Estados Unidos de América

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2135

Public Law 107-296 107th Congress

An Act Nov. 25, 2002

To establish the Department of Homeland Security, and for other purposes. [H.R. 5005]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Homeland SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 2002"^^ ^^^ °^

(a) SHORT TITLE.—This Act may be cited as the "Homeland 6 USC lOl note. Security Act of 2002".

(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Construction; severability. Sec. 4. Effective date.

T I T L E I — D E P A R T M E N T OF HOMELAND SECURITY

Sec. 101. Executive department; mission. Sec. 102. Secretary; functions. Sec. 103. Other officers.

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. 202. Access to information.

Subtitle B—Critical Infrastructure Information Sec. 211. Short title. Sec. 212. Definitions. Sec. 213. Designation of critical infrastructure protection program. Sec. 214. Protection of voluntarily shared critical infrastructure information. Sec. 215. No private right of action.

Subtitle C—Information Security Sec. 221. Procedures for sharing information. Sec. 222. Privacy Officer. Sec. 223. Enhancement of non-Federal cybersecurity. Sec. 224. Net guard. Sec. 225. Cyber Security Enhancement Act of 2002.

Subtitle D—Office of Science and Technology Sec. 231. Establishment of office; Director. Sec. 232. Mission of office; duties. Sec. 233. Definition of law enforcement technology. Sec. 234. Abolishment of Office of Science and Technology of National Institute of

Justice; transfer of functions. Sec. 235. National Law Enforcement and Corrections Technology Centers. Sec. 236. Coordination with other entities within Department of Justice. Sec. 237. Amendments relating to National Institute of Justice.

TITLE III—SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY

Sec. 301. Under Secretary for Science and Technology.

116 STAT. 2136 PUBLIC LAW 107-296—NOV. 25, 2002

Sec. 302. Responsibilities and authorities of the Under Secretary for Science and Technology.

Sec. 303. Functions transferred. Sec. 304. Conduct of certain public health-related activities. Sec. 305. Federally funded research and development centers. Sec. 306. Miscellaneous provisions. Sec. 307. Homeland Security Advanced Research Projects Agency. Sec. 308. Conduct of research, development, demonstration, testing and evaluation. Sec. 309. Utilization of Department of Energy national laboratories and sites in

support of homeland security activities. Sec. 310. Transfer of Plum Island Animal Disease Center, Department of Agri-

culture. Sec. 311. Homeland Security Science and Technology Advisory Committee. Sec. 312. Homeland Security Institute. Sec. 313. Technology clearinghouse to encourage and support innovative solutions

to enhance homeland security.

TITLE IV—DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

Subtitle A—Under Secretary for Border and Transportation Security

Sec. 401. Under Secretary for Border and Transportation Security. Sec. 402. Responsibilities. Sec. 403. Functions transferred.

Subtitle B—United States Customs Service Sec. 411. Establishment; Commissioner of Customs. Sec. 412. Retention of customs revenue functions by Secretary of the Treasury. Sec. 413. Preservation of customs funds. Sec. 414. Separate budget request for customs. Sec. 415. Definition. Sec. 416. GAO report to Congress. Sec. 417. Allocation of resources by the Secretary. Sec. 418. Reports to Congress. Sec. 419. Customs user fees.

Subtitle C—Miscellaneous Provisions

Sec. 421. Transfer of certain agricultural inspection functions of the Department of Agriculture.

Sec. 422. Functions of Administrator of General Services. Sec. 423. Functions of Transportation Security Administration. Sec. 424. Preservation of Transportation Security Administration as a distinct enti-

ty. Sec. 425. Explosive detection systems. Sec. 426. Transportation security. Sec. 427. Coordination of information and information technology. Sec. 428. Visa issuance. Sec. 429. Information on visa denials required to be entered into electronic data

system. Sec. 430. Office for Domestic Preparedness.

Subtitle D—Immigration Enforcement Functions

Sec. 441. Transfer of functions to Under Secretary for Border and Transportation Security.

Sec. 442. Establishment of Bureau of Border Security. Sec. 443. Professional responsibility and quality review. Sec. 444. Employee discipline. Sec. 445. Report on improving enforcement functions. Sec. 446. Sense of Congress regarding construction of fencing near San Diego, Cali-

fornia.

Subtitle E—Citizenship and Immigration Services

Sec. 451. Establishment of Bureau of Citizenship and Immigration Services. Sec. 452. Citizenship and Immigration Services Ombudsman. Sec. 453. Professional responsibility and quality review. Sec. 454. Employee discipline. Sec. 455. Effective date. Sec. 456. Transition. Sec. 457. Funding for citizenship and immigration services. Sec. 458. Backlog elimination. Sec. 459. Report on improving immigration services. Sec. 460. Report on responding to fluctuating needs.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2137

Sec. 461. Application of Internet-based technologies. Sec. 462. Children's affairs.

Subtitle F—General Immigration Provisions

Sec. 471. Abolishment of INS. Sec. 472. Voluntary separation incentive payments. Sec. 473. Authority to conduct a demonstration project relating to disciplinary ac-

tion. Sec. 474. Sense of Congress. Sec. 475. Director of Shared Services. Sec. 476. Separation of funding. Sec. 477. Reports and implementation plans. Sec. 478. Immigration functions.

TITLE V—EMERGENCY PREPAREDNESS AND RESPONSE

Sec. 501. Under Secretary for Emergency Preparedness and Response. Sec. 502. Responsibilities. Sec. 503. Functions transferred. Sec. 504. Nuclear incident response. Sec. 505. Conduct of certain public health-related activities. Sec. 506. Definition. Sec. 507. Role of Federal Emergency Management Agency. Sec. 508. Use of national private sector networks in emergency response. Sec. 509. Use of commercially available technology, goods, and services.

TITLE VI—TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS

Sec. 601. Treatment of charitable trusts for members of the Armed Forces of the United States and other governmental organizations.

TITLE VII—MANAGEMENT

Sec. 701. Under Secretary for Management. Sec. 702. Chief Financial Officer. Sec. 703. Chief Information Officer. Sec. 704. Chief Human Capital Officer. Sec. 705. Establishment of Officer for Civil Rights and Civil Liberties. Sec. 706. Consolidation and co-location of offices.

TITLE VIII—COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

Subtitle A—Coordination with Non-Federal Entities

Sec. 801. Office for State and Local Government Coordination.

Subtitle B—Inspector General

Sec. 811. Authority of the Secretary. Sec. 812. Law enforcement powers of Inspector General agents.

Subtitle C—United States Secret Service

Sec. 821. Functions transferred.

Subtitle D—^Acquisitions Sec. 831. Research and development projects. Sec. 832. Personal services. Sec. 833. Special streamlined acquisition authority. Sec. 834. Unsolicited proposals. Sec. 835. Prohibition on contracts with corporate expatriates.

Subtitle E—Human Resources Management Sec. 841. Establishment of Human Resources Management System. Sec. 842. Labor-management relations.

Subtitle F—Federal Emergency Procurement Flexibility Sec. 851. Definition. Sec. 852. Procurements for defense against or recovery from terrorism or nuclear,

biological, chemical, or radiological attack.

99-194O-03-18:QL3Part3

116 STAT. 2138 PUBLIC LAW 107-296—NOV. 25, 2002

Sec. 853. Increased simplified acquisition threshold for procurements in support of humanitarian or peacekeeping operations or contingency operations.

Sec. 854. Increased micro-purchase threshold for certain procurements. Sec. 855. Application of certain commercial items authorities to certain procure-

ments. Sec. 856. Use of streamlined procedures. Sec. 857. Review and report by Comptroller General. Sec. 858. Identification of new entrants into the Federal marketplace.

Subtitle G^—Support Anti-terrorism by Fostering Effective Technologies Act of 2002 Sec. 861. Short title. Sec. 862. Administration. Sec. 863. Litigation management. Sec. 864. Risk management. Sec. 865. Definitions.

Subtitle H—^Miscellaneous Provisions

Sec. 871. Advisory committees. Sec. 872. Reorganization. Sec. 873. Use of appropriated funds. Sec. 874. Future Year Homeland Security Program. Sec. 875. Miscellaneous authorities. Sec. 876. Military activities. Sec. 877. Regulatory authority and preemption. Sec. 878. Counternarcotics officer. Sec. 879. Office of International Affairs. Sec. 880. Prohibition of the Terrorism Information and Prevention System. Sec. 881. Review of pay and benefit plans. Sec. 882. Office for National Capital Region Coordination. Sec. 883. Requirement to comply with laws protecting equal employment oppor-

tunity and providing whistleblower protections. Sec. 884. Federal Law Enforcement Training Center. Sec. 885. Joint Interagency Task Force. Sec. 886. Sense of Congress reaffirming the continued importance and applicability

of the Posse Comitatus Act. Sec. 887. Coordination with the Department of Health and Human Services under

the Public Health Service Act. Sec. 888. Preserving Coast Guard mission performance. Sec. 889. Homeland security fiinding analysis in President's budget. Sec. 890. Air Transportation Safety and System Stabilization Act.

Subtitle I—Information Sharing Sec. 891. Short title; findings; and sense of Congress. Sec. 892. Facilitating homeland security information sharing procedures. Sec. 893. Report. Sec. 894. Authorization of appropriations. Sec. 895. Authority to share grand jury information. Sec. 896. Authority to share electronic, wire, and oral interception information. Sec. 897. Foreign intelligence information. Sec. 898. Information acquired from an electronic surveillance. Sec. 899. Information acquired from a physical search.

TITLE IX—NATIONAL HOMELAND SECURITY COUNCIL Sec. 901. National Homeland Security Council. Sec. 902. Function. Sec. 903. Membership. Sec. 904. Other functions and activities. Sec. 905. Staff composition. Sec. 906. Relation to the National Security Council.

TITLE X—INFORMATION SECURITY Sec. 1001. Information security. Sec. 1002. Management of information technolojgy. Sec. 1003. National Institute of Standards and Technology. Sec. 1004. Information Security and Privacy Advisory Board. Sec. 1005. Technical and conforming amendments. Sec. 1006. Construction.

TITLE XI—DEPARTMENT OF JUSTICE DIVISIONS

Subtitle A—Executive Office for Immigration Review

Sec. 1101. Legal status of EOIR.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2139

Sec. 1102. Authorities of the Attorney General. ' Sec. 1103. Statutory construction.

Subtitle B—Transfer of the Bureau of Alcohol, Tobacco and Firearms to the Department of Justice

Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and Explosives. Sec. 1112. Technical and conforming amendments. Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco, Firearms, and Ex-

plosives. Sec. 1114. Explosives training and research facility. Sec. 1115. Personnel management demonstration project.

Subtitle C—Explosives Sec. 1121. Short title. Sec. 1122. Permits for purchasers of explosives. Sec. 1123. Persons prohibited from receiving or possessing explosive materials. Sec. 1124. Requirement to provide samples of explosive materials and ammonium

nitrate. Sec. 1125. Destruction of property of institutions receiving Federal financial assist-

ance. Sec. 1126. Relief from disabilities. Sec. 1127. Theft reporting requirement. Sec. 1128. Authorization of appropriations.

TITLE XII—AIRLINE WAR RISK INSURANCE LEGISLATION Sec. 1201. Air carrier liability for third party claims arising out of acts of terrorism. Sec. 1202. Extension of insurance policies. Sec. 1203. Correction of reference. Sec. 1204. Report.

TITLE XIII—FEDERAL WORKFORCE IMPROVEMENT

Subtitle A—Chief Human Capital Officers Sec. 1301. Short title. Sec. 1302. Agency Chief Human Capital Officers. Sec. 1303. Chief Human Capital Officers Council. Sec. 1304. Strategic human capital management. Sec. 1305. Effective date.

Subtitle B—Reforms Relating to Federal Human Capital Management Sec. 1311. Inclusion of agency human capital strategic planning in performance

plans and programs performance reports. Sec. 1312. Reform of tne competitive service hiring process. Sec. 1313. Permanent extension, revision, and expansion of authorities for use of

voluntary separation incentive pay and voluntary early retirement. Sec. 1314. Student volunteer transit subsidy.

Subtitle C—Reforms Relating to the Senior Executive Service Sec. 1321. Repeal of recertification requirements of senior executives. Sec. 1322. Adjustment of limitation on total annual compensation.

Subtitle D—^Academic Training Sec. 1331. Academic training. Sec. 1332. Modifications to National Security Education Program.

TITLE XIV—ARMING PILOTS AGAINST TERRORISM Sec. 1401. Short title. Sec. 1402. Federal Flight Deck Officer Program. Sec. 1403. Crew training. Sec. 1404. Commercial airline security study. Sec. 1405. Authority to arm flight deck crew with less-than-lethal weapons. Sec. 1406. Technical amendments.

TITLE XV—TRANSITION

Subtitle A—Reorganization Plan Sec. 1501. Definitions. Sec. 1502. Reorganization plan. Sec. 1503. Review of congressional committee structures.

Subtitle B—Transitional Provisions Sec. 1511. Transitional authorities.

116 STAT. 2140 PUBLIC LAW 107-296—NOV. 25, 2002

Sec. 1512. Savings provisions. Sec. 1513. Terminations. Sec. 1514. National identification system not authorized. Sec. 1515. Continuity of Inspector General oversight. Sec. 1516. Incidental transfers. Sec. 1517. Reference.

TITLE XVI—CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE TRANSPORTATION SECURITY

Sec. 1601. Retention of security sensitive information authority at Department of Transportation.

Sec. 1602. Increase in civil penalties. Sec. 1603. Allowing United States citizens and United States nationals as screen-

ers.

TITLE XVII—CONFORMING AND TECHNICAL AMENDMENTS

Sec. 1701. Inspector General Act of 1978. Sec. 1702. Executive Schedule. Sec. 1703. United States Secret Service. Sec. 1704. Coast Guard. Sec. 1705. Strategic national stockpile and smallpox vaccine development. Sec. 1706. Transfer of certain security and law enforcement functions and autiiori-

ties. Sec. 1707. Transportation security regulations. Sec. 1708. National Bio-Weapons Defense Analysis Center. Sec. 1709. Collaboration with the Secretary of Homeland Security. Sec. 1710. Railroad safety to include railroad security. Sec. 1711. Hazmat safety to include hazmat security. Sec. 1712. Office of Science and Technology Policy. Sec. 1713. National Oceanographic Partnership Program. Sec. 1714. Clarification of definition of manufacturer. Sec. 1715. Clarification of definition of vaccine-related injury or death. Sec. 1716. Clarification of definition of vaccine. Sec. 1717. Effective date.

6 u s e 101. SEC. 2. DEFINITIONS.

In this Act, the following definitions apply: (1) Each of the terms "American homeland" and "homeland"

means the United States. (2) The term "appropriate congressional committee" means

any committee of the House of Representatives or the Senate having legislative or oversight jurisdiction under the Rules of the House of Representatives or the Senate, respectively, over the matter concerned.

(3) The term "assets" includes contracts, facilities, property, records, unobligated or unexpended balances of appropriations, and other funds or resources (other than personnel).

(4) The term "critical infrastructure" has the meaning given that term in section 1016(e) of Public Law 107-56 (42 U.S.C. 5195c(e)).

(5) The term "Department" meams the Department of Homeland Security.

(6) The term "emergency response providers" includes Fed- eral, State, and local emergency public safety, law enforcement, emergency response, emergency medical (including hospital emergency facilities), and related personnel, agencies, and authorities.

(7) The term "executive agency" means an executive agency and a military department, as defined, respectively, in sections 105 and 102 of title 5, United States Code.

(8) The term "functions" includes authorities, powers, rights, privileges, immunities, programs, projects, activities, duties, and responsibilities.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2141

(9) The term "key resources" means publicly or privately controlled resources essential to the minimal operations of the economy and government.

(10) The term "local government" means— (A) a county, municipality, city, town, township, local

public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit cor- poration under State law), regional or interstate govern- ment entity, or agency or instrumentality of a local govern- ment;

(B) an Indian tribe or authorized tribal organization, or in Alaska a Native village or Alaska Regional Native Corporation; and

(C) a rural community, unincorporated town or village, or other public entity. (11) The term "major disaster" has the meaning given

in section 102(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122).

(12) The term "personnel" means officers and employees. (13) The term "Secretary" means the Secretary of Home-

land Security. (14) The term "State" means any State of the United States,

the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possession of the United States.

(15) The term "terrorism" means any activity that— (A) involves an act that—

(i) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and

(ii) is a violation of the criminal laws of the United States or of any State or other subdivision of the United States; and (B) appears to be intended—

(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by

intimidation or coercion; or (iii) to affect the conduct of a government by mass

destruction, assassination, or kidnapping. (16)(A) The term "United States", when used in a

geographic sense, means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, any possession of the United States, and any waters within the jurisdiction of the United States.

(B) Nothing in this paragraph or any other provision of this Act shall be construed to modify the definition of "United States" for the purposes of the Immigration and Nationality Act or any other immigration or nationality law.

SEC. 3. CONSTRUCTION; SEVERABILITY. 6 USC 102.

Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by

116 STAT. 2142 PUBLIC LAW 107-296—NOV. 25, 2002

law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof, or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

6 u s e 101 note. SEC. 4. EFFECTIVE DATE.

This Act shall take effect 60 days after the date of enactment.

TITLE I—DEPARTMENT OF HOMELAND SECURITY

6 use 111. SEC. 101. EXECUTIVE DEPARTMENT; MISSION.

(a) ESTABLISHMENT.—There is established a Department of Homeland Security, as an executive department of the United States within the meaning of title 5, United States Code.

(b) MISSION.— (1) IN GENERAL.—The primary mission of the Department

is to— (A) prevent terrorist attacks within the United States; (B) reduce the vulnerability of the United States to

terrorism; (C) minimize the damage, and assist in the recovery,

from terrorist attacks that do occur within the United States;

(D) carry out all functions of entities transferred to the Department, including by acting as a focal point regarding natural and manmade crises and emergency planning;

(E) ensure that the functions of the agencies and sub- divisions within the Department that are not related directly to securing the homeland are not diminished or neglected except by a specific explicit Act of Congress;

(F) ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland; and

(G) monitor connections between illegal drug traf- ficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking. (2) RESPONSIBILITY FOR INVESTIGATING AND PROSECUTING

TERRORISM.—Except as specifically provided by law with respect to entities transferred to the Department uhder this Act, pri- mary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over the acts in question.

6 use 112. SEC. 102. SECRETARY; FUNCTIONS.

(a) SECRETARY.— (1) IN GENERAL.—There is a Secretary of Homeland Secu-

rity, appointed by the President, by and with the advice and consent of the Senate.

(2) HEAD OF DEPARTMENT.—The Secretary is the head of the Department and shall have direction, authority, and control over it.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2143

(3) FUNCTIONS VESTED IN SECRETARY.—All functions of all officers, employees, and organizational units of the Department are vested in the Secretary. (b) FUNCTIONS.—^The Secre tary-

CD except as otherwise provided by this Act, may delegate any of the Secretary's functions to any officer, employee, or organizational unit of the Department;

(2) shall have the authority to make contracts, grants, and cooperative agreements, and to enter into agreements with other executive agencies, as may be necessary and proper to carry out the Secretary's responsibilities under this Act or otherwise provided by law; and

(3) shall take reasonable steps to ensure that information systems and databases of the Department are compatible with each other and with appropriate databases of other Depart- ments. (c) COORDINATION WITH NON-FEDERAL ENTITIES.—^With respect

to homeland security, the Secretary shall coordinate through the Office of State and Local Coordination (established under section 801) (including the provision of training and equipment) with State and local government personnel, agencies, and authorities, with the private sector, and with other entities, including by—

(1) coordinating with State and local government personnel, agencies, and authorities, and with the private sector, to ensure adequate planning, equipment, training, and exercise activities;

(2) coordinating and, as appropriate, consolidating, the Fed- eral Government's communications and systems of communica- tions relating to homeland security with State and local govern- ment personnel, agencies, and authorities, the private sector, other entities, and the public; and

(3) distributing or, as appropriate, coordinating the dis- tribution of, warnings and information to State and local government personnel, agencies, and authorities and to the public. (d) MEETINGS OF NATIONAL SECURITY COUNCIL.—The Secretary

may, subject to the direction of the President, attend and participate in meetings of the National Security Council.

(e) ISSUANCE OF REGULATIONS.—The issuance of regulations by the Secretary shall be governed by the provisions of chapter 5 of title 5, United States Code, except as specifically provided in this Act, in laws granting regulatory authorities that are trans- ferred by this Act, and in laws enacted after the date of enactment of this Act.

(f) SPECIAL ASSISTANT TO THE SECRETARY.—The Secretary shall appoint a Special Assistant to the Secretary who shall be responsible for—

(1) creating and fostering strategic communications with the private sector to enhance the primary mission of the Depart- ment to protect the American homeland;

(2) advising the Secretary on the impact of the Depart- ment's policies, regulations, processes, and actions on the pri- vate sector;

(3) interfacing with other relevant Federal agencies with homeland security missions to assess the impact of these agen- cies' actions on the private sector;

116 STAT. 2144 PUBLIC LAW 107-296—NOV. 25, 2002

(4) creating and managing private sector advisory councils composed of representatives of industries and associations des- ignated by the Secretary to—

(A) advise the Secretary on private sector products, appHcations, and solutions as they relate to homeland secu- rity challenges; and

(B) advise the Secretary on homeland security policies, regulations, processes, and actions that affect the partici- pating industries and associations; (5) working with Federal laboratories, federally funded

research and development centers, other federally funded organizations, academia, and the private sector to develop innovative approaches to address homeland security challenges to produce and deploy the best available technologies for home- land security missions;

(6) promoting existing public-private partnerships and developing new public-private partnerships to provide for collaboration and mutual support to address homeland security challenges; and

(7) assisting in the development and promotion of private sector best practices to secure critical infrastructure. (g) STANDARDS POLICY.—^All standards activities of the Depart-

ment shall be conducted in accordance with section 12(d) of the National Technology Transfer Advancement Act of 1995 (15 U.S.C. 272 note) and Office of Management and Budget Circular A-119.

6 u s e 113. SEC. 103. OTHER OFFICERS.

(a) DEPUTY SECRETARY; UNDER SECRETARIES.—There are the following officers, appointed by the President, by and with the advice and consent of the Senate:

(1) A Deputy Secretary of Homeland Security, who shall be the Secretary's first assistant for purposes of subchapter III of chapter 33 of title 5, United States Code.

(2) An Under Secretary for Information Analysis and Infra- structure Protection.

(3) An Under Secretary for Science and Technology. (4) An Under Secretary for Border and Transportation

Security. (5) An Under Secretary for Emergency Preparedness and

Response. (6) A Director of the Bureau of Citizenship and Immigration

Services. (7) An Under Secretary for Management. (8) Not more than 12 Assistant Secretaries. (9) A General Counsel, who shall be the chief legal officer

of the Department. (b) INSPECTOR GENERAL.—There is an Inspector General, who

shall be appointed as provided in section 3(a) of the Inspector General Act of 1978.

(c) COMMANDANT OF THE COAST GUARD.—To assist the Sec- retary in the performance of the Secretary's functions, there is a Commandant of the Coast Guard, who shall be appointed as provided in section 44 of title 14, United States Code, and who shall report directly to the Secretary. In addition to such duties as may be provided in this Act and as assigned to the Commandant by the Secretary, the duties of the Commandant shall include those required by section 2 of title 14, United States Code.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2145

(d) OTHER OFFICERS.—To assist the Secretary in the perform- ance of the Secretary's functions, there are the following officers, appointed by the President:

(1) A Director of the Secret Service. (2) A Chief Information Officer. (3) A Chief Human Capital Officer. (4) A Chief Financial Officer. (5) An Officer for Civil Rights and Civil Liberties.

(e) PERFORMANCE OF SPECIFIC FUNCTIONS.—Subject to the provisions of this Act, every officer of the Department shall perform the functions specified by law for the official's office or prescribed by the Secretary.

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 INFRA- 6 USC 121. STRUCTURE PROTECTION.

(a) UNDER SECRETARY OF HOMELAND SECURITY FOR INFORMA- TION ANALYSIS AND INFRASTRUCTURE PROTECTION.—

(1) IN GENERAL.—There shall be in the Department a Direc- torate for Information Analysis and Infrastructure Protection headed by an Under Secretary for Information Analysis and Infrastructure Protection, who shall be appointed by the Presi- dent, by and with the advice and consent of the Senate.

(2) RESPONSIBILITIES.—The Under Secretary shall assist the Secretary in discharging the responsibilities assigned by the Secretary. (b) ASSISTANT SECRETARY FOR INFORMATION ANALYSIS; ASSIST-

ANT SECRETARY FOR INFRASTRUCTURE PROTECTION.— (1) ASSISTANT SECRETARY FOR INFORMATION ANALYSIS.—

There shall be in the Department an Assistant Secretary for Information Analysis, who shall be appointed by the President.

(2) ASSISTANT SECRETARY FOR INFRASTRUCTURE PROTEC- TION.—There shall be in the Department an Assistant Secretary for Infrastructure Protection, who shall be appointed by the President.

(3) RESPONSIBILITIES.—The Assistant Secretary for Information Analysis and the Assistant Secretary for Infra- structure Protection shall assist the Under Secretary for Information Analysis and Infrastructure Protection in dis- charging the responsibilities of the Under Secretary under this section. (c) DISCHARGE OF INFORMATION ANALYSIS AND INFRASTRUCTURE

PROTECTION.—The Secretary shall ensure that the responsibilities of the Department regarding information analysis and infrastruc- ture protection are carried out through the Under Secretary for Information Analysis and Infrastructure Protection.

(d) RESPONSIBILITIES OF UNDER SECRETARY.—Subject to the direction and control of the Secretary, the responsibilities of the

116 STAT. 2146 PUBLIC LAW 107-296—NOV. 25, 2002

Under Secretary for Information Analysis and Infrastructure Protec- tion shall be as follows:

(1) To access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities, and to integrate such information in order to—

(A) identify and assess the nature and scope of terrorist threats to the homeland;

(B) detect and identify threats of terrorism against the United States; and

(C) understand such threats in light of actual and potential vulnerabilities of the homeland. (2) To carry out comprehensive assessments of the

vulnerabilities of the key resources and critical infrastructure of the United States, including the performance of risk assess-

• ments to determine the risks posed by particular types of terrorist attacks within the United States (including an assess- ment of the probability of success of such attacks and the feasibility and potential efficacy of various countermeasures to such attacks).

(3) To integrate relevant information, analyses, and vulner- ability assessments (whether such information, analyses, or assessments are provided or produced by the Department or others) in order to identify priorities for protective and support measures by the Department, other agencies of the Federal Government, State and local government agencies and authori- ties, the private sector, and other entities.

(4) To ensure, pursuant to section 202, the timely and efficient access by the Department to all information necessary to discharge the responsibilities under this section, including obtaining such information from other agencies of the Federal Government.

(5) To develop a comprehensive national plan for securing the key resources and critical infrastructure of the United States, including power production, generation, and distribution systems, information technology and telecommunications sys- tems (including satellites), electronic financial and property record storage and transmission systems, emergency prepared- ness communications systems, and the physical and techno- logical assets that support such systems.

(6) To recommend measures necessary to protect the key resources and critical infrastructure of the United States in coordination with other agencies of the Federal Government and in cooperation with State and local government agencies and authorities, the private sector, and other entities.

(7) To administer the Homeland Security Advisory System, including—

(A) exercising primary responsibility for public advisories related to threats to homeland security; and

(B) in coordination with other agencies of the Federal Government, providing specific warning information, and advice about appropriate protective measures and counter- measures, to State and local government agencies and authorities, the private sector, other entities, and the public.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2147

(8) To review, analyze, and make recommendations for improvements in the policies and procedures governing the sharing of law enforcement information, intelligence informa- tion, intelligence-related information, and other information relating to homeland security within the Federal Government and between the Federal Government and State and local government agencies and authorities.

(9) To disseminate, as appropriate, information analyzed by the Department within the Department, to other agencies of the Federal Government with responsibilities relating to homeland security, and to agencies of State and local govern- ments and private sector entities with such responsibilities in order to assist in the deterrence, prevention, preemption of, or response to, terrorist attacks against the United States.

(10) To consult with the Director of Central Intelligence and other appropriate intelligence, law enforcement, or other elements of the Federal Government to establish collection priorities and strategies for information, including law enforce- ment-related information, relating to threats of terrorism against the United States through such means as the represen- tation of the Department in discussions regarding requirements and priorities in the collection of such information.

(11) To consult with State and local governments and pri- vate sector entities to ensure appropriate exchanges of informa- tion, including law enforcement-related information, relating to threats of terrorism against the United States.

(12) To ensure that— (A) any material received pursuant to this Act is pro-

tected from unauthorized disclosure and handled and used only for the performance of official duties; and

(B) any intelligence information under this Act is shared, retained, and disseminated consistent with the authority of the Director of Central Intelligence to protect intelligence sources and methods under the National Secu- rity Act of 1947 (50 U.S.C. 401 et seq.) and related proce- dures and, as appropriate, similar authorities of the Attorney General concerning sensitive law enforcement information. (13) To request additional information from other agencies

of the Federal Government, State and local government agen- cies, and the private sector relating to threats of terrorism in the United States, or relating to other areas of responsibility assigned by the Secretary, including the entry into cooperative agreements through the Secretary to obtain such information.

(14) To establish and utilize, in conjunction with the chief information officer of the Department, a secure communications and information technology infrastructure, including data- mining and other advanced analytical tools, in order to access, receive, and analyze data and information in furtherance of the responsibilities under this section, and to disseminate information acquired and analyzed by the Department, as appropriate.

(15) To ensure, in conjunction with the chief information officer of the Department, that any information databases and analytical tools developed or utilized by the Department—

116 STAT. 2148 PUBLIC LAW 107-296—NOV. 25, 2002

(A) are compatible with one another and with relevant information databases of other agencies of the Federal Government; and

(B) treat information in such databases in a manner that complies with applicable Federal law on privacy. (16) To coordinate training and other support to the ele-

ments and personnel of the Department, other agencies of the Federal Government, and State and local governments that provide information to the Department, or are consumers of information provided by the Department, in order to facilitate the identification and sharing of information revealed in their ordinary duties and the optimal utilization of information received from the Department.

(17) To coordinate with elements of the intelligence commu- nity and with Federal, State, and local law enforcement agen- cies, and the private sector, as appropriate.

(18) To provide intelligence and information analysis and support to other elements of the Department.

(19) To perform such other duties relating to such respon- sibilities as the Secretary may provide. (e) STAFF.—

(1) IN GENERAL.—The Secretary shall provide the Direc- torate with a staff of analysts having appropriate expertise and experience to assist the Directorate in discharging respon- sibilities under this section.

(2) PRIVATE SECTOR ANALYSTS.—^Analysts under this sub- section may include analysts from the private sector.

(3) SECURITY CLEARANCES.—^Analysts under this subsection shall possess security clearances appropriate for their work under this section. (f) DETAIL OF PERSONNEL.—

(1) IN GENERAL.—In order to assist the Directorate in dis- charging responsibilities under this section, personnel of the agencies referred to in paragraph (2) may be detailed to the Department for the performance of anal3d;ic functions and related duties.

(2) COVERED AGENCIES.—The agencies referred to in this paragraph are as follows:

(A) The Department of State. (B) The Central Intelligence Agency. (C) The Federal Bureau of Investigation. (D) The National Security Agency. (E) The National Imagery and Mapping Agency. (F) The Defense Intelligence Agency. (G) Any other agency of the Federal Government that

the President considers appropriate. (3) COOPERATIVE AGREEMENTS.—The Secretary and the

head of the agency concerned may enter into cooperative agree- ments for the purpose of detailing personnel under this sub- section.

(4) BASIS.—The detail of personnel under this subsection may be on a reimbursable or non-reimbursable basis. (g) FUNCTIONS TRANSFERRED.—In accordance with title XV,

there shall be transferred to the Secretary, for assignment to the Under Secretary for Information Analysis and Infrastructure Protec- tion under this section, the functions, personnel, assets, and liabil- ities of the following:

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2149

(1) The National Infrastructure Protection Center of the Federal Bureau of Investigation (other than the Computer Investigations and Operations Section), including the functions of the Attorney General relating thereto.

(2) The National Communications System of the Depart- ment of Defense, including the functions of the Secretary of Defense relating thereto.

(3) The Critical Infrastructure Assurance Office of the Department of Commerce, including the functions of the Sec- retary of Commerce relating thereto.

(4) The National Infrastructure Simulation and Analysis Center of the Department of Energy and the energy security and assurance program and activities of the Department, including the functions of the Secretary of Energy relating thereto.

(5) The Federal Computer Incident Response Center of the General Services Administration, including the functions of the Administrator of General Services relating thereto. (h) INCLUSION OF CERTAIN ELEMENTS OF THE DEPARTMENT

AS ELEMENTS OF THE INTELLIGENCE COMMUNITY.—Section 3(4) of the National Security Act of 1947 (50 U.S.C. 401(a)) is amended— 50USC40la.

(1) by striking "and" at the end of subparagraph (I); (2) by redesignating subparagraph (J) as subparagraph

(K); and (8) by inserting after subparagraph (I) the following new

subparagraph: "(J) the elements of the Department of Homeland Secu-

rity concerned with the analyses of foreign intelligence information; and".

SEC. 202. ACCESS TO INFORMATION. 6 USC 122.

(a) IN GENERAL.— (1) THREAT AND VULNERABILITY INFORMATION.—Except as

otherwise directed by the President, the Secretary shall have such access as the Secretary considers necessary to all informa- tion, including reports, assessments, analyses, and unevaluated intelligence relating to threats of terrorism against the United States and to other areas of responsibility assigned by the Secretary, and to all information concerning infrastructure or other vulnerabilities of the United States to terrorism, whether or not such information has been analyzed, that may be col- lected, possessed, or prepared by any agency of the Federal Government.

(2) OTHER INFORMATION.—The Secretary shall also have access to other information relating to matters under the responsibility of the Secretary that may be collected, possessed, or prepared by an agency of the Federal Government as the President may further provide. (b) MANNER OF ACCESS.—Except as otherwise directed by the

President, with respect to information to which the Secretary has access pursuant to this section—

(1) the Secretary may obtain such material upon request, and may enter into cooperative arrangements with other execu- tive agencies to provide such material or provide Department officials with access to it on a regular or routine basis, including requests or arrangements involving broad categories of mate- rial, access to electronic databases, or both; and

116 STAT. 2150 PUBLIC LAW 107-296—NOV. 25, 2002

(2) regardless of whether the Secretary has made any request or entered into any cooperative arrangement pursuant to paragraph (1), all agencies of the Federal Government shall promptly provide to the Secretary—

(A) all reports (including information reports con- taining intelligence which has not been fully evaluated), assessments, and analytical information relating to threats of terrorism against the United States and to other areas of responsibility assigned by the Secretary;

(B) all information concerning the vulnerability of the infrastructure of the United States, or other vulnerabilities of the United States, to terrorism, whether or not such information has been analyzed;

(C) all other information relating to significant and credible threats of terrorism against the United States, whether or not such information has been analyzed; and

(D) such other information or material as the President may direct.

(c) TREATMENT UNDER CERTAIN LAWS.—The Secretary shall be deemed to be a Federal law enforcement, intelligence, protective, national defense, immigration, or national security official, and shall be provided with all information from law enforcement agen- cies that is required to be given to the Director of Central Intel- ligence, under any provision of the following:

(1) The USA PATRIOT Act of 2001 (Public Law 107- 56).

(2) Section 2517(6) of title 18, United States Code. (3) Rule 6(e)(3)(C) of the Federal Rules of Criminal Proce-

dure. (d) ACCESS TO INTELLIGENCE AND OTHER INFORMATION.—

(1) ACCESS BY ELEMENTS OF FEDERAL GOVERNMENT.— Nothing in this title shall preclude any element of the intel- ligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)), or any other element of the Federal Government with responsi- bility for analyzing terrorist threat information, from receiving any intelligence or other information relating to terrorism.

(2) SHARING OF INFORMATION.—The Secretary, in consulta- tion with the Director of Central Intelligence, shall work to ensure that intelligence or other information relating to ter- rorism to which the Department has access is appropriately shared with the elements of the Federal Government referred to in paragraph (1), as well as with State and local govern- ments, as appropriate.

Critical Subtitle B—Critical Infrastructure Infrastructure T /» j . * Information Act llllOrinatlOIl of 2002.

6 u s e 101 note. SEC. 211. SHORT TITLE.

This subtitle may be cited as the "Critical Infrastructure Information Act of 2002".

6 u s e 131. SEC. 212. DEFINITIONS.

In this subtitle: (1) AGENCY.—The term "agency" has the meaning given

it in section 551 of title 5, United States Code.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2151

(2) COVERED FEDERAL AGENCY.—The term "covered Federal agency" means the Department of Homeland Security.

(3) CRITICAL INFRASTRUCTURE INFORMATION.—The term "critical infrastructure information" means information not cus- tomarily in the public domain and related to the security of critical infrastructure or protected systems—

(A) actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infra- structure or protected systems by either physical or com- puter-based attack or other similar conduct (including the misuse of or unauthorized access to all types of communica- tions and data transmission systems) that violates Federal, State, or local law, harms interstate commerce of the United States, or threatens public health or safety;

(B) the ability of any critical infrastructure or protected system to resist such interference, compromise, or incapaci- tation, including any planned or past assessment, projec- tion, or estimate of the vulnerability of critical infrastruc- ture or a protected system, including security testing, risk evaluation thereto, risk management planning, or risk audit; or

(C) any planned or past operational problem or solution regarding critical infrastructure or protected systems, including repair, recovery, reconstruction, insurance, or continuity, to the extent it is related to such interference, compromise, or incapacitation. (4) CRITICAL INFRASTRUCTURE PROTECTION PROGRAM.—The

term "critical infrastructure protection program" means any component or bureau of a covered Federal agency that has been designated by the President or any agency head to receive critical infrastructure information.

(5) INFORMATION SHARING AND ANALYSIS ORGANIZATION.— The term "Information Sharing and Analysis Organization" means any formal or informal entity or collaboration created or employed by public or private sector organizations, for pur- poses of—

(A) gathering and analyzing critical infrastructure information in order to better understand security problems and interdependencies related to critical infrastructure and protected systems, so as to ensure the availability, integ- rity, and reliability thereof;

(B) communicating or disclosing critical infrastructure information to help prevent, detect, mitigate, or recover from the effects of a interference, compromise, or a incapaci- tation problem related to critical infrastructure or protected systems; and

(C) voluntarily disseminating critical infrastructure information to its members. State, local, and Federal Governments, or any other entities that may be of assist- ance in carrying out the purposes specified in subpara- graphs (A) and (B). (6) PROTECTED SYSTEM.—The term "protected system"—

(A) means any service, physical or computer-based system, process, or procedure that directly or indirectly affects the viability of a facility of critical infrastructure; and

116 STAT. 2152 PUBLIC LAW 107-296—NOV. 25, 2002

(B) includes any physical or computer-based system, including a computer, computer system, computer or communications network, or any component hardware or element thereof, software program, processing instructions, or information or data in transmission or storage therein, irrespective of the medium of transmission or storage. (7) VOLUNTARY.—

(A) IN GENERAL.—The term "voluntary", in the case of any submittal of critical infrastructure information to a covered Federal agency, means the submittal thereof in the absence of such agency's exercise of legal authority to compel access to or submission of such information and may be accomplished by a single entity or an Information Sharing and Analysis Organization on behalf of itself or its members.

(B) EXCLUSIONS.—The term "voluntary"— (i) in the case of any action brought under the

securities laws as is defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47))—

(I) does not include information or statements contained in any documents or materials filed with the Securities and Exchange Commission, or with Federal banking regulators, pursuant to section 12(i) of the Securities Exchange Act of 1934 (15 U.S.C. 781(1)); and

(II) with respect to the submittal of critical infrastructure information, does not include any disclosure or writing that when made accompanied the solicitation of an offer or a sale of securities; and (ii) does not include information or statements sub-

mitted or relied upon as a basis for making licensing or permitting determinations, or during regulatory pro- ceedings.

6 u s e 132. SEC. 213. DESIGNATION OF CRITICAL INFRASTRUCTURE PROTECTION PROGRAM.

A critical infrastructure protection program may be designated as such by one of the following:

(1) The President. (2) The Secretary of Homeland Security.

6 u s e 133. SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRA- STRUCTURE INFORMATION.

(a) PROTECTION.— (1) IN GENERAL.—Notwithstanding any other provision of

law, critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to a covered Federal agency for use by that agency regarding the security of critical infrastructure and protected systems, analysis, warning, interdependency study, recovery, reconstitu- tion, or other informational purpose, when accompanied by an express statement specified in paragraph (2)—

(A) shall be exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act);

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2153

(B) shall not be subject to any agency rules or judicial doctrine regarding ex parte communications with a decision making official;

(C) shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith;

(D) shall not, without the written consent of the person or entity submitting such information, be used or disclosed by any officer or employee of the United States for purposes other than the purposes of this subtitle, except—

(i) in furtherance of an investigation or the prosecution of a criminal act; or

(ii) when disclosure of the information would be— (I) to either House of Congress, or to the extent

of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee thereof or subcommittee of any such joint com- mittee; or

(II) to the Comptroller General, or any author- ized representative of the Comptroller General, in the course of the performance of the duties of the General Accounting Office.

(E) shall not, if provided to a State or local government or government agency—

(i) be made available pursuant to any State or local law requiring disclosure of information or records;

(ii) otherwise be disclosed or distributed to any party by said State or local government or government agency without the written consent of the person or entity submitting such information; or

(iii) be used other than for the purpose of pro- tecting critical infrastructure or protected systems, or in furtherance of an investigation or the prosecution of a criminal act; and (F) does not constitute a waiver of any applicable privi-

lege or protection provided under law, such as trade secret protection. (2) EXPRESS STATEMENT.—For purposes of paragraph (1),

the term "express statement", with respect to information or records, means—

(A) in the case of written information or records, a written marking on the information or records substantially similar to the following: "This information is voluntarily submitted to the Federal Government in expectation of protection from disclosure as provided by the provisions of the Critical Infrastructure Information Act of 2002."; or

(B) in the case of oral information, a similar written statement submitted within a reasonable period following the oral communication.

(b) LIMITATION.—No communication of critical infrastructure information to a covered Federal agency made pursuant to this subtitle shall be considered to be an action subject to the require- ments of the Federal Advisory Committee Act (5 U.S.C. App. 2).

116 STAT. 2154 PUBLIC LAW 107-296—NOV. 25, 2002

(c) INDEPENDENTLY OBTAINED INFORMATION.—Nothing in this section shall be construed to limit or otherwise affect the ability of a State, local, or Federal Government entity, agency, or authority, or any third party, under applicable law, to obtain critical infra- structure information in a manner not covered by subsection (a), including any information lawfully and properly disclosed generally or broadly to the public and to use such information in any manner permitted by law.

(d) TREATMENT OF VOLUNTARY SUBMITTAL OF INFORMATION.— The voluntary submittal to the Government of information or records that are protected from disclosure by this subtitle shall not be construed to constitute compliance with any requirement to submit such information to a Federal agency under any other provision of law.

(e) PROCEDURES.— (1) IN GENERAL.—The Secretary of the Department of

Homeland Security shall, in consultation with appropriate rep- resentatives of the National Security Council and the Office of Science and Technology Policy, establish uniform procedures for the receipt, care, and storage by Federal agencies of critical infrastructure information that is voluntarily submitted to the

Deadline. Government. The procedures shall be established not later than 90 days after the date of the enactment of this subtitle.

(2) ELEMENTS.—The procedures established under para- graph (1) shall include mechanisms regarding—

(A) the acknowledgement of receipt by Federal agencies of critical infrastructure information that is voluntarily submitted to the Government;

(B) the maintenance of the identification of such information as voluntarily submitted to the Government for purposes of and subject to the provisions of this subtitle;

(C) the care and storage of such information; and (D) the protection and maintenance of the confiden-

tiality of such information so as to permit the sharing of such information within the Federal Government and with State and local governments, and the issuance of notices and warnings related to the protection of critical infrastructure and protected systems, in such manner as to protect from public disclosure the identity of the submit- ting person or entity, or information that is proprietary, business sensitive, relates specifically to the submitting person or entity, and is otherwise not appropriately in the public domain.

(f) PENALTIES.—^Whoever, being an officer or employee of the United States or of any department or agency thereof, knowingly publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law, any critical infrastructure information protected from disclosure by this subtitle coming to him in the course of this employment or official duties or by reason of any examination or investigation made by, or return, report, or record made to or filed with, such department or agency or officer or employee thereof, shall be fined under title 18 of the United States Code, imprisoned not more than 1 year, or both, and shall be removed from office or employment.

(g) AUTHORITY TO ISSUE WARNINGS.—The Federal Government may provide advisories, alerts, and warnings to relevant companies, targeted sectors, other governmental entities, or the general public

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2155

regarding potential threats to critical infrastructure as appropriate. In issuing a warning, the Federal Government shall take appro- priate actions to protect from disclosure—

(1) the source of any voluntarily submitted critical infra- structure information that forms the basis for the warning; or

(2) information that is proprietary, business sensitive, relates specifically to the submitting person or entity, or is otherwise not appropriately in the public domain. (h) AUTHORITY TO DELEGATE.—The President may delegate

authority to a critical infrastructure protection program, designated under section 213, to enter into a voluntary agreement to promote critical infrastructure security, including with any Information Sharing and Analysis Organization, or a plan of action as otherwise defined in section 708 of the Defense Production Act of 1950 (50 U.S.C. App. 2158).

SEC. 215. NO PRIVATE RIGHT OF ACTION. 6 USC 134.

Nothing in this subtitle may be construed to create a private right of action for enforcement of any provision of this Act.

Subtitle C—Information Security

SEC. 221. PROCEDURES FOR SHARING INFORMATION. 6 USC 141.

The Secretary shall establish procedures on the use of informa- tion shared under this title that—

(1) limit the redissemination of such information to ensure that it is not used for an unauthorized purpose;

(2) ensure the security and confidentiality of such informa- tion;

(3) protect the constitutional and statutory rights of any individuals who are subjects of such information; and

(4) provide data integrity through the timely removal and destruction of obsolete or erroneous names and information.

SEC. 222. PRIVACY OFFICER. 6 USC 142.

The Secretary shall appoint a senior official in the Department to assume primary responsibility for privacy policy, including—

(1) assuring that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information;

(2) assuring that personal information contained in Privacy Act systems of records is handled in full compliance with fair information practices as set out in the Privacy Act of 1974;

(3) evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government;

(4) conducting a privacy impact assessment of proposed rules of the Department or that of the Department on the privacy of personal information, including the type of personal information collected and the number of people affected; and

(5) preparing a report to Congress on an annual basis on activities of the Department that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974, internal controls, and other matters.

116 STAT. 2156 PUBLIC LAW 107-296—NOV. 25, 2002

6 u s e 143. SEC. 223. ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.

In carrying out the responsibilities under section 201, the Under Secretary for Information Analysis and Infrastructure Protection shall—

(1) as appropriate, provide to State and local government entities, and upon request to private entities that own or operate critical information systems—

(A) analysis and warnings related to threats to, and vulnerabilities of, critical information systems; and

(B) in coordination with the Under Secretary for Emer- gency Preparedness and Response, crisis management sup- port in response to threats to, or attacks on, critical information systems; and (2) as appropriate, provide technical assistance, upon

request, to the private sector and other government entities, in coordination with the Under Secretary for Emergency Preparedness and Response, with respect to emergency recovery plans to respond to major failures of critical information sys- tems.

6 u s e 144. SEC. 224. NET GUARD.

The Under Secretary for Information Analysis and Infrastruc- ture Protection may establish a national technology guard, to be known as "NET Guard", comprised of local teams of volunteers

' with expertise in relevant areas of science and technology, to assist local communities to respond and recover from attacks on informa- tion systems and communications networks.

Cyber Security SEC. 225. CYBER SECURITY ENHANCEMENT ACT OF 2002.

Act of 2002. (a) SHORT TITLE.—This section may be cited as the "Cyber 6 use 145. Security Enhancement Act of 2002". 28 u s e 994 note. (b) AMENDMENT OF SENTENCING GUIDELINES RELATING TO CER-

TAIN C O M P U T E R C R I M E S . — (1) DIRECTIVE TO THE UNITED STATES SENTENCING COMMIS-

SION.—Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this subsection, the United States Sentencing Commission shall review and, if appropriate, amend its guidelines and its policy statements applicable to persons convicted of an offense under section 1030 of title 18, United States Code.

(2) REQUIREMENTS.—In carrying out this subsection, the Sentencing Commission shall—

(A) ensure that the sentencing guidelines and policy statements reflect the serious nature of the offenses described in paragraph (1), the growing incidence of such offenses, and the need for an effective deterrent and appro- priate punishment to prevent such offenses;

(B) consider the following factors and the extent to which the guidelines may or may not account for them—

(i) the potential and actual loss resulting from the offense;

(ii) the level of sophistication and planning involved in the offense;

(iii) whether the offense was committed for pur- poses of commercial advantage or private financial ben- efit;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2157

(iv) whether the defendant acted with mahcious intent to cause harm in committing the offense;

(v) the extent to which the offense violated the privacy rights of individuals harmed;

(vi) whether the offense involved a computer used by the government in furtherance of national defense, national security, or the administration of justice;

(vii) whether the violation was intended to or had the effect of significantly interfering with or disrupting a critical infrastructure; and

(viii) whether the violation was intended to or had the effect of creating a threat to public health or safety, or injury to any person; (C) assure reasonable consistency with other relevant

directives and with other sentencing guidelines; (D) account for any additional aggravating or miti-

gating circumstances that might justify exceptions to the generally applicable sentencing ranges;

(E) make any necessary conforming changes to the sentencing guidelines; and

(F) assure that the guidelines adequately meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code.

(c) STUDY AND REPORT ON COMPUTER CRIMES.—Not later than Deadline. May 1, 2003, the United States Sentencing Commission shall submit a brief report to Congress that explains any actions taken by the Sentencing Commission in response to this section and includes any recommendations the Commission may have regarding statu- tory penalties for offenses under section 1030 of title 18, United States Code.

(d) EMERGENCY DISCLOSURE EXCEPTION.— (1) IN GENERAL.—Section 2702(b) of title 18, United States

Code, is amended— (A) in paragraph (5), by striking "or" at the end; (B) in paragraph (6XA), by inserting "or" at the end; (C) by striking paragraph (6)(C); and (D) by adding at the end the following:

"(7) to a Federal, State, or local governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.".

(2) REPORTING OF DISCLOSURES.—^A government entity that Deadline, receives a disclosure under section 2702(b) of title 18, United States Code, shall file, not later than 90 days after such disclo- sure, a report to the Attorney General stating the paragraph of that section under which the disclosure was made, the date of the disclosure, the entity to which the disclosure was made, the number of customers or subscribers to whom the informa- tion disclosed pertained, and the number of communications, if any, that were disclosed. The Attorney General shall publish Publication, all such reports into a single report to be submitted to Congress 1 year after the date of enactment of this Act. (e) GOOD FAITH EXCEPTION.—Section 2520(d)(3) of title 18,

United States Code, is amended by inserting "or 2511(2)(i)" after "2511(3)".

116 STAT. 2158 PUBLIC LAW 107-296—NOV. 25, 2002

(f) INTERNET ADVERTISING OF ILLEGAL DEVICES.—Section 2512(l)(c) of title 18, United States Code, is amended—

(1) by inserting "or disseminates by electronic means" after "or other publication"; and

(2) by inserting "knowing the content of the advertisement and" before "knowing or having reason to know". (g) STRENGTHENING PENALTIES.—Section 1030(c) of title 18,

United States Code, is amended— (1) by striking "and" at the end of paragraph (3); (2) in each of subparagraphs (A) and (C) of paragraph

(4), by inserting "except as provided in paragraph (5)," before "a fine under this title";

(3) in paragraph (4)(C), by striking the period at the end and inserting "; and"; and

(4) by adding at the end the following: "(5)(A) if the offender knowingly or recklessly causes or

attempts to cause serious bodily injury from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for not more than 20 years, or both; and

"(B) if the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for any term of years or for life, or both.", (h) PROVIDER ASSISTANCE.—

(1) SECTION 2703.—Section 2703(e) of title 18, United States Code, is amended by inserting ", statutory authorization" after "subpoena".

(2) SECTION 2511.—Section 2511(2)(a)(ii) of title 18, United States Code, is amended by inserting ", statutory authoriza- tion," after "court order" the last place it appears. (i) EMERGENCIES.—Section 3125(a)(1) of title 18, United States

Code, is amended— (1) in subparagraph (A), by striking "or" at the end; (2) in subparagraph (B), by striking the comma at the

end and inserting a semicolon; and (3) by adding at the end the following:

"(C) an immediate threat to a national security interest; or

"(D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime punishable by a term of imprisonment greater than one year;".

(j) PROTECTING PRIVACY.— (1) SECTION 2511.—Section 2511(4) of title 18, United States

Code, is amended— (A) by striking paragraph (b); and (B) by redesignating paragraph (c) as paragraph (b).

(2) SECTION 2701.—Section 2701(b) of title 18, United States Code, is amended—

(A) in paragraph (1), by inserting ", or in furtherance of any criminal or tortious act in violation of the Constitu- tion or laws of the United States or any State" after "commercial gain";

(B) in paragraph (1)(A), by striking "one year" and inserting "5 years";

(C) in paragraph (1)(B), by striking "two years" and inserting "10 years"; and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2159

(D) by striking paragraph (2) and inserting the fol- lowing: "(2) in any other case—

"(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and

"(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.".

Subtitle D—Office of Science and Technology

SEC. 231. ESTABLISHMENT OF OFFICE; DIRECTOR. 6 USC 161.

(a) ESTABLISHMENT.— (1) IN GENERAL.—There is hereby established within the

Department of Justice an Office of Science and Technology (hereinafter in this title referred to as the "Office").

(2) AUTHORITY.—The Office shall be under the general authority of the Assistant Attorney General, Office of Justice Programs, and shall be established within the National Institute of Justice. (b) DIRECTOR.—The Office shall be headed by a Director, who

shall be an individual appointed based on approval by the Office of Personnel Management of the executive qualifications of the individual. SEC. 232. MISSION OF OFFICE; DUTIES. 6 USC 162.

(a) MISSION.—The mission of the Office shall be— (1) to serve as the national focal point for work on law

enforcement technology; and (2) to carry out programs that, through the provision of

equipment, training, and technical assistance, improve the safety and effectiveness of law enforcement technology and improve access to such technology by Federal, State, and local law enforcement agencies. (b) DUTIES.—In carrying out its mission, the Office shall have

the following duties: (1) To provide recommendations and advice to the Attorney

General. (2) To establish and maintain advisory groups (which shall

be exempt from the provisions of the Federal Advisory Com- mittee Act (5 U.S.C. App.)) to assess the law enforcement technology needs of Federal, State, and local law enforcement agencies.

(3) To establish and maintain performance standards in accordance with the National Technology Transfer and Advancement Act of 1995 (Public Law 104-113) for, and test and evaluate law enforcement technologies that may be used by. Federal, State, and local law enforcement agencies.

(4) To establish and maintain a program to certify, validate, and mark or otherwise recognize law enforcement technology products that conform to standards established and maintained by the Office in accordance with the National Technology Transfer and Advancement Act of 1995 (Public Law 104-113).

116 STAT. 2160 PUBLIC LAW 107-296—NOV. 25, 2002

The program may, at the discretion of the Office, allow for supplier's declaration of conformity with such standards.

(5) To work with other entities within the Department of Justice, other Federal agencies, and the executive office of the President to establish a coordinated Federal approach on issues related to law enforcement technology.

(6) To carry out research, development, testing, evaluation, and cost-benefit analyses in fields that would improve the safety, effectiveness, and efficiency of law enforcement tech- nologies used by Federal, State, and local law enforcement agencies, including, but not limited to—

(A) weapons capable of preventing use by unauthorized persons, including personalized guns;

(B) protective apparel; (C) bullet-resistant and explosion-resistant glass; (D) monitoring systems and alarm systems capable

of providing precise location information; (E) wire and wireless interoperable communication

technologies; (F) tools and techniques that facilitate investigative

and forensic work, including computer forensics; (G) equipment for particular use in counterterrorism,

including devices and technologies to disable terrorist devices;

(H) guides to assist State and local law enforcement agencies;

(I) DNA identification technologies; and (J) tools and techniques that facilitate investigations

of computer crime. (7) To administer a program of research, development,

testing, and demonstration to improve the interoperability of voice and data public safety communications.

(8) To serve on the Technical Support Working Group of the Department of Defense, and on other relevant interagency panels, as requested.

(9) To develop, and disseminate to State and local law enforcement agencies, technical assistance and training mate- rials for law enforcement personnel, including prosecutors.

(10) To operate the regional National Law Enforcement and Corrections Technology Centers and, to the extent nec- essary, establish additional centers through a competitive process.

(11) To administer a program of acquisition, research, development, and dissemination of advanced investigative anal- ysis and forensic tools to assist State and local law enforcement agencies in combating cybercrime.

(12) To support research fellowships in support of its mis- sion.

(13) To serve as a clearinghouse for information on law enforcement technologies.

(14) To represent the United States and State and local law enforcement agencies, as requested, in international activi- ties concerning law enforcement technology.

(15) To enter into contracts and cooperative agreements and provide grants, which may require in-kind or cash matches from the recipient, as necessary to carry out its mission.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2161

(16) To carry out other duties assigned by the Attorney General to accompHsh the mission of the Office. (c) COMPETITION REQUIRED.—Except as otherwise expressly pro-

vided by law, all research and development carried out by or through the Office shall be carried out on a competitive basis.

(d) INFORMATION FROM FEDERAL AGENCIES.—Federal agencies shall, upon request from the Office and in accordance with Federal law, provide the Office with any data, reports, or other information requested, unless compliance with such request is otherwise prohib- ited by law.

(e) PUBLICATIONS.—Decisions concerning publications issued by the Office shall rest solely with the Director of the Office.

(f) TRANSFER OF FUNDS.—The Office may transfer funds to other Federal agencies or provide funding to non-Federal entities through grants, cooperative agreements, or contracts to carry out its duties under this section.

(g) ANNUAL REPORT.—The Director of the Office shall include with the budget justification materials submitted to Congress in support of the Department of Justice budget for each fiscal year (as submitted with the budget of the President under section 1105(a) of title 31, United States Code) a report on the activities of the Office. Each such report shall include the following:

(1) For the period of 5 fiscal years beginning with the fiscal year for which the budget is submitted—

(A) the Director's assessment of the needs of Federal, State, and local law enforcement agencies for assistance with respect to law enforcement technology and other mat- ters consistent with the mission of the Office; and

(B) a strategic plan for meeting such needs of such law enforcement agencies. (2) For the fiscal year preceding the fiscal year for which

such budget is submitted, a description of the activities carried out by the Office and an evaluation of the extent to which those activities successfully meet the needs assessed under paragraph (1)(A) in previous reports.

SEC. 233. DEFINITION OF LAW ENFORCEMENT TECHNOLOGY. 6 USC 163.

For the purposes of this title, the term "law enforcement tech- nology" includes investigative and forensic technologies, corrections technologies, and technologies that support the judicial process.

SEC. 234. ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY 6 USC 164. OF N A T I O N A L INSTITUTE OF JUSTICE; TRANSFER OF FUNCTIONS.

(a) AUTHORITY TO TRANSFER FUNCTIONS.—The Attorney Gen- eral may transfer to the Office any other program or activity of the Department of Justice that the Attorney General, in consulta- tion with the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, deter- mines to be consistent with the mission of the Office.

(b) TRANSFER OF PERSONNEL AND ASSETS.—With respect to any function, power, or duty, or any program or activity, that is established in the Office, those employees and assets of the element of the Department of Justice from which the transfer is made that the Attorney General determines are needed to perform that function, power, or duty, or for that program or activity, as the case may be, shall be transferred to the Office.

116 STAT. 2162 PUBLIC LAW 107-296—NOV. 25, 2002

Deadline. (c) REPORT ON IMPLEMENTATION.—Not later than 1 year after the date of the enactment of this Act, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the implementation of this title. The report shall—

(1) provide an accounting of the amounts and sources of funding available to the Office to carry out its mission under existing authorizations and appropriations, and set forth the future funding needs of the Office; and

(2) include such other information and recommendations as the Attorney General considers appropriate.

6 use 165. SEC. 235. NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECH- NOLOGY CENTERS.

(a) IN GENERAL.—The Director of the Office shall operate and support National Law Enforcement and Corrections Technology Centers (hereinafter in this section referred to as "Centers") and, to the extent necessary, establish new centers through a merit- based, competitive process.

(b) PURPOSE OF CENTERS.—The purpose of the Centers shall be to—

(1) support research and development of law enforcement technology;

(2) support the transfer and implementation of technology; (3) assist in the development and dissemination of guide-

lines and technological standards; and (4) provide technology assistance, information, and support

for law enforcement, corrections, and criminal justice purposes. (c) ANNUAL MEETING.—Each year, the Director shall convene

a meeting of the Centers in order to foster collaboration and commu- nication between Center participants.

Deadline. (d) REPORT.—^Not later than 12 months after the date of the enactment of this Act, the Director shall transmit to the Congress a report assessing the effectiveness of the existing system of Centers and identify the number of Centers necessary to meet the technology needs of Federal, State, and local law enforcement in the United States.

SEC. 236. COORDINATION WITH OTHER ENTITIES WITHIN DEPART- MENT OF JUSTICE.

Section 102 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3712) is amended in subsection (a)(5) by inserting "coordinate and" before "provide".

SEC. 237. AMENDMENTS RELATING TO NATIONAL INSTITUTE OF JUS- TICE.

Section 202(c) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3722(c)) is amended—

(1) in paragraph (3) by inserting ", including cost effective- ness where practical," before "of projects"; and

(2) by striking "and" after the semicolon at the end of paragraph (8), striking the period at the end of paragraph (9) and inserting "; and", and by adding at the end the following:

"(10) research and development of tools and technologies relating to prevention, detection, investigation, and prosecution of crime; and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2163

"(11) support research, development, testing, training, and evaluation of tools and technology for Federal, State, and local law enforcement agencies.".

TITLE III—SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY

SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY. 6 USC 181.

There shall be in the Department a Directorate of Science and Technology headed by an Under Secretary for Science and Technology.

SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER SEC- 6 USC 182. RETARY FOR SCIENCE AND TECHNOLOGY.

The Secretary, acting through the Under Secretary for Science and Technology, shall have the responsibility for—

(1) advising the Secretary regarding research and develop- ment efforts and priorities in support of the Department's mis- sions;

(2) developing, in consultation with other appropriate executive agencies, a national policy and strategic plan for, identifying priorities, goals, objectives and policies for, and coordinating the Federal Government's civilian efforts to iden- tify and develop countermeasures to chemical, biological, radio- logical, nuclear, and other emerging terrorist threats, including the development of comprehensive, research-based definable goals for such efforts and development of annual measurable objectives and specific targets to accomplish and evaluate the goals for such efforts;

(3) supporting the Under Secretary for Information Anal- ysis and Infrastructure Protection, by assessing and testing homeland security vulnerabilities and possible threats;

(4) conducting basic and applied research, development, demonstration, testing, and evaluation activities that are rel- evant to any or all elements of the Department, through both intramural and extramural programs, except that such respon- sibility does not extend to human health-related research and development activities;

(5) establishing priorities for, directing, funding, and con- ducting national research, development, test and evaluation, and procurement of technology and systems for—

(A) preventing the importation of chemical, biological, radiological, nuclear, and related weapons and material; and

(B) detecting, preventing, protecting against, and responding to terrorist attacks; (6) establishing a system for transferring homeland security

developments or technologies to Federal, State, local govern- ment, and private sector entities;

(7) entering into work agreements, joint sponsorships, con- tracts, or any other agreements with the Department of Energy regarding the use of the national laboratories or sites and support of the science and technology base at those facilities;

116 STAT. 2164 PUBLIC LAW 107-296—NOV. 25, 2002

(8) collaborating with the Secretary of Agriculture and the Attorney General as provided in section 212 of the Agricul- tural Bioterrorism Protection Act of 2002 (7 U.S.C. 8401), as amended by section 1709(b);

(9) collaborating with the Secretary of Health and Human Services and the Attorney General in determining any new biological agents and toxins that shall be listed as "select agents" in Appendix A of part 72 of title 42, Code of Federal Regulations, pursuant to section 35lA of the Public Health Service Act (42 U.S.C. 262a);

(10) supporting United States leadership in science and technology;

(11) establishing and administering the primary research and development activities of the Department, including the long-term research and development needs and capabilities for all elements of the Department;

(12) coordinating and integrating all research, development, demonstration, testing, and evaluation activities of the Depart- ment;

(13) coordinating with other appropriate executive agencies in developing and carrying out the science and technology agenda of the Department to reduce duplication and identify unmet needs; and

(14) developing and overseeing the administration of guide- lines for merit review of research and development projects throughout the Department, and for the dissemination of research conducted or sponsored by the Department.

6 use 183. SEC. 303. FUNCTIONS TRANSFERRED.

In accordance with title XV, there shall be transferred to the Secretary the functions, personnel, assets, and liabilities of the following entities:

(1) The following programs and activities of the Department of Energy, including the functions of the Secretary of Energy relating thereto (but not including programs and activities relating to the strategic nuclear defense posture of the United States):

(A) The chemical and biological national security and supporting programs and activities of the nonproliferation and verification research and development program.

(B) The nuclear smuggling programs and activities within the proliferation detection program of the non- proliferation and verification research and development program. The programs and activities described in this subparagraph may be designated by the President either for transfer to the Department or for joint operation by the Secretary and the Secretary of Energy.

(C) The nuclear assessment program and activities of the assessment, detection, and cooperation program of the international materials protection and cooperation pro- gram.

(D) Such life sciences activities of the biological and environmental research program related to microbial patho- gens as may be designated by the President for transfer to the Department.

(E) The Environmental Measurements Laboratory.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2165

(F) The advanced scientific computing research pro- gram and activities at Lawrence Livermore National Lab- oratory. (2) The National Bio-Weapons Defense Analysis Center

of the Department of Defense, including the functions of the Secretary of Defense related thereto.

SEC. 304. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVI- 6 USC 184. TIES.

(a) IN GENERAL.—^With respect to civilian human health-related research and development activities relating to countermeasures for chemical, biological, radiological, and nuclear and other emerging terrorist threats carried out by the Department of Health and Human Services (including the Public Health Service), the Secretary of Health and Human Services shall set priorities, goals, objectives, and policies and develop a coordinated strategy for such activities in collaboration with the Secretary of Homeland Security to ensure consistency with the national policy and strategic plan developed pursuant to section 302(2).

(b) EVALUATION OF PROGRESS.—In carrying out subsection (a), the Secretary of Health and Human Services shall collaborate with the Secretary in developing specific benchmarks and outcome measurements for evaluating progress toward achieving the prior- ities and goals described in such subsection.

(c) ADMINISTRATION OF COUNTERMEASURES AGAINST SMALLPOX.—Section 224 of the Public Health Service Act (42 U.S.C. 233) is amended by adding the following:

"(p) ADMINISTRATION OF SMALLPOX COUNTERMEASURES BY HEALTH PROFESSIONALS.—

"(1) IN GENERAL.—For purposes of this section, and subject to other provisions of this subsection, a covered person shall be deemed to be an employee of the Public Health Service with respect to liability arising out of administration of a cov- ered countermeasure against smallpox to an individual during the effective period of a declaration by the Secretary under paragraph (2)(A).

"(2) DECLARATION BY SECRETARY CONCERNING COUNTER- MEASURE AGAINST SMALLPOX.—

"(A) AUTHORITY TO ISSUE DECLARATION.— "(i) IN GENERAL.—The Secretary may issue a dec-

laration, pursuant to this paragraph, concluding that an actual or potential bioterrorist incident or other actual or potential public health emergency makes advisable the administration of a covered counter- measure to a category or categories of individuals,

"(ii) COVERED COUNTERMEASURE.—^The Secretary shall specify in such declaration the substance or sub- stances that shall be considered covered counter- measures (as defined in paragraph (8)(A)) for purposes of administration to individuals during the effective period of the declaration.

"(iii) EFFECTIVE PERIOD.—The Secretary shall specify in such declaration the beginning and ending dates of the effective period of the declaration, and may subsequently amend such declaration to shorten or extend such effective period, provided that the new

116 STAT. 2166 PUBLIC LAW 107-296—NOV. 25, 2002

closing date is after the date when the declaration is amended.

Federal Register, "(iv) PUBLICATION.—The Secretary shall promptly publication. publish each such declaration and amendment in the

Federal Register. "(B) LIABILITY OF UNITED STATES ONLY FOR ADMINISTRA-

TIONS WITHIN SCOPE OF DECLARATION.—Except as provided in paragraph (5)(B)(ii), the United States shall be liable under this subsection with respect to a claim arising out of the administration of a covered countermeasure to an individual only if—

"(i) the countermeasure was administered by a qualified person, for a purpose stated in paragraph (7)(A)(i), and during the effective period of a declaration by the Secretary under subparagraph (A) with respect to such countermeasure; and

"(ii)(I) the individual was within a category of individuals covered by the declaration; or

"(II) the qualified person administering the countermeasure had reasonable grounds to believe that such individual was within such category. "(C) PRESUMPTION OF ADMINISTRATION WITHIN SCOPE

OF DECLARATION IN CASE OF ACCIDENTAL VACCINIA INOCULA- TION.—

"(i) IN GENERAL.—If vaccinia vaccine is a covered countermeasure specified in a declaration under subparagraph (A), and an individual to whom the vaccinia vaccine is not administered contracts vaccinia, then, under the circumstances specified in clause (ii), the individual—

"(I) shall be rebuttably presumed to have con- tracted vaccinia from an individual to whom such vaccine was administered as provided by clauses (i) and (ii) of subparagraph (B); and

"(II) shall (unless such presumption is rebutted) be deemed for purposes of this subsection to be an individual to whom a covered counter- measure was administered by a qualified person in accordance with the terms of such declaration and as described by subparagraph (B). "(ii) CIRCUMSTANCES IN WHICH PRESUMPTION

APPLIES.—The presumption and deeming stated in clause (i) shall apply if—

"(I) the individual contracts vaccinia during the effective period of a declaration under subpara- graph (A) or by the date 30 days after the close of such period; or

"(II) the individual resides or has resided with an individual to whom such vaccine was adminis- tered as provided by clauses (i) and (ii) of subpara- graph (B) and contracts vaccinia after such date.

"(3) EXCLUSIVITY OF REMEDY.—The remedy provided by subsection (a) shall be exclusive of any other civil action or proceeding for any claim or suit this subsection encompasses.

"(4) CERTIFICATION OF ACTION BY ATTORNEY GENERAL.— Subsection (c) applies to actions under this subsection, subject to the following provisions:

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2167

"(A) NATURE OF CERTIFICATION.—The certification by the Attorney General that is the basis for deeming an action or proceeding to be against the United States, and for removing an action or proceeding from a State court, is a certification that the action or proceeding is against a covered person and is based upon a claim alleging per- sonal injury or death arising out of the administration of a covered countermeasure.

"(B) CERTIFICATION OF ATTORNEY GENERAL CONCLU- SIVE.—The certification of the Attorney General of the facts specified in subparagraph (A) shall conclusively establish such facts for purposes of jurisdiction pursuant to this subsection. "(5) DEFENDANT TO COOPERATE WITH UNITED STATES.—

"(A) IN GENERAL.—^A covered person shall cooperate with the United States in the processing and defense of a claim or action under this subsection based upon alleged acts or omissions of such person.

"(B) CONSEQUENCES OF FAILURE TO COOPERATE.—Upon the motion of the United States or any other party and upon finding that such person has failed to so cooperate—

"(i) the court shall substitute such person as the party defendant in place of the United States and, upon motion, shall remand any such suit to the court in which it was instituted if it appears that the court lacks subject matter jurisdiction;

"(ii) the United States shall not be liable based on the acts or omissions of such person; and

"(iii) the Attorney General shall not be obligated to defend such action.

"(6) RECOURSE AGAINST COVERED PERSON IN CASE OF GROSS MISCONDUCT OR CONTRACT VIOLATION.—

"(A) IN GENERAL.—Should payment be made by the United States to any claimant bringing a claim under this subsection, either by way of administrative determina- tion, settlement, or court judgment, the United States shall have, notwithstanding any provision of State law, the right to recover for that portion of the damages so awarded or paid, as well as interest and any costs of litigation, resulting from the failure of any covered person to carry out any obligation or responsibility assumed by such person under a contract with the United States or from any grossly negligent, reckless, or illegal conduct or willful misconduct on the part of such person.

"(B) VENUE.—The United States may maintain an action under this paragraph against such person in the district court of the United States in which such person resides or has its principal place of business. "(7) DEFINITIONS.—^As used in this subsection, terms have

the following meanings: "(A) COVERED COUNTERMEASURE.—The term 'covered

countermeasure' or 'covered countermeasure against smallpox', means a substance that is—

"(i)(I) used to prevent or treat smallpox (including the vaccinia or another vaccine); or

"(II) vaccinia immune globulin used to control or treat the adverse effects of vaccinia inoculation; and

116 STAT. 2168 PUBLIC LAW 107-296—NOV. 25, 2002

"(ii) specified in a declaration under paragraph (2). "(B) COVERED PERSON.—The term 'covered person',

when used with respect to the administration of a covered countermeasure, includes any person who is—

"(i) a manufacturer or distributor of such counter- measure;

"(ii) a health care entity under whose auspices such countermeasure was administered;

"(iii) a qualified person who administered such countermeasure; or

"(iv) an official, agent, or employee of a person described in clause (i), (ii), or (iii). "(C) QUALIFIED PERSON.—The term 'qualified person',

when used with respect to the administration of a covered countermeasure, means a licensed health professional or other individual who is authorized to administer such countermeasure under the law of the State in which the countermeasure was administered.".

6 u s e 185. SEC. 305. FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CEN- TERS.

Contracts. The Secretary, acting through the Under Secretary for Science and Technology, shall have the authority to establish or contract with 1 or more federally funded research and development centers to provide independent analysis of homeland security issues, or to carry out other responsibilities under this Act, including coordi- nating and integrating both the extramural and intramural pro- grams described in section 308.

6 u s e 186. SEC. 306. MISCELLANEOUS PROVISIONS.

(a) CLASSIFICATION.—To the greatest extent practicable, research conducted or supported by the Department shall be unclassified.

(b) CONSTRUCTION.—Nothing in this title shall be construed to preclude any Under Secretary of the Department from carrying out research, development, demonstration, or deployment activities, as long as such activities are coordinated through the Undei' Sec- retary for Science and Technology.

(c) REGULATIONS.—The Secretary, acting through the Under Secretary for Science and Technology, may issue necessary regula- tions with respect to research, development, demonstration, testing, and evaluation activities of the Department, including the con- ducting, funding, and reviewing of such activities.

(d) NOTIFICATION OF PRESIDENTIAL LIFE SCIENCES DESIGNA- Deadline. TIONS.—Not later than 60 days before effecting any transfer of

Department of Energy life sciences activities pursuant to section 303(1)(D) of this Act, the President shall notify the appropriate congressional committees of the proposed transfer and shall include the reasons for the transfer and a description of the effect of the transfer on the activities of the Department of Energy.

6 u s e 187. SEC. 307. HOMELAND SECURITY ADVANCED RESEARCH PROJECTS AGENCY.

(a) DEFINITIONS.—In this section: (1) FUND.—The term "Fund" means the Acceleration Fund

for Research and Development of Homeland Security Tech- nologies established in subsection (c).

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2169

(2) HOMELAND SECURITY RESEARCH.—The term "homeland security research" means research relevant to the detection of, prevention of, protection against, response to, attribution of, and recovery from homeland security threats, particularly

(3) HSARPA.—The term "HSARPA" means the Homeland Security Advanced Research Projects Agency established in subsection (b).

(4) UNDER SECRETARY.—The term "Under Secretary" means the Under Secretary for Science and Technology. (b) HOMELAND SECURITY ADVANCED RESEARCH PROJECTS

AGENCY.— (1) ESTABLISHMENT.—There is estabHshed the Homeland

Security Advanced Research Projects Agency. (2) DIRECTOR.—HSARPA shall be headed by a Director,

who shall be appointed by the Secretary. The Director shall report to the Under Secretary.

(3) RESPONSIBILITIES.—The Director shall administer the Fund to award competitive, merit-reviewed grants, cooperative agreements or contracts to public or private entities, including businesses, federally funded research and development centers, and universities. The Director shall administer the Fund to—

(A) support basic and applied homeland security research to promote revolutionary changes in technologies that would promote homeland security;

(B) advance the development, testing and evaluation, and deployment of critical homeland security technologies; and

(C) accelerate the prototyping and deployment of tech- nologies that would address homeland security vulnerabilities. (4) TARGETED COMPETITIONS.—The Director may solicit pro-

posals to address specific vulnerabilities identified by the Director.

(5) COORDINATION.—The Director shall ensure that the activities of HSARPA are coordinated with those of other rel- evant research agencies, and may run projects jointly with other agencies.

(6) PERSONNEL.—In hiring personnel for HSARPA, the Sec- retary shall have the hiring and management authorities described in section 1101 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note; Public Law 105-261). The term of appointments for employees under subsection (c)(1) of that section may not exceed 5 years before the granting of any extension under subsection (c)(2) of that section.

(7) DEMONSTRATIONS.—The Director, periodically, shall hold homeland security technology demonstrations to improve contact among technology developers, vendors and acquisition personnel. (c) FUND.—

(1) ESTABLISHMENT.—There is established the Acceleration Fund for Research and Development of Homeland Security Technologies, which shall be administered by the Director of HSARPA.

116 STAT. 2170 PUBLIC LAW 107-296—NOV. 25, 2002

(2) AUTHORIZATION OF APPROPRIATIONS.—There are author- ized to be appropriated $500,000,000 to the Fund for fiscal year 2003 and such sums as may be necessary thereafter.

(3) COAST GUARD.—Of the funds authorized to be appro- priated under paragraph (2), not less than 10 percent of such funds for each fiscal year through fiscal year 2005 shall be authorized only for the Under Secretary, through joint agree- ment with the Commandant of the Coast Guard, to carry out research and development of improved ports, waterways and coastal security surveillance and perimeter protection capabili- ties for the purpose of minimizing the possibility that Coast Guard cutters, aircraft, helicopters, and personnel will be diverted from non-homeland security missions to the ports, waterways and coastal security mission.

6 u s e 188. SEC. 308. CONDUCT OF RESEARCH, DEVELOPMENT, DEMONSTRATION, TESTING AND EVALUATION.

(a) IN GENERAL.—The Secretary, acting through the Under Secretary for Science and Technology, shall carry out the respon- sibilities under section 302(4) through both extramural and intra- mural programs.

(b) EXTRAMURAL PROGRAMS.— (1) IN GENERAL.—The Secretary, acting through the Under

Secretary for Science and Technology, shall operate extramural research, development, demonstration, testing, and evaluation programs so as to—

(A) ensure that colleges, universities, private research institutes, and companies (and consortia thereof) from as many areas of the United States as practicable participate;

(B) ensure that the research funded is of high quality, as determined through merit review processes developed under section 302(14); and

(C) distribute funds through grants, cooperative agree- ments, and contracts. (2) UNIVERSITY-BASED CENTERS FOR HOMELAND SECURITY.—

(A) ESTABLISHMENT.—The Secretary, acting through the Under Secretary for Science and Technology, shall establish within 1 year of the date of enactment of this Act a university-based center or centers for homeland secu- rity. The purpose of this center or centers shall be to establish a coordinated, university-based system to enhance the Nation's homeland security.

(B) CRITERIA FOR SELECTION.—In selecting colleges or universities as centers for homeland security, the Secretary shall consider the following criteria:

(i) Demonstrated expertise in the training of first responders.

(ii) Demonstrated expertise in responding to incidents involving weapons of mass destruction and biological warfare.

(iii) Demonstrated expertise in emergency medical services.

(iv) Demonstrated expertise in chemical, biological, radiological, and nuclear countermeasures.

(v) Strong affiliations with animal and plant diag- nostic laboratories.

(vi) Demonstrated expertise in food safety.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2171

(vii) Affiliation with Department of Agriculture laboratories or training centers.

(viii) Demonstrated expertise in water and waste- water operations.

(ix) Demonstrated expertise in port and waterway security.

(x) Demonstrated expertise in multi-modal transportation.

(xi) Nationally recognized programs in information security.

(xii) Nationally recognized programs in engineering.

(xiii) Demonstrated expertise in educational out- reach and technical assistance.

(xiv) Demonstrated expertise in border transpor- tation and security.

(xv) Demonstrated expertise in interdisciplinary public policy research and communication outreach regarding science, technology, and public policy. (C) DISCRETION OF SECRETARY.—The Secretary shall

have the discretion to establish such centers and to consider additional criteria as necessary to meet the evolving needs of homeland security and shall report to Congress con- cerning the implementation of this paragraph as necessary.

(D) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated such sums as may be nec- essary to carry out this paragraph.

(c) INTRAMURAL PROGRAMS.— (1) CONSULTATION.—In carrying out the duties under sec-

tion 302, the Secretary, acting through the Under Secretary for Science and Technology, may draw upon the expertise of any laboratory of the Federal Government, whether operated by a contractor or the Government.

(2) LABORATORIES.—The Secretary, acting through the Under Secretary for Science and Technology, may establish a headquarters laboratory for the Department at any laboratory or site and may establish additional laboratory units at other laboratories or sites.

(3) CRITERIA FOR HEADQUARTERS LABORATORY.—If the Sec- retary chooses to establish a headquarters laboratory pursuant to paragraph (2), then the Secretary shall do the following:

(A) Establish criteria for the selection of the head- quarters laboratory in consultation with the National Academy of Sciences, appropriate Federal agencies, and other experts.

(B) Publish the criteria in the Federal Register. (C) Evaluate all appropriate laboratories or sites

against the criteria. (D) Select a laboratory or site on the basis of the

criteria. (E) Report to the appropriate congressional committees

on which laboratory was selected, how the selected labora- tory meets the published criteria, and what duties the headquarters laboratory shall perform. (4) LIMITATION ON OPERATION OF LABORATORIES.—No lab-

oratory shall begin operating as the headquarters laboratory

Federal Register, publication.

Reports.

116 STAT. 2172 PUBLIC LAW 107-296—NOV. 25, 2002

of the Department until at least 30 days after the transmittal of the report required by paragraph (3)(E).

6 u s e 189. SEC. 309. UTILIZATION OF DEPARTMENT OF ENERGY NATIONAL LAB- ORATORIES AND SITES IN SUPPORT OF HOMELAND SECURITY ACTIVITIES.

(a) AUTHORITY TO UTILIZE NATIONAL LABORATORIES AND SITES.—

(1) IN GENERAL.—In carrying out the missions of the Department, the Secretary may utilize the Department of Energy national laboratories and sites through any 1 or more of the following methods, as the Secretary considers appro- priate:

(A) A joint sponsorship arrangement referred to in subsection (b).

(B) A direct contract between the Department and the applicable Department of Energy laboratory or site, subject to subsection (c).

(C) Any "work for others" basis made available by that laboratory or site.

(D) Any other method provided by law. (2) ACCEPTANCE AND PERFORMANCE BY LABS AND SITES.—

Notwithstanding any other law governing the administration, mission, use, or operations of any of the Department of Energy national laboratories and sites, such laboratories and sites are authorized to accept and perform work for the Secretary, con- sistent with resources provided, and perform such work on an equal basis to other missions at the laboratory and, not on a noninterference basis with other missions of such labora- tory or site. (b) JOINT SPONSORSHIP ARRANGEMENTS.—

(1) LABORATORIES.—The Department may be a joint sponsor, under a multiple agency sponsorship arrangement with the Department of Energy, of 1 or more Department of Energy national laboratories in the performance of work.

(2) SITES.—The Department may be a joint sponsor of a Department of Energy site in the performance of work as if such site were a federally funded research and development center and the work were performed under a multiple agency sponsorship arrangement with the Department.

(3) PRIMARY SPONSOR.—The Department of Energy shall be the primary sponsor under a multiple agency sponsorship arrangement referred to in paragraph (1) or (2).

(4) LEAD AGENT.—The Secretary of Energy shall act as the lead agent in coordinating the formation and performance of a joint sponsorship arrangement under this subsection between the Department and a Department of Energy national laboratory or site.

(5) FEDERAL ACQUISITION REGULATION.—^Any work per- formed by a Department of Energy national laboratory or site under a joint sponsorship arrangement under this subsection shall comply with the policy on the use of federally funded research and development centers under the Federal Acquisi- tion Regulations.

(6) FUNDING.—The Department shall provide funds for work at the Department of Energy national laboratories or

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2173

sites, as the case may be, under a joint sponsorship arrange- ment under this subsection under the same terms and condi- tions as apply to the primary sponsor of such national labora- tory under section 303(b)(1)(C) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(b)(1)(C)) or of such site to the extent such section applies to such site as a federally funded research and development center by reason of this subsection. (c) SEPARATE CONTRACTING.—To the extent that programs or

activities transferred by this Act from the Department of Energy to the Department of Homeland Security are being carried out through direct contracts with the operator of a national laboratory or site of the Department of Energy, the Secretary of Homeland Security and the Secretary of Energy shall ensure that direct con- tracts for such programs and activities between the Department of Homeland Security and such operator are separate from the direct contracts of the Department of Energy with such operator.

(d) AUTHORITY WITH RESPECT TO COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENTS AND LICENSING AGREEMENTS.—In connection with any utilization of the Department of Energy national laboratories and sites under this section, the Secretary may permit the director of any such national laboratory or site to enter into cooperative research and development agreements or to negotiate licensing agreements with any person, any agency or instrumentality, of the United States, any unit of State or local government, and any other entity under the authority granted by section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a). Technology may be transferred to a non-Federal party to such an agreement consistent with the provi- sions of sections 11 and 12 of that Act (15 U.S.C. 3710, 3710a).

(e) REIMBURSEMENT OF COSTS.—In the case of an activity car- ried out by the operator of a Department of Energy national labora- tory or site in connection with any utilization of such laboratory or site under this section, the Department of Homeland Security shall reimburse the Department of Energy for costs of such activity through a method under which the Secretary of Energy waives any requirement for the Department of Homeland Security to pay administrative charges or personnel costs of the Department of Energy or its contractors in excess of the amount that the Secretary of Energy pays for an activity carried out by such contractor and paid for by the Department of Energy.

(f) LABORATORY DIRECTED RESEARCH AND DEVELOPMENT BY THE DEPARTMENT OF ENERGY.—No funds authorized to be appro- priated or otherwise made available to the Department in any fiscal year may be obligated or expended for laboratory directed research and development activities carried out by the Department of Energy unless such activities support the missions of the Depart- ment of Homeland Security.

(g) OFFICE FOR NATIONAL LABORATORIES.—There is established Establishment, within the Directorate of Science and Technology an Office for National Laboratories, which shall be responsible for the coordina- tion and utilization of the Department of Energy national labora- tories and sites under this section in a manner to create a networked laboratory system for the purpose of supporting the missions of the Department.

(h) DEPARTMENT OF ENERGY COORDINATION ON HOMELAND SECURITY RELATED RESEARCH.—The Secretary of Energy shall

116 STAT. 2174 PUBLIC LAW 107-296—NOV. 25, 2002

ensure that any research, development, test, and evaluation activi- ties conducted within the Department of Energy that are directly or indirectly related to homeland security are fully coordinated with the Secretary to minimize duplication of effort and maximize the effective application of Federal budget resources.

6 u s e 190. SEC. 310. TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER, DEPARTMENT OF AGRICULTURE.

(a) IN GENERAL.—In accordance with title XV, the Secretary of Agriculture shall transfer to the Secretary of Homeland Security the Plum Island Animal Disease Center of the Department of Agri- culture, including the assets and liabilities of the Center.

(b) CONTINUED DEPARTMENT OF AGRICULTURE ACCESS.—On completion of the transfer of the Plum Island Animal Disease Center under subsection (a), the Secretary of Homeland Security and the Secretary of Agriculture shall enter into an agreement to ensure that the Department of Agriculture is able to carry out research, diagnostic, and other activities of the Department of Agriculture at the Center.

(c) DIRECTION OF ACTIVITIES.—The Secretary of Agriculture shall continue to direct the research, diagnostic, and other activities of the Department of Agriculture at the Center described in sub- section (b).

(d) NOTIFICATION.— (1) IN GENERAL.—^At least 180 days before any change

in the biosafety level at the Plum Island Animal Disease Center, the President shall notify Congress of the change and describe the reasons for the change.

(2) LIMITATION.—No change described in paragraph (1) may be made earlier than 180 days after the completion of the transition period (as defined in section 1501).

6 u s e 191. SEC. 311. HOMELAND SECURITY SCIENCE AND TECHNOLOGY ADVISORY COMMITTEE.

(a) ESTABLISHMENT.—There is established within the Depart- ment a Homeland Security Science and Technology Advisory Com- mittee (in this section referred to as the "Advisory Committee"). The Advisory Committee shall make recommendations with respect to the activities of the Under Secretary for Science and Technology, including identifying research areas of potential importance to the security of the Nation.

(b) MEMBERSHIP.— (1) APPOINTMENT.—The Advisory Committee shall consist

of 20 members appointed by the Under Secretary for Science and Technology, which shall include emergency first-responders or representatives of organizations or associations of emergency first-responders. The Advisory Committee shall also include representatives of citizen groups, including economically dis- advantaged communities. The individuals appointed as mem- bers of the Advisory Committee—

(A) shall be eminent in fields such as emergency response, research, engineering, new product development, business, and management consulting;

(B) shall be selected solely on the basis of established records of distinguished service;

(C) shall not be employees of the Federal Government; and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2175

(D) shall be so selected as to provide representation of a cross-section of the research, development, demonstra- tion, and deployment activities supported by the Under Secretary for Science and Technology. (2) NATIONAL RESEARCH COUNCIL.—The Under Secretary

for Science and Technology may enter into an arrangement for the National Research Council to select members of the Advisory Committee, but only if the panel used by the National Research Council reflects the representation described in para- graph (1). (c) TERMS OF OFFICE.—

(1) IN GENERAL.—Except as otherwise provided in this sub- section, the term of office of each member of the Advisory Committee shall be 3 years.

(2) ORIGINAL APPOINTMENTS.—The original members of the Advisory Committee shall be appointed to three classes of three members each. One class shall have a term of 1 year, 1 a term of 2 years, and the other a term of 3 years.

(3) VACANCIES.—^A member appointed to fill a vacancy occurring before the expiration of the term for which the mem- ber's predecessor was appointed shall be appointed for the remainder of such term. (d) ELIGIBILITY.—A person who has completed two consecutive

full terms of service on the Advisory Committee shall thereafter be ineligible for appointment during the 1-year period following the expiration of the second such term.

(e) MEETINGS.—The Advisory Committee shall meet at least quarterly at the call of the Chair or whenever one-third of the members so request in writing. Each member shall be given appro- priate notice of the call of each meeting, whenever possible not less than 15 days before the meeting.

(f) QUORUM.—A majority of the members of the Advisory Com- mittee not having a conflict of interest in the matter being consid- ered by the Advisory Committee shall constitute a quorum.

(g) CONFLICT OF INTEREST RULES.—The Advisory Committee shall establish rules for determining when 1 of its members has a conflict of interest in a matter being considered by the Advisory Committee.

(h) REPORTS.— (1) ANNUAL REPORT.—The Advisory Committee shall render

an annual report to the Under Secretary for Science and Tech- nology for transmittal to Congress on or before January 31 of each year. Such report shall describe the activities and recommendations of the Advisory Committee during the pre- vious year.

(2) ADDITIONAL REPORTS.—The Advisory Committee may render to the Under Secretary for transmittal to Congress such additional reports on specific policy matters as it considers appropriate. (i) FEDERAL ADVISORY COMMITTEE ACT EXEMPTION.—Section

14 of the Federal Advisory Committee Act shall not apply to the Advisory Committee.

(j) TERMINATION.—The Department of Homeland Security Science and Technology Advisory Committee shall terminate 3 years after the effective date of this Act.

116 STAT. 2176 PUBLIC LAW 107-296—NOV. 25, 2002

6 u s e 192. SEC. 312. HOMELAND SECURITY INSTITUTE.

(a) ESTABLISHMENT.—The Secretary shall establish a federally funded research and development center to be known as the "Home- land Security Institute" (in this section referred to as the "Institute").

(b) ADMINISTRATION.—The Institute shall be administered as a separate entity by the Secretary.

(c) DUTIES.—The duties of the Institute shall be determined by the Secretary, and may include the following:

(1) Systems analysis, risk analysis, and simulation and modeling to determine the vulnerabilities of the Nation's critical infrastructures and the effectiveness of the systems deployed to reduce those vulnerabilities.

(2) Economic and policy analysis to assess the distributed costs and benefits of alternative approaches to enhancing secu- rity.

(3) Evaluation of the effectiveness of measures deployed to enhance the security of institutions, facilities, and infrastruc- ture that may be terrorist targets.

(4) Identification of instances when common standards and protocols could improve the interoperability and effective utili- zation of tools developed for field operators and first responders.

(5) Assistance for Federal agencies and departments in establishing testbeds to evaluate the effectiveness of tech- nologies under development and to assess the appropriateness of such technologies for deployment.

(6) Design of metrics and use of those metrics to evaluate the effectiveness of homeland security programs throughout the Federal Government, including all national laboratories.

(7) Design of and support for the conduct of homeland security-related exercises and simulations.

(8) Creation of strategic technology development plans to reduce vulnerabilities in the Nation's critical infrastructure and key resources. (d) CONSULTATION ON INSTITUTE ACTIVITIES.—In carrying out

the duties described in subsection (c), the Institute shall consult widely with representatives from private industry, institutions of higher education, nonprofit institutions, other Government agencies, and federally funded research and development centers.

(e) U S E OF CENTERS.—The Institute shall utilize the capabilities of the National Infrastructure Simulation and Analysis Center.

(f) ANNUAL REPORTS.—The Institute shall transmit to the Sec- retary and Congress an annual report on the activities of the Institute under this section.

(g) TERMINATION.—The Homeland Security Institute shall terminate 3 years after the effective date of this Act.

6 u s e 193. SEC. 313. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUP- PORT INNOVATIVE SOLUTIONS TO ENHANCE HOMELAND SECURITY.

(a) ESTABLISHMENT OF PROGRAM.—The Secretary, acting through the Under Secretary for Science and Technology, shall establish and promote a program to encourage technological innova- tion in facilitating the mission of the Department (as described in section 101).

(b) ELEMENTS OF PROGRAM.—The program described in sub- section (a) shall include the following components:

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2177

(1) The establishment of a centrahzed Federal clearing- house for information relating to technologies that would fur- ther the mission of the Department for dissemination, as appro- priate, to Federal, State, and local government and private sector entities for additional review, purchase, or use.

(2) The issuance of announcements seeking unique and innovative technologies to advance the mission of the Depart- ment.

(3) The establishment of a technical assistance team to assist in screening, as appropriate, proposals submitted to the Secretary (except as provided in subsection (c)(2)) to assess the feasibility, scientific and technical merits, and estimated cost of such proposals, as appropriate.

(4) The provision of guidance, recommendations, and tech- nical assistance, as appropriate, to assist Federal, State, and local government and private sector efforts to evaluate and implement the use of technologies described in paragraph (1)

. or (2). (5) The provision of information for persons seeking guid-

ance on how to pursue proposals to develop or deploy tech- nologies that would enhance homeland security, including information relating to Federal funding, regulation, or acquisi- tion. (c) MISCELLANEOUS PROVISIONS.—

(1) IN GENERAL.—Nothing in this section shall be construed as authorizing the Secretary or the technical assistance team established under subsection (b)(3) to set standards for tech- nology to be used by the Department, any other executive agency, any State or local government entity, or any private sector entity.

(2) CERTAIN PROPOSALS.—The technical assistance team established under subsection (b)(3) shall not consider or evaluate proposals submitted in response to a solicitation for offers for a pending procurement or for a specific agency requirement.

(3) COORDINATION.—In carrying out this section, the Sec- retary shall coordinate with the Technical Support Working Group (organized under the April 1982 National Security Deci- sion Directive Numbered 30).

TITLE IV—DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

Subtitle A—Under Secretary for Border and Transportation Security

SEC. 401. UNDER SECRETARY FOR BORDER AND TRANSPORTATION 6 USC 201. SECURITY.

There shall be in the Department a Directorate of Border and Transportation Security headed by an Under Secretary for Border and Transportation Security. SEC. 402. RESPONSIBILITIES. 6 USC 202.

The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following:

116 STAT. 2178 PUBLIC LAW 107-296—NOV. 25, 2002

(1) Preventing the entry of terrorists and the instruments of terrorism into the United States.

(2) Securing the borders, territorial waters, ports, termi- nals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry.

(3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 441 takes effect.

(4) Establishing and administering rules, in accordance with section 428, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States.

(5) Establishing national immigration enforcement policies and priorities.

(6) Except as provided in subtitle C, administering the customs laws of the United States.

(7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 421.

(8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.

6 u s e 203. SEC. 403, FUNCTIONS TRANSFERRED.

In accordance with title XV (relating to transition provisions), there shall be transferred to the Secretary the functions, personnel, assets, and liabilities of—

(1) the United States Customs Service of the Department of the Treasury, including the functions of the Secretary of the Treasury relating thereto;

(2) the Transportation Security Administration of the Department of Transportation, including the functions of the Secretary of Transportation, and of the Under Secretary of Transportation for Security, relating thereto;

(3) the Federal Protective Service of the General Services Administration, including the functions of the Administrator of General Services relating thereto;

(4) the Federal Law Enforcement Training Center of the Department of the Treasury; and

(5) the Office for Domestic Preparedness of the Office of Justice Programs, including the functions of the Attorney Gen- eral relating thereto.

Subtitle B—United States Customs Service

6 u s e 211. SEC. 411. ESTABLISHMENT; COMMISSIONER OF CUSTOMS.

(a) ESTABLISHMENT.—There is established in the Department the United States Customs Service, under the authority of the Under Secretary for Border and Transportation Security, which shall be vested with those functions including, but not limited

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2179

to those set forth in section 415(7), and the personnel, assets, and Habihties attributable to those functions,

(b) COMMISSIONER OF CUSTOMS.— (1) IN GENERAL.—There shall be at the head of the Customs

Service a Commissioner of Customs, who shall be appointed by the President, by and with the advice and consent of the Senate.

(2) COMPENSATiON.^Section 5314 of title 5, United States Code, is amended by striking

"Commissioner of Customs, Department of the Treasury" and inserting

"Commissioner of Customs, Department of Homeland Secu- rity.".

(3) CONTINUATION IN OFFICE.—The individual serving as the Commissioner of Customs on the day before the effective date of this Act may serve as the Commissioner of Customs on and after such effective date until a Commissioner of Cus- toms is appointed under paragraph (1).

SEC. 412. RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SEC- 6USC212. RETARY OF THE TREASURY.

(a) RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY OF THE TREASURY.—

(1) RETENTION OF AUTHORITY.—Notwithstanding section 403(a)(1), authority related to Customs revenue functions that was vested in the Secretary of the Treasury by law before the effective date of this Act under those provisions of law set forth in paragraph (2) shall not be transferred to the Sec- retary by reason of this Act, and on and after the effective date of this Act, the Secretary of the Treasury may delegate any such authority to the Secretary at the discretion of the Secretary of the Treasury. The Secretary of the Treasury shall consult with the Secretary regarding the exercise of any such authority not delegated to the Secretary.

(2) STATUTES.—The provisions of law referred to in para- graph (1) are the following: the Tariff Act of 1930; section 249 of the Revised Statutes of the United States (19 U.S.C. 3); section 2 of the Act of March 4, 1923 (19 U.S.C. 6); section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c); section 251 of the Revised Statutes of the United States (19 U.S.C. 66); section 1 of the Act of June 26, 1930 (19 U.S.C. 68); the Foreign Trade Zones Act (19 U.S.C. 81a et seq.); section 1 of the Act of March 2, 1911 (19 U.S.C. 198); the Trade Act of 1974; the Trade Agreements Act of 1979; the North American Free Trade Area Implementa- tion Act; the Uruguay Round Agreements Act; the Caribbean Basin Economic Recovery Act; the Andean Trade Preference Act; the African Growth and Opportunity Act; and any other provision of law vesting customs revenue functions in the Sec- retary of the Treasury. (b) MAINTENANCE OF CUSTOMS REVENUE FUNCTIONS.—

(1) MAINTENANCE OF FUNCTIONS.—Notwithstanding any other provision of this Act, the Secretary may not consolidate, discontinue, or diminish those functions described in paragraph (2) performed by the United States Customs Service (as estab- lished under section 411) on or after the effective date of this Act, reduce the staffing level, or reduce the resources

116 STAT. 2180 PUBLIC LAW 107-296—NOV. 25, 2002

attributable to such functions, and the Secretary shall ensure that an appropriate management structure is implemented to carry out such functions.

(2) FUNCTIONS.—The functions referred to in paragraph (1) are those functions performed by the following personnel, and associated support staff, of the United States Customs Service on the day before the effective date of this Act: Import Specialists, Entry Specialists, Drawback Specialists, National Import Specialist, Fines and Penalties Specialists, attorneys of the Office of Regulations and Rulings, Customs Auditors, International Trade Specialists, Financial Systems Specialists. (c) NEW PERSONNEL.—The Secretary of the Treasury is author-

ized to appoint up to 20 new personnel to work with personnel of the Department in performing customs revenue functions.

6 u s e 213. SEC. 413. PRESERVATION OF CUSTOMS FUNDS.

Notwithstanding any other provision of this Act, no funds avail- able to the United States Customs Service or collected under para- graphs (1) through (8) of section 13031(a) of the Consolidated Omni- bus Budget Reconciliation Act of 1985 may be transferred for use by any other agency or office in the Department.

6 u s e 214. SEC. 414. SEPARATE BUDGET REQUEST FOR CUSTOMS.

The President shall include in each budget transmitted to Con- gress under section 1105 of title 31, United States Code, a separate budget request for the United States Customs Service.

6 u s e 215. SEC. 415. DEFINITION.

In this subtitle, the term "customs revenue function" means the following:

(1) Assessing and collecting customs duties (including anti- dumping and countervailing duties and duties imposed under safeguard provisions), excise taxes, fees, and penalties due on imported merchandise, including classifying and valuing mer- chandise for purposes of such assessment.

(2) Processing and denial of entry of persons, baggage, cargo, and mail, with respect to the assessment and collection of import duties.

(3) Detecting and apprehending persons engaged in fraudu- lent practices designed to circumvent the customs laws of the United States.

(4) Enforcing section 337 of the Tariff Act of 1930 and provisions relating to import quotas and the marking of imported merchandise, and providing Customs Recordations for copyrights, patents, and trademarks.

(5) Collecting accurate import data for compilation of inter- national trade statistics.

(6) Enforcing reciprocal trade agreements. (7) Functions performed by the following personnel, and

associated support staff, of the United States Customs Service on the day before the effective date of this Act: Import Special- ists, Entry Specialists, Drawback Specialists, National Import Specialist, Fines and Penalties Specialists, attorneys of the Office of Regulations and Rulings, Customs Auditors, Inter- national Trade Specialists, Financial Systems Specialists.

(8) Functions performed by the following offices, with respect to any function described in any of paragraphs (1) through (7), and associated support staff, of the United States

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2181

Customs Service on the day before the effective date of this Act: the Office of Information and Technology, the Office of Laboratory Services, the Office of the Chief Counsel, the Office of Congressional Affairs, the Office of International Affairs, and the Office of Training and Development.

SEC. 416. GAO REPORT TO CONGRESS. 6 USC 216.

Not later than 3 months after the effective date of this Act, Deadline, the Comptroller General of the United States shall submit to Con- gress a report that sets forth all trade functions performed by the executive branch, specifying each agency that performs each such function.

SEC. 417. ALLOCATION OF RESOURCES BY THE SECRETARY. 6 USC 217

(a) IN GENERAL.—The Secretary shall ensure that adequate staffing is provided to assure that levels of customs revenue services provided on the day before the effective date of this Act shall continue to be provided.

(b) NOTIFICATION OF CONGRESS.—The Secretary shall notify the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate at least 90 days prior to taking any action which would—

(1) result in any significant reduction in customs revenue services, including hours of operation, provided at any office within the Department or any port of entry;

(2) eliminate or relocate any office of the Department which provides customs revenue services; or

(3) eliminate any port of entry. (c) DEFINITION.—In this section, the term "customs revenue

services" means those customs revenue functions described in para- graphs (1) through (6) and paragraph (8) of section 415.

SEC. 418. REPORTS TO CONGRESS. 6 USC 218.

(a) CONTINUING REPORTS.—The United States Customs Service shall, on and after the effective date of this Act, continue to submit to the Committee on Ways and Means of the House of Representa- tives and the Committee on Finance of the Senate any report required, on the day before such the effective date of this Act, to be so submitted under any provision of law.

(b) REPORT ON CONFORMING AMENDMENTS.—Not later than Deadline. 60 days after the date of enactment of this Act, the Secretary of the Treasury shall submit a report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives of proposed conforming amendments to the statutes set forth under section 412(a)(2) in order to determine the appropriate allocation of legal authorities described under this subsection. The Secretary of the Treasury shall also identify those authorities vested in the Secretary of the Treasury that are exer- cised by the Commissioner of Customs on or before the effective date of this section.

SEC. 419. CUSTOMS USER FEES.

(a) IN GENERAL.—Section 13031(f) of the Consohdated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f)) is amended—

(1) in paragraph (1), by striking subparagraph (B) and inserting the following:

116 STAT. 2182 PUBLIC LAW 107-296—NOV. 25, 2002

"(B) amounts deposited into the Customs Commercial and Homeland Security Automation Account under para- graph (5)."; (2) in paragraph (4), by striking "(other than the excess

fees determined by the Secretary under paragraph (5))"; and (3) by striking paragraph (5) and inserting the following:

"(5)(A) There is created within the general fund of the Treasury a separate account that shall be known as the 'Customs Commercial and Homeland Security Automation Account'. In each of fiscal years 2003, 2004, and 2005 there shall be deposited into the Account from fees collected under subsection (a)(9)(A), $350,000,000.

"(B) There is authorized to be appropriated from the Account in fiscal years 2003 through 2005 such amounts as are available in that Account for the development, establishment, and implementation of the Automated Commercial Environment com- puter system for the processing of merchandise that is entered or released and for other purposes related to the functions of the Department of Homeland Security. Amounts appropriated pursuant to this subparagraph are authorized to remain available until expended.

"(C) In adjusting the fee imposed by subsection (a)(9)(A) for fiscal year 2006, the Secretary of the Treasury shall reduce the amount estimated to be collected in fiscal year 2006 by the amount by which total fees deposited to the Account during fiscal years 2003, 2004, and 2005 exceed total appropriations from that Account.".

(b) CONFORMING AMENDMENT.—Section 311(b) of the Customs Ante, p. 973. Border Security Act of 2002 (PubHc Law 107-210) is amended

by striking paragraph (2).

Subtitle C—Miscellaneous Provisions

6 u s e 231. SEC. 421. TRANSFER OF CERTAIN AGRICULTURAL INSPECTION FUNC- TIONS OF THE DEPARTMENT OF AGRICULTURE.

(a) TRANSFER OF AGRICULTURAL IMPORT AND ENTRY INSPECTION FUNCTIONS.—There shall be transferred to the Secretary the func- tions of the Secretary of Agriculture relating to agricultural import and entry inspection activities under the laws specified in subsection (b).

(b) COVERED ANIMAL AND PLANT PROTECTION LAWS.—The laws referred to in subsection (a) are the following:

(1) The Act commonly known as the Virus-Serum-Toxin Act (the eighth paragraph under the heading "Bureau of Animal Industry" in the Act of March 4, 1913; 21 U.S.C. 151 et seq.).

(2) Section 1 of the Act of August 31, 1922 (commonly known as the Honeybee Act; 7 U.S.C. 281).

(3) Title III of the Federal Seed Act (7 U.S.C. 1581 et seq.).

(4) The Plant Protection Act (7 U.S.C. 7701 et seq.). (5) The Animal Health Protection Act (subtitle E of title

X of PubHc Law 107-171; 7 U.S.C. 8301 et seq.). (6) The Lacey Act Amendments of 1981 (16 U.S.C. 3371

et seq.). (7) Section 11 of the Endangered Species Act of 1973 (16

U.S.C. 1540).

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2183

(c) EXCLUSION OF QUARANTINE ACTIVITIES.—For purposes of this section, the term "functions" does not include any quarantine activities carried out under the laws specified in subsection (b).

(d) EFFECT OF TRANSFER.— (1) COMPLIANCE WITH DEPARTMENT OF AGRICULTURE REGU-

LATIONS.—The authority transferred pursuant to subsection (a) shall be exercised by the Secretary in accordance with the regulations, policies, and procedures issued by the Secretary of Agriculture regarding the administration of the laws specified in subsection (b).

(2) RULEMAKING COORDINATION.—The Secretary of Agri- culture shall coordinate with the Secretary whenever the Sec- retary of Agriculture prescribes regulations, policies, or proce- dures for administering the functions transferred under sub- section (a) under a law specified in subsection (b).

(3) EFFECTIVE ADMINISTRATION.—The Secretary, in con- sultation with the Secretary of Agriculture, may issue such directives and guidelines as are necessary to ensure the effec- tive use of personnel of the Department of Homeland Security to carry out the functions transferred pursuant to subsection (a). (e) TRANSFER AGREEMENT.—

(1) AGREEMENT REQUIRED; REVISION.—Before the end of the transition period, as defined in section 1501, the Secretary of Agriculture and the Secretary shall enter into an agreement to effectuate the transfer of functions required by subsection (a). The Secretary of Agriculture and the Secretary may jointly revise the agreement as necessary thereafter.

(2) REQUIRED TERMS.—The agreement required by this sub- section shall specifically address the following:

(A) The supervision by the Secretary of Agriculture of the training of employees of the Secretary to carry out the functions transferred pursuant to subsection (a).

(B) The transfer of funds to the Secretary under sub- section (f). (3) COOPERATION AND RECIPROCITY.—The Secretary of Agri-

culture and the Secretary may include as part of the agreement the following:

(A) Authority for the Secretary to perform functions delegated to the Animal and Plant Health Inspection Service of the Department of Agriculture regarding the protection of domestic livestock and plants, but not trans- ferred to the Secretary pursuant to subsection (a).

(B) Authority for the Secretary of Agriculture to use employees of the Department of Homeland Security to carry out authorities delegated to the Animal and Plant Health Inspection Service regarding the protection of domestic live- stock and plants.

(f) PERIODIC TRANSFER OF FUNDS TO DEPARTMENT OF HOME- LAND SECURITY.—

(1) TRANSFER OF FUNDS.—Out of funds collected by fees authorized under sections 2508 and 2509 of the Food, Agri- culture, Conservation, and Trade Act of 1990 (21 U.S.C. 136, 136a), the Secretary of Agriculture shall transfer, from time to time in accordance with the agreement under subsection (e), to the Secretary funds for activities carried out by the Secretary for which such fees were collected.

116 STAT. 2184 PUBLIC LAW 107-296—NOV. 25, 2002

7 use 2279e.

7 use 2279e, 2779f.

6 use 232.

(2) LIMITATION.—The proportion of fees collected pursuant to such sections that are transferred to the Secretary under this subsection may not exceed the proportion of the costs incurred by the Secretary to all costs incurred to carry out activities funded by such fees. (g) TRANSFER OF DEPARTMENT OF AGRICULTURE EMPLOYEES.—

Not later than the completion of the transition period defined under section 1501, the Secretary of Agriculture shall transfer to the Secretary not more than 3,200 full-time equivalent positions of the Department of Agriculture.

(h) PROTECTION OF INSPECTION ANIMALS.—Title V of the Agri- cultural Risk Protection Act of 2000 (7 U.S.C. 2279e, 2279f) is amended—

(1) in section 501(a)— (A) by inserting "or the Department of Homeland Secu-

rity" after "Department of Agriculture"; and (B) by inserting "or the Secretary of Homeland Secu-

rity" after "Secretary of Agriculture"; (2) by striking "Secretary" each place it appears (other

than in sections 501(a) and 501(e)) and inserting "Secretary concerned"; and

(3) by adding at the end of section 501 the following new subsection: "(e) SECRETARY CONCERNED DEFINED.—In this title, the term

'Secretary concerned' means— "(1) the Secretary of Agriculture, with respect to an animal

used for purposes of official inspections by the Department of Agriculture; and

"(2) the Secretary of Homeland Security, with respect to an animal used for purposes of official inspections by the Department of Homeland Security.".

SEC. 422. FUNCTIONS OF ADMINISTRATOR OF GENERAL SERVICES.

(a) OPERATION, MAINTENANCE, AND PROTECTION OF FEDERAL BUILDINGS AND GROUNDS.—Nothing in this Act may be construed to affect the functions or authorities of the Administrator of General Services with respect to the operation, maintenance, and protection of buildings and grounds owned or occupied by the Federal Govern- ment and under the jurisdiction, custody, or control of the Adminis- trator. Except for the law enforcement and related security functions transferred under section 403(3), the Administrator shall retain all powers, functions, and authorities vested in the Administrator under chapter 10 of title 40, United States Code, and other provi- sions of law that are necessary for the operation, maintenance, and protection of such buildings and grounds.

(b) COLLECTION OF RENTS AND FEES; FEDERAL BUILDINGS FUND.—

(1) STATUTORY CONSTRUCTION.—Nothing in this Act may be construed—

(A) to direct the transfer of, or affect, the authority of the Administrator of General Services to collect rents and fees, including fees collected for protective services; or

(B) to authorize the Secretary or any other official in the Department to obligate amounts in the Federal Buildings Fund established by section 490(f) of title 40, United States Code.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2185

(2) U S E OF TRANSFERRED AMOUNTS.—Any amounts trans- ferred by the Administrator of General Services to the Secretary out of rents and fees collected by the Administrator shall be used by the Secretary solely for the protection of buildings or grounds owned or occupied by the Federal Government.

SEC. 423. FUNCTIONS OF TRANSPORTATION SECURITY ADMINISTRA- 6 USC 233. TION.

(a) CONSULTATION WITH FEDERAL AVIATION ADMINISTRATION.— The Secretary and other officials in the Department shall consult with the Administrator of the Federal Aviation Administration before taking any action that might affect aviation safety, air carrier operations, aircraft airworthiness, or the use of airspace. The Sec- retary shall establish a liaison office within the Department for the purpose of consulting with the Administrator of the Federal Aviation Administration.

(b) REPORT TO CONGRESS.—Not later than 60 days after the Deadline. date of enactment of this Act, the Secretary of Transportation shall transmit to Congress a report containing a plan for complying with the requirements of section 44901(d) of title 49, United States Code, as amended by section 425 of this Act.

(c) LIMITATIONS ON STATUTORY CONSTRUCTION.— (1) GRANT OF AUTHORITY.—Nothing in this Act may be

construed to vest in the Secretary or any other official in the Department any authority over transportation security that is not vested in the Under Secretary of Transportation for Security, or in the Secretary of Transportation under chapter 449 of title 49, United States Code, on the day before the date of enactment of this Act.

(2) OBLIGATION OF AIP FUNDS.—Nothing in this Act may be construed to authorize the Secretary or any other official in the Department to obligate amounts made available under section 48103 of title 49, United States Code.

SEC. 424. PRESERVATION OF TRANSPORTATION SECURITY ADMINIS- 6 USC 234 TRATION AS A DISTINCT ENTITY.

(a) IN GENERAL.—Notwithstanding any other provision of this Act, and subject to subsection (b), the Transportation Security Administration shall be maintained as a distinct entity within the Department under the Under Secretary for Border Transpor- tation and Security.

(b) SUNSET.—Subsection (a) shall cease to apply 2 years after the date of enactment of this Act. SEC. 425. E X P L O S I V E DETECTION SYSTEMS.

Section 44901(d) of title 49, United States Code, is amended by adding at the end the following:

"(2) DEADLINE.— "(A) IN GENERAL.—If, in his discretion or at the request

of an airport, the Under Secretary of Transportation for Security determines that the Transportation Security Administration is not able to deploy explosive detection systems required to be deployed under paragraph (1) at all airports where explosive detection systems are required by December 31, 2002, then with respect to each airport for which the Under Secretary makes that determination—

"(i) the Under Secretary shall submit to the Senate Committee on Commerce, Science, and Transportation

116 STAT. 2186 PUBLIC LAW 107-296—NOV. 25, 2002

and the House of Representatives Committee on Transportation and Infrastructure a detailed plan (which may be submitted in classified form) for the deployment of the number of explosive detection sys- tems at that airport necessary to meet the require- ments of paragraph (1) as soon as practicable at that airport but in no event later than December 31, 2003; and

"(ii) the Under Secretary shall take all necessary action to ensure that alternative means of screening all checked baggage is implemented until the require- ments of paragraph (1) have been met. "(B) CRITERIA FOR DETERMINATION.—In making a

determination under subparagraph (A), the Under Sec- retary shall take into account—

"(i) the nature and extent of the required modifica- tions to the airport's terminal buildings, and the tech- nical, engineering, design and construction issues;

"(ii) the need to ensure that such installations and modifications are effective; and

"(iii) the feasibility and cost-effectiveness of deploying explosive detection systems in the baggage sorting area or other non-public area rather than the lobby of an airport terminal building. "(C) RESPONSE.—The Under Secretary shall respond

to the request of an airport under subparagraph (A) within 14 days of receiving the request. A denial of request shall create no right of appeal or judicial review.

"(D) AIRPORT EFFORT REQUIRED.—Each airport with respect to which the Under Secretary makes a determina- tion under subparagraph (A) shall—

"(i) cooperate fully with the Transportation Secu- rity Administration with respect to screening checked baggage and changes to accommodate explosive detec- tion systems; and

"(ii) make security projects a priority for the obliga- tion or expenditure of funds made available under chapter 417 or 471 until explosive detection systems required to be deployed under paragraph (1) have been deployed at that airport.

"(3) REPORTS.—Until the Transportation Security Adminis- tration has met the requirements of paragraph (1), the Under Secretary shall submit a classified report every 30 days after the date of enactment of this Act to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastruc- ture describing the progress made toward meeting such require- ments at each airport.".

SEC. 426. TRANSPORTATION SECURITY.

(a) TRANSPORTATION SECURITY OVERSIGHT BOARD.— (1) ESTABLISHMENT.—Section 115(a) of title 49, United

States Code, is amended by striking "Department of Transpor- tation" and inserting "Department of Homeland Security".

(2) MEMBERSHIP.—Section 115(b)(1) of title 49, United States Code, is amended—

(A) by striking subparagraph (G);

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2187

(B) by redesignating subparagraphs (A) through (F) as subparagraphs (B) through (G), respectively; and

(C) by inserting before subparagraph (B) (as so redesig- nated) the following:

"(A) The Secretary of Homeland Security, or the Sec- retary's designee.". (3) CHAIRPERSON.—Section 115(b)(2) of title 49, United

States Code, is amended by striking "Secretary of Transpor- tation" and inserting "Secretary of Homeland Security", (b) APPROVAL OF A I P GRANT APPLICATIONS FOR SECURITY

ACTIVITIES.—Section 47106 of title 49, United States Code, is amended by adding at the end the following:

"(g) CONSULTATION WITH SECRETARY OF HOMELAND SECU- RITY.—The Secretary shall consult with the Secretary of Homeland Security before approving an application under this subchapter for an airport development project grant for activities described in section 47102(3)(B)(ii) only as they relate to security equipment or section 47102(3)(B)(x) only as they relate to installation of bulk explosive detection system.". SEC. 427. COORDINATION OF INFORMATION AND INFORMATION TECH- 6 USC 235.

NOLOGY.

(a) DEFINITION OF AFFECTED AGENCY.—In this section, the term "affected agency" means—

(1) the Department; (2) the Department of Agriculture; (3) the Department of Health and Human Services; and (4) any other department or agency determined to be appro-

priate by the Secretary. (b) COORDINATION.—The Secretary, in coordination with the

Secretary of Agriculture, the Secretary of Health and Human Serv- ices, and the head of each other department or agency determined to be appropriate by the Secretary, shall ensure that appropriate information (as determined by the Secretary) concerning inspections of articles that are imported or entered into the United States, and are inspected or regulated by 1 or more affected agencies, is timely and efficiently exchanged between the affected agencies.

(c) REPORT AND PLAN.—Not later than 18 months after the DeadUne. date of enactment of this Act, the Secretary, in consultation with the Secretary of Agriculture, the Secretary of Health and Human Services, and the head of each other department or agency deter- mined to be appropriate by the Secretary, shall submit to Congress—

(1) a report on the progress made in implementing this section; and

(2) a plan to complete implementation of this section. SEC. 428. VISA ISSUANCE. 6 USC 236.

(a) DEFINITION.—In this subsection, the term "consular office" has the meaning given that term under section 101(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(9)).

(b) IN GENERAL.—Notwithstanding section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) of this section, the Secretary—

(1) shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provi- sions of such Act, and of all other immigration and nationality

116 STAT. 2188 PUBLIC LAW 107-296—NOV. 25, 2002

laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Secretary shall not have authority to alter or reverse the decision of a consular officer to refuse a visa to an alien; and

(2) shall have authority to confer or impose upon any officer or employee of the United States, with the consent of the head of the executive agency under whose jurisdiction such officer or employee is serving, any of the functions specified in paragraph (1). (c) AUTHORITY OF THE SECRETARY OF STATE.—

(1) IN GENERAL.—Notwithstanding subsection (b), the Sec- retary of State may direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal nec- essary or advisable in the foreign policy or security interests of the United States.

(2) CONSTRUCTION REGARDING AUTHORITY.—Nothing in this section, consistent with the Secretary of Homeland Security's authority to refuse visas in accordance with law, shall be con- strued as affecting the authorities of the Secretary of State under the following provisions of law:

(A) Section 101(a)(15)(A) of the Immigration and Nationality Act (8 U.S.C. 110l(a)(15)(A)).

(B) Section 204(d)(2) of the Immigration and Nation- ality Act (8 U.S.C. 1154) (as it will take effect upon the entry into force of the Convention on Protection of Children and Cooperation in Respect to Inter-Country adoption).

(C) Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)).

(D) Section 212(a)(3)(B)(i)(VI) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)).

(E) Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).

(F) Section 212(a)(3)(C) of the Immigration and Nation- ality Act (8 U.S.C. 1182(a)(3)(C)).

(G) Section 212(a)(10)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(10)(C)).

(H) Section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)).

(I) Section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)).

(J) Section 237(a)(4)(C) of the Immigration and Nation- ality Act (8 U.S.C. 1227(a)(4)(C)).

(K) Section 401 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6034; Public Law 104^114).

(L) Section 613 of the Departments of Commerce, Jus- tice, and State, the Judiciary and Related Agencies Appro- priations Act, 1999 (as contained in section 101(b) of divi- sion A of Public Law 105-277) (Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999); 112 Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended by section 617 of Public Law 106-553.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2189

(M) Section 103(f) of the Chemical Weapon Convention Implementation Act of 1998 (112 Stat. 2681-865).

(N) Section 801 of H.R. 3427, tl e Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001, as enacted by reference in Public Law 106-113.

(O) Section 568 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107-115).

(P) Section 51 of the State Department Basic Authori- ties Act of 1956 (22 U.S.C. 2723).

(d) CONSULAR OFFICERS AND CHIEFS OF MISSIONS.— (1) IN GENERAL.—Nothing in this section may be construed

to alter or affect— (A) the employment status of consular officers as

employees of the Department of State; or (B) the authority of a chief of mission under section

207 of the Foreign Service Act of 1980 (22 U.S.C. 3927). (2) CONSTRUCTION REGARDING DELEGATION OF

AUTHORITY.—Nothing in this section shall be construed to affect any delegation of authority to the Secretary of State by the President pursuant to any proclamation issued under section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)), consistent with the Secretary of Homeland Security's authority to refuse visas in accordance with law. (e) ASSIGNMENT OF HOMELAND SECURITY EMPLOYEES TO DIPLO-

MATIC AND CONSULAR POSTS.— (1) IN GENERAL.—The Secretary is authorized to assign

employees of the Department to each diplomatic and consular post at which visas are issued, unless the Secretary determines that such an assignment at a particular post would not promote homeland security.

(2) FUNCTIONS.—Employees assigned under paragraph (1) shall perform the following functions:

(A) Provide expert advice and training to consular offi- cers regarding specific security threats relating to the adju- dication of individual visa applications or classes of applica- tions.

(B) Review any such applications, either on the initia- tive of the employee of the Department or upon request by a consular officer or other person charged with adjudi- cating such applications.

(C) Conduct investigations with respect to consular matters under the jurisdiction of the Secretary. (3) EVALUATION OF CONSULAR OFFICERS.—The Secretary

of State shall evaluate, in consultation with the Secretary, as deemed appropriate by the Secretary, the performance of consular officers with respect to the processing and adjudication of applications for visas in accordance with performance stand- ards developed by the Secretary for these procedures.

(4) REPORT.—The Secretary shall, on an annual basis, submit a report to Congress that describes the basis for each determination under paragraph (1) that the assignment of an employee of the Department at a particular diplomatic post would not promote homeland security.

(5) PERMANENT ASSIGNMENT; PARTICIPATION IN TERRORIST LOOKOUT COMMITTEE.—When appropriate, employees of the

116 STAT. 2190 PUBLIC LAW 107-296—NOV. 25, 2002

Department assigned to perform functions described in para- graph (2) may be assigned permanently to overseas diplomatic or consular posts with country-specific or regional responsi- bility. If the Secretary so directs, any such employee, when present at an overseas post, shall participate in the terrorist lookout committee established under section 304 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1733).

(6) TRAINING AND HIRING.— (A) IN GENERAL.—The Secretary shall ensure, to the

extent possible, that any employees of the Department assigned to perform functions under paragraph (2) and, as appropriate, consular officers, shall be provided the nec- essary training to enable them to carry out such functions, including training in foreign languages, interview tech- niques, and fraud detection techniques, in conditions in the particular country where each employee is assigned, and in other appropriate areas of study.

(B) USE OF CENTER.—The Secretary is authorized to use the National Foreign Affairs Training Center, on a reimbursable basis, to obtain the training described in subparagraph (A).

Deadline. . (7) REPORT.—Not later than 1 year after the date of enact- ment of this Act, the Secretary and the Secretary of State shall submit to Congress—

(A) a report on the implementation of this subsection; and

(B) any legislative proposals necessary to further the objectives of this subsection. (8) EFFECTIVE DATE.—This subsection shall take effect on

the earlier of— (A) the date on which the President publishes notice

in the Federal Register that the President has submitted a report to Congress setting forth a memorandum of under- standing between the Secretary and the Secretary of State governing the implementation of this section; or

(B) the date occurring 1 year after the date of enact- ment of this Act.

(f) No CREATION OF PRIVATE RIGHT OF ACTION.—Nothing in this section shall be construed to create or authorize a private right of action to challenge a decision of a consular officer or other United States official or employee to grant or deny a visa.

(g) STUDY REGARDING U S E OF FOREIGN NATIONALS.— (1) IN GENERAL.—The Secretary of Homeland Security shall

conduct a study of the role of foreign nationals in the granting or refusal of visas and other documents authorizing entry of aliens into the United States. The study shall address the following:

(A) The proper role, if any, of foreign nationals in the process of rendering decisions on such grants and refusals.

(B) Any security concerns involving the employment of foreign nationals.

(C) Whether there are cost-effective alternatives to the use of foreign nationals.

Deadline. (2) REPORT.—Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2191

containing the findings of the study conducted under paragraph (1) to the Committee on the Judiciary, the Committee on Inter- national Relations, and the Committee on Government Reform of the House of Representatives, and the Committee on the Judiciary, the Committee on Foreign Relations, and the Com- mittee on Government Affairs of the Senate. (h) REPORT.—Not later than 120 days after the date of the Deadline,

enactment of this Act, the Director of the Office of Science and Technology Policy shall submit to Congress a report on how the provisions of this section will affect procedures for the issuance of student visas.

(i) VISA ISSUANCE PROGRAM FOR SAUDI ARABIA.—Notwith- standing any other provision of law, after the date of the enactment of this Act all third party screening programs in Saudi Arabia shall be terminated. On-site personnel of the Department of Home- land Security shall review all visa applications prior to adjudication.

SEC. 429. INFORMATION ON VISA DENIALS REQUIRED TO BE ENTERED 6 USC 237. INTO ELECTRONIC DATA SYSTEM.

(a) IN GENERAL.—^Whenever a consular officer of the United States denies a visa to an applicant, the consular officer shall enter the fact and the basis of the denial and the name of the applicant into the interoperable electronic data system implemented under section 202(a) of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1722(a)).

(b) PROHIBITION.—In the case of any alien with respect to whom a visa has been denied under subsection (a)—

(1) no subsequent visa may be issued to the alien unless the consular officer considering the alien's visa application has reviewed the information concerning the alien placed in the interoperable electronic data system, has indicated on the alien's application that the information has been reviewed, and has stated for the record why the visa is being issued or a waiver of visa ineligibility recommended in spite of that information; and

(2) the alien may not be admitted to the United States without a visa issued in accordance with the procedures described in paragraph (1).

SEC. 430. OFFICE FOR DOMESTIC PREPAREDNESS.

(a) IN GENERAL.—The Office for Domestic Preparedness shall be within the Directorate of Border and Transportation Security.

(b) DIRECTOR.—There shall be a Director of the Office for Domestic Preparedness, who shall be appointed by the President, by and with the advice and consent of the Senate. The Director of the Office for Domestic Preparedness shall report directly to the Under Secretary for Border and Transportation Security.

(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) coordinating preparedness efforts at the Federal level, and working with all State, local, tribal, parish, and private sector emergency response providers on all matters pertaining to combating terrorism, including training, exercises, and equip- ment support;

6 USC 238.

President.

116 STAT. 2192 PUBLIC LAW 107-296—NOV. 25, 2002

(2) coordinating or, as appropriate, consolidating commu- nications and systems of communications relating to homeland security at all levels of government;

(3) directing and supervising terrorism preparedness grant programs of the Federal Government (other than those pro- grams administered by the Department of Health and Human Services) for all emergency response providers;

(4) incorporating the Strategy priorities into planning guid- ance on an agency level for the preparedness efforts of the Office for Domestic Preparedness;

(5) providing agency-specific training for agents and analysts within the Department, other agencies, and State and local agencies and international entities;

(6) as the lead executive branch agency for preparedness of the United States for acts of terrorism, cooperating closely with the Federal Emergency Management Agency, which shall have the primary responsibility within the executive branch to prepare for and mitigate the effects of nonterrorist-related disasters in the United States;

(7) assisting and supporting the Secretary, in coordination with other Directorates and entities outside the Department, in conducting appropriate risk analysis and risk management activities of State, local, and tribal governments consistent with the mission and functions of the Directorate; and

(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. (d) FISCAL YEARS 2003 and 2004.—During fiscal year 2003

and fiscal year 2004, the Director of the Office for Domestic Preparedness established under this section shall manage and carry out those functions of the Office for Domestic Preparedness of the Department of Justice (transferred under this section) before September 11, 2001, under the same terms, conditions, policies, and authorities, and with the required level of personnel, assets, and budget before September 11, 2001.

Subtitle D—Immigration Enforcement Functions

6 u s e 251. SEC. 441. TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR BORDER AND TRANSPORTATION SECURITY.

In accordance with title XV (relating to transition provisions), there shall be transferred from the Commissioner of Immigration and Naturalization to the Under Secretary for Border and Transpor- tation Security all functions performed under the following pro- grams, and all personnel, assets, and liabilities pertaining to such programs, immediately before such transfer occurs:

(1) The Border Patrol program. (2) The detention and removal program. (3) The intelligence program. (4) The investigations program. (5) The inspections program.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2193

SEC. 442. ESTABLISHMENT OF BUREAU OF BORDER SECURITY. 6 USC 252

(a) ESTABLISHMENT OF BUREAU.— (1) IN GENERAL.—There shall be in the Department of

Homeland Security a bureau to be known as the "Bureau of Border Security".

(2) ASSISTANT SECRETARY.—The head of the Bureau of Border Security shall be the Assistant Secretary of the Bureau of Border Security, who—

(A) shall report directly to the Under Secretary for Border and Transportation Security; and

(B) shall have a minimum of 5 years professional experience in law enforcement, and a minimum of 5 years of management experience. (3) FUNCTIONS.—The Assistant Secretary of the Bureau

of Border Security— (A) shall establish the policies for performing such

functions as are— (i) transferred to the Under Secretary for Border

and Transportation Security by section 441 and dele- gated to the Assistant Secretary by the Under Sec- retary for Border and Transportation Security; or

(ii) otherwise vested in the Assistant Secretary by law; (B) shall oversee the administration of such policies;

and (C) shall advise the Under Secretary for Border and

Transportation Security with respect to any policy or oper- ation of the Bureau of Border Security that may affect the Bureau of Citizenship and Immigration Services estab- lished under subtitle E, including potentially conflicting policies or operations. (4) PROGRAM TO COLLECT INFORMATION RELATING TO FOR-

EIGN STUDENTS.—The Assistant Secretary of the Bureau of Border Security shall be responsible for administering the pro- gram to collect information relating to nonimmigrant foreign students and other exchange program participants described in section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372), including the Stu- dent and Exchange Visitor Information System established under that section, and shall use such information to carry out the enforcement functions of the Bureau.

(5) MANAGERIAL ROTATION PROGRAM.— (A) IN GENERAL.—Not later than 1 year after the date Deadline.

on which the transfer of functions specified under section 441 takes effect, the Assistant Secretary of the Bureau of Border Security shall design and implement a manage- rial rotation program under which employees of such bureau holding positions involving supervisory or manage- rial responsibility and classified, in accordance with chapter 51 of title 5, United States Code, as a GS-14 or above, shall—

(i) gain some experience in all the major functions performed by such bureau; and

(ii) work in at least one local office of such bureau. (B) REPORT.—Not later than 2 years after the date Deadline.

on which the transfer of functions specified under section

116 STAT. 2194 PUBLIC LAW 107-296—NOV. 25, 2002

441 takes effect, the Secretary shall submit a report to the Congress on the implementation of such program.

(b) CHIEF OF POLICY AND STRATEGY.— (1) IN GENERAL.—There shall be a position of Chief of

Policy and Strategy for the Bureau of Border Security. (2) FUNCTIONS.—In consultation with Bureau of Border

Security personnel in local offices, the Chief of Policy and Strategy shall be responsible for—

(A) making policy recommendations and performing policy research and analysis on immigration enforcement issues; and

(B) coordinating immigration policy issues with the Chief of Policy and Strategy for the Bureau of Citizenship and Immigration Services (established under subtitle E), as appropriate.

(c) LEGAL ADVISOR.—There shall be a principal legal advisor to the Assistant Secretary of the Bureau of Border Security. The legal advisor shall provide specialized legal advice to the Assistant Secretary of the Bureau of Border Security and shall represent the bureau in all exclusion, deportation, and removal proceedings before the Executive Office for Immigration Review.

6 use 253. SEC. 443. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW. The Under Secretary for Border and Transportation Security

shall be responsible for— (1) conducting investigations of noncriminal allegations of

misconduct, corruption, and fraud involving any employee of the Bureau of Border Security that are not subject to investiga- tion by the Inspector General for the Department;

(2) inspecting the operations of the Bureau of Border Secu- rity and providing assessments of the quality of the operations of such bureau as a whole and each of its components; and

(3) providing an analysis of the management of the Bureau of Border Security.

6 use 254. SEC. 444. EMPLOYEE DISCIPLINE. The Under Secretary for Border and Transportation Security

may, notwithstanding any other provision of law, impose discipli- nary action, including termination of employment, pursuant to poli- cies and procedures applicable to employees of the Federal Bureau of Investigation, on any employee of the Bureau of Border Security who willfully deceives the Congress or agency leadership on any matter.

6 use 255. SEC. 445. REPORT ON IMPROVING ENFORCEMENT FUNCTIONS. Deadline. (a) IN GENERAL.—The Secretary, not later than 1 year after

being sworn into office, shall submit to the Committees on Appro- priations and the Judiciary of the House of Representatives and of the Senate a report with a plan detailing how the Bureau of Border Security, after the transfer of functions specified under section 441 takes effect, will enforce comprehensively, effectively, and fairly all the enforcement provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) relating to such functions.

(b) CONSULTATION.—In carrying out subsection (a), the Sec- retary of Homeland Security shall consult with the Attorney Gen- eral, the Secretary of State, the Director of the Federal Bureau of Investigation, the Secretary of the Treasury, the Secretary of Labor, the Commissioner of Social Security, the Director of the

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2195

Executive Office for Immigration Review, and the heads of State and local law enforcement agencies to determine how to most effec- tively conduct enforcement operations.

SEC. 446. SENSE OF CONGRESS REGARDING CONSTRUCTION OF 6 USC 256. FENCING NEAR SAN DIEGO, CALIFORNIA.

It is the sense of the Congress that completing the 14-mile border fence project required to be carried out under section 102(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) should be a priority for the Secretary.

Subtitle E—Citizenship and Immigration Services

SEC. 451. ESTABLISHMENT OF BUREAU OF CITIZENSHIP AND IMMIGRA- 6 USC 271 TION SERVICES.

(a) ESTABLISHMENT OF BUREAU.— (1) IN GENERAL.—There shall be in the Department a

bureau to be known as the "Bureau of Citizenship and Immigra- tion Services".

(2) DIRECTOR.—The head of the Bureau of Citizenship and Immigration Services shall be the Director of the Bureau of Citizenship and Immigration Services, who—

(A) shall report directly to the Deputy Secretary; (B) shall have a minimum of 5 years of management

experience; and (C) shall be paid at the same level as the Assistant

Secretary of the Bureau of Border Security. (3) FUNCTIONS.—The Director of the Bureau of Citizenship

and Immigration Services— (A) shall establish the policies for performing such

functions as are transferred to the Director by this section or this Act or otherwise vested in the Director by law;

(B) shall oversee the administration of such policies; (C) shall advise the Deputy Secretary with respect

to any policy or operation of the Bureau of Citizenship and Immigration Services that may affect the Bureau of Border Security of the Department, including potentially conflicting policies or operations;

(D) shall establish national immigration services poli- cies and priorities;

(E) shall meet regularly with the Ombudsman described in section 452 to correct serious service problems identified by the Ombudsman; and

(F) shall establish procedures requiring a formal response to any recommendations submitted in the Ombudsman's annual report to Congress within 3 months after its submission to Congress. (4) MANAGERIAL ROTATION PROGRAM.—

(A) IN GENERAL.—Not later than 1 year after the effec- Deadline, five date specified in section 455, the Director of the Bureau of Citizenship and Immigration Services shall design and implement a managerial rotation program under which

116 STAT. 2196 PUBLIC LAW 107-296—NOV. 25, 2002

employees of such bureau holding positions involving super- visory or managerial responsibility and classified, in accord- ance with chapter 51 of title 5, United States Code, as a GS-14 or above, shall—

(i) gain some experience in all the major functions performed by such bureau; and

(ii) work in at least one field office and one service center of such bureau.

Deadline. (B) REPORT.—Not later than 2 years after the effective date specified in section 455, the Secretary shall submit a report to Congress on the implementation of such pro- gram. (5) PILOT INITIATIVES FOR BACKLOG ELIMINATION.—The

Director of the Bureau of Citizenship and Immigration Services is authorized to implement innovative pilot initiatives to elimi- nate any remaining backlog in the processing of immigration benefit applications, and to prevent any backlog in the proc- essing of such applications from recurring, in accordance with section 204(a) of the Immigration Services and Infrastructure Improvements Act of 2000 (8 U.S.C. 1573(a)). Such initiatives may include measures such as increasing personnel, transfer- ring personnel to focus on areas with the largest potential for backlog, and streamlining paperwork. (b) TRANSFER OF FUNCTIONS FROM COMMISSIONER.—In accord-

ance with title XV (relating to transition provisions), there are transferred from the Commissioner of Immigration and Naturaliza- tion to the Director of the Bureau of Citizenship and Immigration Services the following functions, and all personnel, infrastructure, and funding provided to the Commissioner in support of such func- tions immediately before the effective date specified in section 455:

(1) Adjudications of immigrant visa petitions. (2) Adjudications of naturalization petitions. (3) Adjudications of asylum and refugee applications. (4) Adjudications performed at service centers. (5) All other adjudications performed by the Immigration

and Naturalization Service immediately before the effective date specified in section 455. (c) CHIEF OF POLICY AND STRATEGY.—

(1) IN GENERAL.—There shall be a position of Chief of Policy and Strategy for the Bureau of Citizenship and Immigra- tion Services.

(2) FUNCTIONS.—In consultation with Bureau of Citizenship and Immigration Services personnel in field offices, the Chief of Policy and Strategy shall be responsible for—

(A) making policy recommendations and performing policy research and analysis on immigration services issues; and

(B) coordinating immigration policy issues with the Chief of Policy and Strategy for the Bureau of Border Security of the Department.

(d) LEGAL ADVISOR.— (1) IN GENERAL.—There shall be a principal legal advisor

to the Director of the Bureau of Citizenship and Immigration Services.

(2) FUNCTIONS.—The legal advisor shall be responsible for—

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2197

(A) providing specialized legal advice, opinions, deter- minations, regulations, and any other assistance to the Director of the Bureau of Citizenship and Immigration Services with respect to legal matters affecting the Bureau of Citizenship and Immigration Services; and

(B) representing the Bureau of Citizenship and Immigration Services in visa petition appeal proceedings before the Executive Office for Immigration Review.

(e) BUDGET OFFICER.— (1) IN GENERAL.—There shall be a Budget Officer for the

Bureau of Citizenship and Immigration Services. (2) FUNCTIONS.—

(A) IN GENERAL.—The Budget Officer shall be respon- sible for—

(i) formulating and executing the budget of the Bureau of Citizenship and Immigration Services;

(ii) financial management of the Bureau of Citizen- ship and Immigration Services; and

(iii) collecting all payments, fines, and other debts for the Bureau of Citizenship and Immigration Serv- ices.

(f) CHIEF OF OFFICE OF CITIZENSHIP.— (1) IN GENERAL.—There shall be a position of Chief of

the Office of Citizenship for the Bureau of Citizenship and Immigration Services.

(2) FUNCTIONS.—The Chief of the Office of Citizenship for the Bureau of Citizenship and Immigration Services shall be responsible for promoting instruction and training on citizen- ship responsibilities for aliens interested in becoming natural- ized citizens of the United States, including the development of educational materials.

SEC. 452. CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN. 6USC272.

(a) IN GENERAL.—Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the "Ombudsman"). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law.

(b) FUNCTIONS.—It shall be the function of the Ombudsman— (1) to assist individuals and employers in resolving prob-

lems with the Bureau of Citizenship and Immigration Services; (2) to identify areas in which individuals and employers

have problems in dealing with the Bureau of Citizenship and Immigration Services; and

(3) to the extent possible, to propose changes in the administrative practices of the Bureau of Citizenship and Immigration Services to mitigate problems identified under paragraph (2). (c) ANNUAL REPORTS.—

(1) OBJECTIVES.—Not later than June 30 of each calendar Deadline, year, the Ombudsman shall report to the Committee on the Judiciary of the House of Representatives and the Senate on the objectives of the Office of the Ombudsman for the fiscal year beginning in such calendar year. Any such report shall contain full and substantive analysis, in addition to statistical information, and—

116 STAT. 2198 PUBLIC LAW 107-296—NOV. 25, 2002

(A) shall identify the recommendations the Office of the Ombudsman has made on improving services and responsiveness of the Bureau of Citizenship and Immigra- tion Services;

(B) shall contain a summary of the most pervasive and serious problems encountered by individuals and employers, including a description of the nature of such problems;

(C) shall contain an inventory of the items described in subparagraphs (A) and (B) for which action has been taken and the result of such action;

(D) shall contain an inventory of the items described in subparagraphs (A) and (B) for which action remains to be completed and the period during which each item has remained on such inventory;

(E) shall contain an inventory of the items described in subparagraphs (A) and (B) for which no action has been taken, the period during which each item has remained on such inventory, the reasons for the inaction, and shall identify any official of the Bureau of Citizenship and Immigration Services who is responsible for such inac- tion;

(F) shall contain recommendations for such administra- tive action as may be appropriate to resolve problems encountered by individuals and employers, including prob- lems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applica- tions; and

(G) shall include such other information as the Ombudsman may deem advisable. (2) REPORT TO BE SUBMITTED DIRECTLY.—Each report

required under this subsection shall be provided directly to the committees described in paragraph (1) without any prior comment or amendment from the Secretary, Deputy Secretary, Director of the Bureau of Citizenship and Immigration Services, or any other officer or employee of the Department or the Office of Management and Budget. (d) OTHER RESPONSIBILITIES.—The Ombudsman—

(1) shall monitor the coverage and geographic allocation of local offices of the Ombudsman;

(2) shall develop guidance to be distributed to all officers and employees of the Bureau of Citizenship and Immigration Services outlining the criteria for referral of inquiries to local offices of the Ombudsman;

(3) shall ensure that the local telephone number for each local office of the Ombudsman is published and available to individuals and employers served by the office; and

(4) shall meet regularly with the Director of the Bureau of Citizenship and Immigration Services to identify serious service problems and to present recommendations for such administrative action as may be appropriate to resolve problems encountered by individuals and employers. (e) PERSONNEL ACTIONS.—

(1) IN GENERAL.—The Ombudsman shall have the responsi- bility and authority—

(A) to appoint local ombudsmen and make available at least 1 such ombudsman for each State; and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2199

(B) to evaluate and take personnel actions (including dismissal) with respect to any employee of any local office of the Ombudsman. (2) CONSULTATION.—The Ombudsman may consult with

the appropriate supervisory personnel of the Bureau of Citizen- ship and Immigration Services in carrying out the Ombuds- man's responsibilities under this subsection. (f) RESPONSIBILITIES OF BUREAU OF CITIZENSHIP AND IMMIGRA-

TION SERVICES.—The Director of the Bureau of Citizenship and Immigration Services shall establish procedures requiring a formal response to all recommendations submitted to such director by the Ombudsman within 3 months after submission to such director.

(g) OPERATION OF LOCAL OFFICES.— (1) IN GENERAL.—Each local ombudsman—

(A) shall report to the Ombudsman or the delegate thereof;

(B) may consult with the appropriate supervisory per- sonnel of the Bureau of Citizenship and Immigration Serv- ices regarding the daily operation of the local office of such ombudsman;

(C) shall, at the initial meeting with any individual or employer seeking the assistance of such local office, notify such individual or employer that the local offices of the Ombudsman operate independently of any other component of the Department and report directly to Con- gress through the Ombudsman; and

(D) at the local ombudsman's discretion, may determine not to disclose to the Bureau of Citizenship and Immigra- tion Services contact with, or information provided by, such individual or employer. (2) MAINTENANCE OF INDEPENDENT COMMUNICATIONS.—

Each local office of the Ombudsman shall maintain a phone, facsimile, and other means of electronic communication access, and a'post office address, that is separate from those main- tained by the Bureau of Citizenship and Immigration Services, or any component of the Bureau of Citizenship and Immigration Services.

SEC. 453. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW. 6 USC 273

(a) IN GENERAL.—The Director of the Bureau of Citizenship and Immigration Services shall be responsible for—

(1) conducting investigations of noncriminal allegations of misconduct, corruption, and fraud involving any employee of the Bureau of Citizenship and Immigration Services that are not subject to investigation by the Inspector General for the Department;

(2) inspecting the operations of the Bureau of Citizenship and Immigration Services and providing assessments of the quality of the operations of such bureau as a whole and each of its components; and

(3) providing an analysis of the management of the Bureau of Citizenship and Immigration Services. (b) SPECIAL CONSIDERATIONS.—In providing assessments in

accordance with subsection (a)(2) with respect to a decision of the Bureau of Citizenship and Immigration Services, or any of its components, consideration shall be given to—

116 STAT. 2200 PUBLIC LAW 107-296—NOV. 25, 2002

(1) the accuracy of the findings of fact and conclusions of law used in rendering the decision;

(2) any fraud or misrepresentation associated with the decision; and

(3) the efficiency with which the decision was rendered. 6 use 274. SEC. 454. EMPLOYEE DISCIPLINE.

The Director of the Bureau of Citizenship and Immigration Services may, notwithstanding any other provision of law, impose disciplinary action, including termination of employment, pursuant to policies and procedures applicable to employees of the Federal Bureau of Investigation, on any employee of the Bureau of Citizen- ship and Immigration Services who willfully deceives Congress or agency leadership on any matter.

6 u s e 271 note. SEC. 455. EFFECTIVE DATE.

Notwithstanding section 4, sections 451 through 456, and the amendments made by such sections, shall take effect on the date on which the transfer of functions specified under section 441 takes effect.

6 u s e 275. SEC. 456. TRANSITION.

(a) REFERENCES.—^With respect to any function transferred by this subtitle to, and exercised on or after the effective date specified in section 455 by, the Director of the Bureau of Citizenship and Immigration Services, any reference in any other Federal law, Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to a component of government from which such function is transferred—

(1) to the head of such component is deemed to refer to the Director of the Bureau of Citizenship and Immigration Services; or

(2) to such component is deemed to refer to the Bureau of Citizenship and Immigration Services. (b) OTHER TRANSITION ISSUES.—

(1) EXERCISE OF AUTHORITIES.—Except as otherwise pro- vided by law, a Federal official to whom a function is trans- ferred by this subtitle may, for purposes of performing the function, exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function immediately before the effective date specified in section 455.

(2) TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PER- SONNEL.—The personnel of the Department of Justice employed in connection with the functions transferred by this subtitle (and functions that the Secretary determines are properly related to the functions of the Bureau of Citizenship and Immigration Services), and the assets, liabilities, contracts, property, records, and unexpended balance of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available to, or to be made available to, the Immigration and Naturalization Service in connection with the functions transferred by this subtitle, subject to section 202 of the Budget and Accounting Procedures Act of 1950, shall be transferred to the Director of the Bureau of Citizenship and Immigration Services for allocation to the appropriate component of the Department. Unexpended funds transferred

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2201

pursuant to this paragraph shall be used only for the purposes for which the funds were originally authorized and appro- priated. The Secretary shall have the right to adjust or realign transfers of funds and personnel effected pursuant to this sub- title for a period of 2 years after the effective date specified in section 455.

SEC. 457. FUNDING FOR CITIZENSHIP AND IMMIGRATION SERVICES.

Section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)) is amended by striking "services, including the costs of similar services provided without charge to asylum applicants or other immigrants." and inserting "services.". SEC. 458. BACKLOG ELIMINATION.

Section 204(a)(1) of the Immigration Services and Infrastruc- ture Improvements Act of 2000 (8 U.S.C. 1573(a)(1)) is amended by striking "not later than one year after the date of enactment of this Act;" and inserting "1 year after the date of the enactment of the Homeland Security Act of 2002;". SEC. 459. REPORT ON IMPROVING IMMIGRATION SERVICES. 6 USC 276

(a) IN GENERAL.—The Secretary, not later than 1 year after Deadline, the effective date of this Act, shall submit to the Committees on the Judiciary and Appropriations of the House of Representatives and of the Senate a report with a plan detailing how the Bureau of Citizenship and Immigration Services, after the transfer of func- tions specified in this subtitle takes effect, will complete efficiently, fairly, and within a reasonable time, the adjudications described in paragraphs (1) through (5) of section 451(b).

(b) CONTENTS.—For each type of adjudication to be undertaken by the Director of the Bureau of Citizenship and Immigration Services, the report shall include the following:

(1) Any potential savings of resources that may be imple- mented without affecting the quality of the adjudication.

(2) The goal for processing time with respect to the applica- tion.

(3) Any statutory modifications with respect to the adju- dication that the Secretary considers advisable. (c) CONSULTATION.—In carrying out subsection (a), the Sec-

retary shall consult with the Secretary of State, the Secretary of Labor, the Assistant Secretary of the Bureau of Border Security of the Department, and the Director of the Executive Office for Immigration Review to determine how to streamline and improve the process for applying for and making adjudications described in section 451(b) and related processes.

SEC. 460. REPORT ON RESPONDING TO FLUCTUATINGNEEDS. Not later than 30 days after the date of the enactment of

this Act, the Attorney General shall submit to Congress a report on changes in law, including changes in authorizations of appropria- tions and in appropriations, that are needed to permit the Immigra- tion and Naturalization Service, and, after the transfer of functions specified in this subtitle takes effect, the Bureau of Citizenship and Immigration Services of the Department, to ensure a prompt and timely response to emergent, unforeseen, or impending changes in the number of applications for immigration benefits, and other- wise to ensure the accommodation of changing immigration service needs.

6 USC 277.

Deadline.

116 STAT. 2202 PUBLIC LAW 107-296—NOV. 25, 2002

Deadline.

Deadline.

6 u s e 278. SEC. 461. APPLICATION OF INTERNET-BASED TECHNOLOGIES.

Deadline. (a) ESTABLISHMENT OF TRACKING SYSTEM.—The S e c r e t a r y , n o t later than 1 year after the effective date of this Act, in consultation with the Technology Advisory Committee established under sub- section (c), shall establish an Internet-based system, that will permit a person, employer, immigrant, or nonimmigrant who has filings with the Secretary for any benefit under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), access to online information about the processing status of the filing involved.

(b) FEASIBILITY STUDY FOR ONLINE FILING AND IMPROVED PROC- ESSING.—

(1) ONLINE FILING.—The Secretary, in consultation with the Technology Advisory Committee established under sub- section (c), shall conduct a feasibility study on the online filing of the filings described in subsection (a). The study shall include a review of computerization and technology of the Immigration and Naturalization Service relating to the immigration services and processing of filings related to immigrant services. The study shall also include an estimate of the timeframe and cost and shall consider other factors in implementing such a filing system, including the feasibility of fee payment online.

(2) REPORT.—^A report on the study under this subsection shall be submitted to the Committees on the Judiciary of the House of Representatives and the Senate not later than 1 year after the effective date of this Act. (c) TECHNOLOGY ADVISORY COMMITTEE.—

(1) ESTABLISHMENT.—The Secretary shall establish, not later than 60 days after the effective date of this Act, an advisory committee (in this section referred to as the "Tech- nology Advisory Committee") to assist the Secretary in—

(A) establishing the tracking system under subsection (a); and

(B) conducting the study under subsection (b). The Technology Advisory Committee shall be established after consultation with the Committees on the Judiciary of the House of Representatives and the Senate.

(2) COMPOSITION.—The Technology Advisory Committee shall be composed of representatives from high technology companies capable of establishing and implementing the system in an expeditious manner, and representatives of persons who may use the tracking system described in subsection (a) and the online filing system described in subsection (b)(1).

6 u s e 279. SEC. 462. CHILDREN'S AFFAIRS.

(a) TRANSFER OF FUNCTIONS.—There are transferred to the Director of the Office of Refugee Resettlement of the Department of Health and Human Services functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the effective date specified in subsection (d).

(b) FUNCTIONS.— (1) IN GENERAL.—Pursuant to the transfer made by sub-

section (a), the Director of the Office of Refugee Resettlement shall be responsible for—

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2203

(A) coordinating and implementing the care and place- ment of unaccompanied alien children who are in Federal custody by reason of their immigration status, including developing a plan to be submitted to Congress on how to ensure that qualified and independent legal counsel is timely appointed to represent the interests of each such child, consistent with the law regarding appointment of counsel that is in effect on the date of the enactment of this Act;

(B) ensuring that the interests of the child are consid- ered in decisions and actions relating to the care and custody of an unaccompanied alien child;

(C) making placement determinations for all unaccom- panied alien children who are in Federal custody by reason of their immigration status;

(D) implementing the placement determinations; (E) implementing policies with respect to the care and

placement of unaccompanied alien children; (F) identifying a sufficient number of qualified individ-

uals, entities, and facilities to house unaccompanied alien children;

(G) overseeing the infrastructure and personnel of facilities in which unaccompanied alien children reside;

(H) reuniting unaccompanied alien children with a parent abroad in appropriate cases;

(I) compiling, updating, and publishing at least annually a state-by-state list of professionals or other enti- ties qualified to provide guardian and attorney representa- tion services for unaccompanied alien children;

(J) maintaining statistical information and other data on unaccompanied alien children for whose care and place- ment the Director is responsible, which shall include—

(i) biographical information, such as a child's name, gender, date of birth, country of birth, and country of habitual residence;

(ii) the date on which the child came into Federal custody by reason of his or her immigration status;

(iii) information relating to the child's placement, removal, or release from each facility in which the child has resided;

(iv) in any case in which the child is placed in detention or released, an explanation relating to the detention or release; and

(v) the disposition of any actions in which the child is the subject; (K) collecting and compiling statistical information

from the Department of Justice, the Department of Home- land Security, and the Department of State on each depart- ment's actions relating to unaccompanied alien children; and

(L) conducting investigations and inspections of facili- ties and other entities in which unaccompanied alien chil- dren reside. (2) COORDINATION WITH OTHER ENTITIES; NO RELEASE ON

OWN RECOGNIZANCE.—In making determinations described in paragraph (1)(C), the Director of the Office of Refugee Resettlement—

116 STAT. 2204 PUBLIC LAW 107-296—NOV. 25, 2002

(A) shall consult with appropriate juvenile justice professionals, the Director of the Bureau of Citizenship and Immigration Services, and the Assistant Secretary of the Bureau of Border Security to ensure that such deter- minations ensure that unaccompanied alien children described in such subparagraph—

(i) are likely to appear for all hearings or pro- ceedings in which they are involved;

(ii) are protected from smugglers, traffickers, or others who might seek to victimize or otherwise engage them in criminal, harmful, or exploitive activity; and

(iii) are placed in a setting in which they are not likely to pose a danger to themselves or others; and (B) shall not release such children upon their own

recognizance. (3) DUTIES WITH RESPECT TO FOSTER CARE.—In carrying

out the duties described in paragraph (1)(G), the Director of the Office of Refugee Resettlement is encouraged to use the refugee children foster care system established pursuant to section 412(d) of the Immigration and Nationality Act (8 U.S.C. 1522(d)) for the placement of unaccompanied alien children. (c) RULE OF CONSTRUCTION.—Nothing in this section may be

construed to transfer the responsibility for adjudicating benefit determinations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) from the authority of any official of the Depart- ment of Justice, the Department of Homeland Security, or the Department of State.

(d) EFFECTIVE DATE.—Notwithstanding section 4, this section shall take effect on the date on which the transfer of functions specified under section 441 takes effect.

(e) REFERENCES.—With respect to any function transferred by this section, any reference in any other Federal law. Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to a component of government from which such function is transferred—

(1) to the head of such component is deemed to refer to the Director of the Office of Refugee Resettlement; or

(2) to such component is deemed to refer to the Office of Refugee Resettlement of the Department of Health and Human Services. (f) OTHER TRANSITION ISSUES.—

(1) EXERCISE OF AUTHORITIES.—Except as otherwise pro- vided by law, a Federal official to whom a function is trans- ferred by this section may, for purposes of performing the function, exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function immediately before the effective date specified in subsection (d).

(2) SAVINGS PROVISIONS.—Subsections (a), (b), and (c) of section 1512 shall apply to a transfer of functions under this section in the same manner as such provisions apply to a transfer of functions under this Act to the Department of Home- land Security.

(3) TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PER- SONNEL.—The personnel of the Department of Justice employed

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2205

in connection with the functions transferred by this section, and the assets, habihties, contracts, property, records, and unexpended balance of appropriations, authorizations, alloca- tions, and other funds employed, held, used, arising from, avail- able to, or to be made available to, the Immigration and Natu- ralization Service in connection with the functions transferred by this section, subject to section 202 of the Budget and Accounting Procedures Act of 1950, shall be transferred to the Director of the Office of Refugee Resettlement for allocation to the appropriate component of the Department of Health and Human Services. Unexpended funds transferred pursuant to this paragraph shall be used only for the purposes for which the funds were originally authorized and appropriated. (g) DEFINITIONS.—As used in this section—

(1) the term "placement" means the placement of an unaccompanied alien child in either a detention facility or an alternative to such a facility; and

(2) the term "unaccompanied alien child" means a child who—

(A) has no lawful immigration status in the United States;

(B) has not attained 18 years of age; and (C) with respect to whom—

(i) there is no parent or legal guardian in the United States; or

(ii) no parent or legal guardian in the United States is available to provide care and physical custody.

Subtitle F—General Immigration Provisions

SEC. 471. ABOLISHMENT OF INS. 6 USC 291.

(a) IN GENERAL.—Upon completion of all transfers from the Immigration and Naturalization Service as provided for by this Act, the Immigration and Naturalization Service of the Department of Justice is abolished.

(b) PROHIBITION.—The authority provided by section 1502 may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other. SEC. 472. VOLUNTARY SEPARATION INCENTIVE PAYMENTS. 6 USC 292

(a) DEFINITIONS.—For purposes of this section— (1) the term "employee" means an employee (as defined

by section 2105 of title 5, United States Code) who— (A) has completed at least 3 years of current continuous

service with 1 or more covered entities; and (B) is serving under an appointment without time

limitation, but does not include any person under subparagraphs (A)- (G) of section 663(a)(2) of Public Law 104^208 (5 U.S.C. 5597 note);

(2) the term "covered entity" means—

116 STAT. 2206 PUBLIC LAW 107-296—NOV. 25, 2002

(A) the Immigration and Naturalization Service; (B) the Bureau of Border Security of the Department

of Homeland Security; and (C) the Bureau of Citizenship and Immigration Serv-

ices of the Department of Homeland Security; and (3) the term "transfer date" means the date on which

the transfer of functions specified under section 441 takes effect. (b) STRATEGIC RESTRUCTURING PLAN.—Before the Attorney

General or the Secretary obligates any resources for voluntary separation incentive payments under this section, such official shall submit to the appropriate committees of Congress a strategic restructuring plan, which shall include—

(1) an organizational chart depicting the covered entities after their restructuring pursuant to this Act;

(2) a summary description of how the authority under this section will be used to help carry out that restructuring; and

(3) the information specified in section 663(b)(2) of Public Law 104-208 (5 U.S.C. 5597 note).

As used in the preceding sentence, the "appropriate committees of Congress" are the Committees on Appropriations, Government Reform, and the Judiciary of the House of Representatives, and the Committees on Appropriations, Governmental Affairs, and the Judiciary of the Senate.

(c) AUTHORITY.—The Attorney General and the Secretary may, to the extent necessary to help carry out their respective strategic restructuring plan described in subsection (b), make voluntary sepa- ration incentive payments to employees. Any such payment—

(1) shall be paid to the employee, in a lump sum, after the employee has separated from service;

(2) shall be paid from appropriations or funds available for the payment of basic pay of the employee;

(3) shall be equal to the lesser of— (A) the amount the employee would be entitled to

receive under section 5595(c) of title 5, United States Code; or

(B) an amount not to exceed $25,000, as determined by the Attorney General or the Secretary; (4) may not be made except in the case of any qualifying

employee who voluntarily separates (whether by retirement or resignation) before the end of—

(A) the 3-month period beginning on the date on which such payment is offered or made available to such employee; or

(B) the 3-year period beginning on the date of the enactment of this Act,

whichever occurs first; (5) shall not be a basis for payment, and shall not be

included in the computation, of any other type of Government benefit; and

(6) shall not be taken into account in determining the amount of any severance pay to which the employee may be entitled under section 5595 of title 5, United States Code, based on any other separation. (d) ADDITIONAL AGENCY CONTRIBUTIONS TO THE RETIREMENT

FUND.—

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2207

(1) IN GENERAL.—In addition to any payments which it is otherwise required to make, the Department of Justice and the Department of Homeland Security shall, for each fiscal year with respect to which it makes any voluntary separation incentive payments under this section, remit to the Office of Personnel Management for deposit in the Treasury of the United States to the credit of the Civil Service Retirement and Disability Fund the amount required under paragraph (2).

(2) AMOUNT REQUIRED.—The amount required under this paragraph shall, for any fiscal year, be the amount under subparagraph (A) or (B), whichever is greater.

(A) FIRST METHOD.—The amount under this subpara- graph shall, for any fiscal year, be equal to the minimum amount necessary to offset the additional costs to the retire- ment systems under title 5, United States Code (payable out of the Civil Service Retirement and Disability Fund) resulting from the voluntary separation of the employees described in paragraph (3), as determined under regula- tions of the Office of Personnel Management.

(B) SECOND METHOD.—The amount under this subpara- graph shall, for any fiscal year, be equal to 45 percent of the sum total of the final basic pay of the employees described in paragraph (3). (3) COMPUTATIONS TO BE BASED ON SEPARATIONS OCCURRING

IN THE FISCAL YEAR INVOLVED.—The employees described in this paragraph are those employees who receive a voluntary separation incentive payment under this section based on their separating from service during the fiscal year with respect to which the payment under this subsection relates.

(4) FINAL BASIC PAY DEFINED.—In this subsection, the term "final basic pay" means, with respect to an employee, the total amount of basic pay which would be payable for a year of service by such employee, computed using the employee's final rate of basic pay, and, if last serving on other than a full- time basis, with appropriate adjustment therefor. (e) EFFECT OF SUBSEQUENT EMPLOYMENT WITH THE GOVERN-

MENT.—An individual who receives a voluntary separation incentive payment under this section and who, within 5 years after the date of the separation on which the payment is based, accepts any compensated employment with the Government or works for any agency of the Government through a personal services contract, shall be required to pay, prior to the individual's first day of employment, the entire amount of the incentive payment. Such payment shall be made to the covered entity from which the indi- vidual separated or, if made on or after the transfer date, to the Deputy Secretary or the Under Secretary for Border and Transportation Security (for transfer to the appropriate component of the Department of Homeland Security, if necessary).

(f) EFFECT ON EMPLOYMENT LEVELS.— (1) INTENDED EFFECT.—^Voluntary separations under this

section are not intended to necessarily reduce the total number of full-time equivalent positions in any covered entity.

(2) U S E OF VOLUNTARY SEPARATIONS.—A covered entity may redeploy or use the full-time equivalent positions vacated by

116 STAT. 2208 PUBLIC LAW 107-296—NOV. 25, 2002

voluntary separations under this section to make other posi- tions available to more critical locations or more critical occupa- tions.

6 u s e 293. SEC. 473. AUTHORITY TO CONDUCT A DEMONSTRATION PROJECT RELATING TO DISCIPLINARY ACTION.

Deadline. (a) IN GENERAL.—The Attorney General and the Secretary may each, during a period ending not later than 5 years after the date of the enactment of this Act, conduct a demonstration project for the purpose of determining whether one or more changes in the policies or procedures relating to methods for disciplining employees would result in improved personnel management.

(b) SCOPE.—^A demonstration project under this section— (1) may not cover any employees apart from those employed

in or under a covered entity; and (2) shall not be limited by any provision of chapter 43,

75, or 77 of title 5, United States Code. (c) PROCEDURES.—Under the demonstration project—

(1) the use of alternative means of dispute resolution (as defined in section 571 of title 5, United States Code) shall be encouraged, whenever appropriate; and

(2) each covered entity under the jurisdiction of the official conducting the project shall be required to provide for the expeditious, fair, and independent review of any action to which section 4303 or subchapter II of chapter 75 of such title 5 would otherwise apply (except an action described in section 7512(5) ofsuch title 5). (d) ACTIONS INVOLVING DISCRIMINATION.—Notwithstanding any

other provision of this section, if, in the case of any matter described in section 7702(a)(1)(B) of title 5, United States Code, there is no judicially reviewable action under the demonstration project within 120 days after the filing of an appeal or other formal request for review (referred to in subsection (c)(2)), an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 7702(e)(1) of such title 5 (in the matter following subparagraph (C) thereof).

(e) CERTAIN EMPLOYEES.—Employees shall not be included within any project under this section if such employees are—

(1) neither managers nor supervisors; and (2) within a unit with respect to which a labor organization

is accorded exclusive recognition under chapter 71 of title 5, United States Code.

Notwithstanding the preceding sentence, an aggrieved employee within a unit (referred to in paragraph (2)) may elect to participate in a complaint procedure developed under the demonstration project in lieu of any negotiated grievance procedure and any statutory procedure (as such term is used in section 7121 of such title 5).

(f) REPORTS.—The General Accounting Office shall prepare and submit to the Committees on Government Reform and the Judiciary of the House of Representatives and the Committees on Govern- mental Affairs and the Judiciary of the Senate periodic reports on any demonstration project conducted under this section, such reports to be submitted after the second and fourth years of its operation. Upon request, the Attorney General or the Secretary shall furnish such information as the General Accounting Office may require to carry out this subsection.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2209

(g) DEFINITION.—In this section, the term "covered entity" has the meaning given such term in section 472(a)(2). SEC. 474. SENSE OF CONGRESS. \ 6 USC 294.

It is the sense of Congress that— (1) the missions of the Bureau of Border Security and

the Bureau of Citizenship and Immigration Services are equally important and, accordingly, they each should be adequately funded; and

(2) the functions transferred under this subtitle should not, after such transfers take effect, operate at levels below those in effect prior to the enactment of this Act.

SEC. 475. DIRECTOR OF SHARED SERVICES. 6 USC 295

(a) IN GENERAL.—Within the Office of Deputy Secretary, there shall be a Director of Shared Services.

(b) FUNCTIONS.—The Director of Shared Services shall be responsible for the coordination of resources for the Bureau of Border Security and the Bureau of Citizenship and Immigration Services, including—

(1) information resources management, including computer databases and information technology;

(2) records and file management; and (3) forms management.

SEC. 476. SEPARATION OF FUNDING. 6 USC 296.

(a) IN GENERAL.—There shall be established separate accounts in the Treasury of the United States for appropriated funds and other deposits available for the Bureau of Citizenship and Immigra- tion Services and the Bureau of Border Security.

(b) SEPARATE BUDGETS.—To ensure that the Bureau of Citizen- ship and Immigration Services and the Bureau of Border Security are funded to the extent necessary to fully carry out their respective functions, the Director of the Office of Management and Budget shall separate the budget requests for each such entity.

(c) FEES.—Fees imposed for a particular service, application, or benefit shall be deposited into the account established under subsection (a) that is for the bureau with jurisdiction over the function to which the fee relates.

(d) FEES NOT TRANSFERABLE.—No fee may be transferred between the Bureau of Citizenship and Immigration Services and the Bureau of Border Security for purposes not authorized by section 286 of the Immigration and Nationality Act (8 U.S.C. 1356). SEC. 477. REPORTS AND IMPLEMENTATION PLANS. 6 USC 297.

(a) DIVISION OF FUNDS.—The Secretary, not later than 120 Deadline. days after the effective date of this Act, shall submit to the Commit- tees on Appropriations and the Judiciary of the House of Represent- atives and of the Senate a report on the proposed division and transfer of funds, including unexpended funds, appropriations, and fees, between the Bureau of Citizenship and Immigration Services and the Bureau of Border Security.

(b) DIVISION OF PERSONNEL.—The Secretary, not later than Deadline. 120 days after the effective date of this Act, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate a report on the proposed division of personnel between the Bureau of Citizenship and Immigration Services and the Bureau of Border Security.

116 STAT. 2210 PUBLIC LAW 107-296—NOV. 25, 2002

Deadline.

Deadline.

Deadline.

(c) IMPLEMENTATION PLAN.— (1) IN GENERAL.—The Secretary, not later than 120 days

after the effective date of this Act, and every 6 months there- after until the termination of fiscal year 2005, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate an implementation plan to carry out this Act.

(2) CONTENTS.—The implementation plan should include details concerning the separation of the Bureau of Citizenship and Immigration Services and the Bureau of Border Security, including the following:

(A) Organizational structure, including the field struc- ture.

(B) Chain of command. (C) Procedures for interaction among such bureaus. (D) Fraud detection and investigation. (E) The processing and handling of removal pro-

ceedings, including expedited removal and applications for relief from removal.

(F) Recommendations for conforming amendments to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(G) Establishment of a transition team. (H) Methods to phase in the costs of separating the

administrative support systems of the Immigration and Naturalization Service in order to provide for separate administrative support systems for the Bureau of Citizen- ship and Immigration Services and the Bureau of Border Security.

(d) COMPTROLLER GENERAL STUDIES AND REPORTS.— (1) STATUS REPORTS ON TRANSITION.—Not later than 18

months after the date on which the transfer of functions speci- fied under section 441 takes effect, and every 6 months there- after, until full implementation of this subtitle has been com- pleted, the Comptroller General of the United States shall submit to the Committees on Appropriations and on the Judiciary of the House of Representatives and the Senate a report containing the following:

(A) A determination of whether the transfers of func- tions made by subtitles D and E have been completed, and if a transfer of functions has not taken place, identi- fying the reasons why the transfer has not taken place.

(B) If the transfers of functions made by subtitles D and E have been completed, an identification of any issues that have arisen due to the completed transfers.

(C) An identification of any issues that may arise due to any future transfer of functions. (2) REPORT ON MANAGEMENT.—Not later than 4 years after

the date on which the transfer of functions specified under section 441 takes effect, the Comptroller General of the United States shall submit to the Committees on Appropriations and on the Judiciary of the House of Representatives and the Senate a report, following a study, containing the following:

(A) Determinations of whether the transfer of functions from the Immigration and Naturalization Service to the Bureau of Citizenship and Immigration Services and the

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2211

Bureau of Border Security have improved, with respect to each function transferred, the following:

(i) Operations. (ii) Management, including accountability and

communication. (iii) Financial administration. (iv) Recordkeeping, including information manage-

ment and technology. (B) A statement of the reasons for the determinations

under subparagraph (A). (C) Any recommendations for further improvements

to the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. (3) REPORT ON FEES.—Not later than 1 year after the Deadline.

date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report examining whether the Bureau of Citizenship and Immigration Services is likely to derive sufficient funds from fees to carry out its functions in the absence of appropriated funds.

SEC. 478. IMMIGRATION FUNCTIONS. 6 USC 298.

(a) ANNUAL REPORT.— (1) IN GENERAL.—One year after the date of the enactment

of this Act, and each year thereafter, the Secretary shall submit a report to the President, to the Committees on the Judiciary and Government Reform of the House of Representatives, and to the Committees on the Judiciary and Government Affairs of the Senate, on the impact the transfers made by this subtitle has had on immigration functions.

(2) MATTER INCLUDED.—The report shall address the fol- lowing with respect to the period covered by the report:

(A) The aggregate number of all immigration applica- tions and petitions received, and processed, by the Depart- ment.

(B) Region-by-region statistics on the aggregate number of immigration applications and petitions filed by an alien (or filed on behalf of an alien) and denied, disaggregated by category of denial and application or peti- tion type.

(C) The quantity of backlogged immigration applica- tions and petitions that have been processed, the aggregate ' number awaiting processing, and a detailed plan for elimi- nating the backlog.

(D) The average processing period for immigration applications and petitions, disaggregated by application or petition type.

(E) The number and types of immigration-related griev- ances filed with any official of the Department of Justice, and if those grievances were resolved.

(F) Plans to address grievances and improve immigra- tion services.

(G) Whether immigration-related fees were used con- sistent with legal requirements regarding such use.

116 STAT. 2212 PUBLIC LAW 107-296—NOV. 25, 2002

(H) Whether immigration-related questions conveyed by customers to the Department (whether conveyed in per- son, by telephone, or by means of the Internet) were answered effectively and efficiently.

(b) SENSE OF CONGRESS REGARDING IMMIGRATION SERVICES.— It is the sense of Congress that—

(1) the quality and efficiency of immigration services ren- dered by the Federal Government should be improved after the transfers made by this subtitle take effect; and

(2) the Secretary should undertake efforts to guarantee that concerns regarding the quality and efficiency of immigra- tion services are addressed after such effective date.

TITLE V—EMERGENCY PREPAREDNESS AND RESPONSE

6 u s e 311. SEC. 501. UNDER SECRETARY FOR EMERGENCY PREPAREDNESS AND RESPONSE.

There shall be in the Departrtient a Directorate of Emergency Preparedness and Response headed by an Under Secretary for Emergency Preparedness and Response.

6 u s e 312. SEC. 502. RESPONSIBILITIES.

The Secretary, acting through the Under Secretary for Emer- gency Preparedness and Response, shall include—

(1) helping to ensure the effectiveness of emergency response providers to terrorist attacks, major disasters, and other emergencies;

(2) with respect to the Nuclear Incident Response Team (regardless of whether it is operating as an organizational unit of the Department pursuant to this title)—

(A) establishing standards and certifying when those standards have been met;

(B) conducting joint and other exercises and training and evaluating performance; and

(C) providing funds to the Department of Energy and the Environmental Protection Agency, as appropriate, for homeland security planning, exercises and training, and equipment; (3) providing the Federal Government's response to ter-

rorist attacks and major disasters, including— (A) managing such response; (B) directing the Domestic Emergency Support Team,

the Strategic National Stockpile, the National Disaster Medical System, and (when operating as an organizational unit of the Department pursuant to this title) the Nuclear Incident Response Team;

(C) overseeing the Metropolitan Medical Response System; and

(D) coordinating other Federal response resources in the event of a terrorist attack or major disaster; (4) aiding the recovery from terrorist attacks and major

disasters; (5) building a comprehensive national incident management

system with Federal, State, and local government personnel.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2213

agencies, and authorities, to respond to such attacks and disas- ters;

(6) consoUdating existing Federal Government emergency response plans into a single, coordinated national response plan; and ,

(7) developing comprehensive programs for developing interoperative communications technology, and helping to ensure that emergency response providers acquire such tech- nology.

SEC. 503. FUNCTIONS TRANSFERRED. 6 USC 313.

In accordance with title XV, there shall be transferred to the Secretary the functions, personnel, assets, and liabilities of the following entities:

(1) The Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Manage- ment Agency relating thereto.

(2) The Integrated Hazard Information System of the National Oceanic and Atmospheric Administration, which shall be renamed "FIRESAT".

(3) The National Domestic Preparedness Office of the Fed- eral Bureau of Investigation, including the functions of the Attorney General relating thereto.

(4) The Domestic Emergency Support Teams of the Depart- ment of Justice, including the functions of the Attorney General relating thereto.

(5) The Office of Emergency Preparedness, the National Disaster Medical System, and the Metropolitan Medical Response System of the Department of Health and Human Services, including the functions of the Secretary of Health and Human Services and the Assistant Secretary for Public Health Emergency Preparedness relating thereto.

(6) The Strategic National Stockpile of the Department of Health and Human Services, including the functions of the Secretary of Health and Human Services relating thereto.

SEC. 504. NUCLEAR INCIDENT RESPONSE. 6 USC 314.

(a) IN GENERAL.—At the direction of the Secretary (in connec- tion with an actual or threatened terrorist attack, major disaster, or other emergency in the United States), the Nuclear Incident Response Team shall operate as an organizational unit of the Department. While so operating, the Nuclear Incident Response Team shall be subject to the direction, authority, and control of the Secretary.

(b) RULE OF CONSTRUCTION.—Nothing in this title shall be construed to limit the ordinary responsibility of the Secretary of Energy and the Administrator of the Environmental Protection Agency for organizing, training, equipping, and utilizing their respective entities in the Nuclear Incident Response Team, or (sub- ject to the provisions of this title) from exercising direction, authority, and control over them when they are not operating as a unit of the Department. SEC. 505. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVI- 6 USC 315.

TIES.

(a) IN GENERAL.—With respect to all public health-related activities to improve State, local, and hospital preparedness and response to chemical, biological, radiological, and nuclear and other

116 STAT. 2214 PUBLIC LAW 107-296—NOV. 25, 2002

emerging terrorist threats carried out by the Department of Health and Human Services (including the Public Health Service), the Secretary of Health and Human Services shall set priorities and preparedness goals and further develop a coordinated strategy for such activities in collaboration with the Secretary.

(b) EVALUATION OF PROGRESS.—In carrying out subsection (a), the Secretary of Health and Human Services shall collaborate with the Secretary in developing specific benchmarks and outcome measurements for evaluating progress toward achieving the prior- ities and goals described in such subsection.

6 u s e 316. SEC. 506. DEFINITION.

In this title, the term "Nuclear Incident Response Team" means a resource that includes—

(1) those entities of the Department of Energy that perform nuclear or radiological emergency support functions (including accident response, search response, advisory, and technical operations functions), radiation exposure functions at the med- ical assistance facility known as the Radiation Emergency Assistance Center/Training Site (REAC/TS), radiological assist- ance functions, and related functions; and

(2) those entities of the Environmental Protection Agency that perform such support functions (including radiological emergency response functions) and related functions.

6 u s e 317. SEC. 507. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.

(a) IN GENERAL.—The functions of the Federal Emergency Management Agency include the following:

(1) All functions and authorities prescribed by the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).

(2) Carrying out its mission to reduce the loss of life and property and protect the Nation from all hazards by leading and supporting the Nation in a comprehensive, risk-based emer- gency management program—

(A) of mitigation, by taking sustained actions to reduce or eliminate long-term risk to people and property from hazards and their effects;

(B) of planning for building the emergency manage- ment profession to prepare effectively for, mitigate against, respond to, and recover from any hazard;

(C) of response, by conducting emergency operations to save lives and property through positioning emergency equipment and supplies, through evacuating potential vic- tims, through providing food, water, shelter, and medical care to those in need, and through restoring critical public services;

(D) of recovery, by rebuilding communities so individ- uals, businesses, and governments can function on their own, return to normal life, and protect against future haz- ards; and

(E) of increased efficiencies, by coordinating efforts relating to mitigation, planning, response, and recovery.

(b) FEDERAL RESPONSE PLAN.— (1) ROLE OF FEMA.—Notwithstanding any other provision

of this Act, the Federal Emergency Management Agency shall

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2215

remain the lead agency for the Federal Response Plan estab- lished under Executive Order No. 12148 (44 Fed. Reg. 43239) and Executive Order No. 12656 (53 Fed. Reg. 47491).

(2) REVISION OF RESPONSE PLAN.—Not later than 60 days Deadline, after the date of enactment of this Act, the Director of the Federal Emergency Management Agency shall revise the Fed- eral Response Plan to reflect the establishment of and incor- porate the Department.

SEC. 508. USE OF NATIONAL PRIVATE SECTOR NETWORKS IN EMER- 6 USC 318. GENCY RESPONSE.

To the maximum extent practicable, the Secretary shall use national private sector networks and infrastructure for emergency response to chemical, biological, radiological, nuclear, or explosive disasters, and other major disasters. SEC. 509. USE OF COMMERCIALLY AVAILABLE TECHNOLOGY, GOODS, 6 USC 319.

AND SERVICES.

It is the sense of Congress that— (1) the Secretary should, to the maximum extent possible,

use off-the-shelf commercially developed technologies to ensure that the Department's information technology systems allow the Department to collect, manage, share, analyze, and dissemi- nate information securely over multiple channels of communica- tion; and

(2) in order to further the policy of the United States to avoid competing commercially with the private sector, the Secretary should rely on commercial sources to supply the goods and services needed by the Department.

TITLE VI—TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS

SEC. 601. TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF 6 USC 331. THE ARMED FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS.

(a) FINDINGS.—Congress finds the following: (1) Members of the Armed Forces of the United States

defend the freedom and security of our Nation. (2) Members of the Armed Forces of the United States

have lost their lives while battling the evils of terrorism around the world.

(3) Personnel of the Central Intelligence Agency (CIA) charged with the responsibility of covert observation of terror- ists around the world are often put in harm's way during their service to the United States.

(4) Personnel of the Central Intelligence Agency have also lost their lives while battling the evils of terrorism around the world.

(5) Employees of the Federal Bureau of Investigation (FBI) and other Federal agencies charged with domestic protection

116 STAT. 2216 PUBLIC LAW 107-296—NOV. 25, 2002

of the United States put their lives at risk on a daily basis for the freedom and security of our Nation.

(6) United States military personnel, CIA personnel, FBI personnel, and other Federal agents in the service of the United States are patriots of the highest order.

(7) CIA officer Johnny Micheal Spann became the first American to give his life for his country in the War on Terrorism declared by President George W. Bush following the terrorist attacks of September 11, 2001.

(8) Johnny Micheal Spann left behind a wife and children who are very proud of the heroic actions of their patriot father.

(9) Surviving dependents of members of the Armed Forces of the United States who lose their lives as a result of terrorist attacks or military operations abroad receive a $6,000 death benefit, plus a small monthly benefit.

(10) The current system of compensating spouses and chil- dren of American patriots is inequitable and needs improve- ment. (b) DESIGNATION OF JOHNNY MICHEAL SPANN PATRIOT

TRUSTS.—^Any charitable corporation, fund, foundation, or trust (or separate fund or account thereof) which otherwise meets all applicable requirements under law with respect to charitable enti- ties and meets the requirements described in subsection (c) shall be eligible to characterize itself as a "Johnny Micheal Spann Patriot Trust".

(c) REQUIREMENTS FOR THE DESIGNATION OF JOHNNY MICHEAL SPANN PATRIOT TRUSTS.—The requirements described in this sub- section are as follows:

(1) Not taking into account funds or donations reasonably necessary to establish a trust, at least 85 percent of all funds or donations (including any earnings on the investment of such funds or donations) received or collected by any Johnny Micheal Spann Patriot Trust must be distributed to (or, if placed in a private foundation, held in trust for) surviving spouses, chil- dren, or dependent parents, grandparents, or siblings of 1 or more of the following:

(A) members of the Armed Forces of the United States; (B) personnel, including contractors, of elements of the

intelligence community, as defined in section 3(4) of the National Security Act of 1947;

(C) employees of the Federal Bureau of Investigation; and

(D) officers, employees, or contract employees of the United States Government,

whose deaths occur in the line of duty and arise out of terrorist attacks, military operations, intelligence operations, or law enforcement operations or accidents connected with activities occurring after September 11, 2001, and related to domestic or foreign efforts to curb international terrorism, including the Authorization for Use of Military Force (Public Law 107- 40; 115 Stat. 224).

(2) Other than funds or donations reasonably necessary to establish a trust, not more than 15 percent of all funds or donations (or 15 percent of annual earnings on funds invested in a private foundation) may be used for administrative pur- poses.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2217

(3) No part of the net earnings of any Johnny Micheal Spann Patriot Trust may inure to the benefit of any individual based solely on the position of such individual as a shareholder, an officer or employee of such Trust.

(4) None of the activities of any Johnny Micheal Spann Patriot Trust shall be conducted in a manner inconsistent with any law that prohibits attempting to influence legislation.

(5) No Johnny Micheal Spann Patriot Trust may participate in or intervene in any political campaign on behalf of (or in opposition to) any candidate for public office, including by publication or distribution of statements.

(6) Each Johnny Micheal Spann Patriot Trust shall comply with the instructions and directions of the Director of Central Intelligence, the Attorney General, or the Secretary of Defense relating to the protection of intelligence sources and methods, sensitive law enforcement information, or other sensitive national security information, including methods for confiden- tially disbursing funds.

(7) Each Johnny Micheal Spann Patriot Trust that receives annual contributions totaling more than $1,000,000 must be audited annually by an independent certified public accounting firm. Such audits shall be filed with the Internal Revenue Service, and shall be open to public inspection, except that the conduct, filing, and availability of the audit shall be con- sistent with the protection of intelligence sources and methods, of sensitive law enforcement information, and of other sensitive national security information.

(8) Each Johnny Micheal Spann Patriot Trust shall make distributions to beneficiaries described in paragraph (1) at least once every calendar year, beginning not later than 12 months after the formation of such Trust, and all funds and donations received and earnings not placed in a private foundation dedi- cated to such beneficiaries must be distributed within 36 months after the end of the fiscal year in which such funds, donations, and earnings are received.

(9)(A) When determining the amount of a distribution to any beneficiary described in paragraph (1), a Johnny Micheal Spann Patriot Trust should take into account the amount of any collateral source compensation that the beneficiary has received or is entitled to receive as a result of the death of an individual described in paragraph (1).

(B) Collateral source compensation includes all compensa- tion from collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to the death of an individual described in paragraph (1). (d) TREATMENT OF JOHNNY MICHEAL SPANN PATRIOT TRUSTS.—

Each Johnny Micheal Spann Patriot Trust shall refrain from con- ducting the activities described in clauses (i) and (ii) of section 301(20)(A) of the Federal Election Campaign Act of 1971 so that a general solicitation of funds by an individual described in para- graph (1) of section 323(e) of such Act will be permissible if such solicitation meets the requirements of paragraph (4)(A) of such section.

(e) NOTIFICATION OF TRUST BENEFICIARIES.—Notwithstanding any other provision of law, and in a manner consistent with the protection of intelligence sources and methods and sensitive law

116 STAT. 2218 PUBLIC LAW 107-296—NOV. 25, 2002

Deadline.

enforcement information, and other sensitive national security information, the Secretary of Defense, the Director of the Federal Bureau of Investigation, or the Director of Central Intelligence, or their designees, as applicable, may forward information received from an executor, administrator, or other legal representative of the estate of a decedent described in subparagraph (A), (B), (C), or (D) of subsection (c)(1), to a Johnny Micheal Spann Patriot Trust on how to contact individuals eligible for a distribution under subsection (c)(1) for the purpose of providing assistance from such Trust: Provided, That, neither forwarding nor failing to forward any information under this subsection shall create any cause of action against any Federal department, agency, officer, agent, or employee.

(f) REGULATIONS.—Not later than 90 days after the date of enactment of this Act, the Secretary of Defense, in coordination with the Attorney General, the Director of the Federal Bureau of Investigation, and the Director of Central Intelligence, shall prescribe regulations to carry out this section.

TITLE VII—MANAGEMENT

6 u s e 341. SEC. 701. UNDER SECRETARY FOR MANAGEMENT.

(a) IN GENERAL.—The Secretary, acting through the Under Secretary for Management, shall be responsible for the management and administration of the Department, including the following:

(1) The budget, appropriations, expenditures of funds, accounting, and finance.

(2) Procurement. (3) Human resources and personnel. (4) Information technology and communications systems. (5) Facilities, property, equipment, and other material

resources. (6) Security for personnel, information technology and

communications systems, facilities, property, equipment, and other material resources.

(7) Identification and tracking of performance measures relating to the responsibilities of the Department.

(8) Grants and other assistance management programs. (9) The transition and reorganization process, to ensure

an efficient and orderly transfer of functions and personnel to the Department, including the development of a transition plan.

(10) The conduct of internal audits and management anal- yses of the programs and activities of the Department.

(11) Any other management duties that the Secretary may designate. (b) IMMIGRATION.—

(1) IN GENERAL.—In addition to the responsibilities described in subsection (a), the Under Secretary for Manage- ment shall be responsible for the following:

(A) Maintenance of all immigration statistical informa- tion of the Bureau of Border Security and the Bureau of Citizenship and Immigration Services. Such statistical information shall include information and statistics of the

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2219

type contained in the publication entitled "Statistical Year- book of the Immigration and Naturalization Service" pre- pared by the Immigration and Naturalization Service (as in effect immediately before the date on which the transfer of functions specified under section 441 takes effect), including region-by-region statistics on the aggregate number of applications and petitions filed by an alien (or filed on behalf of an alien) and denied by such bureau, and the reasons for such denials, disaggregated by category of denial and application or petition type.

(B) Establishment of standards of reliability and validity for immigration statistics collected by such bureaus. (2) TRANSFER OF FUNCTIONS.—In accordance with title XV,

there shall be transferred to the Under Secretary for Manage- ment all functions performed immediately before such transfer occurs by the Statistics Branch of the Office of Policy and Planning of the Immigration and Naturalization Service with respect to the following programs:

(A) The Border Patrol program. (B) The detention and removal program. (C) The intelligence program. (D) The investigations program. (E) The inspections program. (F) Adjudication of immigrant visa petitions. (G) Adjudication of naturalization petitions. (H) Adjudication of asylum and refugee applications. (I) Adjudications performed at service centers. (J) All other adjudications performed by the Immigra-

tion and Naturalization Service. SEC. 702. CHIEF FINANCIAL OFFICER. 6 USC 342.

The Chief Financial Officer shall report to the Secretary, or to another official of the Department, as the Secretary may direct. SEC. 703. CHIEF INFORMATION OFFICER. 6 USC 343.

The Chief Information Officer shall report to the Secretary, or to another official of the Department, as the Secretary may direct. SEC. 704. CHIEF HUMAN CAPITAL OFFICER. 6 USC 344

The Chief Human Capital Officer shall report to the Secretary, or to another official of the Department, as the Secretary may direct and shall ensure that all employees of the Department are informed of their rights and remedies under chapters 12 and 23 of title 5, United States Code, by—

(1) participating in the 2302(c) Certification Program of the Office of Special Counsel;

(2) achieving certification from the Office of Special Counsel of the Department's compliance with section 2302(c) of title 5, United States Code; and

(3) informing Congress of such certification not later than 24 months after the date of enactment of this Act.

SEC. 705. ESTABLISHMENT OF OFFICER FOR CIVIL RIGHTS AND CIVIL 6 USC 34.5. LIBERTIES.

(a) IN GENERAL.—The Secretary shall appoint in the Depart- ment an Officer for Civil Rights and Civil Liberties, who shall—

116 STAT. 2220 PUBLIC LAW 107-296—NOV. 25, 2002

(1) review and assess information alleging abuses of civil rights, civil liberties, and racial and ethnic profiling by employees and officials of the Department; and

(2) make public through the Internet, radio, television, or newspaper advertisements information on the responsibil- ities and functions of, and how to contact, the Officer.

(b) REPORT.—The Secretary shall submit to the President of the Senate, the Speaker of the House of Representatives, and the appropriate committees and subcommittees of Congress on an annual basis a report on the implementation of this section, including the use of funds appropriated to carry out this section, and detailing any allegations of abuses described under subsection (a)(1) and any actions taken by the Depart- ment in response to such allegations.

6 u s e 346. SEC. 706. CONSOLIDATION AND CO-LOCATION OF OFFICES.

Deadline. Not later than 1 year after the date of the enactment of this Act, the Secretary shall develop and submit to Congress a plan for consolidating and co-locating—

(1) any regional offices or field offices of agencies that are transferred to the Department under this Act, if such officers are located in the same municipality; and

(2) portions of regional and field offices of other Federal agencies, to the extent such offices perform functions that are transferred to the Secretary under this Act.

TITLE VIII—COORDINATION WITH NON- FEDERAL ENTITIES; INSPECTOR GEN- ERAL; UNITED STATES SECRET SERV- ICE; COAST GUARD; GENERAL PROVI- SIONS

Subtitle A—Coordination with Non-Federal Entities

6 u s e 361 SEC. 801. OFFICE FOR STATE AND LOCAL GOVERNMENT COORDINA- TION.

(a) ESTABLISHMENT.—There is established within the Office of the Secretary the Office for State and Local Government Coordination, to oversee and coordinate departmental programs for and relationships with State and local governments.

(b) RESPONSIBILITIES.—The Office established under subsection (a) shall—

(1) coordinate the activities of the Department relating to State and local government;

(2) assess, and advocate for, the resources needed by State and local government to implement the national strategy for combating terrorism;

(3) provide State and local government with regular information, research, and technical support to assist local efforts at securing the homeland; and

(4) develop a process for receiving meaningful input from State and local government to assist the development of the

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2221

national strategy for combating terrorism and other homeland security activities.

Subtitle B—Inspector General

SEC. 811. AUTHORITY OF THE SECRETARY. 6 USC 371.

(a) IN GENERAL.—Notwithstanding the last two sentences of section 3(a) of the Inspector General Act of 1978, the Inspector General shall be under the authority, direction, and control of the Secretary with respect to audits or investigations, or the issuance of subpoenas, that require access to sensitive information concerning—

(1) intelligence, counterintelligence, or counterterrorism matters;

(2) ongoing criminal investigations or proceedings; (3) undercover operations; (4) the identity of confidential sources, including protected

witnesses; (5) other matters the disclosure of which would, in the

Secretary's judgment, constitute a serious threat to the protec- tion of any person or property authorized protection by section 3056 of title 18, United States Code, section 202 of title 3 of such Code, or any provision of the Presidential Protection Assistance Act of 1976; or

(6) other matters the disclosure of which would, in the Secretary's judgment, constitute a serious threat to national security. (b) PROHIBITION OF CERTAIN INVESTIGATIONS.—With respect

to the information described in subsection (a), the Secretary may prohibit the Inspector General from carrying out or completing any audit or investigation, or from issuing any subpoena, after such Inspector General has decided to initiate, carry out, or com- plete such audit or investigation or to issue such subpoena, if the Secretary determines that such prohibition is necessary to pre- vent the disclosure of any information described in subsection (a), to preserve the national security, or to prevent a significant impair- ment to the interests of the United States.

(c) NOTIFICATION REQUIRED.—If the Secretary exercises any power under subsection (a) or (b), the Secretary shall notify the Inspector General of the Department in writing stating the reasons for such exercise. Within 30 days after receipt of any such notice. Deadline, the Inspector General shall transmit a copy of such notice and a written response thereto that includes—

(1) a statement as to whether the Inspector General agrees or disagrees with such exercise; and

(2) the reasons for any disagreement, to the President of the Senate and the Speaker of the House of Representatives and to appropriate committees and subcommittees of Congress. (d) ACCESS TO INFORMATION BY CONGRESS.—The exercise of

authority by the Secretary described in subsection (b) should not be construed as limiting the right of Congress or any committee of Congress to access any information it seeks.

(e) OVERSIGHT RESPONSIBILITY.—The Inspector General Act of 1978 (5 U.S.C. App.) is amended by inserting after section 81 the following:

116 STAT. 2222 PUBLIC LAW 107-296—NOV. 25, 2002

"SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF HOMELAND SECURITY

"SEC. 8 J . Notwithstanding any other provision of law, in car- rying out the duties and responsibilities specified in this Act, the Inspector General of the Department of Homeland Security shall have oversight responsibility for the internal investigations per- formed by the Office of Internal Affairs of the United States Cus- toms Service and the Office of Inspections of the United States Secret Service. The head of each such office shall promptly report to the Inspector General the significant activities being carried out by such office.". SEC. 812. LAW ENFORCEMENT POWERS OF INSPECTOR GENERAL

AGENTS.

(a) IN GENERAL.—Section 6 of the Inspector General Act of 1978 (5 U.S.C. App.) is amended by adding at the end the following:

"(e)(1) In addition to the authority otherwise provided by this Act, each Inspector General appointed under section 3, any Assist- ant Inspector General for Investigations under such an Inspector General, and any special agent supervised by such an Assistant Inspector General may be authorized by the Attorney General to—

"(A) carry a firearm while engaged in official duties as authorized under this Act or other statute, or as expressly authorized by the Attorney General;

"(B) make an arrest without a warrant while engaged in official duties as authorized under this Act or other statute, or as expressly authorized by the Attorney General, for any offense against the United States committed in the presence of such Inspector General, Assistant Inspector General, or agent, or for any felony cognizable under the laws of the United States if such Inspector General, Assistant Inspector General, or agent has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; and

"(C) seek and execute warrants for arrest, search of a premises, or seizure of evidence issued under the authority of the United States upon probable cause to believe that a violation has been committed. "(2) The Attorney General may authorize exercise of the powers

under this subsection only upon an initial determination that— "(A) the affected Office of Inspector General is significantly

hampered in the performance of responsibilities established by this Act as a result of the lack of such powers;

"(B) available assistance from other law enforcement agen- cies is insufficient to meet the need for such powers; and

"(C) adequate internal safeguards and management proce- dures exist to ensure proper exercise of such powers. "(3) The Inspector General offices of the Department of Com-

merce, Department of Education, Department of Energy, Depart- ment of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Depart- ment of the Interior, Department of Justice, Department of Labor, Department of State, Department of Transportation, Department of the Treasury, Department of Veterans Affairs, Agency for Inter- national Development, Environmental Protection Agency, Federal Deposit Insurance Corporation, Federal Emergency Management Agency, General Services Administration, National Aeronautics and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2223

Space Administration, Nuclear Regulatory Commission, Office of Personnel Management, Railroad Retirement Board, Small Business Administration, Social Security Administration, and the Tennessee Valley Authority are exempt from the requirement of paragraph (2) of an initial determination of eligibility by the Attorney General.

"(4) The Attorney General shall promulgate, and revise as appropriate, guidelines which shall govern the exercise of the law enforcement powers established under paragraph (1).

"(5)(A) Powers authorized for an Office of Inspector General under paragraph (1) may be rescinded or suspended upon a deter- mination by the Attorney General that any of the requirements under paragraph (2) is no longer satisfied or that the exercise of authorized powers by that Office of Inspector General has not complied with the guidelines promulgated by the Attorney General under paragraph (4).

"(B) Powers authorized to be exercised by any individual under paragraph (1) may be rescinded or suspended with respect to that individual upon a determination by the Attorney General that such individual has not complied with guidelines promulgated by the Attorney General under paragraph (4).

"(6) A determination by the Attorney General under paragraph (2) or (5) shall not be reviewable in or by any court.

"(7) To ensure the proper exercise of the law enforcement Deadline, powers authorized by this subsection, the Offices of Inspector Gen- eral described under paragraph (3) shall, not later than 180 days after the date of enactment of this subsection, collectively enter into a memorandum of understanding to establish an external review process for ensuring that adequate internal safeguards and management procedures continue to exist within each Office and within any Office that later receives an authorization under para- graph (2). The review process shall be established in consultation with the Attorney General, who shall be provided with a copy of the memorandum of understanding that establishes the review process. Under the review process, the exercise of the law enforce- ment powers by each Office of Inspector General shall be reviewed periodically by another Office of Inspector General or by a com- mittee of Inspectors General. The results of each review shall be communicated in writing to the applicable Inspector General and to the Attorney General.

"(8) No provision of this subsection shall limit the exercise of law enforcement powers established under any other statutory authority, including United States Marshals Service special deputa- tion.".

(b) PROMULGATION OF INITIAL GUIDELINES.— (1) DEFINITION.—In this subsection, the term "memoranda

of understanding" means the agreements between the Depart- ment of Justice and the Inspector General offices described under section 6(e)(3) of the Inspector General Act of 1978 (5 U.S.C. App.) (as added by subsection (a) of this section) that—

(A) are in effect on the date of enactment of this Act; and

(B) authorize such offices to exercise authority that is the same or similar to the authority under section 6(e)(1) of such Act. (2) IN GENERAL.—Not later than 180 days after the date Deadline.

of enactment of this Act, the Attorney General shall promulgate

5 u s e app. 6 note.

116 STAT. 2224 PUBLIC LAW 107-296—NOV. 25, 2002

guidelines under section 6(e)(4) of the Inspector General Act of 1978 (5 U.S.C. App.) (as added by subsection (a) of this section) applicable to the Inspector General offices described under section 6(e)(3) of that Act.

(3) MINIMUM REQUIREMENTS.—The guidelines promulgated under this subsection shall include, at a minimum, the oper- ational and training requirements in the memoranda of under- standing.

(4) No LAPSE OF AUTHORITY.—The memoranda of under- standing in effect on the date of enactment of this Act shall remain in effect until the guidelines promulgated under this subsection take effect.

5 use app. 6 (c) EFFECTIVE DATES.— note. (1) IN GENERAL.—Subsection (a) shall take effect 180 days

after the date of enactment of this Act. (2) INITIAL GUIDELINES.—Subsection (b) shall take effect

on the date of enactment of this Act.

Subtitle C—United States Secret Service

6 use 381 SEC. 821. FUNCTIONS TRANSFERRED.

In accordance with title XV, there shall be transferred to the Secretary the functions, personnel, assets, and obligations of the United States Secret Service, which shall be maintained as a dis- tinct entity within the Department, including the functions of the Secretary of the Treasury relating thereto.

Subtitle D—^Acquisitions

6 use 391. SEC. 831. RESEARCH AND DEVELOPMENTPROJECTS.

(a) AUTHORITY.—During the 5-year period following the effective date of this Act, the Secretary may carry out a pilot program under which the Secretary may exercise the following authorities:

(1) IN GENERAL.—When the Secretary carries out basic, applied, and advanced research and development projects, including the expenditure of funds for such projects, the Sec- retary may exercise the same authority (subject to the same limitations and conditions) with respect to such research and projects as the Secretary of Defense may exercise under section 2371 of title 10, United States Code (except for subsections (b) and (f)), after making a determination that the use of a contract, grant, or cooperative agreement for such project is not feasible or appropriate. The annual report required under subsection (b) of this section, as applied to the Secretary by this paragraph, shall be submitted to the President of the Senate and the Speaker of the House of Representatives.

(2) PROTOTYPE PROJECTS.—The Secretary may, under the authority of paragraph (1), carry out prototype projects in accordance with the requirements and conditions provided for carrying out prototype projects under section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160). In applying the authorities of that section 845, subsection (c) of that section shall apply with respect to proto- type projects under this paragraph, and the Secretary shall

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2225

perform the functions of the Secretary of Defense under sub- section (d) thereof (b) REPORT.—Not later than 2 years after the effective date Deadline,

of this Act, and annually thereafter, the Comptroller General shall report to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate on—

(1) whether use of the authorities described in subsection (a) attracts nontraditional Government contractors and results in the acquisition of needed technologies; and

(2) if such authorities were to be made permanent, whether additional safeguards are needed with respect to the use of such authorities. (c) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERV-

ICES.—The Secretary may— (1) procure the temporary or intermittent services of

experts or consultants (or organizations thereof) in accordance with section 3109(b) of title 5, United States Code; and

(2) whenever necessary due to an urgent homeland security need, procure temporary (not to exceed 1 year) or intermittent personal services, including the services of experts or consult- ants (or organizations thereof), without regard to the pay limita- tions of such section 3109. (d) DEFINITION OF NONTRADITIONAL GOVERNMENT CON-

TRACTOR.—In this section, the term "nontraditional Government contractor" has the same meaning as the term "nontraditional defense contractor" as defined in section 845(e) of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103- 160; 10 U.S.C. 2371 note).

SEC. 832. PERSONAL SERVICES. 6 USC 392.

The Secretary— (1) may procure the temporary or intermittent services

of experts or consultants (or organizations thereof) in accord- ance with section 3109 of title 5, United States Code; and

(2) may, whenever necessary due to an urgent homeland security need, procure temporary (not to exceed 1 year) or intermittent personal services, including the services of experts or consultants (or organizations thereof), without regard to the pay limitations of such section 3109.

SEC. 833. SPECIAL STREAMLINED ACQUISITION AUTHORITY. 6 USC 393.

(a) AUTHORITY.— (1) IN GENERAL.—The Secretary may use the authorities

set forth in this section with respect to any procurement made during the period beginning on the effective date of this Act and ending September 30, 2007, if the Secretary determines in writing that the mission of the Department (as described in section 101) would be seriously impaired without the use of such authorities.

(2) DELEGATION.—The authority to make the determination described in paragraph (1) may not be delegated by the Sec- retary to an officer of the Department who is not appointed by the President with the advice and consent of the Senate.

(3) NOTIFICATION.—Not later than the date that is 7 days Deadline, after the date of any determination under paragraph (1), the Secretary shall submit to the Committee on Government

116 STAT. 2226 PUBLIC LAW 107-296—NOV. 25, 2002

Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate—

(A) notification of such determination; and (B) the justification for such determination.

(b) INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS.—

(1) IN GENERAL.—The Secretary may designate certain employees of the Department to make procurements described in subsection (a) for which in the administration of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) the amount specified in subsections (c), (d), and (f) of such section 32 shall be deemed to be $7,500.

(2) NUMBER OF EMPLOYEES.—The number of employees designated under paragraph (1) shall be—

(A) fewer than the number of employees of the Depart- ment who are authorized to make purchases without obtaining competitive quotations, pursuant to section 32(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 428(c));

(B) sufficient to ensure the geographic dispersal of the availability of the use of the procurement authority under such paragraph at locations reasonably considered to be potential terrorist targets; and

(C) sufficiently limited to allow for the careful moni- toring of employees designated under such paragraph. (3) REVIEW.—Procurements made under the authority of

this subsection shall be subject to review by a designated super- visor on not less than a monthly basis. The supervisor respon- sible for the review shall be responsible for no more than 7 employees making procurements under this subsection. (c) SIMPLIFIED ACQUISITION PROCEDURES.—

(1) IN GENERAL.—With respect to a procurement described in subsection (a), the Secretary may deem the simplified acquisition threshold referred to in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)) to be—

(A) in the case of a contract to be awarded and per- formed, or purchase to be made, within the United States, $200,000; and

(B) in the case of a contract to be awarded and per- formed, or purchase to be made, outside of the United States, $300,000. (2) CONFORMING AMENDMENTS.—Section 18(c)(1) of the

41 use 416. Office of Federal Procurement Policy Act is amended— (A) by striking "or" at the end of subparagraph (F); (B) by striking the period at the end of subparagraph

(G) and inserting "; or"; and (C) by adding at the end the following:

"(H) the procurement is by the Secretary of Homeland Security pursuant to the special procedures provided in section 833(c) of the Homeland Security Act of 2002.". (d) APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORI-

TIES.— (1) IN GENERAL.—With respect to a procurement described

in subsection (a), the Secretary may deem any item or service to be a commercial item for the purpose of Federal procurement laws.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2227

(2) LIMITATION.—The $5,000,000 limitation provided in sec- tion 31(a)(2) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)) and section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B)) shall be deemed to be $7,500,000 for purposes of property or services under the authority of this subsection.

(3) CERTAIN AUTHORITY.—^Authority under a provision of law referred to in paragraph (2) that expires under section 4202(e) of the Clinger-Cohen Act of 1996 (divisions D and E of Public Law 104-106; 10 U.S.C. 2304 note) shall, notwith- standing such section, continue to apply for a procurement described in subsection (a). (e) REPORT.—Not later than 180 days after the end of fiscal Deadline,

year 2005, the Comptroller General shall submit to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives a report on the use of the authorities provided in this section. The report shall contain the following:

(1) An assessment of the extent to which property and services acquired using authorities provided under this section contributed to the capacity of the Federal workforce to facilitate the mission of the Department as described in section 101.

(2) An assessment of the extent to which prices for property and services acquired using authorities provided under this section reflected the best value.

(3) The number of employees designated by each executive agency under subsection (b)(1).

(4) An assessment of the extent to which the Department has implemented subsections (b)(2) and (b)(3) to monitor the use of procurement authority by employees designated under subsection (b)(1).

(5) Any recommendations of the Comptroller General for improving the effectiveness of the implementation of the provi- sions of this section.

SEC. 834. UNSOLICITED PROPOSALS. 6 USC 394.

(a) REGULATIONS REQUIRED.—Within 1 year of the date of enact- Deadline, ment of this Act, the Federal Acquisition Regulation shall be revised to include regulations with regard to unsolicited proposals.

(b) CONTENT OF REGULATIONS.—The regulations prescribed under subsection (a) shall require that before initiating a com- prehensive evaluation, an agency contact point shall consider, among other factors, that the proposal—

(1) is not submitted in response to a previously published agency requirement; and

(2) contains technical and cost information for evaluation and overall scientific, technical or socioeconomic merit, or cost- related or price-related factors.

SEC. 835. PROHIBITION ON CONTRACTS WITH CORPORATE EXPATRI- 6 USC 395. ATES.

(a) IN GENERAL.—The Secretary may not enter into any contract with a foreign incorporated entity which is treated as an inverted domestic corporation under subsection (b).

(b) INVERTED DOMESTIC CORPORATION.—For purposes of this section, a foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—

116 STAT. 2228 PUBLIC LAW 107-296—NOV. 25, 2002

(1) the entity completes after the date of enactment of this Act, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic cor- poration or substantially all of the properties constituting a trade or business of a domestic partnership;

(2) after the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—

(A) in the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or

(B) in the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and (3) the expanded affiliated group which after the acquisition

includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group. (c) DEFINITIONS AND SPECIAL RULES.—

(1) RULES FOR APPLICATION OF SUBSECTION (b).—In applying subsection (b) for purposes of subsection (a), the following rules shall apply:

(A) CERTAIN STOCK DISREGARDED.—There shall not be taken into account in determining ownership for purposes of subsection (b)(2)—

(i) stock held by members of the expanded affili- ated group which includes the foreign incorporated entity; or

(ii) stock of such entity which is sold in a public offering related to the acquisition described in sub- section (b)(1). (B) PLAN DEEMED IN CERTAIN CASES.—If a foreign incor-

porated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partner- ship during the 4-year period beginning on the date which is after the date of enactment of this Act and which is 2 years before the ownership requirements of subsection (b)(2) are met, such actions shall be treated as pursuant to a plan.

(C) CERTAIN TRANSFERS DISREGARDED.—The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.

(D) SPECIAL RULE FOR RELATED PARTNERSHIPS.—For purposes of applying subsection (b) to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as I partnership.

(E) TREATMENT OF CERTAIN RIGHTS.—The Secretary shall prescribe such regulations as may be necessary to—

(i) treat warrants, options, contracts to acquire stock, convertible debt instruments, and other similar interests as stock; and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2229

(ii) treat stock as not stock. (2) EXPANDED AFFILIATED GROUP.—The term "expanded

affiliated group" means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting "more than 50 percent" for "at least 80 percent" each place it appears.

(3) FOREIGN INCORPORATED ENTITY.—The term "foreign incorporated entity" means any entity which is, or but for subsection (b) would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.

(4) OTHER DEFINITIONS.—The terms "person", "domestic", and "foreign" have the meanings given such terms by para- graphs (1), (4), and (5) of section 7701(a) of the Internal Rev- enue Code of 1986, respectively. (d) WAIVERS.—The Secretary shall waive subsection (a) with

respect to any specific contract if the Secretary determines that the waiver is required in the interest of homeland security, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.

Subtitle E—Human Resources Management

SEC. 841. ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT 6USC411. SYSTEM.

(a) AUTHORITY.— (1) SENSE OF CONGRESS.—It is the sense of Congress that—

(A) it is extremely important that employees of the Department be allowed to participate in a meaningful way in the creation of any human resources management system affecting them;

(B) such employees have the most direct knowledge of the demands of their jobs and have a direct interest in ensuring that their human resources management system is conducive to achieving optimal operational effi- ciencies;

(C) the 21st century human resources management system envisioned for the Department should be one that benefits from the input of its employees; and

(D) this collaborative effort will help secure our home- land. (2) IN GENERAL.—Subpart I of part III of title 5, United

States Code, is amended by adding at the end the following:

"CHAPTER 97—DEPARTMENT OF HOMELAND SECURITY

"Sec. "9701. Establishment of human resources management system.

116 STAT. 2230 PUBLIC LAW 107-296—NOV. 25, 2002

"§9701. Establishment of human resources management system

"(a) IN GENERAL.—Notwithstanding any other provision of this part, the Secretary of Homeland Security may, in regulations pre- scribed jointly with the Director of the Office of Personnel Manage- ment, establish, and from time to time adjust, a human resources management system for some or all of the organizational units of the Department of Homeland Security.

"(b) SYSTEM REQUIREMENTS.—Any system established under subsection (a) shall— ^

"(1) be flexible; "(2) be contemporary; "(3) not waive, modify, or otherwise affect—

"(A) the public employment principles of merit and fitness set forth in section 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other nonmerit considerations, equal pay for equal work, and protection of employees against reprisal for whistleblowing;

"(B) any provision of section 2302, relating to prohib- ited personnel practices;

"(C)(i) any provision of law referred to in section 2302(b)(1), (8), and (9); or

"(ii) any provision of law implementing any provision of law referred to in section 2302(b)(1), (8), and (9) by—

"(I) providing for equal employment opportunity through affirmative action; or

"(II) providing any right or remedy available to any employee or applicant for employment in the civil service; "(D) any other provision of this part (as described

in subsection (c)); or "(E) any rule or regulation prescribed under any provi-

sion of law referred to in any of the preceding subpara- graphs of this paragraph; "(4) ensure that employees may organize, bargain collec-

tively, and participate through labor organizations of their own choosing in decisions which afiect them, subject to any exclusion from coverage or limitation on negotiability established by law; and

"(5) permit the use of a category rating system for evalu- ating applicants for positions in the competitive service. "(c) OTHER NONWAIVABLE PROVISIONS.—The other provisions

of this part as referred to in subsection (b)(3)(D), are (to the extent not otherwise specified in subparagraph (A), (B), (C), or (D) of subsection (b)(3))—

"(1) subparts A, B, E, G, and H of this part; and "(2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and

this chapter. "(d) LIMITATIONS RELATING TO PAY.—Nothing in this section

shall constitute authority— "(1) to modify the pay of any employee who serves in—

"(A) an Executive Schedule position under subchapter II of chapter 53 of title 5, United States Code; or

"(B) a position for which the rate of basic pay is fixed in statute by reference to a section or level under sub- chapter II of chapter 53 of such title 5;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2231

"(2) to fix pay for any employee or position at an annual rate greater than the maximum amount of cash compensation allowable under section 5307 of such title 5 in a year; or

"(3) to exempt any employee from the application of such section 5307. "(e) PROVISIONS TO ENSURE COLLABORATION WITH EMPLOYEE

REPRESENTATIVES.— "(1) IN GENERAL.—In order to ensure that the authority

of this section is exercised in collaboration with, and in a manner that ensures the participation of employee representa- tives in the planning, development, and implementation of any human resources management system or adjustments to such system under this section, the Secretary of Homeland Security and the Director of the Office of Personnel Management shall provide for the following:

"(A) NOTICE OF PROPOSAL.—The Secretary and the Director shall, with respect to any proposed system or adjustment—

"(i) provide to each employee representative rep- resenting any employees who might be affected, a writ- ten description of the proposed system or adjustment (including the reasons why it is considered necessary);

"(ii) give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposal; and

"(iii) give any recommendations received from any such representatives under clause (ii) full and fair consideration in deciding whether or how to proceed with the proposal. "(B) PRE-IMPLEMENTATION CONGRESSIONAL NOTIFICA-

TION, CONSULTATION, AND MEDIATION.—Following receipt of recommendations, if any, from employee representatives with respect to a proposal described in subparagraph (A), the Secretary and the Director shall accept such modifica- tions to the proposal in response to the recommendations as they determine advisable and shall, with respect to any parts of the proposal as to which they have not accepted the recommendations—

"(i) notify Congress of those parts of the proposal, together with the recommendations of employee rep- resentatives;

"(ii) meet and confer for not less than 30 calendar days with any representatives who have made rec- ommendations, in order to attempt to reach agreement on whether or how to proceed with those parts of the proposal; and

"(iii) at the Secretary's option, or if requested by a majority of the employee representatives who have made recommendations, use the services of the Federal Mediation and Conciliation Service during such meet and confer period to facilitate the process of attempting to reach agreement. "(C) IMPLEMENTATION.—

"(i) Any part of the proposal as to which the rep- resentatives do not make a recommendation, or as to which their recommendations are accepted by the

116 STAT. 2232 PUBLIC LAW 107-296—NOV. 25, 2002

Secretary and the Director, may be implemented imme- diately.

"(ii) With respect to any parts of the proposal as to which recommendations have been made but not accepted by the Secretary and the Director, at any time after 30 calendar days have elapsed since the initiation of the congressional notification, con- sultation, and mediation procedures set forth in subparagraph (B), if the Secretary determines, in the Secretary's sole and unreviewable discretion, that fur- ther consultation and mediation is unlikely to produce agreement, the Secretary may implement any or all of such parts, including any modifications made in response to the recommendations as the Secretary determines advisable.

"(iii) The Secretary shall promptly notify Congress of the implementation of any part of the proposal and shall furnish with such notice an explanation of the proposal, any changes made to the proposal as a result of recommendations from employee representatives, and of the reasons why implementation is appropriate under this subparagraph. "(D) CONTINUING COLLABORATION.—If a proposal

described in subparagraph (A) is implemented, the Sec- retary and the Director shall—

"(i) develop a method for each employee represent- ative to participate in any further planning or develop- ment which might become necessary; and

"(ii) give each employee representative adequate access to information to make that participation productive.

"(2) PROCEDURES.—^Any procedures necessary to carry out this subsection shall be established by the Secretary and the Director jointly as internal rules of departmental procedure which shall not be subject to review. Such procedures shall include measures to ensure—

"(A) in the case of employees within a unit with respect to which a labor organization is accorded exclusive recogni- tion, representation by individuals designated or from among individuals nominated by such organization;

"(B) in the case of any employees who are not within such a unit, representation by any appropriate organization which represents a substantial percentage of those employees or, if none, in such other manner as may be appropriate, consistent with the purposes of the subsection;

"(C) the fair and expeditious handling of the consulta- tion and mediation process described in subparagraph (B) of paragraph (1), including procedures by which, if the number of employee representatives providing rec- ommendations exceeds 5, such representatives select a com- mittee or other unified representative with which the Sec- retary and Director may meet and confer; and

"(D) the selection of representatives in a manner con- sistent with the relative number of employees represented by the organizations or other representatives involved.

"(f) PROVISIONS RELATING TO APPEJ^LATE PROCEDURES.— "(1) SENSE OF CONGRESS.—It is the sense of Congress that—

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2233

"(A) employees of the Department are entitled to fair treatment in any appeals that they bring in decisions relating to their employment; and

"(B) in prescribing regulations for any such appeals procedures, the Secretary and the Director of the Office of Personnel Management—

"(i) should ensure that employees of the Depart- ment are afforded the protections of due process; and

"(ii) toward that end, should be required to consult with the Merit Systems Protection Board before issuing any such regulations.

"(2) REQUIREMENTS.—^Any regulations under this section which relate to any matters within the purview of chapter 77—

"(A) shall be issued only after consultation with the Merit Systems Protection Board;

"(B) shall ensure the availability of procedures which shall—

"(i) be consistent with requirements of due process; and

"(ii) provide, to the maximum extent practicable, for the expeditious handling of any matters involving the Department; and "(C) shall modify procedures under chapter 77 only

insofar as such modifications are designed to further the fair, efficient, and expeditious resolution of matters involving the employees of the Department.

"(g) PROVISIONS RELATING TO LABOR-MANAGEMENT RELA- TIONS.—Nothing in this section shall be construed as conferring authority on the Secretary of Homeland Security to modify any of the provisions of section 842 of the Homeland Security Act of 2002.

"(h) SUNSET PROVISION.—Effective 5 years after the conclusion of the transition period defined under section 1501 of the Homeland Security Act of 2002, all authority to issue regulations under this section (including regulations which would modify, supersede, or terminate any regulations previously issued under this section) shall cease to be available.".

(3) TECHNICAL AND CONFORMING AMENDMENT.—The table of chapters for part III of title 5, United States Code, is amended by adding at the end of the following:

"97. Department of Homeland Security 9701". (b) EFFECT ON PERSONNEL.—

(1) NONSEPARATION OR NONREDUCTION IN GRADE OR COM- PENSATION OF FULL-TIME PERSONNEL AND PART-TIME PERSONNEL HOLDING PERMANENT POSITIONS.—Except as otherwise provided in this Act, the transfer under this Act of full-time personnel (except special Government employees) and part-time personnel holding permanent positions shall not cause any such employee to be separated or reduced in grade or compensation for 1 year after the date of transfer to the Department.

(2) POSITIONS COMPENSATED IN ACCORDANCE WITH EXECU- TIVE SCHEDULE.—^Any person who, on the day preceding such person's date of transfer pursuant to this Act, held a position compensated in accordance with the Executive Schedule pre- scribed in chapter 53 of title 5, United States Code, and who, without a break in service, is appointed in the Department

99-194 0-03-21 :QL3Part3

116 STAT. 2234 PUBLIC LAW 107-296—NOV. 25, 2002

to a position having duties comparable to the duties performed immediately preceding such appointment shall continue to be compensated in such new position at not less than the rate provided for such position, for the duration of the service of such person in such new position.

(3) COORDINATION RULE.—^Any exercise of authority under chapter 97 of title 5, United States Code (as amended by subsection (a)), including under any system established under such chapter, shall be in conformance with the requirements of this subsection.

6 use 412. SEC. 842. LABOR-MANAGEMENT RELATIONS. (a) LIMITATION ON EXCLUSIONARY AUTHORITY.—

(1) IN GENERAL.—No agency or subdivision of an agency which is transferred to the Department pursuant to this Act shall be excluded from the coverage of chapter 71 of title 5, United States Code, as a result of any order issued under section 7103(b)(1) of such title 5 after June 18, 2002, unless—

(A) the mission and responsibilities of the agency (or subdivision) materially change; and

(B) a majority of the employees within such agency (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation. (2) EXCLUSIONS ALLOWABLE.—^Nothing in paragraph (1)

shall affect the effectiveness of any order to the extent that such order excludes any portion of an agency or subdivision of an agency as to which—

(A) recognition as an appropriate unit has never been conferred for purposes of chapter 71 of such title 5; or

(B) any such recognition has been revoked or otherwise terminated as a result of a determination under subsection (b)(1).

(b) PROVISIONS RELATING TO BARGAINING UNITS.— (1) LIMITATION RELATING TO APPROPRIATE UNITS.—Each

unit which is recognized as an appropriate unit for purposes of chapter 71 of title 5, United States Code, as of the day before the effective date of this Act (and any subdivision of any such unit) shall, if such unit (or subdivision) is transferred to the Department pursuant to this Act, continue to be so recognized for such purposes, unless—

(A) the mission and responsibilities of such unit (or subdivision) materially change; and

(B) a majority of the employees within such unit (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation. (2) LIMITATION RELATING TO POSITIONS OR EMPLOYEES.—

No position or employee within a unit (or subdivision of a unit) as to which continued recognition is given in accordance with paragraph (1) shall be excluded from such unit (or subdivi- sion), for purposes of chapter 71 of such title 5, unless the primary job duty of such position or employee—

(A) materially changes; and (B) consists of intelligence, counterintelligence, or

investigative work directly related to terrorism investiga- tion.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2235

In the case of any positions within a unit (or subdivision) which are first estabUshed on or after the effective date of this Act and any employees first appointed on or after such date, the preceding sentence shall be applied disregarding subparagraph (A). (c) WAIVER.—If the President determines that the application

of subsections (a), (b), and (d) would have a substantial adverse impact on the ability of the Department to protect homeland secu- rity, the President may waive the application of such subsections 10 days after the President has submitted to Congress a written explanation of the reasons for such determination.

(d) COORDINATION RULE.—No other provision of this Act or of any amendment made by this Act may be construed or applied in a manner so as to limit, supersede, or otherwise affect the provisions of this section, except to the extent that it does so by specific reference to this section.

(e) RULE OF CONSTRUCTION.—Nothing in section 9701(e) of title 5, United States Code, shall be considered to apply with respect to any agency or subdivision of any agency, which is excluded from the coverage of chapter 71 of title 5, United States Code, by virtue of an order issued in accordance with section 7103(b) of such title and the preceding provisions of this section (as applicable), or to any employees of any such agency or subdivision or to any individual or entity representing any such employees or any representatives thereof.

Subtitle F—Federal Emergency Procurement Flexibility

SEC. 851. DEFINITION. 6 USC 421.

In this subtitle, the term "executive agency" has the meaning given that term under section 4(1) of the Office of Federal Procure- ment Policy Act (41 U.S.C. 403(1)).

SEC. 852. PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY 6 USC 422. FROM TERRORISM OR NUCLEAR, BIOLOGICAL, CHEM- ICAL, OR RADIOLOGICAL ATTACK.

The authorities provided in this subtitle apply to any procure- Applicability, ment of property or services by or for an executive agency that, as determined by the head of the executive agency, are to be used to facilitate defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack, but only if a solicitation of offers for the procurement is issued during the 1- year period beginning on the date of the enactment of this Act.

SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR 6 USC 423. PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR PEACEKEEPING OPERATIONS OR CONTINGENCY OPER- ATIONS.

(a) TEMPORARY THRESHOLD AMOUNTS.—For a procurement referred to in section 852 that is carried out in support of a humani- tarian or peacekeeping operation or a contingency operation, the simplified acquisition threshold definitions shall be applied as if the amount determined under the exception provided for such an operation in those definitions were—

116 STAT. 2236 PUBLIC LAW 107-296—NOV. 25, 2002

(1) in the case of a contract to be awarded and performed, or purchase to be made, inside the United States, $200,000; or

(2) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States, $300,000. (b) SIMPLIFIED ACQUISITION THRESHOLD DEFINITIONS.—In this

section, the term "simplified acquisition threshold definitions" means the following:

(1) Section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)).

(2) Section 309(d) of the Federal Property and Administra- tive Services Act of 1949 (41 U.S.C. 259(d)).

(3) Section 2302(7) of title 10, United States Code. Applicability. (c) SMALL BUSINESS RESERVE.—^For a procurement carried out

pursuant to subsection (a), section 15(j) of the Small Business Act (15 U.S.C. 644(j)) shall be applied as if the maximum anticipated value identified therein is equal to the amounts referred to in subsection (a).

6 u s e 424. SEC. 854. INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS.

In the administration of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) with respect to a procure- ment referred to in section 852, the amount specified in subsections (c), (d), and (f) of such section 32 shall be deemed to be $7,500.

6 u s e 425. SEC. 855. APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORI- TIES TO CERTAIN PROCUREMENTS.

(a) AUTHORITY.— (1) IN GENERAL.—The head of an executive agency may

apply the provisions of law listed in paragraph (2) to a procure- ment referred to in section 852 without regard to whether the property or services are commercial items.

(2) COMMERCIAL ITEM LAWS.—^The provisions of law referred to in paragraph (1) are as follows:

(A) Sections 31 and 34 of the Office of Federal Procure- ment Policy Act (41 U.S.C. 427, 430).

(B) Section 2304(g) of title 10, United States Code. (C) Section 303(g) of the Federal Property and Adminis-

trative Services Act of 1949 (41 U.S.C. 253(g)). (b) INAPPLICABILITY OF LIMITATION ON U S E OF SIMPLIFIED

ACQUISITION PROCEDURES.— (1) IN GENERAL.—The $5,000,000 limitation provided in

section 31(a)(2) of the OfHce of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of title 10, United States Code, and section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B)) shall not apply to purchases of property or services to which any of the provisions of law referred to in subsection (a) are applied under the authority of this section.

(2) 0MB GUIDANCE.—The Director of the Office of Manage- ment and Budget shall issue guidance and procedures for the use of simplified acquisition procedures for a purchase of prop- erty or services in excess of $5,000,000 under the authority of this section. (c) CONTINUATION OF AUTHORITY FOR SIMPLIFIED PURCHASE

PROCEDURES.—^Authority under a provision of law referred to in subsection (a)(2) that expires under section 4202(e) of the dinger-

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2237

Cohen Act of 1996 (divisions D and E of Public Law 104-106; 10 U.S.C. 2304 note) shall, notwithstanding such section, continue to apply for use by the head of an executive agency as provided in subsections (a) and (b).

SEC. 856. USE OF STREAMLINED PROCEDURES. 6 USC 426.

(a) REQUIRED USE.—The head of an executive agency shall, when appropriate, use streamlined acquisition authorities and procedures authorized by law for a procurement referred to in section 852, including authorities and procedures that are provided under the following provisions of law:

(1) FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949.—In title III of the Federal Property and Administrative Services Act of 1949:

(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 303 (41 U.S.C. 253), relating to use of procedures other than competitive procedures under certain cir- cumstances (subject to subsection (e) of such section).

(B) Section 303J (41 U.S.C. 253j), relating to orders under task and delivery order contracts. (2) TITLE lo, UNITED STATES CODE.—In chapter 137 of title

10, United States Code: (A) Paragraphs (1), (2), (6), and (7) of subsection (c)

of section 2304, relating to use of procedures other than competitive procedures under certain circumstances (sub- ject to subsection (e) of such section).

(B) Section 2304c, relating to orders under task and delivery order contracts. (3) OFFICE OF FEDERAL PROCUREMENT POLICY ACT.—Para-

graphs (1)(B), (1)(D), and (2) of section 18(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 416(c)), relating to inapplicability of a requirement for procurement notice. (b) WAIVER OF CERTAIN SMALL BUSINESS THRESHOLD REQUIRE-

MENTS.—Subclause (II) of section 8(a)(l)(D)(i) of the Small Business Act (15 U.S.C. 637(a)(l)(D)(i)) and clause (ii) of section 31(b)(2)(A) of such Act (15 U.S.C. 657a(b)(2)(A)) shall not apply in the use of streamlined acquisition authorities and procedures referred to in paragraphs (1)(A) and (2)(A) of subsection (a) for a procurement referred to in section 852.

SEC. 857. R E V I E W AND REPORT BY COMPTROLLER GENERAL. 6 USC 427.

(a) REQUIREMENTS.—Not later than March 31, 2004, the Comp- Deadline, troller General shall—

(1) complete a review of the extent to which procurements of property and services have been made in accordance with this subtitle; and

(2) submit a report on the results of the review to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representa- tives. (b) CONTENT OF REPORT.—The report under subsection (a)(2)

shall include the following matters: (1) ASSESSMENT.—The Comptroller General's assessment

of— (A) the extent to which property and services procured

in accordance with this title have contributed to the capacity of the workforce of Federal Government employees

116 STAT. 2238 PUBLIC LAW 107-296—NOV. 25, 2002

6 u s e 428.

Support Anti- terrorism by Fostering Effective Technologies Act of 2002. 6 u s e 101 note.

6 u s e 441.

within each executive agency to carry out the mission of the executive agency; and

(B) the extent to which Federal Government employees have been trained on the use of technology. (2) REeOMMENDATlONS.—^Any recommendations of the

Comptroller General resulting from the assessment described in paragraph (1). (c) CONSULTATION.—In preparing for the review under sub-

section (a)(1), the Comptroller shall consult with the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives on the specific issues and topics to be reviewed. The extent of coverage needed in areas such as technology integration, employee training, and human capital management, as well as the data requirements of the study, shall be included as part of the consultation. SEC. 858. IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL

MARKETPLACE.

The head of each executive agency shall conduct market research on an ongoing basis to identify effectively the capabilities, including the capabilities of small businesses and new entrants into Federal contracting, that are available in the marketplace for meeting the requirements of the executive agency in furtherance of defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack. The head of the executive agency shall, to the maximum extent practicable, take advantage of commercially available market research methods, including use of commercial databases, to carry out the research.

Subtitle G—Support Anti-terrorism by Fos- tering Effective Technologies Act of 2002

SEC. 861. SHORT TITLE.

This subtitle may be cited as the "Support Anti-terrorism by Fostering Effective Technologies Act of 2002" or the "SAFETY Act". SEC. 862. ADMINISTRATION.

(a) IN GENERAL.—The Secretary shall be responsible for the administration of this subtitle.

(b) DESIGNATION OF QUALIFIED ANTI-TERRORISM TECH- NOLOGIES.—The Secretary may designate anti-terrorism tech- nologies that qualify for protection under the system of risk manage- ment set forth in this subtitle in accordance with criteria that shall include, but not be limited to, the following:

(1) Prior United States Government use or demonstrated substantial utility and effectiveness.

(2) Availability of the technology for immediate deployment in public and private settings.

(3) Existence of extraordinarily large or extraordinarily unquantifiable potential third party liability risk exposure to the Seller or other provider of such anti-terrorism technology.

(4) Substantial likelihood that such anti-terrorism tech- nology will not be deployed unless protections under the system of risk management provided under this subtitle are extended.

(5) Magnitude of risk exposure to the public if such anti- terrorism technology is not deployed.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2239

(6) Evaluation of all scientific studies that can be feasibly conducted in order to assess the capability of the technology to substantially reduce risks of harm.

(7) Anti-terrorism technology that would be effective in facilitating the defense against acts of terrorism, including tech- nologies that prevent, defeat or respond to such acts. (c) REGULATIONS.—The Secretary may issue such regulations,

after notice and comment in accordance with section 553 of title 5, United States Code, as may be necessary to carry out this subtitle.

SEC. 863. LITIGATION MANAGEMENT. 6 USC 442.

(a) FEDERAL CAUSE OF ACTION.— (1) IN GENERAL.—There shall exist a Federal cause of action

for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. The substantive law for decision in any such action shall be derived from the law, including choice of law principles, of the State in which such acts of terrorism occurred, unless such law is inconsistent with or preempted by Federal law. Such Federal cause of action shall be brought only for claims for injuries that are proximately caused by sellers that provide qualified anti-terrorism technology to Federal and non-Federal government customers.

(2) JURISDICTION.—Such appropriate district court of the United States shall have original and exclusive jurisdiction over all actions for any claim for loss of property, personal injury, or death arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. (b) SPECIAL RULES.—In an action brought under this section

for damages the following provisions apply: (1) PUNITIVE DAMAGES.—No punitive damages intended to

punish or deter, exemplary damages, or other damages not intended to compensate a plaintiff for actual losses may be awarded, nor shall any party be liable for interest prior to the judgment.

(2) NONECONOMIC DAMAGES.— (A) IN GENERAL.—Noneconomic damages may be

awarded against a defendant only in an amount directly proportional to the percentage of responsibility of such defendant for the harm to the plaintiff, and no plaintiff may recover noneconomic damages unless the plaintiff suf- fered physical harm.

(B) DEFINITION.—For purposes of subparagraph (A), the term "noneconomic damages" means damages for losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, hedonic damages, injury to reputation, and any other nonpecuniary losses.

116 STAT. 2240 PUBLIC LAW 107-296—NOV. 25, 2002

(c) COLLATERAL SOURCES.—^Any recovery by a plaintiff in an action under this section shall be reduced by the amount of collat- eral source compensation, if any, that the plaintiff has received or is entitled to receive as a result of such acts of terrorism that result or may result in loss to the Seller.

(d) GOVERNMENT CONTRACTOR DEFENSE.— (1) IN GENERAL.—Should a product liability or other lawsuit

be filed for claims arising out of, relating to, or resulting from ati act of terrorism when qualified anti-terrorism technologies approved by the Secretary, as provided in paragraphs (2) and (3) of this subsection, have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller, there shall be a rebuttable presumption that the government contractor defense applies in such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary during the course of the Secretary's consideration of such tech-

Applicability, nology under this subsection. This presumption of the govern- ment contractor defense shall apply regardless of whether the claim against the Seller arises from a sale of the product to Federal Government or non-Federal Government customers.

(2) EXCLUSIVE RESPONSIBILITY.—^The Secretary will be exclusively responsible for the review and approval of anti- terrorism technology for purposes of establishing a government contractor defense in any product liability lawsuit for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies approved by the Sec- retary, as provided in this paragraph and paragraph (3), have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. Upon the Seller's submission to the Secretary for approval of anti-terrorism technology, the Secretary will con- duct a comprehensive review of the design of such technology and determine whether it will perform as intended, conforms to the Seller's specifications, and is safe for use as intended. The Seller will conduct safety and hazard analyses on such technology and will supply the Secretary with all such informa- tion.

(3) CERTIFICATE.—For anti-terrorism technology reviewed and approved by the Secretary, the Secretary will issue a certificate of conformance to the Seller and place the anti- terrorism technology on an Approved Product List for Homeland Security. (e) EXCLUSION.—Nothing in this section shall in any way limit

the ability of any person to seek any form of recovery from any person, government, or other entity that—

(1) attempts to commit, knowingly participates in, aids and abets, or commits any act of terrorism, or any criminal act related to or resulting from such act of terrorism; or

(2) participates in a conspiracy to commit any such act of terrorism or any such criminal act.

6 u s e 443. SEC. 864. RISK MANAGEMENT.

(a) IN GENERAL.—

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2241

(1) LIABILITY INSURANCE REQUIRED.—Any person or entity that sells or otherwise provides a qualified anti-terrorism tech- nology to Federal and non-Federal Government customers ("Seller") shall obtain liability insurance of such types and in such amounts as shall be required in accordance with this section and certified by the Secretary to satisfy otherwise compensable third-party claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act.

(2) MAXIMUM AMOUNT.—For the total claims related to 1 such act of terrorism, the Seller is not required to obtain liability insurance of more than the maximum amount of liability insurance reasonably available from private sources on the world market at prices and terms that will not unreason- ably distort the sales price of Seller's anti-terrorism tech- nologies.

(3) SCOPE OF COVERAGE.—Liability insurance obtained pursuant to this subsection shall, in addition to the Seller, protect the following, to the extent of their potential liability for involvement in the manufacture, qualification, sale, use, or operation of qualified anti-terrorism technologies deployed in defense against or response or recovery from an act of terrorism:

(A) Contractors, subcontractors, suppliers, vendors and customers of the Seller.

(B) Contractors, subcontractors, suppliers, and vendors of the customer. (4) THIRD PARTY CLAIMS.—Such liability insurance under

this section shall provide coverage against third party claims arising out of, relating to, or resulting from the sale or use of anti-terrorism technologies. (b) RECIPROCAL WAIVER OF CLAIMS.—The Seller shall enter

into a reciprocal waiver of claims with its contractors, subcontrac- tors, suppliers, vendors and customers, and contractors and sub- contractors of the customers, involved in the manufacture, sale, use or operation of qualified anti-terrorism technologies, under which each party to the waiver agrees to be responsible for losses, including business interruption losses, that it sustains, or for losses sustained by its own employees resulting from an activity resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act.

(c) EXTENT OF LIABILITY.—Notwithstanding any other provision of law, liability for all claims against a Seller arising out of, relating to, or resulting from an act of terrorism when qualified anti-ter- rorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller, whether for compensatory or punitive damages or for contribution or indemnity, shall not be in an amount greater than the limits of liability insurance coverage required to be maintained by the Seller under this section.

SEC. 865. DEFINITIONS. 6 USC 444.

For purposes of this subtitle, the following definitions apply: Applicability. (1) QUALIFIED ANTI-TERRORISM TECHNOLOGY.—For purposes

of this subtitle, the term "qualified anti-terrorism technology"

116 STAT. 2242 PUBLIC LAW 107-296—NOV. 25, 2002

means any product, equipment, service (including support serv- ices), device, or technology (including information technology) designed, developed, modified, or procured for the specific pur- pose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause, that is designated as such by the Secretary.

(2) ACT OF TERRORISM.—(A) The term "act of terrorism" means any act that the Secretary determines meets the require- ments under subparagraph (B), as such requirements are fur- ther defined and specified by the Secretary.

(B) REQUIREMENTS.—An act meets the requirements of this subparagraphif the act—

(i) is unlawful; (ii) causes harm to a person, property, or entity, in

the United States, or in the case of a domestic United States air carrier or a United States-flag vessel (or a vessel baised principally in the United States on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), in or outside the United States; and

(iii) uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States. (3) INSURANCE CARRIER.—The term "insurance carrier"

means any corporation, association, society, order, firm, com- pany, mutual, partnership, individual aggregation of. individ- uals, or any other legal entity that provides commercial prop- erty and casualty insurance. Such term includes any affiliates of a commercial insurance carrier.

(4) LIABILITY INSURANCE.— (A) IN GENERAL.—^The term "liability insurance" means

insurance for legal liabilities incurred by the insured resulting from—

(i) loss of or damage to property of others; (ii) ensuing loss of income or extra expense

incurred because of loss of or damage to property of others;

(iii) bodily injury (including) to persons other than the insured or its employees; or

(iv) loss resulting from debt or default of another. (5) Loss.—^The term "loss" means death, bodily injury, or

loss of or damage to property, including business interruption loss.

(6) NON-FEDERAL GOVERNMENT CUSTOMERS.—The term "non-Federal Government customers" means any customer of a Seller that is not an agency or instrumentality of the United States Government with authority under Public Law 85-804 to provide for indemnification under certain circumstances for third-party claims against its contractors, including but not limited to State and local authorities and commercial entities.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2243

Subtitle H—Miscellaneous Provisions

SEC. 871. ADVISORY COMMITTEES. 6 USC 451.

(a) IN GENERAL.—The Secretary may establish, appoint mem- bers of, and use the services of, advisory committees, as the Sec- retary may deem necessary. An advisory committee established under this section may be exempted by the Secretary from Public Law 92-463, but the Secretary shall publish notice in the Federal Register announcing the establishment of such a committee and identifying its purpose and membership. Notwithstanding the pre- ceding sentence, members of an advisory committee that is exempted by the Secretary under the preceding sentence who are special Government employees (as that term is defined in section 202 of title 18, United States Code) shall be eligible for certifications under subsection (b)(3) of section 208 of title 18, United States Code, for official actions taken as a member of such advisory com- mittee.

(b) TERMINATION.—^Any advisory committee established by the Secretary shall terminate 2 years after the date of its establishment, unless the Secretary makes a written determination to extend the advisory committee to a specified date, which shall not be more than 2 years after the date on which such determination is made. The Secretary may make any number of subsequent extensions consistent with this subsection.

SEC. 872. REORGANIZATION. 6 USC 452.

(a) REORGANIZATION.—The Secretary may allocate or reallocate functions among the officers of the Department, and may establish, consolidate, alter, or discontinue organizational units within the Department, but only—

(1) pursuant to section 1502(b); or (2) after the expiration of 60 days after providing notice

of such action to the appropriate congressional committees, which shall include an explanation of the rationale for the action. (b) LIMITATIONS.—

(1) IN GENERAL.—^Authority under subsection (a)(1) does not extend to the abolition of any agency, entity, organizational •' unit, program, or function established or required to be main- tained by this Act.

(2) ABOLITIONS.—^Authority under subsection (a)(2) does not extend to the abolition of any agency, entity, organizational unit, program, or function established or required to be main- tained by statute-

SEC. 873. USE OF APPROPRIATED FUNDS. 6 USC 453.

(a) DISPOSAL OF PROPERTY.— (1) STRICT COMPLIANCE.—If specifically authorized to dis-

pose of real property in this or any other Act, the Secretary shall exercise this authority in strict compliance with section 204 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 485).

(2) DEPOSIT OF PROCEEDS.—The Secretary shall deposit the proceeds of any exercise of property disposal authority into the miscellaneous receipts of the Treasury in accordance with section 3302(b) of title 31, United States Code.

116 STAT. 2244 PUBLIC LAW 107-296—NOV. 25, 2002

(b) GIFTS.—Gifts or donations of services or property of or for the Department may not be accepted, used, or disposed of unless specifically permitted in advance in an appropriations Act and only under the conditions and for the purposes specified in such appropriations Act.

President. (c) BUDGET REQUEST.—^Under section 1105 of title 31, United States Code, the President shall submit to Congress a detailed budget request for the Department for fiscal year 2004, and for each subsequent fiscal year.

6 u s e 454. SEC. 874. FUTURE YEAR HOMELAND SECURITY PROGRAM.

(a) IN GENERAL.—Each budget request submitted to Congress for the Department under section 1105 of title 31, United States Code, shall, at or about the same time, be accompanied by a Future Years Homeland Security Program.

(b) CONTENTS.—The Future Years Homeland Security Program under subsection (a) shall be structured, and include the same type of information and level of detail, as the Future Years Defense Program submitted to Congress by the Department of Defense under section 221 of title 10, United States Code.

Deadline. (c) EFFECTIVE DATE.—^This section shall take effect with respect to the preparation and submission of the fiscal year 2005 budget request for the Department and for any subsequent fiscal year, except that the first Future Years Homeland Security Program shall be submitted not later than 90 days after the Department's fiscal year 2005 budget request is submitted to Congress.

6 use 455. SEC. 875. MISCELLANEOUS AUTHORITIES. President. * (a) SEAL.—The Department shall have a seal, whose design

is subject to the approval of the President. (b) PARTICIPATION OF MEMBERS OF THE ARMED FORCES.—^With

respect to the Department, the Secretary shall have the same authorities that the Secretary of Transportation has with respect to the Department of Transportation under section 324 of title 49, United States Code.

(c) REDELEGATION OF FUNCTIONS.—Unless otherwise provided in the delegation or by law, any function delegated under this Act may be redelegated to any subordinate.

6 u s e 456. SEC. 876. MILITARY ACTIVITIES.

Nothing in this Act shall confer upon the Secretary any authority to engage in warfighting, the military defense of the United States, or other military activities, nor shall anything in this Act limit the existing authority of the Department of Defense or the Armed Forces to engage in warfighting, the military defense of the United States, or other military activities.

6 use 457. SEC. 877. REGULATORY AUTHORITY AND PREEMPTION. (a) REGULATORY AUTHORITY.—Except as otherwise provided in

sections 306(c), 862(c), and 1706(b), this Act vests no new regulatory authority in the Secretary or any other Federal official, and trans- fers to the Secretary or another Federal official only such regulatory authority as exists on the date of enactment of this Act within any agency, program, or function transferred to the Department pursuant to this Act, or that on such date of enactment is exercised by another official of the executive branch with respect to such agency, program, or function. Any such transferred authority may not be exercised by an official from whom it is transferred upon

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2245

transfer of such agency, program, or function to the Secretary or another Federal official pursuant to this Act. This Act may not be construed as altering or diminishing the regulatory authority of any other executive agency, except to the extent that this Act transfers such authority from the agency.

(b) PREEMPTION OF STATE OR LOCAL LAW.—Except as otherwise provided in this Act, this Act preempts no State or local law, except that any authority to preempt State or local law vested in any Federal agency or official transferred to the Department pursuant to this Act shall be transferred to the Department effective on the date of the transfer to the Department of that Federal agency or official. SEC. 878. COUNTERNARCOTICS OFFICER. 6 USC 458.

The Secretary shall appoint a senior official in the Department to assume primary responsibility for coordinating policy and oper- ations within the Department and between the Department and other Federal departments and agencies with respect to interdicting the entry of illegal drugs into the United States, and tracking and severing connections between illegal drug trafficking and ter- rorism. Such official shall—

(1) ensure the adequacy of resources within the Department for illicit drug interdiction; and

(2) serve as the United States Interdiction Coordinator for the Director of National Drug Control Policy.

SEC. 879. OFFICE OF INTERNATIONAL AFFAIRS. 6 USC 459.

(a) ESTABLISHMENT.—There is established within the Office of the Secretary an Office of International Affairs. The Office shall be headed by a Director, who shall be a senior official appointed by the Secretary.

(b) DUTIES OF THE DIRECTOR.—The Director shall have the following duties:

(1) To promote information and education exchange with nations friendly to the United States in order to promote sharing of best practices and technologies relating to homeland security. Such exchange shall include the following:

(A) Exchange of information on research and develop- ment on homeland security technologies.

(B) Joint training exercises of first responders. (C) Exchange of expertise on terrorism prevention,

response, and crisis management. (2) To identify areas for homeland security information

and training exchange where the United States has a dem- onstrated weakness and another friendly nation or nations have a demonstrated expertise.

(3) To plan and undertake international conferences, exchange programs, and training activities.

(4) To manage international activities within the Depart- ment in coordination with other Federal officials with responsi- bility for counter-terrorism matters.

SEC. 880. PROHIBITION OF THE TERRORISM INFORMATION AND 6 USC 460. PREVENTION SYSTEM.

Any and all activities of the Federal Government to implement the proposed component program of the Citizen Corps known as Operation TIPS (Terrorism Information and Prevention System) are hereby prohibited.

116 STAT. 2246 PUBLIC LAW 107-296—NOV. 25, 2002

Deadline. SEC. 881. REVIEW OF PAY AND BENEFIT PLANS.

Notwithstanding any other provision of this Act, the Secretary shall, in consultation with the Director of the Office of Personnel Management, review the pay and benefit plans of each agency whose functions are transferred under this Act to the Department and, within 90 days after the date of enactment, submit a plan to the President of the Senate and the Speaker of the House of Representatives and the appropriate committees and subcommit- tees of Congress, for ensuring, to the maximum extent practicable, the elimination of disparities in pay and benefits throughout the Department, especially among law enforcement personnel, that are inconsistent with merit system principles set forth in section 2301 of title 5, United States Code.

6 u s e 462. SEC. 882. OFFICE FOR NATIONAL CAPITAL REGION COORDINATION.

(a) ESTABLISHMENT.— (1) IN GENERAL.—There is established within the Office

of the Secretary the Office of National Capital Region Coordina- tion, to oversee and coordinate Federal programs for and rela- tionships with State, local, and regional authorities in the National Capital Region, as defined under section 2674(f)(2) of title 10, United States Code.

(2) DIRECTOR.—The Office established under paragraph (1) shall be headed by a Director, who shall be appointed by the Secretary.

(3) COOPERATION.—The Secretary shall cooperate with the Mayor of the District of Columbia, the Governors of Maryland and Virginia, and other State, local, and regional officers in the National Capital Region to integrate the District of Columbia, Maryland, and Virginia into the planning, coordina- tion, and execution of the activities of the Federal Government for the enhancement of domestic preparedness against the con- sequences of terrorist attacks. (b) RESPONSIBILITIES.—The Office established under subsection

(a)( 1) shall— (1) coordinate the activities of the Department relating

to the National Capital Region, including cooperation with the Office for State and Local Government Coordination;

(2) assess, and advocate for, the resources needed by State, local, and regional authorities in the National Capital Region to implement efforts to secure the homeland;

(3) provide State, local, and regional authorities in the National Capital Region with regular information, research, and technical support to assist the efforts of State, local, and regional authorities in the National Capital Region in securing the homeland;

(4) develop a process for receiving meaningful input from State, local, and regional authorities and the private sector in the National Capital Region to assist in the development of the homeland security plans and activities of the Federal Government;

(5) coordinate with Federal agencies in the National Capital Region on terrorism preparedness, to ensure adequate planning, information sharing, training, and execution of the Federal role in domestic preparedness activities;

(6) coordinate with Federal, State, local, and regional agen- cies, and the private sector in the National Capital Region

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2247

on terrorism preparedness to ensure adequate planning, information sharing, training, and execution of domestic preparedness activities among these agencies and entities; and

(7) serve as a liaison between the Federal Government and State, local, and regional authorities, and private sector entities in the National Capital Region to facilitate access to Federal grants and other programs. (c) ANNUAL REPORT.—The Office established under subsection

(a) shall submit an annual report to Congress that includes— (1) the identification of the resources required to fully

implement homeland security efforts in the National Capital Region;

(2) an assessment of the progress made by the National Capital Region in implementing homeland security efforts; and

(3) recommendations to Congress regarding the additional resources needed to fully implement homeland security efforts in the National Capital Region. (d) LIMITATION.—Nothing contained in this section shall be

construed as limiting the power of State and local governments. SEC. 883. REQUIREMENT TO COMPLY WITH LAWS PROTECTING EQUAL 6 USC 463.

EMPLOYMENT OPPORTUNITY AND PROVIDING WHISTLE- BLOWER PROTECTIONS.

Nothing in this Act shall be construed as exempting the Depart- ment from requirements applicable with respect to executive agencies—

(1) to provide equal employment protection for employees of the Department (including pursuant to the provisions in section 2302(b)(1) of title 5, United States Code, and the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (Public Law 107-174)); or

(2) to provide whistleblower protections for employees of the Department (including pursuant to the provisions in section 2302(b)(8) and (9) of such title and the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002).

SEC. 884. FEDERAL LAW ENFORCEMENT TRAINING CENTER. 6 USC 464.

(a) IN GENERAL.—The transfer of an authority or an agency under this Act to the Department of Homeland Security does not affect training agreements already entered into with the Federal Law Enforcement Training Center with respect to the training of personnel to carry out that authority or the duties of that trans- ferred agency.

(b) CONTINUITY OF OPERATIONS.—All activities of the Federal Law Enforcement Training Center transferred to the Department of Homeland Security under this Act shall continue to be carried out at the locations such activities were carried out before such transfer. SEC. 885. JOINT INTERAGENCY TASK FORCE. 6 USC 465.

(a) ESTABLISHMENT.—The Secretary may establish and operate a permanent Joint Interagency Homeland Security Task Force com- posed of representatives from military and civilian agencies of the United States Government for the purposes of anticipating terrorist threats against the United States and taking appropriate actions to prevent harm to the United States.

(b) STRUCTURE.—It is the sense of Congress that the Secretary should model the Joint Interagency Homeland Security Task Force

116 STAT. 2248 PUBLIC LAW 107-296—NOV. 25, 2002

on the approach taken by the Joint Interagency Task Forces for drug interdiction at Key West, Florida and Alameda, California, to the maximum extent feasible and appropriate.

6 u s e 466. SEC. 886. SENSE OF CONGRESS REAFFIRMING THE CONTINUED IMPOR- TANCE AND APPLICABILITY OF THE POSSE COMITATUS ACT.

(a) FINDINGS.—Congress finds the following: (1) Section 1385 of title 18, United States Code (commonly

known as the "Posse Comitatus Act"), prohibits the use of the Armed Forces as a posse comitatus to execute the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.

(2) Enacted in 1878, the Posse Comitatus Act was expressly intended to prevent United States Marshals, on their own initiative, from calling on the Army for assistance in enforcing Federal law.

(3) The Posse Comitatus Act has served the Nation well in limiting the use of the Armed Forces to enforce the law.

(4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President's obliga- tions under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.

(5) Existing laws, including chapter 15 of title 10, United States Code (commonly known as the "Insurrection Act"), and the Robert T. Stafford Disaster Relief and Emergency Assist- ance Act (42 U.S.C. 5121 et seq.), grant the President broad powers that may be invoked in the event of domestic emer- gencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order. (b) SENSE OF CONGRESS.—Congress reaffirms the continued

importance of section 1385 of title 18, United States Code, and it is the sense of Congress that nothing in this Act should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws.

6 u s e 467. SEC. 887. COORDINATION WITH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES UNDER THE PUBLIC HEALTH SERVICE ACT.

(a) IN GENERAL.—^The annual Federal response plan developed by the Department shall be consistent with section 319 of the Public Health Service Act (42 U.S.C. 247d).

(b) DISCLOSURES AMONG RELEVANT AGENCIES.— (1) IN GENERAL.—^Full disclosure among relevant agencies

shall be made in accordance with this subsection. (2) PUBLIC HEALTH EMERGENCY.—During the period in

which the Secretary of Health and Human Services has declared the existence of a public health emergency under section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)), the Secretary of Health and Human Services shall keep relevant agencies, including the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation, fully and currently informed.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2249

(3) POTENTIAL PUBLIC HEALTH EMERGENCY.—In cases involving, or potentially involving, a public health emergency, but in which no determination of an emergency by the Secretary of Health and Human Services under section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)), has been made, all relevant agencies, including the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation, shall keep the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention fully and currently informed.

SEC. 888. PRESERVING COAST GUARD MISSION PERFORMANCE. 6 USC 468.

(a) DEFINITIONS.—In this section: (1) NON-HOMELAND SECURITY MISSIONS.—The term "non-

homeland security missions" means the following missions of the Coast Guard:

(A) Marine safety. (B) Search and rescue. (C) Aids to navigation. (D) Living marine resources (fisheries law enforce-

ment). (E) Marine environmental protection. (F) Ice operations.

(2) HOMELAND SECURITY MISSIONS.—^The term "homeland security missions" means the following missions of the Coast Guard:

(A) Ports, waterways and coastal security. (B) Drug interdiction. (C) Migrant interdiction. (D) Defense readiness. (E) Other law enforcement.

(b) TRANSFER.—There are transferred to the Department the authorities, functions, personnel, and assets of the Coast Guard, which shall be maintained as a distinct entity within the Depart- ment, including the authorities and functions of the Secretary of Transportation relating thereto.

(c) MAINTENANCE OF STATUS OF FUNCTIONS AND ASSETS.—^Not- withstanding any other provision of this Act, the authorities, func- tions, and capabilities of the Coast Guard to perform its missions shall be maintained intact and without significant reduction after the transfer of the Coast Guard to the Department, except as specified in subsequent Acts.

(d) CERTAIN TRANSFERS PROHIBITED.—No mission, function, or asset (including for purposes of this subsection any ship, aircraft, or helicopter) of the Coast Guard may be diverted to the principal and continuing use of any other organization, unit, or entity of the Department, except for details or assignments that do not reduce the Coast Guard's capability to perform its missions.

(e) CHANGES TO MISSIONS.— (1) PROHIBITION.—The Secretary may not substantially or

significantly reduce the missions of the Coast Guard or the Coast Guard's capability to perform those missions, except as specified in subsequent Acts.

(2) WAIVER.—The Secretary may waive the restrictions under paragraph (1) for a period of not to exceed 90 days upon a declaration and certification by the Secretary to Con- gress that a clear, compelling, and immediate need exists for

116 STAT. 2250 PUBLIC LAW 107-296—NOV. 25, 2002

such a waiver. A certification under this paragraph shall include a detailed justification for the declaration and certifi- cation, including the reasons and specific information that dem- onstrate that the Nation and the Coast Guard cannot respond effectively if the restrictions under paragraph (1) are not waived. (f) ANNUAL REVIEW.—

(1) IN GENERAL.—The Inspector General of the Department shall conduct an annual review that shall assess thoroughly the performance by the Coast Guard of all missions of the Coast Guard (including non-homeland security missions and homeland security missions) with a particular emphasis on examining the non-homeland security missions.

(2) REPORT.—The report under this paragraph shall be submitted to—

(A) the Committee on Governmental Affairs of the Senate;

(B) the Committee on Government Reform of the House of Representatives;

(C) the Committees on Appropriations of the Senate and the House of Representatives;

(D) the Committee on Commerce, Science, and Transportation of the Senate; and

(E) the Committee on Transportation and Infrastruc- ture of the House of Representatives.

(g) DIRECT REPORTING TO SECRETARY.—^Upon the transfer of the Coast Guard to the Department, the Commandant shall report directly to the Secretary without being required to report through any other official of the Department.

(h) OPERATION AS A SERVICE IN THE NAVY.—None of the condi- tions and restrictions in this section shall apply when the Coast Guard operates as a service in the Navy under section 3 of title 14, United States Code.

(i) REPORT ON ACCELERATING THE INTEGRATED DEEPWATER Deadline. SYSTEM.—Not later than 90 days after the date of enactment of

this Act, the Secretary, in consultation with the Commandant of the Coast Guard, shall submit a report to the Committee on Com- merce, Science, and Transportation of the Senate, the Committee on Transportation and Infrastructure of the House of Representa- tives, and the Committees on Appropriations of the Senate and the House of Representatives that—

(1) analyzes the feasibility of accelerating the rate of procurement in the Coast Guard's Integrated Deepwater System from 20 years to 10 years;

(2) includes an estimate of additional resources required; (3) describes the resulting increased capabilities; (4) outlines any increases in the Coast Guard's homeland

security readiness; (5) describes any increases in operational efficiencies; and (6) provides a revised asset phase-in time line.

SEC. 889. HOMELAND SECURITY FUNDING ANALYSIS IN PRESIDENTS BUDGET.

(a) IN GENERAL.—Section 1105(a) of title 31, United States Code, is amended by adding at the end the following:

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2251

"(33)(A)(i) a detailed, separate analysis, by budget function, by agency, and by initiative area (as determined by the adminis- tration) for the prior fiscal year, the current fiscal year, the fiscal years for which the budget is submitted, and the ensuing fiscal year identifying the amounts of gross and net appropria- tions or obligational authority and outlays that contribute to homeland security, with separate displays for mandatory and discretionary amounts, including—

"(I) summaries of the total amount of such appropria- tions or new obligational authority and outlays requested for homeland security;

"(11) an estimate of the current service levels of home- land security spending;

"(III) the most recent risk assessment and summary of homeland security needs in each initiative area (as deter- mined by the administration); and

"(IV) an estimate of user fees collected by the Federal Government on behalf of homeland security activities; "(ii) with respect to subclauses (I) through (IV) of clause

(i), amounts shall be provided by account for each program, project and activity; and

"(iii) an estimate of expenditures for homeland security activities by State and local governments and the private sector for the prior fiscal year and the current fiscal year.

"(B) In this paragraph, consistent with the Office of Management and Budget's June 2002 'Annual Report to Con- gress on Combatting Terrorism', the term 'homeland security' refers to those activities that detect, deter, protect against, and respond to terrorist attacks occurring within the United States and its territories.

"(C) In implementing this paragraph, including deter- mining what Federal activities or accounts constitute homeland security for purposes of budgetary classification, the Office of Management and Budget is directed to consult periodically, but at least annually, with the House and Senate Budget Committees, the House and Senate Appropriations Committees, and the Congressional Budget Office.". (b) REPEAL OF DUPLICATIVE REPORTS.—The following sections

are repealed: (1) Section 1051 of Public Law 105-85. 31USC 1113 (2) Section 1403 of Public Law 105-261. note

(c) EFFECTIVE DATE.—This section and the amendment made note by this section shall apply beginning with respect to the fiscal Applicability. year 2005 budget submission. 31 USC 1105

note. SEC. 890. AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION

ACT.

The Air Transportation Safety and System Stabilization Act (49 U.S.C. 40101 note) is amended—

(1) in section 408 by striking the last sentence of subsection (c); and

(2) in section 402 by striking paragraph (1) and inserting the following:

"(1) AIR CARRIER.—The term 'air carrier' means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation and includes employees

116 STAT. 2252 PUBLIC LAW 107-296—NOV. 25, 2002

Homeland Security Information Sharing Act. 6 u s e 481.

and agents (including persons engaged in the business of pro- viding air transportation security and their affiHates) of such citizen. For purposes of the preceding sentence, the term 'agent', as applied to persons engaged in the business of providing air transportation security, shall only include persons that have contracted directly with the Federal Aviation Administration on or after and commenced services no later than February 17, 2002, to provide such security, and had not been or are not debarred for any period within 6 months from that date.".

Subtitle I—^Information Sharing

SEC. 891. SHORT TITLE; FINDINGS; AND SENSE OF CONGRESS.

(a) SHORT TITLE.—This subtitle may be cited as the "Homeland Security Information Sharing Act".

(b) FINDINGS.—Congress finds the following: (1) The Federal Government is required by the Constitution

to provide for the common defense, which includes terrorist attack.

(2) The Federal Government relies on State and local per- sonnel to protect against terrorist attack.

(3) The Federal Government collects, creates, manages, and protects classified and sensitive but unclassified informa- tion to enhance homeland security.

(4) Some homeland security information is needed by the State and local personnel to prevent and prepare for terrorist attack.

(5) The needs of State and local personnel to have access to relevant homeland security information to combat terrorism must be reconciled with the need to preserve the protected status of such information and to protect the sources and methods used to acquire such information.

(6) Granting security clearances to certain State and local personnel is one way to facilitate the sharijlg of information regarding specific terrorist threats among Federal, State, and local levels of government.

(7) Methods exist to declassify, redact, or otherwise adapt classified information so it may be shared with State and local personnel without the need for granting additional security clearances.

(8) State and local personnel have capabilities and opportunities to gather information on suspicious activities and terrorist threats not possessed by Federal agencies.

(9) The Federal Government and State and local govern- ments and agencies in other jurisdictions may benefit from such information.

(10) Federal, State, and local governments and intelligence, law enforcement, and other emergency preparation and response agencies must act in partnership to maximize the benefits of information gathering and analysis to prevent and respond to terrorist attacks.

(11) Information systems, including the National Law Enforcement Telecommunications System and the Terrorist Threat Warning System, have been established for rapid sharing of classified and sensitive but unclassified information among Federal, State, and local entities.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2253

(12) Increased efforts to share homeland security informa- tion should avoid duplicating existing information systems, (c) SENSE OF CONGRESS.—It is the sense of Congress that

Federal, State, and local entities should share homeland security information to the maximum extent practicable, with special emphasis on hard-to-reach urban and rural communities.

SEC. 892. FACILITATING HOMELAND SECURITY INFORMATION President. SHARING PROCEDURES. 6 USC 482.

(a) PROCEDURES FOR DETERMINING EXTENT OF SHARING OF HOMELAND SECURITY INFORMATION.—

(1) The President shall prescribe and implement procedures under which relevant Federal agencies—

(A) share relevant and appropriate homeland security information with other Federal agencies, including the Department, and appropriate State and local personnel;

(B) identify and safeguard homeland security informa- tion that is sensitive but unclassified; and

(C) to the extent such information is in classified form, determine whether, how, and to what extent to remove classified information, as appropriate, and with which such personnel it may be shared after such information is removed. (2) The President shall ensure that such procedures apply

to all agencies of the Federal Government. (3) Such procedures shall not change the substantive

requirements for the classification and safeguarding of classi- fied information.

(4) Such procedures shall not change the requirements and authorities to protect sources and methods. (b) PROCEDURES FOR SHARING OF HOMELAND SECURITY

INFORMATION.— (1) Under procedures prescribed by the President, all appro-

priate agencies, including the intelligence community, shall, through information sharing systems, share homeland security information with Federal agencies and appropriate State and local personnel to the extent such information may be shared, as determined in accordance with subsection (a), together with assessments of the credibility of such information.

(2) Each information sharing system through which information is shared under paragraph (1) shall—

(A) have the capability to transmit unclassified or classified information, though the procedures and recipients for each capability may differ;

(B) have the capability to restrict delivery of informa- tion to specified subgroups by geographic location, t5T)e of organization, position of a recipient within an organiza- tion, or a recipient's need to know such information;

(C) be configured to allow the efficient and effective sharing of information; and

(D) be accessible to appropriate State and local per- sonnel. (3) The procedures prescribed under paragraph (1) shall

establish conditions on the use of information shared under paragraph (1)—

116 STAT. 2254 PUBLIC LAW 107-296—NOV. 25, 2002

(A) to limit the redissemination of such information to ensure that such information is not used for an unauthorized purpose;

(B) to ensure the security and confidentiahty of such information;

(C) to protect the constitutional and statutory rights of any individuals who are subjects of such information; and

(D) to provide data integrity through the timely removal and destruction of obsolete or erroneous names and information. (4) The procedures prescribed under paragraph (1) shall

ensure, to the greatest extent practicable, that the information sharing system through which information is shared under such paragraph include existing information sharing systems, including, but not limited to, the National Law Enforcement Telecommunications System, the Regional Information Sharing System, and the Terrorist Threat Warning System of the Fed- eral Bureau of Investigation.

(5) Each appropriate Federal agency, as determined by the President, shall have access to each information sharing system through which information is shared under paragraph

' (1), and shall therefore have access to all information, as appro- priate, shared under such paragraph.

(6) The procedures prescribed under paragraph (1) shall ensure that appropriate State and local personnel are author- ized to use such information sharing systems—

(A) to access information shared with such personnel; and

(B) to share, with others who have access to such information sharing systems, the homeland security information of their own jurisdictions, which shall be marked appropriately as pertaining to potential terrorist activity. ^ (7) Under procedures prescribed jointly by the Director

of Central Intelligence and the Attorney General, each appro- priate Federal agency, as determined by the President, shall review and assess the information shared under paragraph (6) and integrate such information with existing intelligence. (c) SHARING OF CLASSIFIED INFORMATION AND SENSITIVE BUT

UNCLASSIFIED INFORMATION WITH STATE AND LOCAL PERSONNEL.— (1) The President shall prescribe procedures under which

Federal agencies may, to the extent the President considers necessary, share with appropriate State and local personnel homeland security information that remains classified or other- wise protected after the determinations prescribed under the procedures set forth in subsection (a).

(2) It is the sense of Congress that such procedures may include 1 or more of the following means:

(A) Carrying out security clearance investigations with respect to appropriate State and local personnel.

(B) With respect to information that is sensitive but unclassified, entering into nondisclosure agreements with appropriate State and local personnel.

(C) Increased use of information-sharing partnerships that include appropriate State and local personnel, such as the Joint Terrorism Task Forces of the Federal Bureau

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2255

of Investigation, the Anti-Terrorism Task Forces of the Department of Justice, and regional Terrorism Early Warning Groups.

(d) RESPONSIBLE OFFICIALS.—For each affected Federal agency, the head of such agency shall designate an official to administer this Act with respect to such agency.

(e) FEDERAL CONTROL OF INFORMATION.—Under procedures pre- scribed under this section, information obtained by a State or local government from a Federal agency under this section shall remain under the control of the Federal agency, and a State or local law authorizing or requiring such a government to disclose informa- tion shall not apply to such information.

(f) DEFINITIONS.—^As used in this section: (1) The term "homeland security information" means any

information possessed by a Federal, State, or local agency that—

(A) relates to the threat of terrorist activity; (B) relates to the ability to prevent, interdict, or disrupt

terrorist activity; (C) would improve the identification or investigation

of a suspected terrorist or terrorist orgsmization; or (D) would improve the response to a terrorist act.

(2) The term "intelligence community" has the meaning given such term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

(3) The term "State and local personnel" means any of the following persons involved in prevention, preparation, or response for terrorist attack:

(A) State Governors, mayors, and other locally elected officials.

(B) State and local law enforcement personnel and firefighters.

(C) Public health and medical professionals. (D) Regional, State, and local emergency management

agency personnel, including State adjutant generals. (E) Other appropriate emergency response agency per-

sonnel. (F) Employees of private-sector entities that affect crit-

ical infrastructure, cyber, economic, or public health secu- rity, as designated by the Federal Government in proce- dures developed pursuant to this section. (4) The term "State" includes the District of Columbia

and any commonwealth, territory, or possession of the United States. (g) CONSTRUCTION.—Nothing in this Act shall be construed

as authorizing any department, bureau, agency, officer, or employee of the Federal Government to request, receive, or transmit to any other Government entity or personnel, or transmit to any State or local entity or personnel otherwise authorized by this Act to receive homeland security information, any information collected by the Federal Government solely for statistical purposes in viola- tion of any other provision of law relating to the confidentiality of such information.

SEC. 893. REPORT. 6 USC 483.

(a) REPORT REQUIRED.—Not later than 12 months after the Deadline. date of the enactment of this Act, the President shall submit to

116 STAT. 2256 PUBLIC LAW 107-296—NOV. 25, 2002

the congressional committees specified in subsection (b) a report on the implementation of section 892. The report shall include any recommendations for additional measures or appropriation requests, beyond the requirements of section 892, to increase the effectiveness of sharing of information between and among Federal, State, and local entities.

(b) SPECIFIED CONGRESSIONAL COMMITTEES.—The congressional committees referred to in subsection (a) are the following commit- tees:

(1) The Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representa- tives.

(2) The Select Committee on Intelligence and the Com- mittee on the Judiciary of the Senate.

6 u s e 484. SEC. 894. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be necessary to carry out section 892.

SEC. 895. AUTHORITY TO SHARE GRAND JURY INFORMATION.

ISUSCapp. Rule 6(e) of the Federal Rules of Criminal Procedure is amended—

(1) in paragraph (2), by inserting ", or of guidelines jointly issued by the Attorney General and Director of Central Intel- ligence pursuant to Rule 6," after "Rule 6"; and

(2) in paragraph (3)— (A) in subparagraph (A)(ii), by inserting "or of a foreign

government" after "(including personnel of a state of sub- division of a state";

(B) in subparagraph (C)(i)— (i) in subclause (I), by inserting before the semi-

colon the following: "or, upon a request by an attorney for the government, when sought by a foreign court or prosecutor for use in an official criminal investiga- tion";

(ii) in subclause (IV)— (I) by inserting "or foreign" after "may disclose

a violation of State"; (II) by inserting "or of a foreign government"

after "to an appropriate official of a State or sub- division of a State"; and

(III) by striking "or" at the end; (iii) by striking the period at the end of subclause

(V) and inserting "; or"; and (iv) by adding at the end the following: "(VI) when matters involve a threat of actual or

potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international ter- rorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, to any appropriate federal, state, local, or foreign government official for the purpose of preventing or responding to such a threat."; and (C) in subparagraph (C)(iii)—

.< (i) by striking "Federal";

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2257

(ii) by inserting "or clause (i)(VI)" after "clause (i)(V)"; and

(iii) by adding at the end the following: "Any state, local, or foreign official who receives information pursu- ant to clause (i)(VI) shall use that information only consistent with such guidelines as the Attorney Gen- eral and Director of Central Intelligence shall jointly issue.".

SEC. 896. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTER- CEPTION INFORMATION.

Section 2517 of title 18, United States Code, is amended by adding at the end the following:

"(7) Any investigative or law enforcement officer, or other Fed- eral official in carrying out official duties as such Federal official, who by any means authorized by this chapter, has obtained knowl- edge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents or deriva- tive evidence to a foreign investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure, and foreign investigative or law enforcement officers may use or disclose such contents or derivative evidence to the extent such use or disclosure is appropriate to the proper perform- ance of their official duties.

"(8) Any investigative or law enforcement officer, or other Fed- eral official in carrying out official duties as such Federal official, who by any means authorized by this chapter, has obtained knowl- edge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents or deriva- tive evidence to any appropriate Federal, State, local, or foreign government official to the extent that such contents or derivative evidence reveals a threat of actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, for the purpose of preventing or responding to such a threat. Any official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthor- ized disclosure of such information, and any State, local, or foreign official who receives information pursuant to this provision may use that information only consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.". SEC. 897. FOREIGN INTELLIGENCE INFORMATION.

(a) DISSEMINATION AUTHORIZED.—Section 203(d)(1) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Public Law 107-56; 50 U.S.C. 403-5d) is amended by adding at the end the following: "Consistent with the responsi- bility of the Director of Central Intelligence to protect intelligence sources and methods, and the responsibility of the Attorney General to protect sensitive law enforcement information, it shall be lawful for information revealing a threat of actual or potential attack

116 STAT. 2258 PUBLIC LAW 107-296—NOV. 25, 2002

or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or inter- national terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, obtained as part of a criminal investigation to be disclosed to any appropriate Federal, State, local, or foreign government official for the purpose of preventing or responding to such a threat. Any official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthor- ized disclosure of such information, and any State, local, or foreign official who receives information pursuant to this provision may use that information only consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.".

18 use 2517 (b) CONFORMING AMENDMENTS.—Section 203(c) of that Act is note. amended—

(1) by striking "section 2517(6)" and inserting "paragraphs (6) and (8) of section 2517 of title 18, United States Code,"; and

(2) by inserting "and (VI)" after "Rule 6(e)(3)(C)(i)(V)". SEC. 898. INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEIL-

LANCE.

Section 106(k)(l) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806) is amended by inserting after "law enforce- ment officers" the following: "or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)". SEC. 899. INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.

Section 305(k)(l) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1825) is amended by inserting after "law enforce- ment officers" the following: "or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)".

TITLE IX—NATIONAL HOMELAND SECURITY COUNCIL

Establishment. SEC. 901. NATIONAL HOMELAND SECURITY COUNCIL. There is established within the Executive Office of the President

a council to be known as the "Homeland Security Council" (in this title referred to as the "Council").

6 use 492. SEC. 902. FUNCTION. The function of the Council shall be to advise the President

on homeland security matters. 6 use 493. SEC. 903. MEMBERSHIP.

The members of the Council shall be the following: (1) The President.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2259

(2) The Vice President. (3) The Secretary of Homeland Security. (4) The Attorney General. (5) The Secretary of Defense. (6) Such other individuals as may be designated by the

President.

SEC. 904. OTHER FUNCTIONS AND ACTIVITIES. 6 USC 494.

For the purpose of more effectively coordinating the policies and functions of the United States Government relating to home- land security, the Council shall—

(1) assess the objectives, commitments, and risks of the United States in the interest of homeland security and to make resulting recommendations to the President;

(2) oversee and review homeland security policies of the Federal Government and to make resulting recommendations to the President; and

(3) perform such other functions as the President may direct.

SEC. 905. STAFF COMPOSITION.

The Council shall have a staff, the head of which shall be a civilian Executive Secretary, who shall be appointed by the Presi- dent. The President is authorized to fix the pay of the Executive Secretary at a rate not to exceed the rate of pay payable to the Executive Secretary of the National Security Council.

SEC. 906. RELATION TO THE NATIONAL SECURITY COUNCIL. 6 USC 496.

The President may convene joint meetings of the Homeland Security Council and the National Security Council with participa- tion by members of either Council or as the President may otherwise direct.

President. 6 USC 495.

TITLE X—INFORMATION SECURITY

SEC. 1001. INFORMATION SECURITY.

(a) SHORT TITLE.—This title may be cited as the "Federal Information Security Management Act of 2002".

(b) INFORMATION SECURITY.— (1) IN GENERAL.—Subchapter II of chapter 35 of title 44,

United States Code, is amended to read as follows:

Federal Information Security Management Act of 2002. 6 USC 101 note.

"SUBCHAPTER II—INFORMATION SECURITY

"§3531. Purposes "The purposes of this subchapter are to—

"(1) provide a comprehensive framework for ensuring the effectiveness of information security controls over information resources that support Federal operations and assets;

"(2) recognize the highly networked nature of the current Federal computing environment and provide effective governmentwide management and oversight of the related information security risks, including coordination of information security efforts throughout the civilian, national security, and law enforcement communities;

116 STAT. 2260 PUBLIC LAW 107-296—NOV. 25, 2002

"(3) provide for development and maintenance of minimum controls required to protect Federal information and informa- tion systems;

"(4) provide a mechanism for improved oversight of Federal agency information security programs;

"(5) acknowledge that commercially developed information security products offer advanced, dynamic, robust, and effective information security solutions, reflecting market solutions for the protection of critical information infrastructures important to the national defense and economic security of the nation that are designed, built, and operated by the private sector; and

"(6) recognize that the selection of specific technical hard- ware and software information security solutions should be left to individual agencies from among commercially developed products.".

"§3532. Definitions Applicability. "(a) IN GENERAL.—Except as provided under subsection (b),

the definitions under section 3502 shall apply to this subchapter. "(b) ADDITIONAL DEFINITIONS.—^As used in this subchapter—

"(1) the term 'information security' means protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction in order to provide—

"(A) integrity, which means guarding against improper information modification or destruction, and includes ensuring information nonrepudiation and authenticity;

"(B) confidentiality, which means preserving author- ized restrictions on access and disclosure, including means for protecting personal privacy and proprietary information;

"(C) availability, which means ensuring timely and reliable access to and use of information; and

"(D) authentication, which means utilizing digital credentials to assure the identity of users and validate their access; "(2) the term 'national security system' means any informa-

tion system (including any telecommunications system) used or operated by an agency or by a contractor of an agency, or other organization on behalf of an agency, the function, operation, or use of which—

"(A) involves intelligence activities; "(B) involves cryptologic activities related to national

security; "(C) involves command and control of military forces; "(D) involves equipment that is an integral part of

a weapon or weapons system; or "(E) is critical to the direct fulfillment of military or

intelligence missions provided that this definition does not apply to a system that is used for routine administrative and business applications (including payroll, finance, logis- tics, and personnel management applications); "(3) the term 'information technology' has the meaning

given that term in section 11101 of title 40; and "(4) the term 'information system' means any equipment

or interconnected system or subsystems of equipment that is used in the automatic acquisition, storage, manipulation.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2261

management, movement, control, display, switching, inter- change, transmission, or reception of data or information, and includes—

"(A) computers and computer networks; "(B) ancillary equipment; "(C) software, firmware, and related procedures; "(D) services, including support services; and "(E) related resources.

"§ 3533. Author i ty and functions of the Director "(a) The Director shall oversee agency information security

policies and practices, by— "(1) promulgating information security standards under

section 11331 of title 40; "(2) overseeing the implementation of policies, principles,

standards, and guidelines on information security; "(3) requiring agencies, consistent with the standards

promulgated under such section 11331 and the requirements of this subchapter, to identify and provide information security protections commensurate with the risk and magnitude of the harm resulting from the unauthorized access, use, disclosure, disruption, modification, or destruction of—

"(A) information collected or maintained by or on behalf of an agency; or

"(B) information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency; "(4) coordinating the development of standards and guide-

lines under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3) with agencies and offices operating or exercising control of national security systems (including the National Security Agency) to assure, to the max- imum extent feasible, that such standards and guidelines are complementary with standards and guidelines developed for national security systems;

"(5) overseeing agency compliance with the requirements of this subchapter, including through any authorized action under section 11303(b)(5) of title 40, to enforce accountability for compliance with such requirements;

"(6) reviewing at least annually, and approving or dis- approving, agency information security programs required under section 3534(b);

"(7) coordinating information security policies and proce- dures with related information resources management policies and procedures; and

"(8) reporting to Congress no later than March 1 of each Reports. year on agency compliance with the requirements of this sub- Deadline, chapter, including—

"(A) a summary of the findings of evaluations required by section 3535;

"(B) significant deficiencies in agency information secu- rity practices;

"(C) planned remedial action to address such defi- ciencies; and

"(D) a summary of, and the views of the Director on, the report prepared by the National Institute of Stand- ards and Technology under section 20(d)(9) of the National

116 STAT. 2262 PUBLIC LAW 107-296—NOV. 25, 2002

Institute of Standards and Technology Act (15 U.S.C. 278g- 3).

"(b) Except for the authorities described in paragraphs (4) and (7) of subsection (a), the authorities of the Director under this section shall not apply to national security systems.

"§ 3534. Federal agency responsibilities "(a) The head of each agency shall—

"(1) be responsible for— "(A) providing information security protections

commensurate with the risk and magnitude of the harm resulting from unauthorized access, use, disclosure, disrup- tion, modification, or destruction of—

"(i) information collected or maintained by or on behalf of the agency; and

"(ii) information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency; "(B) complying with the requirements of this sub-

chapter and related policies, procedures, standards, and guidelines, including—

"(i) information security standards promulgated by the Director under section 11331 of title 40; and

"(ii) information security standards and guidelines for national security systems issued in accordance with law and as directed by the President; and "(C) ensuring that information security management

processes are integrated with agency strategic and oper- ational planning processes; "(2) ensure that senior agency officials provide information

security for the information and information systems that sup- port the operations and assets under their control, including through—

"(A) assessing the risk and magnitude of the harm that could result from the unauthorized access, use, disclo- sure, disruption, modification, or destruction of such information or information systems;

"(B) determining the levels of information security appropriate to protect such information and information systems in accordance with standards promulgated under section 11331 of title 40 for information security classifica- tions and related requirements;

"(C) implementing policies and procedures to cost-effec- tively reduce risks to an acceptable level; and

"(D) periodically testing and evaluating information security controls and techniques to ensure that they are effectively implemented; "(3) delegate to the agency Chief Information Officer estab-

lished under section 3506 (or comparable official in an agency not covered by such section) the authority to ensure compliance with the requirements imposed on the agency under this sub- chapter, including—

"(A) designating a senior agency information security officer who shall—

"(i) carry out the Chief Information Officer's responsibilities under this section;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2263

"(ii) possess professional qualifications, including training and experience, required to administer the functions described under this section;

"(iii) have information security duties as that offi- cial's primary duty; and

"(iv) head an office with the mission and resources to assist in ensuring agency compliance with this sec- tion; "(B) developing and maintaining an agencywide

information security program as required by subsection (b);

"(C) developing and maintaining information security policies, procedures, and control techniques to address all applicable requirements, including those issued under sec- tion 3533 of this title, and section 11331 of title 40;

"(D) training and overseeing personnel with significant responsibilities for information security with respect to such responsibilities; and

"(E) assisting senior agency officials concerning their responsibilities under paragraph (2); "(4) ensure that the agency has trained personnel sufficient

to assist the agency in complying with the requirements of this subchapter and related policies, procedures, standards, and guidelines; and

"(5) ensure that the agency Chief Information Officer, in coordination with other senior ^ e n c y officials, reports annually to the agency head on the effectiveness of the agency informa- tion security program, including progress of remedial actions. "(b) Each agency shall develop, document, and implement an

agencywide information security program, approved by the Director under section 3533(a)(5), to provide information security for the information and information systems that support the operations and £issets of the agency, including those provided or managed by another agency, contractor, or other source, that includes—

"(1) periodic assessments of the risk and magnitude of the harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of informa- tion and information systems that support the operations and assets of the agency;

"(2) policies and procedures that— "(A) are based on the risk assessments required by

paragraph (1); "(B) cost-effectively reduce information security risks

to an acceptable level; "(C) ensure that information security is addressed

throughout the life cycle of each agency information system; and

"(D) ensure compliance with— "(i) the requirements of this subchapter; "(ii) policies and procedures as may be prescribed

by the Director, and information security standards promulgated under section 11331 of title 40;

"(iii) minimally acceptable system configuration requirements, as determined by the agency; and

"(iv) any other applicable requirements, including standards and guidelines for national security systems

116 STAT. 2264 PUBLIC LAW 107-296—NOV. 25, 2002

Reports.

issued in accordance with law and as directed by the President;

"(3) subordinate plans for providing adequate information security for networks, facilities, and systems or groups of information systems, as appropriate;

"(4) security awareness training to inform personnel, including contractors and other users of information systems that support the operations and assets of the agency, of—

"(A) information security risks associated with their activities; and

"(B) their responsibilities in complying with agency policies and procedures designed to reduce these risks; "(5) periodic testing and evaluation of the effectiveness

of information security policies, procedures, and practices, to be performed with a frequency depending on risk, but no less than annually, of which such testing—

"(A) shall include testing of management, operational, and technical controls of every information system identi- fied in the inventory required under section 3505(c); and

"(B) may include testing relied on in a evaluation under section 3535; "(6) a process for planning, implementing, evaluating, and

documenting remedial action to address any deficiencies in the information security policies, procedures, and practices of the agency;

"(7) procedures for detecting, reporting, and responding to security incidents, including—

"(A) mitigating risks associated with such incidents before substantial damage is done; and

"(B) notifying and consulting with, as appropriate— "(i) law enforcement agencies and relevant Offices

of Inspector General; "(ii) an office designated by the President for any

incident involving a national security system; and "(iii) any other agency or office, in accordance with

law or as directed by the President; and "(8) plans and procedures to ensure continuity of operations

for information systems that support the operations and assets of the agency. "(c) Each agency shall—

"(1) report annually to the Director, the Committees on Government Reform and Science of the House of Representa- tives, the Committees on Governmental Affairs and Commerce, Science, and Transportation of the Senate, the appropriate authorization and appropriations committees of Congress, and the Comptroller General on the adequacy and effectiveness of information security policies, procedures, and practices, and compliance with the requirements of this subchapter, including compliance with each requirement of subsection (b);

"(2) address the adequacy and effectiveness of information security policies, procedures, and practices in plans and reports relating to—

"(A) annual agency budgets; "(B) information resources management under sub-

chapter 1 of this chapter; "(C) information technology management under sub-

title III of title 40;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2265

"(D) program performance under sections 1105 and 1115 through 1119 of title 31, and sections 2801 and 2805 of title 39;

"(E) financial management under chapter 9 of title 31, and the Chief Financial Officers Act of 1990 (31 U.S.C. 501 note; Public Law 101-576) (and the amendments made by that Act);

"(F) financial management systems under the Federal Financial Management Improvement Act (31 U.S.C. 3512 note); and

"(G) internal accounting and administrative controls under section 3512 of title 31, United States Code, (known as the 'Federal Managers Financial Integrity Act'); and "(3) report any significant deficiency in a policy, procedure,

or practice identified under paragraph (1) or (2)— "(A) as a material weakness in reporting under section

3512ofti t le31;and "(B) if relating to financial management systems, as

an instance of a lack of substantial compliance under the Federal Financial Management Improvement Act (31 U.S.C. 3512 note).

"(d)(1) In addition to the requirements of subsection (c), each agency, in consultation with the Director, shall include as part of the performance plan required under section 1115 of title 31 a description of—

"(A) the time periods; and "(B) the resources, including budget, staffing, and training,

that are necessary to implement the program required under sub- section (b).

"(2) The description under paragraph (1) shall be based on the risk assessments required under subsection (b)(2)(l).

"(e) Each agency shall provide the public with timely notice Public and opportunities for comment on proposed information security information, policies and procedures to the extent that such policies and proce- dures affect communication with the public.

"§ 3535. Annual independent evaluation "(a)(1) Each year each agency shall have performed an inde-

pendent evaluation of the information security program and prac- tices of that agency to determine the effectiveness of such program and practices.

"(2) Each evaluation by an agency under this section shall include—

"(A) testing of the effectiveness of information security policies, procedures, and practices of a representative subset of the agency's information systems;

"(B) an assessment (made on the basis of the results of the testing) of compliance with—

"(i) the requirements of this subchapter; and "(ii) related information security policies, procedures,

standards, and guidelines; and "(C) separate presentations, as appropriate, regarding

information security relating to national security systems. "(b) Subject to subsection (c)—-

"(1) for each agency with an Inspector General appointed under the Inspector General Act of 1978, the annual evaluation required by this section shall be performed by the Inspector

99-194 O - 03 - 22 : QL 3 Part 3

116 STAT. 2266 PUBLIC LAW 107-296—NOV. 25, 2002

General or by an independent external auditor, as determined by the Inspector General of the agency; and

"(2) for each agency to which paragraph (1) does not apply, the head of the agency shall engage an independent external auditor to perform the evaluation. "(c) For each agency operating or exercising control of a national

security system, that portion of the evaluation required by this section directly relating to a national security system shall be performed—

"(1) only by an entity designated by the agency head; and

"(2) in such a manner as to ensure appropriate protection for information associated with any information security vulner- ability in such system commensurate with the risk and in accordance with all applicable laws. "(d) The evaluation required by this section—

"(1) shall be performed in accordance with generally accepted government auditing standards; and

"(2) may be based in whole or in part on an audit, evalua- tion, or report relating to programs or practices of the applicable agency. "(e) Each year, not later than such date established by the

Director, the head of each agency shall submit to the Director the results of the evaluation required under this section.

"(f) Agencies and evaluators shall take appropriate steps to ensure the protection of information which, if disclosed, may adversely affect information security. Such protections shall be commensurate with the risk and comply with all applicable laws and regulations.

Reports. "(g)(1) The Director shall summarize the results of the evalua- tions conducted under this section in the report to Congress required under section 3533(a)(8).

"(2) The Director's report to Congress under this subsection shall summarize information regarding information security relating to national security systems in such a manner as to ensure appropriate protection for information associated with any informa- tion security vulnerability in such system commensurate with the risk and in accordance with all applicable laws.

"(3) Evaluations and any other descriptions of information sys- tems imder the authority and control of the Director of Central Intelligence or of National Foreign Intelligence Programs systems under the authority and control of the Secretary of Defense shall be made available to Congress only through the appropriate over- sight committees of Congress, in accordance with applicable laws.

Reports. "(h) The Comptroller General shall periodically evaluate and report to Congress on—

"(1) the adequacy and effectiveness of agency information security policies and practices; and

"(2) implementation of the requirements of this subchapter.

**§ 3536. National security systems "The head of each agency operating or exercising control of

a national security system shall be responsible for ensuring that the agency—

"(1) provides information security protections commensu- rate with the risk and magnitude of the harm resulting from

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2267

the unauthorized access, use, disclosure, disruption, modifica- tion, or destruction of the information contained in such system;

"(2) implements information security policies and practices as required by standards and guidelines for national security systems, issued in accordance with law and as directed by the President; and

"(3) complies with the requirements of this subchapter.

"§ 3537. Authorization of appropriations "There are authorized to be appropriated to carry out the

provisions of this subchapter such sums as may be necessary for each of fiscal years 2003 through 2007.

"§ 3538. Effect on existing law "Nothing in this subchapter, section 11331 of title 40, or section

20 of the National Standards and Technology Act (15 U.S.C. 278g- 3) may be construed as affecting the authority of the President, the Office of Management and Budget or the Director thereof, the National Institute of Standards and Technology, or the head of any agency, with respect to the authorized use or disclosure of information, including with regard to the protection of personal privacy under section 552a of title 5, the disclosure of information under section 552 of title 5, the management and disposition of records under chapters 29, 31, or 33 of title 44, the management of information resources under subchapter I of chapter 35 of this title, or the disclosure of information to Congress or the Comptroller General of the United States.".

(2) CLERICAL AMENDMENT.—The items in the table of sec- tions at the beginning of such chapter 35 under the heading "SUBCHAPTER 11" are amended to read as follows:

"3531. Purposes. "3532. Definitions. "3533. Authority and functions of the Director. "3534. Federal agency responsibihties. "3535. Annual independent evaluation. "3536. National security systems. "3537. Authorization oi appropriations. "3538. Effect on existing law. .

(c) INFORMATION SECURITY RESPONSIBILITIES OF CERTAIN AGEN- 6 use 5ii. CIES.—

(1) NATIONAL SECURITY RESPONSIBILITIES.—(A) Nothing in this Act (including any amendment made by this Act) shall supersede any authority of the Secretary of Defense, the Director of Central Intelligence, or other agency head, as authorized by law and as directed by the President, with regard to the operation, control, or management of national security systems, as defined by section 3532(3) of title 44, United States Code.

(B) Section 2224 of title 10, United States Code, is amended—

(i) in subsection 2224(b), by striking "(b) OBJECTIVES AND MINIMUM REQUIREMENTS.—(1)" and inserting "(b) OBJECTIVES OF THE PROGRAM.—";

(ii) in subsection 2224(b), by striking "(2) the program shall at a minimum meet the requirements of section 3534 and 3535 of title 44, United States Code."; and

(iii) in subsection 2224(c), by inserting ", including through compliance with subtitle II of chapter 35 of title 44" after "infrastructure".

116 STAT. 2268 PUBLIC LAW 107-296—NOV. 25, 2002

(2) ATOMIC ENERGY ACT OF 1954.—Nothing in this Act shall supersede any requirement made by or under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). Restricted Data or Formerly Restricted Data shall be handled, protected, classi- fied, downgraded, and declassified in conformity with the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

SEC. 1002. MANAGEMENT OF INFORMATION TECHNOLOGY.

(a) IN GENERAL.—Section 11331 of title 40, United States Code, is amended to read as follows:

"§ 11331. Responsibilities for Federal information systems standards

"(a) DEFINITION.—In this section, the term 'information security' has the meaning given that term in section 3532(b)(1) of title 44.

"(b) REQUIREMENT TO PRESCRIBE STANDARDS.— "(1) IN GENERAL.—

"(A) REQUIREMENT.—Except as provided under para- graph (2), the Director of the Office of Management and Budget shall, on the basis of proposed standards developed by the National Institute of Standards and Technology pursuant to paragraphs (2) and (3) of section 20(a) of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3(a)) and in consultation with the Sec- retary of Homeland Security, promulgate information secu- rity standards pertaining to Federal information systems.

"(B) REQUIRED STANDARDS.—Standards promulgated under subparagraph (A) shall include—

"(i) standards that provide minimum information security requirements as determined under section 20(b) of the National Institute of Standards and Tech- nology Act (15 U.S.C. 278g-3(b)); and

"(ii) such standards that are otherwise necessary to improve the efficiency of operation Or security of Federal information systems. "(C) REQUIRED STANDARDS BINDING.—Information secu-

rity standards described under subparagraph (B) shall be compulsory and binding.

President. "(2) STANDARDS AND GUIDELINES FOR NATIONAL SECURITY SYSTEMS.—Standards and guidelines for national security sys- tems, as defined under section 3532(3) of title 44, shall be developed, promulgated, enforced, and overseen as otherwise authorized by law and as directed by the President. "(c) APPLICATION OF MORE STRINGENT STANDARDS.—The head

of an agency may employ standards for the cost-effective information security for all operations and assets within or under the super- vision of that agency that are more stringent than the standards promulgated by the Director under this section, if such standards—

"(1) contain, at a minimum, the provisions of those applicable standards made compulsory and binding by the Director; and

"(2) are otherwise consistent with policies and guidelines issued under section 3533 of title 44. "(d) REQUIREMENTS REGARDING DECISIONS BY DIRECTOR.—

"(1) DEADLINE.—The decision regarding the promulgation of any standard by the Director under subsection (b) shall

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2269

occur not later than 6 months after the submission of the proposed standard to the Director by the National Institute of Standards and Technology, as provided under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3).

"(2) NOTICE AND COMMENT.—^A decision by the Director to significantly modify, or not promulgate, a proposed standard submitted to the Director by the National Institute of Standards and Technology, as provided under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g- 3), shall be made after the public is given an opportunity to comment on the Director's proposed decision.", (b) CLERICAL AMENDMENT.—The table of sections at the begin-

ning of chapter 113 of title 40, United States Code, is amended by striking the item relating to section 11331 and inserting the following: "11331. Responsibilities for Federal information systems standards.".

SEC. 1003. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY. Guidelines.

Section 20 of the National Institute of Standards and Tech- nology Act (15 U.S.C. 278g-3), is amended by striking the text and inserting the following:

"(a) The Institute shall— "(1) have the mission of developing standards, guidelines,

and associated methods and techniques for information sys- tems;

"(2) develop standards and guidelines, including minimum requirements, for information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency, other than national security systems (as defined in section 3532(b)(2) of title 44, United States Code);

"(3) develop standards and guidelines, including minimum requirements, for providing adequate information security for all agency operations and assets, but such standards and guide- lines shall not apply to national security systems; and

"(4) carry out the responsibilities described in paragraph (3) through the Computer Security Division. "(b) The standards and guidelines required by subsection (a)

shall include, at a minimum— "(1)(A) standards to be used by all agencies to categorize

all information and information systems collected or maintained by or on behalf of each agency based on the objectives of providing appropriate levels of information security according to a range of risk levels;

"(B) guidelines recommending the types of information and information systems to be included in each such category; and

"(C) minimum information security requirements for information and information systems in each such category;

"(2) a definition of and guidelines concerning detection and handling of information security incidents; and

"(3) guidelines developed in coordination with the National Security Agency for identifying an information system as a national security system consistent with applicable require- ments for national security systems, issued in accordance with law and as directed by the President. "(c) In developing standards and guidelines required by sub-

sections (a) and (b), the Institute shall—

116 STAT. 2270 PUBLIC LAW 107-296—NOV. 25, 2002

Deadlines.

"(1) consult with other agencies and offices (including, but not limited to, the Director of the Office of Management and Budget, the Departments of Defense and Energy, the National Security Agency, the General Accounting Office, and the Sec- retary of Homeland Security) to assure—

"(A) use of appropriate information security policies, procedures, and techniques, in order to improve information security and avoid unnecessary and costly duplication of effort; and

"(B) that such standards and guidelines are com- plementary with standards and guidelines employed for the protection of national security systems and information contained in such systems; "(2) provide the public with an opportunity to comment

on proposed standards and guidelines; "(3) submit to the Director of the Office of Management

and Budget for promulgation under section 11331 of title 40, United States Code—

"(A) standards, as required under subsection (b)(1)(A), no later than 12 months after the date of the enactment of this section; and

"(B) minimum information security requirements for each category, as required under subsection (b)(1)(C), no later than 36 months after the date of the enactment of this section; "(4) issue guidelines as required under subsection (b)(1)(B),

no later than 18 months after the date of the enactrhent of this Act;

"(5) ensure that such standards and guidelines do not require specific technological solutions or products, including any specific hardware or software security solutions;

"(6) ensure that such standards and guidelines provide for sufficient flexibility to permit alternative solutions to pro- vide equivalent levels of protection for identified information security risks; and

"(7) use flexible, performance-based standards and guide- lines that, to the greatest extent possible, permit the use of off-the-shelf commercially developed information security prod- ucts. "(d) The Institute shall—

"(1) submit standards developed pursuant to subsection (a), along with recommendations as to the extent to which these should be made compulsory and binding, to the Director of the Office of Management and Budget for promulgation under section 11331 of title 40, United States Code;

"(2) provide assistance to agencies regarding— "(A) compliance with the standards and guidelines

developed under subsection (a); "(B) detecting and handling information security

incidents; and "(C) information security policies, procedures, and prac-

tices; "(3) conduct research, as needed, to determine the nature

and extent of information security vulnerabilities and tech- niques for providing cost-effective information security;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2271

"(4) develop and periodically revise performance indicators and measures for agency information security policies and prac- tices;

"(5) evaluate private sector information security policies and practices and commercially available information tech- nologies to assess potential application by agencies to strengthen information security;

"(6) evaluate security policies and practices developed for national security systems to assess potential application by agencies to strengthen information security;

"(7) periodically assess the effectiveness of standards and guidelines developed under this section and undertake revisions as appropriate;

"(8) solicit and consider the recommendations of the Information Security and Privacy Advisory Board, established by section 21, regarding standards and guidelines developed under subsection (a) and submit such recommendations to the Director of the Office of Management and Budget with such standards submitted to the Director; and

"(9) prepare an annual public report on activities under- taken in the previous year, and planned for the coming year, to carry out responsibilities under this section. "(e) As used in this section—

"(1) the term 'agency' has the same meaning as provided in section 3502(1) of title 44, United States Code;

"(2) the term 'information security' has the same meaning as provided in section 3532(1) of such title;

"(3) the term 'information system' has the same meaning as provided in section 3502(8) of such title;

"(4) the term 'information technology' has the same meaning as provided in section 11101 of title 40, United States Code; and

"(5) the term 'national security system' has the same meaning as provided in section 3532(b)(2) of such title.".

SEC. 1004. INFORMATION SECURITY AND PRIVACY ADVISORY BOARD.

Section 21 of the National Institute of Standards and Tech- nology Act (15 U.S.C. 278g-4), is amended—

(1) in subsection (a), by striking "Computer System Security and Privacy Advisory Board" and inserting "Information Secu- rity and Privacy Advisory Board";

(2) in subsection (a)(1), by striking "computer or tele- communications" and inserting "information technology";

(3) in subsection (a)(2)— (A) by striking "computer or telecommunications tech-

nology" and inserting "information technology"; and (B) by striking "computer or telecommunications equip-

ment" and inserting "information technology"; (4) in subsection (a)(3)—

(A) by striking "computer systems" and inserting "information system"; and

(B) by striking "computer systems security" and inserting "information security"; (5) in subsection (b)(1) by striking "computer systems secu-

rity" and inserting "information security"; (6) in subsection (b) by striking paragraph (2) and inserting

the following:

Reports.

Government organization.

116 STAT. 2272 PUBLIC LAW 107-296—NOV. 25, 2002

"(2) to advise the Institute and the Director of the Office of Management and Budget on information security and privacy issues pertaining to Federal Government information systems, including through review of proposed standards and guidelines developed under section 20; and";

(7) in subsection (b)(3) " by inserting "annually" after "report";

(8) by inserting after subsection (e) the following new sub- section: "(f) The Board shall hold meetings at such locations and at

such time and place as determined by a majority of the Board."; (9) by redesignating subsections (f) and (g) as subsections

(g) and (h), respectively; and (10) by striking subsection (h), as redesignated by para-

graph (9), and inserting the following: "(h) As used in this section, the terms 'information system'

and 'information technology' have the meanings given in section 20.".

SEC. 1005. TECHNICAL AND CONFORMING AMENDMENTS.

(a) FEDERAL COMPUTER SYSTEM SECURITY TRAINING AND PLAN.—

(1) REPEAL.—Section 11332 of title 40, United States Code, is repealed.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 113 of title 40, United States Code, as amended by striking the item relating to section 11332. (b) FLOYD D . SPENCE NATIONAL DEFENSE AUTHORIZATION ACT

FOR FISCAL YEAR 2001.—The Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (Public Law 106-398) is amended by striking subtitle G of title X (44 U.S.C. 3531 note).

(c) PAPERWORK REDUCTION ACT.—(1) Section 3504(g) of title 44, United States Code, is amended—

(A) by adding "and" at the end of paragraph (1); (B) in paragraph (2)—

(i) by striking "sections 11331 and 11332(b) and (c) of title 40" and inserting "section 11331 of title 40 and subchapter II of this title"; and

(ii) by striking the semicolon and inserting a period; and (C) by striking paragraph (3).

(2) Section 3505 of such title is amended by adding at the end the following:

"(c) INVENTORY OF INFORMATION SYSTEMS.—(1) The head of each agency shall develop and maintain an inventory of the informa- tion systems (including national security systems) operated by or under the control of such agency;

"(2) The identification of information systems in an inventory under this subsection shall include an identification of the interfaces between each such system and all other systems or networks, including those not operated by or under the control of the agency;

"(3) Such inventory shall be— "(A) updated at least annually; "(B) made available to the Comptroller General; and "(C) used to support information resources management,

including—

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2273

"(i) preparation and maintenance of the inventory of information resources under section 3506(b)(4);

"(ii) information technology planning, budgeting, acquisition, and management under section 3506(h), sub- title III of title 40, and related laws and guidance;

"(iii) monitoring, testing, and evaluation of information security controls under subchapter II;

"(iv) preparation of the index of major information systems required under section 552(g) of title 5, United States Code; and

"(v) preparation of information system inventories required for records management under chapters 21, 29, 31, and 33.

"(4) The Director shall issue guidance for and oversee the implementation of the requirements of this subsection.".

(3) Section 3506(g) of such title is amended— (A) by addiljUg "and" at the end of paragraph (1); (B) in paragraph (2)—

(i) by striking "section 11332 of title 40" and inserting "subchapter II of this chapter"; and

(ii) by striking "; and" and inserting a period; and (C) by striking paragraph (3).

SEC. 1006. CONSTRUCTION. 6 USC 512.

Nothing in this Act, or the amendments made by this Act, affects the authority of the National Institute of Standards and Technology or the Department of Commerce relating to the develop- ment and promulgation of standards or guidelines under paragraphs (1) and (2) of section 20(a) of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3(a)).

TITLE XI—DEPARTMENT OF JUSTICE DIVISIONS

Subtitle A—Executive Office for Immigration Review

SEC. 1101. LEGAL STATUS OF EOIR. 6 USC 521.

(a) EXISTENCE OF EOIR.—There is in the Department of Justice Establishment, the Executive Office for Immigration Review, which shall be subject to the direction and regulation of the Attorney General under section 103(g) of the Immigration and Nationality Act, as added by section 1102. SEC. 1102. AUTHORITIES OF THE ATTORNEY GENERAL.

Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) as amended by this Act, is further amended by—

(1) amending the heading to read as follows:

"POWERS AND DUTIES OF THE SECRETARY, THE UNDER SECRETARY, AND THE ATTORNEY GENERAL";

(2) in subsection (a)— (A) by inserting "Attorney General," after "President,";

and

116 STAT. 2274 PUBLIC LAW 107-296—NOV. 25, 2002

(B) by redesignating paragraphs (8), (9), (8) (as added by section 372 of Public Law 104-208), and (9) (as added by section 372 of Public Law 104-208) as paragraphs (8), (9), (10), and (11), respectively; and (3) by adding at the end the following new subsection:

"(g) ATTORNEY GENERAL.— "(1) IN GENERAL.—The Attorney General shall have such

authorities and functions under this Act and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.

"(2) POWERS.—The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administra- tive determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.".

6 u s e 522. SEC. 1103. STATUTORY CONSTRUCTION.

Nothing in this Act, any amendment made by this Act, or in section 103 of the Immigration and Nationality Act, as amended by section 1102, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judg- ments, or any other actions of the Secretary of Homeland Security or the Attorney General.

Subtitle B—Transfer of the Bureau of Alco- hol, Tobacco and Firearms to the Depart- ment of Justice

6 u s e 531. SEC. 1111. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLO- SIVES.

(a) ESTABLISHMENT.— (1) IN GENERAL.—There is established within the Depart-

ment of Justice under the general authority of the Attorney General the Bureau of Alcohol, Tobacco, Firearms, and Explo- sives (in this section referred to as the "Bureau").

(2) DIRECTOR.—There shall be at the head of the Bureau a Director, Bureau of Alcohol, Tobacco, Firearms, and Explo- sives (in this subtitle referred to as the "Director"). The Director shall be appointed by the Attorney General and shall perform such functions as the Attorney General shall direct. The Director shall receive compensation at the rate prescribed by law under section 5314 of title V, United States Code, for positions at level III of the Executive Schedule.

(3) COORDINATION.—The Attorney General, acting through the Director and such other officials of the Department of Justice as the Attorney General may designate, shall provide for the coordination of all firearms, explosives, tobacco enforce- ment, and arson enforcement functions vested in the Attorney General so as to assure maximum cooperation between and among any officer, employee, or agency of the Department

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2275

of Justice involved in the performance of these and related functions.

(4) PERFORMANCE OF TRANSFERRED FUNCTIONS.—The Attorney General may make such provisions as the Attorney General determines appropriate to authorize the performance by any officer, employee, or agency of the Department of Justice of any function transferred to the Attorney General under this section. (b) RESPONSIBILITIES.—Subject to the direction of the Attorney

General, the Bureau shall be responsible for investigating— (1) criminal and regulatory violations of the Federal fire-

arms, explosives, arson, alcohol, and tobacco smuggling laws; (2) the functions transferred by subsection (c); and (3) any other function related to the investigation of violent

crime or domestic terrorism that is delegated to the Bureau by the Attorney General. (c) TRANSFER OF AUTHORITIES, FUNCTIONS, PERSONNEL, AND

ASSETS TO THE DEPARTMENT OF JUSTICE.— (1) IN GENERAL.—Subject to paragraph (2), but notwith-

standing any other provision of law, there are transferred to the Department of Justice the authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, which shall be maintained as a distinct entity within the Department of Justice, including the related functions of the Secretary of the Treasury.

(2) ADMINISTRATION AND REVENUE COLLECTION FUNC- TIONS.—There shall be retained within the Department of the Treasury the authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms relating to the administration and enforcement of chapters 51 and 52 of the Internal Revenue Code of 1986, sections 4181 and 4182 of the Internal Revenue Code of 1986, and title 27, United States Code.

(3) BUILDING PROSPECTUS.—Prospectus PDC-98W10, giving the General Services Administration the authority for site acquisition, design, and construction of a new headquarters building for the Bureau of Alcohol, Tobacco and Firearms, is transferred, and deemed to apply, to the Bureau of Alcohol, Tobacco, Firearms, and Explosives established in the Depart- ment of Justice under subsection (a). (d) TAX AND TRADE BUREAU.—

(1) ESTABLISHMENT.—There is established within the Department of the Treasury the Tax and Trade Bureau.

(2) ADMINISTRATOR.—The Tax and Trade Bureau shall be headed by an Administrator, who shall perform such duties as assigned by the Under Secretary for Enforcement of the Department of the Treasury. The Administrator shall occupy a career-reserved position within the Senior Executive Service.

(3) RESPONSIBILITIES.—The authorities, functions, per- sonnel, and assets of the Bureau of Alcohol, Tobacco and Fire- arms that are not transferred to the Department of Justice under this section shall be retained and administered by the Tax and Trade Bureau.

SEC. 1112. TECHNICAL AND CONFORMING AMENDMENTS.

(a) The Inspector General Act of 1978 (5 U.S.C. App.) is amended—

116 STAT. 2276 PUBLIC LAW 107-296—NOV. 25, 2002

SUSCapp. 8D. (1) in section 8D(b)(l) by striking "Bureau of Alcohol, Tobacco and Firearms" and inserting "Tax and Trade Bureau"; and

SUSCapp. 9. (2) in section 9(a)(l)(L)(i), by striking "Bureau of Alcohol, Tobacco, and Firearms" and inserting "Tax and Trade Bureau". (b) Section 1109(c)(2)(A)(i) of the Consolidated Omnibus Budget

Reconciliation Act of 1985 (7 U.S.C. 1445-3(c)(2)(A)(i)) is amended by striking "(on ATF Form 3068) by manufacturers of tobacco products to the Bureau of Alcohol, Tobacco and Firearms" and inserting "by manufacturers of tobacco products to the Tax and Trade Bureau".

8 use 1701. (c) Section 2(4)(J) of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107-173; 8 U.S.C.A 1701(4)(J)) is amended by striking "Bureau of Alcohol, Tobacco, and Firearms" and inserting "Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice".

(d) Section 3(1)(E) of the Firefighters' Safety Study Act (15 U.S.C. 2223b(l)(E)) is amended by striking "the Bureau of Alcohol, Tobacco, and Firearms," and inserting "the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice,".

(e) Chapter 40 of title 18, United States Code, is amended— (1) by striking section 841(k) and inserting the following:

"(k) Attorney General' means the Attorney General of the United States.";

(2) in section 846(a), by striking "the Attorney General and the Federal Bureau of Investigation, together with the Secretary" and inserting "the Federal Bureau of Investigation, together with the Bureau of Alcohol, Tobacco, Firearms, and Explosives"; and

18 use 841-847. (3) by striking "Secretary" each place it appears and inserting "Attorney General". (f) Chapter 44 of title 18, United States Code, is amended—

(1) in se?rtion 921(a)(4)(B), by striking "Secretary" and inserting "Attorney General";

(2) in section 921(a)(4), by striking "Secretary of the Treasury" and inserting "Attorney General";

(3) in section 921(a), by striking paragraph (18) and inserting the following:

"(18) The term Attorney General'means fee Attorney Gen- eral of the United States";

(4) in section 922(p)(5)(A), by striking "after consultation with the Secretary" and inserting "after consultation with the Attorney General";

(5) in section 923(1), by striking "Secretary of the Treasury" and inserting "Attorney General"; and

18 use 921-923, (6) by striking "Secretary" each place it appears, except 925,926. before "of the Army" in section 921(a)(4) and before "of Defense"

in section 922(p)(5)(A), and inserting the term "Attorney Gen- eral". (g) Section 1261(a) of title 18, United States Code, is amended

to read as follows: "(a) The Attorney General—

"(1) shall enforce the provisions of this chapter; and "(2) has the authority to issue regulations to carry out

the provisions of this chapter.".

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2277

(h) Section 1952(c) of title 18, United States Code, is amended by striking "Secretary of the Treasury" and inserting "Attorney General".

(i) Chapter 114 of title 18, United States Code, is amended— (1) by striking section 2341(5), and inserting the following: "(5) the term Attorney General' means the Attorney Gen-

eral of the United States"; and (2) by striking "Secretary" each place it appears and 18USC2343,

inserting "Attorney General". 2346. (j) Section 6103(i)(8)(A)(i) of the Internal Revenue Code of 1986 26 USC 6103.

(relating to confidentiality and disclosure of returns and return information) is amended by striking "or the Bureau of Alcohol, Tobacco and Firearms" and inserting ", the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, or the Tax and Trade Bureau, Department of the Treasury,".

(k) Section 7801(a) of the Internal Revenue Code of 1986 26 USC 7801. (relating to the authority of the Department of the Treasury) is amended—

(1) by striking "SECRETARY.—Except" and inserting "SEC- RETARY.—

"(1) IN GENERAL.—Except"; and (2) by adding at the end the following: "(2) ADMINISTRATION AND ENFORCEMENT OF CERTAIN PROVI-

SIONS BY ATTORNEY GENERAL.— "(A) IN GENERAL.—The administration and enforcement

of the following provisions of this title shall be performed by or under the supervision of the Attorney General; and the term 'Secretary' or 'Secretary of the Treasury' shall, when applied to those provisions, mean the Attorney Gen- eral; and the term 'internal revenue officer' shall, when applied to those provisions, mean any officer of the Bureau of Alcohol, Tobacco, Firearms, and Explosives so designated by the Attorney General:

"(i) Chapter 53. "(ii) Chapters 61 through 80, to the extent such

chapters relate to the enforcement and administration of the provisions referred to in clause (i). "(B) U S E OF EXISTING RULINGS AND INTERPRETATIONS.—

Nothing in this Act alters or repeals the rulings and interpretations of the Bureau of Alcohol, Tobacco, and Fire- arms in effect on the effective date of the Homeland Secu- rity Act of 2002, which concern the provisions of this title referred to in subparagraph (A). The Attorney General shall consult with the Secretary to achieve uniformity and consistency in administering provisions under chapter 53 of title 26, United States Code.".

(1) Section 2006(2) of title 28, United States Code, is amended by inserting ", the Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice," after "the Secretary of the Treasury".

(m) Section 713 of title 31, United States Code, is amended— (1) by striking the section heading and inserting the fol-

lowing:

116 STAT. 2278 PUBLIC LAW 107-296—NOV. 25, 2002

"§713. Audit of Internal Revenue Service, Tax and Trade Bureau, and Bureau of Alcohol, Tobacco, Fire- arms, and Explosives";

(2) in subsection (a), by striking "Bureau of Alcohol, Tobacco, and Firearms," and inserting "Tax and Trade Bureau, Department of the Treasury, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice"; and

(3) in subsection (b)— (A) in paragraph (1)(B), by striking "or the Bureau"

and inserting "or either Bureau"; (B) in paragraph (2)—

(i) by striking "or the Bureau" and inserting "or either Bureau"; and

(ii) by striking "and the Director of the Bureau" and inserting "the Tax and Trade Bureau, Department of the Treasury, and the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice"; and (C) in paragraph (3), by striking "or the Bureau" and

inserting "or either Bureau". (n) Section 9703 of title 31, United States Code, is amended—

(1) in subsection (a)(2)(B)— (A) in clause (iii)(III), by inserting "and" after the

semicolon; (B) in clause (iv), by striking "; and" and inserting

a period; and (C) by striking clause (v);

(2) by striking subsection (o); (3) by redesignating existing subsection (p) as subsection

(o); and (4) in subsection (o)(l), as redesignated by paragraph (3),

by striking "Bureau of Alcohol, Tobacco and Firearms" and inserting "Tax and Trade Bureau". (o) Section 609N(2)(L) of the Justice Assistance Act of 1984

(42 U.S.C. 10502(2)(L)) is amended by striking "Bureau of Alcohol, Tobacco, and Firearms" and inserting "Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice".

(p) Section 32401(a) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 13921(a)) is amended—

(1) by striking "Secretary of the Treasury" each place it appears and inserting "Attorney General"; and

(2) in subparagraph (3)(B), by striking "Bureau of Alcohol, Tobacco and Firearms" and inserting "Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice". (q) Section 80303 of title 49, United States Code, is amended—

(1) by inserting "or, when the violation of this chapter involves contraband described in paragraph (2) or (5) of section 80302(a), the Attorney General" after "section 80304 of this title."; and

(2) by inserting ", the Attorney General," after "by the Secretary". (r) Section 80304 of title 49, United States Code, is amended—

(1) in subsection (a), by striking "(b) and (c)" and inserting "(b), (c), and (d)";

(2) by redesignating subsection (d) as subsection (e); and (3) by inserting after subsection (c), the following:

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2279

"(d) ATTORNEY GENERAL.—The Attorney General, or officers, employees, or agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice designated by the Attorney General, shall carry out the laws referred to in section 80306(b) of this title to the extent that the violation of this chapter involves contraband described in section 80302 (a)(2) or (a)(5).".

(s) Section 103 of the Gun Control Act of 1968 (Public Law 18USC 921 note. 90-618; 82 Stat. 1226) is amended by striking "Secretary of the Treasury" and inserting "Attorney General".

SEC. 1113. POWERS OF AGENTS OF THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES.

Chapter 203 of title 18, United States Code, is amended by adding the following:

"§3051. Powers of Special Agents of Bureau of Alcohol, Tobacco, Firearms, and Explosives

"(a) Special agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, as well as any other investigator or officer charged by the Attorney General with the duty of enforcing any of the criminal, seizure, or forfeiture provisions of the laws of the United States, may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.

"(b) Any special agent of the Bureau of Alcohol, Tobacco, Fire- arms, and Explosives may, in respect to the performance of his or her duties, make seizures of property subject to forfeiture to the United States.

"(c)(1) Except as provided in paragraphs (2) and (3), and except Applicability. to the extent that such provisions conflict with the provisions of section 983 of title 18, United States Code, insofar as section 983 applies, the provisions of the Customs laws relating to—

"(A) the seizure, summary and judicial forfeiture, and con- demnation of property;

"(B) the disposition of such property; "(C) the remission or mitigation of such forfeiture; and "(D) the compromise of claims,

shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any applicable provision of law enforced or administered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

"(2) For purposes of paragraph (1), duties that are imposed upon a customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws of the United States shall be performed with respect to seizures and forfeitures of property under this section by such officers, agents, or any other person as may be authorized or designated for that purpose by the Attorney General.

"(3) Notwithstanding any other provision of law, the disposition of firearms forfeited by reason of a violation of any law of the United States shall be governed by the provisions of section 5872(b) of the Internal Revenue Code of 1986.".

116 STAT. 2280 PUBLIC LAW 107-296—NOV. 25, 2002

Virginia. 6 u s e 532.

Government organization. 6 u s e 533.

SEC. 1114. EXPLOSIVES TRAINING AND RESEARCH FACILITY.

(a) ESTABLISHMENT.—There is established within the Bureau an Explosives Training and Research Facility at Fort AP Hill, Fredericksburg, Virginia.

(b) PURPOSE.—The facility established under subsection (a) shall be utilized to train Federal, State, and local law enforcement officers to—

(1) investigate bombings and explosions; (2) properly handle, utilize, and dispose of explosive mate-

rials and devices; (3) train canines on explosive detection; and (4) conduct research on explosives.

(c) AUTHORIZATION OF APPROPRIATIONS.— (1) IN GENERAL.—There are authorized to be appropriated

such sums as may be necessary to establish and maintain the facility established under subsection (a).

(2) AVAILABILITY OF FUNDS.—^Any amounts appropriated pursuant to paragraph (1) shall remain available until expended.

SEC. 1115. P E R S O N N E L MANAGEMENT DEMONSTRATION PROJECT.

Notwithstanding any other provision of law, the Personnel Management Demonstration Project established under section 102 of title I of division C of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999 (Public Law 105-277; 122 Stat. 2681-585) shall be transferred to the Attorney General of the United States for continued use by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Jus- tice, and the Secretary of the Treasury for continued use by the Tax and Trade Bureau.

Safe Explosives Act.

Subtitle C—Explosives

18 u s e 841 note. SEC. 1121. SHORT TITLE.

This subtitle may be referred to as the "Safe Explosives Act". SEC. 1122. PERMITS FOR PURCHASERS OF EXPLOSIVES.

(a) DEFINITIONS.—Section 841 of title 18, United States Code, is amended—

(1) by striking subsection (j) and inserting the following: "(j) 'Permittee' means any user of explosives for a lawful

purpose, who has obtained either a user permit or a limited permit under the provisions of this chapter."; and

(2) by adding at the end the following: "(r) 'Alien' means any person who is not a citizen or national

of the United States. "(s) 'Responsible person' means an individual who has the

power to direct the management and policies of the applicant pertaining to explosive materials.". (b) PERMITS FOR PURCHASE OF EXPLOSIVES.—Section 842 of

title 18, United States Code, is amended— (1) in subsection (a)(2), by striking "and" at the end; (2) by striking subsection (a)(3) and inserting the following: "(3) other than a licensee or permittee knowingly—

"(A) to transport, ship, cause to be transported, or receive any explosive materials; or

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2281

"(B) to distribute explosive materials to any person other than a licensee or permittee; or "(4) who is a holder of a limited permit—

"(A) to transport, ship, cause to be transported, or receive in interstate or foreign commerce any explosive materials; or

"(B) to receive explosive materials from a licensee or permittee, whose premises are located outside the State of residence of the limited permit holder, or on more than 6 separate occasions, during the period of the permit, to receive explosive materials from 1 or more licensees or permittees whose premises are located within the State of residence of the limited permit holder."; and (3) by striking subsection (b) and inserting the following:

"(b) It shall be unlawful for any licensee or permittee to know- ingly distribute any explosive materials to any person other than—

"(1) a licensee; "(2) a holder of a user permit; or "(3) a holder of a limited permit who is a resident of

the State where distribution is made and in which the premises of the transferor are located.". (c) LICENSES AND USER PERMITS.—Section 843(a) of title 18,

United States Code, is amended— (1) in the first sentence—

(A) by inserting "or limited permit" after "user permit"; and

(B) by inserting before the period at the end the fol- lowing: ", including the names of and appropriate identi- fying information regarding all employees who will be authorized by the applicant to possess explosive materials, as well as fingerprints and a photograph of each responsible person"; (2) in the second sentence, by striking "$200 for each"

and inserting "$50 for a limited permit and $200 for any other"; and

(3) by striking the third sentence and inserting "Each license or user permit shall be valid for not longer than 3 years from the date of issuance and each limited permit shall be valid for not longer than 1 year from the date of issuance. Each license or permit shall be renewable upon the same condi- tions and subject to the same restrictions as the original license or permit, and upon payment of a renewal fee not to exceed one-half of the original fee.". (d) CRITERIA FOR APPROVING LICENSES AND PERMITS.—Section

843(b) of title 18, United States Code, is amended— (1) by striking paragraph (1) and inserting the following:

"(1) the applicant (or, if the applicant is a corporation, partner- ship, or association, each responsible person with respect to the applicant) is not a person described in section 842(i);";

(2) in paragraph (4)— (A) by inserting "(A) the Secretary verifies by inspec-

tion or, if the application is for an original limited permit or the first or second renewal of such a permit, by such other means as the Secretary determines appropriate, that" before "the applicant"; and

(B) by adding at the end the following:

116 STAT. 2282 PUBLIC LAW 107-296—NOV. 25, 2002

"(B) subparagraph (A) shall not apply to an applicant for the renewal of a limited permit if the Secretary has verified, by inspection within the preceding 3 years, the matters described in subparagraph (A) with respect to the applicant; and"; (3) in paragraph (5), by striking the period at the end

and inserting a semicolon; and (4) by adding at the end the following: "(6) none of the employees of the applicant who will be

authorized by the applicant to possess explosive materials is any person described in section 842(i); and

"(7) in the case of a limited permit, the applicant has certified in writing that the applicant will not receive explosive materials on more than 6 separate occasions during the 12- month period for which the limited permit is valid.". (e) APPLICATION APPROVAL.—Section 843(c) of title 18, United

States Code, is amended by striking "forty-five days" and inserting "90 days for licenses and permits,".

if) INSPECTION AUTHORITY.—Section 843(f) of title 18, United States Code, is amended—

(1) in the first sentence— (A) by striking "permittees" and inserting "holders of

user permits"; and (B) by inserting "licensees and permittees" before "shall

submit"; (2) in the second sentence, by striking "permittee" the

first time it appears and inserting "holder of a user permit"; and

(3) by adding at the end the following: "The Secretary may inspect the places of storage for explosive materials of an applicant for a limited permit or, at the time of renewal of such permit, a holder of a limited permit, only as provided in subsection (b)(4). (g) POSTING OF PERMITS.—Section 843(g) of title 18, United

States Code, is amended by inserting "user" before "permits". (h) BACKGROUND CHECKS; CLEARANCES.—Section 843 of title

18, United States Code, is amended by adding at the end the following:

"(h)(1) If the Secretary receives, from an employer, the name and other identifying information of a responsible person or an employee who will be authorized by the employer to possess explo- sive materials in the course of employment with the employer, the Secretary shall determine whether the responsible person or employee is one pf the persons described in any paragraph of section 842(i). In making the determination, the Secretary may take into account a letter or document issued under paragraph (2).

"(2)(A) If the Secretary determines that the responsible person or the employee is not one of the persons described in any paragraph of section 842(i), the Secretary shall notify the employer in writing or electronically of the determination and issue, to the responsible person or employee, a letter of clearance, which confirms the deter- mination.

"(B) If the Secretary determines that the responsible person or employee is one of the persons described in any paragraph of section 842(i), the Secretary shall notify the employer in writing

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2283

or electronically of the determination and issue to the responsible person or the employee, as the case may be, a document that—

"(i) confirms the determination; "(ii) explains the grounds for the determination; "(iii) provides information on how the disability may be

relieved; and "(iv) explains how the determination may be appealed.",

(i) EFFECTIVE DATE.— is use 843 note. (1) IN GENERAL.—The amendments made by this section

shall take effect 180 days after the date of enactment of this Act.

(2) EXCEPTION.—Notwithstanding any provision of this Act, a license or permit issued under section 843 of title 18, United States Code, before the date of enactment of this Act, shall remain valid until that license or permit is revoked under section 843(d) or expires, or until a timely application for renewal is acted upon.

SEC. 1123. PERSONS PROHIBITED FROM RECEIVING OR POSSESSING EXPLOSIVE MATERIALS.

(a) DISTRIBUTION OF EXPLOSIVES.—Section 842(d) of title 18, United States Code, is amended—

(1) in paragraph (5), by striking "or" at the end; (2) in paragraph (6), by striking the period at the end

and inserting "or who has been committed to a mental institu- tion;"; and

(3) by adding at the end the following: "(7) is an alien, other than an alien who—

"(A) is lawfully admitted for permanent residence (as defined in section 101 (a)(20) of the Immigration and Nationality Act); or

"(B) is in lawful nonimmigrant status, is a refugee admitted under section 207 of the Immigration and Nation- ality Act (8 U.S.C. 1157), or is in asylum status under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158), and—

"(i) is a foreign law enforcement officer of a friendly foreign government, as determined by the Secretary in consultation with the Secretary of State, entering the United States on official law enforcement business, and the shipping, transporting, possession, or receipt of explosive materials is in furtherance of this official law enforcement business;

"(ii) is a person having the power to direct or cause the direction of the management and policies of a corporation, partnership, or association licensed pursuant to section 843(a), and the shipping, trans- porting, possession, or receipt of explosive materials is in furtherance of such power;

"(iii) is a member of a North Atlantic Treaty Organization (NATO) or other friendly foreign military force, as determined by the Secretary in consultation with the Secretary of Defense, (whether or not admitted in a nonimmigrant status) who is present in the United States under military orders for training or other military purpose authorized by the United States, and the shipping, transporting, possession, or

116 STAT. 2284 PUBLIC LAW 107-296—NOV. 25, 2002

receipt of explosive materials is in furtherance of the military purpose; or

"(iv) is lawfully present in the United States in cooperation with the Director of Central Intelligence, and the shipment, transportation, receipt, or possession of the explosive materials is in furtherance of such cooperation;

"(8) has been discharged from the armed forces under dis- honorable conditions;

"(9) having been a citizen of the United States, has renounced the citizenship of that person.". (b) POSSESSION OF EXPLOSIVE MATERIALS.—Section 842(i) of

title 18, United States Code, is amended— (1) in paragraph (3), by striking "or" at the end; and (2) by inserting after paragraph (4) the following: "(5) who is an alien, other than an alien who—

"(A) is lawfully admitted for permanent residence (as that term is defined in section 101(a)(20) of the Immigra- tion and Nationality Act); or

"(B) is in lawful nonimmigrant status, is a refugee admitted under section 207 of the Immigration and Nation- ality Act (8 U.S.C. 1157), or is in asylum status under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158), and—

"(i) is a foreign law enforcement officer of a friendly foreign government, as determined by the Secretary in consultation with the Secretary of State, entering the United States on official law enforcement business, and the shipping, transporting, possession, or receipt of explosive materials is in furtherance of this official law enforcement business;

"(ii) is a person having the power to direct or cause the direction of the management and policies of a corporation, partnership, or association licensed pursuant to section 843(a), and the shipping, trans- porting, possession, or receipt of explosive materials is in furtherance of such power;

"(iii) is a member of a North Atlantic Treaty Organization (NATO) or other friendly foreign military force, as determined by the Secretary in consultation with the Secretary of Defense, (whether or not admitted in a nonimmigrant status) who is present in the United States under military orders for training or other military purpose authorized by the United States, and the shipping, transporting, possession, or receipt of explosive materials is in furtherance of the military purpose; or

"(iv) is lawfully present in the United States in cooperation with the Director of Central Intelligence, and the shipment, transportation, receipt, or possession of the explosive materials is in furtherance of such cooperation;

"(6) who has been discharged from the armed forces under dishonorable conditions;

"(7) who, having been a citizen of the United States, has renounced the citizenship of that person"; and

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2285

(3) by inserting "or affecting" before "interstate" each place that term appears.

SEC. 1124. REQUIREMENT TO PROVIDE SAMPLES OF EXPLOSIVE MATE- RIALS AND AMMONIUM NITRATE.

Section 843 of title 18, United States Code, as amended by this Act, is amended by adding at the end the following:

"(i) FURNISHING OF SAMPLES.— "(1) IN GENERAL.—Licensed manufacturers and licensed

importers and persons who manufacture or import explosive materials or ammonium nitrate shall, when required by letter issued by the Secretary, furnish—

"(A) samples of such explosive materials or ammonium nitrate;

"(B) information on chemical composition of those prod- ucts; and

"(C) any other information that the Secretary deter- mines is relevant to the identification of the explosive materials or to identification of the ammonium nitrate. "(2) REIMBURSEMENT.—The Secretary shall, by regulation. Regulations.

authorize reimbursement of the fair market value of samples furnished pursuant to this subsection, as well as the reasonable costs of shipment.".

SEC. 1125. DESTRUCTION OF PROPERTY OF INSTITUTIONS RECEIVING FEDERAL FINANCIAL ASSISTANCE.

Section 844(f)(1) of title 18, United States Code, is amended by inserting before the word "shall" the following: "or any institution or organization receiving Federal financial assistance,". SEC. 1126. RELIEF FROM DISABILITIES.

Section 845(b) of title 18, United States Code, is amended to read as follows:

"(b)(1) A person who is prohibited from shipping, transporting, receiving, or possessing any explosive under section 842(i) may apply to the Secretary for relief from such prohibition.

"(2) The Secretary may grant the relief requested under para- graph (1) if the Secretary determines that the circumstances regarding the applicability of section 842(i), and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of such relief is not contrary to the public interest.

"(3) A licensee or permittee who applies for relief, under this subsection, from the disabilities incurred under this chapter as a result of an indictment for or conviction of a crime punishable by imprisonment for a term exceeding 1 year shall not be barred by such disability from further operations under the license or permit pending final action on an application for relief filed pursu- ant to this section.". SEC. 1127. THEFT REPORTING REQUIREMENT.

Section 844 of title 18, United States Code, is amended by adding at the end the following:

"(p) THEFT REPORTING REQUIREMENT.— "(1) IN GENERAL.— Â holder of a license or permit who

knows that explosive materials have been stolen from that licensee or permittee, shall report the theft to the Secretary not later than 24 hours after the discovery of the theft.

116 STAT. 2286 PUBLIC LAW 107-296—NOV. 25, 2002

"(2) PENALTY.—A holder of a license or permit who does not report a theft in accordance with paragraph (1), shall be fined not more than $10,000, imprisoned not more than 5 years, or both.".

SEC. 1128. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as necessary to carry out this subtitle and the amendments made by this subtitle.

TITLE XII—AIRLINE WAR RISK INSURANCE LEGISLATION

SEC. 1201. AIR CARRIER LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF ACTS OF TERRORISM,

Section 44303 of title 49, United States Code, is amended— (1) by inserting "(a) IN GENERAL.—" before "The Secretary

of Transportation"; 49 use 40101 (2) by moving the text of paragraph (2) of section 201(b) note. of the Air Transportation Safety and System Stabilization Act

(115 Stat. 235) to the end and redesignating such paragraph as subsection (b);

(3) in subsection (b) (as so redesignated)— (A) by striking the subsection heading and inserting

"AIR CARRIER LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF ACTS OF TERRORISM.—";

(B) in the first sentence by striking "the 180-day period following the date of enactment of this Act, the Secretary of Transportation" and inserting "the period beginning on September 22, 2001, and ending on December 31, 2003, the Secretary"; and

(C) in the last sentence by striking "this paragraph" and inserting "this subsection".

SEC. 1202. EXTENSION OF INSURANCE POLICIES.

Section 44302 of title 49, United States Code, is amended by adding at the end the following:

"(f) EXTENSION OF POLICIES.— "(1) IN GENERAL.—The Secretary shall extend through

August 31, 2003, and may extend through December 31, 2003, the termination date of any insurance policy that the Depart- ment of Transportation issued to an air carrier under subsection (a) and that is in effect on the date of enactment of this subsection on no less favorable terms to the air carrier than existed on June 19, 2002; except that the Secretary shall amend the insurance policy, subject to such terms and conditions as the Secretary may prescribe, to add coverage for losses or injuries to aircraft hulls, passengers, and crew at the limits carried by air carriers for such losses and injuries as of such date of enactment and at an additional premium comparable to the premium charged for third-party casualty coverage under such policy.

"(2) SPECIAL RULES.—Notwithstanding paragraph (1)— "(A) in no event shall the total premium paid by the

air carrier for the policy, as amended, be more than twice

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2287

the premium that the air carrier was paying to the Depart- ment of Transportation for its third party poUcy as of June 19, 2002; and

"(B) the coverage in such poHcy shall begin with the first dollar of any covered loss that is incurred.".

SEC. 1203. CORRECTION OF REFERENCE.

Effective November 19, 2001, section 147 of the Aviation and Transportation Security Act (Public Law 107-71) is amended by striking "(b)" and inserting "(c)". SEC. 1204. REPORT.

Not later than 90 days after the date of enactment of this Act, the Secretary shall transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that—

(A) evaluates the availability and cost of commercial war risk insurance for air carriers and other aviation enti- ties for passengers and third parties;

(B) analyzes the economic effect upon air carriers and other aviation entities of available commercial war risk insurance; and

(C) describes the manner in which the Department could provide an alternative means of providing aviation war risk reinsurance covering passengers, crew, and third parties through use of a risk-retention group or by other means.

49 u s e 44306.

Effective date.

Deadline.

TITLE XIII—FEDERAL WORKFORCE IMPROVEMENT

Subtitle A—Chief Human Capital Officers SEC. 1301. SHORT TITLE.

This title may be cited as the "Chief Human Capital Officers Act of 2002". SEC. 1302. AGENCY CHIEF HUMAN CAPITAL OFFICERS.

(a) IN GENERAL.—Part II of title 5, United States Code, is amended by inserting after chapter 13 the following:

"CHAPTER 14—AGENCY CfflEF HUMAN CAPITAL OFFICERS

Chief Human Capital Officers Act of 2002.

5 u s e 101 note.

"Sec. "1401. Establishment of agency Chief Human Capital Officers. "1402. Authority and functions of agency Chief Human Capital Officers.

"§ 1401. Establishment of agency Chief Human Capital Offi- cers

"The head of each agency referred to under paragraphs (1) and (2) of section 901(b) of title 31 shall appoint or designate a Chief Human Capital Officer, who shall—

"(1) advise and assist the head of the agency and other agency officials in carrying out the agency's responsibilities

116 STAT. 2288 PUBLIC LAW 107-296—NOV. 25, 2002

for selecting, developing, training, and managing a high-quality, productive workforce in accordance with merit system prin- ciples;

"(2) implement the rules and regulations of the President and the Office of Personnel Management and the laws gov- erning the civil service within the agency; and

"(3) carry out such functions as the primary duty of the Chief Human Capital Officer.

"§ 1402. Authority and functions of agency Chief Human Cap- ital Officers

"(a) The functions of each Chief Human Capital Officer shall include—

"(1) setting the workforce development strategy of the agency;

"(2) assessing workforce characteristics and future needs based on the agency's mission and strategic plan;

"(3) aligning the agency's human resources policies and programs with organization mission, strategic goals, and performance outcomes;

"(4) developing and advocating a culture of continuous learning to attract and retain employees with superior abilities;

"(5) identifying best practices and benchmarking studies, and

"(6) applying methods for measuring intellectual capital and identifying links of that capital to organizational perform- ance and growth. "(b) In addition to the authority otherwise provided by this

section, each agency Chief Human Capital Officer— "(1) shall have access to all records, reports, audits, reviews,

documents, papers, recommendations, or other material that— "(A) are the property of the agency or are available

to the agency; and "(B) relate to programs and operations with respect

to which that agency Chief Human Capital Officer has responsibilities under this chapter; and "(2) may request such information or assistance as may

be necessary for carrying out the duties and responsibilities provided by this chapter from any Federal, State, or local governmental entity.". (b) TECHNICAL AND CONFORMING AMENDMENT.—The table of

chapters for chapters for part II of title 5, United States Code, is amended by inserting after the item relating to chapter 13 the following: "14. Agency Chief Human Capital Officers 1401".

5 u s e 1401 note. SEC. 1303. CHIEF HUMAN CAPITAL OFFICERS COUNCIL.

(a) ESTABLISHMENT.—There is established a Chief Human Cap- ital Officers Council, consisting of—

(1) the Director of the Office of Personnel Management, who shall act as chairperson of the Council;

(2) the Deputy Director for Management of the Office of Management and Budget, who shall act as vice chairperson of the Council; and

(3) the Chief Human Capital Officers of Executive depart- ments and any other members who are designated by the Director of the Office of Personnel Management.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2289

(b) FUNCTIONS.—The Chief Human Capital Officers Council shall meet periodically to advise and coordinate the activities of the agencies of its members on such matters as modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations.

(c) EMPLOYEE LABOR ORGANIZATIONS AT MEETINGS.—The Chief Human Capital Officers Council shall ensure that representatives of Federal employee labor organizations are present at a minimum of 1 meeting of the Council each year. Such representatives shall not be members of the Council.

(d) ANNUAL REPORT.—Each year the Chief Human Capital Offi- cers Council shall submit a report to Congress on the activities of the Council.

SEC. 1304. STRATEGIC HUMAN CAPITAL MANAGEMENT.

Section 1103 of title 5, United States Code, is amended by adding at the end the following:

"(c)(1) The Office of Personnel Management shall design a set of systems, including appropriate metrics, for assessing the management of human capital by Federal agencies.

"(2) The systems referred to under paragraph (1) shall be defined in regulations of the Office of Personnel Management and include standards for—

"(A)(i) aligning human capital strategies of agencies with the missions, goals, and organizational objectives of those agen- cies; and

"(ii) integrating those strategies into the budget and stra- tegic plans of those agencies;

"(B) closing skill gaps in mission critical occupations; "(C) ensuring continuity of effective leadership through

implementation of recruitment, development, and succession plans;

"(D) sustaining a culture that cultivates and develops a high performing workforce;

"(E) developing and implementing a knowledge manage- ment strategy supported by appropriate investment in training and technology; and

"(F) holding managers and human resources officers accountable for efficient and effective human resources manage- ment in support of agency missions in accordance with merit system principles.".

SEC. 1305. EFFECTIVE DATE. 5 USC 1103 note.

This subtitle shall take effect 180 days after the date of enact- ment of this Act.

Subtitle B—Reforms Relating to Federal Human Capital Management

SEC. 1311. INCLUSION OF AGENCY HUMAN CAPITAL STRATEGIC PLAN- NING IN PERFORMANCE PLANS AND PROGRAMS PERFORMANCE REPORTS.

(a) PERFORMANCE PLANS.—Section 1115 of title 31, United States Code, is amended—

116 STAT. 2290 PUBLIC LAW 107-296—NOV. 25, 2002

(1) in subsection (a), by striking paragraph (3) and inserting the following:

"(3) provide a description of how the performance goals and objectives are to be achieved, including the operation proc- esses, training, skills and technology, and the human, capital, information, and other resources and strategies required to meet those performance goals and objectives.";

(2) by redesignating subsection (f) as subsection (g); and (3) by inserting after subsection (e) the following:

"(f) With respect to each agency with a Chief Human Capital Officer, the Chief Human Capital Officer shall prepare that portion of the annual performance plan described under subsection (a)(3).".

(b) PROGRAM PERFORMANCE REPORTS.—Section 1116(d) of title 31, United States Code, is amended—

(1) in paragraph (4), by striking "and" after the semicolon; (2) by redesignating paragraph (5) as paragraph (6); and (3) by inserting after paragraph (4) the following: "(5) include a review of the performance goals and evalua-

tion of the performance plan relative to the agency's strategic human capital management; and".

SEC. 1312. REFORM OF THE COMPETITIVE SERVICE HIRING PROCESS.

(a) IN GENERAL.—Chapter 33 of title 5, United States Code, is amended—

(1) in section 3304(a>— (A) in paragraph (1), by striking "and" after the semi-

colon; (B) in paragraph (2), by striking the period and

inserting "; and"; and (C) by adding at the end of the following:

"(3) authority for agencies to appoint, without regard to the provision of sections 3309 through 3318, candidates directly to positions for which—

"(A) public notice has been given; and "(B) the Office of Personnel Management has deter-

mined that there exists a severe shortage of candidates or there is a critical hiring need.

Regulations. The Office shall prescribe, by regulation, criteria for identifying such positions and may delegate authority to make determinations under such criteria."; and

(2) by inserting after section 3318 the following:

"§ 3319. Alternative ranking and selection procedures "(a) The Office, in exercising its authority under section 3304,

or an agency to which the Office has delegated examining authority under section 1104(a)(2), may establish category rating systems for evaluating applicants for positions in the competitive service, under 2 or more quality categories based on merit consistent with regulations prescribed by the Office of Personnel Management, rather than assigned individual numerical ratings.

"(b) Within each quality category established under subsection (a), preference-eligibles shall be listed ahead of individuals who are not preference eligibles. For other than scientific and profes- sional positions at GS-9 of the General Schedule (equivalent or higher), qualified preference-eligibles who have a compensable service-connected disability of 10 percent or more shall be listed in the highest quality category.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2291

"(c)(1) An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories.

"(2) Notwithstanding paragraph (1), the appointing official may not pass over a preference-eligible in the same category from which selection is made, unless the requirements of section 3317(b) or 3318(b), as applicable, are satisfied.

"(d) Each agency that establishes a category rating system Reports. under this section shall submit in each of the 3 years following that establishment, a report to Congress on that system including information on—

"(1) the number of employees hired under that system; "(2) the impact that system has had on the hiring of vet-

erans and minorities, including those who are American Indian or Alaska Natives, Asian, Black or African American, and native Hawaiian or other Pacific Islanders; and

"(3) the way in which managers were trained in the administration of that system. "(e) The Office of Personnel Management may prescribe such

regulations as it considers necessary to carry out the provisions of this section.".

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 33 of title 5, United States Code, is amended by striking the item relating to section 3319 and inserting the following:

"3319. Alternative ranking and selection procedures.".

SEC. 1313. PERMANENT EXTENSION, REVISION, AND EXPANSION OF AUTHORITIES FOR USE OF VOLUNTARY SEPARATION INCENTIVE PAY AND VOLUNTARY EARLY RETIREMENT.

(a) VOLUNTARY SEPARATION INCENTIVE PAYMENTS.— (1) I N GENERAL.—

(A) AMENDMENT TO TITLE 5, UNITED STATES CODE.— Chapter 35 of title 5, United States Code, is amended by inserting after subchapter I the following:

"SUBCHAPTER II—VOLUNTARYSEPARATION INCENTIVE PAYMENTS

"§ 3521. Definitions "In this subchapter, the term—

"(1) 'agency' means an Executive agency as defined under section 105; and

"(2)'employee'— "(A) means an employee as defined under section 2105

employed by an agency and an individual employed by a county committee established under section 8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)(5)) who—

"(i) is serving under an appointment without time limitation; and

"(ii) has been currently employed for a continuous period of at least 3 years; and "(B) shall not include—

116 STAT. 2292 PUBLIC LAW 107-296—NOV. 25, 2002

"(i) a reemployed annuitant under subchapter III of chapter 83 or 84 or another retirement system for employees of the Government;

"(ii) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under subchapter III of chapter 83 or 84 or another retirement system for employees of the Government;

"(iii) an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance;

"(iv) an employee who has previously received any voluntary separation incentive payment from the Fed- eral Government under this subchapter or any other authority;

"(v) an employee covered by statutory reemploy- ment rights who is on transfer employment with another organization; or

"(vi) any employee who— "(I) during the 36-month period preceding the

date of separation of that employee, performed service for which a student loan repayment benefit was or is to be paid under section 5379;

"(II) during the 24-month period preceding the date of separation of that employee, performed service for which a recruitment or relocation bonus was or is to be paid under section 5753; or

"(III) during the 12-month period preceding the date of separation of that employee, performed

' service for which a retention bonus was or is to be paid under section 5754.

"§ 3522. Agency plans; approval "(a) Before obligating any resources for volimtary separation

incentive payments, the head of each agency shall submit to the Office of Personnel Management a plan outlining the intended use of such incentive payments and a proposed organizational chart for the agency once such incentive payments have been completed.

"(b) The plan of an agency under subsection (a) shall include— "(1) the specific positions and functions to be reduced or

eliminated; "(2) a description of which categories of employees will

be offered incentives; "(3) the time period during which incentives may be paid; "(4) the number and amounts of voluntary separation incen-

tive payments to be offered; and "(5) a description of how the agency will operate without

the eliminated positions and functions. "(c) The Director of the Office of Personnel Management shall

review each agency's plan an may make any appropriate modifica- tions in the plan, in consultation with the Director of the Office of Management and Budget. A plan under this section may not be implemented without the approval of the Directive of the Office of Personnel Management.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2293

"§ 3523. Authority to provide voluntary separation incentive payments

"(a) A voluntary separation incentive payment under this sub- chapter may be paid to an employee only as provided in the plan of an agency established under section 3522.

"(b) A voluntary incentive payment— "(1) shall be offered to agency employees on the basis

of— "(A) 1 or more organizational units; "(B) 1 or more occupational series or levels; "(C) 1 or more geographical locations; "(D) skills, knowledge, or other factors related to a

position; "(E) specific periods of time during which eligible

employees may elect a voluntary incentive payment; or "(F) any appropriate combination of such factors;

"(2) shall be paid in a lump sum after the employee's separation;

"(3) shall be equal to the lesser of— "(A) an amount equal to the amount the employee

would be entitled to receive under section 5595(c) if the employee were entitled to payment under such section (without adjustment for any previous payment made); or

"(B) an amount determined by the agency head, not to exceed $25,000; "(4) may be made only in the case of an employee who

voluntarily separates (whether by retirement or resignation) under this subchapter;

"(5) shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit;

"(6) shall not be taken into account in determining the amount of any severance pay to which the employee may be entitled under section 5595, based on another other separation; and

"(7) shall be paid from appropriations or funds available for the payment of the basic pay of the employee.

"§3524. Effect of subsequent employment with the Govern- ment

"(a) The term 'employment'— "(1) in subsection (b) includes employment under a personal

services contract (or other direct contract) with the United States Government (other than an entity in the legislative branch); and

"(2) in subsection (c) does not include employment under such a contract. "(b) An individual who has received a voluntary separation

incentive payment under this subchapter and accepts any employ- ment for compensation with the Government of the United States with 5 years after the date of the separation on which the payment is based shall be required to pay, before the individual's first day of employment, the entire amount of the incentive payment to the agency that paid the incentive pajonent.

"(c)( 1) If the employment under this section is with an agency, other than the General Accounting Office, the United States Postal Service, or the Postal Rate Commission, the Director of the Office

116 STAT. 2294 PUBLIC LAW 107-296—NOV. 25, 2002

of Personnel Management may, at the request of the head of the agency, may waive the repayment if—

"(A) the individual involved possesses unique abilities and is the only qualified applicant available for the position; or

"(B) in case of an emergency involving a direct threat to life or property, the individual—

"(i) has skills directly related to resolving the emer- gency; and

"(ii) will serve on a temporary basis only so long as that individual's services are made necessary by the emer- gency.

"(2) If the employment under this section is with an entity in the legislative branch, the head of the entity or the appointing official may waive the repayment if the individual involved pos- sesses unique abilities and is the only qualified applicant available for the position.

"(3) If the employment under this section is with the judicial branch, the Director of the Administrative Office of the United States Courts may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant avail- able for the position.

"§ 3525. Regulations "The Office of Personnel Management may prescribe regula-

tions to carry out this subchapter.". (B) TECHNICAL AND CONFORMING AMENDMENTS.—

Chapter 35 of title 5, United States Code, is amended— (i) by striking the chapter heading and inserting

the following:

"CHAPTER 35—RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE PAYMENTS, RESTORATION, AND REEMPLOYMENT";

and (ii) in the table of sections by inserting after the

item relating to section 3504 the following: "SUBCHAPTER II—VOLUNTARY SEPARATION INCENTIVE PAYMENTS

"3521. Definitions. "3522. Agency plans; approval. "3523. Authority to provide voluntary separation incentive payments. "3524. Effect of subsequent employment with the Government. "3525. Regulations.".

5 u s e 3521 note. (2) ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.—The Director of the Administrative Office of the United States Courts may, by regulation, establish a program substantially similar to the program established under para- graph (1) for individuals serving in the judicial branch.

5 use 3521 note. (3) CONTINUATION OF OTHER AUTHORITY.—^Any agency exer- cising any voluntary separation incentive authority in effect on the effective date of this subsection may continue to offer voluntary separation incentives consistent with that authority until that authority expires.

5 use 3521 note. (4) EFFECTIVE DATE.—This subsection shall take effect 60 days after the date of enactment of this Act. (b) FEDERAL EMPLOYEE VOLUNTARY EARLY RETIREMENT.—

(1) CIVIL SERVICE RETIREMENT SYSTEM.—Section 8336(d)(2) of title 5, United States Code, is amended to read as follows:

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2295

"(2)(A) has been employed continuously, by the agency in which the employee is serving, for at least the 31-day period ending on the date on which such agency requests the deter- mination referred to in subparagraph (D);

"(B) is serving under an appointment that is not time limited;

"(C) has not been duly notified that such employee is to be involuntarily separated for misconduct or unacceptable performance;

"(D) is separated from the service voluntarily during a Regulations. period in which, as determined by the office of Personnel Management (upon request of the agency) under regulations prescribed by the Office—

"(i) such agency (or, if applicable, the component in which the employee is serving) is undergoing substantial delayering, substantial reorganization, substantial reduc- tions in force, substantial transfer of function, or other substantial workforce restructuring (or shaping);

"(ii) a significant percentage of employees servicing in such agency (or component) are likely to be separated or subject to an immediate reduction in the rate of basic pay (without regard to subchapter VI of chapter 53, or comparable provisions); or

"(iii) identified as being in positions which are becoming surplus or excess to the agency's future ability to carry out its mission effectively; and "(E) as determined by the agency under regulations pre-

scribed by the Office, is within the scope of the offer of voluntary early retirement, which may be made on the basis of—

"(i) 1 or more organizational units; "(ii) 1 or more occupational series or levels; "(iii) 1 or more geographical locations; "(iv) specific periods; "(v) skills, knowledge, or other factors related to a

position; or "(vi) any appropriate combination of such factors;".

(2) FEDERAL EMPLOYEES' RETIREMENT SYSTEM.—Section 8414(b)(1) of title 5, United States Code, is amended by striking subparagraph (B) and inserting the following:

"(B)(i) has been employed continuously, by the agency in which the employee is serving, for at least the 31- day period ending on the date on which such agency requests the determination referred to in clause (iv);

"(ii) is serving under an appointment that is not time limited;

"(iii) has not been duly notified that such employee is to be involuntarily separated for misconduct or unaccept- able performance;

"(iv) is separate from the service voluntarily during Regulations. a period in which, as determined by the Office of Personnel Management (upon request of the agency) under regula- tions prescribed by the Office—

"(I) such agency (or, if applicable, the component in which the employee is serving) is undergoing substantial delayering, substantial reorganization, substantial reductions in force, substantial transfer of

116 STAT. 2296 PUBLIC LAW 107-296—NOV. 25, 2002

function, or other substantial workforce restructuring (or shaping);

"(11) a significant percentage of employees serving in such agency (or component) are likely to be sepa- rated or subject to an immediate reduction in the rate of basic pay (without regard to subchapter VI of chapter 53, or comparable provisions); or

"(III) identified as being in positions which are becoming surplus or excess to the agency's future ability to carry out its mission effectively; and "(v) as determined by the agency under regulations

prescribed by the Office, is within the scope of the offer of voluntary early retirement, which may be made on the basis of—

"(I) 1 or more organizational units; "(II) 1 or more occupational series or levels; "(III) 1 or more geographical locations; "(IV) specific periods; "(V) skills, knowledge, or other factors related to

a position; or "(VI) any appropriate combination of such factors.".

(3) GENERAL ACCOUNTING OFFICE AUTHORITY.—The amend- ments made by this subsection shall not be construed to affect the authority under section 1 of Public Law 106-303 (5 U.S.C. 8336 note; 114 State. 1063).

(4) TECHNICAL AND CONFORMING AMENDMENTS.—Section 7001 of the 1998 Supplemental Appropriations and Rescissions

5 use 8336 note, Act (Public Law 105-174; 112 Stat. 91) is repealed. 8414 note. (5) REGULATIONS.—The Office of Personnel Management 5 use 8336 note. j^^y prescribe regulations to carry out this subsection. 5 use 3521 note. (c) SENSE OF CONGRESS.—It is the sense of Congress that

the implementation of this section is intended to reshape the Fed- eral workforce and not downsize the Federal workforce. SEC. 1314. STUDENT VOLUNTEER TRANSIT SUBSIDY.

(a) IN GENERAL.—Section 7905(a)(1) of title 5, United States Code, is amended by striking "and a member of a uniformed service" and inserting ", a member of a uniformed service, and a student who provides voluntary services under section 3111".

(b) TECHNICAL AND CONFORMING AMENDMENT.—Section 3111(c)(1) of title 5, United States Code, is amended by striking "chapter 81 of this title" and inserting "section 7905 (relating to commuting by means other than single-occupancy motor vehicles), chapter 81".

Subtitle C—Reforms Relating to the Senior Executive Service

SEC. 1321. REPEAL OF RECERTIFICATION REQUIREMENTS OF SENIOR EXECUTIVES.

(a) IN GENERAL.—Title 5, United States Code, is amended— (1) in chapter 33—

(A) in section 3393(g) by striking "3393a"; (B) by repealing section 3393a; and (C) in the table of sections by striking the item relating

to section 3393a;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2297

(2) in chapter 35— (A) in section 3592(a)—

(i) in paragraph (1), by inserting "or" at the end; (ii) in paragraph (2), by striking "or" at the end; (iii) by striking paragraph (3); and (iv) by striking the last sentence;

(B) in section 3593(a), by striking paragraph (2) and inserting the following: "(2) the appointee left the Senior Executive Service for

reasons other than misconduct, neglect of duty, malfeasance, or less than fully successful executive performance as deter- mined under subchapter II of chapter 43."; and

(C) in section 3594(b)— (i) in paragraph (1), by inserting "or" at the end; (ii) in paragraph (2), by striking "or" at the end;

and (iii) by striking paragraph (3);

(3) in section 7701(c)(1)(A), by striking "or removal from the Senior Executive Service for failure to be recertified under section 3393a";

(4) in chapter 83— (A) in section 8336(h)(1), by striking "for failure to

be recertified as a senior executive under section 3393a or"; and

(B) in section 8339(h), in the first sentence, by striking ", except that such reduction shall not apply in the case of an employee retiring under section 8336(h) for failure to be recertified as a senior executive"; and (5) in chapter 84—

(A) in section 8414(a)(1), by striking "for failure to be recertified as a senior executive under section 3393a or"; and

(B) in section 8421(a)(2), by striking ", except that an individual entitled to an annuity under section 8414(a) for failure to be recertified as a senior executive shall be entitled to an annuity supplement without regard to such applicable retirement age".

(b) SAVINGS PROVISION.—Notwithstanding the amendments 5 use 3592 note. made by subsection (a)(2)(A), an appeal under the final sentence of section 3592(a) of title 5, United States Code, that is pending on the day before the effective date of this section—

(1) shall not abate by reason of the enactment of the amendments made by subsection (a)(2)(A); and

(2) shall continue as if such amendments had not been enacted. (c) APPLICATION.—The amendment made by subsection (a)(2)(B) 5 USC 3593 note.

shall not apply with respect to an individual who, before the effec- tive date of this section, leaves the Senior Executive Service for failure to be recertified as a senior executive under section 3393a of title 5, United States Code.

SEC. 1322. ADJUSTMENT OF LIMITATION ON TOTAL ANNUAL COM- PENSATION.

(a) IN GENERAL.—Section 5307 of title 5, United States Code, is amended by adding at the end the following:

"(d)(1) Notwithstanding any other provision of this section. Applicability. subsection (a)(1) shall be applied by substituting 'the total annual

99-194 O - 03 - 23 : QL 3 Part 3

116 STAT. 2298 PUBLIC LAW 107-296—NOV. 25, 2002

compensation payable to the Vice President under section 104 of title 3' for 'the annual rate of basic pay payable for level I of the Executive Schedule' in the case of any employee who—

"(A) is paid under section 5376 or 5383 of this title or section 332(f), 603, or 604 of title 28; and

"(B) holds a position in or under an agency which is described in paragraph (2). "(2) An agency described in this paragraph is any agency which,

for purposes of the calendar year involved, has been certified under this subsection as having a performance appraisal system which (as designed and applied) makes meaningful distinctions based on relative performance.

"(3)(A) The Office of Personnel Management and the Office of Management and Budget jointly shall promulgate such regula- tions as may be necessary to carry out this subsection, including the criteria and procedures in accordance with which any deter- minations under this subsection shall be made.

"(B) An agency's certification under this subsection shall be for a period of 2 calendar years, except that such certification may be terminated at any time, for purposes of either or both of those years, upon a finding that the actions of such agency have not remained in conformance with applicable requirements.

"(C) Any certification or decertification under this subsection shall be made by the Office of Personnel Management, with the concurrence of the Office of Management and Budget.

"(4) Notwithstanding any provision of paragraph (3), any regu- lations, certifications, or other measures necessary to carry out this subsection with respect to employees within the judicial branch shall be the responsibility of the Director of the Administrative Office of the United States Courts. However, the regulations under this paragraph shall be consistent with those promulgated under paragraph (3).".

(b) CONFORMING A M E N D M E N T S . ^ 1) Section 5307(a) of title 5, United States Code, is amended by inserting "or as otherwise pro- vided under subsection (d)," after "under law,".

(2) Section 5307(c) of such title is amended by striking "this section," and inserting "this section (subject to subsection (d)),".

Subtitle D—^Academic Training

SEC. 1331. ACADEMIC TRAINING.

(a) ACADEMIC DEGREE TRAINING.—Section 4107 of title 5, United States Code, is amended to read as follows:

**§ 4107. Academic degree training "(a) Subject to subsection (b), an agency may select and assign

an employee to academic degree training and may pay or reimburse the costs of academic degree training from appropriated or other available funds if such training—

"(1) contributes significantly to— "(A) meeting an identified agency training need; "(B) resolving an identified agency staffing problem;

or "(C) accomplishing goals in the strategic plan of the

agency;

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2299

"(2) is part of a planned, systemic, and coordinated agency employee development program linked to accomplishing the strategic goals of the agency; and

"(3) is accredited and is provided by a college or university that is accredited by a nationally recognized body. "(b) In exercising authority under subsection (a), an agency

shall— "(1) consistent with the merit system principles set forth

in paragraphs (2) and (7) of section 2301(b), take into consider- ation the need to—

"(A) maintain a b,alanced workforce in which women, members of racial and ethnic minority groups, and persons with disabilities are appropriately represented in Govern- ment service; and

"(B) provide employees effective education and training to improve organizational and individual performance; "(2) assure that the training is not for the sole purpose

of providing an employee an opportunity to obtain an academic degree or qualify for appointment to a particular position for • which the academic degree is a basic requirement;

"(3) assure that no authority under this subsection is exer- cised on behalf of any employee occupying or seeking to qualify for—

"(A) a noncareer appointment in the senior Executive Service; or

"(B) appointment to any position that is excepted from the competitive service because of its confidential policy- determining, policy-making or policy-advocating character; and "(4) to the greatest extent practicable, facilitate the use

of online degree training.". (b) TECHNICAL AND CONFORMING AMENDMENT.—The table of

sections for chapter 41 of title 5, United States Code, is amended by striking the item relating to section 4107 and inserting the following: "4107. Academic degree training.".

SEC. 1332. MODIFICATIONS TO NATIONAL SECURITY EDUCATION PRO- 5 USC 3301 note. GRAM.

(a) FINDINGS AND POLICIES.— (1) FINDINGS.—Congress finds that— -

(A) the United States Government actively encourages and financially supports the training, education, and development of many United States citizens;

(B) as a condition of some of those supports, many of those citizens have an obligation to seek either com- pensated or uncompensated employment in the Federal sector; and

(C) it is in the United States national interest to maxi- mize the return to the Nation of funds invested in the development of such citizens by seeking to employ them in the Federal sector. (2) POLICY.—It shall be the policy of the United States

Government to— (A) establish procedures for ensuring that United

States citizens who have incurred service obligations as the result of receiving financial support for education and

116 STAT. 2300 PUBLIC LAW 107-296—NOV. 25, 2002

training from the United States Government and have apphed for Federal positions are considered in all recruit- ment and hiring initiatives of Federal departments, bureaus, agencies, and offices; and

(B) advertise and open all Federal positions to United States citizens who have incurred service obligations with the United States Government as the result of receiving financial support for education and training from the United States Government.

(b) FULFILLMENT OF SERVICE REQUIREMENT IF NATIONAL SECU- RITY POSITIONS ARE UNAVAILABLE.—Section 802(b)(2) of the David L. Boren National Security Education Act of 1991 (50 U.S.C. 1902) is amended—

(1) in subparagraph (A), by striking clause (ii) and inserting the following:

"(ii) if the recipient demonstrates to the Secretary (in accordance with such regulations) that no national security position in an agency or office of the Federal Government having national security responsibilities is available, work in other offices or agencies of the Federal Government or in the field of higher education in a discipline relating to the foreign country, foreign language, area study, or international field of study for which the scholarship was awarded, for a period specified by the Secretary, which period shall be deter- mined in accordance with clause (i); or"; and

(2) in subparagraph (B), by striking clause (ii) and inserting the following:

"(ii) if the recipient demonstrates to the Secretary (in accordance with such regulations) that no national security position is available upon the completion of the degree, work in other offices or agencies of the Federal Government or in the field of higher education in a discipline relating to foreign country, foreign lan- guage, area study, or international field of study for which the fellowship was awarded, for a period speci- fied by the Secretary, which period shall be determined in accordance with clause (i); and".

Arming Pilots Against Terrorism Act.

TITLE XIV- -ARMING PILOTS AGAINST TERRORISM

49 u s e 40101 note.

SEC. 1401. SHORT TITLE.

This title may be cited as the "Arming Pilots Against Terrorism Act". SEC. 1402. FEDERAL FLIGHT DECK OFFICER PROGRAM.

(a) IN GENERAL.—Subchapter I of chapter 449 of title 49, United States Code, is amended by adding at the end the following:

"§ 44921. Federal flight deck officer program "(a) ESTABLISHMENT.—The Under Secretary of Transportation

for Security shall establish a program to deputize volunteer pilots of air carriers providing passenger air transportation or intrastate passenger air transportation as Federal law enforcement officers to defend the flight decks of aircraft of such air carriers against

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2301

acts of criminal violence or air piracy. Such officers shall be known as 'Federal flight deck officers'.

"(b) PROCEDURAL REQUIREMENTS.— "(1) IN GENERAL.—Not later than 3 months after the date Deadline.

of enactment of this section, the Under Secretary shall establish procedural requirements to carry out the program under this section.

"(2) COMMENCEMENT OF PROGRAM.—Beginning 3 months after the date of enactment of this section, the Under Secretary shall begin the process of training and deputizing pilots who are qualified to be Federal flight deck officers as Federal flight deck officers under the program.

"(3) ISSUES TO BE ADDRESSED.—The procedural require- ments established ufider paragraph (1) shall address the fol- lowing issues:

"(A) The type of firearm to be used by a Federal flight deck officer.

"(B) The type of ammunition to be used by a Federal flight deck officer.

"(C) The standards and training needed to qualify and requalify as a Federal flight deck officer.

"(D) The placement of the firearm of a Federal flight deck officer on board the aircraft to ensure both its security and its ease of retrieval in an emergency.

"(E) An analysis of the risk of catastrophic failure of an aircraft as a result of the discharge (including an accidental discharge) of a firearm to be used in the program into the avionics, electrical systems, or other sensitive areas of the aircraft.

"(F) The division of responsibility between pilots in the event of an act of criminal violence or air piracy if only 1 pilot is a Federal flight deck officer and if both pilots are Federal flight deck officers.

"(G) Procedures for ensuring that the firearm of a Federal flight deck officer does not leave the cockpit if there is a disturbance in the passenger cabin of the aircraft or if the pilot leaves the cockpit for personal reasons.

"(H) Interaction between a Federal flight deck officer and a Federal air marshal on board the aircraft.

"(I) The process for selection of pilots to participate in the program based on their fitness to participate in the program, including whether an additional background check should be required beyond that required by section 44936(a)(1).

"(J) Storage and transportation of firearms between flights, including international flights, to ensure the secu- rity of the firearms, focusing particularly on whether such security would be enhanced by requiring storage of the firearm at the airport when the pilot leaves the airport to remain overnight away from the pilot's base airport.

"(K) Methods for ensuring that security personnel will be able to identify whether a pilot is authorized to carry a firearm under the program.

"(L) Methods for ensuring that pilots (including Federal flight deck officers) will be able to identify whether a pas- senger is a law enforcement officer who is authorized to carry a firearm aboard the aircraft.

116 STAT. 2302 PUBLIC LAW 107-296—NOV. 25, 2002

"(M) Any other issues that the Under Secretary con- siders necessary.

"(N) The Under Secretary's decisions regarding the methods for implementing each of the foregoing procedural requirements shall be subject to review only for abuse of discretion. "(4) PREFERENCE.—In selecting pilots to participate in the

program, the Under Secretary shall give preference to pilots who are former military or law enforcement personnel.

"(5) CLASSIFIED INFORMATION.—Notwithstanding section 552 of title 5 but subject to section 40119 of this title, informa- tion developed under paragraph (3)(E) shall not be disclosed.

"(6) NOTICE TO CONGRESS.—The Under Secretary shall pro- vide notice to the Committee on Transportation and Infrastruc- ture of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate after completing the analysis required by paragraph (3)(E).

"(7) MINIMIZATION OF RISK.—If the Under Secretary deter- mines as a result of the analysis under paragraph (3)(E) that there is a significant risk of the catastrophic failure of an aircraft as a result of the discharge of a firearm, the Under Secretary shall take such actions as may be necessary to mini- mize that risk. "(c) TRAINING, SUPERVISION, AND EQUIPMENT.—

"(1) IN GENERAL.—The Under Secretary shall only be obli- gated to provide the training, supervision, and equipment nec- essary for a pilot to be a Federal flight deck officer under this section at no expense to the pilot or the air carrier employing the pilot.

"(2) TRAINING.— "(A) IN GENERAL.—The Under Secretary shall base the

requirements for the training of Federal flight deck officers under subsection (b) on the training standards applicable to Federal air marshals; except that the Under Secretary shall take into account the differing roles and responsibil- ities of Federal flight deck officers and Federal air mar- shals.

"(B) ELEMENTS.—The training of a Federal flight deck officer shall include, at a minimum, the following elements:

"(i) Training to ensure that the officer achieves the level of proficiency with a firearm required under subparagraph (C)(i).

"(ii) Training to ensure that the officer maintains exclusive control over the officer's firearm at all times, including training in defensive maneuvers.

"(iii) Training to assist the officer in determining when it is appropriate to use the officer's firearm and when it is appropriate to use less than lethal force. "(C) TRAINING IN USE OF FIREARMS.—

"(i) STANDARD.—In order to be deputized as a Fed- eral flight deck officer, a pilot must achieve a level of proficiency with a firearm that is required by the Under Secretary. Such level shall be comparable to the level of proficiency required of Federal air mar- shals.

"(ii) CONDUCT OF TRAINING.—The training of a Fed- eral flight deck officer in the use of a firearm may

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2303

be conducted by the Under Secretary or by a firearms training facility approved by the Under Secretary.

"(iii) REQUALIFICATION.—The Under Secretary shall require a Federal flight deck officer to requalify to carry a firearm under the program. Such requalifica- tion shall occur at an interval required by the Under Secretary.

"(d) DEPUTIZATION.— "(1) IN GENERAL.—The Under Secretary may deputize, as

a Federal flight deck officer under this section, a pilot who submits to the Under Secretary a request to be such an officer and whom the Under Secretary determines is qualified to be such an officer.

"(2) QUALIFICATION.—^A pilot is qualified to be a Federal flight deck officer under this section if—

"(A) the pilot is employed by an air carrier; "(B) the Under Secretary determines (in the Under

Secretary's discretion) that the pilot meets the standards established by the Under Secretary for being such an officer; and

"(C) the Under Secretary determines that the pilot has completed the training required by the Under Sec- retary. "(3) DEPUTIZATION BY OTHER FEDERAL AGENCIES.—The

Under Secretary may request another Federal agency to depu- tize, as Federal flight deck officers under this section, those pilots that the Under Secretary determines are qualified to be such officers.

"(4) REVOCATION.—The Under Secretary may, (in the Under Secretary's discretion) revoke the deputization of a pilot as a Federal flight deck officer if the Under Secretary finds that the pilot is no longer qualified to be such an officer. "(e) COMPENSATION.—Pilots participating in the program under

this section shall not be eligible for compensation from the Federal Government for services provided as a Federal flight deck officer. The Federal Government and air carriers shall not be obligated to compensate a pilot for participating in the program or for the pilot's training or qualification and requalification to carry firearms under the program.

"(f) AUTHORITY TO CARRY FIREARMS.— "(1) IN GENERAL.—The Under Secretary shall authorize

a Federal flight deck officer to carry a firearm while engaged in providing air transportation or intrastate air transportation. Notwithstanding subsection (c)Cl), the officer may purchase a firearm and carry that firearm aboard an aircraft of which the officer is the pilot in accordance with this section if the firearm is of a type that may be used under the program.

"(2) PREEMPTION.—Notwithstanding any other provision of Federal or State law, a Federal flight deck officer, whenever necessary to participate in the program, may carry a firearm in any State and from 1 State to another State.

"(3) CARRYING FIREARMS OUTSIDE UNITED STATES.—In con- sultation with the Secretary of State, the Under Secretary may take such action as may be necessary to ensure that a Federal flight deck officer may carry a firearm in a foreign country whenever necessary to participate in the program.

116 STAT. 2304 PUBLIC LAW 107-296—NOV. 25, 2002

standards. "(g) AUTHORITY To USE FORCE.—Notwithstanding section 44903(d), the Under Secretary shall prescribe the standards and circumstances under which a Federal flight deck officer may use, while the program under this section is in effect, force (including lethal force) against an individual in the defense of the flight deck of an aircraft in air transportation or intrastate air transpor- tation.

"(h) LIMITATION ON LIABILITY.— "(1) LIABILITY OF AIR CARRIERS.—^An air carrier shall not

be liable for damages in any action brought in a Federal or State court arising out of a Federal flight deck officer's use of or failure to use a firearm.

"(2) LIABILITY OF FEDERAL FLIGHT DECK OFFICERS.—A Fed- eral flight deck officer shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the officer in defending the flight deck of an aircraft against acts of criminal violence or air piracy unless the officer is guilty of gross negligence or willful mis- conduct.

"(3) LIABILITY OF FEDERAL GOVERNMENT.—For purposes of an action against the United States with respect to an act or omission of a Federal flight deck officer in defending the flight deck of an aircraft, the officer shall be treated as an employee of the Federal Government under chapter 171 of title 28, relating to tort claims procedure. "(i) PROCEDURES FOLLOWING ACCIDENTAL DISCHARGES.—If an

accidental discharge of a firearm under the pilot program results in the injury or death of a passenger or crew member on an aircraft, the Under Secretary—

"(1) shall revoke the deputization of the Federal flight deck officer responsible for that firearm if the Under Secretary determines that the discharge was attributable to the neg- ligence of the officer; and

"(2) if the Under Secretary determines that a shortcoming in standards, training, or procedures was responsible for the accidental discharge, the Under Secretary may temporarily sus- pend the program until the shortcoming is corrected. "(j) LIMITATION ON AUTHORITY OF AIR CARRIERS.—No air carrier

shall prohibit or threaten any retaliatory action against a pilot employed by the air carrier from becoming a Federal flight deck officer under this section. No air carrier s h a l l ^

"(1) prohibit a Federal flight deck officer from piloting an aircraft operated by the air carrier; or

"(2) terminate the employment of a Federal flight deck officer, solely on the basis of his or her volunteering for or participating in the program under this section. "(k) APPLICABILITY.—

"(1) EXEMPTION.—This section shall not apply to air carriers operating under part 135 of title 14, Code of Federal Regula- tions, and to pilots employed by such carriers to the extent that such carriers and pilots are covered by section 135.119 of such title or any successor to such section.

"(2) PILOT DEFINED.—The term 'pilot' means an individual who has final authority and responsibility for the operation and safety of the flight or, if more than 1 pilot is required for the operation of the aircraft or by the regulations under

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2305

which the flight is being conducted, the individual designated as second in command.". (b) CONFORMING AMENDMENTS.—

(1) CHAPTER ANALYSIS.—The analysis for such chapter is amended by inserting after the item relating to section 44920 the following:

"44921. Federal flight deck officer program.".

(2) FLIGHT DECK SECURITY.—Section 128 of the Aviation and Transportation Security Act (Public Law 107-71) is repealed. (c) FEDERAL AIR MARSHAL PROGRAM.—

(1) SENSE OF CONGRESS.—It is the sense of Congress that the Federal air marshal program is critical to aviation security.

(2) LIMITATION ON STATUTORY CONSTRUCTION.—Nothing in this Act, including any amendment made by this Act, shall be construed as preventing the Under Secretary of Transpor- tation for Security from implementing and training Federal air marshals.

SEC. 1403. CREW TRAINESfG.

-Section 44918(e) of title 49, United States

'The Administrator" and inserting the fol-

(a) IN GENERAL. Code, is amended—

(1) by striking lowing:

"(1) IN GENERAL.—The Under Secretary"; (2) by adding at the end the following: "(2) ADDITIONAL REQUIREMENTS.—In updating the training

guidance, the Under Secretary, in consultation with the Administrator, shall issue a rule to—

"(A) require both classroom and effective hands-on situational training in the following elements of self defense:

"(i) recognizing suspicious activities and deter- mining the seriousness of an occurrence;

"(ii) deterring a passenger who might present a problem;

"(iii) crew communication and coordination; "(iv) the proper commands to give to passengers

and attackers; "(v) methods to subdue and restrain an attacker; "(vi) use of available items aboard the aircraft

for self-defense; "(vii) appropriate and effective responses to defend

oneself, including the use of force against an attacker; "(viii) use of protective devices assigned to crew

members (to the extent such devices are approved by the Administrator or Under Secretary);

"(ix) the psychology of terrorists to cope with their behavior and passenger responses to that behavior; and

"(x) how to respond to aircraft maneuvers that may be authorized to defend against an act of criminal violence or air piracy; "(B) require training in the proper conduct of a cabin

search, including the duty tinie required to conduct the search;

49 u s e 44903 note. 6 u s e 513.

Regulations.

116 STAT. 2306 PUBLIC LAW 107-296—NOV. 25, 2002

Deadline.

"(C) establish the required number of hours of training and the quaHfications for the training instructors;

"(D) establish the intervals, number of hours, and ele- ments of recurrent training;

"(E) ensure that air carriers provide the initial training required by this paragraph within 24 months of the date of enactment of this subparagraph; and

"(F) ensure that no person is required to participate in any hands-on training activity that that person believes will have an adverse impact on his or her health or safety. "(3) RESPONSIBILITY OF UNDER SECRETARY.—(A) CONSULTA-

TION.—In developing the rule under paragraph (2), the Under Secretary shall consult with law enforcement personnel and security experts who have expertise in self-defense training, terrorism experts, and representatives of air carriers, the pro- vider of self-defense training for Federal air marshals, flight attendants, labor organizations representing flight attendants, and educational institutions offering law enforcement training programs.

"(B) DESIGNATION OF OFFICIAL.—The Under Secretary shall designate an official in the Transportation Security Administra- tion to be responsible for overseeing the implementation of the training program under this subsection.

"(C) NECESSARY RESOURCES AND KNOWLEDGE.—The Under Secretary shall ensure that employees of the Administration responsible for monitoring the training program have the nec- essary resources and knowledge."; and

(3) by aligning the remainder of the text of paragraph (1) (as designated by paragraph (1) of this section) with para- graphs (2) and (3) (as added by paragraph (2) of this section). (b) ENHANCE SECURITY MEASURES.—Section 109(a) of the Avia-

tion and Transportation Security Act (49 U.S.C. 114 note; 115 Stat. 613-614) is amended by adding at the end the following:

"(9) Require that air carriers provide flight attendants with a discreet, hands-free, wireless method of communicating with the pilots.". (c) BENEFITS AND RISKS OF PROVIDING FLIGHT ATTENDANTS

WITH NONLETHAL WEAPONS.— (1) STUDY.—^The Under Secretary of Transportation for

Security shall conduct a study to evaluate the benefits and risks of providing flight attendants with nonlethal weapons to aide in combating air piracy and criminal violence on commercial airlines.

(2) REPORT.—Not later than 6 months after the date of enactment of this Act, the Under Secretary shall transmit to Congress a report on the results of the study.

SEC. 1404. COMMERCIAL AIRLINE SECURITY STUDY.

(a) STUDY.—The Secretary of Transportation shall conduct a study of the following:

(1) The number of armed Federal law enforcement officers (other than Federal air marshals), who travel on commercial airliners annually and the frequency of their travel.

(2) The cost and resources necessary to provide such officers with supplemental training in aircraft anti-terrorism training that is comparable to the training that Federal air marshals are provided.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2307

(3) The cost of establishing a program at a Federal law enforcement training center for the purpose of providing new Federal law enforcement recruits with standardized training comparable to the training that Federal air marshals are pro- vided.

(4) The feasibility of implementing a certification program designed for the purpose of ensuring Federal law enforcement officers have completed the training described in paragraph (2) and track their travel over a 6-month period.

(5) The feasibility of staggering the flights of such officers to ensure the maximum amount of flights have a certified trained Federal officer on board. (b) REPORT.—Not later than 6 months after the date of enact- Deadline,

ment of this Act, the Secretary shall transmit to Congress a report on the results of the study. The report may be submitted in classi- fied and redacted form.

SEC. 1405. AUTHORITY TO ARM FLIGHT DECK CREW WITH LESS-THAN- LETHAL WEAPONS.

(a) IN GENERAL.—Section 44903(i) of title 49, United States Code (as redesignated by section 6 of this Act) is amended by adding at the end the following:

"(3) REQUEST OF AIR CARRIERS TO USE LESS-THAN-LETHAL WEAPONS.—If, after the date of enactment of this paragraph, the Under Secretary receives a request from an air carrier for authorization to allow pilots of the air carrier to carry less-than-lethal weapons, the Under Secretary shall respond to that request within 90 days.". (b) CONFORMING AMENDMENTS.—Such section is further

amended— (1) in paragraph (1) by striking "Secretary" the first and

third places it appears and inserting "Under Secretary"; and (2) in paragraph (2) by striking "Secretary" each place

it appears and inserting "Under Secretary".

SEC. 1406. TECHNICAL AMENDMENTS.

Section 44903 of title 49, United States Code, is amended— (1) by redesignating subsection (i) (relating to short-term

assessment and deployment of emerging security technologies and procedures) as subsection (j);

(2) by redesignating the second subsection (h) (relating to authority to arm flight deck crew with less-than-lethal weapons) as subsection (i); and

(3) by redesignating the third subsection (h) (relating to limitation on liability for acts to thwart criminal violence for aircraft piracy) as subsection (k).

TITLE XV—TRANSITION

Subtitle A—Reorganization Plan

SEC. 1501. DEFINITIONS. 6 USC 541.

For purposes of this title: (1) The term "agency" includes any entity, organizational

unit, program, or function.

116 STAT. 2308 PUBLIC LAW 107-296—NOV. 25, 2002

(2) The term "transition period" means the 12-month period beginning on the effective date of this Act.

6 use 542. SEC. 1502. REORGANIZATION PLAN. Deadline. (a) SUBMISSION OF PLAN.—Not later than 60 days after the President. date of the enactment of this Act, the President shall transmit

to the appropriate congressional committees a reorganization plan regarding the following:

(1) The transfer of agencies, personnel, assets, and obliga- tions to the Department pursuant to this Act.

(2) Any consolidation, reorganization, or streamlining of agencies transferred to the Department pursuant to this Act. (b) PLAN ELEMENTS.—The plan transmitted under subsection

(a) shall contain, consistent with this Act, such elements as the President deems appropriate, including the following:

(1) Identification of any functions of agencies transferred to the Department pursuant to this Act that will not be trans- ferred to the Department under the plan.

(2) Specification of the steps to be taken by the Secretary to organize the Department, including the delegation or assign- ment of functions transferred to the Department among officers of the Department in order to permit the Department to carry out the functions transferred under the plan.

(3) Specification of the funds available to each agency that will be transferred to the Department as a result of transfers under the plan.

(4) Specification of the proposed allocations within the Department of unexpended funds transferred in connection with transfers under the plan.

(5) Specification of any proposed disposition of property, facilities, contracts, records, and other assets and obligations of agencies transferred under the plan.

(6) Specification of the proposed allocations within the Department of the functions of the agencies and subdivisions that are not related directly to securing the homeland. (c) MODIFICATION OF PLAN.—The President may, on the basis

of consultations with the appropriate congressional committees, modify or revise any part of the plan until that part of the plan becomes effective in accordance with subsection (d).

(d) EFFECTIVE DATE.— (1) IN GENERAL.—The reorganization plan described in this

section, including any modifications or revisions of the plan under subsection (d), shall become effective for an agency on the earlier of—

(A) the date specified in the plan (or the plan as modified pursuant to subsection (d)), except that such date may not be earlier than 90 days after the date the President has transmitted the reorganization plan to the appropriate congressional committees pursuant to subsection (a); or

(B) the end of the transition period. (2) STATUTORY CONSTRUCTION.—Nothing in this subsection

may be construed to require the transfer of functions, personnel, records, balances of appropriations, or other assets of an agency on a single date.

Applicability. (3) SUPERSEDES EXISTING LAW.—Paragraph (1) shall apply notwithstanding section 905(b) of title 5, United States Code.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2309

SEC. 1503. REVIEW OF CONGRESSIONAL COMMITTEE STRUCTURES. 6 USC 543.

It is the sense of Congress that each House of Congress should review its committee structure in hght of the reorganization of responsibiUties within the executive branch by the estabhshment of the Department.

Subtitle B—Transitional Provisions SEC. 1511. TRANSITIONAL AUTHORITIES. 6 USC 551.

(a) PROVISION OF ASSISTANCE BY OFFICIALS.—Until the transfer of an agency to the Department, any official having authority over or functions relating to the agency immediately before the effective date of this Act shall provide to the Secretary such assistance, including the use of personnel and assets, as the Secretary may request in preparing for the transfer and integration of the agency into the Department.

(b) SERVICES AND PERSONNEL.—During the transition period, upon the request of the Secretary, the head of any executive agency may, on a reimbursable basis, provide services or detail personnel to assist with the transition.

(c) ACTING OFFICIALS.—(1) During the transition period, pending the advice and consent of the Senate to the appointment of an officer required by this Act to be appointed by and with such advice and consent, the President may designate any officer whose appointment was required to be made by and with such advice and consent and who was such an officer immediately before the effective date of this Act (and who continues in office) or immediately before such designation, to act in such office until the same is filled as provided in this Act. While so acting, such officers shall receive compensation at the higher of—

(A) the rates provided by this Act for the respective offices in which they act; or

(B) the rates provided for the offices held at the time of designation. (2) Nothing in this Act shall be understood to require the

advice and consent of the Senate to the appointment by the Presi- dent to a position in the Department of any officer whose agency is transferred to the Department pursuant to this Act and whose duties following such transfer are germane to those performed before such transfer.

(d) TRANSFER OF PERSONNEL, ASSETS, OBLIGATIONS, AND FUNC- TIONS.—Upon the transfer of an agency to the Department—

(1) the personnel, assets, and obligations held by or avail- able in connection with the agency shall be transferred to the Secretary for appropriate allocation, subject to the approval of the Director of the Office of Management and Budget and in accordance with the provisions of section 1531(a)(2) of title 31, United States Code; and

(2) the Secretary shall have all functions relating to the agency that any other official could by law exercise in relation to the agency immediately before such transfer, and shall have in addition all functions vested in the Secretary by this Act or other law. (e) PROHIBITION ON USE OF TRANSPORTATION TRUST FUNDS.—

(1) IN GENERAL.—Notwithstanding any other provision of this Act, no funds derived from the Highway Trust Fund,

116 STAT. 2310 PUBLIC LAW 107-296—NOV. 25, 2002

Airport and Airway Trust Fund, Inland Waterway Trust Fund, or Harbor Maintenance Trust Fund, may be transferred to, made available to, or obligated by the Secretary or any other official in the Department.

(2) LIMITATION.—This subsection shall not apply to secu- rity-related funds provided to the Federal Aviation Administra- tion for fiscal years preceding fiscal year 2003 for (A) operations, (B) facilities and equipment, or (C) research, engineering, and development.

6 use 552. SEC. 1512. SAVINGS PROVISIONS.

(a) COMPLETED ADMINISTRATIVE ACTIONS.—(1) Completed administrative actions of an agency shall not be affected by the enactment of this Act or the transfer of such agency to the Depart- ment, but shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an officer of the United States or a court of competent jurisdiction, or by operation of law.

(2) For purposes of paragraph (1), the term "completed adminis- trative action" includes orders, determinations, rules, regulations, personnel actions, permits, agreements, grants, contracts, certifi- cates, licenses, registrations, and privileges.

(b) PENDING PROCEEDINGS.—Subject to the authority of the Secretary under this Act—

(1) pending proceedings in an agency, including notices of proposed rulemaking, and applications for licenses, permits, certificates, grants, and financial assistance, shall continue not- withstanding the enactment of this Act or the transfer of the agency to the Department, unless discontinued or modified under the same terms and conditions and to the same extent that such discontinuance could have occurred if such enactment or transfer had not occurred; and

(2) orders issued in such proceedings, and appeals there- from, and payments made pursuant to such orders, shall issue in the same manner and on the same terms as if this Act had not been enacted or the agency had not been transferred, and any such orders shall continue in effect until amended, modified, superseded, terminated, set aside, or revoked by an officer of the United States or a court of competent jurisdiction, or by operation of law. (c) PENDING CIVIL ACTIONS.—Subject to the authority of the

Secretary under this Act, pending civil actions shall continue not- withstanding the enactment of this Act or the transfer of an agency to the Department, and in such civil actions, proceedings shall be had, appeals taken, and judgments rendered and enforced in the same manner and with the same effect as if such enactment or transfer had not occurred.

(d) REFERENCES.—References relating to an agency that is transferred to the Department in statutes, Executive orders, rules, regulations, directives, or delegations of authority that precede such transfer or the effective date of this Act shall be deemed to refer, as appropriate, to the Department, to its officers, employees, or agents, or to its corresponding organizational units or functions. Statutory reporting requirements that applied in relation to such an agency immediately before the effective date of this Act shall continue to apply following such transfer if they refer to the agency by name.

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2311

(e) EMPLOYMENT PROVISIONS.—(1) Notwithstanding the gen- erality of the foregoing (including subsections (a) and (d)), in and for the Department the Secretary may, in regulations prescribed jointly with the Director of the Office of Personnel Management, adopt the rules, procedures, terms, and conditions, established by statute, rule, or regulation before the effective date of this Act, relating to employment in any agency transferred to the Depart- ment pursuant to this Act; and

(2) except as otherwise provided in this Act, or under authority granted by this Act, the transfer pursuant to this Act of personnel shall not alter the terms and conditions of employment, including compensation, of any employee so transferred.

(f) STATUTORY REPORTING REQUIREMENTS.—^Any statutory reporting requirement that applied to an agency, transferred to the Department under this Act, immediately before the effective date of this Act shall continue to apply following that transfer if the statutory requirement refers to the agency by name.

SEC. 1513. TERMINATIONS. 6 USC 553.

Except as otherwise provided in this Act, whenever all the functions vested by law in any agency have been transferred pursu- ant to this Act, each position and office the incumbent of which was authorized to receive compensation at the rates, prescribed for an office or position at level II, III, IV, or V, of the Executive Schedule, shall terminate.

SEC. 1514. NATIONAL IDENTIFICATION SYSTEM NOT AUTHORIZED. 6 USC 554.

Nothing in this Act shall be construed to authorize the develop- ment of a national identification system or card.

SEC. 1515. CONTINUITY OF INSPECTOR GENERAL OVERSIGHT. 6 USC 555.

Notwithstanding the transfer of an agency to the Department pursuant to this Act, the Inspector General that exercised oversight of such agency prior to such transfer shall continue to exercise oversight of such agency during the period of time, if any, between the transfer of such agency to the Department pursuant to this Act and the appointment of the Inspector General of the Department of Homeland Security in accordance with section 103(b).

SEC. 1516. INCIDENTAL TRANSFERS. 6 USC 556.

The Director of the Office of Management and Budget, in con- sultation with the Secretary, is authorized and directed to make such additional incidental dispositions of personnel, assets, and liabilities held, used, arising from, available, or to be made avail- able, in connection with the functions transferred by this Act, as the Director may determine necessary to accomplish the purposes of this Act.

SEC. 1517. REFERENCE. 6 USC 557.

With respect to any function transferred by or under this Act (including under a reorganization plan that becomes effective under section 1502) and exercised on or after the effective date of this Act, reference in any other Federal law to any department, commis- sion, or agency or any officer or office the functions of which are so transferred shall be deemed to refer to the Secretary, other official, or component of the Department to which such function is so transferred.

116 STAT. 2312 PUBLIC LAW 107-296—NOV. 25, 2002

TITLE XVI—CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE TRANS- PORTATION SECURITY

SEC. 1601. RETENTION OF SECURITY SENSITIVE INFORMATION AUTHORITY AT DEPARTMENT OF TRANSPORTATION.

(a) Section 40119 of title 49, United States Code, is amended— (1) in subsection (a)—

(A) by inserting "and the Administrator of the Federal Aviation Administration each" after "for Security"; and

(B) by striking "criminal violence and aircraft piracy" and inserting "criminal violence, aircraft piracy, and ter- rorism and to ensure security"; and (2) in subsection (b)(1)—

(A) by striking ", the Under Secretary" and inserting "and the establishment of a Department of Homeland Secu- rity, the Secretary of Transportation";

(B) by striking "carrying out" and all that follows through "if the Under Secretary" and inserting "ensuring security under this title if the Secretary of Transportation"; and

(C) in subparagraph (C) by striking "the safety of pas- sengers in transportation" and inserting "transportation safety".

(b) Section 114 of title 49, United States Code, is arnended by adding at the end the following:

"(s) NONDISCLOSURE OF SECURITY ACTIVITIES.— Regulations. "(1) IN GENERAL.—Notwithstanding section 552 of title 5,

the Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary decides that disclosing the information would—

"(A) be an unwarranted invasion of personal privacy; "(B) reveal a trade secret or privileged or confidential

commercial or financial information; or "(C) be detrimental to the security of transportation.

"(2) AVAILABILITY OF INFORMATION TO CONGRESS.—Para- graph (1) does not authorize information to be withheld from a committee of Congress authorized to have the information.

"(3) LIMITATION ON TRANSFERABILITY OF DUTIES.—Except as otherwise provided by law, the Under Secretary may not transfer a duty or power under this subsection to another department, agency, or instrumentality of the United States.".

SEC. 1602. INCREASE IN CIVIL PENALTIES.

Section 46301(a) of title 49, United States Code, is amended by adding at the end the following:

"(8) AVIATION SECURITY VIOLATIONS.—Notwithstanding paragraphs (1) and (2) of this subsection, the maximum civil penalty for violating chapter 449 or another requirement under this title administered by the Under Secretary of Transpor- tation for Security shall be $10,000; except that the maximum civil penalty shall be $25,000 in the case of a person operating

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2313

an aircraft for the transportation of passengers or property for compensation (except an individual serving as an airman).".

SEC. 1603. ALLOWING UNITED STATES CITIZENS AND UNITED STATES NATIONALS AS SCREENERS.

Section 44935(e)(2)(A)(ii) of title 49, United States Code, is amended by striking "citizen of the United States" and inserting "citizen of the United States or a national of the United States, as defined in section 1101(a)(22) of the Immigration and Nationality Act(8U.S.C. 1101(a)(22))".

TITLE XVII—CONFORMING AND TECHNICAL AMENDMENTS

SEC. 1701. INSPECTOR GENERAL ACT OF 1978.

Section 11 of the Inspector General Act of 1978 (Public Law 95-452) is amended— 5 USC app. 11.

(1) by inserting "Homeland Security," after "Transpor- tation," each place it appears; and

(2) by striking "; and" each place it appears in paragraph (1) and inserting ";".

SEC. 1702. EXECUTIVE SCHEDULE.

(a) IN GENERAL.—Title 5, United States Code, is amended— (1) in section 5312, by inserting "Secretary of Homeland

Security." as a new item after "Affairs."; (2) in section 5313, by inserting "Deputy Secretary of Home-

land Security." as a new item after "Affairs."; (3) in section 5314, by inserting "Under Secretaries, Depart-

ment of Homeland Security.", "Director of the Bureau of Citizen- ship and Immigration Services." as new items after "Affairs." the third place it appears;

(4) in section 5315, by inserting "Assistant Secretaries, Department of Homeland Security.", "General Counsel, Depart- ment of Homeland Security.", "Officer for Civil Rights and Civil Liberties, Department of Homeland Security.", "Chief Financial Officer, Department of Homeland Security.", "Chief Information Officer, Department of Homeland Security.", and "Inspector General, Department of Homeland Security." as new items after "Affairs." the first place it appears; and

(5) in section 5315, by striking "Commissioner of Immigra- tion and Naturalization, Department of Justice.". (b) SPECIAL EFFECTIVE DATE.—Notwithstanding section 4, the 5 use 5315 note,

amendment made by subsection (a)(5) shall take effect on the date on which the transfer of functions specified under section 441 takes effect.

SEC. 1703. UNITED STATES SECRET SERVICE.

(a) IN GENERAL.—(1) The United States Code is amended in section 202 of title 3, and in section 3056 of title 18, by striking "of the Treasury", each place it appears and inserting "of Homeland Security".

(2) Section 208 of title 3, United States Code, is amended by striking "of Treasury" each place it appears and inserting "of Homeland Security".

116 STAT. 2314 PUBLIC LAW 107-296—NOV. 25, 2002

3 use 202 note. (b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of transfer of the United States Secret Service to the Department.

SEC. 1704. COAST GUARD. (a) TITLE 14, UNITED STATES CODE.—Title 14, United States

Code, is amended in sections 1, 3, 53, 95, 145, 516, 666, 669, 673, 673a (as redesignated by subsection (e)(1)), 674, 687, and 688 by striking "of Transportation" each place it appears and inserting "of Homeland Security".

(b) TITLE 10, UNITED STATES CODE.—(1) Title 10, United States Code, is amended in sections 101(9), 130b(a), 130b(c)(4), 130c(h)(l), 379, 513(d), 575(b)(2), 580(e)(6), 580a(e), 651(a), 671(c)(2), 708(a), 716(a), 717, 806(d)(2), 815(e), 888, 946(c)(1), 973(d), 978(d), 983(b)(1), 985(a), 1033(b)(1), 1033(d), 1034, 1037(c), 1044d(f), 1058(c), 1059(a), 1059(k)(l), 1073(a), 1074(cXl), 1089(g)(2), 1090, 1091(a), 1124, 1143, 1143a(h), 1144, 1145(e), 1148, 1149, 1150(c), 1152(a), 1152(d)(1), 1153, 1175, 1212(a), 1408(h)(2), 1408(h)(8), 1463(a)(2), 1482a(b), 1510, 1552(a)(1), 1565(f), 1588(f)(4), 1589, 2002(a), 2302(1), 2306b(b), 23230')(2), 2376(2), 2396(b)(1), 2410a(a), 2572(a), 2575(a), 2578, 2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a, 2775, 2830(b)(2), 2835, 2836, 4745(a), 5013a(a), 7361(b), 10143(b)(2), 10146(a), 10147(a), 10149(b), 10150, 10202(b), 10203(d), 10205(b), 10301(b), 12103(b), 12103(d), 12304, 12311(c), 12522(c), 12527(a)(2), 12731(b), 12731a(e), 16131(a), 16136(a), 16301(g), and 18501 by striking "of Transportation" each place it appears and inserting "of Homeland Security".

(2) Section 801(1) of such title is amended by striking "the General Counsel of the Department of Transportation" and inserting "an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security".

(3) Section 983(d)(2)(B) of such title is amended by striking "Department of Transportation" and inserting "Department of Homeland Security".

(4) Section 2665(b) of such title is amended by striking "Depart- ment of Transportation" and inserting "Department in which the Coast Guard is operating".

(5) Section 7045 of such title is amended— (A) in subsections (a)(1) and (b), by striking "Secretaries

of the Army, Air Force, and Transportation" both places it appears and inserting "Secretary of the Army, the Secretary of the Air Force, and the Secretary of Homeland Security"; and

(B) in subsection (b), by striking "Department of Transpor- tation" and inserting "Department of Homeland Security". (6) Section 7361(b) of such title is amended in the subsection

heading by striking "TRANSPORTATION" and inserting "HOMELAND SECURITY".

(7) Section 12522(c) of such title is amended in the subsection heading by striking "TRANSPORTATION" and inserting "HOMELAND SECURITY".

(c) TITLE 37, UNITED STATES CODE.—Title 37, United States Code, is amended in sections 101(5), 204(i)(4), 301a(a)(3), 306(d), 307(c), 308(aXl), 308(d)(2), 308(f), 308b(e), 308c(c), 308d(a), 308e(f), 308g(g), 308h(f), 308i(e), 309(d), 316(d), 323(b), 323(gXl), 325(i), 402(d), 402a(gXl), 403(f)(3), 403(1X1), 403b(iX5), 406(bXl), 417(a), 417(b), 418(a), 703, 1001(c), 1006(f), 1007(a), and 1011(d) by striking

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2315

"of Transportation" each place it appears and inserting "of Home- land Security".

(d) TITLE 38, UNITED STATES CODE.—Title 38, United States Code, is amended in sections 101(25)(d), 1560(a), 3002(5), 3011(a)(l)(A)(ii)(I), 3011(a)(l)(A)(ii)(II), 3011(a)(l)(B)(ii)(III), 3011(a)(l)(C)(iii)(II)(cc), 3012(b)(l)(A)(v), 3012(b)(l)(B)(ii)(V), 3018(b)(3)(B)(iv), 3018A(a)(3), 3018B(a)(l)(C), 3018B(a)(2)(C), 3018C(a)(5), 3020(m), 3035(b)(2), 3035(c), 3035(d), 3035(e), 3680A(g), and 6105(c) by striking "of Transportation" each place it appears and inserting "of Homeland Security".

(e) OTHER DEFENSE-RELATED LAWS.—(1) Section 363 of Public Law 104-193 (110 Stat. 2247) is amended—

(A) in subsection (a)(1) (10 U.S.C. 113 note), by striking "of Transportation" and inserting "of Homeland Security"; and

(B) in subsection (b)(1) (10 U.S.C. 704 note), by striking "of Transportation" and inserting "of Homeland Security". (2) Section 721(1) of Public Law 104^201 (10 U.S.C. 1073 note)

is amended by striking "of Transportation" and inserting "of Home- land Security".

(3) Section 4463(a) of Public Law 102-484 (10 U.S.C. 1143a note) is amended by striking "after consultation with the Secretary of Transportation".

(4) Section 4466(h) of Public Law 102-484 (10 U.S.C. 1143 note) is amended by striking "of Transportation" and inserting "of Homeland Security".

(5) Section 542(d) of Public Law 103-337 (10 U.S.C. 1293 note) is amended by striking "of Transportation" and inserting "of Home- land Security".

(6) Section 740 of Public Law 106-181 (10 U.S.C. 2576 note) is amended in subsections (b)(2), (c), and (d)(1) by striking "of Transportation" each place it appears and inserting "of Homeland Security".

(7) Section 1407(b)(2) of the Defense Dependents' Education Act of 1978 (20 U.S.C. 926(b)) is amended by striking "of Transpor- tation" both places it appears and inserting "of Homeland Security".

(8) Section 2301(5)(D) of the Elementary and Secondary Edu- cation Act of 1965 (20 U.S.C. 6671(5)(D)) is amended by striking "of Transportation" and inserting "of Homeland Security".

(9) Section 2307(a) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6677(a)) is amended by striking "of Transpor- tation" and inserting "of Homeland Security".

(10) Section 1034(a) of Public Law 105-85 (21 U.S.C. 1505a(a)) is amended by striking "of Transportation" and inserting "of Home- land Security".

(11) The Military Selective Service Act is amended— (A) in section 4(a) (50 U.S.C. App. 454(a)), by striking

"of Transportation" in the fourth paragraph and inserting "of Homeland Security";

(B) in section 4(b) (50 U.S.C. App. 454(b)), by striking "of Transportation" both places it appears and inserting "of Homeland Security";

(C) in section 6(d)(1) (50 U.S.C. App. 456(d)(1)), by striking "of Transportation" both places it appears and inserting "of Homeland Security";

(D) in section 9(c) (50 U.S.C. App. 459(c)), by striking "Secretaries of Army, Navy, Air Force, or Transportation" and

116 STAT. 2316 PUBLIC LAW 107-296—NOV. 25, 2002

inserting "Secretary of a military department, and the Secretary of Homeland Security with respect to the Coast Guard,"; and

(E) in section 15(e) (50 U.S.C. App. 465(e)), by striking "of Transportation" both places it appears and inserting "of Homeland Security". (f) TECHNICAL CORRECTION.—(1) Title 14, United States Code,

is amended by redesignating section 673 (as added by section 309 of Pubhc Law 104-324) as section 673a.

(2) The table of sections at the beginning of chapter 17 of such title is amended by redesignating the item relating to such section as section 673a.

10 use 101 note. (g) EFFECTIVE DATE.—The amendments made by this section (other than subsection (f)) shall take effect on the date of transfer of the Coast Guard to the Department.

SEC. 1705. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE DEVELOPMENT.

(a) IN GENERAL.—Section 121 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Public Law 107-188; 42 U.S.C. 300hh-12) is amended—

(1) in subsection (a)(1)— (A) by striking "Secretary of Health and Human Serv-

ices" and inserting "Secretary of Homeland Security"; (B) by inserting "the Secretary of Health and Human

Services and" between "in coordination with" and "the Sec- retary of Veterans Affairs"; and

(C) by inserting "of Health and Human Services" after "as are determined by the Secretary"; and (2) in subsections (a)(2) and (b), by inserting "of Health

and Human Services" after "Secretary" each place it appears. 42 use (b) EFFECTIVE DATE.—The amendments made by this section 300hh-l2 note. shall take effect on the date of transfer of the Strategic National

Stockpile of the Department of Health and Human Services to the Department.

SEC. 1706. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT FUNCTIONS AND AUTHORITIES.

(a) AMENDMENT TO TITLE 40.—Section 581 of title 40, United States Code, is amended—

(1) by striking subsection (a); and (2) in subsection (b)—

(A) by inserting "and" after the semicolon at the end of paragraph (1);

(B) by striking "; and" at the end of paragraph (2) and inserting a period; and

(C) by striking paragraph (3). (b) LAW ENFORCEMENT AUTHORITY.—

(1) IN GENERAL.—Section 1315 of title 40, United States Code, is amended to read as follows:

"§ 1315. Law enforcement authority of Secretary of Homeland Security for protection of public property

"(a) IN GENERAL.—To the extent provided for by transfers made pursuant to the Homeland Security Act of 2002, the Secretary of Homeland Security (in this section referred to as the 'Secretary') shall protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government (including any

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2317

agency, instrumentality, or wholly owned or mixed-ownership cor- poration thereof) and the persons on the property.

"(b) OFFICERS AND AGENTS.-— "(1) DESIGNATION.—The Secretary may designate

employees of the Department of Homeland Security, including employees transferred to the Department from the Office of the Federal Protective Service of the General Services Adminis- tration pursuant to the Homeland Security Act of 2002, as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.

"(2) POWERS.—^While engaged in the performance of official duties, an officer or agent designated under this subsection may—

"(A) enforce Federal laws and regulations for the protection of persons and property;

"(B) carry firearms; "(C) make arrests without a warrant for any offense

against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony;

"(D) serve warrants and subpoenas issued under the authority of the United States;

"(E) conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Govern- ment or persons on the property; and

"(F) carry out such other activities for the promotion of homeland security as the Secretary may prescribe.

"(c) REGULATIONS.— "(1) IN GENERAL.—^The Secretary, in consultation with the

Administrator of General Services, may prescribe regulations necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property. The regulations may include reasonable pen- alties, within the limits prescribed in paragraph (2), for viola- tions of the regulations. The regulations shall be posted and remain posted in a conspicuous place on the property.

"(2) PENALTIES.—^A person violating a regulation prescribed under this subsection shall be fined under title 18, United States Code, imprisoned for not more than 30 days, or both. "(d) DETAILS.—

"(1) REQUESTS OF AGENCIES.—On the request of the head of a Federal agency having charge or control of property owned or occupied by the Federal Government, the Secretary may detail officers and agents designated under this section for the protection of the property and persons on the property.

"(2) APPLICABILITY OF REGULATIONS.—The Secretary may— "(A) extend to property referred to in paragraph (1)

the applicability of regulations prescribed under this sec- tion and enforce the regulations as provided in this section;

116 STAT. 2318 PUBLIC LAW 107-296—NOV. 25, 2002

"(B) utilize the authority and regulations of the requesting agency if agreed to in writing by the agencies. "(3) FACILITIES AND SERVICES OF OTHER AGENCIES.—When

the Secretary determines it to be economical and in the public interest, the Secretary may utilize the facilities and services of Federal, State, and local law enforcement agencies, with the consent of the agencies. "(e) AUTHORITY OUTSIDE FEDERAL PROPERTY.—For the protec-

tion of property owned or occupied by the Federal Government and persons on the property, the Secretary may enter into agree- ments with Federal agencies and with State and local governments to obtain authority for officers and agents designated under this section to enforce Federal laws and State and local laws concur- rently with other Federal law enforcement officers and with State and local law enforcement officers.

"(f) SECRETARY AND ATTORNEY GENERAL APPROVAL.—The powers granted to officers and agents designated under this section shall be exercised in accordance with guidelines approved by the Secretary and the Attorney General.

"(g) LIMITATION ON STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to—

"(1) preclude or limit the authority of any Federal law enforcement agency; or

"(2) restrict the authority of the Administrator of General Services to promulgate regulations affecting property under the Administrator's custody and control.".

40 use 1315 (2) DELEGATION OF AUTHORITY.—The Secretary may dele- note, gate authority for the protection of specific buildings to another

Federal agency where, in the Secretary's discretion, the Sec- retary determines it necessary for the protection of that building.

(3) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 13 of title 40, United States Code, is amended by striking the item relating to section 1315 and inserting the following:

"1315. Law enforcement authority of Secretary of Homeland Security for protection of public property.".

SEC. 1707. TRANSPORTATION SECURITY REGULATIONS.

Title 49, United States Code, is amended— (1) in section 114(1)(2)(B), by inserting "for a period not

to exceed 90 days" after "effective"; and (2) in section 114(1)(2)(B), by inserting "ratified or" after

"unless". Establishment. SEC. 1708. NATIONAL BIO-WEAPONS DEFENSE ANALYSIS CENTER.

note. There is established in the Department of Defense a National Bio-Weapons Defense Analysis Center, whose mission is to develop countermeasures to potential attacks by terrorists using weapons of mass destruction. SEC. 1709. C O L L A B O R A T I O N WITH THE SECRETARY OF HOMELAND

SECURITY.

(a) DEPARTMENT OF HEALTH AND HUMAN SERVICES.—The second sentence of section 351A(e)(l) of the Public Health Service

42 use 262a. Act (42 U.S.C. 262A(e)(l)) is amended by striking "consultation with" and inserting "collaboration with the Secretary of Homeland Security and".

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2319

(b) DEPARTMENT OF AGRICULTURE.—The second sentence of sec- tion 212(e)(1) of the Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C. 8401) is amended by striking "consultation with" and inserting "collaboration with the Secretary of Homeland Secu- rity and". SEC. 1710. RAILROAD SAFETY TO INCLUDE RAILROAD SECURITY.

(a) INVESTIGATION AND SURVEILLANCE ACTIVITIES.—Section 20105 of title 49, United States Code, is amended—

(1) by striking "Secretary of Transportation" in the first sentence of subsection (a) and inserting "Secretary concerned";

(2) by striking "Secretary" each place it appears (except the first sentence of subsection (a)) and inserting "Secretary concerned";

(3) by striking "Secretary's duties under chapters 203- 213 of this title" in subsection (d) and inserting "duties under chapters 203-213 of this title (in the case of the Secretary of Transportation) and duties under section 114 of this title (in the case of the Secretary of Homeland Security)";

(4) by striking "chapter." in subsection (f) and inserting "chapter (in the case of the Secretary of Transportation) and duties under section 114 of this title (in the case of the Secretary of Homeland Security)."; and

(5) by adding at the end the following new subsection: "(g) DEFINITIONS.—In this section—

"(1) the term 'safety' includes security; and "(2) the term 'Secretary concerned' means—

"(A) the Secretary of Transportation, with respect to railroad safety matters concerning such Secretary under laws administered by that Secretary; and

"(B) the Secretary of Homeland Security, with respect to railroad safety matters concerning such Secretary under laws administered by that Secretary.".

(b) REGULATIONS AND ORDERS.—Section 20103(a) of such title is amended by inserting after "1970." the following: "When pre- scribing a security regulation or issuing a security order that affects the safety of railroad operations, the Secretary of Homeland Secu- rity shall consult with the Secretary.".

(c) NATIONAL UNIFORMITY OF REGULATION.—Section 20106 of such title is amended—

(1) by inserting "and laws, regulations, and orders related to railroad security" after "safety" in the first sentence;

(2) by inserting "or security" after "safety" each place it appears after the first sentence; and

(3) by striking "Transportation" in the second sentence and inserting "Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters),".

SEC. 1711. H A Z M A T S A F E T Y TO INCLUDE HAZMAT SECURITY.

(a) GENERAL REGULATORY AUTHORITY.—Section 5103 of title 49, United States Code, is amended—

(1) by striking "transportation" the first place it appears in subsection (b)(1) and inserting "transportation, including security,";

(2) by striking "aspects" in subsection (b)(1)(B) and inserting "aspects, including security,"; and

(3) by adding at the end the following:

116 STAT. 2320 PUBLIC LAW 107-296—NOV. 25, 2002

"(C) CONSULTATION.—When prescribing a security regulation or issuing a security order that affects the safety of the transportation of hazardous material, the Secretary of Homeland Security shall consult with the Secretary.".

(b) PREEMPTION.—Section 5125 of that title is amended— (1) by striking "chapter or a regulation prescribed under

this chapter" in subsection (a)(1) and inserting "chapter, a regulation prescribed under this chapter, or a hazardous mate- rials transportation security regulation or directive issued by the Secretary of Homeland Security";

(2) by striking "chapter or a regulation prescribed under this chapter." in subsection (a)(2) and inserting "chapter, a regulation prescribed under this chapter, or a hazardous mate- rials transportation security regulation or directive issued by the Secretary of Homeland Security."; and

(3) by striking "chapter or a regulation prescribed under this chapter," in subsection (b)(1) and inserting "chapter, a regulation prescribed under this chapter, or a hazardous mate- rials transportation security regulation or directive issued by the Secretary of Homeland Security,".

SEC. 1712. OFFICE OF SCIENCE AND TECHNOLOGY POLICY.

The National Science and Technology Policy, Organization, and Priorities Act of 1976 is amended—

(1) in section 204(b)(1) (42 U.S.C. 6613(b)(1)), by inserting "homeland security," after "national security,"; and

(2) in section 208(a)(1) (42 U.S.C. 6617(a)(1)), by inserting "the Office of Homeland Security," after "National Security Council,".

SEC. 1713. NATIONAL OCEANOGRAPHIC PARTNERSHIP PROGRAM.

Section 7902(b) of title 10, United States Code, is amended by adding at the end the following new paragraphs:

"(13) The Under Secretary for Science and Technology of the Department of Homeland Security.

"(14) Other Federal officials the Council considers appro- priate.".

SEC. 1714. CLARIFICATION OF DEFINITION OF MANUFACTURER.

Section 2133(3) of the PubHc Health Service Act (42 U.S.C. 300aa-33(3)) is amended—

(1) in the first sentence, by striking "under its label any vaccine set forth in the Vaccine Injury Table" and inserting "any vaccine set forth in the Vaccine Injury table, including any component or ingredient of any such vaccine"; and

(2) in the second sentence, by inserting "including any component or ingredient of any such vaccine" before the period.

SEC. 1715. CLARIFICATION OF DEFINITION OF VACCINE-RELATED INJURY OR DEATH.

Section 2133(5) of the PubHc Health Service Act (42 U.S.C. 300aa-33(5)) is amended by adding at the end the following: "For purposes of the preceding sentence, an adulterant or contaminant shall not include any component or ingredient listed in a vaccine's product license application or product label.".

PUBLIC LAW 107-296—NOV. 25, 2002 116 STAT. 2321

SEC. 1716. CLARIFICATION OF DEFINITION OF VACCINE.

Section 2133 of the Public Health Service Act (42 U.S.C. 300aa- 33) is amended by adding at the end the following:

"(7) The term 'vaccine' means any preparation or suspen- sion, including but not limited to a preparation or suspension containing an attenuated or inactive microorganism or subunit thereof or toxin, developed or administered to produce or enhance the body's immune response to a disease or diseases and includes all components and ingredients listed in the vaccines's product license application and product label.".

SEC. 1717. EFFECTIVE DATE. 42 USC

The amendments made by sections 1714, 1715, and 1716 shall Applicability. apply to all actions or proceedings pending on or after the date of enactment of this Act, unless a court of competent jurisdiction has entered judgment (regardless of whether the time for appeal has expired) in such action or proceeding disposing of the entire action or proceeding.

Approved November 25, 2002.

LEGISLATIVE HISTORY—H.R. 5005 (S. 2452): HOUSE REPORTS: No. 107-609, Pt. 1 (Select Comm. on Homeland Security). SENATE REPORTS: No. 107-175 accompanying S. 2452 (Comm. on Governmental

Affairs). CONGRESSIONAL RECORD, Vol. 148 (2002):

July 25, 26, considered and passed House. Sept. 4, 5, 9, 10, 12, 13, 17-19, 23-26, 30, Oct. 1, Nov. 13-15, 19, considered

and passed Senate, amended. Nov. 22, House concurred in Senate amendment.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 38 (2002): Nov. 25, Presidential remarks and statement. •