Homeland Security Act
H.R. 5005
November, 2002
Homeland Security Act
Homeland Security Act
H.R. 5005
November, 2002
H.R. 5005
One Hundred Seventh Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday,
the twenty-third day of January, two thousand and two
An Act
To establish the Department of Homeland Security, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Homeland Security Act
of 2002'.
(b) TABLE OF CONTENTS- The table of contents for this Act is as
follows:
Sec. 2. Definitions.
Sec. 3. Construction; severability.
Sec. 4. Effective date.
TITLE I--DEPARTMENT 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.
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 Agriculture.
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 entity.
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, California.
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.
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 action.
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.
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 procurements.
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 opportunity 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 funding 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 technology.
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.
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 Explosives.
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 assistance.
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 the 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.
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 screeners.
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 authorities.
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.
Top 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' means the Department of Homeland
Security.
(6) The term `emergency response providers' includes Federal,
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.
(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 corporation under State law), regional or
interstate government entity, or agency or instrumentality
of a local government;
(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 Homeland
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.
Top SEC. 3. CONSTRUCTION; SEVERABILITY.
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 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.
Top SEC. 4. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
Top 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
subdivisions 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 trafficking 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 under this Act, primary
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.
Top SEC. 102. SECRETARY; FUNCTIONS.
(a) SECRETARY-
(1) IN GENERAL- There is a Secretary of Homeland Security,
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.
(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 Secretary--
(1) 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 Departments.
(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 Federal
Government's communications and systems of communications
relating to homeland security with State and local government
personnel, agencies, and authorities, the private sector, other
entities, and the public; and
(3) distributing or, as appropriate, coordinating the
distribution 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 transferred 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 Department
to protect the American homeland;
(2) advising the Secretary on the impact of the Department's
policies, regulations, processes, and actions on the private
sector;
(3) interfacing with other relevant Federal agencies with
homeland security missions to assess the impact of these
agencies' actions on the private sector;
(4) creating and managing private sector advisory councils
composed of representatives of industries and associations
designated by the Secretary to--
(A) advise the Secretary on private sector products,
applications, and solutions as they relate to homeland
security challenges; and
(B) advise the Secretary on homeland security policies,
regulations, processes, and actions that affect the
participating 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 homeland 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 Department 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.
Top 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
Infrastructure 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 Secretary 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.
(d) OTHER OFFICERS- To assist the Secretary in the performance 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
Top SEC. 201. DIRECTORATE FOR INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION.
(a) UNDER SECRETARY OF HOMELAND SECURITY FOR INFORMATION ANALYSIS AND
INFRASTRUCTURE PROTECTION-
(1) IN GENERAL- There shall be in the Department a Directorate
for Information Analysis and Infrastructure Protection headed by
an Under Secretary for Information Analysis and Infrastructure
Protection, who shall be appointed by the President, 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; ASSISTANT 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 PROTECTION- 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 Infrastructure
Protection shall assist the Under Secretary for Information
Analysis and Infrastructure Protection in discharging 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 infrastructure 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 Under Secretary
for Information Analysis and Infrastructure Protection 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 assessments to
determine the risks posed by particular types of terrorist
attacks within the United States (including an assessment 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
vulnerability 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 authorities,
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 systems (including
satellites), electronic financial and property record storage and
transmission systems, emergency preparedness communications
systems, and the physical and technological 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
countermeasures, to State and local government agencies and
authorities, the private sector, other entities, and the
public.
(8) To review, analyze, and make recommendations for improvements
in the policies and procedures governing the sharing of law
enforcement information, intelligence information,
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 governments 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
enforcement-related information, relating to threats of terrorism
against the United States through such means as the
representation of the Department in discussions regarding
requirements and priorities in the collection of such
information.
(11) To consult with State and local governments and private
sector entities to ensure appropriate exchanges of information,
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 protected
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 Security Act of 1947
(50 U.S.C. 401 et seq.) and related procedures 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 agencies, 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--
(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 elements 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 community
and with Federal, State, and local law enforcement agencies, 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
responsibilities as the Secretary may provide.
(e) STAFF-
(1) IN GENERAL- The Secretary shall provide the Directorate with
a staff of analysts having appropriate expertise and experience
to assist the Directorate in discharging responsibilities under
this section.
(2) PRIVATE SECTOR ANALYSTS- Analysts under this subsection 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 discharging
responsibilities under this section, personnel of the agencies
referred to in paragraph (2) may be detailed to the Department
for the performance of analytic 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 agreements for the
purpose of detailing personnel under this subsection.
(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 Protection under this
section, the functions, personnel, assets, and liabilities of the
following:
(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 Department 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 Secretary
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--
(1) by striking `and' at the end of subparagraph (I);
(2) by redesignating subparagraph (J) as subparagraph (K); and
(3) by inserting after subparagraph (I) the following new
subparagraph:
`(J) the elements of the Department of Homeland Security
concerned with the analyses of foreign intelligence
information; and'.
Top SEC. 202. ACCESS TO INFORMATION.
(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 information,
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 collected,
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 executive 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 material, access to
electronic databases, or both; and
(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 containing
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 agencies that is required to be
given to the Director of Central Intelligence, 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 Procedure.
(d) ACCESS TO INTELLIGENCE AND OTHER INFORMATION-
(1) ACCESS BY ELEMENTS OF FEDERAL GOVERNMENT- Nothing in this
title shall preclude any element of the intelligence 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 responsibility for analyzing terrorist
threat information, from receiving any intelligence or other
information relating to terrorism.
(2) SHARING OF INFORMATION- The Secretary, in consultation with
the Director of Central Intelligence, shall work to ensure that
intelligence or other information relating to terrorism 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 governments, as appropriate.
Subtitle B--Critical Infrastructure Information
Top SEC. 211. SHORT TITLE.
This subtitle may be cited as the `Critical Infrastructure Information
Act of 2002'.
Top 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.
(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 customarily 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
infrastructure or protected systems by either physical or
computer-based attack or other similar conduct (including
the misuse of or unauthorized access to all types of
communications 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
incapacitation, including any planned or past assessment,
projection, or estimate of the vulnerability of critical
infrastructure 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 purposes 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,
integrity, 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
incapacitation 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 assistance
in carrying out the purposes specified in subparagraphs (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
(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(I)); 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
submitted or relied upon as a basis for making
licensing or permitting determinations, or during
regulatory proceedings.
Top 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.
Top SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
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,
reconstitution, 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);
(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
committee; or
(II) to the Comptroller General, or any authorized
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 protecting
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 privilege
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 requirements of the
Federal Advisory Committee Act (5 U.S.C. App. 2).
(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 infrastructure
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 representatives
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 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 paragraph (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 confidentiality 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 submitting 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 regarding
potential threats to critical infrastructure as appropriate. In
issuing a warning, the Federal Government shall take appropriate
actions to protect from disclosure--
(1) the source of any voluntarily submitted critical
infrastructure 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).
Top SEC. 215. NO PRIVATE RIGHT OF ACTION.
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
Top SEC. 221. PROCEDURES FOR SHARING INFORMATION.
The Secretary shall establish procedures on the use of information
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 information;
(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.
Top SEC. 222. PRIVACY OFFICER.
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.
Top 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 Emergency
Preparedness and Response, crisis management support 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 systems.
Top SEC. 224. NET GUARD.
The Under Secretary for Information Analysis and Infrastructure
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 information systems and
communications networks.
Top SEC. 225. CYBER SECURITY ENHANCEMENT ACT OF 2002.
(a) SHORT TITLE- This section may be cited as the `Cyber Security
Enhancement Act of 2002'.
(b) AMENDMENT OF SENTENCING GUIDELINES RELATING TO CERTAIN COMPUTER
CRIMES-
(1) DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION-
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
appropriate 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 purposes of
commercial advantage or private financial benefit;
(iv) whether the defendant acted with malicious 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 mitigating
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 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 statutory 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 (6)(A), 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 receives a
disclosure under section 2702(b) of title 18, United States Code,
shall file, not later than 90 days after such disclosure, 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 information
disclosed pertained, and the number of communications, if any,
that were disclosed. The Attorney General shall publish 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)'.
(f) INTERNET ADVERTISING OF ILLEGAL DEVICES- Section 2512(1)(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 authorization,'
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
Constitution 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
(D) by striking paragraph (2) and inserting the following:
`(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
Top SEC. 231. ESTABLISHMENT OF OFFICE; DIRECTOR.
(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.
Top SEC. 232. MISSION OF OFFICE; DUTIES.
(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 Committee 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). 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 technologies
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 materials
for law enforcement personnel, including prosecutors.
(10) To operate the regional National Law Enforcement and
Corrections Technology Centers and, to the extent necessary,
establish additional centers through a competitive process.
(11) To administer a program of acquisition, research,
development, and dissemination of advanced investigative analysis
and forensic tools to assist State and local law enforcement
agencies in combating cybercrime.
(12) To support research fellowships in support of its mission.
(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 activities
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.
(16) To carry out other duties assigned by the Attorney General
to accomplish the mission of the Office.
(c) COMPETITION REQUIRED- Except as otherwise expressly provided 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 prohibited 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 matters
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.
Top SEC. 233. DEFINITION OF LAW ENFORCEMENT TECHNOLOGY.
For the purposes of this title, the term `law enforcement technology'
includes investigative and forensic technologies, corrections
technologies, and technologies that support the judicial process.
Top SEC. 234. ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY OF NATIONAL
INSTITUTE OF JUSTICE; TRANSFER OF FUNCTIONS.
(a) AUTHORITY TO TRANSFER FUNCTIONS- The Attorney General may transfer
to the Office any other program or activity of the Department of
Justice that the Attorney General, in consultation with the Committee
on the Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives, determines 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.
(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.
Top SEC. 235. NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECHNOLOGY 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 guidelines 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 communication between
Center participants.
(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.
Top SEC. 236. COORDINATION WITH OTHER ENTITIES WITHIN DEPARTMENT 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'.
Top SEC. 237. AMENDMENTS RELATING TO NATIONAL INSTITUTE OF JUSTICE.
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 effectiveness
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
`(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
Top SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.
There shall be in the Department a Directorate of Science and
Technology headed by an Under Secretary for Science and Technology.
Top SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER SECRETARY 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 development
efforts and priorities in support of the Department's missions;
(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 identify and develop
countermeasures to chemical, biological, radiological, 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 Analysis 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
relevant to any or all elements of the Department, through both
intramural and extramural programs, except that such
responsibility does not extend to human health-related research
and development activities;
(5) establishing priorities for, directing, funding, and
conducting 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 government,
and private sector entities;
(7) entering into work agreements, joint sponsorships, contracts,
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;
(8) collaborating with the Secretary of Agriculture and the
Attorney General as provided in section 212 of the Agricultural
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 351A 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
Department;
(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 guidelines
for merit review of research and development projects throughout
the Department, and for the dissemination of research conducted
or sponsored by the Department.
Top 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 nonproliferation 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 program.
(D) Such life sciences activities of the biological and
environmental research program related to microbial
pathogens as may be designated by the President for transfer
to the Department.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research program and
activities at Lawrence Livermore National Laboratory.
(2) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the Secretary
of Defense related thereto.
Top SEC. 304. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(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 priorities 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 covered
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 COUNTERMEASURE AGAINST
SMALLPOX-
`(A) AUTHORITY TO ISSUE DECLARATION-
`(i) IN GENERAL- The Secretary may issue a declaration,
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 countermeasure to a
category or categories of individuals.
`(ii) COVERED COUNTERMEASURE- The Secretary shall
specify in such declaration the substance or substances
that shall be considered covered countermeasures (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
closing date is after the date when the declaration is
amended.
`(iv) PUBLICATION- The Secretary shall promptly publish
each such declaration and amendment in the Federal
Register.
`(B) LIABILITY OF UNITED STATES ONLY FOR ADMINISTRATIONS
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 INOCULATION-
`(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
contracted 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 countermeasure 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
subparagraph (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
administered as provided by clauses (i) and (ii)
of subparagraph (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:
`(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 personal
injury or death arising out of the administration of a
covered countermeasure.
`(B) CERTIFICATION OF ATTORNEY GENERAL CONCLUSIVE- 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 determination, 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
`(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
countermeasure;
`(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.'.
Top SEC. 305. FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTERS.
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 coordinating and
integrating both the extramural and intramural programs described in
section 308.
Top 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 Under Secretary for Science and
Technology.
(c) REGULATIONS- The Secretary, acting through the Under Secretary for
Science and Technology, may issue necessary regulations with respect
to research, development, demonstration, testing, and evaluation
activities of the Department, including the conducting, funding, and
reviewing of such activities.
(d) NOTIFICATION OF PRESIDENTIAL LIFE SCIENCES DESIGNATIONS- 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.
Top 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 Technologies
established in subsection (c).
(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 acts of terrorism.
(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 established 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
technologies that would address homeland security
vulnerabilities.
(4) TARGETED COMPETITIONS- The Director may solicit proposals 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 relevant research
agencies, and may run projects jointly with other agencies.
(6) PERSONNEL- In hiring personnel for HSARPA, the Secretary
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.
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized 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 appropriated 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 agreement with the Commandant
of the Coast Guard, to carry out research and development of
improved ports, waterways and coastal security surveillance and
perimeter protection capabilities 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.
Top 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 responsibilities under
section 302(4) through both extramural and intramural 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 agreements,
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 security.
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
diagnostic laboratories.
(vi) Demonstrated expertise in food safety.
(vii) Affiliation with Department of Agriculture
laboratories or training centers.
(viii) Demonstrated expertise in water and wastewater
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 outreach
and technical assistance.
(xiv) Demonstrated expertise in border transportation
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 concerning
the implementation of this paragraph as necessary.
(D) AUTHORIZATION OF APPROPRIATIONS- There are authorized to
be appropriated such sums as may be necessary to carry out
this paragraph.
(c) INTRAMURAL PROGRAMS-
(1) CONSULTATION- In carrying out the duties under section 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 l