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

Public Law 107–296

107th Congress

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. 1. Short title; table of contents.

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.

6 USC 101 note.

Homeland

Security Act of

2002.

Nov. 25, 2002

[H.R. 5005]

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

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

Technology.

Sec. 303. Functions transferred.

Sec. 304. Conduct of certain public health-related activities.

Sec. 305. Federally funded research and development centers.

Sec. 306. Miscellaneous provisions.

Sec. 307. Homeland Security Advanced Research Projects Agency.

Sec. 308. Conduct of research, development, demonstration, testing and evaluation.

Sec. 309. Utilization of Department of Energy national laboratories and sites in

support of homeland security activities.

Sec. 310. Transfer of Plum Island Animal Disease Center, Department of 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.

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

Sec. 461. Application of Internet-based technologies.

Sec. 462. Children’s affairs.

Subtitle F—General Immigration Provisions

Sec. 471. Abolishment of INS.

Sec. 472. Voluntary separation incentive payments.

Sec. 473. Authority to conduct a demonstration project relating to disciplinary 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.

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

Sec. 853. Increased simplified acquisition threshold for procurements in support of

humanitarian or peacekeeping operations or contingency operations.

Sec. 854. Increased micro-purchase threshold for certain procurements.

Sec. 855. Application of certain commercial items authorities to certain 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.

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

Sec. 1102. Authorities of the Attorney General.

Sec. 1103. Statutory construction.

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

Department of Justice

Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Sec. 1112. Technical and conforming amendments.

Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco, Firearms, and 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.

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

Sec. 1512. Savings provisions.

Sec. 1513. Terminations.

Sec. 1514. National identification system not authorized.

Sec. 1515. Continuity of Inspector General oversight.

Sec. 1516. Incidental transfers.

Sec. 1517. Reference.

TITLE XVI—CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE

TRANSPORTATION SECURITY

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

Transportation.

Sec. 1602. Increase in civil penalties.

Sec. 1603. Allowing United States citizens and United States nationals as 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.

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.

6 USC 101.

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

(9) The term ‘‘key resources’’ means publicly or privately

controlled resources essential to the minimal operations of the

economy and government.

(10) The term ‘‘local government’’ means—

(A) a county, municipality, city, town, township, local

public authority, school district, special district, intrastate

district, council of governments (regardless of whether the

council of governments is incorporated as a nonprofit 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.

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

6 USC 102.

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

law, unless such holding shall be one of utter invalidity or

unenforceability, in which event such provision shall be deemed

severable from this Act and shall not affect the remainder thereof,

or the application of such provision to other persons not similarly

situated or to other, dissimilar circumstances.

SEC. 4. EFFECTIVE DATE.

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

TITLE I—DEPARTMENT OF HOMELAND

SECURITY

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.

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.

6 USC 112.

6 USC 111.

6 USC 101 note.

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

(3) FUNCTIONS VESTED IN SECRETARY.—All functions of all

officers, employees, and organizational units of the Department

are vested in the Secretary.

(b) FUNCTIONS.—The 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;

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

(4) creating and managing private sector advisory councils

composed of representatives of industries and associations 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.

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.

6 USC 113.

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(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

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

6 USC 121.

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

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.

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

(8) To review, analyze, and make recommendations for

improvements in the policies and procedures governing the

sharing of law enforcement information, intelligence 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 datamining and other advanced analytical tools, in order to access,

receive, and analyze data and information in furtherance of

the responsibilities under this section, and to disseminate

information acquired and analyzed by the Department, as

appropriate.

(15) To ensure, in conjunction with the chief information

officer of the Department, that any information databases and

analytical tools developed or utilized by the Department—

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

(A) are compatible with one another and with relevant

information databases of other agencies of the Federal

Government; and

(B) treat information in such databases in a manner

that complies with applicable Federal law on privacy.

(16) To coordinate training and other support to the 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:

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

(1) The National Infrastructure Protection Center of the

Federal Bureau of Investigation (other than the Computer

Investigations and Operations Section), including the functions

of the Attorney General relating thereto.

(2) The National Communications System of the 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’’.

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

6 USC 122.

50 USC 401a.

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

(2) regardless of whether the Secretary has made any

request or entered into any cooperative arrangement pursuant

to paragraph (1), all agencies of the Federal Government shall

promptly provide to the Secretary— (A) all reports (including information reports 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

SEC. 211. SHORT TITLE.

This subtitle may be cited as the ‘‘Critical Infrastructure

Information Act of 2002’’.

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.

6 USC 131.

6 USC 101 note.

Critical

Infrastructure

Information Act

of 2002.

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

(2) COVERED FEDERAL AGENCY.—The term ‘‘covered Federal

agency’’ means the Department of Homeland Security.

(3) CRITICAL INFRASTRUCTURE INFORMATION.—The term

‘‘critical infrastructure information’’ means information not 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

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

(B) includes any physical or computer-based system,

including a computer, computer system, computer or

communications network, or any component hardware or

element thereof, software program, processing instructions,

or information or data in transmission or storage therein,

irrespective of the medium of transmission or storage.

(7) VOLUNTARY.— (A) IN GENERAL.—The term ‘‘voluntary’’, in the case

of any submittal of critical infrastructure information to

a covered Federal agency, means the submittal thereof

in the absence of such agency’s exercise of legal authority

to compel access to or submission of such information and

may be accomplished by a single entity or an Information

Sharing and Analysis Organization on behalf of itself or

its members.

(B) EXCLUSIONS.—The term ‘‘voluntary’’—

(i) in the case of any action brought under the

securities laws as is defined in section 3(a)(47) of the

Securities Exchange Act of 1934 (15 U.S.C.

78c(a)(47))—

(I) does not include information or statements

contained in any documents or materials filed with

the Securities and Exchange Commission, or with

Federal banking regulators, pursuant to section

12(i) of the Securities Exchange Act of 1934 (15

U.S.C. 781(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.

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.

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);

6 USC 133.

6 USC 132.

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

(B) shall not be subject to any agency rules or judicial

doctrine regarding ex parte communications with a decision

making official;

(C) shall not, without the written consent of the person

or entity submitting such information, be used directly

by such agency, any other Federal, State, or local authority,

or any third party, in any civil action arising under Federal

or State law if such information is submitted in good faith;

(D) shall not, without the written consent of the person

or entity submitting such information, be used or disclosed

by any officer or employee of the United States for purposes

other than the purposes of this subtitle, except—

(i) in furtherance of an investigation or the

prosecution of a criminal act; or

(ii) when disclosure of the information would be—

(I) to either House of Congress, or to the extent

of matter within its jurisdiction, any committee

or subcommittee thereof, any joint committee

thereof or subcommittee of any such joint 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).

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

(c) INDEPENDENTLY OBTAINED INFORMATION.—Nothing in this

section shall be construed to limit or otherwise affect the ability

of a State, local, or Federal Government entity, agency, or authority,

or any third party, under applicable law, to obtain critical 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

Deadline.

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

regarding potential threats to critical infrastructure as appropriate.

In issuing a warning, the Federal Government shall take 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).

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

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.

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.

6 USC 142.

6 USC 141.

6 USC 134.

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

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.

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.

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;

28 USC 994 note.

Cyber Security

Enhancement

Act of 2002.

6 USC 145.

6 USC 144.

6 USC 143.

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

(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)’’.

Publication.

Deadline.

Deadline.

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

(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

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

(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

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.

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).

6 USC 162.

6 USC 161.

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

The program may, at the discretion of the Office, allow for

supplier’s declaration of conformity with such standards.

(5) To work with other entities within the Department

of Justice, other Federal agencies, and the executive office

of the President to establish a coordinated Federal approach

on issues related to law enforcement technology.

(6) To carry out research, development, testing, evaluation,

and cost-benefit analyses in fields that would improve the

safety, effectiveness, and efficiency of law enforcement 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.

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

(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.

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.

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.

6 USC 164.

6 USC 163.

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

(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.

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 meritbased, 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.

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’’.

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

Deadline.

6 USC 165.

Deadline.

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

‘‘(11) support research, development, testing, training, and

evaluation of tools and technology for Federal, State, and local

law enforcement agencies.’’.

TITLE III—SCIENCE AND TECHNOLOGY

IN SUPPORT OF HOMELAND SECURITY

SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.

There shall be in the Department a Directorate of Science

and Technology headed by an Under Secretary for Science and

Technology.

SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER 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;

6 USC 182.

6 USC 181.

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

(8) collaborating with the Secretary of Agriculture and

the Attorney General as provided in section 212 of the 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.

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.

6 USC 183.

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

(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.

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

6 USC 184.

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

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 ADMINISTRA- TIONS WITHIN SCOPE OF DECLARATION.—Except as provided

in paragraph (5)(B)(ii), the United States shall be liable

under this subsection with respect to a claim arising out

of the administration of a covered countermeasure to an

individual only if— ‘‘(i) the countermeasure was administered by a

qualified person, for a purpose stated in paragraph

(7)(A)(i), and during the effective period of a declaration

by the Secretary under subparagraph (A) with respect

to such countermeasure; and ‘‘(ii)(I) the individual was within a category of

individuals covered by the declaration; or ‘‘(II) the qualified person administering the

countermeasure had reasonable grounds to believe that

such individual was within such category.

‘‘(C) PRESUMPTION OF ADMINISTRATION WITHIN SCOPE

OF DECLARATION IN CASE OF ACCIDENTAL VACCINIA 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:

Federal Register,

publication.

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

‘‘(A) NATURE OF CERTIFICATION.—The certification by

the Attorney General that is the basis for deeming an

action or proceeding to be against the United States, and

for removing an action or proceeding from a State court,

is a certification that the action or proceeding is against

a covered person and is based upon a claim alleging personal injury or death arising out of the administration

of a covered countermeasure.

‘‘(B) CERTIFICATION OF ATTORNEY GENERAL CONCLU- SIVE.—The certification of the Attorney General of the facts

specified in subparagraph (A) shall conclusively establish

such facts for purposes of jurisdiction pursuant to this

subsection.

‘‘(5) DEFENDANT TO COOPERATE WITH UNITED STATES.— ‘‘(A) IN GENERAL.—A covered person shall cooperate

with the United States in the processing and defense of

a claim or action under this subsection based upon alleged

acts or omissions of such person. ‘‘(B) CONSEQUENCES OF FAILURE TO COOPERATE.—Upon

the motion of the United States or any other party and

upon finding that such person has failed to so cooperate—

‘‘(i) the court shall substitute such person as the

party defendant in place of the United States and,

upon motion, shall remand any such suit to the court

in which it was instituted if it appears that the court

lacks subject matter jurisdiction;

‘‘(ii) the United States shall not be liable based

on the acts or omissions of such person; and

‘‘(iii) the Attorney General shall not be obligated

to defend such action.

‘‘(6) RECOURSE AGAINST COVERED PERSON IN CASE OF GROSS

MISCONDUCT OR CONTRACT VIOLATION.—

‘‘(A) IN GENERAL.—Should payment be made by the

United States to any claimant bringing a claim under

this subsection, either by way of administrative 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

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

‘‘(ii) specified in a declaration under paragraph

(2).

‘‘(B) COVERED PERSON.—The term ‘covered person’, when used with respect to the administration of a covered

countermeasure, includes any person who is— ‘‘(i) a manufacturer or distributor of such 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.’’.

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.

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 DESIGNA- TIONS.—Not later than 60 days before effecting any transfer of

Department of Energy life sciences activities pursuant to section

303(1)(D) of this Act, the President shall notify the appropriate

congressional committees of the proposed transfer and shall include

the reasons for the transfer and a description of the effect of

the transfer on the activities of the Department of Energy.

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).

6 USC 187.

Deadline.

6 USC 186.

Contracts.

6 USC 185.

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

(2) HOMELAND SECURITY RESEARCH.—The term ‘‘homeland

security research’’ means research relevant to the detection

of, prevention of, protection against, response to, attribution

of, and recovery from homeland security threats, particularly

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.

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

(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.

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.

6 USC 188.

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

(vii) Affiliation with Department of Agriculture

laboratories or training centers.

(viii) Demonstrated expertise in water and 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 laboratory units at other

laboratories or sites.

(3) CRITERIA FOR HEADQUARTERS LABORATORY.—If the Secretary chooses to establish a headquarters laboratory pursuant

to paragraph (2), then the Secretary shall do the following:

(A) Establish criteria for the selection of the headquarters laboratory in consultation with the National

Academy of Sciences, appropriate Federal agencies, and

other experts.

(B) Publish the criteria in the Federal Register.

(C) Evaluate all appropriate laboratories or sites

against the criteria.

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

criteria.

(E) Report to the appropriate congressional committees

on which laboratory was selected, how the selected laboratory meets the published criteria, and what duties the

headquarters laboratory shall perform.

(4) LIMITATION ON OPERATION OF LABORATORIES.—No laboratory shall begin operating as the headquarters laboratory

Reports.

Federal Register,

publication.

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

of the Department until at least 30 days after the transmittal

of the report required by paragraph (3)(E).

SEC. 309. UTILIZATION OF DEPARTMENT OF ENERGY NATIONAL LABORATORIES AND SITES IN SUPPORT OF HOMELAND

SECURITY ACTIVITIES.

(a) AUTHORITY TO UTILIZE NATIONAL LABORATORIES AND

SITES.—

(1) IN GENERAL.—In carrying out the missions of the

Department, the Secretary may utilize the Department of

Energy national laboratories and sites through any 1 or more

of the following methods, as the Secretary considers appropriate:

(A) A joint sponsorship arrangement referred to in

subsection (b).

(B) A direct contract between the Department and

the applicable Department of Energy laboratory or site,

subject to subsection (c).

(C) Any ‘‘work for others’’ basis made available by

that laboratory or site.

(D) Any other method provided by law.

(2) ACCEPTANCE AND PERFORMANCE BY LABS AND SITES.—

Notwithstanding any other law governing the administration,

mission, use, or operations of any of the Department of Energy

national laboratories and sites, such laboratories and sites are

authorized to accept and perform work for the Secretary, consistent with resources provided, and perform such work on

an equal basis to other missions at the laboratory and not

on a noninterference basis with other missions of such laboratory or site.

(b) JOINT SPONSORSHIP ARRANGEMENTS.—

(1) LABORATORIES.—The Department may be a joint

sponsor, under a multiple agency sponsorship arrangement with

the Department of Energy, of 1 or more Department of Energy

national laboratories in the performance of work.

(2) SITES.—The Department may be a joint sponsor of

a Department of Energy site in the performance of work as

if such site were a federally funded research and development

center and the work were performed under a multiple agency

sponsorship arrangement with the Department.

(3) PRIMARY SPONSOR.—The Department of Energy shall

be the primary sponsor under a multiple agency sponsorship

arrangement referred to in paragraph (1) or (2).

(4) LEAD AGENT.—The Secretary of Energy shall act as

the lead agent in coordinating the formation and performance

of a joint sponsorship arrangement under this subsection

between the Department and a Department of Energy national

laboratory or site.

(5) FEDERAL ACQUISITION REGULATION.—Any work performed by a Department of Energy national laboratory or site

under a joint sponsorship arrangement under this subsection

shall comply with the policy on the use of federally funded

research and development centers under the Federal Acquisition Regulations.

(6) FUNDING.—The Department shall provide funds for

work at the Department of Energy national laboratories or

6 USC 189.

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

sites, as the case may be, under a joint sponsorship arrangement under this subsection under the same terms and conditions as apply to the primary sponsor of such national laboratory under section 303(b)(1)(C) of the Federal Property and

Administrative Services Act of 1949 (41 U.S.C. 253(b)(1)(C))

or of such site to the extent such section applies to such

site as a federally funded research and development center

by reason of this subsection.

(c) SEPARATE CONTRACTING.—To the extent that programs or

activities transferred by this Act from the Department of Energy

to the Department of Homeland Security are being carried out

through direct contracts with the operator of a national laboratory

or site of the Department of Energy, the Secretary of Homeland

Security and the Secretary of Energy shall ensure that direct contracts for such programs and activities between the Department

of Homeland Security and such operator are separate from the

direct contracts of the Department of Energy with such operator.

(d) AUTHORITY WITH RESPECT TO COOPERATIVE RESEARCH AND

DEVELOPMENT AGREEMENTS AND LICENSING AGREEMENTS.—In

connection with any utilization of the Department of Energy

national laboratories and sites under this section, the Secretary

may permit the director of any such national laboratory or site

to enter into cooperative research and development agreements

or to negotiate licensing agreements with any person, any agency

or instrumentality, of the United States, any unit of State or local

government, and any other entity under the authority granted

by section 12 of the Stevenson-Wydler Technology Innovation Act

of 1980 (15 U.S.C. 3710a). Technology may be transferred to a

non-Federal party to such an agreement consistent with the provisions of sections 11 and 12 of that Act (15 U.S.C. 3710, 3710a).

(e) REIMBURSEMENT OF COSTS.—In the case of an activity carried out by the operator of a Department of Energy national laboratory or site in connection with any utilization of such laboratory

or site under this section, the Department of Homeland Security

shall reimburse the Department of Energy for costs of such activity

through a method under which the Secretary of Energy waives

any requirement for the Department of Homeland Security to pay

administrative charges or personnel costs of the Department of

Energy or its contractors in excess of the amount that the Secretary

of Energy pays for an activity carried out by such contractor and

paid for by the Department of Energy.

(f) LABORATORY DIRECTED RESEARCH AND DEVELOPMENT BY

THE DEPARTMENT OF ENERGY.—No funds authorized to be appropriated or otherwise made available to the Department in any

fiscal year may be obligated or expended for laboratory directed

research and development activities carried out by the Department

of Energy unless such activities support the missions of the Department of Homeland Security.

(g) OFFICE FOR NATIONAL LABORATORIES.—There is established

within the Directorate of Science and Technology an Office for

National Laboratories, which shall be responsible for the coordination and utilization of the Department of Energy national laboratories and sites under this section in a manner to create a networked

laboratory system for the purpose of supporting the missions of

the Department.

(h) DEPARTMENT OF ENERGY COORDINATION ON HOMELAND

SECURITY RELATED RESEARCH.—The Secretary of Energy shall

Establishment.

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

ensure that any research, development, test, and evaluation activities conducted within the Department of Energy that are directly

or indirectly related to homeland security are fully coordinated

with the Secretary to minimize duplication of effort and maximize

the effective application of Federal budget resources.

SEC. 310. TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER,

DEPARTMENT OF AGRICULTURE.

(a) IN GENERAL.—In accordance with title XV, the Secretary

of Agriculture shall transfer to the Secretary of Homeland Security

the Plum Island Animal Disease Center of the Department of Agriculture, including the assets and liabilities of the Center.

(b) CONTINUED DEPARTMENT OF AGRICULTURE ACCESS.—On

completion of the transfer of the Plum Island Animal Disease Center

under subsection (a), the Secretary of Homeland Security and the

Secretary of Agriculture shall enter into an agreement to ensure

that the Department of Agriculture is able to carry out research,

diagnostic, and other activities of the Department of Agriculture

at the Center.

(c) DIRECTION OF ACTIVITIES.—The Secretary of Agriculture

shall continue to direct the research, diagnostic, and other activities

of the Department of Agriculture at the Center described in subsection (b).

(d) NOTIFICATION.—

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

in the biosafety level at the Plum Island Animal Disease Center,

the President shall notify Congress of the change and describe

the reasons for the change.

(2) LIMITATION.—No change described in paragraph (1) may

be made earlier than 180 days after the completion of the

transition period (as defined in section 1501).

SEC. 311. HOMELAND SECURITY SCIENCE AND TECHNOLOGY

ADVISORY COMMITTEE.

(a) ESTABLISHMENT.—There is established within the Department a Homeland Security Science and Technology Advisory Committee (in this section referred to as the ‘‘Advisory Committee’’).

The Advisory Committee shall make recommendations with respect

to the activities of the Under Secretary for Science and Technology,

including identifying research areas of potential importance to the

security of the Nation.

(b) MEMBERSHIP.—

(1) APPOINTMENT.—The Advisory Committee shall consist

of 20 members appointed by the Under Secretary for Science

and Technology, which shall include emergency first-responders

or representatives of organizations or associations of emergency

first-responders. The Advisory Committee shall also include

representatives of citizen groups, including economically disadvantaged communities. The individuals appointed as members of the Advisory Committee—

(A) shall be eminent in fields such as emergency

response, research, engineering, new product development,

business, and management consulting;

(B) shall be selected solely on the basis of established

records of distinguished service;

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

and

6 USC 191.

6 USC 190.

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

(D) shall be so selected as to provide representation

of a cross-section of the research, development, demonstration, and deployment activities supported by the Under

Secretary for Science and Technology.

(2) NATIONAL RESEARCH COUNCIL.—The Under Secretary

for Science and Technology may enter into an arrangement

for the National Research Council to select members of the

Advisory Committee, but only if the panel used by the National

Research Council reflects the representation described in paragraph (1).

(c) TERMS OF OFFICE.—

(1) IN GENERAL.—Except as otherwise provided in this subsection, the term of office of each member of the Advisory

Committee shall be 3 years.

(2) ORIGINAL APPOINTMENTS.—The original members of the

Advisory Committee shall be appointed to three classes of three

members each. One class shall have a term of 1 year, 1 a

term of 2 years, and the other a term of 3 years.

(3) VACANCIES.—A member appointed to fill a vacancy

occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed for the

remainder of such term.

(d) ELIGIBILITY.—A person who has completed two consecutive

full terms of service on the Advisory Committee shall thereafter

be ineligible for appointment during the 1-year period following

the expiration of the second such term.

(e) MEETINGS.—The Advisory Committee shall meet at least

quarterly at the call of the Chair or whenever one-third of the

members so request in writing. Each member shall be given appropriate notice of the call of each meeting, whenever possible not

less than 15 days before the meeting.

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

(g) CONFLICT OF INTEREST RULES.—The Advisory Committee

shall establish rules for determining when 1 of its members has

a conflict of interest in a matter being considered by the Advisory

Committee.

(h) REPORTS.—

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

an annual report to the Under Secretary for Science and Technology for transmittal to Congress on or before January 31

of each year. Such report shall describe the activities and

recommendations of the Advisory Committee during the previous year.

(2) ADDITIONAL REPORTS.—The Advisory Committee may

render to the Under Secretary for transmittal to Congress

such additional reports on specific policy matters as it considers

appropriate.

(i) FEDERAL ADVISORY COMMITTEE ACT EXEMPTION.—Section

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

Advisory Committee.

(j) TERMINATION.—The Department of Homeland Security

Science and Technology Advisory Committee shall terminate 3 years

after the effective date of this Act.

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

SEC. 312. HOMELAND SECURITY INSTITUTE.

(a) ESTABLISHMENT.—The Secretary shall establish a federally

funded research and development center to be known as the ‘‘Homeland Security Institute’’ (in this section referred to as the

‘‘Institute’’).

(b) ADMINISTRATION.—The Institute shall be administered as

a separate entity by the Secretary.

(c) DUTIES.—The duties of the Institute shall be determined

by the Secretary, and may include the following:

(1) Systems analysis, risk analysis, and simulation and

modeling to determine the vulnerabilities of the Nation’s critical

infrastructures and the effectiveness of the systems deployed

to reduce those vulnerabilities.

(2) Economic and policy analysis to assess the distributed

costs and benefits of alternative approaches to enhancing security.

(3) Evaluation of the effectiveness of measures deployed

to enhance the security of institutions, facilities, and infrastructure that may be terrorist targets.

(4) Identification of instances when common standards and

protocols could improve the interoperability and effective utilization of tools developed for field operators and first responders.

(5) Assistance for Federal agencies and departments in

establishing testbeds to evaluate the effectiveness of technologies under development and to assess the appropriateness

of such technologies for deployment.

(6) Design of metrics and use of those metrics to evaluate

the effectiveness of homeland security programs throughout

the Federal Government, including all national laboratories.

(7) Design of and support for the conduct of homeland

security-related exercises and simulations.

(8) Creation of strategic technology development plans to

reduce vulnerabilities in the Nation’s critical infrastructure

and key resources.

(d) CONSULTATION ON INSTITUTE ACTIVITIES.—In carrying out

the duties described in subsection (c), the Institute shall consult

widely with representatives from private industry, institutions of

higher education, nonprofit institutions, other Government agencies,

and federally funded research and development centers.

(e) USE OF CENTERS.—The Institute shall utilize the capabilities

of the National Infrastructure Simulation and Analysis Center.

(f) ANNUAL REPORTS.—The Institute shall transmit to the Secretary and Congress an annual report on the activities of the

Institute under this section.

(g) TERMINATION.—The Homeland Security Institute shall

terminate 3 years after the effective date of this Act.

SEC. 313. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT INNOVATIVE SOLUTIONS TO ENHANCE HOMELAND

SECURITY.

(a) ESTABLISHMENT OF PROGRAM.—The Secretary, acting

through the Under Secretary for Science and Technology, shall

establish and promote a program to encourage technological innovation in facilitating the mission of the Department (as described

in section 101).

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

6 USC 193.

6 USC 192.

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

(1) The establishment of a centralized Federal clearinghouse for information relating to technologies that would further the mission of the Department for dissemination, as appropriate, to Federal, State, and local government and private

sector entities for additional review, purchase, or use.

(2) The issuance of announcements seeking unique and

innovative technologies to advance the mission of the Department.

(3) The establishment of a technical assistance team to

assist in screening, as appropriate, proposals submitted to the

Secretary (except as provided in subsection (c)(2)) to assess

the feasibility, scientific and technical merits, and estimated

cost of such proposals, as appropriate.

(4) The provision of guidance, recommendations, and technical assistance, as appropriate, to assist Federal, State, and

local government and private sector efforts to evaluate and

implement the use of technologies described in paragraph (1)

or (2).

(5) The provision of information for persons seeking guidance on how to pursue proposals to develop or deploy technologies that would enhance homeland security, including

information relating to Federal funding, regulation, or acquisition.

(c) MISCELLANEOUS PROVISIONS.—

(1) IN GENERAL.—Nothing in this section shall be construed

as authorizing the Secretary or the technical assistance team

established under subsection (b)(3) to set standards for technology to be used by the Department, any other executive

agency, any State or local government entity, or any private

sector entity.

(2) CERTAIN PROPOSALS.—The technical assistance team

established under subsection (b)(3) shall not consider or

evaluate proposals submitted in response to a solicitation for

offers for a pending procurement or for a specific agency

requirement.

(3) COORDINATION.—In carrying out this section, the Secretary shall coordinate with the Technical Support Working

Group (organized under the April 1982 National Security Decision Directive Numbered 30).

TITLE IV—DIRECTORATE OF BORDER

AND TRANSPORTATION SECURITY

Subtitle A—Under Secretary for Border

and Transportation Security

SEC. 401. UNDER SECRETARY FOR BORDER AND TRANSPORTATION

SECURITY.

There shall be in the Department a Directorate of Border

and Transportation Security headed by an Under Secretary for

Border and Transportation Security.

SEC. 402. RESPONSIBILITIES.

The Secretary, acting through the Under Secretary for Border

and Transportation Security, shall be responsible for the following:

6 USC 202.

6 USC 201.

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

(1) Preventing the entry of terrorists and the instruments

of terrorism into the United States.

(2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems

of the United States, including managing and coordinating

those functions transferred to the Department at ports of entry.

(3) Carrying out the immigration enforcement functions

vested by statute in, or performed by, the Commissioner of

Immigration and Naturalization (or any officer, employee, or

component of the Immigration and Naturalization Service)

immediately before the date on which the transfer of functions

specified under section 441 takes effect.

(4) Establishing and administering rules, in accordance

with section 428, governing the granting of visas or other

forms of permission, including parole, to enter the United States

to individuals who are not a citizen or an alien lawfully

admitted for permanent residence in the United States.

(5) Establishing national immigration enforcement policies

and priorities.

(6) Except as provided in subtitle C, administering the

customs laws of the United States.

(7) Conducting the inspection and related administrative

functions of the Department of Agriculture transferred to the

Secretary of Homeland Security under section 421.

(8) In carrying out the foregoing responsibilities, ensuring

the speedy, orderly, and efficient flow of lawful traffic and

commerce.

SEC. 403. FUNCTIONS TRANSFERRED.

In accordance with title XV (relating to transition provisions),

there shall be transferred to the Secretary the functions, personnel,

assets, and liabilities of—

(1) the United States Customs Service of the Department

of the Treasury, including the functions of the Secretary of

the Treasury relating thereto;

(2) the Transportation Security Administration of the

Department of Transportation, including the functions of the

Secretary of Transportation, and of the Under Secretary of

Transportation for Security, relating thereto;

(3) the Federal Protective Service of the General Services

Administration, including the functions of the Administrator

of General Services relating thereto;

(4) the Federal Law Enforcement Training Center of the

Department of the Treasury; and

(5) the Office for Domestic Preparedness of the Office of

Justice Programs, including the functions of the Attorney General relating thereto.

Subtitle B—United States Customs Service

SEC. 411. ESTABLISHMENT; COMMISSIONER OF CUSTOMS.

(a) ESTABLISHMENT.—There is established in the Department

the United States Customs Service, under the authority of the

Under Secretary for Border and Transportation Security, which

shall be vested with those functions including, but not limited

6 USC 211.

6 USC 203.

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

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

and liabilities attributable to those functions.

(b) COMMISSIONER OF CUSTOMS.—

(1) IN GENERAL.—There shall be at the head of the Customs

Service a Commissioner of Customs, who shall be appointed

by the President, by and with the advice and consent of the

Senate.

(2) COMPENSATION.—Section 5314 of title 5, United States

Code, is amended by striking ‘‘Commissioner of Customs, Department of the Treasury’’ and inserting ‘‘Commissioner of Customs, Department of Homeland Security.’’.

(3) CONTINUATION IN OFFICE.—The individual serving as

the Commissioner of Customs on the day before the effective

date of this Act may serve as the Commissioner of Customs

on and after such effective date until a Commissioner of Customs is appointed under paragraph (1).

SEC. 412. RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY OF THE TREASURY.

(a) RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY

OF THE TREASURY.—

(1) RETENTION OF AUTHORITY.—Notwithstanding section

403(a)(1), authority related to Customs revenue functions that

was vested in the Secretary of the Treasury by law before

the effective date of this Act under those provisions of law

set forth in paragraph (2) shall not be transferred to the Secretary by reason of this Act, and on and after the effective

date of this Act, the Secretary of the Treasury may delegate

any such authority to the Secretary at the discretion of the

Secretary of the Treasury. The Secretary of the Treasury shall

consult with the Secretary regarding the exercise of any such

authority not delegated to the Secretary.

(2) STATUTES.—The provisions of law referred to in paragraph (1) are the following: the Tariff Act of 1930; section

249 of the Revised Statutes of the United States (19 U.S.C.

3); section 2 of the Act of March 4, 1923 (19 U.S.C. 6); section

13031 of the Consolidated Omnibus Budget Reconciliation Act

of 1985 (19 U.S.C. 58c); section 251 of the Revised Statutes

of the United States (19 U.S.C. 66); section 1 of the Act of

June 26, 1930 (19 U.S.C. 68); the Foreign Trade Zones Act

(19 U.S.C. 81a et seq.); section 1 of the Act of March 2, 1911

(19 U.S.C. 198); the Trade Act of 1974; the Trade Agreements

Act of 1979; the North American Free Trade Area Implementation Act; the Uruguay Round Agreements Act; the Caribbean

Basin Economic Recovery Act; the Andean Trade Preference

Act; the African Growth and Opportunity Act; and any other

provision of law vesting customs revenue functions in the Secretary of the Treasury.

(b) MAINTENANCE OF CUSTOMS REVENUE FUNCTIONS.— (1) MAINTENANCE OF FUNCTIONS.—Notwithstanding any

other provision of this Act, the Secretary may not consolidate,

discontinue, or diminish those functions described in paragraph

(2) performed by the United States Customs Service (as established under section 411) on or after the effective date of

this Act, reduce the staffing level, or reduce the resources

6 USC 212.

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

attributable to such functions, and the Secretary shall ensure

that an appropriate management structure is implemented to

carry out such functions.

(2) FUNCTIONS.—The functions referred to in paragraph

(1) are those functions performed by the following personnel,

and associated support staff, of the United States Customs

Service on the day before the effective date of this Act: Import

Specialists, Entry Specialists, Drawback Specialists, National

Import Specialist, Fines and Penalties Specialists, attorneys

of the Office of Regulations and Rulings, Customs Auditors,

International Trade Specialists, Financial Systems Specialists.

(c) NEW PERSONNEL.—The Secretary of the Treasury is authorized to appoint up to 20 new personnel to work with personnel

of the Department in performing customs revenue functions.

SEC. 413. PRESERVATION OF CUSTOMS FUNDS.

Notwithstanding any other provision of this Act, no funds available to the United States Customs Service or collected under paragraphs (1) through (8) of section 13031(a) of the Consolidated Omnibus Budget Reconciliation Act of 1985 may be transferred for use

by any other agency or office in the Department.

SEC. 414. SEPARATE BUDGET REQUEST FOR CUSTOMS.

The President shall include in each budget transmitted to Congress under section 1105 of title 31, United States Code, a separate

budget request for the United States Customs Service.

SEC. 415. DEFINITION.

In this subtitle, the term ‘‘customs revenue function’’ means

the following:

(1) Assessing and collecting customs duties (including antidumping and countervailing duties and duties imposed under

safeguard provisions), excise taxes, fees, and penalties due on

imported merchandise, including classifying and valuing merchandise for purposes of such assessment.

(2) Processing and denial of entry of persons, baggage,

cargo, and mail, with respect to the assessment and collection

of import duties.

(3) Detecting and apprehending persons engaged in fraudulent practices designed to circumvent the customs laws of the

United States.

(4) Enforcing section 337 of the Tariff Act of 1930 and

provisions relating to import quotas and the marking of

imported merchandise, and providing Customs Recordations

for copyrights, patents, and trademarks.

(5) Collecting accurate import data for compilation of international trade statistics.

(6) Enforcing reciprocal trade agreements.

(7) Functions performed by the following personnel, and

associated support staff, of the United States Customs Service

on the day before the effective date of this Act: Import Specialists, Entry Specialists, Drawback Specialists, National Import

Specialist, Fines and Penalties Specialists, attorneys of the

Office of Regulations and Rulings, Customs Auditors, International Trade Specialists, Financial Systems Specialists.

(8) Functions performed by the following offices, with

respect to any function described in any of paragraphs (1)

through (7), and associated support staff, of the United States

6 USC 215.

6 USC 214.

6 USC 213.

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

Customs Service on the day before the effective date of this

Act: the Office of Information and Technology, the Office of

Laboratory Services, the Office of the Chief Counsel, the Office

of Congressional Affairs, the Office of International Affairs,

and the Office of Training and Development.

SEC. 416. GAO REPORT TO CONGRESS.

Not later than 3 months after the effective date of this Act,

the Comptroller General of the United States shall submit to Congress a report that sets forth all trade functions performed by

the executive branch, specifying each agency that performs each

such function.

SEC. 417. ALLOCATION OF RESOURCES BY THE SECRETARY.

(a) IN GENERAL.—The Secretary shall ensure that adequate

staffing is provided to assure that levels of customs revenue services

provided on the day before the effective date of this Act shall

continue to be provided.

(b) NOTIFICATION OF CONGRESS.—The Secretary shall notify

the Committee on Ways and Means of the House of Representatives

and the Committee on Finance of the Senate at least 90 days

prior to taking any action which would—

(1) result in any significant reduction in customs revenue

services, including hours of operation, provided at any office

within the Department or any port of entry;

(2) eliminate or relocate any office of the Department which

provides customs revenue services; or

(3) eliminate any port of entry.

(c) DEFINITION.—In this section, the term ‘‘customs revenue

services’’ means those customs revenue functions described in paragraphs (1) through (6) and paragraph (8) of section 415.

SEC. 418. REPORTS TO CONGRESS.

(a) CONTINUING REPORTS.—The United States Customs Service

shall, on and after the effective date of this Act, continue to submit

to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate any report

required, on the day before such the effective date of this Act,

to be so submitted under any provision of law.

(b) REPORT ON CONFORMING AMENDMENTS.—Not later than

60 days after the date of enactment of this Act, the Secretary

of the Treasury shall submit a report to the Committee on Finance

of the Senate and the Committee on Ways and Means of the

House of Representatives of proposed conforming amendments to

the statutes set forth under section 412(a)(2) in order to determine

the appropriate allocation of legal authorities described under this

subsection. The Secretary of the Treasury shall also identify those

authorities vested in the Secretary of the Treasury that are exercised by the Commissioner of Customs on or before the effective

date of this section.

SEC. 419. CUSTOMS USER FEES.

(a) IN GENERAL.—Section 13031(f) of the Consolidated Omnibus

Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f)) is amended—

(1) in paragraph (1), by striking subparagraph (B) and

inserting the following:

Deadline.

6 USC 218.

6 USC 217.

Deadline.

6 USC 216.

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

‘‘(B) amounts deposited into the Customs Commercial

and Homeland Security Automation Account under paragraph (5).’’;

(2) in paragraph (4), by striking ‘‘(other than the excess

fees determined by the Secretary under paragraph (5))’’; and

(3) by striking paragraph (5) and inserting the following:

‘‘(5)(A) There is created within the general fund of the Treasury

a separate account that shall be known as the ‘Customs Commercial

and Homeland Security Automation Account’. In each of fiscal years

2003, 2004, and 2005 there shall be deposited into the Account

from fees collected under subsection (a)(9)(A), $350,000,000.

‘‘(B) There is authorized to be appropriated from the Account

in fiscal years 2003 through 2005 such amounts as are available

in that Account for the development, establishment, and

implementation of the Automated Commercial Environment computer system for the processing of merchandise that is entered

or released and for other purposes related to the functions of the

Department of Homeland Security. Amounts appropriated pursuant

to this subparagraph are authorized to remain available until

expended.

‘‘(C) In adjusting the fee imposed by subsection (a)(9)(A) for

fiscal year 2006, the Secretary of the Treasury shall reduce the

amount estimated to be collected in fiscal year 2006 by the amount

by which total fees deposited to the Account during fiscal years

2003, 2004, and 2005 exceed total appropriations from that

Account.’’.

(b) CONFORMING AMENDMENT.—Section 311(b) of the Customs

Border Security Act of 2002 (Public Law 107–210) is amended

by striking paragraph (2).

Subtitle C—Miscellaneous Provisions

SEC. 421. TRANSFER OF CERTAIN AGRICULTURAL INSPECTION FUNCTIONS OF THE DEPARTMENT OF AGRICULTURE.

(a) TRANSFER OF AGRICULTURAL IMPORT AND ENTRY INSPECTION

FUNCTIONS.—There shall be transferred to the Secretary the functions of the Secretary of Agriculture relating to agricultural import

and entry inspection activities under the laws specified in subsection

(b).

(b) COVERED ANIMAL AND PLANT PROTECTION LAWS.—The laws

referred to in subsection (a) are the following:

(1) The Act commonly known as the Virus-Serum-Toxin

Act (the eighth paragraph under the heading ‘‘Bureau of Animal

Industry’’ in the Act of March 4, 1913; 21 U.S.C. 151 et seq.).

(2) Section 1 of the Act of August 31, 1922 (commonly

known as the Honeybee Act; 7 U.S.C. 281).

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

seq.).

(4) The Plant Protection Act (7 U.S.C. 7701 et seq.).

(5) The Animal Health Protection Act (subtitle E of title

X of Public Law 107–171; 7 U.S.C. 8301 et seq.).

(6) The Lacey Act Amendments of 1981 (16 U.S.C. 3371

et seq.).

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

U.S.C. 1540).

6 USC 231.

Ante, p. 973.

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

(c) EXCLUSION OF QUARANTINE ACTIVITIES.—For purposes of

this section, the term ‘‘functions’’ does not include any quarantine

activities carried out under the laws specified in subsection (b).

(d) EFFECT OF TRANSFER.— (1) COMPLIANCE WITH DEPARTMENT OF AGRICULTURE REGU- LATIONS.—The authority transferred pursuant to subsection (a)

shall be exercised by the Secretary in accordance with the

regulations, policies, and procedures issued by the Secretary

of Agriculture regarding the administration of the laws specified

in subsection (b).

(2) RULEMAKING COORDINATION.—The Secretary of Agriculture shall coordinate with the Secretary whenever the Secretary of Agriculture prescribes regulations, policies, or procedures for administering the functions transferred under subsection (a) under a law specified in subsection (b).

(3) EFFECTIVE ADMINISTRATION.—The Secretary, in consultation with the Secretary of Agriculture, may issue such

directives and guidelines as are necessary to ensure the effective use of personnel of the Department of Homeland Security

to carry out the functions transferred pursuant to subsection

(a).

(e) TRANSFER AGREEMENT.—

(1) AGREEMENT REQUIRED; REVISION.—Before the end of

the transition period, as defined in section 1501, the Secretary

of Agriculture and the Secretary shall enter into an agreement

to effectuate the transfer of functions required by subsection

(a). The Secretary of Agriculture and the Secretary may jointly

revise the agreement as necessary thereafter.

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

(A) The supervision by the Secretary of Agriculture

of the training of employees of the Secretary to carry out

the functions transferred pursuant to subsection (a).

(B) The transfer of funds to the Secretary under subsection (f).

(3) COOPERATION AND RECIPROCITY.—The Secretary of Agriculture and the Secretary may include as part of the agreement

the following:

(A) Authority for the Secretary to perform functions

delegated to the Animal and Plant Health Inspection

Service of the Department of Agriculture regarding the

protection of domestic livestock and plants, but not transferred to the Secretary pursuant to subsection (a).

(B) Authority for the Secretary of Agriculture to use

employees of the Department of Homeland Security to carry

out authorities delegated to the Animal and Plant Health

Inspection Service regarding the protection of domestic livestock and plants.

(f) PERIODIC TRANSFER OF FUNDS TO DEPARTMENT OF HOMELAND SECURITY.—

(1) TRANSFER OF FUNDS.—Out of funds collected by fees

authorized under sections 2508 and 2509 of the Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136,

136a), the Secretary of Agriculture shall transfer, from time

to time in accordance with the agreement under subsection

(e), to the Secretary funds for activities carried out by the

Secretary for which such fees were collected.

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

(2) LIMITATION.—The proportion of fees collected pursuant

to such sections that are transferred to the Secretary under

this subsection may not exceed the proportion of the costs

incurred by the Secretary to all costs incurred to carry out

activities funded by such fees.

(g) TRANSFER OF DEPARTMENT OF AGRICULTURE EMPLOYEES.— Not later than the completion of the transition period defined under

section 1501, the Secretary of Agriculture shall transfer to the

Secretary not more than 3,200 full-time equivalent positions of

the Department of Agriculture.

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

amended—

(1) in section 501(a)— (A) by inserting ‘‘or the Department of Homeland Security’’ after ‘‘Department of Agriculture’’; and

(B) by inserting ‘‘or the Secretary of Homeland Security’’ after ‘‘Secretary of Agriculture’’;

(2) by striking ‘‘Secretary’’ each place it appears (other

than in sections 501(a) and 501(e)) and inserting ‘‘Secretary

concerned’’; and

(3) by adding at the end of section 501 the following new

subsection:

‘‘(e) SECRETARY CONCERNED DEFINED.—In this title, the term

‘Secretary concerned’ means—

‘‘(1) the Secretary of Agriculture, with respect to an animal

used for purposes of official inspections by the Department

of Agriculture; and

‘‘(2) the Secretary of Homeland Security, with respect to

an animal used for purposes of official inspections by the

Department of Homeland Security.’’.

SEC. 422. FUNCTIONS OF ADMINISTRATOR OF GENERAL SERVICES.

(a) OPERATION, MAINTENANCE, AND PROTECTION OF FEDERAL

BUILDINGS AND GROUNDS.—Nothing in this Act may be construed

to affect the functions or authorities of the Administrator of General

Services with respect to the operation, maintenance, and protection

of buildings and grounds owned or occupied by the Federal Government and under the jurisdiction, custody, or control of the Administrator. Except for the law enforcement and related security functions

transferred under section 403(3), the Administrator shall retain

all powers, functions, and authorities vested in the Administrator

under chapter 10 of title 40, United States Code, and other provisions of law that are necessary for the operation, maintenance,

and protection of such buildings and grounds.

(b) COLLECTION OF RENTS AND FEES; FEDERAL BUILDINGS

FUND.—

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

be construed—

(A) to direct the transfer of, or affect, the authority

of the Administrator of General Services to collect rents

and fees, including fees collected for protective services;

or

(B) to authorize the Secretary or any other official

in the Department to obligate amounts in the Federal

Buildings Fund established by section 490(f) of title 40,

United States Code.

6 USC 232.

7 USC 2279e,

2779f.

7 USC 2279e.

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

(2) USE OF TRANSFERRED AMOUNTS.—Any amounts transferred by the Administrator of General Services to the Secretary

out of rents and fees collected by the Administrator shall be

used by the Secretary solely for the protection of buildings

or grounds owned or occupied by the Federal Government.

SEC. 423. FUNCTIONS OF TRANSPORTATION SECURITY ADMINISTRATION.

(a) CONSULTATION WITH FEDERAL AVIATION ADMINISTRATION.— The Secretary and other officials in the Department shall consult

with the Administrator of the Federal Aviation Administration

before taking any action that might affect aviation safety, air carrier

operations, aircraft airworthiness, or the use of airspace. The Secretary shall establish a liaison office within the Department for

the purpose of consulting with the Administrator of the Federal

Aviation Administration.

(b) REPORT TO CONGRESS.—Not later than 60 days after the

date of enactment of this Act, the Secretary of Transportation

shall transmit to Congress a report containing a plan for complying

with the requirements of section 44901(d) of title 49, United States

Code, as amended by section 425 of this Act.

(c) LIMITATIONS ON STATUTORY CONSTRUCTION.—

(1) GRANT OF AUTHORITY.—Nothing in this Act may be

construed to vest in the Secretary or any other official in

the Department any authority over transportation security that

is not vested in the Under Secretary of Transportation for

Security, or in the Secretary of Transportation under chapter

449 of title 49, United States Code, on the day before the

date of enactment of this Act.

(2) OBLIGATION OF AIP FUNDS.—Nothing in this Act may

be construed to authorize the Secretary or any other official

in the Department to obligate amounts made available under

section 48103 of title 49, United States Code.

SEC. 424. PRESERVATION OF TRANSPORTATION SECURITY ADMINISTRATION AS A DISTINCT ENTITY.

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

Act, and subject to subsection (b), the Transportation Security

Administration shall be maintained as a distinct entity within

the Department under the Under Secretary for Border Transportation and Security.

(b) SUNSET.—Subsection (a) shall cease to apply 2 years after

the date of enactment of this Act.

SEC. 425. EXPLOSIVE DETECTION SYSTEMS.

Section 44901(d) of title 49, United States Code, is amended

by adding at the end the following:

‘‘(2) DEADLINE.—

‘‘(A) IN GENERAL.—If, in his discretion or at the request

of an airport, the Under Secretary of Transportation for

Security determines that the Transportation Security

Administration is not able to deploy explosive detection

systems required to be deployed under paragraph (1) at

all airports where explosive detection systems are required

by December 31, 2002, then with respect to each airport

for which the Under Secretary makes that determination—

‘‘(i) the Under Secretary shall submit to the Senate

Committee on Commerce, Science, and Transportation

6 USC 234.

Deadline.

6 USC 233.

116 STAT. 2186 PUBLIC LAW 107–296—NOV. 25, 2002

and the House of Representatives Committee on

Transportation and Infrastructure a detailed plan

(which may be submitted in classified form) for the

deployment of the number of explosive detection systems at that airport necessary to meet the requirements of paragraph (1) as soon as practicable at that

airport but in no event later than December 31, 2003;

and

‘‘(ii) the Under Secretary shall take all necessary

action to ensure that alternative means of screening

all checked baggage is implemented until the requirements of paragraph (1) have been met.

‘‘(B) CRITERIA FOR DETERMINATION.—In making a

determination under subparagraph (A), the Under Secretary shall take into account— ‘‘(i) the nature and extent of the required modifications to the airport’s terminal buildings, and the technical, engineering, design and construction issues; ‘‘(ii) the need to ensure that such installations

and modifications are effective; and ‘‘(iii) the feasibility and cost-effectiveness of

deploying explosive detection systems in the baggage

sorting area or other non-public area rather than the

lobby of an airport terminal building.

‘‘(C) RESPONSE.—The Under Secretary shall respond

to the request of an airport under subparagraph (A) within

14 days of receiving the request. A denial of request shall

create no right of appeal or judicial review.

‘‘(D) AIRPORT EFFORT REQUIRED.—Each airport with

respect to which the Under Secretary makes a determination under subparagraph (A) shall—

‘‘(i) cooperate fully with the Transportation Security Administration with respect to screening checked

baggage and changes to accommodate explosive detection systems; and ‘‘(ii) make security projects a priority for the obligation or expenditure of funds made available under

chapter 417 or 471 until explosive detection systems

required to be deployed under paragraph (1) have been

deployed at that airport.

‘‘(3) REPORTS.—Until the Transportation Security Administration has met the requirements of paragraph (1), the Under

Secretary shall submit a classified report every 30 days after

the date of enactment of this Act to the Senate Committee

on Commerce, Science, and Transportation and the House of

Representatives Committee on Transportation and Infrastructure describing the progress made toward meeting such requirements at each airport.’’.

SEC. 426. TRANSPORTATION SECURITY.

(a) TRANSPORTATION SECURITY OVERSIGHT BOARD.— (1) ESTABLISHMENT.—Section 115(a) of title 49, United

States Code, is amended by striking ‘‘Department of Transportation’’ and inserting ‘‘Department of Homeland Security’’.

(2) MEMBERSHIP.—Section 115(b)(1) of title 49, United

States Code, is amended— (A) by striking subparagraph (G);

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2187

(B) by redesignating subparagraphs (A) through (F)

as subparagraphs (B) through (G), respectively; and

(C) by inserting before subparagraph (B) (as so redesignated) the following: ‘‘(A) The Secretary of Homeland Security, or the Secretary’s designee.’’. (3) CHAIRPERSON.—Section 115(b)(2) of title 49, United

States Code, is amended by striking ‘‘Secretary of Transportation’’ and inserting ‘‘Secretary of Homeland Security’’. (b) APPROVAL OF AIP GRANT APPLICATIONS FOR SECURITY

ACTIVITIES.—Section 47106 of title 49, United States Code, is

amended by adding at the end the following: ‘‘(g) CONSULTATION WITH SECRETARY OF HOMELAND SECU- RITY.—The Secretary shall consult with the Secretary of Homeland

Security before approving an application under this subchapter

for an airport development project grant for activities described

in section 47102(3)(B)(ii) only as they relate to security equipment

or section 47102(3)(B)(x) only as they relate to installation of bulk

explosive detection system.’’.

SEC. 427. COORDINATION OF INFORMATION AND INFORMATION TECHNOLOGY.

(a) DEFINITION OF AFFECTED AGENCY.—In this section, the term ‘‘affected agency’’ means— (1) the Department;

(2) the Department of Agriculture;

(3) the Department of Health and Human Services; and

(4) any other department or agency determined to be appropriate by the Secretary.

(b) COORDINATION.—The Secretary, in coordination with the

Secretary of Agriculture, the Secretary of Health and Human Services, and the head of each other department or agency determined

to be appropriate by the Secretary, shall ensure that appropriate

information (as determined by the Secretary) concerning inspections

of articles that are imported or entered into the United States,

and are inspected or regulated by 1 or more affected agencies,

is timely and efficiently exchanged between the affected agencies.

(c) REPORT AND PLAN.—Not later than 18 months after the

date of enactment of this Act, the Secretary, in consultation with

the Secretary of Agriculture, the Secretary of Health and Human

Services, and the head of each other department or agency determined to be appropriate by the Secretary, shall submit to

Congress—

(1) a report on the progress made in implementing this

section; and

(2) a plan to complete implementation of this section.

SEC. 428. VISA ISSUANCE.

(a) DEFINITION.—In this subsection, the term ‘‘consular office’’

has the meaning given that term under section 101(a)(9) of the

Immigration and Nationality Act (8 U.S.C. 1101(a)(9)).

(b) IN GENERAL.—Notwithstanding section 104(a) of the

Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other

provision of law, and except as provided in subsection (c) of this

section, the Secretary—

(1) shall be vested exclusively with all authorities to issue

regulations with respect to, administer, and enforce the provisions of such Act, and of all other immigration and nationality

6 USC 236.

Deadline.

6 USC 235.

116 STAT. 2188 PUBLIC LAW 107–296—NOV. 25, 2002

laws, relating to the functions of consular officers of the United

States in connection with the granting or refusal of visas,

and shall have the authority to refuse visas in accordance

with law and to develop programs of homeland security training

for consular officers (in addition to consular training provided

by the Secretary of State), which authorities shall be exercised

through the Secretary of State, except that the Secretary shall

not have authority to alter or reverse the decision of a consular

officer to refuse a visa to an alien; and

(2) shall have authority to confer or impose upon any

officer or employee of the United States, with the consent

of the head of the executive agency under whose jurisdiction

such officer or employee is serving, any of the functions specified

in paragraph (1).

(c) AUTHORITY OF THE SECRETARY OF STATE.— (1) IN GENERAL.—Notwithstanding subsection (b), the Secretary of State may direct a consular officer to refuse a visa

to an alien if the Secretary of State deems such refusal necessary or advisable in the foreign policy or security interests

of the United States.

(2) CONSTRUCTION REGARDING AUTHORITY.—Nothing in this

section, consistent with the Secretary of Homeland Security’s

authority to refuse visas in accordance with law, shall be construed as affecting the authorities of the Secretary of State

under the following provisions of law:

(A) Section 101(a)(15)(A) of the Immigration and

Nationality Act (8 U.S.C. 1101(a)(15)(A)).

(B) Section 204(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1154) (as it will take effect upon the

entry into force of the Convention on Protection of Children

and Cooperation in Respect to Inter-Country adoption).

(C) Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration

and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)).

(D) Section 212(a)(3)(B)(i)(VI) of the Immigration and

Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)).

(E) Section 212(a)(3)(B)(vi)(II) of the Immigration and

Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).

(F) Section 212(a)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(C)).

(G) Section 212(a)(10)(C) of the Immigration and

Nationality Act (8 U.S.C. 1182(a)(10)(C)).

(H) Section 212(f) of the Immigration and Nationality

Act (8 U.S.C. 1182(f)).

(I) Section 219(a) of the Immigration and Nationality

Act (8 U.S.C. 1189(a)).

(J) Section 237(a)(4)(C) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(C)).

(K) Section 401 of the Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6034; Public

Law 104–114).

(L) Section 613 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1999 (as contained in section 101(b) of division A of Public Law 105–277) (Omnibus Consolidated and

Emergency Supplemental Appropriations Act, 1999); 112

Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended

by section 617 of Public Law 106–553.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2189

(M) Section 103(f) of the Chemical Weapon Convention

Implementation Act of 1998 (112 Stat. 2681–865).

(N) Section 801 of H.R. 3427, the Admiral James W.

Nance and Meg Donovan Foreign Relations Authorization

Act, Fiscal Years 2000 and 2001, as enacted by reference

in Public Law 106–113.

(O) Section 568 of the Foreign Operations, Export

Financing, and Related Programs Appropriations Act, 2002

(Public Law 107–115).

(P) Section 51 of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2723).

(d) CONSULAR OFFICERS AND CHIEFS OF MISSIONS.— (1) IN GENERAL.—Nothing in this section may be construed

to alter or affect— (A) the employment status of consular officers as

employees of the Department of State; or

(B) the authority of a chief of mission under section

207 of the Foreign Service Act of 1980 (22 U.S.C. 3927).

(2) CONSTRUCTION REGARDING DELEGATION OF

AUTHORITY.—Nothing in this section shall be construed to affect

any delegation of authority to the Secretary of State by the

President pursuant to any proclamation issued under section

212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)),

consistent with the Secretary of Homeland Security’s authority

to refuse visas in accordance with law.

(e) ASSIGNMENT OF HOMELAND SECURITY EMPLOYEES TO DIPLOMATIC AND CONSULAR POSTS.—

(1) IN GENERAL.—The Secretary is authorized to assign

employees of the Department to each diplomatic and consular

post at which visas are issued, unless the Secretary determines

that such an assignment at a particular post would not promote

homeland security.

(2) FUNCTIONS.—Employees assigned under paragraph (1)

shall perform the following functions:

(A) Provide expert advice and training to consular officers regarding specific security threats relating to the adjudication of individual visa applications or classes of applications.

(B) Review any such applications, either on the initiative of the employee of the Department or upon request

by a consular officer or other person charged with adjudicating such applications.

(C) Conduct investigations with respect to consular

matters under the jurisdiction of the Secretary.

(3) EVALUATION OF CONSULAR OFFICERS.—The Secretary

of State shall evaluate, in consultation with the Secretary,

as deemed appropriate by the Secretary, the performance of

consular officers with respect to the processing and adjudication

of applications for visas in accordance with performance standards developed by the Secretary for these procedures.

(4) REPORT.—The Secretary shall, on an annual basis,

submit a report to Congress that describes the basis for each

determination under paragraph (1) that the assignment of an

employee of the Department at a particular diplomatic post

would not promote homeland security.

(5) PERMANENT ASSIGNMENT; PARTICIPATION IN TERRORIST

LOOKOUT COMMITTEE.—When appropriate, employees of the

116 STAT. 2190 PUBLIC LAW 107–296—NOV. 25, 2002

Department assigned to perform functions described in paragraph (2) may be assigned permanently to overseas diplomatic

or consular posts with country-specific or regional responsibility. If the Secretary so directs, any such employee, when

present at an overseas post, shall participate in the terrorist

lookout committee established under section 304 of the

Enhanced Border Security and Visa Entry Reform Act of 2002

(8 U.S.C. 1733).

(6) TRAINING AND HIRING.— (A) IN GENERAL.—The Secretary shall ensure, to the

extent possible, that any employees of the Department

assigned to perform functions under paragraph (2) and,

as appropriate, consular officers, shall be provided the necessary training to enable them to carry out such functions,

including training in foreign languages, interview techniques, and fraud detection techniques, in conditions in

the particular country where each employee is assigned,

and in other appropriate areas of study.

(B) USE OF CENTER.—The Secretary is authorized to

use the National Foreign Affairs Training Center, on a

reimbursable basis, to obtain the training described in

subparagraph (A).

(7) REPORT.—Not later than 1 year after the date of enactment of this Act, the Secretary and the Secretary of State

shall submit to Congress—

(A) a report on the implementation of this subsection;

and

(B) any legislative proposals necessary to further the

objectives of this subsection.

(8) EFFECTIVE DATE.—This subsection shall take effect on

the earlier of—

(A) the date on which the President publishes notice

in the Federal Register that the President has submitted

a report to Congress setting forth a memorandum of understanding between the Secretary and the Secretary of State

governing the implementation of this section; or

(B) the date occurring 1 year after the date of enactment of this Act.

(f) NO CREATION OF PRIVATE RIGHT OF ACTION.—Nothing in

this section shall be construed to create or authorize a private

right of action to challenge a decision of a consular officer or

other United States official or employee to grant or deny a visa.

(g) STUDY REGARDING USE OF FOREIGN NATIONALS.—

(1) IN GENERAL.—The Secretary of Homeland Security shall

conduct a study of the role of foreign nationals in the granting

or refusal of visas and other documents authorizing entry of

aliens into the United States. The study shall address the

following:

(A) The proper role, if any, of foreign nationals in

the process of rendering decisions on such grants and

refusals.

(B) Any security concerns involving the employment

of foreign nationals.

(C) Whether there are cost-effective alternatives to the

use of foreign nationals.

(2) REPORT.—Not later than 1 year after the date of the

enactment of this Act, the Secretary shall submit a report

Deadline.

Deadline.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2191

containing the findings of the study conducted under paragraph

(1) to the Committee on the Judiciary, the Committee on International Relations, and the Committee on Government Reform

of the House of Representatives, and the Committee on the

Judiciary, the Committee on Foreign Relations, and the Committee on Government Affairs of the Senate.

(h) REPORT.—Not later than 120 days after the date of the

enactment of this Act, the Director of the Office of Science and

Technology Policy shall submit to Congress a report on how the

provisions of this section will affect procedures for the issuance

of student visas.

(i) VISA ISSUANCE PROGRAM FOR SAUDI ARABIA.—Notwithstanding any other provision of law, after the date of the enactment

of this Act all third party screening programs in Saudi Arabia

shall be terminated. On-site personnel of the Department of Homeland Security shall review all visa applications prior to adjudication.

SEC. 429. INFORMATION ON VISA DENIALS REQUIRED TO BE ENTERED

INTO ELECTRONIC DATA SYSTEM.

(a) IN GENERAL.—Whenever a consular officer of the United

States denies a visa to an applicant, the consular officer shall

enter the fact and the basis of the denial and the name of the

applicant into the interoperable electronic data system implemented

under section 202(a) of the Enhanced Border Security and Visa

Entry Reform Act of 2002 (8 U.S.C. 1722(a)).

(b) PROHIBITION.—In the case of any alien with respect to

whom a visa has been denied under subsection (a)—

(1) no subsequent visa may be issued to the alien unless

the consular officer considering the alien’s visa application has

reviewed the information concerning the alien placed in the

interoperable electronic data system, has indicated on the

alien’s application that the information has been reviewed,

and has stated for the record why the visa is being issued

or a waiver of visa ineligibility recommended in spite of that

information; and

(2) the alien may not be admitted to the United States

without a visa issued in accordance with the procedures

described in paragraph (1).

SEC. 430. OFFICE FOR DOMESTIC PREPAREDNESS.

(a) IN GENERAL.—The Office for Domestic Preparedness shall

be within the Directorate of Border and Transportation Security.

(b) DIRECTOR.—There shall be a Director of the Office for

Domestic Preparedness, who shall be appointed by the President,

by and with the advice and consent of the Senate. The Director

of the Office for Domestic Preparedness shall report directly to

the Under Secretary for Border and Transportation Security.

(c) RESPONSIBILITIES.—The Office for Domestic Preparedness

shall have the primary responsibility within the executive branch

of Government for the preparedness of the United States for acts

of terrorism, including—

(1) coordinating preparedness efforts at the Federal level,

and working with all State, local, tribal, parish, and private

sector emergency response providers on all matters pertaining

to combating terrorism, including training, exercises, and equipment support;

President.

6 USC 238.

6 USC 237.

Deadline.

116 STAT. 2192 PUBLIC LAW 107–296—NOV. 25, 2002

(2) coordinating or, as appropriate, consolidating communications and systems of communications relating to homeland

security at all levels of government;

(3) directing and supervising terrorism preparedness grant

programs of the Federal Government (other than those programs administered by the Department of Health and Human

Services) for all emergency response providers;

(4) incorporating the Strategy priorities into planning guidance on an agency level for the preparedness efforts of the

Office for Domestic Preparedness;

(5) providing agency-specific training for agents and

analysts within the Department, other agencies, and State and

local agencies and international entities;

(6) as the lead executive branch agency for preparedness

of the United States for acts of terrorism, cooperating closely

with the Federal Emergency Management Agency, which shall

have the primary responsibility within the executive branch

to prepare for and mitigate the effects of nonterrorist-related

disasters in the United States;

(7) assisting and supporting the Secretary, in coordination

with other Directorates and entities outside the Department,

in conducting appropriate risk analysis and risk management

activities of State, local, and tribal governments consistent

with the mission and functions of the Directorate; and

(8) those elements of the Office of National Preparedness

of the Federal Emergency Management Agency which relate

to terrorism, which shall be consolidated within the Department

in the Office for Domestic Preparedness established under this

section.

(d) FISCAL YEARS 2003 and 2004.—During fiscal year 2003

and fiscal year 2004, the Director of the Office for Domestic

Preparedness established under this section shall manage and carry

out those functions of the Office for Domestic Preparedness of

the Department of Justice (transferred under this section) before

September 11, 2001, under the same terms, conditions, policies,

and authorities, and with the required level of personnel, assets,

and budget before September 11, 2001.

Subtitle D—Immigration Enforcement

Functions

SEC. 441. TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR

BORDER AND TRANSPORTATION SECURITY.

In accordance with title XV (relating to transition provisions),

there shall be transferred from the Commissioner of Immigration

and Naturalization to the Under Secretary for Border and Transportation Security all functions performed under the following programs, and all personnel, assets, and liabilities pertaining to such

programs, immediately before such transfer occurs:

(1) The Border Patrol program.

(2) The detention and removal program.

(3) The intelligence program.

(4) The investigations program.

(5) The inspections program.

6 USC 251.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2193

SEC. 442. ESTABLISHMENT OF BUREAU OF BORDER SECURITY.

(a) ESTABLISHMENT OF BUREAU.—

(1) IN GENERAL.—There shall be in the Department of

Homeland Security a bureau to be known as the ‘‘Bureau

of Border Security’’.

(2) ASSISTANT SECRETARY.—The head of the Bureau of

Border Security shall be the Assistant Secretary of the Bureau

of Border Security, who—

(A) shall report directly to the Under Secretary for

Border and Transportation Security; and

(B) shall have a minimum of 5 years professional

experience in law enforcement, and a minimum of 5 years

of management experience.

(3) FUNCTIONS.—The Assistant Secretary of the Bureau

of Border Security—

(A) shall establish the policies for performing such

functions as are—

(i) transferred to the Under Secretary for Border

and Transportation Security by section 441 and delegated to the Assistant Secretary by the Under Secretary for Border and Transportation Security; or

(ii) otherwise vested in the Assistant Secretary

by law;

(B) shall oversee the administration of such policies;

and

(C) shall advise the Under Secretary for Border and

Transportation Security with respect to any policy or operation of the Bureau of Border Security that may affect

the Bureau of Citizenship and Immigration Services established under subtitle E, including potentially conflicting

policies or operations.

(4) PROGRAM TO COLLECT INFORMATION RELATING TO FOREIGN STUDENTS.—The Assistant Secretary of the Bureau of

Border Security shall be responsible for administering the program to collect information relating to nonimmigrant foreign

students and other exchange program participants described

in section 641 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (8 U.S.C. 1372), including the Student and Exchange Visitor Information System established

under that section, and shall use such information to carry

out the enforcement functions of the Bureau.

(5) MANAGERIAL ROTATION PROGRAM.—

(A) IN GENERAL.—Not later than 1 year after the date

on which the transfer of functions specified under section

441 takes effect, the Assistant Secretary of the Bureau

of Border Security shall design and implement a managerial rotation program under which employees of such

bureau holding positions involving supervisory or managerial responsibility and classified, in accordance with chapter

51 of title 5, United States Code, as a GS–14 or above,

shall—

(i) gain some experience in all the major functions

performed by such bureau; and

(ii) work in at least one local office of such bureau.

(B) REPORT.—Not later than 2 years after the date

on which the transfer of functions specified under section

Deadline.

Deadline.

6 USC 252.

116 STAT. 2194 PUBLIC LAW 107–296—NOV. 25, 2002

441 takes effect, the Secretary shall submit a report to

the Congress on the implementation of such program.

(b) CHIEF OF POLICY AND STRATEGY.— (1) IN GENERAL.—There shall be a position of Chief of

Policy and Strategy for the Bureau of Border Security.

(2) FUNCTIONS.—In consultation with Bureau of Border

Security personnel in local offices, the Chief of Policy and

Strategy shall be responsible for— (A) making policy recommendations and performing

policy research and analysis on immigration enforcement

issues; and

(B) coordinating immigration policy issues with the

Chief of Policy and Strategy for the Bureau of Citizenship

and Immigration Services (established under subtitle E),

as appropriate.

(c) LEGAL ADVISOR.—There shall be a principal legal advisor

to the Assistant Secretary of the Bureau of Border Security. The

legal advisor shall provide specialized legal advice to the Assistant

Secretary of the Bureau of Border Security and shall represent

the bureau in all exclusion, deportation, and removal proceedings

before the Executive Office for Immigration Review.

SEC. 443. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.

The Under Secretary for Border and Transportation Security

shall be responsible for—

(1) conducting investigations of noncriminal allegations of

misconduct, corruption, and fraud involving any employee of

the Bureau of Border Security that are not subject to investigation by the Inspector General for the Department;

(2) inspecting the operations of the Bureau of Border Security and providing assessments of the quality of the operations

of such bureau as a whole and each of its components; and

(3) providing an analysis of the management of the Bureau

of Border Security.

SEC. 444. EMPLOYEE DISCIPLINE.

The Under Secretary for Border and Transportation Security

may, notwithstanding any other provision of law, impose disciplinary action, including termination of employment, pursuant to policies and procedures applicable to employees of the Federal Bureau

of Investigation, on any employee of the Bureau of Border Security

who willfully deceives the Congress or agency leadership on any

matter.

SEC. 445. REPORT ON IMPROVING ENFORCEMENT FUNCTIONS.

(a) IN GENERAL.—The Secretary, not later than 1 year after

being sworn into office, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and

of the Senate a report with a plan detailing how the Bureau

of Border Security, after the transfer of functions specified under

section 441 takes effect, will enforce comprehensively, effectively,

and fairly all the enforcement provisions of the Immigration and

Nationality Act (8 U.S.C. 1101 et seq.) relating to such functions.

(b) CONSULTATION.—In carrying out subsection (a), the Secretary of Homeland Security shall consult with the Attorney General, the Secretary of State, the Director of the Federal Bureau

of Investigation, the Secretary of the Treasury, the Secretary of

Labor, the Commissioner of Social Security, the Director of the

Deadline.

6 USC 255.

6 USC 254.

6 USC 253.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2195

Executive Office for Immigration Review, and the heads of State

and local law enforcement agencies to determine how to most effectively conduct enforcement operations.

SEC. 446. SENSE OF CONGRESS REGARDING CONSTRUCTION OF

FENCING NEAR SAN DIEGO, CALIFORNIA.

It is the sense of the Congress that completing the 14-mile

border fence project required to be carried out under section 102(b)

of the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (8 U.S.C. 1103 note) should be a priority for the

Secretary.

Subtitle E—Citizenship and Immigration

Services

SEC. 451. ESTABLISHMENT OF BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES.

(a) ESTABLISHMENT OF BUREAU.—

(1) IN GENERAL.—There shall be in the Department a

bureau to be known as the ‘‘Bureau of Citizenship and Immigration Services’’.

(2) DIRECTOR.—The head of the Bureau of Citizenship and

Immigration Services shall be the Director of the Bureau of

Citizenship and Immigration Services, who—

(A) shall report directly to the Deputy Secretary;

(B) shall have a minimum of 5 years of management

experience; and

(C) shall be paid at the same level as the Assistant

Secretary of the Bureau of Border Security.

(3) FUNCTIONS.—The Director of the Bureau of Citizenship

and Immigration Services—

(A) shall establish the policies for performing such

functions as are transferred to the Director by this section

or this Act or otherwise vested in the Director by law;

(B) shall oversee the administration of such policies;

(C) shall advise the Deputy Secretary with respect

to any policy or operation of the Bureau of Citizenship

and Immigration Services that may affect the Bureau of

Border Security of the Department, including potentially

conflicting policies or operations;

(D) shall establish national immigration services policies and priorities;

(E) shall meet regularly with the Ombudsman

described in section 452 to correct serious service problems

identified by the Ombudsman; and

(F) shall establish procedures requiring a formal

response to any recommendations submitted in the

Ombudsman’s annual report to Congress within 3 months

after its submission to Congress.

(4) MANAGERIAL ROTATION PROGRAM.—

(A) IN GENERAL.—Not later than 1 year after the effective date specified in section 455, the Director of the Bureau

of Citizenship and Immigration Services shall design and

implement a managerial rotation program under which

Deadline.

6 USC 271.

6 USC 256.

116 STAT. 2196 PUBLIC LAW 107–296—NOV. 25, 2002

employees of such bureau holding positions involving supervisory or managerial responsibility and classified, in accordance with chapter 51 of title 5, United States Code, as

a GS–14 or above, shall—

(i) gain some experience in all the major functions

performed by such bureau; and

(ii) work in at least one field office and one service

center of such bureau.

(B) REPORT.—Not later than 2 years after the effective

date specified in section 455, the Secretary shall submit

a report to Congress on the implementation of such program.

(5) PILOT INITIATIVES FOR BACKLOG ELIMINATION.—The

Director of the Bureau of Citizenship and Immigration Services

is authorized to implement innovative pilot initiatives to eliminate any remaining backlog in the processing of immigration

benefit applications, and to prevent any backlog in the processing of such applications from recurring, in accordance with

section 204(a) of the Immigration Services and Infrastructure

Improvements Act of 2000 (8 U.S.C. 1573(a)). Such initiatives

may include measures such as increasing personnel, transferring personnel to focus on areas with the largest potential

for backlog, and streamlining paperwork.

(b) TRANSFER OF FUNCTIONS FROM COMMISSIONER.—In accordance with title XV (relating to transition provisions), there are

transferred from the Commissioner of Immigration and Naturalization to the Director of the Bureau of Citizenship and Immigration

Services the following functions, and all personnel, infrastructure,

and funding provided to the Commissioner in support of such functions immediately before the effective date specified in section 455:

(1) Adjudications of immigrant visa petitions.

(2) Adjudications of naturalization petitions.

(3) Adjudications of asylum and refugee applications.

(4) Adjudications performed at service centers.

(5) All other adjudications performed by the Immigration

and Naturalization Service immediately before the effective

date specified in section 455.

(c) CHIEF OF POLICY AND STRATEGY.—

(1) IN GENERAL.—There shall be a position of Chief of

Policy and Strategy for the Bureau of Citizenship and Immigration Services.

(2) FUNCTIONS.—In consultation with Bureau of Citizenship

and Immigration Services personnel in field offices, the Chief

of Policy and Strategy shall be responsible for—

(A) making policy recommendations and performing

policy research and analysis on immigration services issues;

and

(B) coordinating immigration policy issues with the

Chief of Policy and Strategy for the Bureau of Border

Security of the Department.

(d) LEGAL ADVISOR.—

(1) IN GENERAL.—There shall be a principal legal advisor

to the Director of the Bureau of Citizenship and Immigration

Services.

(2) FUNCTIONS.—The legal advisor shall be responsible

for—

Deadline.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2197

(A) providing specialized legal advice, opinions, determinations, regulations, and any other assistance to the

Director of the Bureau of Citizenship and Immigration

Services with respect to legal matters affecting the Bureau

of Citizenship and Immigration Services; and

(B) representing the Bureau of Citizenship and

Immigration Services in visa petition appeal proceedings

before the Executive Office for Immigration Review.

(e) BUDGET OFFICER.— (1) IN GENERAL.—There shall be a Budget Officer for the

Bureau of Citizenship and Immigration Services.

(2) FUNCTIONS.— (A) IN GENERAL.—The Budget Officer shall be responsible for—

(i) formulating and executing the budget of the

Bureau of Citizenship and Immigration Services;

(ii) financial management of the Bureau of Citizenship and Immigration Services; and

(iii) collecting all payments, fines, and other debts

for the Bureau of Citizenship and Immigration Services.

(f) CHIEF OF OFFICE OF CITIZENSHIP.—

(1) IN GENERAL.—There shall be a position of Chief of

the Office of Citizenship for the Bureau of Citizenship and

Immigration Services.

(2) FUNCTIONS.—The Chief of the Office of Citizenship for

the Bureau of Citizenship and Immigration Services shall be

responsible for promoting instruction and training on citizenship responsibilities for aliens interested in becoming naturalized citizens of the United States, including the development

of educational materials.

SEC. 452. CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN.

(a) IN GENERAL.—Within the Department, there shall be a

position of Citizenship and Immigration Services Ombudsman (in

this section referred to as the ‘‘Ombudsman’’). The Ombudsman

shall report directly to the Deputy Secretary. The Ombudsman

shall have a background in customer service as well as immigration

law.

(b) FUNCTIONS.—It shall be the function of the Ombudsman—

(1) to assist individuals and employers in resolving problems with the Bureau of Citizenship and Immigration Services;

(2) to identify areas in which individuals and employers

have problems in dealing with the Bureau of Citizenship and

Immigration Services; and

(3) to the extent possible, to propose changes in the

administrative practices of the Bureau of Citizenship and

Immigration Services to mitigate problems identified under

paragraph (2).

(c) ANNUAL REPORTS.—

(1) OBJECTIVES.—Not later than June 30 of each calendar

year, the Ombudsman shall report to the Committee on the

Judiciary of the House of Representatives and the Senate on

the objectives of the Office of the Ombudsman for the fiscal

year beginning in such calendar year. Any such report shall

contain full and substantive analysis, in addition to statistical

information, and—

Deadline.

6 USC 272.

116 STAT. 2198 PUBLIC LAW 107–296—NOV. 25, 2002

(A) shall identify the recommendations the Office of

the Ombudsman has made on improving services and

responsiveness of the Bureau of Citizenship and Immigration Services;

(B) shall contain a summary of the most pervasive

and serious problems encountered by individuals and

employers, including a description of the nature of such

problems;

(C) shall contain an inventory of the items described

in subparagraphs (A) and (B) for which action has been

taken and the result of such action;

(D) shall contain an inventory of the items described

in subparagraphs (A) and (B) for which action remains

to be completed and the period during which each item

has remained on such inventory;

(E) shall contain an inventory of the items described

in subparagraphs (A) and (B) for which no action has

been taken, the period during which each item has

remained on such inventory, the reasons for the inaction,

and shall identify any official of the Bureau of Citizenship

and Immigration Services who is responsible for such inaction;

(F) shall contain recommendations for such administrative action as may be appropriate to resolve problems

encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and

processing of immigration benefit petitions and applications; and

(G) shall include such other information as the

Ombudsman may deem advisable.

(2) REPORT TO BE SUBMITTED DIRECTLY.—Each report

required under this subsection shall be provided directly to

the committees described in paragraph (1) without any prior

comment or amendment from the Secretary, Deputy Secretary,

Director of the Bureau of Citizenship and Immigration Services,

or any other officer or employee of the Department or the

Office of Management and Budget.

(d) OTHER RESPONSIBILITIES.—The Ombudsman—

(1) shall monitor the coverage and geographic allocation

of local offices of the Ombudsman;

(2) shall develop guidance to be distributed to all officers

and employees of the Bureau of Citizenship and Immigration

Services outlining the criteria for referral of inquiries to local

offices of the Ombudsman;

(3) shall ensure that the local telephone number for each

local office of the Ombudsman is published and available to

individuals and employers served by the office; and

(4) shall meet regularly with the Director of the Bureau

of Citizenship and Immigration Services to identify serious

service problems and to present recommendations for such

administrative action as may be appropriate to resolve problems

encountered by individuals and employers.

(e) PERSONNEL ACTIONS.—

(1) IN GENERAL.—The Ombudsman shall have the responsibility and authority—

(A) to appoint local ombudsmen and make available

at least 1 such ombudsman for each State; and

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2199

(B) to evaluate and take personnel actions (including

dismissal) with respect to any employee of any local office

of the Ombudsman.

(2) CONSULTATION.—The Ombudsman may consult with

the appropriate supervisory personnel of the Bureau of Citizenship and Immigration Services in carrying out the Ombudsman’s responsibilities under this subsection.

(f) RESPONSIBILITIES OF BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES.—The Director of the Bureau of Citizenship and

Immigration Services shall establish procedures requiring a formal

response to all recommendations submitted to such director by

the Ombudsman within 3 months after submission to such director.

(g) OPERATION OF LOCAL OFFICES.—

(1) IN GENERAL.—Each local ombudsman—

(A) shall report to the Ombudsman or the delegate

thereof;

(B) may consult with the appropriate supervisory personnel of the Bureau of Citizenship and Immigration Services regarding the daily operation of the local office of

such ombudsman;

(C) shall, at the initial meeting with any individual

or employer seeking the assistance of such local office,

notify such individual or employer that the local offices

of the Ombudsman operate independently of any other

component of the Department and report directly to Congress through the Ombudsman; and

(D) at the local ombudsman’s discretion, may determine

not to disclose to the Bureau of Citizenship and Immigration Services contact with, or information provided by, such

individual or employer.

(2) MAINTENANCE OF INDEPENDENT COMMUNICATIONS.—

Each local office of the Ombudsman shall maintain a phone,

facsimile, and other means of electronic communication access,

and a post office address, that is separate from those maintained by the Bureau of Citizenship and Immigration Services,

or any component of the Bureau of Citizenship and Immigration

Services.

SEC. 453. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.

(a) IN GENERAL.—The Director of the Bureau of Citizenship

and Immigration Services shall be responsible for—

(1) conducting investigations of noncriminal allegations of

misconduct, corruption, and fraud involving any employee of

the Bureau of Citizenship and Immigration Services that are

not subject to investigation by the Inspector General for the

Department;

(2) inspecting the operations of the Bureau of Citizenship

and Immigration Services and providing assessments of the

quality of the operations of such bureau as a whole and each

of its components; and

(3) providing an analysis of the management of the Bureau

of Citizenship and Immigration Services.

(b) SPECIAL CONSIDERATIONS.—In providing assessments in

accordance with subsection (a)(2) with respect to a decision of

the Bureau of Citizenship and Immigration Services, or any of

its components, consideration shall be given to—

6 USC 273.

116 STAT. 2200 PUBLIC LAW 107–296—NOV. 25, 2002

(1) the accuracy of the findings of fact and conclusions

of law used in rendering the decision;

(2) any fraud or misrepresentation associated with the

decision; and

(3) the efficiency with which the decision was rendered.

SEC. 454. EMPLOYEE DISCIPLINE.

The Director of the Bureau of Citizenship and Immigration

Services may, notwithstanding any other provision of law, impose

disciplinary action, including termination of employment, pursuant

to policies and procedures applicable to employees of the Federal

Bureau of Investigation, on any employee of the Bureau of Citizenship and Immigration Services who willfully deceives Congress

or agency leadership on any matter.

SEC. 455. EFFECTIVE DATE.

Notwithstanding section 4, sections 451 through 456, and the

amendments made by such sections, shall take effect on the date

on which the transfer of functions specified under section 441

takes effect.

SEC. 456. TRANSITION.

(a) REFERENCES.—With respect to any function transferred by

this subtitle to, and exercised on or after the effective date specified

in section 455 by, the Director of the Bureau of Citizenship and

Immigration Services, any reference in any other Federal law,

Executive order, rule, regulation, or delegation of authority, or

any document of or pertaining to a component of government from

which such function is transferred—

(1) to the head of such component is deemed to refer

to the Director of the Bureau of Citizenship and Immigration

Services; or

(2) to such component is deemed to refer to the Bureau

of Citizenship and Immigration Services.

(b) OTHER TRANSITION ISSUES.—

(1) EXERCISE OF AUTHORITIES.—Except as otherwise provided by law, a Federal official to whom a function is transferred by this subtitle may, for purposes of performing the

function, exercise all authorities under any other provision

of law that were available with respect to the performance

of that function to the official responsible for the performance

of the function immediately before the effective date specified

in section 455.

(2) TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL.—The personnel of the Department of Justice employed

in connection with the functions transferred by this subtitle

(and functions that the Secretary determines are properly

related to the functions of the Bureau of Citizenship and

Immigration Services), and the assets, liabilities, contracts,

property, records, and unexpended balance of appropriations,

authorizations, allocations, and other funds employed, held,

used, arising from, available to, or to be made available to,

the Immigration and Naturalization Service in connection with

the functions transferred by this subtitle, subject to section

202 of the Budget and Accounting Procedures Act of 1950,

shall be transferred to the Director of the Bureau of Citizenship

and Immigration Services for allocation to the appropriate

component of the Department. Unexpended funds transferred

6 USC 275.

6 USC 271 note.

6 USC 274.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2201

pursuant to this paragraph shall be used only for the purposes

for which the funds were originally authorized and appropriated. The Secretary shall have the right to adjust or realign

transfers of funds and personnel effected pursuant to this subtitle for a period of 2 years after the effective date specified

in section 455.

SEC. 457. FUNDING FOR CITIZENSHIP AND IMMIGRATION SERVICES.

Section 286(m) of the Immigration and Nationality Act (8 U.S.C.

1356(m)) is amended by striking ‘‘services, including the costs of

similar services provided without charge to asylum applicants or

other immigrants.’’ and inserting ‘‘services.’’.

SEC. 458. BACKLOG ELIMINATION.

Section 204(a)(1) of the Immigration Services and Infrastructure Improvements Act of 2000 (8 U.S.C. 1573(a)(1)) is amended

by striking ‘‘not later than one year after the date of enactment

of this Act;’’ and inserting ‘‘1 year after the date of the enactment

of the Homeland Security Act of 2002;’’.

SEC. 459. REPORT ON IMPROVING IMMIGRATION SERVICES.

(a) IN GENERAL.—The Secretary, not later than 1 year after

the effective date of this Act, shall submit to the Committees

on the Judiciary and Appropriations of the House of Representatives

and of the Senate a report with a plan detailing how the Bureau

of Citizenship and Immigration Services, after the transfer of functions specified in this subtitle takes effect, will complete efficiently,

fairly, and within a reasonable time, the adjudications described

in paragraphs (1) through (5) of section 451(b).

(b) CONTENTS.—For each type of adjudication to be undertaken

by the Director of the Bureau of Citizenship and Immigration

Services, the report shall include the following:

(1) Any potential savings of resources that may be implemented without affecting the quality of the adjudication.

(2) The goal for processing time with respect to the application.

(3) Any statutory modifications with respect to the adjudication that the Secretary considers advisable.

(c) CONSULTATION.—In carrying out subsection (a), the Secretary shall consult with the Secretary of State, the Secretary

of Labor, the Assistant Secretary of the Bureau of Border Security

of the Department, and the Director of the Executive Office for

Immigration Review to determine how to streamline and improve

the process for applying for and making adjudications described

in section 451(b) and related processes.

SEC. 460. REPORT ON RESPONDING TO FLUCTUATING NEEDS.

Not later than 30 days after the date of the enactment of

this Act, the Attorney General shall submit to Congress a report

on changes in law, including changes in authorizations of appropriations and in appropriations, that are needed to permit the Immigration and Naturalization Service, and, after the transfer of functions

specified in this subtitle takes effect, the Bureau of Citizenship

and Immigration Services of the Department, to ensure a prompt

and timely response to emergent, unforeseen, or impending changes

in the number of applications for immigration benefits, and otherwise to ensure the accommodation of changing immigration service

needs.

Deadline.

6 USC 277.

Deadline.

6 USC 276.

116 STAT. 2202 PUBLIC LAW 107–296—NOV. 25, 2002

SEC. 461. APPLICATION OF INTERNET-BASED TECHNOLOGIES.

(a) ESTABLISHMENT OF TRACKING SYSTEM.—The Secretary, not

later than 1 year after the effective date of this Act, in consultation

with the Technology Advisory Committee established under subsection (c), shall establish an Internet-based system, that will permit

a person, employer, immigrant, or nonimmigrant who has filings

with the Secretary for any benefit under the Immigration and

Nationality Act (8 U.S.C. 1101 et seq.), access to online information

about the processing status of the filing involved.

(b) FEASIBILITY STUDY FOR ONLINE FILING AND IMPROVED PROCESSING.—

(1) ONLINE FILING.—The Secretary, in consultation with

the Technology Advisory Committee established under subsection (c), shall conduct a feasibility study on the online filing

of the filings described in subsection (a). The study shall include

a review of computerization and technology of the Immigration

and Naturalization Service relating to the immigration services

and processing of filings related to immigrant services. The

study shall also include an estimate of the timeframe and

cost and shall consider other factors in implementing such

a filing system, including the feasibility of fee payment online.

(2) REPORT.—A report on the study under this subsection

shall be submitted to the Committees on the Judiciary of the

House of Representatives and the Senate not later than 1

year after the effective date of this Act.

(c) TECHNOLOGY ADVISORY COMMITTEE.—

(1) ESTABLISHMENT.—The Secretary shall establish, not

later than 60 days after the effective date of this Act, an

advisory committee (in this section referred to as the ‘‘Technology Advisory Committee’’) to assist the Secretary in—

(A) establishing the tracking system under subsection

(a); and

(B) conducting the study under subsection (b).

The Technology Advisory Committee shall be established after

consultation with the Committees on the Judiciary of the House

of Representatives and the Senate.

(2) COMPOSITION.—The Technology Advisory Committee

shall be composed of representatives from high technology

companies capable of establishing and implementing the system

in an expeditious manner, and representatives of persons who

may use the tracking system described in subsection (a) and

the online filing system described in subsection (b)(1).

SEC. 462. CHILDREN’S AFFAIRS.

(a) TRANSFER OF FUNCTIONS.—There are transferred to the

Director of the Office of Refugee Resettlement of the Department

of Health and Human Services functions under the immigration

laws of the United States with respect to the care of unaccompanied

alien children that were vested by statute in, or performed by,

the Commissioner of Immigration and Naturalization (or any officer,

employee, or component of the Immigration and Naturalization

Service) immediately before the effective date specified in subsection

(d).

(b) FUNCTIONS.—

(1) IN GENERAL.—Pursuant to the transfer made by subsection (a), the Director of the Office of Refugee Resettlement

shall be responsible for—

6 USC 279.

Deadline.

Deadline.

Deadline.

6 USC 278.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2203

(A) coordinating and implementing the care and placement of unaccompanied alien children who are in Federal

custody by reason of their immigration status, including

developing a plan to be submitted to Congress on how

to ensure that qualified and independent legal counsel

is timely appointed to represent the interests of each such

child, consistent with the law regarding appointment of

counsel that is in effect on the date of the enactment

of this Act;

(B) ensuring that the interests of the child are considered in decisions and actions relating to the care and

custody of an unaccompanied alien child;

(C) making placement determinations for all unaccompanied alien children who are in Federal custody by reason

of their immigration status;

(D) implementing the placement determinations;

(E) implementing policies with respect to the care and

placement of unaccompanied alien children;

(F) identifying a sufficient number of qualified individuals, entities, and facilities to house unaccompanied alien

children;

(G) overseeing the infrastructure and personnel of

facilities in which unaccompanied alien children reside;

(H) reuniting unaccompanied alien children with a

parent abroad in appropriate cases;

(I) compiling, updating, and publishing at least

annually a state-by-state list of professionals or other entities qualified to provide guardian and attorney representation services for unaccompanied alien children;

(J) maintaining statistical information and other data

on unaccompanied alien children for whose care and placement the Director is responsible, which shall include—

(i) biographical information, such as a child’s

name, gender, date of birth, country of birth, and

country of habitual residence;

(ii) the date on which the child came into Federal

custody by reason of his or her immigration status;

(iii) information relating to the child’s placement,

removal, or release from each facility in which the

child has resided;

(iv) in any case in which the child is placed in

detention or released, an explanation relating to the

detention or release; and

(v) the disposition of any actions in which the

child is the subject;

(K) collecting and compiling statistical information

from the Department of Justice, the Department of Homeland Security, and the Department of State on each department’s actions relating to unaccompanied alien children;

and

(L) conducting investigations and inspections of facilities and other entities in which unaccompanied alien children reside.

(2) COORDINATION WITH OTHER ENTITIES; NO RELEASE ON

OWN RECOGNIZANCE.—In making determinations described in

paragraph (1)(C), the Director of the Office of Refugee

Resettlement—

116 STAT. 2204 PUBLIC LAW 107–296—NOV. 25, 2002

(A) shall consult with appropriate juvenile justice

professionals, the Director of the Bureau of Citizenship

and Immigration Services, and the Assistant Secretary of

the Bureau of Border Security to ensure that such determinations ensure that unaccompanied alien children

described in such subparagraph—

(i) are likely to appear for all hearings or proceedings in which they are involved;

(ii) are protected from smugglers, traffickers, or

others who might seek to victimize or otherwise engage

them in criminal, harmful, or exploitive activity; and

(iii) are placed in a setting in which they are

not likely to pose a danger to themselves or others;

and

(B) shall not release such children upon their own

recognizance.

(3) DUTIES WITH RESPECT TO FOSTER CARE.—In carrying

out the duties described in paragraph (1)(G), the Director of

the Office of Refugee Resettlement is encouraged to use the

refugee children foster care system established pursuant to

section 412(d) of the Immigration and Nationality Act (8 U.S.C.

1522(d)) for the placement of unaccompanied alien children.

(c) RULE OF CONSTRUCTION.—Nothing in this section may be

construed to transfer the responsibility for adjudicating benefit

determinations under the Immigration and Nationality Act (8

U.S.C. 1101 et seq.) from the authority of any official of the Department of Justice, the Department of Homeland Security, or the

Department of State.

(d) EFFECTIVE DATE.—Notwithstanding section 4, this section

shall take effect on the date on which the transfer of functions

specified under section 441 takes effect.

(e) REFERENCES.—With respect to any function transferred by

this section, any reference in any other Federal law, Executive

order, rule, regulation, or delegation of authority, or any document

of or pertaining to a component of government from which such

function is transferred—

(1) to the head of such component is deemed to refer

to the Director of the Office of Refugee Resettlement; or

(2) to such component is deemed to refer to the Office

of Refugee Resettlement of the Department of Health and

Human Services.

(f) OTHER TRANSITION ISSUES.—

(1) EXERCISE OF AUTHORITIES.—Except as otherwise provided by law, a Federal official to whom a function is transferred by this section may, for purposes of performing the

function, exercise all authorities under any other provision

of law that were available with respect to the performance

of that function to the official responsible for the performance

of the function immediately before the effective date specified

in subsection (d).

(2) SAVINGS PROVISIONS.—Subsections (a), (b), and (c) of

section 1512 shall apply to a transfer of functions under this

section in the same manner as such provisions apply to a

transfer of functions under this Act to the Department of Homeland Security.

(3) TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PER- SONNEL.—The personnel of the Department of Justice employed

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2205

in connection with the functions transferred by this section,

and the assets, liabilities, contracts, property, records, and

unexpended balance of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available to, or to be made available to, the Immigration and Naturalization Service in connection with the functions transferred

by this section, subject to section 202 of the Budget and

Accounting Procedures Act of 1950, shall be transferred to

the Director of the Office of Refugee Resettlement for allocation

to the appropriate component of the Department of Health

and Human Services. Unexpended funds transferred pursuant

to this paragraph shall be used only for the purposes for which

the funds were originally authorized and appropriated.

(g) DEFINITIONS.—As used in this section— (1) the term ‘‘placement’’ means the placement of an

unaccompanied alien child in either a detention facility or an

alternative to such a facility; and

(2) the term ‘‘unaccompanied alien child’’ means a child

who—

(A) has no lawful immigration status in the United

States;

(B) has not attained 18 years of age; and

(C) with respect to whom—

(i) there is no parent or legal guardian in the

United States; or

(ii) no parent or legal guardian in the United

States is available to provide care and physical custody.

Subtitle F—General Immigration

Provisions

SEC. 471. ABOLISHMENT OF INS.

(a) IN GENERAL.—Upon completion of all transfers from the

Immigration and Naturalization Service as provided for by this

Act, the Immigration and Naturalization Service of the Department

of Justice is abolished.

(b) PROHIBITION.—The authority provided by section 1502 may

be used to reorganize functions or organizational units within the

Bureau of Border Security or the Bureau of Citizenship and

Immigration Services, but may not be used to recombine the two

bureaus into a single agency or otherwise to combine, join, or

consolidate functions or organizational units of the two bureaus

with each other.

SEC. 472. VOLUNTARY SEPARATION INCENTIVE PAYMENTS.

(a) DEFINITIONS.—For purposes of this section—

(1) the term ‘‘employee’’ means an employee (as defined

by section 2105 of title 5, United States Code) who—

(A) has completed at least 3 years of current continuous

service with 1 or more covered entities; and

(B) is serving under an appointment without time

limitation,

but does not include any person under subparagraphs (A)–

(G) of section 663(a)(2) of Public Law 104–208 (5 U.S.C. 5597

note);

(2) the term ‘‘covered entity’’ means—

6 USC 292.

6 USC 291.

116 STAT. 2206 PUBLIC LAW 107–296—NOV. 25, 2002

(A) the Immigration and Naturalization Service;

(B) the Bureau of Border Security of the Department

of Homeland Security; and

(C) the Bureau of Citizenship and Immigration Services of the Department of Homeland Security; and

(3) the term ‘‘transfer date’’ means the date on which

the transfer of functions specified under section 441 takes effect.

(b) STRATEGIC RESTRUCTURING PLAN.—Before the Attorney

General or the Secretary obligates any resources for voluntary

separation incentive payments under this section, such official shall

submit to the appropriate committees of Congress a strategic

restructuring plan, which shall include—

(1) an organizational chart depicting the covered entities

after their restructuring pursuant to this Act;

(2) a summary description of how the authority under

this section will be used to help carry out that restructuring;

and

(3) the information specified in section 663(b)(2) of Public

Law 104–208 (5 U.S.C. 5597 note).

As used in the preceding sentence, the ‘‘appropriate committees

of Congress’’ are the Committees on Appropriations, Government

Reform, and the Judiciary of the House of Representatives, and

the Committees on Appropriations, Governmental Affairs, and the

Judiciary of the Senate.

(c) AUTHORITY.—The Attorney General and the Secretary may,

to the extent necessary to help carry out their respective strategic

restructuring plan described in subsection (b), make voluntary separation incentive payments to employees. Any such payment—

(1) shall be paid to the employee, in a lump sum, after

the employee has separated from service;

(2) shall be paid from appropriations or funds available

for the payment of basic pay of the employee;

(3) shall be equal to the lesser of—

(A) the amount the employee would be entitled to

receive under section 5595(c) of title 5, United States Code;

or

(B) an amount not to exceed $25,000, as determined

by the Attorney General or the Secretary;

(4) may not be made except in the case of any qualifying

employee who voluntarily separates (whether by retirement

or resignation) before the end of—

(A) the 3-month period beginning on the date on which

such payment is offered or made available to such

employee; or

(B) the 3-year period beginning on the date of the

enactment of this Act,

whichever occurs first;

(5) shall not be a basis for payment, and shall not be

included in the computation, of any other type of Government

benefit; and

(6) shall not be taken into account in determining the

amount of any severance pay to which the employee may be

entitled under section 5595 of title 5, United States Code,

based on any other separation.

(d) ADDITIONAL AGENCY CONTRIBUTIONS TO THE RETIREMENT

FUND.—

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2207

(1) IN GENERAL.—In addition to any payments which it

is otherwise required to make, the Department of Justice and

the Department of Homeland Security shall, for each fiscal

year with respect to which it makes any voluntary separation

incentive payments under this section, remit to the Office of

Personnel Management for deposit in the Treasury of the

United States to the credit of the Civil Service Retirement

and Disability Fund the amount required under paragraph

(2).

(2) AMOUNT REQUIRED.—The amount required under this

paragraph shall, for any fiscal year, be the amount under

subparagraph (A) or (B), whichever is greater.

(A) FIRST METHOD.—The amount under this subparagraph shall, for any fiscal year, be equal to the minimum

amount necessary to offset the additional costs to the retirement systems under title 5, United States Code (payable

out of the Civil Service Retirement and Disability Fund)

resulting from the voluntary separation of the employees

described in paragraph (3), as determined under regulations of the Office of Personnel Management.

(B) SECOND METHOD.—The amount under this subparagraph shall, for any fiscal year, be equal to 45 percent

of the sum total of the final basic pay of the employees

described in paragraph (3).

(3) COMPUTATIONS TO BE BASED ON SEPARATIONS OCCURRING

IN THE FISCAL YEAR INVOLVED.—The employees described in

this paragraph are those employees who receive a voluntary

separation incentive payment under this section based on their

separating from service during the fiscal year with respect

to which the payment under this subsection relates.

(4) FINAL BASIC PAY DEFINED.—In this subsection, the term

‘‘final basic pay’’ means, with respect to an employee, the total

amount of basic pay which would be payable for a year of

service by such employee, computed using the employee’s final

rate of basic pay, and, if last serving on other than a fulltime basis, with appropriate adjustment therefor.

(e) EFFECT OF SUBSEQUENT EMPLOYMENT WITH THE GOVERNMENT.—An individual who receives a voluntary separation incentive

payment under this section and who, within 5 years after the

date of the separation on which the payment is based, accepts

any compensated employment with the Government or works for

any agency of the Government through a personal services contract,

shall be required to pay, prior to the individual’s first day of

employment, the entire amount of the incentive payment. Such

payment shall be made to the covered entity from which the individual separated or, if made on or after the transfer date, to

the Deputy Secretary or the Under Secretary for Border and

Transportation Security (for transfer to the appropriate component

of the Department of Homeland Security, if necessary).

(f) EFFECT ON EMPLOYMENT LEVELS.—

(1) INTENDED EFFECT.—Voluntary separations under this

section are not intended to necessarily reduce the total number

of full-time equivalent positions in any covered entity.

(2) USE OF VOLUNTARY SEPARATIONS.—A covered entity may

redeploy or use the full-time equivalent positions vacated by

116 STAT. 2208 PUBLIC LAW 107–296—NOV. 25, 2002

voluntary separations under this section to make other positions available to more critical locations or more critical occupations.

SEC. 473. AUTHORITY TO CONDUCT A DEMONSTRATION PROJECT

RELATING TO DISCIPLINARY ACTION.

(a) IN GENERAL.—The Attorney General and the Secretary may

each, during a period ending not later than 5 years after the

date of the enactment of this Act, conduct a demonstration project

for the purpose of determining whether one or more changes in

the policies or procedures relating to methods for disciplining

employees would result in improved personnel management.

(b) SCOPE.—A demonstration project under this section—

(1) may not cover any employees apart from those employed

in or under a covered entity; and

(2) shall not be limited by any provision of chapter 43,

75, or 77 of title 5, United States Code.

(c) PROCEDURES.—Under the demonstration project—

(1) the use of alternative means of dispute resolution (as

defined in section 571 of title 5, United States Code) shall

be encouraged, whenever appropriate; and

(2) each covered entity under the jurisdiction of the official

conducting the project shall be required to provide for the

expeditious, fair, and independent review of any action to which

section 4303 or subchapter II of chapter 75 of such title 5

would otherwise apply (except an action described in section

7512(5) of such title 5).

(d) ACTIONS INVOLVING DISCRIMINATION.—Notwithstanding any

other provision of this section, if, in the case of any matter described

in section 7702(a)(1)(B) of title 5, United States Code, there is

no judicially reviewable action under the demonstration project

within 120 days after the filing of an appeal or other formal request

for review (referred to in subsection (c)(2)), an employee shall be

entitled to file a civil action to the same extent and in the same

manner as provided in section 7702(e)(1) of such title 5 (in the

matter following subparagraph (C) thereof).

(e) CERTAIN EMPLOYEES.—Employees shall not be included

within any project under this section if such employees are—

(1) neither managers nor supervisors; and

(2) within a unit with respect to which a labor organization

is accorded exclusive recognition under chapter 71 of title 5,

United States Code.

Notwithstanding the preceding sentence, an aggrieved employee

within a unit (referred to in paragraph (2)) may elect to participate

in a complaint procedure developed under the demonstration project

in lieu of any negotiated grievance procedure and any statutory

procedure (as such term is used in section 7121 of such title 5).

(f) REPORTS.—The General Accounting Office shall prepare and

submit to the Committees on Government Reform and the Judiciary

of the House of Representatives and the Committees on Governmental Affairs and the Judiciary of the Senate periodic reports

on any demonstration project conducted under this section, such

reports to be submitted after the second and fourth years of its

operation. Upon request, the Attorney General or the Secretary

shall furnish such information as the General Accounting Office

may require to carry out this subsection.

Deadline.

6 USC 293.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2209

(g) DEFINITION.—In this section, the term ‘‘covered entity’’ has

the meaning given such term in section 472(a)(2).

SEC. 474. SENSE OF CONGRESS.

It is the sense of Congress that— (1) the missions of the Bureau of Border Security and

the Bureau of Citizenship and Immigration Services are equally

important and, accordingly, they each should be adequately

funded; and

(2) the functions transferred under this subtitle should

not, after such transfers take effect, operate at levels below

those in effect prior to the enactment of this Act.

SEC. 475. DIRECTOR OF SHARED SERVICES.

(a) IN GENERAL.—Within the Office of Deputy Secretary, there

shall be a Director of Shared Services.

(b) FUNCTIONS.—The Director of Shared Services shall be

responsible for the coordination of resources for the Bureau of

Border Security and the Bureau of Citizenship and Immigration

Services, including—

(1) information resources management, including computer

databases and information technology;

(2) records and file management; and

(3) forms management.

SEC. 476. SEPARATION OF FUNDING.

(a) IN GENERAL.—There shall be established separate accounts

in the Treasury of the United States for appropriated funds and

other deposits available for the Bureau of Citizenship and Immigration Services and the Bureau of Border Security.

(b) SEPARATE BUDGETS.—To ensure that the Bureau of Citizenship and Immigration Services and the Bureau of Border Security

are funded to the extent necessary to fully carry out their respective

functions, the Director of the Office of Management and Budget

shall separate the budget requests for each such entity.

(c) FEES.—Fees imposed for a particular service, application,

or benefit shall be deposited into the account established under

subsection (a) that is for the bureau with jurisdiction over the

function to which the fee relates.

(d) FEES NOT TRANSFERABLE.—No fee may be transferred

between the Bureau of Citizenship and Immigration Services and

the Bureau of Border Security for purposes not authorized by section

286 of the Immigration and Nationality Act (8 U.S.C. 1356).

SEC. 477. REPORTS AND IMPLEMENTATION PLANS.

(a) DIVISION OF FUNDS.—The Secretary, not later than 120

days after the effective date of this Act, shall submit to the Committees on Appropriations and the Judiciary of the House of Representatives and of the Senate a report on the proposed division and

transfer of funds, including unexpended funds, appropriations, and

fees, between the Bureau of Citizenship and Immigration Services

and the Bureau of Border Security.

(b) DIVISION OF PERSONNEL.—The Secretary, not later than

120 days after the effective date of this Act, shall submit to the

Committees on Appropriations and the Judiciary of the House of

Representatives and of the Senate a report on the proposed division

of personnel between the Bureau of Citizenship and Immigration

Services and the Bureau of Border Security.

Deadline.

Deadline.

6 USC 297.

6 USC 296.

6 USC 295.

6 USC 294.

116 STAT. 2210 PUBLIC LAW 107–296—NOV. 25, 2002

(c) IMPLEMENTATION PLAN.—

(1) IN GENERAL.—The Secretary, not later than 120 days

after the effective date of this Act, and every 6 months thereafter until the termination of fiscal year 2005, shall submit

to the Committees on Appropriations and the Judiciary of the

House of Representatives and of the Senate an implementation

plan to carry out this Act.

(2) CONTENTS.—The implementation plan should include

details concerning the separation of the Bureau of Citizenship

and Immigration Services and the Bureau of Border Security,

including the following:

(A) Organizational structure, including the field structure.

(B) Chain of command.

(C) Procedures for interaction among such bureaus.

(D) Fraud detection and investigation.

(E) The processing and handling of removal proceedings, including expedited removal and applications for

relief from removal.

(F) Recommendations for conforming amendments to

the Immigration and Nationality Act (8 U.S.C. 1101 et

seq.).

(G) Establishment of a transition team.

(H) Methods to phase in the costs of separating the

administrative support systems of the Immigration and

Naturalization Service in order to provide for separate

administrative support systems for the Bureau of Citizenship and Immigration Services and the Bureau of Border

Security.

(d) COMPTROLLER GENERAL STUDIES AND REPORTS.—

(1) STATUS REPORTS ON TRANSITION.—Not later than 18

months after the date on which the transfer of functions specified under section 441 takes effect, and every 6 months thereafter, until full implementation of this subtitle has been completed, the Comptroller General of the United States shall

submit to the Committees on Appropriations and on the

Judiciary of the House of Representatives and the Senate a

report containing the following:

(A) A determination of whether the transfers of functions made by subtitles D and E have been completed,

and if a transfer of functions has not taken place, identifying the reasons why the transfer has not taken place.

(B) If the transfers of functions made by subtitles

D and E have been completed, an identification of any

issues that have arisen due to the completed transfers.

(C) An identification of any issues that may arise due

to any future transfer of functions.

(2) REPORT ON MANAGEMENT.—Not later than 4 years after

the date on which the transfer of functions specified under

section 441 takes effect, the Comptroller General of the United

States shall submit to the Committees on Appropriations and

on the Judiciary of the House of Representatives and the Senate

a report, following a study, containing the following:

(A) Determinations of whether the transfer of functions

from the Immigration and Naturalization Service to the

Bureau of Citizenship and Immigration Services and the

Deadline.

Deadline.

Deadline.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2211

Bureau of Border Security have improved, with respect

to each function transferred, the following:

(i) Operations.

(ii) Management, including accountability and

communication.

(iii) Financial administration.

(iv) Recordkeeping, including information management and technology.

(B) A statement of the reasons for the determinations

under subparagraph (A).

(C) Any recommendations for further improvements

to the Bureau of Citizenship and Immigration Services

and the Bureau of Border Security.

(3) REPORT ON FEES.—Not later than 1 year after the

date of the enactment of this Act, the Comptroller General

of the United States shall submit to the Committees on the

Judiciary of the House of Representatives and of the Senate

a report examining whether the Bureau of Citizenship and

Immigration Services is likely to derive sufficient funds from

fees to carry out its functions in the absence of appropriated

funds.

SEC. 478. IMMIGRATION FUNCTIONS.

(a) ANNUAL REPORT.—

(1) IN GENERAL.—One year after the date of the enactment

of this Act, and each year thereafter, the Secretary shall submit

a report to the President, to the Committees on the Judiciary

and Government Reform of the House of Representatives, and

to the Committees on the Judiciary and Government Affairs

of the Senate, on the impact the transfers made by this subtitle

has had on immigration functions.

(2) MATTER INCLUDED.—The report shall address the following with respect to the period covered by the report:

(A) The aggregate number of all immigration applications and petitions received, and processed, by the Department.

(B) Region-by-region statistics on the aggregate

number of immigration applications and petitions filed by

an alien (or filed on behalf of an alien) and denied,

disaggregated by category of denial and application or petition type.

(C) The quantity of backlogged immigration applications and petitions that have been processed, the aggregate

number awaiting processing, and a detailed plan for eliminating the backlog.

(D) The average processing period for immigration

applications and petitions, disaggregated by application or

petition type.

(E) The number and types of immigration-related grievances filed with any official of the Department of Justice,

and if those grievances were resolved.

(F) Plans to address grievances and improve immigration services.

(G) Whether immigration-related fees were used consistent with legal requirements regarding such use.

6 USC 298.

Deadline.

116 STAT. 2212 PUBLIC LAW 107–296—NOV. 25, 2002

(H) Whether immigration-related questions conveyed

by customers to the Department (whether conveyed in person, by telephone, or by means of the Internet) were

answered effectively and efficiently.

(b) SENSE OF CONGRESS REGARDING IMMIGRATION SERVICES.— It is the sense of Congress that— (1) the quality and efficiency of immigration services rendered by the Federal Government should be improved after

the transfers made by this subtitle take effect; and

(2) the Secretary should undertake efforts to guarantee

that concerns regarding the quality and efficiency of immigration services are addressed after such effective date.

TITLE V—EMERGENCY PREPAREDNESS

AND RESPONSE

SEC. 501. UNDER SECRETARY FOR EMERGENCY PREPAREDNESS AND

RESPONSE.

There shall be in the Department a Directorate of Emergency

Preparedness and Response headed by an Under Secretary for

Emergency Preparedness and Response.

SEC. 502. RESPONSIBILITIES.

The Secretary, acting through the Under Secretary for Emergency Preparedness and Response, shall include—

(1) helping to ensure the effectiveness of emergency

response providers to terrorist attacks, major disasters, and

other emergencies;

(2) with respect to the Nuclear Incident Response Team

(regardless of whether it is operating as an organizational

unit of the Department pursuant to this title)—

(A) establishing standards and certifying when those

standards have been met;

(B) conducting joint and other exercises and training

and evaluating performance; and

(C) providing funds to the Department of Energy and

the Environmental Protection Agency, as appropriate, for

homeland security planning, exercises and training, and

equipment;

(3) providing the Federal Government’s response to terrorist attacks and major disasters, including—

(A) managing such response;

(B) directing the Domestic Emergency Support Team,

the Strategic National Stockpile, the National Disaster

Medical System, and (when operating as an organizational

unit of the Department pursuant to this title) the Nuclear

Incident Response Team;

(C) overseeing the Metropolitan Medical Response

System; and

(D) coordinating other Federal response resources in

the event of a terrorist attack or major disaster;

(4) aiding the recovery from terrorist attacks and major

disasters;

(5) building a comprehensive national incident management

system with Federal, State, and local government personnel,

6 USC 312.

6 USC 311.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2213

agencies, and authorities, to respond to such attacks and disasters;

(6) consolidating existing Federal Government emergency

response plans into a single, coordinated national response

plan; and

(7) developing comprehensive programs for developing

interoperative communications technology, and helping to

ensure that emergency response providers acquire such technology.

SEC. 503. 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 Federal Emergency Management Agency, including

the functions of the Director of the Federal Emergency Management Agency relating thereto.

(2) The Integrated Hazard Information System of the

National Oceanic and Atmospheric Administration, which shall

be renamed ‘‘FIRESAT’’.

(3) The National Domestic Preparedness Office of the Federal Bureau of Investigation, including the functions of the

Attorney General relating thereto.

(4) The Domestic Emergency Support Teams of the Department of Justice, including the functions of the Attorney General

relating thereto.

(5) The Office of Emergency Preparedness, the National

Disaster Medical System, and the Metropolitan Medical

Response System of the Department of Health and Human

Services, including the functions of the Secretary of Health

and Human Services and the Assistant Secretary for Public

Health Emergency Preparedness relating thereto.

(6) The Strategic National Stockpile of the Department

of Health and Human Services, including the functions of the

Secretary of Health and Human Services relating thereto.

SEC. 504. NUCLEAR INCIDENT RESPONSE.

(a) IN GENERAL.—At the direction of the Secretary (in connection with an actual or threatened terrorist attack, major disaster,

or other emergency in the United States), the Nuclear Incident

Response Team shall operate as an organizational unit of the

Department. While so operating, the Nuclear Incident Response

Team shall be subject to the direction, authority, and control of

the Secretary.

(b) RULE OF CONSTRUCTION.—Nothing in this title shall be

construed to limit the ordinary responsibility of the Secretary of

Energy and the Administrator of the Environmental Protection

Agency for organizing, training, equipping, and utilizing their

respective entities in the Nuclear Incident Response Team, or (subject to the provisions of this title) from exercising direction,

authority, and control over them when they are not operating

as a unit of the Department.

SEC. 505. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.

(a) IN GENERAL.—With respect to all public health-related

activities to improve State, local, and hospital preparedness and

response to chemical, biological, radiological, and nuclear and other

6 USC 315.

6 USC 314.

6 USC 313.

116 STAT. 2214 PUBLIC LAW 107–296—NOV. 25, 2002

emerging terrorist threats carried out by the Department of Health

and Human Services (including the Public Health Service), the

Secretary of Health and Human Services shall set priorities and

preparedness goals and further develop a coordinated strategy for

such activities in collaboration with the Secretary.

(b) EVALUATION OF PROGRESS.—In carrying out subsection (a),

the Secretary of Health and Human Services shall collaborate with

the Secretary in developing specific benchmarks and outcome

measurements for evaluating progress toward achieving the priorities and goals described in such subsection.

SEC. 506. DEFINITION.

In this title, the term ‘‘Nuclear Incident Response Team’’ means

a resource that includes—

(1) those entities of the Department of Energy that perform

nuclear or radiological emergency support functions (including

accident response, search response, advisory, and technical

operations functions), radiation exposure functions at the medical assistance facility known as the Radiation Emergency

Assistance Center/Training Site (REAC/TS), radiological assistance functions, and related functions; and

(2) those entities of the Environmental Protection Agency

that perform such support functions (including radiological

emergency response functions) and related functions.

SEC. 507. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.

(a) IN GENERAL.—The functions of the Federal Emergency

Management Agency include the following:

(1) All functions and authorities prescribed by the Robert

T. Stafford Disaster Relief and Emergency Assistance Act (42

U.S.C. 5121 et seq.).

(2) Carrying out its mission to reduce the loss of life and

property and protect the Nation from all hazards by leading

and supporting the Nation in a comprehensive, risk-based emergency management program—

(A) of mitigation, by taking sustained actions to reduce

or eliminate long-term risk to people and property from

hazards and their effects;

(B) of planning for building the emergency management profession to prepare effectively for, mitigate against,

respond to, and recover from any hazard;

(C) of response, by conducting emergency operations

to save lives and property through positioning emergency

equipment and supplies, through evacuating potential victims, through providing food, water, shelter, and medical

care to those in need, and through restoring critical public

services;

(D) of recovery, by rebuilding communities so individuals, businesses, and governments can function on their

own, return to normal life, and protect against future hazards; and

(E) of increased efficiencies, by coordinating efforts

relating to mitigation, planning, response, and recovery.

(b) FEDERAL RESPONSE PLAN.—

(1) ROLE OF FEMA.—Notwithstanding any other provision

of this Act, the Federal Emergency Management Agency shall

6 USC 317.

6 USC 316.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2215

remain the lead agency for the Federal Response Plan established under Executive Order No. 12148 (44 Fed. Reg. 43239)

and Executive Order No. 12656 (53 Fed. Reg. 47491).

(2) REVISION OF RESPONSE PLAN.—Not later than 60 days

after the date of enactment of this Act, the Director of the

Federal Emergency Management Agency shall revise the Federal Response Plan to reflect the establishment of and incorporate the Department.

SEC. 508. USE OF NATIONAL PRIVATE SECTOR NETWORKS IN EMERGENCY RESPONSE.

To the maximum extent practicable, the Secretary shall use

national private sector networks and infrastructure for emergency

response to chemical, biological, radiological, nuclear, or explosive

disasters, and other major disasters.

SEC. 509. USE OF COMMERCIALLY AVAILABLE TECHNOLOGY, GOODS,

AND SERVICES.

It is the sense of Congress that—

(1) the Secretary should, to the maximum extent possible,

use off-the-shelf commercially developed technologies to ensure

that the Department’s information technology systems allow

the Department to collect, manage, share, analyze, and disseminate information securely over multiple channels of communication; and

(2) in order to further the policy of the United States

to avoid competing commercially with the private sector, the

Secretary should rely on commercial sources to supply the

goods and services needed by the Department.

TITLE VI—TREATMENT OF CHARITABLE

TRUSTS FOR MEMBERS OF THE

ARMED FORCES OF THE UNITED

STATES AND OTHER GOVERNMENTAL

ORGANIZATIONS

SEC. 601. TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF

THE ARMED FORCES OF THE UNITED STATES AND OTHER

GOVERNMENTAL ORGANIZATIONS.

(a) FINDINGS.—Congress finds the following:

(1) Members of the Armed Forces of the United States

defend the freedom and security of our Nation.

(2) Members of the Armed Forces of the United States

have lost their lives while battling the evils of terrorism around

the world.

(3) Personnel of the Central Intelligence Agency (CIA)

charged with the responsibility of covert observation of terrorists around the world are often put in harm’s way during

their service to the United States.

(4) Personnel of the Central Intelligence Agency have also

lost their lives while battling the evils of terrorism around

the world.

(5) Employees of the Federal Bureau of Investigation (FBI)

and other Federal agencies charged with domestic protection

6 USC 331.

6 USC 319.

6 USC 318.

Deadline.

116 STAT. 2216 PUBLIC LAW 107–296—NOV. 25, 2002

of the United States put their lives at risk on a daily basis

for the freedom and security of our Nation.

(6) United States military personnel, CIA personnel, FBI

personnel, and other Federal agents in the service of the United

States are patriots of the highest order.

(7) CIA officer Johnny Micheal Spann became the first

American to give his life for his country in the War on Terrorism

declared by President George W. Bush following the terrorist

attacks of September 11, 2001.

(8) Johnny Micheal Spann left behind a wife and children

who are very proud of the heroic actions of their patriot father.

(9) Surviving dependents of members of the Armed Forces

of the United States who lose their lives as a result of terrorist

attacks or military operations abroad receive a $6,000 death

benefit, plus a small monthly benefit.

(10) The current system of compensating spouses and children of American patriots is inequitable and needs improvement.

(b) DESIGNATION OF JOHNNY MICHEAL SPANN PATRIOT

TRUSTS.—Any charitable corporation, fund, foundation, or trust (or

separate fund or account thereof) which otherwise meets all

applicable requirements under law with respect to charitable entities and meets the requirements described in subsection (c) shall

be eligible to characterize itself as a ‘‘Johnny Micheal Spann Patriot

Trust’’.

(c) REQUIREMENTS FOR THE DESIGNATION OF JOHNNY MICHEAL

SPANN PATRIOT TRUSTS.—The requirements described in this subsection are as follows:

(1) Not taking into account funds or donations reasonably

necessary to establish a trust, at least 85 percent of all funds

or donations (including any earnings on the investment of such

funds or donations) received or collected by any Johnny Micheal

Spann Patriot Trust must be distributed to (or, if placed in

a private foundation, held in trust for) surviving spouses, children, or dependent parents, grandparents, or siblings of 1 or

more of the following:

(A) members of the Armed Forces of the United States;

(B) personnel, including contractors, of elements of the

intelligence community, as defined in section 3(4) of the

National Security Act of 1947;

(C) employees of the Federal Bureau of Investigation;

and

(D) officers, employees, or contract employees of the

United States Government,

whose deaths occur in the line of duty and arise out of terrorist

attacks, military operations, intelligence operations, or law

enforcement operations or accidents connected with activities

occurring after September 11, 2001, and related to domestic

or foreign efforts to curb international terrorism, including

the Authorization for Use of Military Force (Public Law 107–

40; 115 Stat. 224).

(2) Other than funds or donations reasonably necessary

to establish a trust, not more than 15 percent of all funds

or donations (or 15 percent of annual earnings on funds invested

in a private foundation) may be used for administrative purposes.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2217

(3) No part of the net earnings of any Johnny Micheal

Spann Patriot Trust may inure to the benefit of any individual

based solely on the position of such individual as a shareholder,

an officer or employee of such Trust.

(4) None of the activities of any Johnny Micheal Spann

Patriot Trust shall be conducted in a manner inconsistent with

any law that prohibits attempting to influence legislation.

(5) No Johnny Micheal Spann Patriot Trust may participate

in or intervene in any political campaign on behalf of (or in

opposition to) any candidate for public office, including by

publication or distribution of statements.

(6) Each Johnny Micheal Spann Patriot Trust shall comply

with the instructions and directions of the Director of Central

Intelligence, the Attorney General, or the Secretary of Defense

relating to the protection of intelligence sources and methods,

sensitive law enforcement information, or other sensitive

national security information, including methods for confidentially disbursing funds.

(7) Each Johnny Micheal Spann Patriot Trust that receives

annual contributions totaling more than $1,000,000 must be

audited annually by an independent certified public accounting

firm. Such audits shall be filed with the Internal Revenue

Service, and shall be open to public inspection, except that

the conduct, filing, and availability of the audit shall be consistent with the protection of intelligence sources and methods,

of sensitive law enforcement information, and of other sensitive

national security information.

(8) Each Johnny Micheal Spann Patriot Trust shall make

distributions to beneficiaries described in paragraph (1) at least

once every calendar year, beginning not later than 12 months

after the formation of such Trust, and all funds and donations

received and earnings not placed in a private foundation dedicated to such beneficiaries must be distributed within 36

months after the end of the fiscal year in which such funds,

donations, and earnings are received.

(9)(A) When determining the amount of a distribution to

any beneficiary described in paragraph (1), a Johnny Micheal

Spann Patriot Trust should take into account the amount of

any collateral source compensation that the beneficiary has

received or is entitled to receive as a result of the death of

an individual described in paragraph (1).

(B) Collateral source compensation includes all compensation from collateral sources, including life insurance, pension

funds, death benefit programs, and payments by Federal, State,

or local governments related to the death of an individual

described in paragraph (1).

(d) TREATMENT OF JOHNNY MICHEAL SPANN PATRIOT TRUSTS.—

Each Johnny Micheal Spann Patriot Trust shall refrain from conducting the activities described in clauses (i) and (ii) of section

301(20)(A) of the Federal Election Campaign Act of 1971 so that

a general solicitation of funds by an individual described in paragraph (1) of section 323(e) of such Act will be permissible if such

solicitation meets the requirements of paragraph (4)(A) of such

section.

(e) NOTIFICATION OF TRUST BENEFICIARIES.—Notwithstanding

any other provision of law, and in a manner consistent with the

protection of intelligence sources and methods and sensitive law

116 STAT. 2218 PUBLIC LAW 107–296—NOV. 25, 2002

enforcement information, and other sensitive national security

information, the Secretary of Defense, the Director of the Federal

Bureau of Investigation, or the Director of Central Intelligence,

or their designees, as applicable, may forward information received

from an executor, administrator, or other legal representative of

the estate of a decedent described in subparagraph (A), (B), (C),

or (D) of subsection (c)(1), to a Johnny Micheal Spann Patriot

Trust on how to contact individuals eligible for a distribution under

subsection (c)(1) for the purpose of providing assistance from such

Trust: Provided, That, neither forwarding nor failing to forward

any information under this subsection shall create any cause of

action against any Federal department, agency, officer, agent, or

employee.

(f) REGULATIONS.—Not later than 90 days after the date of

enactment of this Act, the Secretary of Defense, in coordination

with the Attorney General, the Director of the Federal Bureau

of Investigation, and the Director of Central Intelligence, shall

prescribe regulations to carry out this section.

TITLE VII—MANAGEMENT

SEC. 701. UNDER SECRETARY FOR MANAGEMENT.

(a) IN GENERAL.—The Secretary, acting through the Under

Secretary for Management, shall be responsible for the management

and administration of the Department, including the following:

(1) The budget, appropriations, expenditures of funds,

accounting, and finance.

(2) Procurement.

(3) Human resources and personnel.

(4) Information technology and communications systems.

(5) Facilities, property, equipment, and other material

resources.

(6) Security for personnel, information technology and

communications systems, facilities, property, equipment, and

other material resources.

(7) Identification and tracking of performance measures

relating to the responsibilities of the Department.

(8) Grants and other assistance management programs.

(9) The transition and reorganization process, to ensure

an efficient and orderly transfer of functions and personnel

to the Department, including the development of a transition

plan.

(10) The conduct of internal audits and management analyses of the programs and activities of the Department.

(11) Any other management duties that the Secretary may

designate.

(b) IMMIGRATION.—

(1) IN GENERAL.—In addition to the responsibilities

described in subsection (a), the Under Secretary for Management shall be responsible for the following:

(A) Maintenance of all immigration statistical information of the Bureau of Border Security and the Bureau

of Citizenship and Immigration Services. Such statistical

information shall include information and statistics of the

6 USC 341.

Deadline.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2219

type contained in the publication entitled ‘‘Statistical Yearbook of the Immigration and Naturalization Service’’ prepared by the Immigration and Naturalization Service (as

in effect immediately before the date on which the transfer

of functions specified under section 441 takes effect),

including region-by-region statistics on the aggregate

number of applications and petitions filed by an alien (or

filed on behalf of an alien) and denied by such bureau,

and the reasons for such denials, disaggregated by category

of denial and application or petition type.

(B) Establishment of standards of reliability and

validity for immigration statistics collected by such

bureaus.

(2) TRANSFER OF FUNCTIONS.—In accordance with title XV,

there shall be transferred to the Under Secretary for Management all functions performed immediately before such transfer

occurs by the Statistics Branch of the Office of Policy and

Planning of the Immigration and Naturalization Service with

respect to the following programs:

(A) The Border Patrol program.

(B) The detention and removal program.

(C) The intelligence program.

(D) The investigations program.

(E) The inspections program.

(F) Adjudication of immigrant visa petitions.

(G) Adjudication of naturalization petitions.

(H) Adjudication of asylum and refugee applications.

(I) Adjudications performed at service centers.

(J) All other adjudications performed by the Immigration and Naturalization Service.

SEC. 702. CHIEF FINANCIAL OFFICER.

The Chief Financial Officer shall report to the Secretary, or

to another official of the Department, as the Secretary may direct.

SEC. 703. CHIEF INFORMATION OFFICER.

The Chief Information Officer shall report to the Secretary,

or to another official of the Department, as the Secretary may

direct.

SEC. 704. CHIEF HUMAN CAPITAL OFFICER.

The Chief Human Capital Officer shall report to the Secretary,

or to another official of the Department, as the Secretary may

direct and shall ensure that all employees of the Department are

informed of their rights and remedies under chapters 12 and 23

of title 5, United States Code, by—

(1) participating in the 2302(c) Certification Program of

the Office of Special Counsel;

(2) achieving certification from the Office of Special Counsel

of the Department’s compliance with section 2302(c) of title

5, United States Code; and

(3) informing Congress of such certification not later than

24 months after the date of enactment of this Act.

SEC. 705. ESTABLISHMENT OF OFFICER FOR CIVIL RIGHTS AND CIVIL

LIBERTIES.

(a) IN GENERAL.—The Secretary shall appoint in the Department an Officer for Civil Rights and Civil Liberties, who shall—

6 USC 345.

6 USC 344.

6 USC 343.

6 USC 342.

116 STAT. 2220 PUBLIC LAW 107–296—NOV. 25, 2002

(1) review and assess information alleging abuses of civil

rights, civil liberties, and racial and ethnic profiling by

employees and officials of the Department; and

(2) make public through the Internet, radio, television,

or newspaper advertisements information on the responsibilities and functions of, and how to contact, the Officer.

(b) REPORT.—The Secretary shall submit to the President

of the Senate, the Speaker of the House of Representatives,

and the appropriate committees and subcommittees of Congress

on an annual basis a report on the implementation of this

section, including the use of funds appropriated to carry out

this section, and detailing any allegations of abuses described

under subsection (a)(1) and any actions taken by the Department in response to such allegations.

SEC. 706. CONSOLIDATION AND CO-LOCATION OF OFFICES.

Not later than 1 year after the date of the enactment of this

Act, the Secretary shall develop and submit to Congress a plan

for consolidating and co-locating—

(1) any regional offices or field offices of agencies that

are transferred to the Department under this Act, if such

officers are located in the same municipality; and

(2) portions of regional and field offices of other Federal

agencies, to the extent such offices perform functions that are

transferred to the Secretary under this Act.

TITLE VIII—COORDINATION WITH NONFEDERAL 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.

(a) ESTABLISHMENT.—There is established within the Office

of the Secretary the Office for State and Local Government

Coordination, to oversee and coordinate departmental programs

for and relationships with State and local governments.

(b) RESPONSIBILITIES.—The Office established under subsection

(a) shall—

(1) coordinate the activities of the Department relating

to State and local government;

(2) assess, and advocate for, the resources needed by State

and local government to implement the national strategy for

combating terrorism;

(3) provide State and local government with regular

information, research, and technical support to assist local

efforts at securing the homeland; and

(4) develop a process for receiving meaningful input from

State and local government to assist the development of the

6 USC 361.

Deadline.

6 USC 346.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2221

national strategy for combating terrorism and other homeland

security activities.

Subtitle B—Inspector General

SEC. 811. AUTHORITY OF THE SECRETARY.

(a) IN GENERAL.—Notwithstanding the last two sentences of

section 3(a) of the Inspector General Act of 1978, the Inspector

General shall be under the authority, direction, and control of

the Secretary with respect to audits or investigations, or the

issuance of subpoenas, that require access to sensitive information

concerning—

(1) intelligence, counterintelligence, or counterterrorism

matters;

(2) ongoing criminal investigations or proceedings;

(3) undercover operations;

(4) the identity of confidential sources, including protected

witnesses;

(5) other matters the disclosure of which would, in the

Secretary’s judgment, constitute a serious threat to the protection of any person or property authorized protection by section

3056 of title 18, United States Code, section 202 of title 3

of such Code, or any provision of the Presidential Protection

Assistance Act of 1976; or

(6) other matters the disclosure of which would, in the

Secretary’s judgment, constitute a serious threat to national

security.

(b) PROHIBITION OF CERTAIN INVESTIGATIONS.—With respect

to the information described in subsection (a), the Secretary may

prohibit the Inspector General from carrying out or completing

any audit or investigation, or from issuing any subpoena, after

such Inspector General has decided to initiate, carry out, or complete such audit or investigation or to issue such subpoena, if

the Secretary determines that such prohibition is necessary to prevent the disclosure of any information described in subsection (a),

to preserve the national security, or to prevent a significant impairment to the interests of the United States.

(c) NOTIFICATION REQUIRED.—If the Secretary exercises any

power under subsection (a) or (b), the Secretary shall notify the

Inspector General of the Department in writing stating the reasons

for such exercise. Within 30 days after receipt of any such notice,

the Inspector General shall transmit a copy of such notice and

a written response thereto that includes—

(1) a statement as to whether the Inspector General agrees

or disagrees with such exercise; and

(2) the reasons for any disagreement, to the President

of the Senate and the Speaker of the House of Representatives

and to appropriate committees and subcommittees of Congress.

(d) ACCESS TO INFORMATION BY CONGRESS.—The exercise of

authority by the Secretary described in subsection (b) should not

be construed as limiting the right of Congress or any committee

of Congress to access any information it seeks.

(e) OVERSIGHT RESPONSIBILITY.—The Inspector General Act of

1978 (5 U.S.C. App.) is amended by inserting after section 8I

the following:

Deadline.

6 USC 371.

116 STAT. 2222 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF HOMELAND

SECURITY

‘‘SEC. 8J. Notwithstanding any other provision of law, in carrying out the duties and responsibilities specified in this Act, the

Inspector General of the Department of Homeland Security shall

have oversight responsibility for the internal investigations performed by the Office of Internal Affairs of the United States Customs Service and the Office of Inspections of the United States

Secret Service. The head of each such office shall promptly report

to the Inspector General the significant activities being carried

out by such office.’’.

SEC. 812. LAW ENFORCEMENT POWERS OF INSPECTOR GENERAL

AGENTS.

(a) IN GENERAL.—Section 6 of the Inspector General Act of

1978 (5 U.S.C. App.) is amended by adding at the end the following: ‘‘(e)(1) In addition to the authority otherwise provided by this

Act, each Inspector General appointed under section 3, any Assistant Inspector General for Investigations under such an Inspector

General, and any special agent supervised by such an Assistant

Inspector General may be authorized by the Attorney General to— ‘‘(A) carry a firearm while engaged in official duties as

authorized under this Act or other statute, or as expressly

authorized by the Attorney General; ‘‘(B) make an arrest without a warrant while engaged

in official duties as authorized under this Act or other statute,

or as expressly authorized by the Attorney General, for any

offense against the United States committed in the presence

of such Inspector General, Assistant Inspector General, or

agent, or for any felony cognizable under the laws of the United

States if such Inspector General, Assistant Inspector General,

or agent has reasonable grounds to believe that the person

to be arrested has committed or is committing such felony;

and ‘‘(C) seek and execute warrants for arrest, search of a

premises, or seizure of evidence issued under the authority

of the United States upon probable cause to believe that a

violation has been committed.

‘‘(2) The Attorney General may authorize exercise of the powers

under this subsection only upon an initial determination that— ‘‘(A) the affected Office of Inspector General is significantly

hampered in the performance of responsibilities established

by this Act as a result of the lack of such powers; ‘‘(B) available assistance from other law enforcement agencies is insufficient to meet the need for such powers; and ‘‘(C) adequate internal safeguards and management procedures exist to ensure proper exercise of such powers.

‘‘(3) The Inspector General offices of the Department of Commerce, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland

Security, Department of Housing and Urban Development, Department of the Interior, Department of Justice, Department of Labor,

Department of State, Department of Transportation, Department

of the Treasury, Department of Veterans Affairs, Agency for International Development, Environmental Protection Agency, Federal

Deposit Insurance Corporation, Federal Emergency Management

Agency, General Services Administration, National Aeronautics and

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2223

Space Administration, Nuclear Regulatory Commission, Office of

Personnel Management, Railroad Retirement Board, Small Business

Administration, Social Security Administration, and the Tennessee

Valley Authority are exempt from the requirement of paragraph

(2) of an initial determination of eligibility by the Attorney General.

‘‘(4) The Attorney General shall promulgate, and revise as

appropriate, guidelines which shall govern the exercise of the law

enforcement powers established under paragraph (1).

‘‘(5)(A) Powers authorized for an Office of Inspector General

under paragraph (1) may be rescinded or suspended upon a determination by the Attorney General that any of the requirements

under paragraph (2) is no longer satisfied or that the exercise

of authorized powers by that Office of Inspector General has not

complied with the guidelines promulgated by the Attorney General

under paragraph (4).

‘‘(B) Powers authorized to be exercised by any individual under

paragraph (1) may be rescinded or suspended with respect to that

individual upon a determination by the Attorney General that such

individual has not complied with guidelines promulgated by the

Attorney General under paragraph (4).

‘‘(6) A determination by the Attorney General under paragraph

(2) or (5) shall not be reviewable in or by any court.

‘‘(7) To ensure the proper exercise of the law enforcement

powers authorized by this subsection, the Offices of Inspector General described under paragraph (3) shall, not later than 180 days

after the date of enactment of this subsection, collectively enter

into a memorandum of understanding to establish an external

review process for ensuring that adequate internal safeguards and

management procedures continue to exist within each Office and

within any Office that later receives an authorization under paragraph (2). The review process shall be established in consultation

with the Attorney General, who shall be provided with a copy

of the memorandum of understanding that establishes the review

process. Under the review process, the exercise of the law enforcement powers by each Office of Inspector General shall be reviewed

periodically by another Office of Inspector General or by a committee of Inspectors General. The results of each review shall be

communicated in writing to the applicable Inspector General and

to the Attorney General.

‘‘(8) No provision of this subsection shall limit the exercise

of law enforcement powers established under any other statutory

authority, including United States Marshals Service special deputation.’’.

(b) PROMULGATION OF INITIAL GUIDELINES.—

(1) DEFINITION.—In this subsection, the term ‘‘memoranda

of understanding’’ means the agreements between the Department of Justice and the Inspector General offices described

under section 6(e)(3) of the Inspector General Act of 1978

(5 U.S.C. App.) (as added by subsection (a) of this section)

that—

(A) are in effect on the date of enactment of this

Act; and

(B) authorize such offices to exercise authority that

is the same or similar to the authority under section 6(e)(1)

of such Act.

(2) IN GENERAL.—Not later than 180 days after the date

of enactment of this Act, the Attorney General shall promulgate

Deadline.

5 USC app. 6

note.

Deadline.

116 STAT. 2224 PUBLIC LAW 107–296—NOV. 25, 2002

guidelines under section 6(e)(4) of the Inspector General Act

of 1978 (5 U.S.C. App.) (as added by subsection (a) of this

section) applicable to the Inspector General offices described

under section 6(e)(3) of that Act.

(3) MINIMUM REQUIREMENTS.—The guidelines promulgated

under this subsection shall include, at a minimum, the operational and training requirements in the memoranda of understanding.

(4) NO LAPSE OF AUTHORITY.—The memoranda of understanding in effect on the date of enactment of this Act shall

remain in effect until the guidelines promulgated under this

subsection take effect.

(c) EFFECTIVE DATES.— (1) IN GENERAL.—Subsection (a) shall take effect 180 days

after the date of enactment of this Act.

(2) INITIAL GUIDELINES.—Subsection (b) shall take effect

on the date of enactment of this Act.

Subtitle C—United States Secret Service

SEC. 821. FUNCTIONS TRANSFERRED.

In accordance with title XV, there shall be transferred to the

Secretary the functions, personnel, assets, and obligations of the

United States Secret Service, which shall be maintained as a distinct entity within the Department, including the functions of the

Secretary of the Treasury relating thereto.

Subtitle D—Acquisitions

SEC. 831. RESEARCH AND DEVELOPMENT PROJECTS.

(a) AUTHORITY.—During the 5-year period following the effective

date of this Act, the Secretary may carry out a pilot program

under which the Secretary may exercise the following authorities:

(1) IN GENERAL.—When the Secretary carries out basic,

applied, and advanced research and development projects,

including the expenditure of funds for such projects, the Secretary may exercise the same authority (subject to the same

limitations and conditions) with respect to such research and

projects as the Secretary of Defense may exercise under section

2371 of title 10, United States Code (except for subsections

(b) and (f)), after making a determination that the use of

a contract, grant, or cooperative agreement for such project

is not feasible or appropriate. The annual report required under

subsection (b) of this section, as applied to the Secretary by

this paragraph, shall be submitted to the President of the

Senate and the Speaker of the House of Representatives.

(2) PROTOTYPE PROJECTS.—The Secretary may, under the

authority of paragraph (1), carry out prototype projects in

accordance with the requirements and conditions provided for

carrying out prototype projects under section 845 of the

National Defense Authorization Act for Fiscal Year 1994 (Public

Law 103–160). In applying the authorities of that section 845,

subsection (c) of that section shall apply with respect to prototype projects under this paragraph, and the Secretary shall

6 USC 391.

6 USC 381.

5 USC app. 6

note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2225

perform the functions of the Secretary of Defense under subsection (d) thereof.

(b) REPORT.—Not later than 2 years after the effective date

of this Act, and annually thereafter, the Comptroller General shall

report to the Committee on Government Reform of the House of

Representatives and the Committee on Governmental Affairs of

the Senate on— (1) whether use of the authorities described in subsection

(a) attracts nontraditional Government contractors and results

in the acquisition of needed technologies; and

(2) if such authorities were to be made permanent, whether

additional safeguards are needed with respect to the use of

such authorities.

(c) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERV- ICES.—The Secretary may— (1) procure the temporary or intermittent services of

experts or consultants (or organizations thereof) in accordance

with section 3109(b) of title 5, United States Code; and

(2) whenever necessary due to an urgent homeland security

need, procure temporary (not to exceed 1 year) or intermittent

personal services, including the services of experts or consultants (or organizations thereof), without regard to the pay limitations of such section 3109.

(d) DEFINITION OF NONTRADITIONAL GOVERNMENT CONTRACTOR.—In this section, the term ‘‘nontraditional Government

contractor’’ has the same meaning as the term ‘‘nontraditional

defense contractor’’ as defined in section 845(e) of the National

Defense Authorization Act for Fiscal Year 1994 (Public Law 103–

160; 10 U.S.C. 2371 note).

SEC. 832. PERSONAL SERVICES.

The Secretary—

(1) may procure the temporary or intermittent services

of experts or consultants (or organizations thereof) in accordance with section 3109 of title 5, United States Code; and

(2) may, whenever necessary due to an urgent homeland

security need, procure temporary (not to exceed 1 year) or

intermittent personal services, including the services of experts

or consultants (or organizations thereof), without regard to

the pay limitations of such section 3109.

SEC. 833. SPECIAL STREAMLINED ACQUISITION AUTHORITY.

(a) AUTHORITY.—

(1) IN GENERAL.—The Secretary may use the authorities

set forth in this section with respect to any procurement made

during the period beginning on the effective date of this Act

and ending September 30, 2007, if the Secretary determines

in writing that the mission of the Department (as described

in section 101) would be seriously impaired without the use

of such authorities.

(2) DELEGATION.—The authority to make the determination

described in paragraph (1) may not be delegated by the Secretary to an officer of the Department who is not appointed

by the President with the advice and consent of the Senate.

(3) NOTIFICATION.—Not later than the date that is 7 days

after the date of any determination under paragraph (1), the

Secretary shall submit to the Committee on Government

Deadline.

6 USC 393.

6 USC 392.

Deadline.

116 STAT. 2226 PUBLIC LAW 107–296—NOV. 25, 2002

Reform of the House of Representatives and the Committee

on Governmental Affairs of the Senate—

(A) notification of such determination; and

(B) the justification for such determination.

(b) INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN

PROCUREMENTS.—

(1) IN GENERAL.—The Secretary may designate certain

employees of the Department to make procurements described

in subsection (a) for which in the administration of section

32 of the Office of Federal Procurement Policy Act (41 U.S.C.

428) the amount specified in subsections (c), (d), and (f) of

such section 32 shall be deemed to be $7,500.

(2) NUMBER OF EMPLOYEES.—The number of employees

designated under paragraph (1) shall be—

(A) fewer than the number of employees of the Department who are authorized to make purchases without

obtaining competitive quotations, pursuant to section 32(c)

of the Office of Federal Procurement Policy Act (41 U.S.C.

428(c));

(B) sufficient to ensure the geographic dispersal of

the availability of the use of the procurement authority

under such paragraph at locations reasonably considered

to be potential terrorist targets; and

(C) sufficiently limited to allow for the careful monitoring of employees designated under such paragraph.

(3) REVIEW.—Procurements made under the authority of

this subsection shall be subject to review by a designated supervisor on not less than a monthly basis. The supervisor responsible for the review shall be responsible for no more than

7 employees making procurements under this subsection.

(c) SIMPLIFIED ACQUISITION PROCEDURES.—

(1) IN GENERAL.—With respect to a procurement described

in subsection (a), the Secretary may deem the simplified

acquisition threshold referred to in section 4(11) of the Office

of Federal Procurement Policy Act (41 U.S.C. 403(11)) to be—

(A) in the case of a contract to be awarded and performed, or purchase to be made, within the United States,

$200,000; and

(B) in the case of a contract to be awarded and performed, or purchase to be made, outside of the United

States, $300,000.

(2) CONFORMING AMENDMENTS.—Section 18(c)(1) of the

Office of Federal Procurement Policy Act is amended—

(A) by striking ‘‘or’’ at the end of subparagraph (F);

(B) by striking the period at the end of subparagraph

(G) and inserting ‘‘; or’’; and

(C) by adding at the end the following:

‘‘(H) the procurement is by the Secretary of Homeland

Security pursuant to the special procedures provided in section

833(c) of the Homeland Security Act of 2002.’’.

(d) APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES.—

(1) IN GENERAL.—With respect to a procurement described

in subsection (a), the Secretary may deem any item or service

to be a commercial item for the purpose of Federal procurement

laws.

41 USC 416.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2227

(2) LIMITATION.—The $5,000,000 limitation provided in section 31(a)(2) of the Office of Federal Procurement Policy Act

(41 U.S.C. 427(a)(2)) and section 303(g)(1)(B) of the Federal

Property and Administrative Services Act of 1949 (41 U.S.C.

253(g)(1)(B)) shall be deemed to be $7,500,000 for purposes

of property or services under the authority of this subsection.

(3) CERTAIN AUTHORITY.—Authority under a provision of

law referred to in paragraph (2) that expires under section

4202(e) of the Clinger-Cohen Act of 1996 (divisions D and

E of Public Law 104–106; 10 U.S.C. 2304 note) shall, notwithstanding such section, continue to apply for a procurement

described in subsection (a).

(e) REPORT.—Not later than 180 days after the end of fiscal

year 2005, the Comptroller General shall submit to the Committee

on Governmental Affairs of the Senate and the Committee on

Government Reform of the House of Representatives a report on

the use of the authorities provided in this section. The report

shall contain the following:

(1) An assessment of the extent to which property and

services acquired using authorities provided under this section

contributed to the capacity of the Federal workforce to facilitate

the mission of the Department as described in section 101.

(2) An assessment of the extent to which prices for property

and services acquired using authorities provided under this

section reflected the best value.

(3) The number of employees designated by each executive

agency under subsection (b)(1).

(4) An assessment of the extent to which the Department

has implemented subsections (b)(2) and (b)(3) to monitor the

use of procurement authority by employees designated under

subsection (b)(1).

(5) Any recommendations of the Comptroller General for

improving the effectiveness of the implementation of the provisions of this section.

SEC. 834. UNSOLICITED PROPOSALS.

(a) REGULATIONS REQUIRED.—Within 1 year of the date of enactment of this Act, the Federal Acquisition Regulation shall be revised

to include regulations with regard to unsolicited proposals.

(b) CONTENT OF REGULATIONS.—The regulations prescribed

under subsection (a) shall require that before initiating a comprehensive evaluation, an agency contact point shall consider,

among other factors, that the proposal— (1) is not submitted in response to a previously published

agency requirement; and

(2) contains technical and cost information for evaluation

and overall scientific, technical or socioeconomic merit, or costrelated or price-related factors.

SEC. 835. PROHIBITION ON CONTRACTS WITH CORPORATE EXPATRIATES.

(a) IN GENERAL.—The Secretary may not enter into any contract

with a foreign incorporated entity which is treated as an inverted

domestic corporation under subsection (b).

(b) INVERTED DOMESTIC CORPORATION.—For purposes of this

section, a foreign incorporated entity shall be treated as an inverted

domestic corporation if, pursuant to a plan (or a series of related

transactions)—

6 USC 395.

Deadline.

6 USC 394.

Deadline.

116 STAT. 2228 PUBLIC LAW 107–296—NOV. 25, 2002

(1) the entity completes after the date of enactment of

this Act, the direct or indirect acquisition of substantially all

of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a

trade or business of a domestic partnership;

(2) after the acquisition at least 80 percent of the stock

(by vote or value) of the entity is held—

(A) in the case of an acquisition with respect to a

domestic corporation, by former shareholders of the

domestic corporation by reason of holding stock in the

domestic corporation; or

(B) in the case of an acquisition with respect to a

domestic partnership, by former partners of the domestic

partnership by reason of holding a capital or profits interest

in the domestic partnership; and

(3) the expanded affiliated group which after the acquisition

includes the entity does not have substantial business activities

in the foreign country in which or under the law of which

the entity is created or organized when compared to the total

business activities of such expanded affiliated group.

(c) DEFINITIONS AND SPECIAL RULES.—

(1) RULES FOR APPLICATION OF SUBSECTION (b).—In applying

subsection (b) for purposes of subsection (a), the following rules

shall apply:

(A) CERTAIN STOCK DISREGARDED.—There shall not be

taken into account in determining ownership for purposes

of subsection (b)(2)—

(i) stock held by members of the expanded affiliated group which includes the foreign incorporated

entity; or

(ii) stock of such entity which is sold in a public

offering related to the acquisition described in subsection (b)(1).

(B) PLAN DEEMED IN CERTAIN CASES.—If a foreign incorporated entity acquires directly or indirectly substantially

all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which

is after the date of enactment of this Act and which is

2 years before the ownership requirements of subsection

(b)(2) are met, such actions shall be treated as pursuant

to a plan.

(C) CERTAIN TRANSFERS DISREGARDED.—The transfer

of properties or liabilities (including by contribution or

distribution) shall be disregarded if such transfers are part

of a plan a principal purpose of which is to avoid the

purposes of this section.

(D) SPECIAL RULE FOR RELATED PARTNERSHIPS.—For

purposes of applying subsection (b) to the acquisition of

a domestic partnership, except as provided in regulations,

all domestic partnerships which are under common control

(within the meaning of section 482 of the Internal Revenue

Code of 1986) shall be treated as I partnership.

(E) TREATMENT OF CERTAIN RIGHTS.—The Secretary

shall prescribe such regulations as may be necessary to—

(i) treat warrants, options, contracts to acquire

stock, convertible debt instruments, and other similar

interests as stock; and

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2229

(ii) treat stock as not stock.

(2) EXPANDED AFFILIATED GROUP.—The term ‘‘expanded

affiliated group’’ means an affiliated group as defined in section

1504(a) of the Internal Revenue Code of 1986 (without regard

to section 1504(b) of such Code), except that section 1504 of

such Code shall be applied by substituting ‘‘more than 50

percent’’ for ‘‘at least 80 percent’’ each place it appears.

(3) FOREIGN INCORPORATED ENTITY.—The term ‘‘foreign

incorporated entity’’ means any entity which is, or but for

subsection (b) would be, treated as a foreign corporation for

purposes of the Internal Revenue Code of 1986.

(4) OTHER DEFINITIONS.—The terms ‘‘person’’, ‘‘domestic’’,

and ‘‘foreign’’ have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.

(d) WAIVERS.—The Secretary shall waive subsection (a) with

respect to any specific contract if the Secretary determines that

the waiver is required in the interest of homeland security, or

to prevent the loss of any jobs in the United States or prevent

the Government from incurring any additional costs that otherwise

would not occur.

Subtitle E—Human Resources

Management

SEC. 841. ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT

SYSTEM.

(a) AUTHORITY.—

(1) SENSE OF CONGRESS.—It is the sense of Congress that—

(A) it is extremely important that employees of the

Department be allowed to participate in a meaningful way

in the creation of any human resources management

system affecting them;

(B) such employees have the most direct knowledge

of the demands of their jobs and have a direct interest

in ensuring that their human resources management

system is conducive to achieving optimal operational efficiencies;

(C) the 21st century human resources management

system envisioned for the Department should be one that

benefits from the input of its employees; and

(D) this collaborative effort will help secure our homeland.

(2) IN GENERAL.—Subpart I of part III of title 5, United

States Code, is amended by adding at the end the following:

‘‘CHAPTER 97—DEPARTMENT OF HOMELAND SECURITY

‘‘Sec.

‘‘9701. Establishment of human resources management system.

6 USC 411.

116 STAT. 2230 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘§ 9701. Establishment of human resources management

system

‘‘(a) IN GENERAL.—Notwithstanding any other provision of this

part, the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management, establish, and from time to time adjust, a human resources

management system for some or all of the organizational units

of the Department of Homeland Security. ‘‘(b) SYSTEM REQUIREMENTS.—Any system established under

subsection (a) shall— ‘‘(1) be flexible;

‘‘(2) be contemporary;

‘‘(3) not waive, modify, or otherwise affect— ‘‘(A) the public employment principles of merit and

fitness set forth in section 2301, including the principles

of hiring based on merit, fair treatment without regard

to political affiliation or other nonmerit considerations,

equal pay for equal work, and protection of employees

against reprisal for whistleblowing; ‘‘(B) any provision of section 2302, relating to prohibited personnel practices; ‘‘(C)(i) any provision of law referred to in section

2302(b)(1), (8), and (9); or ‘‘(ii) any provision of law implementing any provision

of law referred to in section 2302(b)(1), (8), and (9) by— ‘‘(I) providing for equal employment opportunity

through affirmative action; or ‘‘(II) providing any right or remedy available to

any employee or applicant for employment in the civil

service;

‘‘(D) any other provision of this part (as described

in subsection (c)); or ‘‘(E) any rule or regulation prescribed under any provision of law referred to in any of the preceding subparagraphs of this paragraph;

‘‘(4) ensure that employees may organize, bargain collectively, and participate through labor organizations of their own

choosing in decisions which affect them, subject to any exclusion

from coverage or limitation on negotiability established by law;

and ‘‘(5) permit the use of a category rating system for evaluating applicants for positions in the competitive service.

‘‘(c) OTHER NONWAIVABLE PROVISIONS.—The other provisions

of this part as referred to in subsection (b)(3)(D), are (to the extent

not otherwise specified in subparagraph (A), (B), (C), or (D) of

subsection (b)(3))—

‘‘(1) subparts A, B, E, G, and H of this part; and

‘‘(2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and

this chapter.

‘‘(d) LIMITATIONS RELATING TO PAY.—Nothing in this section

shall constitute authority—

‘‘(1) to modify the pay of any employee who serves in—

‘‘(A) an Executive Schedule position under subchapter

II of chapter 53 of title 5, United States Code; or

‘‘(B) a position for which the rate of basic pay is fixed

in statute by reference to a section or level under subchapter II of chapter 53 of such title 5;

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2231

‘‘(2) to fix pay for any employee or position at an annual

rate greater than the maximum amount of cash compensation

allowable under section 5307 of such title 5 in a year; or ‘‘(3) to exempt any employee from the application of such

section 5307.

‘‘(e) PROVISIONS TO ENSURE COLLABORATION WITH EMPLOYEE

REPRESENTATIVES.— ‘‘(1) IN GENERAL.—In order to ensure that the authority

of this section is exercised in collaboration with, and in a

manner that ensures the participation of employee representatives in the planning, development, and implementation of any

human resources management system or adjustments to such

system under this section, the Secretary of Homeland Security

and the Director of the Office of Personnel Management shall

provide for the following: ‘‘(A) NOTICE OF PROPOSAL.—The Secretary and the

Director shall, with respect to any proposed system or

adjustment— ‘‘(i) provide to each employee representative representing any employees who might be affected, a written description of the proposed system or adjustment

(including the reasons why it is considered necessary); ‘‘(ii) give each representative 30 calendar days

(unless extraordinary circumstances require earlier

action) to review and make recommendations with

respect to the proposal; and ‘‘(iii) give any recommendations received from any

such representatives under clause (ii) full and fair

consideration in deciding whether or how to proceed

with the proposal.

‘‘(B) PRE-IMPLEMENTATION CONGRESSIONAL NOTIFICATION, CONSULTATION, AND MEDIATION.—Following receipt

of recommendations, if any, from employee representatives

with respect to a proposal described in subparagraph (A),

the Secretary and the Director shall accept such modifications to the proposal in response to the recommendations

as they determine advisable and shall, with respect to

any parts of the proposal as to which they have not accepted

the recommendations—

‘‘(i) notify Congress of those parts of the proposal,

together with the recommendations of employee representatives;

‘‘(ii) meet and confer for not less than 30 calendar

days with any representatives who have made recommendations, in order to attempt to reach agreement

on whether or how to proceed with those parts of

the proposal; and

‘‘(iii) at the Secretary’s option, or if requested by

a majority of the employee representatives who have

made recommendations, use the services of the Federal

Mediation and Conciliation Service during such meet

and confer period to facilitate the process of attempting

to reach agreement.

‘‘(C) IMPLEMENTATION.—

‘‘(i) Any part of the proposal as to which the representatives do not make a recommendation, or as

to which their recommendations are accepted by the

116 STAT. 2232 PUBLIC LAW 107–296—NOV. 25, 2002

Secretary and the Director, may be implemented immediately. ‘‘(ii) With respect to any parts of the proposal

as to which recommendations have been made but

not accepted by the Secretary and the Director, at

any time after 30 calendar days have elapsed since

the initiation of the congressional notification, consultation, and mediation procedures set forth in

subparagraph (B), if the Secretary determines, in the

Secretary’s sole and unreviewable discretion, that further consultation and mediation is unlikely to produce

agreement, the Secretary may implement any or all

of such parts, including any modifications made in

response to the recommendations as the Secretary

determines advisable.

‘‘(iii) The Secretary shall promptly notify Congress

of the implementation of any part of the proposal and

shall furnish with such notice an explanation of the

proposal, any changes made to the proposal as a result

of recommendations from employee representatives,

and of the reasons why implementation is appropriate

under this subparagraph.

‘‘(D) CONTINUING COLLABORATION.—If a proposal

described in subparagraph (A) is implemented, the Secretary and the Director shall—

‘‘(i) develop a method for each employee representative to participate in any further planning or development which might become necessary; and

‘‘(ii) give each employee representative adequate

access to information to make that participation

productive.

‘‘(2) PROCEDURES.—Any procedures necessary to carry out

this subsection shall be established by the Secretary and the

Director jointly as internal rules of departmental procedure

which shall not be subject to review. Such procedures shall

include measures to ensure—

‘‘(A) in the case of employees within a unit with respect

to which a labor organization is accorded exclusive recognition, representation by individuals designated or from

among individuals nominated by such organization;

‘‘(B) in the case of any employees who are not within

such a unit, representation by any appropriate organization

which represents a substantial percentage of those

employees or, if none, in such other manner as may be

appropriate, consistent with the purposes of the subsection;

‘‘(C) the fair and expeditious handling of the consultation and mediation process described in subparagraph (B)

of paragraph (1), including procedures by which, if the

number of employee representatives providing recommendations exceeds 5, such representatives select a committee or other unified representative with which the Secretary and Director may meet and confer; and

‘‘(D) the selection of representatives in a manner consistent with the relative number of employees represented

by the organizations or other representatives involved.

‘‘(f) PROVISIONS RELATING TO APPELLATE PROCEDURES.— ‘‘(1) SENSE OF CONGRESS.—It is the sense of Congress that—

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2233

‘‘(A) employees of the Department are entitled to fair

treatment in any appeals that they bring in decisions

relating to their employment; and ‘‘(B) in prescribing regulations for any such appeals

procedures, the Secretary and the Director of the Office

of Personnel Management— ‘‘(i) should ensure that employees of the Department are afforded the protections of due process; and ‘‘(ii) toward that end, should be required to consult

with the Merit Systems Protection Board before issuing

any such regulations. ‘‘(2) REQUIREMENTS.—Any regulations under this section

which relate to any matters within the purview of chapter

77— ‘‘(A) shall be issued only after consultation with the

Merit Systems Protection Board; ‘‘(B) shall ensure the availability of procedures which

shall— ‘‘(i) be consistent with requirements of due process;

and ‘‘(ii) provide, to the maximum extent practicable,

for the expeditious handling of any matters involving

the Department; and

‘‘(C) shall modify procedures under chapter 77 only

insofar as such modifications are designed to further the

fair, efficient, and expeditious resolution of matters

involving the employees of the Department. ‘‘(g) PROVISIONS RELATING TO LABOR-MANAGEMENT RELA- TIONS.—Nothing in this section shall be construed as conferring

authority on the Secretary of Homeland Security to modify any

of the provisions of section 842 of the Homeland Security Act

of 2002. ‘‘(h) SUNSET PROVISION.—Effective 5 years after the conclusion

of the transition period defined under section 1501 of the Homeland

Security Act of 2002, all authority to issue regulations under this

section (including regulations which would modify, supersede, or

terminate any regulations previously issued under this section)

shall cease to be available.’’. (3) TECHNICAL AND CONFORMING AMENDMENT.—The table

of chapters for part III of title 5, United States Code, is

amended by adding at the end of the following:

‘‘97. Department of Homeland Security ........................................................ 9701’’.

(b) EFFECT ON PERSONNEL.—

(1) NONSEPARATION OR NONREDUCTION IN GRADE OR COMPENSATION OF FULL-TIME PERSONNEL AND PART-TIME PERSONNEL

HOLDING PERMANENT POSITIONS.—Except as otherwise provided

in this Act, the transfer under this Act of full-time personnel

(except special Government employees) and part-time personnel

holding permanent positions shall not cause any such employee

to be separated or reduced in grade or compensation for 1

year after the date of transfer to the Department.

(2) POSITIONS COMPENSATED IN ACCORDANCE WITH EXECUTIVE SCHEDULE.—Any person who, on the day preceding such

person’s date of transfer pursuant to this Act, held a position

compensated in accordance with the Executive Schedule prescribed in chapter 53 of title 5, United States Code, and who,

without a break in service, is appointed in the Department

116 STAT. 2234 PUBLIC LAW 107–296—NOV. 25, 2002

to a position having duties comparable to the duties performed

immediately preceding such appointment shall continue to be

compensated in such new position at not less than the rate

provided for such position, for the duration of the service of

such person in such new position.

(3) COORDINATION RULE.—Any exercise of authority under

chapter 97 of title 5, United States Code (as amended by

subsection (a)), including under any system established under

such chapter, shall be in conformance with the requirements

of this subsection.

SEC. 842. LABOR-MANAGEMENT RELATIONS.

(a) LIMITATION ON EXCLUSIONARY AUTHORITY.— (1) IN GENERAL.—No agency or subdivision of an agency

which is transferred to the Department pursuant to this Act

shall be excluded from the coverage of chapter 71 of title

5, United States Code, as a result of any order issued under

section 7103(b)(1) of such title 5 after June 18, 2002, unless— (A) the mission and responsibilities of the agency (or

subdivision) materially change; and

(B) a majority of the employees within such agency

(or subdivision) have as their primary duty intelligence,

counterintelligence, or investigative work directly related

to terrorism investigation.

(2) EXCLUSIONS ALLOWABLE.—Nothing in paragraph (1)

shall affect the effectiveness of any order to the extent that

such order excludes any portion of an agency or subdivision

of an agency as to which—

(A) recognition as an appropriate unit has never been

conferred for purposes of chapter 71 of such title 5; or

(B) any such recognition has been revoked or otherwise

terminated as a result of a determination under subsection

(b)(1).

(b) PROVISIONS RELATING TO BARGAINING UNITS.—

(1) LIMITATION RELATING TO APPROPRIATE UNITS.—Each

unit which is recognized as an appropriate unit for purposes

of chapter 71 of title 5, United States Code, as of the day

before the effective date of this Act (and any subdivision of

any such unit) shall, if such unit (or subdivision) is transferred

to the Department pursuant to this Act, continue to be so

recognized for such purposes, unless—

(A) the mission and responsibilities of such unit (or

subdivision) materially change; and

(B) a majority of the employees within such unit (or

subdivision) have as their primary duty intelligence,

counterintelligence, or investigative work directly related

to terrorism investigation.

(2) LIMITATION RELATING TO POSITIONS OR EMPLOYEES.—

No position or employee within a unit (or subdivision of a

unit) as to which continued recognition is given in accordance

with paragraph (1) shall be excluded from such unit (or subdivision), for purposes of chapter 71 of such title 5, unless the

primary job duty of such position or employee—

(A) materially changes; and

(B) consists of intelligence, counterintelligence, or

investigative work directly related to terrorism investigation.

6 USC 412.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2235

In the case of any positions within a unit (or subdivision)

which are first established on or after the effective date of

this Act and any employees first appointed on or after such

date, the preceding sentence shall be applied disregarding

subparagraph (A).

(c) WAIVER.—If the President determines that the application

of subsections (a), (b), and (d) would have a substantial adverse

impact on the ability of the Department to protect homeland security, the President may waive the application of such subsections

10 days after the President has submitted to Congress a written

explanation of the reasons for such determination.

(d) COORDINATION RULE.—No other provision of this Act or

of any amendment made by this Act may be construed or applied

in a manner so as to limit, supersede, or otherwise affect the

provisions of this section, except to the extent that it does so

by specific reference to this section.

(e) RULE OF CONSTRUCTION.—Nothing in section 9701(e) of

title 5, United States Code, shall be considered to apply with

respect to any agency or subdivision of any agency, which is

excluded from the coverage of chapter 71 of title 5, United States

Code, by virtue of an order issued in accordance with section 7103(b)

of such title and the preceding provisions of this section (as

applicable), or to any employees of any such agency or subdivision

or to any individual or entity representing any such employees

or any representatives thereof.

Subtitle F—Federal Emergency

Procurement Flexibility

SEC. 851. DEFINITION.

In this subtitle, the term ‘‘executive agency’’ has the meaning

given that term under section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)).

SEC. 852. PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY

FROM TERRORISM OR NUCLEAR, BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK.

The authorities provided in this subtitle apply to any procurement of property or services by or for an executive agency that,

as determined by the head of the executive agency, are to be

used to facilitate defense against or recovery from terrorism or

nuclear, biological, chemical, or radiological attack, but only if a

solicitation of offers for the procurement is issued during the 1-

year period beginning on the date of the enactment of this Act.

SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR

PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR

PEACEKEEPING OPERATIONS OR CONTINGENCY OPERATIONS.

(a) TEMPORARY THRESHOLD AMOUNTS.—For a procurement

referred to in section 852 that is carried out in support of a humanitarian or peacekeeping operation or a contingency operation, the

simplified acquisition threshold definitions shall be applied as if

the amount determined under the exception provided for such an

operation in those definitions were—

6 USC 423.

Applicability.

6 USC 422.

6 USC 421.

116 STAT. 2236 PUBLIC LAW 107–296—NOV. 25, 2002

(1) in the case of a contract to be awarded and performed, or purchase to be made, inside the United States, $200,000;

or

(2) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States, $300,000.

(b) SIMPLIFIED ACQUISITION THRESHOLD DEFINITIONS.—In this

section, the term ‘‘simplified acquisition threshold definitions’’ means the following:

(1) Section 4(11) of the Office of Federal Procurement Policy

Act (41 U.S.C. 403(11)).

(2) Section 309(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(d)).

(3) Section 2302(7) of title 10, United States Code.

(c) SMALL BUSINESS RESERVE.—For a procurement carried out

pursuant to subsection (a), section 15(j) of the Small Business

Act (15 U.S.C. 644(j)) shall be applied as if the maximum anticipated

value identified therein is equal to the amounts referred to in

subsection (a).

SEC. 854. INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN

PROCUREMENTS.

In the administration of section 32 of the Office of Federal

Procurement Policy Act (41 U.S.C. 428) with respect to a procurement referred to in section 852, the amount specified in subsections

(c), (d), and (f) of such section 32 shall be deemed to be $7,500.

SEC. 855. APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES TO CERTAIN PROCUREMENTS.

(a) AUTHORITY.— (1) IN GENERAL.—The head of an executive agency may

apply the provisions of law listed in paragraph (2) to a procurement referred to in section 852 without regard to whether

the property or services are commercial items.

(2) COMMERCIAL ITEM LAWS.—The provisions of law referred

to in paragraph (1) are as follows:

(A) Sections 31 and 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 427, 430).

(B) Section 2304(g) of title 10, United States Code.

(C) Section 303(g) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)).

(b) INAPPLICABILITY OF LIMITATION ON USE OF SIMPLIFIED

ACQUISITION PROCEDURES.— (1) IN GENERAL.—The $5,000,000 limitation provided in

section 31(a)(2) of the Office of Federal Procurement Policy

Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of title 10, United

States Code, and section 303(g)(1)(B) of the Federal Property

and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B))

shall not apply to purchases of property or services to which

any of the provisions of law referred to in subsection (a) are

applied under the authority of this section.

(2) OMB GUIDANCE.—The Director of the Office of Management and Budget shall issue guidance and procedures for the

use of simplified acquisition procedures for a purchase of property or services in excess of $5,000,000 under the authority

of this section.

(c) CONTINUATION OF AUTHORITY FOR SIMPLIFIED PURCHASE

PROCEDURES.—Authority under a provision of law referred to in

subsection (a)(2) that expires under section 4202(e) of the Clinger6 USC 425.

6 USC 424.

Applicability.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2237

Cohen Act of 1996 (divisions D and E of Public Law 104–106;

10 U.S.C. 2304 note) shall, notwithstanding such section, continue

to apply for use by the head of an executive agency as provided

in subsections (a) and (b).

SEC. 856. USE OF STREAMLINED PROCEDURES.

(a) REQUIRED USE.—The head of an executive agency shall,

when appropriate, use streamlined acquisition authorities and

procedures authorized by law for a procurement referred to in

section 852, including authorities and procedures that are provided

under the following provisions of law:

(1) FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT

OF 1949.—In title III of the Federal Property and Administrative

Services Act of 1949:

(A) Paragraphs (1), (2), (6), and (7) of subsection (c)

of section 303 (41 U.S.C. 253), relating to use of procedures

other than competitive procedures under certain circumstances (subject to subsection (e) of such section).

(B) Section 303J (41 U.S.C. 253j), relating to orders

under task and delivery order contracts.

(2) TITLE 10, UNITED STATES CODE.—In chapter 137 of title

10, United States Code:

(A) Paragraphs (1), (2), (6), and (7) of subsection (c)

of section 2304, relating to use of procedures other than

competitive procedures under certain circumstances (subject to subsection (e) of such section).

(B) Section 2304c, relating to orders under task and

delivery order contracts.

(3) OFFICE OF FEDERAL PROCUREMENT POLICY ACT.—Paragraphs (1)(B), (1)(D), and (2) of section 18(c) of the Office

of Federal Procurement Policy Act (41 U.S.C. 416(c)), relating

to inapplicability of a requirement for procurement notice.

(b) WAIVER OF CERTAIN SMALL BUSINESS THRESHOLD REQUIREMENTS.—Subclause (II) of section 8(a)(1)(D)(i) of the Small Business

Act (15 U.S.C. 637(a)(1)(D)(i)) and clause (ii) of section 31(b)(2)(A)

of such Act (15 U.S.C. 657a(b)(2)(A)) shall not apply in the use

of streamlined acquisition authorities and procedures referred to

in paragraphs (1)(A) and (2)(A) of subsection (a) for a procurement

referred to in section 852.

SEC. 857. REVIEW AND REPORT BY COMPTROLLER GENERAL.

(a) REQUIREMENTS.—Not later than March 31, 2004, the Comptroller General shall—

(1) complete a review of the extent to which procurements

of property and services have been made in accordance with

this subtitle; and

(2) submit a report on the results of the review to the

Committee on Governmental Affairs of the Senate and the

Committee on Government Reform of the House of Representatives.

(b) CONTENT OF REPORT.—The report under subsection (a)(2)

shall include the following matters:

(1) ASSESSMENT.—The Comptroller General’s assessment

of—

(A) the extent to which property and services procured

in accordance with this title have contributed to the

capacity of the workforce of Federal Government employees

Deadline.

6 USC 427.

6 USC 426.

116 STAT. 2238 PUBLIC LAW 107–296—NOV. 25, 2002

within each executive agency to carry out the mission of

the executive agency; and

(B) the extent to which Federal Government employees

have been trained on the use of technology.

(2) RECOMMENDATIONS.—Any recommendations of the

Comptroller General resulting from the assessment described

in paragraph (1).

(c) CONSULTATION.—In preparing for the review under subsection (a)(1), the Comptroller shall consult with the Committee

on Governmental Affairs of the Senate and the Committee on

Government Reform of the House of Representatives on the specific

issues and topics to be reviewed. The extent of coverage needed

in areas such as technology integration, employee training, and

human capital management, as well as the data requirements of

the study, shall be included as part of the consultation.

SEC. 858. IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL

MARKETPLACE.

The head of each executive agency shall conduct market

research on an ongoing basis to identify effectively the capabilities,

including the capabilities of small businesses and new entrants

into Federal contracting, that are available in the marketplace

for meeting the requirements of the executive agency in furtherance

of defense against or recovery from terrorism or nuclear, biological,

chemical, or radiological attack. The head of the executive agency

shall, to the maximum extent practicable, take advantage of

commercially available market research methods, including use of

commercial databases, to carry out the research.

Subtitle G—Support Anti-terrorism by Fostering Effective Technologies Act of 2002

SEC. 861. SHORT TITLE.

This subtitle may be cited as the ‘‘Support Anti-terrorism by

Fostering Effective Technologies Act of 2002’’ or the ‘‘SAFETY Act’’.

SEC. 862. ADMINISTRATION.

(a) IN GENERAL.—The Secretary shall be responsible for the

administration of this subtitle.

(b) DESIGNATION OF QUALIFIED ANTI-TERRORISM TECHNOLOGIES.—The Secretary may designate anti-terrorism technologies that qualify for protection under the system of risk management set forth in this subtitle in accordance with criteria that

shall include, but not be limited to, the following:

(1) Prior United States Government use or demonstrated

substantial utility and effectiveness.

(2) Availability of the technology for immediate deployment

in public and private settings.

(3) Existence of extraordinarily large or extraordinarily

unquantifiable potential third party liability risk exposure to

the Seller or other provider of such anti-terrorism technology.

(4) Substantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system

of risk management provided under this subtitle are extended.

(5) Magnitude of risk exposure to the public if such antiterrorism technology is not deployed.

6 USC 441.

6 USC 101 note.

Support Antiterrorism by

Fostering

Effective

Technologies Act

of 2002.

6 USC 428.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2239

(6) Evaluation of all scientific studies that can be feasibly

conducted in order to assess the capability of the technology

to substantially reduce risks of harm.

(7) Anti-terrorism technology that would be effective in

facilitating the defense against acts of terrorism, including technologies that prevent, defeat or respond to such acts.

(c) REGULATIONS.—The Secretary may issue such regulations,

after notice and comment in accordance with section 553 of title

5, United States Code, as may be necessary to carry out this

subtitle.

SEC. 863. LITIGATION MANAGEMENT.

(a) FEDERAL CAUSE OF ACTION.—

(1) IN GENERAL.—There shall exist a Federal cause of action

for claims arising out of, relating to, or resulting from an

act of terrorism when qualified anti-terrorism technologies have

been deployed in defense against or response or recovery from

such act and such claims result or may result in loss to the

Seller. The substantive law for decision in any such action

shall be derived from the law, including choice of law principles,

of the State in which such acts of terrorism occurred, unless

such law is inconsistent with or preempted by Federal law.

Such Federal cause of action shall be brought only for claims

for injuries that are proximately caused by sellers that provide

qualified anti-terrorism technology to Federal and non-Federal

government customers.

(2) JURISDICTION.—Such appropriate district court of the

United States shall have original and exclusive jurisdiction

over all actions for any claim for loss of property, personal

injury, or death arising out of, relating to, or resulting from

an act of terrorism when qualified anti-terrorism technologies

have been deployed in defense against or response or recovery

from such act and such claims result or may result in loss

to the Seller.

(b) SPECIAL RULES.—In an action brought under this section

for damages the following provisions apply:

(1) PUNITIVE DAMAGES.—No punitive damages intended to

punish or deter, exemplary damages, or other damages not

intended to compensate a plaintiff for actual losses may be

awarded, nor shall any party be liable for interest prior to

the judgment.

(2) NONECONOMIC DAMAGES.—

(A) IN GENERAL.—Noneconomic damages may be

awarded against a defendant only in an amount directly

proportional to the percentage of responsibility of such

defendant for the harm to the plaintiff, and no plaintiff

may recover noneconomic damages unless the plaintiff suffered physical harm.

(B) DEFINITION.—For purposes of subparagraph (A),

the term ‘‘noneconomic damages’’ means damages for losses

for physical and emotional pain, suffering, inconvenience,

physical impairment, mental anguish, disfigurement, loss

of enjoyment of life, loss of society and companionship,

loss of consortium, hedonic damages, injury to reputation,

and any other nonpecuniary losses.

6 USC 442.

116 STAT. 2240 PUBLIC LAW 107–296—NOV. 25, 2002

(c) COLLATERAL SOURCES.—Any recovery by a plaintiff in an

action under this section shall be reduced by the amount of collateral source compensation, if any, that the plaintiff has received

or is entitled to receive as a result of such acts of terrorism that

result or may result in loss to the Seller.

(d) GOVERNMENT CONTRACTOR DEFENSE.—

(1) IN GENERAL.—Should a product liability or other lawsuit

be filed for claims arising out of, relating to, or resulting from

an act of terrorism when qualified anti-terrorism technologies

approved by the Secretary, as provided in paragraphs (2) and

(3) of this subsection, have been deployed in defense against

or response or recovery from such act and such claims result

or may result in loss to the Seller, there shall be a rebuttable

presumption that the government contractor defense applies

in such lawsuit. This presumption shall only be overcome by

evidence showing that the Seller acted fraudulently or with

willful misconduct in submitting information to the Secretary

during the course of the Secretary’s consideration of such technology under this subsection. This presumption of the government contractor defense shall apply regardless of whether the

claim against the Seller arises from a sale of the product

to Federal Government or non-Federal Government customers.

(2) EXCLUSIVE RESPONSIBILITY.—The Secretary will be

exclusively responsible for the review and approval of antiterrorism technology for purposes of establishing a government

contractor defense in any product liability lawsuit for claims

arising out of, relating to, or resulting from an act of terrorism

when qualified anti-terrorism technologies approved by the Secretary, as provided in this paragraph and paragraph (3), have

been deployed in defense against or response or recovery from

such act and such claims result or may result in loss to the

Seller. Upon the Seller’s submission to the Secretary for

approval of anti-terrorism technology, the Secretary will conduct a comprehensive review of the design of such technology

and determine whether it will perform as intended, conforms

to the Seller’s specifications, and is safe for use as intended.

The Seller will conduct safety and hazard analyses on such

technology and will supply the Secretary with all such information.

(3) CERTIFICATE.—For anti-terrorism technology reviewed

and approved by the Secretary, the Secretary will issue a

certificate of conformance to the Seller and place the antiterrorism technology on an Approved Product List for Homeland

Security.

(e) EXCLUSION.—Nothing in this section shall in any way limit

the ability of any person to seek any form of recovery from any

person, government, or other entity that—

(1) attempts to commit, knowingly participates in, aids

and abets, or commits any act of terrorism, or any criminal

act related to or resulting from such act of terrorism; or

(2) participates in a conspiracy to commit any such act

of terrorism or any such criminal act.

SEC. 864. RISK MANAGEMENT.

(a) IN GENERAL.—

6 USC 443.

Applicability.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2241

(1) LIABILITY INSURANCE REQUIRED.—Any person or entity

that sells or otherwise provides a qualified anti-terrorism technology to Federal and non-Federal Government customers

(‘‘Seller’’) shall obtain liability insurance of such types and

in such amounts as shall be required in accordance with this

section and certified by the Secretary to satisfy otherwise

compensable third-party claims arising out of, relating to, or

resulting from an act of terrorism when qualified anti-terrorism

technologies have been deployed in defense against or response

or recovery from such act.

(2) MAXIMUM AMOUNT.—For the total claims related to

1 such act of terrorism, the Seller is not required to obtain

liability insurance of more than the maximum amount of

liability insurance reasonably available from private sources

on the world market at prices and terms that will not unreasonably distort the sales price of Seller’s anti-terrorism technologies.

(3) SCOPE OF COVERAGE.—Liability insurance obtained

pursuant to this subsection shall, in addition to the Seller,

protect the following, to the extent of their potential liability

for involvement in the manufacture, qualification, sale, use,

or operation of qualified anti-terrorism technologies deployed

in defense against or response or recovery from an act of

terrorism:

(A) Contractors, subcontractors, suppliers, vendors and

customers of the Seller.

(B) Contractors, subcontractors, suppliers, and vendors

of the customer.

(4) THIRD PARTY CLAIMS.—Such liability insurance under

this section shall provide coverage against third party claims

arising out of, relating to, or resulting from the sale or use

of anti-terrorism technologies.

(b) RECIPROCAL WAIVER OF CLAIMS.—The Seller shall enter

into a reciprocal waiver of claims with its contractors, subcontractors, suppliers, vendors and customers, and contractors and subcontractors of the customers, involved in the manufacture, sale,

use or operation of qualified anti-terrorism technologies, under

which each party to the waiver agrees to be responsible for losses,

including business interruption losses, that it sustains, or for losses

sustained by its own employees resulting from an activity resulting

from an act of terrorism when qualified anti-terrorism technologies

have been deployed in defense against or response or recovery

from such act.

(c) EXTENT OF LIABILITY.—Notwithstanding any other provision

of law, liability for all claims against a Seller arising out of, relating

to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or

response or recovery from such act and such claims result or may

result in loss to the Seller, whether for compensatory or punitive

damages or for contribution or indemnity, shall not be in an amount

greater than the limits of liability insurance coverage required

to be maintained by the Seller under this section.

SEC. 865. DEFINITIONS.

For purposes of this subtitle, the following definitions apply:

(1) QUALIFIED ANTI-TERRORISM TECHNOLOGY.—For purposes

of this subtitle, the term ‘‘qualified anti-terrorism technology’’

Applicability.

6 USC 444.

116 STAT. 2242 PUBLIC LAW 107–296—NOV. 25, 2002

means any product, equipment, service (including support services), device, or technology (including information technology)

designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of

terrorism or limiting the harm such acts might otherwise cause,

that is designated as such by the Secretary.

(2) ACT OF TERRORISM.—(A) The term ‘‘act of terrorism’’

means any act that the Secretary determines meets the requirements under subparagraph (B), as such requirements are further defined and specified by the Secretary.

(B) REQUIREMENTS.—An act meets the requirements of this

subparagraph if the act—

(i) is unlawful;

(ii) causes harm to a person, property, or entity, in

the United States, or in the case of a domestic United

States air carrier or a United States-flag vessel (or a vessel

based principally in the United States on which United

States income tax is paid and whose insurance coverage

is subject to regulation in the United States), in or outside

the United States; and

(iii) uses or attempts to use instrumentalities, weapons

or other methods designed or intended to cause mass

destruction, injury or other loss to citizens or institutions

of the United States.

(3) INSURANCE CARRIER.—The term ‘‘insurance carrier’’

means any corporation, association, society, order, firm, company, mutual, partnership, individual aggregation of individuals, or any other legal entity that provides commercial property and casualty insurance. Such term includes any affiliates

of a commercial insurance carrier.

(4) LIABILITY INSURANCE.—

(A) IN GENERAL.—The term ‘‘liability insurance’’ means

insurance for legal liabilities incurred by the insured

resulting from—

(i) loss of or damage to property of others;

(ii) ensuing loss of income or extra expense

incurred because of loss of or damage to property of

others;

(iii) bodily injury (including) to persons other than

the insured or its employees; or

(iv) loss resulting from debt or default of another.

(5) LOSS.—The term ‘‘loss’’ means death, bodily injury, or

loss of or damage to property, including business interruption

loss.

(6) NON-FEDERAL GOVERNMENT CUSTOMERS.—The term

‘‘non-Federal Government customers’’ means any customer of

a Seller that is not an agency or instrumentality of the United

States Government with authority under Public Law 85–804

to provide for indemnification under certain circumstances for

third-party claims against its contractors, including but not

limited to State and local authorities and commercial entities.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2243

Subtitle H—Miscellaneous Provisions

SEC. 871. ADVISORY COMMITTEES.

(a) IN GENERAL.—The Secretary may establish, appoint members of, and use the services of, advisory committees, as the Secretary may deem necessary. An advisory committee established

under this section may be exempted by the Secretary from Public

Law 92–463, but the Secretary shall publish notice in the Federal

Register announcing the establishment of such a committee and

identifying its purpose and membership. Notwithstanding the preceding sentence, members of an advisory committee that is

exempted by the Secretary under the preceding sentence who are

special Government employees (as that term is defined in section

202 of title 18, United States Code) shall be eligible for certifications

under subsection (b)(3) of section 208 of title 18, United States

Code, for official actions taken as a member of such advisory committee.

(b) TERMINATION.—Any advisory committee established by the

Secretary shall terminate 2 years after the date of its establishment,

unless the Secretary makes a written determination to extend the

advisory committee to a specified date, which shall not be more

than 2 years after the date on which such determination is made.

The Secretary may make any number of subsequent extensions

consistent with this subsection.

SEC. 872. REORGANIZATION.

(a) REORGANIZATION.—The Secretary may allocate or reallocate

functions among the officers of the Department, and may establish,

consolidate, alter, or discontinue organizational units within the

Department, but only—

(1) pursuant to section 1502(b); or

(2) after the expiration of 60 days after providing notice

of such action to the appropriate congressional committees,

which shall include an explanation of the rationale for the

action.

(b) LIMITATIONS.—

(1) IN GENERAL.—Authority under subsection (a)(1) does

not extend to the abolition of any agency, entity, organizational

unit, program, or function established or required to be maintained by this Act.

(2) ABOLITIONS.—Authority under subsection (a)(2) does

not extend to the abolition of any agency, entity, organizational

unit, program, or function established or required to be maintained by statute.

SEC. 873. USE OF APPROPRIATED FUNDS.

(a) DISPOSAL OF PROPERTY.—

(1) STRICT COMPLIANCE.—If specifically authorized to dispose of real property in this or any other Act, the Secretary

shall exercise this authority in strict compliance with section

204 of the Federal Property and Administrative Services Act

of 1949 (40 U.S.C. 485).

(2) DEPOSIT OF PROCEEDS.—The Secretary shall deposit

the proceeds of any exercise of property disposal authority

into the miscellaneous receipts of the Treasury in accordance

with section 3302(b) of title 31, United States Code.

6 USC 453.

6 USC 452.

6 USC 451.

116 STAT. 2244 PUBLIC LAW 107–296—NOV. 25, 2002

(b) GIFTS.—Gifts or donations of services or property of or

for the Department may not be accepted, used, or disposed of

unless specifically permitted in advance in an appropriations Act

and only under the conditions and for the purposes specified in

such appropriations Act.

(c) BUDGET REQUEST.—Under section 1105 of title 31, United

States Code, the President shall submit to Congress a detailed

budget request for the Department for fiscal year 2004, and for

each subsequent fiscal year.

SEC. 874. FUTURE YEAR HOMELAND SECURITY PROGRAM.

(a) IN GENERAL.—Each budget request submitted to Congress

for the Department under section 1105 of title 31, United States

Code, shall, at or about the same time, be accompanied by a

Future Years Homeland Security Program.

(b) CONTENTS.—The Future Years Homeland Security Program

under subsection (a) shall be structured, and include the same

type of information and level of detail, as the Future Years Defense

Program submitted to Congress by the Department of Defense

under section 221 of title 10, United States Code.

(c) EFFECTIVE DATE.—This section shall take effect with respect

to the preparation and submission of the fiscal year 2005 budget

request for the Department and for any subsequent fiscal year,

except that the first Future Years Homeland Security Program

shall be submitted not later than 90 days after the Department’s

fiscal year 2005 budget request is submitted to Congress.

SEC. 875. MISCELLANEOUS AUTHORITIES.

(a) SEAL.—The Department shall have a seal, whose design

is subject to the approval of the President.

(b) PARTICIPATION OF MEMBERS OF THE ARMED FORCES.—With

respect to the Department, the Secretary shall have the same

authorities that the Secretary of Transportation has with respect

to the Department of Transportation under section 324 of title

49, United States Code.

(c) REDELEGATION OF FUNCTIONS.—Unless otherwise provided

in the delegation or by law, any function delegated under this

Act may be redelegated to any subordinate.

SEC. 876. MILITARY ACTIVITIES.

Nothing in this Act shall confer upon the Secretary any

authority to engage in warfighting, the military defense of the

United States, or other military activities, nor shall anything in

this Act limit the existing authority of the Department of Defense

or the Armed Forces to engage in warfighting, the military defense

of the United States, or other military activities.

SEC. 877. REGULATORY AUTHORITY AND PREEMPTION.

(a) REGULATORY AUTHORITY.—Except as otherwise provided in

sections 306(c), 862(c), and 1706(b), this Act vests no new regulatory

authority in the Secretary or any other Federal official, and transfers to the Secretary or another Federal official only such regulatory

authority as exists on the date of enactment of this Act within

any agency, program, or function transferred to the Department

pursuant to this Act, or that on such date of enactment is exercised

by another official of the executive branch with respect to such

agency, program, or function. Any such transferred authority may

not be exercised by an official from whom it is transferred upon

6 USC 457.

6 USC 456.

President.

6 USC 455.

Deadline.

6 USC 454.

President.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2245

transfer of such agency, program, or function to the Secretary

or another Federal official pursuant to this Act. This Act may

not be construed as altering or diminishing the regulatory authority

of any other executive agency, except to the extent that this Act

transfers such authority from the agency.

(b) PREEMPTION OF STATE OR LOCAL LAW.—Except as otherwise

provided in this Act, this Act preempts no State or local law,

except that any authority to preempt State or local law vested

in any Federal agency or official transferred to the Department

pursuant to this Act shall be transferred to the Department effective

on the date of the transfer to the Department of that Federal

agency or official.

SEC. 878. COUNTERNARCOTICS OFFICER.

The Secretary shall appoint a senior official in the Department

to assume primary responsibility for coordinating policy and operations within the Department and between the Department and

other Federal departments and agencies with respect to interdicting

the entry of illegal drugs into the United States, and tracking

and severing connections between illegal drug trafficking and terrorism. Such official shall—

(1) ensure the adequacy of resources within the Department

for illicit drug interdiction; and

(2) serve as the United States Interdiction Coordinator

for the Director of National Drug Control Policy.

SEC. 879. OFFICE OF INTERNATIONAL AFFAIRS.

(a) ESTABLISHMENT.—There is established within the Office

of the Secretary an Office of International Affairs. The Office shall

be headed by a Director, who shall be a senior official appointed

by the Secretary.

(b) DUTIES OF THE DIRECTOR.—The Director shall have the

following duties:

(1) To promote information and education exchange with

nations friendly to the United States in order to promote

sharing of best practices and technologies relating to homeland

security. Such exchange shall include the following:

(A) Exchange of information on research and development on homeland security technologies.

(B) Joint training exercises of first responders.

(C) Exchange of expertise on terrorism prevention,

response, and crisis management.

(2) To identify areas for homeland security information

and training exchange where the United States has a demonstrated weakness and another friendly nation or nations

have a demonstrated expertise.

(3) To plan and undertake international conferences,

exchange programs, and training activities.

(4) To manage international activities within the Department in coordination with other Federal officials with responsibility for counter-terrorism matters.

SEC. 880. PROHIBITION OF THE TERRORISM INFORMATION AND

PREVENTION SYSTEM.

Any and all activities of the Federal Government to implement

the proposed component program of the Citizen Corps known as

Operation TIPS (Terrorism Information and Prevention System)

are hereby prohibited.

6 USC 460.

6 USC 459.

6 USC 458.

116 STAT. 2246 PUBLIC LAW 107–296—NOV. 25, 2002

SEC. 881. REVIEW OF PAY AND BENEFIT PLANS.

Notwithstanding any other provision of this Act, the Secretary

shall, in consultation with the Director of the Office of Personnel

Management, review the pay and benefit plans of each agency

whose functions are transferred under this Act to the Department

and, within 90 days after the date of enactment, submit a plan

to the President of the Senate and the Speaker of the House

of Representatives and the appropriate committees and subcommittees of Congress, for ensuring, to the maximum extent practicable,

the elimination of disparities in pay and benefits throughout the

Department, especially among law enforcement personnel, that are

inconsistent with merit system principles set forth in section 2301

of title 5, United States Code.

SEC. 882. OFFICE FOR NATIONAL CAPITAL REGION COORDINATION.

(a) ESTABLISHMENT.—

(1) IN GENERAL.—There is established within the Office

of the Secretary the Office of National Capital Region Coordination, to oversee and coordinate Federal programs for and relationships with State, local, and regional authorities in the

National Capital Region, as defined under section 2674(f)(2)

of title 10, United States Code.

(2) DIRECTOR.—The Office established under paragraph (1)

shall be headed by a Director, who shall be appointed by

the Secretary.

(3) COOPERATION.—The Secretary shall cooperate with the

Mayor of the District of Columbia, the Governors of Maryland

and Virginia, and other State, local, and regional officers in

the National Capital Region to integrate the District of

Columbia, Maryland, and Virginia into the planning, coordination, and execution of the activities of the Federal Government

for the enhancement of domestic preparedness against the consequences of terrorist attacks.

(b) RESPONSIBILITIES.—The Office established under subsection

(a)(1) shall—

(1) coordinate the activities of the Department relating

to the National Capital Region, including cooperation with the

Office for State and Local Government Coordination;

(2) assess, and advocate for, the resources needed by State,

local, and regional authorities in the National Capital Region

to implement efforts to secure the homeland;

(3) provide State, local, and regional authorities in the

National Capital Region with regular information, research,

and technical support to assist the efforts of State, local, and

regional authorities in the National Capital Region in securing

the homeland;

(4) develop a process for receiving meaningful input from

State, local, and regional authorities and the private sector

in the National Capital Region to assist in the development

of the homeland security plans and activities of the Federal

Government;

(5) coordinate with Federal agencies in the National Capital

Region on terrorism preparedness, to ensure adequate planning,

information sharing, training, and execution of the Federal

role in domestic preparedness activities;

(6) coordinate with Federal, State, local, and regional agencies, and the private sector in the National Capital Region

6 USC 462.

Deadline.

6 USC 461.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2247

on terrorism preparedness to ensure adequate planning,

information sharing, training, and execution of domestic

preparedness activities among these agencies and entities; and

(7) serve as a liaison between the Federal Government

and State, local, and regional authorities, and private sector

entities in the National Capital Region to facilitate access to

Federal grants and other programs.

(c) ANNUAL REPORT.—The Office established under subsection

(a) shall submit an annual report to Congress that includes— (1) the identification of the resources required to fully

implement homeland security efforts in the National Capital

Region;

(2) an assessment of the progress made by the National

Capital Region in implementing homeland security efforts; and

(3) recommendations to Congress regarding the additional

resources needed to fully implement homeland security efforts

in the National Capital Region.

(d) LIMITATION.—Nothing contained in this section shall be

construed as limiting the power of State and local governments.

SEC. 883. REQUIREMENT TO COMPLY WITH LAWS PROTECTING EQUAL

EMPLOYMENT OPPORTUNITY AND PROVIDING WHISTLEBLOWER PROTECTIONS.

Nothing in this Act shall be construed as exempting the Department from requirements applicable with respect to executive

agencies—

(1) to provide equal employment protection for employees

of the Department (including pursuant to the provisions in

section 2302(b)(1) of title 5, United States Code, and the

Notification and Federal Employee Antidiscrimination and

Retaliation Act of 2002 (Public Law 107–174)); or

(2) to provide whistleblower protections for employees of

the Department (including pursuant to the provisions in section

2302(b)(8) and (9) of such title and the Notification and Federal

Employee Antidiscrimination and Retaliation Act of 2002).

SEC. 884. FEDERAL LAW ENFORCEMENT TRAINING CENTER.

(a) IN GENERAL.—The transfer of an authority or an agency

under this Act to the Department of Homeland Security does not

affect training agreements already entered into with the Federal

Law Enforcement Training Center with respect to the training

of personnel to carry out that authority or the duties of that transferred agency.

(b) CONTINUITY OF OPERATIONS.—All activities of the Federal

Law Enforcement Training Center transferred to the Department

of Homeland Security under this Act shall continue to be carried

out at the locations such activities were carried out before such

transfer.

SEC. 885. JOINT INTERAGENCY TASK FORCE.

(a) ESTABLISHMENT.—The Secretary may establish and operate

a permanent Joint Interagency Homeland Security Task Force composed of representatives from military and civilian agencies of the

United States Government for the purposes of anticipating terrorist

threats against the United States and taking appropriate actions

to prevent harm to the United States.

(b) STRUCTURE.—It is the sense of Congress that the Secretary

should model the Joint Interagency Homeland Security Task Force

6 USC 465.

6 USC 464.

6 USC 463.

116 STAT. 2248 PUBLIC LAW 107–296—NOV. 25, 2002

on the approach taken by the Joint Interagency Task Forces for

drug interdiction at Key West, Florida and Alameda, California,

to the maximum extent feasible and appropriate.

SEC. 886. SENSE OF CONGRESS REAFFIRMING THE CONTINUED IMPORTANCE AND APPLICABILITY OF THE POSSE COMITATUS

ACT.

(a) FINDINGS.—Congress finds the following:

(1) Section 1385 of title 18, United States Code (commonly

known as the ‘‘Posse Comitatus Act’’), prohibits the use of

the Armed Forces as a posse comitatus to execute the laws

except in cases and under circumstances expressly authorized

by the Constitution or Act of Congress.

(2) Enacted in 1878, the Posse Comitatus Act was expressly

intended to prevent United States Marshals, on their own

initiative, from calling on the Army for assistance in enforcing

Federal law.

(3) The Posse Comitatus Act has served the Nation well

in limiting the use of the Armed Forces to enforce the law.

(4) Nevertheless, by its express terms, the Posse Comitatus

Act is not a complete barrier to the use of the Armed Forces

for a range of domestic purposes, including law enforcement

functions, when the use of the Armed Forces is authorized

by Act of Congress or the President determines that the use

of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of

war, insurrection, or other serious emergency.

(5) Existing laws, including chapter 15 of title 10, United

States Code (commonly known as the ‘‘Insurrection Act’’), and

the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), grant the President broad

powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons

of mass destruction, and these laws specifically authorize the

President to use the Armed Forces to help restore public order.

(b) SENSE OF CONGRESS.—Congress reaffirms the continued

importance of section 1385 of title 18, United States Code, and

it is the sense of Congress that nothing in this Act should be

construed to alter the applicability of such section to any use

of the Armed Forces as a posse comitatus to execute the laws.

SEC. 887. COORDINATION WITH THE DEPARTMENT OF HEALTH AND

HUMAN SERVICES UNDER THE PUBLIC HEALTH SERVICE

ACT.

(a) IN GENERAL.—The annual Federal response plan developed

by the Department shall be consistent with section 319 of the

Public Health Service Act (42 U.S.C. 247d).

(b) DISCLOSURES AMONG RELEVANT AGENCIES.— (1) IN GENERAL.—Full disclosure among relevant agencies

shall be made in accordance with this subsection.

(2) PUBLIC HEALTH EMERGENCY.—During the period in

which the Secretary of Health and Human Services has

declared the existence of a public health emergency under

section 319(a) of the Public Health Service Act (42 U.S.C.

247d(a)), the Secretary of Health and Human Services shall

keep relevant agencies, including the Department of Homeland

Security, the Department of Justice, and the Federal Bureau

of Investigation, fully and currently informed.

6 USC 467.

6 USC 466.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2249

(3) POTENTIAL PUBLIC HEALTH EMERGENCY.—In cases

involving, or potentially involving, a public health emergency,

but in which no determination of an emergency by the Secretary

of Health and Human Services under section 319(a) of the

Public Health Service Act (42 U.S.C. 247d(a)), has been made,

all relevant agencies, including the Department of Homeland

Security, the Department of Justice, and the Federal Bureau

of Investigation, shall keep the Secretary of Health and Human

Services and the Director of the Centers for Disease Control

and Prevention fully and currently informed.

SEC. 888. PRESERVING COAST GUARD MISSION PERFORMANCE.

(a) DEFINITIONS.—In this section:

(1) NON-HOMELAND SECURITY MISSIONS.—The term ‘‘nonhomeland security missions’’ means the following missions of

the Coast Guard:

(A) Marine safety.

(B) Search and rescue.

(C) Aids to navigation.

(D) Living marine resources (fisheries law enforcement).

(E) Marine environmental protection.

(F) Ice operations.

(2) HOMELAND SECURITY MISSIONS.—The term ‘‘homeland

security missions’’ means the following missions of the Coast

Guard:

(A) Ports, waterways and coastal security.

(B) Drug interdiction.

(C) Migrant interdiction.

(D) Defense readiness.

(E) Other law enforcement.

(b) TRANSFER.—There are transferred to the Department the

authorities, functions, personnel, and assets of the Coast Guard,

which shall be maintained as a distinct entity within the Department, including the authorities and functions of the Secretary of

Transportation relating thereto.

(c) MAINTENANCE OF STATUS OF FUNCTIONS AND ASSETS.—Notwithstanding any other provision of this Act, the authorities, functions, and capabilities of the Coast Guard to perform its missions

shall be maintained intact and without significant reduction after

the transfer of the Coast Guard to the Department, except as

specified in subsequent Acts.

(d) CERTAIN TRANSFERS PROHIBITED.—No mission, function, or

asset (including for purposes of this subsection any ship, aircraft,

or helicopter) of the Coast Guard may be diverted to the principal

and continuing use of any other organization, unit, or entity of

the Department, except for details or assignments that do not

reduce the Coast Guard’s capability to perform its missions.

(e) CHANGES TO MISSIONS.—

(1) PROHIBITION.—The Secretary may not substantially or

significantly reduce the missions of the Coast Guard or the

Coast Guard’s capability to perform those missions, except as

specified in subsequent Acts.

(2) WAIVER.—The Secretary may waive the restrictions

under paragraph (1) for a period of not to exceed 90 days

upon a declaration and certification by the Secretary to Congress that a clear, compelling, and immediate need exists for

6 USC 468.

116 STAT. 2250 PUBLIC LAW 107–296—NOV. 25, 2002

such a waiver. A certification under this paragraph shall

include a detailed justification for the declaration and certification, including the reasons and specific information that demonstrate that the Nation and the Coast Guard cannot respond

effectively if the restrictions under paragraph (1) are not

waived.

(f) ANNUAL REVIEW.—

(1) IN GENERAL.—The Inspector General of the Department

shall conduct an annual review that shall assess thoroughly

the performance by the Coast Guard of all missions of the

Coast Guard (including non-homeland security missions and

homeland security missions) with a particular emphasis on

examining the non-homeland security missions.

(2) REPORT.—The report under this paragraph shall be

submitted to—

(A) the Committee on Governmental Affairs of the

Senate;

(B) the Committee on Government Reform of the House

of Representatives;

(C) the Committees on Appropriations of the Senate

and the House of Representatives;

(D) the Committee on Commerce, Science, and

Transportation of the Senate; and

(E) the Committee on Transportation and Infrastructure of the House of Representatives.

(g) DIRECT REPORTING TO SECRETARY.—Upon the transfer of

the Coast Guard to the Department, the Commandant shall report

directly to the Secretary without being required to report through

any other official of the Department.

(h) OPERATION AS A SERVICE IN THE NAVY.—None of the conditions and restrictions in this section shall apply when the Coast

Guard operates as a service in the Navy under section 3 of title

14, United States Code.

(i) REPORT ON ACCELERATING THE INTEGRATED DEEPWATER

SYSTEM.—Not later than 90 days after the date of enactment of

this Act, the Secretary, in consultation with the Commandant of

the Coast Guard, shall submit a report to the Committee on Commerce, Science, and Transportation of the Senate, the Committee

on Transportation and Infrastructure of the House of Representatives, and the Committees on Appropriations of the Senate and

the House of Representatives that—

(1) analyzes the feasibility of accelerating the rate of

procurement in the Coast Guard’s Integrated Deepwater

System from 20 years to 10 years;

(2) includes an estimate of additional resources required;

(3) describes the resulting increased capabilities;

(4) outlines any increases in the Coast Guard’s homeland

security readiness;

(5) describes any increases in operational efficiencies; and

(6) provides a revised asset phase-in time line.

SEC. 889. HOMELAND SECURITY FUNDING ANALYSIS IN PRESIDENT’S

BUDGET.

(a) IN GENERAL.—Section 1105(a) of title 31, United States

Code, is amended by adding at the end the following:

Deadline.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2251

‘‘(33)(A)(i) a detailed, separate analysis, by budget function,

by agency, and by initiative area (as determined by the administration) for the prior fiscal year, the current fiscal year, the

fiscal years for which the budget is submitted, and the ensuing

fiscal year identifying the amounts of gross and net appropriations or obligational authority and outlays that contribute to

homeland security, with separate displays for mandatory and

discretionary amounts, including—

‘‘(I) summaries of the total amount of such appropriations or new obligational authority and outlays requested

for homeland security;

‘‘(II) an estimate of the current service levels of homeland security spending;

‘‘(III) the most recent risk assessment and summary

of homeland security needs in each initiative area (as determined by the administration); and

‘‘(IV) an estimate of user fees collected by the Federal

Government on behalf of homeland security activities;

‘‘(ii) with respect to subclauses (I) through (IV) of clause

(i), amounts shall be provided by account for each program,

project and activity; and

‘‘(iii) an estimate of expenditures for homeland security

activities by State and local governments and the private sector

for the prior fiscal year and the current fiscal year.

‘‘(B) In this paragraph, consistent with the Office of

Management and Budget’s June 2002 ‘Annual Report to Congress on Combatting Terrorism’, the term ‘homeland security’

refers to those activities that detect, deter, protect against,

and respond to terrorist attacks occurring within the United

States and its territories.

‘‘(C) In implementing this paragraph, including determining what Federal activities or accounts constitute homeland

security for purposes of budgetary classification, the Office of

Management and Budget is directed to consult periodically,

but at least annually, with the House and Senate Budget

Committees, the House and Senate Appropriations Committees,

and the Congressional Budget Office.’’.

(b) REPEAL OF DUPLICATIVE REPORTS.—The following sections

are repealed:

(1) Section 1051 of Public Law 105–85.

(2) Section 1403 of Public Law 105–261.

(c) EFFECTIVE DATE.—This section and the amendment made

by this section shall apply beginning with respect to the fiscal

year 2005 budget submission.

SEC. 890. AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION

ACT.

The Air Transportation Safety and System Stabilization Act

(49 U.S.C. 40101 note) is amended—

(1) in section 408 by striking the last sentence of subsection

(c); and

(2) in section 402 by striking paragraph (1) and inserting

the following:

‘‘(1) AIR CARRIER.—The term ‘air carrier’ means a citizen

of the United States undertaking by any means, directly or

indirectly, to provide air transportation and includes employees

Applicability.

31 USC 1105

note.

50 USC 2301

note.

31 USC 1113

note.

116 STAT. 2252 PUBLIC LAW 107–296—NOV. 25, 2002

and agents (including persons engaged in the business of providing air transportation security and their affiliates) of such

citizen. For purposes of the preceding sentence, the term ‘agent’, as applied to persons engaged in the business of providing

air transportation security, shall only include persons that have

contracted directly with the Federal Aviation Administration

on or after and commenced services no later than February

17, 2002, to provide such security, and had not been or are

not debarred for any period within 6 months from that date.’’.

Subtitle I—Information Sharing

SEC. 891. SHORT TITLE; FINDINGS; AND SENSE OF CONGRESS.

(a) SHORT TITLE.—This subtitle may be cited as the ‘‘Homeland

Security Information Sharing Act’’. (b) FINDINGS.—Congress finds the following:

(1) The Federal Government is required by the Constitution

to provide for the common defense, which includes terrorist

attack.

(2) The Federal Government relies on State and local personnel to protect against terrorist attack.

(3) The Federal Government collects, creates, manages,

and protects classified and sensitive but unclassified information to enhance homeland security.

(4) Some homeland security information is needed by the

State and local personnel to prevent and prepare for terrorist

attack.

(5) The needs of State and local personnel to have access

to relevant homeland security information to combat terrorism

must be reconciled with the need to preserve the protected

status of such information and to protect the sources and

methods used to acquire such information.

(6) Granting security clearances to certain State and local

personnel is one way to facilitate the sharing of information

regarding specific terrorist threats among Federal, State, and

local levels of government.

(7) Methods exist to declassify, redact, or otherwise adapt

classified information so it may be shared with State and

local personnel without the need for granting additional security

clearances.

(8) State and local personnel have capabilities and

opportunities to gather information on suspicious activities and

terrorist threats not possessed by Federal agencies.

(9) The Federal Government and State and local governments and agencies in other jurisdictions may benefit from

such information.

(10) Federal, State, and local governments and intelligence,

law enforcement, and other emergency preparation and

response agencies must act in partnership to maximize the

benefits of information gathering and analysis to prevent and

respond to terrorist attacks.

(11) Information systems, including the National Law

Enforcement Telecommunications System and the Terrorist

Threat Warning System, have been established for rapid

sharing of classified and sensitive but unclassified information

among Federal, State, and local entities.

6 USC 481.

Homeland

Security

Information

Sharing Act.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2253

(12) Increased efforts to share homeland security information should avoid duplicating existing information systems.

(c) SENSE OF CONGRESS.—It is the sense of Congress that

Federal, State, and local entities should share homeland security

information to the maximum extent practicable, with special

emphasis on hard-to-reach urban and rural communities.

SEC. 892. FACILITATING HOMELAND SECURITY INFORMATION

SHARING PROCEDURES.

(a) PROCEDURES FOR DETERMINING EXTENT OF SHARING OF

HOMELAND SECURITY INFORMATION.—

(1) The President shall prescribe and implement procedures

under which relevant Federal agencies—

(A) share relevant and appropriate homeland security

information with other Federal agencies, including the

Department, and appropriate State and local personnel;

(B) identify and safeguard homeland security information that is sensitive but unclassified; and

(C) to the extent such information is in classified form,

determine whether, how, and to what extent to remove

classified information, as appropriate, and with which such

personnel it may be shared after such information is

removed.

(2) The President shall ensure that such procedures apply

to all agencies of the Federal Government.

(3) Such procedures shall not change the substantive

requirements for the classification and safeguarding of classified information.

(4) Such procedures shall not change the requirements

and authorities to protect sources and methods.

(b) PROCEDURES FOR SHARING OF HOMELAND SECURITY

INFORMATION.—

(1) Under procedures prescribed by the President, all appropriate agencies, including the intelligence community, shall,

through information sharing systems, share homeland security

information with Federal agencies and appropriate State and

local personnel to the extent such information may be shared,

as determined in accordance with subsection (a), together with

assessments of the credibility of such information.

(2) Each information sharing system through which

information is shared under paragraph (1) shall—

(A) have the capability to transmit unclassified or

classified information, though the procedures and recipients

for each capability may differ;

(B) have the capability to restrict delivery of information to specified subgroups by geographic location, type

of organization, position of a recipient within an organization, or a recipient’s need to know such information;

(C) be configured to allow the efficient and effective

sharing of information; and

(D) be accessible to appropriate State and local personnel.

(3) The procedures prescribed under paragraph (1) shall

establish conditions on the use of information shared under

paragraph (1)—

President.

6 USC 482.

116 STAT. 2254 PUBLIC LAW 107–296—NOV. 25, 2002

(A) to limit the redissemination of such information

to ensure that such information is not used for an

unauthorized purpose;

(B) to ensure the security and confidentiality of such

information;

(C) to protect the constitutional and statutory rights

of any individuals who are subjects of such information;

and

(D) to provide data integrity through the timely

removal and destruction of obsolete or erroneous names

and information.

(4) The procedures prescribed under paragraph (1) shall

ensure, to the greatest extent practicable, that the information

sharing system through which information is shared under

such paragraph include existing information sharing systems,

including, but not limited to, the National Law Enforcement

Telecommunications System, the Regional Information Sharing

System, and the Terrorist Threat Warning System of the Federal Bureau of Investigation.

(5) Each appropriate Federal agency, as determined by

the President, shall have access to each information sharing

system through which information is shared under paragraph

(1), and shall therefore have access to all information, as appropriate, shared under such paragraph.

(6) The procedures prescribed under paragraph (1) shall

ensure that appropriate State and local personnel are authorized to use such information sharing systems—

(A) to access information shared with such personnel;

and

(B) to share, with others who have access to such

information sharing systems, the homeland security

information of their own jurisdictions, which shall be

marked appropriately as pertaining to potential terrorist

activity.

(7) Under procedures prescribed jointly by the Director

of Central Intelligence and the Attorney General, each appropriate Federal agency, as determined by the President, shall

review and assess the information shared under paragraph

(6) and integrate such information with existing intelligence.

(c) SHARING OF CLASSIFIED INFORMATION AND SENSITIVE BUT

UNCLASSIFIED INFORMATION WITH STATE AND LOCAL PERSONNEL.—

(1) The President shall prescribe procedures under which

Federal agencies may, to the extent the President considers

necessary, share with appropriate State and local personnel

homeland security information that remains classified or otherwise protected after the determinations prescribed under the

procedures set forth in subsection (a).

(2) It is the sense of Congress that such procedures may

include 1 or more of the following means:

(A) Carrying out security clearance investigations with

respect to appropriate State and local personnel.

(B) With respect to information that is sensitive but

unclassified, entering into nondisclosure agreements with

appropriate State and local personnel.

(C) Increased use of information-sharing partnerships

that include appropriate State and local personnel, such

as the Joint Terrorism Task Forces of the Federal Bureau

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2255

of Investigation, the Anti-Terrorism Task Forces of the

Department of Justice, and regional Terrorism Early

Warning Groups.

(d) RESPONSIBLE OFFICIALS.—For each affected Federal agency,

the head of such agency shall designate an official to administer

this Act with respect to such agency.

(e) FEDERAL CONTROL OF INFORMATION.—Under procedures prescribed under this section, information obtained by a State or local

government from a Federal agency under this section shall remain

under the control of the Federal agency, and a State or local

law authorizing or requiring such a government to disclose information shall not apply to such information.

(f) DEFINITIONS.—As used in this section:

(1) The term ‘‘homeland security information’’ means any

information possessed by a Federal, State, or local agency

that— (A) relates to the threat of terrorist activity;

(B) relates to the ability to prevent, interdict, or disrupt

terrorist activity;

(C) would improve the identification or investigation

of a suspected terrorist or terrorist organization; or

(D) would improve the response to a terrorist act.

(2) The term ‘‘intelligence community’’ has the meaning

given such term in section 3(4) of the National Security Act

of 1947 (50 U.S.C. 401a(4)).

(3) The term ‘‘State and local personnel’’ means any of

the following persons involved in prevention, preparation, or

response for terrorist attack:

(A) State Governors, mayors, and other locally elected

officials.

(B) State and local law enforcement personnel and

firefighters.

(C) Public health and medical professionals.

(D) Regional, State, and local emergency management

agency personnel, including State adjutant generals.

(E) Other appropriate emergency response agency personnel.

(F) Employees of private-sector entities that affect critical infrastructure, cyber, economic, or public health security, as designated by the Federal Government in procedures developed pursuant to this section.

(4) The term ‘‘State’’ includes the District of Columbia

and any commonwealth, territory, or possession of the United

States.

(g) CONSTRUCTION.—Nothing in this Act shall be construed

as authorizing any department, bureau, agency, officer, or employee

of the Federal Government to request, receive, or transmit to any

other Government entity or personnel, or transmit to any State

or local entity or personnel otherwise authorized by this Act to

receive homeland security information, any information collected

by the Federal Government solely for statistical purposes in violation of any other provision of law relating to the confidentiality

of such information.

SEC. 893. REPORT.

(a) REPORT REQUIRED.—Not later than 12 months after the

date of the enactment of this Act, the President shall submit to

Deadline.

6 USC 483.

116 STAT. 2256 PUBLIC LAW 107–296—NOV. 25, 2002

the congressional committees specified in subsection (b) a report

on the implementation of section 892. The report shall include

any recommendations for additional measures or appropriation

requests, beyond the requirements of section 892, to increase the

effectiveness of sharing of information between and among Federal,

State, and local entities.

(b) SPECIFIED CONGRESSIONAL COMMITTEES.—The congressional

committees referred to in subsection (a) are the following committees:

(1) The Permanent Select Committee on Intelligence and

the Committee on the Judiciary of the House of Representatives.

(2) The Select Committee on Intelligence and the Committee on the Judiciary of the Senate.

SEC. 894. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may

be necessary to carry out section 892.

SEC. 895. AUTHORITY TO SHARE GRAND JURY INFORMATION.

Rule 6(e) of the Federal Rules of Criminal Procedure is

amended—

(1) in paragraph (2), by inserting ‘‘, or of guidelines jointly

issued by the Attorney General and Director of Central Intelligence pursuant to Rule 6,’’ after ‘‘Rule 6’’; and

(2) in paragraph (3)—

(A) in subparagraph (A)(ii), by inserting ‘‘or of a foreign

government’’ after ‘‘(including personnel of a state or subdivision of a state’’;

(B) in subparagraph (C)(i)—

(i) in subclause (I), by inserting before the semicolon the following: ‘‘or, upon a request by an attorney

for the government, when sought by a foreign court

or prosecutor for use in an official criminal investigation’’;

(ii) in subclause (IV)—

(I) by inserting ‘‘or foreign’’ after ‘‘may disclose

a violation of State’’;

(II) by inserting ‘‘or of a foreign government’’

after ‘‘to an appropriate official of a State or subdivision of a State’’; and

(III) by striking ‘‘or’’ at the end;

(iii) by striking the period at the end of subclause

(V) and inserting ‘‘; or’’; and

(iv) by adding at the end the following:

‘‘(VI) when matters involve a threat of actual or

potential attack or other grave hostile acts of a foreign

power or an agent of a foreign power, domestic or

international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities

by an intelligence service or network of a foreign power

or by an agent of a foreign power, within the United

States or elsewhere, to any appropriate federal, state,

local, or foreign government official for the purpose

of preventing or responding to such a threat.’’; and

(C) in subparagraph (C)(iii)—

(i) by striking ‘‘Federal’’;

18 USC app.

6 USC 484.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2257

(ii) by inserting ‘‘or clause (i)(VI)’’ after ‘‘clause

(i)(V)’’; and

(iii) by adding at the end the following: ‘‘Any state,

local, or foreign official who receives information pursuant to clause (i)(VI) shall use that information only

consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly

issue.’’.

SEC. 896. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION.

Section 2517 of title 18, United States Code, is amended by

adding at the end the following: ‘‘(7) Any investigative or law enforcement officer, or other Federal official in carrying out official duties as such Federal official,

who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication,

or evidence derived therefrom, may disclose such contents or derivative evidence to a foreign investigative or law enforcement officer

to the extent that such disclosure is appropriate to the proper

performance of the official duties of the officer making or receiving

the disclosure, and foreign investigative or law enforcement officers

may use or disclose such contents or derivative evidence to the

extent such use or disclosure is appropriate to the proper performance of their official duties. ‘‘(8) Any investigative or law enforcement officer, or other Federal official in carrying out official duties as such Federal official,

who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication,

or evidence derived therefrom, may disclose such contents or derivative evidence to any appropriate Federal, State, local, or foreign

government official to the extent that such contents or derivative

evidence reveals a threat of actual or potential attack or other

grave hostile acts of a foreign power or an agent of a foreign

power, domestic or international sabotage, domestic or international

terrorism, or clandestine intelligence gathering activities by an

intelligence service or network of a foreign power or by an agent

of a foreign power, within the United States or elsewhere, for

the purpose of preventing or responding to such a threat. Any

official who receives information pursuant to this provision may

use that information only as necessary in the conduct of that

person’s official duties subject to any limitations on the unauthorized disclosure of such information, and any State, local, or foreign

official who receives information pursuant to this provision may

use that information only consistent with such guidelines as the

Attorney General and Director of Central Intelligence shall jointly

issue.’’.

SEC. 897. FOREIGN INTELLIGENCE INFORMATION.

(a) DISSEMINATION AUTHORIZED.—Section 203(d)(1) of the

Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)

Act of 2001 (Public Law 107–56; 50 U.S.C. 403–5d) is amended

by adding at the end the following: ‘‘Consistent with the responsibility of the Director of Central Intelligence to protect intelligence

sources and methods, and the responsibility of the Attorney General

to protect sensitive law enforcement information, it shall be lawful

for information revealing a threat of actual or potential attack

116 STAT. 2258 PUBLIC LAW 107–296—NOV. 25, 2002

or other grave hostile acts of a foreign power or an agent of a

foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities

by an intelligence service or network of a foreign power or by

an agent of a foreign power, within the United States or elsewhere,

obtained as part of a criminal investigation to be disclosed to

any appropriate Federal, State, local, or foreign government official

for the purpose of preventing or responding to such a threat. Any

official who receives information pursuant to this provision may

use that information only as necessary in the conduct of that

person’s official duties subject to any limitations on the unauthorized disclosure of such information, and any State, local, or foreign

official who receives information pursuant to this provision may

use that information only consistent with such guidelines as the

Attorney General and Director of Central Intelligence shall jointly

issue.’’. (b) CONFORMING AMENDMENTS.—Section 203(c) of that Act is

amended—

(1) by striking ‘‘section 2517(6)’’ and inserting ‘‘paragraphs

(6) and (8) of section 2517 of title 18, United States Code,’’;

and

(2) by inserting ‘‘and (VI)’’ after ‘‘Rule 6(e)(3)(C)(i)(V)’’.

SEC. 898. INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEILLANCE.

Section 106(k)(1) of the Foreign Intelligence Surveillance Act

of 1978 (50 U.S.C. 1806) is amended by inserting after ‘‘law enforcement officers’’ the following: ‘‘or law enforcement personnel of a

State or political subdivision of a State (including the chief executive

officer of that State or political subdivision who has the authority

to appoint or direct the chief law enforcement officer of that State

or political subdivision)’’.

SEC. 899. INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.

Section 305(k)(1) of the Foreign Intelligence Surveillance Act

of 1978 (50 U.S.C. 1825) is amended by inserting after ‘‘law enforcement officers’’ the following: ‘‘or law enforcement personnel of a

State or political subdivision of a State (including the chief executive

officer of that State or political subdivision who has the authority

to appoint or direct the chief law enforcement officer of that State

or political subdivision)’’.

TITLE IX—NATIONAL HOMELAND

SECURITY COUNCIL

SEC. 901. NATIONAL HOMELAND SECURITY COUNCIL.

There is established within the Executive Office of the President

a council to be known as the ‘‘Homeland Security Council’’ (in

this title referred to as the ‘‘Council’’).

SEC. 902. FUNCTION.

The function of the Council shall be to advise the President

on homeland security matters.

SEC. 903. MEMBERSHIP.

The members of the Council shall be the following:

(1) The President.

6 USC 493.

6 USC 492.

Establishment.

6 USC 491.

18 USC 2517

note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2259

(2) The Vice President.

(3) The Secretary of Homeland Security.

(4) The Attorney General.

(5) The Secretary of Defense.

(6) Such other individuals as may be designated by the

President.

SEC. 904. OTHER FUNCTIONS AND ACTIVITIES.

For the purpose of more effectively coordinating the policies

and functions of the United States Government relating to homeland security, the Council shall— (1) assess the objectives, commitments, and risks of the

United States in the interest of homeland security and to

make resulting recommendations to the President;

(2) oversee and review homeland security policies of the

Federal Government and to make resulting recommendations

to the President; and

(3) perform such other functions as the President may

direct.

SEC. 905. STAFF COMPOSITION.

The Council shall have a staff, the head of which shall be

a civilian Executive Secretary, who shall be appointed by the President. The President is authorized to fix the pay of the Executive

Secretary at a rate not to exceed the rate of pay payable to the

Executive Secretary of the National Security Council.

SEC. 906. RELATION TO THE NATIONAL SECURITY COUNCIL.

The President may convene joint meetings of the Homeland

Security Council and the National Security Council with participation by members of either Council or as the President may otherwise

direct.

TITLE X—INFORMATION SECURITY

SEC. 1001. INFORMATION SECURITY.

(a) SHORT TITLE.—This title may be cited as the ‘‘Federal

Information Security Management Act of 2002’’.

(b) INFORMATION SECURITY.—

(1) IN GENERAL.—Subchapter II of chapter 35 of title 44,

United States Code, is amended to read as follows:

‘‘SUBCHAPTER II—INFORMATION SECURITY

‘‘§ 3531. Purposes

‘‘The purposes of this subchapter are to—

‘‘(1) provide a comprehensive framework for ensuring the

effectiveness of information security controls over information

resources that support Federal operations and assets;

‘‘(2) recognize the highly networked nature of the current

Federal computing environment and provide effective

governmentwide management and oversight of the related

information security risks, including coordination of information

security efforts throughout the civilian, national security, and

law enforcement communities;

6 USC 101 note.

Federal

Information

Security

Management Act

of 2002.

6 USC 496.

President.

6 USC 495.

6 USC 494.

116 STAT. 2260 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(3) provide for development and maintenance of minimum

controls required to protect Federal information and information systems; ‘‘(4) provide a mechanism for improved oversight of Federal

agency information security programs;

‘‘(5) acknowledge that commercially developed information

security products offer advanced, dynamic, robust, and effective

information security solutions, reflecting market solutions for

the protection of critical information infrastructures important

to the national defense and economic security of the nation

that are designed, built, and operated by the private sector;

and

‘‘(6) recognize that the selection of specific technical hardware and software information security solutions should be

left to individual agencies from among commercially developed

products.’’.

‘‘§ 3532. Definitions

‘‘(a) IN GENERAL.—Except as provided under subsection (b),

the definitions under section 3502 shall apply to this subchapter.

‘‘(b) ADDITIONAL DEFINITIONS.—As used in this subchapter—

‘‘(1) the term ‘information security’ means protecting

information and information systems from unauthorized access,

use, disclosure, disruption, modification, or destruction in order

to provide—

‘‘(A) integrity, which means guarding against improper

information modification or destruction, and includes

ensuring information nonrepudiation and authenticity;

‘‘(B) confidentiality, which means preserving authorized restrictions on access and disclosure, including means

for protecting personal privacy and proprietary information;

‘‘(C) availability, which means ensuring timely and

reliable access to and use of information; and

‘‘(D) authentication, which means utilizing digital

credentials to assure the identity of users and validate

their access;

‘‘(2) the term ‘national security system’ means any information system (including any telecommunications system) used

or operated by an agency or by a contractor of an agency,

or other organization on behalf of an agency, the function,

operation, or use of which—

‘‘(A) involves intelligence activities;

‘‘(B) involves cryptologic activities related to national

security;

‘‘(C) involves command and control of military forces;

‘‘(D) involves equipment that is an integral part of

a weapon or weapons system; or

‘‘(E) is critical to the direct fulfillment of military or

intelligence missions provided that this definition does not

apply to a system that is used for routine administrative

and business applications (including payroll, finance, logistics, and personnel management applications);

‘‘(3) the term ‘information technology’ has the meaning

given that term in section 11101 of title 40; and

‘‘(4) the term ‘information system’ means any equipment

or interconnected system or subsystems of equipment that is

used in the automatic acquisition, storage, manipulation,

Applicability.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2261

management, movement, control, display, switching, interchange, transmission, or reception of data or information, and

includes—

‘‘(A) computers and computer networks;

‘‘(B) ancillary equipment;

‘‘(C) software, firmware, and related procedures;

‘‘(D) services, including support services; and

‘‘(E) related resources.

‘‘§ 3533. Authority and functions of the Director

‘‘(a) The Director shall oversee agency information security

policies and practices, by—

‘‘(1) promulgating information security standards under

section 11331 of title 40;

‘‘(2) overseeing the implementation of policies, principles,

standards, and guidelines on information security;

‘‘(3) requiring agencies, consistent with the standards

promulgated under such section 11331 and the requirements

of this subchapter, to identify and provide information security

protections commensurate with the risk and magnitude of the

harm resulting from the unauthorized access, use, disclosure,

disruption, modification, or destruction of—

‘‘(A) information collected or maintained by or on behalf

of an agency; or

‘‘(B) information systems used or operated by an agency

or by a contractor of an agency or other organization on

behalf of an agency;

‘‘(4) coordinating the development of standards and guidelines under section 20 of the National Institute of Standards

and Technology Act (15 U.S.C. 278g–3) with agencies and offices

operating or exercising control of national security systems

(including the National Security Agency) to assure, to the maximum extent feasible, that such standards and guidelines are

complementary with standards and guidelines developed for

national security systems;

‘‘(5) overseeing agency compliance with the requirements

of this subchapter, including through any authorized action

under section 11303(b)(5) of title 40, to enforce accountability

for compliance with such requirements;

‘‘(6) reviewing at least annually, and approving or disapproving, agency information security programs required

under section 3534(b);

‘‘(7) coordinating information security policies and procedures with related information resources management policies

and procedures; and

‘‘(8) reporting to Congress no later than March 1 of each

year on agency compliance with the requirements of this subchapter, including—

‘‘(A) a summary of the findings of evaluations required

by section 3535;

‘‘(B) significant deficiencies in agency information security practices;

‘‘(C) planned remedial action to address such deficiencies; and

‘‘(D) a summary of, and the views of the Director

on, the report prepared by the National Institute of Standards and Technology under section 20(d)(9) of the National

Reports.

Deadline.

116 STAT. 2262 PUBLIC LAW 107–296—NOV. 25, 2002

Institute of Standards and Technology Act (15 U.S.C. 278g–

3).

‘‘(b) Except for the authorities described in paragraphs (4) and

(7) of subsection (a), the authorities of the Director under this

section shall not apply to national security systems.

‘‘§ 3534. Federal agency responsibilities

‘‘(a) The head of each agency shall—

‘‘(1) be responsible for—

‘‘(A) providing information security protections

commensurate with the risk and magnitude of the harm

resulting from unauthorized access, use, disclosure, disruption, modification, or destruction of—

‘‘(i) information collected or maintained by or on

behalf of the agency; and

‘‘(ii) information systems used or operated by an

agency or by a contractor of an agency or other

organization on behalf of an agency;

‘‘(B) complying with the requirements of this subchapter and related policies, procedures, standards, and

guidelines, including—

‘‘(i) information security standards promulgated by

the Director under section 11331 of title 40; and

‘‘(ii) information security standards and guidelines

for national security systems issued in accordance with

law and as directed by the President; and

‘‘(C) ensuring that information security management

processes are integrated with agency strategic and operational planning processes;

‘‘(2) ensure that senior agency officials provide information

security for the information and information systems that support the operations and assets under their control, including

through—

‘‘(A) assessing the risk and magnitude of the harm

that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of such

information or information systems;

‘‘(B) determining the levels of information security

appropriate to protect such information and information

systems in accordance with standards promulgated under

section 11331 of title 40 for information security classifications and related requirements;

‘‘(C) implementing policies and procedures to cost-effectively reduce risks to an acceptable level; and

‘‘(D) periodically testing and evaluating information

security controls and techniques to ensure that they are

effectively implemented;

‘‘(3) delegate to the agency Chief Information Officer established under section 3506 (or comparable official in an agency

not covered by such section) the authority to ensure compliance

with the requirements imposed on the agency under this subchapter, including—

‘‘(A) designating a senior agency information security

officer who shall—

‘‘(i) carry out the Chief Information Officer’s

responsibilities under this section;

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2263

‘‘(ii) possess professional qualifications, including

training and experience, required to administer the

functions described under this section;

‘‘(iii) have information security duties as that official’s primary duty; and

‘‘(iv) head an office with the mission and resources

to assist in ensuring agency compliance with this section;

‘‘(B) developing and maintaining an agencywide

information security program as required by subsection

(b);

‘‘(C) developing and maintaining information security

policies, procedures, and control techniques to address all

applicable requirements, including those issued under section 3533 of this title, and section 11331 of title 40;

‘‘(D) training and overseeing personnel with significant

responsibilities for information security with respect to

such responsibilities; and

‘‘(E) assisting senior agency officials concerning their

responsibilities under paragraph (2);

‘‘(4) ensure that the agency has trained personnel sufficient

to assist the agency in complying with the requirements of

this subchapter and related policies, procedures, standards,

and guidelines; and

‘‘(5) ensure that the agency Chief Information Officer, in

coordination with other senior agency officials, reports annually

to the agency head on the effectiveness of the agency information security program, including progress of remedial actions.

‘‘(b) Each agency shall develop, document, and implement an

agencywide information security program, approved by the Director

under section 3533(a)(5), to provide information security for the

information and information systems that support the operations

and assets of the agency, including those provided or managed

by another agency, contractor, or other source, that includes—

‘‘(1) periodic assessments of the risk and magnitude of

the harm that could result from the unauthorized access, use,

disclosure, disruption, modification, or destruction of information and information systems that support the operations and

assets of the agency;

‘‘(2) policies and procedures that—

‘‘(A) are based on the risk assessments required by

paragraph (1);

‘‘(B) cost-effectively reduce information security risks

to an acceptable level;

‘‘(C) ensure that information security is addressed

throughout the life cycle of each agency information system;

and

‘‘(D) ensure compliance with—

‘‘(i) the requirements of this subchapter;

‘‘(ii) policies and procedures as may be prescribed

by the Director, and information security standards

promulgated under section 11331 of title 40;

‘‘(iii) minimally acceptable system configuration

requirements, as determined by the agency; and

‘‘(iv) any other applicable requirements, including

standards and guidelines for national security systems

116 STAT. 2264 PUBLIC LAW 107–296—NOV. 25, 2002

issued in accordance with law and as directed by the

President; ‘‘(3) subordinate plans for providing adequate information

security for networks, facilities, and systems or groups of

information systems, as appropriate;

‘‘(4) security awareness training to inform personnel,

including contractors and other users of information systems

that support the operations and assets of the agency, of—

‘‘(A) information security risks associated with their

activities; and

‘‘(B) their responsibilities in complying with agency

policies and procedures designed to reduce these risks;

‘‘(5) periodic testing and evaluation of the effectiveness

of information security policies, procedures, and practices, to

be performed with a frequency depending on risk, but no less

than annually, of which such testing—

‘‘(A) shall include testing of management, operational,

and technical controls of every information system identified in the inventory required under section 3505(c); and

‘‘(B) may include testing relied on in a evaluation under

section 3535;

‘‘(6) a process for planning, implementing, evaluating, and

documenting remedial action to address any deficiencies in

the information security policies, procedures, and practices of

the agency;

‘‘(7) procedures for detecting, reporting, and responding

to security incidents, including—

‘‘(A) mitigating risks associated with such incidents

before substantial damage is done; and

‘‘(B) notifying and consulting with, as appropriate—

‘‘(i) law enforcement agencies and relevant Offices

of Inspector General;

‘‘(ii) an office designated by the President for any

incident involving a national security system; and

‘‘(iii) any other agency or office, in accordance with

law or as directed by the President; and

‘‘(8) plans and procedures to ensure continuity of operations

for information systems that support the operations and assets

of the agency.

‘‘(c) Each agency shall—

‘‘(1) report annually to the Director, the Committees on

Government Reform and Science of the House of Representatives, the Committees on Governmental Affairs and Commerce,

Science, and Transportation of the Senate, the appropriate

authorization and appropriations committees of Congress, and

the Comptroller General on the adequacy and effectiveness

of information security policies, procedures, and practices, and

compliance with the requirements of this subchapter, including

compliance with each requirement of subsection (b);

‘‘(2) address the adequacy and effectiveness of information

security policies, procedures, and practices in plans and reports

relating to—

‘‘(A) annual agency budgets;

‘‘(B) information resources management under subchapter 1 of this chapter;

‘‘(C) information technology management under subtitle III of title 40;

Reports.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2265

‘‘(D) program performance under sections 1105 and

1115 through 1119 of title 31, and sections 2801 and 2805

of title 39; ‘‘(E) financial management under chapter 9 of title

31, and the Chief Financial Officers Act of 1990 (31 U.S.C.

501 note; Public Law 101–576) (and the amendments made

by that Act);

‘‘(F) financial management systems under the Federal

Financial Management Improvement Act (31 U.S.C. 3512

note); and

‘‘(G) internal accounting and administrative controls

under section 3512 of title 31, United States Code, (known

as the ‘Federal Managers Financial Integrity Act’); and

‘‘(3) report any significant deficiency in a policy, procedure,

or practice identified under paragraph (1) or (2)—

‘‘(A) as a material weakness in reporting under section

3512 of title 31; and

‘‘(B) if relating to financial management systems, as

an instance of a lack of substantial compliance under the

Federal Financial Management Improvement Act (31

U.S.C. 3512 note).

‘‘(d)(1) In addition to the requirements of subsection (c), each

agency, in consultation with the Director, shall include as part

of the performance plan required under section 1115 of title 31

a description of—

‘‘(A) the time periods; and

‘‘(B) the resources, including budget, staffing, and training,

that are necessary to implement the program required under subsection (b).

‘‘(2) The description under paragraph (1) shall be based on

the risk assessments required under subsection (b)(2)(1).

‘‘(e) Each agency shall provide the public with timely notice

and opportunities for comment on proposed information security

policies and procedures to the extent that such policies and procedures affect communication with the public.

‘‘§ 3535. Annual independent evaluation

‘‘(a)(1) Each year each agency shall have performed an independent evaluation of the information security program and practices of that agency to determine the effectiveness of such program

and practices.

‘‘(2) Each evaluation by an agency under this section shall

include—

‘‘(A) testing of the effectiveness of information security

policies, procedures, and practices of a representative subset

of the agency’s information systems;

‘‘(B) an assessment (made on the basis of the results of

the testing) of compliance with—

‘‘(i) the requirements of this subchapter; and

‘‘(ii) related information security policies, procedures,

standards, and guidelines; and

‘‘(C) separate presentations, as appropriate, regarding

information security relating to national security systems.

‘‘(b) Subject to subsection (c)—

‘‘(1) for each agency with an Inspector General appointed

under the Inspector General Act of 1978, the annual evaluation

required by this section shall be performed by the Inspector

Public

information.

116 STAT. 2266 PUBLIC LAW 107–296—NOV. 25, 2002

General or by an independent external auditor, as determined

by the Inspector General of the agency; and

‘‘(2) for each agency to which paragraph (1) does not apply,

the head of the agency shall engage an independent external

auditor to perform the evaluation.

‘‘(c) For each agency operating or exercising control of a national

security system, that portion of the evaluation required by this

section directly relating to a national security system shall be

performed—

‘‘(1) only by an entity designated by the agency head;

and

‘‘(2) in such a manner as to ensure appropriate protection

for information associated with any information security vulnerability in such system commensurate with the risk and in

accordance with all applicable laws.

‘‘(d) The evaluation required by this section—

‘‘(1) shall be performed in accordance with generally

accepted government auditing standards; and

‘‘(2) may be based in whole or in part on an audit, evaluation, or report relating to programs or practices of the applicable

agency.

‘‘(e) Each year, not later than such date established by the

Director, the head of each agency shall submit to the Director

the results of the evaluation required under this section.

‘‘(f) Agencies and evaluators shall take appropriate steps to

ensure the protection of information which, if disclosed, may

adversely affect information security. Such protections shall be

commensurate with the risk and comply with all applicable laws

and regulations.

‘‘(g)(1) The Director shall summarize the results of the evaluations conducted under this section in the report to Congress required

under section 3533(a)(8).

‘‘(2) The Director’s report to Congress under this subsection

shall summarize information regarding information security

relating to national security systems in such a manner as to ensure

appropriate protection for information associated with any information security vulnerability in such system commensurate with the

risk and in accordance with all applicable laws.

‘‘(3) Evaluations and any other descriptions of information systems under the authority and control of the Director of Central

Intelligence or of National Foreign Intelligence Programs systems

under the authority and control of the Secretary of Defense shall

be made available to Congress only through the appropriate oversight committees of Congress, in accordance with applicable laws.

‘‘(h) The Comptroller General shall periodically evaluate and

report to Congress on—

‘‘(1) the adequacy and effectiveness of agency information

security policies and practices; and

‘‘(2) implementation of the requirements of this subchapter.

‘‘§ 3536. National security systems

‘‘The head of each agency operating or exercising control of

a national security system shall be responsible for ensuring that

the agency—

‘‘(1) provides information security protections commensurate with the risk and magnitude of the harm resulting from

Reports.

Reports.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2267

the unauthorized access, use, disclosure, disruption, modification, or destruction of the information contained in such system; ‘‘(2) implements information security policies and practices

as required by standards and guidelines for national security

systems, issued in accordance with law and as directed by

the President; and ‘‘(3) complies with the requirements of this subchapter.

‘‘§ 3537. Authorization of appropriations

‘‘There are authorized to be appropriated to carry out the

provisions of this subchapter such sums as may be necessary for

each of fiscal years 2003 through 2007.

‘‘§ 3538. Effect on existing law

‘‘Nothing in this subchapter, section 11331 of title 40, or section

20 of the National Standards and Technology Act (15 U.S.C. 278g– 3) may be construed as affecting the authority of the President,

the Office of Management and Budget or the Director thereof,

the National Institute of Standards and Technology, or the head

of any agency, with respect to the authorized use or disclosure

of information, including with regard to the protection of personal

privacy under section 552a of title 5, the disclosure of information

under section 552 of title 5, the management and disposition of

records under chapters 29, 31, or 33 of title 44, the management

of information resources under subchapter I of chapter 35 of this

title, or the disclosure of information to Congress or the Comptroller

General of the United States.’’. (2) CLERICAL AMENDMENT.—The items in the table of sections at the beginning of such chapter 35 under the heading

‘‘SUBCHAPTER II’’ are amended to read as follows:

‘‘3531. Purposes.

‘‘3532. Definitions.

‘‘3533. Authority and functions of the Director.

‘‘3534. Federal agency responsibilities.

‘‘3535. Annual independent evaluation.

‘‘3536. National security systems.

‘‘3537. Authorization of appropriations.

‘‘3538. Effect on existing law.’’.

(c) INFORMATION SECURITY RESPONSIBILITIES OF CERTAIN AGEN- CIES.— (1) NATIONAL SECURITY RESPONSIBILITIES.—(A) Nothing in

this Act (including any amendment made by this Act) shall

supersede any authority of the Secretary of Defense, the

Director of Central Intelligence, or other agency head, as

authorized by law and as directed by the President, with regard

to the operation, control, or management of national security

systems, as defined by section 3532(3) of title 44, United States

Code.

(B) Section 2224 of title 10, United States Code, is

amended—

(i) in subsection 2224(b), by striking ‘‘(b) OBJECTIVES

AND MINIMUM REQUIREMENTS.—(1)’’ and inserting ‘‘(b)

OBJECTIVES OF THE PROGRAM.—’’;

(ii) in subsection 2224(b), by striking ‘‘(2) the program

shall at a minimum meet the requirements of section 3534

and 3535 of title 44, United States Code.’’; and

(iii) in subsection 2224(c), by inserting ‘‘, including

through compliance with subtitle II of chapter 35 of title

44’’ after ‘‘infrastructure’’.

6 USC 511.

116 STAT. 2268 PUBLIC LAW 107–296—NOV. 25, 2002

(2) ATOMIC ENERGY ACT OF 1954.—Nothing in this Act shall

supersede any requirement made by or under the Atomic

Energy Act of 1954 (42 U.S.C. 2011 et seq.). Restricted Data

or Formerly Restricted Data shall be handled, protected, classified, downgraded, and declassified in conformity with the

Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

SEC. 1002. MANAGEMENT OF INFORMATION TECHNOLOGY.

(a) IN GENERAL.—Section 11331 of title 40, United States Code,

is amended to read as follows:

‘‘§ 11331. Responsibilities for Federal information systems

standards

‘‘(a) DEFINITION.—In this section, the term ‘information security’ has the meaning given that term in section 3532(b)(1) of title

44. ‘‘(b) REQUIREMENT TO PRESCRIBE STANDARDS.—

‘‘(1) IN GENERAL.—

‘‘(A) REQUIREMENT.—Except as provided under paragraph (2), the Director of the Office of Management and

Budget shall, on the basis of proposed standards developed

by the National Institute of Standards and Technology

pursuant to paragraphs (2) and (3) of section 20(a) of

the National Institute of Standards and Technology Act

(15 U.S.C. 278g–3(a)) and in consultation with the Secretary of Homeland Security, promulgate information security standards pertaining to Federal information systems.

‘‘(B) REQUIRED STANDARDS.—Standards promulgated

under subparagraph (A) shall include—

‘‘(i) standards that provide minimum information

security requirements as determined under section

20(b) of the National Institute of Standards and Technology Act (15 U.S.C. 278g–3(b)); and

‘‘(ii) such standards that are otherwise necessary

to improve the efficiency of operation or security of

Federal information systems.

‘‘(C) REQUIRED STANDARDS BINDING.—Information security standards described under subparagraph (B) shall be

compulsory and binding.

‘‘(2) STANDARDS AND GUIDELINES FOR NATIONAL SECURITY

SYSTEMS.—Standards and guidelines for national security systems, as defined under section 3532(3) of title 44, shall be

developed, promulgated, enforced, and overseen as otherwise

authorized by law and as directed by the President.

‘‘(c) APPLICATION OF MORE STRINGENT STANDARDS.—The head

of an agency may employ standards for the cost-effective information

security for all operations and assets within or under the supervision of that agency that are more stringent than the standards

promulgated by the Director under this section, if such standards—

‘‘(1) contain, at a minimum, the provisions of those

applicable standards made compulsory and binding by the

Director; and

‘‘(2) are otherwise consistent with policies and guidelines

issued under section 3533 of title 44.

‘‘(d) REQUIREMENTS REGARDING DECISIONS BY DIRECTOR.— ‘‘(1) DEADLINE.—The decision regarding the promulgation

of any standard by the Director under subsection (b) shall

President.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2269

occur not later than 6 months after the submission of the

proposed standard to the Director by the National Institute

of Standards and Technology, as provided under section 20

of the National Institute of Standards and Technology Act

(15 U.S.C. 278g–3).

‘‘(2) NOTICE AND COMMENT.—A decision by the Director

to significantly modify, or not promulgate, a proposed standard

submitted to the Director by the National Institute of Standards

and Technology, as provided under section 20 of the National

Institute of Standards and Technology Act (15 U.S.C. 278g– 3), shall be made after the public is given an opportunity

to comment on the Director’s proposed decision.’’. (b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 113 of title 40, United States Code, is amended

by striking the item relating to section 11331 and inserting the

following:

‘‘11331. Responsibilities for Federal information systems standards.’’.

SEC. 1003. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.

Section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g–3), is amended by striking the text

and inserting the following:

‘‘(a) The Institute shall—

‘‘(1) have the mission of developing standards, guidelines,

and associated methods and techniques for information systems;

‘‘(2) develop standards and guidelines, including minimum

requirements, for information systems used or operated by an

agency or by a contractor of an agency or other organization

on behalf of an agency, other than national security systems

(as defined in section 3532(b)(2) of title 44, United States Code);

‘‘(3) develop standards and guidelines, including minimum

requirements, for providing adequate information security for

all agency operations and assets, but such standards and guidelines shall not apply to national security systems; and ‘‘(4) carry out the responsibilities described in paragraph

(3) through the Computer Security Division.

‘‘(b) The standards and guidelines required by subsection (a)

shall include, at a minimum—

‘‘(1)(A) standards to be used by all agencies to categorize

all information and information systems collected or maintained

by or on behalf of each agency based on the objectives of

providing appropriate levels of information security according

to a range of risk levels;

‘‘(B) guidelines recommending the types of information and

information systems to be included in each such category; and

‘‘(C) minimum information security requirements for

information and information systems in each such category;

‘‘(2) a definition of and guidelines concerning detection

and handling of information security incidents; and

‘‘(3) guidelines developed in coordination with the National

Security Agency for identifying an information system as a

national security system consistent with applicable requirements for national security systems, issued in accordance with

law and as directed by the President.

‘‘(c) In developing standards and guidelines required by subsections (a) and (b), the Institute shall—

Guidelines.

116 STAT. 2270 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(1) consult with other agencies and offices (including, but

not limited to, the Director of the Office of Management and

Budget, the Departments of Defense and Energy, the National

Security Agency, the General Accounting Office, and the Secretary of Homeland Security) to assure—

‘‘(A) use of appropriate information security policies,

procedures, and techniques, in order to improve information

security and avoid unnecessary and costly duplication of

effort; and

‘‘(B) that such standards and guidelines are complementary with standards and guidelines employed for

the protection of national security systems and information

contained in such systems;

‘‘(2) provide the public with an opportunity to comment

on proposed standards and guidelines;

‘‘(3) submit to the Director of the Office of Management

and Budget for promulgation under section 11331 of title 40,

United States Code—

‘‘(A) standards, as required under subsection (b)(1)(A),

no later than 12 months after the date of the enactment

of this section; and

‘‘(B) minimum information security requirements for

each category, as required under subsection (b)(1)(C), no

later than 36 months after the date of the enactment

of this section;

‘‘(4) issue guidelines as required under subsection (b)(1)(B),

no later than 18 months after the date of the enactment of

this Act;

‘‘(5) ensure that such standards and guidelines do not

require specific technological solutions or products, including

any specific hardware or software security solutions;

‘‘(6) ensure that such standards and guidelines provide

for sufficient flexibility to permit alternative solutions to provide equivalent levels of protection for identified information

security risks; and

‘‘(7) use flexible, performance-based standards and guidelines that, to the greatest extent possible, permit the use of

off-the-shelf commercially developed information security products.

‘‘(d) The Institute shall—

‘‘(1) submit standards developed pursuant to subsection

(a), along with recommendations as to the extent to which

these should be made compulsory and binding, to the Director

of the Office of Management and Budget for promulgation

under section 11331 of title 40, United States Code;

‘‘(2) provide assistance to agencies regarding—

‘‘(A) compliance with the standards and guidelines

developed under subsection (a);

‘‘(B) detecting and handling information security

incidents; and

‘‘(C) information security policies, procedures, and practices;

‘‘(3) conduct research, as needed, to determine the nature

and extent of information security vulnerabilities and techniques for providing cost-effective information security;

Deadlines.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2271

‘‘(4) develop and periodically revise performance indicators

and measures for agency information security policies and practices;‘‘(5) evaluate private sector information security policies

and practices and commercially available information technologies to assess potential application by agencies to

strengthen information security;

‘‘(6) evaluate security policies and practices developed for

national security systems to assess potential application by

agencies to strengthen information security;

‘‘(7) periodically assess the effectiveness of standards and

guidelines developed under this section and undertake revisions

as appropriate;

‘‘(8) solicit and consider the recommendations of the

Information Security and Privacy Advisory Board, established

by section 21, regarding standards and guidelines developed

under subsection (a) and submit such recommendations to the

Director of the Office of Management and Budget with such

standards submitted to the Director; and

‘‘(9) prepare an annual public report on activities undertaken in the previous year, and planned for the coming year,

to carry out responsibilities under this section.

‘‘(e) As used in this section—

‘‘(1) the term ‘agency’ has the same meaning as provided

in section 3502(1) of title 44, United States Code;

‘‘(2) the term ‘information security’ has the same meaning

as provided in section 3532(1) of such title;

‘‘(3) the term ‘information system’ has the same meaning

as provided in section 3502(8) of such title;

‘‘(4) the term ‘information technology’ has the same

meaning as provided in section 11101 of title 40, United States

Code; and

‘‘(5) the term ‘national security system’ has the same

meaning as provided in section 3532(b)(2) of such title.’’.

SEC. 1004. INFORMATION SECURITY AND PRIVACY ADVISORY BOARD.

Section 21 of the National Institute of Standards and Technology Act (15 U.S.C. 278g–4), is amended—

(1) in subsection (a), by striking ‘‘Computer System Security

and Privacy Advisory Board’’ and inserting ‘‘Information Security and Privacy Advisory Board’’;

(2) in subsection (a)(1), by striking ‘‘computer or telecommunications’’ and inserting ‘‘information technology’’;

(3) in subsection (a)(2)—

(A) by striking ‘‘computer or telecommunications technology’’ and inserting ‘‘information technology’’; and

(B) by striking ‘‘computer or telecommunications equipment’’ and inserting ‘‘information technology’’;

(4) in subsection (a)(3)—

(A) by striking ‘‘computer systems’’ and inserting

‘‘information system’’; and

(B) by striking ‘‘computer systems security’’ and

inserting ‘‘information security’’;

(5) in subsection (b)(1) by striking ‘‘computer systems security’’ and inserting ‘‘information security’’;

(6) in subsection (b) by striking paragraph (2) and inserting

the following:

Government

organization.

Reports.

116 STAT. 2272 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(2) to advise the Institute and the Director of the Office

of Management and Budget on information security and privacy

issues pertaining to Federal Government information systems,

including through review of proposed standards and guidelines

developed under section 20; and’’;

(7) in subsection (b)(3) by inserting ‘‘annually’’ after

‘‘report’’;

(8) by inserting after subsection (e) the following new subsection:

‘‘(f) The Board shall hold meetings at such locations and at

such time and place as determined by a majority of the Board.’’;

(9) by redesignating subsections (f) and (g) as subsections

(g) and (h), respectively; and

(10) by striking subsection (h), as redesignated by paragraph (9), and inserting the following:

‘‘(h) As used in this section, the terms ‘information system’

and ‘information technology’ have the meanings given in section

20.’’.

SEC. 1005. TECHNICAL AND CONFORMING AMENDMENTS.

(a) FEDERAL COMPUTER SYSTEM SECURITY TRAINING AND

PLAN.—

(1) REPEAL.—Section 11332 of title 40, United States Code,

is repealed.

(2) CLERICAL AMENDMENT.—The table of sections at the

beginning of chapter 113 of title 40, United States Code, as

amended by striking the item relating to section 11332.

(b) FLOYD D. SPENCE NATIONAL DEFENSE AUTHORIZATION ACT

FOR FISCAL YEAR 2001.—The Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001 (Public Law 106–398) is

amended by striking subtitle G of title X (44 U.S.C. 3531 note).

(c) PAPERWORK REDUCTION ACT.—(1) Section 3504(g) of title

44, United States Code, is amended—

(A) by adding ‘‘and’’ at the end of paragraph (1);

(B) in paragraph (2)—

(i) by striking ‘‘sections 11331 and 11332(b) and (c)

of title 40’’ and inserting ‘‘section 11331 of title 40 and

subchapter II of this title’’; and

(ii) by striking the semicolon and inserting a period;

and

(C) by striking paragraph (3).

(2) Section 3505 of such title is amended by adding at the

end the following:

‘‘(c) INVENTORY OF INFORMATION SYSTEMS.—(1) The head of

each agency shall develop and maintain an inventory of the information systems (including national security systems) operated by or

under the control of such agency;

‘‘(2) The identification of information systems in an inventory

under this subsection shall include an identification of the interfaces

between each such system and all other systems or networks,

including those not operated by or under the control of the agency;

‘‘(3) Such inventory shall be—

‘‘(A) updated at least annually;

‘‘(B) made available to the Comptroller General; and

‘‘(C) used to support information resources management,

including—

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2273

‘‘(i) preparation and maintenance of the inventory of

information resources under section 3506(b)(4); ‘‘(ii) information technology planning, budgeting,

acquisition, and management under section 3506(h), subtitle III of title 40, and related laws and guidance;

‘‘(iii) monitoring, testing, and evaluation of information

security controls under subchapter II;

‘‘(iv) preparation of the index of major information

systems required under section 552(g) of title 5, United

States Code; and

‘‘(v) preparation of information system inventories

required for records management under chapters 21, 29,

31, and 33.

‘‘(4) The Director shall issue guidance for and oversee the

implementation of the requirements of this subsection.’’.

(3) Section 3506(g) of such title is amended—

(A) by adding ‘‘and’’ at the end of paragraph (1);

(B) in paragraph (2)—

(i) by striking ‘‘section 11332 of title 40’’ and inserting

‘‘subchapter II of this chapter’’; and

(ii) by striking ‘‘; and’’ and inserting a period; and

(C) by striking paragraph (3).

SEC. 1006. CONSTRUCTION.

Nothing in this Act, or the amendments made by this Act,

affects the authority of the National Institute of Standards and

Technology or the Department of Commerce relating to the development and promulgation of standards or guidelines under paragraphs

(1) and (2) of section 20(a) of the National Institute of Standards

and Technology Act (15 U.S.C. 278g–3(a)).

TITLE XI—DEPARTMENT OF JUSTICE

DIVISIONS

Subtitle A—Executive Office for

Immigration Review

SEC. 1101. LEGAL STATUS OF EOIR.

(a) EXISTENCE OF EOIR.—There is in the Department of Justice

the Executive Office for Immigration Review, which shall be subject

to the direction and regulation of the Attorney General under

section 103(g) of the Immigration and Nationality Act, as added

by section 1102.

SEC. 1102. AUTHORITIES OF THE ATTORNEY GENERAL.

Section 103 of the Immigration and Nationality Act (8 U.S.C.

1103) as amended by this Act, is further amended by—

(1) amending the heading to read as follows:

‘‘POWERS AND DUTIES OF THE SECRETARY, THE UNDER SECRETARY,

AND THE ATTORNEY GENERAL’’;

(2) in subsection (a)—

(A) by inserting ‘‘Attorney General,’’ after ‘‘President,’’;

and

Establishment.

6 USC 521.

6 USC 512.

116 STAT. 2274 PUBLIC LAW 107–296—NOV. 25, 2002

(B) by redesignating paragraphs (8), (9), (8) (as added

by section 372 of Public Law 104–208), and (9) (as added

by section 372 of Public Law 104–208) as paragraphs (8),

(9), (10), and (11), respectively; and

(3) by adding at the end the following new subsection:

‘‘(g) ATTORNEY GENERAL.— ‘‘(1) IN GENERAL.—The Attorney General shall have such

authorities and functions under this Act and all other laws

relating to the immigration and naturalization of aliens as

were exercised by the Executive Office for Immigration Review,

or by the Attorney General with respect to the Executive Office

for Immigration Review, on the day before the effective date

of the Immigration Reform, Accountability and Security

Enhancement Act of 2002. ‘‘(2) POWERS.—The Attorney General shall establish such

regulations, prescribe such forms of bond, reports, entries, and

other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such

authority, and perform such other acts as the Attorney General

determines to be necessary for carrying out this section.’’.

SEC. 1103. STATUTORY CONSTRUCTION.

Nothing in this Act, any amendment made by this Act, or

in section 103 of the Immigration and Nationality Act, as amended

by section 1102, shall be construed to limit judicial deference to

regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security

or the Attorney General.

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.

(a) ESTABLISHMENT.—

(1) IN GENERAL.—There is established within the Department of Justice under the general authority of the Attorney

General the Bureau of Alcohol, Tobacco, Firearms, and Explosives (in this section referred to as the ‘‘Bureau’’).

(2) DIRECTOR.—There shall be at the head of the Bureau

a Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives (in this subtitle referred to as the ‘‘Director’’). The Director

shall be appointed by the Attorney General and shall perform

such functions as the Attorney General shall direct. The

Director shall receive compensation at the rate prescribed by

law under section 5314 of title V, United States Code, for

positions at level III of the Executive Schedule.

(3) COORDINATION.—The Attorney General, acting through

the Director and such other officials of the Department of

Justice as the Attorney General may designate, shall provide

for the coordination of all firearms, explosives, tobacco enforcement, and arson enforcement functions vested in the Attorney

General so as to assure maximum cooperation between and

among any officer, employee, or agency of the Department

6 USC 531.

6 USC 522.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2275

of Justice involved in the performance of these and related

functions.

(4) PERFORMANCE OF TRANSFERRED FUNCTIONS.—The

Attorney General may make such provisions as the Attorney

General determines appropriate to authorize the performance

by any officer, employee, or agency of the Department of Justice

of any function transferred to the Attorney General under

this section.

(b) RESPONSIBILITIES.—Subject to the direction of the Attorney

General, the Bureau shall be responsible for investigating— (1) criminal and regulatory violations of the Federal firearms, explosives, arson, alcohol, and tobacco smuggling laws;

(2) the functions transferred by subsection (c); and

(3) any other function related to the investigation of violent

crime or domestic terrorism that is delegated to the Bureau

by the Attorney General.

(c) TRANSFER OF AUTHORITIES, FUNCTIONS, PERSONNEL, AND

ASSETS TO THE DEPARTMENT OF JUSTICE.—

(1) IN GENERAL.—Subject to paragraph (2), but notwithstanding any other provision of law, there are transferred to

the Department of Justice the authorities, functions, personnel,

and assets of the Bureau of Alcohol, Tobacco and Firearms,

which shall be maintained as a distinct entity within the

Department of Justice, including the related functions of the

Secretary of the Treasury.

(2) ADMINISTRATION AND REVENUE COLLECTION FUNCTIONS.—There shall be retained within the Department of the

Treasury the authorities, functions, personnel, and assets of

the Bureau of Alcohol, Tobacco and Firearms relating to the

administration and enforcement of chapters 51 and 52 of the

Internal Revenue Code of 1986, sections 4181 and 4182 of

the Internal Revenue Code of 1986, and title 27, United States

Code.

(3) BUILDING PROSPECTUS.—Prospectus PDC-98W10, giving

the General Services Administration the authority for site

acquisition, design, and construction of a new headquarters

building for the Bureau of Alcohol, Tobacco and Firearms,

is transferred, and deemed to apply, to the Bureau of Alcohol,

Tobacco, Firearms, and Explosives established in the Department of Justice under subsection (a).

(d) TAX AND TRADE BUREAU.—

(1) ESTABLISHMENT.—There is established within the

Department of the Treasury the Tax and Trade Bureau.

(2) ADMINISTRATOR.—The Tax and Trade Bureau shall be

headed by an Administrator, who shall perform such duties

as assigned by the Under Secretary for Enforcement of the

Department of the Treasury. The Administrator shall occupy

a career-reserved position within the Senior Executive Service.

(3) RESPONSIBILITIES.—The authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms that are not transferred to the Department of Justice

under this section shall be retained and administered by the

Tax and Trade Bureau.

SEC. 1112. TECHNICAL AND CONFORMING AMENDMENTS.

(a) The Inspector General Act of 1978 (5 U.S.C. App.) is

amended—

116 STAT. 2276 PUBLIC LAW 107–296—NOV. 25, 2002

(1) in section 8D(b)(1) by striking ‘‘Bureau of Alcohol,

Tobacco and Firearms’’ and inserting ‘‘Tax and Trade Bureau’’;

and

(2) in section 9(a)(1)(L)(i), by striking ‘‘Bureau of Alcohol,

Tobacco, and Firearms’’ and inserting ‘‘Tax and Trade Bureau’’.

(b) Section 1109(c)(2)(A)(i) of the Consolidated Omnibus Budget

Reconciliation Act of 1985 (7 U.S.C. 1445–3(c)(2)(A)(i)) is amended

by striking ‘‘(on ATF Form 3068) by manufacturers of tobacco

products to the Bureau of Alcohol, Tobacco and Firearms’’ and

inserting ‘‘by manufacturers of tobacco products to the Tax and

Trade Bureau’’.

(c) Section 2(4)(J) of the Enhanced Border Security and Visa

Entry Reform Act of 2002 (Public Law 107–173; 8 U.S.C.A.

1701(4)(J)) is amended by striking ‘‘Bureau of Alcohol, Tobacco,

and Firearms’’ and inserting ‘‘Bureau of Alcohol, Tobacco, Firearms,

and Explosives, Department of Justice’’.

(d) Section 3(1)(E) of the Firefighters’ Safety Study Act (15

U.S.C. 2223b(1)(E)) is amended by striking ‘‘the Bureau of Alcohol,

Tobacco, and Firearms,’’ and inserting ‘‘the Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Department of Justice,’’.

(e) Chapter 40 of title 18, United States Code, is amended—

(1) by striking section 841(k) and inserting the following:

‘‘(k) ‘Attorney General’ means the Attorney General of the

United States.’’;

(2) in section 846(a), by striking ‘‘the Attorney General

and the Federal Bureau of Investigation, together with the

Secretary’’ and inserting ‘‘the Federal Bureau of Investigation,

together with the Bureau of Alcohol, Tobacco, Firearms, and

Explosives’’; and

(3) by striking ‘‘Secretary’’ each place it appears and

inserting ‘‘Attorney General’’.

(f) Chapter 44 of title 18, United States Code, is amended—

(1) in section 921(a)(4)(B), by striking ‘‘Secretary’’ and

inserting ‘‘Attorney General’’;

(2) in section 921(a)(4), by striking ‘‘Secretary of the

Treasury’’ and inserting ‘‘Attorney General’’;

(3) in section 921(a), by striking paragraph (18) and

inserting the following:

‘‘(18) The term ‘Attorney General’ means the Attorney General of the United States’’;

(4) in section 922(p)(5)(A), by striking ‘‘after consultation

with the Secretary’’ and inserting ‘‘after consultation with the

Attorney General’’;

(5) in section 923(l), by striking ‘‘Secretary of the Treasury’’

and inserting ‘‘Attorney General’’; and

(6) by striking ‘‘Secretary’’ each place it appears, except

before ‘‘of the Army’’ in section 921(a)(4) and before ‘‘of Defense’’

in section 922(p)(5)(A), and inserting the term ‘‘Attorney General’’.

(g) Section 1261(a) of title 18, United States Code, is amended

to read as follows:

‘‘(a) The Attorney General—

‘‘(1) shall enforce the provisions of this chapter; and

‘‘(2) has the authority to issue regulations to carry out

the provisions of this chapter.’’.

18 USC 921–923,

925, 926.

18 USC 841–847.

8 USC 1701.

5 USC app. 9.

5 USC app. 8D.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2277

(h) Section 1952(c) of title 18, United States Code, is amended

by striking ‘‘Secretary of the Treasury’’ and inserting ‘‘Attorney

General’’.

(i) Chapter 114 of title 18, United States Code, is amended—

(1) by striking section 2341(5), and inserting the following:

‘‘(5) the term ‘Attorney General’ means the Attorney General of the United States’’; and

(2) by striking ‘‘Secretary’’ each place it appears and

inserting ‘‘Attorney General’’.

(j) Section 6103(i)(8)(A)(i) of the Internal Revenue Code of 1986

(relating to confidentiality and disclosure of returns and return

information) is amended by striking ‘‘or the Bureau of Alcohol,

Tobacco and Firearms’’ and inserting ‘‘, the Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Department of Justice, or the

Tax and Trade Bureau, Department of the Treasury,’’.

(k) Section 7801(a) of the Internal Revenue Code of 1986

(relating to the authority of the Department of the Treasury) is

amended—

(1) by striking ‘‘SECRETARY.—Except’’ and inserting ‘‘SECRETARY.—

‘‘(1) IN GENERAL.—Except’’; and

(2) by adding at the end the following:

‘‘(2) ADMINISTRATION AND ENFORCEMENT OF CERTAIN PROVISIONS BY ATTORNEY GENERAL.—

‘‘(A) IN GENERAL.—The administration and enforcement

of the following provisions of this title shall be performed

by or under the supervision of the Attorney General; and

the term ‘Secretary’ or ‘Secretary of the Treasury’ shall,

when applied to those provisions, mean the Attorney General; and the term ‘internal revenue officer’ shall, when

applied to those provisions, mean any officer of the Bureau

of Alcohol, Tobacco, Firearms, and Explosives so designated

by the Attorney General:

‘‘(i) Chapter 53.

‘‘(ii) Chapters 61 through 80, to the extent such

chapters relate to the enforcement and administration

of the provisions referred to in clause (i).

‘‘(B) USE OF EXISTING RULINGS AND INTERPRETATIONS.—

Nothing in this Act alters or repeals the rulings and

interpretations of the Bureau of Alcohol, Tobacco, and Firearms in effect on the effective date of the Homeland Security Act of 2002, which concern the provisions of this title

referred to in subparagraph (A). The Attorney General

shall consult with the Secretary to achieve uniformity and

consistency in administering provisions under chapter 53

of title 26, United States Code.’’.

(l) Section 2006(2) of title 28, United States Code, is amended

by inserting ‘‘, the Director, Bureau of Alcohol, Tobacco, Firearms,

and Explosives, Department of Justice,’’ after ‘‘the Secretary of

the Treasury’’.

(m) Section 713 of title 31, United States Code, is amended—

(1) by striking the section heading and inserting the following:

26 USC 7801.

26 USC 6103.

18 USC 2343,

2346.

116 STAT. 2278 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘§ 713. Audit of Internal Revenue Service, Tax and Trade

Bureau, and Bureau of Alcohol, Tobacco, Firearms, and Explosives’’;

(2) in subsection (a), by striking ‘‘Bureau of Alcohol,

Tobacco, and Firearms,’’ and inserting ‘‘Tax and Trade Bureau,

Department of the Treasury, and the Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Department of Justice’’;

and

(3) in subsection (b)— (A) in paragraph (1)(B), by striking ‘‘or the Bureau’’ and inserting ‘‘or either Bureau’’;

(B) in paragraph (2)— (i) by striking ‘‘or the Bureau’’ and inserting ‘‘or

either Bureau’’; and

(ii) by striking ‘‘and the Director of the Bureau’’ and inserting ‘‘the Tax and Trade Bureau, Department

of the Treasury, and the Director of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives, Department of Justice’’; and

(C) in paragraph (3), by striking ‘‘or the Bureau’’ and

inserting ‘‘or either Bureau’’. (n) Section 9703 of title 31, United States Code, is amended— (1) in subsection (a)(2)(B)— (A) in clause (iii)(III), by inserting ‘‘and’’ after the

semicolon;

(B) in clause (iv), by striking ‘‘; and’’ and inserting

a period; and

(C) by striking clause (v);

(2) by striking subsection (o);

(3) by redesignating existing subsection (p) as subsection

(o); and

(4) in subsection (o)(1), as redesignated by paragraph (3),

by striking ‘‘Bureau of Alcohol, Tobacco and Firearms’’ and

inserting ‘‘Tax and Trade Bureau’’. (o) Section 609N(2)(L) of the Justice Assistance Act of 1984

(42 U.S.C. 10502(2)(L)) is amended by striking ‘‘Bureau of Alcohol,

Tobacco, and Firearms’’ and inserting ‘‘Bureau of Alcohol, Tobacco,

Firearms, and Explosives, Department of Justice’’. (p) Section 32401(a) of the Violent Crime Control and Law

Enforcement Act of 1994 (42 U.S.C. 13921(a)) is amended— (1) by striking ‘‘Secretary of the Treasury’’ each place it

appears and inserting ‘‘Attorney General’’; and

(2) in subparagraph (3)(B), by striking ‘‘Bureau of Alcohol,

Tobacco and Firearms’’ and inserting ‘‘Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Department of Justice’’.

(q) Section 80303 of title 49, United States Code, is amended—

(1) by inserting ‘‘or, when the violation of this chapter

involves contraband described in paragraph (2) or (5) of section

80302(a), the Attorney General’’ after ‘‘section 80304 of this

title.’’; and

(2) by inserting ‘‘, the Attorney General,’’ after ‘‘by the

Secretary’’.

(r) Section 80304 of title 49, United States Code, is amended—

(1) in subsection (a), by striking ‘‘(b) and (c)’’ and inserting

‘‘(b), (c), and (d)’’;

(2) by redesignating subsection (d) as subsection (e); and

(3) by inserting after subsection (c), the following:

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2279

‘‘(d) ATTORNEY GENERAL.—The Attorney General, or officers,

employees, or agents of the Bureau of Alcohol, Tobacco, Firearms,

and Explosives, Department of Justice designated by the Attorney

General, shall carry out the laws referred to in section 80306(b)

of this title to the extent that the violation of this chapter involves

contraband described in section 80302 (a)(2) or (a)(5).’’.

(s) Section 103 of the Gun Control Act of 1968 (Public Law

90–618; 82 Stat. 1226) is amended by striking ‘‘Secretary of the

Treasury’’ and inserting ‘‘Attorney General’’.

SEC. 1113. POWERS OF AGENTS OF THE BUREAU OF ALCOHOL,

TOBACCO, FIREARMS, AND EXPLOSIVES.

Chapter 203 of title 18, United States Code, is amended by

adding the following:

‘‘§ 3051. Powers of Special Agents of Bureau of Alcohol,

Tobacco, Firearms, and Explosives

‘‘(a) Special agents of the Bureau of Alcohol, Tobacco, Firearms,

and Explosives, as well as any other investigator or officer charged

by the Attorney General with the duty of enforcing any of the

criminal, seizure, or forfeiture provisions of the laws of the United

States, may carry firearms, serve warrants and subpoenas issued

under the authority of the United States and make arrests without

warrant for any offense against the United States committed in

their presence, or for any felony cognizable under the laws of

the United States if they have reasonable grounds to believe that

the person to be arrested has committed or is committing such

felony.

‘‘(b) Any special agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives may, in respect to the performance of his

or her duties, make seizures of property subject to forfeiture to

the United States.

‘‘(c)(1) Except as provided in paragraphs (2) and (3), and except

to the extent that such provisions conflict with the provisions of

section 983 of title 18, United States Code, insofar as section 983

applies, the provisions of the Customs laws relating to—

‘‘(A) the seizure, summary and judicial forfeiture, and condemnation of property;

‘‘(B) the disposition of such property;

‘‘(C) the remission or mitigation of such forfeiture; and

‘‘(D) the compromise of claims,

shall apply to seizures and forfeitures incurred, or alleged to have

been incurred, under any applicable provision of law enforced or

administered by the Bureau of Alcohol, Tobacco, Firearms, and

Explosives.

‘‘(2) For purposes of paragraph (1), duties that are imposed

upon a customs officer or any other person with respect to the

seizure and forfeiture of property under the customs laws of the

United States shall be performed with respect to seizures and

forfeitures of property under this section by such officers, agents,

or any other person as may be authorized or designated for that

purpose by the Attorney General.

‘‘(3) Notwithstanding any other provision of law, the disposition

of firearms forfeited by reason of a violation of any law of the

United States shall be governed by the provisions of section 5872(b)

of the Internal Revenue Code of 1986.’’.

Applicability.

18 USC 921 note.

116 STAT. 2280 PUBLIC LAW 107–296—NOV. 25, 2002

SEC. 1114. EXPLOSIVES TRAINING AND RESEARCH FACILITY.

(a) ESTABLISHMENT.—There is established within the Bureau

an Explosives Training and Research Facility at Fort AP Hill,

Fredericksburg, Virginia.

(b) PURPOSE.—The facility established under subsection (a)

shall be utilized to train Federal, State, and local law enforcement

officers to—

(1) investigate bombings and explosions;

(2) properly handle, utilize, and dispose of explosive materials and devices;

(3) train canines on explosive detection; and

(4) conduct research on explosives.

(c) AUTHORIZATION OF APPROPRIATIONS.—

(1) IN GENERAL.—There are authorized to be appropriated

such sums as may be necessary to establish and maintain

the facility established under subsection (a).

(2) AVAILABILITY OF FUNDS.—Any amounts appropriated

pursuant to paragraph (1) shall remain available until

expended.

SEC. 1115. PERSONNEL MANAGEMENT DEMONSTRATION PROJECT.

Notwithstanding any other provision of law, the Personnel

Management Demonstration Project established under section 102

of title I of division C of the Omnibus Consolidated and Emergency

Supplemental Appropriations Act for Fiscal Year 1999 (Public Law

105–277; 122 Stat. 2681–585) shall be transferred to the Attorney

General of the United States for continued use by the Bureau

of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and the Secretary of the Treasury for continued use by the

Tax and Trade Bureau.

Subtitle C—Explosives

SEC. 1121. SHORT TITLE.

This subtitle may be referred to as the ‘‘Safe Explosives Act’’.

SEC. 1122. PERMITS FOR PURCHASERS OF EXPLOSIVES.

(a) DEFINITIONS.—Section 841 of title 18, United States Code,

is amended—

(1) by striking subsection (j) and inserting the following:

‘‘(j) ‘Permittee’ means any user of explosives for a lawful

purpose, who has obtained either a user permit or a limited

permit under the provisions of this chapter.’’; and

(2) by adding at the end the following:

‘‘(r) ‘Alien’ means any person who is not a citizen or national

of the United States.

‘‘(s) ‘Responsible person’ means an individual who has the

power to direct the management and policies of the applicant

pertaining to explosive materials.’’.

(b) PERMITS FOR PURCHASE OF EXPLOSIVES.—Section 842 of

title 18, United States Code, is amended—

(1) in subsection (a)(2), by striking ‘‘and’’ at the end;

(2) by striking subsection (a)(3) and inserting the following:

‘‘(3) other than a licensee or permittee knowingly—

‘‘(A) to transport, ship, cause to be transported, or

receive any explosive materials; or

18 USC 841 note.

Safe Explosives

Act.

Government

organization.

6 USC 533.

Virginia.

6 USC 532.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2281

‘‘(B) to distribute explosive materials to any person

other than a licensee or permittee; or

‘‘(4) who is a holder of a limited permit—

‘‘(A) to transport, ship, cause to be transported, or

receive in interstate or foreign commerce any explosive

materials; or

‘‘(B) to receive explosive materials from a licensee or

permittee, whose premises are located outside the State

of residence of the limited permit holder, or on more than

6 separate occasions, during the period of the permit, to

receive explosive materials from 1 or more licensees or

permittees whose premises are located within the State

of residence of the limited permit holder.’’; and

(3) by striking subsection (b) and inserting the following:

‘‘(b) It shall be unlawful for any licensee or permittee to knowingly distribute any explosive materials to any person other than—

‘‘(1) a licensee;

‘‘(2) a holder of a user permit; or

‘‘(3) a holder of a limited permit who is a resident of

the State where distribution is made and in which the premises

of the transferor are located.’’.

(c) LICENSES AND USER PERMITS.—Section 843(a) of title 18,

United States Code, is amended—

(1) in the first sentence—

(A) by inserting ‘‘or limited permit’’ after ‘‘user permit’’;

and

(B) by inserting before the period at the end the following: ‘‘, including the names of and appropriate identifying information regarding all employees who will be

authorized by the applicant to possess explosive materials,

as well as fingerprints and a photograph of each responsible

person’’;

(2) in the second sentence, by striking ‘‘$200 for each’’

and inserting ‘‘$50 for a limited permit and $200 for any other’’;

and

(3) by striking the third sentence and inserting ‘‘Each

license or user permit shall be valid for not longer than 3

years from the date of issuance and each limited permit shall

be valid for not longer than 1 year from the date of issuance.

Each license or permit shall be renewable upon the same conditions and subject to the same restrictions as the original license

or permit, and upon payment of a renewal fee not to exceed

one-half of the original fee.’’.

(d) CRITERIA FOR APPROVING LICENSES AND PERMITS.—Section

843(b) of title 18, United States Code, is amended—

(1) by striking paragraph (1) and inserting the following:

‘‘(1) the applicant (or, if the applicant is a corporation, partnership, or association, each responsible person with respect to the

applicant) is not a person described in section 842(i);’’;

(2) in paragraph (4)—

(A) by inserting ‘‘(A) the Secretary verifies by inspection or, if the application is for an original limited permit

or the first or second renewal of such a permit, by such

other means as the Secretary determines appropriate, that’’

before ‘‘the applicant’’; and

(B) by adding at the end the following:

116 STAT. 2282 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(B) subparagraph (A) shall not apply to an applicant

for the renewal of a limited permit if the Secretary has

verified, by inspection within the preceding 3 years, the

matters described in subparagraph (A) with respect to the

applicant; and’’;

(3) in paragraph (5), by striking the period at the end

and inserting a semicolon; and

(4) by adding at the end the following:

‘‘(6) none of the employees of the applicant who will be

authorized by the applicant to possess explosive materials is

any person described in section 842(i); and

‘‘(7) in the case of a limited permit, the applicant has

certified in writing that the applicant will not receive explosive

materials on more than 6 separate occasions during the 12-

month period for which the limited permit is valid.’’.

(e) APPLICATION APPROVAL.—Section 843(c) of title 18, United

States Code, is amended by striking ‘‘forty-five days’’ and inserting

‘‘90 days for licenses and permits,’’.

(f) INSPECTION AUTHORITY.—Section 843(f) of title 18, United

States Code, is amended—

(1) in the first sentence—

(A) by striking ‘‘permittees’’ and inserting ‘‘holders of

user permits’’; and

(B) by inserting ‘‘licensees and permittees’’ before ‘‘shall

submit’’;

(2) in the second sentence, by striking ‘‘permittee’’ the

first time it appears and inserting ‘‘holder of a user permit’’;

and

(3) by adding at the end the following: ‘‘The Secretary

may inspect the places of storage for explosive materials of

an applicant for a limited permit or, at the time of renewal

of such permit, a holder of a limited permit, only as provided

in subsection (b)(4).

(g) POSTING OF PERMITS.—Section 843(g) of title 18, United

States Code, is amended by inserting ‘‘user’’ before ‘‘permits’’.

(h) BACKGROUND CHECKS; CLEARANCES.—Section 843 of title

18, United States Code, is amended by adding at the end the

following:

‘‘(h)(1) If the Secretary receives, from an employer, the name

and other identifying information of a responsible person or an

employee who will be authorized by the employer to possess explosive materials in the course of employment with the employer,

the Secretary shall determine whether the responsible person or

employee is one of the persons described in any paragraph of

section 842(i). In making the determination, the Secretary may

take into account a letter or document issued under paragraph

(2).

‘‘(2)(A) If the Secretary determines that the responsible person

or the employee is not one of the persons described in any paragraph

of section 842(i), the Secretary shall notify the employer in writing

or electronically of the determination and issue, to the responsible

person or employee, a letter of clearance, which confirms the determination.

‘‘(B) If the Secretary determines that the responsible person

or employee is one of the persons described in any paragraph

of section 842(i), the Secretary shall notify the employer in writing

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2283

or electronically of the determination and issue to the responsible

person or the employee, as the case may be, a document that— ‘‘(i) confirms the determination;

‘‘(ii) explains the grounds for the determination;

‘‘(iii) provides information on how the disability may be

relieved; and

‘‘(iv) explains how the determination may be appealed.’’.

(i) EFFECTIVE DATE.— (1) IN GENERAL.—The amendments made by this section

shall take effect 180 days after the date of enactment of this

Act.

(2) EXCEPTION.—Notwithstanding any provision of this Act,

a license or permit issued under section 843 of title 18, United

States Code, before the date of enactment of this Act, shall

remain valid until that license or permit is revoked under

section 843(d) or expires, or until a timely application for

renewal is acted upon.

SEC. 1123. PERSONS PROHIBITED FROM RECEIVING OR POSSESSING

EXPLOSIVE MATERIALS.

(a) DISTRIBUTION OF EXPLOSIVES.—Section 842(d) of title 18,

United States Code, is amended—

(1) in paragraph (5), by striking ‘‘or’’ at the end;

(2) in paragraph (6), by striking the period at the end

and inserting ‘‘or who has been committed to a mental institution;’’; and

(3) by adding at the end the following:

‘‘(7) is an alien, other than an alien who—

‘‘(A) is lawfully admitted for permanent residence (as

defined in section 101 (a)(20) of the Immigration and

Nationality Act); or

‘‘(B) is in lawful nonimmigrant status, is a refugee

admitted under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or is in asylum status under

section 208 of the Immigration and Nationality Act (8

U.S.C. 1158), and—

‘‘(i) is a foreign law enforcement officer of a friendly

foreign government, as determined by the Secretary

in consultation with the Secretary of State, entering

the United States on official law enforcement business,

and the shipping, transporting, possession, or receipt

of explosive materials is in furtherance of this official

law enforcement business;

‘‘(ii) is a person having the power to direct or

cause the direction of the management and policies

of a corporation, partnership, or association licensed

pursuant to section 843(a), and the shipping, transporting, possession, or receipt of explosive materials

is in furtherance of such power;

‘‘(iii) is a member of a North Atlantic Treaty

Organization (NATO) or other friendly foreign military

force, as determined by the Secretary in consultation

with the Secretary of Defense, (whether or not

admitted in a nonimmigrant status) who is present

in the United States under military orders for training

or other military purpose authorized by the United

States, and the shipping, transporting, possession, or

18 USC 843 note.

116 STAT. 2284 PUBLIC LAW 107–296—NOV. 25, 2002

receipt of explosive materials is in furtherance of the

military purpose; or

‘‘(iv) is lawfully present in the United States in

cooperation with the Director of Central Intelligence,

and the shipment, transportation, receipt, or possession

of the explosive materials is in furtherance of such

cooperation;

‘‘(8) has been discharged from the armed forces under dishonorable conditions;

‘‘(9) having been a citizen of the United States, has

renounced the citizenship of that person.’’.

(b) POSSESSION OF EXPLOSIVE MATERIALS.—Section 842(i) of

title 18, United States Code, is amended—

(1) in paragraph (3), by striking ‘‘or’’ at the end; and

(2) by inserting after paragraph (4) the following:

‘‘(5) who is an alien, other than an alien who—

‘‘(A) is lawfully admitted for permanent residence (as

that term is defined in section 101(a)(20) of the Immigration and Nationality Act); or

‘‘(B) is in lawful nonimmigrant status, is a refugee

admitted under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or is in asylum status under

section 208 of the Immigration and Nationality Act (8

U.S.C. 1158), and—

‘‘(i) is a foreign law enforcement officer of a friendly

foreign government, as determined by the Secretary

in consultation with the Secretary of State, entering

the United States on official law enforcement business,

and the shipping, transporting, possession, or receipt

of explosive materials is in furtherance of this official

law enforcement business;

‘‘(ii) is a person having the power to direct or

cause the direction of the management and policies

of a corporation, partnership, or association licensed

pursuant to section 843(a), and the shipping, transporting, possession, or receipt of explosive materials

is in furtherance of such power;

‘‘(iii) is a member of a North Atlantic Treaty

Organization (NATO) or other friendly foreign military

force, as determined by the Secretary in consultation

with the Secretary of Defense, (whether or not

admitted in a nonimmigrant status) who is present

in the United States under military orders for training

or other military purpose authorized by the United

States, and the shipping, transporting, possession, or

receipt of explosive materials is in furtherance of the

military purpose; or

‘‘(iv) is lawfully present in the United States in

cooperation with the Director of Central Intelligence,

and the shipment, transportation, receipt, or possession

of the explosive materials is in furtherance of such

cooperation;

‘‘(6) who has been discharged from the armed forces under

dishonorable conditions;

‘‘(7) who, having been a citizen of the United States, has

renounced the citizenship of that person’’; and

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2285

(3) by inserting ‘‘or affecting’’ before ‘‘interstate’’ each place

that term appears.

SEC. 1124. REQUIREMENT TO PROVIDE SAMPLES OF EXPLOSIVE MATERIALS AND AMMONIUM NITRATE.

Section 843 of title 18, United States Code, as amended by

this Act, is amended by adding at the end the following: ‘‘(i) FURNISHING OF SAMPLES.— ‘‘(1) IN GENERAL.—Licensed manufacturers and licensed

importers and persons who manufacture or import explosive

materials or ammonium nitrate shall, when required by letter

issued by the Secretary, furnish— ‘‘(A) samples of such explosive materials or ammonium

nitrate; ‘‘(B) information on chemical composition of those products; and ‘‘(C) any other information that the Secretary determines is relevant to the identification of the explosive

materials or to identification of the ammonium nitrate.

‘‘(2) REIMBURSEMENT.—The Secretary shall, by regulation,

authorize reimbursement of the fair market value of samples

furnished pursuant to this subsection, as well as the reasonable

costs of shipment.’’.

SEC. 1125. DESTRUCTION OF PROPERTY OF INSTITUTIONS RECEIVING

FEDERAL FINANCIAL ASSISTANCE.

Section 844(f)(1) of title 18, United States Code, is amended

by inserting before the word ‘‘shall’’ the following: ‘‘or any institution

or organization receiving Federal financial assistance,’’.

SEC. 1126. RELIEF FROM DISABILITIES.

Section 845(b) of title 18, United States Code, is amended

to read as follows:

‘‘(b)(1) A person who is prohibited from shipping, transporting,

receiving, or possessing any explosive under section 842(i) may

apply to the Secretary for relief from such prohibition. ‘‘(2) The Secretary may grant the relief requested under paragraph (1) if the Secretary determines that the circumstances

regarding the applicability of section 842(i), and the applicant’s

record and reputation, are such that the applicant will not be

likely to act in a manner dangerous to public safety and that

the granting of such relief is not contrary to the public interest.

‘‘(3) A licensee or permittee who applies for relief, under this

subsection, from the disabilities incurred under this chapter as

a result of an indictment for or conviction of a crime punishable

by imprisonment for a term exceeding 1 year shall not be barred

by such disability from further operations under the license or

permit pending final action on an application for relief filed pursuant to this section.’’.

SEC. 1127. THEFT REPORTING REQUIREMENT.

Section 844 of title 18, United States Code, is amended by

adding at the end the following:

‘‘(p) THEFT REPORTING REQUIREMENT.—

‘‘(1) IN GENERAL.—A holder of a license or permit who

knows that explosive materials have been stolen from that

licensee or permittee, shall report the theft to the Secretary

not later than 24 hours after the discovery of the theft.

Regulations.

116 STAT. 2286 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(2) PENALTY.—A holder of a license or permit who does

not report a theft in accordance with paragraph (1), shall be

fined not more than $10,000, imprisoned not more than 5

years, or both.’’.

SEC. 1128. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as necessary

to carry out this subtitle and the amendments made by this subtitle.

TITLE XII—AIRLINE WAR RISK

INSURANCE LEGISLATION

SEC. 1201. AIR CARRIER LIABILITY FOR THIRD PARTY CLAIMS ARISING

OUT OF ACTS OF TERRORISM.

Section 44303 of title 49, United States Code, is amended—

(1) by inserting ‘‘(a) IN GENERAL.—’’ before ‘‘The Secretary

of Transportation’’;

(2) by moving the text of paragraph (2) of section 201(b)

of the Air Transportation Safety and System Stabilization Act

(115 Stat. 235) to the end and redesignating such paragraph

as subsection (b);

(3) in subsection (b) (as so redesignated)—

(A) by striking the subsection heading and inserting

‘‘AIR CARRIER LIABILITY FOR THIRD PARTY CLAIMS ARISING

OUT OF ACTS OF TERRORISM.—’’;

(B) in the first sentence by striking ‘‘the 180-day period

following the date of enactment of this Act, the Secretary

of Transportation’’ and inserting ‘‘the period beginning on

September 22, 2001, and ending on December 31, 2003,

the Secretary’’; and

(C) in the last sentence by striking ‘‘this paragraph’’

and inserting ‘‘this subsection’’.

SEC. 1202. EXTENSION OF INSURANCE POLICIES.

Section 44302 of title 49, United States Code, is amended

by adding at the end the following:

‘‘(f) EXTENSION OF POLICIES.—

‘‘(1) IN GENERAL.—The Secretary shall extend through

August 31, 2003, and may extend through December 31, 2003,

the termination date of any insurance policy that the Department of Transportation issued to an air carrier under subsection

(a) and that is in effect on the date of enactment of this

subsection on no less favorable terms to the air carrier than

existed on June 19, 2002; except that the Secretary shall amend

the insurance policy, subject to such terms and conditions as

the Secretary may prescribe, to add coverage for losses or

injuries to aircraft hulls, passengers, and crew at the limits

carried by air carriers for such losses and injuries as of such

date of enactment and at an additional premium comparable

to the premium charged for third-party casualty coverage under

such policy.

‘‘(2) SPECIAL RULES.—Notwithstanding paragraph (1)—

‘‘(A) in no event shall the total premium paid by the

air carrier for the policy, as amended, be more than twice

49 USC 40101

note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2287

the premium that the air carrier was paying to the Department of Transportation for its third party policy as of

June 19, 2002; and ‘‘(B) the coverage in such policy shall begin with the

first dollar of any covered loss that is incurred.’’.

SEC. 1203. CORRECTION OF REFERENCE.

Effective November 19, 2001, section 147 of the Aviation and

Transportation Security Act (Public Law 107–71) is amended by

striking ‘‘(b)’’ and inserting ‘‘(c)’’.

SEC. 1204. REPORT.

Not later than 90 days after the date of enactment of this

Act, the Secretary shall transmit to the Committee on Commerce,

Science, and Transportation of the Senate and the Committee on

Transportation and Infrastructure of the House of Representatives

a report that—

(A) evaluates the availability and cost of commercial

war risk insurance for air carriers and other aviation entities for passengers and third parties;

(B) analyzes the economic effect upon air carriers and

other aviation entities of available commercial war risk

insurance; and

(C) describes the manner in which the Department

could provide an alternative means of providing aviation

war risk reinsurance covering passengers, crew, and third

parties through use of a risk-retention group or by other

means.

TITLE XIII—FEDERAL WORKFORCE

IMPROVEMENT

Subtitle A—Chief Human Capital Officers

SEC. 1301. SHORT TITLE.

This title may be cited as the ‘‘Chief Human Capital Officers

Act of 2002’’.

SEC. 1302. AGENCY CHIEF HUMAN CAPITAL OFFICERS.

(a) IN GENERAL.—Part II of title 5, United States Code, is

amended by inserting after chapter 13 the following:

‘‘CHAPTER 14—AGENCY CHIEF HUMAN CAPITAL

OFFICERS

‘‘Sec.

‘‘1401. Establishment of agency Chief Human Capital Officers.

‘‘1402. Authority and functions of agency Chief Human Capital Officers.

‘‘§ 1401. Establishment of agency Chief Human Capital Officers

‘‘The head of each agency referred to under paragraphs (1)

and (2) of section 901(b) of title 31 shall appoint or designate

a Chief Human Capital Officer, who shall—

‘‘(1) advise and assist the head of the agency and other

agency officials in carrying out the agency’s responsibilities

5 USC 101 note.

Chief Human

Capital Officers

Act of 2002.

Deadline.

Effective date.

49 USC 44306.

116 STAT. 2288 PUBLIC LAW 107–296—NOV. 25, 2002

for selecting, developing, training, and managing a high-quality,

productive workforce in accordance with merit system principles; ‘‘(2) implement the rules and regulations of the President

and the Office of Personnel Management and the laws governing the civil service within the agency; and

‘‘(3) carry out such functions as the primary duty of the

Chief Human Capital Officer.

‘‘§ 1402. Authority and functions of agency Chief Human Capital Officers

‘‘(a) The functions of each Chief Human Capital Officer shall

include—

‘‘(1) setting the workforce development strategy of the

agency;

‘‘(2) assessing workforce characteristics and future needs

based on the agency’s mission and strategic plan;

‘‘(3) aligning the agency’s human resources policies and

programs with organization mission, strategic goals, and

performance outcomes;

‘‘(4) developing and advocating a culture of continuous

learning to attract and retain employees with superior abilities;

‘‘(5) identifying best practices and benchmarking studies,

and

‘‘(6) applying methods for measuring intellectual capital

and identifying links of that capital to organizational performance and growth.

‘‘(b) In addition to the authority otherwise provided by this

section, each agency Chief Human Capital Officer—

‘‘(1) shall have access to all records, reports, audits, reviews,

documents, papers, recommendations, or other material that—

‘‘(A) are the property of the agency or are available

to the agency; and

‘‘(B) relate to programs and operations with respect

to which that agency Chief Human Capital Officer has

responsibilities under this chapter; and

‘‘(2) may request such information or assistance as may

be necessary for carrying out the duties and responsibilities

provided by this chapter from any Federal, State, or local

governmental entity.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of

chapters for chapters for part II of title 5, United States Code,

is amended by inserting after the item relating to chapter 13

the following:

‘‘14. Agency Chief Human Capital Officers .................................................. 1401’’.

SEC. 1303. CHIEF HUMAN CAPITAL OFFICERS COUNCIL.

(a) ESTABLISHMENT.—There is established a Chief Human Capital Officers Council, consisting of—

(1) the Director of the Office of Personnel Management,

who shall act as chairperson of the Council;

(2) the Deputy Director for Management of the Office of

Management and Budget, who shall act as vice chairperson

of the Council; and

(3) the Chief Human Capital Officers of Executive departments and any other members who are designated by the

Director of the Office of Personnel Management.

5 USC 1401 note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2289

(b) FUNCTIONS.—The Chief Human Capital Officers Council

shall meet periodically to advise and coordinate the activities of

the agencies of its members on such matters as modernization

of human resources systems, improved quality of human resources

information, and legislation affecting human resources operations

and organizations.

(c) EMPLOYEE LABOR ORGANIZATIONS AT MEETINGS.—The Chief

Human Capital Officers Council shall ensure that representatives

of Federal employee labor organizations are present at a minimum

of 1 meeting of the Council each year. Such representatives shall

not be members of the Council.

(d) ANNUAL REPORT.—Each year the Chief Human Capital Officers Council shall submit a report to Congress on the activities

of the Council.

SEC. 1304. STRATEGIC HUMAN CAPITAL MANAGEMENT.

Section 1103 of title 5, United States Code, is amended by

adding at the end the following:

‘‘(c)(1) The Office of Personnel Management shall design a

set of systems, including appropriate metrics, for assessing the

management of human capital by Federal agencies.

‘‘(2) The systems referred to under paragraph (1) shall be

defined in regulations of the Office of Personnel Management and

include standards for—

‘‘(A)(i) aligning human capital strategies of agencies with

the missions, goals, and organizational objectives of those agencies; and

‘‘(ii) integrating those strategies into the budget and strategic plans of those agencies;

‘‘(B) closing skill gaps in mission critical occupations;

‘‘(C) ensuring continuity of effective leadership through

implementation of recruitment, development, and succession

plans;

‘‘(D) sustaining a culture that cultivates and develops a

high performing workforce; ‘‘(E) developing and implementing a knowledge management strategy supported by appropriate investment in training

and technology; and

‘‘(F) holding managers and human resources officers

accountable for efficient and effective human resources management in support of agency missions in accordance with merit

system principles.’’.

SEC. 1305. EFFECTIVE DATE.

This subtitle shall take effect 180 days after the date of enactment of this Act.

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.

(a) PERFORMANCE PLANS.—Section 1115 of title 31, United

States Code, is amended—

5 USC 1103 note.

116 STAT. 2290 PUBLIC LAW 107–296—NOV. 25, 2002

(1) in subsection (a), by striking paragraph (3) and inserting

the following: ‘‘(3) provide a description of how the performance goals

and objectives are to be achieved, including the operation processes, training, skills and technology, and the human, capital,

information, and other resources and strategies required to

meet those performance goals and objectives.’’;

(2) by redesignating subsection (f) as subsection (g); and

(3) by inserting after subsection (e) the following:

‘‘(f) With respect to each agency with a Chief Human Capital

Officer, the Chief Human Capital Officer shall prepare that portion

of the annual performance plan described under subsection (a)(3).’’.

(b) PROGRAM PERFORMANCE REPORTS.—Section 1116(d) of title

31, United States Code, is amended— (1) in paragraph (4), by striking ‘‘and’’ after the semicolon;

(2) by redesignating paragraph (5) as paragraph (6); and

(3) by inserting after paragraph (4) the following:

‘‘(5) include a review of the performance goals and evaluation of the performance plan relative to the agency’s strategic

human capital management; and’’.

SEC. 1312. REFORM OF THE COMPETITIVE SERVICE HIRING PROCESS.

(a) IN GENERAL.—Chapter 33 of title 5, United States Code,

is amended—

(1) in section 3304(a)—

(A) in paragraph (1), by striking ‘‘and’’ after the semicolon;

(B) in paragraph (2), by striking the period and

inserting ‘‘; and’’; and

(C) by adding at the end of the following:

‘‘(3) authority for agencies to appoint, without regard to

the provision of sections 3309 through 3318, candidates directly

to positions for which—

‘‘(A) public notice has been given; and

‘‘(B) the Office of Personnel Management has determined that there exists a severe shortage of candidates

or there is a critical hiring need.

The Office shall prescribe, by regulation, criteria for identifying

such positions and may delegate authority to make determinations

under such criteria.’’; and

(2) by inserting after section 3318 the following:

‘‘§ 3319. Alternative ranking and selection procedures

‘‘(a) The Office, in exercising its authority under section 3304,

or an agency to which the Office has delegated examining authority

under section 1104(a)(2), may establish category rating systems

for evaluating applicants for positions in the competitive service,

under 2 or more quality categories based on merit consistent with

regulations prescribed by the Office of Personnel Management,

rather than assigned individual numerical ratings.

‘‘(b) Within each quality category established under subsection

(a), preference-eligibles shall be listed ahead of individuals who

are not preference eligibles. For other than scientific and professional positions at GS–9 of the General Schedule (equivalent or

higher), qualified preference-eligibles who have a compensable

service-connected disability of 10 percent or more shall be listed

in the highest quality category.

Regulations.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2291

‘‘(c)(1) An appointing official may select any applicant in the

highest quality category or, if fewer than 3 candidates have been

assigned to the highest quality category, in a merged category

consisting of the highest and the second highest quality categories.

‘‘(2) Notwithstanding paragraph (1), the appointing official may

not pass over a preference-eligible in the same category from which

selection is made, unless the requirements of section 3317(b) or

3318(b), as applicable, are satisfied.

‘‘(d) Each agency that establishes a category rating system

under this section shall submit in each of the 3 years following

that establishment, a report to Congress on that system including

information on—

‘‘(1) the number of employees hired under that system;

‘‘(2) the impact that system has had on the hiring of veterans and minorities, including those who are American Indian

or Alaska Natives, Asian, Black or African American, and

native Hawaiian or other Pacific Islanders; and

‘‘(3) the way in which managers were trained in the

administration of that system.

‘‘(e) The Office of Personnel Management may prescribe such

regulations as it considers necessary to carry out the provisions

of this section.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of

sections for chapter 33 of title 5, United States Code, is amended

by striking the item relating to section 3319 and inserting the

following:

‘‘3319. Alternative ranking and selection procedures.’’.

SEC. 1313. PERMANENT EXTENSION, REVISION, AND EXPANSION OF

AUTHORITIES FOR USE OF VOLUNTARY SEPARATION

INCENTIVE PAY AND VOLUNTARY EARLY RETIREMENT.

(a) VOLUNTARY SEPARATION INCENTIVE PAYMENTS.—

(1) IN GENERAL.—

(A) AMENDMENT TO TITLE 5, UNITED STATES CODE.— Chapter 35 of title 5, United States Code, is amended

by inserting after subchapter I the following:

‘‘SUBCHAPTER II—VOLUNTARY SEPARATION INCENTIVE

PAYMENTS

‘‘§ 3521. Definitions

‘‘In this subchapter, the term—

‘‘(1) ‘agency’ means an Executive agency as defined under

section 105; and

‘‘(2) ‘employee’—

‘‘(A) means an employee as defined under section 2105

employed by an agency and an individual employed by

a county committee established under section 8(b)(5) of

the Soil Conservation and Domestic Allotment Act (16

U.S.C. 590h(b)(5)) who—

‘‘(i) is serving under an appointment without time

limitation; and

‘‘(ii) has been currently employed for a continuous

period of at least 3 years; and

‘‘(B) shall not include—

Reports.

116 STAT. 2292 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(i) a reemployed annuitant under subchapter III

of chapter 83 or 84 or another retirement system for

employees of the Government;

‘‘(ii) an employee having a disability on the basis

of which such employee is or would be eligible for

disability retirement under subchapter III of chapter

83 or 84 or another retirement system for employees

of the Government;

‘‘(iii) an employee who is in receipt of a decision

notice of involuntary separation for misconduct or

unacceptable performance;

‘‘(iv) an employee who has previously received any

voluntary separation incentive payment from the Federal Government under this subchapter or any other

authority;

‘‘(v) an employee covered by statutory reemployment rights who is on transfer employment with

another organization; or

‘‘(vi) any employee who—

‘‘(I) during the 36-month period preceding the

date of separation of that employee, performed

service for which a student loan repayment benefit

was or is to be paid under section 5379;

‘‘(II) during the 24-month period preceding the

date of separation of that employee, performed

service for which a recruitment or relocation bonus

was or is to be paid under section 5753; or

‘‘(III) during the 12-month period preceding

the date of separation of that employee, performed

service for which a retention bonus was or is to

be paid under section 5754.

‘‘§ 3522. Agency plans; approval

‘‘(a) Before obligating any resources for voluntary separation

incentive payments, the head of each agency shall submit to the

Office of Personnel Management a plan outlining the intended

use of such incentive payments and a proposed organizational chart

for the agency once such incentive payments have been completed.

‘‘(b) The plan of an agency under subsection (a) shall include—

‘‘(1) the specific positions and functions to be reduced or

eliminated;

‘‘(2) a description of which categories of employees will

be offered incentives;

‘‘(3) the time period during which incentives may be paid;

‘‘(4) the number and amounts of voluntary separation incentive payments to be offered; and

‘‘(5) a description of how the agency will operate without

the eliminated positions and functions.

‘‘(c) The Director of the Office of Personnel Management shall

review each agency’s plan an may make any appropriate modifications in the plan, in consultation with the Director of the Office

of Management and Budget. A plan under this section may not

be implemented without the approval of the Directive of the Office

of Personnel Management.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2293

‘‘§ 3523. Authority to provide voluntary separation incentive

payments

‘‘(a) A voluntary separation incentive payment under this subchapter may be paid to an employee only as provided in the plan

of an agency established under section 3522. ‘‘(b) A voluntary incentive payment— ‘‘(1) shall be offered to agency employees on the basis

of— ‘‘(A) 1 or more organizational units;

‘‘(B) 1 or more occupational series or levels;

‘‘(C) 1 or more geographical locations;

‘‘(D) skills, knowledge, or other factors related to a

position; ‘‘(E) specific periods of time during which eligible

employees may elect a voluntary incentive payment; or ‘‘(F) any appropriate combination of such factors; ‘‘(2) shall be paid in a lump sum after the employee’s

separation; ‘‘(3) shall be equal to the lesser of— ‘‘(A) an amount equal to the amount the employee

would be entitled to receive under section 5595(c) if the

employee were entitled to payment under such section

(without adjustment for any previous payment made); or ‘‘(B) an amount determined by the agency head, not to exceed $25,000;

‘‘(4) may be made only in the case of an employee who

voluntarily separates (whether by retirement or resignation)

under this subchapter; ‘‘(5) shall not be a basis for payment, and shall not be

included in the computation, of any other type of Government

benefit; ‘‘(6) shall not be taken into account in determining the

amount of any severance pay to which the employee may be

entitled under section 5595, based on another other separation;

and ‘‘(7) shall be paid from appropriations or funds available

for the payment of the basic pay of the employee.

‘‘§ 3524. Effect of subsequent employment with the Government

‘‘(a) The term ‘employment’—

‘‘(1) in subsection (b) includes employment under a personal

services contract (or other direct contract) with the United

States Government (other than an entity in the legislative

branch); and

‘‘(2) in subsection (c) does not include employment under

such a contract.

‘‘(b) An individual who has received a voluntary separation

incentive payment under this subchapter and accepts any employment for compensation with the Government of the United States

with 5 years after the date of the separation on which the payment

is based shall be required to pay, before the individual’s first day

of employment, the entire amount of the incentive payment to

the agency that paid the incentive payment.

‘‘(c)(1) If the employment under this section is with an agency,

other than the General Accounting Office, the United States Postal

Service, or the Postal Rate Commission, the Director of the Office

116 STAT. 2294 PUBLIC LAW 107–296—NOV. 25, 2002

of Personnel Management may, at the request of the head of the

agency, may waive the repayment if— ‘‘(A) the individual involved possesses unique abilities and

is the only qualified applicant available for the position; or ‘‘(B) in case of an emergency involving a direct threat

to life or property, the individual— ‘‘(i) has skills directly related to resolving the emergency; and ‘‘(ii) will serve on a temporary basis only so long as

that individual’s services are made necessary by the emergency. ‘‘(2) If the employment under this section is with an entity

in the legislative branch, the head of the entity or the appointing

official may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available

for the position. ‘‘(3) If the employment under this section is with the judicial

branch, the Director of the Administrative Office of the United

States Courts may waive the repayment if the individual involved

possesses unique abilities and is the only qualified applicant available for the position.

‘‘§ 3525. Regulations

‘‘The Office of Personnel Management may prescribe regulations to carry out this subchapter.’’. (B) TECHNICAL AND CONFORMING AMENDMENTS.— Chapter 35 of title 5, United States Code, is amended— (i) by striking the chapter heading and inserting

the following:

‘‘CHAPTER 35—RETENTION PREFERENCE, VOLUNTARY

SEPARATION INCENTIVE PAYMENTS, RESTORATION,

AND REEMPLOYMENT’’;

and

(ii) in the table of sections by inserting after the

item relating to section 3504 the following:

‘‘SUBCHAPTER II—VOLUNTARY SEPARATION INCENTIVE PAYMENTS

‘‘3521. Definitions.

‘‘3522. Agency plans; approval.

‘‘3523. Authority to provide voluntary separation incentive payments.

‘‘3524. Effect of subsequent employment with the Government.

‘‘3525. Regulations.’’.

(2) ADMINISTRATIVE OFFICE OF THE UNITED STATES

COURTS.—The Director of the Administrative Office of the

United States Courts may, by regulation, establish a program

substantially similar to the program established under paragraph (1) for individuals serving in the judicial branch.

(3) CONTINUATION OF OTHER AUTHORITY.—Any agency exercising any voluntary separation incentive authority in effect

on the effective date of this subsection may continue to offer

voluntary separation incentives consistent with that authority

until that authority expires.

(4) EFFECTIVE DATE.—This subsection shall take effect 60

days after the date of enactment of this Act.

(b) FEDERAL EMPLOYEE VOLUNTARY EARLY RETIREMENT.—

(1) CIVIL SERVICE RETIREMENT SYSTEM.—Section 8336(d)(2)

of title 5, United States Code, is amended to read as follows:

5 USC 3521 note.

5 USC 3521 note.

5 USC 3521 note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2295

‘‘(2)(A) has been employed continuously, by the agency in

which the employee is serving, for at least the 31-day period

ending on the date on which such agency requests the determination referred to in subparagraph (D);

‘‘(B) is serving under an appointment that is not time

limited;

‘‘(C) has not been duly notified that such employee is to

be involuntarily separated for misconduct or unacceptable

performance;

‘‘(D) is separated from the service voluntarily during a

period in which, as determined by the office of Personnel

Management (upon request of the agency) under regulations

prescribed by the Office—

‘‘(i) such agency (or, if applicable, the component in

which the employee is serving) is undergoing substantial

delayering, substantial reorganization, substantial reductions in force, substantial transfer of function, or other

substantial workforce restructuring (or shaping);

‘‘(ii) a significant percentage of employees servicing

in such agency (or component) are likely to be separated

or subject to an immediate reduction in the rate of basic

pay (without regard to subchapter VI of chapter 53, or

comparable provisions); or

‘‘(iii) identified as being in positions which are

becoming surplus or excess to the agency’s future ability

to carry out its mission effectively; and

‘‘(E) as determined by the agency under regulations prescribed by the Office, is within the scope of the offer of voluntary

early retirement, which may be made on the basis of—

‘‘(i) 1 or more organizational units;

‘‘(ii) 1 or more occupational series or levels;

‘‘(iii) 1 or more geographical locations;

‘‘(iv) specific periods;

‘‘(v) skills, knowledge, or other factors related to a

position; or

‘‘(vi) any appropriate combination of such factors;’’.

(2) FEDERAL EMPLOYEES’ RETIREMENT SYSTEM.—Section

8414(b)(1) of title 5, United States Code, is amended by striking

subparagraph (B) and inserting the following:

‘‘(B)(i) has been employed continuously, by the agency

in which the employee is serving, for at least the 31-

day period ending on the date on which such agency

requests the determination referred to in clause (iv);

‘‘(ii) is serving under an appointment that is not time

limited;

‘‘(iii) has not been duly notified that such employee

is to be involuntarily separated for misconduct or unacceptable performance;

‘‘(iv) is separate from the service voluntarily during

a period in which, as determined by the Office of Personnel

Management (upon request of the agency) under regulations prescribed by the Office—

‘‘(I) such agency (or, if applicable, the component

in which the employee is serving) is undergoing

substantial delayering, substantial reorganization,

substantial reductions in force, substantial transfer of

Regulations.

Regulations.

116 STAT. 2296 PUBLIC LAW 107–296—NOV. 25, 2002

function, or other substantial workforce restructuring

(or shaping); ‘‘(II) a significant percentage of employees serving

in such agency (or component) are likely to be separated or subject to an immediate reduction in the rate

of basic pay (without regard to subchapter VI of chapter

53, or comparable provisions); or ‘‘(III) identified as being in positions which are

becoming surplus or excess to the agency’s future

ability to carry out its mission effectively; and

‘‘(v) as determined by the agency under regulations

prescribed by the Office, is within the scope of the offer

of voluntary early retirement, which may be made on the

basis of—

‘‘(I) 1 or more organizational units;

‘‘(II) 1 or more occupational series or levels;

‘‘(III) 1 or more geographical locations;

‘‘(IV) specific periods;

‘‘(V) skills, knowledge, or other factors related to

a position; or

‘‘(VI) any appropriate combination of such factors.’’.

(3) GENERAL ACCOUNTING OFFICE AUTHORITY.—The amendments made by this subsection shall not be construed to affect

the authority under section 1 of Public Law 106–303 (5 U.S.C.

8336 note; 114 State. 1063).

(4) TECHNICAL AND CONFORMING AMENDMENTS.—Section

7001 of the 1998 Supplemental Appropriations and Rescissions

Act (Public Law 105–174; 112 Stat. 91) is repealed.

(5) REGULATIONS.—The Office of Personnel Management

may prescribe regulations to carry out this subsection.

(c) SENSE OF CONGRESS.—It is the sense of Congress that

the implementation of this section is intended to reshape the Federal workforce and not downsize the Federal workforce.

SEC. 1314. STUDENT VOLUNTEER TRANSIT SUBSIDY.

(a) IN GENERAL.—Section 7905(a)(1) of title 5, United States

Code, is amended by striking ‘‘and a member of a uniformed service’’

and inserting ‘‘, a member of a uniformed service, and a student

who provides voluntary services under section 3111’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—Section

3111(c)(1) of title 5, United States Code, is amended by striking

‘‘chapter 81 of this title’’ and inserting ‘‘section 7905 (relating to

commuting by means other than single-occupancy motor vehicles),

chapter 81’’.

Subtitle C—Reforms Relating to the Senior

Executive Service

SEC. 1321. REPEAL OF RECERTIFICATION REQUIREMENTS OF SENIOR

EXECUTIVES.

(a) IN GENERAL.—Title 5, United States Code, is amended—

(1) in chapter 33—

(A) in section 3393(g) by striking ‘‘3393a’’;

(B) by repealing section 3393a; and

(C) in the table of sections by striking the item relating

to section 3393a;

5 USC 3521 note.

5 USC 8336 note.

5 USC 8336 note,

8414 note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2297

(2) in chapter 35— (A) in section 3592(a)— (i) in paragraph (1), by inserting ‘‘or’’ at the end;

(ii) in paragraph (2), by striking ‘‘or’’ at the end;

(iii) by striking paragraph (3); and

(iv) by striking the last sentence;

(B) in section 3593(a), by striking paragraph (2) and

inserting the following:

‘‘(2) the appointee left the Senior Executive Service for

reasons other than misconduct, neglect of duty, malfeasance,

or less than fully successful executive performance as determined under subchapter II of chapter 43.’’; and

(C) in section 3594(b)—

(i) in paragraph (1), by inserting ‘‘or’’ at the end;

(ii) in paragraph (2), by striking ‘‘or’’ at the end;

and

(iii) by striking paragraph (3);

(3) in section 7701(c)(1)(A), by striking ‘‘or removal from

the Senior Executive Service for failure to be recertified under

section 3393a’’;

(4) in chapter 83—

(A) in section 8336(h)(1), by striking ‘‘for failure to

be recertified as a senior executive under section 3393a

or’’; and

(B) in section 8339(h), in the first sentence, by striking

‘‘, except that such reduction shall not apply in the case

of an employee retiring under section 8336(h) for failure

to be recertified as a senior executive’’; and

(5) in chapter 84—

(A) in section 8414(a)(1), by striking ‘‘for failure to

be recertified as a senior executive under section 3393a

or’’; and

(B) in section 8421(a)(2), by striking ‘‘, except that

an individual entitled to an annuity under section 8414(a)

for failure to be recertified as a senior executive shall

be entitled to an annuity supplement without regard to

such applicable retirement age’’.

(b) SAVINGS PROVISION.—Notwithstanding the amendments

made by subsection (a)(2)(A), an appeal under the final sentence

of section 3592(a) of title 5, United States Code, that is pending

on the day before the effective date of this section—

(1) shall not abate by reason of the enactment of the

amendments made by subsection (a)(2)(A); and

(2) shall continue as if such amendments had not been

enacted.

(c) APPLICATION.—The amendment made by subsection (a)(2)(B)

shall not apply with respect to an individual who, before the effective date of this section, leaves the Senior Executive Service for

failure to be recertified as a senior executive under section 3393a

of title 5, United States Code.

SEC. 1322. ADJUSTMENT OF LIMITATION ON TOTAL ANNUAL COMPENSATION.

(a) IN GENERAL.—Section 5307 of title 5, United States Code,

is amended by adding at the end the following:

‘‘(d)(1) Notwithstanding any other provision of this section,

subsection (a)(1) shall be applied by substituting ‘the total annual

Applicability.

5 USC 3593 note.

5 USC 3592 note.

116 STAT. 2298 PUBLIC LAW 107–296—NOV. 25, 2002

compensation payable to the Vice President under section 104 of

title 3’ for ‘the annual rate of basic pay payable for level I of

the Executive Schedule’ in the case of any employee who—

‘‘(A) is paid under section 5376 or 5383 of this title or

section 332(f), 603, or 604 of title 28; and

‘‘(B) holds a position in or under an agency which is

described in paragraph (2).

‘‘(2) An agency described in this paragraph is any agency which,

for purposes of the calendar year involved, has been certified under

this subsection as having a performance appraisal system which

(as designed and applied) makes meaningful distinctions based

on relative performance.

‘‘(3)(A) The Office of Personnel Management and the Office

of Management and Budget jointly shall promulgate such regulations as may be necessary to carry out this subsection, including

the criteria and procedures in accordance with which any determinations under this subsection shall be made.

‘‘(B) An agency’s certification under this subsection shall be

for a period of 2 calendar years, except that such certification

may be terminated at any time, for purposes of either or both

of those years, upon a finding that the actions of such agency

have not remained in conformance with applicable requirements.

‘‘(C) Any certification or decertification under this subsection

shall be made by the Office of Personnel Management, with the

concurrence of the Office of Management and Budget.

‘‘(4) Notwithstanding any provision of paragraph (3), any regulations, certifications, or other measures necessary to carry out

this subsection with respect to employees within the judicial branch

shall be the responsibility of the Director of the Administrative

Office of the United States Courts. However, the regulations under

this paragraph shall be consistent with those promulgated under

paragraph (3).’’. (b) CONFORMING AMENDMENTS.—(1) Section 5307(a) of title 5,

United States Code, is amended by inserting ‘‘or as otherwise provided under subsection (d),’’ after ‘‘under law,’’.

(2) Section 5307(c) of such title is amended by striking ‘‘this

section,’’ and inserting ‘‘this section (subject to subsection (d)),’’.

Subtitle D—Academic Training

SEC. 1331. ACADEMIC TRAINING.

(a) ACADEMIC DEGREE TRAINING.—Section 4107 of title 5,

United States Code, is amended to read as follows:

‘‘§ 4107. Academic degree training

‘‘(a) Subject to subsection (b), an agency may select and assign

an employee to academic degree training and may pay or reimburse

the costs of academic degree training from appropriated or other

available funds if such training— ‘‘(1) contributes significantly to—

‘‘(A) meeting an identified agency training need;

‘‘(B) resolving an identified agency staffing problem;

or

‘‘(C) accomplishing goals in the strategic plan of the

agency;

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2299

‘‘(2) is part of a planned, systemic, and coordinated agency

employee development program linked to accomplishing the

strategic goals of the agency; and ‘‘(3) is accredited and is provided by a college or university

that is accredited by a nationally recognized body.

‘‘(b) In exercising authority under subsection (a), an agency

shall— ‘‘(1) consistent with the merit system principles set forth

in paragraphs (2) and (7) of section 2301(b), take into consideration the need to— ‘‘(A) maintain a balanced workforce in which women,

members of racial and ethnic minority groups, and persons

with disabilities are appropriately represented in Government service; and ‘‘(B) provide employees effective education and training

to improve organizational and individual performance;

‘‘(2) assure that the training is not for the sole purpose

of providing an employee an opportunity to obtain an academic

degree or qualify for appointment to a particular position for

which the academic degree is a basic requirement; ‘‘(3) assure that no authority under this subsection is exercised on behalf of any employee occupying or seeking to qualify

for— ‘‘(A) a noncareer appointment in the senior Executive

Service; or ‘‘(B) appointment to any position that is excepted from

the competitive service because of its confidential policydetermining, policy-making or policy-advocating character;

and

‘‘(4) to the greatest extent practicable, facilitate the use

of online degree training.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of

sections for chapter 41 of title 5, United States Code, is amended

by striking the item relating to section 4107 and inserting the

following:

‘‘4107. Academic degree training.’’.

SEC. 1332. MODIFICATIONS TO NATIONAL SECURITY EDUCATION PROGRAM.

(a) FINDINGS AND POLICIES.—

(1) FINDINGS.—Congress finds that—

(A) the United States Government actively encourages

and financially supports the training, education, and

development of many United States citizens;

(B) as a condition of some of those supports, many

of those citizens have an obligation to seek either compensated or uncompensated employment in the Federal

sector; and

(C) it is in the United States national interest to maximize the return to the Nation of funds invested in the

development of such citizens by seeking to employ them

in the Federal sector.

(2) POLICY.—It shall be the policy of the United States

Government to—

(A) establish procedures for ensuring that United

States citizens who have incurred service obligations as

the result of receiving financial support for education and

5 USC 3301 note.

116 STAT. 2300 PUBLIC LAW 107–296—NOV. 25, 2002

training from the United States Government and have

applied for Federal positions are considered in all recruitment and hiring initiatives of Federal departments,

bureaus, agencies, and offices; and

(B) advertise and open all Federal positions to United

States citizens who have incurred service obligations with

the United States Government as the result of receiving

financial support for education and training from the

United States Government.

(b) FULFILLMENT OF SERVICE REQUIREMENT IF NATIONAL SECURITY POSITIONS ARE UNAVAILABLE.—Section 802(b)(2) of the David

L. Boren National Security Education Act of 1991 (50 U.S.C. 1902)

is amended—

(1) in subparagraph (A), by striking clause (ii) and inserting

the following:

‘‘(ii) if the recipient demonstrates to the Secretary

(in accordance with such regulations) that no national

security position in an agency or office of the Federal

Government having national security responsibilities

is available, work in other offices or agencies of the

Federal Government or in the field of higher education

in a discipline relating to the foreign country, foreign

language, area study, or international field of study

for which the scholarship was awarded, for a period

specified by the Secretary, which period shall be determined in accordance with clause (i); or’’; and

(2) in subparagraph (B), by striking clause (ii) and inserting

the following:

‘‘(ii) if the recipient demonstrates to the Secretary

(in accordance with such regulations) that no national

security position is available upon the completion of

the degree, work in other offices or agencies of the

Federal Government or in the field of higher education

in a discipline relating to foreign country, foreign language, area study, or international field of study for

which the fellowship was awarded, for a period specified by the Secretary, which period shall be determined

in accordance with clause (i); and’’.

TITLE XIV—ARMING PILOTS AGAINST

TERRORISM

SEC. 1401. SHORT TITLE.

This title may be cited as the ‘‘Arming Pilots Against Terrorism

Act’’.

SEC. 1402. FEDERAL FLIGHT DECK OFFICER PROGRAM.

(a) IN GENERAL.—Subchapter I of chapter 449 of title 49, United

States Code, is amended by adding at the end the following:

‘‘§ 44921. Federal flight deck officer program

‘‘(a) ESTABLISHMENT.—The Under Secretary of Transportation

for Security shall establish a program to deputize volunteer pilots

of air carriers providing passenger air transportation or intrastate

passenger air transportation as Federal law enforcement officers

to defend the flight decks of aircraft of such air carriers against

49 USC 40101

note.

Arming Pilots

Against

Terrorism Act.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2301

acts of criminal violence or air piracy. Such officers shall be known

as ‘Federal flight deck officers’. ‘‘(b) PROCEDURAL REQUIREMENTS.—

‘‘(1) IN GENERAL.—Not later than 3 months after the date

of enactment of this section, the Under Secretary shall establish

procedural requirements to carry out the program under this

section. ‘‘(2) COMMENCEMENT OF PROGRAM.—Beginning 3 months

after the date of enactment of this section, the Under Secretary

shall begin the process of training and deputizing pilots who

are qualified to be Federal flight deck officers as Federal flight

deck officers under the program. ‘‘(3) ISSUES TO BE ADDRESSED.—The procedural requirements established under paragraph (1) shall address the following issues: ‘‘(A) The type of firearm to be used by a Federal flight

deck officer. ‘‘(B) The type of ammunition to be used by a Federal

flight deck officer. ‘‘(C) The standards and training needed to qualify and

requalify as a Federal flight deck officer. ‘‘(D) The placement of the firearm of a Federal flight

deck officer on board the aircraft to ensure both its security

and its ease of retrieval in an emergency. ‘‘(E) An analysis of the risk of catastrophic failure

of an aircraft as a result of the discharge (including an

accidental discharge) of a firearm to be used in the program

into the avionics, electrical systems, or other sensitive areas

of the aircraft.

‘‘(F) The division of responsibility between pilots in

the event of an act of criminal violence or air piracy if

only 1 pilot is a Federal flight deck officer and if both

pilots are Federal flight deck officers.

‘‘(G) Procedures for ensuring that the firearm of a

Federal flight deck officer does not leave the cockpit if

there is a disturbance in the passenger cabin of the aircraft

or if the pilot leaves the cockpit for personal reasons.

‘‘(H) Interaction between a Federal flight deck officer

and a Federal air marshal on board the aircraft.

‘‘(I) The process for selection of pilots to participate

in the program based on their fitness to participate in

the program, including whether an additional background

check should be required beyond that required by section

44936(a)(1).

‘‘(J) Storage and transportation of firearms between

flights, including international flights, to ensure the security of the firearms, focusing particularly on whether such

security would be enhanced by requiring storage of the

firearm at the airport when the pilot leaves the airport

to remain overnight away from the pilot’s base airport.

‘‘(K) Methods for ensuring that security personnel will

be able to identify whether a pilot is authorized to carry

a firearm under the program.

‘‘(L) Methods for ensuring that pilots (including Federal

flight deck officers) will be able to identify whether a passenger is a law enforcement officer who is authorized to

carry a firearm aboard the aircraft.

Deadline.

116 STAT. 2302 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(M) Any other issues that the Under Secretary considers necessary. ‘‘(N) The Under Secretary’s decisions regarding the

methods for implementing each of the foregoing procedural

requirements shall be subject to review only for abuse

of discretion.

‘‘(4) PREFERENCE.—In selecting pilots to participate in the

program, the Under Secretary shall give preference to pilots

who are former military or law enforcement personnel. ‘‘(5) CLASSIFIED INFORMATION.—Notwithstanding section

552 of title 5 but subject to section 40119 of this title, information developed under paragraph (3)(E) shall not be disclosed. ‘‘(6) NOTICE TO CONGRESS.—The Under Secretary shall provide notice to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on

Commerce, Science, and Transportation of the Senate after

completing the analysis required by paragraph (3)(E). ‘‘(7) MINIMIZATION OF RISK.—If the Under Secretary determines as a result of the analysis under paragraph (3)(E) that

there is a significant risk of the catastrophic failure of an

aircraft as a result of the discharge of a firearm, the Under

Secretary shall take such actions as may be necessary to minimize that risk.

‘‘(c) TRAINING, SUPERVISION, AND EQUIPMENT.—

‘‘(1) IN GENERAL.—The Under Secretary shall only be obligated to provide the training, supervision, and equipment necessary for a pilot to be a Federal flight deck officer under

this section at no expense to the pilot or the air carrier

employing the pilot.

‘‘(2) TRAINING.—

‘‘(A) IN GENERAL.—The Under Secretary shall base the

requirements for the training of Federal flight deck officers

under subsection (b) on the training standards applicable

to Federal air marshals; except that the Under Secretary

shall take into account the differing roles and responsibilities of Federal flight deck officers and Federal air marshals.

‘‘(B) ELEMENTS.—The training of a Federal flight deck

officer shall include, at a minimum, the following elements:

‘‘(i) Training to ensure that the officer achieves

the level of proficiency with a firearm required under

subparagraph (C)(i).

‘‘(ii) Training to ensure that the officer maintains

exclusive control over the officer’s firearm at all times,

including training in defensive maneuvers.

‘‘(iii) Training to assist the officer in determining

when it is appropriate to use the officer’s firearm and

when it is appropriate to use less than lethal force.

‘‘(C) TRAINING IN USE OF FIREARMS.—

‘‘(i) STANDARD.—In order to be deputized as a Federal flight deck officer, a pilot must achieve a level

of proficiency with a firearm that is required by the

Under Secretary. Such level shall be comparable to

the level of proficiency required of Federal air marshals.

‘‘(ii) CONDUCT OF TRAINING.—The training of a Federal flight deck officer in the use of a firearm may

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2303

be conducted by the Under Secretary or by a firearms

training facility approved by the Under Secretary.

‘‘(iii) REQUALIFICATION.—The Under Secretary

shall require a Federal flight deck officer to requalify

to carry a firearm under the program. Such requalification shall occur at an interval required by the Under

Secretary.

‘‘(d) DEPUTIZATION.—

‘‘(1) IN GENERAL.—The Under Secretary may deputize, as

a Federal flight deck officer under this section, a pilot who

submits to the Under Secretary a request to be such an officer

and whom the Under Secretary determines is qualified to be

such an officer.

‘‘(2) QUALIFICATION.—A pilot is qualified to be a Federal

flight deck officer under this section if—

‘‘(A) the pilot is employed by an air carrier;

‘‘(B) the Under Secretary determines (in the Under

Secretary’s discretion) that the pilot meets the standards

established by the Under Secretary for being such an

officer; and

‘‘(C) the Under Secretary determines that the pilot

has completed the training required by the Under Secretary.

‘‘(3) DEPUTIZATION BY OTHER FEDERAL AGENCIES.—The

Under Secretary may request another Federal agency to deputize, as Federal flight deck officers under this section, those

pilots that the Under Secretary determines are qualified to

be such officers.

‘‘(4) REVOCATION.—The Under Secretary may, (in the Under

Secretary’s discretion) revoke the deputization of a pilot as

a Federal flight deck officer if the Under Secretary finds that

the pilot is no longer qualified to be such an officer.

‘‘(e) COMPENSATION.—Pilots participating in the program under

this section shall not be eligible for compensation from the Federal

Government for services provided as a Federal flight deck officer.

The Federal Government and air carriers shall not be obligated

to compensate a pilot for participating in the program or for the

pilot’s training or qualification and requalification to carry firearms

under the program.

‘‘(f) AUTHORITY TO CARRY FIREARMS.—

‘‘(1) IN GENERAL.—The Under Secretary shall authorize

a Federal flight deck officer to carry a firearm while engaged

in providing air transportation or intrastate air transportation.

Notwithstanding subsection (c)(1), the officer may purchase

a firearm and carry that firearm aboard an aircraft of which

the officer is the pilot in accordance with this section if the

firearm is of a type that may be used under the program.

‘‘(2) PREEMPTION.—Notwithstanding any other provision of

Federal or State law, a Federal flight deck officer, whenever

necessary to participate in the program, may carry a firearm

in any State and from 1 State to another State.

‘‘(3) CARRYING FIREARMS OUTSIDE UNITED STATES.—In consultation with the Secretary of State, the Under Secretary

may take such action as may be necessary to ensure that

a Federal flight deck officer may carry a firearm in a foreign

country whenever necessary to participate in the program.

116 STAT. 2304 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(g) AUTHORITY TO USE FORCE.—Notwithstanding section

44903(d), the Under Secretary shall prescribe the standards and

circumstances under which a Federal flight deck officer may use,

while the program under this section is in effect, force (including

lethal force) against an individual in the defense of the flight

deck of an aircraft in air transportation or intrastate air transportation.

‘‘(h) LIMITATION ON LIABILITY.—

‘‘(1) LIABILITY OF AIR CARRIERS.—An air carrier shall not

be liable for damages in any action brought in a Federal or

State court arising out of a Federal flight deck officer’s use

of or failure to use a firearm.

‘‘(2) LIABILITY OF FEDERAL FLIGHT DECK OFFICERS.—A Federal flight deck officer shall not be liable for damages in any

action brought in a Federal or State court arising out of the

acts or omissions of the officer in defending the flight deck

of an aircraft against acts of criminal violence or air piracy

unless the officer is guilty of gross negligence or willful misconduct.

‘‘(3) LIABILITY OF FEDERAL GOVERNMENT.—For purposes of

an action against the United States with respect to an act

or omission of a Federal flight deck officer in defending the

flight deck of an aircraft, the officer shall be treated as an

employee of the Federal Government under chapter 171 of

title 28, relating to tort claims procedure.

‘‘(i) PROCEDURES FOLLOWING ACCIDENTAL DISCHARGES.—If an

accidental discharge of a firearm under the pilot program results

in the injury or death of a passenger or crew member on an

aircraft, the Under Secretary—

‘‘(1) shall revoke the deputization of the Federal flight

deck officer responsible for that firearm if the Under Secretary

determines that the discharge was attributable to the negligence of the officer; and

‘‘(2) if the Under Secretary determines that a shortcoming

in standards, training, or procedures was responsible for the

accidental discharge, the Under Secretary may temporarily suspend the program until the shortcoming is corrected.

‘‘(j) LIMITATION ON AUTHORITY OF AIR CARRIERS.—No air carrier

shall prohibit or threaten any retaliatory action against a pilot

employed by the air carrier from becoming a Federal flight deck

officer under this section. No air carrier shall—

‘‘(1) prohibit a Federal flight deck officer from piloting

an aircraft operated by the air carrier; or

‘‘(2) terminate the employment of a Federal flight deck

officer, solely on the basis of his or her volunteering for or

participating in the program under this section.

‘‘(k) APPLICABILITY.—

‘‘(1) EXEMPTION.—This section shall not apply to air carriers

operating under part 135 of title 14, Code of Federal Regulations, and to pilots employed by such carriers to the extent

that such carriers and pilots are covered by section 135.119

of such title or any successor to such section.

‘‘(2) PILOT DEFINED.—The term ‘pilot’ means an individual

who has final authority and responsibility for the operation

and safety of the flight or, if more than 1 pilot is required

for the operation of the aircraft or by the regulations under

Standards.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2305

which the flight is being conducted, the individual designated

as second in command.’’. (b) CONFORMING AMENDMENTS.—

(1) CHAPTER ANALYSIS.—The analysis for such chapter is

amended by inserting after the item relating to section 44920

the following:

‘‘44921. Federal flight deck officer program.’’.

(2) FLIGHT DECK SECURITY.—Section 128 of the Aviation

and Transportation Security Act (Public Law 107–71) is

repealed.

(c) FEDERAL AIR MARSHAL PROGRAM.— (1) SENSE OF CONGRESS.—It is the sense of Congress that

the Federal air marshal program is critical to aviation security.

(2) LIMITATION ON STATUTORY CONSTRUCTION.—Nothing in

this Act, including any amendment made by this Act, shall

be construed as preventing the Under Secretary of Transportation for Security from implementing and training Federal

air marshals.

SEC. 1403. CREW TRAINING.

(a) IN GENERAL.—Section 44918(e) of title 49, United States

Code, is amended—

(1) by striking ‘‘The Administrator’’ and inserting the following:

‘‘(1) IN GENERAL.—The Under Secretary’’;

(2) by adding at the end the following:

‘‘(2) ADDITIONAL REQUIREMENTS.—In updating the training

guidance, the Under Secretary, in consultation with the

Administrator, shall issue a rule to—

‘‘(A) require both classroom and effective hands-on

situational training in the following elements of self

defense:

‘‘(i) recognizing suspicious activities and determining the seriousness of an occurrence; ‘‘(ii) deterring a passenger who might present a

problem;

‘‘(iii) crew communication and coordination;

‘‘(iv) the proper commands to give to passengers

and attackers;

‘‘(v) methods to subdue and restrain an attacker;

‘‘(vi) use of available items aboard the aircraft

for self-defense;

‘‘(vii) appropriate and effective responses to defend

oneself, including the use of force against an attacker;

‘‘(viii) use of protective devices assigned to crew

members (to the extent such devices are approved by

the Administrator or Under Secretary);

‘‘(ix) the psychology of terrorists to cope with their

behavior and passenger responses to that behavior;

and

‘‘(x) how to respond to aircraft maneuvers that

may be authorized to defend against an act of criminal

violence or air piracy;

‘‘(B) require training in the proper conduct of a cabin

search, including the duty time required to conduct the

search;

Regulations.

6 USC 513.

49 USC 44903

note.

116 STAT. 2306 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(C) establish the required number of hours of training

and the qualifications for the training instructors; ‘‘(D) establish the intervals, number of hours, and elements of recurrent training;

‘‘(E) ensure that air carriers provide the initial training

required by this paragraph within 24 months of the date

of enactment of this subparagraph; and

‘‘(F) ensure that no person is required to participate

in any hands-on training activity that that person believes

will have an adverse impact on his or her health or safety.

‘‘(3) RESPONSIBILITY OF UNDER SECRETARY.—(A) CONSULTA- TION.—In developing the rule under paragraph (2), the Under

Secretary shall consult with law enforcement personnel and

security experts who have expertise in self-defense training,

terrorism experts, and representatives of air carriers, the provider of self-defense training for Federal air marshals, flight

attendants, labor organizations representing flight attendants,

and educational institutions offering law enforcement training

programs. ‘‘(B) DESIGNATION OF OFFICIAL.—The Under Secretary shall

designate an official in the Transportation Security Administration to be responsible for overseeing the implementation of

the training program under this subsection.

‘‘(C) NECESSARY RESOURCES AND KNOWLEDGE.—The Under

Secretary shall ensure that employees of the Administration

responsible for monitoring the training program have the necessary resources and knowledge.’’; and

(3) by aligning the remainder of the text of paragraph

(1) (as designated by paragraph (1) of this section) with paragraphs (2) and (3) (as added by paragraph (2) of this section).

(b) ENHANCE SECURITY MEASURES.—Section 109(a) of the Aviation and Transportation Security Act (49 U.S.C. 114 note; 115

Stat. 613–614) is amended by adding at the end the following:

‘‘(9) Require that air carriers provide flight attendants with

a discreet, hands-free, wireless method of communicating with

the pilots.’’.

(c) BENEFITS AND RISKS OF PROVIDING FLIGHT ATTENDANTS

WITH NONLETHAL WEAPONS.—

(1) STUDY.—The Under Secretary of Transportation for

Security shall conduct a study to evaluate the benefits and

risks of providing flight attendants with nonlethal weapons

to aide in combating air piracy and criminal violence on

commercial airlines.

(2) REPORT.—Not later than 6 months after the date of

enactment of this Act, the Under Secretary shall transmit

to Congress a report on the results of the study.

SEC. 1404. COMMERCIAL AIRLINE SECURITY STUDY.

(a) STUDY.—The Secretary of Transportation shall conduct a

study of the following:

(1) The number of armed Federal law enforcement officers

(other than Federal air marshals), who travel on commercial

airliners annually and the frequency of their travel.

(2) The cost and resources necessary to provide such officers

with supplemental training in aircraft anti-terrorism training

that is comparable to the training that Federal air marshals

are provided.

Deadline.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2307

(3) The cost of establishing a program at a Federal law

enforcement training center for the purpose of providing new

Federal law enforcement recruits with standardized training

comparable to the training that Federal air marshals are provided.

(4) The feasibility of implementing a certification program

designed for the purpose of ensuring Federal law enforcement

officers have completed the training described in paragraph

(2) and track their travel over a 6-month period.

(5) The feasibility of staggering the flights of such officers

to ensure the maximum amount of flights have a certified

trained Federal officer on board.

(b) REPORT.—Not later than 6 months after the date of enactment of this Act, the Secretary shall transmit to Congress a report

on the results of the study. The report may be submitted in classified and redacted form.

SEC. 1405. AUTHORITY TO ARM FLIGHT DECK CREW WITH LESS-THANLETHAL WEAPONS.

(a) IN GENERAL.—Section 44903(i) of title 49, United States

Code (as redesignated by section 6 of this Act) is amended by

adding at the end the following:

‘‘(3) REQUEST OF AIR CARRIERS TO USE LESS-THAN-LETHAL

WEAPONS.—If, after the date of enactment of this paragraph,

the Under Secretary receives a request from an air carrier

for authorization to allow pilots of the air carrier to carry

less-than-lethal weapons, the Under Secretary shall respond

to that request within 90 days.’’.

(b) CONFORMING AMENDMENTS.—Such section is further

amended—

(1) in paragraph (1) by striking ‘‘Secretary’’ the first and

third places it appears and inserting ‘‘Under Secretary’’; and

(2) in paragraph (2) by striking ‘‘Secretary’’ each place

it appears and inserting ‘‘Under Secretary’’.

SEC. 1406. TECHNICAL AMENDMENTS.

Section 44903 of title 49, United States Code, is amended—

(1) by redesignating subsection (i) (relating to short-term

assessment and deployment of emerging security technologies

and procedures) as subsection (j);

(2) by redesignating the second subsection (h) (relating

to authority to arm flight deck crew with less-than-lethal

weapons) as subsection (i); and

(3) by redesignating the third subsection (h) (relating to

limitation on liability for acts to thwart criminal violence for

aircraft piracy) as subsection (k).

TITLE XV—TRANSITION

Subtitle A—Reorganization Plan

SEC. 1501. DEFINITIONS.

For purposes of this title:

(1) The term ‘‘agency’’ includes any entity, organizational

unit, program, or function.

6 USC 541.

Deadline.

116 STAT. 2308 PUBLIC LAW 107–296—NOV. 25, 2002

(2) The term ‘‘transition period’’ means the 12-month period

beginning on the effective date of this Act.

SEC. 1502. REORGANIZATION PLAN.

(a) SUBMISSION OF PLAN.—Not later than 60 days after the

date of the enactment of this Act, the President shall transmit

to the appropriate congressional committees a reorganization plan

regarding the following:

(1) The transfer of agencies, personnel, assets, and obligations to the Department pursuant to this Act.

(2) Any consolidation, reorganization, or streamlining of

agencies transferred to the Department pursuant to this Act.

(b) PLAN ELEMENTS.—The plan transmitted under subsection

(a) shall contain, consistent with this Act, such elements as the

President deems appropriate, including the following:

(1) Identification of any functions of agencies transferred

to the Department pursuant to this Act that will not be transferred to the Department under the plan.

(2) Specification of the steps to be taken by the Secretary

to organize the Department, including the delegation or assignment of functions transferred to the Department among officers

of the Department in order to permit the Department to carry

out the functions transferred under the plan.

(3) Specification of the funds available to each agency that

will be transferred to the Department as a result of transfers

under the plan.

(4) Specification of the proposed allocations within the

Department of unexpended funds transferred in connection with

transfers under the plan.

(5) Specification of any proposed disposition of property,

facilities, contracts, records, and other assets and obligations

of agencies transferred under the plan.

(6) Specification of the proposed allocations within the

Department of the functions of the agencies and subdivisions

that are not related directly to securing the homeland.

(c) MODIFICATION OF PLAN.—The President may, on the basis

of consultations with the appropriate congressional committees,

modify or revise any part of the plan until that part of the plan

becomes effective in accordance with subsection (d).

(d) EFFECTIVE DATE.—

(1) IN GENERAL.—The reorganization plan described in this

section, including any modifications or revisions of the plan

under subsection (d), shall become effective for an agency on

the earlier of—

(A) the date specified in the plan (or the plan as

modified pursuant to subsection (d)), except that such date

may not be earlier than 90 days after the date the President

has transmitted the reorganization plan to the appropriate

congressional committees pursuant to subsection (a); or

(B) the end of the transition period.

(2) STATUTORY CONSTRUCTION.—Nothing in this subsection

may be construed to require the transfer of functions, personnel,

records, balances of appropriations, or other assets of an agency

on a single date.

(3) SUPERSEDES EXISTING LAW.—Paragraph (1) shall apply

notwithstanding section 905(b) of title 5, United States Code.

Applicability.

Deadline.

President.

6 USC 542.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2309

SEC. 1503. REVIEW OF CONGRESSIONAL COMMITTEE STRUCTURES.

It is the sense of Congress that each House of Congress should

review its committee structure in light of the reorganization of

responsibilities within the executive branch by the establishment

of the Department.

Subtitle B—Transitional Provisions

SEC. 1511. TRANSITIONAL AUTHORITIES.

(a) PROVISION OF ASSISTANCE BY OFFICIALS.—Until the transfer

of an agency to the Department, any official having authority over

or functions relating to the agency immediately before the effective

date of this Act shall provide to the Secretary such assistance,

including the use of personnel and assets, as the Secretary may

request in preparing for the transfer and integration of the agency

into the Department.

(b) SERVICES AND PERSONNEL.—During the transition period,

upon the request of the Secretary, the head of any executive agency

may, on a reimbursable basis, provide services or detail personnel

to assist with the transition.

(c) ACTING OFFICIALS.—(1) During the transition period,

pending the advice and consent of the Senate to the appointment

of an officer required by this Act to be appointed by and with

such advice and consent, the President may designate any officer

whose appointment was required to be made by and with such

advice and consent and who was such an officer immediately before

the effective date of this Act (and who continues in office) or

immediately before such designation, to act in such office until

the same is filled as provided in this Act. While so acting, such

officers shall receive compensation at the higher of—

(A) the rates provided by this Act for the respective offices

in which they act; or

(B) the rates provided for the offices held at the time

of designation.

(2) Nothing in this Act shall be understood to require the

advice and consent of the Senate to the appointment by the President to a position in the Department of any officer whose agency

is transferred to the Department pursuant to this Act and whose

duties following such transfer are germane to those performed

before such transfer.

(d) TRANSFER OF PERSONNEL, ASSETS, OBLIGATIONS, AND FUNCTIONS.—Upon the transfer of an agency to the Department—

(1) the personnel, assets, and obligations held by or available in connection with the agency shall be transferred to

the Secretary for appropriate allocation, subject to the approval

of the Director of the Office of Management and Budget and

in accordance with the provisions of section 1531(a)(2) of title

31, United States Code; and

(2) the Secretary shall have all functions relating to the

agency that any other official could by law exercise in relation

to the agency immediately before such transfer, and shall have

in addition all functions vested in the Secretary by this Act

or other law.

(e) PROHIBITION ON USE OF TRANSPORTATION TRUST FUNDS.—

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

this Act, no funds derived from the Highway Trust Fund,

6 USC 551.

6 USC 543.

116 STAT. 2310 PUBLIC LAW 107–296—NOV. 25, 2002

Airport and Airway Trust Fund, Inland Waterway Trust Fund,

or Harbor Maintenance Trust Fund, may be transferred to,

made available to, or obligated by the Secretary or any other

official in the Department.

(2) LIMITATION.—This subsection shall not apply to security-related funds provided to the Federal Aviation Administration for fiscal years preceding fiscal year 2003 for (A) operations,

(B) facilities and equipment, or (C) research, engineering, and

development.

SEC. 1512. SAVINGS PROVISIONS.

(a) COMPLETED ADMINISTRATIVE ACTIONS.—(1) Completed

administrative actions of an agency shall not be affected by the

enactment of this Act or the transfer of such agency to the Department, but shall continue in effect according to their terms until

amended, modified, superseded, terminated, set aside, or revoked

in accordance with law by an officer of the United States or a

court of competent jurisdiction, or by operation of law.

(2) For purposes of paragraph (1), the term ‘‘completed administrative action’’ includes orders, determinations, rules, regulations,

personnel actions, permits, agreements, grants, contracts, certificates, licenses, registrations, and privileges.

(b) PENDING PROCEEDINGS.—Subject to the authority of the

Secretary under this Act—

(1) pending proceedings in an agency, including notices

of proposed rulemaking, and applications for licenses, permits,

certificates, grants, and financial assistance, shall continue notwithstanding the enactment of this Act or the transfer of the

agency to the Department, unless discontinued or modified

under the same terms and conditions and to the same extent

that such discontinuance could have occurred if such enactment

or transfer had not occurred; and

(2) orders issued in such proceedings, and appeals therefrom, and payments made pursuant to such orders, shall issue

in the same manner and on the same terms as if this Act

had not been enacted or the agency had not been transferred,

and any such orders shall continue in effect until amended,

modified, superseded, terminated, set aside, or revoked by an

officer of the United States or a court of competent jurisdiction,

or by operation of law.

(c) PENDING CIVIL ACTIONS.—Subject to the authority of the

Secretary under this Act, pending civil actions shall continue notwithstanding the enactment of this Act or the transfer of an agency

to the Department, and in such civil actions, proceedings shall

be had, appeals taken, and judgments rendered and enforced in

the same manner and with the same effect as if such enactment

or transfer had not occurred.

(d) REFERENCES.—References relating to an agency that is

transferred to the Department in statutes, Executive orders, rules,

regulations, directives, or delegations of authority that precede such

transfer or the effective date of this Act shall be deemed to refer,

as appropriate, to the Department, to its officers, employees, or

agents, or to its corresponding organizational units or functions.

Statutory reporting requirements that applied in relation to such

an agency immediately before the effective date of this Act shall

continue to apply following such transfer if they refer to the agency

by name.

6 USC 552.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2311

(e) EMPLOYMENT PROVISIONS.—(1) Notwithstanding the generality of the foregoing (including subsections (a) and (d)), in and

for the Department the Secretary may, in regulations prescribed

jointly with the Director of the Office of Personnel Management,

adopt the rules, procedures, terms, and conditions, established by

statute, rule, or regulation before the effective date of this Act,

relating to employment in any agency transferred to the Department pursuant to this Act; and

(2) except as otherwise provided in this Act, or under authority

granted by this Act, the transfer pursuant to this Act of personnel

shall not alter the terms and conditions of employment, including

compensation, of any employee so transferred.

(f) STATUTORY REPORTING REQUIREMENTS.—Any statutory

reporting requirement that applied to an agency, transferred to

the Department under this Act, immediately before the effective

date of this Act shall continue to apply following that transfer

if the statutory requirement refers to the agency by name.

SEC. 1513. TERMINATIONS.

Except as otherwise provided in this Act, whenever all the

functions vested by law in any agency have been transferred pursuant to this Act, each position and office the incumbent of which

was authorized to receive compensation at the rates prescribed

for an office or position at level II, III, IV, or V, of the Executive

Schedule, shall terminate.

SEC. 1514. NATIONAL IDENTIFICATION SYSTEM NOT AUTHORIZED.

Nothing in this Act shall be construed to authorize the development of a national identification system or card.

SEC. 1515. CONTINUITY OF INSPECTOR GENERAL OVERSIGHT.

Notwithstanding the transfer of an agency to the Department

pursuant to this Act, the Inspector General that exercised oversight

of such agency prior to such transfer shall continue to exercise

oversight of such agency during the period of time, if any, between

the transfer of such agency to the Department pursuant to this

Act and the appointment of the Inspector General of the Department

of Homeland Security in accordance with section 103(b).

SEC. 1516. INCIDENTAL TRANSFERS.

The Director of the Office of Management and Budget, in consultation with the Secretary, is authorized and directed to make

such additional incidental dispositions of personnel, assets, and

liabilities held, used, arising from, available, or to be made available, in connection with the functions transferred by this Act,

as the Director may determine necessary to accomplish the purposes

of this Act.

SEC. 1517. REFERENCE.

With respect to any function transferred by or under this Act

(including under a reorganization plan that becomes effective under

section 1502) and exercised on or after the effective date of this

Act, reference in any other Federal law to any department, commission, or agency or any officer or office the functions of which

are so transferred shall be deemed to refer to the Secretary, other

official, or component of the Department to which such function

is so transferred.

6 USC 557.

6 USC 556.

6 USC 555.

6 USC 554.

6 USC 553.

116 STAT. 2312 PUBLIC LAW 107–296—NOV. 25, 2002

TITLE XVI—CORRECTIONS TO EXISTING

LAW RELATING TO AIRLINE TRANSPORTATION SECURITY

SEC. 1601. RETENTION OF SECURITY SENSITIVE INFORMATION

AUTHORITY AT DEPARTMENT OF TRANSPORTATION.

(a) Section 40119 of title 49, United States Code, is amended—

(1) in subsection (a)—

(A) by inserting ‘‘and the Administrator of the Federal

Aviation Administration each’’ after ‘‘for Security’’; and

(B) by striking ‘‘criminal violence and aircraft piracy’’

and inserting ‘‘criminal violence, aircraft piracy, and terrorism and to ensure security’’; and

(2) in subsection (b)(1)—

(A) by striking ‘‘, the Under Secretary’’ and inserting

‘‘and the establishment of a Department of Homeland Security, the Secretary of Transportation’’;

(B) by striking ‘‘carrying out’’ and all that follows

through ‘‘if the Under Secretary’’ and inserting ‘‘ensuring

security under this title if the Secretary of Transportation’’;

and

(C) in subparagraph (C) by striking ‘‘the safety of passengers in transportation’’ and inserting ‘‘transportation

safety’’.

(b) Section 114 of title 49, United States Code, is amended

by adding at the end the following:

‘‘(s) NONDISCLOSURE OF SECURITY ACTIVITIES.—

‘‘(1) IN GENERAL.—Notwithstanding section 552 of title 5,

the Under Secretary shall prescribe regulations prohibiting the

disclosure of information obtained or developed in carrying

out security under authority of the Aviation and Transportation

Security Act (Public Law 107–71) or under chapter 449 of

this title if the Under Secretary decides that disclosing the

information would—

‘‘(A) be an unwarranted invasion of personal privacy;

‘‘(B) reveal a trade secret or privileged or confidential

commercial or financial information; or

‘‘(C) be detrimental to the security of transportation.

‘‘(2) AVAILABILITY OF INFORMATION TO CONGRESS.—Paragraph (1) does not authorize information to be withheld from

a committee of Congress authorized to have the information.

‘‘(3) LIMITATION ON TRANSFERABILITY OF DUTIES.—Except

as otherwise provided by law, the Under Secretary may not

transfer a duty or power under this subsection to another

department, agency, or instrumentality of the United States.’’.

SEC. 1602. INCREASE IN CIVIL PENALTIES.

Section 46301(a) of title 49, United States Code, is amended

by adding at the end the following: ‘‘(8) AVIATION SECURITY VIOLATIONS.—Notwithstanding

paragraphs (1) and (2) of this subsection, the maximum civil

penalty for violating chapter 449 or another requirement under

this title administered by the Under Secretary of Transportation for Security shall be $10,000; except that the maximum

civil penalty shall be $25,000 in the case of a person operating

Regulations.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2313

an aircraft for the transportation of passengers or property

for compensation (except an individual serving as an airman).’’.

SEC. 1603. ALLOWING UNITED STATES CITIZENS AND UNITED STATES

NATIONALS AS SCREENERS.

Section 44935(e)(2)(A)(ii) of title 49, United States Code, is

amended by striking ‘‘citizen of the United States’’ and inserting ‘‘citizen of the United States or a national of the United States,

as defined in section 1101(a)(22) of the Immigration and Nationality

Act (8 U.S.C. 1101(a)(22))’’.

TITLE XVII—CONFORMING AND

TECHNICAL AMENDMENTS

SEC. 1701. INSPECTOR GENERAL ACT OF 1978.

Section 11 of the Inspector General Act of 1978 (Public Law

95–452) is amended—

(1) by inserting ‘‘Homeland Security,’’ after ‘‘Transportation,’’ each place it appears; and

(2) by striking ‘‘; and’’ each place it appears in paragraph

(1) and inserting ‘‘;’’.

SEC. 1702. EXECUTIVE SCHEDULE.

(a) IN GENERAL.—Title 5, United States Code, is amended—

(1) in section 5312, by inserting ‘‘Secretary of Homeland

Security.’’ as a new item after ‘‘Affairs.’’;

(2) in section 5313, by inserting ‘‘Deputy Secretary of Homeland Security.’’ as a new item after ‘‘Affairs.’’;

(3) in section 5314, by inserting ‘‘Under Secretaries, Department of Homeland Security.’’, ‘‘Director of the Bureau of Citizenship and Immigration Services.’’ as new items after ‘‘Affairs.’’

the third place it appears;

(4) in section 5315, by inserting ‘‘Assistant Secretaries,

Department of Homeland Security.’’, ‘‘General Counsel, Department of Homeland Security.’’, ‘‘Officer for Civil Rights and

Civil Liberties, Department of Homeland Security.’’, ‘‘Chief

Financial Officer, Department of Homeland Security.’’, ‘‘Chief

Information Officer, Department of Homeland Security.’’, and

‘‘Inspector General, Department of Homeland Security.’’ as new

items after ‘‘Affairs.’’ the first place it appears; and

(5) in section 5315, by striking ‘‘Commissioner of Immigration and Naturalization, Department of Justice.’’.

(b) SPECIAL EFFECTIVE DATE.—Notwithstanding section 4, the

amendment made by subsection (a)(5) shall take effect on the date

on which the transfer of functions specified under section 441

takes effect.

SEC. 1703. UNITED STATES SECRET SERVICE.

(a) IN GENERAL.—(1) The United States Code is amended in

section 202 of title 3, and in section 3056 of title 18, by striking

‘‘of the Treasury’’, each place it appears and inserting ‘‘of Homeland

Security’’.

(2) Section 208 of title 3, United States Code, is amended

by striking ‘‘of Treasury’’ each place it appears and inserting ‘‘of

Homeland Security’’.

5 USC 5315 note.

5 USC app. 11.

116 STAT. 2314 PUBLIC LAW 107–296—NOV. 25, 2002

(b) EFFECTIVE DATE.—The amendments made by this section

shall take effect on the date of transfer of the United States Secret

Service to the Department.

SEC. 1704. COAST GUARD.

(a) TITLE 14, UNITED STATES CODE.—Title 14, United States

Code, is amended in sections 1, 3, 53, 95, 145, 516, 666, 669,

673, 673a (as redesignated by subsection (e)(1)), 674, 687, and

688 by striking ‘‘of Transportation’’ each place it appears and

inserting ‘‘of Homeland Security’’. (b) TITLE 10, UNITED STATES CODE.—(1) Title 10, United States

Code, is amended in sections 101(9), 130b(a), 130b(c)(4), 130c(h)(1),

379, 513(d), 575(b)(2), 580(e)(6), 580a(e), 651(a), 671(c)(2), 708(a),

716(a), 717, 806(d)(2), 815(e), 888, 946(c)(1), 973(d), 978(d),

983(b)(1), 985(a), 1033(b)(1), 1033(d), 1034, 1037(c), 1044d(f),

1058(c), 1059(a), 1059(k)(1), 1073(a), 1074(c)(1), 1089(g)(2), 1090,

1091(a), 1124, 1143, 1143a(h), 1144, 1145(e), 1148, 1149, 1150(c),

1152(a), 1152(d)(1), 1153, 1175, 1212(a), 1408(h)(2), 1408(h)(8),

1463(a)(2), 1482a(b), 1510, 1552(a)(1), 1565(f), 1588(f)(4), 1589,

2002(a), 2302(1), 2306b(b), 2323(j)(2), 2376(2), 2396(b)(1), 2410a(a),

2572(a), 2575(a), 2578, 2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a,

2775, 2830(b)(2), 2835, 2836, 4745(a), 5013a(a), 7361(b), 10143(b)(2),

10146(a), 10147(a), 10149(b), 10150, 10202(b), 10203(d), 10205(b),

10301(b), 12103(b), 12103(d), 12304, 12311(c), 12522(c), 12527(a)(2),

12731(b), 12731a(e), 16131(a), 16136(a), 16301(g), and 18501 by

striking ‘‘of Transportation’’ each place it appears and inserting ‘‘of Homeland Security’’.

(2) Section 801(1) of such title is amended by striking ‘‘the

General Counsel of the Department of Transportation’’ and inserting

‘‘an official designated to serve as Judge Advocate General of the

Coast Guard by the Secretary of Homeland Security’’.

(3) Section 983(d)(2)(B) of such title is amended by striking

‘‘Department of Transportation’’ and inserting ‘‘Department of

Homeland Security’’.

(4) Section 2665(b) of such title is amended by striking ‘‘Department of Transportation’’ and inserting ‘‘Department in which the

Coast Guard is operating’’.

(5) Section 7045 of such title is amended—

(A) in subsections (a)(1) and (b), by striking ‘‘Secretaries

of the Army, Air Force, and Transportation’’ both places it

appears and inserting ‘‘Secretary of the Army, the Secretary

of the Air Force, and the Secretary of Homeland Security’’;

and

(B) in subsection (b), by striking ‘‘Department of Transportation’’ and inserting ‘‘Department of Homeland Security’’.

(6) Section 7361(b) of such title is amended in the subsection

heading by striking ‘‘TRANSPORTATION’’ and inserting ‘‘HOMELAND

SECURITY’’.

(7) Section 12522(c) of such title is amended in the subsection

heading by striking ‘‘TRANSPORTATION’’ and inserting ‘‘HOMELAND

SECURITY’’. (c) TITLE 37, UNITED STATES CODE.—Title 37, United States

Code, is amended in sections 101(5), 204(i)(4), 301a(a)(3), 306(d),

307(c), 308(a)(1), 308(d)(2), 308(f), 308b(e), 308c(c), 308d(a), 308e(f),

308g(g), 308h(f), 308i(e), 309(d), 316(d), 323(b), 323(g)(1), 325(i),

402(d), 402a(g)(1), 403(f)(3), 403(l)(1), 403b(i)(5), 406(b)(1), 417(a),

417(b), 418(a), 703, 1001(c), 1006(f), 1007(a), and 1011(d) by striking

3 USC 202 note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2315

‘‘of Transportation’’ each place it appears and inserting ‘‘of Homeland Security’’.

(d) TITLE 38, UNITED STATES CODE.—Title 38, United States

Code, is amended in sections 101(25)(d), 1560(a), 3002(5),

3011(a)(1)(A)(ii)(I), 3011(a)(1)(A)(ii)(II), 3011(a)(1)(B)(ii)(III),

3011(a)(1)(C)(iii)(II)(cc), 3012(b)(1)(A)(v), 3012(b)(1)(B)(ii)(V),

3018(b)(3)(B)(iv), 3018A(a)(3), 3018B(a)(1)(C), 3018B(a)(2)(C),

3018C(a)(5), 3020(m), 3035(b)(2), 3035(c), 3035(d), 3035(e), 3680A(g),

and 6105(c) by striking ‘‘of Transportation’’ each place it appears

and inserting ‘‘of Homeland Security’’.

(e) OTHER DEFENSE-RELATED LAWS.—(1) Section 363 of Public

Law 104–193 (110 Stat. 2247) is amended—

(A) in subsection (a)(1) (10 U.S.C. 113 note), by striking

‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’; and

(B) in subsection (b)(1) (10 U.S.C. 704 note), by striking

‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’.

(2) Section 721(1) of Public Law 104–201 (10 U.S.C. 1073 note)

is amended by striking ‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’.

(3) Section 4463(a) of Public Law 102–484 (10 U.S.C. 1143a

note) is amended by striking ‘‘after consultation with the Secretary

of Transportation’’.

(4) Section 4466(h) of Public Law 102–484 (10 U.S.C. 1143

note) is amended by striking ‘‘of Transportation’’ and inserting

‘‘of Homeland Security’’.

(5) Section 542(d) of Public Law 103–337 (10 U.S.C. 1293 note)

is amended by striking ‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’.

(6) Section 740 of Public Law 106–181 (10 U.S.C. 2576 note)

is amended in subsections (b)(2), (c), and (d)(1) by striking ‘‘of

Transportation’’ each place it appears and inserting ‘‘of Homeland

Security’’.

(7) Section 1407(b)(2) of the Defense Dependents’ Education

Act of 1978 (20 U.S.C. 926(b)) is amended by striking ‘‘of Transportation’’ both places it appears and inserting ‘‘of Homeland Security’’.

(8) Section 2301(5)(D) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6671(5)(D)) is amended by striking

‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’.

(9) Section 2307(a) of the Elementary and Secondary Education

Act of 1965 (20 U.S.C. 6677(a)) is amended by striking ‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’.

(10) Section 1034(a) of Public Law 105–85 (21 U.S.C. 1505a(a))

is amended by striking ‘‘of Transportation’’ and inserting ‘‘of Homeland Security’’.

(11) The Military Selective Service Act is amended—

(A) in section 4(a) (50 U.S.C. App. 454(a)), by striking

‘‘of Transportation’’ in the fourth paragraph and inserting ‘‘of

Homeland Security’’;

(B) in section 4(b) (50 U.S.C. App. 454(b)), by striking

‘‘of Transportation’’ both places it appears and inserting ‘‘of

Homeland Security’’;

(C) in section 6(d)(1) (50 U.S.C. App. 456(d)(1)), by striking

‘‘of Transportation’’ both places it appears and inserting ‘‘of

Homeland Security’’;

(D) in section 9(c) (50 U.S.C. App. 459(c)), by striking

‘‘Secretaries of Army, Navy, Air Force, or Transportation’’ and

116 STAT. 2316 PUBLIC LAW 107–296—NOV. 25, 2002

inserting ‘‘Secretary of a military department, and the Secretary

of Homeland Security with respect to the Coast Guard,’’; and

(E) in section 15(e) (50 U.S.C. App. 465(e)), by striking ‘‘of Transportation’’ both places it appears and inserting ‘‘of

Homeland Security’’.

(f) TECHNICAL CORRECTION.—(1) Title 14, United States Code,

is amended by redesignating section 673 (as added by section 309

of Public Law 104–324) as section 673a.

(2) The table of sections at the beginning of chapter 17 of

such title is amended by redesignating the item relating to such

section as section 673a.

(g) EFFECTIVE DATE.—The amendments made by this section

(other than subsection (f)) shall take effect on the date of transfer

of the Coast Guard to the Department.

SEC. 1705. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE

DEVELOPMENT.

(a) IN GENERAL.—Section 121 of the Public Health Security

and Bioterrorism Preparedness and Response Act of 2002 (Public

Law 107–188; 42 U.S.C. 300hh–12) is amended—

(1) in subsection (a)(1)—

(A) by striking ‘‘Secretary of Health and Human Services’’ and inserting ‘‘Secretary of Homeland Security’’;

(B) by inserting ‘‘the Secretary of Health and Human

Services and’’ between ‘‘in coordination with’’ and ‘‘the Secretary of Veterans Affairs’’; and

(C) by inserting ‘‘of Health and Human Services’’ after

‘‘as are determined by the Secretary’’; and

(2) in subsections (a)(2) and (b), by inserting ‘‘of Health

and Human Services’’ after ‘‘Secretary’’ each place it appears.

(b) EFFECTIVE DATE.—The amendments made by this section

shall take effect on the date of transfer of the Strategic National

Stockpile of the Department of Health and Human Services to

the Department.

SEC. 1706. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT

FUNCTIONS AND AUTHORITIES.

(a) AMENDMENT TO TITLE 40.—Section 581 of title 40, United

States Code, is amended—

(1) by striking subsection (a); and

(2) in subsection (b)—

(A) by inserting ‘‘and’’ after the semicolon at the end

of paragraph (1);

(B) by striking ‘‘; and’’ at the end of paragraph (2)

and inserting a period; and

(C) by striking paragraph (3).

(b) LAW ENFORCEMENT AUTHORITY.— (1) IN GENERAL.—Section 1315 of title 40, United States

Code, is amended to read as follows:

‘‘§ 1315. Law enforcement authority of Secretary of Homeland

Security for protection of public property

‘‘(a) IN GENERAL.—To the extent provided for by transfers made

pursuant to the Homeland Security Act of 2002, the Secretary

of Homeland Security (in this section referred to as the ‘Secretary’)

shall protect the buildings, grounds, and property that are owned,

occupied, or secured by the Federal Government (including any

42 USC

300hh–12 note.

10 USC 101 note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2317

agency, instrumentality, or wholly owned or mixed-ownership corporation thereof) and the persons on the property.

‘‘(b) OFFICERS AND AGENTS.—

‘‘(1) DESIGNATION.—The Secretary may designate

employees of the Department of Homeland Security, including

employees transferred to the Department from the Office of

the Federal Protective Service of the General Services Administration pursuant to the Homeland Security Act of 2002, as

officers and agents for duty in connection with the protection

of property owned or occupied by the Federal Government

and persons on the property, including duty in areas outside

the property to the extent necessary to protect the property

and persons on the property.

‘‘(2) POWERS.—While engaged in the performance of official

duties, an officer or agent designated under this subsection

may—

‘‘(A) enforce Federal laws and regulations for the

protection of persons and property;

‘‘(B) carry firearms;

‘‘(C) make arrests without a warrant for any offense

against the United States committed in the presence of

the officer or agent or for any felony cognizable under

the laws of the United States if the officer or agent has

reasonable grounds to believe that the person to be arrested

has committed or is committing a felony;

‘‘(D) serve warrants and subpoenas issued under the

authority of the United States;

‘‘(E) conduct investigations, on and off the property

in question, of offenses that may have been committed

against property owned or occupied by the Federal Government or persons on the property; and

‘‘(F) carry out such other activities for the promotion

of homeland security as the Secretary may prescribe.

‘‘(c) REGULATIONS.—

‘‘(1) IN GENERAL.—The Secretary, in consultation with the

Administrator of General Services, may prescribe regulations

necessary for the protection and administration of property

owned or occupied by the Federal Government and persons

on the property. The regulations may include reasonable penalties, within the limits prescribed in paragraph (2), for violations of the regulations. The regulations shall be posted and

remain posted in a conspicuous place on the property.

‘‘(2) PENALTIES.—A person violating a regulation prescribed

under this subsection shall be fined under title 18, United

States Code, imprisoned for not more than 30 days, or both.

‘‘(d) DETAILS.—

‘‘(1) REQUESTS OF AGENCIES.—On the request of the head

of a Federal agency having charge or control of property owned

or occupied by the Federal Government, the Secretary may

detail officers and agents designated under this section for

the protection of the property and persons on the property.

‘‘(2) APPLICABILITY OF REGULATIONS.—The Secretary may—

‘‘(A) extend to property referred to in paragraph (1)

the applicability of regulations prescribed under this section and enforce the regulations as provided in this section;

or

116 STAT. 2318 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(B) utilize the authority and regulations of the

requesting agency if agreed to in writing by the agencies.

‘‘(3) FACILITIES AND SERVICES OF OTHER AGENCIES.—When

the Secretary determines it to be economical and in the public

interest, the Secretary may utilize the facilities and services

of Federal, State, and local law enforcement agencies, with

the consent of the agencies.

‘‘(e) AUTHORITY OUTSIDE FEDERAL PROPERTY.—For the protection of property owned or occupied by the Federal Government

and persons on the property, the Secretary may enter into agreements with Federal agencies and with State and local governments

to obtain authority for officers and agents designated under this

section to enforce Federal laws and State and local laws concurrently with other Federal law enforcement officers and with State

and local law enforcement officers. ‘‘(f) SECRETARY AND ATTORNEY GENERAL APPROVAL.—The

powers granted to officers and agents designated under this section

shall be exercised in accordance with guidelines approved by the

Secretary and the Attorney General. ‘‘(g) LIMITATION ON STATUTORY CONSTRUCTION.—Nothing in

this section shall be construed to— ‘‘(1) preclude or limit the authority of any Federal law

enforcement agency; or ‘‘(2) restrict the authority of the Administrator of General

Services to promulgate regulations affecting property under

the Administrator’s custody and control.’’. (2) DELEGATION OF AUTHORITY.—The Secretary may delegate authority for the protection of specific buildings to another

Federal agency where, in the Secretary’s discretion, the Secretary determines it necessary for the protection of that

building.

(3) CLERICAL AMENDMENT.—The table of sections at the

beginning of chapter 13 of title 40, United States Code, is

amended by striking the item relating to section 1315 and

inserting the following:

‘‘1315. Law enforcement authority of Secretary of Homeland Security for protection

of public property.’’.

SEC. 1707. TRANSPORTATION SECURITY REGULATIONS.

Title 49, United States Code, is amended— (1) in section 114(l)(2)(B), by inserting ‘‘for a period not

to exceed 90 days’’ after ‘‘effective’’; and

(2) in section 114(l)(2)(B), by inserting ‘‘ratified or’’ after ‘‘unless’’.

SEC. 1708. NATIONAL BIO-WEAPONS DEFENSE ANALYSIS CENTER.

There is established in the Department of Defense a National

Bio-Weapons Defense Analysis Center, whose mission is to develop

countermeasures to potential attacks by terrorists using weapons

of mass destruction.

SEC. 1709. COLLABORATION WITH THE SECRETARY OF HOMELAND

SECURITY.

(a) DEPARTMENT OF HEALTH AND HUMAN SERVICES.—The

second sentence of section 351A(e)(1) of the Public Health Service

Act (42 U.S.C. 262A(e)(1)) is amended by striking ‘‘consultation

with’’ and inserting ‘‘collaboration with the Secretary of Homeland

Security and’’.

42 USC 262a.

Establishment.

50 USC 1522

note.

40 USC 1315

note.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2319

(b) DEPARTMENT OF AGRICULTURE.—The second sentence of section 212(e)(1) of the Agricultural Bioterrorism Protection Act of

2002 (7 U.S.C. 8401) is amended by striking ‘‘consultation with’’ and inserting ‘‘collaboration with the Secretary of Homeland Security and’’.

SEC. 1710. RAILROAD SAFETY TO INCLUDE RAILROAD SECURITY.

(a) INVESTIGATION AND SURVEILLANCE ACTIVITIES.—Section

20105 of title 49, United States Code, is amended— (1) by striking ‘‘Secretary of Transportation’’ in the first

sentence of subsection (a) and inserting ‘‘Secretary concerned’’;

(2) by striking ‘‘Secretary’’ each place it appears (except

the first sentence of subsection (a)) and inserting ‘‘Secretary

concerned’’;

(3) by striking ‘‘Secretary’s duties under chapters 203– 213 of this title’’ in subsection (d) and inserting ‘‘duties under

chapters 203–213 of this title (in the case of the Secretary

of Transportation) and duties under section 114 of this title

(in the case of the Secretary of Homeland Security)’’;

(4) by striking ‘‘chapter.’’ in subsection (f) and inserting ‘‘chapter (in the case of the Secretary of Transportation) and

duties under section 114 of this title (in the case of the Secretary

of Homeland Security).’’; and

(5) by adding at the end the following new subsection: ‘‘(g) DEFINITIONS.—In this section— ‘‘(1) the term ‘safety’ includes security; and ‘‘(2) the term ‘Secretary concerned’ means— ‘‘(A) the Secretary of Transportation, with respect to

railroad safety matters concerning such Secretary under

laws administered by that Secretary; and ‘‘(B) the Secretary of Homeland Security, with respect

to railroad safety matters concerning such Secretary under

laws administered by that Secretary.’’. (b) REGULATIONS AND ORDERS.—Section 20103(a) of such title

is amended by inserting after ‘‘1970.’’ the following: ‘‘When prescribing a security regulation or issuing a security order that affects

the safety of railroad operations, the Secretary of Homeland Security shall consult with the Secretary.’’. (c) NATIONAL UNIFORMITY OF REGULATION.—Section 20106 of

such title is amended— (1) by inserting ‘‘and laws, regulations, and orders related

to railroad security’’ after ‘‘safety’’ in the first sentence;

(2) by inserting ‘‘or security’’ after ‘‘safety’’ each place it

appears after the first sentence; and

(3) by striking ‘‘Transportation’’ in the second sentence

and inserting ‘‘Transportation (with respect to railroad safety

matters), or the Secretary of Homeland Security (with respect

to railroad security matters),’’.

SEC. 1711. HAZMAT SAFETY TO INCLUDE HAZMAT SECURITY.

(a) GENERAL REGULATORY AUTHORITY.—Section 5103 of title

49, United States Code, is amended—

(1) by striking ‘‘transportation’’ the first place it appears

in subsection (b)(1) and inserting ‘‘transportation, including

security,’’;

(2) by striking ‘‘aspects’’ in subsection (b)(1)(B) and

inserting ‘‘aspects, including security,’’; and

(3) by adding at the end the following:

116 STAT. 2320 PUBLIC LAW 107–296—NOV. 25, 2002

‘‘(C) CONSULTATION.—When prescribing a security

regulation or issuing a security order that affects the safety

of the transportation of hazardous material, the Secretary

of Homeland Security shall consult with the Secretary.’’.

(b) PREEMPTION.—Section 5125 of that title is amended—

(1) by striking ‘‘chapter or a regulation prescribed under

this chapter’’ in subsection (a)(1) and inserting ‘‘chapter, a

regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by

the Secretary of Homeland Security’’;

(2) by striking ‘‘chapter or a regulation prescribed under

this chapter.’’ in subsection (a)(2) and inserting ‘‘chapter, a

regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by

the Secretary of Homeland Security.’’; and

(3) by striking ‘‘chapter or a regulation prescribed under

this chapter,’’ in subsection (b)(1) and inserting ‘‘chapter, a

regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by

the Secretary of Homeland Security,’’.

SEC. 1712. OFFICE OF SCIENCE AND TECHNOLOGY POLICY.

The National Science and Technology Policy, Organization, and

Priorities Act of 1976 is amended—

(1) in section 204(b)(1) (42 U.S.C. 6613(b)(1)), by inserting

‘‘homeland security,’’ after ‘‘national security,’’; and

(2) in section 208(a)(1) (42 U.S.C. 6617(a)(1)), by inserting

‘‘the Office of Homeland Security,’’ after ‘‘National Security

Council,’’.

SEC. 1713. NATIONAL OCEANOGRAPHIC PARTNERSHIP PROGRAM.

Section 7902(b) of title 10, United States Code, is amended

by adding at the end the following new paragraphs:

‘‘(13) The Under Secretary for Science and Technology of

the Department of Homeland Security.

‘‘(14) Other Federal officials the Council considers appropriate.’’.

SEC. 1714. CLARIFICATION OF DEFINITION OF MANUFACTURER.

Section 2133(3) of the Public Health Service Act (42 U.S.C.

300aa–33(3)) is amended—

(1) in the first sentence, by striking ‘‘under its label any

vaccine set forth in the Vaccine Injury Table’’ and inserting

‘‘any vaccine set forth in the Vaccine Injury table, including

any component or ingredient of any such vaccine’’; and

(2) in the second sentence, by inserting ‘‘including any

component or ingredient of any such vaccine’’ before the period.

SEC. 1715. CLARIFICATION OF DEFINITION OF VACCINE-RELATED

INJURY OR DEATH.

Section 2133(5) of the Public Health Service Act (42 U.S.C.

300aa–33(5)) is amended by adding at the end the following: ‘‘For

purposes of the preceding sentence, an adulterant or contaminant

shall not include any component or ingredient listed in a vaccine’s

product license application or product label.’’.

PUBLIC LAW 107–296—NOV. 25, 2002 116 STAT. 2321

LEGISLATIVE HISTORY—H.R. 5005 (S. 2452):

HOUSE REPORTS: No. 107–609, Pt. 1 (Select Comm. on Homeland Security).

SENATE REPORTS: No. 107–175 accompanying S. 2452 (Comm. on Governmental

Affairs).

CONGRESSIONAL RECORD, Vol. 148 (2002):

July 25, 26, considered and passed House.

Sept. 4, 5, 9, 10, 12, 13, 17–19, 23–26, 30, Oct. 1, Nov. 13–15, 19, considered

and passed Senate, amended.

Nov. 22, House concurred in Senate amendment.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 38 (2002):

Nov. 25, Presidential remarks and statement.

Æ

SEC. 1716. CLARIFICATION OF DEFINITION OF VACCINE.

Section 2133 of the Public Health Service Act (42 U.S.C. 300aa–

33) is amended by adding at the end the following:

‘‘(7) The term ‘vaccine’ means any preparation or suspension, including but not limited to a preparation or suspension

containing an attenuated or inactive microorganism or subunit

thereof or toxin, developed or administered to produce or

enhance the body’s immune response to a disease or diseases

and includes all components and ingredients listed in the

vaccines’s product license application and product label.’’.

SEC. 1717. EFFECTIVE DATE.

The amendments made by sections 1714, 1715, and 1716 shall

apply to all actions or proceedings pending on or after the date

of enactment of this Act, unless a court of competent jurisdiction

has entered judgment (regardless of whether the time for appeal

has expired) in such action or proceeding disposing of the entire

action or proceeding.

Approved November 25, 2002.

Applicability.

42 USC

300aa–33 note.