117 HR 3557 IH: Homeland Security Improvement Act
U.S. House of Representatives
2021-05-28
text/xml
EN
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I
117th CONGRESS1st Session
H. R. 3557
IN THE HOUSE OF REPRESENTATIVES

May 28, 2021
Ms. Escobar (for herself, Mr. Espaillat, and Ms. Garcia of Texas) introduced the following bill; which was referred to the Committee on Homeland Security, and in addition to the Committees on the Judiciary, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL
To increase transparency, accountability, and community engagement within the Department of Homeland Security, provide independent oversight of border security activities, improve training for agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, and for other purposes.

1.Short titleThis Act may be cited as the Homeland Security Improvement Act. 2.Stakeholder and community engagement (a)Department of Homeland Security Border Oversight Commission (1)EstablishmentThere is established an independent commission, which shall be known as the Department of Homeland Security Border Oversight Commission (in this Act referred to as the Commission).
(2)Organization
(A)LeadershipThe Commission shall be led by a Chair and Vice Chair. (B)Membership (i)In generalThe Commission shall be composed of 30 members, recommended by Congress, in consultation with the President, who have expertise in migration, local crime indices, civil and human rights, community relations, cross-border trade and commerce, quality of life indicators, or other pertinent experience, of whom—
(I)13 members shall be from the northern border region and shall include— (aa)two local government elected officials;
(bb)two local law enforcement officials; (cc)two civil rights advocates;
(dd)one business representative; (ee)one higher education representative;
(ff)one representative of a faith community; (gg)two representatives of the U.S. Border Patrol; and
(hh)two tribal officials; and (II)17 members shall be from the southern border region and shall include—
(aa)three local government elected officials; (bb)three local law enforcement officials;
(cc)three civil rights advocates; (dd)two business representatives;
(ee)one higher education representative; (ff)one representative of a faith community;
(gg)two representatives of the U.S. Border Patrol; and (hh)two tribal officials.
(ii)Chair, vice chairThe members of the Commission shall elect a Chair and a Vice Chair from among its members by a majority vote of at least 16 members. (iii)Terms of serviceThe Chair and Vice Chair of the Commission shall serve for terms of four years. Members of the Commission shall serve for terms of four years.
(iv)Appointment deadlineMembers of the Commission shall be appointed not later than 180 days after the date of the enactment of this Act. (3)Meetings (A)CommissionThe Commission shall meet at least semiannually, and may convene additional meetings as necessary.
(B)SubcommitteesThe northern border and southern border subcommittees shall meet at least quarterly, and may convene additional meetings as necessary. (4)DutiesThe Commission, and the northern border and southern border subcommittees, shall—
(A)develop recommendations for improvements regarding border enforcement policies, strategies, and programs that take into consideration their impact on border communities; (B)evaluate policies, strategies, and programs of Federal agencies operating along the northern and southern borders to—
(i)protect— (I)due process;
(II)the civil and human rights of border residents and visitors; and (III)private property rights of land owners;
(ii)reduce the number of migrant deaths; and (iii)improve the safety of agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement;
(C)develop recommendations for improvements regarding the safety of agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement when such agents and officers are in the field; and (D)evaluate training, including establishing training courses related to management and leadership skills for supervisors in each U.S. Border Patrol sector, at each port of entry on the northern and southern borders, and at each U.S. Immigration and Customs Enforcement field office and the extent to which supervisory and management personnel practices at U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement encourage and facilitate workforce development for agents and officers, promote agent and officer field safety, and post-FLETC training of border enforcement personnel in accordance with section 6.
(5)Additional responsibilities
(A)In generalIn carrying out the duties specified in paragraph (5), the Commission shall take into consideration any recommendations and evaluations agreed upon by the northern border and southern border subcommittees. (B)Subcommittee reportsThe northern border and southern border subcommittees shall annually submit to the Chair and Vice Chair of the Commission a publicly available report containing the recommendations and evaluations of the subcommittees pursuant to paragraph (5).
(6)Prohibition on compensationMembers of the Commission and the northern border and southern border subcommittees may not receive pay, allowances, or benefits from the Government by reason of their service on the Commission or the subcommittees. (b)Hearings and evidenceThe Commission or, on the authority of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out this Act hold such hearings, and sit and act at such times and places, take such testimony, receive such evidence, and administer such oaths as the Commission or such designated subcommittee or designated member determines necessary to carry out its duties under subsection (a)(5).
(c)Savings provisionNothing in this Act may be construed as affecting in any manner the investigative and disciplinary procedures of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or the Department of Homeland Security with respect to agents and officers of U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement. (d)Reports (1)Annual reportsThe Commission shall annually submit to the Secretary of Homeland Security a publicly available report containing information on the activities, findings, and recommendations of the Commission, including the northern border and southern border subcommittees, for the preceding year.
(2)Congressional notificationThe Secretary of Homeland Security shall brief the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate on each report required under paragraph (1). 3.Establishment of the Office of the Ombudsman for Border and Immigration Related Concerns (a)In generalSection 452 of the Homeland Security Act of 2002 (6 U.S.C. 272) is amended to read as follows:

452.Ombudsman for Border and Immigration Related Concerns
(a)In generalThere shall be within the Department an Ombudsman for Border and Immigration Related Concerns (in this section referred to as the Ombudsman). The individual appointed as Ombudsman shall have a background in immigration or civil liberties law or law enforcement. The Ombudsman shall report directly to the Secretary. (b)Organizational independenceThe Secretary shall take appropriate action to ensure the independence of the Ombudsman’s office from other officers or employees of the Department engaged in border security or immigration activities.
(c)StaffingThe Secretary shall take appropriate action to ensure that the Ombudsman’s office is sufficiently staffed and resourced to carry out its duties effectively and efficiently. (d)FunctionsThe functions of the Ombudsman shall be as follows:
(1)To establish an independent, neutral, and appropriately confidential process to receive, investigate, resolve, and provide redress, including immigration relief, monetary damages, or any other action determined appropriate, for complaints, grievances, or requests for assistance from individuals, associations, and employers regarding the border security and immigration activities of the Department. (2)To conduct inspections of the facilities, including privately-owned or operated contract facilities, of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and United States Citizenship and Immigration Services.
(3)To assist individuals and families who have been victims of crimes committed by aliens unlawfully present in the United States or of violence near the United States border, and individuals and families impacted by situations in which the Department has exercised force against an individual, including by use of a firearm, taser, explosive device, chemical agent, baton, projectile, blunt instrument, body part, canine, or vehicle. (4)To identify areas in which individuals, associations, and employers have identified concerns with respect to interacting with U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or United States Citizenship and Immigration Services.
(5)To propose changes in the administrative practices of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and United States Citizenship and Immigration Services to mitigate problems identified under this section. (6)To review, examine, and make recommendations regarding the border security and immigration and enforcement activities of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and United States Citizenship and Immigration Services.
(7)To establish a uniform and standardized complaint process regarding complaints against any individual employed by U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement for violations of standards of professional conduct. Such complaint process shall have the following components: (A)Require that all complaints receive an independent review and investigation completed not later than one year from the date of receipt of each such complaint.
(B)Require that complainants receive written confirmation of receipt of their complaints not later than 60 days from the date of receipt of each such complaint, and a written summary regarding the outcome of such complaints not later than 30 days after the review and investigation under subparagraph (A) is complete, including findings of fact, recommended action, and available redress. (C)Feature a centralized multilingual online complaint form that includes street address, toll-free telephone number, and electronic mailbox address to permit an individual to file an immigration or border-related complaint and submit supporting evidence through the portal of choice of any such individual. Multilingual information relating to such form shall be visible at ports of entry and at U.S. Border Patrol interior checkpoints.
(D)Include procedures for referring complaints to the Office for Civil Rights and Civil Liberties, Office of the Inspector General, or other appropriate agency of the Department. (E)Establish a publicly accessible national, standardized database capable of tracking and analyzing complaints and their resolution.
(F)Provide publicly accessible records, with copies of complaints, and their resolutions permanently preserved and available for inspection, while maintaining the confidentiality of complainants’ identities. (8)To establish an online detainee locator system for individuals held in U.S. Customs and Border Protection custody.
(e)Other responsibilitiesIn addition to the functions specified in subsection (d), the Ombudsman shall— (1)monitor the coverage and geographic allocation of local offices of the Ombudsman, including appointing local ombudsmen for border and immigration related concerns;
(2)evaluate and take personnel actions (including dismissal) with respect to any employee of the Ombudsman; (3)recommend disciplinary action, including contract termination, suspension, and debarment, or termination, suspension, and sanctions, to the appropriate departmental entity regarding any contractor proven to have violated departmental policies or procedures while executing any border security or immigration activity;
(4)refer to the Inspector General of the Department any complaints of the violation of departmental policies or procedures by any Department employee relating to border security or immigration activity; and (5)provide a complainant with a summary of the outcome of any action taken in response to a complaint, grievance, or request for assistance from such complainant, including any findings of fact, recommended action, and available redress.
(f)ComplainantsThe following shall apply to all complainants: (1)Any interested party, including a legal representative, may file a complaint through the complaint process established pursuant to subsection (d)(7).
(2)Complainants and other individuals identified in a complaint shall be protected from retaliatory action by law enforcement or by any officer of the United States based on the content of such complaint, and no information contained in a complaint that is germane to such complaint may be used as evidence in any removal or criminal proceedings against the complainant or any individual identified in such complaint. (3)Neither the filing of a complaint nor the contents of a complaint shall in any way confer immunity or otherwise impact any removal or criminal proceedings against a complainant or an individual identified in such complaint.
(4)No personally identifiable information related to an individual involved in a complaint which would result in identification of such individual may be published. (5)Complainants shall receive full assistance from the Department in filing complaints, including language assistance, accommodations for disabilities, and accurate and complete responses to their questions.
(g)Request for investigationsThe Ombudsman is authorized to request the Inspector General of the Department to conduct inspections, investigations, and audits related to subsections (d), (e), and (f). (h)Coordination with Department components (1)In generalThe Director of United States Citizenship and Immigration Services, the Assistant Secretary of U.S. Immigration and Customs Enforcement, and the Commissioner of U.S. Customs and Border Protection shall each establish procedures to provide formal responses to recommendations submitted to such officials by the Ombudsman within 60 days of receiving such recommendations.
(2)Access to informationThe Secretary shall establish procedures to provide the Ombudsman access to all departmental records necessary to execute the responsibilities of the Ombudsman under subsection (d) or (e) not later than 60 days after a request from the Ombudsman for such information. (i)Public outreachThe Secretary shall—
(1)take all appropriate action to advise the public regarding the existence, duties, responsibilities, and grievance processes of the Ombudsman’s office; and (2)shall promulgate regulations to ensure—
(A)the public’s ability to file grievances with the Ombudsman’s office electronically; and (B)that absent written permission of all affected parties, all documents submitted to the Ombudsman’s office are used solely by the Ombudsman’s office to advance the purposes described in this section.
(j)Annual reportingNot later than June 30 of each year beginning in the year after the date of the enactment of this subsection, the Ombudsman shall submit to the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate a report that includes the following: (1)The number and type of complaints received under this section, the demographics of complainants, the results of investigations, including violations of standards and any disciplinary actions taken, and an identification of any complaint patterns that could be prevented or reduced by policy training or practice changes.
(2)An inventory of complaints referred to in paragraph (1) for which action has been taken and the time between receipt and resolution of each such complaint. (3)An inventory of complaints referred to in paragraph (1) for which action has not been taken after one year, the period during which each complaint has been open, and the reason for failure to resolve each such complaint.
(4)Recommendations the Ombudsman has made to improve the services and responsiveness of United States Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection, and any responses received from each such component or the Department regarding such recommendations. (5)Other information as the Ombudsman determines advisable.
(k)Establishment of Border Communities Liaison Office
(1)In generalThe Ombudsman, in conjunction with the Office for Civil Rights and Civil Liberties of the Department, shall establish a Border Community Liaison Office (in this subsection referred to as the Liaison Office) in each U.S. Border Patrol sector on the northern and southern borders. (2)PurposesEach Liaison Office under this subsection shall—
(A)foster cooperation between the U.S. Border Patrol, the Office of Field Operations of the Department, U.S. Immigration and Customs Enforcement, and border communities; (B)consult with border communities on the development of policies, directives, and programs of the U.S. Border Patrol, the Office of Field Operations, and U.S. Immigration and Customs Enforcement; and
(C)receive feedback from border communities on the performance of the U.S. Border Patrol, the Office of Field Operations, and U.S. Immigration and Customs Enforcement. (3)MembershipEach Liaison Office shall be comprised of equal representation from the border community and U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, including at least:
(A)One member of the community in which each U.S. Border Patrol sector is located who has expertise in migration, local public safety, civil and human rights, the local community, or community relations. (B)One member of an Indian tribe (as such term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(e)) or tribal organization.
(C)One non-uniformed Border Patrol agent with significant experience working for the U.S. Border Patrol. (D)One non-uniformed CBP officer with significant experience working for U.S. Customs and Border Protection.
(E)One Enforcement and Removal Operations (ERO) agent with significant experience working for U.S. Immigration and Customs Enforcement. (l)Report on the impact of border enforcement technologies and operations on border communitiesNot later than 180 days after the date of the enactment of this subsection, the Secretary shall submit to the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate a report that assesses current efforts and technologies used at United States borders, and the impact on border communities of such efforts and technologies on civil rights, private property rights, privacy rights, and civil liberties.
(m)GAO report on the extent of CBP activities, operations, and claimed authorityNot later than one year after the date of the enactment of this subsection, the Comptroller General of the United States shall submit to the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate a report that assesses the following issues: (1)How far into the United States interior the current activities, operations (including checkpoints), and claimed authority of U.S. Customs and Border Protection extend.
(2)The extent to which the area of activities, operations, and claimed authority referred to in paragraph (1) is necessary. (3)The effectiveness of U.S. Customs and Border Protection’s interior enforcement and its impact on civil, constitutional, and private property rights..
(b)Clerical amendmentThe table of contents of the Homeland Security Act of 2002 is amended by amending the item relating to section 452 to read as follows:   Sec. 452. Ombudsman for Border and Immigration Related Concerns.. 4.Training and continuing education (a)Mandatory training and continuing education To promote CBP agent and officer safety and professionalismThe Secretary of Homeland Security shall establish policies and guidelines to ensure that every agent and officer of U.S. Customs and Border Protection receives a minimum of 19 weeks of training that are directly related to the mission of the U.S. Border Patrol and the Office of Field Operations of the Department of Homeland Security before the initial assignment of such agents and officers, and eight hours of training and continuing education annually thereafter. Such training and continuing education shall be conducted by attorneys who have experience with the Fourth Amendment to the Constitution, including appropriate application of the use of force by agents and officers of U.S. Customs and Border Protection. Such attorneys shall be members of the Department of Homeland Security’s Office of General Counsel, and all instruction provided shall be in alignment with curriculum developed and endorsed by FLETC.
(b)FLETCThe Secretary of Homeland Security shall establish policies and guidelines governing training with FLETC and continuing education of agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement regarding border awareness, accountability, and oversight. Such training with FLETC shall include individual courses for each of the following issues: (1)Community relations, including the following:
(A)Best practices in community policing. (B)Policies limiting location of enforcement and cooperation with local law enforcement.
(C)Best practices in responding to grievances and how to refer complaints to the Ombudsman for Border and Immigration Related Concerns in accordance with section 452 of the Homeland Security Act of 2002, as amended by section 3 of this Act. (2)Interdiction, including the following:
(A)Instruction on formal and proper command language. (B)Situational awareness of what language is appropriate.
(C)Legal application of use of force policies and guidelines. (D)Policies and training scenarios necessary to ensure the agent or officer and the community is safe when intervening in situations in urban areas, including—
(i)scenario-based training and guidelines; and (ii)non-lethal force training and certification on at least one non-lethal force instrument, including tasers.
(E)Policies necessary to ensure the agent or officer and the community is safe when intervening in situations in rural and remote locations. (3)Vulnerable populations, including instruction on screening, identifying, and responding to vulnerable populations, such as children, victims of human trafficking, and the acutely ill.
(4)Cultural and societal issues, including the following: (A)Understanding of the diversity of immigrant communities.
(B)Language and basic cultural awareness of major migrant-sending countries. (C)Natural resource protection and environmental policies along the border.
(D)Privacy considerations regarding border-related technologies. (E)History and ethics of asylum law.
(5)Standards of professional conduct, including the following: (A)Lawful use of force.
(B)Complying with chain of command and lawful orders. (C)Conduct and ethical behavior toward the public in a civil and professional manner.
(D)Respect for civil rights and protection of the well-being of individuals. (E)Non-racially biased questioning.
(F)De-escalation tactics and alternatives to use of force. (c)Supervisor trainingIn addition to the training and continuing education required under subsections (a) and (b), the Secretary of Homeland Security shall establish policies and guidelines governing the continuing education of agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement who attain a supervisory or management position. Such training and continuing education shall include the following:
(1)Instruction relating to management and leadership best practices. (2)Refresher instruction or in-service training relating to legal application of use of force policies and guidelines, intervention, community relations, and professional conduct.
(3)Mitigation training to identify, diagnose, and address issues within such supervisory and management roles. (d)Review processThe Secretary of Homeland Security shall establish a review process to ensure that port supervisors and managers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, as the case may be, are evaluated annually on their actions and standards of conduct, and on the actions, situational and educational development, and standards of conduct of their staffs.
(e)Continuing education
(1)In generalThe Secretary of Homeland Security shall annually require all agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement who are required to undergo training under subsections (a) through (c) to participate in continuing education to maintain and update understanding of Federal legal rulings, court decisions, and Department of Homeland Security policies, procedures, and guidelines related to the subject matters described in such subsections. (2)Constitutional authority subject matterContinuing education under this subsection shall include a course on protecting the civil, constitutional, human, and privacy rights of individuals, with special emphasis on the scope of enforcement authority, including chain of evidence practices and document seizure, and use of force policies available to agents and officers.
(3)Additional subject mattersContinuing education under this subsection shall also include a course on the following: (A)Scope of authority to conduct immigration enforcement activities, including interviews, interrogations, stops, searches, arrests, and detentions, in addition to identifying and detecting fraudulent documents.
(B)Identifying, screening, and responsibility for vulnerable populations, such as children and victims of trafficking. (C)Cultural and societal issues, including understanding of the diversity of immigrant communities, language and basic cultural awareness of major migrant-sending countries, and natural resource protection and environmental policies along the border.
(4)AdministrationCourses offered as part of continuing education under this subsection shall— (A)be administered in consultation with FLETC by the individual U.S. Border Patrol sectors and the Office of Field Operations of the Department of Homeland Security in order to provide such sectors’ field offices with flexibility to design or tailor such courses to the specific needs and conditions of each such sector and field office; and
(B)be approved by the Secretary of Homeland Security before being offered to ensure that such courses satisfy the requirements for training under this section. (5)RotationCourses offered as part of continuing education under this subsection shall include—
(A)a yearly course focusing on the curriculum described in paragraph (2); and (B)an additional course to be rotated on a three-year basis focusing on curriculum described in paragraph (3).
(f)AssessmentNot later than six years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that assesses the training and education, including continuing education, required under this section. 5.Management of ports of entry (a)In generalNot later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that contains an assessment of the current standards and guidelines for managing ports of entry under the control of the Department of Homeland Security. Such assessment shall include information relating to the following:
(1)Staffing levels and the need for additional staffing. (2)Rules governing the actions of Office of Field Operations agents.
(3)Average delays for transit through air, land, and sea ports of entry. (4)An assessment of existing efforts and technologies used for border security, and the effect of the use of such efforts and technologies on facilitating trade at ports of entry and their impact on civil rights, private property rights, privacy rights, and civil liberties.
(5)The economic impact of the policies and practices of CBP Agricultural Specialists and Office of Field Operations work. (6)Physical infrastructure and technological needs at ports of entry.
(7)A plan for increasing the number of Border Patrol officers certified as EMTs. (8)An assessment for implementing body worn cameras for Border Patrol agents, including relating to storage and public availability of associated data.
(b)UpdatesBased upon the information and assessment contained in the report required under subsection (a), the Secretary of Homeland Security shall establish updated guidelines and standards for managing ports of entry under the control of the Department of Homeland Security to address any identified needs or shortcomings at such ports of entry, including, if applicable, the following: (1)Increasing levels of staffing of CBP Agricultural Specialists at ports of entry at which delays hinder or negatively impact the local or national economies.
(2)Increasing the use of or updating technology at ports of entry at which there are average delays of over two hours based on U.S. Customs and Border Protection data collected during the previous fiscal year. (3)Publishing rules on the handling of documents at ports of entry.
(4)Establishing standards of conduct and demeanor when interacting with vulnerable populations, such as children and victims of human trafficking, and individuals with border crossing cards. (5)Establishing training courses relating to management and leadership skills for supervisors and managers at ports of entry.
6.Reporting requirements
(a)Annual CBP report on mission and personnel by Border Patrol sectorNot later than one year after the date of the enactment of this Act and annually thereafter, the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that includes the following for each Border Patrol sector: (1)An assessment of the most appropriate, practical, and cost effective means of defending the land borders of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities.
(2)An assessment of staffing needs for all border security functions, including an assessment of efforts to take into account asylum seekers, trafficking victims, unaccompanied children, and other vulnerable populations. (3)A description of the border security roles and missions of Federal, State, regional, local, and Tribal authorities, and recommendations regarding actions the Commissioner can carry out to improve coordination with such authorities to enable border security activities to be carried out in a more efficient and effective manner.
(4)A description of ways to ensure that the free flow of travel and commerce is not diminished by efforts, activities, and programs aimed at securing the land borders of the United States. (5)An impact assessment of the loss of trade and commerce due to inadequate staffing at land ports of entry by U.S. Customs and Border Protection agents and officers.
(b)Report on migrant deaths
(1)CBP and ICENot later than 180 days after the date of the enactment of this Act, the Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement shall jointly submit to the Comptroller General of the United States, the Committee on Homeland Security of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report relating to deaths occurring along the United States-Mexico border, including information on the following: (A)The number of documented migrant deaths.
(B)A geographical breakdown of where such migrant deaths occur. (C)To the extent possible, the cause of death for each migrant.
(D)The extent to which border technology, physical barriers, and enforcement programs have contributed to such migrant deaths. (E)A detailed description of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement programs or plans to reduce the number of migrant deaths along the border, including an assessment on the effectiveness of water supply sites and rescue beacons.
(2)GAONot later than 90 days after the submission of the report required under paragraph (1), the Comptroller General of the United States shall review such report to determine the following: (A)The validity of U.S. Customs and Border Protection’s and U.S. Immigration and Customs Enforcement’s statistical analysis of migrant deaths.
(B)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have adopted simple and low-cost measures, such as water supply sites and rescue beacons, to reduce the frequency of migrants deaths. (C)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement measures the effectiveness of its programs to address the frequency of migrant deaths.
(D)The extent of data and information sharing and cooperation between U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, local and State law enforcement, foreign diplomatic and consular posts, and nongovernmental organizations to accurately identify deceased individuals and notify family members and compare information to missing persons registries. (c)GAO report on use of force (1)In generalNot later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall examine the extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have clarified use of force policies, including the following (and any recommendations related to the following):
(A)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have implemented new training tactics to improve use of force policies, including how the use of force policy conforms to Department of Homeland Security and Federal law enforcement best practices. (B)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have identified additional or alternative weapons and equipment to improve agents’ and officers’ abilities to de-escalate confrontations, including protective gear.
(C)Efforts to review and enhance current training and tactics related to use of force, and to implement reforms to ensure agents and officers are better equipped to assess and respond to threats. (D)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have established a stakeholder engagement framework to better inform and enhance U.S. Customs and Border Protection’s use of force training.
(E)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have established metrics to track the effectiveness of use of force training and to ensure the reporting of all uses of force for review to determine whether the force used was justified and whether it could have been avoided through different tactics or training, better supervision, different tools, adherence to policy, or changes in policy. (F)How U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement could implement best law enforcement practices to improve policies for transparent communication with family members of individuals injured or killed by U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement agent’s and officer’s use of force, including updates on any pending investigations, and policies for timely notification of such injuries and deaths following such uses of force to the Commissioner of U.S. Customs and Border Protection or the Director of U.S. Immigration and Customs Enforcement (as the case may be), the Joint Intake Center of the Department of Homeland Security, the Office of Inspector General of the Department, the Office for Civil Rights and Civil Liberties of the Department, the Offices of Public Affairs of the Department, Congress, and the applicable consulates, if appropriate.
(G)How recommendations and requests made by agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have been received, reviewed, and if possible implemented into U.S. Customs and Border Protection and Department of Homeland Security use of force policies and best practices. (H)The extent to which U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement electronically track personal searches and seizures of personal items at the border, and an assessment of how such information is used to inform U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement policies and procedures.
(2)Implementation of GAO findingsThe Secretary of Homeland Security shall direct the Commissioner of U.S. Customs and Border Protection and the Director of U.S. Immigration and Customs Enforcement to implement any recommendations contained in the report required under paragraph (1). If the Secretary does not so implement such recommendations, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a written notification explaining why such recommendations are not being so implemented. (d)GAO report on body worn camerasNot later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall assess the potential implementation by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement of body worn cameras for all agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, including relating to storage and public availability of associated data.
7.Department of Homeland Security accountability and transparency
(a)DefinitionsIn this section: (1)Border securityThe term border security means the prevention of unlawful entries into the United States, including entries by individuals, instruments of terrorism, narcotics, and other contraband.
(2)CheckpointThe term checkpoint means a location— (A)at which vehicles or individuals traveling through the location are stopped by a law enforcement official for the purposes of enforcement of United States laws and regulations; and
(B)that is not located at a port of entry along an international border of the United States. (3)Law enforcement officialThe term law enforcement official means—
(A)an agent or officer of U.S. Customs and Border Protection; (B)an agent or officer of U.S. Immigration and Customs Enforcement; or
(C)an officer or employee of a State, or a political subdivision of a State, who is carrying out the functions of an immigration officer pursuant to— (i)an agreement entered into under section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g));
(ii)authorization under title IV of the Tariff Act of 1930 (19 U.S.C. 1401 et seq.); or (iii)any other agreement with the Department of Homeland Security, including any Federal grant program.
(4)Patrol stopThe term patrol stop means search, seizure, or interrogation of a motorist, passenger, or pedestrian initiated anywhere except as part of an inspection at a port of entry or a primary inspection at a checkpoint. (5)Primary inspectionThe term primary inspection means an initial inspection of a vehicle or individual at a checkpoint.
(6)Secondary inspectionThe term secondary inspection means a further inspection of a vehicle or individual that is conducted following a primary inspection. (b)Data collection by law enforcement officials enforcing United States laws and regulations and making border security stops (1)Requirement for data collection regarding stops and searchesA law enforcement official who initiates a patrol stop or who detains any individual beyond a brief and limited inquiry, such as a primary inspection at a checkpoint, shall record—
(A)the date, time, and location of the contact; (B)the law enforcement official’s basis for, or circumstances surrounding, the contact, including if such individual’s perceived race or ethnicity contributed to the basis for, and circumstances surrounding, the contact;
(C)the identifying characteristics of such individual, including the individual’s perceived race, gender, ethnicity, and approximate age; (D)the duration of the stop, detention, or search, whether consent was requested and obtained for the contact, including any search;
(E)a description of any articulable facts and behavior by the individual that justify initiating the contact or probable cause to justify any search pursuant to such contact; (F)a description of any items seized during such search, including contraband or money, and a specification of the type of search conducted;
(G)whether any arrest, detention, warning, or citation resulted from such contact and the basis for such action; (H)the immigration status of the individual, if obtained during the ordinary course of the contact without additional questioning in accordance with this section, and whether removal proceedings were subsequently initiated against the individual;
(I)whether a body-worn camera or any other video or audio recording exists that recorded the stop or detention; (J)whether force was used by the law enforcement official and, if so, the type of force, justification for using force, and whether the use of force resulted in injury or death;
(K)whether any complaint was made by the individual subject to the contact, and if so— (i)which oversight components within or outside of the Department of Homeland Security investigated the complaint;
(ii)how long the investigation lasted; (iii)a description of the methods of investigation used; and
(iv)the badge number of the law enforcement official involved in the complaint; (L)if the contact was initiated by a State or local law enforcement agency—
(i)the reason for involvement of a Federal law enforcement official; (ii)the duration of the contact prior to contact with any Federal law enforcement official;
(iii)the method by which a Federal law enforcement official was informed of the stop; and (iv)whether the individual was being held by State or local officials on State criminal charges at the time of such contact;
(M)if the contact was initiated by a State or local law enforcement agency of a State, whether such agency was acting pursuant to— (i)an agreement entered into under section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g));
(ii)authorization under title IV of the Tariff Act of 1930 (19 U.S.C. 1401 et seq.); or (iii)pursuant to any other agreement with the Department of Homeland Security, including any Federal grant program;
(N)if the contact involved an individual whose primary language of communication is not English, the means of communication used; (O)if the contact occurred at a location proximate to a place of worship or religious ceremony, school or education-related place or event, courthouse or other civic building providing services accessible to the public, hospital, medical treatment, or health care facility, at a public demonstration, or an attorney's office, including a public defender or legal aid office; and
(P)if the contact occurred at a location described in subparagraph (O), why that location was chosen and any supervisory approval that was sought to carry out the contact at the location. (2)Requirement for U.S. Customs and Border Protection data collection regarding checkpointsThe Commissioner of U.S. Customs and Border Protection shall collect data on—
(A)the number of permanent and temporary checkpoints utilized by agents and officers of U.S. Customs and Border Protection; (B)the location of each such checkpoint;
(C)the dates on which a temporary checkpoint was used; and (D)a description of each such checkpoint, including the presence of any other law enforcement agencies and the use of law enforcement resources, such as canines and surveillance technologies, including license plate readers.
(3)RulemakingNot later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with stakeholders, including research, civil, and human rights organizations, shall promulgate regulations relating to the collection and reporting of data required under paragraphs (1) and (2), which shall— (A)specify all data to be reported; and
(B)provide standards, definitions, and technical specifications to ensure uniform reporting. (4)Compilation of data (A)Department of Homeland Security law enforcement officialsThe Secretary of Homeland Security shall compile—
(i)the data collected under paragraph (1) by agents and officers of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection; (ii)the data collected under paragraph (2) by the Commissioner of U.S. Customs and Border Protection; and
(iii)an analysis for all incidents investigated by the Department of Homeland Security’s Office of Inspector General, U.S. Customs and Border Protection’s Office of Professional Responsibility, or U.S. Immigration and Customs Enforcement’s Office of Professional Responsibility to determine whether the data required to be collected under this Act were properly recorded and, if not, the corrective measures that were or will be taken. (B)Other law enforcement officialsThe head of each agency, department, or other entity that employs law enforcement officials other than agents and officers referred to in subparagraph (A) shall—
(i)compile the data collected by such law enforcement officials pursuant to paragraph (1); and (ii)submit the compiled data to the Secretary of Homeland Security.
(5)Use of dataThe Secretary of Homeland Security shall consider the data compiled under paragraph (4) in making policy and program decisions. (6)Audit and reportNot later than one year after the effective date of the regulations promulgated under paragraph (3), the Comptroller General of the United States shall—
(A)conduct an audit of the data compiled under paragraph (4) to determine whether law enforcement officials are complying with the data collection requirements under paragraph (1); and (B)submit to Congress a report that contains a summary of the findings of such audit.
(c)Annual report
(1)RequirementNot later than one year after the date of the enactment of this Act and annually thereafter, the Secretary of Homeland Security shall submit to Congress a report on the data compiled under subsection (b)(4), including all such data for the previous year. (2)AvailabilityEach report submitted under paragraph (1) shall be made available to the public, except for particular data if the Secretary of Homeland Security—
(A)explicitly invokes an exemption contained in paragraphs (1) through (9) of section 552(b) of title 5, United States Code; and (B)provides a written explanation for the exemption’s applicability.
(3)PrivacyThe Secretary may not report unique personal identifying information of persons stopped, searched, or subjected to a property seizure, for purposes of this section. (4)PublicationThe data compiled under subsection (b)(4) shall be made available to the public to the extent the release of such data is permissible under Federal law.
8.Limitation on the separation of families
(a)Limitation
(1)In generalAn agent or officer of a designated agency shall be prohibited from removing a child from his or her parent or legal guardian, at or near the port of entry or within 100 miles of a border of the United States, unless one of the following has occurred: (A)A State court, authorized under State law, terminates the rights of the parent or legal guardian, determines that it is in the best interests of the child to be removed from the parent or legal guardian, in accordance with the Adoption and Safe Families Act of 1997 (Public Law 105–89), or makes any similar determination that is legally authorized under State law.
(B)An official from the State or county child welfare agency with expertise in child trauma and development makes a best interests determination that it is in the best interests of the child to be removed from the parent or legal guardian because the child is in danger of abuse or neglect at the hands of the parent or legal guardian, or is a danger to herself or others. (2)ExceptionIn the case that a child is removed from his or her parent or legal guardian under this section, an independent child welfare expert licensed by the State or county in which the child was so removed shall make a determination regarding whether such separation is authorized not later than 48 hours after such removal, and if such expert does not authorize such separation, the child shall be reunited with his or her parent or legal guardian not later than 48 hours after such determination.
(b)Prohibition on separation
(1)In generalA designated agency may not remove a child from a parent or legal guardian solely for the policy goal of deterring individuals from migrating to the United States or for the policy goal of promoting compliance with civil immigration laws. (2)Penalty for family separationAny person who knowingly separates a child from his or her parent or legal guardian in violation of this section, shall be fined not more than $10,000.
(c)Documentation requiredThe Secretary shall ensure that a separation under subsection (a)(3) is documented in writing and includes, at a minimum, the reason for such separation, together with the stated evidence for such separation. 9.Electronic tracking (a)EstablishmentThe Secretary of Homeland Security and the Secretary of Health and Human Services shall establish an electronic tracking system on a single interface, which—
(1)shall be accessible to agents and officials of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and the Office of Refugee Resettlement; and (2)shall be used to track the location of a child who has been removed pursuant to section 8 and the parent or legal guardian of the child.
(b)Tracking numberThe Secretary of Homeland Security shall assign to a child who has been removed pursuant to section 8 and the parent or legal guardian of the child a tracking number that— (1)is transferrable;
(2)may be shared easily on the electronic tracking system described in subsection (a) by agents and officials of— (A)U.S. Customs and Border Protection;
(B)U.S. Immigration and Customs Enforcement; and (C)the Office of Refugee Resettlement; and
(3)is included on the paperwork of the child and the parent or legal guardian of the child. (c)Contact informationThe Secretary of Homeland Security and the Secretary of Health and Human Services shall advise a child who has been removed pursuant to section 8 and the parent or legal guardian of the child on the manner in which the child and the parent or legal guardian may be contacted during the term of the removal.
10.Independence of immigration judgesNot later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report, which shall be published and made available to the public, on the feasibility of establishing an immigration court outside the executive branch composed of judges appointed for a fixed term with jurisdiction over cases arising out of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) or any other immigration law of the United States and the appeal of such cases, the impact that such an immigration court will have on the case backlog of immigration judges, barriers to the creation of such an immigration court, and recommendations for Congress.


		I
		112th CONGRESS
		1st Session
		H. R. 2263
		IN THE HOUSE OF REPRESENTATIVES

			June 21, 2011
			Mr. Paul introduced
			 the following bill; which was referred to the
			 Committee on Ways and
			 Means

		A BILL
		To amend the Internal Revenue Code of 1986 to exclude
		  from Federal tax certain payments made in connection with reductions in
		  force.

		1.Short titleThis Act may be cited as the
			 Unemployed Tax Relief Act of
			 2011.
		2.Exclusion from
			 income for payments in connection with reductions in force
			(a)In
			 generalPart III of subchapter B of chapter 1 of the Internal
			 Revenue Code of 1986 is amended by inserting after section 139D the following
			 new section:

					139E.Payments in
				connection with reductions in force
						(a)In
				generalIn the case of an
				individual who is separated from employment as a result of a reduction in force
				of the employer, gross income shall not include—
							(1)the last regular
				payment of wages (as defined in section 3121) or compensation (as defined in
				section 3231), as the case may be, for service performed before such
				separation, and
							(2)any severance
				amount received in connection with such separation.
							(b)Employment
				taxesAmounts excluded from gross income under subsection (a)
				shall not be taken into account as wages for purposes of subtitle C.
						(c)Severance
				amountFor purposes of this section, a severance amount
				includes—
							(1)any amount based
				on months of service which is not in the nature of retirement,
							(2)any amount in lieu
				of unused vacation time or sick leave,
							(3)any amount in lieu
				of a required notice period, and
							(4)any stock option
				offered as part of a severance
				package.
							.
			(b)Trust funds held
			 harmlessThere is hereby appropriated (out of any money in the
			 Treasury not otherwise appropriated) for each fiscal year to each
			 employment-related fund an amount equal to the reduction in the transfers to
			 such fund for such fiscal year by reason of the amendment made by subsection
			 (a). For purposes of the preceding sentence, the term employment-related
			 fund means a fund the contributions to which are determined in relation
			 to taxes imposed under subtitle C of the Internal Revenue Code of 1986.
			(c)Clerical
			 amendmentThe table of sections for part III of subchapter B of
			 chapter 1 of such Code is amended by inserting after the item relating to
			 section 139D the following new item:

						Sec. 139E. Payments in connection with reductions in
				force.

					.
			(d)Effective
			 dateThe amendment made by this section shall apply to amounts
			 received after December 31, 2009.


		I
		112th CONGRESS
		1st Session
		H. R. 1949
		IN THE HOUSE OF REPRESENTATIVES

			May 23, 2011
			Mr. Sarbanes
			 introduced the following bill; which was referred to the
			 Committee on Oversight and Government
			 Reform

		A BILL
		To ensure efficient performance of agency
		  functions.

		1.Short title; table of
			 contents
			(a)Short
			 titleThis Act may be cited
			 as the Correction of Long-Standing
			 Errors in Agencies’ Unsustainable Procurements Act of
			 2011 or the CLEAN–UP Act.
			(b)Table of
			 contentsThe table of contents for this Act is as follows:

					Sec. 1. Short title; table of contents.
					Sec. 2. Definitions.
					Sec. 3. Findings.
					Sec. 4. Purposes.
					Sec. 5. General personnel policy.
					Sec. 6. Consideration of in-house performance required for new
				work.
					Sec. 7. Transition to Federal employee performance of certain
				functions.
					Sec. 8. Establishment of inventories and reviews of contracts
				for services.
					Sec. 9. Identifying and addressing shortages of Federal
				employees.
					Sec. 10. Expedited hiring authority for performance of certain
				functions by Federal employees.
					Sec. 11. Establishment of business process reengineering
				projects as a preferred alternative to the OMB Circular A–76
				process.
					Sec. 12. Reforms to the OMB Circular A–76 process.
					Sec. 13. Establishment of temporary suspension on use of OMB
				Circular A–76 process until reforms required in this Act have been
				substantially implemented.

			2.DefinitionsIn this Act:
			(1)Inherently
			 governmental functionsThe term inherently governmental
			 functions has the meaning given the term under section 5 of the Federal
			 Activities Inventory Act of 1998 (31 U.S.C. 1501 note) and subpart 7.5 of part
			 7 of the Federal Acquisition Regulation.
			(2)Functions
			 closely associated with inherently governmental functionsThe
			 term functions closely associated with inherently governmental
			 functions means the functions described in section 7.503(d) of the
			 Federal Acquisition Regulation that are recurring.
			(3)Mission-essential
			 functionsThe term mission-essential functions
			 refers to functions that, although neither necessarily inherently governmental
			 nor necessarily closely related to an inherently governmental function, are
			 nevertheless considered by executive agency officials to be more appropriate
			 for performance by Federal employees.
			(4)Business Process
			 Reengineering ProjectThe term business process
			 reengineering project refers to a process whereby an existing
			 organization is reinvented, consolidated, or expanded to result in a new
			 organization whose performance exceeds that of previous and comparable
			 performers, whether performed by Federal employees or contractors or a
			 combination of Federal employees and contractors.
			(5)Executive
			 agencyThe term executive agency has the meaning
			 given the term in section 133 of title 41, United States Code.
			(6)Personal
			 services contractThe term personal services
			 contract has the meaning given to the term under section 37.104 of the
			 Federal Acquisition Regulation, unless the functions to be performed under the
			 contract are included in statutory exceptions, including sections 129b and 1091
			 of title 10, United States Code.
			(7)Standard
			 studyThe term standard study has the meaning given
			 to the specific type of cost-comparison study outlined in attachment B in the
			 OMB Circular A–76 process, as revised in May 2003.
			3.FindingsCongress makes the following
			 findings:
			(1)Functions that
			 should have been performed by Federal employees because they are inherently
			 governmental functions, functions that are closely related to inherently
			 governmental functions and recurring, or mission-essential functions have been
			 wrongly outsourced, including preparing budgets, developing policy, supporting
			 acquisition, developing and interpreting regulations, developing
			 reorganizations, and developing and implementing competitive
			 sourcing plans.
			(2)Federal agencies
			 have been pushed to outsource significant amounts of work with little
			 competition, while Federal employees, despite having won 83 percent of the OMB
			 Circular A–76 privatization reviews conducted since the circular was revised in
			 2003, are rarely given opportunities to perform new work or outsourced
			 work.
			(3)The capacity of
			 the Federal Government to oversee contractors and the OMB Circular A–76
			 privatization process continues to decline, as demonstrated in scandals
			 involving reconstruction efforts in Iraq, Hurricane Katrina recovery efforts,
			 and conditions at Walter Reed Army Medical Center. The Government
			 Accountability Office (GAO), in two 2008 reports on the use of
			 competitive sourcing in different agencies, determined that
			 costs of A–76 privatization reviews often exceeded savings because of
			 systematically bad direction from the Office of Management and Budget. In the
			 latter report, on the Department of Labor, GAO wrote, Without a better
			 system to assess performance and track all of the costs associated with
			 competitive sourcing, DoL cannot reliably assess whether competitive sourcing
			 truly provides the best deal for the taxpayers..
			(4)The OMB Circular
			 A–76 process retains fundamental inequities. The minimum cost differential
			 fails to take into account the quantifiable costs (such as hiring consultants
			 and diverting Federal employees from their regular duties) of carrying out A–76
			 privatization studies. All in-house bids are charged 12 percent of their
			 personnel costs for overhead costs, even though a Department of Defense
			 Inspector General study revealed that overhead costs may not differ
			 significantly, if at all, whether the functions are kept in-house or contracted
			 out, even in the case of studies of large numbers of Federal employees. Despite
			 time limits established in law and as part of the OMB Circular process A–76
			 process, privatization studies are allowed to continue indefinitely. The longer
			 an A–76 privatization study lasts, the more it costs to conduct, the less
			 likely there are to be savings from that study, and the more likely it will
			 cost taxpayers more than it will save. In fact, given the costs and
			 controversies associated with the OMB Circular A–76 privatization process, OMB
			 should be encouraging agencies to use internal reengineering efforts, as OMB
			 finally did, during the last year of George W. Bush's presidency.
			4.PurposesThe purposes of this Act are as
			 follows:
			(1)To build upon the
			 foundation established by the 110th Congress that suspended the use of the OMB
			 Circular A–76 privatization process, required all executive agencies to develop
			 policies to promote the insourcing of new work and outsourced work, and
			 required the Department of Defense to develop a comprehensive inventory of its
			 service contracts.
			(2)To establish a
			 policy that provides that—
				(A)Federal employees
			 must perform inherently governmental functions, functions closely related to
			 inherently governmental functions, and mission essential functions;
				(B)other functions
			 may be performed by Federal employees or contractors, depending on the needs of
			 executive agencies and all relevant public-private competition requirements;
			 and
				(C)Federal employees
			 should not be subject to headcounts, personnel ceilings, or constraints, which
			 force executive agencies to contract out functions without public-private
			 competition.
				(3)To prevent
			 executive agencies from contracting out new functions if those new functions
			 should be performed by Federal employees and require agencies to explain in
			 annual reports to Congress why functions ultimately contracted out were not
			 considered for performance by Federal employees.
			(4)To require
			 executive agencies—
				(A)to determine which
			 of their functions must actually be performed by Federal employees because the
			 work is inherently governmental, closely related to inherently governmental
			 work, or mission essential, and how many contractor employees are currently
			 performing those functions;
				(B)to report on how
			 wrongly contracted out work will be insourced; and
				(C)to incrementally
			 insource over several years 70 percent of the wrongly contracted out
			 workload.
				(5)To require
			 civilian agencies to establish inventories to track the cost and quality, among
			 other features, of specific contracts, based on the inventory that the 110th
			 Congress required the Department of Defense to establish.
			(6)To require
			 executive agencies to determine if they are now experiencing or will experience
			 shortages of Federal employees and what their plans are for addressing these
			 personnel shortfalls.
			(7)To encourage the
			 use of a regulated alternative to the often costly and controversial OMB
			 Circular A–76 process, including business process reengineering, which is
			 commonly used by executive agencies to generate efficiencies through internal
			 reorganizations.
			(8)To direct the
			 President to undertake several reforms of the OMB Circular A–76 privatization
			 process, including imposing time limitations on how long privatization studies
			 can last, charging in-house bids only for actual overhead costs, and
			 considering quantifiable costs of conducting A–76 privatization studies in the
			 minimum differential.
			(9)To impose a
			 temporary suspension on the use of the OMB Circular A–76 privatization process
			 until the reforms required by this Act have been substantially implemented,
			 consistent with the temporary suspension on the same process enacted in the
			 110th Congress.
			5.General personnel
			 policy
			(a)Required
			 performance of inherently governmental functions by Federal
			 employeesThe head of each executive agency shall ensure that
			 inherently governmental functions, functions closely related to inherently
			 governmental functions, and mission-essential functions are performed by
			 Federal employees.
			(b)Performance of
			 other functions by more efficient workforce in accordance with public-Private
			 competition requirementsThe head of each executive agency shall
			 ensure that functions that are not inherently governmental functions, functions
			 closely related to inherently governmental functions, or mission-essential
			 functions are performed by the more efficient form of personnel, whether
			 Federal employees, contractors, or, in the case of the Department of Defense,
			 military personnel, consistent with requirements for quality and reliability
			 and other needs of that executive agency and with all public-private
			 competition requirements.
			(c)Use of most
			 efficient workforceNotwithstanding any other provision of law,
			 the heads of executive agencies shall not be constrained by any in-house
			 personnel ceiling, headcount, or staffing limitation in ensuring that functions
			 are performed in the most efficient manner possible.
			(d)Shifting
			 functions between workforcesIn developing personnel
			 authorization requests to Congress and in carrying out personnel policies
			 generally, the head of each executive agency shall consider particularly the
			 advantages of converting from one form of personnel (Federal or private
			 contract personnel, or in the case of the Department of Defense, Federal,
			 private contract, or military personnel) to another form of personnel for the
			 performance of functions that are not inherently governmental functions,
			 functions closely related to inherently governmental functions, or
			 mission-essential functions using any relevant public-private competition
			 processes.
			6.Consideration of
			 in-house performance required for new work
			(a)FindingPursuant
			 to section 739 of the Financial Services and General Government Appropriations
			 Act, 2008 (division D of Public Law 110–161; 31 U.S.C. 501 note) each covered
			 executive agency is required to devise and implement guidelines and procedures
			 to ensure that consideration is given to using, on a regular basis, Federal
			 employees to perform new functions.
			(b)Certification
			 Required Before Awarding a Service ContractThe Chief Acquisition
			 Officer of each executive agency, or, if no such position exists, the executive
			 agency’s representative on the Chief Acquisition Officers Council, shall, with
			 respect to each service contract entered into by such agency for the
			 performance of a function or functions, including the award or placement of a
			 task or delivery order or the exercise of an option under an existing contract,
			 certify, together with supporting rationales, that—
				(1)each function to
			 be performed under such contract is not an inherently governmental function, a
			 function closely related to an inherently governmental function, or a
			 mission-essential function;
				(2)the contract is
			 not actually an unauthorized personal services contract; and
				(3)performance by
			 employees of the agency of the function to be performed by a contractor was
			 explicitly considered, with particular consideration given if such function is
			 comparable to functions already performed by Federal employees in the executive
			 agency or another executive agency, either currently or within the last 10
			 years.
				(c)Reports
			 Required
				(1)In
			 generalNot later than November 1, 2011, and annually thereafter,
			 the head of each covered executive agency shall submit to the Director of the
			 Office of Management and Budget a report on each of the service contracts for
			 new work entered into during the previous fiscal year.
				(2)ContentEach
			 report submitted under paragraph (1) shall describe the following:
					(A)Each function or
			 functions performed under a contract with a contractor, the approximate number
			 of employees used by contractors under each such contract, the date each such
			 contract was entered into, the duration of each contract, and each
			 certification required under subsection (b).
					(B)Each new function
			 that was assigned by the executive agency to employees of the agency,
			 including, for each function, a brief description of the work, a determination
			 of the dollar value, and the number of new Federal employees who were hired or
			 transferred from the performance of other functions.
					(C)Any obstacles to
			 assigning new functions to Federal employees, as well as recommendations for
			 legislation to overcome those obstacles.
					(d)Publication of
			 reports requiredThe Director of the Office of Management and
			 Budget shall promptly publish in the Federal Register information about
			 obtaining each report prepared under subsection (c), including the names,
			 addresses, and telephone numbers of the officials from whom the reports may be
			 obtained. The reports shall also be made available on a publicly available
			 Internet Web site. The Director shall remove proprietary and confidential
			 information from reports made available pursuant to this section.
			7.Transition to
			 Federal employee performance of certain functions
			(a)Report on
			 functions that should be performed by Federal employees
				(1)Report
			 requiredNot later than 180 days after the date of the enactment
			 of this Act, the head of each executive agency shall submit to the Director of
			 the Office of Management and Budget a report, to be known as the
			 Functions At Risk Report, that—
					(A)describes any
			 function that is, in whole or in part, an inherently governmental function, a
			 function closely related to an inherently governmental function, or a
			 mission-essential function and which, despite the requirement that such
			 function only be performed by Federal employees, is actually performed, in
			 whole or in part, by a contractor (in this section referred to as an
			 at-risk function);
					(B)describes the
			 number of contractor employees performing the function, in whole or in part,
			 and the nature of their work;
					(C)includes a plan
			 for ensuring that the function is performed by Federal employees;
					(D)identifies any
			 impediments to carrying out such plan; and
					(E)includes any
			 recommendations for additional legislation necessary to implement this
			 section.
					(2)Limitation on
			 designeeThe head of an affected executive agency may not assign
			 responsibility for compliance with the report requirement established by this
			 subsection below the level of an assistant secretary.
				(3)Publication of
			 reports requiredThe Director of the Office of Management and
			 Budget shall promptly publish in the Federal Register information about
			 obtaining each report prepared under paragraph (1), including the names,
			 addresses, and telephone numbers of the officials from whom the reports may be
			 obtained. The reports shall also be made available on a publicly available
			 Internet Web site. The Director shall remove proprietary and confidential
			 information from reports made available pursuant to this section.
				(b)Requirement To
			 reduce number of at-Risk functionsThe head of each executive
			 agency shall reduce the total number of contractor employees reported in that
			 executive agency’s Functions At Risk Report by—
				(1)5
			 percent within 1 year after the date of the enactment of this Act;
				(2)10 percent within
			 2 years after the date of the enactment of this Act;
				(3)20 percent within
			 3 years after the date of the enactment of this Act;
				(4)40 percent within
			 4 years after the date of the enactment of this Act;
				(5)60 percent within
			 5 years after the date of the enactment of this Act; and
				(6)70 percent within
			 6 years after the date of the enactment of this Act.
				(c)Evaluation of
			 scheduleThe Comptroller General of the United States
			 shall—
				(1)evaluate the
			 success of the incremental schedule required under subsection (b) in ensuring
			 that functions that should be performed by Federal employees are actually
			 performed by Federal employees; and
				(2)provide
			 recommendations for future legislation, particularly with respect to addresses
			 remaining at-risk functions.
				(d)Suspension of
			 reduction schedule requirementThe Director of the Office of
			 Management and Budget may suspend the requirement to reduce positions pursuant
			 to subsection (b) for a particular executive agency for a specific period of
			 time upon certifying to the Committee on Government Oversight and Reform of the
			 House of Representatives and the Committee on Homeland Security and
			 Governmental Affairs of the Senate that compliance during that specific period
			 of time would undermine national security, homeland security, or patient
			 care.
			8.Establishment of
			 inventories and reviews of contracts for services
			(a)In
			 generalNot later than June 30, 2012, and annually thereafter,
			 the head of each executive agency subject to the Federal Activities Inventory
			 Reform Act of 1998 (Public Law 105–270; 31 U.S.C. 1501 note), other than the
			 Department of Defense, shall submit to the Director of the Office of Management
			 and Budget an annual inventory of the activities performed during the preceding
			 fiscal year pursuant to contracts for services for or on behalf of such
			 agency.
			(b)ContentThe
			 entry for an activity on an inventory under this section shall include, for the
			 fiscal year covered by such entry, the following:
				(1)The functions
			 performed by the contractor.
				(2)Information
			 regarding the contractor, the part of the executive agency administering the
			 contract, and the part of the agency whose requirements are being met through
			 contractor performance of the function.
				(3)The funding source
			 for the contract under which the function is performed.
				(4)The fiscal year
			 for which the activity first appeared on an inventory under this
			 section.
				(5)The number of
			 full-time contractor employees (or its equivalent) compensated for the
			 performance of the activity.
				(6)Whether the
			 contract has been performed pursuant to a contract awarded on a noncompetitive
			 basis, either originally or upon a subsequent renewal.
				(7)Whether the
			 contract has been performed poorly, as determined by a contracting officer,
			 during the 5-year period preceding the date of such determination, because of
			 excessive costs or inferior quality.
				(c)FormThe
			 inventory required under this section shall be submitted in unclassified form,
			 but may include a classified annex.
			(d)PublicationThe
			 Director of the Office of Management and Budget shall promptly publish in the
			 Federal Register information about obtaining each report prepared under
			 subsection (a), including the names, addresses, and telephone numbers of the
			 officials from whom the reports may be obtained. The reports shall be made
			 available on a publicly available Internet Web site. The Director shall remove
			 proprietary information from reports made available pursuant to this
			 subsection.
			(e)Review and
			 planning requirementsNot later than 90 days after the date on
			 which an inventory is submitted under subsection (a), the head of each
			 executive agency or an official designated personally by the agency head
			 shall—
				(1)review the
			 contracts and activities in the inventory;
				(2)ensure
			 that—
					(A)each contract on
			 the list that is a personal services contract has been entered into, and is
			 being performed, in accordance with applicable laws and regulations;
					(B)the activities on
			 the list do not include any inherently governmental functions; and
					(C)to the maximum
			 extent practicable, the activities on the list do not include any functions
			 closely associated with inherently governmental functions;
					(3)identify
			 activities that should be considered for conversion to performance by civilian
			 employees of the executive agency pursuant to section 739 of the Financial
			 Services and General Government Appropriations Act, 2008 (division D of Public
			 Law 110–161; 31 U.S.C. 501 note); and
				(4)develop a plan to
			 provide for appropriate consideration of the conversion by June 30 of the
			 following year of the activities identified under paragraph (3), which shall be
			 included as an attachment to the next required annual inventory.
				(f)Rule of
			 constructionNothing in this section shall be construed to
			 authorize the performance of personal services by a contractor except as
			 otherwise provided by law.
			(g)Priority of
			 contractor inventoryNotwithstanding any other provision of law,
			 prior to the submission to the Office of Management and Budget of an inventory
			 pursuant to the Federal Activities Inventory Reform Act of 1998 (Public Law
			 105–270; 31 U.S.C. 1501 note), OMB Circular A–76, or any other related
			 administrative regulation, directive, or policy, or to publication in the
			 Federal Register, the head of an executive agency shall submit the inventory
			 required under this section to Congress and the Director of the Office of
			 Management and Budget and shall publish the inventory required under this
			 section in the Federal Register.
			9.Identifying and
			 addressing shortages of Federal employees
			(a)Annual strategic
			 human capital plan requiredNot later than 1 year after the date of the
			 enactment of this Act, and annually thereafter, the head of each executive
			 agency shall submit to the Director of the Office of Management and Budget a
			 strategic human capital plan to ensure the capability of the Federal employee
			 workforce of the executive agency to perform its functions.
			(b)ContentEach
			 strategic human capital plan submitted under subsection (a) shall include the
			 following:
				(1)An assessment
			 of—
					(A)the critical
			 skills and competencies in the Federal employee workforce that will be needed
			 to perform the executive agency’s functions over the next 10 years, based on
			 expected losses due to retirement and other attrition; and
					(B)gaps in the
			 capability of the Federal employee workforce, both existing and projected, to
			 perform the executive agency’s functions over that period.
					(2)A
			 plan of action for developing the Federal employee workforce of the executive
			 agency to address the current or anticipated gaps, including—
					(A)specific hiring,
			 promoting, and retention schedules, including the funding needed to achieve
			 such schedules; and
					(B)specific
			 strategies for developing, training, and promoting the Federal employee
			 workforce of the executive agency, including the funding needed to implement
			 such strategies.
					(c)Enhancement of
			 human capital planningAll human capital planning efforts should
			 be considered through any existing labor-management partnership
			 arrangements.
			(d)Addressing gaps
			 in Federal workforces
				(1)In
			 generalThe head of an executive agency may not conduct a
			 public-private competition under Office of Management and Budget Circular A–76
			 or any other provision of law of any function that has been identified in the
			 strategic human capital plan of such agency as one that either is experiencing
			 or will experience a gap in its Federal employee workforce.
				(2)Shortcomings
			 constituting gaps in workforceFor purposes of this section, gaps
			 in the workforce include shortcomings—
					(A)in the skills and
			 competencies of employees;
					(B)in the number of
			 employees possessing such skills and competencies; and
					(C)in the skills and
			 competencies of employees or in the number of employees that would make it
			 difficult to effectively supervise a contractor and intelligently oversee its
			 performance or reconstitute that function for performance within the agency in
			 the event of contractor nonperformance.
					(e)PublicationThe
			 Director of the Office of Management and Budget shall promptly publish in the
			 Federal Register information about obtaining each report prepared under
			 subsection (a), including the names, addresses, and telephone numbers of the
			 officials from whom the reports may be obtained. The reports shall be made
			 available on a publicly available Internet Web site.
			10.Expedited hiring
			 authority for performance of certain functions by Federal employees
			(a)Expedited hiring
			 authorityFor purposes of
			 sections 3304, 5333, and 5753 of title 5, United States Code, the head of an
			 executive agency may—
				(1)designate any
			 category of professional positions within the agency as shortage category
			 positions; and
				(2)utilize the
			 authorities in such sections to recruit and appoint highly qualified persons
			 directly to positions so designated,
				in order to
			 comply with the requirements of this Act, and section 739 of the Financial
			 Services and General Government Appropriations Act, 2008 (division D of Public
			 Law 110–161; 31 U.S.C. 501 note), which requires each covered executive agency
			 to devise and implement guidelines and procedures to ensure that consideration
			 is given to using, on a regular basis, Federal employees to perform new
			 functions as well as functions that are currently performed by
			 contractors.(b)Veterans
			 preferenceIn using the authority provided under this section,
			 the head of an executive agency shall apply the principles of preference for
			 the hiring of veterans and other persons established in subchapter 1 of chapter
			 33 of title 5, United States Code.
			(c)Termination of
			 authorityExpedited hiring authority may not be used to appoint a
			 person to a position of employment under this section after the date that is 6
			 years after the date of the enactment of this Act.
			(d)Report on the
			 use of expedited hiring authorityNot later than December 31,
			 2011, and annually thereafter for three years, the Office of Personnel
			 Management shall submit to the Committee on Government Oversight and Reform of
			 the House of Representatives and the Committee on Homeland Security and
			 Governmental Affairs of the Senate a report on the use by executive agencies of
			 the expedited hiring authority under this section consistent with merit
			 principles, including recommendations for how authority for expedited hiring
			 might be improved.
			11.Establishment of
			 business process reengineering projects as a preferred alternative to the OMB
			 Circular A–76 process
			(a)Statement of
			 policyEach executive agency
			 should constantly strive to generate efficiencies and improvements through
			 business process reengineering, even if such efforts reduce or increase the
			 need for Federal employees and contractors.
			(b)GuidelinesThe
			 Director of the Office of Management and Budget shall develop guidelines for
			 the establishment of business process reengineering projects. Such guidelines
			 shall ensure consideration and assessment of the following:
				(1)The number of
			 Federal employees and contractor employees to be affected by the initiative,
			 and how they will be affected.
				(2)The resources
			 needed to conduct the initiative.
				(3)The location or
			 locations where the initiative will be performed, and the location of the
			 affected Federal and contractor employees if different from the initiative
			 location or locations.
				(4)The functions to
			 be included in the initiative.
				(5)The timeline for
			 development and implementation of the initiative.
				(6)The estimated
			 duration of the initiative if such initiative is deemed to be temporary.
				(7)The anticipated
			 budget savings and programmatic improvements.
				(c)Pre-implementation
			 reportNot later than 45 days before beginning implementation of
			 a business process reengineering project, the head of the executive agency
			 shall submit to the Committee on Government Oversight and Reform of the House
			 of Representatives and the Committee on Homeland Security and Governmental
			 Affairs of the Senate a report on the proposed project, including the
			 information described in subsection (b).
			(d)Consistency with
			 existing lawAll business process reengineering projects shall be
			 implemented in a manner that is consistent with paragraphs (2) and (3) of
			 section 7106(b) of title 5, United States Code. Such projects shall not result
			 in a change of the collective bargaining status of affected Federal employees
			 in the executive agency or in the representation status of a labor organization
			 with exclusive representation status, as provided under section 7114 of title
			 5, United States Code.
			(e)Enhancement of
			 Federal employee buy-inThe head of an executive agency shall, in
			 order to promote the active cooperation of affected Federal employees—
				(1)consider all
			 business process reengineering projects through any labor-management
			 partnership arrangements;
				(2)provide any
			 reports required under subsection (c) to any labor organization with national
			 consultation rights under section 7113 of title 5, United States Code, at least
			 60 days before they are provided to Congress under such subsection; and
				(3)involve
			 discussions and bargaining over the impact of implementation of any projects
			 upon any bargaining unit with the exclusive representatives of the executive
			 agency’s Federal workforce, as provided under section 7114 and sections
			 7106(b)(2) and (b)(3) of title 5, United States Code.
				(f)Personnel
			 increases or reductionsAny personnel increases or reductions in
			 the Federal employee or contractor workforces must be based on the requirements
			 of a specific business process reengineering project and not on unrelated or
			 predetermined cost and savings assumptions.
			(g)Annual
			 evaluationNot later than October 31, 2012, and annually
			 thereafter, the Director of the Office of Management and Budget shall conduct a
			 performance review of ongoing business process reengineering projects and
			 submit a report on such review to the Committee on Government Oversight and
			 Reform of the House of Representatives and the Committee on Homeland Security
			 and Governmental Affairs of the Senate. Each business process reengineering
			 project shall be evaluated with respect to the level of performance in the
			 following areas:
				(1)Costs, savings,
			 and overall financial performance of the organization.
				(2)Organic knowledge,
			 skills or expertise.
				(3)Efficiency and
			 effectiveness of key functions or processes.
				(4)Efficiency and
			 effectiveness of the overall organization.
				12.Reforms to the
			 OMB Circular A–76 process
			(a)Sense of
			 CongressIt is the sense of
			 Congress that, with respect to Office of Management and Budget Circular A–76 or
			 any other related administrative regulation, directive, or policy, the
			 following policies and procedures should be implemented:
				(1)A
			 standard study shall last no longer than 2 years, from the beginning of the
			 preliminary planning process to the rendering of the award decision, which
			 period shall be calculated as follows:
					(A)Any days during
			 which a standard study is suspended because of bid protests on behalf of the
			 affected Federal employees shall not be included when determining the length of
			 a standard study.
					(B)However, any days
			 during which a standard study is extended because of additional activity that
			 is either required by the Government Accountability Office, directed by the
			 contracting officer subsequent to an appeal to the Government Accountability
			 Office or the dismissal or denial of a protest to the Government Accountability
			 Office shall be included when determining the length of a standard
			 study.
					(C)No executive
			 agency may stop and restart a standard study in order to avoid compliance with
			 this paragraph. Similarly, an executive agency may not subject a function to a
			 standard study if it was earlier subjected to a standard study that had to be
			 stopped because of the length limitation under this paragraph.
					(2)The conversion
			 differential shall be—
					(A)significantly
			 increased in order to include the large costs that are currently excluded from
			 consideration, including preliminary planning costs, consultants costs, costs
			 of Federal employees diverted from their actual jobs to work on studies,
			 transition costs, post-competition reviews costs, and proportional costs for
			 agencies’ privatization bureaucracies (including both Federal employees and
			 contractors); and
					(B)doubled when a
			 standard study begins its thirteenth month, which period shall be calculated as
			 follows:
						(i)Any
			 days during which a standard study is suspended because of bid protests on
			 behalf of the affected Federal employees shall not be included when determining
			 the length of a standard study for purposes of doubling the cost
			 differential.
						(ii)However, any days
			 during which a standard study is extended because of additional activity that
			 is either required by the Government Accountability Office, directed by the
			 contracting officer subsequent to an appeal to the Government Accountability
			 Office or the dismissal or denial of a protest to the Government Accountability
			 Office shall be included when determining the length of a standard
			 study.
						(3)Bids or tenders
			 filed on behalf of Federal employees shall include only the overhead costs
			 actually incurred for those Federal employees performing the specific functions
			 being reviewed, and may not include an assessment of an automatic charge for
			 overhead.
				(4)A
			 reliable system to track costs, savings, and quality from OMB Circular A–76
			 studies that has been implemented, tested, and determined to be accurate and
			 reliable over a long-term and a short-term period should be established. The
			 system established should also take into account the possibility for greater
			 efficiencies and programmatic improvements that can be generated through
			 business process reengineering projects, pursuant to section 10.
				(5)No recompetition
			 requiredNo Federal employee workforce should be recompeted under
			 OMB Circular A–76 unless the head of the relevant executive agency, without
			 delegation—
					(A)has signed a
			 certification that such workforce failed to fulfill the terms of the letter of
			 obligation or other agreement, as applicable, pursuant to an earlier OMB
			 Circular A–76 study; and
					(B)published that
			 certification on fedbizopps.gov before the end of the expiration of the
			 performance period.
					(b)GAO
			 report
				(1)Report
			 requiredNot later than 18 months after the date of the enactment
			 of this Act, the Comptroller General of the United States shall submit to the
			 Committee on Government Oversight and Reform of the House of Representatives
			 and the Committee on Homeland Security and Governmental Affairs of the Senate a
			 report with recommendations for executive agencies (other than the Office of
			 Management and Budget) to more fairly, effectively, expeditiously,
			 transparently, and apolitically oversee studies conducted under the Office of
			 Management and Budget Circular A–76 or any other related administrative
			 regulation, directive, or policy, and enforce the rules that govern those
			 studies.
				(2)Clarification of
			 scope of reportThis subsection does not require the Government
			 Accountability Office to examine the rule-making authority of the Office of
			 Management and Budget with regard to OMB Circular A–76 or any other related
			 administrative regulation, directive, or policy.
				(3)Consultation
			 with agencies and stakeholdersIn preparing the report under this
			 subsection, the Comptroller General of the United States should consult with
			 personnel of the Office of Management and Budget, staffing and manpower
			 personnel of other executive agencies, personnel in the offices of other
			 agencies’ inspectors general, and representatives from Federal employee unions
			 and contractor associations.
				13.Establishment of
			 temporary suspension on use of OMB Circular A–76 process until reforms required
			 in this Act have been substantially implementedNo study or public-private competition
			 regarding the conversion to contractor performance of any function performed by
			 Federal employees pursuant to Office of Management and Budget Circular A–76 or
			 any other administrative regulation, directive, or policy, may be prepared for,
			 announced, undertaken, continued, or finished until the Director of the Office
			 of Management and Budget, in consultation with the inspectors general of the 5
			 largest Federal departments in terms of annual budgets as of the date of the
			 enactment of this Act, determines that—
			(1)at least
			 three-fourths of all executive agencies have made substantial progress in the
			 implementation of all the reforms—
				(A)required in
			 sections 6, 7, 8, and 9 of this Act; and
				(B)enacted pursuant
			 to section 739 of the Financial Services and General Government Appropriations
			 Act, 2008 (division D of Public Law 110–161; 31 U.S.C. 501 note), under which
			 each covered executive agency is required to devise and implement guidelines
			 and procedures to ensure that consideration is given to using, on a regular
			 basis, Federal employees to perform new functions as well as functions that are
			 currently performed by contractors; and
				(2)the Office of
			 Management and Budget has implemented the reforms to the OMB Circular A–76
			 described under section 12.