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House Republicans Committee Central
July 26, 2002

Homeland Security Act of 2002


Summary

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. 

Rep. Armey offered an amendment on Friday, July 26, 2002; it was agreed to by voice vote. 

This document is not necessarily endorsed by the Almanac of Policy Issues. It is being preserved  in the Policy Archive for historic reasons.

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