H.R. 1 (Implementing the 9/11 Commission Recommendations Act of 2007) and S. 4 (Improving America's Security Act of 2007): A Comparative Analysis
H.R. 1 (Implementing the 9/11 Commission
Recommendations Act of 2007) and
S. 4 (Improving America’s Security Act of 2007):
A Comparative Analysis
March 29, 2007
Edward F. Bruner, Coordinator
Foreign Affairs, Defense, and Trade Division
H.R. 1 (Implementing the 9/11 Commission
Recommendations Act of 2007) and
S. 4 (Improving America’s Security Act of 2007):
A Comparative Analysis
Summary
This comparative analysis of H.R. 1 (Implementing the 9/11 Commission
Recommendations Act of 2007) and S. 4 (Improving America’s Security Act of
2007) is an assessment of major similarities and differences between the two bills as
passed by the House (January 9, 2007) and Senate (March 13, 2007) and under
conference consideration.
References to the two bills are to engrossed versions. The presentation is
organized to follow the basic construct of the House bill because its coverage
remained more stable through the legislative process and as the analyses began.
Titles unique to S. 4 follow the Titles of H.R. 1.
CRS experts are available to follow up on any additional needs, including
clarification of content or of legislative references. Each section of this analysis
includes contact information for the analyst or attorney who prepared it.
CRS also provides online access to research products that directly address a
number of issues that are the focus of or are raised by H.R. 1 and S. 4. These
products are available under the CRS home page Current Legislative Issues heading
“Terrorism and Homeland Security” (see [http://www.crs.gov]).
Contents
In troduction ......................................................1
Title I: Risk-Based Allocation of
Homeland Security Grants.......................................2
Homeland Security and Emergency Management Grant Funding.........2
Overview ....................................................2
House Provisions..........................................2
Senate Provisions..........................................2
Comments ...............................................3
Title II: Ensuring Communications Interoperability
for First Responders ...........................................4
Improve Communications
for Emergency Response Grant Program........................4
Overview ....................................................4
House Provisions..........................................4
Senate Provisions..........................................5
Border Interoperability Demonstration Project.......................5
House Provisions..........................................5
Senate provisions..........................................5
Other Provisions Regarding Communications
and Interoperability........................................6
House Provisions..........................................6
Senate Provisions..........................................6
Title III: Strengthening Use of a Unified Incident Command
During Emergencies............................................7
Overview ....................................................7
Title IV: Strengthening Aviation Security..............................9
Overview ....................................................9
House Provisions..........................................9
Reauthorization of Appropriations............................9
Baggage Screening.........................................9
Passenger Checkpoint Screening..............................9
Air Cargo Security........................................10
Airline Passenger Prescreening..............................10
TSA Personnel Management................................11
Senate Provisions.........................................11
Reauthorization of Appropriations...........................11
Baggage Screening........................................11
Passenger Checkpoint Screening.............................12
Air Cargo Security........................................12
Airline Passenger Prescreening..............................13
TSA Personnel Management................................13
Miscellaneous Provisions Not in the House Bill.................13
Foreign Aviation Repair Station Security......................14
General Aviation Security..................................14
Canine Explosives Detection Team Training...................14
Comments ..............................................15
Title V: Strengthening the Security of Cargo Containers..................16
Overview ...................................................16
House Provisions.........................................16
Senate Provisions.........................................17
Comment ...............................................17
Title VI: Strengthening Efforts to Prevent Terrorist Travel (H.R. 1).........19
Overview ...................................................19
Strengthening the Capabilities of the Human Smuggling
and Trafficking Center.....................................19
Overview ...................................................19
House Provisions.........................................19
Senate Provisions.........................................20
Modernization of the Visa Waiver Program........................20
Overview ...................................................20
House Provisions.........................................21
Senate Provisions.........................................21
Comment ...............................................21
Enhancing Terrorist Travel Programs.............................22
Overview ...................................................22
House Provisions.........................................22
Senate Provisions.........................................22
Comments ..............................................22
Biometric Entry and Exit System.................................23
Overview ...................................................23
House Provisions.........................................23
Senate Provisions.........................................23
Comments ..............................................23
Enhanced Driver’s License/Western Hemisphere Travel Initiative.......24
Overview ...................................................24
House Provisions.........................................24
Senate Provisions.........................................24
Comments ..............................................24
Model Ports of Entry..........................................25
House Provision..........................................25
Senate Provisions.........................................25
Title VII: Improving Intelligence and Information Sharing
with Local Law Enforcement and First Responders..................26
Overview ...................................................26
Fusion and Law Enforcement Education and Teaming
(FLEET) Grant Program...................................26
House Provisions.........................................26
Senate Provisions.........................................27
Comment ...............................................27
Border Intelligence Fusion Center Program.........................27
House Provisions.........................................27
Senate Provisions.........................................28
Overview ...................................................28
Unique House Provisions...................................29
Unique Senate Provisions..................................29
Comment: DHS Advisory System...........................29
Comment: Definition of DHS Intelligence Component...........30
Comment: Integration and Standardization
of DHS Intelligence...................................30
Comment: Program Manager ISE Term, Functions,
and Additional Resources..............................30
Homeland Security Information Sharing Partnerships.................31
Overview ...................................................31
Unique House Provisions...................................31
Unique Senate Provisions..................................31
Comment ...............................................32
Homeland Security Intelligence Offices Reorganization...............32
House Provisions.........................................32
Senate Provisions.........................................32
Comment ...............................................32
Interagency Threat Assessment Coordination Group.................33
Overview ...................................................33
House Provisions.........................................34
Senate Provisions.........................................34
Comment ...............................................34
Title VIII: Protecting Privacy and Civil Liberties
While Effectively Fighting Terrorism.............................35
Reconstituting the Privacy and Civil Liberties Oversight Board.........35
Overview ...................................................35
House Provisions.........................................35
Senate Provisions.........................................35
Comments ..............................................36
Privacy Officers..............................................36
Overview ...................................................36
House Provisions.........................................37
Senate Provisions.........................................37
Enhancement of Department of Homeland Security
Privacy Officer’s Authorities................................37
Overview ...................................................37
House Provisions.........................................38
Senate Provision.........................................38
Federal Agency Data Mining Reporting Act of 2007.................38
Overview ...................................................38
House Provisions.........................................39
Senate Provisions.........................................39
Comments ..............................................39
Title IX: Improving Critical Infrastructure Security......................41
Overview ...................................................41
Vulnerability Assessment and Report
on Critical Infrastructure Information.........................41
House Provisions.........................................41
Comment ...............................................42
National Asset Database and National At-Risk Database..............42
House Provisions.........................................42
Senate Provisions.........................................43
Comment ...............................................43
Priorities and Allocations.......................................44
House Provisions.........................................44
Senate Provisions.........................................44
Senate Provisions Comment................................44
Title X: Transportation Security Planning and Information Sharing.........45
House Provisions.........................................45
Senate Provisions.........................................45
Title XI: Private Sector Preparedness.................................46
Participation of the Private Sector in Preparedness Activities...........46
Overview ...................................................46
House Provisions.........................................46
Senate Provisions.........................................46
Comments ..............................................46
Title XII: Preventing Weapons of Mass Destruction Proliferation
and Terrorism................................................47
Overview ...................................................47
Repeal and Modification of Limitations
on Nonproliferation Assistance..............................47
House Provisions.........................................47
Senate Provisions.........................................47
Comments ..............................................47
Expanding Proliferation Security Initiative.........................48
House Provisions.........................................48
Senate provisions.........................................48
Comments ..............................................48
Assistance to Accelerate Programs to Prevent Weapons
of Mass Destruction Proliferation and Terrorism................49
House Provisions.........................................49
Senate provisions.........................................49
Comments ..............................................49
Establishing a Coordinator and Commission on Preventing
Weapons of Mass Destruction Proliferation and Terrorism........49
House Provisions.........................................49
Senate Provisions.........................................50
Comments ..............................................50
Title XIII: Nuclear Black Market
Counter-Terrorism Act.........................................51
Overview ...................................................51
House Provisions.........................................51
Senate Provisions.........................................51
Comments ..............................................51
Overview ...................................................52
Subtitle A: Quality Educational Opportunities
in Arab and Predominantly Muslim Countries..................52
House Provisions.........................................52
Senate Provisions.........................................53
Subtitle B: Democracy and Development
in Arab and Muslim Countries...............................53
House Provisions.........................................53
Senate Provisions.........................................53
Subtitle C: Advancing United States Interests
Through Public Diplomacy.................................53
House Provision..........................................53
Senate Provision.........................................54
House Provision..........................................54
Senate Provision.........................................54
House Provision..........................................54
Senate Provision.........................................54
Subtitle D: Strategy for the United States Relationship
with Afghanistan, Pakistan, and Saudi Arabia...................54
House Provisions.........................................54
Senate Provisions.........................................55
Senate Provisions Not in H.R. 1.....................................56
Title VII: Enhanced Defenses Against Weapons
of Mass Destruction...........................................56
National Biosurveillance Integration Center........................56
House Provision..........................................56
Senate Provision.........................................56
Biosurveillance Efforts........................................57
House Provision..........................................57
Senate Provision.........................................57
Interagency Coordination to Enhance Defenses
Against Nuclear and Radiological Weapons
of Mass Destruction.......................................57
House Provisions.........................................57
Senate Provisions.........................................57
Comment ...............................................57
Title XII: Congressional Oversight of Intelligence ......................58
Availability to Public of Certain Intelligence Funding Information......58
House Provision..........................................58
Senate Provision.........................................58
Comment ...............................................58
Response of Intelligence Community to Requests from Congress.......58
House Provision..........................................58
Senate Provision.........................................58
Comment ...............................................59
Public Interest Declassification Board.............................59
House Provision..........................................59
Senate Provision.........................................59
Sense of the Senate Regarding a Report
on the 9/11 Commission Recommendations with Respect
to Intelligence Reform and Congressional Intelligence
Oversight Reform.........................................60
House Provision..........................................60
Senate Provision.........................................60
Comment ...............................................60
Availability of Funds for the Public Interest Declassification Board.....60
House Provision..........................................60
Senate Provision.........................................60
Comment ...............................................60
Availability of the Executive Summary of the Report
on Central Intelligence Agency Accountability
Regarding the Terrorist Attacks of September 11, 2001...........60
House Provision..........................................60
Senate Provision.........................................60
Comment ...............................................60
Title XIII: International Cooperation on Antiterrorism Technologies........62
House Provisions.........................................62
Senate Provision.........................................62
Transparency of Funds.........................................63
House Provision..........................................63
Senate Provision.........................................63
Title XIV: Transportation and
Interoperable Communication Capabilities.........................64
Subtitle A Part I: Improved Rail Security..........................64
Rail Transportation Security Risk Assessment......................64
House Provisions.........................................64
Senate Provisions.........................................64
Rail Transportation Security Grant Programs.......................64
House Provisions.........................................64
Senate Provisions.........................................64
Senate Provisions.........................................65
Northern Border Rail Passenger Report............................66
Senate Provisions.........................................66
Freight Rail Specific Provisions.................................66
House Provisions.........................................66
Senate Provisions.........................................66
Unified Carrier Registration System Plan Agreement.................67
House Provisions.........................................67
Senate Provisions.........................................67
Authorization of Appropriations.................................67
House Provisions.........................................67
Senate Provisions.........................................67
Subtitle A Part II: Improved Motor Carrier, Bus,
and Hazardous Material Security.................................69
Motor Carrier and Hazardous Material Security.....................69
House Provisions.........................................69
Senate Provisions.........................................69
Comment ...............................................69
Over-the-Road Bus Security Assistance...........................70
House Provisions.........................................70
Senate Provisions.........................................70
Subtitle B: See Title 4, H.R. 1..................................71
Subtitle C: Interoperable Emergency Communications...............71
Interoperable Emergency Communications.........................71
House Provisions.........................................71
Senate Provisions.........................................71
Extension of Short Quorum.....................................71
House Provisions.........................................71
Senate Provisions.........................................71
Requiring Reports to be Submitted to Certain Committees.............71
House Provisions.........................................71
Senate Provisions.........................................71
Title XV: Public Transportation Terrorism Prevention...................72
Overview ...................................................72
House Provisions.........................................72
Security Assessments......................................72
Security Grants...........................................72
Security Training Program..................................72
Intelligence Sharing.......................................72
Research, Development, and
Demonstration Grants and Contracts......................73
Authorization of Appropriations.............................73
Sunset Provisions.........................................73
Comment ...............................................73
Title XVI: Miscellaneous Provisions.................................74
Deputy Secretary of Homeland Security for Management.............74
Overview ...................................................74
House Provisions.........................................74
Senate Provisions.........................................74
Comment ...............................................75
Sense of the Senate Regarding Oversight of Homeland Security........75
Overview ...................................................75
House Provisions.........................................77
Senate Provisions.........................................77
Report Regarding Border Security................................77
House Provisions.........................................77
Senate Provisions.........................................77
Law Enforcement Assistance Force...............................78
House Provisions.........................................78
Senate Provisions.........................................78
Quadrennial Homeland Security Review...........................78
House Provisions.........................................79
Senate Provisions.........................................79
Comments ..............................................79
Overview ...................................................80
Integration of Detection Equipment and Technologies................80
House Provisions.........................................80
Senate Provisions.........................................80
Title XVII: 911 Modernization......................................81
Overview ...................................................81
House Provisions.........................................81
Senate Provisions.........................................81
Title XVIII: Modernization of the American National Red Cross...........82
Altering the Governance of the American National Red Cross..........82
Overview ...................................................82
House Provisions.........................................82
Senate Provisions.........................................82
Comments ..............................................82
Title XIX: Advancement of Democratic Values.........................84
House Provisions.........................................84
Senate Provisions.........................................84
H.R. 1 (Implementing the 9/11 Commission
Recommendations Act of 2007) and S. 4
(Improving America’s Security Act of 2007):
A Comparative Analysis
Introduction
This comparative analysis of H.R. 1 (Implementing the 9/11 Commission
Recommendations Act of 2007) and S. 4 (Improving America’s Security Act of
2007) is an assessment of major similarities and differences between the two bills as
passed by the House (January 9, 2007) and Senate (March 13, 2007) and under
conference consideration.
References to the two bills are to engrossed versions. The presentation is
organized to follow the basic construct of the House bill because its coverage
remained more stable through the legislative process and as the analyses began.
Titles unique to S. 4 follow the Titles of H.R. 1.
CRS experts are available to follow up on any additional needs, including
clarification of content or of legislative references. Each section of this analysis
includes contact information for the analyst or attorney who prepared it.
The two bills analyzed herein represent a resolve by many Members of the 110th
Congress to address 9/11 Commission recommendations that may not have beenth
completely resolved through legislative actions of the 109 Congress or Executive
actions. For an assessment of what Commission recommendations were addressed
through previously enacted legislation and Executive actions, see CRS Report
RL33742, 9/11 Commission Recommendations: Implementation Status, by Richard
F. Grimmett. CRS also provides online access to research products that directly
address a number of issues that are the focus of or are raised by H.R. 1 and S. 4.
These products are available under the CRS home page Current Legislative Issues
heading “Terrorism and Homeland Security” (see [http://www.crs.gov]).
Title I: Risk-Based Allocation of
Homeland Security Grants
Homeland Security and Emergency Management
Grant Funding
Prepared by Shawn Reese, Analyst in American National Government, CRS
Government and Finance Division, 7-0635.
Overview
The 9/11 Commission recommended in its 2004 report that state and local
homeland security assistance should be “based strictly on an assessment of risks and
vulnerabilities.” The Commission went on to state that federal homeland security
assistance “should supplement state and local resources based on risks and
vulnerabilities that merit additional support.” (The 9/11 Commission Report, p. 396.)
H.R. 1 and S. 4 propose to change the current formula used to distribute federal
assistance for state and local homeland security. Both bills would include risk
assessment requirements in the distribution of federal homeland security assistance.
House Provisions. H.R. 1 (Title I, Section 101 “Title XX, Section 2002-
2005” of the Homeland Security Act of 2002, P.L. 107-296) covers the State
Homeland Security Grant Program (SHSGP), the Law Enforcement Terrorism
Prevention Program (LETPP), and the Urban Area Security Initiative (UASI). The
bill would authorize the DHS Secretary to award grants to eligible applicants.
Additionally, the Department of Homeland Security (DHS) Secretary would be
required to evaluate and annually prioritize applications based on risk and
vulnerability assessments — including assessments of national critical infrastructure
sectors.
H.R. 1 would guarantee that states without an international border, the District
of Columbia (DC), and Puerto Rico receive a minimum of 0.25% of total
appropriations for the covered grants. States with an international border would be
deemed high risk and guaranteed a minimum of 0.45%, and U.S. insular areas and
eligible tribes would be guaranteed a minimum of 0.08%. Finally, H.R. 1 details
eligible activities and accountability requirements.
Senate Provisions. S. 4 (Title II, Section 202, “Title XX, Section 2002-
2009” of the Homeland Security Act of 2002, P.L. 107-296) would authorize the
DHS Secretary, through the Federal Emergency Management Agency (FEMA)
Administrator, to award federal homeland security assistance to states, DC, Puerto
Rico, and U.S. insular areas. The FEMA Administrator would be required to
distribute federal homeland security assistance based on risk and threat assessments.
The bill would establish UASI to help high-risk metropolitan areas prepare for,
prevent, protect against, respond to, and recover from terrorist attacks, and would
authorize $1.28 billion for fiscal years 2008 through 2010. The bill also would
establish SHSGP for states, DC, Puerto Rico, and U.S. insular areas. States, DC, and
Puerto Rico would be guaranteed a minimum of 0.45% of total SHSGP
appropriations; U.S. insular areas, 0.08%. S. 4 would authorize $913 million for
fiscal years 2008 through 2010, and thereafter such sums as necessary.
The bill would require the FEMA Administrator to designate not less than 25%
of UASI and SHSGP allocations for law enforcement terrorism prevention activities,
and would establish an Office for the Prevention of Terrorism within DHS to
coordinate policy, serve as a liaison for grant recipients, and coordinate with DHS’s
Office of Intelligence and Analysis. Finally, S. 4’s Title II would identify restrictions
on the use of grant awards; the bill, however, would not prohibit grant recipients
from using grant award funding for all-hazard preparedness if they also enhance
terrorism preparedness. S. 4 would authorize the DHS Inspector General to conduct
audits of grant recipient uses of SHSGP, UASI, and Emergency Management
Performance Grant (EMPG) program funding.
Additionally, S. 4 (Title IV, Section 401) would amend Section 622 of the Post
Katrina Act (Title VI, P.L. 109-295) by codifying the distribution method for EMPG
awards. Each state, DC, and Puerto Rico would be guaranteed to receive 0.75% of
total appropriations; U.S. insular areas, 0.25%. The amount remaining of total
appropriations would be allocated on the state’s percentage of the national
population. The bill would also ensure that the federal cost share would not exceed
50% of allocations to each state. The bill would authorize grant recipients to use
EMPG funding for the Emergency Operations Center Improvement Program; the
federal cost share for this program would not exceed 75%. Finally, S. 4 would
authorize $913 million for fiscal years 2008 through 2010, and such sums as
necessary thereafter.
Comments. Neither H.R. 1 nor S. 4 proposes to fund state and local homeland
security assistance strictly on risk and threat. Both bills propose a guaranteed
minimum to states, DC, Puerto Rico, and U.S. insular areas, though both bills do
propose to provide the majority of federal homeland security assistance based on risk.
H.R. 1, unlike S. 4, does not authorize specific amounts of appropriations for any
homeland security or emergency management program, nor does it address EMPG
allocations. Additionally, H.R. 1 does not identify the FEMA Administrator as the
DHS official responsible for administrating the allocation of federal homeland
security and emergency management grants.
Title II: Ensuring Communications Interoperability
for First Responders
Improve Communications for Emergency Response
Grant Program
Prepared by Linda K. Moore, Analyst in Telecommunications and Technology
Policy, CRS Resources, Science, and Industry Division, 7-5853.
Overview
Congress has passed legislation addressing communications among first
responders focused on interoperability — the capability of different systems to
connect — in several laws, starting with provisions in the Homeland Security Act
(P.L. 107-296). The Intelligence Reform and Terrorism Prevention Act (P.L. 108-
458) provided more comprehensive language that included requirements for
developing a national approach to achieving interoperability. In a section of the
Department of Homeland Security Appropriations Act, 2007 (P.L. 109-295),
Congress revisited the needs of an effective communications capacity — operability
— for first responders and other emergency personnel and expanded the emergency
communications provisions of P.L. 108-458. Title VI of P.L. 109-295 — the Post-
Katrina Emergency Management Reform Act of 2006 — reorganized the Federal
Emergency Management Agency (FEMA). Subtitle D — the 21st Century
Emergency Communications Act of 2006 — provided communications functionality
to interface with the new FEMA, among other functions. It created an Office of
Emergency Communications and the position of Director. The Director is required
to take numerous steps to coordinate emergency communications planning,
preparedness, and response, particularly at the state and regional level. Although a
number of programs are required by Title D, the law does not authorize funding.
House Provisions. The provisions of H.R. 1, Title II would amend Title V
of the Homeland Security Act (6 U.S.C. 311 et seq.). In response to the 9/11
Commission recommendation for public safety communications and interoperability,
Title II would provide funding to assist in meeting the goals set for the Office of
Emergency Communications by the 21st Century Emergency Communications Act
of 2006 (P.L. 109-295). The bill would require the Secretary of Homeland Security
to establish an Improve Communications for Emergency Response Grant Program
through the Office of Grants and Training in cooperation with the Office of
Emergency Communications. “Such sums as are necessary” would be made
available in the first fiscal year that DHS meets three goals set in P.L. 109-295:
completion of a National Emergency Communications Plan; baseline assessment of
interoperability; and progress report to Congress affirming “substantial progress” in
developing standards. The grant program would make grants at the state and regional
level to carry out initiatives at the state, regional, national, and international level.
Uses of the funds would include planning, systems design and engineering,
equipment procurement, technical assistance, and exercises, modeling, simulation,
and other training activities. No other grant guidance is provided. The Congressional
Budget Office, in providing an estimate for H.R. 1, placed the cumulative cost of
funding interoperable communications at nearly $3.2 billion for fiscal years 2009
through 2012.1
Senate Provisions. The provisions of S. 4, Title III, Section 301 would
amend Title X of the Homeland Security Act (6 U.S.C. 571 et seq.), as amended by
P.L. 109-295. As regards emergency communications, the bill adds substantially tost
requirements provided in the 21 Century Emergency Communications Act of 2006
of (P.L. 109-295). The bill provides detailed instructions to the Administrator of the
Federal Emergency Management Agency on grants programs for communications,
consistent with planning requirements set out in P.L. 109-295. Uses of the funds
would include planning, systems design and engineering, equipment procurement,
technical assistance, and exercises, modeling, simulation, and other training
activities. Authorization of appropriations for the grants are $400 million in FY2008,
$500 million for FY2009, $600 million for FY2010, $800 million for FY2011,
$1,000 million for FY2012, and such sums as are necessary for subsequent years.
Among specific requirements for administering grants are: minimum contents
of grant applications such as identifying “critical aspects of the communications life
cycle,” describing how the proposed use of funds would meet various goals,
demonstrating consistency with already mandated Statewide Interoperable
Communications Plan, and including a capital budget and timeline; specific
considerations to be taken into account when approving applications and awarding
grants; establishment of a review panel; minimum amounts for grants; availability
of funds; state responsibilities; certifications; and reports on spending.
Requirements for interoperable communications plans established in the
Intelligence Reform and Terrorism Prevention Act (6 U.S.C. 194) are amended to
include additional requirements.
Requirements for a National Emergency Communications Plan established in
Title VI Subtitle D of P.L. 109-295 are amended to mandate the establishment of a
date by which interoperable communications will be achieved.
Border Interoperability Demonstration Project
House Provisions. No comparable provision.
Senate provisions. To help resolve problems in coordinating wireless
communications along the Canadian and Mexican borders, S. 4, Title III, Section 302
would establish a demonstration project. The project would address interoperable
communications needs such as radio frequency spectrum coordination and standards,
and would foster cross-border cooperation between U.S., federal, state, local, and
tribal authorities and their Canadian and Mexican counterparts. Requirements for the
program, funding, and reporting are provided.
1 Congressional Budget Office Cost Estimate for H.R. 1, Feb. 2, 2007, p. 4; and H.R. 1, Title
II.
Other Provisions Regarding Communications
and Interoperability
House Provisions. No comparable provision.
Senate Provisions. Title XIV, Subtitle C contains additional provisions
regarding interoperable communications. In particular, the Deficit Reduction Act
(P.L. 109-171) would be amended as regards funding for interoperable
communications as provided in Section 3006 (47 U.S.C. 309). This provision would
redirect a $ 1 billion grant program away from specific requirements for interoperable
systems at 700 MHz and would place more general requirements on the types of
equipment eligible for grants. Specific grant guidance regarding eligibility is
required. Some portion of the funds would go for strategic technology reserve grants,
to support the procurement, in advance, of resources needed in an emergency.
The Federal Communications Commission (FCC) would be required to prepare
a study on the technical feasibility of creating a back-up emergency communications
system and to report to Congress on its findings.
A joint advisory committee on the communications capabilities of emergency
care medical facilities would be established jointly by the Assistant Secretary of
Commerce for Communications and Information and the Chairman of the FCC, with
the participation of the Secretaries of Homeland Security and Health and Human
Services. The committee would assess communications capabilities, needs and
options and report its findings to Congress. Up to 10 geographically dispersed pilot
projects would be funded with no more than $2 million each.
Progress and status reports on cross-border interoperability negotiations and
treaties governing radio use would be required.
Other provisions not pertaining to communications are listed in the section on
Title XIV, Subtitle C.
Title III: Strengthening Use of a Unified Incident
Command During Emergencies
Prepared by Natalie Paris Love, Analyst in American National Government,
CRS Government and Finance Division, 7-9569.
Overview
The 9/11 Commission recommended “aggressive and realistic training in
accordance with ICS (Incident Command Systems) and unified command
procedures.” Part of the incident command approach involves personnel
credentialing and resource typing. Credentialing is a process that authenticates and
verifies the qualifications of personnel. Typing is a process that evaluates resources
to identify the use and capabilities of an asset or resource. The Commission also
recommended development of a regional focus in the emergency responder
community that would promote mutual assistance compacts and provide training in
accordance with existing compacts. (The 9/11 Commission Report (2004), p. 397).
House Provisions. H.R. 1 (Title III, Section 301-302) would amend the
Post-Katrina Emergency Management Reform Act of 2006 (Title VI, Subtitle C,
Section 648) by requiring that FEMA’s training and exercise component include
enhancement of an operational understanding of the Incident Command System and
relevant mutual aid agreements within the emergency responder community. The bill
would also require that the FEMA Administrator build an exercise program that
considers special needs populations, after-action reports, plans to incorporate lessons
learned into future operations, and model exercise programs. H.R. 1 (Title III,
Section 303) also would amend the Homeland Security Act of 2002 (6 U.S.C. 317)
to extend the responsibilities of the FEMA Regional Administrator to include helping
state, local, or tribal governments identify suitable sites for a unified command
system.
Senate Provisions. S. 4 (Title X, Section 1001) would amend the Post-
Katrina Emergency Management Reform Act (Title VI, Subtitle A, Section 611) by
extending the responsibilities of the FEMA Regional Administrator to include
helping state, local, or tribal governments to identify suitable locations for a unified
command system. S. 4 (Title X, Section 1002) also would enhance the credentialing
and typing language within the Post-Katrina Emergency Management Reform Act
of 2006 with more detailed language to provide for the establishment of national
standards for credentialing personnel who perform a function under the ICS model
and the integration of the national standards into the National Response Plan. Such
credentialing would include the establishment of a database of all federal personnel
credentialed to respond to natural disasters, acts of terrorism, or other man-made
disasters. Additionally, the bill would expand the responsibilities of the FEMA
Administrator to include creating detailed written guidance to state, local, and tribal
governments for credentialing of emergency response providers. S. 4 also would
require typing of resources, including the identification of minimal capabilities of an
asset or resource. The bill also would require a national standard for typing resources
and integration of this standard into the National Response Plan.
Comments. H.R. 1 would enhance the design and implementation of a
national exercise to test NIMS, the NRP, and mutual assistance compacts. S. 4 does
not refer to exercise design or implementation but addresses individual-level training
and credentialing of functions within the ICS model. Both H.R. 1 and S. 4 would
expand the responsibilities of the FEMA Regional Administrator to assist state, local,
and tribal governments in identifying locations for a unified incident command
system. S. 4 would replace language in the Post-Katrina Emergency Reform Act of
2006 pertaining to credentialing and typing with more specific language that
addresses the implementation of standards. H.R. 1 does not refer to credentialing or
typing under Title III.
Title IV: Strengthening Aviation Security
Prepared by Bart Elias, Specialist in Aviation Safety, Security, and Technology,
CRS Resources, Science, and Industry Division, 7-7771.
Overview
Both the House and the Senate bills include several provisions intended to
strengthen or improve aviation security. In addition to reauthorizing such sums as
may be necessary for the TSA to carry out aviation security functions, provisions in
both the House and Senate bills: address air cargo security, with specific emphasis
on cargo placed on passenger aircraft; propose continued investment for in-line
baggage screening equipment; address the detection of explosives at passenger
screening checkpoints; propose changes to implementing the advanced passenger
prescreening system and modifications to passenger appeal and redress procedures;
and seek to modify the TSA’s personnel management system in a manner that would
extend collective bargaining and other rights to federal airport screeners. In addition
to above mentioned issues addressed in both the House and the Senate bills, the
Senate bill contains several additional provisions addressing: TSA screener staffing
levels, training, and retention; airport exit lane staffing; general aviation security;
repair station security; credentialing of airline crews and law enforcement personnel;
and expansion of the national explosives detection canine team program. Specific
provisions of the House and Senate bills are discussed in further detail below.
House Provisions. The House bill contains specific provisions addressing
the reauthorization of appropriations for aviation security activities; baggage
screening; passenger checkpoint screening; air cargo security; airline passenger
prescreening; and TSA personnel management.
Reauthorization of Appropriations. The House bill seeks to extend the
authorization of such sums as may be necessary for core TSA aviation security
functions through FY2011 (see Section 405). This authorization expired at the end
of FY2006.
Baggage Screening. The bill seeks to extend authorization of the Aviation
Security Capital Fund, set to expire at the end of FY2007, through FY2011 (see
Section 402). The Aviation Security Capital Fund serves as a vehicle for funding
airport capital improvements to accommodate and install explosives detection
equipment (EDS), particularly in-line baggage screening systems that are integrated
into baggage handling conveyors. Additionally, Section 401 of the bill would require
the DHS to submit a report to the congressional homeland security oversight
committees within 30 days describing the study on cost sharing formulas and
innovative financing for funding in-line EDS installation that was called for as part
of the FY2006 budget process in the Intelligence Reform and Terrorism Prevention
Act (P.L. 108-458).
Passenger Checkpoint Screening. The House bill contains two specific
provisions addressing passenger checkpoint screening. Section 403 of the bill would
establish a “Checkpoint Screening Security Fund” modeled after the Aviation
Security Capital Fund. The provision would require that, in FY2008, after the initial
$250 million in passenger fees is deposited into the Aviation Security Capital Fund,
the next $250 million collected would be deposited into the newly established
Checkpoint Screening Security Fund. Those amounts deposited into the fund would
be available for research, development, deployment, and installation of equipment
to improve the detection of explosives at passenger checkpoints. Further, Section
404 of the bill would require the TSA to submit the strategic plan for deployment and
use of explosive detection equipment at airport screening checkpoints, that was
required by March 2005 under a provision in the Intelligence Reform and Terrorism
Prevention Act (P.L. 108-458), within seven days of enactment.
Air Cargo Security. The House bill contains language (see Section 406) that
would phase in a requirement to physically inspect 100% of cargo placed on
passenger airliners by the end of FY2009. The language would require the screening
of 35% of such cargo by the end of FY2007, and 65% by the end of FY2008, and that
all such cargo be screened by the end of FY2009. The provision further allows for
an interim final rule to be adopted — without regard to the provisions of the
Administrative Procedure Act (APA)2 — for up to one year to implement cargo
screening. After one year, TSA must issue, in accordance with the statutory
requirements of the APA, a superceding final rule. The provision would require the
TSA to submit a report to Congress within one year of enactment describing the
system developed to meet this mandate. The bill would also require the DHS to
submit to the homeland security oversight committees, and also to the GAO, a report
identifying and assessing any exemptions to these cargo inspection requirements
detailing: the rationale for each exemption; the percentage of cargo not screened as
a result of the exemption; the impact on aviation security; the projected impact on air
commerce if the exemption was not granted or was eliminated; and any plans and
rationale for maintaining, changing, or eliminating each exemption. Within 120 days
after receiving this report, the GAO would be required to review and report to
Congress assessing the DHS methodology for handling exemptions. See CRS Report
RL32022, Air Cargo Security, by Bart Elias.
Airline Passenger Prescreening. Section 409 of the bill would require the
DHS to submit a strategic plan to Congress within 90 days of enactment describing
the system to be deployed that would enable the DHS to assume the function of
checking passenger data to the automatic selectee and no fly lists, utilizing records
contained in the consolidated and integrated terrorist watchlist maintained by the
Federal Government. The report would be required to include a projected timeline
for testing and implementing the system; an explanation of how the system would be
integrated with the passenger prescreening system in place for international flights;
and a description of how the system complies with statutes pertaining to records
maintained on individuals detailed in the Privacy Act (5 U.S.C. Section 552a).
Further, Section 407 of the bill seeks to establish a timely and fair appeal and redress
process for individuals who perceive that they were wrongly identified by the
prescreening process resulting in delayed or denied boarding. The provision would
2 Presumably, though it is not specifically stated in the bill, the interim rule could be issued
without public participation (“notice and comment”) or other procedural protections and
guideline required of administrative agencies pursuant to the APA.
establish a DHS Office of Appeals and Redress and would authorize this office to
maintain records of misidentified individuals. The bill would require the office to
use these records to: authenticate the identity of such individuals; and provide this
information to the TSA, CBP, and any other appropriate DHS entities for the purpose
of improving passenger prescreening and reducing false positives. See CRS Report
RL33645, Terrorist Watchlist Checks and Air Passenger Prescreening, by William
J. Krouse and Bart Elias.
TSA Personnel Management. Section 408 of the House bill would repeal
authority granted to the TSA Administrator to establish a screener personnel system for
employing, appointing, disciplining, terminating, and fixing the compensation, terms, and
conditions of employment for screener personnel (also known as Transportation Security
Officers or TSOs). The bill would instead require the TSA to implement a uniform
personnel system that would “... provide for the uniform treatment of all TSA employees
...” The bill would require the TSA to implement this new personnel management
system within 90 days of enactment. Further, the bill would require the TSA to provide
a report to the congressional homeland security oversight committees and to the GAO
detailing changes made to the TSA pay system. The provision specifies that the uniform
personnel system for all TSA employees, including screeners, must conform to the
structure of either the existing TSA personnel system for non-screener personnel or the
DHS human resources management system established under Chapter 97 of Title 5 of
the United States Code.3
Senate Provisions. The Senate bill includes alternative language to the
House bill regarding reauthorization of appropriations, baggage screening, and air
cargo screening. The Senate bill parallels language in the House regarding passenger
checkpoint screening, airline passenger prescreening, and TSA personnel
management reform. Additionally, the Senate bill includes numerous miscellaneous
provisions related to aviation security for which there is no comparable language in
the House bill.
Reauthorization of Appropriations. Whereas the House bill would extend
authorization of the TSA’s aviation security functions through FY2011, the Senate
bill would authorize these functions through FY2009. The Senate bill would also
extend authorization of $50 million annually through FY2009 to accelerate research
and development efforts, and broaden the scope to include technologies that may
enhance transportation security, not just aviation security. The House bill contains
no comparable provision.
Baggage Screening. The Senate bill would re-authorize the Aviation
Security Capital Fund at a level of $250 million annually through FY2028 (see
Section 1466). The Senate bill would change the funding allocation to provide $200
million of these funds to airports with letters of intent, and the remaining $50 million
3 At present, the TSA non-screener personnel are covered under a personnel or human
resources management system that is separate from the DHS personnel management system
established under 5 U.S.C. §9701. As prescribed in Section 114(n) of Title 49 U.S.C., TSA
non-screener personnel are covered under the Federal Aviation Administration (FAA)
personnel system described in 49 U.S.C. §40122.
in discretionary grants, with priority given to small hub and non-hub airports. The
Senate bill would also extend authorization of the discretionary appropriations for
airport security improvements for baggage screening through 2009, and increase the
authorized funding level from $250 million to $450 million in FY2008 and FY2009
(see Section 1465).
Passenger Checkpoint Screening. Like the House bill, the Senate bill
contains a provision (Section 1470) that would require the DHS to submit the
strategic plan for passenger checkpoint explosives detection, but would allow 90 days
after enactment, instead of seven days, for the plan to be submitted. Further, the
Senate bill (see Section 1479) would require the TSA to conduct a pilot program to
identify technology solutions capable of reducing the number of TSA employees
deployed to monitor airport exit lanes. Within one year after implementation of the
pilot program, the TSA is to submit a final report to appropriate congressional
committees describing the security measures deployed, the projected costs savings,
and the efficacy of the program and its applicability to other airports.
Air Cargo Security. In contrast to the House bill, which would mandate
the Senate bill offers an alternative that would require the TSA to establish a system
to screen4 all cargo transported on passenger airliners within three years (see Section
1462). The provision would require a minimum set of standards for cargo screening
technologies, equipment, and personnel to provide a level of security comparable to
the level of security in effect for passenger checked baggage. Like the House bill, the
Senate bill allows for the promulgation of an interim rule, which may be issued
without compliance with the APA, for up to one year. The bill also requires that a
superceding final rule, issued in compliance with the APA, be promulgated after one
year. The Senate bill also contains language regarding assessment of exemptions to
these requirements that is identical to the language in the House bill. The Senate also
includes a provision (Section 1463) with no comparable language in the House bill
that would require the TSA to evaluate the results of the ongoing blast-resistant
container pilot program by January 1, 2008, and based on that evaluation, begin
acquisition of blast-resistant containers to meet the needs specified in the TSA’s
cargo security program. The TSA would also be required to implement a program
to make such containers available to passenger airliners and provide for their storage,
maintenance, and distribution. Further, the Senate includes language (Section 1464)
authorizing such sums as may be necessary for FY2008, to remain available until
expended, for technology research and development and pilot projects “that can
disrupt or prevent an explosive device from being introduced onto a passenger plane
or from damaging a passenger plane....” While this scope is broadly defined, the
provision specifically identifies blast-resistant cargo containers as a candidate
technology that shall be included in research, development, and pilot projects. The
language further calls for testing of technologies to expedite the analysis and
determination of aircraft accident causes, such as deployable flight data and voice
4 The term “screen” or “screening” with regard to air cargo placed on passenger aircraft has
generally been interpreted by the TSA and the air cargo industry to include risk-based
assessment processes, such as the known shipper program, and does not necessarily require
physical inspection (see 49 U.S.C. §44901(a)).
recorders, and remote location recording devices. The House bill contains no
comparable provision.
Airline Passenger Prescreening. The Senate bill contains language (see
Section 1471) establishing an appeal and redress process for airline passengers
wrongly delayed or denied boarding that is identical to the provision in the House bill
(Section 407). Also the Senate bill contains language (Section 1472) similar to the
House provision that would require the DHS to submit a strategic plan to test and
implement advanced passenger prescreening. The Senate provision would, however,
allow for 180 days after enactment for receipt of the plan, compared to the House
language which calls for the plan to be submitted within 90 days. The Senate bill
also contains additional language not included in the House bill that would require
a GAO assessment of: the TSA’s progress in implementing the Secure Flight
program, the current appeals process for aggrieved passengers; the TSA’s plan to
protect passenger information, and its progress in integrating domestic passenger
prescreening with international passenger prescreening carried out by CBP; a realistic
time frame for system completion; and any other relevant observations and
recommendations.
TSA Personnel Management. Section 903 of the Senate bill contains
language similar to the House Provisions on TSA personnel management reform.
Like the House provision, the Senate bill would eliminate the TSA Administrators
authority to establish a separate personnel management system for screeners and
place all TSA employees under the same personnel management system. Like the
House bill, the Senate bill would require the uniform personnel management system
for all TSA employees to conform to either the existing personnel management
system for non-screeners, or the DHS personnel management system. The Senate bill
includes implementation time frames and reporting requirements for implementation
of the uniform personnel management system for TSA employees that are identical
to those in the House bill. Section 904 of the Senate bill would grant to screener
personnel the right to appeal adverse actions, would require TSA to provide a
collaborative employee engagement system, including collective bargaining (subject
to certain limits relating to emergencies and other matters), and would extend
whistleblower protections to screener personnel.
The Senate bill also contains a provision (see Section 1468) that would
eliminate any statutory cap on the number of TSA employees, such as the 45,000
FTE screener cap found in appropriations language, after FY2007. The bill would
require the TSA to recruit and hire personnel to provide appropriate levels of aviation
security and achieve average passenger checkpoint wait times of less than 10
minutes. The House bill contains no comparable provision. Also, the Senate bill
contains language requiring the TSA to provide screeners with advanced training on
specialized skills such as behavioral observation techniques, explosives detection,
and document inspection, to enhance layered security measures (see Section 1469).
The House bill contained no comparable provision.
Miscellaneous Provisions Not in the House Bill. The Senate bill
includes several aviation security-related provisions for which there are no
comparable provisions in the House bill, addressing foreign repair stations, general
aviation security, airline crew and law enforcement credentials, and canine explosives
detection team training.
Foreign Aviation Repair Station Security. Section 1473 of the Senate bill
would require the FAA to suspend further certification of foreign aircraft repair
stations if security regulations for domestic and foreign repair stations, that were
required to be issued in early 2004 under a provision in Vision 100 — the Century
of Aviation Reauthorization Act (P.L. 108-176), are not issued by the TSA within 90
days of enactment.
General Aviation Security. Section 1474 of the Senate bill would require
the TSA to develop and implement a standardized threat and vulnerability assessment
program for general aviation airports within one year of enactment. The provision
would also direct the TSA to assess the feasibility of creating a grant program to
provide grants to general aviation airports to upgrade security based on a risk
managed approach. The language directs the TSA to establish such a grant program
if it is deemed feasible and authorizes such sums as may be necessary for this
purpose. Further, the provision would require all foreign-registered general aviation
aircraft to submit passenger information to CBP prior to entering United States
airspace for vetting against appropriate databases maintained by the TSA. See CRS
Report RL33194, Securing General Aviation, by Bart Elias.
Airline Crew and Law Enforcement Credentials. Section 1475 of the
Senate bill would require the TSA to produce a report detailing its efforts to
implement a sterile area access system or other methods to expedite processing of
airline flight and cabin crew members through airport screening checkpoints. Based
on the findings of the report, the TSA shall implement such a program within one
year of transmitting the report to Congress. Also, Section 1477 of the Senate bill
would amend current statutes regarding implementation of a biometric credential
system for law enforcement personnel seeking access to aircraft and secured areas of
airports. The provision calls for establishing a national registered armed law
enforcement program for law enforcement officers (LEOs) required to be armed
while traveling on commercial flights. The provision stipulates that the credential
program incorporate biometric and other applicable technologies, provide flexibility
for LEOs who must travel armed either on a regular or temporary basis; be
coordinated with other uniform credentialing initiatives and directives; be applicable
to all federal, state, local, tribal and territorial law enforcement agencies; and include
a process for discreetly verifying the identity of LEOs traveling using biometric
technology. In establishing the program, the DHS is to ensure that only those LEOs
required to travel armed are issued credentials; that the anonymity of armed LEOs is
preserved; that procedures are established to address failures to enroll, false positives,
and false negatives; and that procedures are established to invalidate credentials that
are lost, stolen, or no longer authorized for use.
Canine Explosives Detection Team Training. Section 1476 of the
Senate bill would require the DHS to increase the capacity of the DHS National
Explosives Detection Canine Team Program at Lackland Air Force Base, Texas to
a level of 200 canine teams annually by the end of FY2008. The provision directs
the DHS to further expand the facility so that, by the end of CY2009, it can train an
adequate number of canine teams to meet the homeland security mission, as
determined by the Secretary on an annual basis. The bill also directs the DHS to
explore alternate training sites, considering options to establish a standardized TSA-
approved canine program for private training vendors and options to establish two
additional national canine training centers modeled after the Lackland AFB Center
of Excellence.
Comments. The similar provisions in the House and Senate bills regarding
TSA personnel management are highly controversial and opposed by the
administration. The White House OMB has issued statements of administration
policy on both bills, indicating that if the bill presented to the President includes such
provisions, the President’s senior advisors would recommend that he veto the bill.
The administration argues that elimination of the TSA Administrator’s flexibility in
personnel management could hinder the TSA’s ability to quickly and effectively
respond to rapidly changing security threats. Collective bargaining processes in
particular, they argue, could significantly slow the TSA’s ability to change security
posture in response to threats, including the rapid reassignment of personnel and
other actions that may be subject to review under collective bargaining agreements
if the current personnel system were eliminated.
The Administration also opposes the House provisions that would require 100%
screening of all cargo placed on passenger aircraft, cautioning that such a measure
would likely result in a reduction of shipping cargo via passenger aircraft. The
Administration urged the House to adopt an alternative, risk-based approach. Such
an approach is reflected in the Senate language, which the Administration and the air
cargo industry favor over the House language.5 Air cargo industry stakeholders,
however, remain concerned about the ability to meet the three-year time frame for
implementation of a cargo screening system specified in the Senate bill. They also
caution that requiring such a system meet the minimum standard specified in the
Senate bill — requiring the proposed cargo screening system to provide comparable
security to existing checked baggage screening — fails to adequately consider the
differences between cargo and baggage and the unique operational challenges of air6
cargo handling and supply chain logistics. Also, the Administration and industry
groups do not support the Senate provision calling for deployment of blast-resistant
cargo containers for use on passenger airliners, arguing that this would impose
significant costs on the TSA; that many aircraft are not currently configured to
support these containers; and that utilizing such containers is contradictory to current
security measures to keep elevated risk cargo off of passenger aircraft.
The Administration also opposes reauthorization of the Aviation Security
Capital Fund and the proposed establishment of a separate $250 million Checkpoint
Screening Security Fund as called for in the House bill. While the Administration
supports the security enhancements anticipated by these initiatives, its concerns over
use of these specific funds center on the lack of fungibility of monies paid into these
funds, which it claims may strain TSA operating budgets and limit flexibility in the
budget process. Also, in the case of the Aviation Security Capital Fund, the
Administration has raised concerns over the federal share of airport security
construction costs and would like to see a greater proportion of this cost shifted to
airport operators.
5 See Airforwarders Association position statement at [http://www.airforwarders.org/
airmails/020707.html] and industry letter to Senator Inouye dated Feb. 9, 2007, at
[http://www.aeanet.org/ Gove rnme nt Affairs/gakm_CoalitionSenateBill LetterInouye
Feb07.asp].
6 Ibid.
Title V: Strengthening the Security
of Cargo Containers
Prepared by Jennifer E. Lake, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0620.
Overview
Both H.R. 1 and S. 4 contain provisions that pertain to maritime cargo container
security. Congress enacted the SAFE Port Act (P.L. 109-347), on October 13, 2006,
which contained several related provisions. Section 204. of P.L. 109-347 requires
the Secretary of the Department of Homeland Security (DHS) to: initiate a
rulemaking within 90 days of enactment; issue an interim final rule within 180 days
of enactment, establishing minimum standards for securing containers in transit to
the United States; and to enforce those standards for all U.S.-bound containers within
two years of the final rulemaking; regularly review and enhance the standards.
Section 204 also requires the DHS Secretary to ensure that these standards are
consistent with standards published by international organizations.
Section 231(c) of P.L. 109-347 requires the DHS Secretary to implement a fully
operational integrated scanning system (ISS) pilot program at three overseas ports
within one year of enactment. Section 231(d) of P.L. 109-347 also requires the DHS
Secretary to submit a report, within 180 days of achieving a full scale implementation
of the pilot, evaluating the pilot program and analyzing the feasibility of expanding
the ISS to other ports. Section 232(a) of P.L. 109-347 requires the DHS Secretary
to implement 100% screening of containers and 100% scanning of all high-risk
containers (before they leave the United States seaport). P.L. 109-347 defines a
screen as the visual or automated review of manifest or entry documentation
accompanying a shipment to determine the presence of misdeclared, restricted, or
prohibited items, and to assess the level of threat posed by such cargo. P.L. 109-347
defines a scan as utilizing non-intrusive imaging equipment, radiation detection
equipment, or both, to capture data, including images of a container. Section 232(b)
requires the DHS Secretary, in coordination with the Secretary of Energy and foreign
partners, to fully deploy the ISS (non-intrusive image and radiation scan) as soon as
possible once specific operational criteria are met, to scan all U.S.-bound containers
before they reach the U.S. Section 232(c) of P.L. 109-347 requires the DHS
Secretary to submit a report, within six months of submitting the initial evaluation
of the ISS pilot program required by Section 231, and every six months thereafter,
detailing the status of the full-scale deployment of the integrated scanning system and
the costs of deploying the system at each foreign port where it is deployed.
House Provisions. Section 501(a) of H.R. 1 would amend 46 U.S.C. 70116
to require the Secretary to establish standards for scanning equipment and seals to be
used on containers entering the United States and would require all U.S.-bound
containers to be scanned and sealed according to those standards before the container
is loaded on a U.S.-bound ship. H.R. 1 would require the standards ensure that the
best-available technology be used, as soon as it is available, to identify when a
container is breached, notify the Secretary of the breach, and track the time and
location of the container while en route to the United States. H.R. 1 would require
the Secretary to review and revise these standards at least once every two years.
Section 501(b) of H.R. 1 would authorize such appropriations as necessary for
FY2008-FY2013.
Section 501(c)(1)(A) of H.R. 1 would require the Secretary to issue an interim
final rule temporarily implementing Section 501(a) (consistent with the lessons
learned from the ISS pilot program) within 180 days after the date of the submission
of the report required by Section 231(d) of P.L. 109-347 that evaluates the integrated
scanning system pilot program. Section 501(c)(1)(B) of H.R. 1 would require the
Secretary to publish a final rule within one year of the submission of the evaluation
report required by Section 231(d) of P.L. 109-347.
Section 501(c)(2)(A) of H.R. 1 would require the scanning and sealing
requirements of Section 501(a) of H.R. 1 to apply to any container entering the U.S.
beginning three years after enactment for U.S.-bound containers loaded on a vessel
at a foreign port in a country from which more than 75,000 twenty-foot equivalent
units of U.S.-bound containers were loaded in 2005; and beginning five years after
enactment for U.S.-bound containers loaded in all other countries. Section
501(c)(2)(B) would permit the DHS Secretary to extend these deadlines by up to one
year if the required scanning equipment is not available and the Secretary notifies
Congress within at least 60 days of his decision.
Senate Provisions. Section 905 of S. 4 would amend the reporting
requirements set forth in Section 232(c) of the SAFE Port Act (P.L. 109-347), to
include a plan for 100% scanning of cargo containers. The provision would require
the plan to include (1) specific benchmarks for the percentage of U.S.-bound cargo
containers scanned at a foreign port; (2) annual increases in these benchmarks until
100% of U.S.-bound cargo containers are scanned before arriving in the United
States, unless the DHS Secretary explains in writing to Congress that the criteria set
out in Section 232(b) of P.L. 109-347 have not been met; (3) an analysis of how
existing programs such as the Container Security Initiative and the Customs-Trade
Partnership Against Terrorism could be used to achieve the benchmarks; and (4) an
analysis of the scanning equipment, personnel, and technology needed to reach the
100% scanning goal. Section 905 would also require each subsequent report (to be
submitted every six months after the initial report) to include an assessment of
progress made towards implementing 100% scanning.
Comment. To summarize, both H.R. 1 and S. 4 would require the DHS
Secretary to take steps that could eventually lead to the application of some security
standards and/or procedures being applied to 100% of U.S.-bound maritime
containers. H.R. 1 would accomplish this by requiring all U.S.-bound containers to
be scanned and sealed with equipment meeting standards to be specified by the DHS
Secretary after the completion of the integrated scanning system (ISS) pilot
established by the SAFE Port Act. S. 4 would amend the ISS pilot reporting
requirements specified by the SAFE Port Act to include a plan to eventually scan
The provisions in both bills refer to the ISS pilot that is currently being
undertaken by DHS as the first iteration of the Secure Freight Initiative (SFI). SFI
is being operated by U.S. Customs and Border Protection (CBP) in six foreign ports.
SFI at Port Qasim, Pakistan; Puerto Cortes, Honduras; and at Southampton in the
United Kingdom will be fully operational, scanning all U.S.-bound containers from
these ports. SFI will gradually be deployed in more limited capacities at Port Salaleh,
Oman; the Port of Singapore; and at the Port of Busan, South Korea. Five of the
foreign ports selected for the SFI pilot are currently Container Security Initiative
(CSI) ports (all except Port Qasim, Pakistan). CSI is a program by which CBP
stations CBP officers in foreign ports to target high-risk containers for inspection
before they are loaded on U.S.-bound ships. CSI is operational in 50 ports as of
October 2006, and container traffic through these 50 ports accounted for nearly 82%
of all U.S.-bound containers.7
Subjecting all U.S.-bound containers to an integrated scan (an image and a
radiation scan) prior to loading would represent a significant departure from the
current strategy of scanning or inspecting only those targeted containers identified
as high-risk. Currently, under the CSI program, only those containers that are
identified through screening as high-risk are subject to scanning or inspection prior
to loading. U.S.-bound containers loaded at non-CSI ports are screened, but are not
scanned or searched until they reach the U.S. port. CBP officers stationed at CSI
ports do not have authority to conduct inspections, and so the host-country
government is responsible for conducting the inspection. The host country
government is also responsible for providing the equipment and space required to
conduct the scans and inspections; and the host country determines who pays for the
equipment. It is currently unclear what impact the shift from scanning none or some
containers at particular overseas ports to scanning all containers would have on CBP
and host country resources. The execution of the ISS pilot under the SFI will likely
provide some concrete idea of how increased levels of scanning and inspection would
affect the deployment of resources and the flow of trade through the selected ports.
Container carriers and importers claim that requiring 100% scanning will
severely bottleneck port operations. Other opponents of 100% scanning contend that
the process could be easily circumvented by terrorists and would absorb security
resources away from other maritime threats. Advocates of 100% scanning assert that
the information and intelligence that CBP reviews to screen and target specific
containers for scanning and inspection is simply not adequate, thus requiring that
every container be scanned.
7 Department of Homeland Security, U.S. Customs, and Border Protection FY2008
Overview Congressional Budget Justification, p. CBP-26.
Title VI: Strengthening Efforts
to Prevent Terrorist Travel (H.R. 1)
Overview
Title VI of H.R. 1 and Title V of S. 4 deal with programs within the Department
of Homeland Security (DHS) that relate to the movement of terrorists.
Strengthening the Capabilities of the Human Smuggling
and Trafficking Center
Prepared by Alison Siskin, Specialist in Immigration Legislation, CRS Domestic
Social Policy Division, 7-0260.
Overview
Established by Congress in the Intelligence Reform and Terrorist Prevention Act
of 2004 (P.L. 108-458, Section 7202), the Human Smuggling and Trafficking Center
(HSTC) is an interagency group — including the Departments of Justice, State, and
Homeland Security — which provides information to counter migrant smuggling,
trafficking of persons, and clandestine terrorist travel. The center’s three primary
objectives are (1) prevention and deterrence of smuggling and related trafficking
activities, (2) investigation and prosecution of the criminals involved in such activity,
and (3) protection of and assistance for victims as provided in applicable law and
policy. The center’s efforts consist primarily of facilitating the dissemination of
intelligence; preparing strategic assessments; identifying issues that would benefit
from enhanced interagency coordination; and coordinating or otherwise supporting
agency or interagency efforts.
During its two year existence, the HSTC has had issues with cooperation
between the different agencies and departments, relating to funding, staffing, and
information sharing.8
House Provisions. Section 601 would require the Secretary of DHS, acting
through DHS’ Immigration and Customs Enforcement (ICE), to provide
administrative support and funding for the Human Smuggling and Trafficking Center
(HSTC). H.R. 1 would also allow DHS to seek reimbursement from the Departments
of State and Justice in such amounts as are appropriate to their participation in the
HSTC. In addition, H.R. 1 would mandate the hiring of not less than 30 full-time
equivalent staff for the HSTC, and would specify the type of staff to be hired (e.g.,
a director, 15 intelligence analysts or special agents), and that the staff must have at
least three years of experience related to human trafficking or smuggling. H.R. 1
would require the intelligence analysts or special agents to be detailed to the HSTC
for not less than two years. H.R. 1 would also require the Secretary of DHS to
8 U.S. Congress, House Committee on Homeland Security, Subcommittee on Management,
Integration, and Oversight, 9/11 Reform Act: Examining the Implementation of the Humanthnd
Smuggling and Trafficking Center, hearings, 109 Cong., 2 sess., Mar. 8, 2006.
develop a plan for HSTC and execute a Memorandum of Understanding (MOU) with
the Attorney General clarifying the cooperation and coordination between the Federal
Bureau of Investigation and the Department of Homeland Security’s (DHS)
Immigration and Customs Enforcement regarding issues related to human smuggling
and trafficking. Lastly, H.R. 1 would require that DHS’ Office of Intelligence and
Analysis, in coordination with the HSTC, submit to federal, state, local, tribal law
enforcement, and other relevant agencies periodic reports regarding terrorist threats
related to human smuggling and trafficking, and terrorist travel.
Senate Provisions. Section 502 would also require that the DHS provide
administrative support and funding for the HSTC, but unlike the House bill, S. 4
would require the Secretary of DHS, to the extent that such funds are made available,
to reimburse each department or agency that provides a detailee to the HSTC for the
cost of the detailee. In addition, S. 4 would mandate the hiring of not less than 40
full-time equivalent staff for the HSTC, and would specify the agencies and
departments from which the personnel should be detailed (e.g., Transportation and
Security Administration, United States Coast Guard, ICE, Central Intelligence
Agency), and their areas of expertise (e.g., consular affairs, counterterrorism). S. 4
would also require the President to submit a report to Congress within 180 days of
enactment on the operations and activities of the HSTC. The report would include
among other items information on the roles and responsibilities of each agency and
department participating in the HSTC, staffing levels, and information sharing
mechanisms. S. 4 would authorize appropriations of $20 million for the HSTC in
FY2008.
Modernization of the Visa Waiver Program
Prepared by Alison Siskin, Specialist in Immigration Legislation, CRS Domestic
Social Policy Division, 7-0260.
Overview
The Visa Waiver Program (VWP) allows nationals from countries that meet
certain criteria to enter the United States as temporary visitors (nonimmigrants) for
business or pleasure without first obtaining a visa from a U.S. consulate abroad. To
qualify for the VWP, the Immigration and Nationality Act specifies that a country
must: offer reciprocal privileges to U.S. citizens; have had a nonimmigrant refusal
rate of less than 3% for the previous year or an average of no more than 2% over the
past two fiscal years with neither year going above 2.5%; issue its nationals
machine-readable passports that incorporate biometric identifiers; certify that it is
developing a program to issue tamper-resistent, machine-readable visa documents
that incorporate biometric identifiers which are verifiable at the country’s port of
entry; and not compromise the law enforcement or security interests of the United
States by its inclusion in the program. Countries can be terminated from the VWP if
an emergency occurs that threatens United States’ security interests.9
9 For more information on the VWP and the VWP provision in S. 4, see CRS Report
RL32221, Visa Waiver Program, by Alison Siskin.
House Provisions. No comparable provision.
Senate Provisions. Section 501 would allow the Secretary of DHS, in
consultation with the Secretary of the Department of State (DOS), to waive the
nonimmigrant refusal rate requirement for admission to the VWP on the date on
which the Secretary of DHS certifies to Congress that an air exit system is in place
that can verify the departure of not less than 97% of foreign nationals that exit
through U.S. airports. In order for the Secretary of DHS to waive the nonimmigrant
refusal rate requirement for admission to the VWP, the country would have to meet
other specified criteria.
S. 4 would also make several changes to the criteria to qualify as a VWP
country, including authorizing the development and implementation of an electronic
travel authorization system, through which each alien traveling under the VWP
would electronically provide, in advance of travel, biographical information
necessary to determine whether the alien is eligible to travel to the United States. S.
4 would also require the Secretary of DHS, no later than one year after enactment, to
establish an exit system that records the departure of every alien who entered under
the VWP and left the United States by air. Furthermore, under S. 4, to participate in
the VWP, countries would be required to enter into agreements with the United
States to: (1) report or make available through Interpol information about the theft
or loss of passports; and (2) share information regarding whether a national of that
country traveling to the United States represents a threat to U.S. security or welfare.
Comment. Under this provision, in order for the Secretary of DHS to be able
to waive the nonimmigrant refusal rate requirement and the provision to take effect,
an air exit system must be in place that can verify the departure of not less than 97%
of foreign nationals that exit through U.S. airports. To date, DHS has piloted the exit
component of the biometric entry and exit system, commonly known as the U.S.
Visitor and Immigrant Status Indicator Technology (US-VISIT) program, at 12
airports. However, GAO has reported that these pilot programs concluded in May
of 2005, and that while they established the technical feasibility of the biometric exit
component, they also “identified issues that limited the operational effectiveness of10
the solution, such as the lack of traveler compliance with the processes.” In its
FY2008 budget submission, DHS requested a decrease in funding for pilot programs
for the exit component of the system, instead requesting an increase in funding for
the deployment of 10 fingerprint enrollment program at entry.11
10 Testimony of Richard Stana, Government Accountability Office, US-VISIT Program
Faces Operational, Technological, and Management Challenges, before the Committee onthst
Homeland Security, 110 Cong., 1 sess., Mar. 20, 2007, pp. 12-13.
11 U.S. Department of Homeland Security, DHS FY2008 Congressional Budget Justification,
p. US-VISIT 3.
Enhancing Terrorist Travel Programs
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
Overview
Currently, the Intelligence Reform and Terrorism Prevention Act (P.L. 108-458
Section 7215) directs DHS to establish, in consultation with the Director of the
National Counterterrorism Center, a program to oversee the implementation of
terrorist travel initiatives at DHS. This program should also provide for the analysis,
coordination, and dissemination of terrorist intelligence and operational information
within DHS and between DHS and other federal agencies.
House Provisions. Section 611 would require DHS, in conjunction with the
Director of National Intelligence and the heads of other appropriate federal agencies,
to submit a report outlining the efforts that the United States government has
undertaken to collaborate with international partners to increase border security,
enhance document security, and exchange information concerning terrorists. The
report would be due within 270 days of H.R. 1's enactment, and would include a
summation of all the existing government programs and strategies concerning these
efforts and the progress made in achieving their stated goals.
Senate Provisions. Section 503 would direct DHS to designate an individual
to head the terrorism travel center established by P.L. 108-458 Section 7215. This
individual would report directly to the Secretary of DHS and would be charged with
developing and reviewing the strategies and policies put in place within DHS to
prevent terrorists from entering or remaining undetected in the United States. The
head of the program would also be charged with coordinating policies, programs,
planning, operations, and the dissemination of intelligence among the various entities
within DHS and with external stakeholders. Additionally, this individual will serve
as the Secretary’s primary point of contact with the National Counterterrorism
Center. Lastly, DHS would be required to report on its implementation of this
section within 180 days of enactment.
Comments. H.R. 1 would not make changes to DHS’ terrorist travel program;
instead, it would require a report on how DHS and other federal agencies are
cooperating with foreign partners on the issue of terrorist travel. S. 4 would modify
the existing program by designating an individual within DHS to coordinate the
program established by P.L. 108-458 Section 7215.
Biometric Entry and Exit System
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
Overview
The biometric entry and exit system is commonly known as the U.S. Visitor and
Immigrant Status Indicator Technology (US-VISIT) program. Congress first
mandated that the former Immigration and Naturalization Service (INS) implement
an automated entry and exit data system that would track the arrival and departure of
every alien in Section 110 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA; P.L. 104-208). The objective for an automated
entry and exit data system was, in part, to develop a mechanism that would be able
to track nonimmigrants who overstayed their visas as part of a broader emphasis on
immigration control. Following the September 11, 2001 terrorist attacks there was
a marked shift in priority for implementing an automated entry and exit data system.
While the tracking of nonimmigrants who overstayed their visas remained an
important goal of the system, border security has become the paramount concern with
respect to implementing the system.
House Provisions. Section 621 would require DHS to submit the plan
previously developed by the Department regarding the biometric entry and exit
system’s deployment. This report would be due within seven days of enactment.
Senate Provisions. No comparable provisions.
Comments. The report in question was due in June of 2005 but has yet to be
delivered to Congress. In February, 2007, GAO reported that the US-VISIT strategic
plan was apparently formulated in March of 2005 but had yet to be approved by
DHS.12 In recent testimony before Congress, Bob Mocny, Acting Director of the US-
VISIT program, stated that this report would be made available to Congress soon but
declined to set a firm date for its submission.13
12 Testimony of Randolph Hite and Richard Stana, Government Accountability Office, US-
VISIT Has not Fully Met Expectations and Longstanding Management Challenges Need to
be Addressed, before the Committee on Appropriations, Subcommittee on Homelandthst
Security, 110 Cong., 1 sess., Feb. 16, 2007, p. 19. Hereafter referred to as GAO
Testimony, Feb. 2007.
13 U.S. Congress, House Committee on Appropriations, Subcommittee on Homeland
Security, Hearing on the US-VISIT Program, 110th Cong., 1st sess., Feb. 16, 2007.
Enhanced Driver’s License/Western Hemisphere
Travel Initiative
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
Overview
The Western Hemisphere Travel Initiative (WHTI) will require U.S. citizens,
and Canadian, Mexican, and some island nation nationals to present a passport, or
some other document or combination of documents deemed sufficient to denote
identity and citizenship status by the Secretary of Homeland Security, as per P.L.
108-458 Section 7209. DHS announced that it is requiring all U.S. citizens entering
the country at airports of entry (POE) to present passports as of January 23, 2007.
The current legislative mandate for expanding the program to all POE is the earlier
of the following two dates: June 1, 2009, or three months after the Secretaries of
Homeland Security and State certify that a number of implementation requirements
have been met.14 DHS and the Department of State are currently working on the type
of document, known as a PASS-Card, that will be used for this program.
House Provisions. No comparable provision.
Senate Provisions. Section 504 would require DHS to enter into a
memorandum of agreement with at least one state to pilot the use of enhanced
driver’s licenses that would be valid for a U.S. citizen’s admission into the United
States from Canada (but not otherwise valid for certification of citizenship). It would
also require DHS to submit a report within 180 days of enactment that would, among
other things: analyze this pilot program’s impact on national security, make
recommendations on how to expand the pilot program to other states, and plan for
scanning participants against terrorist watch lists.
Section 505 would require DHS to complete a cost-benefit analysis of the WHTI
and a study of mechanisms for reducing the fees associated with PASS-cards prior
to publishing a final rule on the program.
Comments. Both of these provisions in S. 4 seem to address concerns by
some in Congress that DHS and the Department of State have not made enough
progress towards developing the PASS-Card and disseminating information to the
public about the WHTI requirements. Section 505 would require DHS to study how
it could reduce the costs associated with getting a PASS-Card, while Section 504
might circumvent the need for some PASS-Cards by allowing the driver’s licences
used in the pilot program to be used to enter the country from Canada as per the
WHTI requirements.
14 P.L. 109-295 Section 546.
Model Ports of Entry
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
House Provision. No comparable provision.
Senate Provisions. Section 506 would require DHS to establish a “model
ports of entry” program aimed at streamlining the current arrival process for
incoming travelers, facilitating business and tourist travel, and improving security.
The program would be implemented at the 20 busiest international airports, and
would include enhanced queue management prior to primary inspection, assistance
for foreign travelers after their admission into the United States, and instructional
videos explaining the inspection process. Lastly, S. 4 would direct DHS to hire at
least 200 additional CBP officers to address staff shortages at the 20 busiest
international airports.
Title VII: Improving Intelligence and
Information Sharing with Local Law Enforcement
and First Responders
Prepared by Todd Masse, Specialist in Domestic Intelligence and
Counterterrorism, CRS Domestic Social Policy Division, 7-2393.
Overview
The two companion bills have two common subtitles (one each for the
Homeland Security Information Sharing Environment and Homeland Security
Information Sharing Partnerships) and a number of unique subtitles. Each of the
common subtitles do not necessarily contain identical language. Three subtitles
unique to H.R. 1 are: (1) the Fusion and Law Enforcement Education and Teaming
(FLEET) Grant Program, (2) the Border Intelligence Fusion Center Program, and (3)
the Homeland Security Intelligence Offices Reorganization. One subtitle, the
Interagency Threat Assessment Coordination Group, is unique to S. 4. A summary
of the common and unique subtitles follows:
!Fusion and Law Enforcement Education and Teaming (FLEET)
Grant Program (Unique to H.R. 1)
!Border Intelligence Fusion Center Program (Unique to H.R. 1)
!Homeland Security Information Sharing Environment (ISE)
!Homeland Security Information Sharing Partnerships
!Homeland Security Intelligence Offices Reorganization (Unique to
H.R. 1)
!Interagency Threat Assessment Coordination Group (Unique to S. 4)
Fusion and Law Enforcement Education
and Teaming (FLEET) Grant Program
House Provisions. Under this subtitle a provision is included which would
establish a grant program “... under which the Secretary of Homeland Security, in
consultation with the Attorney General, shall make grants to local and tribal law
enforcement agencies....” The proposed purposes for which these grants would be
used include (1) to hire (state or local) personnel or pay existing personnel, to
perform the duties of eligible personnel who are detailed to a fusion center,15 (2) to
provide appropriate training for eligible law enforcement personnel who are detailed
to a fusion center, and (3) to establish communications connectivity between eligible
15 According to the proposed legislation, “The terms State, local, or regional fusion center
mean a State intelligence center, or a regional intelligence center that is the product of a
collaborative effort of at least two qualifying agencies that provide resources, expertise, or
information to such center with the goals of maximizing the ability of such intelligence
center and the qualifying agencies participating in such intelligence center to provide and
produce homeland security information to detect, prevent, apprehend, and respond to
terrorist and criminal activity.” There are approximately 43 such fusion centers in operation
around the country according to the National Criminal Intelligence Resource Center.
law enforcement personnel who are detailed to a fusion center and the home agency
or department from which they are detailed.
Senate Provisions. No comparable provisions.
Comment. While the existence of fusion centers precedes the terrorist attacks
of September 11, 2001, it was not until the post attack period that the potential
counterterrorism utility of such centers was recognized. In general, these centers
have been established as initiatives of state and local governments, sometimes in
regional cooperative configurations. Historically, the centers have been financed by
participating state and local governments. Recently, the federal government has
provided support for these centers through: (1) provision of Fusion Center
Guidelines: Developing and Sharing Information and Intelligence in a New Era
(August 2006), and (2) the detailing of intelligence analysts and intelligence liaison
personnel from the Department of Homeland Security (DHS) and the Federal Bureau
of Investigation (FBI) to these centers.16 According to DHS, it has provided “... over
$380 million in support ...” of these centers.17 In Fiscal Year 2007, for the first time,
“hiring new staff and/or contractors to serve as intelligence analysts to support
information/intelligence fusion capabilities....” is allowable under certain
conditions.18
Border Intelligence Fusion Center Program
House Provisions. Under this subtitle a Border Intelligence Fusion Center
Program would be established “... for the purpose of stationing Bureau of Customs
and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE)19
officers or intelligence analysts in the fusion centers of participating border States.”
Furthermore, such personnel would assist state, local and tribal law enforcement in
16 According to information provided at the first annual National Fusion Center Conference,
held March 5-8, 2007, DHS currently has intelligence personnel deployed to 12 state, local,
and regional fusion centers and the FBI has deployed 192 personnel stationed at various
fusion centers.
17 See DHS Fact Sheet, Select Homeland Security Accomplishments for 2006, Dec. 29, 2006.
Available at [http://www.dhs.gov/xnews/releases/pr_1167404984182.shtm] and accessed
on Mar. 26, 2007.
18 These costs are allowable under both the Urban Area Security Initiative (UASI) and the
Law Enforcement Terrorism Prevention Program (LETPP) grant programs. In order to be
hired as an intelligence analyst, individuals must meet certain training and/or experience
criteria. In terms of sustainment costs, the DHS FY 2007 Homeland Security Grant
Program: Program Guidance and Application Kit states that “Costs associated with hiring
new intelligence analysts are allowable only for two years, after which the States and Urban
Areas shall be responsible for supporting the sustainment costs for those intelligence
analysts.” See FY 2007 Homeland Security Grant Program: Program Guidance and
Application Kit, p. 26.
19 A Border State Fusion Center is defined as “... a fusion center located in the State of
Washington, Idaho, Montana, North Dakota, Minnesota, Wisconsin, Michigan, Ohio,
Pennsylvania, New York, Vermont, New Hampshire, Maine, California, Arizona, New
Mexico, or Texas.”
jurisdictions along the northern and southern borders to “... overlay threat and
suspicious activity with Federal homeland security information in order to develop
a more comprehensive and accurate threat picture.” Funding proposed for this
measure would be “available to hire new CBP and ICE officers or intelligence
analysts to replace CBP and ICE officers and intelligence analysts who are stationed
at border State fusion centers....”
Senate Provisions. No comparable provisions.
Homeland Security Information Sharing Environment
Overview
Both bills include a subtitle on the homeland security information sharing
environment, although the provisions are not identical. Much of the responsibility
for the initiatives under the bills would be implemented either by the Secretary of
Homeland Security, or by the DHS Chief Intelligence Officer. As will be explained
below, H.R. 1 recommends that the existing position of Assistant Secretary for
Intelligence and Analysis be changed to an Under Secretary for Intelligence and
Analysis. S. 4 makes no such change and, therefore, refers to either the Secretary of
DHS and/or the Chief Intelligence Officer, sometimes in consultation with other
governmental officials, as being responsible for implementing the initiatives.
At the most aggregate level, the bills would require the Secretary of DHS to
“integrate and standardize the information of the intelligence components of the
Department into a Department information sharing environment....”20 Such an
integration would be administered by the Under Secretary for Intelligence and
Analysis (H.R. 1) or the Chief Intelligence Officer (S. 4). The two bills define a DHS
intelligence component similarly as “... any directorate, agency, or element of the
Department that gathers, receives, analyzes, produces, or disseminates homeland
security information....”
Furthermore, each of the bills would require the:
!Secretary (S. 4) or the Under Secretary for Intelligence and Analysis
(H.R. 1) to implement a Homeland Security Advisory System which
shall, among other functions, provide in each warning or alert
specific information and advice on “...appropriate protective
measures and countermeasures that may be taken in response” to the
threat or risk. Furthermore, the responsible DHS official shall,
“...whenever possible, limit the scope” of each advisory or warning
“to a specific region, locality, or economic sector believed to be at
risk.” Unique to H.R. 1 is a proposal which would stipulate that the
Under Secretary for Intelligence and Analysis “...shall not, in issuing
any advisory or alert, use color designations as the exclusive means
of specifying homeland security threat conditions.”
20 S. 4 excepts from this integration and standardization “... any internal protocols of such
intelligence components.”
!Department to designate information sharing and knowledge
management officers for each intelligence component with respect
to “... coordinating the different systems used in the Department to
gather and disseminate homeland security information.”
!Secretary to establish business processes to review and analyze
information gathered from state, local, and tribal government
officials and private sector sources. The Department would be
required to develop mechanisms to provide feedback on the utility
of such information to state, local, tribal and private sector officials.
!Training and evaluation of DHS employees to understand the definition
of homeland security information, how information available to them
as part of their duties might qualify as homeland security information,
and how such information available to them might be relevant to the
Department’s Office of Intelligence and Analysis (H.R. 1) or
intelligence components of the Department (S. 4).
Unique House Provisions. One proposal unique to H.R. 1 is the
requirement that the Secretary, acting through the Chief Intelligence Officer,
establish a comprehensive information technology network architecture for the Office
of Intelligence and Analysis. The bill would provide that “... to the extent possible
(the architecture) incorporate the approaches, features, and functions of the network
proposed by the Markle Foundation ... known as the System-wide Homeland Security
Analysis and Resource Exchange (SHARE) Network.”
Unique Senate Provisions. S. 4 proposes adding a category of information
that will be shared by DHS — weapons of mass destruction (WMD) information.
The bill defines WMD information as that “... which could reasonably be expected
to assist in the development, proliferation, or use of weapons of mass destruction ...
that could be used by a terrorist ... against the United States.” Moreover, the bill
proposes eliminating the existing two-year tenure for the ISE’s Program Manager by
making it permanent. S. 4's proposed language would amend Section 1016 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) to read
“The individual designated as the program manager shall serve as the program
manager until removed from service and replaced by the President....” S. 4 would
also authorize $30 million for each of fiscal years 2008 and 2009 for the ISE Program
Manager to hire “not more than 40 full-time employees to assist the program
manager” in numerous information sharing functions. In two other unique measures,
S. 4 would require the Secretary and Chief Intelligence Officer to (1) develop
intelligence training curriculum for State, local, and tribal officials, and (2) develop
financial and other incentives for employees to share information.
Comment: DHS Advisory System. With respect to the Homeland Security
Advisory System, the bills would provide greater congressional direction to the
Secretary in the administration of this program by responding to often-heard
criticisms directed at the system and the Department by first responders, State and
local law enforcement, and some private sector entities. The sections of the bills
would require the Department to provide advice regarding protective measures and
countermeasures. Some might question whether the Department has, in each
situation, a sufficient understanding of the “ground truth” or current risk profile in
order to recommend such measures. State and local authorities may be more familiar
with the resources they have at their disposal to take protective actions against any
potential threat. With regard to the geographic scope of warnings, the measures
outlined in the bills appear to be consistent with ongoing efforts between the FBI and
DHS to provide such targeted warnings to conserve first responder resources.21
Comment: Definition of DHS Intelligence Component. With respect
to the definition of what constitutes a DHS intelligence element, the proposed
definition codifies activities as intelligence related in a manner that appears to go
beyond how the Department has defined its Intelligence Enterprise. According to the
DHS Intelligence Enterprise Strategic Plan (January 2006), the DHS Intelligence
Enterprise includes “... all those component organizations within the Department that
have activities producing raw information, intelligence-related information, and/or
finished intelligence.” Such an extension beyond production may expand the
universe of entities within the Department that are considered part of the intelligence
enterprise.
Comment: Integration and Standardization of DHS Intelligence. It
would appear that, given the current state of homeland security intelligence within
the Department, these measures are intended to facilitate a more corporate approach
to intelligence at DHS. Currently, the Chief Intelligence Officer does not have: (1)
formal budget formulation and execution authority over the DHS intelligence
elements outside of the largely headquarters-based Office of Intelligence and
Analysis, (2) an established and integrated management information system into
which all DHS-collected intelligence and information is entered, and (3) the ultimate
authority to recruit and select the leaders of the DHS intelligence components. In the
absence of these three tools, some may argue that developing a sense of “what the
Department knows” collectively, and perhaps more importantly, “what it doesn’t
know,” could be problematic. Moreover, with respect to risk assessment and how
such assessments flow through the Homeland Security Grant Program, State and
local threat information does not appear to be considered in a meaningful and
systematic manner.22
Comment: Program Manager ISE Term, Functions, and Additional
Resources. Uncertainty of the permanence of this position might construed to
hinder the development of institutional knowledge and the building of broad-based
relationships to implement the ISE’s Implementation Plan (published in November
2006). It also appears that S. 4 would provide the ISE Program Manager with
additional powers to “... identify and resolve information sharing disputes between
21 See CRS Report RL32897, Post 9/11 National Threat Notification Efforts: Issues,
Actions, and Options for Congress, by John Rollins and Lynn J. Cunningham. See also
CRS Report RL32023, Homeland Security Advisory System: Possible Issues for
Congressional Oversight, by Shawn Reese.
22 See CRS Report RL33858, The Department of Homeland Security’s Risk Assessment
Methodology: Evolution, Issues and Options for Congress, by Todd Masse, John Rollins,
and Siobhan O’Neil.
Federal departments, agencies and components....” How this would be implemented
in practice may be an issue. Program Manager’s authorities commensurate with the
position’s responsibilities?
Homeland Security Information Sharing Partnerships
Overview
Each of the bills would require the Secretary (in consultation with the ISE
Program Manager, the Attorney General and others according to S. 4 provisions) to
establish a State, Local, and Regional Fusion Center Initiative to “establish
partnerships with State, local and regional fusion centers.” Through this DHS
initiative, the Secretary would carry out 13 functions, to include (1) coordinating with
the principal official of each fusion center, and the official designated as the State
Homeland Security Advisor, (2) providing DHS operational and intelligence advice
and assistance to these centers, (3) conducting table-top and live training exercises
to regularly assess the capability of individual and regional networks, (4) provide
analytic and reporting advice and assistance to the centers, and (5) review homeland
security information gathered by State, local, and regional fusion centers and
incorporate relevant information with homeland security information of the
Department. Both bills would require the Secretary to draft a “Concept of Operations
Report” to be submitted by the Secretary to the House and Senate Homeland Security
Committees. Such a report would include a review, among other factors, of privacy
and civil liberties implications of such an initiative. Each of the bills would also
establish a Homeland Security Information Sharing Fellows Program for the purpose
of “detailing State, local and tribal law enforcement officers and intelligence analysts
to the Department (emphasis added) to participate in the work of the Office of
Intelligence and Analysis....”
Unique House Provisions. With respect to the aforementioned Homeland
Security Information Sharing Fellows Program, H.R. 1 conditions participation in the
program on the agreement of the state, local or tribal entity to “... continue to pay the
individual’s salary and benefits during the period for which the individual is
detailed.” However, it also provides for a “... stipend to cover the individual’s
reasonable living expenses ...” during the period for which they are detailed to the
Office of Intelligence and Analysis, subject to the availability of appropriations.
Unique Senate Provisions. S. 4 provides that the Chief Intelligence Officer
“may, to the extent practicable, assign officers and intelligence analysts from...” DHS
intelligence elements to state, local and regional fusion centers. S. 4 also proposes
a requirement that before being assigned to a fusion center, DHS intelligence analysts
must undergo analysis, privacy and civil liberties training. Moreover, S. 4 outlines
the responsibilities of DHS intelligence analysts detailed to State, local and regional
fusion centers, and would require that these individuals have access to “all Federal
databases and information systems ... for the implementation and management of that
environment.” S. 4 would authorize to be appropriated $10 million for each of fiscal
years 2008 through 2012 for the fusion center initiative, “for hiring officers and
intelligence analysts to replace officers and intelligence analysts who are assigned to
fusion centers....” Finally, S. 4 proposes the creation of the Rural Policing Institute,
which would “develop expert training programs designed to address the needs of
rural law enforcement agencies regarding combating methamphetamine, addiction
and distribution, domestic violence, law enforcement responses related to school
shootings and other topics....”
Comment. To some extent these legislative initiatives would codify nascent,
yet ongoing activities in the Department. Currently, there exists within DHS a State
and Local Fusion Center Program Office which performs some of the missions
outlined in these bills. For example, the office is responsible for recruiting from both
within DHS and externally intelligence analysts and intelligence liaison officers to
be detailed to State, local and regional fusion centers. DHS currently has 12 such
intelligence personnel assigned to fusion centers. According to Charles Allen, DHS
Chief Intelligence Officer, by the end of Fiscal Year 2008, DHS plans to embed
intelligence officers in over 35 fusion centers.23 Codification of this initiative may
provide a sense of greater congressional support for and direction to such a program.
Homeland Security Intelligence Offices Reorganization
House Provisions. H.R. 1 would amend the Homeland Security Act of 2002
(6 U.S.C. 121) by replacing the “Directorate of Information Analysis and
Infrastructure Protection” with a proposed “Office of Intelligence and Analysis.”
Moreover, the “Under Secretary for Information Analysis and Infrastructure
Protection” would be replaced with an “Under Secretary for Intelligence and
Analysis.” The responsibilities of the Under Secretary for Intelligence and Analysis
would be adjusted, with new statutory responsibilities including (1) coordinating and
enhancing integration among intelligence components of the Department, (2)
establishing structure and process to support the mission and goals of the
Department, and (3) ensuring that unclassified reports based on open source
information “are produced and disseminated contemporaneously with reports or
analytic products concerning the same or similar information that the Under Secretary
for Intelligence and Analysis produces and disseminates in a classified format.” The
bill also proposes the Under Secretary for Intelligence and Analysis establish an
Internal Continuity of Operations Plan. The bill would also codify, for the first time,
the responsibilities of the intelligence components of the Department, including, “to
ensure that duties related to the acquisition, analysis, and dissemination of homeland
security information are carried out effectively and efficiently in support of the Under
Secretary for Intelligence and Analysis.” Finally, the bill would also codify an Office
of Infrastructure Protection, which would be headed by an Assistant Secretary for
Infrastructure Protection, and enumerate the proposed responsibilities of the Assistant
Secretary.
Senate Provisions. No comparable provisions.
Comment. To a certain extent, these measures would codify existing practices
and positions within the Department. Secretary Chertoff’s Second Stage Review of
the Department made numerous changes in the DHS intelligence structure. For
23 See testimony of Charles Allen, DHS Chief Intelligence Officer, Before the Senate Select
Committee on Intelligence, Jan. 25, 2007.
example, the erstwhile Directorate of Information Analysis and Infrastructure
Protection was disbanded and replaced with an Under Secretary for Preparedness.
The Office of Information Analysis (renamed the Office of Intelligence and
Analysis) and Office on Infrastructure Protection were separated. The Assistant
Secretary for Intelligence Analysis was also provided the Title of the Department’s
Chief Intelligence Officer.24 With respect to the responsibilities of the DHS
intelligence components, those proposed in H.R. 1 are largely consistent with those
outlined in DHS Management Directive 8110 Intelligence Integration and
Management (January 2006). Under existing law and internal DHS regulation, it
appears that the DHS Chief Intelligence Officer continues to have tenuous budget
execution authority with respect to the DHS intelligence components. Under the
aforementioned DHS management directive, the Chief Intelligence Officer provides
written performance objectives to the heads of the DHS intelligence components, and
subsequently provides input and feedback to the component rating official for the
component’s accomplishment of those objectives. Moreover, the Chief Intelligence
Officer analyzes “... workforce requirements for intelligence functional personnel to
establish recommended staffing and resource level parameters and guidelines for
each Component to consider.” In short, the Chief Intelligence Officer, while
responsible for intelligence integration across the Department, has direct budgetary
control over only the largely headquarters-based Office of Intelligence and Analysis.
Interagency Threat Assessment Coordination Group
Overview
S. 4 refers to the Interagency Threat Assessment Coordination Group; according
to DHS, the group is now called the “Federal Coordination Group” (FCG).25 Section
established the Information Sharing Environment, to be led by a Program Manager.
Part of the ISE Program Manager’s statutory responsibility is to provide and
facilitate “... the means for sharing terrorism information among all appropriate
Federal, State, local and tribal entities.” In November 2006, the Program Manager’s
Office published the Information Sharing Environment Implementation Plan. The
report recommended the establishment of an Interagency Threat Assessment
Coordination Group (ITACG) — to be located at the National Counterterrorism
Center (NCTC), and managed by a senior level official from DHS. According to the
November 2006 ISE report, “A primary purpose of the ITACG will be to ensure that
classified and unclassified intelligence produced by Federal organizations within the
intelligence, law enforcement, and homeland security communities is fused,
24 See DHS Management Directive 8110, Intelligence Integration and Management, Jan. 30,
25 See testimony of Charles Allen, DHS Chief Intelligence Officer, Before the House
Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment, Mar. 14, 2007.
validated, de-conflicted, and approved for dissemination in a concise and, where
possible, unclassified format.”26
House Provisions. No comparable provisions.
Senate Provisions. S. 4 would codify the existence of an ITACG, which
would “facilitate the production of federally coordinated products derived from
information within the scope of the information sharing environment ... and intended
for distribution to State, local and tribal government officials and the private sector.”
The Secretary of Homeland Security would designate a senior official who would
“manage and direct the administration of the ITACG.” The Secretary of DHS, in
consultation with the Attorney General, Director of National Intelligence, and the
Program Manager for the ISE would “establish standards for the admission of law
enforcement and intelligence officials from a State, local or tribal government into
the ITACG. (emphasis added)
Comment. There has been some reported controversy over the extent to which
DHS has supported the detailing of state, local and tribal government officials to the
FCG.27 Moreover, at a recent national fusion center conference hosted, in part, by the
Departments of Justice and Homeland Security, as well as the Office of the Director
of National Intelligence, it was stated that the name of the center had been changed
to the “Federal Coordinating Group,” possibly in reference to the fact that the group
will likely not be conducting formal threat analysis. It appears that the measures
outlined in the ISE Program Manager’s November 2006 report and those in S. 4
pertaining to the potential codification of such a body are largely consistent.
According to Charles Allen, DHS Chief Intelligence Officer, “we are working to
include additional people in the State and local governments.... In fact, in the initial
standup staff, I envision two or three officers ... and I want to ensure you that there’s
going to be growth in the State and local government representation.”28
26 See Information Sharing Environment: Implementation Plan, November 2006, p. 29.
27 See Siobhan Gorman, “Out of the Loop on Terror Threats: Homeland Security Excludes,
State, Local Officials from Group that Shares Data, Baltimore Sun, Feb. 2, 2007. See also
Siobhan Gorman, “State, Local Officials to Get Security Data,” Baltimore Sun, Feb. 15,
28 See testimony of Charles Allen, DHS Chief Intelligence Officer, Before the House
Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment, Mar. 14, 2007.
Title VIII: Protecting Privacy and Civil Liberties
While Effectively Fighting Terrorism
Reconstituting the Privacy and Civil Liberties
Oversight Board
Prepared by Harold C. Relyea, Specialist in American National Government,
CRS Government and Finance Division, 7-8679.
Overview
The 9/11 Commission recommended that “there should be a board within the
executive branch to oversee adherence to the guidelines we recommend and the
commitment the government makes to defend our civil liberties.” (The 9/11
Commission Report, p. 395.) The Intelligence Reform and Terrorism Prevention Act
of 2004 responded to this recommendation by mandating, in Section 1061, the
Privacy and Civil Liberties Oversight Board. Located within the Executive Office
of the President, the board consists of a chair, vice chair, and three additional
members, all appointed by, and serving at the pleasure of, the President. Nominees
for the chair and vice chair are subject to Senate approval. Not vested with subpoena
power, the board is authorized to request the assistance of the Attorney General in
obtaining desired information from sources other than federal departments and
agencies. (118 Stat. 3684) The board soon came under criticism for, among other
perceived shortcomings, not having adequate independent status or authority to carry
out its responsibilities properly and effectively. Both bills would reconstitute the
board.
House Provisions. H.R. 1 (Title VIII, Subtitle A, Section 803-806) would
reconstitute the board as an independent agency within the executive branch. It
would be composed of a chairman and four additional members, all appointed by the
President and subject to Senate approval. Board members would be selected on the
basis of relevant experience; could not also be an elected official, officer, or
employee of the federal government; and would serve staggered six-year terms. No
more than three members of the board would be from the same political party. The
board would be vested with subpoena authority enforceable in federal district court.
The board would be required to review reports from privacy and civil liberties
officers located within federal departments and agencies (see below), and to submit
periodic reports to specified committees of the House and Senate, and, consistent
with applicable law, to provide its reports to the public.
Senate Provisions. S. 4 (Title VI, Section 601) would reconstitute the board
as an agency within the Executive Office of the President. New functions for the
board would include reviewing proposed legislation, regulations, and policies;
reviewing the implementation of existing legislation, regulations, and policies; and
advising the President and the departments and agencies of the executive branch.
Board members would be selected on the basis of relevant experience; could not also
be an elected official, officer, or employee of the federal government, and would
serve staggered six-year terms. The board would be authorized to request the
Attorney General to issue a subpoena on its behalf, and would require the Attorney
General, if such a request were modified or denied, to report such action to the House
and Senate Committees on the Judiciary. The board would be required to review
reports from privacy and civil liberties officers located within federal departments
and agencies (see below); and to submit periodic reports to specified committees of
the House and Senate, to the President, and, consistent with applicable law, to the
public. Other provisions provide for the compensation of the chair and board
members, travel expenses, staff, consultant services, security clearances, and the
authorization of appropriations.
Comments. The most significant differences between the House and Senate
bills concern the organizational status of the board — independent agency vis-a-vis
Executive Office agency — and the exercise of subpoena power. Independent
agencies have varying degrees of insularity from presidential control, while entities
within the Executive Office of the President closely assist and serve the President at
his direction. Also, some general management laws that are applicable to
independent agencies are not applicable to Executive Office of the President entities.
For its version of the reconstituted board, the House bill retains the housekeeping
provisions specified for the existing board in the Intelligence Reform and Terrorism
Prevention Act, while the Senate bill restates such provisions.
Privacy Officers
Prepared by Harold C. Relyea, Specialist in American National Government,
CRS Government and Finance Division, 7-8679.
Overview
Although the 9/11 Commission did not explicitly recommend the establishment
of Privacy and Civil Liberties Officers within the federal departments and agencies,
such officials were seen by some as useful extensions of, or auxiliaries to, the board
(see above) recommended by the commission. An Officer for Civil Rights and Civil
Liberties and a Privacy Officer were authorized for the Department of Homeland
Security by the Homeland Security Act of 2002. (116 Stat. 2155, 2219) Legislative
antecedents of the Intelligence Reform and Terrorism Prevention Act of 2004 also
would have created Privacy and Civil Liberties Officers for departments and agencies
centrally involved in combating terrorism, but the enacted statute, while establishing
a Civil Liberties Protection Officer within the office of the new Director of National
Intelligence, only expressed “the sense of Congress that each executive department
or agency with law enforcement or antiterrorism functions should designate a privacy
and civil liberties officer.” (118 Stat. 3658, 3688) Elsewhere, the Senate version of
the Transportation, Treasury, and General Government Appropriations Bill, 2005
was reported with a provision directing federal departments and agencies to designate
one of their senior officials as Chief Privacy Officer. The bill, with this requirement,
was included in the subsequently enacted Consolidated Appropriations Act, 2005.
(118 Stat. 2809) Both H.R. 1 and S. 4 direct the designation of not less than one
senior officer as Privacy and Civil Liberties Officers.
House Provisions. H.R. 1 (Title VIII, SubTitle A, Section 806) would direct
the Attorney General, the Secretaries of Defense, State, the Treasury, Health and
Human Services, and Homeland Security, the National Intelligence Director, the
Director of Central Intelligence, as well as other entities within the intelligence
community, and the heads of departments and agencies so designated by the Privacy
and Civil Liberties Oversight Board (see above) to designate not less than one senior
officer to assist the department or agency head and other officials in appropriately
considering privacy and civil liberties concerns when such officials are proposing,
developing, or implementing laws, regulations, policies, procedures, or guidelines
related to efforts to protect the nation against terrorism. Such designated Privacy and
Civil Liberties Officers would also periodically investigate and review department
or agency actions, policies, procedures, guidelines, and related laws and their
implementation; ensure that adequate procedures exist to receive, investigate,
respond to, and redress complaints from individuals alleging violations of their
privacy or civil liberties; and provide advice on proposals to retain or enhance a
particular government power relative to privacy and civil liberties. Provision is made
for entities having a statutorily created Privacy Officer or Civil Liberties Officer to
perform the functions specified for officials designated Privacy and Civil Liberties
Officers. The official performing the functions specified for the Privacy and Civil
Liberties Officer would report directly to the head of the department or agency and
would coordinate his or her activities with the Inspector General of the department
or agency. In turn, the department or agency head would ensure that the Privacy and
Civil Liberties Officer(s) has adequate resources, is informed of proposed policy
changes, is consulted by decision makers, and is given adequate access to material
and personnel to carry out his or her responsibilities. Reprisals against individuals
making a privacy or civil liberties complaint would be forbidden. Privacy and Civil
Liberties Officers would make periodic reports to specified congressional
committees, their department or agency heads, the Privacy and Civil Liberties
Oversight Board, and, consistent with applicable law, to the public. H.R. 1 contains
a unique provision specifying that the Secretary of Homeland Security shall ensure
that the Department of Homeland Security complies with regulations providing
protections for human research subjects.
Senate Provisions. S. 4 (Title VI, Section 602) is identical to Section 806
of H.R. 1, with the exception of the unique provision (see above) concerning
Department of Homeland Security compliance with regulations providing protections
for human research subjects.
Enhancement of Department of Homeland Security
Privacy Officer’s Authorities
Prepared by Harold C. Relyea, Specialist in American National Government,
CRS Government and Finance Division, 7-8679.
Overview
During the 109th Congress, concerns arose that the Privacy Officer at the
Department of Homeland Security did not have adequate authority to conduct
investigations. Remedial legislation was offered by Representative Bennie
Thompson (H.R. 3041) and Senator Daniel Akaka (S. 2827), but received no action
during the 109th Congress. Senator Akaka has introduced the measure (S. 332) in the
110th Congress. H.R. 1 contains a version of this legislation, known as the Privacy
Officer With Enhanced Rights Act or POWER Act.
House Provisions. H.R. 1 (Title VIII, Subtitle B, Section 811-812) would
enhance the authority of the Privacy Officer at the Department of Homeland Security
by specifying that this official is specifically authorized to have access to all records,
reports, audits, reviews, documents, papers, recommendations, and other materials
available to the department that relate to programs and operations with respect to the
Privacy Officer’s responsibilities. It would also authorize the Privacy Officer to
make such investigations and reports relating to the administration of the programs
and operations of the department as are, in his or her judgment, necessary or
desirable. The Privacy Officer would be vested with subpoena power, authorized to
administer to or take from any person an oath, affirmation, or affidavit, and to take
any other action that may be taken by the Inspector General of the department to
require employees to produce documents and answer questions relevant to the
Privacy Officer’s responsibilities. Reports would be submitted by the Privacy Officer
directly to Congress regarding the performance of his or her responsibilities without
any prior comment or amendment by department leaders.
Senate Provision. S. 4 (Title VI, Section 603) differs from Sections 811-812
of H.R. 1 in that it would authorize Privacy Officer, subject to the approval of the
Secretary of Homeland Security, to exercise subpoena power; does not specify where
the Privacy Officer’s subpoenas would be enforced; does not set a term of
appointment for the Privacy Officer; and would require notification of specified
congressional committees when the Secretary of Homeland Security disapproves the
issuances of a subpoena by the Privacy Officer.
Federal Agency Data Mining Reporting Act of 2007
Prepared by Jeffrey W. Seifert, Specialist in Information Science and
Technology Policy, CRS Resources, Science, and Industry Division, 7-0781.
Overview
Data mining has become a major feature of many homeland security initiatives.
Often used as a means for detecting fraud, assessing risk, and product retailing, data
mining involves the use of data analysis tools to discover previously unknown, valid
patterns and relationships in large data sets. In the context of homeland security,
proponents assert that data mining can be a potential means to identify terrorist
activities, such as money transfers and communications, and to identify and track
individual terrorists themselves, such as through travel and immigration records.
Industries such as banking, insurance, medicine, and retailing commonly use
data mining to reduce costs, enhance research, and increase sales. In the public
sector, data mining applications initially were used as a means to detect fraud and
waste, but have grown to also be used for purposes such as measuring and improving
program performance. However, some of the homeland security data mining
applications represent a significant expansion in the quantity and scope of data to be
analyzed. Some efforts that have attracted a higher level of congressional interest
include the Terrorism Information Awareness (TIA) project (now-discontinued) and
the Computer-Assisted Passenger Prescreening System II (CAPPS II) project (now-
canceled and replaced by Secure Flight). Other initiatives that have been the subject
of congressional interest include the Multi-State Anti-Terrorism Information
Exchange (MATRIX), the Automated Targeting System (ATS), and the Analysis,
Dissemination, Visualization, Insight, and Semantic Enhancement (ADVISE) tool.
There currently is no centralized accounting of data mining initiatives across the
federal government. Concerns about the scope of some data mining initiatives and
implications for privacy have grown as the existence and details about previously
undisclosed initiatives have come to light. Section 604 of S. 4 would require
departments and agencies to send annual reports to Congress regarding their data
mining activities. Related legislation has been introduced during the 108th, 109th, and
House Provisions. No comparable provision.
Senate Provisions. Section 604 of S. 4 would require any department or
agency engaged in data mining to submit a public report to Congress regarding these
activities. These reports would be required to include a variety of details about the
data mining project, including a description of the technology and data to be used,
a discussion of the plans and goals for using the technology when it will be deployed,
an assessment of the expected efficacy of the data mining project, a privacy impact
assessment, an analysis of the relevant laws and regulations that would govern the
project, and a discussion of procedures for informing individuals that their personal
information will be used and allowing them to opt out, or an explanation of why such
procedures are not in place. Each report would also include a classified annex
containing classified information, law enforcement sensitive information, proprietary
business information, and trade secrets. The annex would not be made available to
the public. The reports would be produced in coordination with the privacy officer
of that department or agency. Initial reports would be due within 180 days of
enactment of the bill, with annual updates required thereafter.
Comments. The data mining provision in S. 4 is sometimes compared to
Section 126 of P.L. 109-177 the USA PATRIOT Improvement and Reauthorization30
Act of 2005. Section 126 requires the Attorney General to submit a report to
Congress “on any initiative of the Department of Justice that uses or is intended to31
develop pattern-based data mining technology.” Some critics suggest that the data
29 See CRS Report RL31798, Data Mining and Homeland Security: An Overview, by Jeffrey
W. Seifert.
30 For a legal analysis of P.L. 109-177, see CRS Report RL33332, USA PATRIOT
Improvement and Reauthorization Act of 2005: A Legal Analysis, by Brian T. Yeh and
Charles Doyle.
31 §126, P.L. 109-177, 120 STAT. 227 (2006).
mining provision in S. 4 is duplicative of Section 126 of P.L. 109-177.32 Although
there are some similarities, there are also some key differences. Among these
differences, the data mining reporting requirements in S. 4:
!apply to all departments and agencies (whereas P.L. 109-177 only
applies to the Department of Justice);
!exclude data mining initiatives that are solely for “the detection of
fraud, waste, or abuse in a government agency or program; or the
security of a government computer system” (whereas P.L. 109-177
does not have such an exclusion);
!create an annual reporting requirement (whereas P.L. 109-177
requires a single report with no annual follow-up reports).
The report called for in Section 126 of P.L. 109-177 was due to Congress on March
9, 2007. According to a March 21, 2007 Washington Post article, the report had not
yet been delivered to Congress as of that time.33
32 Ellen Nakashima, “Senate Bill Would Mandate Disclosure of Data Mining,” Washington
Post, Mar. 21, 2007, D3.
33 Ibid.
Title IX: Improving Critical Infrastructure Security
Prepared by John D. Moteff, Specialist in Science & Technology, CRS
Resources, Science, and Industry Division, 7-1435.
Overview
The 9/11 Commission’s report stated that the Department of Homeland Security
should identify those elements of the nation’s critical infrastructure sectors that need
to be protected, develop plans to protect them, and exercise the mechanisms to
enhance preparedness. The Intelligence Reform and Terrorism Prevention Act of
2004 (P.L. 108-458) addressed this topic in Section 7306, calling for a report on the
Department’s progress in completing vulnerability and risk assessments of the
nation’s critical infrastructure, the adequacy of the government’s plans to protect
them, and the readiness of the government to respond to threats. The provisions
discussed below can be thought of as a refinement and continuation of this reporting
requirement, as well as providing guidance and additional requirements on on-going
Department activities.
The two bills call for actions that appear very similar: an assessment of the
vulnerabilities and/or risks associated with critical infrastructure assets and a
prioritized list of critical assets that are most at risk or could cause catastrophic
national or regional impacts. Both bills require reports to Congress summarizing
both the assessments and the prioritized list of assets, including classified annexes
for both if necessary. Both bills require the reports relating to the assessments to
include the Secretary’s recommendations for mitigating risks. Both bills require the
reports on the prioritized lists to include the name, location, and sector of the assets.
Within these similarities, however, are some subtle differences discussed in the
Comment sections below.
The White House’s Office of Management and Budget’s Statements of
Administration Policy on both H.R. 1 and S. 4 were silent on these provisions.
Vulnerability Assessment and Report
on Critical Infrastructure Information
House Provisions. Section 901 of the House bill amends the Critical
Infrastructure Information Act of 2002 (Title II, Subtitle B of the Homeland Security
Act, P.L. 107-296). It requires the Secretary for Homeland Security to prepare
vulnerability assessments for each sector of the economy identified in Homeland
Security Presidential Directive Number 7 (HSPD-7) as possessing critical
infrastructure assets (except where a vulnerability assessment is required under
another provision of law). It requires the Secretary to submit an annual report
containing a summary and review of the vulnerability assessments. The report also
is to include the changes in vulnerability for each sector over the time period covered
by the report (current and the preceding two fiscal years); explanations or comments
by the Secretary regarding the greatest risks to each sector; and the Secretary’s
recommendations for mitigating those risks. The report may contain a classified
annex.
Senate Provisions. Section 1102 of the Senate bill requires the Secretary,
pursuant to responsibilities outlined in Section 202 of the Homeland Security Act,
to prepare a risk assessment of the nation’s critical infrastructure. The risk
assessment is to be organized by sector, including those listed in HSPD-7 (and,
pursuant to Section 1101 (b), including levees), and shall include any actions or
countermeasures proposed, recommended, or directed by the Secretary to address
security concerns covered in the assessment. The Section also requires the Secretary
to submit a report containing a summary and review of the risk assessment, organized
by sector, and including recommendations of the Secretary for mitigating risks
identified by the assessment. As in the House bill, the report may include a classified
annex and the classification shall be binding on those receiving the information.
Comment. The House bill places the vulnerability assessment requirement,
and the subsequent public report to Congress, in a section of the Homeland Security
Act devoted primarily to preventing the public disclosure of critical infrastructure
information voluntarily submitted to DHS (Title II, subtitle B). The Senate bill uses
existing authorities under Title II, Subtitle A of the Homeland Security Act to require
the risk assessment. There is also a slight difference between a vulnerability
assessment and a risk assessment. Vulnerability assessments typically assess the
vulnerability of a given asset to specific threats. Risk assessments combine
assessments of threat, vulnerability, and consequences. Risk assessments, therefore,
could be considered more comprehensive by including the assessment of
consequences. While the House bill calls specifically for vulnerability assessments,
it does allude to the assessment of risks. In addition, the Senate bill goes beyond the
House language in reference to countermeasures that the Secretary may propose or
recommend, to address security concerns covered in the assessment, by also
including those he may direct.
National Asset Database and National At-Risk Database
House Provisions. Section 902 of the House bill amends Title II, Subtitle
A of the Homeland Security Act. It requires the Secretary to establish and maintain
a “National Asset Database.” Within this database, the Secretary is required to
establish a second database listing the infrastructure [assets] the Secretary determines
to be most at risk. This secondary list is to be called the “National At-Risk
Database.” In regard to maintaining these databases, the Secretary is to annually
determine the correctness of the information describing each listed asset and to
determine whether each asset meets the guidelines used by the Secretary for
populating one or the other database. The Secretary shall remove from the databases
those assets for which information is not verifiable and which do not meet the
relevant guidelines. The Secretary is instructed to meet with the States annually to
clarify the guidelines to ensure consistency and uniformity in the submissions of
information from the states, and to review with the states a list of those assets subject
to removal before finalizing decisions. The databases are to be used in plans and
programs aimed at identifying and prioritizing critical infrastructure assets in accord
with HSPD-7 and in cooperation with all levels of government and the private sector,
and in supporting grant programs assisting in preventing, reducing, mitigating, or
responding to terrorist attacks. The Secretary is to identify key milestones for
establishing and issuing the guidelines by which the states can submit critical
infrastructure information, for integrating private sector assets into the databases, and
identifying tasks needed to eventually allocate homeland security grants.
Furthermore, Section 902 establishes the National Asset Database Consortium.
The Consortium is to consist of at least two and no more than four national
laboratories, and the heads of other federal agencies as deemed appropriate by the
Secretary. The Consortium shall advise the Secretary on the best way to identify,
generate, organize, and maintain the databases discussed above. In addition, the
Secretary is instructed to solicit and receive comments from the Consortium on the
appropriateness of the protection and risk methodologies associated with the National
Infrastructure Protection Plan and on alternative means to define risk and identify
specific criteria for prioritizing the most at-risk assets.
Finally, Section 902 requires the Secretary to submit an annual report on those
infrastructures in the National Asset Database that are most at-risk. The report shall
include the name, location, and sector of the asset; any changes made in the database
regarding the definition or identification of critical assets; any changes in compiling
the database; and, the extent to which the database has been used to allocate funds
to prevent, reduce, mitigate, or respond to terrorist attacks. The Secretary is required
to provide a classified briefing and a classified annex for information that cannot be
made public.
Senate Provisions. Section 1101 of the Senate bill requires the Secretary to
establish a risk-based prioritized list of those assets or systems that, if destroyed or
disrupted, would cause catastrophic national or regional impacts, including
significant loss of life, severe economic harm, mass evacuations, or the loss of a city,
region, or sector as a result of contamination, destruction, or disruption of vital public
services. The Secretary also is required to submit an annual report to the Senate
Homeland Security and Governmental Affairs Committee and the House Homeland
Security Committee summarizing: the criteria used to develop each list, the
methodology used to solicit and verify information; the name, location and sector of
assets in each list; how each list will be used by the Secretary in program, activities,
and grant making; and, a description of any other lists or databases the Department
has developed to prioritize critical infrastructures on the basis of risk. The Secretary
is to submit a classified annex to the report containing information that cannot be
made public. The classification and level of classification shall be binding on those
receiving the information.
The Senate bill has no comparable provisions for establishing a National Asset
Database Consortium.
Comment. The House bill makes specific reference to the National Asset
Database, and many of the Secretary’s specified responsibilities for maintaining this
database (offering consistent guidance to states on what to submit, consultation with
states, and the removing of assets for which information is not verifiable or that do
not meet the guidelines) appear to be in response to recommendations made by the
Department of Homeland Security’s Office of the Inspector General.34 The Senate
bill makes no reference to the National Asset Database, nor makes direct reference
to working with States. It does require the report in this section to identify criteria
used to develop the list and the methodology by which information is solicited and
verified. The Senate bill is more specific about the types of consequences that merit
attention when deciding which assets to include on the prioritized lists (e.g.,
significant loss of life, mass evacuations). The House bill gives the Secretary full
discretion in determining the guidelines governing what assets get placed on the list.
While both bills require that the reports on these prioritized lists include the
name, location, and sector of the assets on the list, it is doubtful the Department
would include this information for the highest priority assets in an unclassified
document. The Assistant Secretary for Infrastructure Protection reportedly has stated
that the Department has a list of roughly 600 high priority assets, information on
which is classified.35
The House bill refers primarily to terrorist attacks as the basis for concern in this
section. The Senate bill refers to terrorist attacks or natural catastrophes.
Priorities and Allocations
House Provisions. No comparable provision.
Senate Provisions. Section 1104 of the Senate bill requires the Secretary,
in cooperation with the Secretary of Commerce, Secretary of Transportation, the
Secretary of Defense, and the Secretary of Energy, to submit a report that details the
actions taken by the federal government to ensure, in accordance with subsections (a)
and (c) of Section 101 of the Defense Production Act (50 U.S.C. App. 2071), the
preparedness of industry to reduce interruptions of critical infrastructure operations
during, and to minimize the impact of, a terrorist attack, natural catastrophe, or other
similar national emergency.
Senate Provisions Comment. Sections (a) and (c) of Section 101 of the
Defense Production Act give the President authority to prioritize, and require the
acceptance of, contracts or orders to allocate materials, equipment, services, or
facilities to promote the national defense or to maximize domestic energy supplies.
By virtue for the Defense Production Act Reauthorization of 2003 (P.L. 108-195,
Section 5), the definition of national defense includes emergency preparedness
activities conducted pursuant to critical infrastructure protection and restoration.
This authority has been delegated to specified Department heads for specific
ci rcum st ances.
34 For a discussion of the Department’s Inspector General’s report and other issues
associated with the National Asset Database, see CRS Report RL33648, Critical
Infrastructure: The National Asset Database, by John Moteff.
35 USA Today, “Database Is Just the 1st Step,” by Robert Stephan. July 21, 2006. p. 8A.
Title X: Transportation Security Planning
and Information Sharing
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. The House bill (sections 1001 and 1002) would amend
the statutory requirement that DHS prepare transportation security plans, including
plans for each mode, to require that the plans be based on vulnerability assessments
conducted by DHS. DHS is to distribute the plans to stakeholders in an unclassified
form. The bill also requires DHS to develop a plan for sharing transportation security
information with public and private stakeholders, and to conduct an annual survey
of recipients of this information concerning their satisfaction with the information
sharing arrangement.
Senate Provisions. The Senate bill’s provisions (in Title IX, sections 901
and 902) are similar to those in the House bill, with some additions: the Senate bill
also would require DHS to provide Congress a short- and long-term budget
recommendation for federal transportation security programs; and DHS would be
required to consult with stakeholders in the development of the information sharing
plan, to provide a single point of contact in DHS for each transportation mode, and
to survey recipients of transportation security information every two years instead of
annually.
Title XI: Private Sector Preparedness
Participation of the Private Sector in Preparedness Activities
Prepared by Natalie Paris Love, Analyst in American National Government,
CRS Government and Finance Division, 7-9569.
Overview
The 9/11 Commission recommended “establishing a common set of criteria and
terminology for preparedness, disaster management, emergency management, and
business continuity programs” to assist the private sector in ensuring preparedness.
(The 9/11 Commission Report (2004), p. 397). This recommendation encouraged
the Department of Homeland Security to work closely with the private sector to
develop a “National Standard of Preparedness.”
House Provisions. H.R. 1 (Title XI, Section 1101) would amend the
Homeland Security Act of 2002 (6 U.S.C. 318) by requiring the Secretary to develop
and implement a program that enhances private sector preparedness. This program
would include voluntary consensus standards and the development of a best practices
guidance to help the private sector identify hazards, mitigate disasters, manage
emergency response resources, and develop mutual aid agreements and response
plans.
Senate Provisions. S. 4 contains provisions for private sector preparedness
in both Title VIII and Title X. S. 4 also would create a program through which
companies could choose to be accredited and certified as prepared once the voluntary
national standards are developed. Title VIII (Section 801-804) would amend the
Homeland Security Act of 2002 (6 U.S.C.) to provide for the adoption of voluntary
national preparedness standards. It also would authorize the Private Sector Advisory
Council to advise the Secretary on methods for promoting voluntary national
standards and encouraging adoption of the standards by the private sector. S. 4 also
would amend the Homeland Security Act of 2002 to provide guidelines for an
accreditation and certification program as part of the voluntary national standards.
Title VIII would establish guidelines for a demonstration project of private sector
preparedness security management systems. Title X (Section 1001) would expand
the role of the FEMA Regional Administrator to include coordination with the
private sector on preparedness matters. Title X (Section 1002) would require that the
FEMA Administrator create model standards for private sector critical infrastructure
owners to permit access to restricted areas under incident command systems during
disasters.
Comments. Both H.R. 1 and S. 4 would provide for voluntary national
preparedness standards for private sector preparedness. S. 4 would expand the role
of the Private Sector Advisory Council and aspects of the voluntary national
preparedness standards in more detail than would H.R. 1. S. 4 would also expand the
role of the FEMA Regional Director and the Administrator in coordinating
preparedness activities with the private sector.
Title XII: Preventing Weapons of Mass Destruction
Proliferation and Terrorism
Overview
This Title of H.R. 1 seeks to implement three recommendations of the 9/11
Commission — to strengthen counterproliferation efforts, expand the Proliferation
Security Initiative, and support the Cooperative Threat Reduction program. There is
no similar Title in S. 4. Subtitle A covers repeal of existing restrictions on the use
of Cooperative Threat Reduction funds; Subtitle B covers expansion of Proliferation
Security Initiative authorities; and, Subtitle C provides general authorization for
acceleration of nonproliferation assistance programs, including those in the
Departments of Defense, State, and Energy. Subtitle D establishes a U.S.
Coordinator for Preventing WMD Proliferation and Terrorism; and, Subtitle E
establishes a Commission on the same topic.
Repeal and Modification of Limitations
on Nonproliferation Assistance
Prepared by Amy F. Woolf, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-2379.
Congress first passed legislation authorizing the use of U.S. funds to provide
assistance to the former Soviet Union in securing and containing its nuclear weapons
and weapons-useable materials in late 1991. These programs have grown from an
initial amount of $400 million per year to over $1 billion per year. Although the vast
majority of the money funds programs in Russia and the other former Soviet states,
funding has been applied to programs in other nations, assisting in growing efforts
to stem the possible proliferation of WMD materials and knowledge around the
world. The legislation authorizing these programs, however, contains numerous
exclusions, certifications, and limitations on the use of this funding.
House Provisions. Subtitle A of Title XII of H.R. 1 would repeal many
provisions in existing law that limit the use of funds for threat reduction and
nonproliferation programs. The Subtitle would repeal several provisions in existing
law that outline certification requirements for provision of the assistance. These link
U.S. assistance to the recipients’ policies and activities in a number of related areas.
The Subtitle also modifies two provisions that allow the United States to use some
of these funds in nations outside the former Soviet Union by substituting the
Secretary of Defense for the President as the authority who can determine the need
for such funding.
Senate Provisions. No comparable provisions.
Comments. Although the Senate did not include similar provisions in this
piece of legislation, the Senate has passed similar legislation during the past few
years. The Senate versions of the FY2006 Defense Authorization Bill (H.R. 1815,
Section 1306) and FY2007 Defense Authorization Bill (H.R. 5122, Section 1304)
would have repealed the certification requirements that affect the Department of
Defense Cooperative Threat Reduction Program. The House did not include these
provisions, and the Conference Committee did not accept the Senate version.
Further, in the 110th Congress, Senator Lugar has introduced legislation (S. 198) that
would achieve the same objective of eliminating the CTR certification requirements.
Expanding Proliferation Security Initiative
Prepared by Sharon Squassoni, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-7745.
The Proliferation Security Initiative is an effort announced by President Bush
in May 2003 to coordinate interdiction of weapons of mass destruction-related
equipment and technology transfers (see CRS Report RS21881, Proliferation
Security Initiative, by Sharon Squassoni). PSI’s long-term objective is to “create a
web of counterproliferation partnerships through which proliferators will have
difficulty carrying out their trade in WMD and missile-related technology.” The
Bush Administration has often noted that PSI is an activity, not a program, but the
109th Congress nevertheless introduced a variety of legislation regarding PSI, some
of which attempted to put more structure into the activity.
House Provisions. Subtitle B of Title XII of H.R. 1 addresses provisions to
expand the Proliferation Security Initiative, consistent with the recommendation of
the 9/11 Commission. Section 1221 expresses the sense of Congress that the
President should define a budget for PSI, work with the UN Security Council to
develop a resolution that would authorize PSI activities, increase PSI cooperation
with non-NATO partners, implement recommendations in the GAO report that would
help measure program results and establish clear lines of authority, and expand and
formalize PSI into a multilateral regime. Additionally, Section 1221 requires the
President and Secretary of Defense to submit a budget for PSI for FY2009 and
requires both an executive branch implementation report and a GAO annual report
on the program.
Section 1222 authorizes the President to provide assistance to countries that
cooperate with the United States and its allies to prevent transfers of proliferation
concern. Such assistance would be limited to three fiscal years and would be
provided to enhance the capability of the country to do PSI-related activities.
Senate provisions. No comparable provisions.
Comments. Several bills were introduced in the 109th Congress supporting
PSI in various ways. Four bills, S.Con.Res. 36, S.Con.Res. 40, S. 3456 and S. 2566
expressed support for PSI and S. 3456 sought to authorize $50 M for training
exercises under PSI. The FY2006 Foreign Operations, Export Financing, and
Related Programs Appropriations Act (P.L. 109-102) authorized the use of
Nonproliferation Antiterrorism Demining and Related Programs funds for PSI
activities.
Assistance to Accelerate Programs to Prevent Weapons
of Mass Destruction Proliferation and Terrorism
Prepared by Amy F. Woolf, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-2379.
The United States, through its threat reduction and nonproliferation programs
at the Department of Defense, Department of Energy, and Department of State,
provides just over $1 billion in assistance to other nations each year in an effort to
stem the proliferation of weapons of mass destruction and related technologies.
Some have suggested that, by providing additional funds for these programs, the
United States might accelerate its efforts to secure weapons and materials in the
former Soviet Union, while expanding and accelerating similar efforts in other
nations.
House Provisions. Subtitle C of Title XII of H.R. 1 would authorize
additional expenditures so that the United States could accelerate its programs that
seek to stem the proliferation of WMD. Section 1231 contains findings that note that
these programs have often encountered obstacles that have slowed expenditures and
left unobligated funds and uncosted balances. It notes that it should be the policy of
the United States to eliminate these obstacles. Sections 1232 and 1233 authorize the
appropriation of additional funds, as needed, to accelerate these programs. Section
1232 applies to the Cooperative Threat Reduction program funded through DOD, and
includes the sense of Congress that in future years, the President should not only
accelerate and expand funding for these programs, but also encourage further
commitments by Russia and other recipient nations, as recommended by the 9/11
Commission. Section 1233 applies to several nonproliferation programs funded
through the Department of Energy’s National Nuclear Security Administration.
Senate provisions. No comparable provisions.
Comments. Many analysts assert that, with bureaucratic obstacles slowing the
expenditure of existing funds, added funds may not be very effective in accelerating
the implementation of these programs. Others argue that added funds would allow
the United States to expand its efforts in those areas where funding has been limited
in the past and where the recipient nations are able to identify additional programs
that would require assistance.
Establishing a Coordinator and Commission on Preventing
Weapons of Mass Destruction Proliferation and Terrorism
Prepared by Amy F. Woolf, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-2379.
House Provisions. Subtitle D of Title XII of H.R. 1 establishes the Office
of the United States Coordinator for the Prevention of Weapons of Mass Destruction
Proliferation and Terrorism. Section 1241 states that the office shall have a
Coordinator and Deputy, both of whom shall be appointed by the President, with the
advice and consent of the Senate. The Section also states that this Coordinator shall
serve as the advisor to the President on all matters relating to the prevention of WMD
proliferation and terrorism and shall formulate a comprehensive and well-coordinated
strategy and policies for preventing WMD proliferation and terrorism. The Section
indicates that the Coordinator will also develop plans to coordinate the activities,
initiatives, and programs of the various Departments and Agencies that play a role
in this effort. Further, Section 1242 expresses the sense of Congress that the
President should request that Russia designate a similar Coordinator for these
activities.
Subtitle E of Title XII of H.R. 1 establishes a Commission on the Prevention of
Weapons of Mass Destruction Proliferation and Terrorism. Section 1252 states that
this Commission is to assess current activities, initiatives, and programs and to
provide a clear and comprehensive strategy and concrete recommendations for such
activities, initiatives, and programs. It is to focus, particularly, on initiatives and
activities that seek to secure weapons-usable nuclear materials around the world and
to accelerate or strengthen efforts to stop the spread of nuclear weapons capabilities.
Section 1253 outlines the composition of the Commission; Section 1254 indicates
that it should also address the roles, missions, and structures of relevant government
departments and it should address questions of interagency coordination. Section
Senate Provisions. No comparable provisions.
Comments. The Department of Defense, Department of Energy, and
Department of State each fund programs that provide nonproliferation assistance to
nations around the world. At the present time, these agencies develop their budgets
and structure their programs independently of each other. Many analysts believe that
this structure inhibits the coordination of priorities or budgets. Proposals for both a
Coordinator and a Commission are designed to remedy this situation by providing
a central point of contact for both planning and implementing U.S. policy in this area.
Title XIII: Nuclear Black Market
Counter-Terrorism Act
Prepared by Sharon Squassoni, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-7745.
Overview
The Nuclear Black Market Counter-Terrorism Act creates two new kinds of
sanctions for proliferation-related activities, both with waiver options for the
President. In the first case, the President would be authorized to impose sanctions
on a foreign person involved in the transfer of nuclear enrichment or reprocessing
equipment, materials, or technology to a non-nuclear weapon state that does not
possess functioning enrichment or reprocessing plants by January 2004, that did not
have an Additional Protocol in place (a type of improved nuclear safeguards
agreement) or is developing, manufacturing, or acquiring a nuclear explosive device.
The second kind of sanction is aimed at countries that are hosts to proliferation
networks, and includes a cutoff in arms licenses and deliveries.
House Provisions. Title XIII of H.R. 1, the Nuclear Black Market Counter-
Terrorism Act, provides for new sanctions on foreign persons for transfers of
uranium enrichment and spent fuel reprocessing-related materials, technology and
equipment (Section 1311), makes nonproliferation to terrorists a condition for
receiving U.S. foreign assistance (Section 1331), and requires a report on identifying
nuclear proliferation network host countries (Section 1332). For those countries
identified as hosts to proliferation networks, Section 1333 requires the suspension of
arms sales licenses and deliveries, unless the President certifies to relevant
committees that the country is investigating the activities, taking steps to halt those
activities, is cooperating with the United States and has enacted laws or regulations
designed to prevent any such future activities. In addition, the President may waive
the certification on the basis of national security, but only after five days have
elapsed.
Senate Provisions. No comparable provision.
Comments. Title XIII of H.R. 1 is very similar to Title VIII (Nuclear Black
Market Elimination Act of 2005) of the Foreign Relations Authorization Act for
Fiscal Years 2006 and 2007 (H.R. 2601), with minor changes. U.S. law currently
contains provisions for the imposition of sanctions on countries that transfer
enrichment and reprocessing-related technology, material, or equipment (the so-
called Glenn and Symington amendments to the Foreign Assistance Act) to states
that do not have comprehensive safeguards agreements. Section 1311 of Title XIII
would create more stringent standards (states would not only have to have
comprehensive safeguards agreements, but also already have enrichment and
reprocessing and have an Additional Protocol in force) for enrichment and
reprocessing transfers, and also expand the conditions for imposing sanctions to
activities by foreign persons not just nation-states.
Title XIV: 9/11 Commission International
Implementation
Prepared by Susan B. Epstein, Specialist in Foreign Policy and Trade, CRS
Foreign Affairs, Defense, and Trade Division, 7-6678.
Overview
Since the September 11th terrorist attacks, many experts have stated that
terrorism cannot be defeated by military force alone. The 9/11 Commission Report
noted that the United States must use its full range of policy tools to fight terrorism
and prevent the continued recruitment and growth of terrorism around the world.
The Commission called on the United States to be an example of moral leadership
in the world, providing a role model of abiding by the rule of law, treating people
humanely, assisting Arab and Muslim populations in providing education systems
that do not teach hate, offering hope for economic opportunity, and using public
diplomacy to help change attitudes about America. H.R. 1, Title XIV (9/11
Commission International Implementation) and S. 4, Title XIX (Advancement of
Democratic Values) address many of the education assistance, democracy promotion,
and public diplomacy policy recommendations that were proposed by the 9/11
Commission.
Subtitle A: Quality Educational Opportunities
in Arab and Predominantly Muslim Countries
Although the Intelligence Reform and Terrorism Prevention Act of 2004
authorized an International Youth Opportunity Fund to provide financial assistance
for the improvement of public education in Arab and Muslim populations and
authorized a pilot program offering grants for scholarships, it did not provide new
funds.
House Provisions. Section 1412, Title XIV, H.R. 1 amends Section 7114
of the 9/11 Implementation Act of 2004 (Title VII of the Intelligence Reform and
Terrorism Prevention Act of 2004; P.L. 108-458). It would authorize the President
to establish an International Arab and Muslim Youth Educational Fund to assist
Muslim and Arab countries that commit to educational reform and would authorize
appropriations “for such sums as may be necessary for FY2008, FY2009, and
FY2010 which shall remain available until expended.” The Fund would help
establish vocational training in trades that would provide economic development and
opportunity in the countries and would also provide translation of foreign books and
newspapers into local languages. In addition, the House bill would require a report
within 180 days after enactment, and annually thereafter, to relevant congressional
committees on the progress made toward establishing the International Arab and
Muslim Youth Opportunity Fund. Section 1413 would require the Secretary of State
to report to Congress by June 1st each year on the efforts of the Arab and
predominantly Muslim countries to improve educational opportunities and eliminate
educational institutions that promote religious extremism. Section 1414 would
amend Section 7113 of the 9/11 Implementation Act of 2004 (Title VII of the
Intelligence Reform and Terrorism Prevention Act of 2004; P.L. 108-458) to provide
grants to American-sponsored schools in Arab and predominantly Muslim countries
to provide scholarships to lower-income young people to learn English and be
exposed to a more modern education.
Senate Provisions. No comparable provisions.
Subtitle B: Democracy and Development
in Arab and Muslim Countries
House Provisions. Section 1421 states that it would be U.S. policy to
promote short-term and long-term democracy efforts in countries of the Middle East,
Central Asia, South Asia, and Southeast Asia. Also, the United States would provide
assistance and resources to individuals and organizations that are committed to
promoting democracy in those countries. The section also would require the
Secretary of State to report to appropriate congressional committees within 180 days
after enactment with a country-by-country five-year U.S. strategy for promoting
democracy. The report must also contain an estimate of funding requirements to
implement the stated strategies.
Section 1422 would authorize the Secretary of State to designate a private,
nonprofit organization called the Middle East Foundation. The Secretary of State
would be authorized to provide funding for the organization through State
Department’s Middle East Partnership Initiative (MEPI), an economic assistance
program to promote democracy and reform in the Arab and Muslim world authorized
by Section 7115 of the 9/11 Implementation Act of 2004 (Title VII of the Intelligence
Reform and Terrorism Prevention Act of 2004; P.L. 108-458). The Foundation
would use funds to provide grants to individuals or entities either located in the
Middle East or working with partners in the Middle East to support education and
democracy reforms. The Foundation activities would be audited annually, and
recipients of grants from the Foundation shall permit audits, according to the
measure. Additionally, the Foundation would report annually to the appropriate
congressional committees on the operations, activities, grants, and financial condition
of the Foundation.
Senate Provisions. No comparable provisions.
Subtitle C: Advancing United States Interests
Through Public Diplomacy
House Provision. Section 1431 notes that Arab and Muslim audiences rely
on satellite television and radio, and that U.S. efforts in these areas with an Arab
population, in Iran, and in Afghanistan are reaching large audiences. It states that a
significant expansion of U.S. international broadcasting would provide cost-effective
means of improving communication with Muslim and Arab populations and would
authorize the President to direct any department, agency, or other governmental entity
to assist the Broadcasting Board of Governors (BBG) with financial and technical
resources, or “surge capacity,” during a crisis abroad. This section would authorize
appropriations of up to $25 million for such purposes and such sums as may be
necessary to carry out U.S. international broadcasting activities, in general. The BBG
would be required to provide an annual report to the President and Congress on surge
capacity activities.
Senate Provision. No comparable provision.
House Provision. Section 1432 would require the Secretary of State, within
30 days of enactment and every 180 days thereafter, to report to the appropriate
congressional committees on the recommendations of the National Commission on
Terrorist Attacks Upon the United States and on the policy goals of Section 7112 of
the 9/11 Implementation Act of 2004 (Title VII of the Intelligence Reform and
Terrorism Prevention Act of 2004; P.L. 108-458) about expanding U.S. scholarship,
exchange, and library programs in Arab and predominantly Muslim countries,
certifying the recommendations have been implemented and policy goals achieved.
Senate Provision. No comparable provision.
House Provision. Section 1433 notes that the 9/11 Commission urged the
United States to work with its allies on detention policies and humane treatment of
captured suspected terrorists. This section would require the Secretary of State, in
consultation with the Attorney General and the Secretary of Defense, to report to
relevant congressional committees within 90 days of enactment of this act and every
180 days thereafter, certifying that the 9/11 Commission recommendations have been
implemented and such policy goals have been achieved.
Senate Provision. No comparable provision.
Subtitle D: Strategy for the United States Relationship
with Afghanistan, Pakistan, and Saudi Arabia
House Provisions. Sections 1441 states that the United States shall
vigorously support the government of Afghanistan. It strongly urges that the
Afghanistan Freedom Support Act of 2002 be reauthorized. It would require the
President to dramatically increase police trainers and police personnel to Afghanistan
and submit a report to certain congressional committees within 180 days after
enactment of this act on meeting these requirements. This section would authorize
“such sums as may be necessary” to be appropriated for each of FY2008 and
FY2009.
Section 1442 notes that Pakistan has been important in helping the United States
deal with the Taliban regime in Afghanistan and terrorism. It states that the United
States shall work with the Government of Pakistan to combat international terrorism,
establish a long-term relationship with the Government of Pakistan, increase U.S.
foreign aid to Pakistan under certain conditions, and work with the international
community to help resolve the dispute between the Government of Pakistan and the
Government of India over Kashmir. This section would require the President to
report to certain congressional committees within 90 days after enactment on
America’s long-term strategy with the Government of Pakistan. This section would
provide certain limitations on U.S. assistance, but would also include the possibility
of a presidential waiver of the limitations. A sunset provision on the assistance
limitations would require the President to certify to certain congressional committees
that the Taliban or any related group has ceased to exist as an entity capable of
military, insurgent, or terrorist activities in Afghanistan. The section also would
designate certain foreign assistance accounts that may be authorized to have
appropriated “such sums as may be necessary” for FY2008 and designates other
general funds to be available for FY2007 and FY2008.
Section 1443 notes that Saudi Arabia has had an uneven record in the fight
against terrorism. It provides a sense of Congress that Saudi Arabia must undertake
political and economic reforms and asserts that it is the policy of the United States
to cooperate with Saudi Arabia to combat terrorism to engage and support Saudi
Arabia to make reforms. The section would require the President to report to certain
congressional committees within 90 days after enactment on the strategic dialogue
between the United States and Saudi Arabia to facilitate reforms and combat
terrorism.
Senate Provisions. No comparable provisions.
Senate Provisions Not in H.R. 1
Title VII: Enhanced Defenses Against Weapons
of Mass Destruction
National Biosurveillance Integration Center
Prepared by Sarah A. Lister, Specialist in Public Health and Epidemiology, CRS
Domestic Social Policy Division, 7-7320.
House Provision. No comparable provision.
Senate Provision. Section 701 would amend Title III of the Homeland
Security Act of 2002, adding a new Section 316, which would require the Secretary
of DHS to establish, operate, and maintain a National Biosurveillance Integration
Center (NBIC), and would codify the National Biosurveillance Integration System
(NBIS).36 Subject to appropriations, the NBIC shall be headed by a directing officer
to oversee development and operation of NBIS. The primary mission of the NBIC
would be to identify and monitor important biological events by integrating and
analyzing data from human health, animal, plant, food, and environmental
monitoring (surveillance) systems; and to communicate information to other federal
agencies and to state, local, and tribal governments, to enhance national response
capability. NBIS should: incorporate, when possible, data from federal, state and
local agencies, foreign governments, and private sources, both foreign and domestic;
use the best available technology to identify and characterize biological events in as
close to real-time as is practicable; consider patient confidentiality and privacy at all
stages of development and apprise the DHS Privacy Officer of such efforts; and alert
relevant parties, including public health agencies of state, local, and tribal
governments, regarding any incident that could develop into a biological event of
national significance. The Secretary shall ensure that the NBIC is fully operational
not later than September 30, 2008, and shall, not later than 180 days after enactment,
report to the Senate Committee on Homeland Security and Governmental Affairs,
and the House Committee on Homeland Security, on NBIC operations.
The Directing Officer of the NBIC shall: oversee all operations and assessments
related to the NBIS; establish a method of real-time communication with the National
Operations Center (the principal operations center for DHS); establish a Joint
Biosurveillance Leadership Council to facilitate interagency cooperation; share NBIS
incident information with member agencies and other affected parties, and in a
manner consistent with the information sharing environment established under
section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6
U.S.C. 485); and coordinate with the Office of the Director of National Intelligence,
the Under Secretary for Intelligence and Analysis, and other federal agencies, as
36 Operation of the National Biosurveillance Integration System (NBIS), developed in the
DHS Preparedness Directorate, is slated for transfer to the DHS Office of Health Affairs in
March 2007, as part of a department-wide reorganization.
appropriate. The bill also would establish information sharing requirements for
NBIC member agencies.
Biosurveillance Efforts
Prepared by Sarah A. Lister, Specialist in Public Health and Epidemiology, CRS
Domestic Social Policy Division, 7-7320.
House Provision. No comparable provision.
Senate Provision. Section 702 would require the Comptroller General to
submit a report to Congress describing: the state of federal, state, local, and tribal
government biosurveillance efforts as of the date of such report; any duplication of
effort at the federal, state, local, or tribal government level to create biosurveillance
systems; and the integration of biosurveillance systems to allow the maximizing of
biosurveillance resources and the expertise of federal, state, local, and tribal
governments to benefit public health.
Interagency Coordination to Enhance Defenses Against
Nuclear and Radiological Weapons of Mass Destruction
Prepared by Steve Bowman, Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-7613.
House Provisions. No comparable provisions
Senate Provisions. Directs the Secretary of Homeland Security, the
Attorney-General, the Director of National Intelligence, and the Secretaries of
Defense, State, and Energy to ensure interagency coordination in the creation of a
global nuclear detection architecture through detailed annual reviews and an annual
report to be submitted to the President and the Committees on Homeland Security,
Appropriations, and Armed Services in each chamber.
Comment. In April 2005, National Security Presidential Directive NSPD-43
established the Domestic Nuclear Detection Office (DNDO) within the Department
of Homeland Security. Among its missions, the DNDO was directed to develop an
“enhanced global nuclear detection architecture.” NSPD-43 requires an annual report
to the President on implementation of this program, but has no congressional
reporting requirement. This provision of S. 4 establishes a congressional reporting
requirement and specifies the report’s form and content.
Title XII: Congressional Oversight of Intelligence
Prepared by Richard A. Best Jr., Specialist in National Defense, CRS Foreign
Affairs, Defense, and Trade Division, 7-7607.
Availability to Public of Certain
Intelligence Funding Information
House Provision. No comparable provision.
Senate Provision. Section 1201 states that the President shall disclose the
aggregate amount requested for each fiscal year for the National Intelligence
Program; Congress shall disclose amounts authorized and appropriated for each fiscal
year. The Director of National Intelligence (DNI) is to conduct a study to determine
advisability of disclosing further budgetary detail to the public.
Comment. The question of making intelligence budgets public has been
discussed for many years; proponents argue that it is essential for there to be an open
accounting of intelligence spending; opponents argue the need to maintain secrecy
of sensitive matters; see CRS Report 94-261, Intelligence Spending: Public
Disclosure Issues, by Richard A. Best Jr. and Elizabeth B. Bazan. A complicating
factor may be the complexity of intelligence spending outside of, but closely linked
to, the National Intelligence Program.
Response of Intelligence Community
to Requests from Congress
House Provision. No comparable provision.
Senate Provision. Section 1202 amends 50 U.S.C. 413. Heads of
intelligence agencies and national intelligence centers shall within 15 days of a
request from one of the congressional intelligence committees or another committee
with jurisdiction, make available to such committee any requested intelligence
assessment, report, estimate, legal opinion, or other intelligence information.
Agencies shall also respond similarly to requests from the chairman or vice chairman
of the Senate Select Committee on Intelligence or the chairman or ranking member
of the House Permanent Select Committee on Intelligence. The chairmen or vice
chairman/ranking member shall notify their counterparts of such requests.
Information requested shall be provided unless the President asserts a privilege
pursuant to the Constitution.
Section 1202 further provides that no agency head or equivalent in the
Executive branch shall have authority to require intelligence officials to receive
permission to testify before Congress. Heads of departments, agencies or elements
may submit to Congress recommendations, testimony, or comments without prior
approval, if such submissions include a statement indicating that the views are those
of the agency official and do not necessarily represent the views of the
Administration.
Section 1202 also provides that intelligence officials or employees of
contractors working for intelligence agencies may disclose to Congress “covered
information,” defined as information that the official reasonably believes provides
direct and specific evidence of a false or inaccurate statement made to Congress or
contained in intelligence assessment, report or estimate, without reporting such
information to the appropriate Inspector General. The information may be disclosed
to Members of Congress “authorized to receive information of the type disclosed”
and to House and Senate employees authorized to receive information of the type
disclosed and who have appropriate security clearances. Members and staff shall be
presumed to have a “need to know.” Covered information excludes information the
disclosure of which is prohibited by rule 6(e) of the Federal Rules of Criminal
Procedure.
Comment. The provision regarding dissemination of products would place in
statute a requirement for dissemination of intelligence products and legal opinions
to congressional committees with oversight. Current law provides that the
intelligence committees be kept “fully and currently informed” (50 U.S.C. 413) of
intelligence activities, but does not specifically include assessments, reports, and
legal opinions. The provision on independent testimony of intelligence officials
would facilitate oversight of intelligence activities, but questions might be raised
regarding whether it could complicate maintaining administrative efficiency within
the Executive Branch.
This provision regarding “covered information” would authorize officials in
intelligence agencies to report false or inaccurate statements in congressional
testimony or in intelligence products to Members of Congress authorized to receive
such information and to staff who have the appropriate security clearance and are
authorized to receive such information. The information could be reported without
first notifying the appropriate Inspector General as is now required pursuant to the
provisions of the Intelligence Authorization Act for FY1999 (P.L. 105-272). It may
be argued that this provision could make it difficult to maintain the security of highly
sensitive intelligence activities. Also, some may question whether the formulation,
officials “authorized to receive information of the type disclosed,” is sufficiently
precise to provide clear guidance to officials seeking to disclose covered information.
Public Interest Declassification Board
House Provision. No comparable provision.
Senate Provision. Section 1203 states that a Public Interest Declassification
Board (PIDB) may undertake reviews in response to congressional requests.
Resulting recommendations shall be submitted to the chairman and ranking member
of the requesting congressional committee.
Comment. At present, 50 U.S.C. 704(e) provides that the Public Interest
Declassification Board shall respond to a Presidential request to review documents,
the declassification of which has been requested by a congressional committee of
jurisdiction; this change would permit the Board to review documents in response to
a congressional request.
Sense of the Senate Regarding a Report on the 9/11
Commission Recommendations with Respect to Intelligence
Reform and Congressional Intelligence Oversight Reform
House Provision. No comparable provision.
Senate Provision. Section 1204 expresses the sense of the Senate, based on
recommendations of the 9/11 Commission, that the Committee on Homeland
Security and the Select Committee on Intelligence each, or jointly, should undertake
a review of recommendations by the 9/11 Commission with regard to intelligence
reform and congressional intelligence oversight reform, and other recommendations
and submit a report to the Senate by December 21, 2007 with recommendations, if
any, for carrying out such reforms.
Comment. The 9/11 Commission concluded that congressional oversight is
dysfunctional; some changes in oversight have been made in response, but this
provision reflects concern that the changes made thus far have not been fully
responsive to issues raised by the 9/11 Commission.
Availability of Funds for the Public Interest
Declassification Board
House Provision. No comparable provision.
Senate Provision. Section 1205 authorizes the National Archives and
Records Administration (NARA) to obligate monies necessary to carry out the
activities of the Public Interest Declassification Board.
Comment. This provision provides authority for the NARA to obligate
monies to carry out the activities of the PIDB.
Availability of the Executive Summary of the Report on
Central Intelligence Agency Accountability Regarding the
Terrorist Attacks of September 11, 2001
House Provision. No comparable provision.
Senate Provision. Section 1206 requires the CIA Director to make public
a version of the Executive Summary of a June 2005 report entitled the “Office of
Inspector General Report on Central Intelligence Agency Accountability Regarding
Findings and Conclusions of the Joint Inquiry into Intelligence Activities Before and
After the Terrorist Attacks of September 11, 2001.” The CIA Director is also to
submit to Congress a classified annex to this report explaining why any redacted
material was withheld from the public.
Comment. Then-Director of Central Intelligence Porter Goss issued a
statement in October 2005 indicating opposition to the release of the Inspector
General’s report, arguing that it “goes to the inner workings of this Agency and our
sources and methods.” Furthermore, Goss argued that publicizing individual CIA
officials named in the IG report would “send the wrong message to our junior
officers about taking risks — whether it be an operation in the field or being assigned
to a hot topic at headquarters.” On the other hand, making a version of the IG Report
public might address concerns of 9/11 families and other commentators about the
performance of the CIA prior to 9/11.
Title XIII: International Cooperation
on Antiterrorism Technologies
Prepared by John Rollins, Specialist in Terrorism and International Crime, CRS
Foreign Affairs, Defense, and Trade Division, 7-5529.
House Provisions. No comparable provisions.
Senate Provision. In Section 1301(a) of S. 4, Promoting Antiterrorism
Capabilities Through International Cooperation, Congress finds the following:
(1) The development and implementation of technology are critical to
combating terrorism and other high consequence events and implementing a
comprehensive homeland security strategy.
(2) The United States and its allies in the global war on terrorism share a
common interest in facilitating research, development, testing, and evaluation of
equipment, capabilities, technologies, and services that will aid in detecting,
preventing, responding to, recovering from, and mitigating against acts of terrorism.
(3) Certain United States allies in the global war on terrorism, including Israel,
the United Kingdom, Canada, Australia, and Singapore have extensive experience
with, and technological expertise in, homeland security.
(4) The United States and certain of its allies in the global war on terrorism have
a history of successful collaboration in developing mutually beneficial equipment,
capabilities, technologies, and services in the areas of defense, agriculture, and
telecommunications.
(5) The United States and its allies in the global war on terrorism will mutually
benefit from the sharing of technological expertise to combat domestic and
international terrorism.
(6) The establishment of an office to facilitate and support cooperative
endeavors between and among government agencies, for-profit business entities,
academic institutions, and nonprofit entities of the United States and its allies will
safeguard lives and property worldwide against acts of terrorism and other high
consequence events.
Section 1301(b) of S. 4 includes a technical and conforming amendment that
inserts the following provisions after Section 316 of H.R. 5005, Homeland Security
Act of 2002 (P.L. 107-296):
Section 317, Promoting Antiterrorism Through International Cooperation
Program. For the purposes of this section international cooperative activity includes
coordinating research projects, conducting joint technical demonstrations, combining
seminars and training efforts, establishing scientific exchange programs, sharing
antiterrorism technology, and allowing the joint use of laboratory facilities. As
amended, P.L. 107-296 establishes a Science and Technology Homeland Security
International Cooperative Programs Office. The responsibilities of this office would
be to coordinate with other federal government agencies to develop the legal
framework to support international cooperative activities, assist with the
development of international science and technology efforts within the federal
government, and facilitate the planning, development, and implementation of
antiterrorism research efforts with foreign governments, private entities, and
universities. Section 317(c) provides that the Secretary should ensure funding and
resources expended toward international cooperative activities are equitably
contributed by all partnering entities. Section 317 further provides that the foreign
partners in this program “may include Israel, the United Kingdom, Canada, Australia,
Singapore and other U.S. allies in the global war on terrorism.”
Transparency of Funds
House Provision. No comparable provision.
Senate Provision. Section 1302 of S. 4, Transparency of Funds, provides
that, for each Federal award under this Title or an amendment made by this Title, the
Director of the Office of Management and Budget will ensure full and timely
compliance with the requirements of the Federal Funding Accountability and
Transparency Act of 2006 (31 U.S.C. 6101).
Title XIV: Transportation and Interoperable
Communication Capabilities
Subtitle A Part I: Improved Rail Security
Rail Transportation Security Risk Assessment
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. Section 1421 of the Senate bill directs DHS to establish
a task force, composed of DHS, DOT, and other appropriate federal agencies, to
conduct a risk assessment of freight and passenger rail transportation. This
assessment is to include a description of the methodology used; identification of
critical assets and infrastructure and the risks they face, including the risks specific
to transporting hazardous materials by rail; an assessment of stakeholder plans to
resume operations after a security incident; and an account of actions taken by
stakeholders to address the identified risks. DHS is then to develop prioritized
recommendations for improving rail security, including a plan developed in
consultation with the industry and state and local governments “for the federal
government to provide adequate security support at high or severe threat levels of
alert.” DHS is also to develop plans for coordinating rail security initiatives
undertaken by the public and private sectors, and a contingency plan for the
continued operation of the rail network in the event of an attack. DHS is to submit
a report including these plans to Congress within one year of the signing of the bill;
this report shall include an estimate of the cost to implement the prioritized
recommendations for improving rail security developed by DHS.
Rail Transportation Security Grant Programs
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. Section 1424 of the Senate bill authorizes $300 million
over three years (FY2008-FY2010) for a rail security grant program under DHS for
full or partial reimbursement of the costs of preventing or responding to risks
identified in DHS’ rail transportation security risk assessment. Eligible recipients
include freight railroads, Amtrak, the Alaska Railroad, hazardous materials offerers,
owners of rail cars used for transporting hazardous materials, universities, and state
and local governments (for rail passenger facilities not owned by Amtrak). Eligible
expenses include securing hazardous material transportation by rail, securing
passenger rail stations, trains, and infrastructure, employee security training,
accommodating cargo or passenger screening equipment at the borders with Canada
and Mexico or other ports of entry, and hiring additional security personnel. Grants
shall be allocated based on risk; limits are placed on the cumulative amount that can
be allocated to Amtrak ($45 million) and for hazardous material transportation ($80
million). No match is required by recipients, though DHS shall encourage non-
federal matches for the grants; DHS shall report to Congress within eight months of
enactment of the bill on the feasibility and appropriateness of requiring non-federal
matches for the grants. Grants to Amtrak, though awarded by DHS, shall be
disbursed by DOT.
Amtrak Provisions
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. The Senate bill includes several provisions affecting
Amtrak. Section 1422 would create a security grant program in DHS specifically for
Amtrak. Eligible expenses for this grant program would include protection for high-
risk assets identified through risk assessments, counter-terrorism training, and
emergency preparedness exercises; specific projects include securing tunnels along
the Northeast Corridor, securing trains and stations, and adding additional security
personnel. Although the grant program would be under DHS, the funds would be
disbursed by DOT; projects funded with the grants must be part of a security plan
approved by DHS. The bill would authorize a total of $123.5 million over three
years (FY2008-FY2010) for this program. Section 1423 would authorize funding for
safety improvements to Amtrak tunnels along the Northeast Corridor. The grants
would be disbursed by DOT, in consultation with DHS; the bill would authorize
$400 million for New York-New Jersey tunnels, $40 million for Baltimore tunnels,
and $32 million for tunnels under Union Station in Washington, D.C. Funds would
be available over four years, FY2008-FY2011, subject to approval of project
management plans by DOT. DOT is also directed to obtain financial contributions
for the projects from other rail carriers reflecting their use of the tunnels, “if
feasible.” Section 1427 directs Amtrak to develop a plan to address the needs of
families of passengers involved in rail passenger accidents.
Section 1438 provides that District of Columbia laws shall govern Amtrak
contracts with Maryland. According to Amtrak, this would restore the situation that
prevailed until passage of the Amtrak Reform and Accountability Act of 1997 (P.L.
105-178), which eliminated the governance of District of Columbia law over Amtrak
contracts. This created a conflict between Amtrak’s practice and the dispute
resolution clause in Maryland procurement law.
Northern Border Rail Passenger Report
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. Section 1428 of the Senate bill requires DHS to report
to Congress, within one year of the signing of the bill, on the progress of efforts to
provide preclearance of passengers on trains operating between the United States and
Canada, along with an assessment of the current programs for preclearing air
passengers and freight cargo moving between the United States and Canada.
Currently, Amtrak trains transporting passengers from Canada to the United States
must stop at the border while passengers and baggage are screened.
Freight Rail Specific Provisions
Prepared by John Frittelli, Specialist in Transportation, CRS Resources,
Science, and Industry Division, 7-7033.
House Provisions. No comparable provision.
Senate Provisions. Part I of Title XIV of the Senate bill defines “high
hazard materials” as a subset of hazardous materials that includes inhalation
hazardous materials and seeks to enhance the security of the rail transport of these
materials. The bill would require DHS, in consultation with the DOT, to direct the
railroads to develop a specific plan for transporting these materials when DHS raises
the threat level to high or severe or obtains intelligence of a probable or imminent
threat. This plan may include rerouting or temporarily suspending the rail
transportation of these materials through potentially “high consequence targets.” The
bill requires DHS, in consultation with the DOT, to develop a program to encourage
railroads to equip their railcars carrying these materials with tracking devices
indicating their location and condition. The bill would allow certified or
commissioned police officers employed by one railroad to be temporarily assigned
to a another railroad and would create a security training program for “front-line”
railroad workers. The bill also seeks whistleblower protection for railroad employees
providing information relating to a reasonably perceived security threat or refusing
to violate any security-related regulation.
Unified Carrier Registration System Plan Agreement
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. Section 1436 of the Senate bill would restore the Single
State Registration System for commercial motor vehicles, which was repealed on
January 1, 2007, until such time as the Unified Carrier Registration System, which
is intended to replace it, has been fully implemented.
Authorization of Appropriations
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. Section 1437 of the Senate bill would authorize a total
of $537 million to DHS over three years (FY2008-FY2010) and $475 million to
DOT over four years (FY2008-FY2011) to carry out the provisions of this Title (Title
XIV).
Comment. The Administration has issued a statement of administration policy
making several objections to provisions in this Title: that it would create grant
programs OMB sees as duplicating existing grant programs; that rail operators are
responsible for protecting their passengers and assets, so having the federal
government cover their security costs is inappropriate and sets a precedent for other
industries to seek similar assistance; that security-related grants to Amtrak should be
administered by DHS; and that the authorized funding levels may divert resources
needed for higher priority requirements in other areas. The Administration has also
stated that in many places in this Title the division of responsibilities between DHS
and DOT is not clear, potentially leading to confusion.
Freight trains carrying toxic-by-inhalation hazardous materials through cities
continues to be a difficult problem in transportation security.37 During Senate floor
debate of S. 4, an amendment was defeated (S.Amdt. 306) that would have required,
except under specific circumstances, the rerouting of trains carrying high hazard
materials through high threat corridors. On December 26, 2006, DOT issued a notice
of proposed rulemaking that would require railroads to analyze the safety and security
of certain hazardous material routes and investigate whether an alternative route is
37 For legal aspects of this issue, see CRS Report RS22041, Legal Issues Concerning State
and Local Authority to Restrict the Transportation of Hazardous Materials by Rail, by Todd
B. Tatelman.
safer and more secure.38 On the same day, DHS issued a notice of proposed
rulemaking that would require railroads to ensure that carloads of these materials are
not left unattended while awaiting transfer among railroads, that railroads reduce the
amount of standstill time for these carloads, and that railroads track and locate these
carloads upon request from DHS.39 Railroads contend that their trains move on
irregular schedules making it difficult for terrorists to execute an attack.40 They also
contend that rerouting these materials could increase the risk of accidental release
because rerouting would likely lengthen total transit time, involve additional yard
switching, or use alternative track that is not as well maintained because it is used for
other types of cargo. Proponents of rerouting assert that the security risk to certain
high population centers is just too great not to ban these rail shipments from these
areas. Other options that could mitigate the risks, such as shippers substituting less
dangerous products or sourcing these products closer to the end user, are feasible
only in limited situations.
38 See Federal Register, vol. 71, no. 245, p. 76834.
39 See Federal Register, vol. 71, no. 245, pp. 76852-76888.
40 “Dangerous Rail Cargo Raises Concern in Cities But Local Efforts to Regulate Traffic
Have Been Thwarted by Federal Court Challenges,” The Atlanta Journal-Constitution, Mar.
Subtitle A Part II: Improved Motor Carrier, Bus,
and Hazardous Material Security
Motor Carrier and Hazardous Material Security
Prepared by John Frittelli, Specialist in Transportation, CRS Resources,
Science, and Industry Division, 7-7033.
House Provisions. No comparable provision.
Senate Provisions. Part II of Title XIV of the Senate bill contains a number
of provisions regarding truck, pipeline, hazardous material, and port worker security.
Regarding the trucking of hazardous materials (hazmat), the bill requires DOT, in
consultation with DHS, to review existing hazmat routes and develop criteria based
on safety and security concerns to assist states in designating routes for hazmat
transportation. The bill requires DOT to assess whether route plans currently
required for trucks carrying radioactive or explosive materials should also be required
for trucks carrying other types of hazmat. The bill requires DHS, in consultation with
DOT, to develop a program to evaluate the costs, benefits, and capabilities of
technology for tracking high hazard material shipments. It also requires DHS, in
conjunction with DOT, to consider the development of a national response system
utilizing the information obtained from hazmat tracking technology. The bill
requires DHS, in consultation with DOT, to review the security plans of hazmat
shippers and carriers that are currently required by the Pipelines and Hazardous
Materials Safety Administration (PHMSA, a DOT agency) and in doing so, not to
subject these hazmat shippers and carriers to unnecessarily duplicative reviews by
both DHS and DOT.
Apart from the security of hazmat trucking, the bill requires DHS, in
consultation with DOT, to develop protocols for providing increased security of
pipelines during severe security threat levels and protocols for responding to a
pipeline security incident.41 The bill requires DHS to conduct a study of the need for
and feasibility of creating a user fee in the maritime and surface modes for funding
transportation security improvements. The bill calls on the DHS IG to audit the
Trucking Security Grant program for fiscal years 2004 and 2005. Regarding port
workers, the bill would codify the list of disqualifying offenses that DHS recently42
promulgated as disqualifying a worker from obtaining a transportation security
card. However, the bill includes two sections that appear to be contradictory to one
another regarding the list of disqualifying offenses. Section 1454 would allow DHS,
by rulemaking, to “add or modify” the list of disqualifying offenses while section
Comment. Hazmat transportation security raises the issue of the respective
roles of DHS and DOT towards that effort. While the TSA, the Coast Guard, and
41 For further information on pipeline security, see CRS Report RL33347, Pipeline Safety
and Security: Federal Programs, by Paul W. Parfomak.
42 See Federal Register, vol. 72, no. 16, Jan. 25, 2007, p. 3492.
CBP — all housed within DHS — have primary responsibility for hazmat security,
PHMSA, FRA, and FMCSA — all housed within DOT — have primary
responsibility for hazmat safety.43 Many of the safety regulations that DOT modal
administrations enforce also enhance security, such as emergency response training
requirements or railcar construction requirements. The reverse is also true with
respect to DHS security regulations. Although the hazmat security provisions in S.
requires them to add an annex to their existing Memorandum of Agreement, avoiding
confusion about who is in charge of hazmat security may still be an issue. Even prior
to the creation of TSA, hazmat carriers and shippers often noted the complexity of
hazmat safety regulations stemming from the various DOT administrations.44 The
Administration has raised this as an issue in its statement of administration policy on
S. 4, stating it “is concerned that the assignment of various tasks pertaining to
security to DHS and DOT is not clear in several provisions of the bill, raising
potential questions about which department has lead authority and responsibility for
transportation security. In addition, some of the authorities granted by the bill may
lead to stakeholder confusion as to the lead agency implementing Federal
transportation security policy.”45
Over-the-Road Bus Security Assistance
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
House Provisions. No comparable provision.
Senate Provisions. Section 1447 of the Senate bill would authorize $62
million over three years (FY2008-FY2010) for a security grants program under DHS
for over-the-road buses and bus terminals (over-the-road buses are defined as buses
with a baggage compartments underneath the passenger compartment). Eligible
expenses would include security modifications to terminals, buses, and related
facilities, employee training, hiring security personnel, installing surveillance
equipment on buses and at terminals and related facilities, emergency communication
systems, and passenger screening programs. Grants shall be prioritized according to
risk. Grant recipients must have a security plan approved by DHS. DHS shall also
provide Congress with an assessment of the program and of additional needs for
securing over-the-road bus transportation. This would represent a significant
increase over the $10 million Congress appropriated in FY2007 for the existing over-
the-road bus grant program in DHS.
43 With regard to waterborne hazmat, the Coast Guard, which used to be housed in the DOT
prior to the creation of the DHS, has primary responsibility for both its safety and security.
44 See for instance, Journal of Commerce, “Special Report - Hazardous Materials,” August
45 OMB, Statement of Administration Policy- S. 4, February 28, 2007, p. 8.
Subtitle B: See Title 4, H.R. 1
Subtitle C: Interoperable Emergency Communications
Interoperable Emergency Communications
Prepared by Linda K. Moore, Analyst in Telecommunications and Technology
Policy, CRS Resources, Science, and Industry Division, 7-5853.
House Provisions. See discussion of Title II, H.R. 1.
Senate Provisions. The summary of provisions in this title that are related
to communications are included in the discussion under Title II, H.R. 1.
Extension of Short Quorum
Prepared by T. J. Halstead, Legislative Attorney, CRS American Law Division,
House Provisions. No comparable provision.
Senate Provisions. This provision would make clear that notwithstanding
the short quorum requirements set out in section 4(d)of the Consumer Product Safety
Act (15 U.S.C. § 2053(d)), two members of the Consumer Product Safety
Commission shall constitute a quorum for the six month period beginning on the date
of enactment, if the members are not affiliated with the same party. The provision
effectively extends the period in which the current two member Commission may
meet to transact business beyond that set out in current law, which expired in January
2007 — the end of the “six month period beginning on the date of the vacancy which
caused the number of Commission members to decline to two.”
Requiring Reports to be Submitted to Certain Committees
House Provisions. No comparable provision.
Senate Provisions. This provision specifies committees that are to receive
required reports, as listed in the section.
Title XV: Public Transportation
Terrorism Prevention
Prepared by David Randall Peterman, Analyst in Transportation, CRS
Resources, Science, and Industry Division, 7-3267.
Overview
Title XV of the Senate bill, the Public Transportation Terrorism Prevention Act
of 2007, would have DHS set security improvement priorities for public transit
agencies, prescribe employee training requirements for transit agencies, and would
authorize a sharp increase in federal grants to transit agencies for security
improvements, from $175 million in FY2007 to approximately $1.1 billion annually.
The bill would also require transit agencies to provide training for all their employees
within one year of getting their training programs approved by DHS. Specific
provisions of the bill are discussed in further detail below.
House Provisions. No comparable provision.
Security Assessments. Section 1503 of the Senate bill directs DHS to use
public transportation security assessments that have been completed for individual
transit agencies as the basis for allocating transit security grants. The bill also directs
DHS to establish security improvement priorities for the use of federal transit security
grant funds, in consultation with the transit agencies for which security assessments
have been completed. DHS is to update the existing security assessments annually,
and to conduct security assessments “appropriate to the size and nature of each
system” for local bus-only systems and rural transit systems. These provisions would
appear to require DHS to conduct a security assessment of all the transit agencies in
the nation.
Security Grants. Section 1504 of the Senate bill would create grant
programs for security-related capital expenses (e.g., tunnel and perimeter protection,
communication equipment, surveillance equipment, and chemical, biological,
radiation and explosives screening equipment) and operating expenses (e.g.,
employee training, canine patrols, overtime costs during heightened alerts). The act
authorizes an average of $1.13 billion annually; no match is required from the grant
recipient. The grants would go directly to transit agencies.
Security Training Program. Section 1505 of the Senate bill would require
DHS to issue regulations prescribing training requirements for public transportation
workers. These training requirements would include live situational training
exercises. Transit agencies would be required to develop training plans for their
employees, which would have to be reviewed and approved by DHS. Within one
year of having their training plans approved, transit agencies would have to provide
training to all their employees.
Intelligence Sharing. Section 1506 of the Senate bill would require DHS to
fund the public transportation information sharing and analysis center (ISAC). This
ISAC promotes the sharing of security information between federal agencies and
transit agencies on a full-time, round-the-clock basis. DHS is to require the
participation of transit agencies it considers to be at “significant” risk of terrorist
attack, and to encourage the participation of all other transit agencies. No fee is to
be charged to transit agencies for their participation in the ISAC.
Research, Development, and Demonstration Grants and Contracts.
Section 1507 of the Senate bill directs DHS, in consultation with FTA, to awards
grants or contracts to public or private entities for research into, development of, and
demonstration of technologies and methods to reduce the threat of terrorist attack and
to mitigate the consequences of such attacks.
Authorization of Appropriations. Section 1509 of the bill authorizes a
total of $3.5 billion over three years, FY2008-FY2010: $2.4 billion for the capital
security grant program, $1.0 billion for the operational security grant program, and
$130 million for a research, development and deployment grant program
Sunset Provisions. Section 1510 of the Senate bill provides that the
authority to make grants under this Title will expire on October 1, 2011.
Comment. The Administration has several objections to the security grant
program in this bill, in a statement of administration policy: that it duplicates the
existing transit security grant program in DHS, that transit agencies are responsible
for the security of their customers and assets, so having the federal government pick
up their security costs is inappropriate and sets a precedent for other industries to
request similar assistance; and that the authorized level of funding may divert
resources needed for higher-priority requirements in other areas of federal
responsibility.
For FY2007 Congress appropriated $175 million for security grants for public
transportation, intercity passenger rail and freight rail organizations; DHS allocated
$149 million to 8 Tier I metropolitan area transit agencies, $14 million to 29 Tier II
metropolitan area transit agencies, and $7 million to 14 ferry systems ($8 million was
allocated to Amtrak). DHS provides the grants to state homeland security agencies,
who then distribute the funds to the transit agencies; in part this is to ensure that the
security activities of transit agencies are consistent with the state’s security plan. The
Senate bill, which would direct DHS to grant the money directly to the transit
agencies, would make DHS responsible for ensuring that the security improvement
priorities it sets for transit agencies, and the grants it provides to those agencies, are
consistent with the relevant state homeland security plans.
Transit agencies have described employee training as their second priority,
though TSA regards employee training as the single most effective security activity
that transit agencies can implement. Training issues include how many employees
are receiving training, how useful is the training being provided, and the cost of
providing training. The Federal Transit Administration testified in the fall of 2006
that 80,000 transit employees had received security training, around 20% of the
approximately 400,000 employees in the industry. Employee groups note that transit
employees are likely to be the first responders in the event of a security incident, and
contend that the training employees have received is not thorough enough to give
them confidence that they know what to do in security situations. Live situational
training exercises, in coordination with first responder organizations, are considered
the most effective form of training, but are expensive, since the transit agencies must
continue to provide service while employees are receiving training.
Title XVI: Miscellaneous Provisions
Management challenges at the Department of Homeland Security have been
identified in numerous congressional hearings, as well as studies by the Government
Accountability Office and others. Some have expressed the view that the existing
position of under secretary for management at the department lacks the authority and
tenure to initiate and carry out department-wide management integration and
transformation. Legislation with similar language to that used in this provision (S.
but it was not acted upon. Senator Voinovich introduced similar legislation (S. 547)
at the beginning of the 110th Congress.
Deputy Secretary of Homeland Security for Management
Prepared by Henry B. Hogue, Analyst in American Government, CRS
Government and Finance Division, 7-0642.
Overview
House Provisions. No comparable provision.
Senate Provisions. Section 1601 of S. 4 would establish the position of
deputy secretary of homeland security for management (DSM), to be compensated
at Level II of the Executive Schedule. The DSM would exercise the duties of the
deputy secretary of homeland security in the event of a vacancy in that office, or the
absence or disability of the incumbent. The DSM would exercise the duties of the
secretary of homeland security in the event of a simultaneous vacancy in the positions
of secretary and deputy secretary, or the simultaneous absence or disability of the
incumbents of these offices. The secretary would be empowered to further designate
the order of succession to his or her office. Section 1601 would reassign to the DSM
all responsibilities currently assigned to the under secretary for management, but
would not abolish this position. The DSM would be identified as the “Chief
Management Officer and principal advisor to the Secretary” on related matters.
Additional statutory DSM responsibilities beyond those presently assigned to the
under secretary for management would include strategic planning, annual
performance planning, and the “integration and transformation process, to ensure an
efficient and orderly consolidation of functions and personnel to the Department,
including the development of a management integration strategy for the department.”
Appointments to the position of DSM would be made by the President with the
advice and consent of the Senate from among individuals meeting specified
qualifications. The incumbent would serve for a five-year term, and he or she could
be removed by the President for unsatisfactory performance after the communication
to Congress of his reasons. The DSM and secretary would enter into an annual
performance agreement, and the DSM would be subject to annual performance
evaluations by the Secretary. An incumbent DSM with satisfactory performance
could be reappointed. The current under secretary for management could perform the
DSM’s duties until the first DSM’s appointment.
Comment. Section 1601 establishes a position with fixed tenure. Some
similar provisions of law permit an appointee to continue holding the position past
the end of his or her term for a fixed period of time or until a potential successor has
reached a specified point in the appointment process. For example, a special counsel
has a fixed term of five years, but “may continue to serve beyond the expiration of
the term until a successor is appointed and has qualified, except that the Special
Counsel may not continue to serve for more than one year after the date on which the
term of the Special Counsel would otherwise expire under this subsection” (5 U.S.C.
Section 1211(b)). Other similar statutes include no such holdover provision. The
statute that establishes the comptroller of the currency, for example, specifies a five-
year term but includes no holdover provision (12 U.S.C. Section 2).
Sense of the Senate Regarding Oversight
of Homeland Security
Prepared by Christopher M. Davis, Analyst in American National Government-
Congress, CRS Government and Finance Division, 7-0656.
Overview
The 9/11 Commission recommended that “Congress should create a single,
principal point of oversight and review for homeland security,” and expressed its
belief that there should be “one [committee] in the House and one in the Senate, and
that this committee should be a permanent standing committee with a nonpartisan
staff.” (The 9/11 Commission Report, p. 421.)
Both chambers have made structural and jurisdictional changes in its
committees in response to the recommendations of the 9/11 Commission.
The House created an Appropriations Subcommittee on Homeland Security
when the committee organized for the 108th Congress in February 2003. The Senate
Appropriations Committee made a similar change when it organized in March
In addition, in the 110th Congress, the House created a Select Intelligence Oversight
Panel in the House Appropriations Committee with the adoption of H.Res. 35 on
January 9, 2007. In the 108th Congress, with the adoption of S.Res. 445, the Senate
directed its Appropriations Committee to establish a Subcommittee on Intelligence.
As of this writing, however, the committee has not done so.
On August 25, 2004, then-Senate Majority Leader Bill Frist and then-Minority
Leader Tom Daschle announced the appointment of a bipartisan working group of
22 Senators, headed by Senators Mitch McConnell and Harry Reid, to examine how
best to implement the 9/11 Commission’s recommendations that dealt with reform
of the Senate’s oversight of intelligence and homeland security. Early in October,
2004, the group unveiled a series of recommended reforms in Senate committee
operation and jurisdiction with regard to homeland security and intelligence. On
46 CRS Report RL31572, Appropriations Subcommittee Structure: History of Changes from
October 9, 2004, the Senate adopted S.Res. 445, a resolution that implemented a
number of the working group’s suggestions regarding Senate committee
reorganization. The provisions of the resolution took effect upon the convening of
the 109th Congress on January 4, 2005.
S.Res. 445 renamed the Senate Committee on Governmental Affairs as the
Senate Committee on Homeland Security and Governmental Affairs, and transferred
to the new panel jurisdiction over matters relating to the Department of Homeland
Security, with certain limitations. S.Res. 445 exempted certain units within the
Department of Homeland Security, such as the Coast Guard, from transfer to the
Homeland Security and Governmental Affairs Committee. Additional exemptions,
such as the Secret Service, were also added by floor amendment to the working group
proposal. Excluded from the jurisdiction of the Homeland Security and
Governmental Affairs Committee under S.Res. 445, as amended, are the following:
!Transportation Security Administration (retained in the Commerce
Committee);
!Federal Law Enforcement Training Center (retained in the Judiciary
Committee);
!revenue and commercial functions of the Bureau of Customs and
Border Protection and the Bureau of Immigration and Customs
Enforcement, including matters relating to trade facilitation and
trade regulation (retained in the Finance Committee);
!matters relating to “... the United States Citizenship and Immigration
Service; or ... the immigration functions of the United States
Customs and Border Protection or the United States Immigration
and Custom Enforcement or the Directorate of Border and
Transportation Security” (retained in the Judiciary Committee);
!Coast Guard (retained in the Commerce Committee);
!Secret Service (retained in the Judiciary Committee); and
!National Flood Insurance Act of 1968, (retained in the Banking
Committee) including the functions of the Federal Emergency
Management Agency (FEMA) relating to that program (the rest of
FEMA had previously been in the Environment and Public Works
Committee).
On January 4, 2005, the House of Representatives adopted H.Res. 5, the rules
package for the 109th Congress. Section 2 of H.Res. 5 amended House Rule X
(related to the jurisdiction of standing committees) to create a standing Committee
on Homeland Security with legislative and oversight jurisdiction. As amended, Rule
X grants the panel jurisdiction over:
... (1) overall homeland security policy; (2) organization and administration of
the Department of Homeland Security; (3) functions of the Department of
Homeland Security related to the following: (A) border and port security (except
immigration policy and non-border enforcement); (B) customs (except customs
revenue); (C) integration, analysis, and dissemination of homeland security
information; (D) domestic preparedness for and collective response to terrorism;47
(E) research and development; (F) transportation security.
47 H.Res. 5, 109th Cong., 1st sess.
An insert entitled “Legislative History to Accompany Changes to Rule X, Rule
X and the Committee on Homeland Security, Legislative History,” placed in the
Congressional Record on January 4, 2005, by then Rules Committee Chair David
Dreier, elucidated several exceptions and clarifications to the jurisdiction of the
Homeland Security Committee.48 The Committee was reestablished at the beginning
of the 110th Congress.
House Provisions. No comparable provision.
Senate Provisions. Identical language was included in Section 1303 of the
amendment in the nature of a substitute to S. 4, which was reported by the Senate
Committee on Homeland Security and Governmental Affairs on February 27, 2007,
and was incorporated verbatim in SA 275, the leadership substitute to S. 4 offered
by Majority Leader Harry Reid on February 28, 2007.
After noting that the Department of Homeland Security testified in hundreds of
hearings before dozens of congressional committees and subcommittees in recent
years, the provision concludes that “the Senate has been unwilling to reform itself in
accordance with the recommendation of the Commission to provide better and more
streamlined oversight of the Department.” Therefore, it states that it is “the sense of
the Senate that the Senate should implement the recommendation of the Commission
to ‘create a single, principal point of oversight and review for homeland security.’”
Report Regarding Border Security
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
House Provisions. No comparable provision.
Senate Provisions. Section 1604 would direct DHS to submit a report to
Congress, within 180 days of enactment, concerning efforts made to secure the
northern border. The report would cover the vulnerabilities along the northern border
and provide recommendations on how to address those vulnerabilities, including
what resources are required to secure the northern border. Would also require the
Government Accountability Office to review DHS’ report and submit comments and
recommendations regarding any additional actions that should be taken to secure the
northern border within 270 days of the report’s submission.
48 Congressional Record, daily edition, vol. 151, Jan. 4, 2005, p. H25.
Law Enforcement Assistance Force
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
House Provisions. No comparable provision.
Senate Provisions. Section 1605 would direct DHS to establish a Law
Enforcement Assistance Force (LEAF) in order to facilitate DHS’ ability to deploy
retired law enforcement officers and agents to provide assistance during major
disasters, as defined by 42 U.S.C. §5122. Individuals eligible to participate in LEAF
would include individuals who left public law enforcement agencies in good
standing, hold current certifications for firearms and first aid, and meet any other
qualifications the Secretary deems necessary. LEAF participants would be detailed
to federal, state, or local law enforcement agencies and would be directly supervised
by an officer or agent from that agency. Individuals called to serve during a major
disaster would be eligible for reimbursement of travel expenses and a per diem in lieu
of subsistence at rates authorized by 5 U.S.C. §5701-5710. Their reimbursement
would be paid from funds appropriated to the Federal Emergency Management
Agency.
Quadrennial Homeland Security Review
Prepared by Clinton T. Brass, Analyst in American National Government, CRS
Government and Finance Division, 7-4536.
Overview
Although the 9/11 Commission made many recommendations about the
contents of a global strategy to protect the United States from terrorism and the
structure of a reorganized Intelligence Community, it did not make formal
recommendations regarding a specific process for creating and revising an all-
hazards strategy for securing the homeland. However, the Commission did
emphasize that it is “crucial to find a way of routinizing, even bureaucratizing, the
exercise of imagination” — a concept the commission called “institutionalizing
imagination” (The 9/11 Commission Report, p. 344). The commission also
recommended that the Department of Homeland Security and its congressional
oversight committees “regularly assess the types of threats the country faces” to
determine the “adequacy of the government’s plans” to protect the country’s critical
infrastructure, “progress against those plans,” and the “readiness of the government
to respond to threats that the United States might face” (p. 428). Separately, the
Homeland Security Act of 2002 (P.L. 107-296, Section 874) requires a Future Years
Homeland Security Program, setting forth the department’s “homeland security
strategy,” to be submitted to Congress annually along with the new department’s
budget submission (amended and codified at 6 U.S.C. Section 454). President
George W. Bush also issued Homeland Security Presidential Directive/HSPD-5 in
February 2003, requiring, among other things, the Secretary of Homeland Security
to develop a National Response Plan (NRP) to “integrate Federal Government
domestic prevention, preparedness, response, and recovery plans into one
all-discipline, all-hazards plan.” Finally, the Government Performance and Results
Act of 1993 (GPRA) requires most executive branch agencies to develop a strategic
plan for program activities. The GPRA-mandated strategic plan is required to cover
five future years (and to be updated at least every three years), cover the major
functions and operations of the agency, and include, among other things, a mission
statement, goals and objectives, a description of how goals are to be achieved, and
a description of program evaluations used to establish or revise goals and objectives
(P.L. 103-62, codified and amended at 5 U.S.C. Section 306). GPRA also requires
more specific annual performance plans. The Department of Defense is authorized
to update the document it uses to fulfill the strategic plan requirements of GPRA (the
Quadrennial Defense Review (QDR), as required by 10 U.S.C. Section 118) every
four years instead of every three years (5 U.S.C. Section 306(b)).
House Provisions. No comparable provision.
Senate Provisions. S. 4 (Title XVI, Section 1606) would direct the
Secretary of Homeland Security to establish a “national homeland security strategy”
by the end of FY2008 and, four years after the establishment of the strategy (and
every four years thereafter), would direct the Secretary to conduct a comprehensive
examination and possible revision of the strategy. This establishment or review of
the strategy would be called the quadrennial homeland security review (QHSR) and
would have a broad scope — including interagency cooperation, preparedness of
federal response assets, infrastructure, budget plan, and other elements of the
homeland security program and policies of the United States — with the purpose of
determining the homeland security strategy and program of the United States for the
following 20 years. The QHSR would be required to be conducted in consultation
with the Attorney General and the Secretaries of State, Defense, Health and Human
Services, and the Treasury. The Director of National Intelligence would be required
to conduct the risk assessment upon which the budget plan would be based. The
homeland security strategy would be required to be consistent with the NRP. The
Secretary would be required to submit a report regarding each QHSR to Congress
and make the report available on the Internet. The report would be required to
include the results of the review, the threats that were examined and scenarios that
were developed, the status of cooperation in specified areas among federal agencies
and between the federal government and state governments, and other areas the
Secretary considered appropriate. For the initial QHSR, the Secretary would be
required to provide to Congress and post on the Internet a resource plan specifying
the estimated budget and number of staff required for preparation of the review.
Comments. The Senate provision appears to be modeled in some respects on
the QDR required to be conducted by the Department of Defense, which was first
conducted in 1997. GPRA was subsequently amended to allow the Department of
Defense to update its GPRA-mandated strategic plan every four years, in alignment
with the QDR, instead of every three years.
Overview
Integration of Detection Equipment and Technologies
Prepared by Blas Nuñez-Neto, Analyst in Domestic Security, CRS Domestic
Social Policy Division, 7-0622.
House Provisions. No comparable provision.
Senate Provisions. Section 1607 would give the Secretary of DHS
responsibility for ensuring that chemical, biological, radiological, and nuclear
detection equipment and technologies are integrated with the appropriate border
security systems. It would also require DHS to submit a report within six months of
enactment that outlines a plan for developing a DHS-wide technology assessment
process that would certify the technology readiness level of detection technologies
prior to their deployment within the United States.
Title XVII: 911 Modernization
Prepared by Linda K. Moore, Analyst in Telecommunications Policy, CRS
Resources, Science, and Industry Division, 7-5853.
Overview
The ENHANCE 911 Act of 2004 (P.L. 108-494) created an E-911
Implementation Coordination Office within the federal government “to improve
coordination and communication with respect to the implementation of E-911
services.” Among the responsibilities of the Office is the management of a grant
program for “the implementation and operation of Phase II E-911 services.” Phase
II E-911 refers to the capability to recognize the origin of a wireless call to a call
center, known as a public safety answering point. Funds for the grant program were
authorized by the act but never appropriated. Some financial support for the Phase
II E-911 grants program is to come from the Digital Transition and Public Safety
Fund, created by the Deficit Reduction Act (P.L. 109-171). The Digital Transition
and Public Safety Fund was established to receive and then distribute the proceeds
of spectrum auctions, revenues from which were to be paid to the fund no later than
June 30, 2008. Congress has specified pay-out dates or authorized borrowing in
advance of the June 30, 2008 deadline for some of the programs designated to share
in the auction proceeds The amount of $43.5 million was designated for the
ENHANCE 911 Act, with funds available in due course in 2008.
House Provisions. No comparable provision.
Senate Provisions. Section 1702 of the 911 Modernization Act authorizes
the borrowing of funds as necessary, up to the amount of $43.5 million, upon
enactment. Section 1703 amends the existing criteria for the Phase II E-911 grant
program [47 U.S.C. 942 (b) (4)] to require that priority for grants be given to public
safety answering points that are not able to receive 911 calls. It is estimated that
there are about 225 locations in the United States where emergency calls are handled
without the benefit of 911 technology.
Title XVIII: Modernization
of the American National Red Cross
Prepared by Kevin R. Kosar, Analyst in American National Government, CRS
Government and Finance Division, 7-3968.
Altering the Governance of the American National Red Cross
Overview
The 9/11 Commission made no recommendations regarding the American
National Red Cross (ANRC); however, observers both within and outside the ANRC
have criticized its governance structure. They have argued that its board of governors
is too large, has too many members who lack the skills and experience to serve
adequately, and frequently interferes in the operations of the corporation.
Congressional interest in the activities of the ANRC was heightened by the major49
role it played in providing relief to persons affected by Hurricanes Katrina and Rita.
While there were many positive accounts regarding the ANRC’s relief work, there
also were reports of shortcomings in its performance.
House Provisions. No comparable provision.
Senate Provisions. Title XVIII was added to S. 4 by amendment (S.Amdt.
permit the ANRC to conduct business as the “American Red Cross”; (2) reduce the
board of governors from 50 members to between 12 and 25 members by March 31,
2009, and to between 12 and 20 members by March 31, 2012; (3) reduce presidential
appointees to the board of governors from eight to one, with the President appointing
the chairman of the board; (4) abolish local chapter selection of 30 board members
and board selection of 12 members; (5) require each board member, except the
presidential appointee, to be elected by delegates at the ANRC’s annual convention;
(6) establish a presidentially appointed ANRC advisory board of eight to 10
members, who would be officers of executive departments that work with the ANRC;
(7) eliminate the requirement that the number of trustees overseeing the ANRC’s
endowment be fixed at nine; (8) authorize the Comptroller General “to review the
corporation’s involvement in any Federal program or activity that the Government
carries out by law”; and (9) require the ANRC to establish an office of the
ombudsman, which would report annually to Congress.
Comments. Title XVIII is identical to S. 655, which the Senate passed with
unanimous consent on March 15, 2007. S. 655 was referred to the House Committee
on Foreign Affairs, which held a hearing on the subject of the ANRC’s governance
on March 14, 2007.50 The ANRC has supported the changes to its charter proposed
49 See CRS Report RL33910, The Charter of the American National Red Cross: Current
Issues and Proposed Changes, by Kevin R. Kosar.
50 At the time of the composition of this memorandum, the transcript of the hearing had not
(continued...)
by S. 655.51 It is unclear, however, whether these proposed governance changes will
improve the ANRC’s disaster relief performance.52 Any consideration of legislation
to change the ANRC might raise the question of which changes to make through the
ANRC’s charter and which through its bylaws. The ANRC is a private organization;
as such, it might be argued that it should have the same discretionary authority that
a private corporation has to structure its governance and operating procedures
through its bylaws. On the other hand, the ANRC is a federal instrumentality
chartered by Congress “to carry out a system of national and international relief in
time of peace, and to apply that system in mitigating the suffering caused by
pestilence, famine, fire, floods, and other great national calamities, and to devise and
carry out measures for preventing those calamities” (36 U.S.C. 300102(4)). As such,
it might be argued that the Congress should enact by law any provisions that it
believes would help the organization achieve its public purposes.
50 (...continued)
been published. U.S. Congress, House Committee on Foreign Affairs, The American Redthst
Cross Governance Reform, 110 Cong., 1 sess., Mar. 14, 2007.
51 See CRS Report RL33910, The Charter of the American National Red Cross: Current
Issues and Proposed Changes, by Kevin R. Kosar.
52 Jack Maguire, the interim president and CEO of the ANRC, told a reporter, “The [Red
Cross’s] issues with Katrina were really based on the size and scope of what we had to deal
with in Katrina and were not related to governance.” Stephanie Strom, “Red Cross to
Streamline Board’s Management Role,” New York Times, Oct. 31, 2006, at
[http://www.nytimes.com/2006/10/ 31/us/31redcross.html ].
Title XIX: Advancement of Democratic Values
Prepared by Susan B. Epstein, Specialist in Foreign Policy and Trade, CRS
Foreign Affairs, Defense, and Trade Division, 7-6678.
House Provisions. There are provisions relating to democracy promotion
among Arab and Muslim populations, in contrast to general democracy promotion
as U.S. policy in the Senate bill. (See Title XIV, H.R. 1 above.)
Senate Provisions. Although the Senate bill did not have democracy
promotion measures specifically designated for Arab and Muslim populations, it did
address democracy promotion as a U.S. policy. Title XIX — Advancement of
Democratic Values — states, among other things, that it should be the policy of the
United States to promote freedom and democracy, provide support to
nongovernmental organizations and to foreign countries working to promote
democracy, and commit to the long-term challenge of promoting universal
democracy. Section 1911 would require the Secretary of State to create and fill
“Democracy Liaison Officer positions” under the supervision of the Assistant
Secretary. Each liaison would provide expertise, input on strategies and
responsibility for implementing policies on democracy promotion.
Section 1912 would require the Secretary of State to establish a Democracy
Fellowship Program to allow State Department officials to work on congressional
committees to gain new perspective on democracy promotion.
Section 1913 would require that the Broadcasting Board of Governors transcribe
all original broadcasting into English and post English transcripts on a publicly
available website within 30 days of the original broadcast to assist in oversight and
ensure promotion of human rights and democracy in their broadcasts.
Section 1921 would amend the Foreign Relations Authorization Act, FY2003
(P.L. 107-228) on Title and timing of the Advancing Freedom and Democracy
Report.
Section 1922 states a sense of Congress that the Secretary of State should
continue to ensure and expand the timely translation of Human Rights and
International Religious Freedom reports and the Annual Report on Advancing
Freedom and Democracy into as many languages as possible.
Section 1932 states a sense of Congress that the Secretary of State should
continue to expand efforts to inform foreign populations on democracy and human
rights via the Internet.
Section 1941 states a sense of Congress that the Secretary of State should
continue to enhance and expand training of Foreign Service Officers and Civil
Service employees on how to promote democracy and human rights.
Section 1942 states a sense of Congress that the Secretary of State should further
strengthen the capacity of the State Department to conduct results-based democracy
promotion efforts through awards and incentives.
Section 1943 states that promotions of Foreign Service Officers should include
consideration of a candidate’s experience or service in advancing human rights and
democracy.
Section 1944 states a sense of Congress that each Chief of Mission should
intensify democracy and human rights promotion activities.
Section 1951 would authorize and recommend that the Secretary of State
establish an Office of the Community of Democracies to strengthen the institutional
structure of the Community of Democracies and enhance coordination with other
regional and multilateral bodies that have jurisdiction over democracy issues.
Section 1961 states a sense of Congress that the United States should work with
other countries to enhance the work of the United Nations Democracy Fund.
Section 1962 states that the purpose of the Human Rights and Democracy Fund
should be to support innovative programming, media, and materials to help uphold
democratic principles and promote civil societies around the world.