[House Report 107-615]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-615
======================================================================
PROVIDING FOR CONSIDERATION OF H.R. 5005, HOMELAND SECURITY ACT OF 2002
_______
July 25, 2002.--Referred to the House Calendar and ordered to be
printed
_______
Ms. Pryce of Ohio, from the Committee on Rules, submitted the following
R E P O R T
[To accompany H. Res. 502]
The Committee on Rules, having had under consideration
House Resolution 502, by a nonrecord vote, report the same to
the House with the recommendation that the resolution be
adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for the consideration of H.R. 5005,
the Homeland Security Act of 2002, under a structured rule. The
rule provides 90 minutes of general debate equally divided and
controlled by the chairman and ranking minority member of the
Select Committee on Homeland Security. The rule waives all
points of order against consideration of the bill.
The rule provides that the amendment in the nature of a
substitute recommended by the Select Committee on Homeland
Security now printed in the bill shall be considered as an
original bill for the purpose of amendment and shall be
considered as read. The rule waives all points of order against
the bill, as amended.
The rule provides that no amendment to the committee
amendment in the nature of a substitute shall be in order
except those printed in this report and amendments en bloc
described in section 3 of the resolution.
The rule provides that each amendment printed in this
report may be offered only in the order printed in this report,
may be offered only by a Member designated in this report,
shall be considered as read, shall be debatable for the time
specified in this report equally divided and controlled by the
proponent and an opponent, shall not be subject to amendment,
and shall not be subject to a demand for division of the
question in the House or in the Committee of the Whole, except
as specified in section 4 of the resolution. The rule waives
all points of order against the amendments printed in this
report or amendments en bloc described in section 3 of the
resolution.
The rule provides that it shall be in order at any time for
the chairman of the Select Committee on Homeland Security or
his designee to offer amendments en bloc consisting of
amendments printed in this report not earlier disposed of or
germane modifications of any such amendment.
The rule provides that amendments en bloc offered pursuant
to the rule shall be considered as read (except that
modifications shall be reported), shall be debatable for 20
minutes equally divided and controlled by the chairman and
ranking minority member of the Select Committee on Homeland
Security or their designees, shall not be subject to amendment,
and shall not be subject to a demand for division of the
question in the House or in the Committee of the Whole.
The rule further provides that for the purpose of inclusion
in such amendments en bloc, an amendment printed in the form of
a motion to strike may be modified to the form of a germane
perfecting amendment to the text originally proposed to be
stricken.
The rule provides that the original proponent of an
amendment included in such amendments en bloc may insert a
statement in the Congressional Record immediately before the
disposition of the amendments en bloc.
The rule provides that the Chairman of the Committee of the
Whole may recognize for consideration of any amendment printed
in the report out of the order printed, but not sooner than one
hour after the chairman of the Select Committee on Homeland
Security or his designee announces from the floor a request to
that effect. Finally, the rule provides one motion to recommit
with or without instructions.
The waiver of all points or order against the consideration
of the bill includes a waiver of clause 4(a) of rule XIII
(requiring a three-day layover of the committee report), which
is needed because H. Rept. 107-609 was filed by the Select
Committee on Homeland Security on the calendar day of
Wednesday, July 24, and the bill may be considered by the House
as early as Thursday, July 25. The waiver of all points of
order against consideration of the bill and against the
committee amendment in the nature of a substitute includes a
waiver of section 306 of the Congressional Budget Act
(prohibiting consideration of legislation within the
jurisdiction of the Committee on the Budget unless reported by
the Budget Committee). The waiver of all points of order
against the committee amendment in the nature of a substitute
includes a waiver of clause 4 of rule XXI (prohibiting
appropriations in legislative bills), which is needed because
provisions contained in section 811 of the committee amendment
are in violation of this rule.
SUMMARY OF AMENDMENTS MADE IN ORDER UNDER THE RULE
Oberstar/Costello/Roemer #56: Retains FEMA as an
independent agency with responsibility for natural disaster
preparedness, response, and recovery. (20 minutes)
Young (AK) #64: Restores the Federal Emergency Management
Agency as an entity. Ensures that FEMA carries out all of its
statutory missions, not just those related to homeland
security. Continues FEMA's role as the lead agency for the
Federal Response Plan established under Executive Order 12148
and 12656. (20 minutes)
Waxman #94: Codifies and strengthens the White House Office
of Homeland Security which was established by executive order
in October, 2001. Defines the functions of the Office. The head
of the Office is appointed by the President with advice and
consent of the Senate. Specifically subjects the Office and its
Director to oversight by Congress. (40 minutes)
Cox #52: Provides specific, illustrative examples of the
types of critical cybersecurity infrastructure which the
Undersecretary for Information Analysis and Infrastructure
Protection must develop a plan to protect. (10 minutes)
Israel #18: Creates an Advisory Committee for the
Undersecretary for Science and Technology. (10 minutes)
Rivers #16: Creates an Office of Inquires within the
Department of Science and Technology which would act as a point
of entry for individuals or companies seeking guidance on how
to pursue proposals to develop or deploy products that would
contribute to homeland security. (10 minutes)
Woolsey #19: Adds a new section to the bill creating a
Homeland Security Institute as a federally-funded research and
development center. (10 minutes)
Cardin #27: Preserves the existing Customs Service as a
``distinct entity'' within the DHS. The amendment does not
affect the bill's provisions which protect certain revenue and
trade act enforcement functions of the Customs Service. (10
minutes)
Hunter #60: Sense of Congress that completion of the San
Diego Border Fence Project is a priority of DHS. (10 minutes)
Ose #7: Requires the Under Secretary of Management to
develop a plan, within one year, to consolidate and co-locate
regional and field offices in each of the cities with an
existing regional or field office transferred to the DHS. (10
minutes)
Velazquez/Issa/Wilson #49: Ensures that the Department of
Homeland Security has procurement goals for small business that
are no less than the statutory minimum. Ensures that those
employees responsible for this goal attainment have a
corresponding criteria in their performance evaluations. (10
minutes)
Hastings (FL) #2: Adds a new section to title VII that
directs the Secretary to comply with laws protecting equal
employment opportunity and provides whistle blower protections.
States that nothing in the Act shall be construed as exempting
the DHS from the requirements that are applicable to all other
executive agencies. (10 minutes)
Rogers (KY) #87: Ensures that if the Federal Law
Enforcement Training Center is transferred to the Department of
Justice, the Department of Justice will not alter the
operations of the Center. (10 minutes)
Rogers (KY) #41: Grants permissive authority to the DHS
Secretary for the creation of a Joint Interagency Homeland
Security Taskforce. (10 minutes)
Rush #25: Establishes within the Office of the Secretary an
office to oversee and coordinate developmental programs for and
relationships with states and local governments. (10 minutes)
Shays/Watson #23: Requires biennial reports to Congress on
the status of homeland security preparedness, including a
report on each state. Requires a report to Congress, within one
year of enactment, ensuring the maintenance of core functions
transferred to the DHS and recommending statutory changes to
facilitate implementation of the reorganization effort. (10
minutes)
Shays #85: Similar to the Morella amendment approved by the
Government Reform Committee, except for an additional section
stating that the provisions of the amendment would not apply
where the President determines in writing that such application
would have a substantial adverse impact on the Department's
ability to protect homeland security. (20 minutes)
Morella #40: Allows existing employees transferred into
DHS, who have the same job responsibilities, to still belong to
a union. If their responsibilities changed so they were
directly involved in the war on terrorism, they could be
exempted from being part of a union by the President. Those
employees or units that did not have union representation
before the transfer would not be granted any extra protections
by this amendment. (20 minutes)
Quinn #82: Clarifies workers rights in section 761. (20
minutes)
Waxman/Frost #95: Deletes the entire human resources which
exempt employees of the new Department from Title 5. Provides
that federal employees transferred to the new agency could not
have their pay reduced. Strengthens whistleblower protections.
(20 minutes)
Armey #69: En Bloc Manager's Amendment. Technical
amendments requested by Energy and Commerce Committee.
Technical amendments requested by Science Committee. Technical
correction regarding Oil Spill Liability Trust Fund requested
by Transportation and Infrastructure Committee. Technical
amendments relating to DHS privacy officer. Technical
correction relating to biological agent registration function
requested by Agriculture Committee. An amendment to create a
program to encourage and support innovative solutions to
enhance homeland security (requested by Mr. Davis and Ms.
Harman). An amendment to enhance non-federal cybersecurity
activities of Under Secretary for Information Analysis and
Infrastructure Protection (requested by Science Committee). An
amendment to establish ``NET Guard'' program to promote
volunteer activities in support of information technology
protection activities (requested by Science Committee). An
amendment striking section 814 (relating to incidental
transfers by the Director of OMB) requested by Appropriations
Committee. A Technical correction to section 761 to insert a
proper reference. An amendment inserting sense of Congress
provision reaffirming the Posse Comitatus Act. An amendment
clarifying that this Act preempts no state or local law, except
that any preemption authority vested in agencies or officials
transferred to DHS shall be transferred to DHS. An amendment
inserting text of ``Federal Information Security management Act
of 2002'' (recommended by Committee on Government Reform at
request of Mr. Davis), which creates a new Title XI to address
Federal information security. Transfers to the DHS the computer
information security standards currently promulgated by the
Secretary of Commerce and permanently reauthorizes the agency-
wide risk management information security approach in the
Government Information Security Reform Act of 2000 (GISRA) and
eliminates GISRA's two-year sunset. Second, it would strengthen
reforms initiated by the existing GISRA by clarifying terms,
correcting mistakes, and streamlining requirements. Requires
the development, promulgation, and compliance with minimum
mandatory management controls for securing information.
Includes Amendments to subtitle F of title VII (relating to
liability management) intended to clarify availability of
liability protections afforded by this title. An amendment
inserting a new section to reinstate liability cap for aviation
screening companies. A clarification responsibilities of the
DHS and the DHS Counternarcotics Officer with regard to
narcotics interdiction. A clarification of the eligibility
criteria for participation in certain extramural research
programs of the Department. Includes technical amendment to
section 766, regarding regulatory authority. New section
expressing the sense of Congress regarding funding of trauma
systems. (40 minutes)
Turner #88: Indemnifies companies who sell anti-terrorism
technologies to the federal government, as well as, state and
local governments, in a manner similar to the protection
afforded under P.L. 85-804. (40 minutes)
Oberstar/Menendez #55: Strikes sec. 409 of the bill
(Extension of Airline Baggage Screening Deadline). (45 minutes)
Schakowsky/Kucinich/Mink #51: Strikes subtitle C of section
VII. Strikes section 762 from the bill and replaces with
language that provides remedies for retaliation against
whistleblowers. (30 minutes)
Davis, Tom #83: Expands the existing FOIA exemption in the
homeland security legislation to other federal agencies as the
Secretary of Homeland Security determines as appropriate. (20
minutes)
Chambliss/Harman/Shays/Menendez #9: Directs that critical
threat information be shared between federal law enforcement
and intelligence agencies with state and local personnel,
including granting security clearances to appropriate state and
local personnel. Directs the President to develop procedures by
which federal agencies will share homeland security information
with state and local personnel and vice versa. Requires that
any information that is shared must not be used for any
unauthorized purpose and the procedures must ensure the
security and confidentiality of the information as well as the
removal or deletion of obsolete or erroneous information.
Protects information collected by the census. Allows certain
types of information to be shared with appropriate state and
local offices consistent with guidelines issued by the Attorney
General and Director of Central Intelligence. (20 minutes)
Weldon (FL) #54: Amends sections 402 and 403 of the bill to
transfer the visa office from the Department of State to the
DHS. Provides for a two-year transition period during which the
Foreign Service Officers issuing visas would be detailed to the
DHS while new DHS personnel are trained and deployed abroad.
Preserves the Secretary of State's authority to deny a visa
based in the national interest of the U.S. Prohibits judicial
review of consular decisions to refuse a visa. (20 minutes)
TEXT OF AMENDMENTS MADE IN ORDER
1. An Amendment To Be Offered by Representative Oberstar of Minnesota,
or His Designee, Debatable for 20 Minutes
Strike section 402(5) of the bill (and redesignate subsequent
paragraphs accordingly).
In section 501(1) of the bill, strike ``, major disasters,
and other emergencies''.
In the matter preceding subparagraph (A) of section 501(3) of
the bill, strike ``and major disasters''.
In section 501(3)(D) of the bill, strike ``or major
disaster''.
In section 501(4) of the bill--
(1) strike ``and major disasters'';
(2) strike ``or major disasters''; and
(3) strike ``or disasters''.
In section 501(5) of the bill, strike ``and disasters''.
Strike section 501(6) of the bill and insert the following:
(6) In consultation with the Director of the Federal
Emergency Management Agency, consolidating existing
Federal Government emergency response plans for
terrorist attacks into the Federal Response Plan
referred to in section 506(b).
In section 502(1) of the bill, strike the text after ``(1)''
and preceding ``Integrated'' and insert ``The''.
At the end of title V of the bill, insert the following (and
conform the table of contents of the bill accordingly):
SEC. 506. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.
(a) In General.--The functions of the Federal Emergency
Management Agency include, but are not limited to, the
following:
(1) All functions and authorities prescribed by the
Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.).
(2) Carrying out its mission to reduce the loss of
life and property and protect the Nation from all
hazards by leading and supporting the Nation in a
comprehensive, risk-based emergency management
program--
(A) of mitigation, by taking sustained
actions to reduce or eliminate long-term risk
to people and property from hazards and their
effects;
(B) of preparedness, by building the
emergency management profession to prepare
effectively for, mitigate against, respond to,
and recover from any hazard by planning,
training, and exercising;
(C) of response, by conducting emergency
operations to save lives and property through
positioning emergency equipment and supplies,
through evacuating potential victims, through
providing food, water, shelter, and medical
care to those in need, and through restoring
critical public services;
(D) of recovery, by rebuilding communities so
individuals, businesses, and governments can
function on their own, return to normal life,
and protect against future hazards; and
(E) of increased efficiencies, by
coordinating efforts relating to preparedness
and response activities to maximize
efficiencies.
(b) Federal Response Plan.--
(1) Role of fema.--Notwithstanding any other
provision of this Act, the Federal Emergency Management
Agency shall remain the lead agency for the Federal
Response Plan established under Executive Order 12148
(44 Fed. Reg. 43239) and Executive Order 12656 (53 Fed.
Reg. 47491).
(2) Revision of response plan.--Not later than 60
days after the date of enactment of this Act, the
Director of the Federal Emergency Management Agency
shall revise the Federal Response Plan to reflect the
establishment of and incorporate the Department.
(3) Memorandum of understanding.--Not later than 60
days after the date of enactment of this Act, the
Secretary and the Director of the Federal Emergency
Management Agency shall adopt a memorandum of
understanding to address the roles and responsibilities
of their respective agencies under this title.
----------
2. An Amendment To Be Offered by Representative Young of Alaska, or His
Designee, Debatable for 20 Minutes
Strike section 402(5) of the bill (and redesignate subsequent
paragraphs accordingly).
In section 502(1) of the bill, strike ``Except as provided in
section 402, the'' and insert ``The''.
At the end of title 5 of the bill, add the following (and
conform the table of contents of the bill accordingly):
SEC. 506. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.
(a) In General.--The functions of the Federal Emergency
Management Agency include, but are not limited to, the
following:
(1) All functions and authorities prescribed by the
Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.).
(2) Carrying out its mission to reduce the loss of
life and property and protect the Nation from all
hazards by leading and supporting the Nation in a
comprehensive, risk-based emergency management
program--
(A) of mitigation, by taking sustained
actions to reduce or eliminate long-term risk
to people and property from hazards and their
effects;
(B) of preparedness, by building the
emergency management profession to prepare
effectively for, mitigate against, respond to,
and recover from any hazard by planning,
training, and exercising;
(C) of response, by conducting emergency
operations to save lives and property through
positioning emergency equipment and supplies,
through evacuating potential victims, through
providing food, water, shelter, and medical
care to those in need, and through restoring
critical public services;
(D) of recovery, by rebuilding communities so
individuals, businesses, and governments can
function on their own, return to normal life,
and protect against future hazards; and
(E) of increased efficiencies, by
coordinating efforts relating to preparedness
and response activities to maximize
efficiencies.
(b) Federal Response Plan.--
(1) Role of fema.--Notwithstanding any other
provision of this Act, the Federal Emergency Management
Agency shall remain the lead agency for the Federal
Response Plan established under Executive Order 12148
(44 Fed. Reg. 43239) and Executive Order 12656 (53 Fed.
Reg. 47491).
(2) Revision of response plan.--Not later than 60
days after the date of enactment of this Act, the
Director of the Federal Emergency Management Agency
shall revise the Federal Response Plan to reflect the
establishment of and incorporate the Department.
----------
3. An Amendment To Be Offered by Representative Waxman of California,
or His Designee, Debatable for 40 Minutes
At the end of the bill add the following new title:
TITLE XI--OFFICE OF HOMELAND SECURITY
SEC. 1101. ESTABLISHMENT.
(a) In General.--There is established in the Executive Office
of the President an Office of Homeland Security.
(b) Director.--The head of the Office shall be the Director
of Homeland Security, who shall be appointed by the President
with advice and consent of the Senate.
SEC. 1102. MISSION.
As provided in Executive Order 13228, the mission of the
Office of Homeland Security is to develop and coordinate the
implementation of a comprehensive national strategy to secure
the United States from terrorist threats or attacks.
SEC. 1103. FUNCTIONS.
As provided in Executive Order 13228, the functions of the
Office of Homeland Security shall be to coordinate the
executive branch's efforts to detect, prepare for, prevent,
protect against, respond to, and recover from terrorist attacks
within the United States. Such functions shall include--
(1) working with executive departments and agencies,
State and local governments, and private entities to
ensure the adequacy of the national strategy for
detecting, preparing for, preventing, protecting
against, responding to, and recovering from terrorist
threats or attacks within the United States and
periodically reviewing and coordinating revisions to
that strategy as necessary;
(2) identifying priorities and coordinating efforts
for collection and analysis of information regarding
threats of terrorism against the United States,
including ensuring that all executive departments and
agencies that have intelligence collection
responsibilities have sufficient technological
capabilities and resources and that, to the extent
permitted by law, all appropriate and necessary
intelligence and law enforcement information relating
to homeland security is disseminated to and exchanged
among appropriate executive departments and agencies;
(3) coordinating national efforts to prepare for and
mitigate the consequences of terrorist threats or
attacks within the United States, including
coordinating Federal assistance to State and local
authorities and nongovernmental organizations to
prepare for and respond to terrorist threats or attacks
and ensuring the readiness and coordinated deployment
of Federal response teams to respond to terrorist
threats or attacks;
(4) coordinating efforts to prevent terrorist attacks
within the United States;
(5) coordinating efforts to protect the United States
and its critical infrastructure from the consequences
of terrorist attacks;
(6) coordinating efforts to respond to and promote
recovery from terrorist threats or attacks within the
United States;
(7) coordinating the domestic response efforts of all
departments and agencies in the event of an imminent
terrorist threat and during and in the immediate
aftermath of a terrorist attack within the United
States and acting as the principal point of contact for
and to the President with respect to coordination of
such efforts;
(8) in coordination with the Assistant to the
President for National Security Affairs, reviewing
plans and preparations for ensuring the continuity of
the Federal Government in the event of a terrorist
attack that threatens the safety and security of the
United States Government or its leadership;
(9) coordinating the strategy of the executive branch
for communicating with the public in the event of a
terrorist threat or attack within the United States and
coordinating the development of programs for educating
the public about the nature of terrorist threats and
appropriate precautions and responses; and
(10) encouraging and inviting the participation of
State and local governments and private entities, as
appropriate, in carrying out the Offices's functions.
SEC. 1104. ACCESS TO INFORMATION.
As provided in Executive Order 13288, executive agencies,
shall, to the extent permitted by law, make available to the
Office of Homeland Security all information relating to
terrorist threats and activities within the United States.
SEC. 1105. BUDGET APPROVAL.
(a) Authority.--The Director of the Office of Homeland
Security shall--
(1) review the budget requests submitted to the
President by all executive agencies with homeland
security responsibilities; and
(2) if a budget request fails to conform to the
objectives set forth in the national strategy described
in section 1102, may disapprove such budget request.
(b) Effect of Disapproval.--In any case in which a budget
request is disapproved under subsection (a)--
(1) the Director shall notify the appropriate
Committees of Congress; and
(2) the President may not include such budget request
in the annual budget submission to Congress unless the
President makes an express determination that including
such request is in the national interest.
SEC. 1106. ADMINISTRATION.
As provided in Executive Order 13288, the Office of
Administration within the Executive Office of the President
shall provide the Office of Homeland Security with such
personnel, funding, and administrative support, to the extent
permitted by law and subject to the availability of
appropriations, as necessary to carry out the provisions of
this title.
SEC. 1107. DETAIL AND ASSIGNMENT.
As provided in Executive Order 13288, the heads of executive
agencies are authorized, to the extent permitted by law, to
detail or assign personnel of such agencies to the Office of
Homeland Security upon request of the Director of Homeland
Security.
SEC. 1108. OVERSIGHT BY CONGRESS.
The establishment of the Office of Homeland Security within
the Executive Office of the President shall not be construed as
affecting access by Congress, or any committee of Congress,
to--
(1) any information, document, or study in the
possession of, or conducted by or at the direction of,
the Director; or
(2) personnel of the Office.
----------
4. An Amendment To Be Offered by Representative Cox of California, or
His Designee, Debatable for 10 Minutes
In section 201(5), insert the following before the period at
the end: ``including, but not limited to, power production,
generation, and distribution systems, information technology
and telecommunications systems (including satellites),
electronic financial and property record storage and
transmission systems, emergency preparedness communications
systems, and the physical and technological assets that support
such systems''.
----------
5. An Amendment To Be Offered by Representative Israel of New York, or
His Designee, Debatable for 10 Minutes
At the end of title III, insert the following new section:
SEC. 309. HOMELAND SECURITY SCIENCE AND TECHNOLOGY ADVISORY COMMITTEE.
(a) Establishment.--There is established within the
Department a Homeland Security Science and Technology Advisory
Committee (in this section referred to as the ``Advisory
Committee''). The Advisory Committee shall make recommendations
with respect to the activities of the Under Secretary for
Science and Technology, including identifying research areas of
potential importance to the security of the Nation.
(b) Membership.--
(1) Appointment.--The Advisory Committee shall
consist of 20 members appointed by the Under Secretary
for Science and Technology, which shall include
emergency first-responders or representatives of
organizations or associations of emergency first-
responders. The Advisory Committee shall also include
representatives of citizen groups, including
economically disadvantaged communities. The individuals
appointed as members of the Advisory Committee--
(A) shall be eminent in fields such as
emergency response, research, engineering, new
product development, business, and management
consulting;
(B) shall be selected solely on the basis of
established records of distinguished service;
(C) shall not be employees of the Federal
Government; and
(D) shall be so selected as to provide
representation of a cross-section of the
research, development, demonstration, and
deployment activities supported by the Under
Secretary for Science and Technology.
(2) National research council.--The Under Secretary
for Science and Technology may enter into an
arrangement for the National Research Council to select
members of the Advisory Committee, but only if the
panel used by the National Research Council reflects
the representation described in paragraph (1).
(c) Terms of Office.--
(1) In general.--Except as otherwise provided in this
subsection, the term of office of each member of the
Advisory Committee shall be 3 years.
(2) Original appointments.--The original members of
the Advisory Committee shall be appointed to three
classes of three members each. One class shall have a
term of one year, one a term of two years, and the
other a term of three years.
(3) Vacancies.--A member appointed to fill a vacancy
occurring before the expiration of the term for which
the member's predecessor was appointed shall be
appointed for the remainder of such term.
(d) Eligibility.--A person who has completed two consecutive
full terms of service on the Advisory Committee shall
thereafter be ineligible for appointment during the one-year
period following the expiration of the second such term.
(e) Meetings.--The Advisory Committee shall meet at least
quarterly at the call of the Chair or whenever one-third of the
members so request in writing. Each member shall be given
appropriate notice of the call of each meeting, whenever
possible not less than 15 days before the meeting.
(f) Quorum.--A majority of the members of the Advisory
Committee not having a conflict of interest in the matter being
considered by the Advisory Committee shall constitute a quorum.
(g) Conflict of Interest Rules.--The Advisory Committee shall
establish rules for determining when one of its members has a
conflict of interest in a matter being considered by the
Advisory Committee.
(h) Reports.--
(1) Annual report.--The Advisory Committee shall
render an annual report to the Under Secretary for
Science and Technology for transmittal to the Congress
on or before January 31 of each year. Such report shall
describe the activities and recommendations of the
Advisory Committee during the previous year.
(2) Additional reports.--The Advisory Committee may
render to the Under Secretary for transmittal to the
Congress such additional reports on specific policy
matters as it considers appropriate.
(i) FACA Exemption.--Section 14 of the Federal Advisory
Committee Act shall not apply to the Advisory Committee.
Amend the table of contents accordingly.
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6. An Amendment To Be Offered by Representative Rivers of Michigan, or
Her Designee, Debatable for 10 Minutes
At the end of title III, insert the following new section:
SEC. 309. INQUIRIES.
(a) Office.--The Secretary, acting through the Under
Secretary for Science and Technology, shall establish an office
to serve as a point of entry for individuals or companies
seeking guidance on how to pursue proposals to develop or
deploy products that would contribute to homeland security.
Such office shall refer those seeking guidance on Federal
funding, regulation, acquisition, or other matters to the
appropriate unit of the Department or to other appropriate
Federal agencies.
(b) Functions.--The Under Secretary for Science and
Technology shall work in conjunction with the Technical Support
Working Group (organized under the April, 1982, National
Security Decision Directive Numbered 30) to--
(1) screen proposals described in subsection (a), as
appropriate;
(2) assess the feasibility, scientific and technical
merits, and estimated cost of proposals screened under
paragraph (1), as appropriate;
(3) identify areas where existing technologies may be
easily adapted and deployed to meet the homeland
security agenda of the Federal Government; and
(4) develop and oversee the implementation of
homeland security technology demonstration events, held
at least annually, for the purpose of improving contact
among technology developers, vendors, and acquisition
personnel.
Amend the table of contents accordingly.
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7. An Amendment To Be Offered by Representative Woolsey of California,
or Her Designee, Debatable for 10 Minutes
At the end of title III, insert the following new section:
SEC. 309. HOMELAND SECURITY INSTITUTE.
(a) Establishment.--The Secretary shall establish a federally
funded research and development center to be known as the
``Homeland Security Institute'' (in this section referred to as
the ``Institute'').
(b) Administration.--The Institute shall be administered as a
separate entity by the Secretary.
(c) Duties.--The duties of the Institute shall be determined
by the Secretary, and may include the following:
(1) Systems analysis, risk analysis, and simulation
and modeling to determine the vulnerabilities of the
Nation's critical infrastructures and the effectiveness
of the systems deployed to reduce those
vulnerabiblities.
(2) Economic and policy analysis to assess the
distributed costs and benefits of alternative
approaches to enhancing security.
(3) Evaluation of the effectiveness of measures
deployed to enhance the security of institutions,
facilities, and infrastructure that may be terrorist
targets.
(4) Identification of instances when common standards
and protocols could improve the interoperability and
effective utilization of tools developed for field
operators and first responders.
(5) Assistance for Federal agencies and departments
in establishing testbeds to evaluate the effectiveness
of technologies under development and to assess the
appropriateness of such technologies for deployment.
(6) Design of metrics and use of those metrics to
evaluate the effectiveness of homeland security
programs throughout the Federal Government, including
all national laboratories.
(7) Design of and support for the conduct of homeland
security-related exercises and simulations.
(8) Creation of strategic technology development
plans to reduce vulnerabilities in the Nation's
critical infrastructure and key resources.
(d) Consultation on Institute Activities.--In carrying out
the duties described in subsection (c), the Institute shall
consult widely with representatives from private industry,
institutions of higher education, and nonprofit institutions.
(e) Annual Reports.--The Institute shall transmit to the
Secretary and the Congress an annual report on the activities
of the Institute under this section.
Amend the table of contents accordingly.
----------
8. An Amendment To Be Offered by Representative Cardin of Maryland, or
His Designee, Debatable for 10 Minutes
In section 401(1), add the following at the end: ``The
functions, personnel, assets, and obligations of the Customs
Service so transferred shall be maintained as a distinct entity
within the Department.''.
----------
9. An Amendment To Be Offered by Representative Hunter of California,
or His Designee, Debatable for 10 Minutes
At the end of chapter 1 of subtitle B of title IV, add the
following:
SEC. 416. SENSE OF CONGRESS REGARDING CONSTRUCTION OF FENCING NEAR SAN
DIEGO, CALIFORNIA.
It is the sense of the Congress that completing the 14-mile
border fence project required to be carried out under section
102(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1103 note) should be a
priority for the Secretary.
----------
10. An Amendment To Be Offered by Representative Ose of California, or
His Designee, Debatable for 10 Minutes
At the end of title VI add the following:
SEC. . CONSOLIDATION AND CO-LOCATION OF OFFICES.
Not later than 1 year after the date of the enactment of
this Act, the Secretary shall develop and submit to the
Congress a plan for consolidating and co-locating--
(1) any regional offices or field offices of agencies
that are transferred to the Department under this Act,
if such officers are located in the same municipality;
and
(2) portions of regional and field offices of other
Federal agencies, to the extent such offices perform
functions that are transferred to the Secretary under
this Act.
----------
11. An Amendment To Be Offered by Representative Velazquez of New York,
or Her Designee, Debatable for 10 Minutes
In section 734 of the bill, insert before the first sentence
the following:
(a) Office of Small and Disadvantaged Business Utilization.--
At the end of section 734 of the bill, add the following new
subsection:
(b) Small Business Procurement Goals.--
(1) In general.--The Secretary shall annually
establish goals for the participation by small business
concerns, by small business concerns owned and
controlled by service-disabled veterans, by qualified
HUBZone small business concerns, by small business
concerns owned and controlled by socially and
economically disadvantaged individuals, and by small
business concerns owned and controlled by women (as
such terms are defined pursuant to the Small Business
Act (15 U.S.C. 631 et seq.) and relevant regulations
promulgated thereunder) in procurement contracts of the
Department.
(2) Department goals not less than government-wide
goals.--Notwithstanding section 15(g) of the Small
Business Act (15 U.S.C. 644(g)), each goal established
under paragraph (1) shall be equal to or greater than
the corresponding Government-wide goal established by
the President under section 15(g)(1) of the Small
Business Act (15 U.S.C. 644(g)(1)).
(3) Incentive for goal achievement.--Achievement of
the goals established under paragraph (1) shall be an
element in the performance standards for employees of
the Department who have the authority and
responsibility for achieving such goals.
----------
12. An Amendment To Be Offered by Representative Hastings of Florida,
or His Designee, Debatable for 10 Minutes
At the end of title VII, insert the following new section:
SEC. 7. REQUIREMENT TO COMPLY WITH LAWS PROTECTING EQUAL EMPLOYMENT
OPPORTUNITY AND PROVIDING WHISTLEBLOWER
PROTECTIONS.
Nothing in this Act shall be construed as exempting the
Department from requirements applicable with respect to
executive agencies--
(1) to provide equal employment protection for
employees of the Department (including pursuant to the
provisions in section 2302(b)(1) of title 5, United
States Code, and the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (Pub. L.
107-174)); or
(2) to provide whistleblower protections for
employees of the Department (including pursuant to the
provisions in section 2302(b)(8) of such title and the
Notification and Federal Employee Antidiscrimination
and Retaliation Act of 2002).
----------
13. An Amendment To Be Offered by Representative Kingston of Georgia,
or His Designee, Debatable for 10 Minutes
Add at the end of subtitle G of title VII the following:
SEC. . FEDERAL LAW ENFORCEMENT TRAINING CENTER.
(a) In General.--The transfer of an authority or an agency
under this Act to the Department of Homeland Security does not
affect training agreements already entered into with the
Federal Law Enforcement Training Center with respect to the
training of personnel to carry out that authority or the duties
of that transferred agency.
(b) Continuity of Operations.--All activities of the
Federal Law Enforcement Training Center transferred to the
Department of Justice under this Act shall continue to be
carried out at the locations such activities were carried out
before such transfer.
----------
14. An Amendment To Be Offered by Representative Rogers of Kentucky, or
His Designee, Debatable for 10 Minutes
At the appropriate place in the bill, add the following new
section:
SEC. . JOINT INTERAGENCY TASK FORCE.
(a) Establishment.--The Secretary may establish and operate
a permanent Joint Interagency Homeland Security Task Force
composed of representatives from military and civilian agencies
of the United States Government for the purposes of
anticipating terrorist threats against the United States and
taking appropriate actions to prevent harm to the United
States.
(b) Structure.--It is the sense of Congress that the
Secretary should model the Joint Interagency Homeland Security
Task Force on the approach taken by the Joint Interagency Task
Forces for drug interdiction at Key West, Florida and Alameda,
California, to the maximum extent feasible and appropriate.
----------
15. An Amendment To Be Offered by Representative Rush of Illinois, or
His Designee, Debatable for 10 Minutes
At the end of subtitle G of title VII add the following:
SEC. 7 . OFFICE FOR STATE AND LOCAL GOVERNMENT COORDINATION.
(a) Establishment.--There is established within the Office
of the Secretary the Office for State and Local Government
Coordination, to oversee and coordinate departmental programs
for and relationships with State and local governments.
(b) Responsibilities.--The Office established under
subsection (a) shall--
(1) coordinate the activities of the Department
relating to state and local government;
(2) assess, and advocate for, the resources needed by
State and local government to implement the national
strategy for combating terrorism;
(3) provide State and local government with regular
information, research, and technical support to assist
local efforts at securing the homeland; and
(4) develop a process for receiving meaningful input
from State and local government to assist the
development of the national strategy for combating
terrorism and other homeland security activities.
----------
16. An Amendment To Be Offered by Representative Shays of Connecticut,
or His Designee, Debatable for 10 Minutes
At the end of subtitle G of title VII insert the following:
SEC. 7 . REPORTING REQUIREMENTS.
(a) Biennial Reports.--Every 2 years the Secretary shall
submit to Congress--
(1) a report assessing the resources and requirements
of executive agencies relating to border security and
emergency preparedness issues;
(2) a report certifying the preparedness of the
United States to prevent, protect against, and respond
to natural disasters, cyber attacks, and incidents
involving weapons of mass destruction; and
(3) a report assessing the emergency preparedness of
each State, including an assessment of each State's
coordination with the Department with respect to the
responsibilities specified in section 501.
(b) Additional Report.--Not later than 1 year after the
effective date of this Act, the Secretary shall submit to
Congress a report--
(1) assessing the progress of the Department in--
(A) implementing this Act; and
(B) ensuring the core functions of each
entity transferred to the Department are
maintained and strengthened; and
(2) recommending any conforming changes in law
necessary as a result of the enactment and
implementation of this Act.
----------
17. An Amendment To Be Offered by Representative Shays of Connecticut,
or His Designee, Debatable for 20 Minutes
Page 189, after line 7, insert the following (and redesignate
succeeding sections and references thereto accordingly):
SEC. 762. LABOR-MANAGEMENT RELATIONS.
(a) Limitation on Exclusionary Authority.--
(1) In general.--No agency or subdivision of an
agency which is transferred to the Department pursuant
to this Act shall be excluded from the coverage of
chapter 71 of title 5, United States Code, as a result
of any order issued under section 7103(b)(1) of such
title 5 after June 18, 2002, unless--
(A) the mission and responsibilities of the
agency (or subdivision) materially change; and
(B) a majority of the employees within such
agency (or subdivision) have as their primary
duty intelligence, counterintelligence, or
investigative work directly related to
terrorism investigation.
(2) Exclusions allowable.--Nothing in paragraph (1)
shall affect the effectiveness of any order to the
extent that such order excludes any portion of an
agency or subdivision of an agency as to which--
(A) recognition as an appropriate unit has
never been conferred for purposes of chapter 71
of such title 5; or
(B) any such recognition has been revoked or
otherwise terminated as a result of a
determination under subsection (b)(1).
(b) Provisions Relating to Bargaining Units.--
(1) Limitation relating to appropriate units.--Each
unit which is recognized as an appropriate unit for
purposes of chapter 71 of title 5, United States Code,
as of the day before the effective date of this Act
(and any subdivision of any such unit) shall, if such
unit (or subdivision) is transferred to the Department
pursuant to this Act, continue to be so recognized for
such purposes, unless--
(A) the mission and responsibilities of such
unit (or subdivision) materially change; and
(B) a majority of the employees within such
unit (or subdivision) have as their primary
duty intelligence, counterintelligence, or
investigative work directly related to
terrorism investigation.
(2) Limitation relating to positions or employees.--
No position or employee within a unit (or subdivision
of a unit) as to which continued recognition is given
in accordance with paragraph (1) shall be excluded from
such unit (or subdivision), for purposes of chapter 71
of such title 5, unless the primary job duty of such
position or employee--
(A) materially changes; and
(B) consists of intelligence,
counterintelligence, or investigative work
directly related to terrorism investigation.
In the case of any positions within a unit (or
subdivision) which are first established on or after
the effective date of this Act and any employees first
appointed on or after such date, the preceding sentence
shall be applied disregarding subparagraph (A).
(c) Homeland Security.--Subsections (a), (b), and (d) of this
section shall not apply in circumstances where the President
determines in writing that such application would have a
substantial adverse impact on the Department's ability to
protect homeland security.
(d) Coordination Rule.--No other provision of this Act or of
any amendment made by this Act may be construed or applied in a
manner so as to limit, supersede, or otherwise affect the
provisions of this section, except to the extent that it does
so by specific reference to this section.
----------
18. An Amendment To Be Offered by Representative Morella of Maryland,
or Her Designee, Debatable for 20 Minutes
In subtitle G of title VII of the bill, insert after section
761 the following (and redesignate succeeding sections and
references thereto accordingly):
SEC. 762. LABOR-MANAGEMENT RELATIONS.
(a) Limitation on Exclusionary Authority.--
(1) In general.--No agency or subdivision of an
agency which is transferred to the Department pursuant
to this Act shall be excluded from the coverage of
chapter 71 of title 5, United States Code, as a result
of any order issued under section 7103(b)(1) of such
title 5 after June 18, 2002, unless--
(A) the mission and responsibilities of the
agency (or subdivision) materially change; and
(B) a majority of the employees within such
agency (or subdivision) have as their primary
duty intelligence, counterintelligence, or
investigative work directly related to
terrorism investigation.
(2) Exclusions allowable.--Nothing in paragraph (1)
shall affect the effectiveness of any order to the
extent that such order excludes any portion of an
agency or subdivision of an agency as to which--
(A) recognition as an appropriate unit has
never been conferred for purposes of chapter 71
of such title 5; or
(B) any such recognition has been revoked or
otherwise terminated as a result of a
determination under subsection (b)(1).
(b) Provisions Relating to Bargaining Units.--
(1) Limitation relating to appropriate units.--Each
unit which is recognized as an appropriate unit for
purposes of chapter 71 of title 5, United States Code,
as of the day before the effective date of this Act
(and any subdivision of any such unit) shall, if such
unit (or subdivision) is transferred to the Department
pursuant to this Act, continue to be so recognized for
such purposes, unless--
(A) the mission and responsibilities of such
unit (or subdivision) materially change; and
(B) a majority of the employees within such
unit (or subdivision) have as their primary
duty intelligence, counterintelligence, or
investigative work directly related to
terrorism investigation.
(2) Limitation relating to positions or employees.--
No position or employee within a unit (or subdivision
of a unit) as to which continued recognition is given
in accordance with paragraph (1) shall be excluded from
such unit (or subdivision), for purposes of chapter 71
of such title 5, unless the primary job duty of such
position or employee-
(A) materially changes; and
(B) consists of intelligence,
counterintelligence, or investigative work
directly related to terrorism investigation.
In the case of any positions within a unit (or
subdivision) which are first established on or after
the effective date of this Act and any employees first
appointed on or after such date, the preceding sentence
shall be applied disregarding subparagraph (A).
(c) Coordination Rule.--No other provision of this Act or of
any amendment made by this Act may be construed or applied in a
manner so as to limit, supersede, or otherwise affect the
provisions of this section, except to the extent that it does
so by specific reference to this section.
----------
19. An Amendment To Be Offered by Representative Quinn of New York, or
His Designee, Debatable for 20 Minutes
In section 761(a) of the bill, redesignate paragraphs (1) and
(2) as paragraphs (2) and (3), respectively, and insert after
the heading for subsection (a) the following:
(1) Sense of congress.--It is the sense of the
Congress that--
(A) it is extremely important that employees
of the Department be allowed to participate in
a meaningful way in the creation of any human
resources management system affecting them;
(B) such employees have the most direct
knowledge of the demands of their jobs and have
a direct interest in ensuring that their human
resources management system is conducive to
achieving optimal operational efficiencies;
(C) the 21st century human resources
management system envisioned for the Department
should be one that benefits from the input of
its employees; and
(D) this collaborative effort will help
secure our homeland.
In paragraph (4) of section 9701(b) of title 5, United States
Code (as proposed to be added by section 761(a) of the bill),
strike all that follows ``by law'' and insert ``; and''.
In section 9701 of title 5, United States Code (as proposed
to be added by section 761(a) of the bill), redesignate
subsection (e) as subsection (g) and insert after subsection
(d) the following:
``(e) Provisions To Ensure Collaboration With Employee
Representatives.--
``(1) In general.--In order to ensure that the
authority of this section is exercised in collaboration
with, and in a manner that ensures the direct
participation of employee representatives in the
planning, development, and implementation of any human
resources management system or adjustments under this
section, the Secretary of Homeland Security and the
Director of the Office of Personnel Management shall
provide for the following:
``(A) Notice of proposal, etc.--The Secretary
and the Director shall, with respect to any
proposed system or adjustment--
``(i) provide to each employee
representative representing any
employees who might be affected, a
written description of the proposed
system or adjustment (including the
reasons why it is considered
necessary);
``(ii) give each representative at
least 60 days (unless extraordinary
circumstances require earlier action)
to review and make recommendations with
respect to the proposal; and
``(iii) give any recommendations
received from any such representative
under clause (ii) full and fair
consideration in deciding whether or
how to proceed with the proposal.
``(B) Pre-implementation requirements.--If
the Secretary and the Director decide to
implement a proposal described in subparagraph
(A), they shall before implementation--
``(i) give each employee
representative details of the decision
to implement the proposal, together
with the information upon which the
decision was based;
``(ii) give each representative an
opportunity to make recommendations
with respect to the proposal; and
``(iii) give such recommendations
full and fair consideration, including
the providing of reasons to an employee
representative if any of its
recommendations are rejected.
``(C) Continuing collaboration.--If a
proposal described in subparagraph (A) is
implemented, the Secretary and the Director
shall--
``(i) develop a method for each
employee representative to participate
in any further planning or development
which might become necessary; and
``(ii) give each employee
representative adequate access to
information to make that participation
productive.
``(2) Procedures.--Any procedures necessary to carry
out this subsection shall be established by the
Secretary and the Director jointly. Such procedures
shall include measures to ensure--
``(A) in the case of employees within a unit
with respect to which a labor organization is
accorded exclusive recognition, representation
by individuals designated or from among
individuals nominated by such organization;
``(B) in the case of any employees who are
not within such a unit, representation by any
appropriate organization which represents a
substantial percentage of those employees or,
if none, in such other manner as may be
appropriate, consistent with the purposes of
this subsection; and
``(C) the selection of representatives in a
manner consistent with the relative numbers of
employees represented by the organizations or
other representatives involved.
``(f) Provisions Relating to Appellate Procedures.--
``(1) Sense of congress.--It is the sense of the
Congress that--
``(A) employees of the Department of Homeland
Security are entitled to fair treatment in any
appeals that they bring in decisions relating
to their employment; and
``(B) in prescribing regulations for any such
appeals procedures, the Secretary of Homeland
Security and the Director of the Office of
Personnel Management--
``(i) should ensure that employees of
the Department are afforded the
protections of due process; and
``(ii) toward that end, should be
required to consult with the Merit
Systems Protection Board before issuing
any such regulations.
``(2) Requirements.--Any regulations under this
section which relate to any matters within the purview
of chapter 77--
``(A) shall be issued only after consultation
with the Merit Systems Protection Board; and
``(B) shall ensure the availability of
procedures which shall--
``(i) be consistent with requirements
of due process; and
``(ii) provide, to the maximum extent
practicable, for the expeditious
handling of any matters involving the
Department of Homeland Security.
----------
20. An Amendment To Be Offered by Representative Waxman of California,
or His Designee, Debatable for 20 Minutes
Strike section 761 and insert the following:
SEC. 761. HUMAN RESOURCES MANAGEMENT.
(a) Authority To Adjust Pay Schedules.--
(1) In general.--Notwithstanding any provision of
title 5, United States Code, the Secretary may, under
regulations prescribed jointly with the Director of the
Office of Personnel Management, provide for such
adjustments in rates of basic pay as may be necessary
to address inequitable pay disparities among employees
within the Department performing similar work in
similar circumstances.
(2) Applicability.--No authority under paragraph (1)
may be exercised with respect to any employee who
serves in--
(A) an Executive Schedule position under
subchapter II of chapter 53 of title 5, United
States Code; or
(B) a position for which the rate of basic
pay is fixed in statute by reference to a
section or level under subchapter II of chapter
53 of such title 5.
(3) Limitations.--Nothing in this subsection shall
constitute authority--
(A) to fix pay at a rate greater than the
maximum amount of cash compensation allowable
under section 5307 of title 5, United States
Code, in a year; or
(B) to exempt any employee from the
application of such section 5307.
(4) Sunset provision.--Effective 5 years after the
effective date of this Act, all authority to issue
regulations under this subsection (including
regulations which would modify, supersede, or terminate
any regulations previously issued under this
subsection) shall cease to be available.
(b) Suspension and Removal of Employees in the Interests of
National Security.--The Secretary shall establish procedures
consistent with section 7532 of title 5, United States Code, to
provide for the suspension and removal of employees of the
Department when necessary in the interests of national security
or homeland security. Such regulations shall provide for
written notice, hearings, and review similar to that provided
by such section 7532.
(c) Demonstration Project.--
(1) In general.--Not later than 5 years after the
effective date of this Act, the Secretary shall submit
to Congress a proposal for a demonstration project, the
purpose of which shall be to help attain a human
resources management system which in the judgment of
the Secretary is necessary in order to enable the
Department best to carry out its mission.
(2) Requirements.--The proposal shall--
(A) ensure that veterans' preference and
whistleblower protection rights are retained;
(B) ensure that existing collective
bargaining agreements and rights under chapter
71 of title 5, United States Code, remain
unaffected;
(C) ensure the availability of such measures
as may be necessary in order to allow the
Department to recruit and retain the best
persons possible to carry out its mission;
(D) include one or more performance appraisal
systems which shall--
(i) provide for periodic appraisals
of the performance of covered
employees;
(ii) provide for meaningful
participation of covered employees in
the establishment of employee
performance plans; and
(iii) use the results of performance
appraisals as a basis for rewarding,
reducing in grade, retaining, and
removing covered employees; and
(E) contain recommendations for such
legislation or other actions by Congress as the
Secretary considers necessary.
(3) Definition of a covered employee.--For purposes
of paragraph (2)(D), the term ``covered employee''
means a supervisor or management official (as defined
in paragraphs (10) and (11) of section 7103(a) of title
5, United States Code, respectively) who occupies a
position within the Department which is in the General
Schedule.
(d) Merit System Principles.--All authorities under
subsections (a) and (b) shall be exercised in a manner, and all
personnel management flexibilities or authorities proposed
under subsection (c) shall be, consistent with merit system
principles under section 2301 of title 5, United States Code.
(e) Remedies for Retaliation Against Whistleblowers.--
Section 7211 of title 5, United States Code, is amended--
(1) by inserting ``(a)'' before ``The right''; and
(2) by adding at the end the following:
``(b) Any employee aggrieved by a violation of subsection (a)
may bring a civil action in the appropriate United States
district court, within 3 years after the date on which such
violation occurs, against any agency, organization, or other
person responsible for the violation, for lost wages and
benefits, reinstatement, costs and attorney fees, compensatory
damages, and equitable, injunctive, or any other relief that
the court considers appropriate. Any such action shall, upon
request of the party bringing the action, be tried by the court
with a jury.
``(c) The same legal burdens of proof in proceedings under
subsection (b) shall apply as under sections 1214(b)(4)(B) and
1221(e) in the case of an alleged prohibited personnel practice
described in section 2302(b)(8).
``(d) For purposes of this section, the term `employee' means
an employee (as defined by section 2105) and any individual
performing services under a personal services contract with the
Government (including as an employee of an organization).''.
(f) Nonreduction in Pay.--Nothing in this section shall, with
respect to any employee who is transferred to the Department
pursuant to this Act, constitute authority to reduce the rate
of basic pay (including any comparability pay) payable to such
employee below the rate last payable to such employee before
the date on which such employee is so transferred.
In section 812(e)(1), strike ``Act; and'' and insert the
following: ``Act, except that the rules, procedures, terms, and
conditions relating to employment in the Transportation
Security Administration before the effective date of this Act
may be applied only to the personnel employed by or carrying
out the functions of the Transportation Security
Administration.''.
In section 812(e)(2), strike ``except'' and insert
``Except''.
----------
21. An Amendment To Be Offered by Representative Armey of Texas, or His
Designee, Debatable for 40 Minutes
Page 13, line 20, strike ``The Secretary'' and insert ``With
respect to homeland security, the Secretary''.
Page 22, line 13, strike ``Under the direction of the
Secretary, developing'' and insert ``Developing''.
Page 24, lines 10 to 11, strike ``and to other areas of
responsibility described in section 101(b)''.
Page 25, lines 9 to 10, strike ``and to other areas of
responsibility described in section 101(b)''.
Page 24, line 12, strike ``concerning infrastructure or other
vulnerabilities'' and insert ``concerning infrastructure
vulnerabilities or other vulnerabilities''.
Page 25, lines 11 to 12, strike ``concerning infrastructure
or other vulnerabilities'' and insert ``concerning
infrastructure vulnerabilities or other vulnerabilities''.
Page 28, line 14, strike ``(1) and (2)'' and insert ``(2) and
(3)''.
Page 19, line 16, strike ``Director of Homeland Security''
and insert ``President''.
Page 43, line 11, strike ``the Congress'' and insert ``the
appropriate congressional committees''.
Page 142, line 2, insert ``including'' before
``interventions''.
Page 142, line 4, insert a comma after ``asters''.
In section 811(f)(1)--
(1) insert ``or'' before ``Harbor''; and
(2) strike ``or Oil Spill Liability Trust Fund''.
In section 205(1), strike ``information'' the first place it
appears.
In section 205(3) insert ``and regulatory'' after
``legislative''.
In section 302, strike paragraph (1) and redesignate the
subsequent paragraphs in order as paragraphs (1) and (2).
In section 305(d), strike ``section 302(2)(D)'' and insert
``302(1)(D)''.
Strike section 906, and redesignate sections 907 through 913
as sections 906 through 912, respectively.
In section 301--
(1) in paragraph (8), strike ``homeland security,
including'' and all that follows and insert ``homeland
security; and'';
(2) strike paragraph (9); and
(3) redesignate paragraph (10) as paragraph (9).
In title III, add at the end the following section:
SEC. 309. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT INNOVATIVE
SOLUTIONS TO ENHANCE HOMELAND SECURITY.
(a) Establishment of Program.--The Secretary, acting through
the Under Secretary for Science and Technology, shall establish
and promote a program to encourage technological innovation in
facilitating the mission of the Department (as described in
section 101).
(b) Elements of Program.--The program described in subsection
(a) shall include the following components:
(1) The establishment of a centralized Federal
clearinghouse for information relating to technologies
that would further the mission of the Department for
dissemination, as appropriate, to Federal, State, and
local government and private sector entities for
additional review, purchase, or use.
(2) The issuance of announcements seeking unique and
innovative technologies to advance the mission of the
Department.
(3) The establishment of a technical assistance team
to assist in screening, as appropriate, proposals
submitted to the Secretary (except as provided in
subsection (c)(2)) to assess the feasibility,
scientific and technical merits, and estimated cost of
such proposals, as appropriate.
(4) The provision of guidance, recommendations, and
technical assistance, as appropriate, to assist
Federal, State, and local government and private sector
efforts to evaluate and implement the use of
technologies described in paragraph (1) or (2).
(5) The provision of information for persons seeking
guidance on how to pursue proposals to develop or
deploy technologies that would enhance homeland
security, including information relating to Federal
funding, regulation, or acquisition.
(c) Miscellaneous Provisions.--
(1) In general.--Nothing in this section shall be
construed as authorizing the Secretary or the technical
assistance team established under subsection (b)(3) to
set standards for technology to be used by the
Department, any other executive agency, any State or
local government entity, or any private sector entity.
(2) Certain proposals.--The technical assistance team
established under subsection (b)(3) shall not consider
or evaluate proposals submitted in response to a
solicitation for offers for a pending procurement or
for a specific agency requirement.
(3) Coordination.--In carrying out this section, the
Secretary shall coordinate with the Technical Support
Working Group (organized under the April 1982 National
Security Decision Directive Numbered 30).
In title II, at the end of subtitle A add the following:
SEC. . ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.
In carrying out the responsibilities under section 201, the
Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to State and local
government entities, and upon request to private
entitites that own or operate critical information
systems--
(A) analysis and warnings related to threats
to, and vulnerabilities of, critical
information systems; and
(B) in coordination with the Under Secretary
for Emergency Preparedness and Response, crisis
management support in response to threats to,
or attacks on, critical information systems;
and
(2) as appropriate, provide technical assistance,
upon request, to the private sector and other
government entities, in coordination with the Under
Secretary for Emergency Preparedness and Response, with
respect to emergency recovery plans to respond to major
failures of critical information systems.
At the end of title II add the following:
SEC. . NET GUARD.
The Under Secretary for Information Analysis and
Infrastructure Protection may establish a national technology
guard, to be known as ``NET Guard'', comprised of local teams
of volunteers with expertise in relevant areas of science and
technology, to assist local communities to respond and recover
from attacks on information systems and communications
networks.
Strike section 814.
In section 761--
(1) in the proposed section 9701(b)(3)(D) strike
``title'' and insert ``part''; and
(2) in the proposed section 9701(c), strike ``title''
and insert ``part''.
At the end of title VII, insert the following new section:
SEC. 774. SENSE OF CONGRESS REAFFIRMING THE CONTINUED IMPORTANCE AND
APPLICABILITY OF THE POSSE COMITATUS ACT.
(a) Findings.--The Congress finds the following:
(1) Section 1385 of title 18, United States Code
(commonly known as the ``Posse Comitatus Act''),
prohibits the use of the Armed Forces as a posse
comitatus to execute the laws except in cases and under
circumstances expressly authorized by the Constitution
or Act of Congress.
(2) Enacted in 1878, the Posse Comitatus Act was
expressly intended to prevent United States Marshals,
on their own initiative, from calling on the Army for
assistance in enforcing Federal law.
(3) The Posse Comitatus Act has served the Nation
well in limiting the use of the Armed Forces to enforce
the law.
(4) Nevertheless, by its express terms, the Posse
Comitatus Act is not a complete barrier to the use of
the Armed Forces for a range of domestic purposes,
including law enforcement functions, when the use of
the Armed Forces is authorized by Act of Congress or
the President determines that the use of the Armed
Forces is required to fulfill the President's
obligations under the Constitution to respond promptly
in time of war, insurrection, or other serious
emergency.
(5) Existing laws, including chapter 15 of title 10,
United States Code (commonly known as the
``Insurrection Act''), and the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C.
5121 et seq.), grant the President broad powers that
may be invoked in the event of domestic emergencies,
including an attack against the Nation using weapons of
mass destruction, and these laws specifically authorize
the President to use the Armed Forces to help restore
public order.
(b) Sense of Congress.--The Congress reaffirms the continued
importance of section 1385 of title 18, United States Code, and
it is the sense of the Congress that nothing in this Act should
be construed to alter the applicability of such section to any
use of the Armed Forces as a posse comitatus to execute the
laws.
Amend the heading for section 766 to read as follows:
SEC. 766. REGULATORY AUTHORITY AND PREEMPTION.
In section 766--
(1) before the first sentence insert the following:
``(a) ``Regulatory Authority.--''; and
(2) at the end of the section add the following:
(b) Preemption of State or Local Law.--Except as otherwise
provided in this Act, this Act preempts no State or local law,
except that any authority to preempt State or local law vested
in any Federal agency or official transferred to the Department
pursuant to this Act shall be transferred to the Department
effective on the date of the transfer to the Department of that
Federal agency or official.
Page 31, after line 5, insert the following:
SEC. 207. INFORMATION SECURITY.
In carrying out the responsibilities under section 201, the
Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to State and local
government entities, and, upon request, to private
entities that own or operate critical information
systems--
(A) analysis and warnings related to threats
to, and vulnerabilities of, critical
information systems; and
(B) in coordination with the Under Secretary
for Emergency Preparedness and Response, crisis
management support in response to threats to,
or attacks on, critical information systems;
and
(2) as appropriate, provide technical assistance,
upon request, to the private sector and with other
government entities, in coordination with the Under
Secretary for Emergency Preparedness and Response, with
respect to emergency recovery plans to respond to major
failures of critical information systems.
At the end of the bill add the following new title:
TITLE XI--INFORMATION SECURITY
SEC. 1101. INFORMATION SECURITY.
(a) Short Title.--The amendments made by this title may be
cited as the ``Federal Information Security Management Act of
2002''.
(b) Information Security.--
(1) In general.--Subchapter II of chapter 35 of title
44, United States Code, is amended to read as follows:
``SUBCHAPTER II--INFORMATION SECURITY
``Sec. 3531. Purposes
``The purposes of this subchapter are to--
``(1) provide a comprehensive framework for ensuring
the effectiveness of information security controls over
information resources that support Federal operations
and assets;
``(2) recognize the highly networked nature of the
current Federal computing environment and provide
effective governmentwide management and oversight of
the related information security risks, including
coordination of information security efforts throughout
the civilian, national security, and law enforcement
communities;
``(3) provide for development and maintenance of
minimum controls required to protect Federal
information and information systems;
``(4) provide a mechanism for improved oversight of
Federal agency information security programs;
``(5) acknowledge that commercially developed
information security products offer advanced, dynamic,
robust, and effective information security solutions,
reflecting market solutions for the protection of
critical information infrastructures important to the
national defense and economic security of the nation
that are designed, built, and operated by the private
sector; and
``(6) recognize that the selection of specific
technical hardware and software information security
solutions should be left to individual agencies from
among commercially developed products.''.
``Sec. 3532. Definitions
``(a) In General.--Except as provided under subsection (b),
the definitions under section 3502 shall apply to this
subchapter.
``(b) Additional Definitions.--As used in this subchapter--
``(1) the term `information security' means
protecting information and information systems from
unauthorized access, use, disclosure, disruption,
modification, or destruction in order to provide--
``(A) integrity, which means guarding against
improper information modification or
destruction, and includes ensuring information
nonrepudiation and authenticity;
``(B) confidentiality, which means preserving
authorized restrictions on access and
disclosure, including means for protecting
personal privacy and proprietary information;
``(C) availability, which means ensuring
timely and reliable access to and use of
information; and
``(D) authentication, which means utilizing
digital credentials to assure the identity of
users and validate their access;
``(2) the term `national security system' means any
information system (including any telecommunications
system) used or operated by an agency or by a
contractor of an agency, or other organization on
behalf of an agency, the function, operation, or use of
which--
``(A) involves intelligence activities;
``(B) involves cryptologic activities related
to national security;
``(C) involves command and control of
military forces;
``(D) involves equipment that is an integral
part of a weapon or weapons system; or
``(E) is critical to the direct fulfillment
of military or intelligence missions provided
that this definition does not apply to a system
that is used for routine administrative and
business applications (including payroll,
finance, logistics, and personnel management
applications);
``(3) the term `information technology' has the
meaning given that term in section 5002 of the Clinger-
Cohen Act of 1996 (40 U.S.C. 1401); and
``(4) the term `information system' means any
equipment or interconnected system or subsystems of
equipment that is used in the automatic acquisition,
storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or
reception of data or information, and includes--
``(A) computers and computer networks;
``(B) ancillary equipment;
``(C) software, firmware, and related
procedures;
``(D) services, including support services;
and
``(E) related resources.''.
``Sec. 3533. Authority and functions of the Director
``(a) The Director shall oversee agency information security
policies and practices, by--
``(1) promulgating information security standards
under section 5131 of the Clinger-Cohen Act of 1996 (40
U.S.C. 1441);
``(2) overseeing the implementation of policies,
principles, standards, and guidelines on information
security;
``(3) requiring agencies, consistent with the
standards promulgated under such section 5131 and the
requirements of this subchapter, to identify and
provide information security protections commensurate
with the risk and magnitude of the harm resulting from
the unauthorized access, use, disclosure, disruption,
modification, or destruction of--
``(A) information collected or maintained by
or on behalf of an agency; or
``(B) information systems used or operated by
an agency or by a contractor of an agency or
other organization on behalf of an agency;
``(4) coordinating the development of standards and
guidelines under section 20 of the National Institute
of Standards and Technology Act (15 U.S.C. 278g-3) with
agencies and offices operating or exercising control of
national security systems (including the National
Security Agency) to assure, to the maximum extent
feasible, that such standards and guidelines are
complementary with standards and guidelines developed
for national security systems;
``(5) overseeing agency compliance with the
requirements of this subchapter, including through any
authorized action under section 5113(b)(5) of the
Clinger-Cohen Act of 1996 (40 U.S.C. 1413(b)(5)) to
enforce accountability for compliance with such
requirements;
``(6) reviewing at least annually, and approving or
disapproving, agency information security programs
required under section 3534(b);
``(7) coordinating information security policies and
procedures with related information resources
management policies and procedures; and
``(8) reporting to Congress no later than March 1 of
each year on agency compliance with the requirements of
this subchapter, including--
``(A) a summary of the findings of
evaluations required by section 3535;
``(B) significant deficiencies in agency
information security practices;
``(C) planned remedial action to address such
deficiencies; and
``(D) a summary of, and the views of the
Director on, the report prepared by the
National Institute of Standards and Technology
under section 20(e)(7) of the National
Institute of Standards and Technology Act (15
U.S.C. 278g-3).''.
``(b) Except for the authorities described in paragraphs (4)
and (7) of subsection (a), the authorities of the Director
under this section shall not apply to national security
systems.
``Sec. 3534. Federal agency responsibilities
``(a) The head of each agency shall--
``(1) be responsible for--
``(A) providing information security
protections commensurate with the risk and
magnitude of the harm resulting from
unauthorized access, use, disclosure,
disruption, modification, or destruction of--
``(i) information collected or
maintained by or on behalf of the
agency; and
``(ii) information systems used or
operated by an agency or by a
contractor of an agency or other
organization on behalf of an agency;
``(B) complying with the requirements of this
subchapter and related policies, procedures,
standards, and guidelines, including--
``(i) information security standards
promulgated by the Director under
section 5131 of the Clinger-Cohen Act
of 1996 (40 U.S.C. 1441); and
``(ii) information security standards
and guidelines for national security
systems issued in accordance with law
and as directed by the President; and
``(C) ensuring that information security
management processes are integrated with agency
strategic and operational planning processes;
``(2) ensure that senior agency officials provide
information security for the information and
information systems that support the operations and
assets under their control, including through--
``(A) assessing the risk and magnitude of the
harm that could result from the unauthorized
access, use, disclosure, disruption,
modification, or destruction of such
information or information systems;
``(B) determining the levels of information
security appropriate to protect such
information and information systems in
accordance with standards promulgated under
section 5131 of the Clinger-Cohen Act of 1996
(40 U.S.C. 1441) for information security
classifications and related requirements;
``(C) implementing policies and procedures to
cost-effectively reduce risks to an acceptable
level; and
``(D) periodically testing and evaluating
information security controls and techniques to
ensure that they are effectively implemented;
``(3) delegate to the agency Chief Information
Officer established under section 3506 (or comparable
official in an agency not covered by such section) the
authority to ensure compliance with the requirements
imposed on the agency under this subchapter,
including--
``(A) designating a senior agency information
security officer who shall--
``(i) carry out the Chief Information
Officer's responsibilities under this
section;
``(ii) possess professional
qualifications, including training and
experience, required to administer the
functions described under this section;
``(iii) have information security
duties as that official's primary duty;
and
``(iv) head an office with the
mission and resources to assist in
ensuring agency compliance with this
section;
``(B) developing and maintaining an
agencywide information security program as
required by subsection (b);
``(C) developing and maintaining information
security policies, procedures, and control
techniques to address all applicable
requirements, including those issued under
section 3533 of this title, and section 5131 of
the Clinger-Cohen Act of 1996 (40 U.S.C. 1441);
``(D) training and overseeing personnel with
significant responsibilities for information
security with respect to such responsibilities;
and
``(E) assisting senior agency officials
concerning their responsibilities under
subparagraph (2);
``(4) ensure that the agency has trained personnel
sufficient to assist the agency in complying with the
requirements of this subchapter and related policies,
procedures, standards, and guidelines; and
``(5) ensure that the agency Chief Information
Officer, in coordination with other senior agency
officials, reports annually to the agency head on the
effectiveness of the agency information security
program, including progress of remedial actions.
``(b) Each agency shall develop, document, and implement an
agencywide information security program, approved by the
Director under section 3533(a)(5), to provide information
security for the information and information systems that
support the operations and assets of the agency, including
those provided or managed by another agency, contractor, or
other source, that includes--
``(1) periodic assessments of the risk and magnitude
of the harm that could result from the unauthorized
access, use, disclosure, disruption, modification, or
destruction of information and information systems that
support the operations and assets of the agency;
``(2) policies and procedures that--
``(A) are based on the risk assessments
required by subparagraph (1);
``(B) cost-effectively reduce information
security risks to an acceptable level;
``(C) ensure that information security is
addressed throughout the life cycle of each
agency information system; and
``(D) ensure compliance with--
``(i) the requirements of this
subchapter;
``(ii) policies and procedures as may
be prescribed by the Director, and
information security standards
promulgated under section 5131 of the
Clinger-Cohen Act of 1996 (40 U.S.C.
1441);
``(iii) minimally acceptable system
configuration requirements, as
determined by the agency; and
``(iv) any other applicable
requirements, including standards and
guidelines for national security
systems issued in accordance with law
and as directed by the President;
``(3) subordinate plans for providing adequate
information security for networks, facilities, and
systems or groups of information systems, as
appropriate;
``(4) security awareness training to inform
personnel, including contractors and other users of
information systems that support the operations and
assets of the agency, of--
``(A) information security risks associated
with their activities; and
``(B) their responsibilities in complying
with agency policies and procedures designed to
reduce these risks;
``(5) periodic testing and evaluation of the
effectiveness of information security policies,
procedures, and practices, to be performed with a
frequency depending on risk, but no less than annually,
of which such testing--
``(A) shall include testing of management,
operational, and technical controls of every
information system identified in the inventory
required under section 3505(c); and
``(B) may include testing relied on in a
evaluation under section 3535;
``(6) a process for planning, implementing,
evaluating, and documenting remedial action to address
any deficiencies in the information security policies,
procedures, and practices of the agency;
``(7) procedures for detecting, reporting, and
responding to security incidents, including--
``(A) mitigating risks associated with such
incidents before substantial damage is done;
and
``(B) notifying and consulting with, as
appropriate--
``(i) law enforcement agencies and
relevant Offices of Inspector General;
``(ii) an office designated by the
President for any incident involving a
national security system; and
``(iii) any other agency or office,
in accordance with law or as directed
by the President; and
``(8) plans and procedures to ensure continuity of
operations for information systems that support the
operations and assets of the agency.
``(c) Each agency shall--
``(1) report annually to the Director, the Committees
on Government Reform and Science of the House of
Representatives, the Committees on Governmental Affairs
and Commerce, Science, and Transportation of the
Senate, the appropriate authorization and
appropriations committees of Congress, and the
Comptroller General on the adequacy and effectiveness
of information security policies, procedures, and
practices, and compliance with the requirements of this
subchapter, including compliance with each requirement
of subsection (b);
``(2) address the adequacy and effectiveness of
information security policies, procedures, and
practices in plans and reports relating to--
``(A) annual agency budgets;
``(B) information resources management under
subchapter 1 of this chapter;
``(C) information technology management under
the Clinger-Cohen Act of 1996 (40 U.S.C. 1401
et seq.);
``(D) program performance under sections 1105
and 1115 through 1119 of title 31, and sections
2801 and 2805 of title 39;
``(E) financial management under chapter 9 of
title 31, and the Chief Financial OfficersAct
of 1990 (31 U.S.C. 501 note; Public Law 101-576) (and the amendments
made by that Act);
``(F) financial management systems under the
Federal Financial Management Improvement Act
(31 U.S.C. 3512 note); and
``(G) internal accounting and administrative
controls under section 3512 of title 31, United
States Code, (known as the `Federal Managers
Financial Integrity Act'); and
``(3) report any significant deficiency in a policy,
procedure, or practice identified under paragraph (1)
or (2)--
``(A) as a material weakness in reporting
under section 3512 of title 31, United States
Code; and
``(B) if relating to financial management
systems, as an instance of a lack of
substantial compliance under the Federal
Financial Management Improvement Act (31 U.S.C.
3512 note).
``(d)(1) In addition to the requirements of subsection (c),
each agency, in consultation with the Director, shall include
as part of the performance plan required under section 1115 of
title 31 a description of--
``(A) the time periods, and
``(B) the resources, including budget, staffing, and
training,
that are necessary to implement the program required under
subsection (b).
``(2) The description under paragraph (1) shall be based on
the risk assessments required under subsection (b)(2)(1).
``(e) Each agency shall provide the public with timely notice
and opportunities for comment on proposed information security
policies and procedures to the extent that such policies and
procedures affect communication with the public.
``Sec. 3535. Annual independent evaluation
``(a)(1) Each year each agency shall have performed an
independent evaluation of the information security program and
practices of that agency to determine the effectiveness of such
program and practices.
``(2) Each evaluation by an agency under this section shall
include--
``(A) testing of the effectiveness of information
security policies, procedures, and practices of a
representative subset of the agency's information
systems;
``(B) an assessment (made on the basis of the results
of the testing) of compliance with--
``(i) the requirements of this subchapter;
and
``(ii) related information security policies,
procedures, standards, and guidelines; and
``(C) separate presentations, as appropriate,
regarding information security relating to national
security systems.
``(b) Subject to subsection (c)--
``(1) for each agency with an Inspector General
appointed under the Inspector General Act of 1978, the
annual evaluation required by this section shall be
performed by the Inspector General or by an independent
external auditor, as determined by the Inspector
General of the agency; and
``(2) for each agency to which paragraph (1) does not
apply, the head of the agency shall engage an
independent external auditor to perform the evaluation.
``(c) For each agency operating or exercising control of a
national security system, that portion of the evaluation
required by this section directly relating to a national
security system shall be performed--
``(1) only by an entity designated by the agency
head; and
``(2) in such a manner as to ensure appropriate
protection for information associated with any
information security vulnerability in such system
commensurate with the risk and in accordance with all
applicable laws.
``(d) The evaluation required by this section--
``(1) shall be performed in accordance with generally
accepted government auditing standards; and
``(2) may be based in whole or in part on an audit,
evaluation, or report relating to programs or practices
of the applicable agency.
``(e) Each year, not later than such date established by the
Director, the head of each agency shall submit to the Director
the results of the evaluation required under this section.
``(f) Agencies and evaluators shall take appropriate steps to
ensure the protection of information which, if disclosed, may
adversely affect information security. Such protections shall
be commensurate with the risk and comply with all applicable
laws and regulations.
``(g)(1) The Director shall summarize the results of the
evaluations conducted under this section in the report to
Congress required under section 3533(a)(8).
``(2) The Director's report to Congress under this subsection
shall summarize information regarding information security
relating to national security systems in such a manner as to
ensure appropriate protection for information associated with
any information security vulnerability in such system
commensurate with the risk and in accordance with all
applicable laws.
``(3) Evaluations and any other descriptions of information
systems under the authority and control of the Director of
Central Intelligence or of National Foreign Intelligence
Programs systems under the authority and control of the
Secretary of Defense shall be made available to Congress only
through the appropriate oversight committees of Congress, in
accordance with applicable laws.
``(h) The Comptroller General shall periodically evaluate and
report to Congress on--
``(1) the adequacy and effectiveness of agency
information security policies and practices; and
``(2) implementation of the requirements of this
subchapter.
``Sec. 3536. National security systems
``The head of each agency operating or exercising control of
a national security system shall be responsible for ensuring
that the agency--
``(1) provides information security protections
commensurate with the risk and magnitude of the harm
resulting from the unauthorized access, use,
disclosure, disruption, modification, or destruction of
the information contained in such system;
``(2) implements information security policies and
practices as required by standards and guidelines for
national security systems, issued in accordance with
law and as directed by the President; and
``(3) complies with the requirements of this
subchapter.
``Sec. 3537. Authorization of appropriations
``There are authorized to be appropriated to carry out the
provisions of this subchapter such sums as may be necessary for
each of fiscal years 2003 through 2007.
``Sec. 3538. Effect on existing law
``Nothing in this subchapter, section 5131 of the Clinger-
Cohen Act of 1996 (40 U.S.C. 1441), or section 20 of the
National Standards and Technology Act (15 U.S.C. 278g-3) may be
construed as affecting the authority of the President, the
Office of Management and Budget or the Director thereof, the
National Institute of Standards and Technology, or the head of
any agency, with respect to the authorized use or disclosure of
information, including with regard to the protection of
personal privacy under section 552a of title 5, the disclosure
of information under section 552 of title 5, the management and
disposition of records under chapters 29, 31, or 33 of title
44, the management of information resources under subchapter I
of chapter 35 of this title, or the disclosure of information
to the Congress or the Comptroller General of the United
States.''.
(2) Clerical amendment.--The items in the table of
sections at the beginning of such chapter 35 under the
heading ``SUBCHAPTER II'' are amended to read as
follows:
``3531. Purposes.
``3532. Definitions.
``3533. Authority and functions of the Director.
``3534. Federal agency responsibilities.
``3535. Annual independent evaluation.
``3536. National security systems.
``3537. Authorization of appropriations.
``3538. Effect on existing law.''.
(c) Information Security Responsibilities of Certain
Agencies.--
(1) National security responsibilities.--(A) Nothing
in this Act (including any amendment made by this Act)
shall supersede any authority of the Secretary of
Defense, the Director of Central Intelligence, or other
agency head, as authorized by law and as directed by
the President, with regard to the operation, control,
or management of national security systems, as defined
by section 3532(3) of title 44, United States Code.
(B) Section 2224 of title 10, United States Code, is
amended--
(i) in subsection 2224(b), by striking ``(b)
Objectives and Minimum Requirements.--(1)'' and
inserting ``(b) Objectives of the Program.--'';
(ii) in subsection 2224(b), by striking ``(2)
the program shall at a minimum meet the
requirements of section 3534 and 3535 of title
44, United States Code.''; and
(iii) in subsection 2224(c), by inserting ``,
including through compliance with subtitle II
of chapter 35 of title 44'' after
``infrastructure''.
(2) Atomic energy act of 1954.--Nothing in this Act
shall supersede any requirement made by or under the
Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
Restricted Data or Formerly Restricted Data shall be
handled, protected, classified, downgraded, and
declassified in conformity with the Atomic Energy Act
of 1954 (42 U.S.C. 2011 et seq.).
SEC. 1102. MANAGEMENT OF INFORMATION TECHNOLOGY.
Section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441) is amended to read as follows:
``SEC. 5131. RESPONSIBILITIES FOR FEDERAL INFORMATION SYSTEMS
STANDARDS.
``(a)(1)(A) Except as provided under paragraph (2), the
Director of the Office of Management and Budget shall, on the
basis of proposed standards developed by the National Institute
of Standards and Technology pursuant to paragraphs (2) and (3)
of section 20(a) of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-3(a)) and in consultation with
the Secretary of Homeland Security, promulgate information
security standards pertaining to Federal information systems.
``(B) Standards promulgated under subparagraph (A) shall
include--
``(i) standards that provide minimum information
security requirements as determined under section 20(b)
of the National Institute of Standards and Technology
Act (15 U.S.C. 278g-3(b)); and
``(ii) such standards that are otherwise necessary to
improve the efficiency of operation or security of
Federal information systems.
``(C) Information security standards described under
subparagraph (B) shall be compulsory and binding.
``(2) Standards and guidelines for national security systems,
as defined under section 3532(3) of title 44, United States
Code, shall be developed, promulgated, enforced, and overseen
as otherwise authorized by law and as directed by the
President.
``(b) The head of an agency may employ standards for the
cost-effective information security for all operations and
assets within or under the supervision of that agency that are
more stringent than the standards promulgated by the Director
under this section, if such standards--
``(1) contain, at a minimum, the provisions of those
applicable standards made compulsory and binding by the
Director; and
``(2) are otherwise consistent with policies and
guidelines issued under section 3533 of title 44,
United States Code.
``(c)(1) The decision regarding the promulgation of any
standard by the Director under subsection (a) shall occur not
later than 6 months after the submission of the proposed
standard to the Director by the National Institute of Standards
and Technology, as provided under section 20 of the National
Institute of Standards and Technology Act (15 U.S.C. 278g-3).
``(2) A decision by the Director to significantly modify, or
not promulgate, a proposed standard submitted to the Director
by the National Institute of Standards and Technology, as
provided under section 20 of the National Institute of
Standards and Technology Act (15 U.S.C. 278g-3), shall be made
after the public is given an opportunity to comment on the
Director's proposed decision.''.
``(d) In this section, the term `information security' has
the meaning given that term in section 3532(b)(1) of title 44,
United States Code.''.
SEC. 1103. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.
Section 20 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-3), is amended by striking the
text and inserting the following:
``(a) The Institute shall--
``(1) have the mission of developing standards,
guidelines, and associated methods and techniques for
information systems;
``(2) develop standards and guidelines, including
minimum requirements, for information systems used or
operated by an agency or by a contractor of an agency
or other organization on behalf of an agency, other
than national security systems (as defined in section
3532(b)(2) of title 44, United States Code);
``(3) develop standards and guidelines, including
minimum requirements, for providing adequate
information security for all agency operations and
assets, but such standards and guidelines shall not
apply to national security systems; and
``(4) carry out the responsibilities described in
paragraph (3) through the Computer Security Division.
``(b) The standards and guidelines required by subsection (a)
shall include, at a minimum--
``(1)(A) standards to be used by all agencies to
categorize all information and information systems
collected or maintained by or on behalf of each agency
based on the objectives of providing appropriate levels
of information security according to a range of risk
levels;
``(B) guidelines recommending the types of
information and information systems to be included in
each such category; and
``(C) minimum information security requirements for
information and information systems in each such
category;
``(2) a definition of and guidelines concerning
detection and handling of information security
incidents; and
``(3) guidelines developed in coordination with the
National Security Agency for identifying an information
system as a national security system consistent with
applicable requirements for national security systems,
issued in accordance with law and as directed by the
President.
``(c) In developing standards and guidelines required by
subsections (a) and (b), the Institute shall--
``(1) consult with other agencies and offices
(including, but not limited to, the Director of the
Office of Management and Budget, the Departments of
Defense and Energy, the National Security Agency, the
General Accounting Office, and the Secretary of
Homeland Security) to assure--
``(A) use of appropriate information security
policies, procedures, and techniques, in order
to improve information security and avoid
unnecessary and costly duplication of effort;
and
``(B) that such standards and guidelines are
complementary with standards and guidelines
employed for the protection of national
security systems and information contained in
such systems;
``(2) provide the public with an opportunity to
comment on proposed standards and guidelines;
``(3) submit to the Director of the Office of
Management and Budget for promulgation under section
5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441)--
``(A) standards, as required under subsection
(b)(1)(A), no later than 12 months after the
date of the enactment of this section; and
``(B) minimum information security
requirements for each category, as required
under subsection (b)(1)(C), no later than 36
months after the date of the enactment of this
section;
``(4) issue guidelines as required under subsection
(b)(1)(B), no later than 18 months after the date of
the enactment of this Act;
``(5) ensure that such standards and guidelines do
not require specific technological solutions or
products, including any specific hardware or software
security solutions;
``(6) ensure that such standards and guidelines
provide for sufficient flexibility to permit
alternative solutions to provide equivalent levels of
protection for identified information security risks;
and
``(7) use flexible, performance-based standards and
guidelines that, to the greatest extent possible,
permit the use of off-the-shelf commercially developed
information security products.''
``(d) The Institute shall--
``(1) submit standards developed pursuant to
subsection (a), along with recommendations as to the
extent to which these should be made compulsory and
binding, to the Director of the Office of Management
and Budget for promulgation under section 5131 of the
Clinger-Cohen Act of 1996 (40 U.S.C. 1441);
``(2) provide assistance to agencies regarding--
``(A) compliance with the standards and
guidelines developed under subsection (a);
``(B) detecting and handling information
security incidents; and
``(C) information security policies,
procedures, and practices;
``(3) conduct research, as needed, to determine the
nature and extent of information security
vulnerabilities and techniques for providing cost-
effective information security;
``(4) develop and periodically revise performance
indicators and measures for agency information security
policies and practices;
``(5) evaluate private sector information security
policies and practices and commercially available
information technologies to assess potential
application by agencies to strengthen information
security;
``(6) evaluate security policies and practices
developed for national security systems to assess
potential application by agencies to strengthen
information security;
``(7) periodically assess the effectiveness of
standards and guidelines developed under this section
and undertake revisions as appropriate;
``(8) solicit and consider the recommendations of the
Information Security and Privacy Advisory Board,
established by section 21, regarding standards and
guidelines developed under subsection (a) and submit
such recommendations to the Director of the Office of
Management and Budget with such standards submitted to
the Director; and
``(9) prepare an annual public report on activities
undertaken in the previous year, and planned for the
coming year, to carry out responsibilities under this
section.
``(e) As used in this section--
``(1) the term `agency' has the same meaning as
provided in section 3502(1) of title 44, United States
Code;
``(2) the term `information security' has the same
meaning as provided in section 3532(1) of such title;
``(3) the term `information system' has the same
meaning as provided in section 3502(8) of such title;
``(4) the term `information technology' has the same
meaning as provided in section 5002 of the Clinger-
Cohen Act of 1996 (40 U.S.C. 1401); and
``(5) the term `national security system' has the
same meaning as provided in section 3532(b)(2) of such
title.''.
SEC. 1104. INFORMATION SECURITY AND PRIVACY ADVISORY BOARD.
Section 21 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-4), is amended--
(1) in subsection (a), by striking ``Computer System
Security and Privacy Advisory Board'' and inserting
``Information Security and Privacy Advisory Board'';
(2) in subsection (a)(1), by striking ``computer or
telecommunications'' and inserting ``information
technology'';
(3) in subsection (a)(2)--
(A) by striking ``computer or
telecommunications technology'' and inserting
``information technology''; and
(B) by striking ``computer or
telecommunications equipment'' and inserting
``information technology'';
(4) in subsection (a)(3)--
(A) by striking ``computer systems'' and
inserting ``information system''; and
(B) by striking ``computer systems security''
and inserting ``information security'';
(5) in subsection (b)(1) by striking ``computer
systems security'' and inserting ``information
security'';
(6) in subsection (b) by striking paragraph (2) and
inserting the following:
``(2) to advise the Institute and the Director of the
Office of Management and Budget on information security
and privacy issues pertaining to Federal Government
information systems, including through review of
proposed standards and guidelines developed under
section 20; and'';
(7) in subsection (b)(3) by inserting ``annually''
after ``report'';
(8) by inserting after subsection (e) the following
new subsection:
``(f) The Board shall hold meetings at such locations and at
such time and place as determined by a majority of the
Board.'';
(9) by redesignating subsections (f) and (g) as
subsections (g) and (h), respectively; and
(10) by striking subsection (h), as redesignated by
paragraph (9), and inserting the following:
``(h) As used in this section, the terms ``information
system'' and ``information technology'' have the meanings given
in section 20.''.
SEC. 1105. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Computer Security Act.--Sections 5 and 6 of the Computer
Security Act of 1987 (40 U.S.C. 1441 note) are repealed.
(b) Floyd D. Spence National Defense Authorization Act for
Fiscal Year 2001.--The Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (Public Law 106-398) is
amended by striking subtitle G of title X.
(c) Paperwork Reduction Act.--(1) Section 3504(g) of title
44, United States Code, is amended--
(A) by adding ``and'' at the end of paragraph (1);
(B) in paragraph (2)--
(i) by striking ``sections 5 and 6 of the
Computer Security Act of 1987 (40 U.S.C. 759
note)'' and inserting ``subchapter II of this
title''; and
(ii) by striking the semicolon and inserting
a period; and
(C) by striking paragraph (3).
(2) Section 3505 of such title is amended by adding at the
end--
``(c)(1) The head of each agency shall develop and maintain
an inventory of the information systems (including national
security systems) operated by or under the control of such
agency;
``(2) The identification of information systems in an
inventory under this subsection shall include an identification
of the interfaces between each such system and all other
systems or networks, including those not operated by or under
the control of the agency;
``(3) Such inventory shall be--
``(A) updated at least annually;
``(B) made available to the Comptroller General; and
``(C) used to support information resources
management, including--
``(i) preparation and maintenance of the
inventory of information resources under
section 3506(b)(4);
``(ii) information technology planning,
budgeting, acquisition, and management under
section 3506(h), the Clinger-Cohen Act of 1996,
and related laws and guidance;
``(iii) monitoring, testing, and evaluation
of information security controls under
subchapter II;
``(iv) preparation of the index of major
information systems required under section
552(g) of title 5, United States Code; and
``(v) preparation of information system
inventories required for records management
under chapters 21, 29, 31, and 33.
``(4) The Director shall issue guidance for and oversee the
implementation of the requirements of this subsection.''.
(3) Section 3506(g) of such title is amended--
(A) by adding ``and'' at the end of paragraph (1);
(B) in paragraph (2)--
(i) by striking ``the Computer Security Act
of 1987 (40 U.S.C. 759 note)'' and inserting
``subchapter II of this title''; and
(ii) by striking the semicolon and inserting
a period; and
(C) by striking paragraph (3).
SEC. 1106. CONSTRUCTION.
Nothing in this Act, or the amendments made by this Act,
affects the authority of the National Institute of Standards
and Technology or the Department of Commerce relating to the
development and promulgation of standards or guidelines under
paragraphs (1) and (2) of section 20(a) of the National
Institute of Standards and Technology Act (15 U.S.C. 278g-
3(a)).
In section 752(b)(1), strike ``and extensive''.
In section 752(b)(1), strike ``and'' and insert ``or''.
In section 752(b)(6), strike ``evaluation'' and insert
``Evaluation''.
At the end of section 752(b), insert:
(7) Anti-terrorism technology that would be effective
in facilitating the defense against acts of terrorism.
In section 753(d)(1), insert ``or other'' after
``liability''.
In section 753(d)(3), strike ``those products'' and insert
``anti-terrorism technology''.
In section 753(d)(3), strike ``product'' and insert ``anti-
terrorism technology''.
In section 754(a)(1), strike, ``to non-federal'' and insert
``to Federal and non-Federal''.
In section 754(a)(1), insert ``and certified by the
Secretary'' after ``section''.
In section 755(1), strike ``device, or technology designed,
developed, or modified'' and insert ``equipment, service
(including support services), device, or technology (including
information technology) designed, developed, modified, or
procured''.
Page 182, line 2, strike ``and'' and insert ``or''.
At the end of subtitle G of title VII of the bill, add the
following (and conform the table of contents of the bill
accordingly):
SEC. 774. AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT
AMENDMENTS.
The Air Transportation Safety and System Stabilization Act
(49 U.S.C. 40101 note) is amended--
(1) in section 408 by striking the last sentence of
subsection (c); and
(2) in section 402 by striking paragraph (1) and
inserting the following:
``(1) Air carrier.--The term `air carrier' means a
citizen of the United States undertaking by any means,
directly or indirectly, to provide air transportation
and includes employees and agents (including persons
engaged in the business of providing air transportation
security and their affiliates) of such citizen. For
purposes of the preceding sentence, the term `agent',
as applied to persons engaged in the business of
providing air transportation security, shall only
include persons that have contracted directly with the
Federal Aviation Administration on or after February
17, 2002, to provide such security, or are not
debarred.''.
Page 12, line 5, strike ``and''.
Page 12, line 9, strike the period and insert ``; and''.
Page 12, after line 9, insert the following:
(G) monitor connections between illegal drug
trafficking and terrorism, coordinate efforts
to sever such connections, and otherwise
contribute to efforts to interdict illegal drug
trafficking.
Page 195, line 16, after ``terrorism.'' insert: ``Such
official shall--
(1) ensure the adequacy of resources within the
Department for illicit drug interdiction; and
(2) serve as the United States Interdiction
Coordinator for the Director of National Drug Control
Policy.''.
In section 307(b)(1)--
(1) strike ``and'' at the end of subparagraph (A);
(2) redesignate subparagraph (B) as subparagraph (C);
and
(3) after subparagraph (A), insert the following new
subparagraph:
(B) ensure that the research funded is of high
quality, as determined through merit review processes
developed under section 301(10); and
In section 766 of the bill, insert ``sections 305(c) and
752(c) of'' after ``provided in''.
Add at the end of title V of the bill the following section:
SEC. 506. SENSE OF CONGRESS REGARDING FUNDING OF TRAUMA SYSTEMS.
It is the sense of the Congress that States should give
particular emphasis to developing and implementing the trauma
care and burn center care components of the State plans for the
provision of emergency medical services using funds authorized
through Public Law 107-188 for grants to improve State, local,
and hospital preparedness for and response to bioterrorism and
other public health emergencies.
----------
22. An Amendment To Be Offered by Representative Turner of Texas, or
His Designee, Debatable for 40 Minutes
Strike subtitle F of title VII and insert the following:
Subtitle F--Risk Sharing and Indemnification
SEC. 751. RISK SHARING AND INDEMNIFICATION.
(a) Definitions.--Section 4 of the Office of Federal
Procurement Policy Act (41 U.S.C. 403) is amended by adding at
the end the following new paragraphs:
``(16) The term `anti-terrorism technology and
services' means any product, equipment, service or
device, including information technology, system
integration and any other kind of services (including
support services) related to technology, designed,
developed, modified or procured for the purpose of
preventing, detecting, identifying, or otherwise
deterring acts of terrorism.
``(17) The term `act of terrorism,' means the
calculated attack or threat of attack against persons,
property or infrastructure to inculcate fear,
intimidate or coerce a government, the civilian
population, or any segment thereof, in the pursuit of
political, religious or ideological grounds.
``(18) The term `insurance carrier' means any
corporation, association, society, order, firm,
company, mutual, partnership, individual, aggregation
of individuals, or any other legal entity that provides
commercial property and casualty insurance. Such term
includes any affiliates of a commercial insurance
carrier.
``(19) The term `liability insurance' means insurance
for legal liabilities incurred by the insured resulting
from--
``(A) loss of or damage to property of
others;
``(B) ensuing loss of income or extra expense
incurred because of loss of or damage to
property of others;
``(C) bodily injury (including death) to
persons other than the insured or its
employees; or
``(D) loss resulting from debt or default of
another.
``(20) The term `homeland security procurement' means
any procurement of anti-terrorism technology and
services, as determined by the head of the agency,
procured for the purpose of preventing, detecting, or
otherwise deterring acts of terrorism.
``(21) The term `information technology'--
``(A) means any equipment or interconnected
system or subsystem of equipment that is used
in the automatic acquisition, storage,
manipulation, management, movement, control,
display, switching, interchange, transmission,
or reception of data or information;
``(B) includes computers, ancillary
equipment, software, firmware, and similar
procedures, services (including support
services), and related resources; and
``(C) does not include any equipment that is
acquired by a Federal contractor incidental to
a Federal contract.''.
(b) Federal Risk Sharing and Indemnification.--The Office of
Federal Procurement Policy Act is further amended by adding at
the end the following new sections:
``SEC. 40. FEDERAL RISK SHARING AND INDEMNIFICATION.
``(a) When conducting a homeland security procurement the
head of an agency may include in a contract an indemnification
provision specified in subsection (e) if the head of the agency
determines in writing that it is in the best interest of the
Government to do so and determines that--
``(1) the anti-terrorism technology and services are
needed to protect critical infrastructure services or
facilities;
``(2) the anti-terrorism technology and services
would be effective in facilitating the defense against
acts of terrorism; and
``(3) the supplier of the anti-terrorism technology
is unable to secure insurance coverage adequate to make
the anti-terrorism technology and services available to
the Government.
``(b) The head of the agency may exercise the authority in
this section only if authorized by the Director of the Office
of Management and Budget to do so.
``(c) In order to be eligible for an indemnification
provision specified in this section, any entity that provides
anti-terrorism technology and services to an agency identified
in this Act shall obtain liability insurance of such types and
in such amounts, to the maximum extent practicable as
determined by the agency, to satisfy otherwise compensable
third party claims resulting from an act of terrorism when
anti-terrorism technologies and services have been deployed in
defense against acts of terrorism.
``(d) An indemnification provision included in a contract
under the authority of this section shall be without regard to
other provisions of law relating to the making, performance,
amendment or modification of contracts.
``(e)(1) The indemnification provision to be included in a
contract under the authority of this section shall indemnify,
in whole or in part, the contractor for liability, including
reasonable expenses of litigation and settlement, that is not
covered by the insurance required under subsection (c), for:
``(A) Claims by third persons, including employees of
the contractor, for death, personal injury, or loss of,
damage to, or loss of use of property, or economic
losses resulting from an act of terrorism;
``(B) Loss of, damage to, or loss of use of property
of the Government; and
``(C) Claims arising (i) from indemnification
agreements between the contractor and a subcontractor
or subcontractors, or (ii) from such arrangements and
further indemnification arrangements between
subcontractors at any tier, provided that all such
arrangements were entered into pursuant to the terms of
this section.
``(2) Liabilities arising out of the contractor's willful
misconduct or lack of good faith shall not be entitled to
indemnification under the authority of this section.
``(f) An indemnification provision included in a contract
under the authority of this section shall be negotiated and
signed by the agency contracting officer and an authorized
representative of the contractor and approved by the head of
the agency prior to the commencement of performance of the
contract.
``(g) The authority conferred by this section shall be
limited to the following agencies:
``(1) The Department of Homeland Security;
``(2) The Department of Agriculture;
``(3) The Department of Commerce;
``(4) The Department of Defense;
``(5) The Department of Energy;
``(6) The Department of Health and Human Services;
``(7) The Department of the Interior;
``(8) The Department of Justice;
``(9) The Department of State;
``(10) The Department of the Treasury;
``(11) The Department of Transportation;
``(12) The Federal Emergency Management Agency;
``(13) The Federal Reserve System;
``(14) The General Services Administration;
``(15) The National Aeronautics and Space
Administration;
``(16) The Tennessee Valley Authority;
``(17) The U.S. Postal Service;
``(18) The Central Intelligence Agency;
``(19) The Architect of the Capitol; and
``(20) Any other agency designated by the Secretary
of Homeland Security that engages in homeland security
contracting activities.
``(h) If any suit or action is filed or any claim is made
against the contractor for any losses to third parties arising
out of an act of terrorism when its anti-terrorism technologies
and services have been deployed such that the cost and expense
of the losses may be indemnified by the United States under
this section, the contractor shall--
``(1) immediately notify the Secretary and promptly
furnish copies of all pertinent papers received;
``(2) authorize United States Government
representatives to collaborate with counsel for the
contractor's insurance carrier in settling or defending
the claim when the amount of the liability claimed may
exceed the amount of insurance coverage; and
``(3) authorize United States Government
representatives to settle or defend the claim and to
represent the contractor in or to take charge of any
litigation, if required by the United States
Government, when the liability is not insured.
The contractor may, at its own expense, be associated with the
United States Government representatives in any such claim or
litigation.''.
(c) State and Local Risk Sharing and Indemnification.--(1)
The Secretary may, upon the application of a State or local
government, provide for indemnification of contractors who
provide anti-terrorism technologies and services to State or
local governments if the Secretary determines in writing that--
(A) it is in the best interest of the Government to
do so;
(B) the State or local government is unable to
provide the required indemnification; and
(C) the anti-terrorism technology and services are
needed to protect critical infrastructure services or
facilities, would be effective in facilitating the
defense against acts of terrorism, and would not be
reasonably available absent indemnification.
(2) The Secretary may exercise the authority in this
subsection only if authorized by the Director of the Office of
Management and Budget to do so.
(3) In order to be eligible for indemnification, any entity
that provides anti-terrorism technology and services to a State
or local government shall obtain liability insurance of such
types and in such amounts to the maximum extent practicable, as
determined by the Secretary, to satisfy otherwise compensable
third party claims resulting from an act of terrorism when
anti-terrorism technologies and services have been deployed in
defense against acts of terrorism.
(4) The indemnification provided under the authority of this
subsection shall indemnify, in whole or in part, the contractor
for liability, including reasonable expenses of litigation and
settlement, that is not covered by the insurance required under
paragraph (3) for--
(A) claims by third persons, including employees of
the contractor, for death, personal injury, or loss of,
damage to, or loss of use of property, or economic
losses resulting from an act of terrorism;
(B) loss of, damage to, or loss of use of property of
the Government; and
(C) claims arising--
(i) from indemnification agreements between
the contractor and a subcontractor or
subcontractors; or
(ii) from such arrangements and further
indemnification arrangements between
subcontractors at any tier, provided that all
such arrangements were entered into pursuant to
the terms of this subsection.
Liabilities arising out of the contractor's willful misconduct
or lack of good faith shall not be entitled to indemnification
under the authority of this subsection.
(5) If any suit or action is filed or any claim is made
against the contractor for any losses to third parties arising
out of an act of terrorism when its anti-terrorism technologies
and services have been deployed such that the cost and expense
of the losses may be indemnified by the United States under
this subsection, the contractor shall--
(A) immediately notify the Secretary and promptly
furnish copies of all pertinent papers received;
(B) authorize United States Government
representatives to collaborate with counsel for the
contractor's insurance carrier in settling or defending
the claim when the amount of the liability claimed may
exceed the amount of insurance coverage; and
(C) authorize United States Government
representatives to settle or defend the claim and to
represent the contractor in or to take charge of any
litigation, if required by the United States
Government, when the liability is not insured.
The contractor may, at its own expense, be associated with the
United States Government representatives in any such claim or
litigation.
(6) In this subsection, the definitions in paragraphs (16)
through (21) of section 4 of the Office of Federal Procurement
Policy Act shall apply.
(c) Implementing Regulations.--Not later than 120 days after
the date of the enactment of this Act, the Federal Acquisition
Regulation shall be amended to ensure consistency between the
Federal Acquisition Regulation and this section.
----------
23. An Amendment To Be Offered by Representative Oberstar of Minnesota,
or His Designee, Debatable for 45 Minutes
Strike section 409 of the bill.
Redesignate section 410 of the bill as section 409.
Conform the table of contents of the bill accordingly.
----------
24. An Amendment To Be Offered by Representative Schakowsky of
Illinois, or Her Designee, Debatable for 30 Minutes
Strike subtitle C of title VII.
Strike section 762 and insert the following:
SEC. 762. REMEDIES FOR RETALIATION AGAINST WHISTLEBLOWERS.
Section 7211 of title 5, United States Code, is amended--
(1) by inserting ``(a)'' before ``The right''; and
(2) by adding at the end the following:
``(b) Any employee aggrieved by a violation of subsection (a)
may bring a civil action in the appropriate United States
district court, within 3 years after the date on which such
violation occurs, against any agency, organization, or other
person responsible for the violation, for lost wages and
benefits, reinstatement, costs and attorney fees, compensatory
damages, and equitable, injunctive, or any other relief that
the court considers appropriate. Any such action shall, upon
request of the party bringing the action, be tried by the court
with a jury.
``(c) The same legal burdens of proof in proceedings under
subsection (b) shall apply as under sections 1214(b)(4)(B) and
1221(e) in the case of an alleged prohibited personnel practice
described in section 2302(b)(8).
``(d) For purposes of this section, the term `employee' means
an employee (as defined by section 2105) and any individual
performing services under a personal services contract with the
Government (including as an employee of an organization).''.
----------
25. An Amendment To Be Offered by Representative Davis of Virginia, or
Her Designee, Debatable for 20 Minutes
Strike paragraph (2) of section 772, and insert the
following:
(2) Covered federal agency.--The term ``covered
Federal agency'' means the Department of Homeland
Security and any agency designated by the Department or
with which the Department shares critical
infrastructure information.
----------
26. An Amendment To Be Offered by Representative Chambliss of Georgia,
or His Designee, Debatable for 20 Minutes
At the end of title VII add the following new subtitle:
Subtitle H--Information Sharing
SEC. 780. SHORT TITLE.
This subtitle may be cited as the ``Homeland Security
Information Sharing Act''.
SEC. 781. FINDINGS AND SENSE OF CONGRESS.
(a) Findings.--The Congress finds the following:
(1) The Federal Government is required by the
Constitution to provide for the common defense, which
includes terrorist attack.
(2) The Federal Government relies on State and local
personnel to protect against terrorist attack.
(3) The Federal Government collects, creates,
manages, and protects classified and sensitive but
unclassified information to enhance homeland security.
(4) Some homeland security information is needed by
the State and local personnel to prevent and prepare
for terrorist attack.
(5) The needs of State and local personnel to have
access to relevant homeland security information to
combat terrorism must be reconciled with the need to
preserve the protected status of such information and
to protect the sources and methods used to acquire such
information.
(6) Granting security clearances to certain State and
local personnel is one way to facilitate the sharing of
information regarding specific terrorist threats among
Federal, State, and local levels of government.
(7) Methods exist to declassify, redact, or otherwise
adapt classified information so it may be shared with
State and local personnel without the need for granting
additional security clearances.
(8) State and local personnel have capabilities and
opportunities to gather information on suspicious
activities and terrorist threats not possessed by
Federal agencies.
(9) The Federal Government and State and local
governments and agencies in other jurisdictions may
benefit from such information.
(10) Federal, State, and local governments and
intelligence, law enforcement, and other emergency
preparation and response agencies must act in
partnership to maximize the benefits of information
gathering and analysis to prevent and respond to
terrorist attacks.
(11) Information systems, including the National Law
Enforcement Telecommunications System and the Terrorist
Threat Warning System, have been established for rapid
sharing of classified and sensitive but unclassified
information among Federal, State, and local entities.
(12) Increased efforts to share homeland security
information should avoid duplicating existing
information systems.
(b) Sense of Congress.--It is the sense of Congress that
Federal, State, and local entities should share homeland
security information to the maximum extent practicable, with
special emphasis on hard-to-reach urban and rural communities.
SEC. 782. FACILITATING HOMELAND SECURITY INFORMATION SHARING
PROCEDURES.
(a) Procedures for Determining Extent of Sharing of Homeland
Security Information.--
(1) The President shall prescribe and implement
procedures under which relevant Federal agencies--
(A) share relevant and appropriate homeland
security information with other Federal
agencies, including the Department, and
appropriate State and local personnel;
(B) identify and safeguard homeland security
information that is sensitive but unclassified;
and
(C) to the extent such information is in
classified form, determine whether, how, and to
what extent to remove classified information,
as appropriate, and with which such personnel
it may be shared after such information is
removed.
(2) The President shall ensure that such procedures
apply to all agencies of the Federal Government.
(3) Such procedures shall not change the substantive
requirements for the classification and safeguarding of
classified information.
(4) Such procedures shall not change the requirements
and authorities to protect sources and methods.
(b) Procedures for Sharing of Homeland Security
Information.--
(1) Under procedures prescribed by the President, all
appropriate agencies, including the intelligence
community, shall, through information sharing systems,
share homeland security information with Federal
agencies and appropriate State and local personnel to
the extent such information may be shared, as
determined in accordance with subsection (a), together
with assessments of the credibility of such
information.
(2) Each information sharing system through which
information is shared under paragraph (1) shall--
(A) have the capability to transmit
unclassified or classified information, though
the procedures and recipients for each
capability may differ;
(B) have the capability to restrict delivery
of information to specified subgroups by
geographic location, type of organization,
position of a recipient within an organization,
or a recipient's need to know such information;
(C) be configured to allow the efficient and
effective sharing of information; and
(D) be accessible to appropriate State and
local personnel.
(3) The procedures prescribed under paragraph (1)
shall establish conditions on the use of information
shared under paragraph (1)--
(A) to limit the redissemination of such
information to ensure that such information is
not used for an unauthorized purpose;
(B) to ensure the security and
confidentiality of such information;
(C) to protect the constitutional and
statutory rights of any individuals who are
subjects of such information; and
(D) to provide data integrity through the
timely removal and destruction of obsolete or
erroneous names and information.
(4) The procedures prescribed under paragraph (1)
shall ensure, to the greatest extent practicable, that
the information sharing system through which
information is shared under such paragraph include
existing information sharing systems, including, but
not limited to, the National Law Enforcement
Telecommunications System, the Regional Information
Sharing System, and the Terrorist Threat Warning System
of the Federal Bureau of Investigation.
(5) Each appropriate Federal agency, as determined by
the President, shall have access to each information
sharing system through which information is shared
under paragraph (1), and shall therefore have access to
all information, as appropriate, shared under such
paragraph.
(6) The procedures prescribed under paragraph (1)
shall ensure that appropriate State and local personnel
are authorized to use such information sharing
systems--
(A) to access information shared with such
personnel; and
(B) to share, with others who have access to
such information sharing systems, the homeland
security information of their own
jurisdictions, which shall be marked
appropriately as pertaining to potential
terrorist activity.
(7) Under procedures prescribed jointly by the
Director of Central Intelligence and the Attorney
General, each appropriate Federal agency, as determined
by the President, shall review and assess the
information shared under paragraph (6) and integrate
such information with existing intelligence.
(c) Sharing of Classified Information and Sensitive but
Unclassified Information With State and Local Personnel.--
(1) The President shall prescribe procedures under
which Federal agencies may, to the extent the President
considers necessary, share with appropriate State and
local personnel homeland security information that
remains classified or otherwise protected after the
determinations prescribed under the procedures set
forth in subsection (a).
(2) It is the sense of Congress that such procedures
may include one or more of the following means:
(A) Carrying out security clearance
investigations with respect to appropriate
State and local personnel.
(B) With respect to information that is
sensitive but unclassified, entering into
nondisclosure agreements with appropriate State
and local personnel.
(C) Increased use of information-sharing
partnerships that include appropriate State and
local personnel, such as the Joint Terrorism
Task Forces of the Federal Bureau of
Investigation, the Anti-Terrorism Task Forces
of the Department of Justice, and regional
Terrorism Early Warning Groups.
(d) Responsible Officials.--For each affected Federal agency,
the head of such agency shall designate an official to
administer this Act with respect to such agency.
(e) Federal Control of Information.--Under procedures
prescribed under this section, information obtained by a State
or local government from a Federal agency under this section
shall remain under the control of the Federal agency, and a
State or local law authorizing or requiring such a government
to disclose information shall not apply to such information.
(f) Definitions.--As used in this section:
(1) The term ``homeland security information'' means
any information possessed by a Federal, State, or local
agency that--
(A) relates to the threat of terrorist
activity;
(B) relates to the ability to prevent,
interdict, or disrupt terrorist activity;
(C) would improve the identification or
investigation of a suspected terrorist or
terrorist organization; or
(D) would improve the response to a terrorist
act.
(2) The term ``intelligence community'' has the
meaning given such term in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4)).
(3) The term ``State and local personnel'' means any
of the following persons involved in prevention,
preparation, or response for terrorist attack:
(A) State Governors, mayors, and other
locally elected officials.
(B) State and local law enforcement personnel
and firefighters.
(C) Public health and medical professionals.
(D) Regional, State, and local emergency
management agency personnel, including State
adjutant generals.
(E) Other appropriate emergency response
agency personnel.
(F) Employees of private-sector entities that
affect critical infrastructure, cyber,
economic, or public health security, as
designated by the Federal government in
procedures developed pursuant to this section.
(4) The term ``State'' includes the District of
Columbia and any commonwealth, territory, or possession
of the United States.
(g) Construction.--Nothing in this Act shall be construed as
authorizing any department, bureau, agency, officer, or
employee of the Federal Government to request,receive, or
transmit to any other Government entity or personnel, or transmit to
any State or local entity or personnel otherwise authorized by this Act
to receive homeland security information, any information collected by
the Federal Government solely for statistical purposes in violation of
any other provision of law relating to the confidentiality of such
information.
SEC. 783. REPORT.
(a) Report Required.--Not later than 12 months after the date
of the enactment of this Act, the President shall submit to the
congressional committees specified in subsection (b) a report
on the implementation of section 782. The report shall include
any recommendations for additional measures or appropriation
requests, beyond the requirements of section 782, to increase
the effectiveness of sharing of information between and among
Federal, State, and local entities.
(b) Specified Congressional Committees.--The congressional
committees referred to in subsection (a) are the following
committees:
(1) The Permanent Select Committee on Intelligence
and the Committee on the Judiciary of the House of
Representatives.
(2) The Select Committee on Intelligence and the
Committee on the Judiciary of the Senate.
SEC. 784. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out section 782.
SEC. 785. AUTHORITY TO SHARE GRAND JURY INFORMATION.
Rule 6(e) of the Federal Rules of Criminal Procedure is
amended--
(1) in paragraph (2), by inserting ``, or of
guidelines jointly issued by the Attorney General and
Director of Central Intelligence pursuant to Rule 6,''
after ``Rule 6''; and
(2) in paragraph (3)--
(A) in subparagraph (A)(ii), by inserting
``or of a foreign government'' after
``(including personnel of a state or
subdivision of a state'';
(B) in subparagraph (C)(i)--
(i) in subclause (I), by inserting
before the semicolon the following:
``or, upon a request by an attorney for
the government, when sought by a
foreign court or prosecutor for use in
an official criminal investigation'';
(ii) in subclause (IV)--
(I) by inserting ``or
foreign'' after ``may disclose
a violation of State'';
(II) by inserting ``or of a
foreign government'' after ``to
an appropriate official of a
State or subdivision of a
State''; and
(III) by striking ``or'' at
the end;
(iii) by striking the period at the
end of subclause (V) and inserting ``;
or''; and
(iv) by adding at the end the
following:
``(VI) when matters involve a threat
of actual or potential attack or other
grave hostile acts of a foreign power
or an agent of a foreign power,
domestic or international sabotage,
domestic or international terrorism, or
clandestine intelligence gathering
activities by an intelligence service
or network of a foreign power or by an
agent of a foreign power, within the
United States or elsewhere, to any
appropriate federal, state, local, or
foreign government official for the
purpose of preventing or responding to
such a threat.''; and
(C) in subparagraph (C)(iii)--
(i) by striking ``Federal'';
(ii) by inserting ``or clause
(i)(VI)'' after ``clause (i)(V)''; and
(iii) by adding at the end the
following: ``Any state, local, or
foreign official who receives
information pursuant to clause (i)(VI)
shall use that information only
consistent with such guidelines as the
Attorney General and Director of
Central Intelligence shall jointly
issue.''.
SEC. 786. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION
INFORMATION.
Section 2517 of title 18, United States Code, is amended by
adding at the end the following:
``(7) Any investigative or law enforcement officer, or other
Federal official in carrying out official duties as such
Federal official, who by any means authorized by this chapter,
has obtained knowledge of the contents of any wire, oral, or
electronic communication, or evidence derived therefrom, may
disclose such contents or derivative evidence to a foreign
investigative or law enforcement officer to the extent that
such disclosure is appropriate to the proper performance of the
official duties of the officer making or receiving the
disclosure, and foreign investigative or law enforcement
officers may use or disclose such contents or derivative
evidence to the extent such use or disclosure is appropriate to
the proper performance of their official duties.
``(8) Any investigative or law enforcement officer, or other
Federal official in carrying out official duties as such
Federal official, who by any means authorized by this chapter,
has obtained knowledge of the contents of any wire, oral, or
electronic communication, or evidence derived therefrom, may
disclose such contents or derivative evidence to any
appropriate Federal, State, local, or foreign government
official to the extent that such contents or derivative
evidence reveals a threat of actual or potential attack or
other grave hostile acts of a foreign power or an agent of a
foreign power, domestic or international sabotage, domestic or
international terrorism, or clandestine intelligence gathering
activities by an intelligence service or network of a foreign
power or by an agent of a foreign power, within the United
States or elsewhere, for the purpose of preventing or
responding to such a threat. Any official who receives
information pursuant to this provision may use that information
only as necessary in the conduct of that person's official
duties subject to any limitations on the unauthorized
disclosure of such information, and any State, local, or
foreign official who receives information pursuant to this
provision may use that information only consistent with such
guidelines as the At-
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27. An Amendment To Be Offered by Representative Weldon of Florida, or
His Designee, Debatable for 20 Minutes
At the end of section 402 (relating to functions transferred)
insert the following:
(9) The Visa Office of the Bureau of Consular
Affairs of the Department of State, including
the functions of the Secretary of State,
relating thereto.
In section 403 (relating to visa issuance) strike subsections
(a) through (f) and insert the following (and redesignate
subsection (g) as subsection (i)):
(a) Authority.--Notwithstanding the provisions of section 104
of the Immigration and Nationality Act (8 U.S.C. 1104) or any
other law, the Secretary shall have exclusive authority to
issue regulations with respect to, administer, and enforce the
provisions of that Act and all other immigration and
nationality laws relating to the granting or refusal of visas.
(b) Transition.--
(1) In general; details.--During the 2-year period
beginning on the effective date of this Act, there
shall be a transition period. During this period
consular officers (as defined in section 101(a)(9) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(9))) of the Department of State and other
foreign service officers in the Visa Office, to the
extent they are involved in the granting or refusal of
visas or any other documents required for entry into
the United States, shall be detailed to the Department
of Homeland Security. A detail under this subsection
may be terminated at any time by the Secretary.
(2) Maintenance of rotation program.--During the
transition period described in paragraph (1), the
Secretary of State shall maintain and administer the
current rotation program (at least at the employment
level in existence on the date of enactment of this
Act) under which foreign service officers are assigned
functions involved in the adjudication, review, or
processing of visa applications.
(3) Termination of transition period.--The transition
period may be terminated within the 2-year period
described in paragraph (1) by the Secretary after
consultation with the Secretary of State.
(4) Existing employees of visa office.--Employees of
the Visa Office who are not foreign service officers
shall become employees of the Department of Homeland
Security immediately upon the effective date of the
transfer of the Visa Office to the Department under
this title.
(c) Training.--
(1) Training program.--The Secretary shall provide
for the training of Department personnel involved in
the adjudication, review, or processing of visa
applications, specifically addressing the language
skills, interview techniques, fraud detection
techniques, and other skills to be used by such
personnel.
(2) Study regarding use of foreign nationals.--During
the transition period, the Secretary shall study the
role of foreign nationals in the review and processing
of visa applications, specifically addressing the
following:
(A) The proper role, if any, of foreign
nationals in such processing.
(B) Any security concerns involving the
employment of foreign nationals.
(C) Whether there are cost-effective
alternatives to the employment of foreign
nationals.
(3) Report.--Not later than 2 years after the date of
the enactment of this Act, the Secretary shall submit a
report on the findings of the study under paragraph (2)
to the Committee on Government Reform, Committee on the
Judiciary, and Committee on International Relations of
the House of Representatives and the Committee on
Governmental Affairs, Committee on the Judiciary, and
Committee on Foreign Relations of the Senate.
(d) Legal Effect.--
(1) In general.--The transfer of authority to the
Secretary in section 403(a) shall not be construed to
modify--
(A) any ground for such refusal authorized by
law (including grounds under sections 212 and
221(g) of such Act (8 U.S.C. 1182 and
1201(g)));
(B) the presumption of immigrant status
established under section 214(b) of such Act (8
U.S.C. 1184(b)) or the effect of failure to
establish eligibility for nonimmigrant status
described in such section; or
(C) the burden of proof placed upon persons
making application for a visa or any other
document required for entry under section 291
of such Act (8 U.S.C. 1361) or the effect of
failure to establish eligibility for such visa
or other document described in such section.
(2) Nonreviewability.--No court shall have
jurisdiction to review the granting or refusal of a
visa by the Secretary or a designee of the Secretary.
(e) Refusal of Visas at Request of Secretary of State.--Upon
request by the Secretary of State, the Secretary of Homeland
Security shall refuse to issue a visa to an alien if the
Secretary of State determines that such refusal is necessary or
advisable in the interests of the United States.
(f) Review of Passports Issued to Americans Overseas.--The
Secretary shall have the authority to review requests for
passports by citizens of the United States living or traveling
overseas.
(g) Conforming Amendments.--Section 104 of the Immigration
and Nationality Act (8 U.S.C. 1104) is amended as follows:
(1) In subsection (a), by striking ``conferred upon
consular officers'' and inserting ``conferred upon the
Secretary of Homeland Security''.
(2) In subsection (c)--
(A) in the first sentence, by striking ``, a
Visa Office,''; and
(B) in the second sentence, by striking
``Directors of the Passport Office and the Visa
Office'' and inserting ``Director of the
Passport Office, and the head of the office of
the Department of Homeland Security that
administers the provisions of this Act and
other immigration and nationality laws relating
to the granting or refusal of visas,''.
(3) By striking subsection (e).