For details on the actual department itself, please
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The Homeland Security Act of 2002 may best be described as a streamlining of
due process in order to protect the
United States of America. A more detailed summary is given by President
George W. Bush.
The mission of the new Department would be to prevent terrorist attacks within the United States, to reduce America's vulnerability to terrorism, and to minimize the damage and recover from attacks that may occur. The Department of Homeland Security would mobilize and focus the resources of the Federal Government, State and local governments, the private sector, and the American people to accomplish its mission. GEORGE W. BUSH
THE WHITE HOUSE,
June 18, 2002.
OFFICIAL DETAILS ON THE ACT ITSELF
H.R. 5005 incorporates additional improvements to the President's proposal. Working
closely with the committees of jurisdiction and the White House, the bill preserves the
essential functions outlined in the President's plan while adding several changes that will
help ensure successful implementation and continued congressional oversight.
Specifically, the measure helps create a world-class workforce within the civil service
framework, enhances research and development opportunities, and protects
civil liberties.
Protecting Our Borders
The bill ensures that the border function remains strong within the new Department.
H.R. 5005 moves the
Coast Guard to the Department of Homeland Security (DHS). The
measure also directs the Commandant of the Coast Guard report to the Secretary of
Homeland Security ensuring all its missions are being adequately performed. The U.S.
Customs Service will also move to the DHS. Some revenue collection agents, however,
will be subject to guidance from the Treasury Department. Inspectors at the Animal
Plant Health Inspection Service (APHIS) who currently protect our borders will move into
the DHS. All other functions of this agency will remain with the Agriculture
Department. Additionally, enforcement and border protection functions at the
Immigration
and Naturalization Service (INS) will move to the DHS. Immigrant service functions will
remain at the
Department of Justice. The Select Committee elevated the position of
Director of Immigration Enforcement to an Assistant Secretary, signifying the importance
of that function to the new Department. Finally, the State Department and consular
officials will continue to issue visas, but they will do so under rules established by the
Department.
Community Involvement
The
Federal Emergency Management Agency (FEMA) will become part of the DHS. This
means it will be clear who's in charge, and response teams will be able to communicate
clearly with one another.
The bill moves the
Secret Service to the DHS. The Department will depend on this
agency's protective functions and expertise. Recognizing that active private sector
participation in homeland security is essential, the Select Committee authorized the
Secretary of Homeland Security to have a special liaison with the private sector to
promote public/private partnerships and promote technology integration for homeland
security. A national Council for First Responders is also established. In order to support
the people who live and work in our nation's capital, the
District of Columbia has been
included in the Federal Governments plans for domestic preparedness and recovery from
terrorist attacks.
Ensuring Open Government
The bill retains the principle that the operations of our government be open, while
ensuring that openness does not decrease our security. When individuals and
businesses provide new information to the DHS so that the Secretary can assess
vulnerabilities, that information will be protected (not subject to FOIA). This will not erode
the oversight protections provided by FOIA in any other government departments. The
measure also ensures that businesses will not be able to end run regulatory reporting
requirements.
Creating a Flexible Motivated Work Force
H.R. 5005 grants the Secretary of Homeland Security greater flexibility in the following
areas of personnel management:
The Secretary will have the flexibility to develop a strategic performance
management program that effectively links employee performance and
accountability to the goals, objectives and mission of the Department. Existing
laws focus on specifying minimum requirements for an employee's position with no
consideration of its connection to mission, strategic goals, and objectives.
The Secretary will have the flexibility to use a broader approach to job
classification that more effectively recognizes the strategic value of each
employee. The current classification system is 53 years old. It is obsolete. It
confines Federal workers to 15 artificial levels or "grades" that no longer match the
needs of a modern workforce or allows for quick changes in mission. It defines pay
too rigidly to support rewarding performance in a meaningful way. It ignores
important differences across occupational lines and career paths that the
Department must manage.
The Department will have the flexibility it needs to attract skilled and dedicated
workers with a modern pay system not necessarily restricted to the rigid 15 "GS"
pay grades. Annual increases in pay are most commonly automatic pay
adjustments for all employees, regardless of performance.
The Secretary of Homeland Security must have the flexibility to establish a
labor-management system that respects the right of workers to organize and
engage in collective bargaining without threatening the important mission of the
Department. The current system is too adversarial and inefficient and often
impedes the ability of an agency to fulfill its missions. The law encourages the
union to stall and delay, and it is common for unions to negotiate extensive,
restrictive procedures that management must follow before making important
decisions. This can slow decision making and delay action.
The Secretary must have the flexibility to establish a system that allows employees to
challenge and appeal agency personnel actions without threatening the mission of the
Department. The procedures for providing due process to employees subject to adverse
actions are unnecessarily complex and time consuming. Regardless of the nature of the
offense, agencies must provide employees at least 30 days notice prior to taking any
action. These procedures often result in expensive and protracted litigation in both
administrative and judicial forms. The delay in reaching finality negatively impacts on an
agency's ability to carry out its mission.
The measure also protects many existing employee protections. Needless to say, civil
rights protections remain. Veterans continue to be rewarded for serving their country by
continuing veteran hiring preferences. Age discrimination is prohibited. The workplace
will be accessible to the disabled. The Fair Labor Standards Act, the Social Security Act
and the Family and Medical Leave Act will continue to apply.
H.R. 5005 guarantees that in any human resources system established under this act that
"employees may organize, bargain collectively, and participate through labor organizations
of their own choosing in decisions which affect them." The only limitation stated is a
standard limitation used by every President since 1976 when employees are engaged in
"intelligence, counterintelligence, investigative, or security work that directly affects
national security." The Secretary will also have this authority.
Promoting World-Class Research and Development
Specifically, the measure:
Establishes a Homeland Security Research Center at one of the National
Laboratories of the National Nuclear Security Administration for homeland security
research.
Allows the Secretary of Homeland Security to use any Federally Funded Research
and Develop Center in the public or private sector to support homeland security
research and conduct independent analysis on those topics.
Establishes a university-based center or centers to assist in training first
responders and conducting research in a variety of areas related to homeland
security including bio- and agro-terrorism.
Freedom and Security - Chairman's Mark for a Bill Establishing a Department of
Homeland Security
Securing Privacy
The Federal government will not have the authority to nationalize drivers' licenses
and other ID cards. Authority to design and issue these cards shall remain with the
states. The use of biometric identifiers and Social Security numbers with these
cards is not consistent with a free society. (Congress has acted several times to
prohibit funding for a national ID card.)
To ensure that no operation of the Department can be construed to promote
citizens spying on one another, this draft will contain language to prohibit programs
such as "Operation TIPS."
Working as a close advisor to the Secretary, this officer will ensure technology
research and new regulations from the Department respect the civil liberties our
citizens enjoy. This is the first-ever such officer established by law in a cabinet
department. The bill includes a provision to establish an office of Civil Rights and
Civil Liberties.
Ensuring Accountable Government
The legislation makes it clear that the Secretary will not be able to assume any
regulatory authority not specifically granted to him by Congress.
A Secretary will not be able to undo agencies that have been specifically established by law.
Although the Secretary will require a great deal of flexibility in setting up this new
Department, he will not have the ability to fund programs outside of the authority
of Congress.
Creates a coordinating body similar to the National Security Council to advise the
President on Homeland Security issues and requires the President to submit an
annual budget so Congress can keep appropriate oversight on tax dollars being
spent to protect American citizens.
It is important the new Department of Homeland Security is well-managed,
therefore, the Select Committee added several current laws related to sound
financial management to the bill and an office to promote the use of small and
disadvantaged businesses. Additionally, unless specifically noted otherwise,
non-homeland security missions being transferred to the department will not be
diminished or associated regulatory authorities.
The SAFETY Act
Advanced technology companies are developing technologies (originally intended for
military use) that can help detect or prevent acts of terrorism. Companies with these
products are nervous about selling them commercially because of the potential unlimited
liabilities, should a terrorist strike again. Unfortunately, this nervousness means that the
best technology is not getting to our neighborhoods, our shopping malls, our office
buildings, or other potential terrorist targets. Consequently, citizens are at greater risk,
unless we do something to protect those who are protecting us.
The SAFETY Act helps ensure that effective anti-terrorism technologies that meet very
stringent requirements are commercially available, but only after companies obtain the
maximum amount of liability insurance possible. It also ensures that victims are
compensated for demonstrable injuries as equitably as possible, for their economic losses,
including their medical costs, their lost wages, their future lost wages, rehabilitation
costs, and any other economic out of pocket losses. Those who engage in criminal or
terrorist acts will not be eligible for the SAFETY act. It only helps those who are helping
us all.
The alternative offered by opponents of the SAFETY Act - Federal indemnification of
corporations' liability - will have the American taxpayer, not the corporations, pay
potentially infinite damages caused by terrorists. The SAFETY act is about working with
companies to make us all safer and not blaming them when terrorists strike.
Legislative History
H.R. 5005 was introduced by Rep. Armey on July 24, 2002. It was reported from the
Agriculture Committee, as amended, by voice vote on June 19, 2002. It was reported
from the Armed Services Committee, as amended, by voice vote on June 19, 2002. It
was reported from the Energy and Commerce by voice vote on June 19, 2002. It was
reported from the International Relations Committee, as amended, by voice vote on July
19, 2002. It was reported from the Judiciary Committee, as amended, by voice vote on
July 19, 2002. It was reported from the Science Committee, as amended, by voice vote
on July 19, 2002. It was reported by the Transportation Committee, as amended, by
voice vote on July 19, 2002. It was reported from the Ways and Means Committee, by a
vote of 34-3, on June 19, 2002. On Friday, July 26, 2002, the bill was agreed to by a
vote of 295 - 132 (Roll No. 367).
Cost Estimate
CBO estimates that implementing H.R. 5005 will cost about $4.5 billion over the
2003-2007 period. This amount is in addition to projected net spending for ongoing
activities of the transferred agencies--about $19 billion in 2002, growing to $27 billion by
2007 under CBO's baseline assumptions.
Enacting H.R. 5005 will increase direct spending from Federal retirement funds by about
$1 million in 2003 and by $5 million over the 2003-2012 period. Therefore, pay-as-you-go
procedures do apply. The bill also may affect governmental receipts from import duties
and from employee contributions to Federal retirement funds, but CBO estimates that the
amounts will be less than $500,000 annually.
Amendments
In order to ensure that accurate summaries are provided in the Daily Floor Briefing,
please call Committee Relations at 6-2302 to provide us with a summary and text of the
amendment. This will allow us to eliminate any questions about what the amendment
does before publishing, thereby, clarifying the summaries Members and staff rely on.
Amendments Considered on Thursday, July 25, 2002 (15 amendments):
Reps. Oberstar/Costello/Roemer offered an amendment on Thursday, July 25, 2002; a
vote on the amendment was rolled until Friday, July 26, 2002. The amendment would
retain FEMA as an independent agency with responsibility for natural disaster
preparedness, response, and recovery. Contact: 5-6211 (Oberstar)
Rep. Young (AK) offered an amendment on Thursday, July 25, 2002; it was agreed to by
voice vote. The amendment restores the Federal Emergency Management Agency as an
entity. The amendment also ensures that FEMA carries out all of its statutory missions,
not just those related to homeland security. It continues FEMA’s role as the lead agency
for the Federal Response Plan established under Executive Order 12148 and 12656. Contact: 5-5765
Rep. Cox offered an amendment on Thursday, July 25, 2002; it was agreed to by voice
vote. The amendment provides specific, illustrative examples of the types of critical
cybersecurity infrastructure which the Undersecretary for Information Analysis and
Infrastructure Protection must develop a plan to protect. Contact: 5-5611
Rep. Israel offered an amendment on Thursday, July 25, 2002; it was agreed to by voice
vote. The amendment creates an Advisory Committee for the Undersecretary for Science
and Technology. Contact: 5-3335
Rep. Rivers offered, but withdrew, an amendment on Thursday, July 25, 2002. The
amendment intended to create an Office of Inquiries within the Department of Science
and Technology which will act as a point of entry for individuals or companies seeking
guidance on how to pursue proposals to develop or deploy products that will contribute
to homeland security. Contact: 5-6261
Rep. Woolsey offered an amendment on Thursday, July 25, 2002; it was agreed to by
voice vote. The amendment adds a new section to the bill creating a Homeland Security
Institute as a Federally-funded research and development center. Contact: 5-5161
Rep. Cardin offered an amendment on Thursday, July 25, 2002; it failed by a vote of 177
- 245 (Roll No. 354). The amendment would preserve the existing Customs Service as a
“distinct entity” within the DHS. The amendment does not affect the bill's provisions
which protect certain revenue and trade act enforcement functions of the Customs
Service. Contact: 5-4016
Rep. Hunter offered an amendment on Thursday, July 25, 2002; it was agreed to by
voice vote. The amendment expresses the Sense of Congress that completion of the San
Diego Border Fence Project is a priority of DHS. Contact: 5-5672
Rep. Ose offered an amendment on Thursday, July 25, 2002; it was agreed to by voice
vote. The amendment requires the Under Secretary of Management to develop a plan,
within one year, to consolidate and co-locate regional and field offices in each of the
cities with any existing regional or field office transferred to the DHS. Contact: 5-5716
Reps. Velazquez/Issa/Wilson offered an amendment on the legislative day of
Thursday, July 25, 2002; it was agreed to by voice vote. The amendment ensures that
the Department of Homeland Security has procurement goals for small businesses that are
no less than the statutory minimum. The amendment also ensures that those employees
responsible for this goal attainment have a corresponding criteria in their performance
evaluations. Contact: 5-2361 (Velazquez)
Rep. Hastings (FL) offered an amendment on the legislative day of Thursday, July 25,
2002; it was agreed to by voice vote. The amendment adds a new section to title VII
that directs the Secretary to comply with laws protecting equal employment opportunity
and providing whistle blower protections. The amendment also states that nothing in the
Act shall be construed as exempting the DHS from the requirements that are applicable to
all other executive agencies. Contact: 5-1313
Rep. Kingston offered an amendment on the legislative day of Thursday, July 25, 2002;
it was agreed to by voice vote. The amendment ensures that if the Federal Law
Enforcement Training Center is transferred to the Department of Justice, the Department
of Justice will not alter the operations of the Center. Contact: 5-5831
Rep. Rogers (KY) offered an amendment on the legislative day of Thursday, July 25,
2002; it was agreed to by a vote of 240 - 188 (Roll No. 355). The amendment would
grant permissive authority to the DHS Secretary for the creation of a Joint Interagency
Homeland Security Taskforce. Contact: 5-4601
Rep. Rush offered an amendment on the legislative day of Thursday, July 25, 2002; it
was agreed to by voice vote. The amendment establishes within the Office of the
Secretary an office to oversee and coordinate developmental programs for and
relationships with State and local governments. Contact: 5-4372
Reps. Shays/Watson offered an amendment on the legislative day of Thursday, July 25,
2002; it was agreed to by voice vote. The amendment requires biennial reports to
Congress on the status of homeland security preparedness, including a report on each
state. The amendment also requires a report to Congress, within one year of enactment,
ensuring the maintenance of core functions transferred to the DHS and recommending
statutory changes to facilitate implementation of the reorganization effort. Contact:
5-5541 (Shays)
Amendments Considered on Friday, July 26, 2002 (12 amendments):
Rep. Waxman offered an amendment on Friday, July 26, 2002; it failed by a vote of 175
- 248 (Roll No. 352). The amendment intended to codify and strengthen the White House
Office of Homeland Security which was established by executive order in October, 2001.
Contact: 5-3976
Rep. Shays offered an amendment on Friday, July 26, 2002; it was agreed to by a vote
of 229 - 201 (Roll No. 356). The amendment is similar to the Morella amendment
approved by the Government Reform Committee, except for an additional section stating
that the provisions of the amendment will not apply where the President determines in
writing that such application will have a substantial adverse impact on the Department’s
ability to protect homeland security. Contact: 5-5541
Rep. Morella offered an amendment on Friday, July 26, 2002; it failed by a vote of 208 -
222 (Roll No. 357). The amendment intended to allow existing employees transferred into
DHS, who have the same job responsibilities, to still belong to a union. If their
responsibilities changed so they were directly involved in the war on terrorism, they could
be exempted from being part of a union by the President. Those employees or units that
did not have union representation before the transfer will not be granted any extra
protections by this amendment. Contact: 5-5341
Rep. Quinn offered an amendment on Friday, July 26, 2002; it was agreed to by a vote
of 227 - 202 (Roll No. 358). The amendment clarifies worker rights in section 761.
Contact: 5-3306
Reps. Waxman/Frost offered an amendment on Friday, July 26, 2002; it failed by a
vote of 208 - 220 (Roll No. 360). The amendment intended to delete the entire human
resources which exempt employees of the new Department from Title 5. The amendment
also provided that Federal employees transferred to the new agency could not have their
pay reduced. It also strengthens whistleblower protections. Contact: 5-3976
(Waxman)
Rep. Armey offered an En Bloc Manager’s Amendment on Friday, July 26, 2002; it was
agreed to by a vote of 222 - 204 (Roll No. 361). The amendment makes technical
amendments requested by Energy and Commerce Committee. Technical amendments
requested by Science Committee. Technical correction regarding Oil Spill Liability Trust
Fund requested by Transportation and Infrastructure Committee. Technical amendments
relating to DHS privacy officer. Technical correction relating to biological agent
registration function requested by Agriculture Committee. An amendment to create a
program to encourage and support innovative solutions to enhance homeland security
(requested by Mr. Davis and Ms. Harman). An amendment to enhance non-federal
cybersecurity activities of Under Secretary for Information Analysis and Infrastructure
Protection (requested by Science Committee). An amendment to establish "NET Guard"
program to promote volunteer activities in support of information technology protection
activities (requested by Science Committee). An amendment striking section 814
(relating to incidental transfers by the Director of OMB) requested by Appropriations
Committee. A Technical correction to section 761 to insert a proper reference. An
amendment inserting sense of Congress provision reaffirming the Posse Comitatus Act.
An amendment clarifying that this Act preempts no state or local law, except that any
preemption authority vested in agencies or officials transferred to DHS shall be
transferred to DHS. An amendment inserting text of "Federal Information Security
management Act of 2002" (recommended by Committee on Government Reform at request
of Mr. Davis), which creates a new Title XI to address Federal information security.
Transfers to the DHS the computer information security standards currently promulgated
by the Secretary of Commerce and permanently reauthorizes the agency-wide risk
management information security approach in the Government Information Security
Reform Act of 2000 (GISRA) and eliminates GISRA’s two-year sunset. Second, it would
strengthen reforms initiated by the existing GISRA by clarifying terms, correcting
mistakes, and streamlining requirements. Requires the development, promulgation, and
compliance with minimum mandatory management controls for securing information.
Includes Amendments to subtitle F of title VII (relating to liability management) intended
to clarify availability of liability protections afforded by this title. An amendment inserting
a new section to reinstate liability cap for aviation screening companies. A clarification
responsibilities of the DHS and the DHS Counternarcotics Officer with regard to narcotics
interdiction. A clarification of the eligibility criteria for participation in certain extramural
research programs of the Department. Includes technical amendment to section 766,
regarding regulatory authority. New section expressing the sense of Congress regarding
funding of trauma systems. Contact: 5-4000
Rep. Turner offered an amendment on Friday, July 26, 2002; it failed by a vote of 214 -
215 (Roll No. 359). The amendment intended to indemnify companies who sell
anti-terrorism technologies to the Federal government, as well as, State and local
governments, in a manner similar to the protection afforded under P.L. 85-804. Contact:
5-2401
Reps. Oberstar/Menendez offered an amendment on Friday, July 26, 2002; it failed by
a vote of 211 - 217 (Roll No. 362). The amendment intended to strike Section 409 of the
bill that currently provides the Transportation Security Agency (TSA) the flexibility to
develop reasonable deadlines for the less than 25 percent of airports that cannot meet,
without undue burden, the impending year-end deadline for explosive baggage screening
deadlines. Under the existing bill language, each airport must be fully compliant with the
checked baggage explosive requirement by December 31, 2003 (the same date that was
passed in the House version of the Aviation and Transportation Security Act). Contact:
5-6211 (Oberstar)
Reps. Schakowsky/Kucinich/Minkmay offered an amendment on Friday, July 26, 2002;
it failed by a vote of 188 - 240 (Roll No. 363). The amendment intended to strike
Subtitle C of Section VII. The amendment also strikes Section 762 from the bill and
replaces with language that provides remedies for retaliation against whistleblowers.
Contact: 5-2111 (Schakowsky)
Rep. Davis (VA) offered an amendment on Friday, July 26, 2002; it failed by a vote of
195 - 233 (Roll No. 364). The amendment intended to expand the existing FOIA
exemption in the homeland security legislation to other Federal agencies as the Secretary
of Homeland Security determines as appropriate. Contact: 5-1492
Reps. Chambliss/Harman/Shays/Menendez offered an amendment on Friday, July
26, 2002; it was agreed, as modified, by voice vote. The amendment directs that critical
threat information be shared between Federal law enforcement and intelligence agencies
with State and local personnel, including granting security clearances to appropriate
state and local personnel. It also directs the President to develop procedures by which
Federal agencies will share homeland security information with State and local personnel
and vice versa. The amendment also requires that any information that is shared must
not be used for any unauthorized purpose and the procedures must ensure the security
and confidentiality of the information as well as the removal or deletion of obsolete or
erroneous information. Additionally, the amendment allows certain types of information to
be shared with appropriate state and local offices consistent with guidelines issued by
the Attorney General and Director of Central Intelligence. Contact: 5-6531
(Chambliss)
Rep. Weldon (FL) offered an amendment on Friday, July 26, 2002; it failed by a vote of
118 - 309 (Roll No. 365). It intended to amend sections 402 and 403 of the bill to
transfer the visa office from the Department of State to the DHS. Provides for a two-year
transition period during which the Foreign Service Officers issuing visas would be detailed
to the DHS while new DHS personnel are trained and deployed abroad. The amendment
also preserves the Secretary of State’s authority to deny a visa based in the national
interest of the U.S. Prohibits judicial review of consular decisions to refuse a visa.
Contact: 5-3671
Rep. Armey offered an amendment on Friday, July 26, 2002; it was agreed to by voice
vote.