177
(2)(A) Noneconomic damages may be awarded
against a defendant only in an amount directly pro-
portional to the percentage of responsibility of such
defendant for the harm to the plaintiff, and no plain-
tiff may recover noneconomic damages unless the
plaintiff suffered physical harm.
(B) For purposes of subparagraph (A), the term
‘‘noneconomic damages’’ means damages for losses for
physical and emotional pain, suffering, inconven-
ience, physical impairment, mental anguish, dis-
figurement, loss of enjoyment of life, loss of society
and companionship, loss of consortium, hedonic dam-
ages, injury to reputation, and any other nonpecu-
niary losses.
(c) COLLATERAL SOURCES.—Any recovery by a plain-
tiff 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)
Should a product liability lawsuit be filed for claims aris-
ing 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
178
subsection, have been deployed in defense against 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 presump-
tion shall only be overcome by evidence showing that the
Seller acted fraudulently or with willful misconduct in sub-
mitting 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 Gov-
ernment or non-Federal Government customers.
(2) The Secretary will be exclusively responsible for the
review and approval of anti-terrorism technology for pur-
poses 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 such act and such claims result
or may result in loss to the Seller. Upon the Seller’s submis-
sion to the Secretary for approval of anti-terrorism tech-
nology, 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 specifica-
179
tions, and is safe for use as intended. The Seller will con-
duct safety and hazard analyses on such technology and
will supply the Secretary with all such information.
(3) For those products reviewed and approved by the
Secretary, the Secretary will issue a certificate of conform-
ance to the Seller and place the product 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. 754. RISK MANAGEMENT.
(a) IN GENERAL.—(1) Any person or entity that sells
or otherwise provides a qualified anti-terrorism technology
to 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 to satisfy
otherwise compensable third-party claims arising out of, re-
lating to, or resulting from an act of terrorism when quali-
180
fied anti-terrorism technologies have been deployed in de-
fense against such act.
(2) For the total claims related to one such act of ter-
rorism, the Seller is not required to obtain liability insur-
ance of more than the maximum amount of liability insur-
ance reasonably available from private sources on the world
market at prices and terms that will not unreasonably dis-
tort the sales price of Seller’s anti-terrorism technologies.
(3) Liability insurance obtained pursuant to this sub-
section 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 an act of terrorism:
(A) contractors, subcontractors, suppliers, ven-
dors and customers of the Seller.
(B) contractors, subcontractors, suppliers, and
vendors of the customer.
(4) 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-ter-
rorism 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 con-
181
tractors and subcontractors of the customers, involved in the
manufacture, sale, use or operation of qualified anti-ter-
rorism technologies, under which each party to the waiver
agrees to be responsible for losses, including business inter-
ruption 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 tech-
nologies have been deployed in defense against 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 such act and such claims
result or may result in loss to the Seller, whether for com-
pensatory or punitive damages or for contribution or in-
demnity, 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. 755. 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’’ means any product, device, or
technology designed, developed, or modified for the
182
specific purpose of preventing, detecting, identifying,
or deterring acts of terrorism and 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 deter-
mines meets the requirements under subparagraph
(B), as such requirements are further defined and
specified by the Secretary.
(B) REQUIREMENTS.—An act meets the require-
ments 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 in-
come 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 instrumental-
ities, weapons or other methods designed or in-
tended to cause mass destruction, injury or other
loss to citizens or institutions of the United
States.
183
(3) INSURANCE CARRIER.—The term ‘‘insurance
carrier’’ means any corporation, association, society,
order, firm, company, mutual, partnership, indi-
vidual aggregation of individuals, or any other legal
entity that provides commercial property and cas-
ualty insurance. Such term includes any affiliates of
a commercial insurance carrier.
(4) LIABILITY INSURANCE.—
(A) IN GENERAL.—The term ‘‘liability in-
surance’’ means insurance for legal liabilities in-
curred by the insured resulting from—
(i) loss of or damage to property of
others;
(ii) ensuing loss of income or extra ex-
pense incurred because of loss of or damage
to property of others;
(iii) bodily injury (including) to per-
sons 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.
184
(6) NON-FEDERAL GOVERNMENT CUSTOMERS.—
The term ‘‘non-Federal Government customers’’ means
any customer of a Seller that is not an agency or in-
strumentality of the United States Government with
authority under Public Law 85-804 to provide for in-
demnification under certain circumstances for third-
party claims against its contractors, including but
not limited to State and local authorities and com-
mercial entities.
Subtitle G—Other Provisions
SEC. 761. ESTABLISHMENT OF HUMAN RESOURCES MAN-
AGEMENT SYSTEM.
(a) AUTHORITY.—
(1) 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.
‘‘§ 9701. Establishment of human resources manage-
ment system
‘‘(a) IN GENERAL.—Notwithstanding any other provi-
sion of this title, the Secretary of Homeland Security may,
in regulations prescribed jointly with the Director of the
Office of Personnel Management, establish, and from time
185
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 estab-
lished 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, in-
cluding the principles of hiring based on merit,
fair treatment without regard to political affili-
ation or other non-merit 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); or
‘‘(ii) any provision of law implementing
any provision of law referred to in section
2302(b)(1) by—
‘‘(I) providing for equal employment
opportunity through affirmative action; or
186
‘‘(II) providing any right or remedy
available to any employee or applicant for
employment in the civil service;
‘‘(D) any other provision of this title (as de-
scribed 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, bar-
gain collectively, and participate through labor orga-
nizations of their own choosing in decisions which af-
fect them, subject to any exclusion from coverage or
limitation on negotiability established by law or
under subsection (a) for employees engaged in intel-
ligence, counterintelligence, investigative, or security
work which directly affects national security; and
‘‘(5) permit the use of a category rating system
for evaluating applicants for positions in the competi-
tive service.
‘‘(c) OTHER NONWAIVABLE PROVISIONS.—The other
provisions of this title, as referred to in subsection
(b)(3)(D), are (to the extent not otherwise specified in sub-
paragraph (A), (B), (C), or (D) of subsection (b)(3))—
‘‘(1) subparts A, B, E, G, and H of this part;
and
187
‘‘(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;
‘‘(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 applica-
tion of such section 5307.
‘‘(e) SUNSET PROVISION.—Effective 5 years after the
date of the enactment of this section, all authority to issue
regulations under this section (including regulations which
would modify, supersede, or terminate any regulations pre-
viously issued under this section) shall cease to be avail-
able.’’.
188
(2) CLERICAL AMENDMENT.—The table of chap-
ters for part III of title 5, United States Code, is
amended by adding at the end the following:
‘‘97. Department of Homeland Security ........................................ 9701’’.
(b) EFFECT ON PERSONNEL.—
(1) NON-SEPARATION
OR
NON-REDUCTION
IN
GRADE OR COMPENSATION OF FULL-TIME PERSONNEL
AND
PART-TIME
PERSONNEL
HOLDING
PERMANENT
POSITIONS.—Except as otherwise provided in this
Act, the transfer pursuant to this Act of full-time per-
sonnel (except special Government employees) and
part-time personnel holding permanent positions shall
not cause any such employee to be separated or re-
duced in grade or compensation for one 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 pur-
suant to this Act, held a position compensated in ac-
cordance 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 De-
partment to a position having duties comparable to
the duties performed immediately preceding such ap-
pointment shall continue to be compensated in such
new position at not less than the rate provided for
189
such previous position, for the duration of the service
of such person in such new position.
(3) COORDINATION RULE.—Any exercise of au-
thority 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. 762. ADVISORY COMMITTEES.
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 member-
ship. 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.
190
SEC. 763. REORGANIZATION; TRANSFER OF APPROPRIA-
TIONS.
(a) REORGANIZATION.—
(1) IN GENERAL.—The Secretary may allocate or
reallocate functions among the officers of the Depart-
ment, and may establish, consolidate, alter, or dis-
continue organizational units within the Department,
but only—
(A) pursuant to section 802; or
(B) after the expiration of 60 days after
providing notice of such action to the appro-
priate congressional committees, which shall in-
clude an explanation of the rationale for the ac-
tion.
(2) LIMITATIONS.—(A) Authority under para-
graph (1)(A) does not extend to the abolition of any
agency, entity, organizational unit, program, or func-
tion established or required to be maintained by this
Act.
(B) Authority under paragraph (1)(B) does not
extend to the abolition of any agency, entity, organi-
zational unit, program, or function established or re-
quired to be maintained by statute.
(b) TRANSFER OF APPROPRIATIONS.—
(1) IN GENERAL.—Except as otherwise specifi-
cally provided by law, not to exceed two percent of
191
any appropriation available to the Secretary in any
fiscal year may be transferred between such appro-
priations, except that not less than 15 days’ notice
shall be given to the Committees on Appropriations of
the Senate and House of Representatives before any
such transfer is made.
(2) EXPIRATION OF AUTHORITY.—The authority
under paragraph (1) shall expire two years after the
date of enactment of this Act.
SEC. 764. MISCELLANEOUS AUTHORITIES.
(a) SEAL.—The Department shall have a seal, whose
design is subject to the approval of the President.
(b) GIFTS, DEVISES, AND BEQUESTS.—With respect to
the Department, the Secretary shall have the same authori-
ties that the Attorney General has with respect to the De-
partment of Justice under section 524(d) of title 28, United
States Code.
(c) PARTICIPATION
OF MEMBERS
OF
THE ARMED
FORCES.—With respect to the Department, the Secretary
shall have the same authorities that the Secretary of Trans-
portation has with respect to the Department of Transpor-
tation under section 324 of title 49, United States Code.
(d) REDELEGATION OF FUNCTIONS.—Unless otherwise
provided in the delegation or by law, any function delegated
under this Act may be redelegated to any subordinate.
192
SEC. 765. MILITARY ACTIVITIES.
Nothing in this Act shall confer upon the Secretary
any authority to engage in warfighting, the military de-
fense 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. 766. REGULATORY AUTHORITY.
Except as otherwise provided in this Act, 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, pro-
gram, 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 transfer of such agency, program, or
function to the Secretary or another Federal official pursu-
ant to this Act. This Act may not be construed as altering
or diminishing the regulatory authority of any other execu-
tive agency, except to the extent that this Act transfers such
authority from the agency.
193
SEC. 767. PROVISIONS REGARDING TRANSFERS FROM DE-
PARTMENT OF ENERGY.
(a) SEPARATE CONTRACTING.—To the extent that pro-
grams or activities transferred by this Act from the Depart-
ment of Energy to the Department of Homeland Security
are being carried out through contracts with the operator
of a national laboratory of the Department of Energy, the
Secretary of Homeland Security and the Secretary of En-
ergy shall ensure that contracts for such programs and ac-
tivities between the Department of Homeland Security and
such operator are separate from the contracts of the Depart-
ment of Energy with such operator.
(b) HOMELAND SECURITY CENTER.—(1) Notwith-
standing section 307, the Secretary, acting through the
Under Secretary for Science and Technology, shall establish
at a national security laboratory of the National Nuclear
Security Administration, a center to serve as the primary
location for carrying out research, development, test, and
evaluation activities of the Department related to the goals
described in section 301(6)(A) and (B). The Secretary shall
establish, in concurrence with the Secretary of Energy, such
additional centers at one or more national laboratories of
the Department of Energy as the Secretary considers appro-
priate to serve as secondary locations for carrying out such
activities.
194
(2) Each center established under paragraph (1) shall
be composed of such facilities and assets as are required
for the performance of such activities. The particular facili-
ties and assets shall be designated and transferred by the
Secretary of Energy with the concurrence of the Secretary.
(c) REIMBURSEMENT OF COSTS.—In the case of an ac-
tivity carried out by the operator of a national laboratory
of the Department of Energy but under contract with the
Department of Homeland Security, the Department of
Homeland Security shall reimburse the Department of En-
ergy for costs of such activity through a method under which
the Secretary of Energy waives any requirement for the De-
partment 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 con-
tractor and paid for by the Department of Energy.
(d) LABORATORY DIRECTED RESEARCH AND DEVEL-
OPMENT BY THE DEPARTMENT OF ENERGY.—No funds au-
thorized to be appropriated or otherwise made available to
the Department in any fiscal year may be obligated or ex-
pended for laboratory directed research and development ac-
tivities carried out by the Department of Energy unless
such activities support the mission of the Department de-
scribed in section 101.
195
(e) DEPARTMENT
OF ENERGY COORDINATION
ON
HOMELAND SECURITY RELATED RESEARCH.—The Sec-
retary of Energy shall ensure that any research, develop-
ment, test, and evaluation activities conducted within the
Department of Energy that are directly or indirectly related
to homeland security are fully coordinated with the Sec-
retary to minimize duplication of effort and maximize the
effective application of Federal budget resources.
SEC. 768. COUNTERNARCOTICS OFFICER.
The Secretary shall appoint a senior official in the De-
partment to assume primary responsibility for coordi-
nating 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.
SEC. 769. 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 ex-
change with nations friendly to the United States in
196
order to promote sharing of best practices and tech-
nologies relating to homeland security. Such informa-
tion exchange shall include the following:
(A) Joint research and development on
countermeasures.
(B) Joint training exercises of first respond-
ers.
(C) Exchange of expertise on terrorism pre-
vention, response, and crisis management.
(2) To identify areas for homeland security in-
formation and training exchange where the United
States has a demonstrated weakness and another
friendly nation or nations have a demonstrated exper-
tise.
(3) To plan and undertake international con-
ferences, 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. 770. 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
197
Corps known as Operation TIPS (Terrorism Information
and Prevention System) are hereby prohibited.
SEC. 771. REVIEW OF PAY AND BENEFIT PLANS.
Notwithstanding any other provision of this Act, the
Secretary shall, in consultation with the Director of the Of-
fice 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 the Con-
gress, for ensuring, to the maximum extent practicable, the
elimination of disparities in pay and benefits throughout
the Department, especially among law enforcement per-
sonnel, that are inconsistent with merit system principles
set forth in section 2301 of title 5, United States Code.
SEC. 772. ROLE OF THE DISTRICT OF COLUMBIA.
The Secretary (or the Secretary’s designee) shall work
in cooperation with the Mayor of the District of Columbia
(or the Mayor’s designee) for the purpose of integrating the
District of Columbia into the planning, coordination, and
execution of the activities of the Federal Government for the
enhancement of domestic preparedness against the con-
sequences of terrorist attacks.
198
SEC. 773. TRANSFER OF THE FEDERAL LAW ENFORCEMENT
TRAINING CENTER.
There shall be transferred to the Attorney General the
functions, personnel, assets, and liabilities of the Federal
Law Enforcement Training Center, including any func-
tions of the Secretary of the Treasury relating thereto.
TITLE VIII—TRANSITION
Subtitle A—Reorganization Plan
SEC. 801. DEFINITIONS.
For purposes of this title:
(1) The term ‘‘agency’’ includes any entity, orga-
nizational unit, program, or function.
(2) The term ‘‘transition period’’ means the 12-
month period beginning on the effective date of this
Act.
SEC. 802. 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 stream-
lining of agencies transferred to the Department pur-
suant to this Act.
199
(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 func-
tions 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 trans-
ferred 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.
200
(6) Specification of the proposed allocations
within the Department of the functions of the agencies
and subdivisions that are not related directly to se-
curing the homeland.
(c) MODIFICATION OF PLAN.—The President may, on
the basis of consultations with the appropriate congres-
sional 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 de-
scribed in this section, including any modifications or
revisions of the plan under subsection (d), shall be-
come effective for an agency on the earlier of—
(A) the date specified in the plan (or the
plan as modified pursuant to subsection (d)), ex-
cept that such date may not be earlier than 90
days after the date the President has transmitted
the reorganization plan to the appropriate con-
gressional 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
201
functions, personnel, records, balances of appropria-
tions, 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.
Subtitle B—Transitional Provisions
SEC. 811. 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 pro-
vide to the Secretary such assistance, including the use of
personnel and assets, as the Secretary may request in pre-
paring for the transfer and integration of the agency into
the Department.
(b) SERVICES AND PERSONNEL.—During the transi-
tion 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) TRANSFER OF FUNDS.—Until the transfer of an
agency to the Department, the President is authorized to
transfer to the Secretary to fund the purposes authorized
in this Act—
(1) for administrative expenses related to the es-
tablishment of the Department of Homeland Security,
202
not to exceed two percent of the unobligated balance
of any appropriation enacted prior to October 1,
2002, available to such agency; and
(2) for purposes for which the funds were appro-
priated, not to exceed three percent of the unobligated
balance of any appropriation available to such agen-
cy;
except that not less than 15 days’ notice shall be given to
the Committees on Appropriations of the House of Rep-
resentatives and the Senate before any such funds transfer
is made.
(d) ACTING OFFICIALS.—(1) During the transition pe-
riod, pending the advice and consent of the Senate to the
appointment of an officer required by this Act to be ap-
pointed 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 respec-
tive offices in which they act; or
203
(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 pur-
suant to this Act and whose duties following such transfer
are germane to those performed before such transfer.
(e) 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 alloca-
tion, subject to the approval of the Director of the Of-
fice 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 ex-
ercise 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.
Paragraph (1) shall not apply to appropriations trans-
ferred pursuant to section 763(b).
204
(f) PROHIBITION ON USE OF TRANSPORTATION TRUST
FUNDS.—
(1) IN
GENERAL.—Notwithstanding any other
provision of this Act, no funds derived from the High-
way Trust Fund, Airport and Airway Trust Fund,
Inland Waterway Trust Fund, Harbor Maintenance
Trust Fund, or Oil Spill Liability 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 Fed-
eral Aviation Administration for fiscal years pre-
ceding fiscal year 2003 for (A) operations, (B) facili-
ties and equipment, or (C) research, engineering, and
development.
SEC. 812. 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 ac-
cording 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.
205
(2) For purposes of paragraph (1), the term ‘‘com-
pleted administrative action’’ includes orders, determina-
tions, rules, regulations, personnel actions, permits, agree-
ments, 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 enact-
ment 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 ap-
peals 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 or-
ders shall continue in effect until amended, modified,
superseded, terminated, set aside, or revoked by an of-
ficer of the United States or a court of competent ju-
risdiction, or by operation of law.
206
(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 judg-
ments 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 au-
thority that precede such transfer or the effective date of
this Act shall be deemed to refer, as appropriate, to the De-
partment, to its officers, employees, or agents, or to its cor-
responding organizational units or functions. Statutory re-
porting 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.
(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, proce-
dures, terms, and conditions, established by statute, rule,