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[Congressional Record: September 4, 2002 (Senate)]
[Page S8155-S8180]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr04se02-129]                         



 
                     HOMELAND SECURITY ACT OF 2002

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of H.R. 5005, which the clerk will state.
  The senior assistant bill clerk read as follows:

       A bill (H.R. 5005) to establish the Department of Homeland 
     Security, and for other purposes.

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Connecticut is recognized to call up amendment No. 4471.
  Mr. REID. Madam President, will the Senator from Connecticut yield to 
let me say a word or two?
  Mr. LIEBERMAN. I will.
  Mr. REID. Madam President, I have been a part of some conversations. 
I think the two leaders are going to have Senator Lieberman and Senator 
Thompson, the managers, determine what is relevant. I don't think they 
are going to do that. They will follow your lead on that.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.


                           Amendment No. 4471

  Mr. LIEBERMAN. Madam President, I call up amendment No. 4471 and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The senior assistant bill clerk read as follows:

       The Senator from Connecticut [Mr. Lieberman] proposes an 
     amendment numbered 4471.

  The PRESIDING OFFICER. Madam President, I ask unanimous consent that 
further reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Tuesday, September 3, 
2002, under ``Text of Amendments.'')
  Mr. LIEBERMAN. Madam President, this legislation is a result of the 
bipartisan work of the committee, and the occupant of the chair, the 
Senator from Missouri, has been a contributing member of it. It was 
endorsed by our committee on July 25 by a 12-to-5 vote. I believe very 
strongly that this deserves passage by the full Senate.
  The substitute I am offering was modified in two respects after the 
committee held its business meetings in July. First, we added an offset 
to certain direct spending in the bill related, in fact, to civil 
service reform. Second, we have clarified earlier language about the 
conduct of risk and threat assessment by the new Department. Both 
changes were made after canvassing members of our committee and with 
the approval of the majority of the committee. I will describe them in 
more detail in a few moments.
  This amendment, almost a year in the making, would create a focused 
and accountable Department of Homeland Security to enable our domestic 
defenses to rise to the unprecedented challenge of defeating terrorism 
on our home soil. Our defenses are either disorganized or organized for 
another day that is past.
  This bill aims to reorganize our homeland defenses to meet the 
unprecedented threats from terrorism that are sadly part of the 21st 
century. This amendment would also create a White House office to 
ensure coordination across the many offices involved in the fight 
against terrorism, including intelligence, diplomatic and law 
enforcement agencies, foreign policy agencies, and economic assistance 
agencies that will remain outside the Department.
  We recognize that the threat of terrorism on American soil will 
painfully be with us for some time. Therefore, the American people 
deserve and demand a Government equipped to meet and beat that threat. 
This committee-endorsed bill is presented in three divisions. Division 
A establishes a Department of Homeland Security, a White House office, 
and a national strategy for combating terrorism. Division B 
incorporates the provisions of the bipartisan Kennedy-Brownback reform 
of the Immigration and Naturalization Service.
  We are going to hear a lot during the debate, I am confident, about 
the need for further reorganization of the constituent agencies we have 
brought together in this bill. But the committee-endorsed bill actually 
does undertake a massive reorganization of the one agency that just 
about everyone agrees is in desperate need of reform, and that is the 
INS. Division C incorporates consensus civil service reforms, 
themselves the product of intensive collaboration and discussion over a 
period of time--months and perhaps years--that were added as an 
amendment by the bipartisan team of Senators Voinovich and Akaka.
  I expect we will hear people saying that our legislation hasn't given 
the President all the management flexibility he has asked for. Of 
course, that is literally true because we believe the administration's 
request simply went too far, usurping not only the fundamental 
responsibility of Congress to adopt civil service laws, but to 
undermine important protections that guard the workplace and Federal 
workers against favoritism and also that create some limits on the 
executive, some sense of accountability that is placed on those who 
have sway over those who have chosen to serve the public as Federal 
employees.
  I urge my fellow Senators on both sides of the aisle to look 
carefully at the reforms we have incorporated and the new flexibilities 
that we do provide, which are sensible and significant indeed and, I 
believe, if passed, would give the Secretary of Homeland Security more 
management flexibility than any Secretary operating under current law 
has ever had.
  I know this promises to be a controversial discussion, a serious 
discussion, and sometimes a passionate discussion. I look forward to 
airing our differences, resolving them, and getting a good bill to 
conference and then to the President's desk, certainly by the end of 
this session.
  We in the Congress have accomplished great and seemingly daunting 
tasks in the past; but, honestly, I can think of few in my time in the 
Senate, which is now 14 years, that have been more critical to our 
common future and cry out to us to work across party lines, to raise 
America's guard against the savage, inhumane, cunning threat

[[Page S8156]]

of international terrorism. In fact, that is what happened on our 
committee.
  The legislation I offer today was, as I have said, endorsed in July. 
It was endorsed in a bipartisan vote of the Governmental Affairs 
Committee. That marked the end of one of many stages in the bill's 
development in our committee. All told, we have been at this for almost 
a year now--more than 11 months. We have worked with colleagues on both 
sides of the aisle. We have worked with experts in the field in various 
aspects of counterterrorism and homeland security. We have worked very 
closely since June 6--when President Bush endorsed the idea of a 
Department of Homeland Security--with the President and his staff at 
the White House.
  We gleaned insight and learned a lot from 18 hearings of the 
Governmental Affairs Committee that were held after September 11 on 
this subject and dozens of hearings held by other committees of the 
Congress.
  I must say that I am proud for our committee of the product of these 
labors. This legislation puts forth a creative, constructive, and 
comprehensive solution to the core homeland security challenges we now 
face.
  Our legislation differs in some respects, including some important 
ones from the House-passed bill and also from the President's proposal. 
We are going to hear people dwell on those differences for much of the 
debate. That is understandable. In some ways, it would be surprising if 
legislation as significant and this large were passed without dissent. 
In some ways, it would be not only surprising but unhealthy. The spirit 
of debate and controversy is here, and I hope out of it we will emerge 
with a very strong bill. In the case of each significant difference, I 
believe in the path we have taken, and I look forward to explaining 
why.
  Let me say again we cannot allow the differences to overshadow the 
vast common ground on which we stand. Mahatma Gandhi said: ``Honest 
disagreement is often a good sign of progress.'' He had a point. With a 
bill this big, as I said, I would be uneasy if the Senate began the 
process in total unison.
  Let's realize the underlying reality and not lose sight of it. Just 
about everyone in this Chamber, on both sides of the aisle, understands 
the urgent necessity of reordering and reorganizing our capabilities to 
detect danger, protect Americans from attack, and respond in the event 
of an incident. That consensus should guide us and should ultimately 
dominate here. In fact, it is hard to find a Member of the Senate or 
the other body who will say they are against the creation of a 
Department of Homeland Security. People have different ideas about how 
one or another piece of it might look, but there is no one I have heard 
who is really against the creation of this Department.
  In the end, that is because I think people understand that the 
current state of disorganization in the Federal Government's apparatus 
for responding to homeland security threats is dangerous. The 
consensus, therefore, for responding to that disorganization is by 
organizing the Federal Government better to meet those threats, to 
protect our people, to protect our infrastructure, to see the threats 
before they emerge through good intelligence and law enforcement, to 
invest in science and technology, to make protection of the American 
people at home easier and more effective. In the end, I am confident 
that we will pass a bill creating a Department of Homeland Security, 
and the sooner the better.
  The American people understand why the creation of a strong 
accountable Homeland Security Department is the best way forward. They 
know that the formation of such a Department will not of itself win our 
war against terrorism. Obviously, we need to continue to encourage and 
support our military that is on the front lines of offense against the 
al-Qaida forces that struck us on September 11 and clearly remain out 
there in the shadows scheming, arming, readying themselves to strike us 
again.
  The disadvantage we now have in defending ourselves because of our 
disorganization can no longer be afforded. Today, as former Assistant 
Secretary of Defense Ashton Carter told our committee on June 26:
  ``Homeland security remains institutionally homeless.''
  It is well stated, ``Homeland security remains institutionally 
homeless.'' Everyone is in charge, therefore, no one is in charge. Our 
legislation would give this vital mission a home under a single roof 
and a firm foundation with someone, the Secretary, clearly in charge 
with the responsible authority and accountability and hopefully the 
resources to get results.
  For the first time, we would require in statute close and ongoing 
White House coordination of the many other pieces of the fight against 
this 21st century threat--terrorism--and those pieces could not be 
included in the Homeland Security Department. They include defense, 
diplomacy, finance, law enforcement, and others.
  For the first time, we, through this legislation, would require a 
comprehensive assessment of threats and vulnerability so that we 
understand the worst threats and the best ways to respond. We need a 
blueprint today. We do not have it. For the first time, we would create 
a new intelligence division focused on the threats to our homeland, 
equipped to truly connect the intelligence and law enforcement dots 
from Federal, State, and local agencies, from human and signal 
intelligence, from closed and open sources, from law enforcement and 
foreign sources, including particularly the Counterterrorism Center at 
the CIA.
  These dots were not connected before September 11. We lived to 
experience the disastrous consequences of that failure.
  For the first time, we would bolster emergency preparedness and 
response efforts to ensure that all layers and levels of Government are 
working together to anticipate and prepare for the worst. Today, 
coordination is the exception, not the rule, and that is no longer 
acceptable.
  For the first time, we would build strong bonds between Federal, 
State, and local governments to target terrorism. State and local 
officials are clearly on the front lines as first responders and, as I 
like to say, first preventers in the fight against terrorism.
  Today, local communities are already expending funds to better 
protect their people and their assets post-September 11. They are 
waiting for help. They need better training, new tools, and a 
coordinated prevention and protection strategy. That absence of 
coordination and failure of adequate support for State and local first 
responders and first preventers is no longer justifiable.
  For the first time, we would bring key border and national entry 
agencies together to ensure that dangerous people and goods and 
containers are kept out of our country without restricting the flow of 
legal immigration and commerce that nourishes the Nation.
  Today, threats to America may be slipping through the cracks because 
of our disorganization, and that is indefensible. For the first time, 
we would promote dramatic new research and technology development 
opportunities in homeland defense. This war has no traditional 
battlefield, as I have said. One of the nontraditional battlefields 
where we must emerge is the laboratory with science and technology. 
This bill would leverage Government and academic research capabilities 
and focus private sector innovation on the challenge. Today these 
efforts are blurred and dispersed, and that is unwise.
  For the first time under this proposal, we would facilitate close and 
comprehensive coordination between the public and private sectors to 
protect critical infrastructure. Fully 85 percent of our critical 
infrastructure is owned and operated by the private sector, but our 
Government is not now working systematically with those companies to 
identify and close vulnerabilities in, for example, communications 
networks, electric grids or food distribution systems. That is 
unbearable.
  Finally, our legislation would adopt consensus civil service reforms 
to give Government new tools to manage it. These bipartisan reforms, 
introduced by Senators Voinovich and Akaka, would provide significant 
new management flexibility in hiring employees and shaping the 
workforce, while assuring that the basic public accountability of the 
civil service system is not summarily dissolved.
  Under our bill, new flexibilities will increase accountability, 
strengthen the chain of command, and give the Secretary and agencies 
throughout our

[[Page S8157]]

Government the ability to put the right people in the right place at 
the right time to defend the security of the American people.
  As the writer H.G. Wells once said, ``Adapt or perish--now as ever--
is nature's inexorable imperative.''
  That is our choice today. Adapt and get stronger, or grow weaker; 
adapt, or give the American people reason to live in fear; adapt, or 
live at the mercy of our cruel and cunning terrorist enemies rather 
than being in control of our own destiny, as a great people should be.
  So that we have an understanding of why this legislation takes the 
form it does, let me tell you briefly how it has evolved. It has been a 
very careful and collaborative process, nearly a year in the making. 
Last October, Senator Specter and I introduced legislation to create a 
Department of Homeland Security. That was S. 1534. That legislation 
drew heavily on the recommendation of the Hart-Rudman Commission on 
National Security in the 21st Century, which was chartered by the 
Secretary of Defense and supported by both the President and Congress, 
with the mission of providing the most comprehensive Government-
sponsored review of our national security in more than 50 years.
  The Commission released three reports in 1999, 2000, 2001, 
respectively. Its third report, phase 3, entitled ``Roadmap for 
National Security: Imperative for Change,'' warned that we would soon 
face asymmetrical and terrorist threats and would need a focused 
Cabinet-level homeland security agency with adequate budget authority 
and direct accountability to the President to detect and counter those 
threats.
  The Commission's conclusion, headed by our former colleagues Gary 
Hart and Warren Rudman, was issued on January 31, 2001, more than a 
half year before the day of darkness, September 11, 2001. Their 
conclusion included this statement: ``The United States is today very 
poorly organized to design and implement any comprehensive strategy to 
protect the homeland.''
  Senators Hart and Rudman, and the other distinguished members of the 
Commission, made their case effectively and, I might say, eloquently. 
But the attacks of September 11 tragically drove the message home as no 
words could or, unfortunately, did. We were suddenly and clearly aware 
that we were more susceptible than we ever expected to the brutality of 
terrorism directed against innocent Americans for one reason only: 
Because they were Americans.
  No matter their origin, in terms of ethnicity, religion, race, 
gender, age, place in life, new American or born American, but just 
because they were Americans in America, they were targets. We realized 
we were susceptible to that kind of violent extremism and we did not 
have the organizational capabilities to leverage our strengths and 
protect ourselves to the best of our ability.
  So the bill I was privileged to introduce with my colleague from 
Pennsylvania, Senator Arlen Specter, making it obviously bipartisan, 
last October, hewed closely to the model proposed by the Hart-Rudman 
Commission and also drew on recommendations made by the Gilmore 
Commission and others. We called for a new Department made up of the 
Coast Guard, Customs, Border Patrol, and FEMA, as well as some smaller 
offices on critical infrastructure protection and emergency 
preparedness.
  The compelling need for such a Department was reinforced in those 18 
hearings before the Governmental Affairs Committee during which 85 
different witnesses testified on various aspects of homeland security. 
We learned a great deal also from dozens of other hearings by other 
committees on both sides of the Hill. So for those who may worry or 
suggest that we are moving more rapidly than we should, this is the 
record: Painstaking, deliberative, extensive consultation, 
investigation, education by experts, and an openness to ideas wherever 
they came from because of the critical necessity to do something to 
protect our security.

  As chairman of the committee, I have been guided by a maxim that was 
used about foreign and defense policy, which is that partisanship stops 
at our Nation's coasts. In the same way, since this new enemy, the 
terrorists, has brought warfare within the United States of America, I 
say when we are discussing matters of homeland security, partisanship 
also must stop. That is the spirit in which our committee has gone 
forward.
  We discovered, whether the subject was anthrax in the mail or port 
security or critical infrastructure protection, that the Federal 
Government is now lacking an approach to our problems that is either 
strong enough or coordinated enough to meet what we now know, post-
September 11, is the reality of the challenge to us. In other words, we 
are dividing our strengths at a time when we should be multiplying 
them.
  Again and again, the same message emerged from the witnesses who came 
before us, in big bold letters one might say: We still are not 
adequately prepared for terrorism at home, and a strong Cabinet-level 
Department, encompassing the key programs related to homeland security, 
is the necessary first step to addressing those deficiencies and 
closing those vulnerabilities.
  The need for such a Department was further underscored by our 
experience with the Office of Homeland Security that was established 
last October by Executive Order of the President. The President 
appointed Gov. Tom Ridge to fill that position. Governor Ridge is an 
able, hard-working public servant. He has had the President's 
confidence and his ear from the very start. But we saw then, and the 
President would later acknowledge, that the office simply lacked the 
budgetary and organizational authority to reshape the Federal 
bureaucracy to define priorities and to get results. Only a Cabinet-
level Secretary in charge of the Cabinet-level Department could 
accomplish that task.
  In the debate that has already begun and clearly will go on in 
consideration of this bill, the President and the administration and 
their allies in this Chamber are saying we have not given the Executive 
enough management flexibility. The fact is that flexibility must come 
with power. It was our bill almost a year ago, in contrast to the 
President's position, that wanted to give the Executive the authority 
to be able to carry out the necessary changes in the Federal 
bureaucracy.
  So to portray somehow that this bill is protective of the Federal 
bureaucracy is not right. In fact, the President's original position 
that this task could be carried out by an Office of Homeland Security 
did not give that office the power. It had no management flexibility 
because the constituent agencies exercised the authority they had under 
law which was superior to the director of the office. Therefore, in 
that sense, as well as all the specific senses in which we give 
management flexibility to the Executive, we are proposing a Department 
with a strong Secretary. That is the way to get the job done: blend the 
employees together, encourage them to work together, and set standards 
for them achieving homeland security. That can only be done by a strong 
Secretary.

  At the same time, however, it became apparent that no single 
Department could address all of the Federal programs or coordinate all 
the programs of all the Federal agencies engaged in homeland security 
or in the war on terrorism. Therefore, last May, Senator Specter and I 
combined our proposal with legislation introduced by our colleague from 
Florida, Senator Bob Graham, chairman of the Intelligence Committee, 
calling for the creation of a National Office for Combating Terrorism 
within the White House to coordinate Federal antiterrorism efforts 
government-wide.
  In contrast to the position created for Governor Ridge by Executive 
Order, this office would be a Senate confirmed-position, with full 
accountability and authority as well as statutory power to review 
Federal budgets related to terrorism.
  The combined legislation that we have before the Senate in the form 
of this substitute amendment which I have introduced this afternoon, 
resulted from, as I said, Senator Specter and I joining with Senator 
Graham. Obviously, there is more added by the committee. That 
legislation originally was introduced on May 2, and considered by the 
Senate Governmental Affairs Committee on May 22 of this year, and 
reported out on a 9-to-7 vote--a vote exactly split along party lines.
  On June 6, we got a surprise, a welcome surprise. We gained another 
supporter, a most important supporter. That was, of course, President 
George

[[Page S8158]]

Bush. This, I believe, was a recognition by the President--he said so 
in his own words--that the Office of Homeland Security, as it was 
created by Executive Order, was just too weak to get the job done. That 
is what we had been arguing for months. That announcement was followed 
by a legislative proposal from the administration. We were pleased to 
see the administration's bill encompass almost all the S. 2452 
provisions regarding a Department of Homeland Security.
  It went further, however, and also proposed that additional programs 
and agencies be transferred to the new Department--and there were some 
good ideas there--to ensure the new administration proposals were 
properly considered and necessary adjustments made to our legislation.
  As chairman of the Governmental Affairs Committee, I held four 
additional hearings on aspects of the President's proposal. 
Incorporating the insight from those hearings, as well as input from 
extensive discussion with colleagues, including committee chairmen and 
ranking members, we prepared an expanded version of S. 2452. The 
expanded version went a considerable way toward incorporating the 
proposals the President and the administration made that had not been 
made part of our original bill. It was further amended during two very 
thoughtful, constructive days of committee deliberation and was 
ultimately endorsed by our Senate Governmental Affairs Committee by a 
bipartisan vote of 12 to 5. That is what I offered as a substitute 
amendment to H.R. 5005. The amendment I now offer is the product of 
this lengthy and healthy process of consultation and deliberation. I 
thank my colleagues in the Senate for indulging me in this brief 
history expedition, and I want to say why I take the time to discuss 
the time it took; and that is to demonstrate that we have gone a great 
distance to hone this bill, to be open to input from anyone, to reach 
consensus, to modify, and amplify different sections.

  The Department we have designed would for the first time combine, 
under a single chain of command and under the leadership of a single 
Secretary who is accountable to the President and the people, dozens of 
agencies and offices responsible for homeland security.
  The Department's overarching mission, as stated in Section 101 of 
this amendment, is twofold: To promote homeland security, particularly 
with regard to terrorism; and to carry out the other functions and 
promote the other missions of entities transferred to the Department as 
provided by law. That is a very important statement.
  As much attention as the first part of the mission, homeland 
security, will get in this debate, the second half cannot be forgotten 
because even though this Department's very reason for being created is 
to intelligently organize our Government's homeland security efforts, 
many of its constituent agencies perform vital, non-homeland security 
duties, as well. They cannot and will not stop doing that work.
  Our bill, in clear and unequivocal language, requires the Department 
to uphold these other missions and functions.
  The extent to which the constituent agencies and programs that are 
brought into this Department can both protect homeland security and 
continue to carry out the other responsibilities will depend on the 
extent to which we in Congress, through the appropriations process, are 
prepared to support this new Department.
  The Secretary will be responsible for running the Department and for 
developing policies and plans for the promotion of homeland security. 
The legislation also charges the Secretary with including State and 
local governments, tribes, and other entities who, again, are first 
responders and first preventers of the fight against terrorism in every 
State and city and county and town in our country. The Secretary must 
consult them, with the Secretary of Defense and also State officers, 
regarding possible integration of the U.S. military, including the 
National Guard, into all aspects of the homeland security strategy and 
its implementation. The Guard is a mighty force, with an historic 
mission which was originally, of course, to protect homeland security. 
It has tremendous potential in this new 21st century, in responding to 
this 21st century threat to our security without making it by any 
stretch, kind of a Federal constabulary. But the Guard has 
extraordinary skill and equipment sophistication and can play a very 
constructive role here.
  We also have charged the Secretary with the responsibility of 
developing a comprehensive information technology blueprint for the 
Department. The Senator from Illinois, Mr. Durbin, talked quite 
eloquently and effectively about one aspect of that yesterday. In 
addition, the Secretary is responsible for administering the homeland 
security advisory system, and for annually reviewing and updating the 
Federal Response Plan for homeland security and emergency preparedness.
  This is a big job. The size should make it clear how much we need the 
new Department. No one in Government is performing these duties 
adequately today. If they are doing the duties, they are not doing them 
systematically, certainly not synergistically. There are a lot of gears 
turning. Some are touching each other, some are not. Some are spinning 
in isolation. We want the gears to turn together, generating torque, 
producing energy, and getting results. That means more security for the 
American people at home.
  No one can claim that the creation of a new Department is a guarantee 
or panacea for all our problems. I agree with Charles Boyd, 
distinguished American, great public servant and Executive Director of 
the Hart-Rudman Commission:
  ``There is no perfect organizational design, no flawless managerial 
mix. The reason is that organizations are made up of people, and people 
invariably devise informal means of dealing with one another in accord 
with the accidents of personality and temperament.'' Even excellent 
organizational structure cannot make impetuous or mistaken leaders 
patient or wise, but poor organizational design can make good leaders 
less effective.

  That, in one sense, is what this is all about. Poor organizational 
design makes good leaders less effective with unnecessary gaps, 
overlaps, and bureaucratic barriers--by spreading authority and 
resources too thin, by diminishing accountability, by tolerating 
overlap and inefficiency--while good organizational design will empower 
good leaders, hold people accountable, and enable their talent and hard 
work to make a difference.
  In other words, 10 gallons of gas poured into a well-designed, 
efficient engine can get you long distances at high speeds, but 10 
gallons poured into an old, less efficient engine won't get you very 
far in a very efficient way.
  That leads me to a second caution about the legislation, which is the 
blueprint that we need to build a Homeland Security Department that 
America needs. In a number of areas likely to be the most 
controversial, I strongly believe we have chosen the right path. But it 
would be arrogant of me or anyone to suggest that this legislation is 
perfect. It is not. That is why we have specifically built into it room 
for adjustment and refinement as the administration actually begins 
moving the pieces together. And we have given them a year from the 
effective date to, in fact, do that.
  We require the administration to report back to Congress 6 months 
after the effective date or earlier during the reorganization process, 
and every 6 months thereafter, and require recommendations for changes 
to law at these junctures and throughout the process.
  So even the passage of this bill will be not the end of the process, 
but its start; as Churchill once said in a very different context, 
``not the beginning of the end, but the end of the beginning.''
  But the fact that we cannot guarantee perfection is no argument 
against this legislation. Obviously, even our country's Constitution, 
which Senator Byrd and Senator Thompson and others quite eloquently and 
correctly honored and celebrated in yesterday's debate, the very 
foundation of our democracy, a democracy created with as much foresight 
and wisdom as any other in the history of government, was not perfect. 
It has been amended 27 times. At the time, the Founders understood it 
had to be built to change over time. Indeed, during the ratification 
debate, Alexander Hamilton urged those who criticized the

[[Page S8159]]

Constitution not to fail to approve it in what he called ``the 
chimerical pursuit of a perfect plan.'' In a more homely translation 
that we constantly--at least regularly--use here: Don't let the perfect 
be the enemy of the good.
  Similarly, we must not fail to create this Department in pursuit of a 
perfect Department. History has dropped at our feet an urgent and 
necessary challenge, to reshape our Government, to protect the lives 
and affirm the values of our people, for surely our terrorist enemies 
are as intent on striking and destroying our humanistic, tolerant, 
inclusive, free values as they are of destroying our people. We can 
either meet the moment by staying focused on that goal or we can let it 
pass by bickering over petty and sometimes partisan or ideological 
particulars.
  Let the debate go forward, but let us, as we go forward in debating 
and amending this substitute amendment that I have laid down, remember 
the urgent challenge the terrorists have given us and the broad ground 
we all seem to occupy about most of how we should respond to that 
challenge, by creating this Department.

  Let's have some debates and disagreements. But when it is all over, 
let's remember, not only in this bill but more generally in our values, 
there is so much more that unites us, and that ultimately is our 
greatest strength against our enemies, past, present, and future. We 
must be certain to preserve that when this debate is done and a new 
Department of Homeland Security is created.
  Mr. President, I ask unanimous consent to have printed in the Record 
an addendum statement, a section-by-section analysis, and a letter 
dated August 28, 2002.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
       Mr. President, I want to share with the Senate my views on 
     the meaning and intent of the provisions we added to this 
     legislation since the Governmental Affairs Committee first 
     considered the bill in May and filed the accompanying report 
     to S. 2452. This legislation has been almost a year in the 
     making, and reflects the thoughtful contributions of an array 
     of distinguished legislators and policy experts.
       Last October, I introduced legislation with Senator Specter 
     to create a Department of Homeland Security (S. 1534). That 
     legislation drew heavily on the recommendations of the United 
     States Commission on National Security/21st Century, also 
     known as the Hart-Rudman Commission. It called for a new 
     department made up of the Coast Guard, Customs, Border 
     Patrol, and FEMA, as well as some smaller offices that 
     specialize in critical infrastructure protection and 
     emergency preparedness. The compelling need for such a 
     department was quickly underscored in a series of hearings 
     before the Governmental Affairs Committee examining aspects 
     of homeland security. Whether the subject was anthrax in the 
     mail, port security, or critical infrastructure protection, 
     the Federal government generally did not have a strong, 
     coordinated approach to address the range of threats. A 
     strong, Cabinet-level department encompassing key programs 
     related to homeland security would be a vital first step to 
     addressing this deficiency. At the same time, however, it 
     became apparent that no single department could address all 
     of the Federal programs engaged in the war on terrorism. 
     Therefore, I combined forces with Sen. Graham, who had 
     proposed legislation to create a White House terrorism office 
     to coordinate federal efforts to combat terrorism government-
     wide. In contrast to the position created by executive order 
     for Gov. Ridge, this office would be a Senate-confirmed 
     position with full accountability and authority, as well as 
     statutory power to review federal budgets relating to 
     terrorism. The combined legislation, the ``National Homeland 
     Security and Combating Terrorism Act of 2002,'' was 
     introduced on May 2, 2002. It was considered by the 
     Governmental Affairs Committee on May 22, 2002 and reported 
     out on a 7-3 vote. A full account of the background and 
     history of that legislation is included in its accompanying 
     report, No. 107-175.
       Before the full Senate had a chance to consider that bill, 
     however, the President announced his support for a Department 
     of Homeland Security. That announcement was followed, on June 
     18, with a legislative proposal from the administration. The 
     administration's bill encompassed almost all of S. 2452's 
     organizational elements regarding a Department of Homeland 
     Security. It went further, however, and proposed that 
     additional programs and agencies be transferred to the new 
     department. To ensure that these new administration proposals 
     were properly considered, the Governmental Affairs Committee 
     held four additional hearings. Then, working with other 
     committee chairmen and ranking members, I prepared an 
     amendment to S. 2452 that was considered at a July 24-25 
     business meeting of the Governmental Affairs Committee. That 
     expanded version of S. 2452 went a considerable way to 
     incorporate Administration proposals that had not been part 
     of the original bill. It was further amended during two days 
     of Committee deliberation, and ultimately endorsed by a 
     bipartisan Committee vote of 12 to 5.
       What follows is a description of some of the key changes to 
     the legislation since the May 22, 2002 markup of S. 2452. It 
     should be considered in concert with Report 107-175, which 
     describes the core of the legislation--most of which is 
     unchanged. A complete section-by-section analysis is also 
     included.
       As reported out of the Governmental Affairs Committee (GAC) 
     on May 22nd, S. 2452 created a Department of Homeland 
     Security with three directorates: Border and Transportation 
     Protection, Critical Infrastructure Protection, and Emergency 
     Preparedness and Response. The GAC-endorsed legislation now 
     includes additional programs and agencies that will be 
     organized into six directorates: the original three, plus 
     directorates for Intelligence, Immigration and Science and 
     Technology, an expanded version of a Science and Technology 
     Office in the original bill. The key changes are summarized 
     below:
       The GAC-endorsed legislation adds the Transportation 
     Security Administration (TSA) to the agencies incorporated 
     into the Directorate for Border and Transportation 
     Protection. TSA was created through the Aviation and 
     Transportation Security Act, Pub. L. 107-71, which was signed 
     into law on November 19, 2001. The agency's mission is to 
     protect the country's transportation systems, including rail, 
     highways, and maritime, although currently its main focus is 
     to improve aviation safety. TSA's responsibilities include 
     meeting a series of deadlines to upgrade aviation security, 
     including the hiring of more than 30,000 airport security 
     personnel, deploying explosive detection systems and other 
     security equipment, facilitating airport passenger and 
     baggage inspection, and implementing other measures to 
     heighten the safety of air travel.
       The inclusion of TSA in the Department will permit better 
     coordination of transportation security operations with other 
     agencies that are responsible for security at the borders. 
     These agencies, which include the Customs Service, Coast 
     Guard, Border Patrol, INS, and border inspection agents from 
     the Animal Plant and Health Inspection Service, are 
     responsible for conducting inspections of travelers and goods 
     entering the United States and for securing the international 
     boundaries the United States shares with Mexico and Canada. 
     TSA's mission to secure our transportation infrastructure is 
     closely tied to maintaining the security of the ports of 
     entry where these border agencies are stationed. For example, 
     cargo containers that pass through our ports are conveyed to 
     other parts of the country through our transportation system, 
     either on rail or the highways, and could cause significant 
     harm and disruption to our transportation infrastructure if 
     they contained explosives or were used in a terrorist attack. 
     It is essential for these agencies to coordinate their 
     efforts so that security measures are linked and more 
     seamlessly implemented. This process will be easier with TSA 
     and the key border agencies in the same chain of command.
       Our transportation system must also be able to move people 
     and goods quickly and efficiently from the borders throughout 
     the country. To ensure the security of this system, TSA needs 
     access to key information regarding vulnerabilities and 
     threats. The Department's Directorate of Intelligence, which 
     I will describe shortly, will have the intelligence 
     architecture to help provide this critical information to TSA 
     and other agencies within the Department. By being closely 
     tied to that intelligence directorate, and to the other 
     border agencies in the Department that will be collecting 
     vital information, TSA will be in a better position to 
     prevent future attacks using the transportation system.
       Finally, as a new agency TSA may be able to take advantage 
     of some economies of scale offered by the new Department. 
     Specifically, it may not need to create certain 
     capabilities--administrative or otherwise--that will already 
     exist in other components of the Department.
       In S. 2452, the Customs Service was transferred intact to 
     the Department. This remains the case in the GAC-endorsed 
     legislation, which also provides that Customs will be 
     preserved as a distinct entity.
       At the request of the Senate Finance Committee Chairman and 
     Ranking Member, the legislation incorporates an amendment, 
     adopted by the Committee and agreed to by both the White 
     House and the Finance Committee Chairman and Ranking Member, 
     which will preserve the ability of the Treasury Secretary--
     with the concurrence of the Secretary--to issue regulations 
     on customs revenue functions that involve economic judgments 
     within the expertise of the Treasury Department, and which 
     can have a major impact on our economy and relationships with 
     foreign countries. These customs revenue functions include: 
     assessing, collecting, and refunding duties, taxes, and fees 
     on imported goods; administering import quotas and labeling 
     requirements; collecting import data needed to compile 
     international trade statistics; and administering reciprocal 
     trade agreements and trade preference legislation. The 
     Customs Service, reporting to the Secretary, is responsible 
     for administering and enforcing these laws, and indeed

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     for all the Custom Service's traditional border and revenue 
     operations; the Commissioner of Customs is also authorized to 
     develop and support the issuance of regulations by the 
     Treasury Secretary regarding customs revenue functions. After 
     further review, Congress may consider legislation to 
     determine the appropriate allocation of these regulatory 
     authorities between the Secretary of Homeland Security and 
     the Treasury Secretary.
       The legislation transfers the Federal Law Enforcement 
     Training Center (FLETC) from the Department of the Treasury 
     to the Directorate for Border and Transportation Protection. 
     FLETC provides basic and advanced agency-specific training 
     for law enforcement officers and analysts at over 70 Federal 
     agencies. This training allows for greater standardization of 
     law enforcement training that is also more cost-effective and 
     is taught by professional instructors using modern 
     facilities. Many of its key customer agencies are being 
     transferred to the new Department, including the Secret 
     Service, INS, Border Patrol, Customs Service, Coast Guard, 
     and Federal Protective Service. Given these relationships, 
     the Department will benefit from the inclusion of FLETC.
       FLETC also provides training to State and local entities 
     and to foreign law enforcement personnel, programs generally 
     not otherwise available to these agencies. The programs also 
     enhance networking and cooperation throughout the law 
     enforcement community, domestically as well as world-wide. 
     Therefore, these programs will support and complement the 
     Department's efforts to work more closely with State and 
     local agencies as well as foreign governments to detect and 
     prevent acts of terrorism.
       The legislation transfers the Coast Guard to the new 
     Department, and specifies that it be maintained as a distinct 
     entity. At the July 24-25 business meeting, the Committee 
     adopted language intended to maintain the structural and 
     operational integrity of the Coast Guard and the authority of 
     the Commandant, ensure continuation of the non-homeland 
     security missions of the Coast Guard and the Service's 
     capabilities to carry out these missions as it is transferred 
     to the new Department, and ensure that the Commandant reports 
     to the Secretary.
       The language, offered as an amendment by Senators Stevens 
     and Collins, states that the Secretary may not make any 
     significant change to any of the non-homeland security 
     missions and capabilities of the Coast Guard without the 
     prior approval of the Congress in a subsequent statute. The 
     President may waive this restriction for no more than 90 days 
     upon his declaration and certification to the Congress that a 
     clear, compelling, and immediate state of national emergency 
     exists that justifies such a waiver.
       The language further directs that the Coast Guard's 
     organizational structure, units, personnel, and non-homeland 
     security missions shall be maintained intact and without 
     reduction after the transfer unless Congress specifies 
     otherwise in subsequent Acts. The language also states that 
     Coast Guard personnel, ships, aircraft, helicopters, and 
     vehicles may not be transferred to the operational control 
     of, or diverted to the principal and continuing use of, 
     any other organization, unit, or entity of the Department.
       Upon the transfer of the Coast Guard to the Department, the 
     Commandant shall report directly to the Secretary and not 
     through any other official of the Department.
       The Inspector General of the Department shall annually 
     assess the Coast Guard's performance of all its missions with 
     a particular emphasis on examining the non-homeland security 
     missions.
       None of the conditions in the approved language shall apply 
     when the Coast Guard operates as a service in the Navy under 
     section 3 of title 14, United States Code.
       The legislation creates a separate directorate for 
     intelligence (DI) to serve as a national level focal point 
     for information available to the government relating to the 
     plans, intentions, and capabilities of terrorists and 
     terrorist organizations. To emphasize its importance to all 
     aspects of Homeland Security, the DI is an independent 
     directorate within the Department, and is headed by an Under 
     Secretary who reports to the Secretary.
       This directorate is a new addition to the legislation since 
     the May 22 markup. It stems from the Administration's 
     proposal to create an intelligence analysis unit within the 
     Department. However, the President's concept has been altered 
     and strengthened in response to testimony before the 
     Committee and input from key senators. Specifically, this 
     proposal reflects important input from Senators Levin and 
     Akaka, both in negotiations and amendments offered at the 
     business meeting. In addition, Intelligence Chairman Senator 
     Graham, Intelligence Vice Chairman Senator Shelby, former 
     Intelligence Chairman Senator Specter and Senator Durbin 
     contributed key ideas.
       As an independent directorate--without the operational 
     responsibilities of other directorates--the DI will focus on 
     providing intelligence analysis to all of the other 
     directorates in the Department, to State and local 
     government, and to law enforcement, for the purpose of 
     preventing terrorist attacks, enhancing border security, 
     protecting critical infrastructure, enhancing emergency 
     preparedness and response, and better informing our research 
     and development activities.
       It is important to note that the new Department, through 
     its component organizations, will be one of the largest 
     generators in the government of information relevant to 
     terrorism. The data it obtains about persons and goods 
     entering the country must be better organized and coordinated 
     with threat data from other agencies if the new Department is 
     going to be able to do its job. The DI, therefore, will be 
     responsible for receiving and analyzing law enforcement 
     information from agencies of the United States government, 
     State and local government agencies (including law 
     enforcement agencies), and the private sector, and fusing 
     such information and analysis with analytical products, 
     assessments, and warnings concerning foreign intelligence 
     from the CIA's Counterterrorist Center in order to detect and 
     identify threats of terrorism and other threats to homeland 
     security. The Counterterrorist Center shall have primary 
     responsibility for the analysis of foreign intelligence 
     relating to international terrorism. However, the DI may also 
     conduct its own supplemental analysis of foreign intelligence 
     relating to threats of terrorism against the United States 
     and other threats to homeland security.
       The DI's mission is critical to all the Department's 
     activities, as well as to the homeland security mission of 
     the intelligence community, law enforcement community, and 
     State and local governments. For this reason, unless the 
     President directs otherwise, the Secretary is provided with 
     broad, routine access to reports, assessments, analytical 
     information, and other information--including unevaluated 
     intelligence--from the intelligence community and other 
     United States government agencies. The Secretary will also 
     receive information from State and local government agencies, 
     and the private sector. As the President may further provide, 
     the Secretary is also authorized to request additional 
     information--either information that an agency already has in 
     its possession, or new information that could require further 
     investigation. The Secretary will work with the Director of 
     Central Intelligence and the Attorney General to ensure that 
     all material received by the Department is protected against 
     unauthorized disclosure and that sources and methods are 
     protected.
       The provision also reflects an amendment by Senator Akaka 
     that makes the Department a full participant in the process, 
     managed by the Director of Central Intelligence, whereby the 
     intelligence community establishes overall requirements and 
     priorities for the collection of national intelligence. 
     Similarly, the Akaka amendment also makes the Directorate 
     responsible for consulting with the Attorney General and 
     other officials to establish overall collection priorities 
     and strategies for information, including law enforcement 
     information, relating to domestic threats.
       The intelligence proposal reflected in the GAC-endorsed 
     legislation was developed after examining the 
     Administration's proposal and hearing from expert witnesses 
     on the critical need for a national level focal point for the 
     analysis of all information available to the United States to 
     combat terrorism. On June 26 and 27, the Committee held 
     hearings on how to shape the intelligence functions of the 
     proposed Department--to determine how, in light of the 
     failure of our government to bring all of the information 
     available to various agencies together prior to September 11 
     the government should receive information from the field, 
     both foreign and domestic, and convert it, through analysis, 
     into actionable information that better protects our 
     security.
       The Committee heard testimony from former directors of the 
     Defense Intelligence Agency and National Security Agency, 
     from FBI Director Mueller and Director of Central 
     Intelligence Tenet, and from William Webster--who headed both 
     the FBI and CIA. It also heard from the Chairman and Vice-
     Chairman of the Intelligence Committee, Senators Bob Graham 
     and Richard Shelby, whose investigation into the failures of 
     September 11 is expected to yield recommendations for broader 
     reforms that address long-standing and systemic problems 
     within the intelligence community.
       Senator Graham's written testimony stated that the 
     Intelligence Committee's hearings thus far have uncovered 
     several factors that contributed to the failures of September 
     11--one of which is ``the absence of a single set of eyes to 
     analyze all the bits and pieces of relevant intelligence 
     information, including open source material.'' Senator 
     Shelby's written testimony stated that ``most Americans would 
     probably be surprised to know that even nine months after the 
     terrorist attacks, there is today no federal official, not a 
     single one, to whom the President can turn to ask the simple 
     question, what do we know about current terrorist threats 
     against our homeland? No one person or entity has meaningful 
     access to all such information the government possesses. No 
     one really knows what we know, and no one is even in a 
     position to go to find out.'' General Patrick Hughes, former 
     director of the Defense Intelligence Agency, echoed these 
     points. His testimony stated that, ``in our intelligence 
     community, we currently have an inadequate capability to 
     process, analyze, prepare in contextual and technical forms 
     that make sense and deliver cogent intelligence to users 
     as soon as possible so that the time dependent operational 
     demands for intelligence are met.''
       The Administration's approach falls short of what we need. 
     A key concern is the mission and position of the intelligence 
     unit

[[Page S8161]]

     within the new Department. By making intelligence its own 
     directorate, our legislation recognizes that the work it does 
     will be instrumental to every other directorate in the 
     organization and to state and local authorities--not just to 
     federal infrastructure protection efforts. The 
     Administration's proposal imbeds the intelligence division 
     within a directorate responsible for critical infrastructure 
     protection. The Administration's proposal is to create an 
     ``information analysis and critical infrastructure protection 
     division''--whose most important role, as CIA Director Tenet 
     testified before the Committee on June 27, would be ``to 
     translate assessments about evolving terrorist targeting 
     strategies, training, and doctrine overseas into a system of 
     protection for the infrastructure of the United States.'' But 
     that is not enough. Intelligence will be crucial not only to 
     infrastructure protection, but to everything this Department 
     will do. It is not hard to imagine many threats to American 
     lives that do not involve infrastructure at all: a plot to 
     detonate a bomb in a shopping mall, for instance, or to 
     unleash a biological agent on a city from above.
       To be most effective, the entity responsible for producing 
     all-sources intelligence analysis should not be charged with 
     implementing operational responsibilities. The danger in the 
     Administration's approach is that the intelligence analysis 
     function will be consumed by the operational needs of 
     critical infrastructure protection, and not focus enough on 
     other aspects of the homeland security fight.
       There is also a practical reason why these two functions 
     should be under different Under Secretaries. Both are very 
     complex functions that have never before been performed in 
     our government. These are very demanding jobs and the GAC 
     endorsed amendment places them under different Under 
     Secretaries so that, like border and transportation security, 
     science and technology, immigration, and emergency 
     preparedness and response, they will receive the focused 
     leadership and attention necessary to succeed. Just 
     protecting our cyber assets--which is only one aspect of 
     critical infrastructure--is a daunting challenge that grows 
     more each year.
       The Under Secretary for Intelligence, who will have to 
     establish and operate a robust Directorate of Intelligence to 
     systematically analyze the threats to our country will be 
     fully consumed with that function. The Under Secretary for 
     Critical Infrastructure Protection, whose role will be to map 
     the threat information to the vulnerabilities in our critical 
     infrastructure, and work closely with other agencies, and the 
     private sector to ensure adequate protective measures are put 
     in place, will also have a huge challenge. However, by making 
     the same official responsible for establishing a robust 
     intelligence division and protecting critical infrastructure, 
     the Administration's proposal underestimates the challenges 
     that we face in both areas.
       Secondly, the President's proposal does not allow the DI 
     sufficient, routine access to information produced by other 
     parts of the Intelligence Community and other agencies. The 
     GAC-endorsed legislation provides the Secretary with broad, 
     routine access to reports, assessments, analytical 
     information, and other information--including unevaluated 
     intelligence--relating to the capabilities, intentions, and 
     activities of terrorists and terrorist organizations, unless 
     otherwise directed by the President. ``Unevaluated 
     intelligence'' refers to the substance of intelligence 
     reports, absent any information about sources and methods. We 
     use this term based on the recommendation of the Chairman of 
     the Senate Intelligence Committee--precisely to make it clear 
     that information about sources and methods, which is 
     generally included in ``raw intelligence'', will be 
     protected. In contrast, the Administration's proposal would 
     curtail the Secretary's access to unanalyzed information. The 
     Secretary would have routine access to reports, assessments, 
     and analytical information. But, except for information 
     concerning vulnerabilities to critical infrastructure, the 
     Secretary would receive access to unanalyzed information only 
     as the President may further provide.
       At the Committee's hearing on June 27, Senator Shelby, the 
     Vice Chairman of the Intelligence Committee, objected to the 
     limitations on information access in the President's 
     proposal. He stated that ``unlike information relating to 
     infrastructure or other vulnerabilities to terrorist attack--
     all of which the Secretary would be given access to `whether 
     or not such information has been analyzed'--information on 
     terrorist threats themselves would be available to the 
     Department only in the form of what is known as `finished' 
     intelligence.'' He testified that, under Sec. 203 of the 
     President's proposal, the Secretary may obtain the underlying 
     information only `by request' or when the President 
     specifically provides for its transmission to the new 
     Department. Senator Shelby called these limitations in the 
     President's bill ``unacceptable''. Clearly, the 
     Administration's proposal would reinforce tendencies not to 
     share information among agencies that have historically been 
     reluctant to share. Our purpose is to remove obstacles to 
     information sharing--obstacles that clearly contributed to 
     the tragedy of September 11--not to reinforce them.
       The GAC-endorsed amendment establishes a proactive DI. In 
     addition to helping set intelligence priorities and receiving 
     analysis from all other agencies in government, it would have 
     routine access to the unevaluated intelligence, the 
     information behind the reports that DHS will receive, unless 
     the President directs otherwise. The Secretary will also be 
     able to request and receive additional information (as the 
     President further provides) that might require agencies to 
     conduct separate investigations or redeploy resources. We 
     anticipate that the cases would be rare where an agency is 
     unwilling or unable to comply with the Secretary's request; 
     however, the President will ultimately determine how 
     conflicts, if any, will be resolved.
       During the July 24-25 business meeting, Senator Thompson 
     offered an amendment reflecting the President's approach on 
     intelligence; however that amendment was defeated.
       S. 2452 included a Directorate for Critical Infrastructure 
     Protection (CIP). The GAC endorsed amendment continues to 
     include that directorate, and expands it to incorporate 
     significant additions as proposed by the President. The 
     Directorate will be headed by an Under Secretary who is 
     appointed by the President with the advice and consent of the 
     Senate.
       The CIP will combine the key entities, currently scattered 
     across the Federal government, that are charged with working 
     with the private sector and other agencies to protect various 
     sectors of our nation's critical infrastructure. The 
     authorities, functions, personnel, and assets of several 
     offices are transferred to the Department. These include the 
     Critical Infrastructure Assurance Office of the Department of 
     Commerce (established by Presidential Decision Directive 63 
     in 1998 to coordinate federal initiatives on critical 
     infrastructure); and the National Infrastructure Protection 
     Center of the Federal Bureau of Investigation (other than the 
     Computer Investigations and Operations Section, which the 
     Administration requested remain in the FBI to ensure that 
     it continues to have a capability to pursue computer 
     crimes). To these we have added several important entities 
     from the President's proposal: (1) the National 
     Communications System of the Department of Defense 
     (established by Executive Order in 1984 to assist the 
     President and others in: (a) the exercise of 
     telecommunications functions and (b) coordinating the 
     planning for and provision of national security and 
     emergency preparedness communications); (2) the Computer 
     Security Division of the National Institute of Standards 
     and Technology (NIST) of the Department of Commerce (which 
     is tasked with improving information systems security); 
     (3) The National Infrastructure Simulation and Analysis 
     Center of the Department of Energy (established to serve 
     as a source of national competence to address critical 
     infrastructure protection and continuity through support 
     for activities related to counterterrorism, threat 
     assessment, and risk mitigation); (4) The Federal Computer 
     Incident Response Center of the General Service 
     Administration (a partnership of computer incident 
     response, security, and law enforcement personnel to share 
     information and handle computer security incidents); and 
     (5) The Energy Security and Assurance Program of the 
     Department of Energy, a national security program to help 
     reduce America's energy supply vulnerability from severe 
     disruptions due to natural or malevolent causes.
       Finally, the GAC endorsed legislation transfers the Federal 
     Protective Service of the General Services Administration 
     (GSA) to the CIP. The President proposed that FPS be 
     transferred to the Border and Transportation Protection 
     Directorate. The Federal Protective Service oversees security 
     at Federal property managed by GSA. Its expertise and mission 
     is to provide physical security for some of our nation's key 
     resources, making it more appropriate that it be combined 
     with the other entities responsible for physical security and 
     cyber security in this Directorate.
       The GAC endorsed legislation establishes specialized 
     research and analysis units in the CIP to process 
     intelligence and identify vulnerabilities in key areas, 
     including: (a) Public health, (b) food and water storage, 
     production, and distribution; (c) commerce systems, including 
     banking and finance; (d) energy systems, including electric 
     power and oil and gas production and storage; (e) 
     transportation systems, including pipelines; (f) information 
     and communication systems; (g) continuity of government 
     services; and (h) other systems or facilities the destruction 
     of which would cause substantial hard to health, safety, 
     property, or the environment.
       Among its other duties, the CIP shall be responsible for 
     receiving relevant information from the Directorate of 
     Intelligence, law enforcement, and other information to 
     assess the vulnerabilities of the key resources and critical 
     infrastructures; identifying priorities and supporting 
     protective measures by the Department and other entities; 
     developing a comprehensive national plan for securing key 
     resources and critical infrastructure; enhancing and sharing 
     of information regarding cyber-security and physical 
     security; developing security standards, tracking 
     vulnerabilities, proposing improved risk management policies; 
     and delineating the roles of various governmental agencies in 
     preventing, defending, and recovering from attacks.
       The Directorate will also be responsible for establishing 
     the necessary organizational structure to provide leadership 
     and focus on both cyber-security and physical security, and 
     ensuring the maintenance of a nucleus of

[[Page S8162]]

     cyber and physical security experts in the United States 
     Government. Both cyber and physical security are critical to 
     the adequate protection of those systems on which our 
     nation's economy and culture depend. The CIP will be 
     responsible for utilizing the best modeling, simulation, and 
     analytic tools to prioritize the effort.
       The creation of this Directorate indicates broad consensus 
     on the need for a single entity to coordinate a national 
     effort to secure America's critical infrastructure. This is a 
     shared responsibility of Federal, State, and local 
     governments along with a private sector which owns 85% of our 
     nation's critical infrastructure. However, unlike the 
     President's proposal, which combines information analysis and 
     infrastructure protection under one Under Secretary, the GAC 
     amendment places Critical Infrastructure Protection in its 
     own directorate where it will work closely with the 
     Intelligence Directorate. This was done both to elevate and 
     stress the centrality of intelligence analysis to all of the 
     Department's missions, but also because critical 
     infrastructure protection is a sufficiently complex and 
     daunting challenge that it will require the focused 
     leadership and attention of an Under Secretary.
       As reported out of the Committee in May, S. 2452 would have 
     transferred the law enforcement programs of the Immigration 
     and Naturalization Service to the new Department, while 
     leaving its service functions at the Department of Justice. 
     However, key senators and immigration experts argued that 
     this course could undermine the critical task of reforming 
     the INS. The GAC-endorsed legislation now transfers all 
     immigration functions to the new Department, but specifies 
     that the INS be disbanded and reorganized along the lines of 
     a major, bipartisan reform bill, S. 2444, sponsored by 
     Senators Kennedy and Brownback. These senators are the 
     chairman and ranking member, respectively, of the immigration 
     subcommittee of the Senate Judiciary Committee, and have 
     assembled an impressive bipartisan majority of that committee 
     in support of their legislation. Rather than try to 
     characterize their handiwork for them, I am attaching a 
     letter from Senators Kennedy and Brownback describing the 
     substance of the immigration reforms now incorporated in this 
     legislation.
       Because the work of reforming INS is very demanding, the 
     immigration programs will be in their own directorate, with 
     direct accountability to the Secretary, rather than included 
     as part of the Border and Transportation Protection 
     directorate. However, to ensure adequate coordination between 
     immigration programs and other agencies that operate at the 
     border, the legislation creates a Border Security Working 
     Group. This Working Group will consist primarily of the 
     Secretary, or his designee, and the Under Secretaries for 
     Immigration and Border and Transportation Protection. It will 
     meet at least four times a year, and coordinate matters 
     including budget requests, staffing requirements, and use of 
     equipment. This working group can also bring in other federal 
     agencies with border operations (such as the Drug Enforcement 
     Administration or the Food and Drug Administration) that are 
     not part of the Department, offering a critical mechanism for 
     government-wide coordination along the border and at ports of 
     entry.
       The legislation also gives the Secretary regulatory 
     authority over the visa application process. Consular 
     employees at the Department of State would continue to 
     process visa applications. However, the Secretary would have 
     authority to issue regulations concerning the application 
     process. This would include the required procedures for 
     considering an application, such as whether all applicants 
     must be interviewed in person or what kind of 
     identification documents would be required. In addition, 
     the Secretary would have authority to station Departmental 
     employees oversees to consult with State Department 
     employees on the visa process and specific threats.
       The homeland security mission will face profound 
     technological needs and requirements, and the challenges are 
     substantial. The first challenge derives from the fact that 
     most research and development of new technologies relevant to 
     homeland security will occur outside the new Department--in 
     other agencies, academia, and the private sector. Therefore, 
     the Department will require powerful tools and mechanisms to 
     elicit cooperation from entities external to the Department, 
     and to coordinate R&D efforts across a range of disparate 
     groups, each with their own missions and priorities, in 
     service to homeland security goals. The legislation attempts 
     to provide the Directorate of Science and Technology with the 
     mechanisms it needs to resolve this fundamental coordination 
     problem. The legislation establishes a Security Advanced 
     Research Projects Agency (SARPA), which is inspired by the 
     highly successful Defense Advanced Research Projects Agency 
     (DARPA) of the Department of Defense (DOD). Following the 
     DARPA model, SARPA will have funding, in the form of an 
     Acceleration Fund, to support key homeland security R&D both 
     within and outside of the federal government, and to leverage 
     collaboration on R&D between entities, particularly among the 
     agencies. A second mechanism provided under the legislation 
     is a Science and Technology Council consisting of senior R&D 
     officials from the agencies and other appropriate entities. 
     The Council will assist the Under Secretary in coordinating 
     interagency efforts to execute the science and technology 
     agenda of the Department, primarily through supporting the 
     development of a comprehensive technology roadmap for 
     establishing common priorities and allocating individual 
     responsibilities. Another important mechanism is the ability 
     to directly engage any of the Department of Energy (DOE) 
     national laboratory and sites through joint sponsorship 
     agreements in carrying out R&D activities for homeland 
     security purposes. With respect to bioterrorism research, the 
     Secretary will be able to ensure that the best researchers 
     are focused on developing necessary countermeasures against 
     biothreats by establishing general priorities for biothreat 
     research programs conducted at the National Institutes of 
     Health.
       A second R&D challenge is to assure that the Directorate 
     will have expedient access to broad, deep, and ongoing 
     support for critical analysis and decision-making regarding 
     scientific or technical issues. To address this issue, the 
     legislation provides authority for the Directorate to 
     contract with or establish Federally Funded Research and 
     Development Centers (FFRDCs) to obtain independent 
     analytical, scientific, and technical expertise and support, 
     including support for risk analysis and risk management 
     functions. In addition, an Office of Risk Analysis and 
     Assessment is created within the Directorate to ensure that 
     such risk analysis functions are given institutional priority 
     and conducted internally or through outsourcing to FFRDCs.
       A third challenge is for the Department to develop and 
     effectively manage a critical mass of internal homeland 
     security R&D capabilities. The legislation transfers a number 
     of entities from the Department of Energy, and one to be 
     created in the Department of Defense, that will constitute a 
     core scientific base upon which the Department will conduct 
     in-house R&D efforts central to its mission. Fundamental to 
     developing this in-house expertise is the ability to procure 
     a strong talent base and to engage them in innovative 
     projects quickly. In view of this, the legislation affords 
     the Secretary with flexible management tools to hire and 
     retain top flight scientific and technical personnel, as well 
     as to accelerate R&D and prototype projects to advance the 
     homeland security mission.
       Intelligent and coordinated deployment of technology within 
     the Department is a fourth challenge that must be overcome. 
     Too often, government agencies are hampered and distracted 
     from their fundamental missions as a result of unstructured 
     and technically unsophisticated approaches to technology 
     acquisition and deployment that lead to interoperability 
     problems downstream. The legislation establishes an Office 
     for Technology Evaluation and Transition to assist the Under 
     Secretary in his responsibilities as the chief technology 
     officer and to assure his central role in testing, 
     evaluating, and approving new homeland security technologies 
     being considered by the Department for acquisition.
       Lastly, the Committee recognizes that a sea of scientific 
     and technological expertise and resources resides outside the 
     walls of the Federal government, and has therefore included 
     several provisions to engage the private sector in 
     maintaining our national security. Transition of technology 
     is emphasized throughout the section. An Advisory Panel 
     consisting of experts from the private sector and academia 
     may be convened by the Secretary to advise the Under 
     Secretary and Council and promote communication with non-
     federal entities. The Office of Technology Evaluation and 
     Transition described earlier will provide a gateway and 
     clearinghouse for companies with innovative technologies 
     relating to homeland security. This Office will also have 
     particular responsibility for facilitating the transition of 
     technologies into fielded systems for use by the Department, 
     other agencies, or private sector entities. Another provision 
     requires the Secretary to articulate a strategy and plan for 
     encouraging biotechnology firms, pharmaceutical companies, 
     and other entities to develop countermeasures against 
     biological and chemical weapons, with a view towards 
     commercial production. A fourth provision directs the Under 
     Secretary to establish a National Emergency Technology Guard 
     composed of teams of volunteer experts in science and 
     technology to assist local communities in responding to and 
     recovering from disasters requiring specialized scientific or 
     technical skills.
       Taken in combination, the mechanisms granted by the 
     legislation provide the Department with an array of tools 
     with which to forcefully tackle the set of R&D challenges 
     confronting it. The legislative history and specific details 
     regarding the legislation are discussed in greater detail 
     below.
       S. 2452, as reported out of the Committee on May 22, 
     contained a provision establishing an Office of Science and 
     Technology within the new Department of Homeland Security. 
     The underlying intent of this provision was to create an R&D 
     entity similar in organization and function to the Defense 
     Advanced Research Projects Agency, which was selected as an 
     appropriate model for the Department's R&D component in light 
     of the fact that the Department, as originally contemplated, 
     would have had limited capability to conduct R&D internally. 
     Consequently, it was determined that the Department could 
     most effectively initiate and promote R&D in support of its 
     mission through a DARPA-like entity with a lean, flexible 
     organizational structure joined with funding to leverage 
     external interagency collaboration. Since the release of the 
     President's proposal for the Department, and in

[[Page S8163]]

     response to that and additional input received by the 
     Committee from a broad range of contributors, including 
     other Member offices and experts from the scientific 
     research and technology communities, the scope and 
     responsibilities of the Office have been broadened.
       The legislation redesignates the Office of Science and 
     Technology as the ``Directorate of Science and Technology'' 
     (``Directorate''), and elevates the head of the Directorate 
     to the rank of a Senate-confirmed Under Secretary. This 
     follows the consensus view of the National Academy of 
     Sciences that the Directorate's chief science and technology 
     (S&T) official requires sufficient stature to influence and 
     coordinate S&T policies and activities outside the 
     Department. The Under Secretary will be responsible for 
     executing the Directorate's mission of managing and 
     supporting R&D activities to meet national homeland security 
     needs and objectives; articulating national R&D goals, 
     priorities, and strategies pursuant to the mission of the 
     Department; coordinating with entities within and outside 
     government to advance the R&D agenda of the Department; 
     advising the Secretary of the Department on all scientific 
     and technical matters; facilitating the transfer and 
     deployment of technologies critical to homeland security 
     needs; and generally serving as the Department's chief 
     technology officer.
       The legislation provides a number of key components to 
     assist the Directorate in meeting its mission. First among 
     these is SARPA, the new R&D agency modeled after DARPA that 
     was established in the original version of the legislation 
     and is retained in the amended legislation. DARPA was created 
     in 1958 in response to the launch of Sputnik. It is an 
     organization that recruits outstanding scientific and 
     technical talent and funds high-risk, high-payoff projects 
     that offer the potential for revolutionary advances. DARPA's 
     nimble, aggressive and creative approach has consistently 
     produced impressive and effective war-fighting technologies. 
     Moreover, in the course of fulfilling its central mission, 
     DARPA has developed technologies with broad commercial and 
     societal application, such as the Internet. Of particular 
     significance to the Committee in selecting DARPA as a model 
     for the S&T apparatus in the Department is DARPA's use of its 
     funding to leverage R&D investments in other parts of DOD, 
     effectively generating a multiplier effect that maximizes 
     DARPA's contribution to national defense in disproportion to 
     its actual funding level. Over five decades, DARPA has been 
     recognized as one of the most productive engines of 
     technological innovation in the U.S. government.
       While DARPA concentrates primarily on the development of 
     revolutionary technologies, SARPA will have a broader focus 
     consistent with its larger mission. Since there are many 
     technologies relevant to homeland security in various stages 
     of development and deployment, SARPA will promote a wide 
     range of technology development, transition, and deployment 
     efforts, as well as research for revolutionary new 
     technologies. Nevertheless, the Committee anticipates that 
     with an Acceleration Fund authorized at $200 million for 
     FY03, SARPA will have the foundation for replicating or 
     exceeding DARPA's success in catalyzing critical new 
     technologies by initiating and leveraging R&D among public, 
     private, or university innovators. Under an amendment offered 
     by Senator Stevens, ten percent of the Acceleration Fund is 
     to be allocated to Coast Guard homeland security R&D missions 
     for FY'04 and FY'05 through a joint agreement with the 
     Commandant of the Coast Guard.
       While Congress should restrain itself in directing 
     particular management strategies, it is the Committee's 
     expectation that SARPA will take full advantage of evolving 
     modern management strategies in the R&D field, particularly 
     in assuring effective technology transition. For example, the 
     Committee would expect SARPA to engage in a careful ``needs 
     identification'' effort which involves eventual technology 
     ``users'' in its R&D roadmapping and planning exercises. The 
     Committee also expects that it operate not simply as a 
     traditional research organization but that it explore methods 
     to involve venture participants, incubate new technologies, 
     encourage the startup process, facilitate prototyping, and 
     promote strategic government and private sector supporters 
     and investors. SARPA will also need to actively encourage 
     connections with technology first-adopters in and out of 
     government, and establish interactive feedback systems for 
     technology development and deployment to ensure sustained 
     interaction between front-line researchers and with users.
       To support the Directorate and its functions, an 
     interagency Science and Technology Council, which is the 
     successor to the Science and Technology Steering Council 
     contained in the original version of the legislation, will 
     advise the Under Secretary on priorities and strategies for 
     homeland security R&D. This Council will consist of senior 
     R&D officials from across the government and will serve to 
     facilitate interagency coordination on R&D activities 
     pertinent to homeland security. One of the chief 
     responsibilities of the Council will be to assist the Under 
     Secretary in developing overarching technology roadmap that 
     will enable a coherent national homeland security R&D program 
     to be coordinated among the many federal agencies.
       The Administration's proposal contemplated the designation 
     of one of the DOE national laboratories to serve as the 
     primary research and development center for the Department. 
     However, in recognition of the extensive scope and nature of 
     homeland security R&D, as well as the different research and 
     technology-related capabilities possessed by each of the DOE 
     laboratories and sites, the GAC-endorsed legislation 
     establishes in the Directorate an Office for National 
     Laboratories to coordinate and utilize such entities in 
     creating a networked laboratory system to support the 
     missions of the Department. Through joint sponsorship 
     agreements with the DOE, the legislation allows the 
     Department to easily access and benefit from the combined 
     expertise of all of the DOE laboratories and sites.
       The Department will have extraordinary analytical needs 
     cutting across of all of its Directorates, especially with 
     regard to the assessment, analysis, and management of 
     threats, vulnerabilities, and risks. Although the 
     Administration's bill did not specifically address this need, 
     the President's Strategic Plan released in mid-July suggests 
     that risk analysis is a fundamental issue that needs to be 
     addressed in planning for our nation's security. Although the 
     legislation vests ultimate responsibility for risk analysis 
     and risk management by the Department with the Secretary, all 
     the Directorates will be required to assist the Secretary in 
     coordination with each other and consistent with their own 
     missions. The Directorate of Science and Technology has a 
     contributing role to play in this framework by providing the 
     Secretary and the other Directorates with scientific and 
     technical support for such functions. To ensure that the 
     Directorate has access to the requisite resources and 
     expertise to fulfill its risk analysis responsibilities and 
     other research-related functions, the legislation gives the 
     Department the power to contract with or establish FFRDCs-
     independent, non-profit institutions that conduct analysis 
     and provide support integral to the mission and operation of 
     the sponsoring agency. Thirty-six FFRDCs across the nation 
     have proven indispensable in enabling the government to 
     undertake research with a creativity and flexibility not 
     always available within the confines of a federal agency. 
     The importance of FFRDCs is underscored by a prominent 
     study on homeland security conducted by the National 
     Academy of Sciences, which recommended the establishment 
     of an FFRDC to furnish capabilities related to risk 
     analysis, scenario-based threat assessments, red teaming, 
     and other functions. Moreover, an Office of Risk Analysis 
     and Assessment is created within the Directorate to ensure 
     that these functions are given institutional priority and 
     carried out--whether internally or through outsourcing to 
     FFRDCs--in a coordinated manner in accordance with the 
     Secretary's requirements and overall management. This 
     Office will assume operational responsibility within the 
     Directorate and on behalf of the Under Secretary for 
     supporting the risk analysis and risk management needs of 
     the Secretary and the other Directorates, as well as help 
     ensure that R&D activities are aligned with risks and 
     threats.
       The President's proposal included language that would grant 
     the Department control over funds appropriated to the 
     National Institute of Health (NIH) for bioterrorism research. 
     Although the provision clearly contemplated that these funds 
     would remain committed to the NIH for application in 
     accordance with the Department's guidelines, the Committee 
     was concerned that the provision technically allowed for such 
     funds to be transferred to other agencies, thereby depriving 
     the NIH of funding necessary to conduct its critical research 
     in this area. With the collaboration of staff from the 
     Administration and Senator Thompson's office, a final 
     provision was negotiated under which NIH funds would not be 
     transferred out of the HHS. Instead, through joint strategic 
     agreements, the Secretary of the Department would set general 
     research priorities for the funds, while the HHS would 
     establish the specific scientific research agenda as well as 
     award and manage all grants. This modified language will 
     protect our strategic commitment to biodefense research, 
     while leaving the means and methods for this research to the 
     scientists at the NIH.
       The President's proposal targeted a number of R&D entities 
     and programs in other agencies for transfer into the 
     Department. While the Committee does not agree with all of 
     the Administration's transfers, it recognizes the value of 
     providing the Department with a critical base of in-house R&D 
     capabilities. Therefore, most of the programs targeted by the 
     Administration have been moved, including the chemical, 
     biological, and nuclear threat assessment and detection 
     programs within the Department of Energy (DOE) relevant to 
     homeland security, and the National Bio-Weapons Defense 
     Analysis Center to be created within the Department of 
     Defense. The transferred programs will be collectively 
     supervised by a new Office of Laboratory Research. Together, 
     these transferred entities will confer a basic in-house 
     research capability with the resident scientific expertise to 
     help the Directorate better coordinate the broader 
     government-wide homeland R&D portfolio.
       Given that the Federal government represents only one of 
     several sectors in our nation with R&D resources and 
     expertise, the Department will require mechanisms to engage 
     and benefit from private sector and academic efforts 
     regarding homeland security. Toward this end, the legislation 
     allows for the establishment of an Advisory Panel consisting 
     of experts from the private sector,

[[Page S8164]]

     academia, State, and local entities to advise and support the 
     Under Secretary and the Science and Technology Council. The 
     Panel will ensure that a diversity of perspectives are taken 
     into consideration in the establishment of priorities, and 
     that the contributions to be made from the private sector are 
     properly addressed and incorporated into the national 
     homeland security effort.
       The Directorate will also include an Office for Technology 
     Evaluation and Transition, which will serve as a 
     clearinghouse and national point-of-contact for companies and 
     other entities that possess technologies relevant to homeland 
     security. The Office will evaluate these technologies and, if 
     appropriate, assist in developing and transitioning them into 
     Department entities or other agencies possessing matching 
     needs. The Technical Support Working Group (TSWG) provides an 
     applicable model for this function, and the legislation 
     requires the Office to coordinate with or work through TSWG, 
     or use TSWG as a model, in performing this technology 
     solicitation and transition role. It is also intended that 
     this Office serve as the Department's internal center for 
     testing and evaluating new technologies being considered for 
     acquisition or deployment by the Department or its entities. 
     The new Department will be a large one, and very dependent on 
     technology in carrying out its homeland mission. As a result, 
     it is vital that new technologies deployed in the 
     Department's component Directorates and other entities be 
     compatible and interoperable to ensure efficiency and 
     expanded capability. The Office, by performing the 
     Department's testing and evaluation function, will support 
     the Under Secretary in carrying out his duties as the 
     Department's chief technology officer. In addition to 
     conducting testing and evaluation activities for the 
     Department, the Office will also coordinate with the 
     Department's Chief Information Officer and with other 
     agencies in promoting government-wide compatibility and 
     interoperability with regard to homeland security 
     technologies and systems.
       Rapidly developing medicines and antidotes to counter 
     chemical and biological weapons is an enormous challenge and 
     one that government-supported R&D cannot accomplish on its 
     own. The legislation directs the Secretary to implement a 
     strategy to engage the biotechnology and pharmaceutical 
     industries in the critical research and product development 
     that will produce antidotes and vaccines to the chemical and 
     biological weapons that terrorists may employ against our 
     nation. This strategy should explore and suggest ways to 
     provide incentives and facilitate ``bench-to-bedside'' 
     transition for these products.
       Recognizing that technological prowess in this country is 
     in communities, as well as colleges and companies, the 
     Department must tap the boundless expertise and energy of 
     ordinary citizens. Drawing on legislation developed in the 
     Senate Commerce Committee, the legislation endorsed by the 
     Committee creates a National Emergency Technology Guard of 
     volunteers with expertise in science and technology to assist 
     local communities in responding to and recovering from 
     emergencies requiring scientific or technical expertise.
       As reported on May 22, S. 2452 included a Directorate of 
     Emergency Preparedness and Response, with FEMA as its core. 
     The new GAC-endorsed legislation retains this directorate and 
     expands it to include some of the programs the Administration 
     proposed moving to the new department. This amendment also 
     provides that the President may appoint the same person to 
     serve as both the Director of FEMA and the Under Secretary 
     for this directorate.
       This directorate's responsibilities include organizing and 
     training local entities to respond to emergencies and 
     providing State and local authorities with equipment for 
     detection, protection, and decontamination in an emergency 
     involving weapons of mass destruction; overseeing 
     Federal, State, and local emergency preparedness training 
     and exercise programs; assembling a single Federal 
     disaster plan to help orchestrate Federal assistance for 
     any emergency; coordinating among private sector entities, 
     including the health community, in emergency planning and 
     response activities; and developing a comprehensive plan 
     to address the interface of medical informatics and the 
     medical response to terrorism. (Medical informatics is the 
     scientific field that addresses the storage, retrieval, 
     sharing, and optimal use of biomedical information, data, 
     and knowledge for problem-solving and decision-making.) 
     This directorate also creates a National Crisis Action 
     Center to coordinate federal support for State and local 
     governments and the private sector during a crisis; 
     additionally, the directorate is responsible for ensuring 
     the appropriate integration of operational activities of 
     the Department of Defense, the National Guard, and other 
     federal agencies in the Federal Response Plan in order to 
     respond to acts of terrorism and other disasters.
       In addition to FEMA, the Emergency Preparedness and 
     Response directorate transfers the National Office of 
     Domestic Preparedness, within the FBI. This entity was 
     created by the Attorney General in 1998 and coordinates 
     federal efforts to assist state and local emergency 
     responders with training and materials necessary to respond 
     to an event involving weapons of mass destruction. The Office 
     of Domestic Preparedness (ODP) within the Department of 
     Justice is also transferred. ODP was developed to help train 
     State and local law enforcement agencies to respond to 
     terrorist incidents.
       The Administration proposed transferring the Select Agent 
     Registration Enforcement Program from the Centers for Disease 
     Control within the Department of Health and Human Services, 
     to the Department. The Select Agent Registration Enforcement 
     Program was developed to identify all biological agents and 
     toxins that may threaten public health and safety, regulate 
     the transfer of such agents and toxins, and establish a 
     registration scheme regulating their possession, use, and 
     transfer. The GAC-endorsed legislation transfers this program 
     to the Emergency Preparedness and Response directorate 
     because it is a program critical to preparing for and 
     responding to a public health emergency. The Under Secretary 
     for Science and Technology, the Secretary of Agriculture, and 
     the Director of the Centers for Disease Control and 
     Prevention will work together to establish and update the 
     list of toxins to be monitored.
       Like the Administration's proposal, the GAC-endorsed 
     legislation transfers the Strategic National Stockpile to the 
     new department. The Strategic National Stockpile is a 
     stockpile of drugs and vaccines that may be used in the event 
     of a terrorist attack or other emergencies. However, because 
     of CDC's experience and expertise, the legislation allows for 
     the Stockpile to be managed on a day-to-day basis for the 
     Department by CDC through a new Bioterrorism Preparedness and 
     Response Division, which is created in this legislation 
     pursuant to an amendment from Senator Cleland. However, the 
     Department would remain in charge of the overall strategic 
     planning concerning the Stockpile. The Public Health 
     Emergency and Bioterrorism Preparedness and Response Act of 
     2002 authorized funds for both the Stockpile and the 
     acquisition of smallpox vaccine doses and potassium iodide. 
     Consequently, the GAC-endorsed legislation transfers 
     responsibility for the acquisition of smallpox doses and 
     potassium iodide to this directorate as well.
       Finally, the Administration also proposed transferring the 
     Office of the Assistant Secretary for Public Health 
     Preparedness (OPHP) from the Department of Health and Human 
     Services to the Emergency Preparedness and Response 
     directorate. This office has three primary components: (1) 
     the awarding and administration of state and local grants for 
     public health preparedness; (2) the Principal Science 
     Advisor, who advises the Secretary on the global R&D strategy 
     for HHS; and, (3) the Office of Emergency Preparedness, which 
     manages rapid-response emergency health and first-responder 
     personnel. From this Office of the Assistant Secretary for 
     Public Health Preparedness, the GAC-endorsed legislation 
     transfers the Office of Emergency Preparedness.
       The other two components of the OPHP each play a role in 
     emergency response, but also a very extensive role in general 
     public health. Because they perform a dual-use function, and 
     because of their extensive interaction with other parts of 
     HHS, it does not seem appropriate to transfer them to the new 
     department. Additionally, experts in the public health and 
     biomedical communities expressed concern that the 
     Administration's proposal would not operate effectively. The 
     OPHP was established to address the problems of intra-agency 
     communication and coordination, and it could reverse the 
     gains achieved by this office to remove it from the 
     department with which it is primarily engaged. Indeed, HHS 
     would be probably be forced to re-create this capacity 
     internally if OPHP were transferred to the Department.
       At the same time, it is important the Department have in-
     house capability to address biological, chemical, and nuclear 
     weapons. Consequently, the Department would include those 
     public health and biomedical programs--the OEP, the Select 
     Agent Registration Enforcement Programs, and the Strategic 
     National Stockpile--which focus primarily on terrorism and 
     emergency response.


                             Secret Service

       The legislation adopts the Administration's proposal to 
     include the United States Secret Service as a distinct entity 
     reporting directly to the Secretary. The Service has a dual 
     mission of protection and investigation, with a central focus 
     on preventing attacks and other missions now very relevant to 
     terrorist threats. The Service was originally created to 
     safeguard the country's currency and financial payment 
     systems, and it remains the sole agency charged with 
     enforcing the counterfeiting statutes. Its responsibility for 
     protecting the country's financial infrastructure has led to 
     an expansion of the Service's investigative mission, which 
     now includes crimes involving identity theft, credit card 
     fraud, false identification documents, computer fraud, and 
     financial institution fraud. In addition, the Secret Service 
     is well-known for its mission to protect the nation's highest 
     elected leaders and their families, as well as visiting heads 
     of state. In recent years, the Secret Service has assumed 
     responsibility for planning, coordinating, and implementing 
     security operations at National Special Security Events, as 
     designated by the President. It also has created the National 
     Threat Assessment Center, which provides advice and training 
     to law enforcement and other organizations with 
     responsibilities to investigate or prevent targeted violence.
       The missions of the Secret Service have a clear connection 
     to the fundamental mission of the new Department. Its 
     protective mission is central to safeguarding the country's

[[Page S8165]]

     leadership. Many of the crimes it is charged with 
     investigating involve activities in which terrorists often 
     engage. And it is an agency that is uniquely focused on 
     assessing vulnerabilities and designing ways to reduce them 
     in advance of an attack, an expertise that will benefit the 
     new Department. The responsibilities and experience of the 
     Secret Service support its transfer as a separate office 
     reporting directly to the Secretary rather than its inclusion 
     in one of the Directorates. This structure will allow the 
     Service to draw on the expertise and resources of the 
     Directorates to support its protective mission, as well as to 
     provide its own expertise and experience to the rest of 
     the Department.


                State and Local Government Coordination

       Homeland security is clearly a joint responsibility among 
     the Federal, State, and local governments. There are many 
     ways in which the bill recognizes the importance of these 
     relationships and places a high priority on ensuring that the 
     Department works closely with, and provides significant 
     assistance to, State and local agencies. To coordinate this 
     effort, the Department will have an office devoted to 
     facilitating effective communications and partnerships with 
     State and local government. The Office for State and Local 
     Government Coordination will be established within the office 
     of the Secretary to ensure that the needs and role of State 
     and local governments are considered throughout the work of 
     each of the Department's directorates. In addition to 
     coordinating the activities of the Department relating to 
     State and local governments, the Office will be responsible 
     for assessing and advocating for the resources needed by 
     State and local government to implement the national strategy 
     for combating terrorism. This advocacy function is necessary 
     so that budget decisions to implement the national strategy 
     are made with the full understanding of the role that State 
     and local governments will play in implementing the strategy, 
     as well as the resources necessary at all levels of 
     government for success.
       The Secretary, in conjunction with the Director of the 
     National Office for Combating Terrorism, is responsible for 
     working with State and local governments to develop a 
     national strategy for combating terrorism--not simply a 
     Federal strategy. Thus, the Office for State and Local 
     Government Coordination will develop a process for receiving 
     meaningful input from State and local government to assist in 
     the development of the strategy for homeland security and 
     other homeland activities. The Office will also provide State 
     and local government with regular information, research, and 
     technical support to assist local efforts at securing the 
     homeland.
       The GAC-endorsed legislation incorporates an amendment, 
     offered by Senators Collins and Carper, which creates the 
     position of Chief Homeland Security Liaison Officer, who is 
     charged with coordinating the efforts of homeland security 
     liaison officers in each state. These liaison officers will 
     work with State and local first responders to make sure that 
     these organizations receive the training and resources they 
     need. A Federal Interagency Committee on First Responders 
     will bring together the federal agencies that work most 
     closely with State and local first responders and will be 
     counseled by an Advisory Council, including representatives 
     of first responders and urban and rural communities.
       To further encourage communication and coordination between 
     the Department and State and local agencies, the GAC-endorsed 
     legislation authorizes the Secretary to establish an employee 
     exchange program. This program--which was suggested by 
     Senator Voinovich--would allow employees of the Department 
     and State and local agencies with homeland security 
     responsibilities to work together, to share their specialized 
     expertise, and to enhance their ability to assess threats 
     against the country, develop appropriate responses, and 
     inform the public. Employees who participate in the program 
     must have appropriate training or experience to perform the 
     work required by the assignment, and assignments must be 
     structured to appropriately safeguard classified and other 
     sensitive information.


                    Office of International Affairs

       The legislation includes an amendment offered by Senator 
     Thompson that creates an Office of International Affairs 
     within the office of the Secretary. The Director of the 
     Office will be responsible for promoting the exchange of 
     information with foreign nations to encourage sharing of best 
     practices and technologies relating to homeland security. 
     This information exchange will include joint research and 
     development on countermeasures, joint training exercises for 
     first responders, exchange programs, and international 
     conferences. The Director will manage the activities under 
     this provision in consultation with the Department of State 
     and other relevant Federal officials. These programs will be 
     developed first with countries that are already highly 
     focused on homeland security issues and that have previously 
     engaged in fruitful cooperation with the United States in the 
     area of counterterrorism.


                    MANAGEMENT AND TRANSITION ISSUES

     Management structure
       The Administration's proposed legislation calls for the 
     appointment of a number of management officials to support 
     the Secretary in carrying out the mission of the Department. 
     The Committee-endorsed legislation includes much, though not 
     all, of the management structure proposed by the 
     Administration.
       Secretary--First and foremost, the Committee-endorsed 
     legislation calls for a strong Secretary, vested with 
     effective, centralized management authority over what will be 
     a large new organization. Although responsibilities under 
     this legislation are allocated among the various 
     Directorates, it is intended that all powers provided under 
     this bill be subject to the full control and direction of the 
     Secretary. Also, while the bill establishes the basic 
     organizational framework for the new Department and 
     establishes its principal components, carrying out this 
     organizational task is only part of the role that the new 
     Secretary must play. While a number of more subjective 
     management factors cannot be defined in statutory language, 
     we anticipate that the new Secretary will need to spend a 
     great deal of time on key management tasks that cannot be 
     embodied in a formal organizational structure. These tasks 
     include: creating a sense of shared values across the new 
     Department and its disparate components; ensuring that core 
     skills and competencies are both developed and shared across 
     the Department; developing an effective common departmental 
     strategy for achieving the agency's missions with buy-in 
     among component agencies; deciding on the key systems and 
     management processes apart from the organizational structure 
     that will manage and bind together the new Department; 
     assuring that the success of those systems and processes are 
     measured and evaluated frequently to test their performance; 
     ensuring that departmental personnel gain experience in a 
     variety of agency components to encourage cross-agency 
     thinking, capability, and solutions so that the synergy of a 
     new Department can be realized, and establishing a leadership 
     style that will create a strong organizational culture based 
     on the values and attitudes the new Department must have to 
     effectively perform its mission. The bill aims to create a 
     structure that will enable the new Secretary to carry out 
     these critical management efforts.
       The Department will be headed by a Presidentially 
     appointed, Senate-confirmed Secretary. The Secretary's duties 
     include developing policies and plans for the promotion of 
     homeland security, carrying out and promoting the other 
     established missions of entities transferred to the 
     Department, and developing a comprehensive strategy for 
     combating terrorism and the homeland security response in 
     conjunction with the Director of the National Office for 
     Combating Terrorism.
       The Secretary is charged with consulting with the Secretary 
     of Defense and the nation's governors to integrate the 
     National Guard into the nation's strategy to combat 
     terrorism. The Secretary must also consult and coordinate 
     with the Secretary of Defense regarding military 
     organization, equipment, and assets that are critical to 
     fighting terrorism, as well as the training of personnel to 
     respond to terrorist attacks involving chemical or biological 
     agents.
       Section 102 details numerous other duties of the Secretary.
       Deputy Secretary--Section 103 provides for appointment of a 
     Deputy Secretary, subject to Senate confirmation, responsible 
     for assisting the Secretary.
       Under Secretary for Management--The Administration proposal 
     calls for the appointment of an Under Secretary for 
     Management with broad responsibilities for management and 
     administration of the Department. Section 104 of the 
     Committee-endorsed bill establishes this position with 
     substantially the same responsibilities as in the 
     Administration bill. These include budget and other financial 
     matters, procurement, human resources and personnel, 
     information technology and communications, facilities and 
     other material resources, security for the Department, and 
     managing performance measures for the Department.
       Assistant Secretaries--The Administration requested 
     authority for the President to appoint not more than six 
     Senate-confirmed Assistant Secretaries, without specifying in 
     statute what the responsibilities of these officers would be. 
     Following generally the Administration's approach, section 
     105 of the legislation authorizes the President to appoint up 
     to five such Assistant Secretaries (these do not include the 
     two additional, Senate-confirmed Assistant Secretary 
     positions, with immigration-related functions, established in 
     division B of the legislation.) The President must describe 
     the general responsibilities when submitting a nominee for 
     confirmation. The authority of the President to assign 
     functions to up to five Assistant Secretaries should provide 
     important flexibility in designing the management structure 
     for the Department.
       Inspector General--The Department will include an office of 
     Inspector General under the Inspector General Act of 1978, 
     thereby applying the authorities and independence provided 
     under that Act. The legislation would define a narrow set of 
     circumstances under which the Secretary could prohibit the 
     Inspector General from carrying out an investigation or 
     performing other duties if necessary in the interest of 
     national security or other compelling circumstances specified 
     in the legislation. This language is modeled closely on 
     provisions that apply to the Inspectors General at the 
     Departments of Justice, Defense, and Treasury, the United 
     States Postal Service, and the Central Intelligence Agency. 
     Also modeled closely on provisions applicable at Treasury, is 
     a provision

[[Page S8166]]

     granting the Homeland Security IG oversight over internal 
     investigations performed by any other investigatory offices 
     where they exist in the Department's sub-agencies. The 
     Inspector General must designate an official to collect and 
     review information about alleged abuses of civil rights and 
     civil liberties by Department officers and employees, and 
     report to Congress on such abuses.
       Chief Financial Officer--The legislation would establish a 
     Chief Financial Officer (CFO) and a Chief Information Officer 
     (CIO) at the new Department. Section 107 would define the 
     Department as an agency under the CFO Act, thereby making 
     applicable the requirements of the CFO Act of 1994, 
     regarding, for example, the qualifications and 
     responsibilities of the CFO and annual financial reporting. 
     Under the CFO Act, the CFO at the Department must be either 
     appointed by the President subject to Senate confirmation, or 
     designated by the President, in consultation with the 
     Secretary, from among Senate-confirmed officials at the 
     Department.
       Chief Information Officer--Section 108 of the legislation 
     would establish a Chief Information Officer (CIO) at the new 
     Department. Furthermore, the provisions of law defining the 
     responsibilities of the CIO, including the Paperwork 
     Reduction Act and Clinger-Cohen, would apply by their own 
     terms to the new Department. Under applicable law, the CIO 
     need not be Senate-confirmed.
       Chief Human Capital Officer--The Secretary must appoint or 
     designate a Chief Human Capital Officer to advise and assist 
     the Department in workforce skills, training, recruitment, 
     retention, and other issues necessary to attract and retain a 
     highly qualified workforce.
       Civil Rights Office--Section 110 of the bill establishes a 
     Civil Rights Office, whose head will be appointed by the 
     President and confirmed by the Senate. The Office will have 
     two important functions. First, the Civil Rights Office will 
     have responsibility for coordinating the administration of 
     and ensuring compliance with laws prohibiting discrimination 
     against Department employees and beneficiaries of Department 
     programs (see, e.g., 42 U.S.C. Sec. Sec. 2000d, 2000e-16).
       Second, it will advise the Secretary, as well as the 
     Department's directorates and offices, on the constitutional 
     and statutory framework that governs the Department's 
     interactions with the citizenry at large and help develop and 
     implement policies that ensure that consideration of this 
     group's civil rights are appropriately incorporated and 
     implemented in Department programs and activities. It also 
     will oversee the Department's compliance with requirements 
     related to the civil rights of individuals affected by the 
     Department's programs and activities. Authority to 
     investigate specific complaints by the citizenry at large of 
     civil rights or civil liberties violations, however, will 
     reside in the Office of the Inspector General, to which the 
     Civil Rights Office will refer any matter that, in the 
     opinion of the Civil Rights Officer, warrants further 
     investigation.
       Privacy Officer--A Chief Privacy Officer will oversee the 
     Department's compliance with privacy laws and help ensure 
     that personal information is appropriately safeguarded. 
     Several federal agencies that deal with sensitive personal 
     information, such as the Internal Revenue Service and the 
     U.S. Postal Service, currently have similar privacy advocates 
     to aid in the development of policies and provide assistance 
     to agency officials. The Chief Privacy Officer's mandate 
     extends beyond overseeing compliance with existing privacy 
     laws, such as the Privacy Act, and includes assisting in the 
     development of policies that incorporate privacy safeguards 
     and minimize the risk of inappropriate disclosure or use of 
     personal information. The Privacy Officer may also assist in 
     the development of privacy impact assessments, when required 
     by law or considered appropriate by the Secretary, which are 
     documents that explain how an agency takes into account 
     privacy considerations when initiating information 
     collections and developing information systems.
       The Constitution clearly assigns to Congress what is called 
     the ``power of the purse''--the power to appropriate funds 
     and to prescribe the conditions governing the use of those 
     funds. The Framers thus made Congress responsible to the 
     people for how the people's money gets spent. The legislation 
     contains provisions reaffirming that appropriated funds may 
     be used only for the purposes stated by Congress. To provide 
     for initial funding of the Department, the legislation 
     requires the Administration to submit a transition plan and 
     proposed budget by September 15, 2002, so that Congress can 
     appropriate timely start-up funds based on that proposal.
       By contrast, the Administration has requested that the new 
     Department be excepted from the traditional arrangements 
     regarding the use of appropriated funds. For initial funding 
     for the Department, the Administration proposed to take funds 
     (up to 5%) from each agency slated for transfer to the 
     Department and use these funds for any purpose under the 
     legislation. This could total roughly $2 billion. To adjust 
     funding priorities without having to go back to Congress, the 
     Administration requested permanent power to take funds (up to 
     5%) from each appropriations account in the Department and 
     use those funds for any other purpose in the Department.
       Senator Byrd and Senator Stevens, the Chairman and Ranking 
     Member of the Appropriations Committee, respectively, wrote 
     to me expressing their strong legal objection to the 
     appropriation transfer provisions requested by the 
     Administration:
       ``The proposal by the President provides the new Secretary 
     with extraordinary powers, powers that could potentially tip 
     the delicate balance of constitutional powers between the 
     Legislative and Executive branches of government. These are 
     powers that the Secretary of Defense and the Secretary of 
     State do not currently have, nor should they have. The 
     Framers carefully crafted that balance, and it has served the 
     nation well for more than 200 years.''
       Senators Byrd and Stevens also requested that the 
     legislation include provisions to sustain existing law and 
     practice governing the use of appropriated funds, and 
     language that they agreed to is included in the legislation. 
     These provisions are designed to provide for establishment of 
     the Department, while preserving the customary and 
     Constitutional role of Congress in appropriating funds and in 
     ensuring that such funds are used effectively and efficiently 
     and according to the will of the people, as expressed through 
     their elected Senators and Representatives.
       Under the legislation, initial funding for the Department 
     will be provided through appropriations Acts, not through 
     transfer of funds appropriated for other purposes. To provide 
     this initial funding in a timely fashion, the legislation 
     requires the President to submit a transition plan by 
     September 15, 2002, including a proposal for financing the 
     initial operations of the Department. The financing proposal 
     might consist of any combination of specific appropriations 
     transfers, specific reprogrammings, or specific new 
     appropriations. By putting the Administration on notice, even 
     before the legislation is enacted, this provision has given 
     the Administration ample time to submit their plan while 
     Congress still has time to act on the Administration's 
     proposal.
       To further clarify that initial funding will be provided by 
     appropriations acts, the legislation states that transferred 
     funds may only be used for their original purposes unless 
     Congress approves in advance a reallocation of such funds. 
     This provision does not limit the ability of an agency 
     transferred to the Department to use transferred funds for a 
     new position previously authorized in law, but does reinforce 
     that transferred funds may not be used to fund a new position 
     established under this legislation itself.
       Looking beyond the transition period, the Administration 
     sought to justify its request for power to transfer 
     appropriations by stating, in the analysis accompanying the 
     Administration's proposed legislation: ``Appropriations 
     transfer provisions are enacted annually in a number of 
     appropriations acts.'' While declining now to grant the 
     broad, permanent transfer power requested by the 
     Administration, this Committee-endorsed legislation does not 
     address whether any power to transfer funds should 
     subsequently be included in annual appropriations acts for 
     the Department. In fact, annual appropriations bills often 
     build in such flexibility, but more often in smaller amounts 
     under close oversight by Congress. The proper way for the 
     Administration to seek this authority is to request it as 
     part of their annual appropriations, not as permanent 
     authority in the enabling legislation.
       The Committee concluded that the Congress and the Executive 
     Branch must fully understand the annual and multi-year 
     funding requirements for the Department to ascertain the most 
     appropriate funding levels to protect the American people 
     from homeland security threats.
       Accordingly, the GAC-endorsed legislation requires the new 
     Department, beginning with the fiscal year 2005 budget 
     request, to submit annually a Future Years Homeland Security 
     Program to accompany the annual departmental budget request 
     and the National Terrorism Prevention and Response Program 
     Budget mandated elsewhere in the Committee-approved 
     legislation. The language requires that Future Years Homeland 
     Security Program be structured, and include the same type of 
     information and level of detail, as the Future Years Defense 
     Program required by statute to be submitted to the Congress 
     by the Department of Defense.
       S. 2452, as reported on May 22, set an effective date of 
     180 days after enactment for the transfer of personnel and 
     assets to the new Department, and included ``savings 
     provisions'' to generally preserve the status quo with 
     respect to the ongoing missions of the agencies being 
     transferred. The Administration's subsequent proposed 
     legislation requested greater flexibility with respect to the 
     timing of the transition by giving the President discretion 
     to move agencies at any time over a one-year transition 
     period. It also requested further flexibilities to enable the 
     Administration to make certain incidental transfers and to 
     allocate transferred assets and personnel.
       The GAC-approved legislation now includes, in subtitle B of 
     title XI, transition provisions based on the corresponding 
     provisions of the Administration's proposed legislation. 
     These provisions include most of the transition-related 
     flexibilities requested by the Administration. The principal 
     exceptions are that, under the GAC-endorsed legislation, the 
     Administration would not have the flexibility to use funds, 
     appropriated by Congress for one purpose, for a different 
     purpose (discussed above), or in the area of withdrawing 
     collective bargaining rights from personnel transferred or 
     employed in the new Department.

[[Page S8167]]

       Following the Administration's approach, the Committee-
     approved legislation adopts from the Administration bill an 
     effective date and a ``transition period''--the effective 
     date is generally 30 days after enactment (unless enacted 
     less than 30 days before January 1, 2003, in which case that 
     is the effective date), and the ``transition period'' is the 
     one year period following the effective date. The President 
     is then authorized to direct the transfer of any asset to the 
     Department at any time the President directs, up to the end 
     of the transition period. This should allow agencies to be 
     transferred to the Department in an orderly progression, 
     leaving the Administration free to determine which are in a 
     position to be transferred first.
       This legislation, by bringing numerous agencies responsible 
     for homeland security together for the first time under a 
     single chain-of-command responsible for policy and funding, 
     represents one of the most significant reorganizations of the 
     Federal government. However, once these agencies are 
     consolidated into one Department, further reorganization of 
     offices and functions at the departmental level may be needed 
     to integrate incoming offices and to gain additional 
     coordination, efficiency, and effectiveness. The 
     legislation provides for departmental reorganization, by: 
     (1) authorizing the Secretary to reorganize unilaterally 
     to the extent consistent with applicable law; and (2) 
     instructing the Secretary to recommend legislation 
     enabling specific further reorganization involving 
     organizational structures established in law.
       The Administration has not offered a proposal for 
     departmental reorganization for consideration by Congress, 
     but, instead, requested that the Secretary be granted the 
     power generally to conduct such reorganizations unilaterally. 
     Under the Administration's proposal, the only limits on this 
     reorganization power would be that the Secretary could not 
     abolish the Secret Service or the Coast Guard, and the 
     Secretary would have to give Congress 90 days notice before 
     overriding a statute.
       Many of the statutes establishing entities and assigning 
     functions reflect important policy judgments of Congress and 
     ongoing critical missions required by law, however, and it 
     would be inappropriate for Congress to cede to the executive 
     the power to override these statutes unilaterally, without 
     opportunity for Congress to evaluate, debate, and decide. 
     This view was also expressed by a Senator Byrd and Senator 
     Stevens, the leaders of the Senate Appropriations Committee, 
     in a letter stating their objection to a provision in the 
     President's proposal:
       ``Congress should not authorize the Executive Branch to 
     establish, consolidate, alter, or discontinue agencies of 
     government that are established in statute. This is Congress' 
     responsibility.''
       The legislation establishes reorganization authorities and 
     procedures designed to enable the Secretary to achieve an 
     efficient and effective structure for the Department, while 
     maintaining the appropriate role of Congress in deciding 
     whether statutory law should be changed. Under section 191 of 
     the bill, the Secretary can proceed, without further 
     congressional approval, with any reorganization that does not 
     change organizational structure established by law. The 
     Secretary can perform substantial reorganization and 
     consolidation under this authority. For example, agency units 
     responsible for human resources, information technology or 
     other management functions are typically not established in 
     law, so the Secretary could conduct substantial 
     reorganization and consolidation of such functions to make 
     them more efficient and effective.
       Furthermore, as the Secretary identifies specific entities 
     established in law that he or she believes should be 
     reorganized, the legislation instructs the Secretary to 
     submit recommendations to Congress on an ongoing basis for 
     legislation providing for such reorganization. Specifically, 
     section 185(d)(1)(B) of the legislation requires the 
     Secretary to recommend any legislation that the Secretary 
     determines necessary to ``reorganize agencies, executive 
     positions, and the assignment of functions within the 
     Department.'' Anticipating that the Secretary may develop 
     reorganization proposals over the one-year transition period, 
     the bill does not require the Secretary to submit these 
     recommendations as a single reorganization plan, but rather 
     requires submission of these recommendations as they become 
     available, the first no later than 6 months after enactment 
     of the Act and any subsequent recommendations at least every 
     6 months thereafter until 6 months after the transition is 
     completed.
       The legislation specifies that several of the agencies 
     transferred to Department--i.e., the United States Customs 
     Service, the United States Coast Guard, the Federal Emergency 
     Management Agency, and the United States Secret Service--each 
     ``shall be maintained as a distinct entity within the 
     Department.'' This requirement does not impose precise 
     constraints on the Secretary's authority to reorganize with 
     respect to these agencies, since each of these agencies is 
     established by law and this legislation prohibits the 
     Secretary from reorganizing in contravention of such law. 
     Instead, the ``distinct entity'' requirements serves as an 
     instruction to the President and Secretary that Congress 
     intends that the unique identity of each of these four 
     agencies should be preserved.
       Under current law, the President and Secretary can reward 
     excellence, remove poorly performing employees, offer 
     recruitment bonuses, and use many other performance-oriented 
     management tools. In an effort to give the Department and 
     other agencies additional flexibility in the management of 
     personnel, our legislation adopts significant, government-
     wide civil service reforms, contained in provisions proposed 
     by Senators Voinovich and Akaka. To support research and 
     development, we also provided the Secretary of Homeland 
     Security authority to use innovative techniques to hire 
     talent and fund projects. Taken together, this package will 
     give the Secretary the ability to: speed up staffing of new 
     employees; recruit and retain top science and technology 
     talent; procure temporary services outside the civil service 
     system when there is a critical need; reshape the workforce; 
     reform old competitive-hiring practices; provide more 
     effective bonuses for exemplary performance; promote 
     procurement flexibility in research, development, the 
     prototyping of new technologies, and other procurement; and 
     make additional valuable changes to help the new Department 
     attract, maintain, and motivate the best talent. These 
     reforms represent a major modernization of the way federal 
     agencies are managed.


              Sen. Voinovich's and Sen. Akaka's Amendment

       Division C of the legislation contains important provisions 
     to strengthen significantly the management of the federal 
     workforce government-wide that were offered at the 
     Committee's business meeting by Senators Voinovich and Akaka, 
     and were agreed to by the Committee by voice vote.
       The Voinovich-Akaka amendment establishes a chief human 
     capital officer (CHCO) at each major agency (i.e., at the 
     agencies required to have Chief Financial Officers under the 
     CFO Act). The primary responsibility is to advise and assist 
     their respective directors in selecting, developing, 
     training, and managing a high-quality workforce. The creation 
     of a CHCO is intended to help identify and prioritize the 
     recruitment, retention, and workforce management needs across 
     the government. The CHCO will have added importance in the 
     new Department, because consolidation of the different 
     agencies into the Department will pose unique recruitment, 
     retention, training, and workforce management challenges. The 
     CHCO will heighten awareness of workforce issues and provide 
     leadership in resolving these issues.
       Another section of the Voinovich-Akaka provision, Section 
     2202 in the GAC-endorsed legislation, allows agencies to hire 
     candidates directly and bypass the current civil-service 
     hiring requirements once the Office of Personnel Management 
     has determined that there is a severe shortage of candidates 
     for the position. This provision also allows agencies to 
     streamline its staffing procedures by authorizing more 
     flexible merit assessment tools. This will make the 
     government more competitive with the private sector by 
     improving the federal hiring process.
       The Voinovich-Akaka provisions include government-wide 
     authority for Voluntary Separation Incentive Payments and 
     Voluntary Early Retirement Authority, two programs 
     currently allowed only in limited situations. The 
     expansion of this authority would give agencies the 
     flexibility required to reorganize the workforce should an 
     agency need to undergo substantial consolidation, transfer 
     of functions, or other substantial workforce reshaping. 
     The provision would allow agencies to reduce high-grade, 
     managerial, or supervisory positions, correct skill 
     imbalances, and reduce operating costs without being 
     forced to reduce overall staff levels.
       The Voinovich-Akaka proposal increases the cap on the total 
     annual compensation of senior executives, Administrative Law 
     Judges, officers of the court, and other senior level 
     positions to allow career executives to receive performance 
     awards and other authorized payments within the cap in a 
     single year. This will enable agencies to better reward 
     excellence in the ranks of the most senior and experienced 
     parts of the workforce. It also includes measures to help 
     federal employees earn academic degrees, a step that will 
     help enable agencies to build a highly trained workforce and 
     retain valuable employees who wish to continue their 
     education. To fill the serious gap in foreign language skills 
     across the federal government, which is a particular homeland 
     security problem, Section 2402 eases the restrictions on 
     placement of National Security Education Program (NSEP) 
     fellows who are proficient in languages critical to our 
     national security. The provision would allow NSEP fellows to 
     work in a non-national security position in the federal 
     government, including a homeland security position, if a 
     national security position is not available.
       These authorities complement the flexible authority in 
     Section 135 enabling the Science and Technology Directorate 
     to attract outstanding scientists and technologists.
       All these detailed and carefully considered personnel 
     provisions provide the Administration with a major management 
     opportunity and flexibility.
       It is our responsibility to ensure that Federal agencies 
     with a role in homeland security can purchase--quickly and 
     efficiently--the most high-tech and sophisticated products 
     and services to support antiterrorism efforts and to defend 
     against biological, chemical, nuclear, or radiological 
     attacks. Last year's National Defense Authorization Act 
     provided the Department of Defense with many of these 
     authorities. Title V of this bill

[[Page S8168]]

     provides to other Federal agencies--including the new 
     Department--emergency contracting authority which is already 
     in place for the Department of Defense. This measure also 
     provides certain new contracting flexibility to these 
     agencies, including raising the threshold amount for 
     contracts carried out in the United States to $250,000 and 
     raising the threshold amount for contracts outside the United 
     States to $500,000. Title V also raises the micro-purchase 
     (purchase card) threshold to $10,000.
       Title V would give Federal agencies new procurement 
     flexibility in fighting terrorism. It would streamline 
     procurement procedures for contingency operations or 
     peacekeeping and humanitarian operations; permit agencies to 
     use more ``commercial-style'' contracting procedures for 
     technologies or products which are cutting-edge; and require 
     agencies to do ongoing market research to identify new 
     companies, including small businesses, with new capabilities 
     to help agencies in the fight against terrorism.
       Title V also requires that the Comptroller General complete 
     a review of the extent to which procurements and services 
     have been made in accordance with this subtitle and submit a 
     report on the results of the review.
       There is a one year sunset for these provisions.
       This authority complements the flexible procurement 
     authority in Section 135 concerning R&D and technology 
     prototyping.
       The Committee-approved legislation authorizes the Secretary 
     to hire experts and consultants, in accordance with existing 
     law, for periods of up to one year and subject to a pay cap 
     equivalent to the GS-15 level. However, the amendment 
     provides additional hiring flexibility to the Secretary by 
     expanding his authority under current law if necessary to 
     meet urgent homeland security needs. In such cases, the 
     Secretary may obtain personal services, including those of 
     experts or consultants, for periods not to exceed one year 
     without a ceiling on the amount of compensation that may be 
     paid to those individuals. These provisions will allow the 
     Secretary to meet critical needs of the Department by 
     securing the services of individuals with specialized 
     experience and expertise.
       During the Cold War, Presidents acquired the power to take 
     away--by executive order--the collective bargaining rights of 
     particular agencies or subdivisions when he determines that 
     national security is at stake. Agency managers may also 
     remove from collective bargaining individual employees 
     engaged in certain kinds of work directly affecting national 
     security, subject to review by the independent Federal Labor 
     Relations Authority (FLRA).
       Most of the tens of thousands of employees that will make 
     up the new Department will be transferred from existing 
     federal agencies, and the Congressional Research Service 
     estimates that about 43,000 (mostly in the Customs Service, 
     the INS, the Coast Guard and FEMA) are now represented by 
     unions. Thus far, no President--including President Bush--has 
     tried to deny collective bargaining rights to these workers. 
     Nevertheless, these existing employees are fearful they will 
     lose their collective bargaining rights simply by virtue of 
     being transferred to a department organized around a mission 
     of homeland security--even if their duties remain 
     substantially the same.
       The Committee-approved legislation seeks to provide these 
     employees some reassurance. It provides that, for offices and 
     employees transferred into the Department with pre-existing 
     rights to unionize, those rights may not be withdrawn on an 
     office-wide basis by executive order. However, the 
     legislation still provides the Administration ample authority 
     to remove collective bargaining rights if national security 
     is at issue. These rights can be withdrawn from individual 
     employees if their primary job duty materially changes and 
     consists of intelligence, counterintelligence, or 
     investigative duties related to terrorism investigation and 
     their membership in a collective-bargaining unit would 
     adversely affect national security. If so, following existing 
     procedures, Department managers may remove employees from 
     collective bargaining immediately upon determining that such 
     action is warranted, subject to review by the FLRA. Thus, for 
     the employees of offices transferred to the Department with 
     existing rights to form a union, the Committee-endorsed 
     legislation allows the Administration to immediately take 
     employees out of collective bargaining to protect national 
     security, but requires the Administration to state clear 
     reasons for doing so and allows for due process review.
       Furthermore, with respect to newly created offices at the 
     Department, the legislation retains the President's authority 
     to remove collective bargaining rights from an entire office 
     by executive order, if the primary function of the office is 
     intelligence, counterintelligence, or investigative 
     duties directly related to terrorism investigation, and if 
     collective bargaining rights cannot be applied consistent 
     with national security.
       It is important to remember that bargaining rights of 
     Federal employees are very limited compared to the private 
     sector. Federal employees have no right to strike. Most have 
     their salary and benefits set in statute. And they may not 
     bargain over, or agree to, anything that would affect 
     managers' statutory prerogatives, which include hiring, 
     firing, assigning personnel and work, as well as taking any 
     necessary action during an emergency.
       The Committee-approved legislation provides that any 
     construction work financed by assistance under this 
     legislation will be subject to the Davis-Bacon Act, which 
     requires the payment of prevailing wages. The prevailing wage 
     under Davis-Bacon means the local average wage, as determined 
     by the Secretary of Labor.
       The Davis-Bacon Act itself applies to federal construction 
     contracts, and, in addition, Davis-Bacon requirements have 
     been incorporated into more than 50 program statutes that 
     provide assistance to non-federal parties for construction. 
     For example, federal assistance programs that apply Davis-
     Bacon requirements include: a variety of transportation 
     construction grant programs (including interstate highways, 
     mass transportation, airport improvement); FEMA emergency 
     preparedness grants; various environmental programs 
     (including drinking and waste water treatment, and Superfund 
     cleanup).
       Like these other statutes, the Committee-endorsed 
     legislation would require the payment of prevailing wages in 
     any construction supported by assistance under this 
     legislation. For example, under the Emergency Preparedness 
     Enhancement Pilot Program under section 153, the Department 
     may award grants for the deployment of innovative emergency 
     preparedness technologies. If such a grant is used for 
     construction, the contractor would have to pay the prevailing 
     wage. Section 194 would not affect grant programs that are 
     not under this legislation, even if administered by the 
     Department, however. For example, under the Stafford Act, 
     Davis-Bacon applies to FEMA grants for emergency 
     preparedness, but not to FEMA's grants for disaster relief. 
     Thus, disaster relief under the Stafford Act will remain 
     exempt from Davis-Bacon even after FEMA and its disaster-
     relief functions are transferred to the new Department.
       At the request of Senator Thompson, the legislation 
     incorporates the text of S. 2530, granting some law 
     enforcement authorities to certain Inspectors General. That 
     bill was reported out of the Governmental Affairs Committee 
     on June 25, 2002. Briefly, the proposal amends the Inspector 
     General Act to authorize certain IG officers to carry a 
     firearm or make an arrest in certain instances while engaged 
     in official duties as authorized by this Act or other 
     statute, or by a request from the Attorney General, and to 
     seek and execute warrants under the authority of the United 
     States upon probable cause that a violation has been 
     committed. A full description of the proposal and its 
     legislative history can be found in the accompanying 
     Committee report, No. 107-176.
       The GAC-endorsed legislation will ensure that information 
     systems are effectively deployed in the new Department and 
     government-wide. Improved management of information resources 
     is a vital aspect of enhanced homeland security. Federal 
     agencies have deployed information systems in stovepipes, 
     with little thought given to interoperability with the 
     systems of other agencies. Interoperable information systems 
     would allow for efficient sharing of data and better 
     communications between agencies responsible for intelligence 
     gathering, border security, crisis response, and other 
     homeland security missions. Agencies vital to homeland 
     security are also plagued by poor information security and 
     outdated technologies. These management challenges need to be 
     addressed both within the new Department and government-wide.
       The legislation contains several new provisions that impose 
     general mandates and establish accountability mechanisms with 
     respect to information systems within the Department. The 
     Secretary is required to direct the acquisition and 
     management of the Departments information resources, 
     including the information systems of agencies being 
     transferred into the Department. In ensuring proper 
     Department-wide management, the Secretary will be assisted by 
     the Chief Information Officer. The Secretary is responsible 
     for making the Department's information systems effective, 
     efficient, secure, and interoperable, and will report to 
     Congress on the implementation of an enterprise architecture 
     for the Department. The CIO will work closely with the Under 
     Secretary for Science and Technology on the development, 
     testing, and deployment of new IT technologies.
       The need for more effective cooperation between agencies 
     such as the FBI, CIA, Department of State, and INS has become 
     obvious, yet poorly developed information systems are getting 
     in the way when technology should be enhancing agencies' 
     effectiveness. The federal government has barely addressed 
     the inability of agencies to link up their information 
     systems. Pursuant to language proposed by Sen. Durbin, the 
     legislation requires the OMB Director to develop a 
     comprehensive enterprise architecture for information systems 
     of agencies related to homeland security, and to make sure 
     agencies implement the plan. The architecture and resulting 
     systems must be designed so that they can achieve 
     interoperability between federal agencies responsible for 
     homeland defense, that they are capable of being deployed 
     quickly and upgraded with improved technologies, and that 
     effective information security is maintained. The OMB 
     Director and the Secretary will also facilitate improved 
     interoperability between information systems of Federal, 
     State and local agencies responsible for homeland defense.
       Enterprise architectures require systematically thinking 
     through the relationship

[[Page S8169]]

     between operations and underlying information technologies. 
     Used increasingly by industry and some governments, they can 
     reduce redundancies, modernize operations, and improve 
     program performance.
       The Committee-approved legislation includes a key 
     compromise on the public disclosure of certain sensitive 
     information that may be submitted to the Department--one that 
     thoughtfully balances the public's right to know and the 
     legitimate security concerns of private entities that may 
     share information with the Department. Specifically, the 
     legislation provides that records pertaining to the 
     vulnerability of--and threats to--critical infrastructure 
     that are voluntarily furnished to the Department and that are 
     not customarily made public by the provider, are not subject 
     to public disclosure under the Freedom of Information Act. 
     Furthermore, the provision would not limit the disclosure of 
     a record used to satisfy a legal obligation or to obtain a 
     permit or other government approval, or received by 
     another Federal, State, or local agency independently of 
     the Department.
       Senators Bennett and Levin offered this provision at the 
     business meeting. The language of the provision had also been 
     developed in conjunction with the Chairman of the Judiciary 
     Committee, Senator Leahy. Senator Bennett explained to the 
     Committee that the amendment addresses the concerns of three 
     groups--the federal government, which wants to receive 
     information from the private sector in order to better 
     understand and address vulnerabilities and threats to 
     critical infrastructure; the private sector, which has said 
     it would like to help the government, but not if it would be 
     disadvantaged by disclosure of sensitive information; and the 
     public-access and environmental communities, which did not 
     want public access diminished to information that is of 
     importance to the public. Senators Bennett and Levin told the 
     Committee that all three of these interested groups found the 
     amendment acceptable. Senator Bennett further reported that 
     the Administration had examined the provision and supported 
     it as well.
       To safeguard against the erosion of non-security programs 
     within the transferred entities, the revised legislation 
     establishes a reporting requirement designed to monitor the 
     performance of non-homeland security missions by entities 
     transferred to the Department--pursuant to an amendment by 
     Senators Akaka and Carper. For each of the first five years 
     after a program or agency is transferred to the Department, 
     the relevant Under Secretary must report to the Secretary, 
     the Comptroller General, and Congress regarding the 
     performance of that entity, with particular emphasis on non-
     homeland security missions. These reports shall seek to 
     inventory non-homeland security capabilities, including the 
     personnel, budgets, and flexibilities used to carry out those 
     functions. The reports shall include information regarding 
     whether any changes are required to enable the transferred 
     entities to continue to carry out non-homeland security 
     missions without diminishment. Under another provision, the 
     Comptroller General is also required to submit reports to 
     Congress that include an evaluation of how successfully the 
     Department is meeting homeland security and other missions.


                              Firefighters

       The legislation includes an amendment by Senators Carnahan 
     and Collins to provide federal assistance to local 
     communities to hire additional firefighters, who clearly play 
     a critical first responder role for terrorist threats. The 
     amendment amends the Federal Fire Prevention and Control Act 
     of 1974 to authorize the Director of FEMA to award 3-year 
     grants to local communities to hire additional firefighters. 
     It would fund 75% of a firefighter's salary and benefits over 
     three years. Communities applying for grants under the 
     program would be required to present a plan for how they will 
     fund the position at the conclusion of the third year. The 
     three-year cost is capped at $100,000 per fire fighter. The 
     amendment authorizes $1 billion for FY 2003 and FY 2004 for 
     this program. If fully appropriated, the amendment would 
     provide funding for as many as 10,000 new firefighters each 
     year, able to play a vital role in terrorism response.
       The amendment addresses a critical and urgent need. Federal 
     programs currently exist to fund training and equipment for 
     firefighters and other first responders, and more funding for 
     these needs has been proposed in response to the events of 
     September 11. However, no Federal funds have been made 
     available to fund personnel even though the staffing shortage 
     in the nation's fire departments has reached crisis 
     proportions. Two-thirds of all fire departments do not have 
     adequate staffing, falling below the accepted industry 
     consensus standards developed by the National Fire Protection 
     Association. According to the International Association of 
     Firefighters, most fire departments are not able to comply 
     with OSHA's ``two-in/two-out'' standard for safe fire ground 
     operations. These standards require that if two firefighters 
     enter a dangerous environment, there must be at least two 
     firefighters stationed outside to perform a rescue operation 
     if needed.
       The International Association of Fire Chiefs estimates that 
     75,000 additional fire fighters are needed to bring fire 
     department staffing up to minimally acceptable levels for 
     safety and effective response. In addition, investigations 
     into firefighter fatalities conducted by the National 
     Institute for Occupational Safety and Health (NIOSH) over the 
     past decade have consistently identified inadequate staffing 
     as either the primary cause or a significant contributing 
     factor to the death of the firefighter. Clearly, without 
     additional assistance, our firefighters' lives are being 
     jeopardized.
       The Carnahan/Collins amendment reflects broad consensus 
     that in order to protect the public against acts of terrorism 
     and other dangers, the nation's fire departments must have 
     adequate personnel, training, and equipment. One of the major 
     purposes of the Department will be to assess and advocate for 
     the resource needs of State and local governments. The need 
     for more firefighters has already been well documented and 
     thus it is appropriate that this issue be addressed now.
       The amendment includes an amendment offered by Senators 
     Carper and Torricelli that authorizes funding for Amtrak to 
     finance system-wide safety and security, make life safety 
     improvements to critical rail tunnels, and help ensure Amtrak 
     has adequate fleet capacity in the event of a national 
     security emergency. This funding is authorized to be 
     appropriated to the Department over two years for Amtrak and 
     will remain available until obligated.
       Pursuant to an amendment by Sen. Durbin, the GAC-endorsed 
     legislation would require the Secretary to enter into an 
     agreement with and provide funding to the National Academy of 
     Sciences to conduct a detailed and comprehensive review of 
     Federal statutes and regulations affecting the safety and 
     security of the food supply and to review the efficiency and 
     effectiveness of the organizational structure of Federal food 
     safety oversight. It requires the Academy to report its 
     findings, conclusions, and recommendations, to Congress not 
     later than 1 year after enactment of this Act and spells out 
     the issues that must be addressed in the report. The 
     Secretary must provide Congress and the President with a 
     response to the recommendations.
       Pursuant to amendment offered by Senator Akaka, for himself 
     and Senator Levin, the legislation would extend whistleblower 
     protections to airport security screeners. For baggage 
     screeners who are federal employees, the legislation would 
     extend the same whistleblower protections as apply generally 
     to federal employees. They are protected against retaliation 
     for coming forward with information about a violation of law, 
     rule, or regulation; mismanagement; waste; abuse; or a danger 
     to health or safety. For airport screening personnel who are 
     not federal employees, the bill provides the same 
     whistleblower protections as apply to air carrier personnel. 
     They are protected against retaliation for coming forward 
     with information about a violation relating to air carrier 
     safety.

  Mr. President, I ask unanimous consent to have printed in the Record 
a section-by-section analysis and a letter dated August 28, 2002.
                                  ____


  Legislation to Establish a Department of Homeland Security and the 
National Office for Combating Terrorism as Supported by Bipartisan Vote 
              of the Senate Governmental Affairs Committee

       Sec. 1. Short Title. This Act may be cited as the 
     ``National Homeland Security and Combating Terrorism Act of 
     2002.''
       Sec. 2. Outlines the organization of the Act into 3 
     divisions: (A) National Homeland Security and Combating 
     Terrorism, (B) Immigration Reform, Accountability, and 
     Security Enhancement Act of 2002, and (C) Federal Workforce 
     Improvement.


     Division A--National Homeland Security and Combating Terrorism

       Sec. 100. Definitions. Defines terms used in Division A.
     Title I. Department of Homeland Security
       Subtitle A--Establishment of the Department of Homeland 
           Security
       Sec. 101. Establishment of the Department of Homeland 
     Security. Establishes the Department of Homeland Security 
     whose mission is (1) to promote homeland security, 
     particularly with regard to terrorism; and (2) carry out the 
     other functions, and promote the other missions, of entities 
     transferred to the Department as provided by law. The 
     homeland security mission includes preventing terrorist 
     attacks or other homeland threats within the United States; 
     reducing the vulnerability of the United States; and 
     minimizing the damage, and assisting in the recovery, from 
     terrorist attacks or other natural or man-made crises within 
     the United States.
       Sec. 102. Secretary of Homeland Security. States that the 
     Secretary of Homeland Security shall be appointed by the 
     President and confirmed by the Senate. This section outlines 
     the Secretary's broad responsibilities for developing 
     policies, goals, objectives, priorities and plans for the 
     promotion of homeland security, which include: developing a 
     national strategy with the Director of the National Office 
     for Combating Terrorism (established in Titles II and III), 
     and advising the Director on the development of a 
     comprehensive budget for programs under the strategy. The 
     Secretary is also responsible for including State and local 
     governments and other entities into the full range of 
     homeland security activities; consulting with the Secretary 
     of Defense and State governors regarding integration of the 
     United States military, including the National Guard, into 
     all aspects of the strategy and

[[Page S8170]]

     its implementation, including detection, prevention, 
     protection, response and recovery, as well as training of 
     personnel to respond to terrorist attacks involving chemical 
     or biological agents; and developing an enterprise 
     architecture for Department-wide information technology. In 
     addition, the Secretary is responsible for administering the 
     Homeland Security Advisory System and for annually reviewing 
     and updating the Federal Response Plan for homeland security 
     and emergency preparedness.
       Sec. 102--subsection (c). Visa Issuance. Vests in the 
     Secretary authority to issue regulations with respect to 
     visas and other immigration and nationality laws implemented 
     by consular officers. The Secretary is also authorized to 
     assign employees of the Department to diplomatic and consular 
     posts to advise consular officers regarding specific security 
     threats relating to the adjudication of visa applications, 
     review applications, and investigate matters under the 
     jurisdiction of the Secretary. The Secretary of State may 
     direct a consular officer to refuse a visa in the foreign 
     policy or security interests of the United States.
       Sec. 102--subsection (d). Amends the National Security Act 
     to include the Secretary as a member of the National Security 
     Council.
       Sec 103. Deputy Secretary. Establishes a Deputy Secretary 
     for Homeland Security, appointed subject to Senate 
     confirmation, responsible for assisting the Secretary in the 
     administration and operations of the Department.
       Sec. 104. Under Secretary for Management. Establishes an 
     Under Secretary for Management, appointed subject to Senate 
     confirmation, who will be responsible for the management and 
     administration of the Department, including the budget and 
     appropriations, procurement, human resources and personnel, 
     information technology, facilities and property, and other 
     functions.
       Sec. 105. Assistant Secretaries. Establishes not more than 
     5 Assistant Secretaries, appointed subject to Senate 
     confirmation. When submitting the name of an individual to 
     the Senate for confirmation, the President shall describe the 
     general responsibilities that the appointee will exercise 
     and, subject to that, the Secretary shall assign each 
     Assistant Secretary such functions as the Secretary considers 
     appropriate.
       Sec. 106. Inspector General. Provides that there shall be 
     an Inspector General (IG) in the Department subject to the 
     Inspector General Act of 1978 (5 U.S.C. App), who, under the 
     Inspector General Act, will be appointed subject to Senate 
     confirmation. The Secretary may prohibit the IG from carrying 
     out audits or performing other duties if the Secretary 
     determines it necessary to prevent the disclosure of certain 
     sensitive information, preserve national security, or prevent 
     significant impairment to the national interest. The IG must 
     notify Congress when the Secretary exercises these powers. 
     The IG also shall have oversight over internal investigations 
     performed by any other investigatory offices where they exist 
     in the Department's subagencies. The Inspector General shall 
     also designate one official to review information and receive 
     complaints alleging abuses of civil rights and civil 
     liberties by employees and officials of the Department; 
     publicize information on the responsibilities and functions 
     of the official; and submit semi-annual reports to Congress 
     describing the implementation of this section. (The civil 
     rights language parallels a USA Patriot Act provision 
     requiring the designation of a similar official in the 
     Justice Department's IG office.)
       Sec. 107. Chief Financial Officer. Establishes a Chief 
     Financial Officer (CFO), appointed subject to Senate 
     confirmation.
       Sec. 108. Chief Information Officer. Establishes a Chief 
     Information Officer (CIO) to assist the Secretary with 
     Department-wide information resources management.
       Sec. 109. General Counsel. Establishes a General Counsel, 
     appointed subject to Senate confirmation, to serve as the 
     chief legal officer of the Department.
       Sec. 110. Civil Rights Officer. Establishes a Civil Rights 
     Officer, appointed by the President and confirmed by the 
     Senate, who shall be responsible for, among other duties, 
     ensuring compliance with all civil rights laws and 
     regulations applicable to Department employees and 
     participants in Department programs and overseeing compliance 
     with statutory and constitutional requirements related to the 
     civil rights of individuals affected by the Department's 
     programs and activities.
       Sec. 111. Privacy Officer. Establishes a Privacy Officer, 
     appointed by the Secretary, who will oversee compliance with 
     the Privacy Act and other applicable laws relating to the 
     privacy of personal information. The Privacy Officer will 
     assist the Department with the development and implementation 
     of policies and procedures to ensure that privacy 
     considerations and safeguards are incorporated and 
     implemented in programs and activities; and that information 
     is handled in a manner that minimizes the risks of harm to 
     individuals from inappropriate disclosure.
       Sec. 112. Chief Human Capital Officer. States that the 
     Secretary shall appoint or designate a Chief Human Capital 
     Officer to advise and assist the Department on workforce 
     skills, training, recruitment, retention, and other issues 
     necessary to attract and retain a highly qualified workforce.
       Sec. 113. Office of International Affairs. Creates Office 
     of International Affairs within the Office of the Secretary, 
     headed by a Director, who shall be responsible for: promoting 
     information and education exchange with foreign nations, 
     including joint research and development on countermeasures, 
     joint training exercises of first responders, and exchange of 
     expertise on terrorism prevention, response and crisis 
     management; planning international conferences, exchange 
     programs and training activities; and managing international 
     activities within the Department in consultation with the 
     Department of State and other relevant Federal officials. The 
     Director shall initially concentrate on fostering cooperation 
     with countries that are already highly focused on homeland 
     security issues and have been cooperative with the United 
     States in the area of counterterrorism.
       Sec. 114. Executive Schedule Positions. Establishes the 
     Executive Schedule levels for the Secretary, Deputy 
     Secretary, Under Secretaries, Assistant Secretaries, and 
     other senior officers.
       Subtitle B--Establishment of Directorates and Offices
       Sec. 131. Directorate of Border and Transportation 
     Protection. Establishes a Directorate of Border and 
     Transportation Protection which shall be headed by an Under 
     Secretary who is appointed by the President with the advice 
     and consent of the Senate. The Directorate shall be 
     responsible for securing borders, territorial waters, ports, 
     waterways, air, land, and sea transportation systems, 
     including coordinating governmental activities at ports of 
     entry. It shall also be responsible for using intelligence to 
     establish inspection priorities for agricultural products and 
     livestock from locations suspected of terrorist activities, 
     harboring terrorists, or of having unusual human health or 
     agriculture disease outbreaks. In addition, it shall provide 
     agency-specific training for agents and analysts from within 
     the Department, other agencies, State and local agencies and 
     international entities that have partnerships with the 
     Federal Law Enforcement Training Center. Authorities, 
     functions, personnel, and assets are transferred from the 
     Customs Service, which shall be maintained as a distinct 
     entity; the Coast Guard, which shall also be maintained as a 
     distinct entity and shall report directly to the Secretary; 
     that portion of the Animal Plant and Health Inspection 
     Service of the Department of Agriculture which administers 
     laws relating to agricultural quarantine inspections at 
     points of entry; the Transportation Security Administration 
     of the Department of Transportation; and the Federal Law 
     Enforcement Training Center of the Department of Treasury (a 
     center which provides training to law enforcement officers of 
     70 Federal partner agencies).
       Sec. 131 subsection (d)--Exercise of Customs Revenue 
     Functions. Notwithstanding the transfer of authorities, 
     functions, personnel, and assets from the Customs Service, 
     the Secretary of the Treasury shall retain authority to issue 
     regulations governing customs revenue functions, with the 
     concurrence of the Secretary and with the assistance of the 
     Customs Service. The Customs Service is responsible for 
     administering and enforcing the laws regarding customs 
     revenue functions, which include: assessing, collecting and 
     refunding duties, taxes and fees on imported goods; 
     administering import quotas and labeling requirements; 
     collecting import data needed to compile international trade 
     statistics; and administering reciprocal trade agreements and 
     trade preference legislation. These regulations will be 
     administered by the Secretary. Within 60 days, the Secretary 
     of the Treasury will submit recommendations to Congress 
     regarding the appropriate allocation of legal authorities 
     relating to these functions.
       Sec. 131 subsection (e)--Preserving Coast Guard Mission 
     Performance. Preserves the structural and operational 
     integrity of the Coast Guard, the authority of the 
     Commandant, the non-homeland security missions of the Coast 
     Guard and the Coast Guard's capabilities to carry out these 
     missions even as it is transferred to the new Department. The 
     Coast Guard must be maintained intact and without reduction 
     after transfer to the Department unless Congress legislates 
     otherwise. No missions, functions, personnel or assets may be 
     controlled by, or diverted to the principal and continuing 
     use of any other part of the Department. The Secretary may 
     not make a substantial change to the Coast Guard's non-
     security missions or capabilities without prior Congressional 
     approval by statute. However, the President may waive this 
     restriction for up to 90 days if he certifies to Congress 
     that there is a clear, compelling and immediate state of 
     national emergency. None of these conditions shall apply when 
     the Coast Guard operates as a service in the Navy under 
     section 3 of title 14, United States Code.
       The Coast Guard will report directly to the Secretary. The 
     Inspector General of the Department will conduct an annual 
     review to assess the Coast Guard's performance, 
     particularly with respect to non-security missions.
       Sec. 132. Directorate of Intelligence. Establishes a 
     Directorate of Intelligence, headed by an Under Secretary 
     appointed by the President by and with the advice and consent 
     of the Senate. The Directorate shall serve as a national-
     level focal point for the analysis of information available 
     to the United States Government relating to the plans, 
     intentions, and capabilities of terrorists and terrorist 
     organizations for the purpose of supporting the mission of 
     the Department. The Directorate shall communicate,

[[Page S8171]]

     coordinate, and cooperate with the intelligence community and 
     other agencies as determined by the Secretary. The Director 
     of Central Intelligence's Counterterrorist Center shall have 
     primary responsibility for the analysis of foreign 
     intelligence relating to international terrorism. The 
     Directorate of Intelligence may conduct supplemental analysis 
     of foreign intelligence relating to threats of terrorism 
     against the United States.
       In general, the Directorate shall be responsible for 
     receiving and analyzing law enforcement information, 
     intelligence and other information to detect and identify 
     specific threats of terrorism; working with the Director of 
     Central Intelligence and the intelligence community to 
     establish overall intelligence priorities; requesting 
     additional information; disseminating information to other 
     entities, including state and local law enforcement, to 
     assist in deterring, preventing and responding to terrorism 
     and other threats; establishing, in conjunction with other 
     appropriate officials, secure communications and information 
     technology infrastructure, and advanced analytical tools; and 
     ensuring that all material received by the Department is 
     protected against unauthorized disclosure and handled 
     consistent with the authority of the Director of Central 
     Intelligence to protect sources and methods, and similar 
     authorities of the Attorney General concerning sensitive law 
     enforcement information. The Directorate is also responsible 
     for providing training and other support to providers of 
     information to the Department or consumers of information 
     from the Department; and making recommendations to the 
     Secretary for improving policies and procedures governing 
     sharing of law enforcement, intelligence, and other 
     information within the Federal government and between the 
     Federal government and state and local governments and law 
     enforcement agencies. The Directorate shall be staffed, in 
     part, by analysts via reimbursable detail from agencies of 
     the intelligence community.
       Sec. 132 subsection (c)--Access to Information. Provides 
     that, unless otherwise directed by the President, the 
     Secretary shall have access to, and agencies shall provide, 
     all reports, assessments, analytical information, and 
     information, including unevaluated intelligence, relating to 
     the plans, intentions, capabilities, and activities of 
     terrorist organizations and to other areas of responsibility 
     that may be collected, possessed, or prepared by any other 
     United States government agency. As the President may further 
     provide, the Secretary shall receive additional information 
     requested by the Secretary. The Secretary may enter into 
     cooperative agreements with agencies, and regardless of 
     whether the Secretary has entered into any such cooperative 
     agreement, all agencies shall promptly provide information to 
     the Secretary.
       Sec. 132 subsection (e)--Additional Responsibilities. The 
     Under Secretary for Intelligence is also responsible for 
     developing analyses concerning the means terrorists might 
     employ to exploit vulnerabilities in homeland security 
     infrastructure; developing and conducting experiments, tests 
     and inspections to test weaknesses in homeland defenses; 
     developing and practicing counter-surveillance techniques to 
     prevent attacks; conducting risk assessments to determine the 
     risk posed by specific kinds of terrorist attacks; and 
     working with the Directorate of Critical Infrastructure 
     Protection, other agencies, State and local governments, the 
     private sector and local law enforcement and intelligence 
     agencies to address vulnerabilities.
       Sec. 133. Directorate of Critical Infrastructure 
     Protection. Establishes a Directorate of Critical 
     Infrastructure Protection which shall be headed by an Under 
     Secretary who is appointed by the President with the advice 
     and consent of the Senate. Among other duties, the 
     Directorate shall be responsible for: receiving relevant 
     intelligence from the Directorate of Intelligence, law 
     enforcement information and other information to 
     comprehensively assess the vulnerabilities of key resources 
     and critical infrastructures; identifying priorities and 
     supporting protective measures by the Department and other 
     entities; developing a comprehensive national plan for 
     securing key resources and critical infrastructure (as part 
     of the National Strategy described in Title III); 
     establishing specialized research and analysis units to 
     identify vulnerabilities and protective measures in key areas 
     of critical infrastructure, as well as other systems or 
     facilities whose destruction or disruption could cause 
     substantial harm to health, safety, property, or the 
     environment; enhancing and sharing of information regarding 
     cyber-security and physical security, developing security 
     standards, tracking vulnerabilities, proposing improved risk 
     management policies, and delineating the roles of various 
     governmental agencies in preventing, defending, and 
     recovering from attacks; and working with the Department of 
     State and other appropriate agencies to help establish cyber 
     security policy, standards and enforcement mechanisms. The 
     Directorate will also be responsible for establishing the 
     necessary organizational structure to provide leadership and 
     focus on both cyber-security and physical security, and 
     ensuring the maintenance of a nucleus of cyber and physical 
     security experts in the United States Government.
       The authorities, functions, personnel and assets of the 
     following offices are transferred to the Department: (1) the 
     Critical Infrastructure Assurance Office of the Department of 
     Commerce, (established by Presidential Decision Directive 63 
     in 1998 to coordinate federal initiatives on critical 
     infrastructure); (2) The National Infrastructure Protection 
     Center of the Federal Bureau of Investigation (other than the 
     Computer Investigations and Operations Section); (3) the 
     National Communications System of the Department of Defense 
     (established by Executive Order in 1984 to assist the 
     President and others in (a) the exercise of 
     telecommunications functions and (b) coordinating the 
     planning for and provision of national security and emergency 
     preparedness communications); (4) the Computer Security 
     Division of the National Institute of Standards and 
     Technology (NIST) of the Department of Commerce (the NIST 
     division that is tasked with improving information systems 
     security); (5) The National Infrastructure Simulation and 
     Analysis Center of the Department of Energy (established to 
     serve as a source of national competence to address critical 
     infrastructure protection and continuity through support for 
     activities related to counterterrorism, threat assessment, 
     and risk mitigation); (6) The Federal Computer Incident 
     Response Center of the General Service Administration (a 
     partnership of computer incident response, security, and law 
     enforcement personnel to share information on and handle 
     computer security incidents); (7) The Energy Security and 
     Assurance Program of the Department of Energy (a national 
     security program to help reduce America's energy supply 
     vulnerability from severe disruptions due to natural or 
     malevolent causes); and (8) The Federal Protective Service 
     of the General Services Administration (GSA) (which 
     oversees security at Federal property managed by GSA).
       Sec. 134. Directorate of Emergency Preparedness and 
     Response. Establishes a Directorate of Emergency Preparedness 
     and Response which shall be headed by an Under Secretary 
     appointed by the President and confirmed by the Senate. Among 
     other duties, the Directorate shall be responsible for 
     carrying out Federal emergency preparedness and response 
     activities; providing State and local authorities with 
     equipment for detection, protection, and decontamination in 
     an emergency involving weapons of mass destruction; 
     overseeing Federal, State and local emergency preparedness 
     training and exercise programs; developing and managing a 
     single response system for national incidents; managing and 
     updating a Federal disaster response plan; using the 
     resources of both human and animal health communities in 
     emergency planning and response activities; creating a 
     National Crisis Action Center to coordinate Federal support 
     for State and local governments and the private sector in a 
     crisis; coordinating and integrating operational activities 
     of the Department of Defense, the National Guard, and other 
     Federal agencies into the Federal response plan; managing, in 
     consultation with the Under Secretary of Science and 
     Technology and the Centers for Disease Control, the Select 
     Agent Registration Program; overseeing the Centers for 
     Disease Control's management of the Strategic National 
     Stockpile of drugs, biologics, and devices, which is 
     transferred to the Department; and developing a comprehensive 
     plan to address the interface of medical informatics and the 
     medical response to terrorism.
       The authorities, functions, personnel and assets of the 
     following entities are transferred: the Federal Emergency 
     Management Agency; the National Office of Domestic 
     Preparedness of the Federal Bureau of Investigation of the 
     Department of Justice (created by the Attorney General in 
     1998 to coordinate and facilitate federal efforts to assist 
     state and local emergency responders with training and 
     materials necessary to respond to an event involving weapons 
     of mass destruction); the Office of Domestic Preparedness of 
     the Department of Justice (developed to assist in the 
     training of state and local law enforcement agencies to 
     respond to terrorist incidents); the Office of Emergency 
     Preparedness within the Office of the Assistant Secretary for 
     Public Health Emergency Preparedness of the Department of 
     Health and Human Services (HHS) (responsible for coordinating 
     HHS efforts to plan and prepare for a national response to 
     medical emergencies arising from the use of weapons of mass 
     destruction); the Strategic National Stockpile of the 
     Department of Health and Human Services; and the functions of 
     the Select Agent Registration Program (HHS) and the United 
     States Department of Agriculture (USDA) (a program designed 
     to identify all biological agents and toxins that have the 
     potential to pose severe threats to public health and safety, 
     regulate the transfer of such agents and toxins, and 
     establish a registration scheme regulating their possession, 
     use and transfer).
       Sec. 135. Directorate of Science and Technology. 
     Establishes a Directorate of Science and Technology which 
     shall be headed by an Under Secretary appointed by the 
     President with the advice and consent of the Senate. The 
     Directorate will support the mission of the Department by (1) 
     managing and supporting research and development activities 
     to meet national homeland security needs and objectives; (2) 
     articulating national research and development goals, 
     priorities, and strategies pursuant to the mission of the 
     Department; (3) coordinating with entities within and outside 
     the Department to advance the research and development agenda 
     of the Department; (4) advising the Secretary of the 
     Department on all scientific and technical matters; and, (5) 
     facilitating

[[Page S8172]]

     the transfer and deployment of technologies crucial to 
     homeland security needs. To fulfill the mission of the 
     Directorate, the Under Secretary will be responsible for, 
     among other things, developing a technology roadmap 
     biannually for achieving technological goals relevant to 
     homeland security; instituting mechanisms to promote, 
     facilitate, and expedite the transfer and deployment of 
     technologies relevant to homeland security needs, including 
     dual-use capabilities; establishing mechanisms for sharing 
     research and technology developments and opportunities with 
     appropriate Federal, State, local, and private sector 
     entities; and, establishing in coordination with the 
     appropriate Under Secretaries, a National Emergency 
     Technology Guard (NET Guard) comprised of volunteers with 
     expertise in science and technology to assist local 
     communities in responding to and recovering from emergency 
     contingencies.
       This section authorizes the Secretary to exercise certain 
     transactional and hiring authorities relating to research and 
     development and the Secretary shall have the authority to 
     transfer funds to agencies. Additionally, DHS will help 
     direct the use of bioterrorism-related funds, appropriated to 
     NIH, through joint strategic agreements between the Secretary 
     of HHS and the Secretary of DHS. Under such agreements, the 
     Secretary of DHS will have the authority to determine the 
     broad, general research priorities, while the Secretary of 
     HHS will have the authority to set the specific, scientific 
     research agenda. NIH will continue to manage and award all 
     funds. The Secretary is also able to contract with existing 
     Federally Funded Research and Development Centers (FFRDCs), 
     or establish such centers. This section also establishes an 
     Acceleration Fund, to be administered by the Security 
     Advanced Research Projects Agency (SARPA), to stimulate 
     research and development projects; the Fund is authorized to 
     receive an appropriation of $200,000,000 for fiscal year 2003 
     and such sums as are necessary in subsequent fiscal years. 
     Through a joint agreement with the Coast Guard, ten percent 
     of the Acceleration Fund is to be allocated to Coast Guard 
     homeland security missions for FY'04 and FY'05.
       The Directorate also establishes several mechanisms to 
     promote research and development activities. These include: 
     (1) a Science and Technology Council composed of senior 
     research and development officials to, among other things, 
     provide the Under Secretary with recommendations on 
     priorities and strategies, and facilitate coordination among 
     agencies, the private sector, and academia; (2) the Security 
     Advanced Research Projects Agency (SARPA) to undertake and 
     stimulate basic and applied research, leverage existing 
     research and development, and accelerate the transition and 
     deployment of technologies; (3) an Office of Risk Analysis 
     and Assessment to, among other duties, conduct and commission 
     studies of threat assessment and risk analysis to help guide 
     the research priorities of the Department; (4) an Office of 
     Technology Evaluation and Transition to serve as the 
     principal clearinghouse for receiving and evaluating 
     proposals for innovative technologies; (5) an Office for 
     National Laboratories, which shall enter, on behalf of the 
     Department, into joint sponsorship agreements with the 
     Department of Energy (DOE) to coordinate and utilize the 
     resources and expertise of DOE national laboratories and 
     sites; and, (6) an Office of Laboratory Research, which 
     shall incorporate personnel, functions, and assets from 
     several programs and activities transferred from DOE that 
     are related to chemical and biological security, nuclear 
     smuggling, and nuclear assessment, as well as the National 
     Bio-Weapons Defense Analysis Center which is transferred 
     from the Department of Defense. The Office shall also 
     administer the disbursement and undertake oversight of 
     research and development funds transferred to HHS and 
     other agencies outside the Department, and shall have a 
     Science Advisor for bioterrorism. This section also 
     requires the Secretary to develop a comprehensive long-
     term strategy and plan for engaging for-profit and other 
     non-Federal entities in research, development, and 
     production of homeland security countermeasures for 
     biological, chemical, and radiological weapons.
       Sec. 136. Directorate of Immigration Affairs. Establishes a 
     Directorate of Immigration Affairs to carry out all functions 
     of that Directorate in accordance with Division B of the Act.
       Sec. 137. Office for State and Local Government 
     Coordination. Establishes within the Office of the Secretary 
     an office to oversee and coordinate programs for and 
     relationships with State and local governments; assess, and 
     advocate for, the resources needed by State and local 
     governments to implement the National Strategy for combating 
     terrorism; provide State and local governments with regular 
     information, research and technical support; and develop a 
     process for receiving meaningful input from State and local 
     governments to assist in the development of the National 
     Strategy and other homeland security activities. The 
     Secretary shall appoint a Chief Homeland Security Liaison 
     Officer, who shall coordinate the activities of homeland 
     security liaison officers in each state. The officers shall 
     coordinate between the Department and State and local first 
     responders, provide training for State and local entities, 
     identify homeland security functions in which the Federal 
     role duplicates the State or local role and recommend ways to 
     reduce inefficiencies, and assist State and local entities in 
     priority setting based on discovered needs of first responder 
     organizations. Establishes the Interagency Committee on First 
     Responders, composed of the Chief Homeland Security Liaison 
     Officer and representatives from Federal agencies including 
     HHS, CDC, FEMA, Coast Guard, DoD, FBI and others, who will 
     ensure coordination among the Federal agencies involved with 
     State and local first responders, identify community-based 
     first responder needs, recommend new or expanded grant 
     programs to improve local first responder services, and find 
     ways to streamline support by Federal agencies for local 
     first responders. Also establishes the Advisory Council for 
     the Interagency Committee, which shall be composed of no more 
     than 13 members representing community-based first responders 
     from both urban and rural communities.
       Sec. 138. United States Secret Service. Transfers the 
     authorities, functions, personnel and assets of the United 
     States Secret Service, which shall be maintained as a 
     distinct entity reporting directly to the Secretary.
       Sec. 139. Border Coordination Working Group. Requires the 
     Secretary to establish a border security working group with 
     the Under Secretaries for Border and Transportation Security 
     and for Immigration Affairs. The Working Group would, with 
     respect to all border security functions, develop coordinated 
     budget requests, allocations of appropriations, staffing 
     requirements, communication and in other areas; coordinate 
     joint and cross-training programs for personnel; monitor, 
     evaluate and make improvements in the coverage and geographic 
     distribution of border security programs and personnel; 
     develop and implement policies and technologies to ensure the 
     speedy, orderly and efficient flow of lawful traffic, travel 
     and commerce, and enhanced scrutiny for high risk traffic, 
     travel and commerce; and identify systemic problems in 
     coordination with border security agencies and propose 
     changes to mitigate such problems. The Secretary shall 
     consult with and may include representatives of such agencies 
     in Working Group deliberations as appropriate.
       Sec. 140. Executive Schedule Positions. Adds the 
     appropriate Under Secretaries within the Department to the 
     Executive Schedule.
       Subtitle C--National Emergency Preparedness Enhancement--
           The National Emergency Preparedness Enhancement Act of 
           2002
       Sec. 151. Short Title.
       Sec. 152. Preparedness Information and Education. 
     Establishes a Clearinghouse on Emergency Preparedness, headed 
     by a director, who will consult with Federal agencies, task 
     forces and others to collect information on emergency 
     preparedness, including information relevant to the Strategy. 
     The Clearinghouse will ensure efficient dissemination of 
     emergency preparedness information; establish a one-stop shop 
     for emergency preparedness information, including a web site; 
     develop an ongoing public awareness campaign, including a 
     theme to be implemented annually during National Emergency 
     Preparedness Week; and compile and disseminate information on 
     best practices for emergency preparedness.
       Sec. 153. Pilot Program. Authorizes the Department to award 
     grants to private entities to pay the Federal share of the 
     cost of improving emergency preparedness and of educating 
     employees and others using the entities' facilities about 
     emergency preparedness. The Federal share of the cost shall 
     be 50 percent, up to a maximum of $250,000 per grant 
     recipient. There are authorized to be appropriated $5,000,000 
     for each of fiscal years FY 2003 through 2005 for such 
     grants.
       Sec. 154. Designation of National Emergency Preparedness 
     Week. Designates each week that includes September 11 as 
     ``National Emergency Preparedness Week'' and requests that 
     the President issue a proclamation each year to observe the 
     week with appropriate programs and activities. In conjunction 
     with the week, the head of each Federal agency, as 
     appropriate, shall coordinate with the Department to inform 
     and educate the private sector and the general public about 
     emergency preparedness activities, and tools, giving a high 
     priority to efforts designed to address terrorist attacks.
       Subtitle D--Miscellaneous Provisions
       Sec. 161. National Biological and Chemical Weapons Defense 
     Analysis Center. Establishes within the Department of Defense 
     a National Biological and Chemical Weapons Defense Analysis 
     Center to develop countermeasures to potential attacks by 
     terrorists using biological or chemical weapons that are 
     weapons of mass destruction, and designates it for transfer 
     to the Department.
       Sec. 162. Review of Food Safety. Requires the Secretary to 
     enter into an agreement with and provide funding to the 
     National Academy of Sciences to conduct a detailed and 
     comprehensive review of Federal statutes and regulations 
     affecting the safety and security of the food supply and to 
     review the efficiency and effectiveness of the organizational 
     structure of Federal food safety oversight. Requires the 
     Academy to report its findings and conclusions, and 
     recommendations, to Congress not later than 1 year after 
     enactment of this Act and prescribes the issues which shall 
     be addressed in the report. The Secretary is further required 
     to provide Congress and the President a response to the 
     recommendations.
       Sec. 163. Exchange of Employees between agencies and State 
     and Local governments.

[[Page S8173]]

     Authorizes the Secretary to establish an employee exchange 
     program under existing provisions of Title 5, United States 
     Code to improve the coordination of antiterrorism programs 
     and activities between the Department and State and local 
     governments. An employee of the Department may be detailed to 
     a State or local government, and State and local government 
     employees may be detailed to the Department under this 
     program. The section requires that employees assigned under 
     this program have appropriate training and experience and 
     that the program be implemented in a manner that 
     appropriately safeguards classified and other sensitive 
     information.
       Sec. 164. Whistleblower Protection for Federal Employees 
     Who are Airport Security Screeners. Extends to federal 
     employees who are baggage screeners for the Transportation 
     Security Agency the same whistleblower protections as apply 
     generally to federal employees. They are protected against 
     retaliation for coming forward with information about a 
     violation, mismanagement, waste, abuse, or a danger to health 
     or safety.
       Sec. 165. Whistleblower Protection for Certain Airport 
     Employees. Extends to airport screening personnel who are not 
     federal employees the same whistleblower protections as apply 
     to air carrier personnel. They are protected against 
     retaliation for coming forward with information about a 
     violation relating to air carrier safety.
       Sec. 166. Bioterrorism Preparedness and Response Division. 
     This section establishes a Bioterrorism Preparedness and 
     Response Division within the Centers for Disease Control and 
     Prevention. This new division will lead and coordinate the 
     counter-bioterrorism efforts of the CDC, as well as serve as 
     the focal point for coordination and communication between 
     the CDC and both the public health community and the 
     Department of Homeland Security. Additionally, this division 
     will train public health personnel in responses to 
     bioterrorism.
       Sec. 167. Coordination with the Department of Health and 
     Human Services under the Public Health Service Act. This 
     section ensures that the Federal Response Plan is consistent 
     with Section 319 of the Public Health Service Act, which 
     grants the Secretary of Health and Human Services authority 
     to act in the event of a public health emergency.
       Sec. 168. Rail Security Enhancements. Authorizes grants 
     over a 2-year period for the benefit of Amtrak, including 
     $375 million for the cost of enhancements to security and 
     safety of Amtrak rail passenger service; $778 million for 
     life safety improvements to Amtrak tunnels between New York 
     and Washington built between 1872 and 1910; and $55 million 
     for emergency repair and return to service of Amtrak 
     passenger cars and locomotives. This money will remain 
     available until expended.
       Sec. 169. Grants for Firefighting Personnel. This section 
     amends the Federal Fire Prevention and Control Act of 1974 
     (15 U.S.C. 2229), as amended, to provide grants to hire 
     employees engaged in fire protection. Grants shall be awarded 
     for a 3-year period. The total amount shall not exceed 
     $100,000 per firefighter, indexed for inflation, over the 3-
     year grant period. The Federal grant shall not exceed 75 
     percent of the total salary and benefits cost for additional 
     firefighters hired. The Director may waive the 25 percent 
     non-Federal match for a jurisdiction of 50,000 or fewer 
     residents or in cases of extreme hardship. Grants may only be 
     used for additional firefighting personnel, and shall not be 
     used to supplant funding allocated for personnel from State 
     and local sources. $1,000,000,000 is authorized for each of 
     fiscal years 2003 and 2004 for grants under this subsection.
       Sec. 170. Review of Transportation Security Enhancements. 
     Requires the Comptroller General to prepare and submit a 
     report to Congress within one year that reviews all available 
     intelligence on terrorist threats against aviation, seaport, 
     rail and transit facilities; reviews all available 
     information on the vulnerabilities of such facilities; and 
     reviews the steps taken by agencies since September 11 to 
     improve security at such facilities to determine the 
     effectiveness of those measures at protecting passengers and 
     transportation infrastructure from terrorist attack. The 
     report shall also include proposed steps to reduce 
     deficiencies found in aviation, seaport, rail and transit 
     security, and the costs of implementing those steps. Within 
     90 days after the report is submitted to the Secretary, the 
     Secretary shall provide to Congress and the President the 
     Department's response to the report and its recommendations 
     to further protect passengers and infrastructure from 
     terrorist attack.
       Sec. 171. Interoperability of Information Systems. Requires 
     the Director of the Office of Management and Budget, in 
     consultation with the Secretary, to develop an enterprise 
     architecture to achieve interoperability among information 
     systems of federal agencies with responsibility for homeland 
     security, and to establish timetables for implementation. The 
     Director will ensure the implementation of the architecture 
     by federal agencies, and report to Congress on progress 
     achieved. The architecture must be designed so that 
     information systems can be deployed rapidly and upgraded with 
     new technologies, and must be highly secure. The section also 
     requires the Director, in consultation with the Secretary, to 
     develop a plan to achieve interoperability among the 
     information systems of federal, state, and local agencies 
     with responsibility for homeland security, and to report 
     to Congress on progress achieved.
       Sec. 172. Extension of Customs User Fees. Extends customs 
     user fees by six months to March 31, 2004. The two fees 
     covered include the merchandise processing fee and a fee on 
     passengers and conveyances.
       Subtitle E--Transition Provisions
       Sec. 181. Definitions. Defines the term ``agency,'' for 
     purposes of subtitle E, to include any entity, organizational 
     unit, or function transferred or to be transferred under this 
     title. Defines the term ``transition period'' to mean the 12-
     month period beginning with the effective date of Division A.
       Sec. 182. Transfer of Agencies. Provides that the transfer 
     of an agency to the Department shall occur when the President 
     directs, but in no event later than the end of the transition 
     period.
       Sec. 183. Transitional Authorities. Provides that until an 
     agency is transferred, existing officials shall provide the 
     Secretary such assistance as he may request in preparing for 
     the integration of the agency into the Department and may 
     detail personnel to assist with the transition on a 
     reimbursable basis. During the transition period the 
     President may designate any officer who has been confirmed by 
     the Senate, and who continues as such an officer, to act 
     until the office is filled, subject to the time limits in the 
     Vacancies Act. A Senate-confirmed officer of an agency 
     transferred to the Department may be appointed to a 
     Departmental office with equivalent authorities and 
     responsibilities without being again confirmed by the Senate 
     for the new position.
       Sec. 184. Incidental Transfers and Transfer of Related 
     Functions. The Director of OMB, in consultation with the 
     Secretary, may make additional incidental transfers of 
     personnel and assets. Also, at any time an agency is 
     transferred to the Department, the President may transfer any 
     agency established to carry out or support adjudicatory or 
     review functions in relation to the transferred agency. 
     However, the President would not be authorized to transfer 
     the Executive Office of Immigration Review in the Justice 
     Department under this section. The transfer of an agency that 
     is part of a department will include the transfer of related 
     secretarial functions to the new Secretary of Homeland 
     Security.
       Sec. 185. Implementation Progress Reports and Legislative 
     Recommendations. Provides that the Secretary shall prepare 
     and submit to Congress a series of Implementation Progress 
     Reports. The initial report is due not later than 6 months 
     after the date of enactment. Additional reports are due every 
     six months until the final report which will be due not later 
     than 6 months after the transfer is completed.
       Sec. 185 subsection (c)--Contents. This subsection 
     specifies the information to be provided. Reports will 
     describe the steps needed to transfer and incorporate 
     agencies into the Department, a timetable, and a progress 
     report on meeting the schedule. Reports will also include 
     information workforce planning, information technology 
     matters, and other matters necessary for the successful 
     implementation of the transition.
       Sec. 185 subsection (d)--Legislative Recommendations. Calls 
     upon the Secretary to submit recommendations for legislation 
     that the Secretary determines necessary as part of each semi-
     annual implementation progress report. If the legislative 
     recommendations are ready sooner, the bill specifically 
     invites the Secretary to submit them in advance of the 
     balance of the report. The Secretary is to provide 
     recommended legislation that would, among other things, 
     facilitate the integration of transferred entities into the 
     Department; reorganize within the Department, or provide the 
     Secretary additional authority to do so; address inequities 
     in pay or other terms and conditions of employment; enable 
     the Secretary to engage in essential procurement; and 
     otherwise help further the mission of the Department.
       Sec. 186. Transfer and Allocation. Provides that, except 
     where otherwise provided in this title, personnel employed in 
     connection with, and the assets, liabilities, contracts, 
     property records, and any unexpended balance on 
     appropriations, authorizations, allocations and other funds 
     related to the functions and entities transferred, shall be 
     transferred to the Secretary as appropriate, subject to the 
     approval of the Director of the Office of Management and 
     Budget and subject to applicable laws on the transfer of 
     appropriated funds. Unexpended funds transferred pursuant to 
     this section shall be used only for purposes for which the 
     funds were originally authorized and appropriated.
       Sec. 187. Savings Provisions. In general, this section 
     provides that all orders, determinations, rules, regulations, 
     permits, agreements, contracts, recognitions of labor 
     organizations, collective bargaining agreements and other 
     administrative actions in effect at the time this Division 
     takes effect shall continue in effect according to their 
     terms until modified or revoked. Certain proceedings, such as 
     notices of proposed rulemaking or applications for licenses, 
     permits, or financial assistance pending at the time this 
     title takes effect shall also continue. Suits and other 
     proceedings commenced before the effective date of this Act 
     are also not affected. Administrative actions by an agency 
     relating to a function transferred under this title may be 
     continued by the Department.
       Sec. 187 subsection (f)(1). Employee Rights. This 
     subsection is intended to assure employees in agencies 
     transferred to the new

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     Department that they can keep their collective bargaining 
     rights unless their job changes and there is an actual 
     national security basis for taking those rights away. For 
     agencies transferred to the Department subject to pre-
     existing rights to form a union, the President may not 
     terminate those rights agency-wide by executive order. 
     However, such rights may be withdrawn from individual 
     employees at the Department if their primary job duties 
     materially change and consist of intelligence, 
     counterintelligence, or investigative duties directly related 
     to terrorism investigation and if it is demonstrated 
     that collective bargaining would adversely affect national 
     security. Applying this standard under existing 
     procedures, managers at the Department may act immediately 
     to remove individual employees from collective bargaining 
     upon deciding that the conditions for removal are met. 
     Either the union or management may ask the Federal Labor 
     Relations Authority (FLRA) to review this action. For new 
     offices established at the Department under this bill, the 
     President may remove collective bargaining rights from an 
     entire office by executive order, if the primary function 
     is intelligence, counterintelligence, or investigative 
     duties related to terrorism investigation, and if 
     application of those rights would adversely affect 
     national security. Furthermore, employees hired to serve 
     in new offices at the Department, like employees 
     transferred to the Department, may be removed individually 
     from collective bargaining for national security reasons.
       Sec. 187 subsections (f)(2)--(4). Other personnel matters. 
     The transfer of an employee to the Department will not alter 
     the terms and conditions of employment, including 
     compensation. Any conditions for appointment, including the 
     requirement of Senate confirmation, would continue to apply. 
     Any employee transferred with pre-existing whistleblower 
     protection rights may not be deprived of those rights based 
     on a determination of necessity for good administration.
       Sec. 187 subsection (g). No effect on intelligence 
     authorities. The transfer of authorities under this title 
     shall not be construed as affecting the authorities of the 
     Director of Central Intelligence, the Secretary of Defense, 
     or the heads of departments and agencies within the 
     intelligence community.
       Sec. 188. Transition Plan. By September 15, 2002, the 
     President is required to submit to Congress a transition 
     plan, including a detailed plan for transition to the 
     Department and implementation of relevant portions of the 
     Act, and including a proposal for financing the new 
     operations of the Department for which appropriations are not 
     available.
       Sec. 189. Use of Appropriated Funds. This section sets 
     forth a number of conditions on the use of funds by the 
     Department, the Office, and the National Combating Terrorism 
     Strategy Panel. Balances of appropriations and other funds 
     transferred under the Act may be used only for the purposes 
     for which they were originally available and subject to the 
     conditions provided by the law originally appropriating or 
     otherwise making available the amount. The President shall 
     notify Congress not less than 15 days before transferring 
     funds or assets under this Act. Additional conditions under 
     this section apply to disposal of property, receipt and use 
     of gifts, and other matters. The President shall submit a 
     detailed budget request for the Department for FY 2004.
       Subtitle F--Administrative Provisions
       Sec. 191. Reorganizations and Delegations. Provides that 
     the Secretary may, as appropriate, reorganize within the 
     Department, except where specific organizational structure is 
     established by law. The Secretary may delegate any of the 
     functions of the Secretary and authorize successive 
     redelegations to other officers or employees of the 
     Department. However, any function vested by law, or assigned 
     by this title, to an organizational unit of the Department or 
     to the head of an organizational unit may not be delegated 
     outside of that unit.
       Sec. 192. Reporting Requirements. Requires the Comptroller 
     General of the United States to submit to Congress a report 
     not later than 15 months after the effective date of this 
     division and each year for the succeeding five years 
     containing an evaluation of the progress reports submitted 
     under section 185 and the findings, conclusions and 
     recommendations of the Comptroller General concerning how 
     successfully the Department is meeting the homeland security 
     missions of the Department and the other missions of the 
     Department.
       This section also outlines additional reports to be 
     submitted by the Secretary. These include: (1) biennial 
     reports relating to (a) border security and emergency 
     preparedness, and (b) certifying preparedness to prevent, 
     protect against, and respond to natural disasters, cyber 
     attacks, and incidents involving weapons of mass destruction; 
     (2) a report outlining proposed steps to consolidate 
     management authority for Federal operations at key points of 
     entry into the United States; (3) a report with definitions 
     of the terms ``combating terrorism'' and ``homeland 
     security,'' and (4) a strategic plan and annual performance 
     plan, along with annual performance reports, required by 
     existing statutes.
       Sec. 193. Environmental Protection, Safety, and Health 
     Requirements. Provides that the Secretary shall ensure that 
     the Department complies with all applicable environmental, 
     safety and health statutes and requirements, and develops 
     procedures for meeting such requirements.
       Sec. 194. Labor Standards. All laborers and mechanics 
     employed by contractors or subcontractors in the performance 
     of construction work financed in whole or in part with 
     assistance received under this Act shall be paid wages at 
     rates not less than those prevailing on similar construction 
     in the locality as determined by the Secretary of Labor in 
     accordance with the Davis-Bacon Act (40 U.S.C. 276a et. 
     seq.).
       Sec. 195. Procurement of Temporary and Intermittent 
     Services. In addition to the authority to hire experts or 
     consultants on a temporary or intermittent basis in 
     accordance with section 3109(b) of title 5, United States 
     Code, the Secretary may procure personal services, whenever 
     necessary due to an urgent homeland security need, for 
     periods of not more than a year without regard to the pay 
     limitations of section 3109.
       Sec. 196. Preserving Non-Homeland Security Mission 
     Performance. Establishes a reporting requirement designed to 
     monitor the performance of non-homeland security missions by 
     entities transferred to the Department. For each of the first 
     five years after a program or agency is transferred to the 
     Department, the relevant Under Secretary must report to the 
     Secretary, the Comptroller General and Congress regarding the 
     performance of that entity, with particular emphasis on non-
     homeland security missions. These reports shall seek to 
     inventory non-homeland security capabilities, including the 
     personnel, budgets and flexibilities used to carry out those 
     functions. The reports shall include information regarding 
     whether any changes are required to enable the transferred 
     entities to continue to carry out non-homeland security 
     missions without diminishment.
       Sec. 197. Future Years Homeland Security Program. Beginning 
     with the FY 2005 budget request, each budget request shall be 
     accompanied by a Future Years Homeland Security Program, 
     reflecting the estimated expenditures and proposed 
     appropriations included in that budget covering the fiscal 
     year with respect to which the budget is submitted and at 
     least the four succeeding fiscal years.
       Sec. 198. Protection of Voluntarily Furnished Confidential 
     Information. Records pertaining to the vulnerability of, and 
     threats to, critical infrastructure that are voluntarily 
     furnished to the Department and that are not customarily made 
     public by the provider are not subject to public disclosure 
     under the Freedom of Information Act. This provision would 
     not cover records submitted to satisfy legal requirements or 
     to obtain permits or other approvals, and would not cover 
     information that another Federal, State or local agency 
     receives independently of the Department.
       Sec. 199. Authorization of Appropriations. Authorizes such 
     sums as may be necessary to enable the Secretary to 
     administer and manage the Department and to carry out the 
     Department's functions created by the Act.
     Title II--National Office for Combating Terrorism
       Sec. 201. National Office for Combating Terrorism. This 
     section establishes a terrorism office within the Executive 
     Office of the President, to be run by a Director who will be 
     appointed by the President with advice and consent of the 
     Senate. The responsibilities of the Director will include: 
     (1) to develop national objectives and policies for combating 
     terrorism; (2) to direct and review the development of a 
     comprehensive national assessment of terrorist threats and 
     vulnerabilities to those threats, to be conducted by heads of 
     the relevant Federal agencies; (3) to develop, with the 
     Secretary of Homeland Security, a National Strategy for 
     combating terrorism under Title III; (4) to coordinate, 
     oversee and evaluate implementation and execution of the 
     Strategy; (5) to coordinate the development of a 
     comprehensive annual budget for programs and activities under 
     the Strategy, including the budgets of the military 
     departments and agencies with the National Foreign 
     Intelligence Program relating to international terrorism, but 
     excluding military programs, projects, or activities relating 
     to force protection; (6) to have lead responsibility for 
     budget recommendations relating to military, intelligence, 
     law enforcement and diplomatic assets in support of the 
     Strategy; (7) to exercise funding authority for Federal 
     terrorism prevention and response agencies; (8) to serve as 
     an adviser to the National Security Council; and (9) work 
     with the Director of the Federal Bureau of Investigation to 
     ensure that the Director receives relevant information 
     related to terrorism from the FBI, and that such information 
     is made available to appropriate Federal agencies and State 
     and local law enforcement officials. The President, in 
     consultation with the Director, shall assign resources as 
     appropriate to the Office. The establishment of the Office 
     within the Executive Office of the President shall not be 
     construed as affecting access by Congress to information or 
     personnel of the Office.
       Sec. 202. Funding for Strategy Programs and Activities. 
     This section establishes a process for the Director to review 
     the proposed budgets for federal programs under the Strategy. 
     The Director will, in consultation with the Director of the 
     Office of Management and Budget and the Secretary of Homeland 
     Security, identify programs that contribute to the Strategy, 
     and provide advice to the heads of the executive departments 
     and agencies on the amount and use of these programs through 
     budget certification procedures and the development of a 
     consolidated budget for the Strategy. The Director

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     will review agencies' budget submissions to OMB and may 
     decertify any proposals that do not incorporate the proposed 
     funding or initiatives previously advised by the National 
     Office on Combating Terrorism. The Director will provide 
     Congress with notice of any such decertification. Each year, 
     the Director will, in consultation with the Secretary of 
     Homeland Security and the head of each Federal terrorism 
     prevention and response agency, develop a consolidated 
     proposed budget for all programs and activities under the 
     Strategy for that fiscal year.
     Title III--National Strategy for Combating Terrorism and the 
         Homeland Security Response
       Sec. 301. Strategy. This section directs the Secretary and 
     Director to develop the National Strategy for combating 
     terrorism and homeland security response for the detection, 
     prevention, protection, response and recovery necessary to 
     counter terrorist threats. The Secretary has responsibility 
     for portions of the Strategy addressing border security, 
     critical infrastructure protection, emergency preparation and 
     response, and integrating state and local efforts with 
     activities of the Federal government. The Director has 
     overall responsibility for the development of the Strategy, 
     and particularly for those portions addressing intelligence, 
     military assets, law enforcement and diplomacy. The Strategy 
     will include: (1) policies and procedures to maximize the 
     collection, translation, analysis, exploitation and 
     dissemination of information related to combating terrorism 
     and homeland security response throughout the Federal 
     government and with State and local authorities; (2) plans 
     for countering chemical, biological, radiological, nuclear, 
     explosives, and cyber threats; (3) plans for improving the 
     resources of, coordination among, and effectiveness of health 
     and medical sectors for detecting and responding to terrorist 
     attacks on homeland; (4) specific measures to enhance 
     cooperative efforts between the public and private sectors in 
     protecting against terrorist attacks; (5) a review of 
     measures needed to enhance transportation security with 
     respect to potential terrorist attacks; and (6) other 
     critical areas. This section also establishes the National 
     Combating Terrorism and Homeland Security Response Council to 
     assist with preparation and implementation of the Strategy. 
     Members of the Council will be the heads of federal terrorism 
     prevention and response agencies or their designees. The 
     Secretary and Director will co-chair the Council, which will 
     meet at their direction.
       Sec. 302. Management Guidance for Strategy Implementation. 
     This section directs the Office of Management and Budget, in 
     consultation with the Secretary and the Director, to provide 
     management guidance for Federal agencies to successfully 
     implement the Strategy, and to report to Congress on these 
     efforts. It also requires the General Accounting Office to 
     evaluate the management guidance and agency performance in 
     implementing the Strategy.
       Sec. 303. National Combating Terrorism Strategy Panel. This 
     section establishes a nonpartisan, independent panel to 
     conduct an assessment of the Strategy as well as an 
     independent, alternative assessment of measures required to 
     combat terrorism, including homeland security measures. The 
     panel will prepare a preliminary report no later than July 1, 
     2004, with a final report by December 1, 2004 and every four 
     years thereafter.
     Title IV--Law Enforcement Powers of Inspector General Agents
       Sec. 401. Law Enforcement Powers of Inspector General 
     Agents. This section amends the Inspector General Act to 
     authorize certain IG officers to carry a firearm or make an 
     arrest in certain instances while engaged in official duties 
     as authorized by this Act or other statute, or by the 
     Attorney General; and to seek and execute warrants under the 
     authority of the United States upon probable cause that a 
     violation has been committed. This section also describes the 
     conditions under which the Attorney General may authorize 
     exercise of powers under this section, and it lists those 
     offices of Inspector General which are exempt from this 
     requirement. This section further describes the circumstances 
     under which the Attorney General may also rescind or suspend 
     powers authorized for an Office of Inspector General, and 
     provides that determinations by the Attorney General in this 
     section shall not be reviewable in or by any court. The 
     section also requires the Offices of Inspector General to 
     enter into memoranda of understanding to establish an 
     external review process for ensuring that adequate safeguards 
     and management procedures continue to exist within each 
     Office.
     Title V--Federal Emergency Procurement Flexibility
       Subtitle A--Temporary Flexibility for Certain Procurements
       Sec. 501. Defines the term ``executive agency.''
       Sec. 502. Procurements for Defense Against or Recovery from 
     Terrorism or Nuclear, Biological, Chemical, or Radiological 
     Attack. States that the authorities provided in this subtitle 
     apply to any procurement of property or services by or for an 
     executive agency that, as determined by the head of the 
     executive agency, are to be used to facilitate defense 
     against or recovery from terrorism or nuclear, biological, 
     chemical or radiological attack for one year after the date 
     of enactment.
       Sec. 503. Increased Simplified Acquisition Threshold for 
     Procurements in Support of Humanitarian or Peacekeeping 
     Operations or Contingency Operations. Raises the threshold 
     amounts to $250,000 for contracts carried out in the United 
     States and to $500,000 for contracts outside the United 
     States pursuant to section 502. Raises the Small Business 
     reserve to $250,000 for contracts inside the United States 
     and $500,000 for contracts outside the United States for 
     procurements carried out pursuant to section 502.
       Sec. 504. Increased Micro-Purchase Threshold for Certain 
     Procurements. Raises the micro-purchase threshold with 
     respect to procurements referred to in section 502 to 
     $10,000.
       Sec. 505. Application of Certain Commercial Items 
     Authorities to Certain Procurements. Applies commercial items 
     procedures to non-commercial items for emergency purposes. 
     Requires the Director of OMB to issue guidance and procedures 
     for use of simplified acquisition procedures for a purchase 
     of property or services in excess of $5,000,000. Provides 
     continuation of authority for simplified purchase procedures.
       Sec. 506. Use of Streamlined Procedures. Lists streamlined 
     acquisition procedures which may be used. The head of an 
     executive agency shall use, when appropriate, streamlined 
     acquisition authorities and procedures provided by law 
     including use of procedures other than competitive procedures 
     and task and delivery order contracts. This provision removes 
     the thresholds ($5 million for manufacturing and $3 million 
     for all other contracts) for contracts with limited 
     competition under the small business ``8(A)'' and HUB Zone 
     programs. Waiving the threshold means that small 
     disadvantaged businesses within the ``8(A)'' program and 
     qualified HUB Zone small business concerns can compete for 
     contracts using limited competition (or sole source 
     competition) regardless of the value of the contract.
       Sec. 507. Review and Report by Comptroller General. 
     Requires that not later than March 31, 2004, the Comptroller 
     General complete a review of the extent to which procurements 
     of property and services have been made in accordance with 
     this subtitle, and submit a report on the results of the 
     review to the Senate Governmental Affairs Committee and House 
     Government Reform Committee. The report shall assess the 
     extent to which property and services procured in accordance 
     with this subtitle have contributed to the capacity of 
     Federal employees to carry out the missions of the agencies, 
     and the extent to which Federal employees have been trained 
     on the use of technology. The report shall include any 
     recommendations of the Comptroller General resulting from the 
     assessment. The Comptroller General shall consult with the 
     Committee on Governmental Affairs and the Committee on 
     Governmental Reform on the specific issues and topics to be 
     reviewed, including areas such as technology integration, 
     employee training, and human capital management, and the data 
     requirements of the study.
       Subtitle B--Other Matters
       Sec. 511. Identification of New Entrants Into the Federal 
     Marketplace. Requires agencies to do ongoing market research 
     to identify new companies with new capabilities, including 
     small businesses, to help agencies facilitate defense against 
     or recovery from terrorism or nuclear, biological, chemical 
     or radiological attack.
     Title VI--Effective Date
       Sec. 601. Provides that the Division shall take effect 30 
     days after the date of enactment, or if enacted within 30 
     days before January 1, 2003, on January 1, 2003.


     Division B--Immigration Reform, Accountability, and Security 
                        Enhancement Act of 2002

       Sec. 1001. Short Title. This Division may be cited as the 
     ``Immigration Reform, Accountability, and Security 
     Enhancement Act of 2002.''
       Sec. 1002. Definitions. Defines key terms, including Under 
     Secretary, Enforcement Bureau, and Service Bureau.
     Title XI--Directorate of Immigration Affairs
       Subtitle A--Organization
       Sec. 1101. Abolition of INS. This section abolishes the 
     Immigration and Naturalization Service (``INS'').
       Sec. 1102. Establishment of Directorate of Immigration 
     Affairs. This section establishes a Directorate of 
     Immigration Affairs (``Directorate'') within the Department 
     of Homeland Security (``DHS''). The Directorate is divided 
     into three parts: the Under Secretary for Immigration 
     Affairs, the Assistant Secretary for Immigration Services 
     (the ``Service Bureau''), and the Assistant Secretary for 
     Enforcement and Border Affairs (the ``Enforcement Bureau''). 
     The functions of the Directorate are also tripartite: (1) 
     immigration policy, administration, and inspection functions; 
     (2) immigration service and adjudication functions; and (3) 
     immigration enforcement functions. This section also 
     authorizes funds to the DHS as necessary to carry out the 
     functions of the Directorate and defines what is meant by 
     U.S. immigration laws.
       Sec. 1103. Under Secretary of Homeland Security for 
     Immigration Affairs. This section establishes that the 
     Directorate will be headed by the Under Secretary of Homeland 
     Security for Immigration Affairs (``Under Secretary''). 
     Charged with all responsibilities and authority in the 
     administration of the Directorate, the Under Secretary is 
     responsible for: (1) administration and enforcement

[[Page S8176]]

     of U.S. immigration laws; (2) administration of the 
     Directorate, including supervision and coordination of the 
     two Bureaus; (3) inspection of individuals arriving at ports 
     of entry; (4) management of resources, personnel, and other 
     support; (5) management of information resources, including 
     maintenance and coordination of records, databases, and other 
     information within the Directorate; and (6) coordination of 
     response to civil rights violations. A General Counsel serves 
     as the chief legal officer for the Directorate. The General 
     Counsel's responsibilities include: providing specialized 
     legal advice, opinions, determinations, regulations, and any 
     other assistance to the Director with regard to legal matters 
     affecting the Directorate and its components. A Chief 
     Financial Officer (``CFO'') will direct, supervise, and 
     coordinate all budget formulas and execution for the 
     Directorate. A Chief of Policy and Strategy is created to 
     establish national immigration policy and priorities, perform 
     policy research and analysis on immigration issues under U.S. 
     immigration laws, and coordinate immigration policy between 
     the Directorate, the Service Bureau, and the Enforcement 
     Bureau. A Chief of Congressional, Intergovernmental, and 
     Public Affairs is established to provide Congress with 
     information relating to immigration issues, serve as a 
     liaison with other Federal agencies on immigration issues, 
     and respond to inquiries from, and provide information to the 
     media on immigration issues arising under U.S. immigration 
     laws.
       Sec. 1104. Bureau of Immigration Services. This section 
     establishes the Bureau of Immigration Services (``Service 
     Bureau''), headed by the Assistant Secretary of Homeland 
     Security for Immigration Services. The Assistant Secretary 
     shall be appointed by the Secretary of Homeland Security in 
     consultation with the Under Secretary and shall report 
     directly to the Under Secretary. The Assistant Secretary 
     shall administer the immigration service and adjudication 
     functions of the Directorate which include: (1) adjudication 
     of petitions for classification of non-immigrant and 
     immigrant status; (2) adjudication of applications for 
     adjustment of status and change of status; (3) adjudication 
     of naturalization applications; (4) adjudication of asylum 
     and refugee applications; (5) adjudications at Service 
     Centers; (6) determinations of custody and parole of asylum 
     seekers; and (7) all other adjudications under U.S. 
     immigration laws. A Chief Budget Officer, under the authority 
     of the CFO, shall be responsible for monitoring and 
     supervising all financial activities of the Service Bureau. 
     An Office of Quality Assurance is established to develop 
     procedures and conduct audits to ensure the Directorate's 
     policies with regard to services and adjudications are 
     properly implemented, and to ensure sound records management 
     and efficient and accurate service. An Office of Professional 
     Responsibility is established to ensure the professionalism 
     of the Service Bureau, and receive and investigate charges of 
     misconduct or ill treatment made by the public. The Assistant 
     Secretary for Immigration Services, in consultation with the 
     Under Secretary, shall determine the training of Service 
     Bureau personnel.
       Sec. 1105. Bureau of Enforcement and Border Affairs. This 
     section establishes the Bureau of Enforcement and Border 
     Affairs (``Enforcement Bureau''), headed by the Assistant 
     Secretary of Homeland Security for Enforcement and Border 
     Affairs. The Enforcement Bureau Assistant Secretary shall be 
     appointed by the Secretary for Homeland Security, in 
     consultation with the Under Secretary, and shall report 
     directly to the Under Secretary of the Directorate. The 
     Enforcement Bureau Assistant Secretary shall administer the 
     immigration enforcement functions of the Directorate which 
     include the following functions: (1) border patrol; (2) 
     detention; (3) removal; (4) intelligence; and (5) 
     investigations. A Chief Budget Officer, under the authority 
     of the CFO, shall be responsible for monitoring and 
     supervising all financial activities of the Enforcement 
     Bureau. An Office of Professional Responsibility shall ensure 
     the professionalism of the Enforcement Bureau, and receive 
     and investigate charges of misconduct or ill treatment 
     made by the public. An Office of Quality Assurance shall 
     develop procedures and conduct audits to ensure the 
     Directorate's policies with regard to enforcement are 
     correctly implemented; and that the Enforcement Bureau's 
     policies and practices result in sound records management 
     and efficient and accurate record-keeping. The Enforcement 
     Bureau Assistant Secretary, in consultation with the Under 
     Secretary, shall determine the training of Enforcement 
     Bureau personnel.
       Sec. 1106. Office of the Ombudsman within the Directorate. 
     This section establishes an Office of the Ombudsman within 
     the Directorate of Immigration Affairs. The Ombudsman shall 
     be appointed by the Secretary of Homeland Security and report 
     directly to the Secretary of Homeland Security. The Office of 
     Ombudsman will: (1) assist individuals in resolving problems 
     with the Directorate or any component thereof; (2) identify 
     systemic problems encountered by the public in dealings with 
     the Directorate or any component thereof; (3) propose changes 
     in the administrative practices or regulations of the 
     Directorate or any component thereof to mitigate these 
     problems; (4) identify potential legislative changes that may 
     be appropriate to mitigate such problems; and (5) monitor the 
     coverage and geographic distribution of local offices of the 
     Directorate. The Ombudsman shall have the responsibility and 
     authority to appoint local or regional representatives as may 
     be necessary to address and rectify problems. The Ombudsman 
     shall submit an annual report to the House and Senate 
     Judiciary Committees on the activities of the Ombudsman 
     during the fiscal year, providing a full analysis identifying 
     actions taken by the Ombudsman's Office, including 
     initiatives to improve the responsiveness of the Directorate; 
     a summary of serious or systemic problems encountered by the 
     public; an accounting of those items that have been 
     addressed, are being addressed, and have not been addressed 
     with reasons for and results of such action; recommendations 
     to resolve problems encountered by the public; 
     recommendations for action as may be appropriate to resolve 
     problems encountered by the public; recommendations to 
     resolve problems caused by inadequate funding or staffing; 
     and other information as the Ombudsman deems advisable. 
     Appropriations are authorized as necessary to carry out this 
     section.
       Sec. 1107. Office of Immigration Statistics within the 
     Directorate. This section establishes the Office of 
     Immigration Statistics within the Directorate, headed by a 
     Director who shall be appointed by the Secretary of Homeland 
     Security, in consultation with the Under Secretary. The 
     office shall collect, maintain, compile, analyze, publish, 
     and disseminate information and statistics involving the 
     functions of the Directorate and the Executive Office of 
     Immigration Review (EOIR) (or successor entity). The Director 
     shall be responsible for: (1) maintaining immigration 
     statistical information of the Directorate ; and (2) 
     establishing standards of reliability and validity for 
     immigration statistics collected by the Service Bureau, the 
     Enforcement Bureau, and the EOIR. The Directorate and the 
     EOIR shall provide statistical information from their 
     respective operational data systems to the Office of 
     Immigration Statistics. The Director, under the direction of 
     the Under Secretary shall ensure the interoperability of the 
     databases of the Directorate, the Service Bureau, the 
     Enforcement Bureau, and the EOIR to permit the Director of 
     the Office to perform the duties of the office. The functions 
     performed by the Statistics Branch of the INS Office of 
     Policy and Planning are transferred to the Office of 
     Immigration Statistics.
       Sec. 1108. Clerical amendments. This section includes 
     clerical amendments.
       Subtitle B--Transition Provisions
       Sec. 1111. Transfer of Functions. All functions under U.S. 
     immigration laws vested by statute in, or exercised by, the 
     Attorney General are transferred to the Secretary of Homeland 
     Security. The functions of the Commissioner of the INS are 
     transferred to the Directorate. The Under Secretary may, for 
     purposes of performing any function transferred to the 
     Directorate, exercise all authorities under any other 
     provision of law that were available with respect to the 
     performance of the function.
       Sec. 1112. Transfer of Personnel and other Resources. There 
     are transferred to the Under Secretary for appropriate 
     allocation: (1) the personnel of the DOJ employed in 
     connection with the functions transferred pursuant to this 
     title; and (2) the assets, liabilities, contracts, property, 
     records, and unexpended balance of appropriations, 
     authorizations, allocations, and other funds employed, held, 
     used, arising from, available to, or to be made available to 
     the INS in connection with the functions transferred pursuant 
     to this title.
       Sec. 1113. Determinations with Respect to Functions and 
     Resources. The Under Secretary shall determine: (1) which of 
     the functions transferred under section 111 are immigration 
     policy, administration and inspection functions; immigration 
     service and adjudication functions; and immigration 
     enforcement functions; and (2) which of the personnel, 
     assets, liabilities, grants, contracts, property, records, 
     and unexpended balances of appropriations, authorizations, 
     allocations, and other funds were held or used, arose from, 
     were available to, or were made available, in connection with 
     the performance of the respective functions immediately prior 
     to the title's effective date.
       Sec. 1114. Delegation and Reservation of Functions. The 
     Under Secretary shall delegate immigration service and 
     adjudication functions to the Assistant Secretary for 
     Immigration Services, and immigration enforcement functions 
     to the Assistant Secretary for Enforcement and Border 
     Affairs. Immigration policy, administration and inspection 
     functions are reserved for the Under Secretary. Some 
     delegations may be made on a nonexclusive basis. The Under 
     Secretary may make delegations to such officers and employees 
     of the office of the Under Secretary, the Service Bureau, and 
     the Enforcement Bureau, respectively, as the Director may 
     designate, and may authorize successive re-delegations of 
     such functions as may be necessary or appropriate.
       Sec. 1115. Allocation of Personnel and other Resources. The 
     Under Secretary shall make allocations of personnel, assets, 
     liabilities, grants, contracts, property, records, and 
     unexpended balances of appropriations, authorizations, 
     allocations, and other funds held, used, arising from, 
     available to, or to be made available in connection with such 
     functions. Unexpended funds transferred by section 112 shall 
     be used only for allocated purposes. The Attorney General, 
     in consultation with the Secretary of Homeland Security, 
     shall provide for the termination of affairs of the INS. 
     The Under Secretary is authorized to provide for an 
     appropriate allocation, or coordination, or both, of 
     resources

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     involved in supporting shared support functions for the 
     office of the Under Secretary, the Service Bureau, the 
     Enforcement Bureau. The Under Secretary shall maintain 
     control and oversight over shared computer databases and 
     systems and records management.
       Sec. 1116. Savings Provisions. All orders, determinations, 
     rules, regulations, permits, grants, loans, contracts, 
     recognition of labor organizations, agreements, including 
     collective bargaining agreements, certificates, licenses, 
     privileges, any proceedings or any application for any 
     benefit, service, as well as the continuance of lawsuits and 
     other matters are transferred to the new entities and shall 
     continue until modified or terminated.
       Sec. 1117. Interim service of the Commissioner of 
     Immigration and Naturalization. The INS Commissioner serving 
     on the day before the effective date of this title may serve 
     as the Under Secretary until one is appointed.
       Sec. 1118. Executive Office for Immigration Review 
     Authorities not Affected. Nothing in the legislation may be 
     construed to authorize or require the transfer or delegation 
     of any function vested in, or exercised by the EOIR (or its 
     successor entity) or any officer, employee, or component 
     thereof immediately prior to the effective date of this 
     title.
       Sec. 1119. Other Authorities not Affected. Nothing in this 
     legislation may be construed to authorize or require the 
     transfer or delegation of any function vested in, or 
     exercised by the Secretary of State, the Secretary of Labor 
     or their special agents, or under the U.S. immigration laws.
       Sec. 1120. Transition Funding. Funds are authorized to the 
     Department of Homeland Security as necessary to abolish the 
     INS, establish the Directorate and its components, transfer 
     the functions required under this Act, and carry out any 
     other duty made necessary by this division. These funds will 
     be deposited into a separate account established in the 
     general fund of the U.S. Treasury. Not later than 90 days 
     after the date of enactment of this Act, and at the end of 
     each fiscal year in which appropriations are made, the 
     Secretary of Homeland Security shall submit a report to 
     Congress concerning the availability of funds to cover 
     transition costs.
       Subtitle C--Miscellaneous Provisions
       Sec. 1121. Funding Adjudication and Naturalization 
     Services. This section requires that all fees collected for 
     the provision of adjudication or naturalization services be 
     used only to fund adjudication or naturalization services, or 
     subject to the availability of funds, similar services 
     provided without charge to asylum and refugee applicants. In 
     addition to funds already appropriated for this purpose, 
     funds are authorized as necessary to carry out sections of 
     the Immigration and Nationality Act dealing with asylum and 
     refugee processing. Separate accounts are established in the 
     U.S. Treasury for appropriated funds and other deposits 
     available to the Service Bureau and the Enforcement Bureau. 
     Fees may not be transferred between these accounts. Funds are 
     also authorized as necessary to carry out the Immigration 
     Services and Infrastructure Improvement Act of 2000 (Title II 
     of P.L. 106-313).
       Sec. 1122. Application of Internet-based Technologies. Not 
     later than two year after enactment, the Secretary, in 
     consultation with the Under Secretary and the Technology 
     Advisory Committee, shall establish an Internet-based system 
     that will allow an immigrant, non-immigrant, employer, or 
     other person who files any application, petition, or other 
     request for benefit under the U.S. immigration laws with the 
     Directorate to access case status information on-line. In 
     establishing the database, the Under Secretary shall consider 
     all applicable privacy issues and no personally identifying 
     information shall be accessible to unauthorized persons. Fees 
     will not be charged to anyone using the database to access 
     information about him/herself. The Under Secretary, in 
     consultation with the Technology Advisory Committee is 
     required to conduct a study on the feasibility of an on-line 
     filing system and report to the House and Senate Judiciary 
     Committee on the results within one year of enactment. To 
     assist in carrying out this section, the Under Secretary is 
     required to establish a Technology Advisory Committee.
       Sec. 1123. Alternatives to Detention of Asylum Seekers. 
     This section authorizes the Under Secretary to assign asylum 
     officers to major ports of entry to assist in the inspection 
     of asylum seekers. For other ports, the under Secretary shall 
     take steps to ensure that asylum officers are able to 
     participate in the inspection process. This section also 
     promote alternatives to detention of asylum seekers who do 
     not have prior nonpolitical criminal records and establish 
     conditions for detention of asylum seekers that ensure a safe 
     and humane environment. The Under Secretary is required to 
     consider the following specific alternatives to detention: 
     parole; parole with appearance assistance provided by private 
     nonprofit voluntary agencies; non-secure shelter care or 
     group homes operated by private nonprofit voluntary agencies; 
     and noninstitutional settings for minors, such as foster care 
     or group homes operated by private nonprofit voluntary 
     agencies.
       Subtitle D--Effective Date
       Sec. 1131. Effective Date. This title shall take effect one 
     year after the effective date of division A of this Act.
     Title XII--Unaccompanied Alien Children Protection
       Sec. 1201. Short Title. This title may be cited as ``The 
     Unaccompanied Alien Child Protection Act of 2002.''
       Sec. 1202. Definitions. Key terms, including unaccompanied 
     alien child, are defined.
       Subtitle A--Structural Changes
       Sec. 1211. Responsibilities of the Office of Refugee 
     Resettlement with Respect to Unaccompanied Alien Children. 
     The Office of Refugee Resettlement (``Office'') shall be 
     responsible for coordinating and implementing the care and 
     placement of unaccompanied alien children who are in Federal 
     custody by reason of their immigration status and ensuring 
     minimum standards of detention for all unaccompanied alien 
     children. The Director of the Office (``Director'') shall be 
     responsible for: (1) ensuring that the best interests of the 
     child are considered in the care and placement of 
     unaccompanied alien children; (2) making placement, release, 
     and detention determinations; (3) implementing 
     determinations; (4) convening the Interagency Task Force on 
     Unaccompanied Alien Children (in the absence of the Assistant 
     Secretary); (5) identifying a sufficient number of qualified 
     persons, entities, and facilities to house unaccompanied 
     alien children; (6) overseeing persons, entities and 
     facilities; (7) compiling and publishing at least annually a 
     State-by-State list of professionals or other entities 
     qualified to contract with the Office to provide services; 
     (8) maintaining statistical information and other data on 
     unaccompanied alien children in the Office's custody and 
     care; (9) collecting and compiling statistical information 
     from the INS (or successor entity); and 10) conducting 
     investigations and inspections of facilities and other 
     entities where unaccompanied alien children reside. The 
     Director is also encouraged to utilize the refugee children 
     foster care system. The Director shall have the power to 
     contract with service providers and compel compliance with 
     the terms and conditions of section 1323. Nothing in this 
     title may be construed to transfer the responsibility for 
     adjudicating benefit determinations under the Immigration and 
     National Act from the authority of any official of the 
     Service (or its successor entity), the EOIR (or its successor 
     entity) or the Department of State.
       Sec. 1212. Establishment of Interagency Task Force on 
     Unaccompanied Alien Children. An Interagency Task Force on 
     Unaccompanied Alien Children is established consisting of 
     various key agencies and departments of the federal 
     government.
       Sec. 1213. Transition Provisions. All functions with 
     respect to the care and custody of unaccompanied alien 
     children under the immigration laws, vested in, or exercised 
     by, the Commissioner or his employees is transferred to the 
     Office.
       Sec. 1214. Effective Date. This subtitle shall take effect 
     one year after the effective date of division A of this Act.
       Subtitle B--Custody, Release, Family Reunification, and 
           Detention
       Sec. 1221. Procedures when Encountering Unaccompanied Alien 
     Children. This section establishes procedures to be followed 
     when encountering unaccompanied alien children. At the 
     border, or at ports of entry, an unaccompanied alien child 
     may be removed from the United States if deemed inadmissible 
     under the Immigration and Nationality Act, unless the child 
     is a national of a country contiguous to the U.S. and who 
     fears persecution or would be harmed if returned to that 
     country. Custody of all unaccompanied alien children found in 
     the interior of the United States shall be under the 
     jurisdiction of the Office, with exceptions of children who 
     have committed crimes and or threaten national security. An 
     unaccompanied alien child shall be transferred to the Office 
     within 72 hours of apprehension.
       Sec. 1222. Family Reunification for Unaccompanied Alien 
     Children with Relatives in the United States. Unaccompanied 
     alien children in the custody of the Office shall be promptly 
     placed with one of the following in order of preference: (1) 
     a parent; (2) a legal guardian; (3) an adult relative; (4) an 
     entity designated by the parent or legal guardian; (5) a 
     state-licensed juvenile shelter or group home; or (6) other 
     qualified adults or entities.
       Sec. 1223. Appropriate Conditions for Detention of 
     Unaccompanied Alien Children. Unaccompanied children shall 
     not be placed in adult detention facilities, but children who 
     exhibit violent or criminal behavior can be detained in 
     appropriate facilities for delinquent children. The Office 
     shall establish appropriate standards and conditions for the 
     detention of unaccompanied alien children, providing 
     appropriate educational services, medical care, mental health 
     care, access to telephones, access to legal services, access 
     to interpreters, supervision by professionals trained in the 
     care of children, recreational programs and activities, 
     spiritual and religious needs, and dietary needs. The 
     Director and the Secretary of Homeland Security shall develop 
     procedures which prohibit shackling, handcuffing, or other 
     restraints; solitary confinement; or pat or strip searches.
       Sec. 1224. Repatriated Unaccompanied Alien Children. 
     Consistent with international agreements to which the United 
     States is a party and to the extent practicable, the United 
     States shall undertake efforts to ensure that it does not 
     repatriate children in its custody into settings that

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     would threaten the life and safety of the child. The Director 
     shall submit a report to Congress providing information on 
     efforts to repatriate unaccompanied children.
       Sec. 1225. Establishing the Age of an Unaccompanied Alien 
     Child. To address problems created by reliance on inaccurate 
     methods for establishing the age of a child, the Director 
     shall establish procedures for determining age.
       Sec. 1226. Effective Date. This subtitle shall take effect 
     one year after the effective date of division A of this Act.
       Subtitle C--Access by Unaccompanied Alien Children to 
           Guardians Ad Litem and Counsel
       Sec. 1231. Right of unaccompanied alien children to 
     guardians ad litem. No later than 72 hours after the Office 
     assumes custody of an unaccompanied alien child, the Director 
     shall appoint a guardian ad litem to look after the child's 
     best interests. The qualifications, duties, and powers of the 
     guardian ad litem are set forth.
       Sec. 1232. Right of unaccompanied alien children to 
     counsel. The Director shall ensure that all unaccompanied 
     alien children have competent counsel appointed to represent 
     them in immigration proceedings. Where possible, the Director 
     shall utilize pro bono attorneys. Otherwise, the Director 
     shall appoint government-funded counsel. Requirements for 
     representation are set forth, including duties and access 
     to children.
       Sec. 1233. Effective date; applicability. This subtitle 
     shall take effect one year after the effective date of 
     division A of this Act and shall apply to all unaccompanied 
     alien children in Federal custody on, before, or after the 
     effective date of this subtitle.
       Subtitle D--Strengthening Policies for Permanent Protection 
           of Alien Children
       Sec. 1241. Special Immigrant Juvenile Visa. This section 
     strengthens the Special Immigrant Juvenile Visa to make it a 
     useful and flexible means of providing permanent protection 
     to a small number of abused, neglected and abandoned youths.
       Sec. 1242. Training for officials and certain private 
     parties who come into contact with unaccompanied alien 
     children. This section provides training to officials 
     involved in dependency proceedings, social service providers, 
     as well INS personnel who come into contact with 
     unaccompanied alien children. The Secretary of Homeland 
     Security, acting jointly with the Secretary of Health and 
     Human Services, shall provide specialized training to all 
     personnel of the Service who come into contact with 
     unaccompanied alien children.
       Sec. 1243. Effective Date. The amendments of section 1341 
     shall apply to all unaccompanied alien children in Federal 
     custody on, before, or after the effective date of this Act.
       Subtitle E--Children Refugee and Asylum Seekers
       Sec. 1251. Guidelines for children's asylum claims. The 
     section expresses the sense of Congress commending the INS 
     for the issuance of its Guidelines for Children's Asylum 
     Claims and requires the Secretary of Homeland Security to 
     provide training to asylum officers, immigration judges, 
     members of the Board of Immigration Appeals and immigration 
     officers on these guidelines.
       Sec. 1252. Unaccompanied Refugee Children. This section 
     requires an analysis of the situation faced by unaccompanied 
     refugee children around the world and requires training on 
     the needs of these refugee children.
       Subtitle F--Authorization of Appropriations
       Sec. 1261. Authorization of Appropriations. This section 
     authorizes such sums as may be necessary to carry out the 
     provisions of this title.
     Title XIII--Agency for Immigration Hearings and Appeals
       Subtitle A--Structure and Function
       Sec. 1301. Establishment. This section abolishes the 
     Executive Office for Immigration Review (EOIR) and creates 
     the Agency for Immigration Hearings and Appeals (AIHA).
       Sec. 1302. Director of the Agency. This section provides 
     that the agency shall have a Director, who shall be appointed 
     by the President and confirmed by the Senate. The Director 
     runs the agency, appoints the Chair and members of the 
     appellate body (Board of Immigration Appeals) and the Chief 
     Immigration Judge. Also provides that the agency shall have a 
     Deputy Director, General Counsel, Pro Bono Coordinator, and 
     other offices as deemed necessary.
       Sec. 1303. Board of Immigration Appeals. This section 
     establishes the Board of Immigration Appeals to perform the 
     appellate functions of the agency, and shall consist of a 
     Chair and at least 14 Board Members (who are appointed by the 
     Director in consultation with the Chair). Provides that the 
     Chair and Board Members must be an attorney in good standing 
     and have a minimum of 7 years professional legal expertise in 
     immigration and nationality law. Also provides that the Board 
     retains the jurisdiction it holds under EOIR and Board 
     Members are compelled to exercise their independent judgment.
       Sec. 1304. Chief Immigration Judge. This section 
     establishes the Office of the Chief Immigration Judge to 
     administer the immigration courts, headed by a Chief 
     Immigration Judge. Provides that the Chief Immigration Judge 
     and each immigration judge must be an attorney in good 
     standing and have a minimum of 7 years professional legal 
     expertise in immigration and nationality law. Also provides 
     that the immigration courts retain the jurisdiction they hold 
     under EOIR and immigration judges are compelled to exercise 
     their independent judgment.
       Sec. 1305. Chief Administrative Hearing Officer. This 
     section establishes the position of Chief Administrative 
     Hearing Officer to hear cases involving unfair immigration-
     related employment practices and penalties for document 
     fraud.
       Sec. 1306. Removal of Judges. This section provides that 
     the Director, in consultation with the appropriate component 
     head, may remove Board Members or immigration judges for good 
     cause, which shall include neglect of duty and malfeasance.
       Sec. 1307. Authorization of Appropriations. This section 
     authorizes the appropriation of funds necessary to execute 
     this title. [Note: Since these entities already exist, the 
     execution of this title should be budget neutral.]
       Subtitle B--Transfer of Functions and Savings Provisions
       Sec. 1311. Transition Provisions. This section provides for 
     the transfer of functions from EOIR to the new agency.
       Subtitle C--Effective Date
       Sec. 1321. Effective Date. This section provides that this 
     title takes effect one year after the effective date of 
     division A of this Act.


               Division C--Federal Workforce Improvement

     Title XXI--Chief Human Capital Officers
       Sec. 2101. Short Title. This title may be cited as the 
     ``Chief Human Capital Officers Act of 2002.''
       Sec. 2102. Agency Chief Human Capital Officers. Creates a 
     chief human capital officer in major agencies (i.e., agencies 
     that are required, under the Chief Financial Officers Act of 
     1990, to have Chief Financial Officers), who will advise and 
     assist in carrying out the responsibilities of selecting, 
     developing, and managing a high-quality workforce.
       Sec. 2103. Chief Human Capital Officers Council. Creates a 
     Chief Human Capital Officers Council that will advise and 
     coordinate the human capital functions of each agency and 
     meet with union representatives at least annually.
       Sec. 2104. Strategic Human Capital Management. Requires the 
     Office of Personnel Management to design a set of systems, 
     including metrics, for assessing human capital management by 
     agencies.
       Sec. 2105. Effective Date. Title XXI is effective 180 days 
     after enactment.
     Title XXII--Reforms Relating to Human Capital Management
       Sec. 2201. Inclusion of Agency Human Capital Strategic 
     Planning in Performance Plans and Program Performance 
     Reports. Amends the Government Performance and Results Act of 
     1993 to specify how human capital management is to be 
     included in performance plans.
       Sec. 2202. Reform of the Competitive Service Hiring 
     Process. Allows agencies to use alternative method for 
     selecting new employees instead of the traditional ``rule of 
     3.'' The agency may divide applicants into two or more 
     quality categories, with disabled veterans moving to the top 
     of the highest category. Also, allows for direct appointment 
     of candidates to positions that have been noticed, when OPM 
     determines there is a severe shortage of candidates and a 
     critical hiring need.
       Sec. 2203. Permanent Extension, Revision, and Expansion of 
     Authorities for Use Of Voluntary Separation Incentive Pay and 
     Voluntary Early Retirement. Provides government-wide 
     authority for offering Voluntary Separation Incentive 
     Payments and Voluntary Early Retirement, and states that it 
     is the sense of Congress that these provisions are not 
     intended to downsize the federal workforce.
       Sec. 2204. Student Volunteer Transit Subsidy. Provides a 
     transit subsidy for student volunteers with the federal 
     government.
     Title XXIII--Reforms Relating to the Senior Executive Service
       Sec. 2301. Repeal of Recertification Requirements of Senior 
     Executives. Repeals recertification requirements for senior 
     executives.
       Sec. 2302. Adjustment of Limitation on Total Annual 
     Compensation. Increases the cap on the total annual 
     compensation of senior executives, Administrative Law Judges, 
     officers of the courts, and certain other highly paid 
     officers, thereby enabling performance bonuses to be paid 
     within the cap in a single year.
     Title XXIV--Academic Training
       Sec. 2401. Academic Training. Reduces restrictions on 
     providing academic degree training to federal employees.
       Sec. 2402. Modifications to National Security Education 
     Program. Modifies the National Security Education Program 
     (NSEP) to allow NSEP fellows to work in a non-national 
     security position with the federal government if a national 
     security position is not available.
       Sec. 2403. Compensatory Time off for Travel. Grants to 
     federal employees compensatory time off for time spent in 
     travel status away from duty station to the extent not 
     otherwise compensable.
                                  ____

                                                  August 28, 2002.
     Hon. Joseph I. Lieberman,
     Hon. Fred Thompson,
     Senate Committee on Governmental Affairs, U.S. Senate, 
         Washington, DC.
       Dear Chairman Lieberman and Ranking Member Thompson: We 
     commend your leadership and dedication to the creation of a

[[Page S8179]]

     new Department of Homeland Security. We thank you for the 
     opportunity to contribute to this historic legislation.
       As division B of your legislation currently includes 
     immigration provisions drawn in large part from legislation 
     that we introduced earlier this year--S. 2444, the 
     Immigration Reform, Accountability, and Security Enhancement 
     Act of 2002, we here provide you with an explanation of the 
     intent behind this language.
       Purpose and Summary. For years, the Immigration and 
     Naturalization Service (INS) has been plagued by myriad 
     problems, including mission-overload, mismanagement, and 
     insufficient resources. For too long, INS has been unable to 
     meet its dual responsibility of enforcing our immigration and 
     nationality laws and providing services to newcomers, 
     refugees, and aspiring citizens.
       A critical component of homeland security is an agency that 
     effectively polices our borders, enforces our laws, and 
     provides timely immigration services. To responsibly create 
     an Office of Homeland Security, we must address the 
     inadequacies of the INS.
       Accordingly, Division B abolishes the INS and replaces it 
     with a Directorate of Immigration Affairs (Directorate) 
     placed squarely within the Department of Homeland Security.
       Legislative History. The Judiciary Committee has earnestly 
     debated how best to reform the INS. Since 1998, the Judiciary 
     Committee has held five hearings on this topic, and Senate 
     bills to reform INS have been introduced in each of the last 
     three Congresses. In each hearing, governmental and private 
     sector experts critiqued the workings of INS and offered 
     substantive, insightful recommendations on how to revamp that 
     agency. From those hearings, certain principles have emerged: 
     the need for a separation of functions, the need for greater 
     coordination between functions, and the need for a strong, 
     central authority to ensure consistent policy and 
     implementation.
       In the 106th Congress, Senator Abraham and Senator Kennedy, 
     chair and ranking member of the Immigration Subcommittee, 
     introduced S. 1563, the ``INS Reform and Border Security Act 
     of 1999,'' a bipartisan attempt to split enforcement and 
     services into separate bureaus and to elevate the profile of 
     the immigration agency within the Department of Justice. This 
     legislation served as the basis for legislation in the 107th 
     Congress: S. 2444, the ``Immigration Reform, Accountability, 
     and Security Enhancement Act of 2002,'' another bipartisan 
     bill, introduced by Senator Kennedy and Senator Brownback, 
     chair and ranking member of the current immigration 
     subcommittee. S. 2444, like its predecessor, splits 
     enforcement and services into separate bureaus and seeks to 
     elevate the profile of immigration in the Department of 
     Justice. Cosponsors of S. 2444 include Senators Hatch, 
     Feinstein, DeWine, Durbin, Helms, Edwards, Hagel, Daschle, 
     Dodd, Graham, and Clinton.
       Need for INS Reform. Experts both inside and outside 
     government have reached the same conclusions regarding the 
     most critical problems with the INS. In a report from the 
     early 1990s, the General Accounting Office observed that the 
     INS' problems stem from a lack of clearly defined goals and 
     priorities, inconsistent leadership and weak management 
     systems, and overlapping and inconsistent programs. In the 
     years since, these observations have been echoed in witness 
     testimony, academic publications, and reports issued by 
     various commissions. The criticisms of INS have remained 
     consistent over the past decade.
       With the criticisms have come various recommendations on 
     how to rehabilitate the agency. Three guiding principles can 
     be distilled from those recommendations:
       Separation of functions. Immigration law and policy can 
     roughly be divided into two components--enforcement and 
     services. Currently, the enforcement and service functions 
     are commingled in a way that creates conflicting priorities 
     and troubling inefficiencies. There must be a clearer 
     separation of the enforcement and services functions to 
     achieve great clarity of mission and thereby greater 
     efficiency in the respective functions.
       Coordination. At the same time, the two functions cannot 
     exist independent of each other. Almost every immigration-
     related action involves both an adjudicatory and enforcement 
     component. Law enforcers must be cognizant of immigration 
     benefits and relief; adjudicators must be mindful of 
     immigration fraud and transgressions. Accordingly, effective 
     coordination between the two functions must exist for either 
     function to work well.
       Strong, Central Authority. Given the dynamic of having 
     separate but coordinated functions, it is essential to 
     establish a strong, central authority to ensure uniform 
     immigration policy, efficient interaction between components, 
     and fiscal responsibility. There must be a focal point for 
     managerial accountability for all immigration-related 
     actions, as well as a central decision-maker to guarantee 
     that all aspects of immigration policy and implementation get 
     appropriate attention.
       Division B satisfies all three of these principles. First, 
     it abolishes INS and creates a Directorate of Immigration 
     Affairs (Directorate) within the new Department of Homeland 
     Security. The Directorate consists of three offices: the 
     Office of the Under Secretary of Immigration Affairs, the 
     Bureau of Enforcement and Border Affairs, and the Bureau 
     of Services.
       Under Secretary of Immigration Affairs. The Directorate is 
     headed by an Under Secretary of Immigration Affairs (Under 
     Secretary). Under the authority of the Secretary of Homeland 
     Security, the Under Secretary is responsible for 
     administering the Directorate, including the direction, 
     supervision, and coordination of both bureaus.
       The Under Secretary develops and implements U.S. 
     immigration policy and ensures that immigration policy is 
     coordinated and applied consistently through: (1) 
     administration and enforcement of U.S. immigration laws; (2) 
     administration of the Directorate; (3) inspection of 
     individuals arriving at ports of entry; (4) management of 
     resources, personnel, and other support; and (5) management 
     of information resources, including maintenance and 
     coordination of records, databases and other information 
     within the Directorate.
       Reporting to the Under Secretary is a General Counsel who 
     serves as chief legal officer for the Directorate. A Chief 
     Financial Officer is responsible for directing, supervising, 
     and coordinating the Directorate's budget. Also in the Office 
     of the Under Secretary is a Chief of Policy and Strategy, and 
     a Chief of Congressional, Intergovernmental, and Public 
     Affairs.
       Bureau of Immigration Services. The Bureau of Immigration 
     Services, headed by its Assistant Secretary, administers the 
     service functions of the Directorate, including: (1) visa 
     petitions; (2) applications for adjustment of status and 
     change of status; (3) naturalization applications; (4) asylum 
     and refugee applications; (5) determinations regarding the 
     custody and parole of asylum seekers; and (6) Service Center 
     adjudications.
       Bureau of Enforcement and Border Affairs. The Bureau of 
     Enforcement and Border Affairs, headed by its Assistant 
     Secretary, administers the immigration enforcement functions 
     of the Directorate, including: (1) border patrol; (2) 
     detention; (3) removal; (4) intelligence; and (5) 
     investigations.
       Offices Within Each Bureau. Each bureau has its own Chief 
     Budget Officer (under the direction of the Directorate's 
     Chief Financial Officer). Each bureau also has an Office of 
     Quality Assurance (which develops procedures and conducts 
     audits to ensure that the Director's policies are properly 
     implemented) and an Office of Professional Responsibility 
     (which ensures professional conduct by bureau personnel).
       Office of the Ombudsman. Reporting to the Under Secretary, 
     is the Office of the Ombudsman, which assists the public in 
     resolving individual cases, identifying systemic problems 
     encountered by the public, and proposing solutions to those 
     problems. The Office of the Ombudsman will report to Congress 
     annually.
       Office of Immigration Statistics. The Directorate also 
     contains an Office of Immigration Statistics, which is 
     responsible for collecting and analyzing statistical 
     information for both the Directorate and the immigration 
     court system.
       Raised Profile of Immigration. After September 11th, it is 
     clear that strengthening our immigration system is an 
     indispensable part of the nation's efforts to prevent future 
     terrorist attacks. Remedying INS' administrative woes is 
     critical, but will do little to improve our security if the 
     agency that administers our immigration laws and policies is 
     not given the priority and attention it deserves.
       Immigration law and policy is extremely complex and 
     dynamic. Immigration officers are charged with a wide variety 
     of duties. INS guards the borders, admitting more than 500 
     million citizens, permanent residents, and lawful visitors, 
     students, and temporary workers each year. INS also 
     adjudicates hundreds of thousands of applications for 
     citizenship, permanent residence, changes of status, and work 
     authorization annually. Further, INS is responsible for 
     apprehending unlawful entrants, investigating fraud, 
     enforcing employment sanctions, and removing criminal aliens. 
     At the same time, INS entertains family-based and employment-
     based visa petitions, while also hearing asylum in the United 
     States and refugee claims around the world.
       Given the array of responsibilities and the sheer volume of 
     people involved, immigration functions merit special 
     attention. The immigration functions must not be diluted in 
     with a host of other border functions. They deserve a 
     separate directorate wherein the various missions of INS, 
     which standing alone are diverse enough, can be properly 
     attended. Elevation of the INS within its own directorate 
     also achieves the necessary balance between enhancing our 
     security, securing our borders, and ensuring the effective, 
     efficient, and fair implementation of our immigration laws.
       Need to Keep Enforcement and Services Together. Almost 
     every immigration-related action involves both enforcement 
     and service components. Coordination of these key functions 
     is critical to ensure consistent interpretation and 
     implementation of the law, clarity of mission, and in turn, 
     more efficient adjudications and more effective enforcement. 
     Coordination of immigration functions cannot be achieved 
     merely by creating a shared database or some commonality of 
     management far up the administrative ladder. Moreover, 
     coordination is certainly impossible when enforcement and 
     services are housed in different departments. Inconsistent 
     policies and interpretations of the law, the lack of a common 
     culture, and--most importantly--the absence of a single, 
     integrated authority who can resolve differences result in a 
     disjointed immigration

[[Page S8180]]

     policy and undermines the efficacy of both enforcement and 
     services.
       September 11th brought to light serious problems with 
     immigration enforcement, but there are equally serious 
     problems with immigration services. If services are divorced 
     from enforcement, particularly in a department dedicated to 
     security, services will continue to struggle and will 
     inevitably, and understandably, be devalued and assigned 
     lesser priority. To ensure that services are not `left 
     behind' in a security culture, it is essential that they be 
     recognized as the other half of the immigration equation.
       Coordination with Other Border Functions. Coordinating the 
     border security functions within the Department of Homeland 
     Security is critical, whatever the agency's configuration. 
     That coordination is achieved by creating a Border 
     Coordination Working Group, composed of the Secretary, the 
     Under Secretary for Border and Transportation Security, and 
     the Under Secretary for Immigration Affairs. The Working 
     Group is responsible for coordinating functions necessary to 
     secure the borders, territorial waters, ports, terminal, 
     waterways, and air, land, and sea transportation systems of 
     the United States.
       The responsibilities of this office include:
       Coordinating budget requests and allocation of 
     appropriations, staffing requirements, communication, use of 
     equipment, transportation, facilities and other 
     infrastructure;
       Developing and implementing policies and technologies to 
     ensure the speedy, orderly, and efficient flow of lawful 
     traffic, travel, and commerce and enhanced scrutiny for high 
     risk travelers and cargo;
       Monitoring, evaluating, and making improvements in the 
     coverage and geographic distribution of border security 
     programs and personnel;
       Coordinating joint and cross-training programs for 
     personnel performing border security functions; and
       Identifying systemic problems in coordination encountered 
     by border security agencies and programs and proposing 
     administrative, regulatory, or statutory changes to mitigate 
     such problems.
       The Working Group also consults with representatives of 
     other agencies or departments to enhance coordination and 
     cooperation, curtail overlapping and duplicative functions, 
     and reduce interagency rivalries. At the same time, experts 
     in each of these agencies retain their authority and ability 
     to perform their jobs at this critical time.
       Treatment of Unaccompanied Minors. Unaccompanied minors 
     deserve special treatment under our immigration laws and 
     policies. Many of these children have been abandoned, are 
     fleeing persecution, or are escaping abusive situations at 
     home. These children are either sent here by adults or forced 
     by their circumstances, and the decision to come to our 
     country is seldom their own.
       Currently, INS has responsibility for the care and custody 
     of these children. It would not be appropriate to transfer 
     this responsibility to a Department of Homeland Security.
       Office of Refugee Resettlement. This legislation transfers 
     responsibility for the care and custody of unaccompanied 
     alien children who are in Federal custody (by reason of their 
     immigration status) from INS to the Office of Refugee 
     Resettlement (ORR) in the Department of Health and Human 
     Services (HHS). ORR has decades of experience working with 
     foreign-born children, and ORR administers a specialized 
     resettlement program for unaccompanied refugee children.
       HHS coordinates comprehensive services to address the 
     special needs of newcomer children, including placement in 
     foster or group home settings, medical and mental health 
     care, skills training, education, family tracing, and legal 
     assistance. Such services are tailored to address the 
     cultural, linguistic, legal, and developmental needs of 
     newcomer children and the individual needs of the child. ORR 
     can easily integrate the care of unaccompanied alien children 
     into its existing functions.
       Responsibilities. Minimum standards for the care and 
     custody are set forth in the legislation, as are ensuring 
     that unaccompanied children are housed in appropriate 
     shelters or with foster families who are able to care for 
     them.
       Specifically, ORR will be responsible for: (1) ensuring 
     that the best interests of the child are considered in the 
     care and placement of unaccompanied alien children; (2) 
     making placement, release, and detention determinations; (3) 
     implementing determinations; (4) convening the Interagency 
     Task Force on Unaccompanied Alien Children; (5) identifying 
     qualified persons, entities, and facilities to house 
     unaccompanied alien children; (6) overseeing persons, 
     entities and facilities; (7) compiling and publishing a 
     State-by-State list of professionals or other entities 
     qualified to contract with the Office to provide services; 
     (8) maintaining statistical information and other data on 
     unaccompanied alien children in the Office's custody and 
     care; (9) collecting and compiling statistical information 
     from the INS (or successor entity); and (10) conducting 
     investigations and inspections of facilities and other 
     entities where unaccompanied alien children reside. The 
     legislation also provides children with access to appointed 
     counsel and guardians ad litem.
       Responsibility for adjudicating immigration benefits will 
     not transfer over to HHS but will remain with the INS (or its 
     successor) and the immigration court system.
       Immigration Court System. The current immigration court 
     system--the Executive Office for Immigration Review (EOIR), 
     which contains the immigration courts and the Board of 
     Immigration Appeals--is a component of the Department of 
     Justice. The immigration court system exists not in statute, 
     but only in regulation.
       The evolution of the immigration courts reflects the 
     importance of impartiality. Originally, the court system was 
     entirely contained within the INS. In response to criticisms 
     that judge and ``prosecutor'' should not be housed together, 
     the immigration courts were moved to a separate component 
     within the Justice Department--the EOIR--in 1983. Even parsed 
     out into separate components, however, concerns remain that 
     the immigration courts are still too closely aligned with the 
     immigration enforcers.
       Concerns about the impartiality of a court system located 
     in a law enforcement agency are certain to be exacerbated if 
     the court system is relocated to a security agency. If INS 
     moves, then it is best to leave the immigration court system 
     where it is--in the Justice Department--and thereby keep 
     judge and enforcer well separated.
       The immigration court system is critical both to law 
     enforcement and to humanitarian protections. The immigration 
     courts daily make decisions that could remove a criminal 
     alien from our country, provide safe haven to an asylum-
     seeker fleeing torture or execution, and keep together or 
     break up families. The immigration courts make potentially 
     life-or-death decisions every day and are therefore too 
     important to exist only in regulation.
       We look forward to working with you on this legislation and 
     making additional recommendations as it is considered by the 
     full Senate.
           Sincerely,
     Edward M. Kennedy,
       Chair, Subcommittee on Immigration, Committee on the 
     Judiciary.
     Sam Brownback,
       Ranking Member, Subcommittee on Immigration, Committee on 
     the Judiciary.

                          ____________________






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