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[Congressional Record: November 22, 2002 (House)]
[Page H9040-H9114]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr22no02-94]
HOMELAND SECURITY ACT OF 2002
Mr. ARMEY. Mr. Speaker, I ask unanimous consent to take from the
Speaker's table the bill (H.R. 5005) to establish the Department of
Homeland Security, and for other purposes, with a Senate amendment
thereto, and concur in the Senate amendment.
The Clerk read the title of the bill.
The Clerk read the Senate amendment, as follows:
Resolved, That the bill from the House of Representatives
(H.R. 5005) entitled ``An Act to establish the Department of
Homeland Security, and for other purposes.'', do pass with
the following Senate Amendment:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Homeland
Security Act of 2002''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Construction; severability.
Sec. 4. Effective date.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
Sec. 101. Executive department; mission.
Sec. 102. Secretary; functions.
Sec. 103. Other officers.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
Sec. 201. Directorate for Information Analysis and Infrastructure
Protection.
Sec. 202. Access to information.
Subtitle B--Critical Infrastructure Information
Sec. 211. Short title.
Sec. 212. Definitions.
Sec. 213. Designation of critical infrastructure protection program.
Sec. 214. Protection of voluntarily shared critical infrastructure
information.
Sec. 215. No private right of action.
Subtitle C--Information Security
Sec. 221. Procedures for sharing information.
Sec. 222. Privacy Officer.
Sec. 223. Enhancement of non-Federal cybersecurity.
Sec. 224. Net guard.
Sec. 225. Cyber Security Enhancement Act of 2002.
Subtitle D--Office of Science and Technology
Sec. 231. Establishment of office; Director.
Sec. 232. Mission of office; duties.
Sec. 233. Definition of law enforcement technology.
Sec. 234. Abolishment of Office of Science and Technology of National
Institute of Justice; transfer of functions.
Sec. 235. National Law Enforcement and Corrections Technology Centers.
Sec. 236. Coordination with other entities within Department of
Justice.
Sec. 237. Amendments relating to National Institute of Justice.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY
Sec. 301. Under Secretary for Science and Technology.
Sec. 302. Responsibilities and authorities of the Under Secretary for
Science and Technology.
Sec. 303. Functions transferred.
Sec. 304. Conduct of certain public health-related activities.
Sec. 305. Federally funded research and development centers.
Sec. 306. Miscellaneous provisions.
Sec. 307. Homeland Security Advanced Research Projects Agency.
Sec. 308. Conduct of research, development, demonstration, testing and
evaluation.
Sec. 309. Utilization of Department of Energy national laboratories and
sites in support of homeland security activities.
Sec. 310. Transfer of Plum Island Animal Disease Center, Department of
Agriculture.
Sec. 311. Homeland Security Science and Technology Advisory Committee.
Sec. 312. Homeland Security Institute.
Sec. 313. Technology clearinghouse to encourage and support innovative
solutions to enhance homeland security.
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
Subtitle A--Under Secretary for Border and Transportation Security
Sec. 401. Under Secretary for Border and Transportation Security.
Sec. 402. Responsibilities.
Sec. 403. Functions transferred.
Subtitle B--United States Customs Service
Sec. 411. Establishment; Commissioner of Customs.
[[Page H9041]]
Sec. 412. Retention of customs revenue functions by Secretary of the
Treasury.
Sec. 413. Preservation of customs funds.
Sec. 414. Separate budget request for customs.
Sec. 415. Definition.
Sec. 416. GAO report to Congress.
Sec. 417. Allocation of resources by the Secretary.
Sec. 418. Reports to Congress.
Sec. 419. Customs user fees.
Subtitle C--Miscellaneous Provisions
Sec. 421. Transfer of certain agricultural inspection functions of the
Department of Agriculture.
Sec. 422. Functions of Administrator of General Services.
Sec. 423. Functions of Transportation Security Administration.
Sec. 424. Preservation of Transportation Security Administration as a
distinct entity.
Sec. 425. Explosive detection systems.
Sec. 426. Transportation security.
Sec. 427. Coordination of information and information technology.
Sec. 428. Visa issuance.
Sec. 429. Information on visa denials required to be entered into
electronic data system.
Sec. 430. Office for Domestic Preparedness.
Subtitle D--Immigration Enforcement Functions
Sec. 441. Transfer of functions to Under Secretary for Border and
Transportation Security.
Sec. 442. Establishment of Bureau of Border Security.
Sec. 443. Professional responsibility and quality review.
Sec. 444. Employee discipline.
Sec. 445. Report on improving enforcement functions.
Sec. 446. Sense of Congress regarding construction of fencing near San
Diego, California.
Subtitle E--Citizenship and Immigration Services
Sec. 451. Establishment of Bureau of Citizenship and Immigration
Services.
Sec. 452. Citizenship and Immigration Services Ombudsman.
Sec. 453. Professional responsibility and quality review.
Sec. 454. Employee discipline.
Sec. 455. Effective date.
Sec. 456. Transition.
Sec. 457. Funding for citizenship and immigration services.
Sec. 458. Backlog elimination.
Sec. 459. Report on improving immigration services.
Sec. 460. Report on responding to fluctuating needs.
Sec. 461. Application of Internet-based technologies.
Sec. 462. Children's affairs.
Subtitle F--General Immigration Provisions
Sec. 471. Abolishment of INS.
Sec. 472. Voluntary separation incentive payments.
Sec. 473. Authority to conduct a demonstration project relating to
disciplinary action.
Sec. 474. Sense of Congress.
Sec. 475. Director of Shared Services.
Sec. 476. Separation of funding.
Sec. 477. Reports and implementation plans.
Sec. 478. Immigration functions.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
Sec. 501. Under Secretary for Emergency Preparedness and Response.
Sec. 502. Responsibilities.
Sec. 503. Functions transferred.
Sec. 504. Nuclear incident response.
Sec. 505. Conduct of certain public health-related activities.
Sec. 506. Definition.
Sec. 507. Role of Federal Emergency Management Agency.
Sec. 508. Use of national private sector networks in emergency
response.
Sec. 509. Use of commercially available technology, goods, and
services.
TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS
Sec. 601. Treatment of charitable trusts for members of the Armed
Forces of the United States and other governmental
organizations.
TITLE VII--MANAGEMENT
Sec. 701. Under Secretary for Management.
Sec. 702. Chief Financial Officer.
Sec. 703. Chief Information Officer.
Sec. 704. Chief Human Capital Officer.
Sec. 705. Establishment of Officer for Civil Rights and Civil
Liberties.
Sec. 706. Consolidation and co-location of offices.
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
Subtitle A--Coordination with Non-Federal Entities
Sec. 801. Office for State and Local Government Coordination.
Subtitle B--Inspector General
Sec. 811. Authority of the Secretary.
Sec. 812. Law enforcement powers of Inspector General agents.
Subtitle C--United States Secret Service
Sec. 821. Functions transferred.
Subtitle D--Acquisitions
Sec. 831. Research and development projects.
Sec. 832. Personal services.
Sec. 833. Special streamlined acquisition authority.
Sec. 834. Unsolicited proposals.
Sec. 835. Prohibition on contracts with corporate expatriates.
Subtitle E--Human Resources Management
Sec. 841. Establishment of Human Resources Management System.
Sec. 842. Labor-management relations.
Subtitle F--Federal Emergency Procurement Flexibility
Sec. 851. Definition.
Sec. 852. Procurements for defense against or recovery from terrorism
or nuclear, biological, chemical, or radiological attack.
Sec. 853. Increased simplified acquisition threshold for procurements
in support of humanitarian or peacekeeping operations or
contingency operations.
Sec. 854. Increased micro-purchase threshold for certain procurements.
Sec. 855. Application of certain commercial items authorities to
certain procurements.
Sec. 856. Use of streamlined procedures.
Sec. 857. Review and report by Comptroller General.
Sec. 858. Identification of new entrants into the Federal marketplace.
Subtitle G--Support Anti-terrorism by Fostering Effective Technologies
Act of 2002
Sec. 861. Short title.
Sec. 862. Administration.
Sec. 863. Litigation management.
Sec. 864. Risk management.
Sec. 865. Definitions.
Subtitle H--Miscellaneous Provisions
Sec. 871. Advisory committees.
Sec. 872. Reorganization.
Sec. 873. Use of appropriated funds.
Sec. 874. Future Year Homeland Security Program.
Sec. 875. Miscellaneous authorities.
Sec. 876. Military activities.
Sec. 877. Regulatory authority and preemption.
Sec. 878. Counternarcotics officer.
Sec. 879. Office of International Affairs.
Sec. 880. Prohibition of the Terrorism Information and Prevention
System.
Sec. 881. Review of pay and benefit plans.
Sec. 882. Office for National Capital Region Coordination.
Sec. 883. Requirement to comply with laws protecting equal employment
opportunity and providing whistleblower protections.
Sec. 884. Federal Law Enforcement Training Center.
Sec. 885. Joint Interagency Task Force.
Sec. 886. Sense of Congress reaffirming the continued importance and
applicability of the Posse Comitatus Act.
Sec. 887. Coordination with the Department of Health and Human Services
under the Public Health Service Act.
Sec. 888. Preserving Coast Guard mission performance.
Sec. 889. Homeland security funding analysis in President's budget.
Sec. 890. Air Transportation Safety and System Stabilization Act.
Subtitle I--Information Sharing
Sec. 891. Short title; findings; and sense of Congress.
Sec. 892. Facilitating homeland security information sharing
procedures.
Sec. 893. Report.
Sec. 894. Authorization of appropriations.
Sec. 895. Authority to share grand jury information.
Sec. 896. Authority to share electronic, wire, and oral interception
information.
Sec. 897. Foreign intelligence information.
Sec. 898. Information acquired from an electronic surveillance.
Sec. 899. Information acquired from a physical search.
TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL
Sec. 901. National Homeland Security Council.
Sec. 902. Function.
Sec. 903. Membership.
Sec. 904. Other functions and activities.
Sec. 905. Staff composition.
Sec. 906. Relation to the National Security Council.
TITLE X--INFORMATION SECURITY
Sec. 1001. Information security.
Sec. 1002. Management of information technology.
Sec. 1003. National Institute of Standards and Technology.
Sec. 1004. Information Security and Privacy Advisory Board.
Sec. 1005. Technical and conforming amendments.
Sec. 1006. Construction.
TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS
Subtitle A--Executive Office for Immigration Review
Sec. 1101. Legal status of EOIR.
Sec. 1102. Authorities of the Attorney General.
Sec. 1103. Statutory construction.
Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to
the Department of Justice
Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Sec. 1112. Technical and conforming amendments.
Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
[[Page H9042]]
Sec. 1114. Explosives training and research facility.
Sec. 1115. Personnel management demonstration project.
Subtitle C--Explosives
Sec. 1121. Short title.
Sec. 1122. Permits for purchasers of explosives.
Sec. 1123. Persons prohibited from receiving or possessing explosive
materials.
Sec. 1124. Requirement to provide samples of explosive materials and
ammonium nitrate.
Sec. 1125. Destruction of property of institutions receiving Federal
financial assistance.
Sec. 1126. Relief from disabilities.
Sec. 1127. Theft reporting requirement.
Sec. 1128. Authorization of appropriations.
TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION
Sec. 1201. Air carrier liability for third party claims arising out of
acts of terrorism.
Sec. 1202. Extension of insurance policies.
Sec. 1203. Correction of reference.
Sec. 1204. Report.
TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT
Subtitle A--Chief Human Capital Officers
Sec. 1301. Short title.
Sec. 1302. Agency Chief Human Capital Officers.
Sec. 1303. Chief Human Capital Officers Council.
Sec. 1304. Strategic human capital management.
Sec. 1305. Effective date.
Subtitle B--Reforms Relating to Federal Human Capital Management
Sec. 1311. Inclusion of agency human capital strategic planning in
performance plans and programs performance reports.
Sec. 1312. Reform of the competitive service hiring process.
Sec. 1313. Permanent extension, revision, and expansion of authorities
for use of voluntary separation incentive pay and
voluntary early retirement.
Sec. 1314. Student volunteer transit subsidy.
Subtitle C--Reforms Relating to the Senior Executive Service
Sec. 1321. Repeal of recertification requirements of senior executives.
Sec. 1322. Adjustment of limitation on total annual compensation.
Subtitle D--Academic Training
Sec. 1331. Academic training.
Sec. 1332. Modifications to National Security Education Program.
TITLE XIV--ARMING PILOTS AGAINST TERRORISM
Sec. 1401. Short title.
Sec. 1402. Federal Flight Deck Officer Program.
Sec. 1403. Crew training.
Sec. 1404. Commercial airline security study.
Sec. 1405. Authority to arm flight deck crew with less-than-lethal
weapons.
Sec. 1406. Technical amendments.
TITLE XV--TRANSITION
Subtitle A--Reorganization Plan
Sec. 1501. Definitions.
Sec. 1502. Reorganization plan.
Sec. 1503. Review of congressional committee structures.
Subtitle B--Transitional Provisions
Sec. 1511. Transitional authorities.
Sec. 1512. Savings provisions.
Sec. 1513. Terminations.
Sec. 1514. National identification system not authorized.
Sec. 1515. Continuity of Inspector General oversight.
Sec. 1516. Incidental transfers.
Sec. 1517. Reference.
TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY
Sec. 1601. Retention of security sensitive information authority at
Department of Transportation.
Sec. 1602. Increase in civil penalties.
Sec. 1603. Allowing United States citizens and United States nationals
as screeners.
TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS
Sec. 1701. Inspector General Act of 1978.
Sec. 1702. Executive Schedule.
Sec. 1703. United States Secret Service.
Sec. 1704. Coast Guard.
Sec. 1705. Strategic national stockpile and smallpox vaccine
development.
Sec. 1706. Transfer of certain security and law enforcement functions
and authorities.
Sec. 1707. Transportation security regulations.
Sec. 1708. National Bio-Weapons Defense Analysis Center.
Sec. 1709. Collaboration with the Secretary of Homeland Security.
Sec. 1710. Railroad safety to include railroad security.
Sec. 1711. Hazmat safety to include hazmat security.
Sec. 1712. Office of Science and Technology Policy.
Sec. 1713. National Oceanographic Partnership Program.
Sec. 1714. Clarification of definition of manufacturer.
Sec. 1715. Clarification of definition of vaccine-related injury or
death.
Sec. 1716. Clarification of definition of vaccine.
Sec. 1717. Effective date.
SEC. 2. DEFINITIONS.
In this Act, the following definitions apply:
(1) Each of the terms ``American homeland'' and
``homeland'' means the United States.
(2) The term ``appropriate congressional committee'' means
any committee of the House of Representatives or the Senate
having legislative or oversight jurisdiction under the Rules
of the House of Representatives or the Senate, respectively,
over the matter concerned.
(3) The term ``assets'' includes contracts, facilities,
property, records, unobligated or unexpended balances of
appropriations, and other funds or resources (other than
personnel).
(4) The term ``critical infrastructure'' has the meaning
given that term in section 1016(e) of Public Law 107-56 (42
U.S.C. 5195c(e)).
(5) The term ``Department'' means the Department of
Homeland Security.
(6) The term ``emergency response providers'' includes
Federal, State, and local emergency public safety, law
enforcement, emergency response, emergency medical (including
hospital emergency facilities), and related personnel,
agencies, and authorities.
(7) The term ``executive agency'' means an executive agency
and a military department, as defined, respectively, in
sections 105 and 102 of title 5, United States Code.
(8) The term ``functions'' includes authorities, powers,
rights, privileges, immunities, programs, projects,
activities, duties, and responsibilities.
(9) The term ``key resources'' means publicly or privately
controlled resources essential to the minimal operations of
the economy and government.
(10) The term ``local government'' means--
(A) a county, municipality, city, town, township, local
public authority, school district, special district,
intrastate district, council of governments (regardless of
whether the council of governments is incorporated as a
nonprofit corporation under State law), regional or
interstate government entity, or agency or instrumentality of
a local government;
(B) an Indian tribe or authorized tribal organization, or
in Alaska a Native village or Alaska Regional Native
Corporation; and
(C) a rural community, unincorporated town or village, or
other public entity.
(11) The term ``major disaster'' has the meaning given in
section 102(2) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122).
(12) The term ``personnel'' means officers and employees.
(13) The term ``Secretary'' means the Secretary of Homeland
Security.
(14) The term ``State'' means any State of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, and any
possession of the United States.
(15) The term ``terrorism'' means any activity that--
(A) involves an act that--
(i) is dangerous to human life or potentially destructive
of critical infrastructure or key resources; and
(ii) is a violation of the criminal laws of the United
States or of any State or other subdivision of the United
States; and
(B) appears to be intended--
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by
intimidation or coercion; or
(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping.
(16)(A) The term ``United States'', when used in a
geographic sense, means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, any possession of the United
States, and any waters within the jurisdiction of the United
States.
(B) Nothing in this paragraph or any other provision of
this Act shall be construed to modify the definition of
``United States'' for the purposes of the Immigration and
Nationality Act or any other immigration or nationality law.
SEC. 3. CONSTRUCTION; SEVERABILITY.
Any provision of this Act held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, shall be construed so as to give it the maximum
effect permitted by law, unless such holding shall be one of
utter invalidity or unenforceability, in which event such
provision shall be deemed severable from this Act and shall
not affect the remainder thereof, or the application of such
provision to other persons not similarly situated or to
other, dissimilar circumstances.
SEC. 4. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of
enactment.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
SEC. 101. EXECUTIVE DEPARTMENT; MISSION.
(a) Establishment.--There is established a Department of
Homeland Security, as an executive department of the United
States within the meaning of title 5, United States Code.
(b) Mission.--
(1) In general.--The primary mission of the Department is
to--
(A) prevent terrorist attacks within the United States;
(B) reduce the vulnerability of the United States to
terrorism;
(C) minimize the damage, and assist in the recovery, from
terrorist attacks that do occur within the United States;
(D) carry out all functions of entities transferred to the
Department, including by acting as a focal point regarding
natural and manmade crises and emergency planning;
(E) ensure that the functions of the agencies and
subdivisions within the Department that
[[Page H9043]]
are not related directly to securing the homeland are not
diminished or neglected except by a specific explicit Act of
Congress;
(F) ensure that the overall economic security of the United
States is not diminished by efforts, activities, and programs
aimed at securing the homeland; and
(G) monitor connections between illegal drug trafficking
and terrorism, coordinate efforts to sever such connections,
and otherwise contribute to efforts to interdict illegal drug
trafficking.
(2) Responsibility for Investigating and Prosecuting
Terrorism.--Except as specifically provided by law with
respect to entities transferred to the Department under this
Act, primary responsibility for investigating and prosecuting
acts of terrorism shall be vested not in the Department, but
rather in Federal, State, and local law enforcement agencies
with jurisdiction over the acts in question.
SEC. 102. SECRETARY; FUNCTIONS.
(a) Secretary.--
(1) In general.--There is a Secretary of Homeland Security,
appointed by the President, by and with the advice and
consent of the Senate.
(2) Head of department.--The Secretary is the head of the
Department and shall have direction, authority, and control
over it.
(3) Functions vested in secretary.--All functions of all
officers, employees, and organizational units of the
Department are vested in the Secretary.
(b) Functions.--The Secretary--
(1) except as otherwise provided by this Act, may delegate
any of the Secretary's functions to any officer, employee, or
organizational unit of the Department;
(2) shall have the authority to make contracts, grants, and
cooperative agreements, and to enter into agreements with
other executive agencies, as may be necessary and proper to
carry out the Secretary's responsibilities under this Act or
otherwise provided by law; and
(3) shall take reasonable steps to ensure that information
systems and databases of the Department are compatible with
each other and with appropriate databases of other
Departments.
(c) Coordination With Non-Federal Entities.--With respect
to homeland security, the Secretary shall coordinate through
the Office of State and Local Coordination (established under
section 801) (including the provision of training and
equipment) with State and local government personnel,
agencies, and authorities, with the private sector, and with
other entities, including by--
(1) coordinating with State and local government personnel,
agencies, and authorities, and with the private sector, to
ensure adequate planning, equipment, training, and exercise
activities;
(2) coordinating and, as appropriate, consolidating, the
Federal Government's communications and systems of
communications relating to homeland security with State and
local government personnel, agencies, and authorities, the
private sector, other entities, and the public; and
(3) distributing or, as appropriate, coordinating the
distribution of, warnings and information to State and local
government personnel, agencies, and authorities and to the
public.
(d) Meetings of National Security Council.--The Secretary
may, subject to the direction of the President, attend and
participate in meetings of the National Security Council.
(e) Issuance of Regulations.--The issuance of regulations
by the Secretary shall be governed by the provisions of
chapter 5 of title 5, United States Code, except as
specifically provided in this Act, in laws granting
regulatory authorities that are transferred by this Act, and
in laws enacted after the date of enactment of this Act.
(f) Special Assistant to the Secretary.--The Secretary
shall appoint a Special Assistant to the Secretary who shall
be responsible for--
(1) creating and fostering strategic communications with
the private sector to enhance the primary mission of the
Department to protect the American homeland;
(2) advising the Secretary on the impact of the
Department's policies, regulations, processes, and actions on
the private sector;
(3) interfacing with other relevant Federal agencies with
homeland security missions to assess the impact of these
agencies' actions on the private sector;
(4) creating and managing private sector advisory councils
composed of representatives of industries and associations
designated by the Secretary to--
(A) advise the Secretary on private sector products,
applications, and solutions as they relate to homeland
security challenges; and
(B) advise the Secretary on homeland security policies,
regulations, processes, and actions that affect the
participating industries and associations;
(5) working with Federal laboratories, Federally funded
research and development centers, other Federally funded
organizations, academia, and the private sector to develop
innovative approaches to address homeland security challenges
to produce and deploy the best available technologies for
homeland security missions;
(6) promoting existing public-private partnerships and
developing new public-private partnerships to provide for
collaboration and mutual support to address homeland security
challenges; and
(7) assisting in the development and promotion of private
sector best practices to secure critical infrastructure.
(g) Standards Policy.--All standards activities of the
Department shall be conducted in accordance with section
12(d) of the National Technology Transfer Advancement Act of
1995 (15 U.S.C. 272 note) and Office of Management and Budget
Circular A-119.
SEC. 103. OTHER OFFICERS.
(a) Deputy Secretary; Under Secretaries.--There are the
following officers, appointed by the President, by and with
the advice and consent of the Senate:
(1) A Deputy Secretary of Homeland Security, who shall be
the Secretary's first assistant for purposes of subchapter
III of chapter 33 of title 5, United States Code.
(2) An Under Secretary for Information Analysis and
Infrastructure Protection.
(3) An Under Secretary for Science and Technology.
(4) An Under Secretary for Border and Transportation
Security.
(5) An Under Secretary for Emergency Preparedness and
Response.
(6) A Director of the Bureau of Citizenship and Immigration
Services.
(7) An Under Secretary for Management.
(8) Not more than 12 Assistant Secretaries.
(9) A General Counsel, who shall be the chief legal officer
of the department.
(b) Inspector General.--There is an Inspector General, who
shall be appointed as provided in section 3(a) of the
Inspector General Act of 1978.
(c) Commandant of the Coast Guard.--To assist the Secretary
in the performance of the Secretary's functions, there is a
Commandant of the Coast Guard, who shall be appointed as
provided in section 44 of title 14, United States Code, and
who shall report directly to the Secretary. In addition to
such duties as may be provided in this Act and as assigned to
the Commandant by the Secretary, the duties of the Commandant
shall include those required by section 2 of title 14, United
States Code.
(d) Other Officers.--To assist the Secretary in the
performance of the Secretary's functions, there are the
following officers, appointed by the President:
(1) A Director of the Secret Service.
(2) A Chief Information Officer.
(3) A Chief Human Capital Officer.
(4) A Chief Financial Officer.
(5) An Officer for Civil Rights and Civil Liberties.
(e) Performance of Specific Functions.--Subject to the
provisions of this Act, every officer of the Department shall
perform the functions specified by law for the official's
office or prescribed by the Secretary.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
SEC. 201. DIRECTORATE FOR INFORMATION ANALYSIS AND
INFRASTRUCTURE PROTECTION.
(a) Under Secretary of Homeland Security for Information
Analysis and Infrastructure Protection.--
(1) In general.--There shall be in the Department a
Directorate for Information Analysis and Infrastructure
Protection headed by an Under Secretary for Information
Analysis and Infrastructure Protection, who shall be
appointed by the President, by and with the advice and
consent of the Senate.
(2) Responsibilities.--The Under Secretary shall assist the
Secretary in discharging the responsibilities assigned by the
Secretary.
(b) Assistant Secretary for Information Analysis; Assistant
Secretary for Infrastructure Protection.--
(1) Assistant secretary for information analysis.--There
shall be in the Department an Assistant Secretary for
Information Analysis, who shall be appointed by the
President.
(2) Assistant secretary for infrastructure protection.--
There shall be in the Department an Assistant Secretary for
Infrastructure Protection, who shall be appointed by the
President.
(3) Responsibilities.--The Assistant Secretary for
Information Analysis and the Assistant Secretary for
Infrastructure Protection shall assist the Under Secretary
for Information Analysis and Infrastructure Protection in
discharging the responsibilities of the Under Secretary under
this section.
(c) Discharge of Information Analysis and Infrastructure
Protection.--The Secretary shall ensure that the
responsibilities of the Department regarding information
analysis and infrastructure protection are carried out
through the Under Secretary for Information Analysis and
Infrastructure Protection.
(d) Responsibilities of Under Secretary.--Subject to the
direction and control of the Secretary, the responsibilities
of the Under Secretary for Information Analysis and
Infrastructure Protection shall be as follows:
(1) To access, receive, and analyze law enforcement
information, intelligence information, and other information
from agencies of the Federal Government, State and local
government agencies (including law enforcement agencies), and
private sector entities, and to integrate such information in
order to--
(A) identify and assess the nature and scope of terrorist
threats to the homeland;
(B) detect and identify threats of terrorism against the
United States; and
(C) understand such threats in light of actual and
potential vulnerabilities of the homeland.
(2) To carry out comprehensive assessments of the
vulnerabilities of the key resources and critical
infrastructure of the United States, including the
performance of risk assessments to determine the risks posed
by particular types of terrorist attacks within the United
States (including an assessment of the probability of success
of such attacks and the feasibility and potential efficacy of
various countermeasures to such attacks).
[[Page H9044]]
(3) To integrate relevant information, analyses, and
vulnerability assessments (whether such information,
analyses, or assessments are provided or produced by the
Department or others) in order to identify priorities for
protective and support measures by the Department, other
agencies of the Federal Government, State and local
government agencies and authorities, the private sector, and
other entities.
(4) To ensure, pursuant to section 202, the timely and
efficient access by the Department to all information
necessary to discharge the responsibilities under this
section, including obtaining such information from other
agencies of the Federal Government.
(5) To develop a comprehensive national plan for securing
the key resources and critical infrastructure of the United
States, including power production, generation, and
distribution systems, information technology and
telecommunications systems (including satellites), electronic
financial and property record storage and transmission
systems, emergency preparedness communications systems, and
the physical and technological assets that support such
systems.
(6) To recommend measures necessary to protect the key
resources and critical infrastructure of the United States in
coordination with other agencies of the Federal Government
and in cooperation with State and local government agencies
and authorities, the private sector, and other entities.
(7) To administer the Homeland Security Advisory System,
including--
(A) exercising primary responsibility for public advisories
related to threats to homeland security; and
(B) in coordination with other agencies of the Federal
Government, providing specific warning information, and
advice about appropriate protective measures and
countermeasures, to State and local government agencies and
authorities, the private sector, other entities, and the
public.
(8) To review, analyze, and make recommendations for
improvements in the policies and procedures governing the
sharing of law enforcement information, intelligence
information, intelligence-related information, and other
information relating to homeland security within the Federal
Government and between the Federal Government and State and
local government agencies and authorities.
(9) To disseminate, as appropriate, information analyzed by
the Department within the Department, to other agencies of
the Federal Government with responsibilities relating to
homeland security, and to agencies of State and local
governments and private sector entities with such
responsibilities in order to assist in the deterrence,
prevention, preemption of, or response to, terrorist attacks
against the United States.
(10) To consult with the Director of Central Intelligence
and other appropriate intelligence, law enforcement, or other
elements of the Federal Government to establish collection
priorities and strategies for information, including law
enforcement-related information, relating to threats of
terrorism against the United States through such means as the
representation of the Department in discussions regarding
requirements and priorities in the collection of such
information.
(11) To consult with State and local governments and
private sector entities to ensure appropriate exchanges of
information, including law enforcement-related information,
relating to threats of terrorism against the United States.
(12) To ensure that--
(A) any material received pursuant to this Act is protected
from unauthorized disclosure and handled and used only for
the performance of official duties; and
(B) any intelligence information under this Act is shared,
retained, and disseminated consistent with the authority of
the Director of Central Intelligence to protect intelligence
sources and methods under the National Security Act of 1947
(50 U.S.C. 401 et seq.) and related procedures and, as
appropriate, similar authorities of the Attorney General
concerning sensitive law enforcement information.
(13) To request additional information from other agencies
of the Federal Government, State and local government
agencies, and the private sector relating to threats of
terrorism in the United States, or relating to other areas of
responsibility assigned by the Secretary, including the entry
into cooperative agreements through the Secretary to obtain
such information.
(14) To establish and utilize, in conjunction with the
chief information officer of the Department, a secure
communications and information technology infrastructure,
including data-mining and other advanced analytical tools, in
order to access, receive, and analyze data and information in
furtherance of the responsibilities under this section, and
to disseminate information acquired and analyzed by the
Department, as appropriate.
(15) To ensure, in conjunction with the chief information
officer of the Department, that any information databases and
analytical tools developed or utilized by the Department--
(A) are compatible with one another and with relevant
information databases of other agencies of the Federal
Government; and
(B) treat information in such databases in a manner that
complies with applicable Federal law on privacy.
(16) To coordinate training and other support to the
elements and personnel of the Department, other agencies of
the Federal Government, and State and local governments that
provide information to the Department, or are consumers of
information provided by the Department, in order to
facilitate the identification and sharing of information
revealed in their ordinary duties and the optimal utilization
of information received from the Department.
(17) To coordinate with elements of the intelligence
community and with Federal, State, and local law enforcement
agencies, and the private sector, as appropriate.
(18) To provide intelligence and information analysis and
support to other elements of the Department.
(19) To perform such other duties relating to such
responsibilities as the Secretary may provide.
(e) Staff.--
(1) In general.--The Secretary shall provide the
Directorate with a staff of analysts having appropriate
expertise and experience to assist the Directorate in
discharging responsibilities under this section.
(2) Private sector analysts.--Analysts under this
subsection may include analysts from the private sector.
(3) Security clearances.--Analysts under this subsection
shall possess security clearances appropriate for their work
under this section.
(f) Detail of Personnel.--
(1) In general.--In order to assist the Directorate in
discharging responsibilities under this section, personnel of
the agencies referred to in paragraph (2) may be detailed to
the Department for the performance of analytic functions and
related duties.
(2) Covered agencies.--The agencies referred to in this
paragraph are as follows:
(A) The Department of State.
(B) The Central Intelligence Agency.
(C) The Federal Bureau of Investigation.
(D) The National Security Agency.
(E) The National Imagery and Mapping Agency.
(F) The Defense Intelligence Agency.
(G) Any other agency of the Federal Government that the
President considers appropriate.
(3) Cooperative agreements.--The Secretary and the head of
the agency concerned may enter into cooperative agreements
for the purpose of detailing personnel under this subsection.
(4) Basis.--The detail of personnel under this subsection
may be on a reimbursable or non-reimbursable basis.
(g) Functions Transferred.--In accordance with title XV,
there shall be transferred to the Secretary, for assignment
to the Under Secretary for Information Analysis and
Infrastructure Protection under this section, the functions,
personnel, assets, and liabilities of the following:
(1) The National Infrastructure Protection Center of the
Federal Bureau of Investigation (other than the Computer
Investigations and Operations Section), including the
functions of the Attorney General relating thereto.
(2) The National Communications System of the Department of
Defense, including the functions of the Secretary of Defense
relating thereto.
(3) The Critical Infrastructure Assurance Office of the
Department of Commerce, including the functions of the
Secretary of Commerce relating thereto.
(4) The National Infrastructure Simulation and Analysis
Center of the Department of Energy and the energy security
and assurance program and activities of the Department,
including the functions of the Secretary of Energy relating
thereto.
(5) The Federal Computer Incident Response Center of the
General Services Administration, including the functions of
the Administrator of General Services relating thereto.
(h) Inclusion of Certain Elements of the Department as
Elements of the Intelligence Community.--Section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401(a)) is amended--
(1) by striking ``and'' at the end of subparagraph (I);
(2) by redesignating subparagraph (J) as subparagraph (K);
and
(3) by inserting after subparagraph (I) the following new
subparagraph:
``(J) the elements of the Department of Homeland Security
concerned with the analyses of foreign intelligence
information; and''.
SEC. 202. ACCESS TO INFORMATION.
(a) In General.--
(1) Threat and vulnerability information.--Except as
otherwise directed by the President, the Secretary shall have
such access as the Secretary considers necessary to all
information, including reports, assessments, analyses, and
unevaluated intelligence relating to threats of terrorism
against the United States and to other areas of
responsibility assigned by the Secretary, and to all
information concerning infrastructure or other
vulnerabilities of the United States to terrorism, whether or
not such information has been analyzed, that may be
collected, possessed, or prepared by any agency of the
Federal Government.
(2) Other information.--The Secretary shall also have
access to other information relating to matters under the
responsibility of the Secretary that may be collected,
possessed, or prepared by an agency of the Federal Government
as the President may further provide.
(b) Manner of Access.--Except as otherwise directed by the
President, with respect to information to which the Secretary
has access pursuant to this section--
(1) the Secretary may obtain such material upon request,
and may enter into cooperative arrangements with other
executive agencies to provide such material or provide
Department officials with access to it on a regular or
routine basis, including requests or arrangements involving
broad categories of material, access to electronic databases,
or both; and
(2) regardless of whether the Secretary has made any
request or entered into any cooperative arrangement pursuant
to paragraph (1), all agencies of the Federal Government
shall promptly provide to the Secretary--
(A) all reports (including information reports containing
intelligence which has not been fully evaluated),
assessments, and analytical information relating to threats
of terrorism against
[[Page H9045]]
the United States and to other areas of responsibility
assigned by the Secretary;
(B) all information concerning the vulnerability of the
infrastructure of the United States, or other vulnerabilities
of the United States, to terrorism, whether or not such
information has been analyzed;
(C) all other information relating to significant and
credible threats of terrorism against the United States,
whether or not such information has been analyzed; and
(D) such other information or material as the President may
direct.
(c) Treatment Under Certain Laws.--The Secretary shall be
deemed to be a Federal law enforcement, intelligence,
protective, national defense, immigration, or national
security official, and shall be provided with all information
from law enforcement agencies that is required to be given to
the Director of Central Intelligence, under any provision of
the following:
(1) The USA PATRIOT Act of 2001 (Public Law 107-56).
(2) Section 2517(6) of title 18, United States Code.
(3) Rule 6(e)(3)(C) of the Federal Rules of Criminal
Procedure.
(d) Access to Intelligence and Other Information.--
(1) Access by elements of federal government.--Nothing in
this title shall preclude any element of the intelligence
community (as that term is defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)), or other
any element of the Federal Government with responsibility for
analyzing terrorist threat information, from receiving any
intelligence or other information relating to terrorism.
(2) Sharing of information.--The Secretary, in consultation
with the Director of Central Intelligence, shall work to
ensure that intelligence or other information relating to
terrorism to which the Department has access is appropriately
shared with the elements of the Federal Government referred
to in paragraph (1), as well as with State and local
governments, as appropriate.
Subtitle B--Critical Infrastructure Information
SEC. 211. SHORT TITLE.
This subtitle may be cited as the ``Critical Infrastructure
Information Act of 2002''.
SEC. 212. DEFINITIONS.
In this subtitle:
(1) Agency.--The term ``agency'' has the meaning given it
in section 551 of title 5, United States Code.
(2) Covered federal agency.--The term ``covered Federal
agency'' means the Department of Homeland Security.
(3) Critical infrastructure information.--The term
``critical infrastructure information'' means information not
customarily in the public domain and related to the security
of critical infrastructure or protected systems--
(A) actual, potential, or threatened interference with,
attack on, compromise of, or incapacitation of critical
infrastructure or protected systems by either physical or
computer-based attack or other similar conduct (including the
misuse of or unauthorized access to all types of
communications and data transmission systems) that violates
Federal, State, or local law, harms interstate commerce of
the United States, or threatens public health or safety;
(B) the ability of any critical infrastructure or protected
system to resist such interference, compromise, or
incapacitation, including any planned or past assessment,
projection, or estimate of the vulnerability of critical
infrastructure or a protected system, including security
testing, risk evaluation thereto, risk management planning,
or risk audit; or
(C) any planned or past operational problem or solution
regarding critical infrastructure or protected systems,
including repair, recovery, reconstruction, insurance, or
continuity, to the extent it is related to such interference,
compromise, or incapacitation.
(4) Critical infrastructure protection program.--The term
``critical infrastructure protection program'' means any
component or bureau of a covered Federal agency that has been
designated by the President or any agency head to receive
critical infrastructure information.
(5) Information sharing and analysis organization.--The
term ``Information Sharing and Analysis Organization'' means
any formal or informal entity or collaboration created or
employed by public or private sector organizations, for
purposes of--
(A) gathering and analyzing critical infrastructure
information in order to better understand security problems
and interdependencies related to critical infrastructure and
protected systems, so as to ensure the availability,
integrity, and reliability thereof;
(B) communicating or disclosing critical infrastructure
information to help prevent, detect, mitigate, or recover
from the effects of a interference, compromise, or a
incapacitation problem related to critical infrastructure or
protected systems; and
(C) voluntarily disseminating critical infrastructure
information to its members, State, local, and Federal
Governments, or any other entities that may be of assistance
in carrying out the purposes specified in subparagraphs (A)
and (B).
(6) Protected system.--The term ``protected system''--
(A) means any service, physical or computer-based system,
process, or procedure that directly or indirectly affects the
viability of a facility of critical infrastructure; and
(B) includes any physical or computer-based system,
including a computer, computer system, computer or
communications network, or any component hardware or element
thereof, software program, processing instructions, or
information or data in transmission or storage therein,
irrespective of the medium of transmission or storage.
(7) Voluntary.--
(A) In general.--The term ``voluntary'', in the case of any
submittal of critical infrastructure information to a covered
Federal agency, means the submittal thereof in the absence of
such agency's exercise of legal authority to compel access to
or submission of such information and may be accomplished by
a single entity or an Information Sharing and Analysis
Organization on behalf of itself or its members.
(B) Exclusions.--The term ``voluntary''--
(i) in the case of any action brought under the securities
laws as is defined in section 3(a)(47) of the Securities
Exchange Act of 1934 (15 U.S.C. 78c(a)(47))--
(I) does not include information or statements contained in
any documents or materials filed with the Securities and
Exchange Commission, or with Federal banking regulators,
pursuant to section 12(i) of the Securities Exchange Act of
1934 (15 U.S.C. 781(I)); and
(II) with respect to the submittal of critical
infrastructure information, does not include any disclosure
or writing that when made accompanied the solicitation of an
offer or a sale of securities; and
(ii) does not include information or statements submitted
or relied upon as a basis for making licensing or permitting
determinations, or during regulatory proceedings.
SEC. 213. DESIGNATION OF CRITICAL INFRASTRUCTURE PROTECTION
PROGRAM.
A critical infrastructure protection program may be
designated as such by one of the following:
(1) The President.
(2) The Secretary of Homeland Security.
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL
INFRASTRUCTURE INFORMATION.
(a) Protection.--
(1) In general.--Notwithstanding any other provision of
law, critical infrastructure information (including the
identity of the submitting person or entity) that is
voluntarily submitted to a covered Federal agency for use by
that agency regarding the security of critical infrastructure
and protected systems, analysis, warning, interdependency
study, recovery, reconstitution, or other informational
purpose, when accompanied by an express statement specified
in paragraph (2)--
(A) shall be exempt from disclosure under section 552 of
title 5, United States Code (commonly referred to as the
Freedom of Information Act);
(B) shall not be subject to any agency rules or judicial
doctrine regarding ex parte communications with a decision
making official;
(C) shall not, without the written consent of the person or
entity submitting such information, be used directly by such
agency, any other Federal, State, or local authority, or any
third party, in any civil action arising under Federal or
State law if such information is submitted in good faith;
(D) shall not, without the written consent of the person or
entity submitting such information, be used or disclosed by
any officer or employee of the United States for purposes
other than the purposes of this subtitle, except--
(i) in furtherance of an investigation or the prosecution
of a criminal act; or
(ii) when disclosure of the information would be--
(I) to either House of Congress, or to the extent of matter
within its jurisdiction, any committee or subcommittee
thereof, any joint committee thereof or subcommittee of any
such joint committee; or
(II) to the Comptroller General, or any authorized
representative of the Comptroller General, in the course of
the performance of the duties of the General Accounting
Office.
(E) shall not, if provided to a State or local government
or government agency--
(i) be made available pursuant to any State or local law
requiring disclosure of information or records;
(ii) otherwise be disclosed or distributed to any party by
said State or local government or government agency without
the written consent of the person or entity submitting such
information; or
(iii) be used other than for the purpose of protecting
critical infrastructure or protected systems, or in
furtherance of an investigation or the prosecution of a
criminal act; and
(F) does not constitute a waiver of any applicable
privilege or protection provided under law, such as trade
secret protection.
(2) Express statement.--For purposes of paragraph (1), the
term ``express statement'', with respect to information or
records, means--
(A) in the case of written information or records, a
written marking on the information or records substantially
similar to the following: ``This information is voluntarily
submitted to the Federal Government in expectation of
protection from disclosure as provided by the provisions of
the Critical Infrastructure Information Act of 2002.''; or
(B) in the case of oral information, a similar written
statement submitted within a reasonable period following the
oral communication.
(b) Limitation.--No communication of critical
infrastructure information to a covered Federal agency made
pursuant to this subtitle shall be considered to be an action
subject to the requirements of the Federal Advisory Committee
Act (5 U.S.C. App. 2).
(c) Independently Obtained Information.--Nothing in this
section shall be construed to limit or otherwise affect the
ability of a State, local, or Federal Government entity,
agency, or authority, or any third party, under applicable
law, to obtain critical infrastructure information in a
manner not covered by subsection (a), including any
information lawfully and properly disclosed generally or
broadly to the public
[[Page H9046]]
and to use such information in any manner permitted by law.
(d) Treatment of Voluntary Submittal of Information.--The
voluntary submittal to the Government of information or
records that are protected from disclosure by this subtitle
shall not be construed to constitute compliance with any
requirement to submit such information to a Federal agency
under any other provision of law.
(e) Procedures.--
(1) In general.--The Secretary of the Department of
Homeland Security shall, in consultation with appropriate
representatives of the National Security Council and the
Office of Science and Technology Policy, establish uniform
procedures for the receipt, care, and storage by Federal
agencies of critical infrastructure information that is
voluntarily submitted to the Government. The procedures shall
be established not later than 90 days after the date of the
enactment of this subtitle.
(2) Elements.--The procedures established under paragraph
(1) shall include mechanisms regarding--
(A) the acknowledgement of receipt by Federal agencies of
critical infrastructure information that is voluntarily
submitted to the Government;
(B) the maintenance of the identification of such
information as voluntarily submitted to the Government for
purposes of and subject to the provisions of this subtitle;
(C) the care and storage of such information; and
(D) the protection and maintenance of the confidentiality
of such information so as to permit the sharing of such
information within the Federal Government and with State and
local governments, and the issuance of notices and warnings
related to the protection of critical infrastructure and
protected systems, in such manner as to protect from public
disclosure the identity of the submitting person or entity,
or information that is proprietary, business sensitive,
relates specifically to the submitting person or entity, and
is otherwise not appropriately in the public domain.
(f) Penalties.--Whoever, being an officer or employee of
the United States or of any department or agency thereof,
knowingly publishes, divulges, discloses, or makes known in
any manner or to any extent not authorized by law, any
critical infrastructure information protected from disclosure
by this subtitle coming to him in the course of this
employment or official duties or by reason of any examination
or investigation made by, or return, report, or record made
to or filed with, such department or agency or officer or
employee thereof, shall be fined under title 18 of the United
States Code, imprisoned not more than 1 year, or both, and
shall be removed from office or employment.
(g) Authority To Issue Warnings.--The Federal Government
may provide advisories, alerts, and warnings to relevant
companies, targeted sectors, other governmental entities, or
the general public regarding potential threats to critical
infrastructure as appropriate. In issuing a warning, the
Federal Government shall take appropriate actions to protect
from disclosure--
(1) the source of any voluntarily submitted critical
infrastructure information that forms the basis for the
warning; or
(2) information that is proprietary, business sensitive,
relates specifically to the submitting person or entity, or
is otherwise not appropriately in the public domain.
(h) Authority To Delegate.--The President may delegate
authority to a critical infrastructure protection program,
designated under section 213, to enter into a voluntary
agreement to promote critical infrastructure security,
including with any Information Sharing and Analysis
Organization, or a plan of action as otherwise defined in
section 708 of the Defense Production Act of 1950 (50 U.S.C.
App. 2158).
SEC. 215. NO PRIVATE RIGHT OF ACTION.
Nothing in this subtitle may be construed to create a
private right of action for enforcement of any provision of
this Act.
Subtitle C--Information Security
SEC. 221. PROCEDURES FOR SHARING INFORMATION.
The Secretary shall establish procedures on the use of
information shared under this title that--
(1) limit the redissemination of such information to ensure
that it is not used for an unauthorized purpose;
(2) ensure the security and confidentiality of such
information;
(3) protect the constitutional and statutory rights of any
individuals who are subjects of such information; and
(4) provide data integrity through the timely removal and
destruction of obsolete or erroneous names and information.
SEC. 222. PRIVACY OFFICER.
The Secretary shall appoint a senior official in the
Department to assume primary responsibility for privacy
policy, including--
(1) assuring that the use of technologies sustain, and do
not erode, privacy protections relating to the use,
collection, and disclosure of personal information;
(2) assuring that personal information contained in Privacy
Act systems of records is handled in full compliance with
fair information practices as set out in the Privacy Act of
1974;
(3) evaluating legislative and regulatory proposals
involving collection, use, and disclosure of personal
information by the Federal Government;
(4) conducting a privacy impact assessment of proposed
rules of the Department or that of the Department on the
privacy of personal information, including the type of
personal information collected and the number of people
affected; and
(5) preparing a report to Congress on an annual basis on
activities of the Department that affect privacy, including
complaints of privacy violations, implementation of the
Privacy Act of 1974, internal controls, and other matters.
SEC. 223. ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.
In carrying out the responsibilities under section 201, the
Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to State and local government
entities, and upon request to private entities that own or
operate critical information systems--
(A) analysis and warnings related to threats to, and
vulnerabilities of, critical information systems; and
(B) in coordination with the Under Secretary for Emergency
Preparedness and Response, crisis management support in
response to threats to, or attacks on, critical information
systems; and
(2) as appropriate, provide technical assistance, upon
request, to the private sector and other government entities,
in coordination with the Under Secretary for Emergency
Preparedness and Response, with respect to emergency recovery
plans to respond to major failures of critical information
systems.
SEC. 224. NET GUARD.
The Under Secretary for Information Analysis and
Infrastructure Protection may establish a national technology
guard, to be known as ``NET Guard'', comprised of local teams
of volunteers with expertise in relevant areas of science and
technology, to assist local communities to respond and
recover from attacks on information systems and
communications networks.
SEC. 225. CYBER SECURITY ENHANCEMENT ACT OF 2002.
(a) Short Title.--This section may be cited as the ``Cyber
Security Enhancement Act of 2002''.
(b) Amendment of Sentencing Guidelines Relating to Certain
Computer Crimes.--
(1) Directive to the united states sentencing commission.--
Pursuant to its authority under section 994(p) of title 28,
United States Code, and in accordance with this subsection,
the United States Sentencing Commission shall review and, if
appropriate, amend its guidelines and its policy statements
applicable to persons convicted of an offense under section
1030 of title 18, United States Code.
(2) Requirements.--In carrying out this subsection, the
Sentencing Commission shall--
(A) ensure that the sentencing guidelines and policy
statements reflect the serious nature of the offenses
described in paragraph (1), the growing incidence of such
offenses, and the need for an effective deterrent and
appropriate punishment to prevent such offenses;
(B) consider the following factors and the extent to which
the guidelines may or may not account for them--
(i) the potential and actual loss resulting from the
offense;
(ii) the level of sophistication and planning involved in
the offense;
(iii) whether the offense was committed for purposes of
commercial advantage or private financial benefit;
(iv) whether the defendant acted with malicious intent to
cause harm in committing the offense;
(v) the extent to which the offense violated the privacy
rights of individuals harmed;
(vi) whether the offense involved a computer used by the
government in furtherance of national defense, national
security, or the administration of justice;
(vii) whether the violation was intended to or had the
effect of significantly interfering with or disrupting a
critical infrastructure; and
(viii) whether the violation was intended to or had the
effect of creating a threat to public health or safety, or
injury to any person;
(C) assure reasonable consistency with other relevant
directives and with other sentencing guidelines;
(D) account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally
applicable sentencing ranges;
(E) make any necessary conforming changes to the sentencing
guidelines; and
(F) assure that the guidelines adequately meet the purposes
of sentencing as set forth in section 3553(a)(2) of title 18,
United States Code.
(c) Study and Report on Computer Crimes.--Not later than
May 1, 2003, the United States Sentencing Commission shall
submit a brief report to Congress that explains any actions
taken by the Sentencing Commission in response to this
section and includes any recommendations the Commission may
have regarding statutory penalties for offenses under section
1030 of title 18, United States Code.
(d) Emergency Disclosure Exception.--
(1) In general.--Section 2702(b) of title 18, United States
Code, is amended--
(A) in paragraph (5), by striking ``or'' at the end;
(B) in paragraph (6)(A), by inserting ``or'' at the end;
(C) by striking paragraph (6)(C); and
(D) by adding at the end the following:
``(7) to a Federal, State, or local governmental entity, if
the provider, in good faith, believes that an emergency
involving danger of death or serious physical injury to any
person requires disclosure without delay of communications
relating to the emergency.''.
(2) Reporting of disclosures.--A government entity that
receives a disclosure under section 2702(b) of title 18,
United States Code, shall file, not later than 90 days after
such disclosure, a report to the Attorney General stating the
paragraph of that section under which the disclosure was
made, the date of the disclosure, the entity to which the
disclosure was made, the
[[Page H9047]]
number of customers or subscribers to whom the information
disclosed pertained, and the number of communications, if
any, that were disclosed. The Attorney General shall publish
all such reports into a single report to be submitted to
Congress 1 year after the date of enactment of this Act.
(e) Good Faith Exception.--Section 2520(d)(3) of title 18,
United States Code, is amended by inserting ``or 2511(2)(i)''
after ``2511(3)''.
(f) Internet Advertising of Illegal Devices.--Section
2512(1)(c) of title 18, United States Code, is amended--
(1) by inserting ``or disseminates by electronic means''
after ``or other publication''; and
(2) by inserting ``knowing the content of the advertisement
and'' before ``knowing or having reason to know''.
(g) Strengthening Penalties.--Section 1030(c) of title 18,
United States Code, is amended--
(1) by striking ``and'' at the end of paragraph (3);
(2) in each of subparagraphs (A) and (C) of paragraph (4),
by inserting ``except as provided in paragraph (5),'' before
``a fine under this title'';
(3) in paragraph (4)(C), by striking the period at the end
and inserting ``; and''; and
(4) by adding at the end the following:
``(5)(A) if the offender knowingly or recklessly causes or
attempts to cause serious bodily injury from conduct in
violation of subsection (a)(5)(A)(i), a fine under this title
or imprisonment for not more than 20 years, or both; and
``(B) if the offender knowingly or recklessly causes or
attempts to cause death from conduct in violation of
subsection (a)(5)(A)(i), a fine under this title or
imprisonment for any term of years or for life, or both.''.
(h) Provider Assistance.--
(1) Section 2703.--Section 2703(e) of title 18, United
States Code, is amended by inserting ``, statutory
authorization'' after ``subpoena''.
(2) Section 2511.--Section 2511(2)(a)(ii) of title 18,
United States Code, is amended by inserting ``, statutory
authorization,'' after ``court order'' the last place it
appears.
(i) Emergencies.--Section 3125(a)(1) of title 18, United
States Code, is amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the comma at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(C) an immediate threat to a national security interest;
or
``(D) an ongoing attack on a protected computer (as defined
in section 1030) that constitutes a crime punishable by a
term of imprisonment greater than one year;''.
(j) Protecting Privacy.--
(1) Section 2511.--Section 2511(4) of title 18, United
States Code, is amended--
(A) by striking paragraph (b); and
(B) by redesignating paragraph (c) as paragraph (b).
(2) Section 2701.--Section 2701(b) of title 18, United
States Code, is amended--
(A) in paragraph (1), by inserting ``, or in furtherance of
any criminal or tortious act in violation of the Constitution
or laws of the United States or any State'' after
``commercial gain'';
(B) in paragraph (1)(A), by striking ``one year'' and
inserting ``5 years'';
(C) in paragraph (1)(B), by striking ``two years'' and
inserting ``10 years''; and
(D) by striking paragraph (2) and inserting the following:
``(2) in any other case--
``(A) a fine under this title or imprisonment for not more
than 1 year or both, in the case of a first offense under
this paragraph; and
``(B) a fine under this title or imprisonment for not more
than 5 years, or both, in the case of an offense under this
subparagraph that occurs after a conviction of another
offense under this section.''.
Subtitle D--Office of Science and Technology
SEC. 231. ESTABLISHMENT OF OFFICE; DIRECTOR.
(a) Establishment.--
(1) In general.--There is hereby established within the
Department of Justice an Office of Science and Technology
(hereinafter in this title referred to as the ``Office'').
(2) Authority.--The Office shall be under the general
authority of the Assistant Attorney General, Office of
Justice Programs, and shall be established within the
National Institute of Justice.
(b) Director.--The Office shall be headed by a Director,
who shall be an individual appointed based on approval by the
Office of Personnel Management of the executive
qualifications of the individual.
SEC. 232. MISSION OF OFFICE; DUTIES.
(a) Mission.--The mission of the Office shall be--
(1) to serve as the national focal point for work on law
enforcement technology; and
(2) to carry out programs that, through the provision of
equipment, training, and technical assistance, improve the
safety and effectiveness of law enforcement technology and
improve access to such technology by Federal, State, and
local law enforcement agencies.
(b) Duties.--In carrying out its mission, the Office shall
have the following duties:
(1) To provide recommendations and advice to the Attorney
General.
(2) To establish and maintain advisory groups (which shall
be exempt from the provisions of the Federal Advisory
Committee Act (5 U.S.C. App.)) to assess the law enforcement
technology needs of Federal, State, and local law enforcement
agencies.
(3) To establish and maintain performance standards in
accordance with the National Technology Transfer and
Advancement Act of 1995 (Public Law 104-113) for, and test
and evaluate law enforcement technologies that may be used
by, Federal, State, and local law enforcement agencies.
(4) To establish and maintain a program to certify,
validate, and mark or otherwise recognize law enforcement
technology products that conform to standards established and
maintained by the Office in accordance with the National
Technology Transfer and Advancement Act of 1995 (Public Law
104-113). The program may, at the discretion of the Office,
allow for supplier's declaration of conformity with such
standards.
(5) To work with other entities within the Department of
Justice, other Federal agencies, and the executive office of
the President to establish a coordinated Federal approach on
issues related to law enforcement technology.
(6) To carry out research, development, testing,
evaluation, and cost-benefit analyses in fields that would
improve the safety, effectiveness, and efficiency of law
enforcement technologies used by Federal, State, and local
law enforcement agencies, including, but not limited to--
(A) weapons capable of preventing use by unauthorized
persons, including personalized guns;
(B) protective apparel;
(C) bullet-resistant and explosion-resistant glass;
(D) monitoring systems and alarm systems capable of
providing precise location information;
(E) wire and wireless interoperable communication
technologies;
(F) tools and techniques that facilitate investigative and
forensic work, including computer forensics;
(G) equipment for particular use in counterterrorism,
including devices and technologies to disable terrorist
devices;
(H) guides to assist State and local law enforcement
agencies;
(I) DNA identification technologies; and
(J) tools and techniques that facilitate investigations of
computer crime.
(7) To administer a program of research, development,
testing, and demonstration to improve the interoperability of
voice and data public safety communications.
(8) To serve on the Technical Support Working Group of the
Department of Defense, and on other relevant interagency
panels, as requested.
(9) To develop, and disseminate to State and local law
enforcement agencies, technical assistance and training
materials for law enforcement personnel, including
prosecutors.
(10) To operate the regional National Law Enforcement and
Corrections Technology Centers and, to the extent necessary,
establish additional centers through a competitive process.
(11) To administer a program of acquisition, research,
development, and dissemination of advanced investigative
analysis and forensic tools to assist State and local law
enforcement agencies in combating cybercrime.
(12) To support research fellowships in support of its
mission.
(13) To serve as a clearinghouse for information on law
enforcement technologies.
(14) To represent the United States and State and local law
enforcement agencies, as requested, in international
activities concerning law enforcement technology.
(15) To enter into contracts and cooperative agreements and
provide grants, which may require in-kind or cash matches
from the recipient, as necessary to carry out its mission.
(16) To carry out other duties assigned by the Attorney
General to accomplish the mission of the Office.
(c) Competition Required.--Except as otherwise expressly
provided by law, all research and development carried out by
or through the Office shall be carried out on a competitive
basis.
(d) Information From Federal Agencies.--Federal agencies
shall, upon request from the Office and in accordance with
Federal law, provide the Office with any data, reports, or
other information requested, unless compliance with such
request is otherwise prohibited by law.
(e) Publications.--Decisions concerning publications issued
by the Office shall rest solely with the Director of the
Office.
(f) Transfer of Funds.--The Office may transfer funds to
other Federal agencies or provide funding to non-Federal
entities through grants, cooperative agreements, or contracts
to carry out its duties under this section.
(g) Annual Report.--The Director of the Office shall
include with the budget justification materials submitted to
Congress in support of the Department of Justice budget for
each fiscal year (as submitted with the budget of the
President under section 1105(a) of title 31, United States
Code) a report on the activities of the Office. Each such
report shall include the following:
(1) For the period of 5 fiscal years beginning with the
fiscal year for which the budget is submitted--
(A) the Director's assessment of the needs of Federal,
State, and local law enforcement agencies for assistance with
respect to law enforcement technology and other matters
consistent with the mission of the Office; and
(B) a strategic plan for meeting such needs of such law
enforcement agencies.
(2) For the fiscal year preceding the fiscal year for which
such budget is submitted, a description of the activities
carried out by the Office and an evaluation of the extent to
which those activities successfully meet the needs assessed
under paragraph (1)(A) in previous reports.
SEC. 233. DEFINITION OF LAW ENFORCEMENT TECHNOLOGY.
For the purposes of this title, the term ``law enforcement
technology'' includes investigative and forensic
technologies, corrections technologies, and technologies that
support the judicial process.
[[Page H9048]]
SEC. 234. ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY OF
NATIONAL INSTITUTE OF JUSTICE; TRANSFER OF
FUNCTIONS.
(a) Authority To Transfer Functions.--The Attorney General
may transfer to the Office any other program or activity of
the Department of Justice that the Attorney General, in
consultation with the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives, determines to be consistent with the mission
of the Office.
(b) Transfer of Personnel and Assets.--With respect to any
function, power, or duty, or any program or activity, that is
established in the Office, those employees and assets of the
element of the Department of Justice from which the transfer
is made that the Attorney General determines are needed to
perform that function, power, or duty, or for that program or
activity, as the case may be, shall be transferred to the
Office.
(c) Report on Implementation.--Not later than 1 year after
the date of the enactment of this Act, the Attorney General
shall submit to the Committee on the Judiciary of the Senate
and the Committee on the Judiciary of the House of
Representatives a report on the implementation of this title.
The report shall--
(1) provide an accounting of the amounts and sources of
funding available to the Office to carry out its mission
under existing authorizations and appropriations, and set
forth the future funding needs of the Office; and
(2) include such other information and recommendations as
the Attorney General considers appropriate.
SEC. 235. NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECHNOLOGY
CENTERS.
(a) In General.--The Director of the Office shall operate
and support National Law Enforcement and Corrections
Technology Centers (hereinafter in this section referred to
as ``Centers'') and, to the extent necessary, establish new
centers through a merit-based, competitive process.
(b) Purpose of Centers.--The purpose of the Centers shall
be to--
(1) support research and development of law enforcement
technology;
(2) support the transfer and implementation of technology;
(3) assist in the development and dissemination of
guidelines and technological standards; and
(4) provide technology assistance, information, and support
for law enforcement, corrections, and criminal justice
purposes.
(c) Annual Meeting.--Each year, the Director shall convene
a meeting of the Centers in order to foster collaboration and
communication between Center participants.
(d) Report.--Not later than 12 months after the date of the
enactment of this Act, the Director shall transmit to the
Congress a report assessing the effectiveness of the existing
system of Centers and identify the number of Centers
necessary to meet the technology needs of Federal, State, and
local law enforcement in the United States.
SEC. 236. COORDINATION WITH OTHER ENTITIES WITHIN DEPARTMENT
OF JUSTICE.
Section 102 of the Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3712) is amended in subsection (a)(5)
by inserting ``coordinate and'' before ``provide''.
SEC. 237. AMENDMENTS RELATING TO NATIONAL INSTITUTE OF
JUSTICE.
Section 202(c) of the Omnibus Crime Control and Safety
Streets Act of 1968 (42 U.S.C. 3722(c)) is amended--
(1) in paragraph (3) by inserting ``, including cost
effectiveness where practical,'' before ``of projects''; and
(2) by striking ``and'' after the semicolon at the end of
paragraph (8), striking the period at the end of paragraph
(9) and inserting ``; and'', and by adding at the end the
following:
``(10) research and development of tools and technologies
relating to prevention, detection, investigation, and
prosecution of crime; and
``(11) support research, development, testing, training,
and evaluation of tools and technology for Federal, State,
and local law enforcement agencies.''.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY
SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.
There shall be in the Department a Directorate of Science
and Technology headed by an Under Secretary for Science and
Technology.
SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER
SECRETARY FOR SCIENCE AND TECHNOLOGY.
The Secretary, acting through the Under Secretary for
Science and Technology, shall have the responsibility for--
(1) advising the Secretary regarding research and
development efforts and priorities in support of the
Department's missions;
(2) developing, in consultation with other appropriate
executive agencies, a national policy and strategic plan for,
identifying priorities, goals, objectives and policies for,
and coordinating the Federal Government's civilian efforts to
identify and develop countermeasures to chemical, biological,
radiological, nuclear, and other emerging terrorist threats,
including the development of comprehensive, research-based
definable goals for such efforts and development of annual
measurable objectives and specific targets to accomplish and
evaluate the goals for such efforts;
(3) supporting the Under Secretary for Information Analysis
and Infrastructure Protection, by assessing and testing
homeland security vulnerabilities and possible threats;
(4) conducting basic and applied research, development,
demonstration, testing, and evaluation activities that are
relevant to any or all elements of the Department, through
both intramural and extramural programs, except that such
responsibility does not extend to human health-related
research and development activities;
(5) establishing priorities for, directing, funding, and
conducting national research, development, test and
evaluation, and procurement of technology and systems for--
(A) preventing the importation of chemical, biological,
radiological, nuclear, and related weapons and material; and
(B) detecting, preventing, protecting against, and
responding to terrorist attacks;
(6) establishing a system for transferring homeland
security developments or technologies to federal, state,
local government, and private sector entities;
(7) entering into work agreements, joint sponsorships,
contracts, or any other agreements with the Department of
Energy regarding the use of the national laboratories or
sites and support of the science and technology base at those
facilities;
(8) collaborating with the Secretary of Agriculture and the
Attorney General as provided in section 212 of the
Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C.
8401), as amended by section 1709(b);
(9) collaborating with the Secretary of Health and Human
Services and the Attorney General in determining any new
biological agents and toxins that shall be listed as ``select
agents'' in Appendix A of part 72 of title 42, Code of
Federal Regulations, pursuant to section 351A of the Public
Health Service Act (42 U.S.C. 262a);
(10) supporting United States leadership in science and
technology;
(11) establishing and administering the primary research
and development activities of the Department, including the
long-term research and development needs and capabilities for
all elements of the Department;
(12) coordinating and integrating all research,
development, demonstration, testing, and evaluation
activities of the Department;
(13) coordinating with other appropriate executive agencies
in developing and carrying out the science and technology
agenda of the Department to reduce duplication and identify
unmet needs; and
(14) developing and overseeing the administration of
guidelines for merit review of research and development
projects throughout the Department, and for the dissemination
of research conducted or sponsored by the Department.
SEC. 303. FUNCTIONS TRANSFERRED.
In accordance with title XV, there shall be transferred to
the Secretary the functions, personnel, assets, and
liabilities of the following entities:
(1) The following programs and activities of the Department
of Energy, including the functions of the Secretary of Energy
relating thereto (but not including programs and activities
relating to the strategic nuclear defense posture of the
United States):
(A) The chemical and biological national security and
supporting programs and activities of the nonproliferation
and verification research and development program.
(B) The nuclear smuggling programs and activities within
the proliferation detection program of the nonproliferation
and verification research and development program. The
programs and activities described in this subparagraph may be
designated by the President either for transfer to the
Department or for joint operation by the Secretary and the
Secretary of Energy.
(C) The nuclear assessment program and activities of the
assessment, detection, and cooperation program of the
international materials protection and cooperation program.
(D) Such life sciences activities of the biological and
environmental research program related to microbial pathogens
as may be designated by the President for transfer to the
Department.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research program and
activities at Lawrence Livermore National Laboratory.
(2) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the
Secretary of Defense related thereto.
SEC. 304. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED
ACTIVITIES.
(a) In General.--With respect to civilian human health-
related research and development activities relating to
countermeasures for chemical, biological, radiological, and
nuclear and other emerging terrorist threats carried out by
the Department of Health and Human Services (including the
Public Health Service), the Secretary of Health and Human
Services shall set priorities, goals, objectives, and
policies and develop a coordinated strategy for such
activities in collaboration with the Secretary of Homeland
Security to ensure consistency with the national policy and
strategic plan developed pursuant to section 302(2).
(b) Evaluation of Progress.--In carrying out subsection
(a), the Secretary of Health and Human Services shall
collaborate with the Secretary in developing specific
benchmarks and outcome measurements for evaluating progress
toward achieving the priorities and goals described in such
subsection.
(c) Administration of Countermeasures Against Smallpox.--
Section 224 of the Public Health Service Act (42 U.S.C. 233)
is amended by adding the following:
``(p) Administration of Smallpox Countermeasures by Health
Professionals.--
``(1) In general.--For purposes of this section, and
subject to other provisions of this subsection, a covered
person shall be deemed to be an employee of the Public Health
Service with respect to liability arising out of
administration of a covered countermeasure against smallpox
to an individual during the effective period of a declaration
by the Secretary under paragraph (2)(A).
[[Page H9049]]
``(2) Declaration by secretary concerning countermeasure
against smallpox.--
``(A) Authority to issue declaration.--
``(i) In general.--The Secretary may issue a declaration,
pursuant to this paragraph, concluding that an actual or
potential bioterrorist incident or other actual or potential
public health emergency makes advisable the administration of
a covered countermeasure to a category or categories of
individuals.
``(ii) Covered countermeasure.--The Secretary shall specify
in such declaration the substance or substances that shall be
considered covered countermeasures (as defined in paragraph
(8)(A)) for purposes of administration to individuals during
the effective period of the declaration.
``(iii) Effective period.--The Secretary shall specify in
such declaration the beginning and ending dates of the
effective period of the declaration, and may subsequently
amend such declaration to shorten or extend such effective
period, provided that the new closing date is after the date
when the declaration is amended.
``(iv) Publication.--The Secretary shall promptly publish
each such declaration and amendment in the Federal Register.
``(B) Liability of united states only for administrations
within scope of declaration.--Except as provided in paragraph
(5)(B)(ii), the United States shall be liable under this
subsection with respect to a claim arising out of the
administration of a covered countermeasure to an individual
only if--
``(i) the countermeasure was administered by a qualified
person, for a purpose stated in paragraph (7)(A)(i), and
during the effective period of a declaration by the Secretary
under subparagraph (A) with respect to such countermeasure;
and
``(ii)(I) the individual was within a category of
individuals covered by the declaration; or
``(II) the qualified person administering the
countermeasure had reasonable grounds to believe that such
individual was within such category.
``(C) Presumption of administration within scope of
declaration in case of accidental vaccinia inoculation.--
``(i) In general.--If vaccinia vaccine is a covered
countermeasure specified in a declaration under subparagraph
(A), and an individual to whom the vaccinia vaccine is not
administered contracts vaccinia, then, under the
circumstances specified in clause (ii), the individual--
``(I) shall be rebuttably presumed to have contracted
vaccinia from an individual to whom such vaccine was
administered as provided by clauses (i) and (ii) of
subparagraph (B); and
``(II) shall (unless such presumption is rebutted) be
deemed for purposes of this subsection to be an individual to
whom a covered countermeasure was administered by a qualified
person in accordance with the terms of such declaration and
as described by subparagraph (B).
``(ii) Circumstances in which presumption applies.--The
presumption and deeming stated in clause (i) shall apply if--
``(I) the individual contracts vaccinia during the
effective period of a declaration under subparagraph (A) or
by the date 30 days after the close of such period; or
``(II) the individual resides or has resided with an
individual to whom such vaccine was administered as provided
by clauses (i) and (ii) of subparagraph (B) and contracts
vaccinia after such date.
``(3) Exclusivity of remedy.--The remedy provided by
subsection (a) shall be exclusive of any other civil action
or proceeding for any claim or suit this subsection
encompasses.
``(4) Certification of action by attorney general.--
Subsection (c) applies to actions under this subsection,
subject to the following provisions:
``(A) Nature of certification.--The certification by the
Attorney General that is the basis for deeming an action or
proceeding to be against the United States, and for removing
an action or proceeding from a State court, is a
certification that the action or proceeding is against a
covered person and is based upon a claim alleging personal
injury or death arising out of the administration of a
covered countermeasure.
``(B) Certification of attorney general conclusive.--The
certification of the Attorney General of the facts specified
in subparagraph (A) shall conclusively establish such facts
for purposes of jurisdiction pursuant to this subsection.
``(5) Defendant to cooperate with united states.--
``(A) In general.--A covered person shall cooperate with
the United States in the processing and defense of a claim or
action under this subsection based upon alleged acts or
omissions of such person.
``(B) Consequences of failure to cooperate.--Upon the
motion of the United States or any other party and upon
finding that such person has failed to so cooperate--
``(i) the court shall substitute such person as the party
defendant in place of the United States and, upon motion,
shall remand any such suit to the court in which it was
instituted if it appears that the court lacks subject matter
jurisdiction;
``(ii) the United States shall not be liable based on the
acts or omissions of such person; and
``(iii) the Attorney General shall not be obligated to
defend such action.
``(6) Recourse against covered person in case of gross
misconduct or contract violation.--
``(A) In general.--Should payment be made by the United
States to any claimant bringing a claim under this
subsection, either by way of administrative determination,
settlement, or court judgment, the United States shall have,
notwithstanding any provision of State law, the right to
recover for that portion of the damages so awarded or paid,
as well as interest and any costs of litigation, resulting
from the failure of any covered person to carry out any
obligation or responsibility assumed by such person under a
contract with the United States or from any grossly
negligent, reckless, or illegal conduct or willful misconduct
on the part of such person.
``(B) Venue.--The United States may maintain an action
under this paragraph against such person in the district
court of the United States in which such person resides or
has its principal place of business.
``(7) Definitions.--As used in this subsection, terms have
the following meanings:
``(A) Covered countermeasure.--The term `covered
countermeasure', or `covered countermeasure against
smallpox', means a substance that is--
``(i)(I) used to prevent or treat smallpox (including the
vaccinia or another vaccine); or
``(II) vaccinia immune globulin used to control or treat
the adverse effects of vaccinia inoculation; and
``(ii) specified in a declaration under paragraph (2).
``(B) Covered person.--The term `covered person', when used
with respect to the administration of a covered
countermeasure, includes any person who is--
``(i) a manufacturer or distributor of such countermeasure;
``(ii) a health care entity under whose auspices such
countermeasure was administered;
``(iii) a qualified person who administered such
countermeasure; or
``(iv) an official, agent, or employee of a person
described in clause (i), (ii), or (iii).
``(C) Qualified person.--The term `qualified person', when
used with respect to the administration of a covered
countermeasure, means a licensed health professional or other
individual who is authorized to administer such
countermeasure under the law of the State in which the
countermeasure was administered.''.
SEC. 305. FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTERS.
The Secretary, acting through the Under Secretary for
Science and Technology, shall have the authority to establish
or contract with 1 or more federally funded research and
development centers to provide independent analysis of
homeland security issues, or to carry out other
responsibilities under this Act, including coordinating and
integrating both the extramural and intramural programs
described in section 308.
SEC. 306. MISCELLANEOUS PROVISIONS.
(a) Classification.--To the greatest extent practicable,
research conducted or supported by the Department shall be
unclassified.
(b) Construction.--Nothing in this title shall be construed
to preclude any Under Secretary of the Department from
carrying out research, development, demonstration, or
deployment activities, as long as such activities are
coordinated through the Under Secretary for Science and
Technology.
(c) Regulations.--The Secretary, acting through the Under
Secretary for Science and Technology, may issue necessary
regulations with respect to research, development,
demonstration, testing, and evaluation activities of the
Department, including the conducting, funding, and reviewing
of such activities.
(d) Notification of Presidential Life Sciences
Designations.--Not later than 60 days before effecting any
transfer of Department of Energy life sciences activities
pursuant to section 303(1)(D) of this Act, the President
shall notify the appropriate congressional committees of the
proposed transfer and shall include the reasons for the
transfer and a description of the effect of the transfer on
the activities of the Department of Energy.
SEC. 307. HOMELAND SECURITY ADVANCED RESEARCH PROJECTS
AGENCY.
(a) Definitions.--In this section:
(1) Fund.--The term ``Fund'' means the Acceleration Fund
for Research and Development of Homeland Security
Technologies established in subsection (c).
(2) Homeland security research.--The term ``homeland
security research'' means research relevant to the detection
of, prevention of, protection against, response to,
attribution of, and recovery from homeland security threats,
particularly acts of terrorism.
(3) Hsarpa.--The term ``HSARPA'' means the Homeland
Security Advanced Research Projects Agency established in
subsection (b).
(4) Under secretary.--The term ``Under Secretary'' means
the Under Secretary for Science and Technology.
(b) HSARPA.--
(1) Establishment.--There is established the Homeland
Security Advanced Research Projects Agency.
(2) Director.--HSARPA shall be headed by a Director, who
shall be appointed by the Secretary. The Director shall
report to the Under Secretary.
(3) Responsibilities.--The Director shall administer the
Fund to award competitive, merit-reviewed grants, cooperative
agreements or contracts to public or private entities,
including businesses, federally funded research and
development centers, and universities. The Director shall
administer the Fund to--
(A) support basic and applied homeland security research to
promote revolutionary changes in technologies that would
promote homeland security;
(B) advance the development, testing and evaluation, and
deployment of critical homeland security technologies; and
(C) accelerate the prototyping and deployment of
technologies that would address homeland security
vulnerabilities.
(4) Targeted competitions.--The Director may solicit
proposals to address specific vulnerabilities identified by
the Director.
[[Page H9050]]
(5) Coordination.--The Director shall ensure that the
activities of HSARPA are coordinated with those of other
relevant research agencies, and may run projects jointly with
other agencies.
(6) Personnel.--In hiring personnel for HSARPA, the
Secretary shall have the hiring and management authorities
described in section 1101 of the Strom Thurmond National
Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104
note; Public Law 105-261). The term of appointments for
employees under subsection (c)(1) of that section may not
exceed 5 years before the granting of any extension under
subsection (c)(2) of that section.
(7) Demonstrations.--The Director, periodically, shall hold
homeland security technology demonstrations to improve
contact among technology developers, vendors and acquisition
personnel.
(c) Fund.--
(1) Establishment.--There is established the Acceleration
Fund for Research and Development of Homeland Security
Technologies, which shall be administered by the Director of
HSARPA.
(2) Authorization of appropriations.--There are authorized
to be appropriated $500,000,000 to the Fund for fiscal year
2003 and such sums as may be necessary thereafter.
(3) Coast guard.--Of the funds authorized to be
appropriated under paragraph (2), not less than 10 percent of
such funds for each fiscal year through fiscal year 2005
shall be authorized only for the Under Secretary, through
joint agreement with the Commandant of the Coast Guard, to
carry out research and development of improved ports,
waterways and coastal security surveillance and perimeter
protection capabilities for the purpose of minimizing the
possibility that Coast Guard cutters, aircraft, helicopters,
and personnel will be diverted from non-homeland security
missions to the ports, waterways and coastal security
mission.
SEC. 308. CONDUCT OF RESEARCH, DEVELOPMENT, DEMONSTRATION,
TESTING AND EVALUATION.
(a) In General.--The Secretary, acting through the Under
Secretary for Science and Technology, shall carry out the
responsibilities under section 302(4) through both extramural
and intramural programs.
(b) Extramural Programs.--
(1) In general.--The Secretary, acting through the Under
Secretary for Science and Technology, shall operate
extramural research, development, demonstration, testing, and
evaluation programs so as to--
(A) ensure that colleges, universities, private r |
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