[House Report 109-71]
[From the U.S. Government Publishing Office]
109th Congress Rept. 109-71
HOUSE OF REPRESENTATIVES
1st Session Part 3
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DEPARTMENT OF HOMELAND SECURITY AUTHORIZATION ACT FOR FISCAL YEAR 2006
_______
May 13, 2005.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 1817]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 1817) to authorize appropriations for fiscal year 2006
for the Department of Homeland Security, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Homeland Security
Authorization Act for Fiscal Year 2006''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
TITLE I--AUTHORIZATION OF APPROPRIATIONS
Sec. 101. Department of Homeland Security.
Sec. 102. Immigration resources.
Sec. 103. Departmental management and operations.
Sec. 104. Critical infrastructure grants.
Sec. 105. Research and development.
Sec. 106. Border and transportation security.
Sec. 107. State and local terrorism preparedness.
TITLE II--TERRORISM PREVENTION, INFORMATION SHARING, AND RISK
ASSESSMENT
Subtitle A--Terrorism Prevention
Sec. 201. Terrorism Prevention Plan and related budget submission.
Sec. 202. Consolidated background check process.
Subtitle B--Homeland Security Information Sharing and Analysis
Enhancement
Sec. 211. Short title.
Sec. 212. Provision of terrorism-related information to private sector
officials.
Sec. 213. Analytic expertise on the threats from biological agents and
nuclear weapons.
Sec. 214. Alternative analysis of homeland security information.
Sec. 215. Assignment of information analysis and infrastructure
protection functions.
Sec. 216. Authority for disseminating homeland security information.
Sec. 217. 9/11 Memorial Homeland Security Fellows Program.
Sec. 218. Access to nuclear terrorism-related information.
Sec. 219. Access of Assistant Secretary for Information Analysis to
terrorism information.
Sec. 220. Administration of the Homeland Security Information Network.
Sec. 221. IAIP personnel recruitment.
Sec. 222. Homeland Security Advisory System.
Sec. 223. Use of open-source information.
Sec. 224. Full and efficient use of open-source information.
TITLE III--DOMESTIC PREPAREDNESS AND PROTECTION
Subtitle A--Preparedness and Protection
Sec. 301. National terrorism exercise program.
Sec. 302. Technology development and transfer.
Sec. 303. Review of antiterrorism acquisitions.
Sec. 304. Center of Excellence for Border Security.
Sec. 305. Requirements relating to the Container Security Initiative
(CSI).
Sec. 306. Security of maritime cargo containers.
Sec. 307. Security plan for general aviation at Ronald Reagan
Washington National Airport.
Sec. 308. Interoperable communications assistance.
Sec. 309. Report to Congress on implementation of recommendations
regarding protection of agriculture.
Subtitle B--Department of Homeland Security Cybersecurity Enhancement
Sec. 311. Short title.
Sec. 312. Assistant Secretary for Cybersecurity.
Sec. 313. Cybersecurity defined.
Sec. 314. Cybersecurity training programs and equipment.
Sec. 315. Information security requirements and OMB responsibilities
not affected.
Subtitle C--Security of public transportation systems
Sec. 321. Security best practices.
Sec. 322. Public awareness.
Subtitle D--Critical infrastructure prioritization
Sec. 331. Critical infrastructure.
Sec. 332. Security review.
Sec. 333. Implementation report.
Sec. 334. Protection of information.
TITLE IV--MISCELLANEOUS
Sec. 401. Border security and enforcement coordination and operations.
Sec. 402. GAO report to Congress.
Sec. 403. Plan for establishing consolidated and colocated regional
offices.
Sec. 404. Plan to reduce wait times.
Sec. 405. Denial of transportation security card.
Sec. 406. Transfer of existing Customs Patrol Officers unit and
establishment of new CPO units in the U.S. Immigration and Customs
Enforcement.
Sec. 407. Data collection on use of immigration consultants.
SEC. 3. DEFINITIONS.
For purposes of this Act, the terms ``prevent terrorist attacks'' and
``terrorism prevention'' are intended to encompass securing our
borders, securing our critical infrastructure, disseminating homeland
security information to Federal, State, and local government agencies,
and preparing first responders for a terrorist attack.
TITLE I--AUTHORIZATION OF APPROPRIATIONS
SEC. 101. DEPARTMENT OF HOMELAND SECURITY.
There is authorized to be appropriated to the Secretary of Homeland
Security for the necessary expenses of the Department of Homeland
Security for fiscal year 2006, $34,152,143,000.
SEC. 102. IMMIGRATION RESOURCES.
(a) Of the amount authorized under section 101, there is authorized
to be appropriated for fiscal year 2006 for border security and control
between ports of entry, including for the hiring of 2,000 border patrol
agents in addition to the number employed on the date of enactment of
this Act, and related training and support costs, $1,916,427,000.
(b) Of the amount authorized under section 101, there is authorized
to be appropriated for fiscal year 2006 for the U.S. Immigration and
Customs Enforcement Legal Program sufficient sums for the hiring of an
additional 300 attorneys in addition to the number employed on the date
of this Act, and related training and support costs.
(c) Of the amount authorized under section 101, there is authorized
to be appropriated for fiscal year 2006 for U.S. Citizenship and
Immigration Services sufficient sums for the hiring of an additional
300 adjudicators to carry out the functions stated in section 451(b) of
the Homeland Security Act of 2002 in addition to the number employed on
the date of this Act, and related training and support costs.
SEC. 103. DEPARTMENTAL MANAGEMENT AND OPERATIONS.
Of the amount authorized under section 101, there is authorized to
be appropriated for fiscal year 2006 for departmental management and
operations, $634,687,000, of which--
(1) $44,895,000 is authorized for the Department of Homeland
Security Regions Initiative;
(2) $4,459,000 is authorized for Operation Integration Staff;
and
(3) $56,278,000 is authorized for Office of Security
initiatives.
SEC. 104. CRITICAL INFRASTRUCTURE GRANTS.
Of the amount authorized under section 101, there is authorized to
be appropriated for fiscal year 2006 for grants and other assistance to
improve critical infrastructure protection, $500,000,000.
SEC. 105. RESEARCH AND DEVELOPMENT.
Of the amount authorized under section 101, there are authorized to
be appropriated for fiscal year 2006--
(1) $76,573,000 to support chemical countermeasure
development activities of the Directorate of Science and
Technology;
(2) $197,314,000 to support a nuclear detection office and
related activities of such directorate;
(3) $10,000,000 for research and development of technologies
capable of countering threats posed by man-portable air defense
systems, including location-based technologies and
noncommercial aircraft-based technologies; and
(4) $10,600,000 for the activities of such directorate
conducted pursuant to subtitle G of title VIII of the Homeland
Security Act of 2002 (6 U.S.C. 441 et seq.).
SEC. 106. BORDER AND TRANSPORTATION SECURITY.
Of the amount authorized under section 101, there are authorized to
be appropriated for fiscal year 2006--
(1) $826,913,000 for expenses related to Screening
Coordination and Operations of the Directorate of Border and
Transportation Security;
(2) $100,000,000 for weapons of mass destruction detection
technology of such directorate; and
(3) $133,800,000 for the Container Security Initiative of
such directorate.
SEC. 107. STATE AND LOCAL TERRORISM PREPAREDNESS.
(a) Fiscal Year 2006.--Of the amount authorized under section 101,
there is authorized to be appropriated for fiscal year 2006--
(1) $40,500,000 for the activities of the Office for
Interoperability and Compatibility within the Directorate of
Science and Technology pursuant to section 7303 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (6
U.S.C 194);
(2) $1,000,000,000 for discretionary grants for high-threat,
high-density urban areas awarded by the Office of State and
Local Government Coordination and Preparedness; and
(3) subsequent to the completion of a feasibility study by
the Federal Government finding conclusively the need for a
regional homeland security center which enhances coordination
for terrorism preparedness between all levels of government,
sufficient sums as may be necessary for the development of a
center for training for Federal, State, and local law
enforcement officials with an expertise in terrorism
preparedness.
(b) Use of Grants for ``Terrorism Cops''.--
(1) In general.--Notwithstanding any other provision of law,
a covered grant may be used to pay the salaries of law
enforcement officers hired exclusively for terrorism and
homeland security matters.
(2) Covered grant.--In this subsection, the term ``covered
grant'' applies to--
(A) the State Homeland Security Grant Program of the
Department, or any successor to such grant program;
(B) the Urban Area Security Initiative of the
Department, or any successor to such grant program; and
(C) the Law Enforcement Terrorism Prevention Program
of the Department, or any successor to such grant
program.
TITLE II--TERRORISM PREVENTION, INFORMATION SHARING, AND RISK
ASSESSMENT
Subtitle A--Terrorism Prevention
SEC. 201. TERRORISM PREVENTION PLAN AND RELATED BUDGET SUBMISSION.
(a) Department of Homeland Security Terrorism Prevention Plan.--
(1) Requirements.--Not later than 1 year after the date of
enactment of the Act, and on a regular basis thereafter, the
Secretary of Homeland Security shall prepare and submit to the
Committee on Homeland Security and the Committee on the
Judiciary of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs and the Committee on
the Judiciary of the Senate a Department of Homeland Security
Terrorism Prevention Plan. The Plan shall be a comprehensive
and integrated plan that includes the goals, objectives,
milestones, and key initiatives of the Department of Homeland
Security to prevent acts of terrorism on the United States,
including its territories and interests.
(2) Contents.--The Secretary shall include in the Plan the
following elements:
(A) Identification of the vulnerabilities in relation
to current, evolving, and long-term terrorist threats
to the United States and its interests, including an
evaluation of--
(i) the materials that may be used to carry
out a potential attack;
(ii) the methods that may be used to carry
out a potential attack; and
(iii) the outcome the perpetrators of acts of
terrorism aim to achieve.
(B) A prioritization of the threats identified under
subparagraph (B), based on an assessment of probability
and consequence of such attacks.
(C) A description of processes and procedures that
the Secretary shall establish to institutionalize close
coordination between the Department of Homeland
Security and the National Counter Terrorism Center and
other appropriate United States intelligence agencies.
(D) The policies and procedures the Secretary shall
establish to ensure the Department disseminates this
information received from the National Counter
Terrorism Center throughout the Department, as
appropriate; utilizes this information to support the
Department's mission to reduce vulnerability to
terrorism; integrates the Department's information
collection and analysis functions; and disseminates
this information to its operational units, as
appropriate.
(E) A description of the specific actions the
Secretary shall take to identify vulnerabilities to
terrorist attacks of the United States and its
interests, and to coordinate activities within the
Department to prevent acts of terrorism, with special
emphasis on weapons of mass destruction.
(F) A description of initiatives the Secretary shall
take to share homeland security information with, and
provide homeland security support to, State and local
governments and the private sector.
(G) A timeline, with goals and milestones, for
implementing the Homeland Security Information Network,
the Homeland Security Secure Data Network, and other
departmental information initiatives to prevent acts of
terrorism on the United States and its interests,
including integration of these initiatives in the
operations of the Homeland Security Operations Center.
(H) Such other elements as the Secretary considers
appropriate consistent with this plan.
(3) Consultation.--In formulating the Plan to reduce the
vulnerability of the United States to terrorist attacks, the
Secretary shall consult with--
(A) the Director of National Intelligence;
(B) the Director of the National Counter Terrorism
Center;
(C) the Attorney General;
(D) the Director of the Federal Bureau of
Investigation;
(E) the Secretary of Defense;
(F) the Secretary of State;
(G) the Secretary of Energy;
(H) the Secretary of the Treasury; and
(I) the heads of other Federal agencies and State,
county, and local law enforcement agencies as the
Secretary considers appropriate.
(4) Classification.--The Secretary shall prepare the Plan in
both classified and nonclassified forms.
(b) Annual Crosscutting Analysis of Proposed Funding for Department
of Homeland Security Programs.--
(1) Requirement to submit analysis.--The Secretary of
Homeland Security shall submit to the Congress, concurrently
with the submission of the President's budget for each fiscal
year, a detailed, crosscutting analysis of the budget proposed
for the Department of Homeland Security, by budget function, by
agency, and by initiative area, identifying the requested
amounts of gross and net appropriations or obligational
authority and outlays for programs and activities of the
Department for each of the following mission areas:
(A) To prevent terrorist attacks within the United
States.
(B) To reduce the vulnerability of the United States
to terrorism.
(C) To minimize the damage, and assist in the
recovery, from terrorist attacks that do occur within
the United States.
(D) To carry out all functions of the agencies and
subdivisions within the Department that are not related
directly to homeland security.
(2) Funding analysis of multipurpose functions.--The analysis
required under paragraph (1) for functions that are both
related directly and not related directly to homeland security
shall include a detailed allocation of funding for each
specific mission area within those functions, including an
allocation of funding among mission support functions, such as
agency overhead, capital assets, and human capital.
(3) Included terrorism prevention activities.--The analysis
required under paragraph (1)(A) shall include the following
activities (among others) of the Department:
(A) Intelligence and law enforcement operations that
screen for individuals who plan or intend to carry out
acts of terrorism.
(B) Intelligence and law enforcement operations that
identify and respond to vulnerabilities of the United
States to terrorism.
(C) Operations to detect and prevent terrorist
attacks within the United States, including the
introduction of weapons of mass destruction into the
United States.
(D) Initiatives to detect potential, or the early
stages of actual, biological, chemical, radiological,
or nuclear attacks.
(E) Screening individuals against terrorist watch
lists.
(F) Screening cargo to identify and segregate high-
risk shipments.
(G) Utilization by the Department of Homeland
Security of information and intelligence received from
other Federal agencies, and foreign, State, local,
tribal and private sector officials, to detect or
prevent acts of terrorism.
(H) Dissemination by the Department of Homeland
Security of information to other Federal agencies, and
State, local, tribal and private sector officials.
(I) Investments in technology, research and
development, training, and communications systems that
are designed to improve the performance of the
Department and its agencies with respect to each of the
activities listed in subparagraphs (A) through (H).
(4) Separate displays for mandatory and discretionary
amounts.--Each analysis under paragraph (1) shall include
separate displays for proposed mandatory appropriations and
proposed discretionary appropriations.
SEC. 202. CONSOLIDATED BACKGROUND CHECK PROCESS.
(a) Requirement.--The Secretary shall consult with the Attorney
General, to establish a single process for conducting the security
screening and background checks on individuals participating in any
voluntary or mandatory departmental credentialing or registered
traveler program.
(b) Included Programs.--The process established under subsection (a)
shall be sufficient to meet the security requirements of all applicable
Departmental programs, including--
(1) the Transportation Worker Identification Credential;
(2) the Hazmat Endorsement Credential;
(3) the Free and Secure Trade program;
(4) the NEXUS and SENTRI border crossing programs;
(5) the Registered Traveler program of the Transportation
Security Administration; and
(6) any other similar program or credential considered
appropriate for inclusion by the Secretary.
(c) Features of Process.--The process established under subsection
(a) shall include the following:
(1) A single submission of security screening information,
including personal data and biometric information as
appropriate, necessary to meet the security requirements of all
applicable departmental programs.
(2) An ability to submit such security screening information
at any location or through any process approved by the
Secretary with respect to any of the applicable departmental
programs.
(3) Acceptance by the Department of a security clearance
issued by a Federal agency, to the extent that the security
clearance process of the agency satisfies requirements that are
at least as stringent as those of the applicable departmental
programs under this section.
(4) Standards and procedures for protecting individual
privacy, confidentiality, record retention, and addressing
other concerns relating to information security.
(d) Deadlines.--The Secretary of Homeland Security shall--
(1) submit a description of the process developed under
subsection (a) to the Committee on Homeland Security of the
House of Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate by not later than 6
months after the date of the enactment of this Act; and
(2) begin implementing such process by not later than 12
months after the date of the enactment of this Act.
(e) Relationship to Other Laws.--(1) Nothing in this section affects
any statutory requirement relating to the operation of the programs
described in subsection (b).
(2) Nothing in this section affects any statutory requirement
relating to title III of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. 435b et seq.).
Subtitle B--Homeland Security Information Sharing and Analysis
Enhancement
SEC. 211. SHORT TITLE.
This subtitle may be cited as the ``Homeland Security Information
Sharing and Analysis Enhancement Act of 2005''.
SEC. 212. PROVISION OF TERRORISM-RELATED INFORMATION TO PRIVATE SECTOR
OFFICIALS.
Section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d))
is amended by adding at the end the following:
``(20) To require, in consultation with the Assistant
Secretary for Infrastructure Protection, the creation and
routine dissemination of analytic reports and products designed
to provide timely and accurate information that has specific
relevance to each of the Nation's critical infrastructure
sectors (as identified in the national infrastructure
protection plan issued under paragraph (5)), to private sector
officials in each such sector who are responsible for
protecting institutions within that sector from potential acts
of terrorism and for mitigating the potential consequences of
any such act.''.
SEC. 213. ANALYTIC EXPERTISE ON THE THREATS FROM BIOLOGICAL AGENTS AND
NUCLEAR WEAPONS.
Section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d))
is further amended by adding at the end the following:
``(21) To ensure sufficient analytic expertise within the
Office of Information Analysis to create and disseminate, on an
ongoing basis, products based on the analysis of homeland
security information, as defined in section 892(f)(1), with
specific reference to the threat of terrorism involving the use
of nuclear weapons and biological agents to inflict mass
casualties or other catastrophic consequences on the population
or territory of the United States.''.
SEC. 214. ALTERNATIVE ANALYSIS OF HOMELAND SECURITY INFORMATION.
(a) Requirement.--Subtitle A of title II of the Homeland Security Act
of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the
following:
``SEC. 203. ALTERNATIVE ANALYSIS OF HOMELAND SECURITY INFORMATION.
``The Secretary shall establish a process and assign an individual or
entity the responsibility to ensure that, as appropriate, elements of
the Department conduct alternative analysis (commonly referred to as
`red-team analysis') of homeland security information, as that term is
defined in section 892(f)(1), that relates to potential acts of
terrorism involving the use of nuclear weapons or biological agents to
inflict mass casualties or other catastrophic consequences on the
population or territory of the United States.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is amended by inserting after the item relating to section 202
the following:
``Sec. 203. Alternative analysis of homeland security information.''.
SEC. 215. ASSIGNMENT OF INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION FUNCTIONS.
Section 201(b) of the Homeland Security Act of 2002 (6 U.S.C. 121(b))
is amended by adding at the end the following:
``(4) Assignment of specific functions.--The Under Secretary
for Information Analysis and Infrastructure Protection--
``(A) shall assign to the Assistant Secretary for
Information Analysis the responsibility for performing
the functions described in paragraphs (1), (4), (7)
through (14), (16), and (18) of subsection (d);
``(B) shall assign to the Assistant Secretary for
Infrastructure Protection the responsibility for
performing the functions described in paragraphs (2),
(5), and (6) of subsection (d);
``(C) shall ensure that the Assistant Secretary for
Information Analysis and the Assistant Secretary for
Infrastructure Protection both perform the functions
described in paragraphs (3), (15), (17), and (19) of
subsection (d);
``(D) may assign to each such Assistant Secretary
such other duties relating to such responsibilities as
the Under Secretary may provide;
``(E) shall direct each such Assistant Secretary to
coordinate with Federal, State, and local law
enforcement agencies, and with tribal and private
sector entities, as appropriate; and
``(F) shall direct the Assistant Secretary for
Information Analysis to coordinate with elements of the
intelligence community, as appropriate.''.
SEC. 216. AUTHORITY FOR DISSEMINATING HOMELAND SECURITY INFORMATION.
(a) In General.--Title I of the Homeland Security Act of 2002 (6
U.S.C. 111 et seq.) is amended by adding at the end the following:
``SEC. 104. AUTHORITY FOR DISSEMINATING HOMELAND SECURITY INFORMATION.
``The Secretary shall be the principal executive branch official
responsible for disseminating homeland security information to State
and local government and tribal officials and the private sector. ''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is amended by inserting after the item relating to section 103
the following:
``Sec. 104. Authority for disseminating homeland security
information.''.
SEC. 217. 9/11 MEMORIAL HOMELAND SECURITY FELLOWS PROGRAM.
(a) Establishment of Program.--Subtitle A of title II of the Homeland
Security Act of 2002 (6 U.S.C. 121 et seq.) is further amended by
adding at the end the following:
``SEC. 204. 9/11 MEMORIAL HOMELAND SECURITY FELLOWS PROGRAM.
``(a) Establishment.--
``(1) In general.--The Secretary shall establish a fellowship
program in accordance with this section for the purpose of
bringing State, local, tribal, and private sector officials to
participate in the work of the Homeland Security Operations
Center in order to become familiar with--
``(A) the mission and capabilities of that Center;
and
``(B) the role, programs, products, and personnel of
the Office of Information Analysis, the Office of
Infrastructure Protection, and other elements of the
Department responsible for the integration, analysis,
and dissemination of homeland security information, as
defined in section 892(f)(1).
``(2) Program name.--The program under this section shall be
known as the 9/11 Memorial Homeland Security Fellows Program.
``(b) Eligibility.--In order to be eligible for selection as a fellow
under the program, an individual must--
``(1) have homeland security-related responsibilities; and
``(2) possess an appropriate national security clearance.
``(c) Limitations.--The Secretary--
``(1) may conduct up to 4 iterations of the program each
year, each of which shall be 90 days in duration; and
``(2) shall ensure that the number of fellows selected for
each iteration does not impede the activities of the Center.
``(d) Condition.--As a condition of selecting an individual as a
fellow under the program, the Secretary shall require that the
individual's employer agree to continue to pay the individual's salary
and benefits during the period of the fellowship.
``(e) Stipend.--During the period of the fellowship of an individual
under the program, the Secretary shall, subject to the availability of
appropriations--
``(1) provide to the individual a stipend to cover the
individual's reasonable living expenses during the period of
the fellowship; and
``(2) reimburse the individual for round-trip, economy fare
travel to and from the individual's place of residence twice
each month.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is further amended by adding at the end of the items relating
to such subtitle the following:
``Sec. 204. 9/11 Memorial Homeland Security Fellows Program.''.
SEC. 218. ACCESS TO NUCLEAR TERRORISM-RELATED INFORMATION.
Section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d))
is further amended by adding at the end the following:
``(22) To ensure that--
``(A) the Assistant Secretary for Information
Analysis receives promptly and without request all
information obtained by any component of the Department
if that information relates, directly or indirectly, to
a threat of terrorism involving the potential use of
nuclear weapons;
``(B) such information is--
``(i) integrated and analyzed
comprehensively; and
``(ii) disseminated in a timely manner,
including to appropriately cleared Federal,
State, local, tribal, and private sector
officials; and
``(C) such information is used to determine what
requests the Department should submit for collection of
additional information relating to that threat.''.
SEC. 219. ACCESS OF ASSISTANT SECRETARY FOR INFORMATION ANALYSIS TO
TERRORISM INFORMATION.
Section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d))
is further amended by adding at the end the following:
``(23) To ensure that the Assistant Secretary for Information
Analysis--
``(A) is routinely and without request given prompt
access to all terrorism-related information collected
by or otherwise in the possession of any component of
the Department, including all homeland security
information (as that term is defined in section
892(f)(1)); and
``(B) to the extent technologically feasible has
direct access to all databases of any component of the
Department that may contain such information.''.
SEC. 220. ADMINISTRATION OF THE HOMELAND SECURITY INFORMATION NETWORK.
Section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d))
is further amended by adding at the end the following:
``(24) To administer the homeland security information
network, including--
``(A) exercising primary responsibility for
establishing a secure nationwide real-time homeland
security information sharing network for Federal,
State, and local government agencies and authorities,
tribal officials, the private sector, and other
governmental and private entities involved in
receiving, analyzing, and distributing information
related to threats to homeland security;
``(B) ensuring that the information sharing systems,
developed in connection with the network established
under subparagraph (A), are utilized and are compatible
with, to the greatest extent practicable, Federal,
State, and local government, tribal, and private sector
antiterrorism systems and protocols that have been or
are being developed; and
``(C) ensuring, to the greatest extent possible, that
the homeland security information network and
information systems are integrated and interoperable
with existing private sector technologies.''.
SEC. 221. IAIP PERSONNEL RECRUITMENT.
(a) In General.--Chapter 97 of title 5, United States Code, is
amended by adding after section 9701 the following:
``Sec. 9702. Recruitment bonuses
``(a) In General.--Notwithstanding any provision of chapter 57, the
Secretary of Homeland Security, acting through the Under Secretary for
Information Analysis and Infrastructure Protection, may pay a bonus to
an individual in order to recruit such individual for a position that
is primarily responsible for discharging the analytic responsibilities
specified in section 201(d) of the Homeland Security Act of 2002 (6
U.S.C. 121(d)) and that--
``(1) is within the Directorate for Information Analysis and
Infrastructure Protection; and
``(2) would be difficult to fill in the absence of such a
bonus.
In determining which individuals are to receive bonuses under this
section, appropriate consideration shall be given to the Directorate's
critical need for linguists.
``(b) Bonus Amount, Form, Etc.--
``(1) In general.--The amount of a bonus under this section
shall be determined under regulations of the Secretary of
Homeland Security, but may not exceed 50 percent of the annual
rate of basic pay of the position involved.
``(2) Form of payment.--A bonus under this section shall be
paid in the form of a lump-sum payment and shall not be
considered to be part of basic pay.
``(3) Computation rule.--For purposes of paragraph (1), the
annual rate of basic pay of a position does not include any
comparability payment under section 5304 or any similar
authority.
``(c) Service Agreements.--Payment of a bonus under this section
shall be contingent upon the employee entering into a written service
agreement with the Department of Homeland Security. The agreement shall
include--
``(1) the period of service the individual shall be required
to complete in return for the bonus; and
``(2) the conditions under which the agreement may be
terminated before the agreed-upon service period has been
completed, and the effect of any such termination.
``(d) Eligibility.--A bonus under this section may not be paid to
recruit an individual for--
``(1) a position to which an individual is appointed by the
President, by and with the advice and consent of the Senate;
``(2) a position in the Senior Executive Service as a
noncareer appointee (as defined under section 3132(a)); or
``(3) a position which has been excepted from the competitive
service by reason of its confidential, policy-determining,
policy-making, or policy-advocating character.
``(e) Termination.--The authority to pay bonuses under this section
shall terminate on September 30, 2008.
``Sec. 9703. Reemployed annuitants
``(a) In General.--If an annuitant receiving an annuity from the
Civil Service Retirement and Disability Fund becomes employed in a
position within the Directorate for Information Analysis and
Infrastructure Protection of the Department of Homeland Security, the
annuitant's annuity shall continue. An annuitant so reemployed shall
not be considered an employee for the purposes of chapter 83 or 84.
``(b) Termination.--The exclusion pursuant to this section of the
Directorate for Information Analysis and Infrastructure Protection from
the reemployed annuitant provisions of chapters 83 and 84 shall
terminate 3 years after the date of the enactment of this section,
unless extended by the Secretary of Homeland Security. Any such
extension shall be for a period of 1 year and shall be renewable.
``(c) Annuitant Defined.--For purposes of this section, the term
`annuitant' has the meaning given such term under section 8331 or 8401,
whichever is appropriate.
``Sec. 9704. Regulations
``The Secretary of Homeland Security, in consultation with the
Director of the Office of Personnel Management, may prescribe any
regulations necessary to carry out section 9702 or 9703.''.
(b) Clerical Amendment.--The analysis for chapter 97 of title 5,
United States Code, is amended by adding after the item relating to
section 9701 the following:
``9702. Recruitment bonuses.
``9703. Reemployed annuitants.
``9704. Regulations.''.
SEC. 222. HOMELAND SECURITY ADVISORY SYSTEM.
(a) In General.--Subtitle A of title II of the Homeland Security Act
of 2002 is further amended--
(1) in section 201(d)(7) (6 U.S.C. 121(d)(7)) by inserting
``under section 205'' after ``System''; and
(2) by adding at the end the following:
``SEC. 205. HOMELAND SECURITY ADVISORY SYSTEM.
``(a) Requirement.--The Under Secretary for Information Analysis and
Infrastructure Protection shall implement a Homeland Security Advisory
System in accordance with this section to provide public advisories and
alerts regarding threats to homeland security, including national,
regional, local, and economic sector advisories and alerts, as
appropriate.
``(b) Required Elements.--The Under Secretary, under the System--
``(1) shall include, in each advisory and alert regarding a
threat, information on appropriate protective measures and
countermeasures that may be taken in response to the threat;
``(2) shall, whenever possible, limit the scope of each
advisory and alert to a specific region, locality, or economic
sector believed to be at risk; and
``(3) shall not, in issuing any advisory or alert, use color
designations as the exclusive means of specifying the homeland
security threat conditions that are the subject of the advisory
or alert.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is further amended by adding at the end of the items relating
to subtitle A of title II the following:
``Sec. 205. Homeland Security Advisory System.''.
SEC. 223. USE OF OPEN-SOURCE INFORMATION.
Section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d))
is further amended by adding at the end the following:
``(25) To ensure that, whenever possible--
``(A) the Assistant Secretary for Information
Analysis produces and disseminates reports and analytic
products based on open-source information that do not
require a national security classification under
applicable law; and
``(B) such unclassified open-source reports are
produced and disseminated contemporaneously with
reports or analytic products concerning the same or
similar information that the Assistant Secretary for
Information Analysis produces and disseminates in a
classified format.''.
SEC. 224. FULL AND EFFICIENT USE OF OPEN-SOURCE INFORMATION.
(a) Requirement.--Subtitle A of title II of the Homeland Security Act
of 2002 (6 U.S.C. 121 et seq.) is further amended by adding at the end
the following:
``SEC. 206. FULL AND EFFICIENT USE OF OPEN-SOURCE INFORMATION.
``The Under Secretary shall ensure that, in meeting their analytic
responsibilities under section 201(d) and in formulating requirements
for collection of additional information, the Assistant Secretary for
Information Analysis and the Assistant Secretary for Infrastructure
Protection make full and efficient use of open-source information
wherever possible.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is further amended by inserting after the item relating to
section 205 the following:
``Sec. 206. Full and efficient use of open-source information.''.
TITLE III--DOMESTIC PREPAREDNESS AND PROTECTION
Subtitle A--Preparedness and Protection
SEC. 301. NATIONAL TERRORISM EXERCISE PROGRAM.
(a) In General.--Section 430(c) of the Homeland Security Act of 2002
(6 U.S.C. 238(c)) is amended by striking ``and'' after the semicolon at
the end of paragraph (8), by striking the period at the end of
paragraph (9) and inserting ``; and'', and by adding at the end the
following:
``(10) designing, developing, performing, and evaluating
exercises at the national, State, territorial, regional, local,
and tribal levels of government that incorporate government
officials, emergency response providers, public safety
agencies, the private sector, international governments and
organizations, and other appropriate entities to test the
Nation's capability to prevent, prepare for, respond to, and
recover from threatened or actual acts of terrorism.''.
(b) National Terrorism Exercise Program.--
(1) Establishment of program.--Title VIII of the Homeland
Security Act of 2002 (Public Law 107-296) is amended by adding
at the end the following new subtitle:
``Subtitle J--Terrorism Preparedness Exercises
``SEC. 899A. NATIONAL TERRORISM EXERCISE PROGRAM.
``(a) In General.--The Secretary, through the Office for Domestic
Preparedness, shall establish a National Terrorism Exercise Program for
the purpose of testing and evaluating the Nation's capabilities to
prevent, prepare for, respond to, and recover from threatened or actual
acts of terrorism that--
``(1) enhances coordination for terrorism preparedness
between all levels of government, emergency response providers,
international governments and organizations, and the private
sector;
``(2) is--
``(A) multidisciplinary in nature, including, as
appropriate, information analysis and cybersecurity
components;
``(B) as realistic as practicable and based on
current risk assessments, including credible threats,
vulnerabilities, and consequences;
``(C) carried out with the minimum degree of notice
to involved parties regarding the timing and details of
such exercises, consistent with safety considerations;
``(D) evaluated against performance measures and
followed by corrective action to solve identified
deficiencies; and
``(E) assessed to learn best practices, which shall
be shared with appropriate Federal, State, territorial,
regional, local, and tribal personnel, authorities, and
training institutions for emergency response providers;
and
``(3) assists State, territorial, local, and tribal
governments with the design, implementation, and evaluation of
exercises that--
``(A) conform to the requirements of paragraph (2);
and
``(B) are consistent with any applicable State
homeland security strategy or plan.
``(b) National Level Exercises.--The Secretary, in concurrence with
the Attorney General and the National Director of Intelligence, through
the National Terrorism Exercise Program, shall perform on a periodic
basis national terrorism preparedness exercises for the purposes of--
``(1) involving top officials from Federal, State,
territorial, local, tribal, and international governments;
``(2) testing and evaluating the Nation's capability to
detect, disrupt, and prevent threatened or actual catastrophic
acts of terrorism, especially those involving weapons of mass
destruction; and
``(3) testing and evaluating the Nation's readiness to
respond to and recover from catastrophic acts of terrorism,
especially those involving weapons of mass destruction.
``(c) Consultation With First Responders.--In implementing the
responsibilities described in subsections (a) and (b), the Secretary
shall consult with a geographic (including urban and rural) and
substantive cross section of governmental and nongovernmental first
responder disciplines, including as appropriate--
``(1) Federal, State, and local first responder training
institutions;
``(2) representatives of emergency response providers; and
``(3) State and local officials with an expertise in
terrorism preparedness.''.
(2) Clerical amendment.--The table of contents in section
1(b) of such Act is amended by adding at the end of the items
relating to title VIII the following:
``Subtitle J--Terrorism Preparedness Exercises
``Sec. 899a. National terrorism exercise program.''.
(c) TOPOFF Prevention Exercise.--No later than one year after the
date of enactment of this Act, the Secretary of Homeland Security in
concurrence with the Attorney General and the National Director of
Intelligence shall design and carry out a national terrorism prevention
exercise for the purposes of--
(1) involving top officials from Federal, State, territorial,
local, tribal, and international governments; and
(2) testing and evaluating the Nation's capability to detect,
disrupt, and prevent threatened or actual catastrophic acts of
terrorism, especially those involving weapons of mass
destruction.
SEC. 302. TECHNOLOGY DEVELOPMENT AND TRANSFER.
(a) Establishment of Technology Clearinghouse.--Not later than 90
days after the date of enactment of this Act, the Secretary shall
complete the establishment of the Technology Clearinghouse under
section 313 of the Homeland Security Act of 2002.
(b) Transfer Program.--Section 313 of the Homeland Security Act of
2002 (6 U.S.C. 193) is amended--
(1) by adding at the end of subsection (b) the following new
paragraph:
``(6) The establishment of a homeland security technology
transfer program to facilitate the identification,
modification, and commercialization of technology and equipment
for use by Federal, State, and local governmental agencies,
emergency response providers, and the private sector to
prevent, prepare for, or respond to acts of terrorism.'';
(2) by redesignating subsection (c) as subsection (d); and
(3) by inserting after subsection (b) the following new
subsection:
``(c) Technology Transfer Program.--In developing the program
described in subsection (b)(6), the Secretary, acting through the Under
Secretary for Science and Technology, shall--
``(1) in consultation with the other Under Secretaries of the
Department and the Director of the Office for Domestic
Preparedness, on an ongoing basis--
``(A) conduct surveys and reviews of available
appropriate technologies that have been, or are in the
process of being developed, tested, evaluated, or
demonstrated by the Department, other Federal agencies,
or the private sector or foreign governments and
international organizations and that may be useful in
assisting Federal, State, and local governmental
agencies, emergency response providers, or the private
sector to prevent, prepare for, or respond to acts of
terrorism;
``(B) conduct or support research, development,
tests, and evaluations, as appropriate of technologies
identified under subparagraph (A), including any
necessary modifications to such technologies for
antiterrorism use;
``(C) communicate to Federal, State, and local
governmental agencies, emergency response providers, or
the private sector the availability of such
technologies for antiterrorism use, as well as the
technology's specifications, satisfaction of
appropriate standards, and the appropriate grants
available from the Department to purchase such
technologies;
``(D) coordinate the selection and administration of
all technology transfer activities of the Science and
Technology Directorate, including projects and grants
awarded to the private sector and academia; and
``(E) identify priorities based on current risk
assessments within the Department of Homeland Security
for identifying, researching, developing, testing,
evaluating, modifying, and fielding existing
technologies for antiterrorism purposes;
``(2) in support of the activities described in paragraph
(1)--
``(A) consult with Federal, State, and local
emergency response providers;
``(B) consult with government agencies and nationally
recognized standards development organizations as
appropriate;
``(C) enter into agreements and coordinate with other
Federal agencies, foreign governments, and national and
international organizations as the Secretary determines
appropriate, in order to maximize the effectiveness of
such technologies or to facilitate commercialization of
such technologies; and
``(D) consult with existing technology transfer
programs and Federal and State training centers that
research, develop, test, evaluate, and transfer
military and other technologies for use by emergency
response providers; and
``(3) establish a working group in coordination with the
Secretary of Defense to advise and assist the technology
clearinghouse in the identification of military technologies
that are in the process of being developed, or are developed,
by the Department of Defense or the private sector, which may
include--
``(A) representatives from the Department of Defense
or retired military officers;
``(B) nongovernmental organizations or private
companies that are engaged in the research,
development, testing, or evaluation of related
technologies or that have demonstrated prior experience
and success in searching for and identifying
technologies for Federal agencies;
``(C) Federal, State, and local emergency response
providers; and
``(D) to the extent the Secretary considers
appropriate, other organizations, other interested
Federal, State, and local agencies, and other
interested persons.''.
(c) Report.--Not later than 1 year after the date of enactment of
this Act, the Under Secretary for Science and Technology shall transmit
to the Congress a description of the progress the Department has made
in implementing the provisions of section 313 of the Homeland Security
Act of 2002, as amended by this Act, including a description of the
process used to review unsolicited proposals received as described in
subsection (b)(3) of such section.
(d) Savings Clause.--Nothing in this section (including the
amendments made by this section) shall be construed to alter or
diminish the effect of the limitation on the authority of the Secretary
of Homeland Security under section 302(4) of the Homeland Security Act
of 2002 (6 U.S.C. 182(4)) with respect to human health-related research
and development activities.
SEC. 303. REVIEW OF ANTITERRORISM ACQUISITIONS.
(a) Study.--The Secretary of Homeland Security shall conduct a study
of all Department of Homeland Security procurements, including ongoing
procurements and anticipated procurements, to--
(1) identify those that involve any product, equipment,
service (including support services), device, or technology
(including information technology) that is being designed,
developed, modified, or procured for the specific purpose of
preventing, detecting, identifying, or deterring acts of
terrorism or limiting the harm such acts might otherwise cause;
and
(2) assess whether such product, equipment, service
(including support services), device, or technology is an
appropriate candidate for the litigation and risk management
protections of subtitle G of title VIII of the Homeland
Security Act of 2002.
(b) Summary and Classification Report.--Not later than 180 days after
the date of enactment of this Act, the Secretary shall transmit to the
Congress a report--
(1) describing each product, equipment, service (including
support services), device, and technology identified under
subsection (a) that the Secretary believes would be an
appropriate candidate for the litigation and risk management
protections of subtitle G of title VIII of the Homeland
Security Act of 2002;
(2) listing each such product, equipment, service (including
support services), device, and technology in order of priority
for deployment in accordance with current terrorism risk
assessment information; and
(3) setting forth specific actions taken, or to be taken, to
encourage or require persons or entities that sell or otherwise
provide such products, equipment, services (including support
services), devices, and technologies to apply for the
litigation and risk management protections of subtitle G of
title VIII of the Homeland Security Act of 2002, and to ensure
prioritization of the Department's review of such products,
equipment, services, devices, and technologies under such Act
in accordance with the prioritization set forth in paragraph
(2) of this subsection.
SEC. 304. CENTER OF EXCELLENCE FOR BORDER SECURITY.
The Secretary of Homeland Security shall establish a university-based
Center for Excellence for Border Security following the merit-review
processes and procedures that have been established for selecting
University Programs Centers of Excellence. The Center shall prioritize
its activities on the basis of risk to address the most significant
threats, vulnerabilities, and consequences posed by the Nation's
borders and border control systems, including the conduct of research,
the examination of existing and emerging border security technology and
systems, and the provision of education, technical, and analytical
assistance for the Department of Homeland Security to effectively
secure the Nation's borders.
SEC. 305. REQUIREMENTS RELATING TO THE CONTAINER SECURITY INITIATIVE
(CSI).
(a) Risk Assessment and Designation of New Foreign Seaports.--
(1) Risk assessment.--The Secretary of Homeland Security
shall conduct a risk assessment of each foreign seaport that
the Secretary is considering designating as a port under the
Container Security Initiative (CSI) on or after the date of the
enactment of this Act. Each such assessment shall evaluate the
level of risk for the potential compromise of cargo containers
by terrorists or terrorist weapons.
(2) Designation.--The Secretary is authorized to designate a
foreign seaport as a port under CSI on or after the date of the
enactment of this Act only if the Secretary determines, based
on a risk assessment under paragraph (1) and a cost-benefit
analysis, that the benefits of designating such port outweigh
the cost of expanding the program to such port.
(b) Deployment of Inspection Equipment to New CSI Ports.--
(1) Deployment.--The Secretary is authorized to assist in the
loaning of nonintrusive inspection equipment for cargo
containers, on a nonreimbursable basis, at each CSI port
designated under subsection (a)(2) and provide training for
personnel at the CSI port to operate the nonintrusive
inspection equipment.
(2) Additional requirements.--The Secretary shall establish
technical capability requirements and standard operating
procedures for nonintrusive inspection equipment described in
paragraph (1) and shall require each CSI port to agree to
operate such equipment in accordance with such requirements and
procedures as a condition for receiving the equipment and
training under such paragraph.
(c) Deployment of Personnel to New CSI Ports; Reevaluation of
Personnel at All CSI Ports.--
(1) Deployment.--The Secretary shall deploy Department of
Homeland Security personnel to each CSI port designated under
subsection (a)(1) with respect to which the Secretary
determines that the deployment is necessary to successfully
implement the requirements of CSI at the port.
(2) Reevaluation.--The Secretary shall periodically review
relevant risk assessment information with respect to all CSI
ports at which Department of Homeland Security personnel are
deployed to assess whether or not continued deployment of such
personnel, in whole or in part, is necessary to successfully
implement the requirements of CSI at the port.
(d) Inspection and Screening at United States Ports of Entry.--Cargo
containers arriving at a United States port of entry from a CSI port
shall undergo the same level of inspection and screening for potential
compromise by terrorists or terrorist weapons as cargo containers
arriving at a United States port of entry from a foreign seaport that
is not participating in CSI unless the containers were initially
inspected at the CSI port at the request of CSI personnel and such
personnel verify and electronically record that the inspection
indicates that the containers have not been compromised by terrorists
or terrorist weapons.
(e) Definition.--In this section, the term ``Container Security
Initiative'' or ``CSI'' means the program carried out by the Department
of Homeland Security under which the Department enters into agreements
with foreign seaports to--
(1) establish security criteria to identify high-risk
maritime cargo containers bound for the United States based on
advance information; and
(2) screen or inspect such maritime cargo containers for
potential compromise by terrorists or terrorist weapons prior
to shipment to the United States.
SEC. 306. SECURITY OF MARITIME CARGO CONTAINERS.
(a) Regulations.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Homeland Security
shall issue regulations for the security of maritime cargo
containers moving within the intermodal transportation system
in accordance with the requirements of paragraph (2).
(2) Requirements.--The regulations issued pursuant to
paragraph (1) shall be in accordance with recommendations of
the Maritime Transportation Security Act Subcommittee of the
Advisory Committee on Commercial Operations of the Department
of Homeland Security, including recommendations relating to
obligation to seal, recording of seal changes, modal changes,
seal placement, ocean carrier seal verification, and addressing
seal anomalies.
(b) International Agreements.--The Secretary shall seek to enter into
agreements with foreign countries and international organizations to
establish standards for the security of maritime cargo containers
moving within the intermodal transportation system that, to the maximum
extent practicable, meet the requirements of subsection (a)(2).
(c) Container Targeting Strategy.--
(1) Strategy.--The Secretary shall develop a strategy to
improve the ability of the Department of Homeland Security to
use information contained in shipping bills of lading to
identify and provide additional review of anomalies in such
bills of lading. The strategy shall include a method of
contacting shippers in a timely fashion to verify or explain
any anomalies in shipping bills of lading.
(2) Report.--Not later than 90 days after the date of the
enactment of this Act, the Secretary shall submit to the
appropriate congressional committees a report on the
implementation of this subsection, including information on any
data searching technologies that will be used to implement the
strategy.
(d) Container Security Demonstration Program.--
(1) Program.--The Secretary is authorized to establish and
carry out a demonstration program that integrates nonintrusive
inspection equipment, including radiation detection equipment
and gamma ray inspection equipment, at an appropriate United
States seaport, as determined by the Secretary.
(2) Requirement.--The demonstration program shall also
evaluate automatic identification methods for containers and
vehicles and a data sharing network capable of transmitting
inspection data between ports and appropriate entities within
the Department of Homeland Security.
(3) Report.--Upon completion of the demonstration program,
the Secretary shall submit to the appropriate congressional
committees a report on the implementation of this subsection.
(e) Consolidation of Container Security Programs.--The Secretary
shall consolidate all programs of the Department of Homeland Security
relating to the security of maritime cargo containers, including the
demonstration program established pursuant to subsection (d), to
achieve enhanced coordination and efficiency.
SEC. 307. SECURITY PLAN FOR GENERAL AVIATION AT RONALD REAGAN
WASHINGTON NATIONAL AIRPORT.
Not later than 180 days after the date of enactment of this Act, the
Secretary of Homeland Security shall implement section 823(a) of the
Vision 100--Century of Aviation Reauthorization Act (49 U.S.C. 41718
note; 117 Stat. 2595).
SEC. 308. INTEROPERABLE COMMUNICATIONS ASSISTANCE.
(a) Findings.--The Congress finds the following:
(1) The 9/11 Commission determined that the inability of
first responders to communicate effectively on September 11,
2001 was a critical obstacle to an effective multi-
jurisdictional response.
(2) Many jurisdictions across the country still experience
difficulties communicating that may contribute to confusion,
delays, or added risks when responding to an emergency.
(3) During fiscal year 2004, the Office for Domestic
Preparedness awarded over $834,000,000 for 2,912 projects
through Department of Homeland Security grant programs for the
purposes of improving communications interoperability.
(4) Interoperable communications systems are most effective
when designed to comprehensively address, on a regional basis,
the communications of all types of public safety agencies,
first responder disciplines, and State and local government
facilities.
(5) Achieving communications interoperability is complex due
to the extensive training, system modifications, and agreements
among the different jurisdictions that are necessary to
implement effective communications systems.
(6) The Congress authorized the Department of Homeland
Security to create an Office for Interoperability and
Compatibility in the Intelligence Reform and Terrorism
Prevention Act of 2004 to, among other things, establish a
comprehensive national approach, coordinate federal activities,
accelerate the adoption of standards, and encourage research
and development to achieve interoperable communications for
first responders.
(7) The Office for Interoperability and Compatibility
includes the SAFECOM Program that serves as the umbrella
program within the Federal government to improve public safety
communications interoperability, and has developed the RAPIDCOM
program, the Statewide Communications Interoperability Planning
Methodology, and a Statement of Requirements to provide
technical, planning, and purchasing assistance for Federal
departments and agencies, State and local governments, and
first responders.
(b) Sense of Congress.--It is the sense of the Congress that the
Department of Homeland Security should implement as expeditiously as
possible the initiatives assigned to the Office for Interoperability
and Compatibility under section 7303 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (6 U.S.C. 194), including specifically
the following:
(1) Establishing a comprehensive national approach to
achieving public safety interoperable communications.
(2) Issuing letters of intent to commit future funds for
jurisdictions through existing homeland security grant programs
to applicants as appropriate to encourage long-term investments
that may significantly improve communications interoperability.
(3) Providing technical assistance to additional urban and
other high-risk areas to support the establishment of
consistent, secure, and effective interoperable communications
capabilities.
(4) Completing the report to the Congress on the Department's
plans for accelerating the development of national voluntary
consensus standards for public safety interoperable
communications, a schedule of milestones for such development,
and achievements of such development, by no later than 30 days
after the date of enactment of this Act.
SEC. 309. REPORT TO CONGRESS ON IMPLEMENTATION OF RECOMMENDATIONS
REGARDING PROTECTION OF AGRICULTURE.
The Secretary of Homeland Security shall report to the Committee on
Homeland Security and the Committee on the Judiciary of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs and the Committee on the Judiciary of the Senate by no later
than 120 days after the date of the enactment of this Act regarding how
the Department of Homeland Security will implement the applicable
recommendations from the Government Accountability Office report
entitled ``Homeland Security: Much is Being Done to Protect Agriculture
from a Terrorist Attack, but Important Challenges Remain'' (GAO-05-
214).
Subtitle B--Department of Homeland Security Cybersecurity Enhancement
SEC. 311. SHORT TITLE.
This subtitle may be cited as the ``Department of Homeland Security
Cybersecurity Enhancement Act of 2005''.
SEC. 312. ASSISTANT SECRETARY FOR CYBERSECURITY.
(a) In General.--Subtitle A of title II of the Homeland Security Act
of 2002 (6 U.S.C. 121 et seq.) is further amended by adding at the end
the following:
``SEC. 207. ASSISTANT SECRETARY FOR CYBERSECURITY.
``(a) In General.--There shall be in the Directorate for Information
Analysis and Infrastructure Protection a National Cybersecurity Office
headed by an Assistant Secretary for Cybersecurity (in this section
referred to as the `Assistant Secretary'), who shall assist the
Secretary in promoting cybersecurity for the Nation.
``(b) General Authority.--The Assistant Secretary, subject to the
direction and control of the Secretary, shall have primary authority
within the Department for all cybersecurity-related critical
infrastructure protection programs of the Department, including with
respect to policy formulation and program management.
``(c) Responsibilities.--The responsibilities of the Assistant
Secretary shall include the following:
``(1) To establish and manage--
``(A) a national cybersecurity response system that
includes the ability to--
``(i) analyze the effect of cybersecurity
threat information on national critical
infrastructure; and
``(ii) aid in the detection and warning of
attacks on, and in the restoration of,
cybersecurity infrastructure in the aftermath
of such attacks;
``(B) a national cybersecurity threat and
vulnerability reduction program that identifies
cybersecurity vulnerabilities that would have a
national effect on critical infrastructure, performs
vulnerability assessments on information technologies,
and coordinates the mitigation of such vulnerabilities;
``(C) a national cybersecurity awareness and training
program that promotes cybersecurity awareness among the
public and the private sectors and promotes
cybersecurity training and education programs;
``(D) a government cybersecurity program to
coordinate and consult with Federal, State, and local
governments to enhance their cybersecurity programs;
and
``(E) a national security and international
cybersecurity cooperation program to help foster
Federal efforts to enhance international cybersecurity
awareness and cooperation.
``(2) To coordinate with the private sector on the program
under paragraph (1) as appropriate, and to promote
cybersecurity information sharing, vulnerability assessment,
and threat warning regarding critical infrastructure.
``(3) To coordinate with other directorates and offices
within the Department on the cybersecurity aspects of their
missions.
``(4) To coordinate with the Under Secretary for Emergency
Preparedness and Response to ensure that the National Response
Plan developed pursuant to section 502(6) of the Homeland
Security Act of 2002 (6 U.S.C. 312(6)) includes appropriate
measures for the recovery of the cybersecurity elements of
critical infrastructure.
``(5) To develop processes for information sharing with the
private sector, consistent with section 214, that--
``(A) promote voluntary cybersecurity best practices,
standards, and benchmarks that are responsive to rapid
technology changes and to the security needs of
critical infrastructure; and
``(B) consider roles of Federal, State, local, and
foreign governments and the private sector, including
the insurance industry and auditors.
``(6) To coordinate with the Chief Information Officer of the
Department in establishing a secure information sharing
architecture and information sharing processes, including with
respect to the Department's operation centers.
``(7) To consult with the Electronic Crimes Task Force of the
United States Secret Service on private sector outreach and
information activities.
``(8) To consult with the Office for Domestic Preparedness to
ensure that realistic cybersecurity scenarios are incorporated
into tabletop and recovery exercises.
``(9) To consult and coordinate, as appropriate, with other
Federal agencies on cybersecurity-related programs, policies,
and operations.
``(10) To consult and coordinate within the Department and,
where appropriate, with other relevant Federal agencies, on
security of digital control systems, such as Supervisory
Control and Data Acquisition (SCADA) systems.
``(d) Authority Over the National Communications System.--The
Assistant Secretary shall have primary authority within the Department
over the National Communications System.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is amended by adding at the end of the items relating to
subtitle A of title II the following:
``Sec. 207. Assistant Secretary for Cybersecurity.''.
SEC. 313. CYBERSECURITY DEFINED.
Section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101) is
amended by adding at the end the following:
``(17)(A) The term `cybersecurity' means the prevention of
damage to, the protection of, and the restoration of computers,
electronic communications systems, electronic communication
services, wire communication, and electronic communication,
including information contained therein, to ensure its
availability, integrity, authentication, confidentiality, and
nonrepudiation.
``(B) In this paragraph--
``(i) each of the terms `damage' and `computer' has
the meaning that term has in section 1030 of title 18,
United States Code; and
``(ii) each of the terms `electronic communications
system', `electronic communication service', `wire
communication', and `electronic communication' has the
meaning that term has in section 2510 of title 18,
United States Code.''.
SEC. 314. CYBERSECURITY TRAINING PROGRAMS AND EQUIPMENT.
(a) In General.--The Secretary of Homeland Security, acting through
the Assistant Secretary for Cybersecurity, may establish, in
conjunction with the National Science Foundation, a program to award
grants to institutions of higher education (and consortia thereof)
for--
(1) the establishment or expansion of cybersecurity
professional development programs;
(2) the establishment or expansion of associate degree
programs in cybersecurity; and
(3) the purchase of equipment to provide training in
cybersecurity for either professional development programs or
degree programs.
(b) Roles.--
(1) Department of homeland security.--The Secretary, acting
through the Assistant Secretary for Cybersecurity and in
consultation with the Director of the National Science
Foundation, shall establish the goals for the program
established under this section and the criteria for awarding
grants under the program.
(2) National science foundation.--The Director of the
National Science Foundation shall operate the program
established under this section consistent with the goals and
criteria established under paragraph (1), including soliciting
applicants, reviewing applications, and making and
administering grant awards. The Director may consult with the
Assistant Secretary for Cybersecurity in selecting awardees.
(3) Funding.--The Secretary shall transfer to the National
Science Foundation the funds necessary to carry out this
section.
(c) Grant Awards.--
(1) Peer review.--All grant awards under this section shall
be made on a competitive, merit-reviewed basis.
(2) Focus.--In making grant awards under this section, the
Director shall, to the extent practicable, ensure geographic
diversity and the participation of women and underrepresented
minorities.
(3) Preference.--In making grant awards under this section,
the Director shall give preference to applications submitted by
consortia of institutions to encourage as many students and
professionals as possible to benefit from this program.
(d) Authorization of Appropriations.--Of the amount authorized under
section 101, there is authorized to be appropriated to the Secretary
for carrying out this section $3,700,000 for fiscal year 2006.
(e) Definitions.--In this section, the term ``institution of higher
education'' has the meaning given that term in section 101(a) of the
Higher Education Act of 1965 (20 U.S.C. 1001(a)).
SEC. 315. INFORMATION SECURITY REQUIREMENTS AND OMB RESPONSIBILITIES
NOT AFFECTED.
(a) In General.--This subtitle does not affect--
(1) any information security requirement under any other
Federal law; or
(2) the responsibilities of the Director of the Office of
Management and Budget under any other Federal law.
(b) Laws Included.--The laws referred to in subsection (a) include
the following:
(1) Chapter 35 of title 44, United States Code, popularly
known as the Paperwork Reduction Act.
(2) The Clinger-Cohen Act of 1996 (divisions D and E of
Public Law 104-106), including the provisions of law enacted by
amendments made by that Act.
(3) The Federal Information Security Management Act of 2002
(title III of Public Law 107-347), including the provisions of
law enacted by amendments made by that Act.
Subtitle C--Security of Public Transportation Systems
SEC. 321. SECURITY BEST PRACTICES.
Not later than 120 days after the date of enactment of this Act, the
Secretary of Homeland Security shall develop, disseminate to
appropriate owners, operators, and providers of public transportation
systems, public transportation employees and employee representatives,
and Federal, State, and local officials, and transmit to Congress, a
report containing best practices for the security of public
transportation systems. In developing best practices, the Secretary
shall be responsible for consulting with and collecting input from
owners, operators, and providers of public transportation systems,
public transportation employee representatives, first responders,
industry associations, private sector experts, academic experts, and
appropriate Federal, State, and local officials.
SEC. 322. PUBLIC AWARENESS.
Not later than 90 days after the date of enactment of this Act, the
Secretary of Homeland Security shall develop a national plan for public
outreach and awareness. Such plan shall be designed to increase
awareness of measures that the general public, public transportation
passengers, and public transportation employees can take to increase
public transportation system security. Such plan shall also provide
outreach to owners, operators, providers, and employees of public
transportation systems to improve their awareness of available
technologies, ongoing research and development efforts, and available
Federal funding sources to improve public transportation security. Not
later than 9 months after the date of enactment of this Act, the
Secretary shall implement the plan developed under this section.
Subtitle D--Critical Infrastructure Prioritization
SEC. 331. CRITICAL INFRASTRUCTURE.
(a) Completion of Prioritization.--Not later than 90 days after the
date of the enactment of this Act, the Secretary of Homeland Security,
in concurrence with the Attorney General and the National Director of
Intelligence shall complete the prioritization of the Nation's critical
infrastructure according to all of the following criteria:
(1) The threat of terrorist attack, based on threat
information received and analyzed by the Office of Information
Analysis of the Department regarding the intentions and
capabilities of terrorist groups and other potential threats to
the Nation's critical infrastructure.
(2) The likelihood that an attack would cause the destruction
or significant disruption of such infrastructure.
(3) The likelihood that an attack would result in substantial
numbers of deaths and serious bodily injuries, a substantial
adverse impact on the national economy, or a substantial
adverse impact on national security.
(b) Cooperation.--Such prioritization shall be developed in
cooperation with other relevant Federal agencies, State, local, and
tribal governments, and the private sector, as appropriate.
SEC. 332. SECURITY REVIEW.
(a) Requirement.--Not later than 9 months after the date of the
enactment of this Act, the Secretary, in coordination with other
relevant Federal agencies, State, local, and tribal governments, and
the private sector, as appropriate, shall--
(1) review existing Federal, State, local, tribal, and
private sector plans for securing the critical infrastructure
included in the prioritization developed under section 331;
(2) recommend changes to existing plans for securing such
infrastructure, as the Secretary determines necessary; and
(3) coordinate and contribute to protective efforts of other
Federal, State, local, and tribal agencies and the private
sector, as appropriate, as directed in Homeland Security
Presidential Directive 7.
(b) Contents of Plans.--The recommendations made under subsection
(a)(2) shall include--
(1) necessary protective measures to secure such
infrastructure, including milestones and timeframes for
implementation; and
(2) to the extent practicable, performance metrics to
evaluate the benefits to both national security and the
Nation's economy from the implementation of such protective
measures.
SEC. 333. IMPLEMENTATION REPORT.
(a) In General.--Not later than 15 months after the date of the
enactment of this Act, the Secretary shall submit a report to the
Committee on Homeland Security and the Committee on the Judiciary of
the House of Representatives and the Committee on Homeland Security and
Governmental Affairs and the Committee on the Judiciary of the Senate
on the implementation of section 332. Such report shall detail--
(1) the Secretary's review and coordination of security plans
under section 332; and
(2) the Secretary's oversight of the execution and
effectiveness of such plans.
(b) Update.--Not later than 1 year after the submission of the report
under subsection (a), the Secretary shall provide an update of such
report to the congressional committees described in subsection (a).
SEC. 334. PROTECTION OF INFORMATION.
Information that is generated, compiled, or disseminated by the
Department of Homeland Security in carrying out this section--
(1) is exempt from disclosure under section 552 of title 5,
United States Code; and
(2) shall not, if provided by the Department to a State or
local government or government agency--
(A) be made available pursuant to any State or local
law requiring disclosure of information or records;
(B) otherwise be disclosed or distributed to any
person by such State or local government or government
agency without the written consent of the Secretary; or
(C) be used other than for the purpose of protecting
critical infrastructure or protected systems, or in
furtherance of an investigation or the prosecution of a
criminal act.
TITLE IV--MISCELLANEOUS
SEC. 401. BORDER SECURITY AND ENFORCEMENT COORDINATION AND OPERATIONS.
(a) Findings.--The Congress makes the following findings:
(1) In creating the Department of Homeland Security, the
Congress sought to enhance the Nation's capabilities to
prevent, protect against, and respond to terrorist acts by
consolidating existing Federal agencies with homeland security
functions into a single new Department, and by realigning the
missions of those legacy agencies to more directly support our
national homeland security efforts.
(2) As part of this massive government reorganization,
section 442 of the Homeland Security Act of 2002 (Public Law
107-273) established a Bureau of Border Security and
transferred into it all of the functions, programs, personnel,
assets, and liabilities pertaining to the following programs:
the Border Patrol; alien detention and removal; immigration-
related intelligence, investigations, and enforcement
activities; and immigration inspections at ports of entry.
(3) Title IV of the Homeland Security Act of 2002 (Public Law
107-273) also transferred to the new Department the United
States Customs Service, as a distinct entity within the new
Department, to further the Department's border integrity
mission.
(4) Utilizing its reorganization authority provided in the
Homeland Security Act of 2002, the President submitted a
reorganization plan for the Department on January 30, 2003.
(5) This plan merged the customs and immigration border
inspection and patrol functions, along with agricultural
inspections functions, into a new entity called the Bureau of
Customs and Border Protection.
(6) The plan also combined the customs and immigration
enforcement agents, as well as the Office of Detention and
Removal Operations, the Office of Federal Protective Service,
the Office of Federal Air Marshal Service, and the Office of
Intelligence, into another new entity called U.S. Immigration
and Customs Enforcement.
(7) The President's January 30, 2003, reorganization plan did
not explain the reasons for separating immigration inspection
and border patrol functions from other immigration-related
enforcement functions, or to combine immigration-related
enforcement functions with customs and other functions,
contrary to the design of the Bureau of Border Security as
prescribed by the Congress in section 442 of the Homeland
Security Act of 2002.
(8) Two years after this structure has been in effect,
questions remain about whether the Department has organized
itself properly, and is managing its customs and immigration
enforcement and border security resources in the most
efficient, sensible, and effective manner.
(9) U.S. Immigration and Customs Enforcement has faced major
budgetary challenges that are, in part, attributable to the
inexact division of resources upon the separation of
immigration functions. These budget shortfalls have forced U.S.
Immigration and Customs Enforcement to impose hiring freezes
and to release aliens that otherwise should be detained.
(b) Report.--
(1) In general.--Not later than 30 days after the date of the
enactment of this Act, the Secretary of Homeland Security shall
review and evaluate the current organizational structure of the
Department of Homeland Security established by the President's
January 30, 2003, reorganization plan and submit a report of
findings and recommendations to the Congress.
(2) Contents of report.--The report shall include--
(A) a description of the rationale for, and any
benefits of, the current organizational division of
U.S. Immigration and Customs Enforcement and the Bureau
of Customs and Border Protection, with respect to the
Department's immigration and customs missions;
(B) a description of the organization, missions,
operations, and policies of the Bureau of Customs and
Border Protection and U.S. Immigration and Customs
Enforcement, and areas of unnecessary overlap or
operational gaps among and between these missions;
(C) a description of the rationale for, and any
benefits of, the current organizational combination of
immigration-related enforcement functions with customs
and other functions;
(D) an analysis of alternative organizational
structures that could provide a more effective way to
deliver maximum efficiencies and mission success;
(E) a description of the current role of the
Directorate of Border and Transportation Security with
respect to providing adequate direction and oversight
of the two agencies, and whether this management
structure is still necessary;
(F) an analysis of whether the Federal Air Marshals
and the Federal Protective Service are properly located
within the Department within U.S. Immigration and
Customs Enforcement;
(G) the proper placement and functions of a
specialized investigative and patrol unit operating at
the southwest border on the Tohono O'odham Nation,
known as the Shadow Wolves;
(H) the potential costs of reorganization, including
financial, programmatic, and other costs, to the
Department; and
(I) recommendations for correcting the operational
and administrative problems that have been caused by
the division of the Bureau of Customs and Border
Protection and U.S. Immigration and Customs Enforcement
and by the combination of immigration-related
enforcement functions with customs and other functions
in both entities, including any appropriate
reorganization plans.
SEC. 402. GAO REPORT TO CONGRESS.
Not later than 6 months after the date of the enactment of this Act,
the Comptroller General of the United States shall submit to the
Congress a report that sets forth--
(1) an assessment of the effectiveness of the organizational
and management structure of the Department of Homeland Security
in meeting the Department's missions; and
(2) recommendations to facilitate and improve the
organization and management of the Department to best meet
those missions.
SEC. 403. PLAN FOR ESTABLISHING CONSOLIDATED AND COLOCATED REGIONAL
OFFICES.
Not later than 60 days after the date of the enactment of this Act,
the Secretary of Homeland Security shall develop and submit to the
Congress a plan for establishing consolidated and colocated regional
offices for the Department of Homeland Security in accordance with
section 706 of the Homeland Security Act of 2002 (6 U.S.C. 346).
SEC. 404. PLAN TO REDUCE WAIT TIMES.
Not later than 180 days after the date of enactment of this Act, the
Secretary of Homeland Security shall develop a plan--
(1) to improve the operational efficiency of security
screening checkpoints at commercial service airports so that
average peak waiting periods at such checkpoints do not exceed
20 minutes; and
(2) to ensure that there are no significant disparities in
immigration and customs processing times among airports that
serve as international gateways.
SEC. 405. DENIAL OF TRANSPORTATION SECURITY CARD.
Section 70105(c) of title 46, United States Code, is amended--
(1) in paragraph (3) by inserting before the period ``before
an administrative law judge''; and
(2) by adding at the end the following:
``(5) In making a determination under paragraph (1)(D) that an
individual poses a terrorism security risk, the Secretary shall not
consider, as the sole reason, a felony conviction if--
``(A) that felony occurred more than 7 years prior to the
date of the Secretary's determination; and
``(B) the felony was not an offense that is a violation of a
provision specified in subparagraph (B) of section 2332b(g)(5)
of title 18.''.
SEC. 406. TRANSFER OF EXISTING CUSTOMS PATROL OFFICERS UNIT AND
ESTABLISHMENT OF NEW CPO UNITS IN THE U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT.
(a) Transfer of Existing Unit.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of Homeland Security
shall transfer to the U.S. Immigration and Customs Enforcement all
functions (including the personnel, assets, and obligations held by or
available in connection with such functions) of the Customs Patrol
Officers unit of the Bureau of Customs and Border Protection operating
on the Tohono O'odham Indian reservation (commonly known as the
``Shadow Wolves'' unit).
(b) Establishment of New Units.--The Secretary is authorized to
establish within the U.S. Immigration and Customs Enforcement
additional units of Customs Patrol Officers in accordance with this
section.
(c) Duties.--The Secretary is authorized to establish within the U.S.
Immigration and Customs Enforcement additional units of Customs Patrol
Officers in accordance with this section.
(d) Basic Pay for Journeyman Officers.--The rate of basic pay for a
journeyman Customs Patrol Officer in a unit described in this section
shall be not less than the rate of basic pay for GS-13 of the General
Schedule.
(e) Supervisors.--Each unit described under this section shall be
supervised by a Chief Customs Patrol Officer, who shall have the same
rank as a resident agent-in-charge of the Office of Investigations.
SEC. 407. DATA COLLECTION ON USE OF IMMIGRATION CONSULTANTS.
The Secretary of Homeland Security shall establish procedures to
record information on applications for an immigration benefit submitted
by an alien with respect to which--
(1) the alien states that the alien used the services of an
immigration consultant; or
(2) a Department employee or official investigating facts
alleged in the application, or adjudicating the application,
suspects that the alien used the services of an immigration
consultant.
Purpose and Summary
H.R. 1817, the ``Homeland Security Department Authorization
Act for Fiscal Year 2006,'' represents the first legislative
authorization of the Department of Homeland Security since it
was established after enactment of the Homeland Security Act
(Pub. L. No. 107-296).
Background and Need for the Legislation
The House Committee on the Judiciary played an integral
role in creating the Department of Homeland Security (``DHS''
or ``Department'') and retains legislative and oversight
jurisdiction over several components within it. In addition,
the Committee on the Judiciary has conducted rigorous oversight
of the operation of the DHS since its establishment. H.R. 1817
was introduced by Rep. Christopher Cox on April 26, 2005, and
reported by the Committee on Homeland Security by voice vote on
April 27, 2005. The Judiciary Committee received a sequential
referral on the legislation until May 13, 2005. H.R. 1817 makes
a number of modifications to the operation of DHS in order to
streamline its management and organization.
House Rule X provides the Committee on the Judiciary with
jurisdiction over ``criminal law enforcement''\1\ and
``subversive activities affecting the internal security of the
United States.''\2\ As a result, the Committee has jurisdiction
over criminal law enforcement activities undertaken by a number
of Federal agencies, including law enforcement activities
undertaken by DHS. The Committee also has exclusive
jurisdiction over the nation's immigration and naturalization
laws.\3\ As a result, non-border security-related
responsibilities of DHS are within the sole jurisdiction of the
Committee on the Judiciary.
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\1\House Rule X(1)(1)(7).
\2\House Rule X(1)(1)(19).
\3\House Rule X(1)(1)(9).
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TERRORISM PREVENTION: DEFINITION AND BACKGROUND
When establishing the Department of Homeland Security,
Congress intended to streamline homeland security functions of
the Federal government to eliminate mission redundancy and to
improve coordination to respond to terrorist attacks. The
Homeland Security Act of 2002 indicated that one of the
missions of the Department is to ``prevent terrorist attacks
within the United States.'' While the same term is used to
describe the mission of the Department of Justice, the
legislative history surrounding passage of the Homeland
Security Act, and subsequent Homeland Security Presidential
Directives, demonstrate that there are crucial differences
between these missions.
During consideration of the Homeland Security Act, the
Committee on the Judiciary expressed concern that this phrase
would confuse the Department of Homeland Security's mission
with that of the Department of Justice, creating more
duplication and uncertainty rather than streamlining the
homeland security functions of the Federal Government. As is
made clear in H.R. Rep. No. 107-609, which was prepared by the
House Select Committee on Homeland Security and accompanied the
Homeland Security Act, the prevention of terrorism has a
specific definition when used to describe the mission of the
Department of Homeland Security. Specifically, the report
states: ``The Department [of Homeland Security's]s primary
responsibilities will include: analyzing information and
protecting infrastructure; developing countermeasures against
chemical, biological, radiological, and nuclear attacks;
securing U.S. borders and transportation systems; organizing
emergency preparedness and response efforts; conducting
homeland security related research, development, technology,
and acquisition programs; coordinating counter-terrorism
activities with other Federal agencies, State and local
governments, and the private sector.''
Homeland Security Presidential Directives (HSPD) issued
after the establishment of the Department of Homeland Security
further clarify this distinction. Issued in February of 2003,
Paragraph (4) of HSPD-5\4\ defines the Secretary of Homeland
Security as the principal Federal official for domestic
incident management. HSPD-5 explains that pursuant to the
Homeland Security Act of 2002, the Secretary is responsible for
coordinating Federal operations within the United States to
prepare for, respond to, and recover from terrorist attacks,
major disasters, and other emergencies. HSPD-5 distinguishes
this role from the investigative authority to prevent
terrorism.
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Paragraph (8) of HSPD-5, clearly dictates that it is the
Attorney General who ``has lead responsibility for criminal
investigations of terrorist acts or terrorist threats by
individuals or groups inside the United States, or directed at
United States citizens or institutions abroad, where such acts
are within the Federal criminal jurisdiction of the United
States, as well as for related intelligence collection
activities within the United States, subject to the National
Security Act of 1947 and other applicable law, Executive Order
12333, and Attorney General-approved procedures pursuant to
that Executive Order. Generally acting through the Federal
Bureau of Investigation, the Attorney General, in cooperation
with other Federal departments and agencies engaged in
activities to protect our national security, shall also
coordinate the activities of the other members of the law
enforcement community to detect, prevent, preempt, and disrupt
terrorist attacks against the United States. Following a
terrorist threat or an actual incident that falls within the
criminal jurisdiction of the United States, the full
capabilities of the United States shall be dedicated,
consistent with United States law and with activities of other
Federal departments and agencies to protect our national
security, to assisting the Attorney General to identify the
perpetrators and bring them to justice.''
HSPD-8\5\ is a companion to HSPD-5, and further clarifies
this critical distinction. Issued in December of 2003, HSPD-8
describes the way Federal departments and agencies will prepare
for an attack including prevention activities during the early
stages of a terrorism incident. Under HSPD-8, the term
``prevention'' has a narrower meaning than in HSPD-5. HSPD-8
states that the term ``prevention'' refers to activities
undertaken by the first responder community during the early
stages of an incident to reduce the likelihood or consequences
of threatened or actual terrorist attacks. More general and
broader efforts to deter, disrupt, or thwart terrorism are not
addressed in this directive [HSPD-8].''
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Both types of terrorism prevention require the involvement
of law enforcement, and both are vital to the security of our
Nation. However, continuing confusion about the distinction
between these two prevention missions perpetuates the overlap,
duplication, turf battles, and information hoarding that the
Homeland Security Act sought to eliminate. Similarly, the
Department of Justice should continue to carry out its mission
as the primary Federal agency for investigating and prosecuting
terrorism. Finally, it is the Committee on the Judiciary's
understanding that H.R. 1817 will not alter or diminish the
existing authority of Federal agencies (as defined in statute,
regulation, or presidential directive, finding or Executive
Order) other than the Department of Homeland Security.
IMMIGRATION ENFORCEMENT AT DHS--BACKGROUND, HISTORY, AND PRESENT ISSUES
The transfer of immigration enforcement and services
functions from the Immigration & Naturalization Service (INS)
to the Department of Homeland Security (DHS), while eliminating
a problematic dual mission between immigration service and
enforcement, has instead created a similarly conflicting
mission between customs and immigration enforcement.
Unfortunately, the Department of Homeland Security, Immigration
& Customs Enforcement (ICE) and Customs and Border Protection
(CBP) both suffer from dual competing missions. Even more
problematic, however, are indications that ICE, and to a lesser
extent CBP, have been prioritizing customs enforcement over
immigration enforcement (the ``customization of'' ICE and CBP).
Furthermore, the leadership of both organizations has been
dominated by former U.S. Customs officials.
The Homeland Security Act of 2002 did not establish the
present organization of CBP and ICE (to include customs and
other enforcement responsibilities). In fact, at no time during
reorganization planning was it anticipated by the Committee on
the Judiciary or other committees in Congress that an
immigration enforcement agency would share its role with other
enforcement agencies or that interior immigration enforcement
would be separated from border protection. Such dual or even
multiple mission agencies were never discussed in any official
proceedings in Congress, and, in fact, as noted below, the
congressional record indicates the reorganization of INS was
intended in large part to avoid the problems inherent in dual
missions.
Formation and present organization of CBP and ICE
The Homeland Security Act of 2002 transferred INS'
immigration service function to U.S. Citizenship & Immigration
Services (USCIS), and enforcement functions to ICE and CBP. To
a great extent, ICE and CBP are led by former customs officials
and geared towards customs enforcement.
An examination of CBP leadership reveals an emphasis on
customs over immigration. Mr. Robert Bonner was head of the
Drug Enforcement Agency (DEA), an organization that like the
former Bureau of Customs is devoted to anti-drug enforcement
(as GAO report GAO-05-81 states, ``Customs investigators who
specialized in customs enforcement (e.g., drug smuggling)'').
The online biography of the Deputy Commissioner of CBP also
reveals a heavy customs enforcement background. Presently, all
other top leadership positions at CBP have been assigned to
persons with customs, rather than immigration enforcement
backgrounds. At ICE, a similar phenomenon has occurred except
for Assistant Secretary for ICE, Michael Garcia, who was
formerly an Assistant U.S. Attorney and briefly the former
Commissioner at INS. At the ``street level,'' virtually all of
the Special Agents in Charge (SACs) at ICE were assigned from
the former Bureau of Customs. This scarcity of individuals with
immigration-related backgrounds has undermined the quality of
immigration enforcement at both CPB and * * *.
Government Accountability Office report
The Government Accountability Office (GAO) studied the
transition of INS into the Department of Homeland Security
(DHS) late last year. The creation of USCIS has been relatively
smooth (despite the enormous continued presence of an
immigration petition backlog and the loss of a credible anti-
fraud program). USCIS remains an entity that focuses solely on
immigration service. However, GAO concluded that CBP and
especially ICE, remain in transition mode:
CBP brought together INS and Customs inspections
programs that, prior to the transition, largely worked
side by side in many land ports of entry around the
country and that shared similar missions. CIS was a
direct transfer of the Immigration Services Division
within INS and the program remained largely intact. In
contrast ICE is a patchwork of agencies and programs
that includes INS's investigations and intelligence
programs, Customs' air and marine interdiction
division, the Federal Protective Service, and the
Federal Air Marshals. * * * The integration of INS and
Customs investigators into a single investigative
program has involved blending of two vastly different
workforces * * * [b]oth programs were in agencies that
prior to the merger had differences investigative
priorities. Both programs were in agencies with dual
missions that prior to the merger differences in
investigative priorities.
GAO also identified immigration application fraud as an
area of disagreement between USCIS and ICE Field Offices.
Apparently, USCIS continues to forward cases to ICE that USCIS
believes should be investigated, but ICE declines to
investigate a vast majority of those cases, citing limited
resources:
Prior to the transition, INS had begun to place a
priority on investigating benefit fraud perpetrated by
large scale organizations * * * this has continued
under ICE. As a result, some CIS field offices told us
that ICE would not pursue single cases of benefit
fraud. ICE field officials who spoke on this issue
cited a lack of investigative resources.
History of restructuring legislation
Approved by the House by a vote margin of 405-9, the
``Barbara Jordan Immigration Reform and Accountability Act of
2002'' (H.R. 3231) would have abolished INS and created an
Office of Associate Attorney General for Immigrant Affairs
within the Department of Justice. Under the newly created
Office, two new bureaus would have been established, the Bureau
of Citizenship and Immigration Services and the Bureau of
Immigration Enforcement. Each Bureau would have been headed by
a director who would have reported to the Associate Attorney
General for Immigration Affairs. Within each Bureau would have
been the following newly created offices and positions: (1)
Office of Policy and Strategy; (2) Legal Advisor; (3) Chief
Budget Officer; and (4) Office of Congressional
Intergovernmental and Public Affairs.
Importantly, the U.S. Commission on Immigration Reform, the
commission headed by Barbara Jordan that first proposed
breaking up INS, found that:
the INS does not receive the attention it deserves,
given the importance of immigration policy to our
national well-being and security. Creating the new
Associate Attorney General elevates immigration issues
within the Justice Department and ensures that
immigration will consistently receive the attention,
management, and oversight that it needs. (Emphasis
added). The Commission also:
recommend[ed] fundamental restructuring of
responsibilities within the federal government to
support more effective management of the core functions
of the immigration system * * * the immigration system
is one of the most complicated in the federal
government bureaucracy * * * one agency has multiple,
and sometimes conflicting, operational responsibilities
* * * further recommends that the newly configured
agency have the prominence and visibility that the
Federal Bureau of Investigation [FBI] currently enjoys
* * * (Emphasis added).
The Bureau of Immigration Enforcement was to be headed by a
director who would have a minimum of ten years of law
enforcement professional experience, at least five of which
must have been in a managerial capacity (it was always
anticipated that the agency would only have an immigration
enforcement mission, however).
Under the proposed legislation, the newly created
Immigration Enforcement Bureau would have been responsible for
all border patrol, inspections, detention, removal,
investigation, and intelligence functions. The act would have
also transferred the enforcement functions of the Office of
Special Investigations from DOJ's Criminal Division and the
enforcement functions of the Office of Immigration Litigation
from DOJ's Civil Division to the newly created bureau.
Homeland Security Act of 2002
Section 441 of the Act transferred all immigration
enforcement functions to a newly established ``Bureau of Border
Security.'' The legislation specifically only mentions the
transfer from INS of ``the Border Patrol program, the detention
and removal program, the intelligence program, the
investigations program, the inspections program,'' and does not
mention agriculture of customs enforcement, Federal Air
Marshals or Federal Protective Service. (INS' immigration
service was ultimately transferred to U.S. Citizenship &
Immigration Services (USCIS), and enforcement functions to ICE
and CBP. In so doing, former INS Border Patrol was combined
with U.S. Customs inspectors from the Department of Treasury,
and agricultural inspectors from the Department of Agriculture,
to create CBP. ICE was formed from former INS internal
enforcement, Treasury anti-money laundering and customs
enforcement from the Department of the Treasury, Federal
Protective Service, and the Federal Air Marshals.)
The President had the authority pursuant to section 1502(c)
of the Act to modify the provisions relating to INS functions
in his November 25, 2002, DHS Reorganization plan. The
modification only made changes within the Border and
Transportation Security Directorate. Under the modified
reorganization plan, DHS would bring together the various
border agencies into the Bureau of Customs and Border
Protection. Specifically, CBP is comprised of the resources and
missions relating to borders and ports of entry of the Customs
Service, INS's Border Patrol and inspections program, and the
U.S. Department of Agriculture's Agricultural Quarantine
Inspection program.
ICE was to bring together the interior enforcement and
investigation arms of the Customs Service, with INS's detention
and removal, intelligence, and investigation programs. The new
Bureau of Immigration and Customs (later renamed ICE) would
also contain the Federal Protective Service. It was anticipated
that ICE would enhance ``interior'' security while promoting
information sharing with the FBI and developing stronger
relationships with the U.S. Attorneys' Office.
An immigration enforcement agency with any role other than
immigration enforcement was never formally considered by the
Committee on the Judiciary or any other committee in Congress.
As the legislative history surrounding passage of the Homeland
Security Act underlines, and as the overwhelming passage of the
Barbara Jordan Immigration Reform and Accountability Act
further demonstrates, such dual or even multiple missions were
expressly rejected by Congress.
Provisions of H.R. 1817 Within the Jurisdiction of the Committee on the
Judiciary
There are several provisions contained in H.R. 1817 (as
reported by the Committee on Homeland Security) that directly
implicate the jurisdiction of the Committee. A summary of
principal provisions follows.
Sec. 102. Border patrol agents
This section authorizes appropriations to hire an
additional 2,000 border patrol agents. These funds will permit
the Secretary of Homeland Security, in Fiscal Year 2006, to
fully hire, train, and equip the 2,000 additional Border Patrol
agents originally authorized under the Intelligence Reform and
Terrorism Prevention Act of 2004 (P.L. No. 108-458).
Sec. 107. State and local terrorism preparedness
This section authorizes appropriations for Fiscal Year 2006
for certain State and Local Terrorism Preparedness programs.
Sec. 108. Authorization of appropriations for training of State and
local personnel in border States performing immigration
functions
As reported from the Homeland Security Committee, this
section authorizes $40 million (from the management and
administration budget of the Bureau of Immigration and Customs
Enforcement) to reimburse States along U.S. borders (30 miles
or less from a border or coastline) for costs associated with
having State and local law enforcement personnel trained and
certified by the Immigration and Customs Enforcement (ICE) to
enforce Federal immigration laws. The amendment strikes this
section. The Homeland Security Committee lacks jurisdiction
over this provision. In addition, if funding is authorized, all
States (rather than those with borders or coastlines) should be
reimbursed for costs associated with State and local law
enforcement personnel training and certification by Federal
immigration authorities.
Sec. 201. Terrorism Prevention Plan and related budget submission
This section authorizes the establishment of a Terrorist
Prevention Plan (TPP) at DHS that encompasses: the
identification and prioritization of the most significant
threats presented by terrorist organizations; an evaluation of
the materials and methods that terrorists may use and the
outcomes the terrorists aim to achieve; the process of
coordination between DHS and the National Counter Terrorism
Center; policies and procedures regarding how DHS will gather
real-time information and incorporate it into counter-terrorism
activities; specific initiatives by DHS to identify threats,
coordinate activities within DHS to prevent acts of terrorism,
and share information with state and local governments and the
private sector. In formulating the TPP, the Secretary of DHS is
required to consult with the heads of key Federal law
enforcement and intelligence agencies, as well as State,
county, and local law enforcement agencies the Secretary
considers appropriate.
Sec. 202. Consolidated background check process
This section requires the Secretary of Homeland Security to
create a single process for conducting security screening and
background checks on individuals participating in voluntary or
mandatory departmental credentialing or registered travel
program.
Sec. 216. Authority for disseminating homeland security information
This section designates the Secretary of Homeland Security
as the executive branch official responsible for the
dissemination of homeland security information to State and
local officials.
Sec. 222. Information collection requirements and priorities
This section amends section 102 of the Homeland Security
Act of 2002 (Pub. L. No. 107-296) to add a provision that would
make the Secretary of Homeland Security a member of any Federal
interagency board that is responsible for establishing foreign
collection information requirements and priorities. This
section also establishes an interagency Homeland Security
Information Requirements Board, chaired by the Secretary of
Homeland Security, to oversee the process of establishing
homeland security requirements and collection management for
all terrorism-related and homeland security information
collected within the United States.
Sec. 301. National terrorism exercise program
This section establishes a National Terrorism Exercise
Program for testing and evaluating the Nation's ``capabilities
to prevent * * * threatened or actual acts of terrorism * * *
[and its] capability to detect, disrupt, and prevent threatened
or actual catastrophic acts of terrorism.''
Sec. 303. Review of antiterrorism acquisitions
This section requires the Secretary of DHS to study all
Department procurements to identify those involving technology
that has the purpose of preventing, detecting, identifying, or
deterring acts of terrorism or limiting the harm such acts
might otherwise cause, and to assess whether the technology is
an appropriate candidate for the litigation and risk management
protections of subtitle G of title VIII of the Homeland
Security Act of 2002 (Pub. L. No. 107-296) (more commonly known
as the ``Support Anti-terrorism by Fostering Effective
Technologies Act of 2002'' or ``SAFETY Act'').
Sec. 311. Department of Homeland Security Cybersecurity Enhancement Act
of 2005
This section establishes a cybersecurity office within the
Department of Homeland Security, and requires the coordination
of Federal, State and local officials to enhance cybersecurity
cooperation.
Sec. 321. Security best practices
This section requires the submission of a report to
Congress detailing best practices for enhancing the security of
public transportation systems.
Sec. 332. Security review
This section requires the Secretary of Homeland Security,
in coordination with ``other relevant Federal agencies'' to
``review existing Federal, State, [and] local plans * * * for
securing the critical infrastructure.''
Sec. 401. Border security and enforcement coordination and operations
This section contains several findings concerning the
implementation of the Homeland Security Act and the
administration of Immigration and Customs Enforcement and
border security missions. This section also contains broad
conclusions concerning the division of resources within
Immigration and Customs Enforcement and other immigration-
related functions of the Department of Homeland Security, and
makes specific recommendations concerning the proper
organization of immigration-related functions at the Department
of Homeland Security.
Sec. 405. Denial of transportation security card
Section 70105 of Title 46 of the U.S. Code requires the
issuance of Transportation Worker Identification Cards (TWICs)
for workers that enter secure areas on vessels or maritime
facilities. The Transportation Security Administration (TSA) is
currently preparing regulations and testing technologies in
advance of fully implementing this requirement. This section
provides that, when determining if a worker is `otherwise a
terrorism security risk,' the Secretary can consider felonies
that occurred more than seven years before the issuance of the
TWIC only if the felony was related to terrorism, as that term
is defined in the Homeland Security Act of 2002.
Amendments to H.R. 1817 Reported by the Committee on the Judiciary
Sensenbrenner-Conyers Amendment to H.R. 1817
A bipartisan Manager's Amendment supported by Chairman
Sensenbrenner and Ranking Member Conyers was reported from the
Committee. This amendment made a number of changes to H.R. 1817
(as reported by the Committee on Homeland Security) that
promote administrative efficiency and ensure against
unnecessary duplication of responsibilities at DHS and other
Federal agencies. A summary of this amendment and the changes
made by the amendment are reflected below.
CRIMINAL LAW ENFORCEMENT PROVISIONS CONTAINED IN THE SENSENBRENNER-
CONYERS AMENDMENT
Sec. 3. Definitions
Section 3 did not appear in H.R. 1817 as reported by the
Homeland Security Committee. The phrases ``prevent terrorist
attacks'' and ``terrorism prevention'' appear throughout the
legislation. The term ``terrorism prevention'' can entail a
number of different functions and responsibilities. Some of
these functions are the responsibility of the DHS and some are
the responsibility of other agencies such as the Department of
Justice or the newly created Director of National Intelligence.
In order to prevent unnecessary duplication, a definition of
``terrorism prevention'' was included in this section.
Sec. 108. Authorization of appropriations for training of State and
local personnel in border States performing immigration
functions
As reported from the Homeland Security Committee, this
section authorizes $40 million (from the management and
administration budget of the Bureau of Immigration and Customs
Enforcement) to reimburse States along U.S. borders (30 miles
or less from a border or coastline) for costs associated with
having State and local law enforcement personnel trained and
certified by the Immigration and Customs Enforcement (ICE) to
enforce Federal immigration laws. The amendment strikes this
section. The Homeland Security Committee lacks jurisdiction
over this provision. In addition, if funding is authorized, the
Committee believes all States (rather than those with borders
or coastlines) should be reimbursed for costs associated with
State and local law enforcement personnel training and
certification by Federal immigration authorities.
Sec. 201. Terrorism prevention plan and related budget submission
As reported by the Committee on Homeland Security, this
section authorizes DHS to expand its powers beyond the
statutory authority. The Sensenbrenner-Conyers amendment
reported by the Committee clarifies the authority of DHS in
relation to law enforcement and intelligence agencies in order
to better reflect the mission of the DHS and to promote
administrative efficiency within DHS and other Federal
agencies. Specifically, the amendment clarifies DHS authority
to identify vulnerabilities of the United States to terrorist
attacks and use this information to prevent terrorist attacks
by securing our borders, securing critical infrastructure,
disseminating homeland security information to Federal, State
and local governments, and preparing first responders for
terrorist attacks. The changes to this section are essential to
clarify the proper role of the DHS and avoid duplication and
turf battles among competing Federal agencies in the fight
against terrorism. Each agency has a role in this fight which
has been established by Congress, and the responsibilities
should be reinforced by this legislation. The legislation, as
amended by the Committee on Homeland Security, would create
confusion about the roles and responsibilities of the Federal
agencies.
Sec. 202. Consolidated background check process
The Sensenbrenner-Conyers amendment to this section
preserves DHS authority to administer a consolidated background
check process but inserts ``in consultation with the Attorney
General.'' The Attorney General requires consultation because
criminal background checks often involve the resources of the
Department of Justice.
Sec. 216. Authority for Disseminating Homeland Security Information
As reported by the Committee on Homeland Security, this
section provides DHS with sole authority to disseminate
``homeland security'' information to State and local government
agencies and would prohibit other agencies from sharing such
information. An exception would be made for information
necessary for criminal justice purposes. It is unclear what the
terms ``homeland security information'' and ``criminal justice
purposes'' entail. The amendment would establish the Department
of Homeland Security as the principal agency for the
dissemination of homeland security information, but eliminates
the prohibition on other Federal agencies as well as the
exception.
Sec. 218. Access to nuclear terrorism-related information
As reported by the Homeland Security Committee, this
section requires any component of DHS that receives information
related to a nuclear threat to disseminate that information
throughout the Department and to State and local governments.
The Sensenbrenner-Conyers amendment expands the list of
recipients of information pertaining to nuclear threats to
include other Federal agencies.
Sec. 222. Information collection requirements and priorities
As reported, this section required the President to include
the Secretary of DHS on any interagency board responsible for
collection of foreign intelligence information. The amendment
eliminates this requirement and retains executive discretion
for such appointments. As reported, this section would have
also established an interagency board, chaired by the Secretary
of DHS, which also included the Attorney General and the
Director of National Intelligence among others, to coordinate
the collection of information related to homeland security and
prioritize the collection and use of such information. The
Sensenbrenner-Conyers amendment eliminates this provision
because these duties are properly performed by the newly
created Director of National Intelligence and respective
Federal agencies.
Sec. 301. National terrorism exercise program
This section authorizes the Secretary of Homeland Security
to conduct the TOPOFF (simulated terrorism attack exercise)
program to train State and local first responders in responding
and preventing terrorist attacks. Because DHS exercises would
involve the active participation of Federal law enforcement
agencies, the Sensenbrenner-Conyers amendment would require the
Secretary of DHS to coordinate with the Attorney General and
the Director of National Intelligence when developing such
exercises.
Sec. 309. Report to Congress on implementation of recommendations
regarding protection of agriculture
This section requires the Secretary of Homeland Security to
provide a report to the Committee on Homeland Security
regarding terrorist threats to agriculture. The Sensenbrenner-
Conyers amendment would require the report to be additionally
submitted to the Committee on the Judiciary.
Sec. 331. Critical infrastructure
This section requires the Secretary of Homeland Security to
prioritize threats to the Nation's critical infrastructure. The
Sensenbrenner-Conyers amendment would require the Secretary to
consult with the Attorney General and the Director of National
Intelligence in developing this analysis.
Sec. 333. Implementation report
This section requires the Secretary to submit a report to
the Committee on Homeland Security regarding plans for securing
the critical infrastructure. The Sensenbrenner-Conyers
amendment requires the report to be submitted to the Committee
on Judiciary as well.
Sec. 405. Denial of transportation security card
This section was added to the bill by the Transportation
Committee. It would prohibit the Secretary from using a felony
conviction that is more than seven years old and not terrorism
related to make a determination that an applicant poses a
terrorism security risk for purposes of denying a person a
Transportation Security Card. Such a card may be used to gain
access to hazmat credentials, ports, and railroads. The
Sensenbrenner-Conyers reported by the Committee modifies this
section to prohibit the Secretary from using a non-terrorism
related felony conviction as the sole reason for determining
that an applicant poses a terrorism security risk for purposes
of denying a person a Transportation Security Card.
IMMIGRATION-RELATED PROVISIONS CONTAINED IN THE SENSENBRENNER-CONYERS
AMENDMENT
Sec. 102. Border patrol agents
This section authorizes appropriations to hire an
additional 2,000 border patrol agents. These funds will permit
the Secretary of Homeland Security, in Fiscal Year 2006, to
fully hire, train, and equip the 2,000 additional Border Patrol
agents originally authorized under the Intelligence Reform and
Terrorism Prevention Act of 2004 (Pub. L. No. 108-458). The
Sensenbrenner-Conyers amendment authorizes the appropriation of
sufficient funds for the Immigration and Customs Enforcement
(ICE) Legal Program for the hiring of an additional 300
attorneys and related training and support costs, and
authorizes such sums as may be necessary for Citizenship and
Immigration Services (CIS) to hire an additional 300
adjudicators and related training and support costs to carry
out the adjudicative functions specified in section 451(b) of
the Homeland Security Act of 2002.
The legacy INS General Counsel program consisted of 710
attorneys. Most of these attorneys were assigned to Immigration
Court. The newly formed ICE lost 135 positions to the Bureau of
Customs and Border Protection (CBP) and CIS. However, no
attorneys at either of those two agencies represent the United
States in removal proceedings. As a result, to properly staff
all removal proceedings and handle other responsibilities, the
ICE Principal Legal Advisor's Office has 587 attorneys. INS
attorneys as a whole faced an increasing workload even before
the creation of DHS, a problem that has been exacerbated by
ICE's loss of attorneys. In 2004, ICE attorneys had time to
spend only 23 minutes preparing the average case for hearing.
The U.S. Army Manpower Analysis Agency had completed a review
of the INS legal program's staffing needs in 1998 and found
that ``the Legal Proceedings Program is vastly understaffed and
underfunded. Its attorneys cannot adequately perform their
assigned functions without significant increases in personnel.
Based on its FY 1997 workload, the program needs * * * an
additional * * * 293 attorneys * * *.'' The role that a lack of
attorney resources played in terrorist planning is evident from
the 9/11 Terrorist Travel Monograph, which describes how
terrorists exploited U.S. immigration laws before the 2001
attacks: ``Aliens were granted multiple hearings, often
resulting in lengthy delays. This system was easy to exploit.
Because the immigration attorneys representing the INS in cases
against aliens worked solely from paper files, they were often
unable to properly track cases or access the necessary files to
present their cases efficiently and knowledgeably. For much of
the 1990s, case backlogs were considerable. Terrorists knew
they could beat the system--and, as we have seen, they often
did.''
CIS faces a backlog of approximately 1.3 million
applications (that number doubles if one includes the cases
pending without a current available visa number). There was a
recent hiring freeze at CIS, and in addition there has been a
``backlog'' in hiring because new CIS employees must undergo a
time consuming security clearance by the Office of Personnel
Management because CIS's private sector recruiter went out of
business. Most employees at CIS are currently working many
hours of overtime to help reduce the backlog. Of course,
legislative proposals to increase premium processing and
institute a large-scale guest worker program would require many
more adjudicators. Recent briefings by the Government
Accountability Office reveal that CIS has determined that
channeling funding towards electronic filing would be less
advantageous than hiring more adjudicators and would only delay
backlog reduction efforts.
Sec. 401. Border security and enforcement coordination and operations
As reported by the Committee on Homeland Security, Section
401 contains a number of findings regarding the creation and
function of the Bureau of Border Security pursuant to the
Homeland Security Act of 2002 and the advisability of the
Administration's creation of ICE and CBP when establishing the
Department of Homeland Security. The section also provides that
the Secretary of Homeland Security shall evaluate the
organizational structure of DHS, especially as it relates to
ICE and CBP. The Sensenbrenner-Conyers amendment ensures that
the Secretary of Homeland Security will study the rationale and
consequences of both of these organizational decisions of the
Administration, and not just the decision to bifurcate
immigration enforcement. The amendment also ensures that the
findings of section 401 as reported by the Committee on
Homeland Security do not prejudge the issues.
Additional Amendments to H.R. 1817 Adopted by the Committee on the
Judiciary
In addition to the Sensenbrenner-Conyers amendment, the
Committee on the Judiciary reported three amendments to H.R.
1817 by voice vote.
The Committee adopted an amendment offered by Mr. Delahunt
that authorizes sufficient funding for the development of a
regional homeland security center that enhances coordination
for terrorism preparedness among all levels of government. The
Federal government can realize significant financial savings by
maximizing regional infrastructure and capabilities in high-
risk regions throughout the United States. To ensure efficient
allocation of resources, the amendment specifies that any
authorization of funding will be contingent upon the completion
of a feasibility study, conducted by the Federal government, to
determine the most appropriate location for its establishment.
Last year, the Department of Defense completed an extensive and
comprehensive feasibility study that concluded that a regional
Homeland Defense Training Center is needed for the New England
region.
The Committee adopted an amendment offered by Mr. Weiner
that authorizes Homeland Security grant funding for the
salaries of ``Terrorism Cops'' hired exclusively for terrorism
or homeland security purposes.
The Committee adopted an amendment offered by Ms. Jackson-
Lee that requires the Secretary of Homeland Security to collect
data on the use of ``immigration consultants'' by aliens if the
alien states that he or she used the service of an immigration
consultant or a Department employee suspects that the alien
used the services of an immigration consultant. There are a
rising number of consultants that illegally practice
immigration law without a license.
Hearings
H.R. 1817 was introduced on April 26, 2005. No hearings
were held on the legislation. However, since the establishment
of the Department of Homeland Security, the Committee on the
Judiciary held several hearings examining the operation of
components of the Department within the Committee's
jurisdiction.
HEARINGS BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND
SECURITY
On June 4, 2002, the Subcommittee on Crime, Terrorism, and
Homeland Security conducted a legislative hearing on H.R. 4598,
the ``Homeland Security Information Sharing Act,'' at which the
following witnesses testified: Senator Saxby Chambliss (R-GA);
Rep. Jane Harman (D-CA); John Bittick, President of the
National Sheriffs' Association.
On June 9, 2002, the Subcommittee on Crime, Terrorism, and
Homeland Security conducted an oversight hearing on the
``Proposal to Create a Department of Homeland Security,'' at
which the following witnesses testified: Rep. Lamar Smith (R-
TX); Robert Bonner, Commission of the U.S. Customs Service;
Thomas Collins, Commandment of the United States Coast Guard;
John Magaw, Under Secretary of Transportation and Security at
the Transportation Security Administration; Brian L. Stafford,
Director of the United States Secret Service.
On June 25, 2002, the Subcommittee on Crime, Terrorism, and
Homeland Security conducted an oversight hearing on the ``Risk
to Homeland Security From Identity Fraud and Identity Theft,''
at which the following witnesses testified: Paul McNulty,
United States Attorney; James G. Huse, Inspector General at the
Social Security Administration; Richard M. Stana, Director of
Administration of Justice Issues, U.S. General Accounting
Office; Edmund Mierzwinski, Consumer Program Director for the
State Public Interest Research Groups.
On November 20, 2003 the Subcommittee on Crime, Terrorism,
and Homeland Security conducted a legislative/oversight hearing
on ``Homeland Security--the Balance Between Crisis and
Consequence Management Through Training and Assistance (Review
of Legislative Proposals H.R. 2512, H.R. 3266 and H.R. 3158),''
at which the following witnesses testified: William Bishop,
Director of Homeland Security in the State of Idaho; Raymond W.
Kelly, Police Commissioner for the City of New York; Susan
Mencer, Director of the Office of Domestic Preparedness at the
Department of Homeland Security.
On February 3, 2004 the Subcommittee on Crime, Terrorism,
and Homeland Security conducted an oversight hearing on the
``Law Enforcement Efforts Within the Department of Homeland
Security,'' at which the following witnesses testified: W.
Ralph Basham, Director of the United States Secret Service at
the Department of Homeland Security; Thomas Collins, Commandant
of the United States Coast Guard at the Department of Homeland
Security; Michael Garcia, Assistant Secretary for the Bureau of
Immigration and Customs Enforcement at the Department of
Homeland Security.
HEARINGS BEFORE THE SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND
CLAIMS
On April 10, 2003, the Subcommittee on Immigration, Border
Security, and Claims held an oversight hearing on ``Department
of Homeland Security Transition: Bureau of Immigration and
Customs Enforcement,'' at which the following witnesses
testified: Under Secretary Asa Hutchinson, Border and
Transportation Security, Department of Homeland Security; Mark
Krikorian, Executive Director, Center for Immigration Studies;
Timothy Danahey, Federal Law Enforcement Officers Association
(FLEOA); and Rich Stana, Director for Homeland Security and
Justice Issues, General Accounting Office.
On May 8, 2003, the Subcommittee on Immigration, Border
Security, and Claims held an oversight hearing on ``War on
Terrorism: Immigration Enforcement Since September 11, 2001,''
at which the following witnesses testified: Kevin Rooney,
Director, Executive Office for Immigration Review, Department
of Justice; Michael Dougherty, Director of Operations, Bureau
of Immigration and Customs Enforcement, Department of Homeland
Security; Jay Ahern, Assistant Commissioner, Office of Field
Operations, Bureau of Customs and Border Protection, Department
of Homeland Security; and Laura Murphy, American Civil
Liberties Union.
On February 25, 2004, the Subcommittee on Immigration,
Border Security, and Claims held an oversight hearing on
``Funding for Immigration in the President's 2005 Budget,'' at
which the following witnesses testified: Eduardo Aguirre,
Director, Citizenship and Immigration Services; Michael
Dougherty, Director of Operations, Immigration and Customs
Enforcement; Daniel Smith, Principal Deputy Assistant Secretary
for Consular Affairs, Department of State; and Seth Stodder,
Counselor and Senior Policy Advisor to Commissioner Robert C.
Bonner, U.S. Customs and Border Protection.
On March 4, 2004, the Subcommittee on Immigration, Border
Security, and Claims held an oversight hearing on ``Alien
Removal Under Operation Predator,'' at which the following
witnesses testified: Michael J. Garcia, Assistant Secretary for
U.S. Immigration and Customs Enforcement, U.S. Department of
Homeland Security; and John Walsh, Host of ``America's Most
Wanted: America Fights Back.''
On March 11, 2004, the Subcommittee on Immigration, Border
Security, and Claims held an oversight hearing on ``Funding for
Immigration in the President's 2005 Budget,'' at which the
following witnesses testified: T.J Bonner, President, National
Border Patrol Council; Timothy J. Danahey, National President,
Federal Law Enforcement Officers Association (FLEOA); and
Demetrios Papademetriou, Senior Associate & Co-Director,
Migration Policy Institute (MPI).
On March 18, 2004, the Subcommittee on Immigration, Border
Security, and Claims held an oversight hearing on ``US VISIT-A
Down Payment on Homeland Security,'' at which the following
witnesses testified: Mr. Robert M. Jacksta, Executive Director,
Border Security and Facilitation, U.S. Customs and Border
Protection, U.S. Department of Homeland Security; Mr. Robert A.
Mocny, Deputy Director, US-VISIT Office, Department of Homeland
Security; Mr. Alfonso Martinez-Fonts, Jr., Special Assistant to
the Secretary for the Private Sector, U.S. Department of
Homeland Security; and Mr. Randolph C. Hite, Director,
Information Technology Architecture and Systems Issues, U.S.
General Accounting Office.
On June 17, 2004, the Subcommittee on Immigration, Border
Security, and Claims conducted an oversight hearing on
``Families and Businesses in Limbo: The Detrimental Impact of
the Immigration Backlog,'' at which the following witness
testified: The Honorable Eduardo Aguirre, Director of U.S.
Citizenship and Immigration Services, U.S. Department of
Homeland Security.
On June 23, 2004, the Subcommittee on Immigration, Border
Security, and Claims conducted an oversight hearing on
``Families and Businesses in Limbo: The Detrimental Impact of
the Immigration Backlog,'' at which the following witnesses
testified: Mr. Prakash Khatri, Citizenship and Immigration
Services Ombudsman, U.S. Department of Homeland Security; Ms.
Elizabeth Stern, Managing Partner, Business Immigration
Practice Group, Shaw Pittman, LLC; and Mr. Paul Zulkie,
President, American Immigration Lawyers Association.
On March 3, 2005, the Subcommittee on Immigration, Border
Security, and Claims conducted an oversight hearing on ``The
Immigration Enforcement Resources Authorized in the
Intelligence Reform and Terrorism Prevention Act of 2004,'' at
which the following witnesses testified: Rep. Solomon P. Ortiz,
27th District of Texas; Mr. Peter Gadiel, 9-11 Families for a
Secure America; Mr. T.J. Bonner, President, National Border
Patrol Council; and Mr. Robert Eggle, Father of Kris Eggle,
slain National Park Service Ranger.
On March 10, 2005, the Subcommittee on Immigration, Border
Security, and Claims conducted an oversight hearing on
``Interior Immigration Enforcement Resources,'' at which the
following witnesses testified: Mr. Paul Martin, Deputy
Inspector General, U.S. Department of Justice; Mr. Michael
Cutler, Former I.N.S. Special Agent; Mr. Randy Callahan, Vice
President, National Homeland Security Council; and Dr. Craig
Haney, Professor, University of California at Santa Cruz.
On May 5, 2005, the Subcommittee on Immigration, Border
Security, and Claims conducted an oversight hearing on the
``New `Dual Missions' of the Immigration Enforcement
Agencies,'' at which the following witnesses testified: Michael
Cutler, former INS Special Agent; T.J. Bonner, President of the
National Border Patrol Council; Janice Kephart, Former
September 11 Commission Staff Counsel; and Richard Stana,
Director of Homeland Security and Justice Issues at the U.S.
Government Accountability Office.
HEARINGS BEFORE THE SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
On February 10, 2004 the Subcommittee on Commercial and
Administrative Law conducted an oversight hearing on ``Privacy
in the Hands of the Government: The Privacy Officer for the
Department of Homeland Security,'' at which the following
witnesses testified: James Dempsey, Executive Director for the
Center for Democracy and Technology; James S. Gilmore III,
President of the USA Secure Corporation; Sally Katzen, visiting
professor at the University of Michigan School of Law; Nuala
O'Connor Kelly, Chief Privacy Officer at the Department of
Homeland Security.
Committee Consideration
On May 12, 2005, the Committee met in open session and
ordered favorably reported the bill H.R. 1817, as amended, by a
voice vote, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that [there
were no recorded votes during the committee consideration of
H.R. 1817 the following roll call votes occurred during the
committee's consideration of H.R. 1817.
1. Mr. Hostettler offered an amendment that would have
created whistleblower protections and monetary rewards for
persons who contribute to successful prosecutions of employers
unlawfully employing aliens. The amendment was defeated by a
vote of 12 ayes and 16 nays.
------------------------------------------------------------------------
Member Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde.......................
Mr. Coble...................... X
Mr. Smith...................... X
Mr. Gallegly................... X
Mr. Goodlatte
Mr. Chabot
Mr. Lungren.................... X
Mr. Jenkins.................... X
Mr. Cannon..................... X
Mr. Bachus
Mr. Inglis..................... X
Mr. Hostettler................. X
Mr. Green...................... X
Mr. Keller..................... X
Mr. Issa....................... X
Mr. Flake
Mr. Pence...................... X
Mr. Forbes..................... X
Mr. King....................... X
Mr. Feeney..................... X
Mr. Franks
Mr. Gohmert.................... Pass
Mr. Conyers.................... X
Mr. Berman
Mr. Boucher
Mr. Nadler..................... X
Mr. Scott...................... X
Mr. Watt....................... X
Ms. Lofgren
Ms. Jackson Lee................ X
Ms. Waters..................... X
Mr. Meehan..................... X
Mr. Delahunt................... X
Mr. Wexler
Mr. Weiner..................... X
Mr. Schiff..................... X
Ms. Sanchez.................... X
Mr. Smith
Mr. Van Hollen................. X
Mr. Sensenbrenner, Chairman.... X
----------------------------------------
Total...................... 12 16 1
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1817, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
May 13, 2005.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1817, the
Department of Homeland Security Authorization Act for Fiscal
Year 2006.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for federal costs) and Melissa Merrell (for the
impact on state and local governments).
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 1817--Department of Homeland Security Authorization Act for Fiscal
Year 2006
Summary: H.R. 1817 would authorize the appropriation of
$34.2 billion for fiscal year 2006 to fund the major operations
of the Department of Homeland Security (DHS). CBO estimates
that implementing H.R. 1817 would cost about $33 billion over
the 2006-2010 period, assuming appropriation of the authorized
amounts. Enacting the bill would not affect direct spending or
receipts.
H.R. 1817 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) by exempting certain
information related to critical infrastructure from state and
local laws that provide public access to information. CBO
estimates that the costs, if any, to state and local
governments would be minimal and well below the annual
threshold established in that act ($62 million in 2005,
adjusted annually for inflation). H.R. 1817 contains no new
private-sector mandates as defined in UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1817 is shown in the following table.
For this estimate, CBO assumes that the authorized amounts will
be appropriated near the beginning of fiscal year 2006 and that
outlays will follow the historical spending rates for these
activities. The costs of this legislation fall within budget
functions 050 (national defense), 300 (natural resources and
environment), 400 (transportation), 450 (community and regional
development), 550 (health), 600 (income security), 750
(administration of justice), and 800 (general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------
2005 2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Department of Homeland Security:
Spending Under Current Law:
Estimated Budget Authoritya............... 38,469 0 0 0 0 0
Estimated Outlays......................... 31,928 14,443 7,939 3,475 1,308 594
Proposed Changes:
Authorization Level....................... 0 34,152 0 0 0 0
Estimated Outlays......................... 0 17,418 7,513 5,123 2,391 683
Department of Homeland Security:
Spending Under H.R. 1817:
Authorization Levela...................... 38,469 34,152 0 0 0 0
Estimated Outlays......................... 31,928 31,861 15,452 8,598 3,699 1,277
----------------------------------------------------------------------------------------------------------------
aThe estimated 2005 level is the amount of appropriations less offsetting collections for that year for
operations of DHS.
Intergovernmental and private-sector impact: H.R. 1817
contains an intergovernmental mandate as defined in UMRA by
exempting certain information related to critical
infrastructure from state and local laws that provide public
access to information. CBO estimates that the costs, if any, to
state and local governments would be minimal and well below the
annual threshold established in that act ($62 million in 2005,
adjusted annually for inflation). H.R. 1817 contains no new
private-sector mandates as defined in UMRA.
Section 306 would require the Secretary of the Department
of Homeland Security to issue regulations for the security of
maritime cargo moving within the intermodal transportation
system. Those regulations would relate to the securing,
recording, and verifying of seals on maritime cargo containers
in the hauling of cargo from one mode of transportation to
another. According to DHS, a notice of proposed rulemaking that
incorporates the recommendations referred to in the bill has
been drafted and is pending review. Based on information from
DHS, CBO anticipates that the Secretary will issue those
regulations. Thus, CBO expects that the provisions in this
section would impose no additional mandates on public or
private-sector entities.
State and local governments would benefit from programs to
improve interoperable communications and training and from
changes to existing grants that allow funds to be used to pay
for the salaries of certain law enforcement officers. Any costs
incurred by those governments would be incurred voluntarily.
Previous CBO estimates: On May 6, 2005, CBO transmitted a
cost estimate for H.R. 1817 as ordered reported by the House
Committee on Homeland Security on April 27, 2005. On May 13,
2005, CBO transmitted a cost estimate for H.R. 1817 as ordered
reported by the House Committee on Energy and Commerce on May
11, 2005. The three versions of the bill are similar, and all
three cost estimates are identical.
Estimate prepared by: Federal costs: Mark Grabowicz; impact
on state, local, and tribal governments: Melissa Merrell;
impact on the private sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1817 would authorize the Department of Homeland Security for
Fiscal Year 2006.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Section-by-Section Analysis and Discussion
The following is a discussion of sections within the
jurisdiction of the Committee on the Judiciary. The other
sections are described in the report to accompany this
legislation prepared by the Committee on Homeland Security
(H.R. Rep. No. 109-71 Part I).
Sec. 3. Definitions
Section 3 did not appear in H.R. 1817 as reported by the
Homeland Security Committee. In order to prevent unnecessary
duplication, a definition of ``terrorism prevention'' was
included in this section.
Sec. 102. Border Patrol agents
This section authorizes appropriations to hire an
additional 2,000 Border Patrol agents. These funds will permit
the Secretary of Homeland Security, in Fiscal Year 2006, to
fully hire, train, and equip the 2,000 additional Border Patrol
agents originally authorized under the Intelligence Reform and
Terrorism Prevention Act of 2004 (P.L. No. 108-458). As amended
by the Committee on the Judiciary, this section authorizes the
appropriation of sufficient funds for the Immigration and
Customs Enforcement (ICE) Legal Program for the hiring of an
additional 300 attorneys and related training and support
costs, and authorizes such sums as may be necessary for
Citizenship and Immigration Services (CIS) to hire an
additional 300 adjudicators and related training and support
costs to carry out the adjudicative functions specified in
section 451(b) of the Homeland Security Act of 2002.
Sec. 107. State and local terrorism preparedness
This section authorizes appropriations for Fiscal Year 2006
for certain State and Local Terrorism Preparedness programs.
The Committee adopted an amendment offered by Mr. Weiner that
authorizes Homeland Security grant funding for the salaries of
``Terrorism Cops'' hired exclusively for terrorism or homeland
security purposes. In addition, the Committee adopted an
amendment offered by Mr. Delahunt that authorizes sufficient
funding for the development of a regional homeland security
center that enhances coordination for terrorism preparedness
among all levels of government. The Federal government can
realize significant financial savings by maximizing regional
infrastructure and capabilities in high-risk regions throughout
the United States. To ensure efficient allocation of resources,
the amendment specifies that any authorization of funding will
be contingent upon the completion of a feasibility study,
conducted by the Federal government, to determine the most
appropriate location for its establishment.
Sec. 108. Authorization of appropriations for training of State and
local personnel in border States performing immigration
functions
As reported from the Homeland Security Committee, this
section authorizes $40 million (from the management and
administration budget of the Bureau of Immigration and Customs
Enforcement) to reimburse States along U.S. borders (30 miles
or less from a border or coastline) for costs associated with
having State and local law enforcement personnel trained and
certified by the Immigration and Customs Enforcement (ICE) to
enforce Federal immigration laws. The Committee reported an
amendment to strike this section. The Homeland Security
Committee lacks jurisdiction over this provision. In addition,
if funding is authorized, all States (rather than those with
borders or coastlines) should be reimbursed for costs
associated with State and local law enforcement personnel
training and certification by Federal immigration authorities.
Sec. 201. Terrorism prevention plan and related budget submission
As reported by the Committee on Homeland Security, this
section authorizes DHS to expand its powers beyond the
authority granted to that agency in its original authorizing
legislation. The amendment clarifies the authority of DHS in
relation to law enforcement and intelligence agencies in order
to better reflect the mission of the DHS and to promote
administrative efficiency within DHS and other federal
agencies.
Sec. 202. Consolidated background check process
The Department of Homeland Security has numerous security
programs that pre-screen individuals by checking their names
and biometric identifiers against terrorist watch lists and
other criminal databases. This section authorizes the creation
of a consolidated background check process. The amendment to
this section reported by the Committee preserves DHS authority
to administer a consolidated background check process but
inserts ``in consultation with the Attorney General.'' The
Attorney General requires consultation because criminal
background checks often involve the resources of the Department
of Justice.
Sec. 216. Authority for disseminating homeland security information
As reported by the Committee on Homeland Security, this
section provides DHS with sole authority to disseminate
``homeland security'' information to State and local government
agencies and would prohibit other agencies from sharing such
information. An exception would be made for information
necessary for criminal justice purposes. It is unclear what the
terms ``homeland security information'' and ``criminal justice
purposes'' entail. As amended by the Committee on the
Judiciary, the amendment recognizes DHS as the principal agency
for the dissemination of homeland security information, but
eliminates the prohibition on other Federal agencies as well as
the exception.
Sec. 218. Access to nuclear terrorism-related information
This section requires any component of DHS that receives
information related to a nuclear threat to disseminate that
information throughout the Department and to State and local
governments. The Sensenbrenner-Conyers amendment expands the
list of recipients of information pertaining to nuclear threats
to include other Federal agencies.
Sec. 222. Information collection requirements and priorities
As reported, this section required the President to include
the Secretary of DHS on any interagency board responsible for
collection of foreign intelligence information. The amendment
eliminates this requirement and retains executive discretion
for such appointments. As reported, this section would have
also established an interagency board, chaired by the Secretary
of DHS, which also included the Attorney General and the
Director of National Intelligence among others, to coordinate
the collection of information related to homeland security and
prioritize the collection and use of such information. The
Sensenbrenner-Conyers amendment reported by the Committee
eliminates this provision because these duties are properly
performed by the newly created Director of National
Intelligence and respective Federal agencies.
Sec. 301. National terrorism exercise program
This section authorizes the Secretary of Homeland Security
to conduct the TOPOFF (simulated terrorism attack exercise)
program to train State and local first responders in responding
and preventing terrorist attacks. Because DHS exercises would
involve the active participation of Federal law enforcement
agencies, the Sensenbrenner-Conyers amendment modifies this
section to require the Secretary of DHS to coordinate with the
Attorney General and the Director of National Intelligence when
developing such exercises.
Sec. 309. Report to Congress on implementation of recommendations
regarding protection of agriculture
This section requires the Secretary of Homeland Security to
provide a report to the Committee on Homeland Security
regarding terrorist threats to agriculture. As amended by the
Committee, this section would require the report be
additionally submitted to the Judiciary Committee.
Sec. 331. Critical infrastructure
This section requires the Secretary of Homeland Security to
prioritize threats to the Nation's critical infrastructure. The
amendment reported from the Judiciary Committee requires the
Secretary to consult with the Attorney General and the Director
of National Intelligence in developing this analysis.
Sec. 333. Implementation report
This section requires the Secretary to submit a report to
the Committee on Homeland Security regarding plans for securing
the critical infrastructure. This section was amended by the
Committee to the report to be submitted to the Committee on the
Judiciary as well.
Sec. 405. Denial of transportation security card
This section was added to the bill by the Transportation
Committee. It would prohibit the Secretary from using a felony
conviction that is more than seven years old and not terrorism
related to make a determination that an applicant poses a
terrorism security risk for purposes of denying a person a
Transportation Security Card. Such a card may be used to gain
access to hazmat credentials, ports, and railroads. This
section was amended by the Committee to prohibit the Secretary
from using a non-terrorism related felony conviction as the
sole reason for determining that an applicant poses a terrorism
security risk for purposes of denying a person a Transportation
Security Card.
Sec. 407. Data collection on use of immigration consultants
Section 407 did not appear in H.R. 1817 as reported by the
Committee on Homeland Security. Offered by Ms. Jackson-Lee,
this new section requires the Secretary of Homeland Security to
collect data on the use of ``immigration consultants'' by
aliens if the alien states that he or she used the service of
an immigration consultant or a Department employee suspects
that the alien used the services of an immigration consultant.
There are a rising number of consultants that illegally
practice immigration law without a license.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
* * * * * * *
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act is
as follows:
Sec. 1. Short title; table of contents.
* * * * * * *
TITLE I--DEPARTMENT OF HOMELAND SECURITY
Sec. 101. Executive department; mission.
* * * * * * *
Sec. 104. Authority for disseminating homeland security information.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
Sec. 201. Directorate for Information Analysis and Infrastructure
Protection.
* * * * * * *
Sec. 203. Alternative analysis of homeland security information.
Sec. 204. 9/11 Memorial Homeland Security Fellows Program.
Sec. 205. Homeland Security Advisory System.
Sec. 206. Full and efficient use of open-source information.
Sec. 207. Assistant Secretary for Cybersecurity.
* * * * * * *
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
* * * * * * *
Subtitle J--Terrorism Preparedness Exercises
Sec. 899a. National terrorism exercise program.
* * * * * * *
SEC. 2. DEFINITIONS.
In this Act, the following definitions apply:
(1) * * *
* * * * * * *
(17)(A) The term ``cybersecurity'' means the
prevention of damage to, the protection of, and the
restoration of computers, electronic communications
systems, electronic communication services, wire
communication, and electronic communication, including
information contained therein, to ensure its
availability, integrity, authentication,
confidentiality, and nonrepudiation.
(B) In this paragraph--
(i) each of the terms ``damage'' and
``computer'' has the meaning that term has in
section 1030 of title 18, United States Code;
and
(ii) each of the terms ``electronic
communications system'', ``electronic
communication service'', ``wire
communication'', and ``electronic
communication'' has the meaning that term has
in section 2510 of title 18, United States
Code.
* * * * * * *
TITLE I--DEPARTMENT OF HOMELAND SECURITY
* * * * * * *
SEC. 104. AUTHORITY FOR DISSEMINATING HOMELAND SECURITY INFORMATION.
The Secretary shall be the principal executive branch
official responsible for disseminating homeland security
information to State and local government and tribal officials
and the private sector.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
SEC. 201. DIRECTORATE FOR INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION.
(a) * * *
(b) Assistant Secretary for Information Analysis; Assistant
Secretary for Infrastructure Protection.--
(1) * * *
* * * * * * *
(4) Assignment of specific functions.--The Under
Secretary for Information Analysis and Infrastructure
Protection--
(A) shall assign to the Assistant Secretary
for Information Analysis the responsibility for
performing the functions described in
paragraphs (1), (4), (7) through (14), (16),
and (18) of subsection (d);
(B) shall assign to the Assistant Secretary
for Infrastructure Protection the
responsibility for performing the functions
described in paragraphs (2), (5), and (6) of
subsection (d);
(C) shall ensure that the Assistant Secretary
for Information Analysis and the Assistant
Secretary for Infrastructure Protection both
perform the functions described in paragraphs
(3), (15), (17), and (19) of subsection (d);
(D) may assign to each such Assistant
Secretary such other duties relating to such
responsibilities as the Under Secretary may
provide;
(E) shall direct each such Assistant
Secretary to coordinate with Federal, State,
and local law enforcement agencies, and with
tribal and private sector entities, as
appropriate; and
(F) shall direct the Assistant Secretary for
Information Analysis to coordinate with
elements of the intelligence community, as
appropriate.
* * * * * * *
(d) Responsibilities of Under Secretary.--Subject to the
direction and control of the Secretary, the responsibilities of
the Under Secretary for Information Analysis and Infrastructure
Protection shall be as follows:
(1) * * *
* * * * * * *
(7) To administer the Homeland Security Advisory
System under section 205, including--
(A) * * *
* * * * * * *
(20) To require, in consultation with the Assistant
Secretary for Infrastructure Protection, the creation
and routine dissemination of analytic reports and
products designed to provide timely and accurate
information that has specific relevance to each of the
Nation's critical infrastructure sectors (as identified
in the national infrastructure protection plan issued
under paragraph (5)), to private sector officials in
each such sector who are responsible for protecting
institutions within that sector from potential acts of
terrorism and for mitigating the potential consequences
of any such act.
(21) To ensure sufficient analytic expertise within
the Office of Information Analysis to create and
disseminate, on an ongoing basis, products based on the
analysis of homeland security information, as defined
in section 892(f)(1), with specific reference to the
threat of terrorism involving the use of nuclear
weapons and biological agents to inflict mass
casualties or other catastrophic consequences on the
population or territory of the United States.
(22) To ensure that--
(A) the Assistant Secretary for Information
Analysis receives promptly and without request
all information obtained by any component of
the Department if that information relates,
directly or indirectly, to a threat of
terrorism involving the potential use of
nuclear weapons;
(B) such information is--
(i) integrated and analyzed
comprehensively; and
(ii) disseminated in a timely manner,
including to appropriately cleared
Federal, State, local, tribal, and
private sector officials; and
(C) such information is used to determine
what requests the Department should submit for
collection of additional information relating
to that threat.
(23) To ensure that the Assistant Secretary for
Information Analysis--
(A) is routinely and without request given
prompt access to all terrorism-related
information collected by or otherwise in the
possession of any component of the Department,
including all homeland security information (as
that term is defined in section 892(f)(1)); and
(B) to the extent technologically feasible
has direct access to all databases of any
component of the Department that may contain
such information.
(24) To administer the homeland security information
network, including--
(A) exercising primary responsibility for
establishing a secure nationwide real-time
homeland security information sharing network
for Federal, State, and local government
agencies and authorities, tribal officials, the
private sector, and other governmental and
private entities involved in receiving,
analyzing, and distributing information related
to threats to homeland security;
(B) ensuring that the information sharing
systems, developed in connection with the
network established under subparagraph (A), are
utilized and are compatible with, to the
greatest extent practicable, Federal, State,
and local government, tribal, and private
sector antiterrorism systems and protocols that
have been or are being developed; and
(C) ensuring, to the greatest extent
possible, that the homeland security
information network and information systems are
integrated and interoperable with existing
private sector technologies.
(25) To ensure that, whenever possible--
(A) the Assistant Secretary for Information
Analysis produces and disseminates reports and
analytic products based on open-source
information that do not require a national
security classification under applicable law;
and
(B) such unclassified open-source reports are
produced and disseminated contemporaneously
with reports or analytic products concerning
the same or similar information that the
Assistant Secretary for Information Analysis
produces and disseminates in a classified
format.
* * * * * * *
SEC. 203. ALTERNATIVE ANALYSIS OF HOMELAND SECURITY INFORMATION.
The Secretary shall establish a process and assign an
individual or entity the responsibility to ensure that, as
appropriate, elements of the Department conduct alternative
analysis (commonly referred to as ``red-team analysis'') of
homeland security information, as that term is defined in
section 892(f)(1), that relates to potential acts of terrorism
involving the use of nuclear weapons or biological agents to
inflict mass casualties or other catastrophic consequences on
the population or territory of the United States.
SEC. 204. 9/11 MEMORIAL HOMELAND SECURITY FELLOWS PROGRAM.
(a) Establishment.--
(1) In general.--The Secretary shall establish a
fellowship program in accordance with this section for
the purpose of bringing State, local, tribal, and
private sector officials to participate in the work of
the Homeland Security Operations Center in order to
become familiar with--
(A) the mission and capabilities of that
Center; and
(B) the role, programs, products, and
personnel of the Office of Information
Analysis, the Office of Infrastructure
Protection, and other elements of the
Department responsible for the integration,
analysis, and dissemination of homeland
security information, as defined in section
892(f)(1).
(2) Program name.--The program under this section
shall be known as the 9/11 Memorial Homeland Security
Fellows Program.
(b) Eligibility.--In order to be eligible for selection as a
fellow under the program, an individual must--
(1) have homeland security-related responsibilities;
and
(2) possess an appropriate national security
clearance.
(c) Limitations.--The Secretary--
(1) may conduct up to 4 iterations of the program
each year, each of which shall be 90 days in duration;
and
(2) shall ensure that the number of fellows selected
for each iteration does not impede the activities of
the Center.
(d) Condition.--As a condition of selecting an individual as
a fellow under the program, the Secretary shall require that
the individual's employer agree to continue to pay the
individual's salary and benefits during the period of the
fellowship.
(e) Stipend.--During the period of the fellowship of an
individual under the program, the Secretary shall, subject to
the availability of appropriations--
(1) provide to the individual a stipend to cover the
individual's reasonable living expenses during the
period of the fellowship; and
(2) reimburse the individual for round-trip, economy
fare travel to and from the individual's place of
residence twice each month.
SEC. 205. HOMELAND SECURITY ADVISORY SYSTEM.
(a) Requirement.--The Under Secretary for Information
Analysis and Infrastructure Protection shall implement a
Homeland Security Advisory System in accordance with this
section to provide public advisories and alerts regarding
threats to homeland security, including national, regional,
local, and economic sector advisories and alerts, as
appropriate.
(b) Required Elements.--The Under Secretary, under the
System--
(1) shall include, in each advisory and alert
regarding a threat, information on appropriate
protective measures and countermeasures that may be
taken in response to the threat;
(2) shall, whenever possible, limit the scope of each
advisory and alert to a specific region, locality, or
economic sector believed to be at risk; and
(3) shall not, in issuing any advisory or alert, use
color designations as the exclusive means of specifying
the homeland security threat conditions that are the
subject of the advisory or alert.
SEC. 206. FULL AND EFFICIENT USE OF OPEN-SOURCE INFORMATION.
The Under Secretary shall ensure that, in meeting their
analytic responsibilities under section 201(d) and in
formulating requirements for collection of additional
information, the Assistant Secretary for Information Analysis
and the Assistant Secretary for Infrastructure Protection make
full and efficient use of open-source information wherever
possible.
SEC. 207. ASSISTANT SECRETARY FOR CYBERSECURITY.
(a) In General.--There shall be in the Directorate for
Information Analysis and Infrastructure Protection a National
Cybersecurity Office headed by an Assistant Secretary for
Cybersecurity (in this section referred to as the ``Assistant
Secretary''), who shall assist the Secretary in promoting
cybersecurity for the Nation.
(b) General Authority.--The Assistant Secretary, subject to
the direction and control of the Secretary, shall have primary
authority within the Department for all cybersecurity-related
critical infrastructure protection programs of the Department,
including with respect to policy formulation and program
management.
(c) Responsibilities.--The responsibilities of the Assistant
Secretary shall include the following:
(1) To establish and manage--
(A) a national cybersecurity response system
that includes the ability to--
(i) analyze the effect of
cybersecurity threat information on
national critical infrastructure; and
(ii) aid in the detection and warning
of attacks on, and in the restoration
of, cybersecurity infrastructure in the
aftermath of such attacks;
(B) a national cybersecurity threat and
vulnerability reduction program that identifies
cybersecurity vulnerabilities that would have a
national effect on critical infrastructure,
performs vulnerability assessments on
information technologies, and coordinates the
mitigation of such vulnerabilities;
(C) a national cybersecurity awareness and
training program that promotes cybersecurity
awareness among the public and the private
sectors and promotes cybersecurity training and
education programs;
(D) a government cybersecurity program to
coordinate and consult with Federal, State, and
local governments to enhance their
cybersecurity programs; and
(E) a national security and international
cybersecurity cooperation program to help
foster Federal efforts to enhance international
cybersecurity awareness and cooperation.
(2) To coordinate with the private sector on the
program under paragraph (1) as appropriate, and to
promote cybersecurity information sharing,
vulnerability assessment, and threat warning regarding
critical infrastructure.
(3) To coordinate with other directorates and offices
within the Department on the cybersecurity aspects of
their missions.
(4) To coordinate with the Under Secretary for
Emergency Preparedness and Response to ensure that the
National Response Plan developed pursuant to section
502(6) of the Homeland Security Act of 2002 (6 U.S.C.
312(6)) includes appropriate measures for the recovery
of the cybersecurity elements of critical
infrastructure.
(5) To develop processes for information sharing with
the private sector, consistent with section 214, that--
(A) promote voluntary cybersecurity best
practices, standards, and benchmarks that are
responsive to rapid technology changes and to
the security needs of critical infrastructure;
and
(B) consider roles of Federal, State, local,
and foreign governments and the private sector,
including the insurance industry and auditors.
(6) To coordinate with the Chief Information Officer
of the Department in establishing a secure information
sharing architecture and information sharing processes,
including with respect to the Department's operation
centers.
(7) To consult with the Electronic Crimes Task Force
of the United States Secret Service on private sector
outreach and information activities.
(8) To consult with the Office for Domestic
Preparedness to ensure that realistic cybersecurity
scenarios are incorporated into tabletop and recovery
exercises.
(9) To consult and coordinate, as appropriate, with
other Federal agencies on cybersecurity-related
programs, policies, and operations.
(10) To consult and coordinate within the Department
and, where appropriate, with other relevant Federal
agencies, on security of digital control systems, such
as Supervisory Control and Data Acquisition (SCADA)
systems.
(d) Authority Over the National Communications System.--The
Assistant Secretary shall have primary authority within the
Department over the National Communications System.
* * * * * * *
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY
* * * * * * *
SEC. 313. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT INNOVATIVE
SOLUTIONS TO ENHANCE HOMELAND SECURITY.
(a) * * *
(b) Elements of Program.--The program described in subsection
(a) shall include the following components:
(1) * * *
* * * * * * *
(6) The establishment of a homeland security
technology transfer program to facilitate the
identification, modification, and commercialization of
technology and equipment for use by Federal, State, and
local governmental agencies, emergency response
providers, and the private sector to prevent, prepare
for, or respond to acts of terrorism.
(c) Technology Transfer Program.--In developing the program
described in subsection (b)(6), the Secretary, acting through
the Under Secretary for Science and Technology, shall--
(1) in consultation with the other Under Secretaries
of the Department and the Director of the Office for
Domestic Preparedness, on an ongoing basis--
(A) conduct surveys and reviews of available
appropriate technologies that have been, or are
in the process of being developed, tested,
evaluated, or demonstrated by the Department,
other Federal agencies, or the private sector
or foreign governments and international
organizations and that may be useful in
assisting Federal, State, and local
governmental agencies, emergency response
providers, or the private sector to prevent,
prepare for, or respond to acts of terrorism;
(B) conduct or support research, development,
tests, and evaluations, as appropriate of
technologies identified under subparagraph (A),
including any necessary modifications to such
technologies for antiterrorism use;
(C) communicate to Federal, State, and local
governmental agencies, emergency response
providers, or the private sector the
availability of such technologies for
antiterrorism use, as well as the technology's
specifications, satisfaction of appropriate
standards, and the appropriate grants available
from the Department to purchase such
technologies;
(D) coordinate the selection and
administration of all technology transfer
activities of the Science and Technology
Directorate, including projects and grants
awarded to the private sector and academia; and
(E) identify priorities based on current risk
assessments within the Department of Homeland
Security for identifying, researching,
developing, testing, evaluating, modifying, and
fielding existing technologies for
antiterrorism purposes;
(2) in support of the activities described in
paragraph (1)--
(A) consult with Federal, State, and local
emergency response providers;
(B) consult with government agencies and
nationally recognized standards development
organizations as appropriate;
(C) enter into agreements and coordinate with
other Federal agencies, foreign governments,
and national and international organizations as
the Secretary determines appropriate, in order
to maximize the effectiveness of such
technologies or to facilitate commercialization
of such technologies; and
(D) consult with existing technology transfer
programs and Federal and State training centers
that research, develop, test, evaluate, and
transfer military and other technologies for
use by emergency response providers; and
(3) establish a working group in coordination with
the Secretary of Defense to advise and assist the
technology clearinghouse in the identification of
military technologies that are in the process of being
developed, or are developed, by the Department of
Defense or the private sector, which may include--
(A) representatives from the Department of
Defense or retired military officers;
(B) nongovernmental organizations or private
companies that are engaged in the research,
development, testing, or evaluation of related
technologies or that have demonstrated prior
experience and success in searching for and
identifying technologies for Federal agencies;
(C) Federal, State, and local emergency
response providers; and
(D) to the extent the Secretary considers
appropriate, other organizations, other
interested Federal, State, and local agencies,
and other interested persons.
[(c)] (d) Miscellaneous Provisions.--
(1) * * *
* * * * * * *
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle C--Miscellaneous Provisions
* * * * * * *
SEC. 430. OFFICE FOR DOMESTIC PREPAREDNESS.
(a) * * *
* * * * * * *
(c) Responsibilities.--The Office for Domestic Preparedness
shall have the primary responsibility within the executive
branch of Government for the preparedness of the United States
for acts of terrorism, including--
(1) * * *
* * * * * * *
(8) those elements of the Office of National
Preparedness of the Federal Emergency Management Agency
which relate to terrorism, which shall be consolidated
within the Department in the Office for Domestic
Preparedness established under this section; [and]
(9) helping to ensure the acquisition of
interoperable communication technology by State and
local governments and emergency response providers[.];
and
(10) designing, developing, performing, and
evaluating exercises at the national, State,
territorial, regional, local, and tribal levels of
government that incorporate government officials,
emergency response providers, public safety agencies,
the private sector, international governments and
organizations, and other appropriate entities to test
the Nation's capability to prevent, prepare for,
respond to, and recover from threatened or actual acts
of terrorism.
* * * * * * *
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
* * * * * * *
Subtitle J--Terrorism Preparedness Exercises
SEC. 899A. NATIONAL TERRORISM EXERCISE PROGRAM.
(a) In General.--The Secretary, through the Office for
Domestic Preparedness, shall establish a National Terrorism
Exercise Program for the purpose of testing and evaluating the
Nation's capabilities to prevent, prepare for, respond to, and
recover from threatened or actual acts of terrorism that--
(1) enhances coordination for terrorism preparedness
between all levels of government, emergency response
providers, international governments and organizations,
and the private sector;
(2) is--
(A) multidisciplinary in nature, including,
as appropriate, information analysis and
cybersecurity components;
(B) as realistic as practicable and based on
current risk assessments, including credible
threats, vulnerabilities, and consequences;
(C) carried out with the minimum degree of
notice to involved parties regarding the timing
and details of such exercises, consistent with
safety considerations;
(D) evaluated against performance measures
and followed by corrective action to solve
identified deficiencies; and
(E) assessed to learn best practices, which
shall be shared with appropriate Federal,
State, territorial, regional, local, and tribal
personnel, authorities, and training
institutions for emergency response providers;
and
(3) assists State, territorial, local, and tribal
governments with the design, implementation, and
evaluation of exercises that--
(A) conform to the requirements of paragraph
(2); and
(B) are consistent with any applicable State
homeland security strategy or plan.
(b) National Level Exercises.--The Secretary, in concurrence
with the Attorney General and the National Director of
Intelligence, through the National Terrorism Exercise Program,
shall perform on a periodic basis national terrorism
preparedness exercises for the purposes of--
(1) involving top officials from Federal, State,
territorial, local, tribal, and international
governments;
(2) testing and evaluating the Nation's capability to
detect, disrupt, and prevent threatened or actual
catastrophic acts of terrorism, especially those
involving weapons of mass destruction; and
(3) testing and evaluating the Nation's readiness to
respond to and recover from catastrophic acts of
terrorism, especially those involving weapons of mass
destruction.
(c) Consultation With First Responders.--In implementing the
responsibilities described in subsections (a) and (b), the
Secretary shall consult with a geographic (including urban and
rural) and substantive cross section of governmental and
nongovernmental first responder disciplines, including as
appropriate--
(1) Federal, State, and local first responder
training institutions;
(2) representatives of emergency response providers;
and
(3) State and local officials with an expertise in
terrorism preparedness.
* * * * * * *
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TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART I--MISCELLANEOUS
* * * * * * *
CHAPTER 97--DEPARTMENT OF HOMELAND SECURITY
Sec.
9701. Establishment of human resources management system.
9702. Recruitment bonuses.
9703. Reemployed annuitants.
9704. Regulations.
* * * * * * *
Sec. 9702. Recruitment bonuses
(a) In General.--Notwithstanding any provision of chapter 57,
the Secretary of Homeland Security, acting through the Under
Secretary for Information Analysis and Infrastructure
Protection, may pay a bonus to an individual in order to
recruit such individual for a position that is primarily
responsible for discharging the analytic responsibilities
specified in section 201(d) of the Homeland Security Act of
2002 (6 U.S.C. 121(d)) and that--
(1) is within the Directorate for Information
Analysis and Infrastructure Protection; and
(2) would be difficult to fill in the absence of such
a bonus.
In determining which individuals are to receive bonuses under
this section, appropriate consideration shall be given to the
Directorate's critical need for linguists.
(b) Bonus Amount, Form, Etc.--
(1) In general.--The amount of a bonus under this
section shall be determined under regulations of the
Secretary of Homeland Security, but may not exceed 50
percent of the annual rate of basic pay of the position
involved.
(2) Form of payment.--A bonus under this section
shall be paid in the form of a lump-sum payment and
shall not be considered to be part of basic pay.
(3) Computation rule.--For purposes of paragraph (1),
the annual rate of basic pay of a position does not
include any comparability payment under section 5304 or
any similar authority.
(c) Service Agreements.--Payment of a bonus under this
section shall be contingent upon the employee entering into a
written service agreement with the Department of Homeland
Security. The agreement shall include--
(1) the period of service the individual shall be
required to complete in return for the bonus; and
(2) the conditions under which the agreement may be
terminated before the agreed-upon service period has
been completed, and the effect of any such termination.
(d) Eligibility.--A bonus under this section may not be paid
to recruit an individual for--
(1) a position to which an individual is appointed by
the President, by and with the advice and consent of
the Senate;
(2) a position in the Senior Executive Service as a
noncareer appointee (as defined under section 3132(a));
or
(3) a position which has been excepted from the
competitive service by reason of its confidential,
policy-determining, policy-making, or policy-advocating
character.
(e) Termination.--The authority to pay bonuses under this
section shall terminate on September 30, 2008.
Sec. 9703. Reemployed annuitants
(a) In General.--If an annuitant receiving an annuity from
the Civil Service Retirement and Disability Fund becomes
employed in a position within the Directorate for Information
Analysis and Infrastructure Protection of the Department of
Homeland Security, the annuitant's annuity shall continue. An
annuitant so reemployed shall not be considered an employee for
the purposes of chapter 83 or 84.
(b) Termination.--The exclusion pursuant to this section of
the Directorate for Information Analysis and Infrastructure
Protection from the reemployed annuitant provisions of chapters
83 and 84 shall terminate 3 years after the date of the
enactment of this section, unless extended by the Secretary of
Homeland Security. Any such extension shall be for a period of
1 year and shall be renewable.
(c) Annuitant Defined.--For purposes of this section, the
term ``annuitant'' has the meaning given such term under
section 8331 or 8401, whichever is appropriate.
Sec. 9704. Regulations
The Secretary of Homeland Security, in consultation with the
Director of the Office of Personnel Management, may prescribe
any regulations necessary to carry out section 9702 or 9703.
* * * * * * *
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SECTION 70105 OF TITLE 46, UNITED STATES CODE
Sec. 70105. Transportation security cards
(a) * * *
* * * * * * *
(c) Determination of Terrorism Security Risk.--(1) * * *
* * * * * * *
(3) The Secretary shall establish an appeals process under
this section for individuals found to be ineligible for a
transportation security card that includes notice and an
opportunity for a hearing before an administrative law judge.
* * * * * * *
(5) In making a determination under paragraph (1)(D) that an
individual poses a terrorism security risk, the Secretary shall
not consider, as the sole reason, a felony conviction if--
(A) that felony occurred more than 7 years prior to
the date of the Secretary's determination; and
(B) the felony was not an offense that is a violation
of a provision specified in subparagraph (B) of section
2332b(g)(5) of title 18.
* * * * * * *