary with the responsibility of
developing a comprehensive information technology blueprint for the
Department. The Senator from Illinois, Mr. Durbin, talked quite
eloquently and effectively about one aspect of that yesterday. In
addition, the Secretary is responsible for administering the homeland
security advisory system, and for annually reviewing and updating the
Federal Response Plan for homeland security and emergency preparedness.
This is a big job. The size should make it clear how much we need the
new Department. No one in Government is performing these duties
adequately today. If they are doing the duties, they are not doing them
systematically, certainly not synergistically. There are a lot of gears
turning. Some are touching each other, some are not. Some are spinning
in isolation. We want the gears to turn together, generating torque,
producing energy, and getting results. That means more security for the
American people at home.
No one can claim that the creation of a new Department is a guarantee
or panacea for all our problems. I agree with Charles Boyd,
distinguished American, great public servant and Executive Director of
the Hart-Rudman Commission:
"There is no perfect organizational design, no flawless managerial
mix. The reason is that organizations are made up of people, and people
invariably devise informal means of dealing with one another in accord
with the accidents of personality and temperament." Even excellent
organizational structure cannot make impetuous or mistaken leaders
patient or wise, but poor organizational design can make good leaders
less effective.
That, in one sense, is what this is all about. Poor organizational
design makes good leaders less effective with unnecessary gaps,
overlaps, and bureaucratic barriers--by spreading authority and
resources too thin, by diminishing accountability, by tolerating
overlap and inefficiency--while good organizational design will empower
good leaders, hold people accountable, and enable their talent and hard
work to make a difference.
In other words, 10 gallons of gas poured into a well-designed,
efficient engine can get you long distances at high speeds, but 10
gallons poured into an old, less efficient engine won't get you very
far in a very efficient way.
That leads me to a second caution about the legislation, which is the
blueprint that we need to build a Homeland Security Department that
America needs. In a number of areas likely to be the most
controversial, I strongly believe we have chosen the right path. But it
would be arrogant of me or anyone to suggest that this legislation is
perfect. It is not. That is why we have specifically built into it room
for adjustment and refinement as the administration actually begins
moving the pieces together. And we have given them a year from the
effective date to, in fact, do that.
We require the administration to report back to Congress 6 months
after the effective date or earlier during the reorganization process,
and every 6 months thereafter, and require recommendations for changes
to law at these junctures and throughout the process.
So even the passage of this bill will be not the end of the process,
but its start; as Churchill once said in a very different context,
"not the beginning of the end, but the end of the beginning."
But the fact that we cannot guarantee perfection is no argument
against this legislation. Obviously, even our country's Constitution,
which Senator Byrd and Senator Thompson and others quite eloquently and
correctly honored and celebrated in yesterday's debate, the very
foundation of our democracy, a democracy created with as much foresight
and wisdom as any other in the history of government, was not perfect.
It has been amended 27 times. At the time, the Founders understood it
had to be built to change over time. Indeed, during the ratification
debate, Alexander Hamilton urged those who criticized the
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Constitution not to fail to approve it in what he called "the
chimerical pursuit of a perfect plan." In a more homely translation
that we constantly--at least regularly--use here: Don't let the perfect
be the enemy of the good.
Similarly, we must not fail to create this Department in pursuit of a
perfect Department. History has dropped at our feet an urgent and
necessary challenge, to reshape our Government, to protect the lives
and affirm the values of our people, for surely our terrorist enemies
are as intent on striking and destroying our humanistic, tolerant,
inclusive, free values as they are of destroying our people. We can
either meet the moment by staying focused on that goal or we can let it
pass by bickering over petty and sometimes partisan or ideological
particulars.
Let the debate go forward, but let us, as we go forward in debating
and amending this substitute amendment that I have laid down, remember
the urgent challenge the terrorists have given us and the broad ground
we all seem to occupy about most of how we should respond to that
challenge, by creating this Department.
Let's have some debates and disagreements. But when it is all over,
let's remember, not only in this bill but more generally in our values,
there is so much more that unites us, and that ultimately is our
greatest strength against our enemies, past, present, and future. We
must be certain to preserve that when this debate is done and a new
Department of Homeland Security is created.
Mr. President, I ask unanimous consent to have printed in the Record
an addendum statement, a section-by-section analysis, and a letter
dated August 28, 2002.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mr. President, I want to share with the Senate my views on
the meaning and intent of the provisions we added to this
legislation since the Governmental Affairs Committee first
considered the bill in May and filed the accompanying report
to S. 2452. This legislation has been almost a year in the
making, and reflects the thoughtful contributions of an array
of distinguished legislators and policy experts.
Last October, I introduced legislation with Senator Specter
to create a Department of Homeland Security (S. 1534). That
legislation drew heavily on the recommendations of the United
States Commission on National Security/21st Century, also
known as the Hart-Rudman Commission. It called for a new
department made up of the Coast Guard, Customs, Border
Patrol, and FEMA, as well as some smaller offices that
specialize in critical infrastructure protection and
emergency preparedness. The compelling need for such a
department was quickly underscored in a series of hearings
before the Governmental Affairs Committee examining aspects
of homeland security. Whether the subject was anthrax in the
mail, port security, or critical infrastructure protection,
the Federal government generally did not have a strong,
coordinated approach to address the range of threats. A
strong, Cabinet-level department encompassing key programs
related to homeland security would be a vital first step to
addressing this deficiency. At the same time, however, it
became apparent that no single department could address all
of the Federal programs engaged in the war on terrorism.
Therefore, I combined forces with Sen. Graham, who had
proposed legislation to create a White House terrorism office
to coordinate federal efforts to combat terrorism government-
wide. In contrast to the position created by executive order
for Gov. Ridge, this office would be a Senate-confirmed
position with full accountability and authority, as well as
statutory power to review federal budgets relating to
terrorism. The combined legislation, the "National Homeland
Security and Combating Terrorism Act of 2002," was
introduced on May 2, 2002. It was considered by the
Governmental Affairs Committee on May 22, 2002 and reported
out on a 7-3 vote. A full account of the background and
history of that legislation is included in its accompanying
report, No. 107-175.
Before the full Senate had a chance to consider that bill,
however, the President announced his support for a Department
of Homeland Security. That announcement was followed, on June
18, with a legislative proposal from the administration. The
administration's bill encompassed almost all of S. 2452's
organizational elements regarding a Department of Homeland
Security. It went further, however, and proposed that
additional programs and agencies be transferred to the new
department. To ensure that these new administration proposals
were properly considered, the Governmental Affairs Committee
held four additional hearings. Then, working with other
committee chairmen and ranking members, I prepared an
amendment to S. 2452 that was considered at a July 24-25
business meeting of the Governmental Affairs Committee. That
expanded version of S. 2452 went a considerable way to
incorporate Administration proposals that had not been part
of the original bill. It was further amended during two days
of Committee deliberation, and ultimately endorsed by a
bipartisan Committee vote of 12 to 5.
What follows is a description of some of the key changes to
the legislation since the May 22, 2002 markup of S. 2452. It
should be considered in concert with Report 107-175, which
describes the core of the legislation--most of which is
unchanged. A complete section-by-section analysis is also
included.
As reported out of the Governmental Affairs Committee (GAC)
on May 22nd, S. 2452 created a Department of Homeland
Security with three directorates: Border and Transportation
Protection, Critical Infrastructure Protection, and Emergency
Preparedness and Response. The GAC-endorsed legislation now
includes additional programs and agencies that will be
organized into six directorates: the original three, plus
directorates for Intelligence, Immigration and Science and
Technology, an expanded version of a Science and Technology
Office in the original bill. The key changes are summarized
below:
The GAC-endorsed legislation adds the Transportation
Security Administration (TSA) to the agencies incorporated
into the Directorate for Border and Transportation
Protection. TSA was created through the Aviation and
Transportation Security Act, Pub. L. 107-71, which was signed
into law on November 19, 2001. The agency's mission is to
protect the country's transportation systems, including rail,
highways, and maritime, although currently its main focus is
to improve aviation safety. TSA's responsibilities include
meeting a series of deadlines to upgrade aviation security,
including the hiring of more than 30,000 airport security
personnel, deploying explosive detection systems and other
security equipment, facilitating airport passenger and
baggage inspection, and implementing other measures to
heighten the safety of air travel.
The inclusion of TSA in the Department will permit better
coordination of transportation security operations with other
agencies that are responsible for security at the borders.
These agencies, which include the Customs Service, Coast
Guard, Border Patrol, INS, and border inspection agents from
the Animal Plant and Health Inspection Service, are
responsible for conducting inspections of travelers and goods
entering the United States and for securing the international
boundaries the United States shares with Mexico and Canada.
TSA's mission to secure our transportation infrastructure is
closely tied to maintaining the security of the ports of
entry where these border agencies are stationed. For example,
cargo containers that pass through our ports are conveyed to
other parts of the country through our transportation system,
either on rail or the highways, and could cause significant
harm and disruption to our transportation infrastructure if
they contained explosives or were used in a terrorist attack.
It is essential for these agencies to coordinate their
efforts so that security measures are linked and more
seamlessly implemented. This process will be easier with TSA
and the key border agencies in the same chain of command.
Our transportation system must also be able to move people
and goods quickly and efficiently from the borders throughout
the country. To ensure the security of this system, TSA needs
access to key information regarding vulnerabilities and
threats. The Department's Directorate of Intelligence, which
I will describe shortly, will have the intelligence
architecture to help provide this critical information to TSA
and other agencies within the Department. By being closely
tied to that intelligence directorate, and to the other
border agencies in the Department that will be collecting
vital information, TSA will be in a better position to
prevent future attacks using the transportation system.
Finally, as a new agency TSA may be able to take advantage
of some economies of scale offered by the new Department.
Specifically, it may not need to create certain
capabilities--administrative or otherwise--that will already
exist in other components of the Department.
In S. 2452, the Customs Service was transferred intact to
the Department. This remains the case in the GAC-endorsed
legislation, which also provides that Customs will be
preserved as a distinct entity.
At the request of the Senate Finance Committee Chairman and
Ranking Member, the legislation incorporates an amendment,
adopted by the Committee and agreed to by both the White
House and the Finance Committee Chairman and Ranking Member,
which will preserve the ability of the Treasury Secretary--
with the concurrence of the Secretary--to issue regulations
on customs revenue functions that involve economic judgments
within the expertise of the Treasury Department, and which
can have a major impact on our economy and relationships with
foreign countries. These customs revenue functions include:
assessing, collecting, and refunding duties, taxes, and fees
on imported goods; administering import quotas and labeling
requirements; collecting import data needed to compile
international trade statistics; and administering reciprocal
trade agreements and trade preference legislation. The
Customs Service, reporting to the Secretary, is responsible
for administering and enforcing these laws, and indeed
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for all the Custom Service's traditional border and revenue
operations; the Commissioner of Customs is also authorized to
develop and support the issuance of regulations by the
Treasury Secretary regarding customs revenue functions. After
further review, Congress may consider legislation to
determine the appropriate allocation of these regulatory
authorities between the Secretary of Homeland Security and
the Treasury Secretary.
The legislation transfers the Federal Law Enforcement
Training Center (FLETC) from the Department of the Treasury
to the Directorate for Border and Transportation Protection.
FLETC provides basic and advanced agency-specific training
for law enforcement officers and analysts at over 70 Federal
agencies. This training allows for greater standardization of
law enforcement training that is also more cost-effective and
is taught by professional instructors using modern
facilities. Many of its key customer agencies are being
transferred to the new Department, including the Secret
Service, INS, Border Patrol, Customs Service, Coast Guard,
and Federal Protective Service. Given these relationships,
the Department will benefit from the inclusion of FLETC.
FLETC also provides training to State and local entities
and to foreign law enforcement personnel, programs generally
not otherwise available to these agencies. The programs also
enhance networking and cooperation throughout the law
enforcement community, domestically as well as world-wide.
Therefore, these programs will support and complement the
Department's efforts to work more closely with State and
local agencies as well as foreign governments to detect and
prevent acts of terrorism.
The legislation transfers the Coast Guard to the new
Department, and specifies that it be maintained as a distinct
entity. At the July 24-25 business meeting, the Committee
adopted language intended to maintain the structural and
operational integrity of the Coast Guard and the authority of
the Commandant, ensure continuation of the non-homeland
security missions of the Coast Guard and the Service's
capabilities to carry out these missions as it is transferred
to the new Department, and ensure that the Commandant reports
to the Secretary.
The language, offered as an amendment by Senators Stevens
and Collins, states that the Secretary may not make any
significant change to any of the non-homeland security
missions and capabilities of the Coast Guard without the
prior approval of the Congress in a subsequent statute. The
President may waive this restriction for no more than 90 days
upon his declaration and certification to the Congress that a
clear, compelling, and immediate state of national emergency
exists that justifies such a waiver.
The language further directs that the Coast Guard's
organizational structure, units, personnel, and non-homeland
security missions shall be maintained intact and without
reduction after the transfer unless Congress specifies
otherwise in subsequent Acts. The language also states that
Coast Guard personnel, ships, aircraft, helicopters, and
vehicles may not be transferred to the operational control
of, or diverted to the principal and continuing use of,
any other organization, unit, or entity of the Department.
Upon the transfer of the Coast Guard to the Department, the
Commandant shall report directly to the Secretary and not
through any other official of the Department.
The Inspector General of the Department shall annually
assess the Coast Guard's performance of all its missions with
a particular emphasis on examining the non-homeland security
missions.
None of the conditions in the approved language shall apply
when the Coast Guard operates as a service in the Navy under
section 3 of title 14, United States Code.
The legislation creates a separate directorate for
intelligence (DI) to serve as a national level focal point
for information available to the government relating to the
plans, intentions, and capabilities of terrorists and
terrorist organizations. To emphasize its importance to all
aspects of Homeland Security, the DI is an independent
directorate within the Department, and is headed by an Under
Secretary who reports to the Secretary.
This directorate is a new addition to the legislation since
the May 22 markup. It stems from the Administration's
proposal to create an intelligence analysis unit within the
Department. However, the President's concept has been altered
and strengthened in response to testimony before the
Committee and input from key senators. Specifically, this
proposal reflects important input from Senators Levin and
Akaka, both in negotiations and amendments offered at the
business meeting. In addition, Intelligence Chairman Senator
Graham, Intelligence Vice Chairman Senator Shelby, former
Intelligence Chairman Senator Specter and Senator Durbin
contributed key ideas.
As an independent directorate--without the operational
responsibilities of other directorates--the DI will focus on
providing intelligence analysis to all of the other
directorates in the Department, to State and local
government, and to law enforcement, for the purpose of
preventing terrorist attacks, enhancing border security,
protecting critical infrastructure, enhancing emergency
preparedness and response, and better informing our research
and development activities.
It is important to note that the new Department, through
its component organizations, will be one of the largest
generators in the government of information relevant to
terrorism. The data it obtains about persons and goods
entering the country must be better organized and coordinated
with threat data from other agencies if the new Department is
going to be able to do its job. The DI, therefore, will be
responsible for receiving and analyzing law enforcement
information from agencies of the United States government,
State and local government agencies (including law
enforcement agencies), and the private sector, and fusing
such information and analysis with analytical products,
assessments, and warnings concerning foreign intelligence
from the CIA's Counterterrorist Center in order to detect and
identify threats of terrorism and other threats to homeland
security. The Counterterrorist Center shall have primary
responsibility for the analysis of foreign intelligence
relating to international terrorism. However, the DI may also
conduct its own supplemental analysis of foreign intelligence
relating to threats of terrorism against the United States
and other threats to homeland security.
The DI's mission is critical to all the Department's
activities, as well as to the homeland security mission of
the intelligence community, law enforcement community, and
State and local governments. For this reason, unless the
President directs otherwise, the Secretary is provided with
broad, routine access to reports, assessments, analytical
information, and other information--including unevaluated
intelligence--from the intelligence community and other
United States government agencies. The Secretary will also
receive information from State and local government agencies,
and the private sector. As the President may further provide,
the Secretary is also authorized to request additional
information--either information that an agency already has in
its possession, or new information that could require further
investigation. The Secretary will work with the Director of
Central Intelligence and the Attorney General to ensure that
all material received by the Department is protected against
unauthorized disclosure and that sources and methods are
protected.
The provision also reflects an amendment by Senator Akaka
that makes the Department a full participant in the process,
managed by the Director of Central Intelligence, whereby the
intelligence community establishes overall requirements and
priorities for the collection of national intelligence.
Similarly, the Akaka amendment also makes the Directorate
responsible for consulting with the Attorney General and
other officials to establish overall collection priorities
and strategies for information, including law enforcement
information, relating to domestic threats.
The intelligence proposal reflected in the GAC-endorsed
legislation was developed after examining the
Administration's proposal and hearing from expert witnesses
on the critical need for a national level focal point for the
analysis of all information available to the United States to
combat terrorism. On June 26 and 27, the Committee held
hearings on how to shape the intelligence functions of the
proposed Department--to determine how, in light of the
failure of our government to bring all of the information
available to various agencies together prior to September 11
the government should receive information from the field,
both foreign and domestic, and convert it, through analysis,
into actionable information that better protects our
security.
The Committee heard testimony from former directors of the
Defense Intelligence Agency and National Security Agency,
from FBI Director Mueller and Director of Central
Intelligence Tenet, and from William Webster--who headed both
the FBI and CIA. It also heard from the Chairman and Vice-
Chairman of the Intelligence Committee, Senators Bob Graham
and Richard Shelby, whose investigation into the failures of
September 11 is expected to yield recommendations for broader
reforms that address long-standing and systemic problems
within the intelligence community.
Senator Graham's written testimony stated that the
Intelligence Committee's hearings thus far have uncovered
several factors that contributed to the failures of September
11--one of which is "the absence of a single set of eyes to
analyze all the bits and pieces of relevant intelligence
information, including open source material." Senator
Shelby's written testimony stated that "most Americans would
probably be surprised to know that even nine months after the
terrorist attacks, there is today no federal official, not a
single one, to whom the President can turn to ask the simple
question, what do we know about current terrorist threats
against our homeland? No one person or entity has meaningful
access to all such information the government possesses. No
one really knows what we know, and no one is even in a
position to go to find out." General Patrick Hughes, former
director of the Defense Intelligence Agency, echoed these
points. His testimony stated that, "in our intelligence
community, we currently have an inadequate capability to
process, analyze, prepare in contextual and technical forms
that make sense and deliver cogent intelligence to users
as soon as possible so that the time dependent operational
demands for intelligence are met."
The Administration's approach falls short of what we need.
A key concern is the mission and position of the intelligence
unit
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within the new Department. By making intelligence its own
directorate, our legislation recognizes that the work it does
will be instrumental to every other directorate in the
organization and to state and local authorities--not just to
federal infrastructure protection efforts. The
Administration's proposal imbeds the intelligence division
within a directorate responsible for critical infrastructure
protection. The Administration's proposal is to create an
"information analysis and critical infrastructure protection
division"--whose most important role, as CIA Director Tenet
testified before the Committee on June 27, would be "to
translate assessments about evolving terrorist targeting
strategies, training, and doctrine overseas into a system of
protection for the infrastructure of the United States." But
that is not enough. Intelligence will be crucial not only to
infrastructure protection, but to everything this Department
will do. It is not hard to imagine many threats to American
lives that do not involve infrastructure at all: a plot to
detonate a bomb in a shopping mall, for instance, or to
unleash a biological agent on a city from above.
To be most effective, the entity responsible for producing
all-sources intelligence analysis should not be charged with
implementing operational responsibilities. The danger in the
Administration's approach is that the intelligence analysis
function will be consumed by the operational needs of
critical infrastructure protection, and not focus enough on
other aspects of the homeland security fight.
There is also a practical reason why these two functions
should be under different Under Secretaries. Both are very
complex functions that have never before been performed in
our government. These are very demanding jobs and the GAC
endorsed amendment places them under different Under
Secretaries so that, like border and transportation security,
science and technology, immigration, and emergency
preparedness and response, they will receive the focused
leadership and attention necessary to succeed. Just
protecting our cyber assets--which is only one aspect of
critical infrastructure--is a daunting challenge that grows
more each year.
The Under Secretary for Intelligence, who will have to
establish and operate a robust Directorate of Intelligence to
systematically analyze the threats to our country will be
fully consumed with that function. The Under Secretary for
Critical Infrastructure Protection, whose role will be to map
the threat information to the vulnerabilities in our critical
infrastructure, and work closely with other agencies, and the
private sector to ensure adequate protective measures are put
in place, will also have a huge challenge. However, by making
the same official responsible for establishing a robust
intelligence division and protecting critical infrastructure,
the Administration's proposal underestimates the challenges
that we face in both areas.
Secondly, the President's proposal does not allow the DI
sufficient, routine access to information produced by other
parts of the Intelligence Community and other agencies. The
GAC-endorsed legislation provides the Secretary with broad,
routine access to reports, assessments, analytical
information, and other information--including unevaluated
intelligence--relating to the capabilities, intentions, and
activities of terrorists and terrorist organizations, unless
otherwise directed by the President. "Unevaluated
intelligence" refers to the substance of intelligence
reports, absent any information about sources and methods. We
use this term based on the recommendation of the Chairman of
the Senate Intelligence Committee--precisely to make it clear
that information about sources and methods, which is
generally included in "raw intelligence", will be
protected. In contrast, the Administration's proposal would
curtail the Secretary's access to unanalyzed information. The
Secretary would have routine access to reports, assessments,
and analytical information. But, except for information
concerning vulnerabilities to critical infrastructure, the
Secretary would receive access to unanalyzed information only
as the President may further provide.
At the Committee's hearing on June 27, Senator Shelby, the
Vice Chairman of the Intelligence Committee, objected to the
limitations on information access in the President's
proposal. He stated that "unlike information relating to
infrastructure or other vulnerabilities to terrorist attack--
all of which the Secretary would be given access to `whether
or not such information has been analyzed'--information on
terrorist threats themselves would be available to the
Department only in the form of what is known as `finished'
intelligence." He testified that, under Sec. 203 of the
President's proposal, the Secretary may obtain the underlying
information only `by request' or when the President
specifically provides for its transmission to the new
Department. Senator Shelby called these limitations in the
President's bill "unacceptable". Clearly, the
Administration's proposal would reinforce tendencies not to
share information among agencies that have historically been
reluctant to share. Our purpose is to remove obstacles to
information sharing--obstacles that clearly contributed to
the tragedy of September 11--not to reinforce them.
The GAC-endorsed amendment establishes a proactive DI. In
addition to helping set intelligence priorities and receiving
analysis from all other agencies in government, it would have
routine access to the unevaluated intelligence, the
information behind the reports that DHS will receive, unless
the President directs otherwise. The Secretary will also be
able to request and receive additional information (as the
President further provides) that might require agencies to
conduct separate investigations or redeploy resources. We
anticipate that the cases would be rare where an agency is
unwilling or unable to comply with the Secretary's request;
however, the President will ultimately determine how
conflicts, if any, will be resolved.
During the July 24-25 business meeting, Senator Thompson
offered an amendment reflecting the President's approach on
intelligence; however that amendment was defeated.
S. 2452 included a Directorate for Critical Infrastructure
Protection (CIP). The GAC endorsed amendment continues to
include that directorate, and expands it to incorporate
significant additions as proposed by the President. The
Directorate will be headed by an Under Secretary who is
appointed by the President with the advice and consent of the
Senate.
The CIP will combine the key entities, currently scattered
across the Federal government, that are charged with working
with the private sector and other agencies to protect various
sectors of our nation's critical infrastructure. The
authorities, functions, personnel, and assets of several
offices are transferred to the Department. These include the
Critical Infrastructure Assurance Office of the Department of
Commerce (established by Presidential Decision Directive 63
in 1998 to coordinate federal initiatives on critical
infrastructure); and the National Infrastructure Protection
Center of the Federal Bureau of Investigation (other than the
Computer Investigations and Operations Section, which the
Administration requested remain in the FBI to ensure that
it continues to have a capability to pursue computer
crimes). To these we have added several important entities
from the President's proposal: (1) the National
Communications System of the Department of Defense
(established by Executive Order in 1984 to assist the
President and others in: (a) the exercise of
telecommunications functions and (b) coordinating the
planning for and provision of national security and
emergency preparedness communications); (2) the Computer
Security Division of the National Institute of Standards
and Technology (NIST) of the Department of Commerce (which
is tasked with improving information systems security);
(3) The National Infrastructure Simulation and Analysis
Center of the Department of Energy (established to serve
as a source of national competence to address critical
infrastructure protection and continuity through support
for activities related to counterterrorism, threat
assessment, and risk mitigation); (4) The Federal Computer
Incident Response Center of the General Service
Administration (a partnership of computer incident
response, security, and law enforcement personnel to share
information and handle computer security incidents); and
(5) The Energy Security and Assurance Program of the
Department of Energy, a national security program to help
reduce America's energy supply vulnerability from severe
disruptions due to natural or malevolent causes.
Finally, the GAC endorsed legislation transfers the Federal
Protective Service of the General Services Administration
(GSA) to the CIP. The President proposed that FPS be
transferred to the Border and Transportation Protection
Directorate. The Federal Protective Service oversees security
at Federal property managed by GSA. Its expertise and mission
is to provide physical security for some of our nation's key
resources, making it more appropriate that it be combined
with the other entities responsible for physical security and
cyber security in this Directorate.
The GAC endorsed legislation establishes specialized
research and analysis units in the CIP to process
intelligence and identify vulnerabilities in key areas,
including: (a) Public health, (b) food and water storage,
production, and distribution; (c) commerce systems, including
banking and finance; (d) energy systems, including electric
power and oil and gas production and storage; (e)
transportation systems, including pipelines; (f) information
and communication systems; (g) continuity of government
services; and (h) other systems or facilities the destruction
of which would cause substantial hard to health, safety,
property, or the environment.
Among its other duties, the CIP shall be responsible for
receiving relevant information from the Directorate of
Intelligence, law enforcement, and other information to
assess the vulnerabilities of the key resources and critical
infrastructures; identifying priorities and supporting
protective measures by the Department and other entities;
developing a comprehensive national plan for securing key
resources and critical infrastructure; enhancing and sharing
of information regarding cyber-security and physical
security; developing security standards, tracking
vulnerabilities, proposing improved risk management policies;
and delineating the roles of various governmental agencies in
preventing, defending, and recovering from attacks.
The Directorate will also be responsible for establishing
the necessary organizational structure to provide leadership
and focus on both cyber-security and physical security, and
ensuring the maintenance of a nucleus of
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cyber and physical security experts in the United States
Government. Both cyber and physical security are critical to
the adequate protection of those systems on which our
nation's economy and culture depend. The CIP will be
responsible for utilizing the best modeling, simulation, and
analytic tools to prioritize the effort.
The creation of this Directorate indicates broad consensus
on the need for a single entity to coordinate a national
effort to secure America's critical infrastructure. This is a
shared responsibility of Federal, State, and local
governments along with a private sector which owns 85% of our
nation's critical infrastructure. However, unlike the
President's proposal, which combines information analysis and
infrastructure protection under one Under Secretary, the GAC
amendment places Critical Infrastructure Protection in its
own directorate where it will work closely with the
Intelligence Directorate. This was done both to elevate and
stress the centrality of intelligence analysis to all of the
Department's missions, but also because critical
infrastructure protection is a sufficiently complex and
daunting challenge that it will require the focused
leadership and attention of an Under Secretary.
As reported out of the Committee in May, S. 2452 would have
transferred the law enforcement programs of the Immigration
and Naturalization Service to the new Department, while
leaving its service functions at the Department of Justice.
However, key senators and immigration experts argued that
this course could undermine the critical task of reforming
the INS. The GAC-endorsed legislation now transfers all
immigration functions to the new Department, but specifies
that the INS be disbanded and reorganized along the lines of
a major, bipartisan reform bill, S. 2444, sponsored by
Senators Kennedy and Brownback. These senators are the
chairman and ranking member, respectively, of the immigration
subcommittee of the Senate Judiciary Committee, and have
assembled an impressive bipartisan majority of that committee
in support of their legislation. Rather than try to
characterize their handiwork for them, I am attaching a
letter from Senators Kennedy and Brownback describing the
substance of the immigration reforms now incorporated in this
legislation.
Because the work of reforming INS is very demanding, the
immigration programs will be in their own directorate, with
direct accountability to the Secretary, rather than included
as part of the Border and Transportation Protection
directorate. However, to ensure adequate coordination between
immigration programs and other agencies that operate at the
border, the legislation creates a Border Security Working
Group. This Working Group will consist primarily of the
Secretary, or his designee, and the Under Secretaries for
Immigration and Border and Transportation Protection. It will
meet at least four times a year, and coordinate matters
including budget requests, staffing requirements, and use of
equipment. This working group can also bring in other federal
agencies with border operations (such as the Drug Enforcement
Administration or the Food and Drug Administration) that are
not part of the Department, offering a critical mechanism for
government-wide coordination along the border and at ports of
entry.
The legislation also gives the Secretary regulatory
authority over the visa application process. Consular
employees at the Department of State would continue to
process visa applications. However, the Secretary would have
authority to issue regulations concerning the application
process. This would include the required procedures for
considering an application, such as whether all applicants
must be interviewed in person or what kind of
identification documents would be required. In addition,
the Secretary would have authority to station Departmental
employees oversees to consult with State Department
employees on the visa process and specific threats.
The homeland security mission will face profound
technological needs and requirements, and the challenges are
substantial. The first challenge derives from the fact that
most research and development of new technologies relevant to
homeland security will occur outside the new Department--in
other agencies, academia, and the private sector. Therefore,
the Department will require powerful tools and mechanisms to
elicit cooperation from entities external to the Department,
and to coordinate R&D efforts across a range of disparate
groups, each with their own missions and priorities, in
service to homeland security goals. The legislation attempts
to provide the Directorate of Science and Technology with the
mechanisms it needs to resolve this fundamental coordination
problem. The legislation establishes a Security Advanced
Research Projects Agency (SARPA), which is inspired by the
highly successful Defense Advanced Research Projects Agency
(DARPA) of the Department of Defense (DOD). Following the
DARPA model, SARPA will have funding, in the form of an
Acceleration Fund, to support key homeland security R&D both
within and outside of the federal government, and to leverage
collaboration on R&D between entities, particularly among the
agencies. A second mechanism provided under the legislation
is a Science and Technology Council consisting of senior R&D
officials from the agencies and other appropriate entities.
The Council will assist the Under Secretary in coordinating
interagency efforts to execute the science and technology
agenda of the Department, primarily through supporting the
development of a comprehensive technology roadmap for
establishing common priorities and allocating individual
responsibilities. Another important mechanism is the ability
to directly engage any of the Department of Energy (DOE)
national laboratory and sites through joint sponsorship
agreements in carrying out R&D activities for homeland
security purposes. With respect to bioterrorism research, the
Secretary will be able to ensure that the best researchers
are focused on developing necessary countermeasures against
biothreats by establishing general priorities for biothreat
research programs conducted at the National Institutes of
Health.
A second R&D challenge is to assure that the Directorate
will have expedient access to broad, deep, and ongoing
support for critical analysis and decision-making regarding
scientific or technical issues. To address this issue, the
legislation provides authority for the Directorate to
contract with or establish Federally Funded Research and
Development Centers (FFRDCs) to obtain independent
analytical, scientific, and technical expertise and support,
including support for risk analysis and risk management
functions. In addition, an Office of Risk Analysis and
Assessment is created within the Directorate to ensure that
such risk analysis functions are given institutional priority
and conducted internally or through outsourcing to FFRDCs.
A third challenge is for the Department to develop and
effectively manage a critical mass of internal homeland
security R&D capabilities. The legislation transfers a number
of entities from the Department of Energy, and one to be
created in the Department of Defense, that will constitute a
core scientific base upon which the Department will conduct
in-house R&D efforts central to its mission. Fundamental to
developing this in-house expertise is the ability to procure
a strong talent base and to engage them in innovative
projects quickly. In view of this, the legislation affords
the Secretary with flexible management tools to hire and
retain top flight scientific and technical personnel, as well
as to accelerate R&D and prototype projects to advance the
homeland security mission.
Intelligent and coordinated deployment of technology within
the Department is a fourth challenge that must be overcome.
Too often, government agencies are hampered and distracted
from their fundamental missions as a result of unstructured
and technically unsophisticated approaches to technology
acquisition and deployment that lead to interoperability
problems downstream. The legislation establishes an Office
for Technology Evaluation and Transition to assist the Under
Secretary in his responsibilities as the chief technology
officer and to assure his central role in testing,
evaluating, and approving new homeland security technologies
being considered by the Department for acquisition.
Lastly, the Committee recognizes that a sea of scientific
and technological expertise and resources resides outside the
walls of the Federal government, and has therefore included
several provisions to engage the private sector in
maintaining our national security. Transition of technology
is emphasized throughout the section. An Advisory Panel
consisting of experts from the private sector and academia
may be convened by the Secretary to advise the Under
Secretary and Council and promote communication with non-
federal entities. The Office of Technology Evaluation and
Transition described earlier will provide a gateway and
clearinghouse for companies with innovative technologies
relating to homeland security. This Office will also have
particular responsibility for facilitating the transition of
technologies into fielded systems for use by the Department,
other agencies, or private sector entities. Another provision
requires the Secretary to articulate a strategy and plan for
encouraging biotechnology firms, pharmaceutical companies,
and other entities to develop countermeasures against
biological and chemical weapons, with a view towards
commercial production. A fourth provision directs the Under
Secretary to establish a National Emergency Technology Guard
composed of teams of volunteer experts in science and
technology to assist local communities in responding to and
recovering from disasters requiring specialized scientific or
technical skills.
Taken in combination, the mechanisms granted by the
legislation provide the Department with an array of tools
with which to forcefully tackle the set of R&D challenges
confronting it. The legislative history and specific details
regarding the legislation are discussed in greater detail
below.
S. 2452, as reported out of the Committee on May 22,
contained a provision establishing an Office of Science and
Technology within the new Department of Homeland Security.
The underlying intent of this provision was to create an R&D
entity similar in organization and function to the Defense
Advanced Research Projects Agency, which was selected as an
appropriate model for the Department's R&D component in light
of the fact that the Department, as originally contemplated,
would have had limited capability to conduct R&D internally.
Consequently, it was determined that the Department could
most effectively initiate and promote R&D in support of its
mission through a DARPA-like entity with a lean, flexible
organizational structure joined with funding to leverage
external interagency collaboration. Since the release of the
President's proposal for the Department, and in
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response to that and additional input received by the
Committee from a broad range of contributors, including
other Member offices and experts from the scientific
research and technology communities, the scope and
responsibilities of the Office have been broadened.
The legislation redesignates the Office of Science and
Technology as the "Directorate of Science and Technology"
("Directorate"), and elevates the head of the Directorate
to the rank of a Senate-confirmed Under Secretary. This
follows the consensus view of the National Academy of
Sciences that the Directorate's chief science and technology
(S&T) official requires sufficient stature to influence and
coordinate S&T policies and activities outside the
Department. The Under Secretary will be responsible for
executing the Directorate's mission of managing and
supporting R&D activities to meet national homeland security
needs and objectives; articulating national R&D goals,
priorities, and strategies pursuant to the mission of the
Department; coordinating with entities within and outside
government to advance the R&D agenda of the Department;
advising the Secretary of the Department on all scientific
and technical matters; facilitating the transfer and
deployment of technologies critical to homeland security
needs; and generally serving as the Department's chief
technology officer.
The legislation provides a number of key components to
assist the Directorate in meeting its mission. First among
these is SARPA, the new R&D agency modeled after DARPA that
was established in the original version of the legislation
and is retained in the amended legislation. DARPA was created
in 1958 in response to the launch of Sputnik. It is an
organization that recruits outstanding scientific and
technical talent and funds high-risk, high-payoff projects
that offer the potential for revolutionary advances. DARPA's
nimble, aggressive and creative approach has consistently
produced impressive and effective war-fighting technologies.
Moreover, in the course of fulfilling its central mission,
DARPA has developed technologies with broad commercial and
societal application, such as the Internet. Of particular
significance to the Committee in selecting DARPA as a model
for the S&T apparatus in the Department is DARPA's use of its
funding to leverage R&D investments in other parts of DOD,
effectively generating a multiplier effect that maximizes
DARPA's contribution to national defense in disproportion to
its actual funding level. Over five decades, DARPA has been
recognized as one of the most productive engines of
technological innovation in the U.S. government.
While DARPA concentrates primarily on the development of
revolutionary technologies, SARPA will have a broader focus
consistent with its larger mission. Since there are many
technologies relevant to homeland security in various stages
of development and deployment, SARPA will promote a wide
range of technology development, transition, and deployment
efforts, as well as research for revolutionary new
technologies. Nevertheless, the Committee anticipates that
with an Acceleration Fund authorized at $200 million for
FY03, SARPA will have the foundation for replicating or
exceeding DARPA's success in catalyzing critical new
technologies by initiating and leveraging R&D among public,
private, or university innovators. Under an amendment offered
by Senator Stevens, ten percent of the Acceleration Fund is
to be allocated to Coast Guard homeland security R&D missions
for FY'04 and FY'05 through a joint agreement with the
Commandant of the Coast Guard.
While Congress should restrain itself in directing
particular management strategies, it is the Committee's
expectation that SARPA will take full advantage of evolving
modern management strategies in the R&D field, particularly
in assuring effective technology transition. For example, the
Committee would expect SARPA to engage in a careful "needs
identification" effort which involves eventual technology
"users" in its R&D roadmapping and planning exercises. The
Committee also expects that it operate not simply as a
traditional research organization but that it explore methods
to involve venture participants, incubate new technologies,
encourage the startup process, facilitate prototyping, and
promote strategic government and private sector supporters
and investors. SARPA will also need to actively encourage
connections with technology first-adopters in and out of
government, and establish interactive feedback systems for
technology development and deployment to ensure sustained
interaction between front-line researchers and with users.
To support the Directorate and its functions, an
interagency Science and Technology Council, which is the
successor to the Science and Technology Steering Council
contained in the original version of the legislation, will
advise the Under Secretary on priorities and strategies for
homeland security R&D. This Council will consist of senior
R&D officials from across the government and will serve to
facilitate interagency coordination on R&D activities
pertinent to homeland security. One of the chief
responsibilities of the Council will be to assist the Under
Secretary in developing overarching technology roadmap that
will enable a coherent national homeland security R&D program
to be coordinated among the many federal agencies.
The Administration's proposal contemplated the designation
of one of the DOE national laboratories to serve as the
primary research and development center for the Department.
However, in recognition of the extensive scope and nature of
homeland security R&D, as well as the different research and
technology-related capabilities possessed by each of the DOE
laboratories and sites, the GAC-endorsed legislation
establishes in the Directorate an Office for National
Laboratories to coordinate and utilize such entities in
creating a networked laboratory system to support the
missions of the Department. Through joint sponsorship
agreements with the DOE, the legislation allows the
Department to easily access and benefit from the combined
expertise of all of the DOE laboratories and sites.
The Department will have extraordinary analytical needs
cutting across of all of its Directorates, especially with
regard to the assessment, analysis, and management of
threats, vulnerabilities, and risks. Although the
Administration's bill did not specifically address this need,
the President's Strategic Plan released in mid-July suggests
that risk analysis is a fundamental issue that needs to be
addressed in planning for our nation's security. Although the
legislation vests ultimate responsibility for risk analysis
and risk management by the Department with the Secretary, all
the Directorates will be required to assist the Secretary in
coordination with each other and consistent with their own
missions. The Directorate of Science and Technology has a
contributing role to play in this framework by providing the
Secretary and the other Directorates with scientific and
technical support for such functions. To ensure that the
Directorate has access to the requisite resources and
expertise to fulfill its risk analysis responsibilities and
other research-related functions, the legislation gives the
Department the power to contract with or establish FFRDCs-
independent, non-profit institutions that conduct analysis
and provide support integral to the mission and operation of
the sponsoring agency. Thirty-six FFRDCs across the nation
have proven indispensable in enabling the government to
undertake research with a creativity and flexibility not
always available within the confines of a federal agency.
The importance of FFRDCs is underscored by a prominent
study on homeland security conducted by the National
Academy of Sciences, which recommended the establishment
of an FFRDC to furnish capabilities related to risk
analysis, scenario-based threat assessments, red teaming,
and other functions. Moreover, an Office of Risk Analysis
and Assessment is created within the Directorate to ensure
that these functions are given institutional priority and
carried out--whether internally or through outsourcing to
FFRDCs--in a coordinated manner in accordance with the
Secretary's requirements and overall management. This
Office will assume operational responsibility within the
Directorate and on behalf of the Under Secretary for
supporting the risk analysis and risk management needs of
the Secretary and the other Directorates, as well as help
ensure that R&D activities are aligned with risks and
threats.
The President's proposal included language that would grant
the Department control over funds appropriated to the
National Institute of Health (NIH) for bioterrorism research.
Although the provision clearly contemplated that these funds
would remain committed to the NIH for application in
accordance with the Department's guidelines, the Committee
was concerned that the provision technically allowed for such
funds to be transferred to other agencies, thereby depriving
the NIH of funding necessary to conduct its critical research
in this area. With the collaboration of staff from the
Administration and Senator Thompson's office, a final
provision was negotiated under which NIH funds would not be
transferred out of the HHS. Instead, through joint strategic
agreements, the Secretary of the Department would set general
research priorities for the funds, while the HHS would
establish the specific scientific research agenda as well as
award and manage all grants. This modified language will
protect our strategic commitment to biodefense research,
while leaving the means and methods for this research to the
scientists at the NIH.
The President's proposal targeted a number of R&D entities
and programs in other agencies for transfer into the
Department. While the Committee does not agree with all of
the Administration's transfers, it recognizes the value of
providing the Department with a critical base of in-house R&D
capabilities. Therefore, most of the programs targeted by the
Administration have been moved, including the chemical,
biological, and nuclear threat assessment and detection
programs within the Department of Energy (DOE) relevant to
homeland security, and the National Bio-Weapons Defense
Analysis Center to be created within the Department of
Defense. The transferred programs will be collectively
supervised by a new Office of Laboratory Research. Together,
these transferred entities will confer a basic in-house
research capability with the resident scientific expertise to
help the Directorate better coordinate the broader
government-wide homeland R&D portfolio.
Given that the Federal government represents only one of
several sectors in our nation with R&D resources and
expertise, the Department will require mechanisms to engage
and benefit from private sector and academic efforts
regarding homeland security. Toward this end, the legislation
allows for the establishment of an Advisory Panel consisting
of experts from the private sector,
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academia, State, and local entities to advise and support the
Under Secretary and the Science and Technology Council. The
Panel will ensure that a diversity of perspectives are taken
into consideration in the establishment of priorities, and
that the contributions to be made from the private sector are
properly addressed and incorporated into the national
homeland security effort.
The Directorate will also include an Office for Technology
Evaluation and Transition, which will serve as a
clearinghouse and national point-of-contact for companies and
other entities that possess technologies relevant to homeland
security. The Office will evaluate these technologies and, if
appropriate, assist in developing and transitioning them into
Department entities or other agencies possessing matching
needs. The Technical Support Working Group (TSWG) provides an
applicable model for this function, and the legislation
requires the Office to coordinate with or work through TSWG,
or use TSWG as a model, in performing this technology
solicitation and transition role. It is also intended that
this Office serve as the Department's internal center for
testing and evaluating new technologies being considered for
acquisition or deployment by the Department or its entities.
The new Department will be a large one, and very dependent on
technology in carrying out its homeland mission. As a result,
it is vital that new technologies deployed in the
Department's component Directorates and other entities be
compatible and interoperable to ensure efficiency and
expanded capability. The Office, by performing the
Department's testing and evaluation function, will support
the Under Secretary in carrying out his duties as the
Department's chief technology officer. In addition to
conducting testing and evaluation activities for the
Department, the Office will also coordinate with the
Department's Chief Information Officer and with other
agencies in promoting government-wide compatibility and
interoperability with regard to homeland security
technologies and systems.
Rapidly developing medicines and antidotes to counter
chemical and biological weapons is an enormous challenge and
one that government-supported R&D cannot accomplish on its
own. The legislation directs the Secretary to implement a
strategy to engage the biotechnology and pharmaceutical
industries in the critical research and product development
that will produce antidotes and vaccines to the chemical and
biological weapons that terrorists may employ against our
nation. This strategy should explore and suggest ways to
provide incentives and facilitate "bench-to-bedside"
transition for these products.
Recognizing that technological prowess in this country is
in communities, as well as colleges and companies, the
Department must tap the boundless expertise and energy of
ordinary citizens. Drawing on legislation developed in the
Senate Commerce Committee, the legislation endorsed by the
Committee creates a National Emergency Technology Guard of
volunteers with expertise in science and technology to assist
local communities in responding to and recovering from
emergencies requiring scientific or technical expertise.
As reported on May 22, S. 2452 included a Directorate of
Emergency Preparedness and Response, with FEMA as its core.
The new GAC-endorsed legislation retains this directorate and
expands it to include some of the programs the Administration
proposed moving to the new department. This amendment also
provides that the President may appoint the same person to
serve as both the Director of FEMA and the Under Secretary
for this directorate.
This directorate's responsibilities include organizing and
training local entities to respond to emergencies and
providing State and local authorities with equipment for
detection, protection, and decontamination in an emergency
involving weapons of mass destruction; overseeing
Federal, State, and local emergency preparedness training
and exercise programs; assembling a single Federal
disaster plan to help orchestrate Federal assistance for
any emergency; coordinating among private sector entities,
including the health community, in emergency planning and
response activities; and developing a comprehensive plan
to address the interface of medical informatics and the
medical response to terrorism. (Medical informatics is the
scientific field that addresses the storage, retrieval,
sharing, and optimal use of biomedical information, data,
and knowledge for problem-solving and decision-making.)
This directorate also creates a National Crisis Action
Center to coordinate federal support for State and local
governments and the private sector during a crisis;
additionally, the directorate is responsible for ensuring
the appropriate integration of operational activities of
the Department of Defense, the National Guard, and other
federal agencies in the Federal Response Plan in order to
respond to acts of terrorism and other disasters.
In addition to FEMA, the Emergency Preparedness and
Response directorate transfers the National Office of
Domestic Preparedness, within the FBI. This entity was
created by the Attorney General in 1998 and coordinates
federal efforts to assist state and local emergency
responders with training and materials necessary to respond
to an event involving weapons of mass destruction. The Office
of Domestic Preparedness (ODP) within the Department of
Justice is also transferred. ODP was developed to help train
State and local law enforcement agencies to respond to
terrorist incidents.
The Administration proposed transferring the Select Agent
Registration Enforcement Program from the Centers for Disease
Control within the Department of Health and Human Services,
to the Department. The Select Agent Registration Enforcement
Program was developed to identify all biological agents and
toxins that may threaten public health and safety, regulate
the transfer of such agents and toxins, and establish a
registration scheme regulating their possession, use, and
transfer. The GAC-endorsed legislation transfers this program
to the Emergency Preparedness and Response directorate
because it is a program critical to preparing for and
responding to a public health emergency. The Under Secretary
for Science and Technology, the Secretary of Agriculture, and
the Director of the Centers for Disease Control and
Prevention will work together to establish and update the
list of toxins to be monitored.
Like the Administration's proposal, the GAC-endorsed
legislation transfers the Strategic National Stockpile to the
new department. The Strategic National Stockpile is a
stockpile of drugs and vaccines that may be used in the event
of a terrorist attack or other emergencies. However, because
of CDC's experience and expertise, the legislation allows for
the Stockpile to be managed on a day-to-day basis for the
Department by CDC through a new Bioterrorism Preparedness and
Response Division, which is created in this legislation
pursuant to an amendment from Senator Cleland. However, the
Department would remain in charge of the overall strategic
planning concerning the Stockpile. The Public Health
Emergency and Bioterrorism Preparedness and Response Act of
2002 authorized funds for both the Stockpile and the
acquisition of smallpox vaccine doses and potassium iodide.
Consequently, the GAC-endorsed legislation transfers
responsibility for the acquisition of smallpox doses and
potassium iodide to this directorate as well.
Finally, the Administration also proposed transferring the
Office of the Assistant Secretary for Public Health
Preparedness (OPHP) from the Department of Health and Human
Services to the Emergency Preparedness and Response
directorate. This office has three primary components: (1)
the awarding and administration of state and local grants for
public health preparedness; (2) the Principal Science
Advisor, who advises the Secretary on the global R&D strategy
for HHS; and, (3) the Office of Emergency Preparedness, which
manages rapid-response emergency health and first-responder
personnel. From this Office of the Assistant Secretary for
Public Health Preparedness, the GAC-endorsed legislation
transfers the Office of Emergency Preparedness.
The other two components of the OPHP each play a role in
emergency response, but also a very extensive role in general
public health. Because they perform a dual-use function, and
because of their extensive interaction with other parts of
HHS, it does not seem appropriate to transfer them to the new
department. Additionally, experts in the public health and
biomedical communities expressed concern that the
Administration's proposal would not operate effectively. The
OPHP was established to address the problems of intra-agency
communication and coordination, and it could reverse the
gains achieved by this office to remove it from the
department with which it is primarily engaged. Indeed, HHS
would be probably be forced to re-create this capacity
internally if OPHP were transferred to the Department.
At the same time, it is important the Department have in-
house capability to address biological, chemical, and nuclear
weapons. Consequently, the Department would include those
public health and biomedical programs--the OEP, the Select
Agent Registration Enforcement Programs, and the Strategic
National Stockpile--which focus primarily on terrorism and
emergency response.
Secret Service
The legislation adopts the Administration's proposal to
include the United States Secret Service as a distinct entity
reporting directly to the Secretary. The Service has a dual
mission of protection and investigation, with a central focus
on preventing attacks and other missions now very relevant to
terrorist threats. The Service was originally created to
safeguard the country's currency and financial payment
systems, and it remains the sole agency charged with
enforcing the counterfeiting statutes. Its responsibility for
protecting the country's financial infrastructure has led to
an expansion of the Service's investigative mission, which
now includes crimes involving identity theft, credit card
fraud, false identification documents, computer fraud, and
financial institution fraud. In addition, the Secret Service
is well-known for its mission to protect the nation's highest
elected leaders and their families, as well as visiting heads
of state. In recent years, the Secret Service has assumed
responsibility for planning, coordinating, and implementing
security operations at National Special Security Events, as
designated by the President. It also has created the National
Threat Assessment Center, which provides advice and training
to law enforcement and other organizations with
responsibilities to investigate or prevent targeted violence.
The missions of the Secret Service have a clear connection
to the fundamental mission of the new Department. Its
protective mission is central to safeguarding the country's
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leadership. Many of the crimes it is charged with
investigating involve activities in which terrorists often
engage. And it is an agency that is uniquely focused on
assessing vulnerabilities and designing ways to reduce them
in advance of an attack, an expertise that will benefit the
new Department. The responsibilities and experience of the
Secret Service support its transfer as a separate office
reporting directly to the Secretary rather than its inclusion
in one of the Directorates. This structure will allow the
Service to draw on the expertise and resources of the
Directorates to support its protective mission, as well as to
provide its own expertise and experience to the rest of
the Department.
State and Local Government Coordination
Homeland security is clearly a joint responsibility among
the Federal, State, and local governments. There are many
ways in which the bill recognizes the importance of these
relationships and places a high priority on ensuring that the
Department works closely with, and provides significant
assistance to, State and local agencies. To coordinate this
effort, the Department will have an office devoted to
facilitating effective communications and partnerships with
State and local government. The Office for State and Local
Government Coordination will be established within the office
of the Secretary to ensure that the needs and role of State
and local governments are considered throughout the work of
each of the Department's directorates. In addition to
coordinating the activities of the Department relating to
State and local governments, the Office will be responsible
for assessing and advocating for the resources needed by
State and local government to implement the national strategy
for combating terrorism. This advocacy function is necessary
so that budget decisions to implement the national strategy
are made with the full understanding of the role that State
and local governments will play in implementing the strategy,
as well as the resources necessary at all levels of
government for success.
The Secretary, in conjunction with the Director of the
National Office for Combating Terrorism, is responsible for
working with State and local governments to develop a
national strategy for combating terrorism--not simply a
Federal strategy. Thus, the Office for State and Local
Government Coordination will develop a process for receiving
meaningful input from State and local government to assist in
the development of the strategy for homeland security and
other homeland activities. The Office will also provide State
and local government with regular information, research, and
technical support to assist local efforts at securing the
homeland.
The GAC-endorsed legislation incorporates an amendment,
offered by Senators Collins and Carper, which creates the
position of Chief Homeland Security Liaison Officer, who is
charged with coordinating the efforts of homeland security
liaison officers in each state. These liaison officers will
work with State and local first responders to make sure that
these organizations receive the training and resources they
need. A Federal Interagency Committee on First Responders
will bring together the federal agencies that work most
closely with State and local first responders and will be
counseled by an Advisory Council, including representatives
of first responders and urban and rural communities.
To further encourage communication and coordination between
the Department and State and local agencies, the GAC-endorsed
legislation authorizes the Secretary to establish an employee
exchange program. This program--which was suggested by
Senator Voinovich--would allow employees of the Department
and State and local agencies with homeland security
responsibilities to work together, to share their specialized
expertise, and to enhance their ability to assess threats
against the country, develop appropriate responses, and
inform the public. Employees who participate in the program
must have appropriate training or experience to perform the
work required by the assignment, and assignments must be
structured to appropriately safeguard classified and other
sensitive information.
Office of International Affairs
The legislation includes an amendment offered by Senator
Thompson that creates an Office of International Affairs
within the office of the Secretary. The Director of the
Office will be responsible for promoting the exchange of
information with foreign nations to encourage sharing of best
practices and technologies relating to homeland security.
This information exchange will include joint research and
development on countermeasures, joint training exercises for
first responders, exchange programs, and international
conferences. The Director will manage the activities under
this provision in consultation with the Department of State
and other relevant Federal officials. These programs will be
developed first with countries that are already highly
focused on homeland security issues and that have previously
engaged in fruitful cooperation with the United States in the
area of counterterrorism.
MANAGEMENT AND TRANSITION ISSUES
Management structure
The Administration's proposed legislation calls for the
appointment of a number of management officials to support
the Secretary in carrying out the mission of the Department.
The Committee-endorsed legislation includes much, though not
all, of the management structure proposed by the
Administration.
Secretary--First and foremost, the Committee-endorsed
legislation calls for a strong Secretary, vested with
effective, centralized management authority over what will be
a large new organization. Although responsibilities under
this legislation are allocated among the various
Directorates, it is intended that all powers provided under
this bill be subject to the full control and direction of the
Secretary. Also, while the bill establishes the basic
organizational framework for the new Department and
establishes its principal components, carrying out this
organizational task is only part of the role that the new
Secretary must play. While a number of more subjective
management factors cannot be defined in statutory language,
we anticipate that the new Secretary will need to spend a
great deal of time on key management tasks that cannot be
embodied in a formal organizational structure. These tasks
include: creating a sense of shared values across the new
Department and its disparate components; ensuring that core
skills and competencies are both developed and shared across
the Department; developing an effective common departmental
strategy for achieving the agency's missions with buy-in
among component agencies; deciding on the key systems and
management processes apart from the organizational structure
that will manage and bind together the new Department;
assuring that the success of those systems and processes are
measured and evaluated frequently to test their performance;
ensuring that departmental personnel gain experience in a
variety of agency components to encourage cross-agency
thinking, capability, and solutions so that the synergy of a
new Department can be realized, and establishing a leadership
style that will create a strong organizational culture based
on the values and attitudes the new Department must have to
effectively perform its mission. The bill aims to create a
structure that will enable the new Secretary to carry out
these critical management efforts.
The Department will be headed by a Presidentially
appointed, Senate-confirmed Secretary. The Secretary's duties
include developing policies and plans for the promotion of
homeland security, carrying out and promoting the other
established missions of entities transferred to the
Department, and developing a comprehensive strategy for
combating terrorism and the homeland security response in
conjunction with the Director of the National Office for
Combating Terrorism.
The Secretary is charged with consulting with the Secretary
of Defense and the nation's governors to integrate the
National Guard into the nation's strategy to combat
terrorism. The Secretary must also consult and coordinate
with the Secretary of Defense regarding military
organization, equipment, and assets that are critical to
fighting terrorism, as well as the training of personnel to
respond to terrorist attacks involving chemical or biological
agents.
Section 102 details numerous other duties of the Secretary.
Deputy Secretary--Section 103 provides for appointment of a
Deputy Secretary, subject to Senate confirmation, responsible
for assisting the Secretary.
Under Secretary for Management--The Administration proposal
calls for the appointment of an Under Secretary for
Management with broad responsibilities for management and
administration of the Department. Section 104 of the
Committee-endorsed bill establishes this position with
substantially the same responsibilities as in the
Administration bill. These include budget and other financial
matters, procurement, human resources and personnel,
information technology and communications, facilities and
other material resources, security for the Department, and
managing performance measures for the Department.
Assistant Secretaries--The Administration requested
authority for the President to appoint not more than six
Senate-confirmed Assistant Secretaries, without specifying in
statute what the responsibilities of these officers would be.
Following generally the Administration's approach, section
105 of the legislation authorizes the President to appoint up
to five such Assistant Secretaries (these do not include the
two additional, Senate-confirmed Assistant Secretary
positions, with immigration-related functions, established in
division B of the legislation.) The President must describe
the general responsibilities when submitting a nominee for
confirmation. The authority of the President to assign
functions to up to five Assistant Secretaries should provide
important flexibility in designing the management structure
for the Department.
Inspector General--The Department will include an office of
Inspector General under the Inspector General Act of 1978,
thereby applying the authorities and independence provided
under that Act. The legislation would define a narrow set of
circumstances under which the Secretary could prohibit the
Inspector General from carrying out an investigation or
performing other duties if necessary in the interest of
national security or other compelling circumstances specified
in the legislation. This language is modeled closely on
provisions that apply to the Inspectors General at the
Departments of Justice, Defense, and Treasury, the United
States Postal Service, and the Central Intelligence Agency.
Also modeled closely on provisions applicable at Treasury, is
a provision
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granting the Homeland Security IG oversight over internal
investigations performed by any other investigatory offices
where they exist in the Department's sub-agencies. The
Inspector General must designate an official to collect and
review information about alleged abuses of civil rights and
civil liberties by Department officers and employees, and
report to Congress on such abuses.
Chief Financial Officer--The legislation would establish a
Chief Financial Officer (CFO) and a Chief Information Officer
(CIO) at the new Department. Section 107 would define the
Department as an agency under the CFO Act, thereby making
applicable the requirements of the CFO Act of 1994,
regarding, for example, the qualifications and
responsibilities of the CFO and annual financial reporting.
Under the CFO Act, the CFO at the Department must be either
appointed by the President subject to Senate confirmation, or
designated by the President, in consultation with the
Secretary, from among Senate-confirmed officials at the
Department.
Chief Information Officer--Section 108 of the legislation
would establish a Chief Information Officer (CIO) at the new
Department. Furthermore, the provisions of law defining the
responsibilities of the CIO, including the Paperwork
Reduction Act and Clinger-Cohen, would apply by their own
terms to the new Department. Under applicable law, the CIO
need not be Senate-confirmed.
Chief Human Capital Officer--The Secretary must appoint or
designate a Chief Human Capital Officer to advise and assist
the Department in workforce skills, training, recruitment,
retention, and other issues necessary to attract and retain a
highly qualified workforce.
Civil Rights Office--Section 110 of the bill establishes a
Civil Rights Office, whose head will be appointed by the
President and confirmed by the Senate. The Office will have
two important functions. First, the Civil Rights Office will
have responsibility for coordinating the administration of
and ensuring compliance with laws prohibiting discrimination
against Department employees and beneficiaries of Department
programs (see, e.g., 42 U.S.C. Sec. Sec. 2000d, 2000e-16).
Second, it will advise the Secretary, as well as the
Department's directorates and offices, on the constitutional
and statutory framework that governs the Department's
interactions with the citizenry at large and help develop and
implement policies that ensure that consideration of this
group's civil rights are appropriately incorporated and
implemented in Department programs and activities. It also
will oversee the Department's compliance with requirements
related to the civil rights of individuals affected by the
Department's programs and activities. Authority to
investigate specific complaints by the citizenry at large of
civil rights or civil liberties violations, however, will
reside in the Office of the Inspector General, to which the
Civil Rights Office will refer any matter that, in the
opinion of the Civil Rights Officer, warrants further
investigation.
Privacy Officer--A Chief Privacy Officer will oversee the
Department's compliance with privacy laws and help ensure
that personal information is appropriately safeguarded.
Several federal agencies that deal with sensitive personal
information, such as the Internal Revenue Service and the
U.S. Postal Service, currently have similar privacy advocates
to aid in the development of policies and provide assistance
to agency officials. The Chief Privacy Officer's mandate
extends beyond overseeing compliance with existing privacy
laws, such as the Privacy Act, and includes assisting in the
development of policies that incorporate privacy safeguards
and minimize the risk of inappropriate disclosure or use of
personal information. The Privacy Officer may also assist in
the development of privacy impact assessments, when required
by law or considered appropriate by the Secretary, which are
documents that explain how an agency takes into account
privacy considerations when initiating information
collections and developing information systems.
The Constitution clearly assigns to Congress what is called
the "power of the purse"--the power to appropriate funds
and to prescribe the conditions governing the use of those
funds. The Framers thus made Congress responsible to the
people for how the people's money gets spent. The legislation
contains provisions reaffirming that appropriated funds may
be used only for the purposes stated by Congress. To provide
for initial funding of the Department, the legislation
requires the Administration to submit a transition plan and
proposed budget by September 15, 2002, so that Congress can
appropriate timely start-up funds based on that proposal.
By contrast, the Administration has requested that the new
Department be excepted from the traditional arrangements
regarding the use of appropriated funds. For initial funding
for the Department, the Administration proposed to take funds
(up to 5%) from each agency slated for transfer to the
Department and use these funds for any purpose under the
legislation. This could total roughly $2 billion. To adjust
funding priorities without having to go back to Congress, the
Administration requested permanent power to take funds (up to
5%) from each appropriations account in the Department and
use those funds for any other purpose in the Department.
Senator Byrd and Senator Stevens, the Chairman and Ranking
Member of the Appropriations Committee, respectively, wrote
to me expressing their strong legal objection to the
appropriation transfer provisions requested by the
Administration:
"The proposal by the President provides the new Secretary
with extraordinary powers, powers that could potentially tip
the delicate balance of constitutional powers between the
Legislative and Executive branches of government. These are
powers that the Secretary of Defense and the Secretary of
State do not currently have, nor should they have. The
Framers carefully crafted that balance, and it has served the
nation well for more than 200 years."
Senators Byrd and Stevens also requested that the
legislation include provisions to sustain existing law and
practice governing the use of appropriated funds, and
language that they agreed to is included in the legislation.
These provisions are designed to provide for establishment of
the Department, while preserving the customary and
Constitutional role of Congress in appropriating funds and in
ensuring that such funds are used effectively and efficiently
and according to the will of the people, as expressed through
their elected Senators and Representatives.
Under the legislation, initial funding for the Department
will be provided through appropriations Acts, not through
transfer of funds appropriated for other purposes. To provide
this initial funding in a timely fashion, the legislation
requires the President to submit a transition plan by
September 15, 2002, including a proposal for financing the
initial operations of the Department. The financing proposal
might consist of any combination of specific appropriations
transfers, specific reprogrammings, or specific new
appropriations. By putting the Administration on notice, even
before the legislation is enacted, this provision has given
the Administration ample time to submit their plan while
Congress still has time to act on the Administration's
proposal.
To further clarify that initial funding will be provided by
appropriations acts, the legislation states that transferred
funds may only be used for their original purposes unless
Congress approves in advance a reallocation of such funds.
This provision does not limit the ability of an agency
transferred to the Department to use transferred funds for a
new position previously authorized in law, but does reinforce
that transferred funds may not be used to fund a new position
established under this legislation itself.
Looking beyond the transition period, the Administration
sought to justify its request for power to transfer
appropriations by stating, in the analysis accompanying the
Administration's proposed legislation: "Appropriations
transfer provisions are enacted annually in a number of
appropriations acts." While declining now to grant the
broad, permanent transfer power requested by the
Administration, this Committee-endorsed legislation does not
address whether any power to transfer funds should
subsequently be included in annual appropriations acts for
the Department. In fact, annual appropriations bills often
build in such flexibility, but more often in smaller amounts
under close oversight by Congress. The proper way for the
Administration to seek this authority is to request it as
part of their annual appropriations, not as permanent
authority in the enabling legislation.
The Committee concluded that the Congress and the Executive
Branch must fully understand the annual and multi-year
funding requirements for the Department to ascertain the most
appropriate funding levels to protect the American people
from homeland security threats.
Accordingly, the GAC-endorsed legislation requires the new
Department, beginning with the fiscal year 2005 budget
request, to submit annually a Future Years Homeland Security
Program to accompany the annual departmental budget request
and the National Terrorism Prevention and Response Program
Budget mandated elsewhere in the Committee-approved
legislation. The language requires that Future Years Homeland
Security Program be structured, and include the same type of
information and level of detail, as the Future Years Defense
Program required by statute to be submitted to the Congress
by the Department of Defense.
S. 2452, as reported on May 22, set an effective date of
180 days after enactment for the transfer of personnel and
assets to the new Department, and included "savings
provisions" to generally preserve the status quo with
respect to the ongoing missions of the agencies being
transferred. The Administration's subsequent proposed
legislation requested greater flexibility with respect to the
timing of the transition by giving the President discretion
to move agencies at any time over a one-year transition
period. It also requested further flexibilities to enable the
Administration to make certain incidental transfers and to
allocate transferred assets and personnel.
The GAC-approved legislation now includes, in subtitle B of
title XI, transition provisions based on the corresponding
provisions of the Administration's proposed legislation.
These provisions include most of the transition-related
flexibilities requested by the Administration. The principal
exceptions are that, under the GAC-endorsed legislation, the
Administration would not have the flexibility to use funds,
appropriated by Congress for one purpose, for a different
purpose (discussed above), or in the area of withdrawing
collective bargaining rights from personnel transferred or
employed in the new Department.
[[Page S8167]]
Following the Administration's approach, the Committee-
approved legislation adopts from the Administration bill an
effective date and a "transition period"--the effective
date is generally 30 days after enactment (unless enacted
less than 30 days before January 1, 2003, in which case that
is the effective date), and the "transition period" is the
one year period following the effective date. The President
is then authorized to direct the transfer of any asset to the
Department at any time the President directs, up to the end
of the transition period. This should allow agencies to be
transferred to the Department in an orderly progression,
leaving the Administration free to determine which are in a
position to be transferred first.
This legislation, by bringing numerous agencies responsible
for homeland security together for the first time under a
single chain-of-command responsible for policy and funding,
represents one of the most significant reorganizations of the
Federal government. However, once these agencies are
consolidated into one Department, further reorganization of
offices and functions at the departmental level may be needed
to integrate incoming offices and to gain additional
coordination, efficiency, and effectiveness. The
legislation provides for departmental reorganization, by:
(1) authorizing the Secretary to reorganize unilaterally
to the extent consistent with applicable law; and (2)
instructing the Secretary to recommend legislation
enabling specific further reorganization involving
organizational structures established in law.
The Administration has not offered a proposal for
departmental reorganization for consideration by Congress,
but, instead, requested that the Secretary be granted the
power generally to conduct such reorganizations unilaterally.
Under the Administration's proposal, the only limits on this
reorganization power would be that the Secretary could not
abolish the Secret Service or the Coast Guard, and the
Secretary would have to give Congress 90 days notice before
overriding a statute.
Many of the statutes establishing entities and assigning
functions reflect important policy judgments of Congress and
ongoing critical missions required by law, however, and it
would be inappropriate for Congress to cede to the executive
the power to override these statutes unilaterally, without
opportunity for Congress to evaluate, debate, and decide.
This view was also expressed by a Senator Byrd and Senator
Stevens, the leaders of the Senate Appropriations Committee,
in a letter stating their objection to a provision in the
President's proposal:
"Congress should not authorize the Executive Branch to
establish, consolidate, alter, or discontinue agencies of
government that are established in statute. This is Congress'
responsibility."
The legislation establishes reorganization authorities and
procedures designed to enable the Secretary to achieve an
efficient and effective structure for the Department, while
maintaining the appropriate role of Congress in deciding
whether statutory law should be changed. Under section 191 of
the bill, the Secretary can proceed, without further
congressional approval, with any reorganization that does not
change organizational structure established by law. The
Secretary can perform substantial reorganization and
consolidation under this authority. For example, agency units
responsible for human resources, information technology or
other management functions are typically not established in
law, so the Secretary could conduct substantial
reorganization and consolidation of such functions to make
them more efficient and effective.
Furthermore, as the Secretary identifies specific entities
established in law that he or she believes should be
reorganized, the legislation instructs the Secretary to
submit recommendations to Congress on an ongoing basis for
legislation providing for such reorganization. Specifically,
section 185(d)(1)(B) of the legislation requires the
Secretary to recommend any legislation that the Secretary
determines necessary to "reorganize agencies, executive
positions, and the assignment of functions within the
Department." Anticipating that the Secretary may develop
reorganization proposals over the one-year transition period,
the bill does not require the Secretary to submit these
recommendations as a single reorganization plan, but rather
requires submission of these recommendations as they become
available, the first no later than 6 months after enactment
of the Act and any subsequent recommendations at least every
6 months thereafter until 6 months after the transition is
completed.
The legislation specifies that several of the agencies
transferred to Department--i.e., the United States Customs
Service, the United States Coast Guard, the Federal Emergency
Management Agency, and the United States Secret Service--each
"shall be maintained as a distinct entity within the
Department." This requirement does not impose precise
constraints on the Secretary's authority to reorganize with
respect to these agencies, since each of these agencies is
established by law and this legislation prohibits the
Secretary from reorganizing in contravention of such law.
Instead, the "distinct entity" requirements serves as an
instruction to the President and Secretary that Congress
intends that the unique identity of each of these four
agencies should be preserved.
Under current law, the President and Secretary can reward
excellence, remove poorly performing employees, offer
recruitment bonuses, and use many other performance-oriented
management tools. In an effort to give the Department and
other agencies additional flexibility in the management of
personnel, our legislation adopts significant, government-
wide civil service reforms, contained in provisions proposed
by Senators Voinovich and Akaka. To support research and
development, we also provided the Secretary of Homeland
Security authority to use innovative techniques to hire
talent and fund projects. Taken together, this package will
give the Secretary the ability to: speed up staffing of new
employees; recruit and retain top science and technology
talent; procure temporary services outside the civil service
system when there is a critical need; reshape the workforce;
reform old competitive-hiring practices; provide more
effective bonuses for exemplary performance; promote
procurement flexibility in research, development, the
prototyping of new technologies, and other procurement; and
make additional valuable changes to help the new Department
attract, maintain, and motivate the best talent. These
reforms represent a major modernization of the way federal
agencies are managed.
Sen. Voinovich's and Sen. Akaka's Amendment
Division C of the legislation contains important provisions
to strengthen significantly the management of the federal
workforce government-wide that were offered at the
Committee's business meeting by Senators Voinovich and Akaka,
and were agreed to by the Committee by voice vote.
The Voinovich-Akaka amendment establishes a chief human
capital officer (CHCO) at each major agency (i.e., at the
agencies required to have Chief Financial Officers under the
CFO Act). The primary responsibility is to advise and assist
their respective directors in selecting, developing,
training, and managing a high-quality workforce. The creation
of a CHCO is intended to help identify and prioritize the
recruitment, retention, and workforce management needs across
the government. The CHCO will have added importance in the
new Department, because consolidation of the different
agencies into the Department will pose unique recruitment,
retention, training, and workforce management challenges. The
CHCO will heighten awareness of workforce issues and provide
leadership in resolving these issues.
Another section of the Voinovich-Akaka provision, Section
2202 in the GAC-endorsed legislation, allows agencies to hire
candidates directly and bypass the current civil-service
hiring requirements once the Office of Personnel Management
has determined that there is a severe shortage of candidates
for the position. This provision also allows agencies to
streamline its staffing procedures by authorizing more
flexible merit assessment tools. This will make the
government more competitive with the private sector by
improving the federal hiring process.
The Voinovich-Akaka provisions include government-wide
authority for Voluntary Separation Incentive Payments and
Voluntary Early Retirement Authority, two programs
currently allowed only in limited situations. The
expansion of this authority would give agencies the
flexibility required to reorganize the workforce should an
agency need to undergo substantial consolidation, transfer
of functions, or other substantial workforce reshaping.
The provision would allow agencies to reduce high-grade,
managerial, or supervisory positions, correct skill
imbalances, and reduce operating costs without being
forced to reduce overall staff levels.
The Voinovich-Akaka proposal increases the cap on the total
annual compensation of senior executives, Administrative Law
Judges, officers of the court, and other senior level
positions to allow career executives to receive performance
awards and other authorized payments within the cap in a
single year. This will enable agencies to better reward
excellence in the ranks of the most senior and experienced
parts of the workforce. It also includes measures to help
federal employees earn academic degrees, a step that will
help enable agencies to build a highly trained workforce and
retain valuable employees who wish to continue their
education. To fill the serious gap in foreign language skills
across the federal government, which is a particular homeland
security problem, Section 2402 eases the restrictions on
placement of National Security Education Program (NSEP)
fellows who are proficient in languages critical to our
national security. The provision would allow NSEP fellows to
work in a non-national security position in the federal
government, including a homeland security position, if a
national security position is not available.
These authorities complement the flexible authority in
Section 135 enabling the Science and Technology Directorate
to attract outstanding scientists and technologists.
All these detailed and carefully considered personnel
provisions provide the Administration with a major management
opportunity and flexibility.
It is our responsibility to ensure that Federal agencies
with a role in homeland security can purchase--quickly and
efficiently--the most high-tech and sophisticated products
and services to support antiterrorism efforts and to defend
against biological, chemical, nuclear, or radiological
attacks. Last year's National Defense Authorization Act
provided the Department of Defense with many of these
authorities. Title V of this bill
[[Page S8168]]
provides to other Federal agencies--including the new
Department--emergency contracting authority which is already
in place for the Department of Defense. This measure also
provides certain new contracting flexibility to these
agencies, including raising the threshold amount for
contracts carried out in the United States to $250,000 and
raising the threshold amount for contracts outside the United
States to $500,000. Title V also raises the micro-purchase
(purchase card) threshold to $10,000.
Title V would give Federal agencies new procurement
flexibility in fighting terrorism. It would streamline
procurement procedures for contingency operations or
peacekeeping and humanitarian operations; permit agencies to
use more "commercial-style" contracting procedures for
technologies or products which are cutting-edge; and require
agencies to do ongoing market research to identify new
companies, including small businesses, with new capabilities
to help agencies in the fight against terrorism.
Title V also requires that the Comptroller General complete
a review of the extent to which procurements and services
have been made in accordance with this subtitle and submit a
report on the results of the review.
There is a one year sunset for these provisions.
This authority complements the flexible procurement
authority in Section 135 concerning R&D and technology
prototyping.
The Committee-approved legislation authorizes the Secretary
to hire experts and consultants, in accordance with existing
law, for periods of up to one year and subject to a pay cap
equivalent to the GS-15 level. However, the amendment
provides additional hiring flexibility to the Secretary by
expanding his authority under current law if necessary to
meet urgent homeland security needs. In such cases, the
Secretary may obtain personal services, including those of
experts or consultants, for periods not to exceed one year
without a ceiling on the amount of compensation that may be
paid to those individuals. These provisions will allow the
Secretary to meet critical needs of the Department by
securing the services of individuals with specialized
experience and expertise.
During the Cold War, Presidents acquired the power to take
away--by executive order--the collective bargaining rights of
particular agencies or subdivisions when he determines that
national security is at stake. Agency managers may also
remove from collective bargaining individual employees
engaged in certain kinds of work directly affecting national
security, subject to review by the independent Federal Labor
Relations Authority (FLRA).
Most of the tens of thousands of employees that will make
up the new Department will be transferred from existing
federal agencies, and the Congressional Research Service
estimates that about 43,000 (mostly in the Customs Service,
the INS, the Coast Guard and FEMA) are now represented by
unions. Thus far, no President--including President Bush--has
tried to deny collective bargaining rights to these workers.
Nevertheless, these existing employees are fearful they will
lose their collective bargaining rights simply by virtue of
being transferred to a department organized around a mission
of homeland security--even if their duties remain
substantially the same.
The Committee-approved legislation seeks to provide these
employees some reassurance. It provides that, for offices and
employees transferred into the Department with pre-existing
rights to unionize, those rights may not be withdrawn on an
office-wide basis by executive order. However, the
legislation still provides the Administration ample authority
to remove collective bargaining rights if national security
is at issue. These rights can be withdrawn from individual
employees if their primary job duty materially changes and
consists of intelligence, counterintelligence, or
investigative duties related to terrorism investigation and
their membership in a collective-bargaining unit would
adversely affect national security. If so, following existing
procedures, Department managers may remove employees from
collective bargaining immediately upon determining that such
action is warranted, subject to review by the FLRA. Thus, for
the employees of offices transferred to the Department with
existing rights to form a union, the Committee-endorsed
legislation allows the Administration to immediately take
employees out of collective bargaining to protect national
security, but requires the Administration to state clear
reasons for doing so and allows for due process review.
Furthermore, with respect to newly created offices at the
Department, the legislation retains the President's authority
to remove collective bargaining rights from an entire office
by executive order, if the primary function of the office is
intelligence, counterintelligence, or investigative
duties directly related to terrorism investigation, and if
collective bargaining rights cannot be applied consistent
with national security.
It is important to remember that bargaining rights of
Federal employees are very limited compared to the private
sector. Federal employees have no right to strike. Most have
their salary and benefits set in statute. And they may not
bargain over, or agree to, anything that would affect
managers' statutory prerogatives, which include hiring,
firing, assigning personnel and work, as well as taking any
necessary action during an emergency.
The Committee-approved legislation provides that any
construction work financed by assistance under this
legislation will be subject to the Davis-Bacon Act, which
requires the payment of prevailing wages. The prevailing wage
under Davis-Bacon means the local average wage, as determined
by the Secretary of Labor.
The Davis-Bacon Act itself applies to federal construction
contracts, and, in addition, Davis-Bacon requirements have
been incorporated into more than 50 program statutes that
provide assistance to non-federal parties for construction.
For example, federal assistance programs that apply Davis-
Bacon requirements include: a variety of transportation
construction grant programs (including interstate highways,
mass transportation, airport improvement); FEMA emergency
preparedness grants; various environmental programs
(including drinking and waste water treatment, and Superfund
cleanup).
Like these other statutes, the Committee-endorsed
legislation would require the payment of prevailing wages in
any construction supported by assistance under this
legislation. For example, under the Emergency Preparedness
Enhancement Pilot Program under section 153, the Department
may award grants for the deployment of innovative emergency
preparedness technologies. If such a grant is used for
construction, the contractor would have to pay the prevailing
wage. Section 194 would not affect grant programs that are
not under this legislation, even if administered by the
Department, however. For example, under the Stafford Act,
Davis-Bacon applies to FEMA grants for emergency
preparedness, but not to FEMA's grants for disaster relief.
Thus, disaster relief under the Stafford Act will remain
exempt from Davis-Bacon even after FEMA and its disaster-
relief functions are transferred to the new Department.
At the request of Senator Thompson, the legislation
incorporates the text of S. 2530, granting some law
enforcement authorities to certain Inspectors General. That
bill was reported out of the Governmental Affairs Committee
on June 25, 2002. Briefly, the proposal amends the Inspector
General Act to authorize certain IG officers to carry a
firearm or make an arrest in certain instances while engaged
in official duties as authorized by this Act or other
statute, or by a request from the Attorney General, and to
seek and execute warrants under the authority of the United
States upon probable cause that a violation has been
committed. A full description of the proposal and its
legislative history can be found in the accompanying
Committee report, No. 107-176.
The GAC-endorsed legislation will ensure that information
systems are effectively deployed in the new Department and
government-wide. Improved management of information resources
is a vital aspect of enhanced homeland security. Federal
agencies have deployed information systems in stovepipes,
with little thought given to interoperability with the
systems of other agencies. Interoperable information systems
would allow for efficient sharing of data and better
communications between agencies responsible for intelligence
gathering, border security, crisis response, and other
homeland security missions. Agencies vital to homeland
security are also plagued by poor information security and
outdated technologies. These management challenges need to be
addressed both within the new Department and government-wide.
The legislation contains several new provisions that impose
general mandates and establish accountability mechanisms with
respect to information systems within the Department. The
Secretary is required to direct the acquisition and
management of the Departments information resources,
including the information systems of agencies being
transferred into the Department. In ensuring proper
Department-wide management, the Secretary will be assisted by
the Chief Information Officer. The Secretary is responsible
for making the Department's information systems effective,
efficient, secure, and interoperable, and will report to
Congress on the implementation of an enterprise architecture
for the Department. The CIO will work closely with the Under
Secretary for Science and Technology on the development,
testing, and deployment of new IT technologies.
The need for more effective cooperation between agencies
such as the FBI, CIA, Department of State, and INS has become
obvious, yet poorly developed information systems are getting
in the way when technology should be enhancing agencies'
effectiveness. The federal government has barely addressed
the inability of agencies to link up their information
systems. Pursuant to language proposed by Sen. Durbin, the
legislation requires the OMB Director to develop a
comprehensive enterprise architecture for information systems
of agencies related to homeland security, and to make sure
agencies implement the plan. The architecture and resulting
systems must be designed so that they can achieve
interoperability between federal agencies responsible for
homeland defense, that they are capable of being deployed
quickly and upgraded with improved technologies, and that
effective information security is maintained. The OMB
Director and the Secretary will also facilitate improved
interoperability between information systems of Federal,
State and local agencies responsible for homeland defense.
Enterprise architectures require systematically thinking
through the relationship
[[Page S8169]]
between operations and underlying information technologies.
Used increasingly by industry and some governments, they can
reduce redundancies, modernize operations, and improve
program performance.
The Committee-approved legislation includes a key
compromise on the public disclosure of certain sensitive
information that may be submitted to the Department--one that
thoughtfully balances the public's right to know and the
legitimate security concerns of private entities that may
share information with the Department. Specifically, the
legislation provides that records pertaining to the
vulnerability of--and threats to--critical infrastructure
that are voluntarily furnished to the Department and that are
not customarily made public by the provider, are not subject
to public disclosure under the Freedom of Information Act.
Furthermore, the provision would not limit the disclosure of
a record used to satisfy a legal obligation or to obtain a
permit or other government approval, or received by
another Federal, State, or local agency independently of
the Department.
Senators Bennett and Levin offered this provision at the
business meeting. The language of the provision had also been
developed in conjunction with the Chairman of the Judiciary
Committee, Senator Leahy. Senator Bennett explained to the
Committee that the amendment addresses the concerns of three
groups--the federal government, which wants to receive
information from the private sector in order to better
understand and address vulnerabilities and threats to
critical infrastructure; the private sector, which has said
it would like to help the government, but not if it would be
disadvantaged by disclosure of sensitive information; and the
public-access and environmental communities, which did not
want public access diminished to information that is of
importance to the public. Senators Bennett and Levin told the
Committee that all three of these interested groups found the
amendment acceptable. Senator Bennett further reported that
the Administration had examined the provision and supported
it as well.
To safeguard against the erosion of non-security programs
within the transferred entities, the revised legislation
establishes a reporting requirement designed to monitor the
performance of non-homeland security missions by entities
transferred to the Department--pursuant to an amendment by
Senators Akaka and Carper. For each of the first five years
after a program or agency is transferred to the Department,
the relevant Under Secretary must report to the Secretary,
the Comptroller General, and Congress regarding the
performance of that entity, with particular emphasis on non-
homeland security missions. These reports shall seek to
inventory non-homeland security capabilities, including the
personnel, budgets, and flexibilities used to carry out those
functions. The reports shall include information regarding
whether any changes are required to enable the transferred
entities to continue to carry out non-homeland security
missions without diminishment. Under another provision, the
Comptroller General is also required to submit reports to
Congress that include an evaluation of how successfully the
Department is meeting homeland security and other missions.
Firefighters
The legislation includes an amendment by Senators Carnahan
and Collins to provide federal assistance to local
communities to hire additional firefighters, who clearly play
a critical first responder role for terrorist threats. The
amendment amends the Federal Fire Prevention and Control Act
of 1974 to authorize the Director of FEMA to award 3-year
grants to local communities to hire additional firefighters.
It would fund 75% of a firefighter's salary and benefits over
three years. Communities applying for grants under the
program would be required to present a plan for how they will
fund the position at the conclusion of the third year. The
three-year cost is capped at $100,000 per fire fighter. The
amendment authorizes $1 billion for FY 2003 and FY 2004 for
this program. If fully appropriated, the amendment would
provide funding for as many as 10,000 new firefighters each
year, able to play a vital role in terrorism response.
The amendment addresses a critical and urgent need. Federal
programs currently exist to fund training and equipment for
firefighters and other first responders, and more funding for
these needs has been proposed in response to the events of
September 11. However, no Federal funds have been made
available to fund personnel even though the staffing shortage
in the nation's fire departments has reached crisis
proportions. Two-thirds of all fire departments do not have
adequate staffing, falling below the accepted industry
consensus standards developed by the National Fire Protection
Association. According to the International Association of
Firefighters, most fire departments are not able to comply
with OSHA's "two-in/two-out" standard for safe fire ground
operations. These standards require that if two firefighters
enter a dangerous environment, there must be at least two
firefighters stationed outside to perform a rescue operation
if needed.
The International Association of Fire Chiefs estimates that
75,000 additional fire fighters are needed to bring fire
department staffing up to minimally acceptable levels for
safety and effective response. In addition, investigations
into firefighter fatalities conducted by the National
Institute for Occupational Safety and Health (NIOSH) over the
past decade have consistently identified inadequate staffing
as either the primary cause or a significant contributing
factor to the death of the firefighter. Clearly, without
additional assistance, our firefighters' lives are being
jeopardized.
The Carnahan/Collins amendment reflects broad consensus
that in order to protect the public against acts of terrorism
and other dangers, the nation's fire departments must have
adequate personnel, training, and equipment. One of the major
purposes of the Department will be to assess and advocate for
the resource needs of State and local governments. The need
for more firefighters has already been well documented and
thus it is appropriate that this issue be addressed now.
The amendment includes an amendment offered by Senators
Carper and Torricelli that authorizes funding for Amtrak to
finance system-wide safety and security, make life safety
improvements to critical rail tunnels, and help ensure Amtrak
has adequate fleet capacity in the event of a national
security emergency. This funding is authorized to be
appropriated to the Department over two years for Amtrak and
will remain available until obligated.
Pursuant to an amendment by Sen. Durbin, the GAC-endorsed
legislation would require the Secretary to enter into an
agreement with and provide funding to the National Academy of
Sciences to conduct a detailed and comprehensive review of
Federal statutes and regulations affecting the safety and
security of the food supply and to review the efficiency and
effectiveness of the organizational structure of Federal food
safety oversight. It requires the Academy to report its
findings, conclusions, and recommendations, to Congress not
later than 1 year after enactment of this Act and spells out
the issues that must be addressed in the report. The
Secretary must provide Congress and the President with a
response to the recommendations.
Pursuant to amendment offered by Senator Akaka, for himself
and Senator Levin, the legislation would extend whistleblower
protections to airport security screeners. For baggage
screeners who are federal employees, the legislation would
extend the same whistleblower protections as apply generally
to federal employees. They are protected against retaliation
for coming forward with information about a violation of law,
rule, or regulation; mismanagement; waste; abuse; or a danger
to health or safety. For airport screening personnel who are
not federal employees, the bill provides the same
whistleblower protections as apply to air carrier personnel.
They are protected against retaliation for coming forward
with information about a violation relating to air carrier
safety.
Mr. President, I ask unanimous consent to have printed in the Record
a section-by-section analysis and a letter dated August 28, 2002.
____
Legislation to Establish a Department of Homeland Security and the
National Office for Combating Terrorism as Supported by Bipartisan Vote
of the Senate Governmental Affairs Committee
Sec. 1. Short Title. This Act may be cited as the
"National Homeland Security and Combating Terrorism Act of
2002."
Sec. 2. Outlines the organization of the Act into 3
divisions: (A) National Homeland Security and Combating
Terrorism, (B) Immigration Reform, Accountability, and
Security Enhancement Act of 2002, and (C) Federal Workforce
Improvement.
Division A--National Homeland Security and Combating Terrorism
Sec. 100. Definitions. Defines terms used in Division A.
Title I. Department of Homeland Security
Subtitle A--Establishment of the Department of Homeland
Security
Sec. 101. Establishment of the Department of Homeland
Security. Establishes the Department of Homeland Security
whose mission is (1) to promote homeland security,
particularly with regard to terrorism; and (2) carry out the
other functions, and promote the other missions, of entities
transferred to the Department as provided by law. The
homeland security mission includes preventing terrorist
attacks or other homeland threats within the United States;
reducing the vulnerability of the United States; and
minimizing the damage, and assisting in the recovery, from
terrorist attacks or other natural or man-made crises within
the United States.
Sec. 102. Secretary of Homeland Security. States that the
Secretary of Homeland Security shall be appointed by the
President and confirmed by the Senate. This section outlines
the Secretary's broad responsibilities for developing
policies, goals, objectives, priorities and plans for the
promotion of homeland security, which include: developing a
national strategy with the Director of the National Office
for Combating Terrorism (established in Titles II and III),
and advising the Director on the development of a
comprehensive budget for programs under the strategy. The
Secretary is also responsible for including State and local
governments and other entities into the full range of
homeland security activities; consulting with the Secretary
of Defense and State governors regarding integration of the
United States military, including the National Guard, into
all aspects of the strategy and
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its implementation, including detection, prevention,
protection, response and recovery, as well as training of
personnel to respond to terrorist attacks involving chemical
or biological agents; and developing an enterprise
architecture for Department-wide information technology. In
addition, the Secretary is responsible for administering the
Homeland Security Advisory System and for annually reviewing
and updating the Federal Response Plan for homeland security
and emergency preparedness.
Sec. 102--subsection (c). Visa Issuance. Vests in the
Secretary authority to issue regulations with respect to
visas and other immigration and nationality laws implemented
by consular officers. The Secretary is also authorized to
assign employees of the Department to diplomatic and consular
posts to advise consular officers regarding specific security
threats relating to the adjudication of visa applications,
review applications, and investigate matters under the
jurisdiction of the Secretary. The Secretary of State may
direct a consular officer to refuse a visa in the foreign
policy or security interests of the United States.
Sec. 102--subsection (d). Amends the National Security Act
to include the Secretary as a member of the National Security
Council.
Sec 103. Deputy Secretary. Establishes a Deputy Secretary
for Homeland Security, appointed subject to Senate
confirmation, responsible for assisting the Secretary in the
administration and operations of the Department.
Sec. 104. Under Secretary for Management. Establishes an
Under Secretary for Management, appointed subject to Senate
confirmation, who will be responsible for the management and
administration of the Department, including the budget and
appropriations, procurement, human resources and personnel,
information technology, facilities and property, and other
functions.
Sec. 105. Assistant Secretaries. Establishes not more than
5 Assistant Secretaries, appointed subject to Senate
confirmation. When submitting the name of an individual to
the Senate for confirmation, the President shall describe the
general responsibilities that the appointee will exercise
and, subject to that, the Secretary shall assign each
Assistant Secretary such functions as the Secretary considers
appropriate.
Sec. 106. Inspector General. Provides that there shall be
an Inspector General (IG) in the Department subject to the
Inspector General Act of 1978 (5 U.S.C. App), who, under the
Inspector General Act, will be appointed subject to Senate
confirmation. The Secretary may prohibit the IG from carrying
out audits or performing other duties if the Secretary
determines it necessary to prevent the disclosure of certain
sensitive information, preserve national security, or prevent
significant impairment to the national interest. The IG must
notify Congress when the Secretary exercises these powers.
The IG also shall have oversight over internal investigations
performed by any other investigatory offices where they exist
in the Department's subagencies. The Inspector General shall
also designate one official to review information and receive
complaints alleging abuses of civil rights and civil
liberties by employees and officials of the Department;
publicize information on the responsibilities and functions
of the official; and submit semi-annual reports to Congress
describing the implementation of this section. (The civil
rights language parallels a USA Patriot Act provision
requiring the designation of a similar official in the
Justice Department's IG office.)
Sec. 107. Chief Financial Officer. Establishes a Chief
Financial Officer (CFO), appointed subject to Senate
confirmation.
Sec. 108. Chief Information Officer. Establishes a Chief
Information Officer (CIO) to assist the Secretary with
Department-wide information resources management.
Sec. 109. General Counsel. Establishes a General Counsel,
appointed subject to Senate confirmation, to serve as the
chief legal officer of the Department.
Sec. 110. Civil Rights Officer. Establishes a Civil Rights
Officer, appointed by the President and confirmed by the
Senate, who shall be responsible for, among other duties,
ensuring compliance with all civil rights laws and
regulations applicable to Department employees and
participants in Department programs and overseeing compliance
with statutory and constitutional requirements related to the
civil rights of individuals affected by the Department's
programs and activities.
Sec. 111. Privacy Officer. Establishes a Privacy Officer,
appointed by the Secretary, who will oversee compliance with
the Privacy Act and other applicable laws relating to the
privacy of personal information. The Privacy Officer will
assist the Department with the development and implementation
of policies and procedures to ensure that privacy
considerations and safeguards are incorporated and
implemented in programs and activities; and that information
is handled in a manner that minimizes the risks of harm to
individuals from inappropriate disclosure.
Sec. 112. Chief Human Capital Officer. States that the
Secretary shall appoint or designate a Chief Human Capital
Officer to advise and assist the Department on workforce
skills, training, recruitment, retention, and other issues
necessary to attract and retain a highly qualified workforce.
Sec. 113. Office of International Affairs. Creates Office
of International Affairs within the Office of the Secretary,
headed by a Director, who shall be responsible for: promoting
information and education exchange with foreign nations,
including joint research and development on countermeasures,
joint training exercises of first responders, and exchange of
expertise on terrorism prevention, response and crisis
management; planning international conferences, exchange
programs and training activities; and managing international
activities within the Department in consultation with the
Department of State and other relevant Federal officials. The
Director shall initially concentrate on fostering cooperation
with countries that are already highly focused on homeland
security issues and have been cooperative with the United
States in the area of counterterrorism.
Sec. 114. Executive Schedule Positions. Establishes the
Executive Schedule levels for the Secretary, Deputy
Secretary, Under Secretaries, Assistant Secretaries, and
other senior officers.
Subtitle B--Establishment of Directorates and Offices
Sec. 131. Directorate of Border and Transportation
Protection. Establishes a Directorate of Border and
Transportation Protection which shall be headed by an Under
Secretary who is appointed by the President with the advice
and consent of the Senate. The Directorate shall be
responsible for securing borders, territorial waters, ports,
waterways, air, land, and sea transportation systems,
including coordinating governmental activities at ports of
entry. It shall also be responsible for using intelligence to
establish inspection priorities for agricultural products and
livestock from locations suspected of terrorist activities,
harboring terrorists, or of having unusual human health or
agriculture disease outbreaks. In addition, it shall provide
agency-specific training for agents and analysts from within
the Department, other agencies, State and local agencies and
international entities that have partnerships with the
Federal Law Enforcement Training Center. Authorities,
functions, personnel, and assets are transferred from the
Customs Service, which shall be maintained as a distinct
entity; the Coast Guard, which shall also be maintained as a
distinct entity and shall report directly to the Secretary;
that portion of the Animal Plant and Health Inspection
Service of the Department of Agriculture which administers
laws relating to agricultural quarantine inspections at
points of entry; the Transportation Security Administration
of the Department of Transportation; and the Federal Law
Enforcement Training Center of the Department of Treasury (a
center which provides training to law enforcement officers of
70 Federal partner agencies).
Sec. 131 subsection (d)--Exercise of Customs Revenue
Functions. Notwithstanding the transfer of authorities,
functions, personnel, and assets from the Customs Service,
the Secretary of the Treasury shall retain authority to issue
regulations governing customs revenue functions, with the
concurrence of the Secretary and with the assistance of the
Customs Service. The Customs Service is responsible for
administering and enforcing the laws regarding customs
revenue functions, which include: assessing, collecting and
refunding duties, taxes and fees on imported goods;
administering import quotas and labeling requirements;
collecting import data needed to compile international trade
statistics; and administering reciprocal trade agreements and
trade preference legislation. These regulations will be
administered by the Secretary. Within 60 days, the Secretary
of the Treasury will submit recommendations to Congress
regarding the appropriate allocation of legal authorities
relating to these functions.
Sec. 131 subsection (e)--Preserving Coast Guard Mission
Performance. Preserves the structural and operational
integrity of the Coast Guard, the authority of the
Commandant, the non-homeland security missions of the Coast
Guard and the Coast Guard's capabilities to carry out these
missions even as it is transferred to the new Department. The
Coast Guard must be maintained intact and without reduction
after transfer to the Department unless Congress legislates
otherwise. No missions, functions, personnel or assets may be
controlled by, or diverted to the principal and continuing
use of any other part of the Department. The Secretary may
not make a substantial change to the Coast Guard's non-
security missions or capabilities without prior Congressional
approval by statute. However, the President may waive this
restriction for up to 90 days if he certifies to Congress
that there is a clear, compelling and immediate state of
national emergency. None of these conditions shall apply when
the Coast Guard operates as a service in the Navy under
section 3 of title 14, United States Code.
The Coast Guard will report directly to the Secretary. The
Inspector General of the Department will conduct an annual
review to assess the Coast Guard's performance,
particularly with respect to non-security missions.
Sec. 132. Directorate of Intelligence. Establishes a
Directorate of Intelligence, headed by an Under Secretary
appointed by the President by and with the advice and consent
of the Senate. The Directorate shall serve as a national-
level focal point for the analysis of information available
to the United States Government relating to the plans,
intentions, and capabilities of terrorists and terrorist
organizations for the purpose of supporting the mission of
the Department. The Directorate shall communicate,
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coordinate, and cooperate with the intelligence community and
other agencies as determined by the Secretary. The Director
of Central Intelligence's Counterterrorist Center shall have
primary responsibility for the analysis of foreign
intelligence relating to international terrorism. The
Directorate of Intelligence may conduct supplemental analysis
of foreign intelligence relating to threats of terrorism
against the United States.
In general, the Directorate shall be responsible for
receiving and analyzing law enforcement information,
intelligence and other information to detect and identify
specific threats of terrorism; working with the Director of
Central Intelligence and the intelligence community to
establish overall intelligence priorities; requesting
additional information; disseminating information to other
entities, including state and local law enforcement, to
assist in deterring, preventing and responding to terrorism
and other threats; establishing, in conjunction with other
appropriate officials, secure communications and information
technology infrastructure, and advanced analytical tools; and
ensuring that all material received by the Department is
protected against unauthorized disclosure and handled
consistent with the authority of the Director of Central
Intelligence to protect sources and methods, and similar
authorities of the Attorney General concerning sensitive law
enforcement information. The Directorate is also responsible
for providing training and other support to providers of
information to the Department or consumers of information
from the Department; and making recommendations to the
Secretary for improving policies and procedures governing
sharing of law enforcement, intelligence, and other
information within the Federal government and between the
Federal government and state and local governments and law
enforcement agencies. The Directorate shall be staffed, in
part, by analysts via reimbursable detail from agencies of
the intelligence community.
Sec. 132 subsection (c)--Access to Information. Provides
that, unless otherwise directed by the President, the
Secretary shall have access to, and agencies shall provide,
all reports, assessments, analytical information, and
information, including unevaluated intelligence, relating to
the plans, intentions, capabilities, and activities of
terrorist organizations and to other areas of responsibility
that may be collected, possessed, or prepared by any other
United States government agency. As the President may further
provide, the Secretary shall receive additional information
requested by the Secretary. The Secretary may enter into
cooperative agreements with agencies, and regardless of
whether the Secretary has entered into any such cooperative
agreement, all agencies shall promptly provide information to
the Secretary.
Sec. 132 subsection (e)--Additional Responsibilities. The
Under Secretary for Intelligence is also responsible for
developing analyses concerning the means terrorists might
employ to exploit vulnerabilities in homeland security
infrastructure; developing and conducting experiments, tests
and inspections to test weaknesses in homeland defenses;
developing and practicing counter-surveillance techniques to
prevent attacks; conducting risk assessments to determine the
risk posed by specific kinds of terrorist attacks; and
working with the Directorate of Critical Infrastructure
Protection, other agencies, State and local governments, the
private sector and local law enforcement and intelligence
agencies to address vulnerabilities.
Sec. 133. Directorate of Critical Infrastructure
Protection. Establishes a Directorate of Critical
Infrastructure Protection which shall be headed by an Under
Secretary who is appointed by the President with the advice
and consent of the Senate. Among other duties, the
Directorate shall be responsible for: receiving relevant
intelligence from the Directorate of Intelligence, law
enforcement information and other information to
comprehensively assess the vulnerabilities of key resources
and critical infrastructures; identifying priorities and
supporting protective measures by the Department and other
entities; developing a comprehensive national plan for
securing key resources and critical infrastructure (as part
of the National Strategy described in Title III);
establishing specialized research and analysis units to
identify vulnerabilities and protective measures in key areas
of critical infrastructure, as well as other systems or
facilities whose destruction or disruption could cause
substantial harm to health, safety, property, or the
environment; enhancing and sharing of information regarding
cyber-security and physical security, developing security
standards, tracking vulnerabilities, proposing improved risk
management policies, and delineating the roles of various
governmental agencies in preventing, defending, and
recovering from attacks; and working with the Department of
State and other appropriate agencies to help establish cyber
security policy, standards and enforcement mechanisms. The
Directorate will also be responsible for establishing the
necessary organizational structure to provide leadership and
focus on both cyber-security and physical security, and
ensuring the maintenance of a nucleus of cyber and physical
security experts in the United States Government.
The authorities, functions, personnel and assets of the
following offices are transferred to the Department: (1) the
Critical Infrastructure Assurance Office of the Department of
Commerce, (established by Presidential Decision Directive 63
in 1998 to coordinate federal initiatives on critical
infrastructure); (2) The National Infrastructure Protection
Center of the Federal Bureau of Investigation (other than the
Computer Investigations and Operations Section); (3) the
National Communications System of the Department of Defense
(established by Executive Order in 1984 to assist the
President and others in (a) the exercise of
telecommunications functions and (b) coordinating the
planning for and provision of national security and emergency
preparedness communications); (4) the Computer Security
Division of the National Institute of Standards and
Technology (NIST) of the Department of Commerce (the NIST
division that is tasked with improving information systems
security); (5) The National Infrastructure Simulation and
Analysis Center of the Department of Energy (established to
serve as a source of national competence to address critical
infrastructure protection and continuity through support for
activities related to counterterrorism, threat assessment,
and risk mitigation); (6) The Federal Computer Incident
Response Center of the General Service Administration (a
partnership of computer incident response, security, and law
enforcement personnel to share information on and handle
computer security incidents); (7) The Energy Security and
Assurance Program of the Department of Energy (a national
security program to help reduce America's energy supply
vulnerability from severe disruptions due to natural or
malevolent causes); and (8) The Federal Protective Service
of the General Services Administration (GSA) (which
oversees security at Federal property managed by GSA).
Sec. 134. Directorate of Emergency Preparedness and
Response. Establishes a Directorate of Emergency Preparedness
and Response which shall be headed by an Under Secretary
appointed by the President and confirmed by the Senate. Among
other duties, the Directorate shall be responsible for
carrying out Federal emergency preparedness and response
activities; providing State and local authorities with
equipment for detection, protection, and decontamination in
an emergency involving weapons of mass destruction;
overseeing Federal, State and local emergency preparedness
training and exercise programs; developing and managing a
single response system for national incidents; managing and
updating a Federal disaster response plan; using the
resources of both human and animal health communities in
emergency planning and response activities; creating a
National Crisis Action Center to coordinate Federal support
for State and local governments and the private sector in a
crisis; coordinating and integrating operational activities
of the Department of Defense, the National Guard, and other
Federal agencies into the Federal response plan; managing, in
consultation with the Under Secretary of Science and
Technology and the Centers for Disease Control, the Select
Agent Registration Program; overseeing the Centers for
Disease Control's management of the Strategic National
Stockpile of drugs, biologics, and devices, which is
transferred to the Department; and developing a comprehensive
plan to address the interface of medical informatics and the
medical response to terrorism.
The authorities, functions, personnel and assets of the
following entities are transferred: the Federal Emergency
Management Agency; the National Office of Domestic
Preparedness of the Federal Bureau of Investigation of the
Department of Justice (created by the Attorney General in
1998 to coordinate and facilitate federal efforts to assist
state and local emergency responders with training and
materials necessary to respond to an event involving weapons
of mass destruction); the Office of Domestic Preparedness of
the Department of Justice (developed to assist in the
training of state and local law enforcement agencies to
respond to terrorist incidents); the Office of Emergency
Preparedness within the Office of the Assistant Secretary for
Public Health Emergency Preparedness of the Department of
Health and Human Services (HHS) (responsible for coordinating
HHS efforts to plan and prepare for a national response to
medical emergencies arising from the use of weapons of mass
destruction); the Strategic National Stockpile of the
Department of Health and Human Services; and the functions of
the Select Agent Registration Program (HHS) and the United
States Department of Agriculture (USDA) (a program designed
to identify all biological agents and toxins that have the
potential to pose severe threats to public health and safety,
regulate the transfer of such agents and toxins, and
establish a registration scheme regulating their possession,
use and transfer).
Sec. 135. Directorate of Science and Technology.
Establishes a Directorate of Science and Technology which
shall be headed by an Under Secretary appointed by the
President with the advice and consent of the Senate. The
Directorate will support the mission of the Department by (1)
managing and supporting research and development activities
to meet national homeland security needs and objectives; (2)
articulating national research and development goals,
priorities, and strategies pursuant to the mission of the
Department; (3) coordinating with entities within and outside
the Department to advance the research and development agenda
of the Department; (4) advising the Secretary of the
Department on all scientific and technical matters; and, (5)
facilitating
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the transfer and deployment of technologies crucial to
homeland security needs. To fulfill the mission of the
Directorate, the Under Secretary will be responsible for,
among other things, developing a technology roadmap
biannually for achieving technological goals relevant to
homeland security; instituting mechanisms to promote,
facilitate, and expedite the transfer and deployment of
technologies relevant to homeland security needs, including
dual-use capabilities; establishing mechanisms for sharing
research and technology developments and opportunities with
appropriate Federal, State, local, and private sector
entities; and, establishing in coordination with the
appropriate Under Secretaries, a National Emergency
Technology Guard (NET Guard) comprised of volunteers with
expertise in science and technology to assist local
communities in responding to and recovering from emergency
contingencies.
This section authorizes the Secretary to exercise certain
transactional and hiring authorities relating to research and
development and the Secretary shall have the authority to
transfer funds to agencies. Additionally, DHS will help
direct the use of bioterrorism-related funds, appropriated to
NIH, through joint strategic agreements between the Secretary
of HHS and the Secretary of DHS. Under such agreements, the
Secretary of DHS will have the authority to determine the
broad, general research priorities, while the Secretary of
HHS will have the authority to set the specific, scientific
research agenda. NIH will continue to manage and award all
funds. The Secretary is also able to contract with existing
Federally Funded Research and Development Centers (FFRDCs),
or establish such centers. This section also establishes an
Acceleration Fund, to be administered by the Security
Advanced Research Projects Agency (SARPA), to stimulate
research and development projects; the Fund is authorized to
receive an appropriation of $200,000,000 for fiscal year 2003
and such sums as are necessary in subsequent fiscal years.
Through a joint agreement with the Coast Guard, ten percent
of the Acceleration Fund is to be allocated to Coast Guard
homeland security missions for FY'04 and FY'05.
The Directorate also establishes several mechanisms to
promote research and development activities. These include:
(1) a Science and Technology Council composed of senior
research and development officials to, among other things,
provide the Under Secretary with recommendations on
priorities and strategies, and facilitate coordination among
agencies, the private sector, and academia; (2) the Security
Advanced Research Projects Agency (SARPA) to undertake and
stimulate basic and applied research, leverage existing
research and development, and accelerate the transition and
deployment of technologies; (3) an Office of Risk Analysis
and Assessment to, among other duties, conduct and commission
studies of threat assessment and risk analysis to help guide
the research priorities of the Department; (4) an Office of
Technology Evaluation and Transition to serve as the
principal clearinghouse for receiving and evaluating
proposals for innovative technologies; (5) an Office for
National Laboratories, which shall enter, on behalf of the
Department, into joint sponsorship agreements with the
Department of Energy (DOE) to coordinate and utilize the
resources and expertise of DOE national laboratories and
sites; and, (6) an Office of Laboratory Research, which
shall incorporate personnel, functions, and assets from
several programs and activities transferred from DOE that
are related to chemical and biological security, nuclear
smuggling, and nuclear assessment, as well as the National
Bio-Weapons Defense Analysis Center which is transferred
from the Department of Defense. The Office shall also
administer the disbursement and undertake oversight of
research and development funds transferred to HHS and
other agencies outside the Department, and shall have a
Science Advisor for bioterrorism. This section also
requires the Secretary to develop a comprehensive long-
term strategy and plan for engaging for-profit and other
non-Federal entities in research, development, and
production of homeland security countermeasures for
biological, chemical, and radiological weapons.
Sec. 136. Directorate of Immigration Affairs. Establishes a
Directorate of Immigration Affairs to carry out all functions
of that Directorate in accordance with Division B of the Act.
Sec. 137. Office for State and Local Government
Coordination. Establishes within the Office of the Secretary
an office to oversee and coordinate programs for and
relationships with State and local governments; assess, and
advocate for, the resources needed by State and local
governments to implement the National Strategy for combating
terrorism; provide State and local governments with regular
information, research and technical support; and develop a
process for receiving meaningful input from State and local
governments to assist in the development of the National
Strategy and other homeland security activities. The
Secretary shall appoint a Chief Homeland Security Liaison
Officer, who shall coordinate the activities of homeland
security liaison officers in each state. The officers shall
coordinate between the Department and State and local first
responders, provide training for State and local entities,
identify homeland security functions in which the Federal
role duplicates the State or local role and recommend ways to
reduce inefficiencies, and assist State and local entities in
priority setting based on discovered needs of first responder
organizations. Establishes the Interagency Committee on First
Responders, composed of the Chief Homeland Security Liaison
Officer and representatives from Federal agencies including
HHS, CDC, FEMA, Coast Guard, DoD, FBI and others, who will
ensure coordination among the Federal agencies involved with
State and local first responders, identify community-based
first responder needs, recommend new or expanded grant
programs to improve local first responder services, and find
ways to streamline support by Federal agencies for local
first responders. Also establishes the Advisory Council for
the Interagency Committee, which shall be composed of no more
than 13 members representing community-based first responders
from both urban and rural communities.
Sec. 138. United States Secret Service. Transfers the
authorities, functions, personnel and assets of the United
States Secret Service, which shall be maintained as a
distinct entity reporting directly to the Secretary.
Sec. 139. Border Coordination Working Group. Requires the
Secretary to establish a border security working group with
the Under Secretaries for Border and Transportation Security
and for Immigration Affairs. The Working Group would, with
respect to all border security functions, develop coordinated
budget requests, allocations of appropriations, staffing
requirements, communication and in other areas; coordinate
joint and cross-training programs for personnel; monitor,
evaluate and make improvements in the coverage and geographic
distribution of border security programs and personnel;
develop and implement policies and technologies to ensure the
speedy, orderly and efficient flow of lawful traffic, travel
and commerce, and enhanced scrutiny for high risk traffic,
travel and commerce; and identify systemic problems in
coordination with border security agencies and propose
changes to mitigate such problems. The Secretary shall
consult with and may include representatives of such agencies
in Working Group deliberations as appropriate.
Sec. 140. Executive Schedule Positions. Adds the
appropriate Under Secretaries within the Department to the
Executive Schedule.
Subtitle C--National Emergency Preparedness Enhancement--
The National Emergency Preparedness Enhancement Act of
2002
Sec. 151. Short Title.
Sec. 152. Preparedness Information and Education.
Establishes a Clearinghouse on Emergency Preparedness, headed
by a director, who will consult with Federal agencies, task
forces and others to collect information on emergency
preparedness, including information relevant to the Strategy.
The Clearinghouse will ensure efficient dissemination of
emergency preparedness information; establish a one-stop shop
for emergency preparedness information, including a web site;
develop an ongoing public awareness campaign, including a
theme to be implemented annually during National Emergency
Preparedness Week; and compile and disseminate information on
best practices for emergency preparedness.
Sec. 153. Pilot Program. Authorizes the Department to award
grants to private entities to pay the Federal share of the
cost of improving emergency preparedness and of educating
employees and others using the entities' facilities about
emergency preparedness. The Federal share of the cost shall
be 50 percent, up to a maximum of $250,000 per grant
recipient. There are authorized to be appropriated $5,000,000
for each of fiscal years FY 2003 through 2005 for such
grants.
Sec. 154. Designation of National Emergency Preparedness
Week. Designates each week that includes September 11 as
"National Emergency Preparedness Week" and requests that
the President issue a proclamation each year to observe the
week with appropriate programs and activities. In conjunction
with the week, the head of each Federal agency, as
appropriate, shall coordinate with the Department to inform
and educate the private sector and the general public about
emergency preparedness activities, and tools, giving a high
priority to efforts designed to address terrorist attacks.
Subtitle D--Miscellaneous Provisions
Sec. 161. National Biological and Chemical Weapons Defense
Analysis Center. Establishes within the Department of Defense
a National Biological and Chemical Weapons Defense Analysis
Center to develop countermeasures to potential attacks by
terrorists using biological or chemical weapons that are
weapons of mass destruction, and designates it for transfer
to the Department.
Sec. 162. Review of Food Safety. Requires the Secretary to
enter into an agreement with and provide funding to the
National Academy of Sciences to conduct a detailed and
comprehensive review of Federal statutes and regulations
affecting the safety and security of the food supply and to
review the efficiency and effectiveness of the organizational
structure of Federal food safety oversight. Requires the
Academy to report its findings and conclusions, and
recommendations, to Congress not later than 1 year after
enactment of this Act and prescribes the issues which shall
be addressed in the report. The Secretary is further required
to provide Congress and the President a response to the
recommendations.
Sec. 163. Exchange of Employees between agencies and State
and Local governments.
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Authorizes the Secretary to establish an employee exchange
program under existing provisions of Title 5, United States
Code to improve the coordination of antiterrorism programs
and activities between the Department and State and local
governments. An employee of the Department may be detailed to
a State or local government, and State and local government
employees may be detailed to the Department under this
program. The section requires that employees assigned under
this program have appropriate training and experience and
that the program be implemented in a manner that
appropriately safeguards classified and other sensitive
information.
Sec. 164. Whistleblower Protection for Federal Employees
Who are Airport Security Screeners. Extends to federal
employees who are baggage screeners for the Transportation
Security Agency the same whistleblower protections as apply
generally to federal employees. They are protected against
retaliation for coming forward with information about a
violation, mismanagement, waste, abuse, or a danger to health
or safety.
Sec. 165. Whistleblower Protection for Certain Airport
Employees. Extends to airport screening personnel who are not
federal employees the same whistleblower protections as apply
to air carrier personnel. They are protected against
retaliation for coming forward with information about a
violation relating to air carrier safety.
Sec. 166. Bioterrorism Preparedness and Response Division.
This section establishes a Bioterrorism Preparedness and
Response Division within the Centers for Disease Control and
Prevention. This new division will lead and coordinate the
counter-bioterrorism efforts of the CDC, as well as serve as
the focal point for coordination and communication between
the CDC and both the public health community and the
Department of Homeland Security. Additionally, this division
will train public health personnel in responses to
bioterrorism.
Sec. 167. Coordination with the Department of Health and
Human Services under the Public Health Service Act. This
section ensures that the Federal Response Plan is consistent
with Section 319 of the Public Health Service Act, which
grants the Secretary of Health and Human Services authority
to act in the event of a public health emergency.
Sec. 168. Rail Security Enhancements. Authorizes grants
over a 2-year period for the benefit of Amtrak, including
$375 million for the cost of enhancements to security and
safety of Amtrak rail passenger service; $778 million for
life safety improvements to Amtrak tunnels between New York
and Washington built between 1872 and 1910; and $55 million
for emergency repair and return to service of Amtrak
passenger cars and locomotives. This money will remain
available until expended.
Sec. 169. Grants for Firefighting Personnel. This section
amends the Federal Fire Prevention and Control Act of 1974
(15 U.S.C. 2229), as amended, to provide grants to hire
employees engaged in fire protection. Grants shall be awarded
for a 3-year period. The total amount shall not exceed
$100,000 per firefighter, indexed for inflation, over the 3-
year grant period. The Federal grant shall not exceed 75
percent of the total salary and benefits cost for additional
firefighters hired. The Director may waive the 25 percent
non-Federal match for a jurisdiction of 50,000 or fewer
residents or in cases of extreme hardship. Grants may only be
used for additional firefighting personnel, and shall not be
used to supplant funding allocated for personnel from State
and local sources. $1,000,000,000 is authorized for each of
fiscal years 2003 and 2004 for grants under this subsection.
Sec. 170. Review of Transportation Security Enhancements.
Requires the Comptroller General to prepare and submit a
report to Congress within one year that reviews all available
intelligence on terrorist threats against aviation, seaport,
rail and transit facilities; reviews all available
information on the vulnerabilities of such facilities; and
reviews the steps taken by agencies since September 11 to
improve security at such facilities to determine the
effectiveness of those measures at protecting passengers and
transportation infrastructure from terrorist attack. The
report shall also include proposed steps to reduce
deficiencies found in aviation, seaport, rail and transit
security, and the costs of implementing those steps. Within
90 days after the report is submitted to the Secretary, the
Secretary shall provide to Congress and the President the
Department's response to the report and its recommendations
to further protect passengers and infrastructure from
terrorist attack.
Sec. 171. Interoperability of Information Systems. Requires
the Director of the Office of Management and Budget, in
consultation with the Secretary, to develop an enterprise
architecture to achieve interoperability among information
systems of federal agencies with responsibility for homeland
security, and to establish timetables for implementation. The
Director will ensure the implementation of the architecture
by federal agencies, and report to Congress on progress
achieved. The architecture must be designed so that
information systems can be deployed rapidly and upgraded with
new technologies, and must be highly secure. The section also
requires the Director, in consultation with the Secretary, to
develop a plan to achieve interoperability among the
information systems of federal, state, and local agencies
with responsibility for homeland security, and to report
to Congress on progress achieved.
Sec. 172. Extension of Customs User Fees. Extends customs
user fees by six months to March 31, 2004. The two fees
covered include the merchandise processing fee and a fee on
passengers and conveyances.
Subtitle E--Transition Provisions
Sec. 181. Definitions. Defines the term "agency," for
purposes of subtitle E, to include any entity, organizational
unit, or function transferred or to be transferred under this
title. Defines the term "transition period" to mean the 12-
month period beginning with the effective date of Division A.
Sec. 182. Transfer of Agencies. Provides that the transfer
of an agency to the Department shall occur when the President
directs, but in no event later than the end of the transition
period.
Sec. 183. Transitional Authorities. Provides that until an
agency is transferred, existing officials shall provide the
Secretary such assistance as he may request in preparing for
the integration of the agency into the Department and may
detail personnel to assist with the transition on a
reimbursable basis. During the transition period the
President may designate any officer who has been confirmed by
the Senate, and who continues as such an officer, to act
until the office is filled, subject to the time limits in the
Vacancies Act. A Senate-confirmed officer of an agency
transferred to the Department may be appointed to a
Departmental office with equivalent authorities and
responsibilities without being again confirmed by the Senate
for the new position.
Sec. 184. Incidental Transfers and Transfer of Related
Functions. The Director of OMB, in consultation with the
Secretary, may make additional incidental transfers of
personnel and assets. Also, at any time an agency is
transferred to the Department, the President may transfer any
agency established to carry out or support adjudicatory or
review functions in relation to the transferred agency.
However, the President would not be authorized to transfer
the Executive Office of Immigration Review in the Justice
Department under this section. The transfer of an agency that
is part of a department will include the transfer of related
secretarial functions to the new Secretary of Homeland
Security.
Sec. 185. Implementation Progress Reports and Legislative
Recommendations. Provides that the Secretary shall prepare
and submit to Congress a series of Implementation Progress
Reports. The initial report is due not later than 6 months
after the date of enactment. Additional reports are due every
six months until the final report which will be due not later
than 6 months after the transfer is completed.
Sec. 185 subsection (c)--Contents. This subsection
specifies the information to be provided. Reports will
describe the steps needed to transfer and incorporate
agencies into the Department, a timetable, and a progress
report on meeting the schedule. Reports will also include
information workforce planning, information technology
matters, and other matters necessary for the successful
implementation of the transition.
Sec. 185 subsection (d)--Legislative Recommendations. Calls
upon the Secretary to submit recommendations for legislation
that the Secretary determines necessary as part of each semi-
annual implementation progress report. If the legislative
recommendations are ready sooner, the bill specifically
invites the Secretary to submit them in advance of the
balance of the report. The Secretary is to provide
recommended legislation that would, among other things,
facilitate the integration of transferred entities into the
Department; reorganize within the Department, or provide the
Secretary additional authority to do so; address inequities
in pay or other terms and conditions of employment; enable
the Secretary to engage in essential procurement; and
otherwise help further the mission of the Department.
Sec. 186. Transfer and Allocation. Provides that, except
where otherwise provided in this title, personnel employed in
connection with, and the assets, liabilities, contracts,
property records, and any unexpended balance on
appropriations, authorizations, allocations and other funds
related to the functions and entities transferred, shall be
transferred to the Secretary as appropriate, subject to the
approval of the Director of the Office of Management and
Budget and subject to applicable laws on the transfer of
appropriated funds. Unexpended funds transferred pursuant to
this section shall be used only for purposes for which the
funds were originally authorized and appropriated.
Sec. 187. Savings Provisions. In general, this section
provides that all orders, determinations, rules, regulations,
permits, agreements, contracts, recognitions of labor
organizations, collective bargaining agreements and other
administrative actions in effect at the time this Division
takes effect shall continue in effect according to their
terms until modified or revoked. Certain proceedings, such as
notices of proposed rulemaking or applications for licenses,
permits, or financial assistance pending at the time this
title takes effect shall also continue. Suits and other
proceedings commenced before the effective date of this Act
are also not affected. Administrative actions by an agency
relating to a function transferred under this title may be
continued by the Department.
Sec. 187 subsection (f)(1). Employee Rights. This
subsection is intended to assure employees in agencies
transferred to the new
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Department that they can keep their collective bargaining
rights unless their job changes and there is an actual
national security basis for taking those rights away. For
agencies transferred to the Department subject to pre-
existing rights to form a union, the President may not
terminate those rights agency-wide by executive order.
However, such rights may be withdrawn from individual
employees at the Department if their primary job duties
materially change and consist of intelligence,
counterintelligence, or investigative duties directly related
to terrorism investigation and if it is demonstrated
that collective bargaining would adversely affect national
security. Applying this standard under existing
procedures, managers at the Department may act immediately
to remove individual employees from collective bargaining
upon deciding that the conditions for removal are met.
Either the union or management may ask the Federal Labor
Relations Authority (FLRA) to review this action. For new
offices established at the Department under this bill, the
President may remove collective bargaining rights from an
entire office by executive order, if the primary function
is intelligence, counterintelligence, or investigative
duties related to terrorism investigation, and if
application of those rights would adversely affect
national security. Furthermore, employees hired to serve
in new offices at the Department, like employees
transferred to the Department, may be removed individually
from collective bargaining for national security reasons.
Sec. 187 subsections (f)(2)--(4). Other personnel matters.
The transfer of an employee to the Department will not alter
the terms and conditions of employment, including
compensation. Any conditions for appointment, including the
requirement of Senate confirmation, would continue to apply.
Any employee transferred with pre-existing whistleblower
protection rights may not be deprived of those rights based
on a determination of necessity for good administration.
Sec. 187 subsection (g). No effect on intelligence
authorities. The transfer of authorities under this title
shall not be construed as affecting the authorities of the
Director of Central Intelligence, the Secretary of Defense,
or the heads of departments and agencies within the
intelligence community.
Sec. 188. Transition Plan. By September 15, 2002, the
President is required to submit to Congress a transition
plan, including a detailed plan for transition to the
Department and implementation of relevant portions of the
Act, and including a proposal for financing the new
operations of the Department for which appropriations are not
available.
Sec. 189. Use of Appropriated Funds. This section sets
forth a number of conditions on the use of funds by the
Department, the Office, and the National Combating Terrorism
Strategy Panel. Balances of appropriations and other funds
transferred under the Act may be used only for the purposes
for which they were originally available and subject to the
conditions provided by the law originally appropriating or
otherwise making available the amount. The President shall
notify Congress not less than 15 days before transferring
funds or assets under this Act. Additional conditions under
this section apply to disposal of property, receipt and use
of gifts, and other matters. The President shall submit a
detailed budget request for the Department for FY 2004.
Subtitle F--Administrative Provisions
Sec. 191. Reorganizations and Delegations. Provides that
the Secretary may, as appropriate, reorganize within the
Department, except where specific organizational structure is
established by law. The Secretary may delegate any of the
functions of the Secretary and authorize successive
redelegations to other officers or employees of the
Department. However, any function vested by law, or assigned
by this title, to an organizational unit of the Department or
to the head of an organizational unit may not be delegated
outside of that unit.
Sec. 192. Reporting Requirements. Requires the Comptroller
General of the United States to submit to Congress a report
not later than 15 months after the effective date of this
division and each year for the succeeding five years
containing an evaluation of the progress reports submitted
under section 185 and the findings, conclusions and
recommendations of the Comptroller General concerning how
successfully the Department is meeting the homeland security
missions of the Department and the other missions of the
Department.
This section also outlines additional reports to be
submitted by the Secretary. These include: (1) biennial
reports relating to (a) border security and emergency
preparedness, and (b) certifying preparedness to prevent,
protect against, and respond to natural disasters, cyber
attacks, and incidents involving weapons of mass destruction;
(2) a report outlining proposed steps to consolidate
management authority for Federal operations at key points of
entry into the United States; (3) a report with definitions
of the terms "combating terrorism" and "homeland
security," and (4) a strategic plan and annual performance
plan, along with annual performance reports, required by
existing statutes.
Sec. 193. Environmental Protection, Safety, and Health
Requirements. Provides that the Secretary shall ensure that
the Department complies with all applicable environmental,
safety and health statutes and requirements, and develops
procedures for meeting such requirements.
Sec. 194. Labor Standards. All laborers and mechanics
employed by contractors or subcontractors in the performance
of construction work financed in whole or in part with
assistance received under this Act shall be paid wages at
rates not less than those prevailing on similar construction
in the locality as determined by the Secretary of Labor in
accordance with the Davis-Bacon Act (40 U.S.C. 276a et.
seq.).
Sec. 195. Procurement of Temporary and Intermittent
Services. In addition to the authority to hire experts or
consultants on a temporary or intermittent basis in
accordance with section 3109(b) of title 5, United States
Code, the Secretary may procure personal services, whenever
necessary due to an urgent homeland security need, for
periods of not more than a year without regard to the pay
limitations of section 3109.
Sec. 196. Preserving Non-Homeland Security Mission
Performance. Establishes a reporting requirement designed to
monitor the performance of non-homeland security missions by
entities transferred to the Department. For each of the first
five years after a program or agency is transferred to the
Department, the relevant Under Secretary must report to the
Secretary, the Comptroller General and Congress regarding the
performance of that entity, with particular emphasis on non-
homeland security missions. These reports shall seek to
inventory non-homeland security capabilities, including the
personnel, budgets and flexibilities used to carry out those
functions. The reports shall include information regarding
whether any changes are required to enable the transferred
entities to continue to carry out non-homeland security
missions without diminishment.
Sec. 197. Future Years Homeland Security Program. Beginning
with the FY 2005 budget request, each budget request shall be
accompanied by a Future Years Homeland Security Program,
reflecting the estimated expenditures and proposed
appropriations included in that budget covering the fiscal
year with respect to which the budget is submitted and at
least the four succeeding fiscal years.
Sec. 198. Protection of Voluntarily Furnished Confidential
Information. Records pertaining to the vulnerability of, and
threats to, critical infrastructure that are voluntarily
furnished to the Department and that are not customarily made
public by the provider are not subject to public disclosure
under the Freedom of Information Act. This provision would
not cover records submitted to satisfy legal requirements or
to obtain permits or other approvals, and would not cover
information that another Federal, State or local agency
receives independently of the Department.
Sec. 199. Authorization of Appropriations. Authorizes such
sums as may be necessary to enable the Secretary to
administer and manage the Department and to carry out the
Department's functions created by the Act.
Title II--National Office for Combating Terrorism
Sec. 201. National Office for Combating Terrorism. This
section establishes a terrorism office within the Executive
Office of the President, to be run by a Director who will be
appointed by the President with advice and consent of the
Senate. The responsibilities of the Director will include:
(1) to develop national objectives and policies for combating
terrorism; (2) to direct and review the development of a
comprehensive national assessment of terrorist threats and
vulnerabilities to those threats, to be conducted by heads of
the relevant Federal agencies; (3) to develop, with the
Secretary of Homeland Security, a National Strategy for
combating terrorism under Title III; (4) to coordinate,
oversee and evaluate implementation and execution of the
Strategy; (5) to coordinate the development of a
comprehensive annual budget for programs and activities under
the Strategy, including the budgets of the military
departments and agencies with the National Foreign
Intelligence Program relating to international terrorism, but
excluding military programs, projects, or activities relating
to force protection; (6) to have lead responsibility for
budget recommendations relating to military, intelligence,
law enforcement and diplomatic assets in support of the
Strategy; (7) to exercise funding authority for Federal
terrorism prevention and response agencies; (8) to serve as
an adviser to the National Security Council; and (9) work
with the Director of the Federal Bureau of Investigation to
ensure that the Director receives relevant information
related to terrorism from the FBI, and that such information
is made available to appropriate Federal agencies and State
and local law enforcement officials. The President, in
consultation with the Director, shall assign resources as
appropriate to the Office. The establishment of the Office
within the Executive Office of the President shall not be
construed as affecting access by Congress to information or
personnel of the Office.
Sec. 202. Funding for Strategy Programs and Activities.
This section establishes a process for the Director to review
the proposed budgets for federal programs under the Strategy.
The Director will, in consultation with the Director of the
Office of Management and Budget and the Secretary of Homeland
Security, identify programs that contribute to the Strategy,
and provide advice to the heads of the executive departments
and agencies on the amount and use of these programs through
budget certification procedures and the development of a
consolidated budget for the Strategy. The Director
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will review agencies' budget submissions to OMB and may
decertify any proposals that do not incorporate the proposed
funding or initiatives previously advised by the National
Office on Combating Terrorism. The Director will provide
Congress with notice of any such decertification. Each year,
the Director will, in consultation with the Secretary of
Homeland Security and the head of each Federal terrorism
prevention and response agency, develop a consolidated
proposed budget for all programs and activities under the
Strategy for that fiscal year.
Title III--National Strategy for Combating Terrorism and the
Homeland Security Response
Sec. 301. Strategy. This section directs the Secretary and
Director to develop the National Strategy for combating
terrorism and homeland security response for the detection,
prevention, protection, response and recovery necessary to
counter terrorist threats. The Secretary has responsibility
for portions of the Strategy addressing border security,
critical infrastructure protection, emergency preparation and
response, and integrating state and local efforts with
activities of the Federal government. The Director has
overall responsibility for the development of the Strategy,
and particularly for those portions addressing intelligence,
military assets, law enforcement and diplomacy. The Strategy
will include: (1) policies and procedures to maximize the
collection, translation, analysis, exploitation and
dissemination of information related to combating terrorism
and homeland security response throughout the Federal
government and with State and local authorities; (2) plans
for countering chemical, biological, radiological, nuclear,
explosives, and cyber threats; (3) plans for improving the
resources of, coordination among, and effectiveness of health
and medical sectors for detecting and responding to terrorist
attacks on homeland; (4) specific measures to enhance
cooperative efforts between the public and private sectors in
protecting against terrorist attacks; (5) a review of
measures needed to enhance transportation security with
respect to potential terrorist attacks; and (6) other
critical areas. This section also establishes the National
Combating Terrorism and Homeland Security Response Council to
assist with preparation and implementation of the Strategy.
Members of the Council will be the heads of federal terrorism
prevention and response agencies or their designees. The
Secretary and Director will co-chair the Council, which will
meet at their direction.
Sec. 302. Management Guidance for Strategy Implementation.
This section directs the Office of Management and Budget, in
consultation with the Secretary and the Director, to provide
management guidance for Federal agencies to successfully
implement the Strategy, and to report to Congress on these
efforts. It also requires the General Accounting Office to
evaluate the management guidance and agency performance in
implementing the Strategy.
Sec. 303. National Combating Terrorism Strategy Panel. This
section establishes a nonpartisan, independent panel to
conduct an assessment of the Strategy as well as an
independent, alternative assessment of measures required to
combat terrorism, including homeland security measures. The
panel will prepare a preliminary report no later than July 1,
2004, with a final report by December 1, 2004 and every four
years thereafter.
Title IV--Law Enforcement Powers of Inspector General Agents
Sec. 401. Law Enforcement Powers of Inspector General
Agents. This section amends the Inspector General Act to
authorize certain IG officers to carry a firearm or make an
arrest in certain instances while engaged in official duties
as authorized by this Act or other statute, or by the
Attorney General; and to seek and execute warrants under the
authority of the United States upon probable cause that a
violation has been committed. This section also describes the
conditions under which the Attorney General may authorize
exercise of powers under this section, and it lists those
offices of Inspector General which are exempt from this
requirement. This section further describes the circumstances
under which the Attorney General may also rescind or suspend
powers authorized for an Office of Inspector General, and
provides that determinations by the Attorney General in this
section shall not be reviewable in or by any court. The
section also requires the Offices of Inspector General to
enter into memoranda of understanding to establish an
external review process for ensuring that adequate safeguards
and management procedures continue to exist within each
Office.
Title V--Federal Emergency Procurement Flexibility
Subtitle A--Temporary Flexibility for Certain Procurements
Sec. 501. Defines the term "executive agency."
Sec. 502. Procurements for Defense Against or Recovery from
Terrorism or Nuclear, Biological, Chemical, or Radiological
Attack. States that the authorities provided in this subtitle
apply to any procurement of property or services by or for an
executive agency that, as determined by the head of the
executive agency, are to be used to facilitate defense
against or recovery from terrorism or nuclear, biological,
chemical or radiological attack for one year after the date
of enactment.
Sec. 503. Increased Simplified Acquisition Threshold for
Procurements in Support of Humanitarian or Peacekeeping
Operations or Contingency Operations. Raises the threshold
amounts to $250,000 for contracts carried out in the United
States and to $500,000 for contracts outside the United
States pursuant to section 502. Raises the Small Business
reserve to $250,000 for contracts inside the United States
and $500,000 for contracts outside the United States for
procurements carried out pursuant to section 502.
Sec. 504. Increased Micro-Purchase Threshold for Certain
Procurements. Raises the micro-purchase threshold with
respect to procurements referred to in section 502 to
$10,000.
Sec. 505. Application of Certain Commercial Items
Authorities to Certain Procurements. Applies commercial items
procedures to non-commercial items for emergency purposes.
Requires the Director of OMB to issue guidance and procedures
for use of simplified acquisition procedures for a purchase
of property or services in excess of $5,000,000. Provides
continuation of authority for simplified purchase procedures.
Sec. 506. Use of Streamlined Procedures. Lists streamlined
acquisition procedures which may be used. The head of an
executive agency shall use, when appropriate, streamlined
acquisition authorities and procedures provided by law
including use of procedures other than competitive procedures
and task and delivery order contracts. This provision removes
the thresholds ($5 million for manufacturing and $3 million
for all other contracts) for contracts with limited
competition under the small business "8(A)" and HUB Zone
programs. Waiving the threshold means that small
disadvantaged businesses within the "8(A)" program and
qualified HUB Zone small business concerns can compete for
contracts using limited competition (or sole source
competition) regardless of the value of the contract.
Sec. 507. Review and Report by Comptroller General.
Requires that not later than March 31, 2004, the Comptroller
General complete a review of the extent to which procurements
of property and services have been made in accordance with
this subtitle, and submit a report on the results of the
review to the Senate Governmental Affairs Committee and House
Government Reform Committee. The report shall assess the
extent to which property and services procured in accordance
with this subtitle have contributed to the capacity of
Federal employees to carry out the missions of the agencies,
and the extent to which Federal employees have been trained
on the use of technology. The report shall include any
recommendations of the Comptroller General resulting from the
assessment. The Comptroller General shall consult with the
Committee on Governmental Affairs and the Committee on
Governmental Reform on the specific issues and topics to be
reviewed, including areas such as technology integration,
employee training, and human capital management, and the data
requirements of the study.
Subtitle B--Other Matters
Sec. 511. Identification of New Entrants Into the Federal
Marketplace. Requires agencies to do ongoing market research
to identify new companies with new capabilities, including
small businesses, to help agencies facilitate defense against
or recovery from terrorism or nuclear, biological, chemical
or radiological attack.
Title VI--Effective Date
Sec. 601. Provides that the Division shall take effect 30
days after the date of enactment, or if enacted within 30
days before January 1, 2003, on January 1, 2003.
Division B--Immigration Reform, Accountability, and Security
Enhancement Act of 2002
Sec. 1001. Short Title. This Division may be cited as the
"Immigration Reform, Accountability, and Security
Enhancement Act of 2002."
Sec. 1002. Definitions. Defines key terms, including Under
Secretary, Enforcement Bureau, and Service Bureau.
Title XI--Directorate of Immigration Affairs
Subtitle A--Organization
Sec. 1101. Abolition of INS. This section abolishes the
Immigration and Naturalization Service ("INS").
Sec. 1102. Establishment of Directorate of Immigration
Affairs. This section establishes a Directorate of
Immigration Affairs ("Directorate") within the Department
of Homeland Security ("DHS"). The Directorate is divided
into three parts: the Under Secretary for Immigration
Affairs, the Assistant Secretary for Immigration Services
(the "Service Bureau"), and the Assistant Secretary for
Enforcement and Border Affairs (the "Enforcement Bureau").
The functions of the Directorate are also tripartite: (1)
immigration policy, administration, and inspection functions;
(2) immigration service and adjudication functions; and (3)
immigration enforcement functions. This section also
authorizes funds to the DHS as necessary to carry out the
functions of the Directorate and defines what is meant by
U.S. immigration laws.
Sec. 1103. Under Secretary of Homeland Security for
Immigration Affairs. This section establishes that the
Directorate will be headed by the Under Secretary of Homeland
Security for Immigration Affairs ("Under Secretary").
Charged with all responsibilities and authority in the
administration of the Directorate, the Under Secretary is
responsible for: (1) administration and enforcement
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of U.S. immigration laws; (2) administration of the
Directorate, including supervision and coordination of the
two Bureaus; (3) inspection of individuals arriving at ports
of entry; (4) management of resources, personnel, and other
support; (5) management of information resources, including
maintenance and coordination of records, databases, and other
information within the Directorate; and (6) coordination of
response to civil rights violations. A General Counsel serves
as the chief legal officer for the Directorate. The General
Counsel's responsibilities include: providing specialized
legal advice, opinions, determinations, regulations, and any
other assistance to the Director with regard to legal matters
affecting the Directorate and its components. A Chief
Financial Officer ("CFO") will direct, supervise, and
coordinate all budget formulas and execution for the
Directorate. A Chief of Policy and Strategy is created to
establish national immigration policy and priorities, perform
policy research and analysis on immigration issues under U.S.
immigration laws, and coordinate immigration policy between
the Directorate, the Service Bureau, and the Enforcement
Bureau. A Chief of Congressional, Intergovernmental, and
Public Affairs is established to provide Congress with
information relating to immigration issues, serve as a
liaison with other Federal agencies on immigration issues,
and respond to inquiries from, and provide information to the
media on immigration issues arising under U.S. immigration
laws.
Sec. 1104. Bureau of Immigration Services. This section
establishes the Bureau of Immigration Services ("Service
Bureau"), headed by the Assistant Secretary of Homeland
Security for Immigration Services. The Assistant Secretary
shall be appointed by the Secretary of Homeland Security in
consultation with the Under Secretary and shall report
directly to the Under Secretary. The Assistant Secretary
shall administer the immigration service and adjudication
functions of the Directorate which include: (1) adjudication
of petitions for classification of non-immigrant and
immigrant status; (2) adjudication of applications for
adjustment of status and change of status; (3) adjudication
of naturalization applications; (4) adjudication of asylum
and refugee applications; (5) adjudications at Service
Centers; (6) determinations of custody and parole of asylum
seekers; and (7) all other adjudications under U.S.
immigration laws. A Chief Budget Officer, under the authority
of the CFO, shall be responsible for monitoring and
supervising all financial activities of the Service Bureau.
An Office of Quality Assurance is established to develop
procedures and conduct audits to ensure the Directorate's
policies with regard to services and adjudications are
properly implemented, and to ensure sound records management
and efficient and accurate service. An Office of Professional
Responsibility is established to ensure the professionalism
of the Service Bureau, and receive and investigate charges of
misconduct or ill treatment made by the public. The Assistant
Secretary for Immigration Services, in consultation with the
Under Secretary, shall determine the training of Service
Bureau personnel.
Sec. 1105. Bureau of Enforcement and Border Affairs. This
section establishes the Bureau of Enforcement and Border
Affairs ("Enforcement Bureau"), headed by the Assistant
Secretary of Homeland Security for Enforcement and Border
Affairs. The Enforcement Bureau Assistant Secretary shall be
appointed by the Secretary for Homeland Security, in
consultation with the Under Secretary, and shall report
directly to the Under Secretary of the Directorate. The
Enforcement Bureau Assistant Secretary shall administer the
immigration enforcement functions of the Directorate which
include the following functions: (1) border patrol; (2)
detention; (3) removal; (4) intelligence; and (5)
investigations. A Chief Budget Officer, under the authority
of the CFO, shall be responsible for monitoring and
supervising all financial activities of the Enforcement
Bureau. An Office of Professional Responsibility shall ensure
the professionalism of the Enforcement Bureau, and receive
and investigate charges of misconduct or ill treatment
made by the public. An Office of Quality Assurance shall
develop procedures and conduct audits to ensure the
Directorate's policies with regard to enforcement are
correctly implemented; and that the Enforcement Bureau's
policies and practices result in sound records management
and efficient and accurate record-keeping. The Enforcement
Bureau Assistant Secretary, in consultation with the Under
Secretary, shall determine the training of Enforcement
Bureau personnel.
Sec. 1106. Office of the Ombudsman within the Directorate.
This section establishes an Office of the Ombudsman within
the Directorate of Immigration Affairs. The Ombudsman shall
be appointed by the Secretary of Homeland Security and report
directly to the Secretary of Homeland Security. The Office of
Ombudsman will: (1) assist individuals in resolving problems
with the Directorate or any component thereof; (2) identify
systemic problems encountered by the public in dealings with
the Directorate or any component thereof; (3) propose changes
in the administrative practices or regulations of the
Directorate or any component thereof to mitigate these
problems; (4) identify potential legislative changes that may
be appropriate to mitigate such problems; and (5) monitor the
coverage and geographic distribution of local offices of the
Directorate. The Ombudsman shall have the responsibility and
authority to appoint local or regional representatives as may
be necessary to address and rectify problems. The Ombudsman
shall submit an annual report to the House and Senate
Judiciary Committees on the activities of the Ombudsman
during the fiscal year, providing a full analysis identifying
actions taken by the Ombudsman's Office, including
initiatives to improve the responsiveness of the Directorate;
a summary of serious or systemic problems encountered by the
public; an accounting of those items that have been
addressed, are being addressed, and have not been addressed
with reasons for and results of such action; recommendations
to resolve problems encountered by the public;
recommendations for action as may be appropriate to resolve
problems encountered by the public; recommendations to
resolve problems caused by inadequate funding or staffing;
and other information as the Ombudsman deems advisable.
Appropriations are authorized as necessary to carry out this
section.
Sec. 1107. Office of Immigration Statistics within the
Directorate. This section establishes the Office of
Immigration Statistics within the Directorate, headed by a
Director who shall be appointed by the Secretary of Homeland
Security, in consultation with the Under Secretary. The
office shall collect, maintain, compile, analyze, publish,
and disseminate information and statistics involving the
functions of the Directorate and the Executive Office of
Immigration Review (EOIR) (or successor entity). The Director
shall be responsible for: (1) maintaining immigration
statistical information of the Directorate ; and (2)
establishing standards of reliability and validity for
immigration statistics collected by the Service Bureau, the
Enforcement Bureau, and the EOIR. The Directorate and the
EOIR shall provide statistical information from their
respective operational data systems to the Office of
Immigration Statistics. The Director, under the direction of
the Under Secretary shall ensure the interoperability of the
databases of the Directorate, the Service Bureau, the
Enforcement Bureau, and the EOIR to permit the Director of
the Office to perform the duties of the office. The functions
performed by the Statistics Branch of the INS Office of
Policy and Planning are transferred to the Office of
Immigration Statistics.
Sec. 1108. Clerical amendments. This section includes
clerical amendments.
Subtitle B--Transition Provisions
Sec. 1111. Transfer of Functions. All functions under U.S.
immigration laws vested by statute in, or exercised by, the
Attorney General are transferred to the Secretary of Homeland
Security. The functions of the Commissioner of the INS are
transferred to the Directorate. The Under Secretary may, for
purposes of performing any function transferred to the
Directorate, exercise all authorities under any other
provision of law that were available with respect to the
performance of the function.
Sec. 1112. Transfer of Personnel and other Resources. There
are transferred to the Under Secretary for appropriate
allocation: (1) the personnel of the DOJ employed in
connection with the functions transferred pursuant to this
title; and (2) the assets, liabilities, contracts, property,
records, and unexpended balance of appropriations,
authorizations, allocations, and other funds employed, held,
used, arising from, available to, or to be made available to
the INS in connection with the functions transferred pursuant
to this title.
Sec. 1113. Determinations with Respect to Functions and
Resources. The Under Secretary shall determine: (1) which of
the functions transferred under section 111 are immigration
policy, administration and inspection functions; immigration
service and adjudication functions; and immigration
enforcement functions; and (2) which of the personnel,
assets, liabilities, grants, contracts, property, records,
and unexpended balances of appropriations, authorizations,
allocations, and other funds were held or used, arose from,
were available to, or were made available, in connection with
the performance of the respective functions immediately prior
to the title's effective date.
Sec. 1114. Delegation and Reservation of Functions. The
Under Secretary shall delegate immigration service and
adjudication functions to the Assistant Secretary for
Immigration Services, and immigration enforcement functions
to the Assistant Secretary for Enforcement and Border
Affairs. Immigration policy, administration and inspection
functions are reserved for the Under Secretary. Some
delegations may be made on a nonexclusive basis. The Under
Secretary may make delegations to such officers and employees
of the office of the Under Secretary, the Service Bureau, and
the Enforcement Bureau, respectively, as the Director may
designate, and may authorize successive re-delegations of
such functions as may be necessary or appropriate.
Sec. 1115. Allocation of Personnel and other Resources. The
Under Secretary shall make allocations of personnel, assets,
liabilities, grants, contracts, property, records, and
unexpended balances of appropriations, authorizations,
allocations, and other funds held, used, arising from,
available to, or to be made available in connection with such
functions. Unexpended funds transferred by section 112 shall
be used only for allocated purposes. The Attorney General,
in consultation with the Secretary of Homeland Security,
shall provide for the termination of affairs of the INS.
The Under Secretary is authorized to provide for an
appropriate allocation, or coordination, or both, of
resources
[[Page S8177]]
involved in supporting shared support functions for the
office of the Under Secretary, the Service Bureau, the
Enforcement Bureau. The Under Secretary shall maintain
control and oversight over shared computer databases and
systems and records management.
Sec. 1116. Savings Provisions. All orders, determinations,
rules, regulations, permits, grants, loans, contracts,
recognition of labor organizations, agreements, including
collective bargaining agreements, certificates, licenses,
privileges, any proceedings or any application for any
benefit, service, as well as the continuance of lawsuits and
other matters are transferred to the new entities and shall
continue until modified or terminated.
Sec. 1117. Interim service of the Commissioner of
Immigration and Naturalization. The INS Commissioner serving
on the day before the effective date of this title may serve
as the Under Secretary until one is appointed.
Sec. 1118. Executive Office for Immigration Review
Authorities not Affected. Nothing in the legislation may be
construed to authorize or require the transfer or delegation
of any function vested in, or exercised by the EOIR (or its
successor entity) or any officer, employee, or component
thereof immediately prior to the effective date of this
title.
Sec. 1119. Other Authorities not Affected. Nothing in this
legislation may be construed to authorize or require the
transfer or delegation of any function vested in, or
exercised by the Secretary of State, the Secretary of Labor
or their special agents, or under the U.S. immigration laws.
Sec. 1120. Transition Funding. Funds are authorized to the
Department of Homeland Security as necessary to abolish the
INS, establish the Directorate and its components, transfer
the functions required under this Act, and carry out any
other duty made necessary by this division. These funds will
be deposited into a separate account established in the
general fund of the U.S. Treasury. Not later than 90 days
after the date of enactment of this Act, and at the end of
each fiscal year in which appropriations are made, the
Secretary of Homeland Security shall submit a report to
Congress concerning the availability of funds to cover
transition costs.
Subtitle C--Miscellaneous Provisions
Sec. 1121. Funding Adjudication and Naturalization
Services. This section requires that all fees collected for
the provision of adjudication or naturalization services be
used only to fund adjudication or naturalization services, or
subject to the availability of funds, similar services
provided without charge to asylum and refugee applicants. In
addition to funds already appropriated for this purpose,
funds are authorized as necessary to carry out sections of
the Immigration and Nationality Act dealing with asylum and
refugee processing. Separate accounts are established in the
U.S. Treasury for appropriated funds and other deposits
available to the Service Bureau and the Enforcement Bureau.
Fees may not be transferred between these accounts. Funds are
also authorized as necessary to carry out the Immigration
Services and Infrastructure Improvement Act of 2000 (Title II
of P.L. 106-313).
Sec. 1122. Application of Internet-based Technologies. Not
later than two year after enactment, the Secretary, in
consultation with the Under Secretary and the Technology
Advisory Committee, shall establish an Internet-based system
that will allow an immigrant, non-immigrant, employer, or
other person who files any application, petition, or other
request for benefit under the U.S. immigration laws with the
Directorate to access case status information on-line. In
establishing the database, the Under Secretary shall consider
all applicable privacy issues and no personally identifying
information shall be accessible to unauthorized persons. Fees
will not be charged to anyone using the database to access
information about him/herself. The Under Secretary, in
consultation with the Technology Advisory Committee is
required to conduct a study on the feasibility of an on-line
filing system and report to the House and Senate Judiciary
Committee on the results within one year of enactment. To
assist in carrying out this section, the Under Secretary is
required to establish a Technology Advisory Committee.
Sec. 1123. Alternatives to Detention of Asylum Seekers.
This section authorizes the Under Secretary to assign asylum
officers to major ports of entry to assist in the inspection
of asylum seekers. For other ports, the under Secretary shall
take steps to ensure that asylum officers are able to
participate in the inspection process. This section also
promote alternatives to detention of asylum seekers who do
not have prior nonpolitical criminal records and establish
conditions for detention of asylum seekers that ensure a safe
and humane environment. The Under Secretary is required to
consider the following specific alternatives to detention:
parole; parole with appearance assistance provided by private
nonprofit voluntary agencies; non-secure shelter care or
group homes operated by private nonprofit voluntary agencies;
and noninstitutional settings for minors, such as foster care
or group homes operated by private nonprofit voluntary
agencies.
Subtitle D--Effective Date
Sec. 1131. Effective Date. This title shall take effect one
year after the effective date of division A of this Act.
Title XII--Unaccompanied Alien Children Protection
Sec. 1201. Short Title. This title may be cited as "The
Unaccompanied Alien Child Protection Act of 2002."
Sec. 1202. Definitions. Key terms, including unaccompanied
alien child, are defined.
Subtitle A--Structural Changes
Sec. 1211. Responsibilities of the Office of Refugee
Resettlement with Respect to Unaccompanied Alien Children.
The Office of Refugee Resettlement ("Office") shall be
responsible for coordinating and implementing the care and
placement of unaccompanied alien children who are in Federal
custody by reason of their immigration status and ensuring
minimum standards of detention for all unaccompanied alien
children. The Director of the Office ("Director") shall be
responsible for: (1) ensuring that the best interests of the
child are considered in the care and placement of
unaccompanied alien children; (2) making placement, release,
and detention determinations; (3) implementing
determinations; (4) convening the Interagency Task Force on
Unaccompanied Alien Children (in the absence of the Assistant
Secretary); (5) identifying a sufficient number of qualified
persons, entities, and facilities to house unaccompanied
alien children; (6) overseeing persons, entities and
facilities; (7) compiling and publishing at least annually a
State-by-State list of professionals or other entities
qualified to contract with the Office to provide services;
(8) maintaining statistical information and other data on
unaccompanied alien children in the Office's custody and
care; (9) collecting and compiling statistical information
from the INS (or successor entity); and 10) conducting
investigations and inspections of facilities and other
entities where unaccompanied alien children reside. The
Director is also encouraged to utilize the refugee children
foster care system. The Director shall have the power to
contract with service providers and compel compliance with
the terms and conditions of section 1323. Nothing in this
title may be construed to transfer the responsibility for
adjudicating benefit determinations under the Immigration and
National Act from the authority of any official of the
Service (or its successor entity), the EOIR (or its successor
entity) or the Department of State.
Sec. 1212. Establishment of Interagency Task Force on
Unaccompanied Alien Children. An Interagency Task Force on
Unaccompanied Alien Children is established consisting of
various key agencies and departments of the federal
government.
Sec. 1213. Transition Provisions. All functions with
respect to the care and custody of unaccompanied alien
children under the immigration laws, vested in, or exercised
by, the Commissioner or his employees is transferred to the
Office.
Sec. 1214. Effective Date. This subtitle shall take effect
one year after the effective date of division A of this Act.
Subtitle B--Custody, Release, Family Reunification, and
Detention
Sec. 1221. Procedures when Encountering Unaccompanied Alien
Children. This section establishes procedures to be followed
when encountering unaccompanied alien children. At the
border, or at ports of entry, an unaccompanied alien child
may be removed from the United States if deemed inadmissible
under the Immigration and Nationality Act, unless the child
is a national of a country contiguous to the U.S. and who
fears persecution or would be harmed if returned to that
country. Custody of all unaccompanied alien children found in
the interior of the United States shall be under the
jurisdiction of the Office, with exceptions of children who
have committed crimes and or threaten national security. An
unaccompanied alien child shall be transferred to the Office
within 72 hours of apprehension.
Sec. 1222. Family Reunification for Unaccompanied Alien
Children with Relatives in the United States. Unaccompanied
alien children in the custody of the Office shall be promptly
placed with one of the following in order of preference: (1)
a parent; (2) a legal guardian; (3) an adult relative; (4) an
entity designated by the parent or legal guardian; (5) a
state-licensed juvenile shelter or group home; or (6) other
qualified adults or entities.
Sec. 1223. Appropriate Conditions for Detention of
Unaccompanied Alien Children. Unaccompanied children shall
not be placed in adult detention facilities, but children who
exhibit violent or criminal behavior can be detained in
appropriate facilities for delinquent children. The Office
shall establish appropriate standards and conditions for the
detention of unaccompanied alien children, providing
appropriate educational services, medical care, mental health
care, access to telephones, access to legal services, access
to interpreters, supervision by professionals trained in the
care of children, recreational programs and activities,
spiritual and religious needs, and dietary needs. The
Director and the Secretary of Homeland Security shall develop
procedures which prohibit shackling, handcuffing, or other
restraints; solitary confinement; or pat or strip searches.
Sec. 1224. Repatriated Unaccompanied Alien Children.
Consistent with international agreements to which the United
States is a party and to the extent practicable, the United
States shall undertake efforts to ensure that it does not
repatriate children in its custody into settings that
[[Page S8178]]
would threaten the life and safety of the child. The Director
shall submit a report to Congress providing information on
efforts to repatriate unaccompanied children.
Sec. 1225. Establishing the Age of an Unaccompanied Alien
Child. To address problems created by reliance on inaccurate
methods for establishing the age of a child, the Director
shall establish procedures for determining age.
Sec. 1226. Effective Date. This subtitle shall take effect
one year after the effective date of division A of this Act.
Subtitle C--Access by Unaccompanied Alien Children to
Guardians Ad Litem and Counsel
Sec. 1231. Right of unaccompanied alien children to
guardians ad litem. No later than 72 hours after the Office
assumes custody of an unaccompanied alien child, the Director
shall appoint a guardian ad litem to look after the child's
best interests. The qualifications, duties, and powers of the
guardian ad litem are set forth.
Sec. 1232. Right of unaccompanied alien children to
counsel. The Director shall ensure that all unaccompanied
alien children have competent counsel appointed to represent
them in immigration proceedings. Where possible, the Director
shall utilize pro bono attorneys. Otherwise, the Director
shall appoint government-funded counsel. Requirements for
representation are set forth, including duties and access
to children.
Sec. 1233. Effective date; applicability. This subtitle
shall take effect one year after the effective date of
division A of this Act and shall apply to all unaccompanied
alien children in Federal custody on, before, or after the
effective date of this subtitle.
Subtitle D--Strengthening Policies for Permanent Protection
of Alien Children
Sec. 1241. Special Immigrant Juvenile Visa. This section
strengthens the Special Immigrant Juvenile Visa to make it a
useful and flexible means of providing permanent protection
to a small number of abused, neglected and abandoned youths.
Sec. 1242. Training for officials and certain private
parties who come into contact with unaccompanied alien
children. This section provides training to officials
involved in dependency proceedings, social service providers,
as well INS personnel who come into contact with
unaccompanied alien children. The Secretary of Homeland
Security, acting jointly with the Secretary of Health and
Human Services, shall provide specialized training to all
personnel of the Service who come into contact with
unaccompanied alien children.
Sec. 1243. Effective Date. The amendments of section 1341
shall apply to all unaccompanied alien children in Federal
custody on, before, or after the effective date of this Act.
Subtitle E--Children Refugee and Asylum Seekers
Sec. 1251. Guidelines for children's asylum claims. The
section expresses the sense of Congress commending the INS
for the issuance of its Guidelines for Children's Asylum
Claims and requires the Secretary of Homeland Security to
provide training to asylum officers, immigration judges,
members of the Board of Immigration Appeals and immigration
officers on these guidelines.
Sec. 1252. Unaccompanied Refugee Children. This section
requires an analysis of the situation faced by unaccompanied
refugee children around the world and requires training on
the needs of these refugee children.
Subtitle F--Authorization of Appropriations
Sec. 1261. Authorization of Appropriations. This section
authorizes such sums as may be necessary to carry out the
provisions of this title.
Title XIII--Agency for Immigration Hearings and Appeals
Subtitle A--Structure and Function
Sec. 1301. Establishment. This section abolishes the
Executive Office for Immigration Review (EOIR) and creates
the Agency for Immigration Hearings and Appeals (AIHA).
Sec. 1302. Director of the Agency. This section provides
that the agency shall have a Director, who shall be appointed
by the President and confirmed by the Senate. The Director
runs the agency, appoints the Chair and members of the
appellate body (Board of Immigration Appeals) and the Chief
Immigration Judge. Also provides that the agency shall have a
Deputy Director, General Counsel, Pro Bono Coordinator, and
other offices as deemed necessary.
Sec. 1303. Board of Immigration Appeals. This section
establishes the Board of Immigration Appeals to perform the
appellate functions of the agency, and shall consist of a
Chair and at least 14 Board Members (who are appointed by the
Director in consultation with the Chair). Provides that the
Chair and Board Members must be an attorney in good standing
and have a minimum of 7 years professional legal expertise in
immigration and nationality law. Also provides that the Board
retains the jurisdiction it holds under EOIR and Board
Members are compelled to exercise their independent judgment.
Sec. 1304. Chief Immigration Judge. This section
establishes the Office of the Chief Immigration Judge to
administer the immigration courts, headed by a Chief
Immigration Judge. Provides that the Chief Immigration Judge
and each immigration judge must be an attorney in good
standing and have a minimum of 7 years professional legal
expertise in immigration and nationality law. Also provides
that the immigration courts retain the jurisdiction they hold
under EOIR and immigration judges are compelled to exercise
their independent judgment.
Sec. 1305. Chief Administrative Hearing Officer. This
section establishes the position of Chief Administrative
Hearing Officer to hear cases involving unfair immigration-
related employment practices and penalties for document
fraud.
Sec. 1306. Removal of Judges. This section provides that
the Director, in consultation with the appropriate component
head, may remove Board Members or immigration judges for good
cause, which shall include neglect of duty and malfeasance.
Sec. 1307. Authorization of Appropriations. This section
authorizes the appropriation of funds necessary to execute
this title. [Note: Since these entities already exist, the
execution of this title should be budget neutral.]
Subtitle B--Transfer of Functions and Savings Provisions
Sec. 1311. Transition Provisions. This section provides for
the transfer of functions from EOIR to the new agency.
Subtitle C--Effective Date
Sec. 1321. Effective Date. This section provides that this
title takes effect one year after the effective date of
division A of this Act.
Division C--Federal Workforce Improvement
Title XXI--Chief Human Capital Officers
Sec. 2101. Short Title. This title may be cited as the
"Chief Human Capital Officers Act of 2002."
Sec. 2102. Agency Chief Human Capital Officers. Creates a
chief human capital officer in major agencies (i.e., agencies
that are required, under the Chief Financial Officers Act of
1990, to have Chief Financial Officers), who will advise and
assist in carrying out the responsibilities of selecting,
developing, and managing a high-quality workforce.
Sec. 2103. Chief Human Capital Officers Council. Creates a
Chief Human Capital Officers Council that will advise and
coordinate the human capital functions of each agency and
meet with union representatives at least annually.
Sec. 2104. Strategic Human Capital Management. Requires the
Office of Personnel Management to design a set of systems,
including metrics, for assessing human capital management by
agencies.
Sec. 2105. Effective Date. Title XXI is effective 180 days
after enactment.
Title XXII--Reforms Relating to Human Capital Management
Sec. 2201. Inclusion of Agency Human Capital Strategic
Planning in Performance Plans and Program Performance
Reports. Amends the Government Performance and Results Act of
1993 to specify how human capital management is to be
included in performance plans.
Sec. 2202. Reform of the Competitive Service Hiring
Process. Allows agencies to use alternative method for
selecting new employees instead of the traditional "rule of
3." The agency may divide applicants into two or more
quality categories, with disabled veterans moving to the top
of the highest category. Also, allows for direct appointment
of candidates to positions that have been noticed, when OPM
determines there is a severe shortage of candidates and a
critical hiring need.
Sec. 2203. Permanent Extension, Revision, and Expansion of
Authorities for Use Of Voluntary Separation Incentive Pay and
Voluntary Early Retirement. Provides government-wide
authority for offering Voluntary Separation Incentive
Payments and Voluntary Early Retirement, and states that it
is the sense of Congress that these provisions are not
intended to downsize the federal workforce.
Sec. 2204. Student Volunteer Transit Subsidy. Provides a
transit subsidy for student volunteers with the federal
government.
Title XXIII--Reforms Relating to the Senior Executive Service
Sec. 2301. Repeal of Recertification Requirements of Senior
Executives. Repeals recertification requirements for senior
executives.
Sec. 2302. Adjustment of Limitation on Total Annual
Compensation. Increases the cap on the total annual
compensation of senior executives, Administrative Law Judges,
officers of the courts, and certain other highly paid
officers, thereby enabling performance bonuses to be paid
within the cap in a single year.
Title XXIV--Academic Training
Sec. 2401. Academic Training. Reduces restrictions on
providing academic degree training to federal employees.
Sec. 2402. Modifications to National Security Education
Program. Modifies the National Security Education Program
(NSEP) to allow NSEP fellows to work in a non-national
security position with the federal government if a national
security position is not available.
Sec. 2403. Compensatory Time off for Travel. Grants to
federal employees compensatory time off for time spent in
travel status away from duty station to the extent not
otherwise compensable.
____
August 28, 2002.
Hon. Joseph I. Lieberman,
Hon. Fred Thompson,
Senate Committee on Governmental Affairs, U.S. Senate,
Washington, DC.
Dear Chairman Lieberman and Ranking Member Thompson: We
commend your leadership and dedication to the creation of a
[[Page S8179]]
new Department of Homeland Security. We thank you for the
opportunity to contribute to this historic legislation.
As division B of your legislation currently includes
immigration provisions drawn in large part from legislation
that we introduced earlier this year--S. 2444, the
Immigration Reform, Accountability, and Security Enhancement
Act of 2002, we here provide you with an explanation of the
intent behind this language.
Purpose and Summary. For years, the Immigration and
Naturalization Service (INS) has been plagued by myriad
problems, including mission-overload, mismanagement, and
insufficient resources. For too long, INS has been unable to
meet its dual responsibility of enforcing our immigration and
nationality laws and providing services to newcomers,
refugees, and aspiring citizens.
A critical component of homeland security is an agency that
effectively polices our borders, enforces our laws, and
provides timely immigration services. To responsibly create
an Office of Homeland Security, we must address the
inadequacies of the INS.
Accordingly, Division B abolishes the INS and replaces it
with a Directorate of Immigration Affairs (Directorate)
placed squarely within the Department of Homeland Security.
Legislative History. The Judiciary Committee has earnestly
debated how best to reform the INS. Since 1998, the Judiciary
Committee has held five hearings on this topic, and Senate
bills to reform INS have been introduced in each of the last
three Congresses. In each hearing, governmental and private
sector experts critiqued the workings of INS and offered
substantive, insightful recommendations on how to revamp that
agency. From those hearings, certain principles have emerged:
the need for a separation of functions, the need for greater
coordination between functions, and the need for a strong,
central authority to ensure consistent policy and
implementation.
In the 106th Congress, Senator Abraham and Senator Kennedy,
chair and ranking member of the Immigration Subcommittee,
introduced S. 1563, the "INS Reform and Border Security Act
of 1999," a bipartisan attempt to split enforcement and
services into separate bureaus and to elevate the profile of
the immigration agency within the Department of Justice. This
legislation served as the basis for legislation in the 107th
Congress: S. 2444, the "Immigration Reform, Accountability,
and Security Enhancement Act of 2002," another bipartisan
bill, introduced by Senator Kennedy and Senator Brownback,
chair and ranking member of the current immigration
subcommittee. S. 2444, like its predecessor, splits
enforcement and services into separate bureaus and seeks to
elevate the profile of immigration in the Department of
Justice. Cosponsors of S. 2444 include Senators Hatch,
Feinstein, DeWine, Durbin, Helms, Edwards, Hagel, Daschle,
Dodd, Graham, and Clinton.
Need for INS Reform. Experts both inside and outside
government have reached the same conclusions regarding the
most critical problems with the INS. In a report from the
early 1990s, the General Accounting Office observed that the
INS' problems stem from a lack of clearly defined goals and
priorities, inconsistent leadership and weak management
systems, and overlapping and inconsistent programs. In the
years since, these observations have been echoed in witness
testimony, academic publications, and reports issued by
various commissions. The criticisms of INS have remained
consistent over the past decade.
With the criticisms have come various recommendations on
how to rehabilitate the agency. Three guiding principles can
be distilled from those recommendations:
Separation of functions. Immigration law and policy can
roughly be divided into two components--enforcement and
services. Currently, the enforcement and service functions
are commingled in a way that creates conflicting priorities
and troubling inefficiencies. There must be a clearer
separation of the enforcement and services functions to
achieve great clarity of mission and thereby greater
efficiency in the respective functions.
Coordination. At the same time, the two functions cannot
exist independent of each other. Almost every immigration-
related action involves both an adjudicatory and enforcement
component. Law enforcers must be cognizant of immigration
benefits and relief; adjudicators must be mindful of
immigration fraud and transgressions. Accordingly, effective
coordination between the two functions must exist for either
function to work well.
Strong, Central Authority. Given the dynamic of having
separate but coordinated functions, it is essential to
establish a strong, central authority to ensure uniform
immigration policy, efficient interaction between components,
and fiscal responsibility. There must be a focal point for
managerial accountability for all immigration-related
actions, as well as a central decision-maker to guarantee
that all aspects of immigration policy and implementation get
appropriate attention.
Division B satisfies all three of these principles. First,
it abolishes INS and creates a Directorate of Immigration
Affairs (Directorate) within the new Department of Homeland
Security. The Directorate consists of three offices: the
Office of the Under Secretary of Immigration Affairs, the
Bureau of Enforcement and Border Affairs, and the Bureau
of Services.
Under Secretary of Immigration Affairs. The Directorate is
headed by an Under Secretary of Immigration Affairs (Under
Secretary). Under the authority of the Secretary of Homeland
Security, the Under Secretary is responsible for
administering the Directorate, including the direction,
supervision, and coordination of both bureaus.
The Under Secretary develops and implements U.S.
immigration policy and ensures that immigration policy is
coordinated and applied consistently through: (1)
administration and enforcement of U.S. immigration laws; (2)
administration of the Directorate; (3) inspection of
individuals arriving at ports of entry; (4) management of
resources, personnel, and other support; and (5) management
of information resources, including maintenance and
coordination of records, databases and other information
within the Directorate.
Reporting to the Under Secretary is a General Counsel who
serves as chief legal officer for the Directorate. A Chief
Financial Officer is responsible for directing, supervising,
and coordinating the Directorate's budget. Also in the Office
of the Under Secretary is a Chief of Policy and Strategy, and
a Chief of Congressional, Intergovernmental, and Public
Affairs.
Bureau of Immigration Services. The Bureau of Immigration
Services, headed by its Assistant Secretary, administers the
service functions of the Directorate, including: (1) visa
petitions; (2) applications for adjustment of status and
change of status; (3) naturalization applications; (4) asylum
and refugee applications; (5) determinations regarding the
custody and parole of asylum seekers; and (6) Service Center
adjudications.
Bureau of Enforcement and Border Affairs. The Bureau of
Enforcement and Border Affairs, headed by its Assistant
Secretary, administers the immigration enforcement functions
of the Directorate, including: (1) border patrol; (2)
detention; (3) removal; (4) intelligence; and (5)
investigations.
Offices Within Each Bureau. Each bureau has its own Chief
Budget Officer (under the direction of the Directorate's
Chief Financial Officer). Each bureau also has an Office of
Quality Assurance (which develops procedures and conducts
audits to ensure that the Director's policies are properly
implemented) and an Office of Professional Responsibility
(which ensures professional conduct by bureau personnel).
Office of the Ombudsman. Reporting to the Under Secretary,
is the Office of the Ombudsman, which assists the public in
resolving individual cases, identifying systemic problems
encountered by the public, and proposing solutions to those
problems. The Office of the Ombudsman will report to Congress
annually.
Office of Immigration Statistics. The Directorate also
contains an Office of Immigration Statistics, which is
responsible for collecting and analyzing statistical
information for both the Directorate and the immigration
court system.
Raised Profile of Immigration. After September 11th, it is
clear that strengthening our immigration system is an
indispensable part of the nation's efforts to prevent future
terrorist attacks. Remedying INS' administrative woes is
critical, but will do little to improve our security if the
agency that administers our immigration laws and policies is
not given the priority and attention it deserves.
Immigration law and policy is extremely complex and
dynamic. Immigration officers are charged with a wide variety
of duties. INS guards the borders, admitting more than 500
million citizens, permanent residents, and lawful visitors,
students, and temporary workers each year. INS also
adjudicates hundreds of thousands of applications for
citizenship, permanent residence, changes of status, and work
authorization annually. Further, INS is responsible for
apprehending unlawful entrants, investigating fraud,
enforcing employment sanctions, and removing criminal aliens.
At the same time, INS entertains family-based and employment-
based visa petitions, while also hearing asylum in the United
States and refugee claims around the world.
Given the array of responsibilities and the sheer volume of
people involved, immigration functions merit special
attention. The immigration functions must not be diluted in
with a host of other border functions. They deserve a
separate directorate wherein the various missions of INS,
which standing alone are diverse enough, can be properly
attended. Elevation of the INS within its own directorate
also achieves the necessary balance between enhancing our
security, securing our borders, and ensuring the effective,
efficient, and fair implementation of our immigration laws.
Need to Keep Enforcement and Services Together. Almost
every immigration-related action involves both enforcement
and service components. Coordination of these key functions
is critical to ensure consistent interpretation and
implementation of the law, clarity of mission, and in turn,
more efficient adjudications and more effective enforcement.
Coordination of immigration functions cannot be achieved
merely by creating a shared database or some commonality of
management far up the administrative ladder. Moreover,
coordination is certainly impossible when enforcement and
services are housed in different departments. Inconsistent
policies and interpretations of the law, the lack of a common
culture, and--most importantly--the absence of a single,
integrated authority who can resolve differences result in a
disjointed immigration
[[Page S8180]]
policy and undermines the efficacy of both enforcement and
services.
September 11th brought to light serious problems with
immigration enforcement, but there are equally serious
problems with immigration services. If services are divorced
from enforcement, particularly in a department dedicated to
security, services will continue to struggle and will
inevitably, and understandably, be devalued and assigned
lesser priority. To ensure that services are not `left
behind' in a security culture, it is essential that they be
recognized as the other half of the immigration equation.
Coordination with Other Border Functions. Coordinating the
border security functions within the Department of Homeland
Security is critical, whatever the agency's configuration.
That coordination is achieved by creating a Border
Coordination Working Group, composed of the Secretary, the
Under Secretary for Border and Transportation Security, and
the Under Secretary for Immigration Affairs. The Working
Group is responsible for coordinating functions necessary to
secure the borders, territorial waters, ports, terminal,
waterways, and air, land, and sea transportation systems of
the United States.
The responsibilities of this office include:
Coordinating budget requests and allocation of
appropriations, staffing requirements, communication, use of
equipment, transportation, facilities and other
infrastructure;
Developing and implementing policies and technologies to
ensure the speedy, orderly, and efficient flow of lawful
traffic, travel, and commerce and enhanced scrutiny for high
risk travelers and cargo;
Monitoring, evaluating, and making improvements in the
coverage and geographic distribution of border security
programs and personnel;
Coordinating joint and cross-training programs for
personnel performing border security functions; and
Identifying systemic problems in coordination encountered
by border security agencies and programs and proposing
administrative, regulatory, or statutory changes to mitigate
such problems.
The Working Group also consults with representatives of
other agencies or departments to enhance coordination and
cooperation, curtail overlapping and duplicative functions,
and reduce interagency rivalries. At the same time, experts
in each of these agencies retain their authority and ability
to perform their jobs at this critical time.
Treatment of Unaccompanied Minors. Unaccompanied minors
deserve special treatment under our immigration laws and
policies. Many of these children have been abandoned, are
fleeing persecution, or are escaping abusive situations at
home. These children are either sent here by adults or forced
by their circumstances, and the decision to come to our
country is seldom their own.
Currently, INS has responsibility for the care and custody
of these children. It would not be appropriate to transfer
this responsibility to a Department of Homeland Security.
Office of Refugee Resettlement. This legislation transfers
responsibility for the care and custody of unaccompanied
alien children who are in Federal custody (by reason of their
immigration status) from INS to the Office of Refugee
Resettlement (ORR) in the Department of Health and Human
Services (HHS). ORR has decades of experience working with
foreign-born children, and ORR administers a specialized
resettlement program for unaccompanied refugee children.
HHS coordinates comprehensive services to address the
special needs of newcomer children, including placement in
foster or group home settings, medical and mental health
care, skills training, education, family tracing, and legal
assistance. Such services are tailored to address the
cultural, linguistic, legal, and developmental needs of
newcomer children and the individual needs of the child. ORR
can easily integrate the care of unaccompanied alien children
into its existing functions.
Responsibilities. Minimum standards for the care and
custody are set forth in the legislation, as are ensuring
that unaccompanied children are housed in appropriate
shelters or with foster families who are able to care for
them.
Specifically, ORR will be responsible for: (1) ensuring
that the best interests of the child are considered in the
care and placement of unaccompanied alien children; (2)
making placement, release, and detention determinations; (3)
implementing determinations; (4) convening the Interagency
Task Force on Unaccompanied Alien Children; (5) identifying
qualified persons, entities, and facilities to house
unaccompanied alien children; (6) overseeing persons,
entities and facilities; (7) compiling and publishing a
State-by-State list of professionals or other entities
qualified to contract with the Office to provide services;
(8) maintaining statistical information and other data on
unaccompanied alien children in the Office's custody and
care; (9) collecting and compiling statistical information
from the INS (or successor entity); and (10) conducting
investigations and inspections of facilities and other
entities where unaccompanied alien children reside. The
legislation also provides children with access to appointed
counsel and guardians ad litem.
Responsibility for adjudicating immigration benefits will
not transfer over to HHS but will remain with the INS (or its
successor) and the immigration court system.
Immigration Court System. The current immigration court
system--the Executive Office for Immigration Review (EOIR),
which contains the immigration courts and the Board of
Immigration Appeals--is a component of the Department of
Justice. The immigration court system exists not in statute,
but only in regulation.
The evolution of the immigration courts reflects the
importance of impartiality. Originally, the court system was
entirely contained within the INS. In response to criticisms
that judge and "prosecutor" should not be housed together,
the immigration courts were moved to a separate component
within the Justice Department--the EOIR--in 1983. Even parsed
out into separate components, however, concerns remain that
the immigration courts are still too closely aligned with the
immigration enforcers.
Concerns about the impartiality of a court system located
in a law enforcement agency are certain to be exacerbated if
the court system is relocated to a security agency. If INS
moves, then it is best to leave the immigration court system
where it is--in the Justice Department--and thereby keep
judge and enforcer well separated.
The immigration court system is critical both to law
enforcement and to humanitarian protections. The immigration
courts daily make decisions that could remove a criminal
alien from our country, provide safe haven to an asylum-
seeker fleeing torture or execution, and keep together or
break up families. The immigration courts make potentially
life-or-death decisions every day and are therefore too
important to exist only in regulation.
We look forward to working with you on this legislation and
making additional recommendations as it is considered by the
full Senate.
Sincerely,
Edward M. Kennedy,
Chair, Subcommittee on Immigration, Committee on the
Judiciary.
Sam Brownback,
Ranking Member, Subcommittee on Immigration, Committee on
the Judiciary.
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