HR 5005 EAS
In the Senate of the United States,
November 19, 2002.
Resolved, That the bill from the House of Representatives (H.R.
5005) entitled `An Act to establish the Department of Homeland Security, and for
other purposes.', do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Homeland Security Act
of 2002'.
(b) TABLE OF CONTENTS- The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 3. Construction; severability.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
Sec. 101. Executive department; mission.
Sec. 102. Secretary; functions.
Sec. 103. Other officers.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
Sec. 201. Directorate for Information Analysis and Infrastructure
Protection.
Sec. 202. Access to information.
Subtitle B--Critical Infrastructure Information
Sec. 213. Designation of critical infrastructure protection
program.
Sec. 214. Protection of voluntarily shared critical infrastructure
information.
Sec. 215. No private right of action.
Subtitle C--Information Security
Sec. 221. Procedures for sharing information.
Sec. 222. Privacy Officer.
Sec. 223. Enhancement of non-Federal cybersecurity.
Sec. 225. Cyber Security Enhancement Act of 2002.
Subtitle D--Office of Science and Technology
Sec. 231. Establishment of office; Director.
Sec. 232. Mission of office; duties.
Sec. 233. Definition of law enforcement technology.
Sec. 234. Abolishment of Office of Science and Technology of
National Institute of Justice; transfer of functions.
Sec. 235. National Law Enforcement and Corrections Technology
Centers.
Sec. 236. Coordination with other entities within Department of
Justice.
Sec. 237. Amendments relating to National Institute of
Justice.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND
SECURITY
Sec. 301. Under Secretary for Science and Technology.
Sec. 302. Responsibilities and authorities of the Under Secretary
for Science and Technology.
Sec. 303. Functions transferred.
Sec. 304. Conduct of certain public health-related
activities.
Sec. 305. Federally funded research and development
centers.
Sec. 306. Miscellaneous provisions.
Sec. 307. Homeland Security Advanced Research Projects
Agency.
Sec. 308. Conduct of research, development, demonstration, testing
and evaluation.
Sec. 309. Utilization of Department of Energy national laboratories
and sites in support of homeland security activities.
Sec. 310. Transfer of Plum Island Animal Disease Center, Department
of Agriculture.
Sec. 311. Homeland Security Science and Technology Advisory
Committee.
Sec. 312. Homeland Security Institute.
Sec. 313. Technology clearinghouse to encourage and support
innovative solutions to enhance homeland security.
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
Subtitle A--Under Secretary for Border and Transportation
Security
Sec. 401. Under Secretary for Border and Transportation
Security.
Sec. 402. Responsibilities.
Sec. 403. Functions transferred.
Subtitle B--United States Customs Service
Sec. 411. Establishment; Commissioner of Customs.
Sec. 412. Retention of customs revenue functions by Secretary of the
Treasury.
Sec. 413. Preservation of customs funds.
Sec. 414. Separate budget request for customs.
Sec. 416. GAO report to Congress.
Sec. 417. Allocation of resources by the Secretary.
Sec. 418. Reports to Congress.
Sec. 419. Customs user fees.
Subtitle C--Miscellaneous Provisions
Sec. 421. Transfer of certain agricultural inspection functions of
the Department of Agriculture.
Sec. 422. Functions of Administrator of General Services.
Sec. 423. Functions of Transportation Security
Administration.
Sec. 424. Preservation of Transportation Security Administration as
a distinct entity.
Sec. 425. Explosive detection systems.
Sec. 426. Transportation security.
Sec. 427. Coordination of information and information
technology.
Sec. 429. Information on visa denials required to be entered into
electronic data system.
Sec. 430. Office for Domestic Preparedness.
Subtitle D--Immigration Enforcement Functions
Sec. 441. Transfer of functions to Under Secretary for Border and
Transportation Security.
Sec. 442. Establishment of Bureau of Border Security.
Sec. 443. Professional responsibility and quality review.
Sec. 444. Employee discipline.
Sec. 445. Report on improving enforcement functions.
Sec. 446. Sense of Congress regarding construction of fencing near
San Diego, California.
Subtitle E--Citizenship and Immigration Services
Sec. 451. Establishment of Bureau of Citizenship and Immigration
Services.
Sec. 452. Citizenship and Immigration Services Ombudsman.
Sec. 453. Professional responsibility and quality review.
Sec. 454. Employee discipline.
Sec. 455. Effective date.
Sec. 457. Funding for citizenship and immigration
services.
Sec. 458. Backlog elimination.
Sec. 459. Report on improving immigration services.
Sec. 460. Report on responding to fluctuating needs.
Sec. 461. Application of Internet-based technologies.
Sec. 462. Children's affairs.
Subtitle F--General Immigration Provisions
Sec. 471. Abolishment of INS.
Sec. 472. Voluntary separation incentive payments.
Sec. 473. Authority to conduct a demonstration project relating to
disciplinary action.
Sec. 474. Sense of Congress.
Sec. 475. Director of Shared Services.
Sec. 476. Separation of funding.
Sec. 477. Reports and implementation plans.
Sec. 478. Immigration functions.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
Sec. 501. Under Secretary for Emergency Preparedness and
Response.
Sec. 502. Responsibilities.
Sec. 503. Functions transferred.
Sec. 504. Nuclear incident response.
Sec. 505. Conduct of certain public health-related
activities.
Sec. 507. Role of Federal Emergency Management Agency.
Sec. 508. Use of national private sector networks in emergency
response.
Sec. 509. Use of commercially available technology, goods, and
services.
TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES
OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS
Sec. 601. Treatment of charitable trusts for members of the Armed
Forces of the United States and other governmental organizations.
TITLE VII--MANAGEMENT
Sec. 701. Under Secretary for Management.
Sec. 702. Chief Financial Officer.
Sec. 703. Chief Information Officer.
Sec. 704. Chief Human Capital Officer.
Sec. 705. Establishment of Officer for Civil Rights and Civil
Liberties.
Sec. 706. Consolidation and co-location of offices.
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
Subtitle A--Coordination with Non-Federal Entities
Sec. 801. Office for State and Local Government
Coordination.
Subtitle B--Inspector General
Sec. 811. Authority of the Secretary.
Sec. 812. Law enforcement powers of Inspector General
agents.
Subtitle C--United States Secret Service
Sec. 821. Functions transferred.
Subtitle D--Acquisitions
Sec. 831. Research and development projects.
Sec. 832. Personal services.
Sec. 833. Special streamlined acquisition authority.
Sec. 834. Unsolicited proposals.
Sec. 835. Prohibition on contracts with corporate
expatriates.
Subtitle E--Human Resources Management
Sec. 841. Establishment of Human Resources Management
System.
Sec. 842. Labor-management relations.
Subtitle F--Federal Emergency Procurement Flexibility
Sec. 852. Procurements for defense against or recovery from
terrorism or nuclear, biological, chemical, or radiological
attack.
Sec. 853. Increased simplified acquisition threshold for
procurements in support of humanitarian or peacekeeping operations or
contingency operations.
Sec. 854. Increased micro-purchase threshold for certain
procurements.
Sec. 855. Application of certain commercial items authorities to
certain procurements.
Sec. 856. Use of streamlined procedures.
Sec. 857. Review and report by Comptroller General.
Sec. 858. Identification of new entrants into the Federal
marketplace.
Subtitle G--Support Anti-terrorism by Fostering Effective Technologies
Act of 2002
Sec. 862. Administration.
Sec. 863. Litigation management.
Sec. 864. Risk management.
Subtitle H--Miscellaneous Provisions
Sec. 871. Advisory committees.
Sec. 872. Reorganization.
Sec. 873. Use of appropriated funds.
Sec. 874. Future Year Homeland Security Program.
Sec. 875. Miscellaneous authorities.
Sec. 876. Military activities.
Sec. 877. Regulatory authority and preemption.
Sec. 878. Counternarcotics officer.
Sec. 879. Office of International Affairs.
Sec. 880. Prohibition of the Terrorism Information and Prevention
System.
Sec. 881. Review of pay and benefit plans.
Sec. 882. Office for National Capital Region
Coordination.
Sec. 883. Requirement to comply with laws protecting equal
employment opportunity and providing whistleblower protections.
Sec. 884. Federal Law Enforcement Training Center.
Sec. 885. Joint Interagency Task Force.
Sec. 886. Sense of Congress reaffirming the continued importance and
applicability of the Posse Comitatus Act.
Sec. 887. Coordination with the Department of Health and Human
Services under the Public Health Service Act.
Sec. 888. Preserving Coast Guard mission performance.
Sec. 889. Homeland security funding analysis in President's
budget.
Sec. 890. Air Transportation Safety and System Stabilization
Act.
Subtitle I--Information Sharing
Sec. 891. Short title; findings; and sense of Congress.
Sec. 892. Facilitating homeland security information sharing
procedures.
Sec. 894. Authorization of appropriations.
Sec. 895. Authority to share grand jury information.
Sec. 896. Authority to share electronic, wire, and oral interception
information.
Sec. 897. Foreign intelligence information.
Sec. 898. Information acquired from an electronic
surveillance.
Sec. 899. Information acquired from a physical search.
TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL
Sec. 901. National Homeland Security Council.
Sec. 904. Other functions and activities.
Sec. 905. Staff composition.
Sec. 906. Relation to the National Security Council.
TITLE X--INFORMATION SECURITY
Sec. 1001. Information security.
Sec. 1002. Management of information technology.
Sec. 1003. National Institute of Standards and
Technology.
Sec. 1004. Information Security and Privacy Advisory
Board.
Sec. 1005. Technical and conforming amendments.
TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS
Subtitle A--Executive Office for Immigration Review
Sec. 1101. Legal status of EOIR.
Sec. 1102. Authorities of the Attorney General.
Sec. 1103. Statutory construction.
Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to
the Department of Justice
Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
Sec. 1112. Technical and conforming amendments.
Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
Sec. 1114. Explosives training and research facility.
Sec. 1115. Personnel management demonstration project.
Subtitle C--Explosives
Sec. 1122. Permits for purchasers of explosives.
Sec. 1123. Persons prohibited from receiving or possessing explosive
materials.
Sec. 1124. Requirement to provide samples of explosive materials and
ammonium nitrate.
Sec. 1125. Destruction of property of institutions receiving Federal
financial assistance.
Sec. 1126. Relief from disabilities.
Sec. 1127. Theft reporting requirement.
Sec. 1128. Authorization of appropriations.
TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION
Sec. 1201. Air carrier liability for third party claims arising out
of acts of terrorism.
Sec. 1202. Extension of insurance policies.
Sec. 1203. Correction of reference.
TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT
Subtitle A--Chief Human Capital Officers
Sec. 1302. Agency Chief Human Capital Officers.
Sec. 1303. Chief Human Capital Officers Council.
Sec. 1304. Strategic human capital management.
Sec. 1305. Effective date.
Subtitle B--Reforms Relating to Federal Human Capital
Management
Sec. 1311. Inclusion of agency human capital strategic planning in
performance plans and programs performance reports.
Sec. 1312. Reform of the competitive service hiring
process.
Sec. 1313. Permanent extension, revision, and expansion of
authorities for use of voluntary separation incentive pay and voluntary
early retirement.
Sec. 1314. Student volunteer transit subsidy.
Subtitle C--Reforms Relating to the Senior Executive Service
Sec. 1321. Repeal of recertification requirements of senior
executives.
Sec. 1322. Adjustment of limitation on total annual
compensation.
Subtitle D--Academic Training
Sec. 1331. Academic training.
Sec. 1332. Modifications to National Security Education
Program.
TITLE XIV--ARMING PILOTS AGAINST TERRORISM
Sec. 1402. Federal Flight Deck Officer Program.
Sec. 1403. Crew training.
Sec. 1404. Commercial airline security study.
Sec. 1405. Authority to arm flight deck crew with less-than-lethal
weapons.
Sec. 1406. Technical amendments.
TITLE XV--TRANSITION
Subtitle A--Reorganization Plan
Sec. 1502. Reorganization plan.
Sec. 1503. Review of congressional committee structures.
Subtitle B--Transitional Provisions
Sec. 1511. Transitional authorities.
Sec. 1512. Savings provisions.
Sec. 1514. National identification system not authorized.
Sec. 1515. Continuity of Inspector General oversight.
Sec. 1516. Incidental transfers.
TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY
Sec. 1601. Retention of security sensitive information authority at
Department of Transportation.
Sec. 1602. Increase in civil penalties.
Sec. 1603. Allowing United States citizens and United States
nationals as screeners.
TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS
Sec. 1701. Inspector General Act of 1978.
Sec. 1702. Executive Schedule.
Sec. 1703. United States Secret Service.
Sec. 1705. Strategic national stockpile and smallpox vaccine
development.
Sec. 1706. Transfer of certain security and law enforcement
functions and authorities.
Sec. 1707. Transportation security regulations.
Sec. 1708. National Bio-Weapons Defense Analysis Center.
Sec. 1709. Collaboration with the Secretary of Homeland
Security.
Sec. 1710. Railroad safety to include railroad security.
Sec. 1711. Hazmat safety to include hazmat security.
Sec. 1712. Office of Science and Technology Policy.
Sec. 1713. National Oceanographic Partnership Program.
Sec. 1714. Clarification of definition of manufacturer.
Sec. 1715. Clarification of definition of vaccine-related injury or
death.
Sec. 1716. Clarification of definition of vaccine.
Sec. 1717. Effective date.
SEC. 2. DEFINITIONS.
In this Act, the following definitions apply:
(1) Each of the terms `American homeland' and `homeland' means the
United States.
(2) The term `appropriate congressional committee' means any
committee of the House of Representatives or the Senate having legislative
or oversight jurisdiction under the Rules of the House of Representatives or
the Senate, respectively, over the matter concerned.
(3) The term `assets' includes contracts, facilities, property,
records, unobligated or unexpended balances of appropriations, and other
funds or resources (other than personnel).
(4) The term `critical infrastructure' has the meaning given that
term in section 1016(e) of Public Law 107-56 (42 U.S.C.
5195c(e)).
(5) The term `Department' means the Department of Homeland
Security.
(6) The term `emergency response providers' includes Federal, State,
and local emergency public safety, law enforcement, emergency response,
emergency medical (including hospital emergency facilities), and related
personnel, agencies, and authorities.
(7) The term `executive agency' means an executive agency and a
military department, as defined, respectively, in sections 105 and 102 of
title 5, United States Code.
(8) The term `functions' includes authorities, powers, rights,
privileges, immunities, programs, projects, activities, duties, and
responsibilities.
(9) The term `key resources' means publicly or privately controlled
resources essential to the minimal operations of the economy and
government.
(10) The term `local government' means--
(A) a county, municipality, city, town, township, local public
authority, school district, special district, intrastate district, council
of governments (regardless of whether the council of governments is
incorporated as a nonprofit corporation under State law), regional or
interstate government entity, or agency or instrumentality of a local
government;
(B) an Indian tribe or authorized tribal organization, or in
Alaska a Native village or Alaska Regional Native Corporation;
and
(C) a rural community, unincorporated town or village, or other
public entity.
(11) The term `major disaster' has the meaning given in section
102(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (42 U.S.C. 5122).
(12) The term `personnel' means officers and employees.
(13) The term `Secretary' means the Secretary of Homeland
Security.
(14) The term `State' means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and
any possession of the United States.
(15) The term `terrorism' means any activity that--
(A) involves an act that--
(i) is dangerous to human life or potentially destructive of
critical infrastructure or key resources; and
(ii) is a violation of the criminal laws of the United States or
of any State or other subdivision of the United States;
and
(B) appears to be intended--
(i) to intimidate or coerce a civilian
population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping.
(16)(A) The term `United States', when used in a geographic sense,
means any State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, any possession of the United
States, and any waters within the jurisdiction of the United
States.
(B) Nothing in this paragraph or any other provision of this Act
shall be construed to modify the definition of `United States' for the
purposes of the Immigration and Nationality Act or any other immigration or
nationality law.
SEC. 3. CONSTRUCTION; SEVERABILITY.
Any provision of this Act held to be invalid or unenforceable by its
terms, or as applied to any person or circumstance, shall be construed so as
to give it the maximum effect permitted by law, unless such holding shall be
one of utter invalidity or unenforceability, in which event such provision
shall be deemed severable from this Act and shall not affect the remainder
thereof, or the application of such provision to other persons not similarly
situated or to other, dissimilar circumstances.
SEC. 4. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of
enactment.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
SEC. 101. EXECUTIVE DEPARTMENT; MISSION.
(a) ESTABLISHMENT- There is established a Department of Homeland
Security, as an executive department of the United States within the meaning
of title 5, United States Code.
(1) IN GENERAL- The primary mission of the Department is
to--
(A) prevent terrorist attacks within the United
States;
(B) reduce the vulnerability of the United States to
terrorism;
(C) minimize the damage, and assist in the recovery, from
terrorist attacks that do occur within the United States;
(D) carry out all functions of entities transferred to the
Department, including by acting as a focal point regarding natural and
manmade crises and emergency planning;
(E) ensure that the functions of the agencies and subdivisions
within the Department that are not related directly to securing the
homeland are not diminished or neglected except by a specific explicit Act
of Congress;
(F) ensure that the overall economic security of the United States
is not diminished by efforts, activities, and programs aimed at securing
the homeland; and
(G) monitor connections between illegal drug trafficking and
terrorism, coordinate efforts to sever such connections, and otherwise
contribute to efforts to interdict illegal drug trafficking.
(2) RESPONSIBILITY FOR INVESTIGATING AND PROSECUTING TERRORISM-
Except as specifically provided by law with respect to entities transferred
to the Department under this Act, primary responsibility for investigating
and prosecuting acts of terrorism shall be vested not in the Department, but
rather in Federal, State, and local law enforcement agencies with
jurisdiction over the acts in question.
SEC. 102. SECRETARY; FUNCTIONS.
(1) IN GENERAL- There is a Secretary of Homeland Security, appointed
by the President, by and with the advice and consent of the
Senate.
(2) HEAD OF DEPARTMENT- The Secretary is the head of the Department
and shall have direction, authority, and control over it.
(3) FUNCTIONS VESTED IN SECRETARY- All functions of all officers,
employees, and organizational units of the Department are vested in the
Secretary.
(b) FUNCTIONS- The Secretary--
(1) except as otherwise provided by this Act, may delegate any of
the Secretary's functions to any officer, employee, or organizational unit
of the Department;
(2) shall have the authority to make contracts, grants, and
cooperative agreements, and to enter into agreements with other executive
agencies, as may be necessary and proper to carry out the Secretary's
responsibilities under this Act or otherwise provided by law; and
(3) shall take reasonable steps to ensure that information systems
and databases of the Department are compatible with each other and with
appropriate databases of other Departments.
(c) COORDINATION WITH NON-FEDERAL ENTITIES- With respect to homeland
security, the Secretary shall coordinate through the Office of State and Local
Coordination (established under section 801) (including the provision of
training and equipment) with State and local government personnel, agencies,
and authorities, with the private sector, and with other entities, including
by--
(1) coordinating with State and local government personnel,
agencies, and authorities, and with the private sector, to ensure adequate
planning, equipment, training, and exercise activities;
(2) coordinating and, as appropriate, consolidating, the Federal
Government's communications and systems of communications relating to
homeland security with State and local government personnel, agencies, and
authorities, the private sector, other entities, and the public;
and
(3) distributing or, as appropriate, coordinating the distribution
of, warnings and information to State and local government personnel,
agencies, and authorities and to the public.
(d) MEETINGS OF NATIONAL SECURITY COUNCIL- The Secretary may, subject
to the direction of the President, attend and participate in meetings of the
National Security Council.
(e) ISSUANCE OF REGULATIONS- The issuance of regulations by the
Secretary shall be governed by the provisions of chapter 5 of title 5, United
States Code, except as specifically provided in this Act, in laws granting
regulatory authorities that are transferred by this Act, and in laws enacted
after the date of enactment of this Act.
(f) SPECIAL ASSISTANT TO THE SECRETARY- The Secretary shall appoint a
Special Assistant to the Secretary who shall be responsible for--
(1) creating and fostering strategic communications with the private
sector to enhance the primary mission of the Department to protect the
American homeland;
(2) advising the Secretary on the impact of the Department's
policies, regulations, processes, and actions on the private
sector;
(3) interfacing with other relevant Federal agencies with homeland
security missions to assess the impact of these agencies' actions on the
private sector;
(4) creating and managing private sector advisory councils composed
of representatives of industries and associations designated by the
Secretary to--
(A) advise the Secretary on private sector products, applications,
and solutions as they relate to homeland security challenges;
and
(B) advise the Secretary on homeland security policies,
regulations, processes, and actions that affect the participating
industries and associations;
(5) working with Federal laboratories, Federally funded research and
development centers, other Federally funded organizations, academia, and the
private sector to develop innovative approaches to address homeland security
challenges to produce and deploy the best available technologies for
homeland security missions;
(6) promoting existing public-private partnerships and developing
new public-private partnerships to provide for collaboration and mutual
support to address homeland security challenges; and
(7) assisting in the development and promotion of private sector
best practices to secure critical infrastructure.
(g) STANDARDS POLICY- All standards activities of the Department shall
be conducted in accordance with section 12(d) of the National Technology
Transfer Advancement Act of 1995 (15 U.S.C. 272 note) and Office of Management
and Budget Circular A-119.
SEC. 103. OTHER OFFICERS.
(a) DEPUTY SECRETARY; UNDER SECRETARIES- There are the following
officers, appointed by the President, by and with the advice and consent of
the Senate:
(1) A Deputy Secretary of Homeland Security, who shall be the
Secretary's first assistant for purposes of subchapter III of chapter 33 of
title 5, United States Code.
(2) An Under Secretary for Information Analysis and Infrastructure
Protection.
(3) An Under Secretary for Science and Technology.
(4) An Under Secretary for Border and Transportation
Security.
(5) An Under Secretary for Emergency Preparedness and
Response.
(6) A Director of the Bureau of Citizenship and Immigration
Services.
(7) An Under Secretary for Management.
(8) Not more than 12 Assistant Secretaries.
(9) A General Counsel, who shall be the chief legal officer of the
department.
(b) INSPECTOR GENERAL- There is an Inspector General, who shall be
appointed as provided in section 3(a) of the Inspector General Act of
1978.
(c) COMMANDANT OF THE COAST GUARD- To assist the Secretary in the
performance of the Secretary's functions, there is a Commandant of the Coast
Guard, who shall be appointed as provided in section 44 of title 14, United
States Code, and who shall report directly to the Secretary. In addition to
such duties as may be provided in this Act and as assigned to the Commandant
by the Secretary, the duties of the Commandant shall include those required by
section 2 of title 14, United States Code.
(d) OTHER OFFICERS- To assist the Secretary in the performance of the
Secretary's functions, there are the following officers, appointed by the
President:
(1) A Director of the Secret Service.
(2) A Chief Information Officer.
(3) A Chief Human Capital Officer.
(4) A Chief Financial Officer.
(5) An Officer for Civil Rights and Civil Liberties.
(e) PERFORMANCE OF SPECIFIC FUNCTIONS- Subject to the provisions of
this Act, every officer of the Department shall perform the functions
specified by law for the official's office or prescribed by the
Secretary.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
SEC. 201. DIRECTORATE FOR INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION.
(a) UNDER SECRETARY OF HOMELAND SECURITY FOR INFORMATION ANALYSIS AND
INFRASTRUCTURE PROTECTION-
(1) IN GENERAL- There shall be in the Department a Directorate for
Information Analysis and Infrastructure Protection headed by an Under
Secretary for Information Analysis and Infrastructure Protection, who shall
be appointed by the President, by and with the advice and consent of the
Senate.
(2) RESPONSIBILITIES- The Under Secretary shall assist the Secretary
in discharging the responsibilities assigned by the Secretary.
(b) ASSISTANT SECRETARY FOR INFORMATION ANALYSIS; ASSISTANT SECRETARY
FOR INFRASTRUCTURE PROTECTION-
(1) ASSISTANT SECRETARY FOR INFORMATION ANALYSIS- There shall be in
the Department an Assistant Secretary for Information Analysis, who shall be
appointed by the President.
(2) ASSISTANT SECRETARY FOR INFRASTRUCTURE PROTECTION- There shall
be in the Department an Assistant Secretary for Infrastructure Protection,
who shall be appointed by the President.
(3) RESPONSIBILITIES- The Assistant Secretary for Information
Analysis and the Assistant Secretary for Infrastructure Protection shall
assist the Under Secretary for Information Analysis and Infrastructure
Protection in discharging the responsibilities of the Under Secretary under
this section.
(c) DISCHARGE OF INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION-
The Secretary shall ensure that the responsibilities of the Department
regarding information analysis and infrastructure protection are carried out
through the Under Secretary for Information Analysis and Infrastructure
Protection.
(d) RESPONSIBILITIES OF UNDER SECRETARY- Subject to the direction and
control of the Secretary, the responsibilities of the Under Secretary for
Information Analysis and Infrastructure Protection shall be as
follows:
(1) To access, receive, and analyze law enforcement information,
intelligence information, and other information from agencies of the Federal
Government, State and local government agencies (including law enforcement
agencies), and private sector entities, and to integrate such information in
order to--
(A) identify and assess the nature and scope of terrorist threats
to the homeland;
(B) detect and identify threats of terrorism against the United
States; and
(C) understand such threats in light of actual and potential
vulnerabilities of the homeland.
(2) To carry out comprehensive assessments of the vulnerabilities of
the key resources and critical infrastructure of the United States,
including the performance of risk assessments to determine the risks posed
by particular types of terrorist attacks within the United States (including
an assessment of the probability of success of such attacks and the
feasibility and potential efficacy of various countermeasures to such
attacks).
(3) To integrate relevant information, analyses, and vulnerability
assessments (whether such information, analyses, or assessments are provided
or produced by the Department or others) in order to identify priorities for
protective and support measures by the Department, other agencies of the
Federal Government, State and local government agencies and authorities, the
private sector, and other entities.
(4) To ensure, pursuant to section 202, the timely and efficient
access by the Department to all information necessary to discharge the
responsibilities under this section, including obtaining such information
from other agencies of the Federal Government.
(5) To develop a comprehensive national plan for securing the key
resources and critical infrastructure of the United States, including power
production, generation, and distribution systems, information technology and
telecommunications systems (including satellites), electronic financial and
property record storage and transmission systems, emergency preparedness
communications systems, and the physical and technological assets that
support such systems.
(6) To recommend measures necessary to protect the key resources and
critical infrastructure of the United States in coordination with other
agencies of the Federal Government and in cooperation with State and local
government agencies and authorities, the private sector, and other
entities.
(7) To administer the Homeland Security Advisory System,
including--
(A) exercising primary responsibility for public advisories
related to threats to homeland security; and
(B) in coordination with other agencies of the Federal Government,
providing specific warning information, and advice about appropriate
protective measures and countermeasures, to State and local government
agencies and authorities, the private sector, other entities, and the
public.
(8) To review, analyze, and make recommendations for improvements in
the policies and procedures governing the sharing of law enforcement
information, intelligence information, intelligence-related information, and
other information relating to homeland security within the Federal
Government and between the Federal Government and State and local government
agencies and authorities.
(9) To disseminate, as appropriate, information analyzed by the
Department within the Department, to other agencies of the Federal
Government with responsibilities relating to homeland security, and to
agencies of State and local governments and private sector entities with
such responsibilities in order to assist in the deterrence, prevention,
preemption of, or response to, terrorist attacks against the United
States.
(10) To consult with the Director of Central Intelligence and other
appropriate intelligence, law enforcement, or other elements of the Federal
Government to establish collection priorities and strategies for
information, including law enforcement-related information, relating to
threats of terrorism against the United States through such means as the
representation of the Department in discussions regarding requirements and
priorities in the collection of such information.
(11) To consult with State and local governments and private sector
entities to ensure appropriate exchanges of information, including law
enforcement-related information, relating to threats of terrorism against
the United States.
(A) any material received pursuant to this Act is protected from
unauthorized disclosure and handled and used only for the performance of
official duties; and
(B) any intelligence information under this Act is shared,
retained, and disseminated consistent with the authority of the Director
of Central Intelligence to protect intelligence sources and methods under
the National Security Act of 1947 (50 U.S.C. 401 et seq.) and related
procedures and, as appropriate, similar authorities of the Attorney
General concerning sensitive law enforcement information.
(13) To request additional information from other agencies of the
Federal Government, State and local government agencies, and the private
sector relating to threats of terrorism in the United States, or relating to
other areas of responsibility assigned by the Secretary, including the entry
into cooperative agreements through the Secretary to obtain such
information.
(14) To establish and utilize, in conjunction with the chief
information officer of the Department, a secure communications and
information technology infrastructure, including data-mining and other
advanced analytical tools, in order to access, receive, and analyze data and
information in furtherance of the responsibilities under this section, and
to disseminate information acquired and analyzed by the Department, as
appropriate.
(15) To ensure, in conjunction with the chief information officer of
the Department, that any information databases and analytical tools
developed or utilized by the Department--
(A) are compatible with one another and with relevant information
databases of other agencies of the Federal Government; and
(B) treat information in such databases in a manner that complies
with applicable Federal law on privacy.
(16) To coordinate training and other support to the elements and
personnel of the Department, other agencies of the Federal Government, and
State and local governments that provide information to the Department, or
are consumers of information provided by the Department, in order to
facilitate the identification and sharing of information revealed in their
ordinary duties and the optimal utilization of information received from the
Department.
(17) To coordinate with elements of the intelligence community and
with Federal, State, and local law enforcement agencies, and the private
sector, as appropriate.
(18) To provide intelligence and information analysis and support to
other elements of the Department.
(19) To perform such other duties relating to such responsibilities
as the Secretary may provide.
(1) IN GENERAL- The Secretary shall provide the Directorate with a
staff of analysts having appropriate expertise and experience to assist the
Directorate in discharging responsibilities under this section.
(2) PRIVATE SECTOR ANALYSTS- Analysts under this subsection may
include analysts from the private sector.
(3) SECURITY CLEARANCES- Analysts under this subsection shall
possess security clearances appropriate for their work under this
section.
(1) IN GENERAL- In order to assist the Directorate in discharging
responsibilities under this section, personnel of the agencies referred to
in paragraph (2) may be detailed to the Department for the performance of
analytic functions and related duties.
(2) COVERED AGENCIES- The agencies referred to in this paragraph are
as follows:
(A) The Department of State.
(B) The Central Intelligence Agency.
(C) The Federal Bureau of Investigation.
(D) The National Security Agency.
(E) The National Imagery and Mapping Agency.
(F) The Defense Intelligence Agency.
(G) Any other agency of the Federal Government that the President
considers appropriate.
(3) COOPERATIVE AGREEMENTS- The Secretary and the head of the agency
concerned may enter into cooperative agreements for the purpose of detailing
personnel under this subsection.
(4) BASIS- The detail of personnel under this subsection may be on a
reimbursable or non-reimbursable basis.
(g) FUNCTIONS TRANSFERRED- In accordance with title XV, there shall be
transferred to the Secretary, for assignment to the Under Secretary for
Information Analysis and Infrastructure Protection under this section, the
functions, personnel, assets, and liabilities of the following:
(1) The National Infrastructure Protection Center of the Federal
Bureau of Investigation (other than the Computer Investigations and
Operations Section), including the functions of the Attorney General
relating thereto.
(2) The National Communications System of the Department of Defense,
including the functions of the Secretary of Defense relating
thereto.
(3) The Critical Infrastructure Assurance Office of the Department
of Commerce, including the functions of the Secretary of Commerce relating
thereto.
(4) The National Infrastructure Simulation and Analysis Center of
the Department of Energy and the energy security and assurance program and
activities of the Department, including the functions of the Secretary of
Energy relating thereto.
(5) The Federal Computer Incident Response Center of the General
Services Administration, including the functions of the Administrator of
General Services relating thereto.
(h) INCLUSION OF CERTAIN ELEMENTS OF THE DEPARTMENT AS ELEMENTS OF THE
INTELLIGENCE COMMUNITY- Section 3(4) of the National Security Act of 1947 (50
U.S.C. 401(a)) is amended--
(1) by striking `and' at the end of subparagraph (I);
(2) by redesignating subparagraph (J) as subparagraph (K);
and
(3) by inserting after subparagraph (I) the following new
subparagraph:
`(J) the elements of the Department of Homeland Security concerned
with the analyses of foreign intelligence information; and'.
SEC. 202. ACCESS TO INFORMATION.
(1) THREAT AND VULNERABILITY INFORMATION- Except as otherwise
directed by the President, the Secretary shall have such access as the
Secretary considers necessary to all information, including reports,
assessments, analyses, and unevaluated intelligence relating to threats of
terrorism against the United States and to other areas of responsibility
assigned by the Secretary, and to all information concerning infrastructure
or other vulnerabilities of the United States to terrorism, whether or not
such information has been analyzed, that may be collected, possessed, or
prepared by any agency of the Federal Government.
(2) OTHER INFORMATION- The Secretary shall also have access to other
information relating to matters under the responsibility of the Secretary
that may be collected, possessed, or prepared by an agency of the Federal
Government as the President may further provide.
(b) MANNER OF ACCESS- Except as otherwise directed by the President,
with respect to information to which the Secretary has access pursuant to this
section--
(1) the Secretary may obtain such material upon request, and may
enter into cooperative arrangements with other executive agencies to provide
such material or provide Department officials with access to it on a regular
or routine basis, including requests or arrangements involving broad
categories of material, access to electronic databases, or both;
and
(2) regardless of whether the Secretary has made any request or
entered into any cooperative arrangement pursuant to paragraph (1), all
agencies of the Federal Government shall promptly provide to the
Secretary--
(A) all reports (including information reports containing
intelligence which has not been fully evaluated), assessments, and
analytical information relating to threats of terrorism against the United
States and to other areas of responsibility assigned by the
Secretary;
(B) all information concerning the vulnerability of the
infrastructure of the United States, or other vulnerabilities of the
United States, to terrorism, whether or not such information has been
analyzed;
(C) all other information relating to significant and credible
threats of terrorism against the United States, whether or not such
information has been analyzed; and
(D) such other information or material as the President may
direct.
(c) TREATMENT UNDER CERTAIN LAWS- The Secretary shall be deemed to be
a Federal law enforcement, intelligence, protective, national defense,
immigration, or national security official, and shall be provided with all
information from law enforcement agencies that is required to be given to the
Director of Central Intelligence, under any provision of the
following:
(1) The USA PATRIOT Act of 2001 (Public Law 107-56).
(2) Section 2517(6) of title 18, United States Code.
(3) Rule 6(e)(3)(C) of the Federal Rules of Criminal
Procedure.
(d) ACCESS TO INTELLIGENCE AND OTHER INFORMATION-
(1) ACCESS BY ELEMENTS OF FEDERAL GOVERNMENT- Nothing in this title
shall preclude any element of the intelligence community (as that term is
defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)), or other any element of the Federal Government with responsibility
for analyzing terrorist threat information, from receiving any intelligence
or other information relating to terrorism.
(2) SHARING OF INFORMATION- The Secretary, in consultation with the
Director of Central Intelligence, shall work to ensure that intelligence or
other information relating to terrorism to which the Department has access
is appropriately shared with the elements of the Federal Government referred
to in paragraph (1), as well as with State and local governments, as
appropriate.
Subtitle B--Critical Infrastructure Information
SEC. 211. SHORT TITLE.
This subtitle may be cited as the `Critical Infrastructure Information
Act of 2002'.
SEC. 212. DEFINITIONS.
(1) AGENCY- The term `agency' has the meaning given it in section
551 of title 5, United States Code.
(2) COVERED FEDERAL AGENCY- The term `covered Federal agency' means
the Department of Homeland Security.
(3) CRITICAL INFRASTRUCTURE INFORMATION- The term `critical
infrastructure information' means information not customarily in the public
domain and related to the security of critical infrastructure or protected
systems--
(A) actual, potential, or threatened interference with, attack on,
compromise of, or incapacitation of critical infrastructure or protected
systems by either physical or computer-based attack or other similar
conduct (including the misuse of or unauthorized access to all types of
communications and data transmission systems) that violates Federal,
State, or local law, harms interstate commerce of the United States, or
threatens public health or safety;
(B) the ability of any critical infrastructure or protected system
to resist such interference, compromise, or incapacitation, including any
planned or past assessment, projection, or estimate of the vulnerability
of critical infrastructure or a protected system, including security
testing, risk evaluation thereto, risk management planning, or risk audit;
or
(C) any planned or past operational problem or solution regarding
critical infrastructure or protected systems, including repair, recovery,
reconstruction, insurance, or continuity, to the extent it is related to
such interference, compromise, or incapacitation.
(4) CRITICAL INFRASTRUCTURE PROTECTION PROGRAM- The term `critical
infrastructure protection program' means any component or bureau of a
covered Federal agency that has been designated by the President or any
agency head to receive critical infrastructure information.
(5) INFORMATION SHARING AND ANALYSIS ORGANIZATION- The term
`Information Sharing and Analysis Organization' means any formal or informal
entity or collaboration created or employed by public or private sector
organizations, for purposes of--
(A) gathering and analyzing critical infrastructure information in
order to better understand security problems and interdependencies related
to critical infrastructure and protected systems, so as to ensure the
availability, integrity, and reliability thereof;
(B) communicating or disclosing critical infrastructure
information to help prevent, detect, mitigate, or recover from the effects
of a interference, compromise, or a incapacitation problem related to
critical infrastructure or protected systems; and
(C) voluntarily disseminating critical infrastructure information
to its members, State, local, and Federal Governments, or any other
entities that may be of assistance in carrying out the purposes specified
in subparagraphs (A) and (B).
(6) PROTECTED SYSTEM- The term `protected system'--
(A) means any service, physical or computer-based system, process,
or procedure that directly or indirectly affects the viability of a
facility of critical infrastructure; and
(B) includes any physical or computer-based system, including a
computer, computer system, computer or communications network, or any
component hardware or element thereof, software program, processing
instructions, or information or data in transmission or storage therein,
irrespective of the medium of transmission or storage.
(A) IN GENERAL- The term `voluntary', in the case of any submittal
of critical infrastructure information to a covered Federal agency, means
the submittal thereof in the absence of such agency's exercise of legal
authority to compel access to or submission of such information and may be
accomplished by a single entity or an Information Sharing and Analysis
Organization on behalf of itself or its members.
(B) EXCLUSIONS- The term `voluntary'--
(i) in the case of any action brought under the securities laws
as is defined in section 3(a)(47) of the Securities Exchange Act of 1934
(15 U.S.C. 78c(a)(47))--
(I) does not include information or statements contained in
any documents or materials filed with the Securities and Exchange
Commission, or with Federal banking regulators, pursuant to section
12(i) of the Securities Exchange Act of 1934 (15 U.S.C. 781(I));
and
(II) with respect to the submittal of critical infrastructure
information, does not include any disclosure or writing that when made
accompanied the solicitation of an offer or a sale of securities;
and
(ii) does not include information or statements submitted or
relied upon as a basis for making licensing or permitting
determinations, or during regulatory proceedings.
SEC. 213. DESIGNATION OF CRITICAL INFRASTRUCTURE PROTECTION
PROGRAM.
A critical infrastructure protection program may be designated as such
by one of the following:
(2) The Secretary of Homeland Security.
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
INFORMATION.
(1) IN GENERAL- Notwithstanding any other provision of law, critical
infrastructure information (including the identity of the submitting person
or entity) that is voluntarily submitted to a covered Federal agency for use
by that agency regarding the security of critical infrastructure and
protected systems, analysis, warning, interdependency study, recovery,
reconstitution, or other informational purpose, when accompanied by an
express statement specified in paragraph (2)--
(A) shall be exempt from disclosure under section 552 of title 5,
United States Code (commonly referred to as the Freedom of Information
Act);
(B) shall not be subject to any agency rules or judicial doctrine
regarding ex parte communications with a decision making
official;
(C) shall not, without the written consent of the person or entity
submitting such information, be used directly by such agency, any other
Federal, State, or local authority, or any third party, in any civil
action arising under Federal or State law if such information is submitted
in good faith;
(D) shall not, without the written consent of the person or entity
submitting such information, be used or disclosed by any officer or
employee of the United States for purposes other than the purposes of this
subtitle, except--
(i) in furtherance of an investigation or the prosecution of a
criminal act; or
(ii) when disclosure of the information would
be--
(I) to either House of Congress, or to the extent of matter
within its jurisdiction, any committee or subcommittee thereof, any
joint committee thereof or subcommittee of any such joint committee;
or
(II) to the Comptroller General, or any authorized
representative of the Comptroller General, in the course of the
performance of the duties of the General Accounting
Office.
(E) shall not, if provided to a State or local government or
government agency--
(i) be made available pursuant to any State or local law
requiring disclosure of information or records;
(ii) otherwise be disclosed or distributed to any party by said
State or local government or government agency without the written
consent of the person or entity submitting such information;
or
(iii) be used other than for the purpose of protecting critical
infrastructure or protected systems, or in furtherance of an
investigation or the prosecution of a criminal act; and
(F) does not constitute a waiver of any applicable privilege or
protection provided under law, such as trade secret
protection.
(2) EXPRESS STATEMENT- For purposes of paragraph (1), the term
`express statement', with respect to information or records,
means--
(A) in the case of written information or records, a written
marking on the information or records substantially similar to the
following: `This information is voluntarily submitted to the Federal
Government in expectation of protection from disclosure as provided by the
provisions of the Critical Infrastructure Information Act of 2002.';
or
(B) in the case of oral information, a similar written statement
submitted within a reasonable period following the oral
communication.
(b) LIMITATION- No communication of critical infrastructure
information to a covered Federal agency made pursuant to this subtitle shall
be considered to be an action subject to the requirements of the Federal
Advisory Committee Act (5 U.S.C. App. 2).
(c) INDEPENDENTLY OBTAINED INFORMATION- Nothing in this section shall
be construed to limit or otherwise affect the ability of a State, local, or
Federal Government entity, agency, or authority, or any third party, under
applicable law, to obtain critical infrastructure information in a manner not
covered by subsection (a), including any information lawfully and properly
disclosed generally or broadly to the public and to use such information in
any manner permitted by law.
(d) TREATMENT OF VOLUNTARY SUBMITTAL OF INFORMATION- The voluntary
submittal to the Government of information or records that are protected from
disclosure by this subtitle shall not be construed to constitute compliance
with any requirement to submit such information to a Federal agency under any
other provision of law.
(1) IN GENERAL- The Secretary of the Department of Homeland Security
shall, in consultation with appropriate representatives of the National
Security Council and the Office of Science and Technology Policy, establish
uniform procedures for the receipt, care, and storage by Federal agencies of
critical infrastructure information that is voluntarily submitted to the
Government. The procedures shall be established not later than 90 days after
the date of the enactment of this subtitle.
(2) ELEMENTS- The procedures established under paragraph (1) shall
include mechanisms regarding--
(A) the acknowledgement of receipt by Federal agencies of critical
infrastructure information that is voluntarily submitted to the
Government;
(B) the maintenance of the identification of such information as
voluntarily submitted to the Government for purposes of and subject to the
provisions of this subtitle;
(C) the care and storage of such information; and
(D) the protection and maintenance of the confidentiality of such
information so as to permit the sharing of such information within the
Federal Government and with State and local governments, and the issuance
of notices and warnings related to the protection of critical
infrastructure and protected systems, in such manner as to protect from
public disclosure the identity of the submitting person or entity, or
information that is proprietary, business sensitive, relates specifically
to the submitting person or entity, and is otherwise not appropriately in
the public domain.
(f) PENALTIES- Whoever, being an officer or employee of the United
States or of any department or agency thereof, knowingly publishes, divulges,
discloses, or makes known in any manner or to any extent not authorized by
law, any critical infrastructure information protected from disclosure by this
subtitle coming to him in the course of this employment or official duties or
by reason of any examination or investigation made by, or return, report, or
record made to or filed with, such department or agency or officer or employee
thereof, shall be fined under title 18 of the United States Code, imprisoned
not more than 1 year, or both, and shall be removed from office or
employment.
(g) AUTHORITY TO ISSUE WARNINGS- The Federal Government may provide
advisories, alerts, and warnings to relevant companies, targeted sectors,
other governmental entities, or the general public regarding potential threats
to critical infrastructure as appropriate. In issuing a warning, the Federal
Government shall take appropriate actions to protect from disclosure--
(1) the source of any voluntarily submitted critical infrastructure
information that forms the basis for the warning; or
(2) information that is proprietary, business sensitive, relates
specifically to the submitting person or entity, or is otherwise not
appropriately in the public domain.
(h) AUTHORITY TO DELEGATE- The President may delegate authority to a
critical infrastructure protection program, designated under section 213, to
enter into a voluntary agreement to promote critical infrastructure security,
including with any Information Sharing and Analysis Organization, or a plan of
action as otherwise defined in section 708 of the Defense Production Act of
1950 (50 U.S.C. App. 2158).
SEC. 215. NO PRIVATE RIGHT OF ACTION.
Nothing in this subtitle may be construed to create a private right of
action for enforcement of any provision of this Act.
Subtitle C--Information Security
SEC. 221. PROCEDURES FOR SHARING INFORMATION.
The Secretary shall establish procedures on the use of information
shared under this title that--
(1) limit the redissemination of such information to ensure that it
is not used for an unauthorized purpose;
(2) ensure the security and confidentiality of such
information;
(3) protect the constitutional and statutory rights of any
individuals who are subjects of such information; and
(4) provide data integrity through the timely removal and
destruction of obsolete or erroneous names and information.
SEC. 222. PRIVACY OFFICER.
The Secretary shall appoint a senior official in the Department to
assume primary responsibility for privacy policy, including--
(1) assuring that the use of technologies sustain, and do not erode,
privacy protections relating to the use, collection, and disclosure of
personal information;
(2) assuring that personal information contained in Privacy Act
systems of records is handled in full compliance with fair information
practices as set out in the Privacy Act of 1974;
(3) evaluating legislative and regulatory proposals involving
collection, use, and disclosure of personal information by the Federal
Government;
(4) conducting a privacy impact assessment of proposed rules of the
Department or that of the Department on the privacy of personal information,
including the type of personal information collected and the number of
people affected; and
(5) preparing a report to Congress on an annual basis on activities
of the Department that affect privacy, including complaints of privacy
violations, implementation of the Privacy Act of 1974, internal controls,
and other matters.
SEC. 223. ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.
In carrying out the responsibilities under section 201, the Under
Secretary for Information Analysis and Infrastructure Protection
shall--
(1) as appropriate, provide to State and local government entities,
and upon request to private entities that own or operate critical
information systems--
(A) analysis and warnings related to threats to, and
vulnerabilities of, critical information systems; and
(B) in coordination with the Under Secretary for Emergency
Preparedness and Response, crisis management support in response to
threats to, or attacks on, critical information systems; and
(2) as appropriate, provide technical assistance, upon request, to
the private sector and other government entities, in coordination with the
Under Secretary for Emergency Preparedness and Response, with respect to
emergency recovery plans to respond to major failures of critical
information systems.
SEC. 224. NET GUARD.
The Under Secretary for Information Analysis and Infrastructure
Protection may establish a national technology guard, to be known as `NET
Guard', comprised of local teams of volunteers with expertise in relevant
areas of science and technology, to assist local communities to respond and
recover from attacks on information systems and communications
networks.
SEC. 225. CYBER SECURITY ENHANCEMENT ACT OF 2002.
(a) SHORT TITLE- This section may be cited as the `Cyber Security
Enhancement Act of 2002'.
(b) AMENDMENT OF SENTENCING GUIDELINES RELATING TO CERTAIN COMPUTER
CRIMES-
(1) DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION- Pursuant
to its authority under section 994(p) of title 28, United States Code, and
in accordance with this subsection, the United States Sentencing Commission
shall review and, if appropriate, amend its guidelines and its policy
statements applicable to persons convicted of an offense under section 1030
of title 18, United States Code.
(2) REQUIREMENTS- In carrying out this subsection, the Sentencing
Commission shall--
(A) ensure that the sentencing guidelines and policy statements
reflect the serious nature of the offenses described in paragraph (1), the
growing incidence of such offenses, and the need for an effective
deterrent and appropriate punishment to prevent such
offenses;
(B) consider the following factors and the extent to which the
guidelines may or may not account for them--
(i) the potential and actual loss resulting from the
offense;
(ii) the level of sophistication and planning involved in the
offense;
(iii) whether the offense was committed for purposes of
commercial advantage or private financial benefit;
(iv) whether the defendant acted with malicious intent to cause
harm in committing the offense;
(v) the extent to which the offense violated the privacy rights
of individuals harmed;
(vi) whether the offense involved a computer used by the
government in furtherance of national defense, national security, or the
administration of justice;
(vii) whether the violation was intended to or had the effect of
significantly interfering with or disrupting a critical infrastructure;
and
(viii) whether the violation was intended to or had the effect
of creating a threat to public health or safety, or injury to any
person;
(C) assure reasonable consistency with other relevant directives
and with other sentencing guidelines;
(D) account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally applicable
sentencing ranges;
(E) make any necessary conforming changes to the sentencing
guidelines; and
(F) assure that the guidelines adequately meet the purposes of
sentencing as set forth in section 3553(a)(2) of title 18, United States
Code.
(c) STUDY AND REPORT ON COMPUTER CRIMES- Not later than May 1, 2003,
the United States Sentencing Commission shall submit a brief report to
Congress that explains any actions taken by the Sentencing Commission in
response to this section and includes any recommendations the Commission may
have regarding statutory penalties for offenses under section 1030 of title
18, United States Code.
(d) EMERGENCY DISCLOSURE EXCEPTION-
(1) IN GENERAL- Section 2702(b) of title 18, United States Code, is
amended--
(A) in paragraph (5), by striking `or' at the end;
(B) in paragraph (6)(A), by inserting `or' at the
end;
(C) by striking paragraph (6)(C); and
(D) by adding at the end the following:
`(7) to a Federal, State, or local governmental entity, if the
provider, in good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclosure without
delay of communications relating to the emergency.'.
(2) REPORTING OF DISCLOSURES- A government entity that receives a
disclosure under section 2702(b) of title 18, United States Code, shall
file, not later than 90 days after such disclosure, a report to the Attorney
General stating the paragraph of that section under which the disclosure was
made, the date of the disclosure, the entity to which the disclosure was
made, the number of customers or subscribers to whom the information
disclosed pertained, and the number of communications, if any, that were
disclosed. The Attorney General shall publish all such reports into a single
report to be submitted to Congress 1 year after the date of enactment of
this Act.
(e) GOOD FAITH EXCEPTION- Section 2520(d)(3) of title 18, United
States Code, is amended by inserting `or 2511(2)(i)' after `2511(3)'.
(f) INTERNET ADVERTISING OF ILLEGAL DEVICES- Section 2512(1)(c) of
title 18, United States Code, is amended--
(1) by inserting `or disseminates by electronic means' after `or
other publication'; and
(2) by inserting `knowing the content of the advertisement and'
before `knowing or having reason to know'.
(g) STRENGTHENING PENALTIES- Section 1030(c) of title 18, United
States Code, is amended--
(1) by striking `and' at the end of paragraph (3);
(2) in each of subparagraphs (A) and (C) of paragraph (4), by
inserting `except as provided in paragraph (5),' before `a fine under this
title';
(3) in paragraph (4)(C), by striking the period at the end and
inserting `; and'; and
(4) by adding at the end the following:
`(5)(A) if the offender knowingly or recklessly causes or attempts
to cause serious bodily injury from conduct in violation of subsection
(a)(5)(A)(i), a fine under this title or imprisonment for not more than 20
years, or both; and
`(B) if the offender knowingly or recklessly causes or attempts to
cause death from conduct in violation of subsection (a)(5)(A)(i), a fine
under this title or imprisonment for any term of years or for life, or
both.'.
(1) SECTION 2703- Section 2703(e) of title 18, United States Code,
is amended by inserting `, statutory authorization' after
`subpoena'.
(2) SECTION 2511- Section 2511(2)(a)(ii) of title 18, United States
Code, is amended by inserting `, statutory authorization,' after `court
order' the last place it appears.
(i) EMERGENCIES- Section 3125(a)(1) of title 18, United States Code,
is amended--
(1) in subparagraph (A), by striking `or' at the end;
(2) in subparagraph (B), by striking the comma at the end and
inserting a semicolon; and
(3) by adding at the end the following:
`(C) an immediate threat to a national security interest;
or
`(D) an ongoing attack on a protected computer (as defined in
section 1030) that constitutes a crime punishable by a term of
imprisonment greater than one year;'.
(1) SECTION 2511- Section 2511(4) of title 18, United States Code,
is amended--
(A) by striking paragraph (b); and
(B) by redesignating paragraph (c) as paragraph (b).
(2) SECTION 2701- Section 2701(b) of title 18, United States Code,
is amended--
(A) in paragraph (1), by inserting `, or in furtherance of any
criminal or tortious act in violation of the Constitution or laws of the
United States or any State' after `commercial gain';
(B) in paragraph (1)(A), by striking `one year' and inserting `5
years';
(C) in paragraph (1)(B), by striking `two years' and inserting `10
years'; and
(D) by striking paragraph (2) and inserting the
following:
`(A) a fine under this title or imprisonment for not more than 1
year or both, in the case of a first offense under this paragraph;
and
`(B) a fine under this title or imprisonment for not more than 5
years, or both, in the case of an offense under this subparagraph that
occurs after a conviction of another offense under this
section.'.
Subtitle D--Office of Science and Technology
SEC. 231. ESTABLISHMENT OF OFFICE; DIRECTOR.
(1) IN GENERAL- There is hereby established within the Department of
Justice an Office of Science and Technology (hereinafter in this title
referred to as the `Office').
(2) AUTHORITY- The Office shall be under the general authority of
the Assistant Attorney General, Office of Justice Programs, and shall be
established within the National Institute of Justice.
(b) DIRECTOR- The Office shall be headed by a Director, who shall be
an individual appointed based on approval by the Office of Personnel
Management of the executive qualifications of the individual.
SEC. 232. MISSION OF OFFICE; DUTIES.
(a) MISSION- The mission of the Office shall be--
(1) to serve as the national focal point for work on law enforcement
technology; and
(2) to carry out programs that, through the provision of equipment,
training, and technical assistance, improve the safety and effectiveness of
law enforcement technology and improve access to such technology by Federal,
State, and local law enforcement agencies.
(b) DUTIES- In carrying out its mission, the Office shall have the
following duties:
(1) To provide recommendations and advice to the Attorney
General.
(2) To establish and maintain advisory groups (which shall be exempt
from the provisions of the Federal Advisory Committee Act (5 U.S.C. App.))
to assess the law enforcement technology needs of Federal, State, and local
law enforcement agencies.
(3) To establish and maintain performance standards in accordance
with the National Technology Transfer and Advancement Act of 1995 (Public
Law 104-113) for, and test and evaluate law enforcement technologies that
may be used by, Federal, State, and local law enforcement
agencies.
(4) To establish and maintain a program to certify, validate, and
mark or otherwise recognize law enforcement technology products that conform
to standards established and maintained by the Office in accordance with the
National Technology Transfer and Advancement Act of 1995 (Public Law
104-113). The program may, at the discretion of the Office, allow for
supplier's declaration of conformity with such standards.
(5) To work with other entities within the Department of Justice,
other Federal agencies, and the executive office of the President to
establish a coordinated Federal approach on issues related to law
enforcement technology.
(6) To carry out research, development, testing, evaluation, and
cost-benefit analyses in fields that would improve the safety,
effectiveness, and efficiency of law enforcement technologies used by
Federal, State, and local law enforcement agencies, including, but not
limited to--
(A) weapons capable of preventing use by unauthorized persons,
including personalized guns;
(C) bullet-resistant and explosion-resistant glass;
(D) monitoring systems and alarm systems capable of providing
precise location information;
(E) wire and wireless interoperable communication
technologies;
(F) tools and techniques that facilitate investigative and
forensic work, including computer forensics;
(G) equipment for particular use in counterterrorism, including
devices and technologies to disable terrorist devices;
(H) guides to assist State and local law enforcement
agencies;
(I) DNA identification technologies; and
(J) tools and techniques that facilitate investigations of
computer crime.
(7) To administer a program of research, development, testing, and
demonstration to improve the interoperability of voice and data public
safety communications.
(8) To serve on the Technical Support Working Group of the
Department of Defense, and on other relevant interagency panels, as
requested.
(9) To develop, and disseminate to State and local law enforcement
agencies, technical assistance and training materials for law enforcement
personnel, including prosecutors.
(10) To operate the regional National Law Enforcement and
Corrections Technology Centers and, to the extent necessary, establish
additional centers through a competitive process.
(11) To administer a program of acquisition, research, development,
and dissemination of advanced investigative analysis and forensic tools to
assist State and local law enforcement agencies in combating
cybercrime.
(12) To support research fellowships in support of its
mission.
(13) To serve as a clearinghouse for information on law enforcement
technologies.
(14) To represent the United States and State and local law
enforcement agencies, as requested, in international activities concerning
law enforcement technology.
(15) To enter into contracts and cooperative agreements and provide
grants, which may require in-kind or cash matches from the recipient, as
necessary to carry out its mission.
(16) To carry out other duties assigned by the Attorney General to
accomplish the mission of the Office.
(c) COMPETITION REQUIRED- Except as otherwise expressly provided by
law, all research and development carried out by or through the Office shall
be carried out on a competitive basis.
(d) INFORMATION FROM FEDERAL AGENCIES- Federal agencies shall, upon
request from the Office and in accordance with Federal law, provide the Office
with any data, reports, or other information requested, unless compliance with
such request is otherwise prohibited by law.
(e) PUBLICATIONS- Decisions concerning publications issued by the
Office shall rest solely with the Director of the Office.
(f) TRANSFER OF FUNDS- The Office may transfer funds to other Federal
agencies or provide funding to non-Federal entities through grants,
cooperative agreements, or contracts to carry out its duties under this
section.
(g) ANNUAL REPORT- The Director of the Office shall include with the
budget justification materials submitted to Congress in support of the
Department of Justice budget for each fiscal year (as submitted with the
budget of the President under section 1105(a) of title 31, United States Code)
a report on the activities of the Office. Each such report shall include the
following:
(1) For the period of 5 fiscal years beginning with the fiscal year
for which the budget is submitted--
(A) the Director's assessment of the needs of Federal, State, and
local law enforcement agencies for assistance with respect to law
enforcement technology and other matters consistent with the mission of
the Office; and
(B) a strategic plan for meeting such needs of such law
enforcement agencies.
(2) For the fiscal year preceding the fiscal year for which such
budget is submitted, a description of the activities carried out by the
Office and an evaluation of the extent to which those activities
successfully meet the needs assessed under paragraph (1)(A) in previous
reports.
SEC. 233. DEFINITION OF LAW ENFORCEMENT TECHNOLOGY.
For the purposes of this title, the term `law enforcement technology'
includes investigative and forensic technologies, corrections technologies,
and technologies that support the judicial process.
SEC. 234. ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY OF NATIONAL
INSTITUTE OF JUSTICE; TRANSFER OF FUNCTIONS.
(a) AUTHORITY TO TRANSFER FUNCTIONS- The Attorney General may transfer
to the Office any other program or activity of the Department of Justice that
the Attorney General, in consultation with the Committee on the Judiciary of
the Senate and the Committee on the Judiciary of the House of Representatives,
determines to be consistent with the mission of the Office.
(b) TRANSFER OF PERSONNEL AND ASSETS- With respect to any function,
power, or duty, or any program or activity, that is established in the Office,
those employees and assets of the element of the Department of Justice from
which the transfer is made that the Attorney General determines are needed to
perform that function, power, or duty, or for that program or activity, as the
case may be, shall be transferred to the Office.
(c) REPORT ON IMPLEMENTATION- Not later than 1 year after the date of
the enactment of this Act, the Attorney General shall submit to the Committee
on the Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives a report on the implementation of this title. The report
shall--
(1) provide an accounting of the amounts and sources of funding
available to the Office to carry out its mission under existing
authorizations and appropriations, and set forth the future funding needs of
the Office; and
(2) include such other information and recommendations as the
Attorney General considers appropriate.
SEC. 235. NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECHNOLOGY
CENTERS.
(a) IN GENERAL- The Director of the Office shall operate and support
National Law Enforcement and Corrections Technology Centers (hereinafter in
this section referred to as `Centers') and, to the extent necessary, establish
new centers through a merit-based, competitive process.
(b) PURPOSE OF CENTERS- The purpose of the Centers shall be
to--
(1) support research and development of law enforcement
technology;
(2) support the transfer and implementation of
technology;
(3) assist in the development and dissemination of guidelines and
technological standards; and
(4) provide technology assistance, information, and support for law
enforcement, corrections, and criminal justice purposes.
(c) ANNUAL MEETING- Each year, the Director shall convene a meeting of
the Centers in order to foster collaboration and communication between Center
participants.
(d) REPORT- Not later than 12 months after the date of the enactment
of this Act, the Director shall transmit to the Congress a report assessing
the effectiveness of the existing system of Centers and identify the number of
Centers necessary to meet the technology needs of Federal, State, and local
law enforcement in the United States.
SEC. 236. COORDINATION WITH OTHER ENTITIES WITHIN DEPARTMENT OF
JUSTICE.
Section 102 of the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3712) is amended in subsection (a)(5) by inserting `coordinate and'
before `provide'.
SEC. 237. AMENDMENTS RELATING TO NATIONAL INSTITUTE OF
JUSTICE.
Section 202(c) of the Omnibus Crime Control and Safety Streets Act of
1968 (42 U.S.C. 3722(c)) is amended--
(1) in paragraph (3) by inserting `, including cost effectiveness
where practical,' before `of projects'; and
(2) by striking `and' after the semicolon at the end of paragraph
(8), striking the period at the end of paragraph (9) and inserting `; and',
and by adding at the end the following:
`(10) research and development of tools and technologies relating to
prevention, detection, investigation, and prosecution of crime;
and
`(11) support research, development, testing, training, and
evaluation of tools and technology for Federal, State, and local law
enforcement agencies.'.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND
SECURITY
SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.
There shall be in the Department a Directorate of Science and
Technology headed by an Under Secretary for Science and Technology.
SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER SECRETARY FOR
SCIENCE AND TECHNOLOGY.
The Secretary, acting through the Under Secretary for Science and
Technology, shall have the responsibility for--
(1) advising the Secretary regarding research and development
efforts and priorities in support of the Department's missions;
(2) developing, in consultation with other appropriate executive
agencies, a national policy and strategic plan for, identifying priorities,
goals, objectives and policies for, and coordinating the Federal
Government's civilian efforts to identify and develop countermeasures to
chemical, biological, radiological, nuclear, and other emerging terrorist
threats, including the development of comprehensive, research-based
definable goals for such efforts and development of annual measurable
objectives and specific targets to accomplish and evaluate the goals for
such efforts;
(3) supporting the Under Secretary for Information Analysis and
Infrastructure Protection, by assessing and testing homeland security
vulnerabilities and possible threats;
(4) conducting basic and applied research, development,
demonstration, testing, and evaluation activities that are relevant to any
or all elements of the Department, through both intramural and extramural
programs, except that such responsibility does not extend to human
health-related research and development activities;
(5) establishing priorities for, directing, funding, and conducting
national research, development, test and evaluation, and procurement of
technology and systems for--
(A) preventing the importation of chemical, biological,
radiological, nuclear, and related weapons and material; and
(B) detecting, preventing, protecting against, and responding to
terrorist attacks;
(6) establishing a system for transferring homeland security
developments or technologies to federal, state, local government, and
private sector entities;
(7) entering into work agreements, joint sponsorships, contracts, or
any other agreements with the Department of Energy regarding the use of the
national laboratories or sites and support of the science and technology
base at those facilities;
(8) collaborating with the Secretary of Agriculture and the Attorney
General as provided in section 212 of the Agricultural Bioterrorism
Protection Act of 2002 (7 U.S.C. 8401), as amended by section
1709(b);
(9) collaborating with the Secretary of Health and Human Services
and the Attorney General in determining any new biological agents and toxins
that shall be listed as `select agents' in Appendix A of part 72 of title
42, Code of Federal Regulations, pursuant to section 351A of the Public
Health Service Act (42 U.S.C. 262a);
(10) supporting United States leadership in science and
technology;
(11) establishing and administering the primary research and
development activities of the Department, including the long-term research
and development needs and capabilities for all elements of the
Department;
(12) coordinating and integrating all research, development,
demonstration, testing, and evaluation activities of the
Department;
(13) coordinating with other appropriate executive agencies in
developing and carrying out the science and technology agenda of the
Department to reduce duplication and identify unmet needs; and
(14) developing and overseeing the administration of guidelines for
merit review of research and development projects throughout the Department,
and for the dissemination of research conducted or sponsored by the
Department.
SEC. 303. FUNCTIONS TRANSFERRED.
In accordance with title XV, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the following
entities:
(1) The following programs and activities of the Department of
Energy, including the functions of the Secretary of Energy relating thereto
(but not including programs and activities relating to the strategic nuclear
defense posture of the United States):
(A) The chemical and biological national security and supporting
programs and activities of the nonproliferation and verification research
and development program.
(B) The nuclear smuggling programs and activities within the
proliferation detection program of the nonproliferation and verification
research and development program. The programs and activities described in
this subparagraph may be designated by the President either for transfer
to the Department or for joint operation by the Secretary and the
Secretary of Energy.
(C) The nuclear assessment program and activities of the
assessment, detection, and cooperation program of the international
materials protection and cooperation program.
(D) Such life sciences activities of the biological and
environmental research program related to microbial pathogens as may be
designated by the President for transfer to the Department.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research program and
activities at Lawrence Livermore National Laboratory.
(2) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the Secretary of Defense
related thereto.
SEC. 304. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(a) IN GENERAL- With respect to civilian human health-related research
and development activities relating to countermeasures for chemical,
biological, radiological, and nuclear and other emerging terrorist threats
carried out by the Department of Health and Human Services (including the
Public Health Service), the Secretary of Health and Human Services shall set
priorities, goals, objectives, and policies and develop a coordinated strategy
for such activities in collaboration with the Secretary of Homeland Security
to ensure consistency with the national policy and strategic plan developed
pursuant to section 302(2).
(b) EVALUATION OF PROGRESS- In carrying out subsection (a), the
Secretary of Health and Human Services shall collaborate with the Secretary in
developing specific benchmarks and outcome measurements for evaluating
progress toward achieving the priorities and goals described in such
subsection.
(c) ADMINISTRATION OF COUNTERMEASURES AGAINST SMALLPOX- Section 224 of
the Public Health Service Act (42 U.S.C. 233) is amended by adding the
following:
`(p) ADMINISTRATION OF SMALLPOX COUNTERMEASURES BY HEALTH
PROFESSIONALS-
`(1) IN GENERAL- For purposes of this section, and subject to other
provisions of this subsection, a covered person shall be deemed to be an
employee of the Public Health Service with respect to liability arising out
of administration of a covered countermeasure against smallpox to an
individual during the effective period of a declaration by the Secretary
under paragraph (2)(A).
`(2) DECLARATION BY SECRETARY CONCERNING COUNTERMEASURE AGAINST
SMALLPOX-
`(A) AUTHORITY TO ISSUE DECLARATION-
`(i) IN GENERAL- The Secretary may issue a declaration, pursuant
to this paragraph, concluding that an actual or potential bioterrorist
incident or other actual or potential public health emergency makes
advisable the administration of a covered countermeasure to a category
or categories of individuals.
`(ii) COVERED COUNTERMEASURE- The Secretary shall specify in
such declaration the substance or substances that shall be considered
covered countermeasures (as defined in paragraph (8)(A)) for purposes of
administration to individuals during the effective period of the
declaration.
`(iii) EFFECTIVE PERIOD- The Secretary shall specify in such
declaration the beginning and ending dates of the effective period of
the declaration, and may subsequently amend such declaration to shorten
or extend such effective period, provided that the new closing date is
after the date when the declaration is amended.
`(iv) PUBLICATION- The Secretary shall promptly publish each
such declaration and amendment in the Federal Register.
`(B) LIABILITY OF UNITED STATES ONLY FOR ADMINISTRATIONS WITHIN
SCOPE OF DECLARATION- Except as provided in paragraph (5)(B)(ii), the
United States shall be liable under this subsection with respect to a
claim arising out of the administration of a covered countermeasure to an
individual only if--
`(i) the countermeasure was administered by a qualified person,
for a purpose stated in paragraph (7)(A)(i), and during the effective
period of a declaration by the Secretary under subparagraph (A) with
respect to such countermeasure; and
`(ii)(I) the individual was within a category of individuals
covered by the declaration; or
`(II) the qualified person administering the countermeasure had
reasonable grounds to believe that such individual was within such
category.
`(C) PRESUMPTION OF ADMINISTRATION WITHIN SCOPE OF DECLARATION IN
CASE OF ACCIDENTAL VACCINIA INOCULATION-
`(i) IN GENERAL- If vaccinia vaccine is a covered countermeasure
specified in a declaration under subparagraph (A), and an individual to
whom the vaccinia vaccine is not administered contracts vaccinia, then,
under the circumstances specified in clause (ii), the
individual--
`(I) shall be rebuttably presumed to have contracted vaccinia
from an individual to whom such vaccine was administered as provided
by clauses (i) and (ii) of subparagraph (B); and
`(II) shall (unless such presumption is rebutted) be deemed
for purposes of this subsection to be an individual to whom a covered
countermeasure was administered by a qualified person in accordance
with the terms of such declaration and as described by subparagraph
(B).
`(ii) CIRCUMSTANCES IN WHICH PRESUMPTION APPLIES- The
presumption and deeming stated in clause (i) shall apply
if--
`(I) the individual contracts vaccinia during the effective
period of a declaration under subparagraph (A) or by the date 30 days
after the close of such period; or
`(II) the individual resides or has resided with an individual
to whom such vaccine was administered as provided by clauses (i) and
(ii) of subparagraph (B) and contracts vaccinia after such
date.
`(3) EXCLUSIVITY OF REMEDY- The remedy provided by subsection (a)
shall be exclusive of any other civil action or proceeding for any claim or
suit this subsection encompasses.
`(4) CERTIFICATION OF ACTION BY ATTORNEY GENERAL- Subsection (c)
applies to actions under this subsection, subject to the following
provisions:
`(A) NATURE OF CERTIFICATION- The certification by the Attorney
General that is the basis for deeming an action or proceeding to be
against the United States, and for removing an action or proceeding from a
State court, is a certification that the action or proceeding is against a
covered person and is based upon a claim alleging personal injury or death
arising out of the administration of a covered
countermeasure.
`(B) CERTIFICATION OF ATTORNEY GENERAL CONCLUSIVE- The
certification of the Attorney General of the facts specified in
subparagraph (A) shall conclusively establish such facts for purposes of
jurisdiction pursuant to this subsection.
`(5) DEFENDANT TO COOPERATE WITH UNITED STATES-
`(A) IN GENERAL- A covered person shall cooperate with the United
States in the processing and defense of a claim or action under this
subsection based upon alleged acts or omissions of such
person.
`(B) CONSEQUENCES OF FAILURE TO COOPERATE- Upon the motion of the
United States or any other party and upon finding that such person has
failed to so cooperate--
`(i) the court shall substitute such person as the party
defendant in place of the United States and, upon motion, shall remand
any such suit to the court in which it was instituted if it appears that
the court lacks subject matter jurisdiction;
`(ii) the United States shall not be liable based on the acts or
omissions of such person; and
`(iii) the Attorney General shall not be obligated to defend
such action.
`(6) RECOURSE AGAINST COVERED PERSON IN CASE OF GROSS MISCONDUCT OR
CONTRACT VIOLATION-
`(A) IN GENERAL- Should payment be made by the United States to
any claimant bringing a claim under this subsection, either by way of
administrative determination, settlement, or court judgment, the United
States shall have, notwithstanding any provision of State law, the right
to recover for that portion of the damages so awarded or paid, as well as
interest and any costs of litigation, resulting from the failure of any
covered person to carry out any obligation or responsibility assumed by
such person under a contract with the United States or from any grossly
negligent, reckless, or illegal conduct or willful misconduct on the part
of such person.
`(B) VENUE- The United States may maintain an action under this
paragraph against such person in the district court of the United States
in which such person resides or has its principal place of
business.
`(7) DEFINITIONS- As used in this subsection, terms have the
following meanings:
`(A) COVERED COUNTERMEASURE- The term `covered countermeasure', or
`covered countermeasure against smallpox', means a substance that
is--
`(i)(I) used to prevent or treat smallpox (including the
vaccinia or another vaccine); or
`(II) vaccinia immune globulin used to control or treat the
adverse effects of vaccinia inoculation; and
`(ii) specified in a declaration under paragraph
(2).
`(B) COVERED PERSON- The term `covered person', when used with
respect to the administration of a covered countermeasure, includes any
person who is--
`(i) a manufacturer or distributor of such
countermeasure;
`(ii) a health care entity under whose auspices such
countermeasure was administered;
`(iii) a qualified person who administered such countermeasure;
or
`(iv) an official, agent, or employee of a person described in
clause (i), (ii), or (iii).
`(C) QUALIFIED PERSON- The term `qualified person', when used with
respect to the administration of a covered countermeasure, means a
licensed health professional or other individual who is authorized to
administer such countermeasure under the law of the State in which the
countermeasure was administered.'.
SEC. 305. FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTERS.
The Secretary, acting through the Under Secretary for Science and
Technology, shall have the authority to establish or contract with 1 or more
federally funded research and development centers to provide independent
analysis of homeland security issues, or to carry out other responsibilities
under this Act, including coordinating and integrating both the extramural and
intramural programs described in section 308.
SEC. 306. MISCELLANEOUS PROVISIONS.
(a) CLASSIFICATION- To the greatest extent practicable, research
conducted or supported by the Department shall be unclassified.
(b) CONSTRUCTION- Nothing in this title shall be construed to preclude
any Under Secretary of the Department from carrying out research, development,
demonstration, or deployment activities, as long as such activities are
coordinated through the Under Secretary for Science and Technology.
(c) REGULATIONS- The Secretary, acting through the Under Secretary for
Science and Technology, may issue necessary regulations with respect to
research, development, demonstration, testing, and evaluation activities of
the Department, including the conducting, funding, and reviewing of such
activities.
(d) NOTIFICATION OF PRESIDENTIAL LIFE SCIENCES DESIGNATIONS-