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# Legislative Bulletin........................................................May 9, 2007

**Contents:**

**H.R. 1684**---Department of Homeland Security Authorization Act for
Fiscal Year 2008

H.R. 1684---Department of Homeland Security Authorization Act for Fiscal
Year 2008 (*Thompson, D-MS*)

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Wednesday, May 9^th^, subject to a likely structured rule.
A summary of amendments made in order under the rule will be provided in
a separate RSC document.

**[NOTE]{.underline}**: The Manager's Amendment is expected to strike
[significant]{.underline} portions of the underlying bill. Homeland
Security Committee Ranking Member Peter King (R-NY) reportedly will
**[oppose]{.underline}** the legislation once such provisions are
removed. The RSC will keep you updated.

**[Summary of the bill as reported]{.underline}**: H.R. 1684 would
authorize FY2008 appropriations for the Department of Homeland Security
(DHS). Major provisions of the legislation, by title, are as follows:

## [Title I---Authorization of Appropriations]{.underline}

[]{.mark}

-   Authorizes **\$39,863,000,000** for [all of the Department of
    Homeland Security (DHS)]{.underline} for fiscal year 2008. This
    figure is \$2,118,505,000 above the President's fiscal year 2008
    budget request in total discretionary funding for DHS.

***[Title II---Policy and Management Improvements]{.underline}***

-   Strikes the current-law authorization for the Under Secretary for
    Border and Transportation Security and replaces it with a
    Directorate for Policy (headed by the Senate-confirmed Under
    Secretary for Policy, who would be the primary policy adviser to the
    Homeland Security Secretary).

-   Within the Directorate for Policy, the bill creates the Office of
    the Private Sector (administered by an Assistant Secretary for the
    Private Sector), a Victim Assistance Officer, a Tribal Security
    Officer, a Border Community Liaison Officer, and such other offices
    as considered necessary by the Under Secretary for Policy.'

-   The Under Secretary for Policy would be require to ensure that all
    departmental policies, programs, and activities appropriately
    consider the needs of, and impact upon, children (and would have to
    report annually on such improvement in the security of children,
    schools, and child-centered facilities).

-   Confers authority to DHS's chief operating officers (the Chief
    Financial Officer, the Chief Procurement Officer, the Chief
    Information Officer, the Chief Human Capital Officer, the Chief
    Administrative Officer, and the Chief Security Officer) over their
    counterparts in DHS's components to direct planning, operations, and
    training, as well as personnel activities, the budget, and other DHS
    financial resources to ensure compliance with DHS-wide policies and
    plans.

-   Directs the Secretary of Homeland Security to undertake a
    Comprehensive Homeland Security Review (CHSR) for DHS at the
    beginning of every new presidential administration to ensure that
    DHS is equipped to execute the full range of missions called for by
    the President's National Strategy for Homeland Security.

-   Expresses a sense of Congress that the planned physical
    consolidation of DHS and its key component headquarters on the West
    Campus of St. Elizabeth's Hospital should move forward as
    expeditiously as possible, with all the agencies involved in this
    effort bearing those costs for which they are responsible.

-   Requires a DHS budget line item for the Office of Counternarcotics
    Enforcement and directs DHS to recognize the Office of
    Counternarcotics Enforcement as DHS's primary representative on all
    counternarcotics related committees and taskforces.

***[Title III---Oversight Improvements]{.underline}***

-   Requires the DHS Inspector General to review and report to Congress
    on each Secure Border Initiative contract valued at greater than
    \$20 million to ensure compliance with cost requirements,
    performance objectives, program milestones, small-business
    participation goals, minority-owned and women-owned business
    participation goals, and key timelines. Authorizes \$5.5 million for
    such reviewing in FY2008, 6% of the Inspector General's budget in
    FY2009, and 7% of the Inspector General's budge in FY2010.

-   Creates an Authorization Liaison Officer within the Office of the
    Chief Financial Officer to ensure responsiveness to the
    congressional authorizing committees and to work with the
    Appropriations Liaison Officer to coordinate the sharing of all
    reports prepared for the congressional appropriations committees.

-   Authorizes \$108.5 million in FY2008 for DHS's Office of the
    Inspector General.

-   Expresses a sense of Congress that Congress should implement the
    9/11 Commission's recommendation to designate a single committee in
    each chamber to serve as the single, principal point of oversight
    and review for homeland security and to authorize DHS activities.

***[Title IV---Procurement Policy and Resources
Improvements]{.underline}***

-   Directs DHS's Chief Procurement Officer to provide homeland security
    procurement training to acquisitions employees.

-   Directs the Secretary to establish a Council on Procurement Training
    to advise the Chief Procurement Officer. The Council would consist
    of the procurement offices from a variety of federal agencies,
    including the Transportation Security Administration, the Secret
    Service, the Coast Guard, and others.

-   Authorizes the Secretary to hire up to 250 annuitants with
    experience in procurement and contract management to support DHS's
    acquisitions capabilities.

-   Requires the Secretary to consider the past performance of a
    contractor prior to deciding whether to award such contractor with a
    contract.

-   Requires the Chief Procurement Officer to conduct an independent
    review of each procurement for compliance with the Buy American Act.

-   Directs DHS to require that any prospective contractor or
    subcontractor disclose whether it is owned or controlled by a
    foreign person.

-   Requires contractors bidding on a DHS contract to disclose any role
    the bidder, employees of the bidder, or any parent or subsidiary of
    the bidder may have played in certain activities during the bid
    development process.

-   Prohibits DHS funds from being used for procurement of uniforms,
    protective gear, badges, insignia, or identification cards
    manufactured outside the U.S., subject to exception.

-   Establishes a DHS Mentor-Protégé program within the Office of Small
    and Disadvantaged Business Utilization, aimed at encouraging large
    contractors to provide developmental assistance to small business
    interests.

-   Prohibits the DHS Secretary from awarding a contract or grant to an
    institution of higher education that refuses to allow the United
    States Coast Guard access to its campuses and students for the
    purposes of recruiting in a manner that is at least equal in quality
    and scope to the access provided to any other employer.

-   Prohibits the Secretary from reducing the number or hours of
    employees of the Federal Protective Service until Congress has held
    hearings on this issue and the Government Accountability Office
    (GAO) has submitted a related report to Congress.

***[Title V---Workforce and Training Improvements]{.underline}***

-   Grants law enforcement officer status for retirement pay purposes to
    Customs and Border Protection Officers, retroactive to the date of
    creation of the Department of Homeland Security in March 2003.
    Allows catch-up contributions.

-   Directs DHS's Chief Human Capital Officer to submit to Congress a
    plan to improve the representation of minorities in various
    categories of DHS employment, and instructs the GAO to assess the
    DHS plan.

-   Continues the authority of the Federal Law Enforcement Training
    Center to hire and maintain up to 500 federal annuitants as trainers
    until December 31, 2008.

-   Directs DHS to establish a retention program for Border Patrol
    agents, including pay and benefits incentives.

-   Limits compensation (salary plus benefits) by DHS of specialized
    detailees to the Department to no more than the highest basic pay
    available under the Senior Executive Service.

-   Treats DHS as a single entity for the current-law restrictions on
    lobbying one's former place of employment. (Presumably, this
    provision is aimed at preventing someone from working for one agency
    within DHS, leaving DHS, and then immediately lobbying some other
    agency within DHS.)

-   Requires the Secretary of Homeland Security to conduct a
    Department-wide review of the security clearance and suitability
    review process for employees, contractors, and state, local, and
    private-sector officials who require access to DHS's sensitive
    information.

-   Creates a DHS Chief Security Officer for personnel security,
    facility access, and security awareness.

-   Directs DHS to replace "human capital" in DHS's operations,
    policies, and programs.

-   Restricts the Secretary of Homeland Security's ability to manage
    DHS's workforce by repealing the human resources management
    provisions in the Homeland Security Act of 2002. Also repeals the
    President's authority to waive the human resources management
    provisions in the Homeland Security Act (i.e. the provisions
    allowing DHS employees to join collective bargaining units) not
    expressly repealed by this section. The minority staff of the House
    Homeland Security Committee writes that, "The Republican Members of
    the Committee strongly oppose the repeal of the President's current
    authority to waive personnel provisions if they have a substantial
    adverse impact on the Department's ability to protect homeland
    security, as provided by the Homeland Security Act of 2002.
    Republicans also oppose the repeal of the Homeland Security
    Secretary's authority to manage the homeland security workforce with
    modern personnel tools, including the ability to tie pay increases
    to employee performance, implement employee training programs, and
    develop programs to ensure that the Department can continue to
    attract and retain the best workforce possible." The personnel
    provisions in the original DHS law were designed to make DHS as
    flexible as possible and to prioritize the actual providing of
    security rather than the protection of government jobs.

***[Title VI---Biopreparedness Improvements]{.underline}***

-   Establishes the Office of Health Affairs, headed by a
    Senate-confirmed Chief Medical Officer and Assistant Secretary for
    Health Affairs, to coordinate and oversee the DHS's medical care,
    public health, food, water, veterinary, and agriculture activities.

-   Modifies the Project BioShield Act of 2004 to accelerate and
    prioritize DHS's performance of Material Threat Assessments and
    Material Threat Determinations. Extends the authorizations for them
    through FY2009 and provides "such sums" to help the Department meet
    an accelerated (December 31, 2007) deadline for certain assessments.

-   Creates a National Biosurveillance Integration Center (authorized at
    "such sums") to enhance the federal government's ability to rapidly
    identify and track a biological event and creates a Director to head
    the Center. The Center would have to create and maintain an
    integrated biosurvelliance network. The Center would have to be
    fully operational by the end of FY2008.

-   Directs the Secretary to develop a risk analysis process that
    utilizes a scientific, quantitative methodology to assess and manage
    risks posed by chemical, biological, radiological, and nuclear
    agents, and to conduct integrated assessments of such threats (the
    first one due by June 2008).

-   Establishes the National Bio and Agro-defense Facility as part of
    the Science and Technology Directorate in DHS and authorizes the
    procurement of real property for the facility. This Facility would
    be "an integrated human, foreign-animal, and zoonotic disease
    research, development, testing, and evaluation facility with the
    purpose of supporting the complementary missions of the Department,
    the Department of Agriculture, and the Department of Health and
    Human Services in defending against the threat of potential acts of
    agroterrorism and natural-occurring incidents related to agriculture
    with the potential to adversely impact public health, animal health,
    and the economy, or may otherwise impact homeland security."

***[Title VII---Homeland Security Cybersecurity
Improvements]{.underline}***

-   Creates a DHS Office of Cybersecurity and Communications, headed by
    an Assistant Secretary for Cybersecurity and Communications under
    the jurisdiction of the Under Secretary for Information Analysis and
    Infrastructure Protection.

-   Authorizes this new Assistant Secretary, under the direction of the
    Under Secretary for Science and Technology, and in conjunction with
    the National Science Foundation and other such entities, to support
    cybersecurity training and development.

-   Earmarks \$50 million from total DHS funds for cybersecurity
    research and development.

***[Title VIII---Science and Technology Improvements]{.underline}***

-   Requires the development of a strategic plan by the Under Secretary
    of Science and Technology, addressing a number of issues, including
    workforce, interagency coordination, and innovation.

-   Earmarks \$31 million from the overall DHS funding level for the
    Centers of Excellence Program and \$8 million for the Minority
    Serving Institutions program for FY2008, and prohibits any Center of
    Excellence receiving funding in FY2007 from having its funding cut.
    Also requires that at least one of the next four Centers of
    Excellence established by DHS be located at a Minority Serving
    Institution (historically black, Hispanic, or tribal college or
    university). Earmarks \$500,000 from overall DS funding for the
    National Research Council to study the effectiveness of the Centers
    of Excellence Program.

-   Requires the Secretary to provide "sufficient" numbers of trained
    personnel to analyze technologies submitted to DHS to be designated
    and certified under the SAFETY Act, which provides liability
    protections for certain anti-terrorism technologies.

-   Establishes the Science and Technology Homeland Security
    International Cooperative Programs Office, to develop understandings
    and agreements to allow and support international cooperative
    activities in support of homeland security research, development,
    and testing. U.S. funding expended on such international cooperative
    activities would have to be matched by the foreign partner
    organization (directly or indirectly). Foreign partners could
    include Israel, the United Kingdom, Canada, Australia, Singapore,
    "and other allies in the global war on terrorism." Earmarks \$100
    million over four years for this international cooperation.

***[Title IX---Border Security Improvements]{.underline}***

-   Requires submission---within a week of this bill's enactment---of a
    comprehensive strategy for the biometric entry and exit data system
    requirements from the Intelligence Reform and Terrorism Prevention
    Act of 2004 (commonly known as US-VISIT). Prohibits transfer of
    US-VISIT to the National Protection and Programs Directorate, as
    determined by the Secretary, until after this strategy has been
    submitted to Congress. *[Note]{.underline}: The Republican Members
    of the Homeland Security Committee oppose this provision.*

-   Requires that the exit portion of the biometric system be fully
    operational by December 31, 2008.

-   Authorizes \$4.1 million in FY2008 for the Customs Patrol Officers
    unit of the Bureau of Customs and Border Protection operating on the
    Tohono O'odham Indian reservation (commonly known as the "Shadow
    Wolves" unit).

-   Requires the Secretary to take steps necessary to control the costs
    of hiring, training, and deploying new Border Patrol agents, so as
    not to exceed \$150,000 per agent (subjection to exception).

-   Requires DHS to require academic institutions and programs that
    sponsor international students and exchange visitors to verify (at
    least once every 60 days) that those international students and
    exchange visitors are in fact actively participating in the programs
    for which they were admitted to the United States. Transfers to
    other institutions or health-related incapacitations would have to
    be reported to DHS. Sponsoring institutions would be guaranteed
    access to the Student and Exchange Visitor Information System (which
    itself would have to be updated to include additional data fields,
    as detailed in the legislation). "Such sums" would be earmarked from
    overall DJS funding for these provisions.

-   Requires the Secretary to assess and report to Congress on ways to
    reduce border crossing wait times (to pre-September 11^th^ levels)
    for pedestrian, commercial, and non-commercial traffic at land ports
    of entry.

-   Codifies a pilot program for mobile biometric identification of
    apprehended illegal aliens in the maritime environment and earmarks
    \$10 million for this program.

-   Requires GAO to report to Congress on the policies and procedures of
    the Border Patrol regarding the lethal and non-lethal use of force
    in pursuit of fleeing vehicles.

***[Title X---Information Sharing Improvements]{.underline}***

-   Authorizes "such sums" to establish a State and Local Fusion Center
    Program, which will include deployment of DHS personnel and retired
    local law enforcement to participating state and local centers. DHS
    detailees would have to receive privacy training (authorized at \$3
    million for each of fiscal years 2008 through 2013, and "such sums"
    thereafter).

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-   Authorizes the Secretary to appoint---within five years of this
    bill's enactment---up to 100 rehired annuitants to positions in the
    fusion center program to facilitate information sharing between DHS
    and state, local, and tribal law enforcement agencies.

***[Title XI---Miscellaneous Provisions]{.underline}***

-   Creates a new program to expand homeland security training for local
    and tribal law enforcement agencies in rural areas.

-   Requires the owners of high risk critical infrastructure sites to
    conduct checks of their employees against available terrorist watch
    lists and immigration status databases (authorized at "such sums").

-   Authorizes "such sums" to encourage the development and use of
    software- or Internet-based computer capabilities to support
    real-time incident management by federal, state, local, and tribal
    agencies, as well as to encourage the use of computerized training
    aids for state and local agencies.

-   Requires recipients of DHS grants, as a condition of receiving such
    grants, to submit publicly-available expenditure reports to the
    Secretary no later than 30 days after the last day of each fiscal
    quarter.

-   Creates a new federal civil action against the deliberate use of the
    DHS name, initials, insignia, and seal for commercial purposes
    (including Internet domain names and email addresses), subject to
    exception by written permission.

-   Earmarks \$252 million of overall DHS funds over four years to
    create the Metropolitan Medical Response System Program to support
    local jurisdictions in enhancing and maintaining all-hazards
    response capabilities to manage mass casualty incidents. Through
    this program, which would [not]{.underline} be subject to personnel
    caps, the Administrator of the Federal Emergency Management Agency
    (FEMA) would administer financial assistance provided to state and
    local jurisdictions. One hundred percent of the assistance would
    have to be passed through to localities, unless the state and
    localities agree that the state retain up to 20% of the assistance
    for the facilitation of state-local integration of efforts.

-   Earmarks \$300 million of overall DHS funds over three years to
    create a new grant program to assist states in achieving compliance
    with the REAL ID Act of 2005 (to prevent fraudulent obtaining and
    using of state-issued ID cards and to develop more secure
    state-issued documents used for federal purposes).

-   Requires a report from the Secretary on the status of DHS activities
    regarding agriculture security and the prevention of agro-terrorism.

-   Requires a report on the vulnerabilities of the nation's levee
    system to terrorist attack.

-   Authorizes \$1.6 billion and 6,822 full-time-equivalent positions
    for the United States Secret Service in FY2008. The Republican staff
    of the Homeland Security Committee notes that this would be the
    first authorization of specific funding levels for the Secret
    Service in its 140-year history.

-   Requires the Secretary to share information---taking privacy
    concerns into account---on disaster assistance requested or provided
    in response to an act of terrorism, natural disaster, or other
    emergency to federal, state, and local law enforcement entities to
    assist in the location of a missing child or a sex offender.

[]{.mark}

***[Title XII---Maritime Alien Smuggling]{.underline}***

-   Creates a separate federal crime to "assist, encourage, direct,
    induce, transport, move, harbor, conceal, or shield from detection
    an individual in transit from one country to another on the high
    seas, knowing or in reckless disregard of the fact that such
    individual is an alien, known, or suspected terrorist, or an
    individual seeking to commit terrorist activity, seeking to enter
    the United States without official permission or lawful authority."
    An attempted violation or conspiring to violate this offense would
    be punished the same as the actual violation. One could defend
    himself against a charge of violating this offense by showing that
    he reported the transport of the alien to the Coast Guard (as part
    of a rescue or because of extenuating---such as
    medical---circumstances).

-   Sets the penalties for basic violations of this title at a minimum
    of three years---but not more than twenty years---in prison and/or a
    fine of up to \$100,000. Penalties increase as the results of the
    violations increase (such as bodily harm, terrorism, death).

-   Property (and/or the proceeds from the sale of property) used in a
    violation of this title could be seized.

**[Additional Background]{.underline}**: In the 109^th^ Congress, H.R.
1817 was the first DHS authorization bill to be reported to the House
since the creation of DHS in the Homeland Security Act of 2002 (P.L.
107-296) in the wake of the terrorist attacks of September 11, 2001.
H.R. 1817 authorized appropriations for FY2006. No bill was reported
authorizing FY2007 appropriations. H.R. 1817 passed the House by a vote
of 424-4: <http://clerk.house.gov/evs/2005/roll189.xml>.

**[Committee Action]{.underline}**: On March 26, 2007, the bill was
referred to the Homeland Security Committee, which marked up the bill
two days later and ordered it reported to the full House by a 26-0
recorded vote.

**[Possible Conservative Concerns]{.underline}**: Some conservatives may
be concerned at the repeal of the President's and Secretary's personnel
authority for DHS employees, provided in the originating statute for DHS
to make the Department as flexible as possible and to prioritize the
actual providing of security rather than the protection of government
jobs. Some conservatives may also be concerned at the bill's creation of
new programs and offices in a Department often regarded as bloated,
without corresponding reductions or consolidations of programs and
offices.

**[Administration Position]{.underline}**: Although a Statement of
Administration Policy was not available at press time, reports indicate
that the Administration will strongly oppose this legislation because of
the personnel authority provisions referenced in the "Possible
Conservative Concerns" section above.

**[Cost to Taxpayers]{.underline}**: CBO estimates that this bill would
authorize \$39.863 billion in FY2008 and a total of \$40.358 billion
over the FY2008-FY2012 period. Note that, just because the bill language
says that an authorization should come from existing funds or from
overall DHS funds, does not mean that CBO scores it that way. See the
details here: <http://www.cbo.gov/ftpdocs/80xx/doc8045/hr1684.pdf>.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes. The bill would create a variety of new
programs and offices in DHS [without]{.underline} corresponding
provisions for the consolidation and streamlining of existing DHS
programs and authorities.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes. The bill contains a
mandate that public and private education institutions hosting exchange
visitors increase their tracking of their activities. The bill would
also impose a private-sector mandate regarding the commercial and
Internet use of the DHS name or insignia. "CBO estimates that the cost
of those mandates would be well below the annual thresholds established
by UMRA (\$66 million for intergovernmental mandates and \$131 million
for private-sector mandates in 2007, adjusted annually for inflation)."

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: The Homeland Security
Committee, in House Report 110-122, reports that Rep. Dave Reichert
(R-WA) submitted an earmark for \$500,000 for a dedicated DHS Inspector
General field office in Bellingham, Washington. The relevant section of
the underlying bill (Section 303) does not contain any DHS Inspector
General earmark (just an overall funding level for the DHS Inspector
General), and it is unclear whether this earmark will be honored.

**[Constitutional Authority]{.underline}**: The Homeland Security
Committee, in House Report 110-122, cites constitutional authority in
Article I, Section 8, Clause 1 (the congressional power to provide for
the common defense of the United States).

**[RSC Staff Contact]{.underline}**: Paul S. Teller,
<paul.teller@mail.house.gov>, (202) 226-9718