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

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Prepared for Members and Committees of Congress

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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).

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

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ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

˜—Ž—œȱ

Introduction ..................................................................................................................................... 1

Title I: Risk-Based Allocation of Homeland Security Grants ......................................................... 1

Homeland Security and Emergency Management Grant Funding............................................ 1

Overview ................................................................................................................................... 1

House Provisions ................................................................................................................ 2

Senate Provisions ................................................................................................................ 2

Comments ........................................................................................................................... 3

Title II: Ensuring Communications Interoperability for First Responders...................................... 3

Improve Communications for Emergency Response Grant Program ....................................... 3

Overview ................................................................................................................................... 3

House Provisions ................................................................................................................ 3

Senate Provisions ................................................................................................................ 4

Border Interoperability Demonstration Project......................................................................... 4

House Provisions ................................................................................................................ 4

Senate provisions ................................................................................................................ 5

Other Provisions Regarding Communications and Interoperability ......................................... 5

House Provisions ................................................................................................................ 5

Senate Provisions ................................................................................................................ 5

Title III: Strengthening Use of a Unified Incident Command During Emergencies ....................... 6

Overview ................................................................................................................................... 6

House Provisions ................................................................................................................ 6

Senate Provisions ................................................................................................................ 6

Comments ........................................................................................................................... 7

Title IV: Strengthening Aviation Security........................................................................................ 7

Overview ................................................................................................................................... 7

House Provisions ................................................................................................................ 7

Reauthorization of Appropriations...................................................................................... 7

Baggage Screening.............................................................................................................. 8

Passenger Checkpoint Screening ........................................................................................ 8

Air Cargo Security .............................................................................................................. 8

Airline Passenger Prescreening........................................................................................... 9

TSA Personnel Management............................................................................................... 9

Senate Provisions ................................................................................................................ 9

Reauthorization of Appropriations.................................................................................... 10

Baggage Screening............................................................................................................ 10

Passenger Checkpoint Screening ...................................................................................... 10

Air Cargo Security ............................................................................................................ 10

Airline Passenger Prescreening..........................................................................................11

TSA Personnel Management..............................................................................................11

Miscellaneous Provisions Not in the House Bill .............................................................. 12

Foreign Aviation Repair Station Security ......................................................................... 12

General Aviation Security ................................................................................................. 12

Airline Crew and Law Enforcement Credentials.............................................................. 12

Canine Explosives Detection Team Training.................................................................... 13

Comments ......................................................................................................................... 13

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

Title V: Strengthening the Security of Cargo Containers .............................................................. 14

Overview ................................................................................................................................. 14

House Provisions .............................................................................................................. 15

Senate Provisions .............................................................................................................. 15

Comment........................................................................................................................... 16

Title VI: Strengthening Efforts to Prevent Terrorist Travel (H.R. 1)............................................. 17

Overview ................................................................................................................................. 17

Strengthening the Capabilities of the Human Smuggling and Trafficking Center.................. 17

Overview ................................................................................................................................. 17

House Provisions .............................................................................................................. 17

Senate Provisions .............................................................................................................. 18

Modernization of the Visa Waiver Program............................................................................ 18

Overview ................................................................................................................................. 18

House Provisions .............................................................................................................. 19

Senate Provisions .............................................................................................................. 19

Comment........................................................................................................................... 19

Enhancing Terrorist Travel Programs...................................................................................... 20

Overview ................................................................................................................................. 20

House Provisions .............................................................................................................. 20

Senate Provisions .............................................................................................................. 20

Comments ......................................................................................................................... 20

Biometric Entry and Exit System............................................................................................ 20

Overview ................................................................................................................................. 21

House Provisions .............................................................................................................. 21

Senate Provisions .............................................................................................................. 21

Comments ......................................................................................................................... 21

Enhanced Driver’s License/Western Hemisphere Travel Initiative ........................................ 21

Overview ................................................................................................................................. 22

House Provisions .............................................................................................................. 22

Senate Provisions .............................................................................................................. 22

Comments ......................................................................................................................... 22

Model Ports of Entry............................................................................................................... 22

House Provision................................................................................................................ 23

Senate Provisions .............................................................................................................. 23

Title VII: Improving Intelligence and Information Sharing with Local Law Enforcement

and First Responders .................................................................................................................. 23

Overview ................................................................................................................................. 23

Fusion and Law Enforcement Education and Teaming (FLEET) Grant Program .................. 24

House Provisions .............................................................................................................. 24

Senate Provisions .............................................................................................................. 24

Comment........................................................................................................................... 24

Border Intelligence Fusion Center Program............................................................................ 25

House Provisions .............................................................................................................. 25

Senate Provisions .............................................................................................................. 25

Homeland Security Information Sharing Environment........................................................... 25

Overview ................................................................................................................................. 25

Unique House Provisions.................................................................................................. 26

Unique Senate Provisions ................................................................................................. 26

Comment: DHS Advisory System .................................................................................... 27

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

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ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

Comment: Definition of DHS Intelligence Component.................................................... 27

Comment: Integration and Standardization of DHS Intelligence ..................................... 27

Comment: Program Manager ISE Term, Functions, and Additional Resources............... 28

Homeland Security Information Sharing Partnerships............................................................ 28

Overview ................................................................................................................................. 28

Unique House Provisions.................................................................................................. 28

Unique Senate Provisions ................................................................................................. 29

Comment........................................................................................................................... 29

Homeland Security Intelligence Offices Reorganization ........................................................ 29

House Provisions .............................................................................................................. 29

Senate Provisions .............................................................................................................. 30

Comment........................................................................................................................... 30

Interagency Threat Assessment Coordination Group.............................................................. 30

Overview ................................................................................................................................. 30

House Provisions .............................................................................................................. 31

Senate Provisions .............................................................................................................. 31

Comment........................................................................................................................... 31

Title VIII: Protecting Privacy and Civil Liberties While Effectively Fighting Terrorism............. 32

Reconstituting the Privacy and Civil Liberties Oversight Board ............................................ 32

Overview ................................................................................................................................. 32

House Provisions .............................................................................................................. 32

Senate Provisions .............................................................................................................. 32

Comments ......................................................................................................................... 33

Privacy Officers ...................................................................................................................... 33

Overview ................................................................................................................................. 33

House Provisions .............................................................................................................. 33

Senate Provisions .............................................................................................................. 34

Enhancement of Department of Homeland Security Privacy Officer’s Authorities................ 34

Overview ................................................................................................................................. 34

House Provisions .............................................................................................................. 35

Senate Provision ............................................................................................................... 35

Federal Agency Data Mining Reporting Act of 2007.............................................................. 35

Overview ................................................................................................................................. 35

House Provisions .............................................................................................................. 36

Senate Provisions .............................................................................................................. 36

Comments ......................................................................................................................... 36

Title IX: Improving Critical Infrastructure Security ..................................................................... 37

Overview ................................................................................................................................. 37

Vulnerability Assessment and Report on Critical Infrastructure Information......................... 38

House Provisions .............................................................................................................. 38

Senate Provisions .............................................................................................................. 38

Comment........................................................................................................................... 38

National Asset Database and National At-Risk Database ....................................................... 39

House Provisions .............................................................................................................. 39

Senate Provisions .............................................................................................................. 39

Comment........................................................................................................................... 40

Priorities and Allocations ........................................................................................................ 40

House Provisions .............................................................................................................. 40

Senate Provisions .............................................................................................................. 41

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ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

Senate Provisions Comment ............................................................................................. 41

Title X: Transportation Security Planning and Information Sharing............................................. 41

House Provisions .............................................................................................................. 41

Senate Provisions .............................................................................................................. 41

Title XI: Private Sector Preparedness............................................................................................ 42

Participation of the Private Sector in Preparedness Activities ................................................ 42

Overview ................................................................................................................................. 42

House Provisions .............................................................................................................. 42

Senate Provisions .............................................................................................................. 42

Comments ......................................................................................................................... 42

Title XII: Preventing Weapons of Mass Destruction Proliferation and Terrorism ........................ 43

Overview ................................................................................................................................. 43

Repeal and Modification of Limitations on Nonproliferation Assistance............................... 43

House Provisions .............................................................................................................. 43

Senate Provisions .............................................................................................................. 43

Comments ......................................................................................................................... 44

Expanding Proliferation Security Initiative............................................................................. 44

House Provisions .............................................................................................................. 44

Senate provisions .............................................................................................................. 44

Comments ......................................................................................................................... 45

Assistance to Accelerate Programs to Prevent Weapons of Mass Destruction

Proliferation and Terrorism .................................................................................................. 45

House Provisions .............................................................................................................. 45

Senate provisions .............................................................................................................. 45

Comments ......................................................................................................................... 45

Establishing a Coordinator and Commission on Preventing Weapons of Mass

Destruction Proliferation and Terrorism .............................................................................. 46

House Provisions .............................................................................................................. 46

Senate Provisions .............................................................................................................. 46

Comments ......................................................................................................................... 46

Title XIII: Nuclear Black Market Counter-Terrorism Act............................................................. 47

Overview ................................................................................................................................. 47

House Provisions .............................................................................................................. 47

Senate Provisions .............................................................................................................. 47

Comments ......................................................................................................................... 47

Title XIV: 9/11 Commission International Implementation.......................................................... 48

Overview ................................................................................................................................. 48

Subtitle A: Quality Educational Opportunities in Arab and Predominantly Muslim

Countries .............................................................................................................................. 48

House Provisions .............................................................................................................. 48

Senate Provisions .............................................................................................................. 49

Subtitle B: Democracy and Development in Arab and Muslim Countries ............................. 49

House Provisions .............................................................................................................. 49

Senate Provisions .............................................................................................................. 49

Subtitle C: Advancing United States Interests Through Public Diplomacy............................ 49

House Provision................................................................................................................ 49

Senate Provision ............................................................................................................... 50

House Provision................................................................................................................ 50

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

Senate Provision ............................................................................................................... 50

House Provision................................................................................................................ 50

Senate Provision ............................................................................................................... 50

Subtitle D: Strategy for the United States Relationship with Afghanistan, Pakistan,

and Saudi Arabia .................................................................................................................. 51

House Provisions .............................................................................................................. 51

Senate Provisions .............................................................................................................. 51

Senate Provisions Not in H.R. 1.................................................................................................... 52

Title VII: Enhanced Defenses Against Weapons of Mass Destruction.......................................... 52

National Biosurveillance Integration Center........................................................................... 52

House Provision................................................................................................................ 52

Senate Provision ............................................................................................................... 52

Biosurveillance Efforts............................................................................................................ 53

House Provision................................................................................................................ 53

Senate Provision ............................................................................................................... 53

Interagency Coordination to Enhance Defenses Against Nuclear and Radiological

Weapons of Mass Destruction.............................................................................................. 53

House Provisions .............................................................................................................. 53

Senate Provisions .............................................................................................................. 53

Comment........................................................................................................................... 53

Title XII: Congressional Oversight of Intelligence ....................................................................... 54

Availability to Public of Certain Intelligence Funding Information ....................................... 54

House Provision................................................................................................................ 54

Senate Provision ............................................................................................................... 54

Comment........................................................................................................................... 54

Response of Intelligence Community to Requests from Congress ......................................... 54

House Provision................................................................................................................ 54

Senate Provision ............................................................................................................... 54

Comment........................................................................................................................... 55

Public Interest Declassification Board .................................................................................... 55

House Provision................................................................................................................ 55

Senate Provision ............................................................................................................... 56

Comment........................................................................................................................... 56

Sense of the Senate Regarding a Report on the 9/11 Commission Recommendations

with Respect to Intelligence Reform and Congressional Intelligence Oversight

Reform ................................................................................................................................. 56

House Provision................................................................................................................ 56

Senate Provision ............................................................................................................... 56

Comment........................................................................................................................... 56

Availability of Funds for the Public Interest Declassification Board...................................... 56

House Provision................................................................................................................ 56

Senate Provision ............................................................................................................... 57

Comment........................................................................................................................... 57

Availability of the Executive Summary of the Report on Central Intelligence Agency

Accountability Regarding the Terrorist Attacks of September 11, 2001.............................. 57

House Provision................................................................................................................ 57

Senate Provision ............................................................................................................... 57

Comment........................................................................................................................... 57

Title XIII: International Cooperation on Antiterrorism Technologies ........................................... 57

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

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ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

House Provisions .............................................................................................................. 58

Senate Provision ............................................................................................................... 58

Transparency of Funds ............................................................................................................ 59

House Provision................................................................................................................ 59

Senate Provision ............................................................................................................... 59

Title XIV: Transportation and Interoperable Communication Capabilities................................... 59

Subtitle A Part I: Improved Rail Security................................................................................ 59

Rail Transportation Security Risk Assessment........................................................................ 59

House Provisions .............................................................................................................. 59

Senate Provisions .............................................................................................................. 59

Rail Transportation Security Grant Programs ......................................................................... 60

House Provisions .............................................................................................................. 60

Senate Provisions .............................................................................................................. 60

Amtrak Provisions................................................................................................................... 60

House Provisions .............................................................................................................. 60

Senate Provisions .............................................................................................................. 60

Northern Border Rail Passenger Report.................................................................................. 61

House Provisions .............................................................................................................. 61

Senate Provisions .............................................................................................................. 61

Freight Rail Specific Provisions.............................................................................................. 61

House Provisions .............................................................................................................. 61

Senate Provisions .............................................................................................................. 62

Unified Carrier Registration System Plan Agreement ............................................................ 62

House Provisions .............................................................................................................. 62

Senate Provisions .............................................................................................................. 62

Authorization of Appropriations ............................................................................................. 62

House Provisions .............................................................................................................. 62

Senate Provisions .............................................................................................................. 62

Comment........................................................................................................................... 63

Subtitle A Part II: Improved Motor Carrier, Bus, and Hazardous Material Security..................... 63

Motor Carrier and Hazardous Material Security..................................................................... 63

House Provisions .............................................................................................................. 64

Senate Provisions .............................................................................................................. 64

Comment........................................................................................................................... 64

Over-the-Road Bus Security Assistance.................................................................................. 65

House Provisions .............................................................................................................. 65

Senate Provisions .............................................................................................................. 65

Subtitle B: See Title 4, H.R. 1................................................................................................. 65

Subtitle C: Interoperable Emergency Communications .......................................................... 65

Interoperable Emergency Communications ............................................................................ 65

House Provisions .............................................................................................................. 66

Senate Provisions .............................................................................................................. 66

Extension of Short Quorum .................................................................................................... 66

House Provisions .............................................................................................................. 66

Senate Provisions .............................................................................................................. 66

Requiring Reports to be Submitted to Certain Committees .................................................... 66

House Provisions .............................................................................................................. 66

Senate Provisions .............................................................................................................. 66

Title XV: Public Transportation Terrorism Prevention.................................................................. 66

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

Overview ................................................................................................................................. 67

House Provisions .............................................................................................................. 67

Security Assessments ........................................................................................................ 67

Security Grants ................................................................................................................. 67

Security Training Program................................................................................................ 67

Intelligence Sharing .......................................................................................................... 67

Research, Development, and Demonstration Grants and Contracts ................................. 68

Authorization of Appropriations ....................................................................................... 68

Sunset Provisions.............................................................................................................. 68

Comment........................................................................................................................... 68

Title XVI: Miscellaneous Provisions ............................................................................................ 69

Deputy Secretary of Homeland Security for Management ..................................................... 69

Overview ................................................................................................................................. 69

House Provisions .............................................................................................................. 69

Senate Provisions .............................................................................................................. 69

Comment........................................................................................................................... 70

Sense of the Senate Regarding Oversight of Homeland Security ........................................... 70

Overview ................................................................................................................................. 70

House Provisions .............................................................................................................. 72

Senate Provisions .............................................................................................................. 72

Report Regarding Border Security.......................................................................................... 72

House Provisions .............................................................................................................. 72

Senate Provisions .............................................................................................................. 72

Law Enforcement Assistance Force ........................................................................................ 73

House Provisions .............................................................................................................. 73

Senate Provisions .............................................................................................................. 73

Quadrennial Homeland Security Review................................................................................ 73

Overview ................................................................................................................................. 73

House Provisions .............................................................................................................. 74

Senate Provisions .............................................................................................................. 74

Comments ......................................................................................................................... 74

Overview ................................................................................................................................. 75

Integration of Detection Equipment and Technologies ........................................................... 75

House Provisions .............................................................................................................. 75

Senate Provisions .............................................................................................................. 75

Title XVII: 911 Modernization...................................................................................................... 75

Overview ................................................................................................................................. 75

House Provisions .............................................................................................................. 75

Senate Provisions .............................................................................................................. 76

Title XVIII: Modernization of the American National Red Cross ................................................ 76

Altering the Governance of the American National Red Cross .............................................. 76

Overview ................................................................................................................................. 76

House Provisions .............................................................................................................. 76

Senate Provisions .............................................................................................................. 76

Comments ......................................................................................................................... 77

Title XIX: Advancement of Democratic Values ............................................................................ 77

House Provisions .............................................................................................................. 77

Senate Provisions .............................................................................................................. 78

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

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ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

˜—ŠŒœȱ

Author Contact Information .......................................................................................................... 80

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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—›˜žŒ’˜—ȱ

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 been completely resolved through

legislative actions of the 109th 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 (name redacted). 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).

’•Žȱ DZȱ’œ”ȬŠœŽȱ••˜ŒŠ’˜—ȱ˜ȱ ˜–Ž•Š—ȱŽŒž›’¢ȱ

›Š—œȱ

˜–Ž•Š—ȱŽŒž›’¢ȱŠ—ȱ–Ž›Ž—Œ¢ȱŠ—ŠŽ–Ž—ȱ ›Š—ȱž—’—ȱ

Prepared by (name redacted), Analyst in Americ

an National Government, CRS Government and

Finance Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Řȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

˜––Ž—œȱ

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.

’•Žȱ DZȱ—œž›’—ȱ˜––ž—’ŒŠ’˜—œȱ —Ž›˜™Ž›Š‹’•’¢ȱ

˜›ȱ’›œȱŽœ™˜—Ž›œȱ

–™›˜ŸŽȱ˜––ž—’ŒŠ’˜—œȱ˜›ȱ–Ž›Ž—Œ¢ȱŽœ™˜—œŽȱ ›Š—ȱ›˜›Š–ȱ

Prepared by (name redacted), Analyst in Telecommunications and Technology Policy, CRS

Resources, Science, and Industry Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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 to requirements provided in the 21st 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.

˜›Ž›ȱ —Ž›˜™Ž›Š‹’•’¢ȱŽ–˜—œ›Š’˜—ȱ›˜“ŽŒȱ

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provision.

1

Congressional Budget Office Cost Estimate for H.R. 1, Feb. 2, 2007, p. 4; and H.R. 1, Title II.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Śȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

Ž—ŠŽȱ™›˜Ÿ’œ’˜—œȱ

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.

‘Ž›ȱ›˜Ÿ’œ’˜—œȱŽŠ›’—ȱ˜––ž—’ŒŠ’˜—œȱŠ—ȱ —Ž›˜™Ž›Š‹’•’¢ȱ

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provision.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

śȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

’•Žȱ DZȱ›Ž—‘Ž—’—ȱœŽȱ˜ȱŠȱ—’’Žȱ —Œ’Ž—ȱ

˜––Š—ȱž›’—ȱ–Ž›Ž—Œ’Žœȱ

Prepared by (name redacted), Analyst in American National Government, CRS Government and

Finance Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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).

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Ŝȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

˜––Ž—œȱ

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.

’•Žȱ DZȱ›Ž—‘Ž—’—ȱŸ’Š’˜—ȱŽŒž›’¢ȱ

Prepared by (name redacted), Specialist in Aviation Safety, Security, and Technology, CRS Resources,

Science, and Industry Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

ŽŠž‘˜›’£Š’˜—ȱ˜ȱ™™›˜™›’Š’˜—œȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŝȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ŠŠŽȱŒ›ŽŽ—’—ȱ

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).

ŠœœŽ—Ž›ȱ‘ŽŒ”™˜’—ȱŒ›ŽŽ—’—ȱ

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.

’›ȱŠ›˜ȱŽŒž›’¢ȱ

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

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Şȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

would be required to review and report to Congress assessing the DHS methodology for handling

exemptions. See CRS Report RL32022, Air Cargo Security, by (name redacted).

’›•’—ŽȱŠœœŽ—Ž›ȱ›ŽœŒ›ŽŽ—’—ȱ

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

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 (name redacted) and (name redacted).

ȱŽ›œ˜——Ž•ȱŠ—ŠŽ–Ž—ȱ

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

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

şȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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.

ŽŠž‘˜›’£Š’˜—ȱ˜ȱ™™›˜™›’Š’˜—œȱ

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.

ŠŠŽȱŒ›ŽŽ—’—ȱ

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 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).

ŠœœŽ—Ž›ȱ‘ŽŒ”™˜’—ȱŒ›ŽŽ—’—ȱ

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.

’›ȱŠ›˜ȱŽŒž›’¢ȱ

In contrast to the House bill, which would mandate 100% physical inspections of cargo placed on

passenger airliners by end of FY2009, 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

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)).

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŖȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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 blastresistant 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 recorders, and remote location recording devices. The House bill contains no

comparable provision.

’›•’—ŽȱŠœœŽ—Ž›ȱ›ŽœŒ›ŽŽ—’—ȱ

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.

ȱŽ›œ˜——Ž•ȱŠ—ŠŽ–Ž—ȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŗȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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.

’œŒŽ••Š—Ž˜žœȱ›˜Ÿ’œ’˜—œȱ˜ȱ’—ȱ‘Žȱ ˜žœŽȱ’••ȱ

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.

˜›Ž’—ȱŸ’Š’˜—ȱŽ™Š’›ȱŠ’˜—ȱŽŒž›’¢ȱ

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.

Ž—Ž›Š•ȱŸ’Š’˜—ȱŽŒž›’¢ȱ

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 (name

redacted).

’›•’—Žȱ›Ž ȱŠ—ȱŠ ȱ—˜›ŒŽ–Ž—ȱ›ŽŽ—’Š•œȱ

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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŘȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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.

Š—’—Žȱ¡™•˜œ’ŸŽœȱŽŽŒ’˜—ȱŽŠ–ȱ›Š’—’—ȱ

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.

˜––Ž—œȱ

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

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/GovernmentAffairs/

gakm_CoalitionSenateBillLetterInouyeFeb07.asp.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗřȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

screening—fails to adequately consider the differences between cargo and baggage and the

unique operational challenges of air cargo handling and supply chain logistics.6 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.

’•ŽȱDZȱ›Ž—‘Ž—’—ȱ‘ŽȱŽŒž›’¢ȱ˜ȱŠ›˜ȱ

˜—Š’—Ž›œȱ

Prepared by (name redacted), Analyst in Domestic Security, CRS Domestic Social Policy

Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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

6

Ibid.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŚȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗśȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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.

˜––Ž—ȱ

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 100% of U.S.-bound cargo.

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

7

Department of Homeland Security, U.S. Customs, and Border Protection FY2008 Overview Congressional Budget

Justification, p. CBP-26.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŜȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

screen and target specific containers for scanning and inspection is simply not adequate, thus

requiring that every container be scanned.

’•Žȱ DZȱ›Ž—‘Ž—’—ȱ˜›œȱ˜ȱ›ŽŸŽ—ȱŽ››˜›’œȱ

›ŠŸŽ•ȱǻ ǯǯȱŗǼȱ

ŸŽ›Ÿ’Ž ȱ

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.

›Ž—‘Ž—’—ȱ‘ŽȱŠ™Š‹’•’’Žœȱ˜ȱ‘Žȱ ž–Š—ȱ–ž•’—ȱŠ—ȱ

›Š’Œ”’—ȱŽ—Ž›ȱ

Prepared by (name redacted), Specialist in Immi

gration Legislation, CRS Domestic Social Policy

Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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

8

U.S. Congress, House Committee on Homeland Security, Subcommittee on Management, Integration, and Oversight,

9/11 Reform Act: Examining the Implementation of the Human Smuggling and Trafficking Center, hearings, 109th

Cong., 2nd sess., Mar. 8, 2006.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŝȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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 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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜Ž›—’£Š’˜—ȱ˜ȱ‘Žȱ’œŠȱŠ’ŸŽ›ȱ›˜›Š–ȱ

Prepared by (name redacted), Specialist in Immi

gration Legislation, CRS Domestic Social Policy

Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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-resistant, 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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗŞȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

can be terminated from the VWP if an emergency occurs that threatens United States’ security

interests.9

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provision.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜––Ž—ȱ

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 of the solution, such as the lack of

traveler compliance with the processes.”10 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

9

For more information on the VWP and the VWP provision in S. 4, see CRS Report RL32221, Visa Waiver Program,

by (name redacted).

10

Testimony of Richard Stana, Government Accountability Office, US-VISIT Program Faces Operational,

Technological, and Management Challenges, before the Committee on Homeland Security, 110th Cong., 1st sess., Mar.

20, 2007, pp. 12-13.

11

U.S. Department of Homeland Security, DHS FY2008 Congressional Budget Justification, p. US-VISIT 3.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŗşȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

—‘Š—Œ’—ȱŽ››˜›’œȱ›ŠŸŽ•ȱ›˜›Š–œȱ

Prepared by (name redacted), Analyst in Do mestic Security, CRS Domestic Social Policy

Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜––Ž—œȱ

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.

’˜–Ž›’Œȱ—›¢ȱŠ—ȱ¡’ȱ¢œŽ–ȱ

Prepared by (name redacted), Analyst in Do mestic Security, CRS Domestic Social Policy

Division, 7-.....

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŘŖȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provisions.

˜––Ž—œȱ

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

—‘Š—ŒŽȱ›’ŸŽ›Ȃœȱ’ŒŽ—œŽȦŽœŽ›—ȱ Ž–’œ™‘Ž›Žȱ›ŠŸŽ•ȱ —’’Š’ŸŽȱ

Prepared by (name redacted), Analyst in Do mestic Security, CRS Domestic Social Policy

Division, 7-.....

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 Homeland Security, 110th Cong., 1st 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 USVISIT Program, 110th Cong., 1st sess., Feb. 16, 2007.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Řŗȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provision.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

˜––Ž—œȱ

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.

˜Ž•ȱ˜›œȱ˜ȱ—›¢ȱ

Prepared by (name redacted), Analyst in Do mestic Security, CRS Domestic Social Policy

Division, 7-.....

14

P.L. 109-295 Section 546.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŘŘȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

˜žœŽȱ›˜Ÿ’œ’˜—ȱ

No comparable provision.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

’•Žȱ DZȱ –™›˜Ÿ’—ȱ —Ž••’Ž—ŒŽȱŠ—ȱ —˜›–Š’˜—ȱ

‘Š›’—ȱ ’‘ȱ˜ŒŠ•ȱŠ ȱ—˜›ŒŽ–Ž—ȱŠ—ȱ’›œȱ

Žœ™˜—Ž›œȱ

Prepared by (name redacted), Specialist in Domestic Intelligence and Counterterrorism, CRS

Domestic Social Policy Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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)

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Řřȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

žœ’˜—ȱŠ—ȱŠ ȱ—˜›ŒŽ–Ž—ȱžŒŠ’˜—ȱŠ—ȱŽŠ–’—ȱǻǼȱ

›Š—ȱ›˜›Š–ȱ

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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 law enforcement personnel who are

detailed to a fusion center and the home agency or department from which they are detailed.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provisions.

˜––Ž—ȱ

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

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.

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

(continued...)

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŘŚȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

˜›Ž›ȱ —Ž••’Ž—ŒŽȱžœ’˜—ȱŽ—Ž›ȱ›˜›Š–ȱ

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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) officers or intelligence analysts in the fusion centers of participating

border States.”19 Furthermore, such personnel would assist state, local and tribal law enforcement

in 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....”

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provisions.

˜–Ž•Š—ȱŽŒž›’¢ȱ —˜›–Š’˜—ȱ‘Š›’—ȱ—Ÿ’›˜—–Ž—ȱ

ŸŽ›Ÿ’Ž ȱ

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

(...continued)

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.”

20

S. 4 excepts from this integration and standardization “... any internal protocols of such intelligence components.”

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Řśȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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.”

•

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).

—’šžŽȱ ˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.”

—’šžŽȱŽ—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŘŜȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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.

˜––Ž—DZȱ ȱŸ’œ˜›¢ȱ¢œŽ–ȱ

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

˜––Ž—DZȱŽ’—’’˜—ȱ˜ȱ ȱ —Ž••’Ž—ŒŽȱ˜–™˜—Ž—ȱ

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, intelligencerelated 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.

˜––Ž—DZȱ —Ž›Š’˜—ȱŠ—ȱŠ—Š›’£Š’˜—ȱ˜ȱ ȱ —Ž••’Ž—ŒŽȱ

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.

21

See CRS Report RL32897, Post-9/11 National Threat Notification Efforts: Issues, Actions, and Options for

Congress, by John Rollins and (name redacted). See also CRS Report RL32023,

Homeland Security Advisory

System: Possible Issues for Congressional Oversight, by (name redacted).

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Řŝȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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

˜––Ž—DZȱ›˜›Š–ȱŠ—ŠŽ›ȱ ȱŽ›–ǰȱž—Œ’˜—œǰȱŠ—ȱ’’˜—Š•ȱŽœ˜ž›ŒŽœȱ

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 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?

˜–Ž•Š—ȱŽŒž›’¢ȱ —˜›–Š’˜—ȱ‘Š›’—ȱŠ›—Ž›œ‘’™œȱ

ŸŽ›Ÿ’Ž ȱ

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....”

—’šžŽȱ ˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

22

See CRS Report RL33858, The Department of Homeland Security’s Risk Assessment Methodology: Evolution,

Issues, and Options for Congress, by (name redacted), John Rollins, and Siobhan O’Neil.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

ŘŞȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

—’šžŽȱŽ—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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....”

˜––Ž—ȱ

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.

˜–Ž•Š—ȱŽŒž›’¢ȱ —Ž••’Ž—ŒŽȱ’ŒŽœȱŽ˜›Š—’£Š’˜—ȱ

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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

23

See testimony of Charles Allen, DHS Chief Intelligence Officer, Before the Senate Select Committee on Intelligence,

Jan. 25, 2007.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

Řşȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provisions.

˜––Ž—ȱ

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 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.

—Ž›ŠŽ—Œ¢ȱ‘›ŽŠȱœœŽœœ–Ž—ȱ˜˜›’—Š’˜—ȱ ›˜ž™ȱ

ŸŽ›Ÿ’Ž ȱ

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 1016 of the Intelligence

Reform and Terrorism Prevention Act (P.L. 108-458) established the Information Sharing

Environment, to be led by a Program Manager. Part of the ISE Program Manager’s statutory

24

See DHS Management Directive 8110, Intelligence Integration and Management, Jan. 30, 2006.

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.

25

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řŖȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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, validated, de-conflicted, and approved for dissemination in a concise and, where possible,

unclassified format.”26

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provisions.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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)

˜––Ž—ȱ

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.

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, 2007.

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.

27

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řŗȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

’•Žȱ DZȱ›˜ŽŒ’—ȱ›’ŸŠŒ¢ȱŠ—ȱ’Ÿ’•ȱ’‹Ž›’Žœȱ

‘’•ŽȱŽŒ’ŸŽ•¢ȱ’‘’—ȱŽ››˜›’œ–ȱ

ŽŒ˜—œ’ž’—ȱ‘Žȱ›’ŸŠŒ¢ȱŠ—ȱ’Ÿ’•ȱ’‹Ž›’ŽœȱŸŽ›œ’‘ȱ˜Š›ȱ

Prepared by (name redacted), Specialist in American National Government, CRS Government

and Finance Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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 sixyear 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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řŘȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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.

˜––Ž—œȱ

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.

›’ŸŠŒ¢ȱ’ŒŽ›œȱ

Prepared by (name redacted), Specialist in American National Government, CRS Government

and Finance Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řřȱ

ȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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.

—‘Š—ŒŽ–Ž—ȱ˜ȱŽ™Š›–Ž—ȱ˜ȱ ˜–Ž•Š—ȱŽŒž›’¢ȱ›’ŸŠŒ¢ȱ

’ŒŽ›Ȃœȱž‘˜›’’Žœȱ

Prepared by (name redacted), Specialist in American National Government, CRS Government

and Finance Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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.

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řŚȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

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.

Ž—ŠŽȱ›˜Ÿ’œ’˜—ȱ

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.

ŽŽ›Š•ȱŽ—Œ¢ȱŠŠȱ’—’—ȱŽ™˜›’—ȱŒȱ˜ȱŘŖŖŝȱ

Prepared by (name redacted), Specialist in Information Science and Technology Policy, CRS

Resources, Science, and Industry Division, 7-.....

ŸŽ›Ÿ’Ž ȱ

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

˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ

řśȱ

ǯǯȱŗȱŠ—ȱǯȱŚDZȱȱ˜–™Š›Š’ŸŽȱ—Š•¢œ’œȱ

ȱ

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 110th Congresses.29

˜žœŽȱ›˜Ÿ’œ’˜—œȱ

No comparable provision.

Ž—ŠŽȱ›˜Ÿ’œ’˜—œȱ

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 th

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