Summary of H.R. 5005, a Bill Establishing a Department of Homeland Security as Reported by the House Select Committee on Homeland Security

The House Select Committee on Homeland Security of the House of Representatives completed their work and has incorporated additional improvements to the President’s proposal. Working closely with the committees of jurisdiction and the White House, the bill preserves the essential functions outlined in the President’s plan while adding several changes that will help ensure successful implementation and continued congressional oversight.

Specifically, the measures added by the Select Committee clarify roles and responsibilities of the Department, help create a world-class workforce within the civil service framework, enhance research and development opportunities, and protect civil liberties.

The Select Committee made the changes to the bill with input from the Committees of jurisdiction. During the Select Committee mark-up, a total of 22 provisions were accepted. Eight, in addition to the Chairman's changes, were offered by Republicans and 14 by Democrats.

The first step in defending America from the enemies of freedom is to ensure that our borders are secure. That is why H.R. 5005 ensures the border function remains strong within the new Department.

Coast Guard Moves to DHS

Because the longest borders in our country are our coasts, the Coast Guard will play an essential role within the new Department. H.R. 5005 essentially accepts the Government Reform Committee’s recommendation. The Select Committee also directed that the Commandant of the Coast Guard report to the Secretary of Homeland Security ensuring all its missions are being adequately performed.

Customs Service Moves to DHS

The U.S. Customs Service is one of the primary enforcement agencies protecting the nation’s borders and will move to the new Department. Some revenue collection agents, however, will be subject to guidance from the Treasury Department. H.R. 5005 essentially accepts the recommendation of the Ways and Means Committee.

Border Functions at APHIS Move to DHS

Those inspectors at the Animal Plant Health Inspection Service (APHIS) who currently protect our borders will move into the new Department. All other functions of this agency will remain with the Agriculture Department. H.R. 5005 closely reflects the recommendations of the Agriculture Committee.

INS Enforcement Functions Move to DHS

Enforcement and border protection functions at the Immigration and Naturalization Service (INS) will move to the new Department. Immigrant service functions will remain at the Department of Justice. H.R. 5005 essentially accepts the recommendation of the Judiciary Committee. The Select Committee elevated the position of Director of Immigration Enforcement to an Assistant Secretary, signifying the importance of that function to the new Department.

DHS Provides Rules for Entry into the Country

The State Department and consular officials will continue to issue visas, but they will do so under rules established by the Department. H.R. 5005 essentially accepts the recommendation of the Judiciary and International Relations Committees.

H.R. 5005 will ensure that our communities and first responders are prepared to address all threats.

FEMA Moves to DHS

To ensure that America is adequately prepared to respond effectively in time of crisis, the Federal Emergency Management Agency (FEMA) will become part of the new Department. This means it will be clear who’s in charge, and response teams will be able to communicate clearly with one another. H.R. 5005 essentially accepts the Government Reform Committee’s recommendation.

Secret Service Moves to DHS

One of the main missions of the Secret Service is protecting individuals and securing key events such as the Olympics and Super Bowl. The Department will depend on this agency’s protective functions and expertise. H.R. 5005 essentially accepts the Government Reform Committee’s recommendation.

Public/Private Partnerships

Recognizing that active private sector participation in homeland security is essential, the Select Committee authorized the Secretary of Homeland Security to have a special liaison with the private sector to promote public/private partnerships and promote technology integration for homeland security. A national Council for First Responders is also established.

Washington D.C. Included in Federal Planning

To support the people who live and work in our nation’s capital, the District of Columbia has been included in the Federal Governments plans for domestic preparedness and recovery from terrorist attacks.

Our Founders intended that the operations of our government be open. The Chairman’s mark retains this principle, while ensuring that openness does not decrease our security.

FOIA Protections Limited to the Department Only

When individuals and businesses provide new information to the Department so that the Secretary can assess vulnerabilities, that information will be protected (not subject to FOIA). This will not erode the oversight protections provided by FOIA in any other government departments. The Committee ensured that businesses would not be able to end run regulatory reporting requirements.

Creating the right organization for Homeland Security is important, but so is having the management tools and flexibility to create an agile 21^st century workforce that can respond to a shifting threat and protect and defend the American people. H.R. 5005 grants the Secretary of Homeland Security greater flexibility in the following areas of personnel management:

The Secretary will have the flexibility to develop a strategic performance management program that effectively links employee performance and accountability to the goals, objectives and mission of the Department. Existing laws focus on specifying minimum requirements for an employee’s position with no consideration of its connection to mission, strategic goals, and objectives.

Classification

The Secretary will have the flexibility to use a broader approach to job classification that more effectively recognizes the strategic value of each employee. The current classification system is 53 years old. It is obsolete. It confines federal workers to 15 artificial levels or "grades" that no longer match the needs of a modern workforce or allows for quick changes in mission. It defines pay too rigidly to support rewarding performance in a meaningful way. It ignores important differences across occupational lines and career paths that the Department must manage.

The Department will have the flexibility it needs to attract skilled and dedicated workers with a modern pay system not necessarily restricted to the rigid 15 "GS" pay grades. Annual increases in pay are most commonly automatic pay adjustments for all employees, regardless of performance.

The Secretary of Homeland Security must have the flexibility to establish a labor-management system that respects the right of workers to organize and engage in collective bargaining without threatening the important mission of the Department. The current system is too adversarial and inefficient and often impedes the ability of an agency to fulfill its missions. The law encourages the union to stall and delay, and it is common for unions to negotiate extensive, restrictive procedures that management must follow before making important decisions. This can slow decision making and delay action.

Adverse Actions and Appeal

The Secretary must have the flexibility to establish a system that allows employees to challenge and appeal agency personnel actions without threatening the mission of the Department. The procedures for providing due process to employees subject to adverse actions are unnecessarily complex and time consuming. Regardless of the nature of the offense, agencies must provide employees at least 30 days notice prior to taking any action. These procedures often result in expensive and protracted litigation in both administrative and judicial forms. The delay in reaching finality negatively impacts on an agency’s ability to carry out its mission.

The Select Committee also protected many existing employee protections. Needless to say, civil rights protections remain. Veterans continue to be rewarded for serving their country by continuing veteran hiring preferences. Age discrimination is prohibited. The workplace will be accessible to the disabled. The Fair Labor Standards Act, the Social Security Act and the Family and Medical Leave Act will continue to apply.

H.R. 5005 guarantees that in any human resources system established under this act that "employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them." The only limitation stated is a standard limitation used by every President since 1976 when employees are engaged in "intelligence, counterintelligence, investigative, or security work that directly affects national security."

America’s sustainability as a world leader has been due in part to its leadership in science. We must continue to use our strengths in this area to promote research, development, technology, engineering and acquisition in homeland security. The Select Committee adopted several measures to do just that. Specifically:

Establishes a Homeland Security Research Center at one of the National Laboratories of the National Nuclear Security Administration for homeland security research.

Allows the Secretary of Homeland Security to use any Federally Funded Research and Develop Center in the public or private sector to support homeland security research and conduct independent analysis on those topics.

Establishes a university-based center or centers to assist in training first responders and conducting research in a variety of areas related to homeland security including bio- and agro-terrorism.

Because the Department has a singular mission of protecting the freedoms of Americans, specific legal protections will ensure that freedom is not undermined.

National ID Card Ban

The federal government will not have the authority to nationalize drivers’ licenses and other ID cards. Authority to design and issue these cards shall remain with the states. The use of biometric identifiers and Social Security numbers with these cards is not consistent with a free society. (Congress has acted several times to prohibit funding for a national ID card.)

Citizens Will Not Become Informants

To ensure that no operation of the Department can be construed to promote citizens spying on one another, this draft will contain language to prohibit programs such as "Operation TIPS."

Establishes a Privacy Officer and Office of Civil Rights and Civil Liberties

Working as a close advisor to the Secretary, this officer will ensure technology research and new regulations from the Department respect the civil liberties our citizens enjoy. This is the first-ever such officer established by law in a cabinet department. The Select Committee included a provision to establish an office of Civil Rights and Civil Liberties.

Congress serves as a check on the powers of the Executive Branch. These protections ensure the balance of power is not upset.

Ban on Overly Broad Regulatory Authority

The legislation makes it clear that the Secretary will not be able to assume any regulatory authority not specifically granted to him by Congress.

Ban on Overly Broad Reorganization Authority

A Secretary will not be able to undo agencies that have been specifically established by law.

Ban on Overly Broad Funding Authority

Although the Secretary will require a great deal of flexibility in setting up this new Department, he will not have the ability to fund programs outside of the authority of Congress.

National Homeland Security Council

Creates a coordinating body similar to the National Security Council to advise the President on Homeland Security issues and requires the President to submit an annual budget so Congress can keep appropriate oversight on tax dollars being spent to protect American citizens.

Ensures Good Government Laws Apply

It is important the new Department of Homeland Security is well-managed, therefore, the Select Committee added several current laws related to sound financial management to the bill and an office to promote the use of small and disadvantaged businesses. Additionally, unless specifically noted otherwise, non-homeland security missions being transferred to the department will not be diminished or associated regulatory authorities.

Advanced technology companies are developing technologies (originally intended for military use) that can help detect or prevent acts of terrorism. Companies with these products are nervous about selling them commercially because of the potential unlimited liabilities, should a terrorist strike again. Unfortunately, this nervousness means that the best technology is not getting to our neighborhoods, our shopping malls, our office buildings, or other potential terrorist targets.

Consequently, citizens are at greater risk, unless we do something to protect those who are protecting us.

The SAFETY Act helps ensure that effective anti-terrorism technologies that meet very stringent requirements are commercially available, but only after companies obtain the maximum amount of liability insurance possible. It also ensures that victims are compensated for demonstrable injuries as equitably as possible, for their economic losses, including their medical costs, their lost wages, their future lost wages, rehabilitation costs, and any other economic out of pocket losses. Those who engage in criminal or terrorist acts would not be eligible for the SAFETY act. It only helps those who are helping us all.

The alternative offered by opponents of the SAFETY Act - federal indemnification of corporations’ liability - would have the American taxpayer, not the corporations, pay potentially infinite damages caused by terrorists. The SAFETY act is about working with companies to make us all safer and not blaming them when terrorists strike.

Title I—Department of Homeland Security

Omits a National Council of First Responders that in the original House bill would have consisted of at least 100 emergency personnel from all over the country to evaluate and report to the Secretary of Homeland Security on the latest developments in and needed improvements to emergency response techniques and training

Title II—Information Analysis and Infrastructure Protection

Creates within the Department of Justice (DOJ) an Office of Science and Technology to serve as the focal point for work on law enforcement technology. Authorizes the transfer of any other appropriate DOJ program or activity to the new Office.

Authorizes the Director of the Office of Science and Technology to operate, support, and where necessary create National Law Enforcement and Corrections Technology Centers to promote the goals of the office.

Does not include the Intelligence Analysis Center established by the original House bill, which would have been an element of the intelligence community for the purposes of federal law.

Title III—Science and Technology in Support of Homeland Security

Establishes a Homeland Security Advanced Research Projects Agency to award grants, cooperative agreements, or contracts to public and private entities for research and development related to homeland security. Establishes the Acceleration Fund for Research and Development of Homeland Security Technologies to fund the activities of the new Agency. Authorizes $500 million for FY2003 and "such sums as may be necessary thereafter."

Establishes a technology clearinghouse program to encourage technological innovation to facilitate DHS’ mission

Title IV—Directorate of Border and Transportation Security

Transfers to the Under Secretary for Border and Transportation Security the following agencies and functions:

--The Federal Law Enforcement Training Center of the Department of the Treasury

--All functions of the INS (not just the enforcement functions, as in the original House bill)

Visa Provisions:

Requires information on visa denials to be entered into the interoperable electronic data system implemented under the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1722(a)).

Prohibits any alien with a denied visa to receive a new visa without thorough, personal review by the consular officer considering the application and without a statement of the officer’s decision and why.

Immigration provisions:

Establishes within DHS (as opposed to DOJ in the original House bill) the Bureau of Citizenship and Immigration Services, to which the INS' citizenship services would be transferred

Creates in DHS (as opposed to DOJ in the original House bill) a Citizenship and Immigration Services Ombudsman to essentially function as a customer service agent for the Bureau of Citizenship and Immigration Services (and authorizes the appointment of at least one local ombudsman for each state)

Prohibits the Bureau of Border Security and the Bureau of Citizenship and Immigration Services from being recombined in DHS

Creates a Director of Shared Services to coordinate the resources for the two Bureaus within DHS. Funding for the two Bureaus would be totally separated. Mandates new reports on this separation.

Title V—Emergency Preparedness and Response

Transfers to this Under Secretary the following agencies and functions:

--All of FEMA (its Office of National Preparedness was to be transferred to Border and Transportation Security in the original House bill)

--The FBI’s National Domestic Preparedness Office (transferred to Border and Transportation Security in the original House bill)

--The National Oceanic and Atmospheric Administration’s Integrated Hazard Information System

--DOJ’s Domestic Emergency Support Teams (transferred to Border and Transportation Security in the original House bill)

Title VI—Treatment of Charitable Trusts for Members of the Armed Forces of the United States and Other Governmental Organizations

Authorizes the designation of corporate and other private trusts as Johnny Michael Spann Patriot Trusts (pending certain requirements) to help surviving dependents of members of eth Armed Forces who lose their lives as a result of terrorist attacks or military operations abroad.

Title VII—Management

No major changes from original House bill

Title VIII—Coordination with Non-Federal Entities; Inspector General; United States Secret Service; Coast Guard; General Provisions

Before any changes to personnel policies for DHS would go into effect, union representatives would be permitted to negotiate (for up to 30 days) the proposed changes. If agreement is not reached, the Federal Mediation and Conciliation Service would be given the case for 30 days. If an agreement could still not be reached, the DHS Secretary could implement the new personnel policies but would have to notify Congress.

The President would have to notify Congress and allow ten days to pass before exercising his authority to exclude collective bargaining units from DHS.

Creates an Office for State and Local Government Coordination to oversee and coordinate departmental programs for and relationships with state and local governments.

Prohibits DHS from contracting with certain foreign incorporated entities that are treated as inverted domestic corporations (under terms outlined in the bill). Requires a waiver in the interest of homeland security, to prevent job loss, or to prevent incurring additional costs to the federal government.

Transfers the Coast Guard to DHS generally (as opposed to the Under Secretary of Border and Transportation Security under the original House bill) and maintains it as a distinct entity within DHS. Prevents the substantive change or reduction of the Coast Guard’s mission. Separates the non-homeland-security missions of the Coast Guard from the homeland-security missions.

Does not include language establishing within DHS an Office of Small and Disadvantaged Business Utilization

Does not include language allowing up to 2% of any appropriation available to DHS for the next two years to be transferred between appropriations accounts

Title IX—National Homeland Security Council

No major changes from original House bill

Title X—Information Security

No major changes from original House bill.

Title XI—Department of Justice Divisions

Transfers the non-revenue functions of the Bureau of Alcohol, Tobacco, and Firearms (ATF) from the Department of the Treasury to DOJ. ATF’s revenue functions would remain in Treasury.

Establishes within ATF an Explosives Training and Research Facility in Fredericksburg, VA

Toughens permit requirements for purchasers of explosives, and limits who may distribute, receive, or possess explosives

Title XII—Airline War Risk Insurance Legislation

Clarifies air carrier liability for third-party claims arising out of acts of terrorism

Authorizes the extension through December 31, 2003, of any insurance policy that the Department of Transportation issued to an air carrier. Authorizes certain adjustments of the terms of such policies.

Title XIII—Federal Workforce Improvement

Establishes human capital officers for all federal agencies to set and oversee workforce policies.

Title XIV—Arming Pilots Against Terrorism

Incorporates the provisions of the Arming Pilots Against Terrorism Act (H.R. 4635), which passed the House on July 10, 2002.

Title XV—Transition

No major changes from original House bill

Title XVI—Corrections to Existing Law Relating to Airline Transportation Security

Retains certain authorities over sensitive information at the Department of Transportation

Expands the eligibility for being an airport screener from "citizen of the United States" to "citizen of the United States or a national of the United States…"

Title XVII—Conforming and Technical Amendments

No major changes from original House bill