Homeland Security: Components and Management Positions in the New Department
Congressional research reportMay 14, 2003
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Order Code RL31492
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Homeland Security: Components and
Management Positions in the New Department
Updated May 14, 2003
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Homeland Security: Components and
Management Positions in the New Department
Summary
The Homeland Security Act of 2002 (P.L. 107-296) created a new department
with some 25 full-time, civilian, presidentially appointed positions subject to Senate
confirmation. The Act also creates or transfers a number of other positions. The
Constitution and existing statutes provide a discernible framework for departmental
appointments and pay levels, including congressional authority to create positions
and specify which are subject to Senate confirmation, who may appoint, and which
are available to political or career appointees. In addition to presidentially appointed
positions, this framework includes noncareer Senior Executive Service (SES) and
Schedule C positions. Although the Homeland Security Act adopts this framework
for most of the positions in the new department, it creates some positions with
appointing authority and compensation that deviate from previously existing norms.
The Act creates the positions of secretary, deputy secretary, five under
secretaries, 12 assistant secretaries, and four other key positions, such as general
counsel, requiring Senate confirmation. Two other presidentially appointed positions
requiring Senate confirmation, Commandant of the Coast Guard and Commissioner
of Customs, are transferred to the new department by the Act. The Act creates or
transfers eight other positions, such as chief financial officer, that are presidentially
appointed but do not require Senate confirmation. It creates a number of other
positions, specifying appointing official and compensation in some cases and not in
others. All provisions creating positions are identified in a table.
The Act creates the department through transfers of existing agencies and
functions and the creation of new entities. All such entities and functions, their
current organizational location, new location, and expected transfer date are listed in
tables.
The Act also directs existing officials to provide assistance, during the
transition, to the new secretary, as requested, and it specifies transitional authority
related to acting officials and reconfirmation of present officeholders.
In addition to the Homeland Security Act, the report draws on the President’s
signing statement and Department of Homeland Security Reorganization Plan,
released on November 25, 2002, which provide more specific detail about the
proposed implementation of the new law.
Further information concerning the top positions in the new department is
available in CRS Report RL31677, Filling Presidentially Appointed, SenateConfirmed Positions in the Department of Homeland Security, by Henry B. Hogue.
For more information on creation of the new department, see CRS Report 31751,
Homeland Security: Department Organization and Management — Implementation
Phase, by Harold C. Relyea. This report will updated if there are significant changes
in the managerial composition of the department.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Departmental Framework for Political Appointments . . . . . . . . . . . . . . . . . . 2
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Management Positions in the Department of Homeland Security . . . . . . . . . . . . . 4
Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Deputy Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Under Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Presidentially Appointed Assistant Secretaries Subject to
Senate Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Presidentially Appointed Assistant Secretaries Not Subject to
Senate Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Administratively Created Assistant Secretary Positions . . . . . . . . . . . . 6
Compensation for Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . 6
Analysis of Assistant Secretary Provisions . . . . . . . . . . . . . . . . . . . . . . 6
Other Presidentially Appointed Positions Requiring Senate Confirmation . . 7
Director of the Bureau of Citizenship and Immigration Services . . . . . 8
Inspector General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
General Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Commandant of the Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Commissioner of Customs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Director, Office for Domestic Preparedness . . . . . . . . . . . . . . . . . . . . . 9
Under Secretary of Transportation for Security . . . . . . . . . . . . . . . . . . . . . . . 9
Other Presidentially Appointed Positions Not Requiring
Senate Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Officer for Civil Rights and Civil Liberties . . . . . . . . . . . . . . . . . . . . . 10
Chief Information Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Chief Human Capital Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Director of the Secret Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Executive Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Other Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Entities and Functions Transferred or Created . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Cross-Agency Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Transitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Assistance to the Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Appointments to Initial Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Termination of Positions Not Transferred . . . . . . . . . . . . . . . . . . . . . . 24
Discussion and Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
List of Tables
Table 1. Positions Created by the Homeland Security Act . . . . . . . . . . . . . . . . . 10
Table 2. Entities and Functions Transferred or Abolished by the Homeland
Security Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Table 3. New Entities Created by the Homeland Security Act . . . . . . . . . . . . . . 18
Homeland Security: Components and
Management Positions in the
New Department
Introduction
The Homeland Security Act of 2002 created a new Department of Homeland
Security, effective January 24, 2003.1 The Act transfers a number of existing
organizational units and functions and creates new units. It includes statutory
provisions for staffing the top echelons of management within the new organization.
The Act also called for the submission, by the President, of a reorganization plan not
later than 60 days after enactment of the new law. The President released such a plan
the day he signed the Act, and it provides more specific details concerning the
proposed implementation of the Act.2 The President also released a signing
statement that provides additional information with regard to his interpretation of
some of the provisions of the Act.3
The Constitution and existing statutes provide a discernable framework for
departmental appointments and pay levels, which is described below. Following a
discussion of this framework, this report identifies the provisions of the Act that
created positions in the new department, and it provides an analysis of the provisions
within this context. The report identifies units that are transferred, as well as those
that are created. The provisions affecting the transfer of existing positions and the
temporary filling of new positions are discussed.
The Homeland Security Act deviates in some ways from the existing
appointments framework. These differences, and problems that may result, are
1
P.L. 107-296; Nov. 25, 2002; 116 Stat. 2135. H.R. 5005, “An Act to establish the
Department of Homeland Security, and for other purposes,” as amended in the Senate, was
passed by the Senate on Nov. 19, and it was passed by the House on Nov. 22, 2002. The bill
was signed into law by President George W. Bush on Nov. 25, 2002.
2
U.S. President (George W. Bush), “Department of Homeland Security Reorganization
Plan,” Nov. 25, 2002. The plan may be found at [http://www.whitehouse.gov/news/
releases/2002/11/reorganization_plan.pdf], visited May 8, 2003. Two months later, the
President transmitted a modification of that plan to Congress. U.S. President (George W.
Bush), “Letter to Congressional Leaders Transmitting the Reorganization Plan Modification
for the Department of Homeland Security,” Weekly Compilation of Presidential Documents,
vol. 39, Jan. 30, 2003, p. 136.
3
U.S. President (George W. Bush), “Statement on Signing the Homeland Security Act of
2002,” Weekly Compilation of Presidential Documents, vol. 38, Nov. 25, 2002, pp. 20922095. Hereafter cited as Signing Statement.
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identified throughout the report.
explored.
Options for congressional consideration are
The Departmental Framework for
Political Appointments
The President and the Senate share the power to appoint the principal officers
of the United States, an arrangement established by the Constitution:
... he shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by Law ... (Article
II, sec. 2, cl. 2)
The provision also empowers Congress to allow for the appointment of “inferior
Officers” by the President alone, the courts, or department heads.
The officers in a department are established in the organic legislation or
reorganization plan.4 Currently more than 1,200 presidentially appointed civilian
executive or legislative branch positions require Senate confirmation (PAS
positions).5 More than 330 of these are in the 14 previously existing executive
departments. Within the departments, the first four levels — secretary, deputy
secretary, under secretary, and assistant secretary — are nearly always PAS positions.
Some staff officers, including the chief financial officer and the general counsel, are
also routinely subject to confirmation. The persons filling those positions are
generally considered to be the top policy decision makers in the federal government,
having the responsibility to implement statutes.
Some executive branch positions are staffed through presidential appointments
not requiring confirmation (PA positions). Those positions are rare in operational
agencies; they are generally found in the White House Office and filled by persons
who directly staff and advise the President. There are rare instances in which a
position is placed at an executive level but is exempted by statute from a
confirmation requirement.
In addition to PAS and PA positions, two types of non-presidential
appointments are used to staff most other policy-making positions in the departments.
The ranks of program managers are most commonly filled by career and noncareer
members of the Senior Executive Service (SES). The number of noncareer SES is
4
For information on the appointment status of presidential appointments requiring Senate
confirmation (PAS positions) within the executive departments currently, see CRS Report
RL31346, Presidential Appointments to Full-Time Positions in Executive Departments
During the 107th Congress, 2001-2002, by Henry B. Hogue.
5
U.S. Congress, Senate, Committee on Governmental Affairs, Policy and Supporting
Positions, 106th Cong., 2nd sess., Committee Print, S. Prt. 106-54, Nov. 8, 2000 (Washington:
GPO, 2000). Hereafter referred to as Plum Book 2000.
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statutorily limited to 10% throughout the government and 25% of total SES within
any given department or agency.6
Schedule C positions are used to fill lower-level positions that are excepted
from the competitive service because of their confidential or policy-determining
character. Most Schedule C positions are paid at rates on the General Schedule7 but
are excepted from civil service requirements. For example, the personal secretary or
executive assistant to a departmental secretary would serve in a Schedule C position.
The Office of Personnel Management is responsible for approving these positions.
Compensation
Senior-level appointees are generally compensated according to the Executive
Schedule, which has five pay levels. The correspondence between rank and level is
fairly consistent across the existing departments. Level I is often referred to as
Cabinet rank, and is generally accorded to departmental secretaries. Level II, usually
that of deputy secretaries, is the rate corresponding to the salary for Members of
Congress and for U.S. District Judges. Pay rates range from $125,400 to $171,900.8
Almost without exception, statutory positions on the Executive Schedule are
positions requiring confirmation.
The compensation package for the position of Under Secretary of Transportation
Security,9 currently head of the Transportation Security Administration (TSA), is a
noteworthy exception to these compensation arrangements. This under secretary, a
PAS position with a five-year term, is compensated at Executive Level II. In
addition, in a departure from usual practice, the position carries with it statutory
provision for an annual bonus not to exceed 30% of the annual rate of pay.10 If that
bonus had been applied, the aggregate pay for the under secretary would have been
$195,000 in 2002.11 There is no provision for the continuation of this position in the
6
5 U.S.C. 3134.
7
The General Schedule is the pay and classification system for the majority of the rank and
file white collar staff of the federal government. Pay rates are found through the Office of
Personnel Management Website at [http://www.opm.gov/oca/payrates/index.htm], visited
Mar. 11, 2003.
8
Executive Schedule positions are listed at 5 U.S.C. 5312-5316. These are salary rates in
effect as of this writing. For information on pay for federal officials, see CRS Report 98-53,
Salaries of Federal Officials: A Fact Sheet, by Sharon Gressle.
9
The Homeland Security Act transferred the Transportation Security Administration to the
new department as a “distinct entity.” (P.L. 107-296, Secs. 403 (2), 423, and 424; 116 Stat.
2178, 2185.) James M. Loy was confirmed as Under Secretary of Transportation Security
on Nov. 18, 2003, prior to the transfer on March 1, 2003. He continues to lead the
organization under the title of “Administrator.” Officials in human resources office at TSA
did not respond to requests for information about Loy’s current compensation and
appointment status.
10
P.L. 107-71, Sec. 101(c)(1) and (2); Nov. 19, 2001; 115 Stat. 602.
11
The salary for the Vice President, the Speaker of the House of Representatives, and the
(continued...)
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new department, and no position with similar compensation arrangements is created
under the Homeland Security Act.
Management Positions in the
Department of Homeland Security
The Homeland Security Act establishes, in the new department, more than 50
identifiable new or transferred positions. The Department of Homeland Security
Reorganization Plan, released by the President on November 25, 2002, signified the
President’s intention to nominate, appoint, and transfer individuals into many of
these positions as soon as possible after January 24, 2003, the effective date of the
Act.12 This section identifies the positions created or transferred by the Act.
Secretary
The Homeland Security Act establishes the position of secretary as the head of
the new department. The secretary is a PAS position, compensated at Level I of the
Executive Schedule.13 The Act provides that the secretary has direction, authority,
and control over the department. All functions of all officers, employees, and
organizational units of the department are vested in the secretary. Specific functional
authorities are detailed, including delegation of authority, coordination with nonfederal entities, and promulgation of regulations. The Act provides that the secretary
may, at the direction of the President, be part of National Security Council meetings.
Deputy Secretary
The Homeland Security Act establishes the position of deputy secretary as a
PAS position, compensated at Level II of the Executive Schedule.14 The deputy
secretary is the first in line of succession to act on behalf of the secretary.
Under Secretaries
The Homeland Security Act establishes five under secretary positions. The
under secretaries are as follows: for Information Analysis and Infrastructure
Protection; for Science and Technology; for Border and Transportation Security; for
11
(...continued)
Chief Justice of the United States is projected to be $198,600, effective January 2003.
12
For more information on appointments to presidentially appointed, Senate-confirmed
positions in the new department, see CRS Report RL31677, Filling Presidentially
Appointed, Senate-Confirmed Positions in the Department of Homeland Security, by Henry
B. Hogue.
13
P.L. 107-296, Sec. 102(a) and Sec. 1702.
14
P.L. 107-296, Sec. 103(a)(1) and Sec. 1702.
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Emergency Preparedness and Response; and for Management.15 All the under
secretary positions are PAS positions compensated at Level III of the Executive
Schedule.16
Assistant Secretaries
The Department of Homeland Security appears to have three categories of
assistant secretaries. Two categories have a statutory basis in the Homeland Security
Act, and one category has been created administratively.
Presidentially Appointed Assistant Secretaries Subject to Senate
Confirmation. The Act creates up to 12 PAS assistant secretary positions with no
specified functions.17 Under such provisions, the President generally specifies the
functions of each assistant secretary at the time he announces or submits a
nomination. As of May 8, 2003, the President had specified the functions associated
with two of the 12 positions: Assistant Secretary for Border and Transportation
Security Policy and Assistant Secretary for Immigration and Customs Enforcement.
Among the 12 PAS assistant secretary positions, the Assistant Secretary for the
Bureau of Immigration and Customs Enforcement has a unique statutory context.
Originally, the Homeland Security Act created the position of Assistant Secretary of
the Bureau of Border Security without specifying the means of appointment.18 It was
not clear whether or not this position was intended to be one of the 12 above. This
question appears to have been answered by the modification to the President’s
reorganization plan.19 As part of the reorganization of the border security functions
under this modification, the position was renamed the Assistant Secretary for the
Bureau of Immigration and Customs Enforcement and identified as a presidentially
appointed Senate-confirmed position.
Presidentially Appointed Assistant Secretaries Not Subject to
Senate Confirmation. The Act creates two additional presidentially appointed
assistant secretary positions, but these do not specify a Senate confirmation
requirement.20 The President, in his signing statement, endorsed the view that these
positions were distinct from the positions discussed above, stating that
15
P.L. 107-296, Secs. 103(a)(2), (3), (4), (5), and (7). Titles II, III, IV, V, and VII of the Act
set out the authorities and responsibilities associate with these positions.
16
P.L. 107-296, Sec. 1702.
17
P.L. 107-296, Sec. 103(a)(8). Generally, where assistant secretary functions are not
specified in statute, the President specifies functions with each nomination to such a
position.
18
Sec. 442(a)(2).
19
See “Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/
press_release/press_release_0073.xml], visited May 8, 2003.
20
Sec. 201(b).
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The text and structure of the Act make clear that these two presidentially
appointed Assistant Secretary positions were created in addition to the 12
unspecified Assistant Secretary positions, and the executive branch shall
construe the relevant provisions accordingly.21
The two officials, the Assistant Secretary for Information Analysis and Assistant
Secretary for Infrastructure Protection, are responsible for assisting the Under
Secretary for Information Analysis and Infrastructure Protection in the discharge of
his or her duties.
Administratively Created Assistant Secretary Positions. In addition
to the assistant secretary positions authorized by the Act, at least two non-statutory
positions with the title of assistant secretary have been created, administratively,
within DHS. These positions, Assistant Secretary for Public Affairs and Assistant
Secretary for Legislative Affairs, have been filled through appointment by the
Secretary of Homeland Security.22
Compensation for Assistant Secretaries. In general, the Act provides
that the statutory assistant secretaries are compensated at Level IV of the Executive
Schedule.23 The compensation for the administratively created assistant secretary
positions is not clear. As of this writing, staff at DHS were unable to provide
information on how the positions are being compensated.
One provision of the Act related to assistant secretaries and compensation is
unclear. As just noted, Section 1702(a)(4) provides that DHS assistant secretaries are
to be compensated at Level IV of the Executive Schedule. Section 451(a)(2)(C)
provides that the Director of the Bureau of Citizenship and Immigration Services
“shall be paid at the same level as” the Assistant Secretary of the Bureau of Border
Security. According to Section 1702(a)(3), however, the director is to be
compensated, with the under secretaries, at Level III of the Executive Schedule. In
other words, although Section 451 stipulates that the pay rates of the two positions
will be the same, Section 1702 provides that they will be compensated at different
rates. The interpretation of these provisions is further complicated by the
reorganization of border security functions and renaming of the Assistant Secretary
of the Bureau of Border Security, which is discussed above. As of this writing, staff
at DHS were unable to provide information on how these provisions are being
implemented.
Analysis of Assistant Secretary Provisions. Homeland Security Act
provisions and administrative actions during the creation of the new department have
effectively created three categories of assistant secretaries: presidentially appointed
21
U.S. President (George W. Bush), “Statement on Signing the Homeland Security Act of
2002,” Weekly Compilation of Presidential Documents, vol. 38, Nov. 25, 2002, p. 2092.
22
See DHS press releases at [http://www.dhs.gov/dhspublic/display?theme=43&content
=506] and [http://www.dhs.gov/dhspublic/display?theme=43&content=417], visited May
8, 2003. DHS officials have confirmed that these positions are not among the 12 statutory
PAS assistant secretary positions.
23
P.L. 107-296, Sec. 1702(a)(4).
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and Senate-confirmed; presidentially appointed without Senate confirmation; and
appointed by the secretary. It is not clear whether or not assistant secretaries from
each of these three categories will be given the same level of policymaking authority
and responsibility. As a result of the different appointment processes, however, the
three types of assistant secretary may have differing stature within the department and
within the government at large. In addition, those who are subject to Senate
confirmation are likely to undergo greater scrutiny in the selection process and to be
more accountable to Congress during their tenure. As a condition of Senate
confirmation, most nominees make a commitment “to respond to requests to appear
and testify before any duly constituted committee of the Senate.” Appointees who
are not subject to Senate confirmation are under no such obligation.
The creation of presidentially appointed assistant secretary positions not subject
to Senate confirmation is a marked departure from past practices in the other
departments. PA positions24 are almost all in the White House Office. It is rare for
positions in the executive departments to be designated as PA positions; nearly all
principal officers in these organizations are statutorily designated as PAS positions.
Prior to the creation of this new department, as far as it can be determined, there was
only one PA position in the executive departments.25 PA positions are generally
made for personnel who will be working in close proximity to the President and are
privy to the confidential policy discussions conducted by leaders of agencies in the
Executive Office of the President. By and large, presidential appointees to PA
positions act as advisers, while those nominated to PAS positions are primarily
policy decision makers who administer programs. The latter group are responsible
for implementing statutes.
Other Presidentially Appointed Positions
Requiring Senate Confirmation
The positions identified in this section were established as PAS positions by the
Homeland Security Act.
24
As of Sept. 2001, the Office of Personnel Management reported 86 full-time and 111 parttime presidential appointees not requiring Senate confirmation. (See [http://opm.gov/
feddata], with link to “Data from the CPDF,” visited May 8, 2003.)
25
42 U.S.C. 284(a) provides that “The Director of the National Cancer Institute shall be
appointed by the President.” The other health institute directors are appointed by the
Secretary of Health and Human Services. All the directors report to the secretary.
The Plum Book for 2000 erroneously lists four other departmental positions as being
presidential appointments not requiring confirmation. Three, the Deputy Secretary of
Education, the Deputy Secretary of Labor, and the Department of Transportation
Administrator, Research and Special Programs Administration, are all statutory positions
requiring Senate confirmation. The fourth, the Assistant Secretary of Defense for Force
Management Policy, was a statutory position, but was discontinued with the creation of the
Deputy Under Secretary of Defense for Personnel and Readiness under P.L. 107-107, Sec.
901.
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Director of the Bureau of Citizenship and Immigration Services.26
The Act creates the position of Director of the Bureau of Citizenship and
Immigration Services, who is to report directly to the Deputy Secretary and is to have
a minimum of 5 years of management experience. The compensation for this
position is not clear. Section 1702(a)(3) provides that the office holder will be
compensated at the same level as the under secretaries (Level III of the Executive
Schedule). Section 451(a)(2)(C) provides, however, that the position will receive
compensation at the same rate as the Assistant Secretary of Border Security. The
compensation for that assistant secretary is not specifically stated, but Section
1702(a)(4) provides that all assistant secretaries will be compensated at Level IV of
the Executive Schedule. Thus, Section 1702 provides that the two positions will be
compensated at different rates, while Section 451 stipulates that their pay rates will
be the same.
Inspector General. The Homeland Security Act provides for the creation of
an inspector general (IG) position, appointed as provided in Section 3(a) of the
Inspector General Act of 1978.27 The referenced section of the Inspector General Act
provides for the appointment by and with the advice and consent of the Senate. The
Homeland Security Act places the IG at Level IV of the Executive Schedule,28 on a
par with other departmental IGs.29 The Act also includes provisions that give the
secretary greater authority, direction, and control over the IG, under certain
circumstances, than is provided for in the IG statute. These provisions include steps
to be taken to notify Congress under such circumstances.30 The Act also specifies
new law enforcement powers for IGs.31
General Counsel. The Homeland Security Act creates, as a PAS position,
a general counsel as chief legal officer of the department, to be paid at Level IV of
the Executive Schedule.32 This is consistent with the practice in each of the 14
existing departments, which have statutory departmental legal counsels, usually
referred to as a general counsel. Those positions are also paid at Level IV of the
Executive Schedule33 and all require confirmation as part of the appointment process.
Commandant of the Coast Guard. The Homeland Security Act establishes
the position of Commandant of the Coast Guard to “assist the Secretary in the
performance of the Secretary’s functions, ... appointed as provided in section 44 of
title 14, United States Code, and who shall report directly to the Secretary.” In
addition, the duties of the commandant “include those required by section 2 of title
26
P.L. 107-296, Sec. 103(a)(6), Sec. 451, and Sec. 1702.
27
P.L. 107-296, Sec. 103(b).
28
P.L. 107-296, Sec. 1702.
29
5 U.S.C. 5315.
30
P.L. 107-296, Sec. 811.
31
P.L. 107-296, Sec. 812.
32
P.L. 107-296, Sec. 103(a)(9) and Sec. 1702.
33
5 U.S.C. 5315.
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14, United States Code.”34 The commandant has the grade of admiral while
serving.35
Commissioner of Customs. The Act establishes the position of
Commissioner of Customs as a PAS position at the head of the United States
Customs Service in the new department. The position is compensated at Level III of
the Executive Schedule. The Act explicitly provides that the office holder
immediately prior to the new law’s effective date may continue until the appointment
of a new commissioner.36 During late January 2003, the border security functions
being transferred into the new department were reorganized, and the Commissioner
of Customs now heads the Bureau of Customs and Border Protection in the
Directorate for Border and Transportation Security.37
Director, Office for Domestic Preparedness. An Office for Domestic
Preparedness is created by the Homeland Security Act, and the office is headed by
a presidentially-appointed, Senate-confirmed director.38 The compensation for the
position is not specified in the Act.
Under Secretary of Transportation for Security
The Act transferred the Transportation Security Administration (TSA) to the
new department as a “distinct entity.”39 When TSA was part of the Department of
Transportation, the head of TSA, formerly known as the Under Secretary of
Transportation for Security, was a PAS position.40 The position was not explicitly
transferred by the Act. However, James M. Loy, who was confirmed as Under
Secretary of Transportation Security on Nov. 18, 2003, prior to the transfer on March
1, 2003, continues to lead the organization under the title of “Administrator.”
Other Presidentially Appointed Positions
Not Requiring Senate Confirmation
The positions identified in this section are appointed by the President but do not
require Senate confirmation. As noted elsewhere, it is unusual to have this type of
position in an executive department; most leadership positions are either PAS
positions or secretarial appointments. In addition to the positions identified here, two
34
P.L. 107-296, Sec. 103(c). An additional subsection providing that the commandant
report directly to the secretary may be found at Sec. 888(g).
35
14 U.S.C. 44
36
P.L. 107-296, Sec. 411(b). Robert C. Bonner was confirmed as Commissioner of Customs
on Sept. 19, 2001. As of April 7, 2003, in the wake of the transfer of the U.S. Customs
Service to the new department on Mar. 1, 2003, he continued to hold that position.
37
“Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/
press_release/press_release_0073.xml], visited May 8, 2003.
38
P.L. 107-296, Sec. 430.
39
P.L. 107-296, Secs. 403(2), 423, and 424; 116 Stat. 2178, 2185.
40
49 U.S.C. 114(b).
CRS-10
or three assistant secretary positions, as discussed above, are presidentially-appointed
without Senate confirmation.
Chief Financial Officer. Under the provisions of the Chief Financial
Officers Act of 1990,41 there are established, in each of the executive departments,
chief financial officers (CFOs). The chief financial officer may be appointed by the
President, with the advice and consent of the Senate, or may be designated by the
President from among agency officials who have been confirmed by the Senate for
another position.42 In a departure from this provision of law, the Homeland Security
Act establishes the position of chief financial officer as a PA position in the new
department.43 The CFO is appointed by the President and compensated at Level IV,
as are other departmental CFOs.44 Unlike other CFOs, however, the Department of
Homeland Security CFO does not require Senate confirmation. The new CFO
position differs from others in another way, as well. Current law provides that CFOs
report directly to the head of the agency, in this case the secretary. Notwithstanding
this provision of law, however, the Homeland Security Act provides that the new
CFO reports to the secretary, or to “another official of the Department, as the
Secretary may direct.”45
Officer for Civil Rights and Civil Liberties. An Officer for Civil Rights
and Civil Liberties is established by the Act.46 There are conflicting provisions in the
Act regarding the appointment authority for this position. Section 103(d)(5) creates
this position as a PA position, whereas Section 705 creates the position (or another
position with the same title) as a secretary-appointed position. The first holder of this
office was reportedly appointed by the President.47 This officer is compensated at
Level IV of the Executive Schedule.48
Chief Information Officer. Chapter 35 of Title 44 of the U.S. Code sets out
the requirements for the coordination of federal information policy. Under 44 U.S.C.
3506, each agency head is directed to designate a chief information officer. The
CIOs are to be paid at Level IV of the Executive Schedule and to report directly to
the agency head (secretary).49 The Homeland Security Act creates the department’s
CIO as a PA position, compensated at Level IV of the Executive Schedule.50 The
41
P.L. 101-576, Nov. 15, 1990, Sec. 205.
42
31 U.S.C. 901(a)(1).
43
P.L. 107-296, Sec. 103(d)(4).
44
P.L. 107-296, Sec. 1702.
45
P.L. 107-296, Sec. 702.
46
P.L. 107-296, Sec. 103(d)(5) and Sec. 705.
47
“Officer for Civil Rights & Civil Liberties: Daniel W. Sutherland,” at [http://www.dhs.
gov/dhspublic/display?theme=11&content=621], visited May 8, 2003.
48
P.L. 107-296, Sec. 1702.
49
P.L. 104-106; Feb. 10, 1996; 110 Stat. 684-686.
50
P.L. 107-296, Sec. 103(d)(2) and Sec. 1702.
CRS-11
CIO is to report to the secretary or to “another official of the Department as the
Secretary may direct.”51
The provisions creating this new office are unusual among provisions that
establish high-level positions generally. As noted above in the discussion of assistant
secretary positions, the creation of a PA position in a department is very unusual.
This is as true for CIOs as other officers. In addition, changing the status of
appointment for one CIO may affect the CIO Council.52
Chief Human Capital Officer. The Homeland Security Act creates a Chief
Human Capital Officer as a PA position in the new department.53 Compensation for
this position is not specified. The Act also creates similar positions in other federal
departments and agencies, although the officers filling these positions are appointed
by the agency head. (See “Cross-Agency Positions,” below.)
Director of the Secret Service. The Act establishes the Director of the
Secret Service as a PA position in the new department.54 Previously, the Director of
the Secret Service was appointed by the Secretary of the Treasury. The six most
recent directors have been career members of the Senior Executive Service chosen
from on-board staff.55 Compensation for the position is not specified.
Executive Secretary. The Homeland Security Council is created by the
Homeland Security Act, and the council staff will be led by a civilian executive
secretary appointed by the President without Senate confirmation.56 The pay for this
position is set by the President “at a rate not to exceed the rate of pay payable to the
Executive Secretary of the National Security Council.”
Other Positions
The Homeland Security Act creates additional positions not identified in one of
the above categories. These positions are included in Table 1 below, which
identifies all positions created by the Act. The positions are presented sequentially
as they appear in P.L. 107-296.
51
P.L. 107-296, Sec. 703.
52
The Chief Information Officer Council was established by executive order. U.S. President
(Clinton), “Federal Information Technology,” Executive Order 13011, Federal Register, vol.
61, July 19, 1996, pp. 37657-37662.
53
P.L. 107-296, Sec. 103(d)(3). Responsibilities of the Chief Human Capital Officer are
described in Sec. 704.
54
P.L. 107-296, Sec. 103(d)(1).
55
Information received from U.S. Secret Service, Office of Government Liaison and Public
Affairs, via telephone conversation, July 3, 2002.
56
P.L. 107-296, Sec. 905.
CRS-12
Table 1. Positions Created by the Homeland Security Act
Section
Position
Appointment
Authority
Compensationa
102(a)
Secretary
PAS position
Level I
102(f)
Special Assistant to the Secretary
(Office of Private Sector Liaison)
Secretary
appointment
not specified
(n.s.)
103(a)(1)
Deputy Secretary
PAS position
Level II
103(a)(2)
Under Secretary for Information
Analysis and Infrastructure
Protection
PAS position
Level III
103(a)(3)
Under Secretary for Science and
Technology
PAS position
Level III
103(a)(4)
Under Secretary for Border and
Transportation Security
PAS position
Level III
103(a)(5)
Under Secretary for Emergency
Preparedness and Response
PAS position
Level III
103(a)(7)
Under Secretary for Management
PAS position
Level III
103(a)(6)
and
451(a)(2)
Director of the Bureau of
Citizenship and Immigration
Services
PAS position
May be Level III
or Level IV
103(a)(8)
Up to 12 Assistant Secretaries
PAS positions
Level IV
103(a)(9)
General Counsel
PAS position
Level IV
103(b)
Inspector General
PAS position
Level IV
103(c)
Commandant, United States
Coast Guard
PAS position with grade of admiral
while serving (14 U.S.C. 44)
103(e)(1)
Director, United States Secret
Service
PA position
n.s.
103(e)(2)
and 703
Chief Information Officer
PA position
Level IV
103(e)(3)
and 704
Chief Human Capital Officer
PA position
n.s.
103(e)(4)
and 702
Chief Financial Officer
PA position
Level IV
103(e)(5)
and 705
Officer for Civil Rights and
Liberties
PA position or
Secretary
appointment
(implemented as
PA position)
Level IV
CRS-13
Appointment
Authority
Compensationa
Section
Position
201(b)(1)
Assistant Secretary for
Information Analysis
PA position
Level IV
201(b)(2)
Assistant Secretary for
Infrastructure Protection
PA position
Level IV
222
Privacy Officer
Secretary
Appointment
n.s.
231(b)
Director, Office of Science and
Technology, Department of
Justice
Requires
approval by the
Office of
Personnel
Management of
the individual’s
“executive
qualifications.”b
n.s.
307(b)(2)
Director, Homeland Security
Advanced Research Projects
Agency
Secretary
appointment
n.s.
411
Commissioner of Customs
PAS Position
Level III
430
Director, Office for Domestic
Preparedness
PAS Position
n.s.
442(a)(2)
Assistant Secretary of the Bureau
of Border Security (now the
Assistant Secretary for the
Bureau of Immigration and
Customs Enforcement)c
not specified by
the Act —
identified as PAS
position during
reorganizationc
May be Level III
or Level IV
442(b)
Chief of Policy and Strategy,
Bureau of Border Securityc
n.s.
n.s.
442(c)
Legal Advisor to the Assistant
Secretary of the Bureau of
Border Securityc
n.s.
n.s.
451(c)
Chief of Policy and Strategy for
the Bureau of Citizenship and
Immigration Services
n.s.
n.s.
451(d)
Legal Advisor to the Director of
the Bureau of Citizenship and
Immigration Services
n.s .
n.s.
451(e)
Budget Officer for the Bureau of
Citizenship and Immigration
Services
n.s.
n.s.
451(f)
Chief of the Office of Citizenship
n.s.
n.s.
CRS-14
Section
Position
Appointment
Authority
Compensationa
452
Citizenship and Immigration
Services Ombudsman
n.s.
n.s.
475
Director of Shared Services
n.s.
n.s.
878
Counternarcotics Officerd
Secretary
appointmente
n.s.
879
Director, Office of International
Affairs
Secretary
appointment
n.s.
882(a)(2)
Director, Office for National
Capital Region Coordination
Secretary
appointment
n.s.
905
Executive Secretary, Homeland
Security Council
PA position
(must be civilian)
“The President is
authorized to fix
the pay ... at a
rate not to
exceed the rate
of pay payable to
the Executive
Secretary of the
National
Security
Council.”
1111(a)(2)
Director, Bureau of Alcohol,
Tobacco, Firearms and
Explosives, Department of
Justice
Attorney General
appointment
Level III
1111(d)(2)
Administrator, Bureau of Tax
and Trade, Department of Justice
Senior Executive
Service, careerreserved position
Senior Executive
Service pay
schedule
Notes:
n.s. - not specified
a. Compensation, where provided for, is stipulated either in the section creating the position or in Sec.
1702. Level refers to the level of the Executive Schedule.
b. The Signing Statement (p. 2093) directs Attorney General to appoint this director.
c. The Bureau of Border Security was reorganized under the modification of the President’s
reorganization plan and renamed the Bureau of Immigration and Customs Enforcement.
“Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/press_release/
press_release_0073.xml], visited May 8, 2003.
d. Sec. 878 states that the secretary will appoint “a senior official” in the department to carry out
specific functions. This person will also serve as the United States Interdiction Coordinator for
the Director of National Drug Control Policy.
e. The Signing Statement (p. 2094) provides that “In making this appointment, the Secretary of
Homeland Security will consult with and seek recommendations from the Director of the Office
of National Drug Control Policy.”
CRS-15
Entities and Functions Transferred or Created
Under the provisions of the Homeland Security Act, a number of entities,
including authorities, functions, personnel, assets, and, as determined to be necessary,
obligations or liabilities are transferred into the new department or an existing
department. These transfers are shown in Table 2. In addition, a number of new
organizational entities are established, both within and outside the new department.
The new units are identified in Table 3. The tables also show the planned date of
transfer or establishment as identified in the Department of Homeland Security
Reorganization Plan.57 All transfers are to be completed by September 30, 2003.
Table 2. Entities and Functions Transferred or Abolished by the
Homeland Security Act
Section
Unit or Function
Transferred
Current Location
New Locationa
Transfer
Date
201(g)(1)
National Infrastructure
Protection Center (other
than the Computer
Investigations and
Operations Section)
Federal Bureau of
Investigation
Directorate for
Information
Analysis and
Infrastructure
Protection
3/1/03
201(g)(2)
National Communications
System
Department of
Defense
Directorate for
Information
Analysis and
Infrastructure
Protection
3/1/03
201(g)(3)
Critical Infrastructure
Assurance Office
Department of
Commerce
Directorate for
Information
Analysis and
Infrastructure
Protection
3/1/03
201(g)(4)
National Infrastructure
Simulation and Analysis
Center and the energy
security and assurance and
activities of the department
Department of
Energy
Directorate for
Information
Analysis and
Infrastructure
Protection
3/1/03
201(g)(5)
Federal Computer Incident
Response Center
General Services
Administration
Directorate for
Information
Analysis and
Infrastructure
Protection
3/1/03
57
U.S. President (George W. Bush), “Department of Homeland Security Reorganization
Plan,” Nov. 25, 2002. The plan may be found at [http://www.whitehouse.gov/news/
releases/2002/11/reorganization_plan.pdf], visited May 8, 2003.
CRS-16
Section
Unit or Function
Transferred
Current Location
New Locationa
Transfer
Date
303(1)(A)
Chemical and biological
national security and
supporting programs and
activities of the nonproliferation and
verification research and
development program
Department of
Energy
Directorate for
Science and
Technology
3/1/03
303(1)(B)
Nuclear smuggling
programs and activities
within the proliferation
detection program of the
non-proliferation and
verification research and
development program
Department of
Energy
Directorate for
Science and
Technology (May
be designated by
the President to be
transferred or to be
jointly operated by
the secretaries of
the two
departments)
3/1/03
303(1)(C)
Nuclear assessment program
and activities of the
assessment, detection, and
cooperation program of the
international materials
protection and cooperation
program
Department of
Energy
Directorate for
Science and
Technology
3/1/03
303(1)(D)
As designated by the
President, life sciences
activities of the biological
and environmental research
program related to microbial
pathogens
Department of
Energy
Directorate for
Science and
Technology
3/1/03
303(1)(E)
Environmental
Measurements Laboratory
Department of
Energy
Directorate for
Science and
Technology
3/1/03
303(1)(F)
Advanced scientific
computing research program
and activities at Lawrence
Livermore National
Laboratory
Department of
Energy
Directorate for
Science and
Technology
3/1/03
303(2)
National Bio-Weapons
Defense Analysis Centerb
Department of
Defense
Directorate for
Science and
Technology
3/1/03
310
Plum Island Animal Disease
Center
Department of
Agriculture
Directorate for
Science and
Technology
6/1/03
CRS-17
Unit or Function
Transferred
Current Location
403(1);
see also
Title IV,
Subtitle B
United States Customs
Service
Department of the
Treasury
Directorate for
Border and
Transportation
Security
3/1/03
403(2);
see also
423 and
424
Transportation Security
Administration
Department of
Transportation
Directorate for
Border and
Transportation
Security; to be
maintained as a
“distinct entity”
3/1/03
403(3)
Federal Protective Service
General Services
Administration
Directorate for
Border and
Transportation
Security
3/1/03
403(4);
see also
884
Federal Law Enforcement
Training Center
Department of the
Treasury
Directorate for
Border and
Transportation
Security
3/1/03
403(5);
see also
430
Office for Domestic
Preparedness
Office of Justice
Programs,
Department of
Justice
Directorate for
Border and
Transportation
Security
3/1/03
421
Certain agricultural import
and entry inspection
functions
Department of
Agriculture
Directorate for
Border and
Transportation
Security
3/1/03
426
Transportation Security
Oversight Board
Department of
Transportation
Directorate for
Border and
Transportation
Security
1/24/03
430(c)(8)
Assigns to the Office for Domestic Preparedness the primary
responsibility for “preparedness of the United States for acts of
terrorism, including ... those elements of the Office of National
Preparedness of the Federal Emergency Management Agency which
relate to terrorism, which shall be consolidated within the Department in
the Office of Domestic Preparedness ....” Unclear if this transfer of
responsibility transfers functions, assets, personnel, authorities, or
obligations.
441(1)
Border Patrol program
Section
Immigration and
Naturalization
Service,
Department of
Justice (DOJ)
New Locationa
Directorate for
Border and
Transportation
Security
Transfer
Date
Not specified
(presume
3/1/03)
3/1/03
CRS-18
Section
Unit or Function
Transferred
Current Location
New Locationa
Transfer
Date
441(2)
Detention and removal
program
Immigration and
Naturalization
Service, DOJ
Directorate for
Border and
Transportation
Security
3/1/03
441(3)
Intelligence program
Immigration and
Naturalization
Service, DOJ
Directorate for
Border and
Transportation
Security
3/1/03
441(4)
Investigations program
Immigration and
Naturalization
Service, DOJ
Directorate for
Border and
Transportation
Security
3/1/03
441(5)
Inspections program
Immigration and
Naturalization
Service, DOJ
Directorate for
Border and
Transportation
Security
3/1/03
451(b)
Adjudications of immigrant
visa petitions, naturalization
petitions, and asylum and
refugee applications.
Adjudications performed at
service centers and all other
adjudications performed by
the Immigration and
Naturalization Service
Immigration and
Naturalization
Service, DOJ
Bureau of
Citizenship and
Immigration
Services
3/1/03
462(a)
Functions “... with respect
to the care of
unaccompanied alien
children that were vested by
statute in, or performed by,
the Commissioner of
Immigration and
Naturalization ....”
Immigration and
Naturalization
Service, DOJ
Office of Refugee
Resettlement,
Department of
Health and Human
Services
3/1/03
471(a)
Immigration and Naturalization Service (DOJ) abolished upon completion of all transfers
503(1)
Federal Emergency
Management Agency
Independent
Agency
Directorate of
Emergency
Preparedness and
Response
3/1/03
503(2)
Integrated Hazard
Information System
National Oceanic
and Atmospheric
Administration,
Department of
Commerce
Directorate of
Emergency
Preparedness and
Response
3/1/03
CRS-19
Section
Unit or Function
Transferred
Current Location
New Locationa
Transfer
Date
503(3)
National Domestic
Preparedness Office
Federal Bureau of
Investigation
Directorate of
Emergency
Preparedness and
Response
3/1/03
503(4)
Domestic Emergency
Support Teams
Department of
Justice
Directorate of
Emergency
Preparedness and
Response
3/1/03
503(5)
Office of Emergency
Preparedness
Department of
Health and Human
Services
Directorate of
Emergency
Preparedness and
Response
3/1/03
503(5)
National Disaster Medical
System
Department of
Health and Human
Services
Directorate of
Emergency
Preparedness and
Response
3/1/03
503(5)
Metropolitan Medical
Response System
Department of
Health and Human
Services
Directorate of
Emergency
Preparedness and
Response
3/1/03
503(6)
Strategic National Stockpile
Department of
Health and Human
Services
Directorate of
Emergency
Preparedness and
Response
3/1/03
504
Nuclear Incident Response
Team
Operates as an organizational unit of the
department at the direction of the
secretary in the event of an actual or
threatened terrorist attack, major disaster,
or other emergency in the U.S.
Otherwise, under the purview of the
Secretary of Energy and the
Administrator of the Environmental
Protection Agency
701(b)(2)
Functions performed in the
Statistics Branch pertaining
to the programs transferred
by Sections 441 and 451
Statistics Branch,
Office of Policy
and Planning,
Immigration and
Naturalization
Service
Directorate for
Management
Not specified
821
United States Secret Service
Department of the
Treasury
Department of
Homeland
Security; to be
maintained as a
“distinct entity”
3/1/03
3/1/03
CRS-20
Unit or Function
Transferred
Section
Current Location
New Locationa
Transfer
Date
888
United States Coast Guard
Department of
Transportation
Department of
Homeland
Security; to be
maintained as a
“distinct entity”
3/1/03
1111(c)
Many functions of the
Bureau of Alcohol, Tobacco
and Firearmsc
Department of the
Treasury
Department of
Justice; to be
maintained as a
“distinct entity”
Not specified
Notes:
a. For the purposes of this table, it is assumed that the unit or function would be transferred to the
directorate that would be created under the same title in which the transferring provision is
located, unless the provision specifies otherwise.
b. The National Bio-Weapons Defense Analysis Center is established in the Department of Defense
by Sec. 1708, and it is transferred from Defense to the new department by Sec. 303(2).
c. The transfer, in Sec. 1111(c), of many functions of the Bureau of Alcohol, Tobacco, and Firearms
from the Department of the Treasury to the Department of Justice would occur in conjunction
with the establishment, in Sec. 1111(a), of the Bureau of Alcohol Tobacco, Firearms, and
Explosives in the Department of Justice.
Table 3. New Entities Created by the Homeland Security Acta
Section
Unit
Location
Establishment
Date
102(f)
Office of Private Sector Liaison
Department of Homeland
Security
Not specified
224
NET Guard (national technology
guard)
Directorate of Information
Analysis and Infrastructure
Protection
Not specified
231
Office of Science and Technologyb
National Institute of Justice,
Department of Justice
Not specified
307(b)(1)
Homeland Security Advanced
Research Projects Agency
Director reports to the Under
Secretary for Science and
Technology
1/24/03
309(g)
Office for National Laboratories
Directorate of Science and
Technology
1/24/03
311
Homeland Security Science and
Technology Advisory Committee
Department of Homeland
Security; members appointed
by Under Secretary for
Science and Technology
6/1/03
312
Homeland Security Institute
Administered as a “separate
entity by the Secretary” of
Homeland Security
Not specified
CRS-21
Section
Unit
Location
Establishment
Date
313
Technology clearinghouse program
Established by the secretary
acting through the Under
Secretary for Science and
Technology
Not specified
442
Bureau of Border Security (now the
Bureau of Immigration and Customs
Enforcement)c
Head of bureau to report
directly to Under Secretary
for Border and
Transportation Security
1/24/03
451
Bureau of Citizenship and
Immigration Services
Head of bureau to report
directly to Deputy Secretary
of Homeland Security
1/24/03
451(f)
Office of Citizenship
Bureau of Citizenship and
Immigration Services
Not specified
452
Citizenship and Immigration Services
Ombudsman
Ombudsman to report
directly to the Deputy
Secretary
1/24/03
461(c)
Technology Advisory Committee
To assist the secretary
Not specified
801
Office for State and Local
Government Coordination
Office of the Secretary of
Homeland Security
1/24/03
879
Office of International Affairs
Office of the Secretary of
Homeland Security
1/24/03
882
Office for National Capital Region
Coordination
Office of the Secretary of
Homeland Security
1/24/03
885
Joint Interagency Homeland Security
Task Force
Established and operated by
the Secretary of Homeland
Security
Not specified
901
Homeland Security Council
Executive Office of the
President
Not specified
1111(a)
Bureau of Alcohol, Tobacco,
Firearms, and Explosivesd
Department of Justice
Not specified
1111(d)
Tax and Trade Bureau
Department of the Treasury
Not specified
1114
Explosives Training and Research
Facility
Bureau of Alcohol, Tobacco,
Firearms, and Explosives,
Department of Justice
Not specified
1303
Chief Human Capital Officers Council
Chaired by the Director of
the Office of Personnel
Management
Not specified
CRS-22
Section
1708
Unit
National Bio-Weapons Defense
Analysis Centere
Location
Department of Defense
Establishment
Date
Not specified
(to be
transferred to
Department of
Homeland
Security
3/1/03)
Notes:
a. This table does not include the directorates created in the department.
b. The Office of Science and Technology is established in the National Institute of Justice by Sec.
231. Sec. 234 is entitled “Abolishment of Office of Science and Technology of National
Institute of Justice; Transfer of Functions.” Despite the title, it does not appear to abolish the
office created by Sec. 231. It does, however, provide for the transfer of functions to the office.
c. The Bureau of Border Security was reorganized under the modification of the President’s
reorganization plan and renamed the Bureau of Immigration and Customs Enforcement.
“Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/press_release/
press_release_0073.xml], visited May 8, 2003.
d. The establishment, in Sec. 1111(a), of the Bureau of Alcohol Tobacco, Firearms, and Explosives
in the Department of Justice would occur in conjunction with the transfer, in Sec. 1111(c), of
many functions of the Bureau of Alcohol, Tobacco, and Firearms from the Department of the
Treasury to the Department of Justice.
e. The National Bio-Weapons Defense Analysis Center is established in the Department of Defense
by Sec. 1708, and it is transferred from Defense to the new department by Sec. 303(2).
Cross-Agency Provisions
The Homeland Security Act establishes chief human capital officers, to be
appointed by the head of each agency, in every agency in which there is a chief
financial officer.58 The Act does not provide for the compensation of these officers.
It establishes a Chief Human Capital Officers Council comprising the Director of the
Office of Personnel Management (OPM) (chair), the Deputy Director for
Management of the Office of Management and Budget (OMB) (vice-chair), the chief
human capital officers of the executive departments, and other individuals as
designated by the OPM Director.59
The Act also provides law enforcement powers to criminal investigators in
statutory inspectors general offices. Under these provisions, the Attorney General
may authorize such agents to, among other things, carry firearms and make arrests.60
58
P.L. 107-296, Sec. 1302.
59
P.L. 107-296, Sec. 1303.
60
P.L. 107-296, Sec. 812. For additional information on inspectors general, see CRS Report
98-379, Statutory Offices of Inspector General: Establishment and Evolution, by Frederick
M. Kaiser.
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Transitional Provisions
The Homeland Security Act includes several provisions regarding the transition
of current officials and their functions to the new agency. Transition plans are further
specified in the Department of Homeland Security Reorganization Plan.
Assistance to the Secretary. The Act directs current officials “having
authority over or functions relating to” an agency being transferred to provide
assistance to the new secretary, as he requests.61
Appointments to Initial Vacancies. Under the Act the President has two
options for making more rapid appointments to initial vacancies in the new
department. First, the President is authorized, during the transition period,62 to
designate an officer already serving in a Senate-confirmed position to serve, in an
acting capacity, in a position within the department. The applicable provision states
that
During the transition period, pending the advice and consent of the Senate to the
appointment of an officer required by this Act to be appointed by and with such
advice and consent, the President may designate any officer whose appointment
was required to be made by and with such advice and consent and who was such
an officer immediately before the effective date of this Act (and who continues
in office) or immediately before such designation, to act in such office until the
same is filled as provided in this Act.63
The intention of this section may be further clarified by report language concerning
an identical provision in an earlier version of the homeland security legislation:
This section ... allows the President to designate incumbents in organizations
being transferred who are currently in advice and consent positions, to act in the
same capacity during the transition period, until the position is filled as provided
for in this legislation.64
61
P.L. 107-296, Sec. 1511(a).
62
The transition period is defined as “the 12-month period beginning on the effective date
of this act. (P.L. 107-296, Sec. 1501(2); 116 Stat. 2308)
63
P.L. 107-296, Sec. 1511(c)(1); 116 Stat. 2309. As of May 8, 2003, President George W.
Bush had appointed six individuals to DHS positions using this provision: Gordon England
(Deputy Secretary); Janet Hale (Under Secretary for Management); Asa Hutchinson (Under
Secretary for Border and Transportation Security); Michael J. Garcia (Assistant Secretary
for the Bureau of Immigration and Customs Enforcement); Eduardo Aguirre, Jr. (Director
of the Bureau of Citizenship and Immigration Services); and Clark Kent Ervin (Inspector
General). The first three had subsequently been nominated and confirmed for the positions,
while the remaining three had been nominated but not confirmed.
64
U.S. Congress, House Select Committee on Homeland Security, Homeland Security Act
of 2002, report to accompany H.R. 5005, 107th Cong., 2nd sess., H. Rept. 107-609,
(Washington: GPO, 2002), p. 127.
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Such acting officers are compensated at the higher of two rates: the one at which they
were paid in their original position or the rate for the position they are temporarily
filling.65
Second, reconfirmation by the Senate is not required by the law for “any officer
whose agency is transferred to the Department pursuant to this Act and whose duties
following such transfer are germane to those performed before such transfer.”66
Termination of Positions Not Transferred. Regarding the disposition of
top leadership positions that are not specifically transferred with their agency or
office, the Homeland Security Act provides that
Except as otherwise provided in this Act, whenever all functions vested by law
in any agency have been transferred pursuant to this Act, each position and office
the incumbent of which was authorized to receive compensation at the rates
prescribed for an office or position at level II, III, IV, or V, of the Executive
Schedule, shall terminate.67
Discussion and Options
The Homeland Security Act establishes a number of principal officers and other
positions for the new department. Congress may wish to consider amending the Act
in ways that could serve to strengthen the new law administratively and address some
of the uncertainties identified earlier in this report.
Option: Assure that each position created or transferred has a clearly identified
appointment authority, compensation provision, and organizational
context. Congress may wish to more clearly state its intentions in this area.
Option: Address the apparent statutory conflict with regard to organizational status
and compensation between the Assistant Secretary of Border Security68 and
the Director of the Bureau of Citizenship and Immigration Services.
65
For more information on limited-term appointments, see CRS Report RS21412, LimitedTerm Appointments to Presidentially Appointed, Senate-Confirmed Positions, by Henry B.
Hogue. For more information on the Vacancies Act, see CRS Report 98-892, The New
Vacancies Act: Congress Acts to Protect the Senate’s Confirmation Prerogative, by Morton
Rosenberg.
66
P.L. 107-296, Sec. 1511(c)(2); 116 Stat. 2309. Michael D. Brown, formerly the deputy
director of the Federal Emergency Management Agency (FEMA), was appointed as under
secretary of emergency preparedness and response under this provision.
67
68
P.L. 107-296, Sec. 1513.
As previously noted, this position was renamed the Assistant Secretary of the Bureau of
Immigration and Customs Enforcement during the reorganization of border functions within
the new department. Department officials have indicated that this position and the Director
of the Bureau of Citizenship and Immigration Services are being compensated at the same
rate, but have not provided information on what the rate of compensation is.
CRS-25
Option: Require confirmation for all assistant secretary positions with general areas
of responsibility to be identified by the President at the time of each
nomination. The secretary would retain the flexibility within those areas.
Option: Consider whether as many as 12 assistant secretaries are needed. Congress
may explore the responsibilities and rationale for these positions. It could
create any number of assistant secretary positions, subject to confirmation
and paid at Executive Schedule rates. It could allow the secretary to name
deputy assistant secretaries to be among the noncareer SES personnel in
the department. This might be a means to avoid the inconsistencies of
appointment status, to avoid having presidential appointees in the
executive departments, and to work within the existing appointments
framework.
Option: Establish the department CFO as a PAS position.
Option: Establish the CIO position in conformity with 44 U.S.C. 3506 to maintain
uniformity among these position across the departments and within the
CIO Council.
Option: Establish the chief human capital officer for the new department as a
secretary-appointed position to conform to the appointment provisions for
the other chief human capital officers created by the Act.
Option: Clarify congressional intent by moving the provision concerning
reconfirmation of existing office holders out of the section on acting
officials or specifying that the provision applies to acting officials only.
Conclusion
The Homeland Security Act of 2002, which created the Department of
Homeland Security, is complex and far-reaching. The Act creates a number of new
statutory positions, transfers a variety of units and functions to the new department
and elsewhere, and creates a number of new units. It also includes several provisions
to facilitate a smooth leadership transition as the Act is implemented. Congress may
wish to consider amendments to the Act that may improve the appointments
framework for the new department.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.