Sept. 18, 2002 sees Congressional Record publish “TEXT OF AMENDMENTS”

Volume 148, No. 118 covering the 2nd Session of the 107th Congress (2001 - 2002) was published by the Congressional Record.

The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.

“TEXT OF AMENDMENTS” mentioning the Department of Interior was published in the Senate section on pages S8765-S8859 on Sept. 18, 2002.

The publication is reproduced in full below:

TEXT OF AMENDMENTS

SA 4563. Mr. BAYH (for himself, Mr. Shelby, Mr. Sessions, Mr. Hutchinson, Mr. McConnell, and Mr. Durbin) submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; as follows:

On page 211, between lines 9 and 10, insert the following:

TITLE VI--STRENGTHENED TEMPORARY FLIGHT RESTRICTIONS FOR THE PROTECTION

OF CHEMICAL WEAPONS STORAGE DEPOTS

SEC. 601. ENFORCEMENT OF TEMPORARY FLIGHT RESTRICTIONS.

(a) Improved Enforcement.--The Secretary of Defense shall request the Administrator of the Federal Aviation Administration to enforce temporary flight restrictions applicable to Department of Defense depots for the storage of lethal chemical agents and munitions.

(b) Assessment of Use of Combat Air Patrols and Exercises.--The Secretary shall assess the effectiveness, in terms of deterrence and capabilities for timely response, of current requirements for carrying out combat air patrols and flight training exercises involving combat aircraft over the depots referred to in such subsection.

SEC. 602. REPORTS ON UNAUTHORIZED INCURSIONS INTO RESTRICTED

AIRSPACE.

(a) Requirement for Report.--The Administrator of the Federal Aviation Administration shall submit to Congress a report on each incursion of an aircraft into airspace in the vicinity of Department of Defense depots for the storage of lethal chemical agents and munitions in violation of temporary flight restrictions applicable to that airspace. The report shall include a discussion of the actions, if any, that the Administrator has taken or is taking in response to or as a result of the incursion.

(b) Time for Report.--The report required under subsection

(a) regarding an incursion described in such subsection shall be submitted not later than 30 days after the occurrence of the incursion.

SEC. 603. REVIEW AND REVISION OF TEMPORARY FLIGHT

RESTRICTIONS.

(a) Requirement To Review and Revise.--The Secretary of Defense shall--

(1) review the temporary flight restrictions that are applicable to airspace in the vicinity of Department of Defense depots for the storage of lethal chemical agents and munitions, including altitude and radius restrictions; and

(2) request the Administrator of the Federal Aviation Administration to revise the restrictions, in coordination with the Secretary, to ensure that the restrictions are sufficient to provide an opportunity for--

(A) timely detection of incursions of aircraft into such airspace; and

(B) timely response to protect such agents and munitions effectively from threats associated with the incursions.

(b) Report.--Not later than 120 days after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the actions taken under subsection (a). The report shall contain the following:

(1) The matters considered in the review required under that subsection.

(2) The revisions of temporary flight restrictions that have been made or requested as a result of the review, together with a discussion of how those revisions ensure the attainment of the objectives specified in paragraph (2) of such subsection.

______

SA 4564. Mr. FEINGOLD submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

On page 137, between lines 13 and 14, insert the following:

SEC. 173. EMPLOYMENT LIMITATIONS.

(a) Senior Executive Service Noncareer Appointees.--

(1) In general.--Notwithstanding section 3134(d) of title 5, United States Code, the number of Senior Executive Service positions in the Department which are filled by noncareer appointees in any fiscal year may not at any time exceed 5 percent of the average number of senior executives employed in Senior Executive Service positions in the Department during the preceding fiscal year.

(2) Average number of senior executives.--For purposes of this subsection, the average number of senior executives employed in Senior Executive Service positions in the Department during a fiscal year shall be equal to 25 percent of the sum of the total number of senior executives employed in Senior Executive Service positions in the Department on the last day of each quarter of such fiscal year.

(b) Schedule C Appointees.--The number of positions in the Department which may be excepted from the competitive service, on a temporary or permanent basis, because of their confidential or policy-determining character may not at any time exceed the equivalent of 15 positions.

______

SA 4565. Mr. FEINGOLD (for himself, Ms. Collins, and Mr. Carper) submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Liberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

On page 103, strike line 17 and all that follows through page 112, line 4, and insert the following:

SEC. 137. OFFICE FOR STATE AND LOCAL GOVERNMENT COORDINATION.

(a) Establishment.--There is established within the Office of the Secretary the Office for State and Local Government Coordination, to be headed by a director, which shall oversee and coordinate departmental programs for and relationships with State and local governments.

(b) Responsibilities.--The Office established under subsection (a) shall--

(1) coordinate the activities of the Department relating to State and local government;

(2) assess, and advocate for, the resources needed by State and local government to implement the national strategy for combating terrorism;

(3) provide State and local government with regular information, research, and technical support to assist local efforts at securing the homeland;

(4) develop a process for receiving meaningful input from State and local government to assist the development of the Strategy and other homeland security activities; and

(5) prepare an annual report, that contains--

(A) a description of the State and local priorities in each of the 50 States based on discovered needs of first responder organizations, including law enforcement agencies, fire and rescue agencies, medical providers, emergency service providers, and relief agencies;

(B) a needs assessment that identifies homeland security functions in which the Federal role is duplicative of the State or local role, and recommendations to decrease or eliminate inefficiencies between the Federal Government and State and local entities;

(C) recommendations to Congress regarding the creation, expansion, or elimination of any program to assist State and local entities to carry out their respective functions under the Department; and

(D) proposals to increase the coordination of Department priorities within each State and between the States.

(1) Designation.--The Secretary shall designate in each State and the District of Columbia not less than 1 employee of the Department to serve as the Homeland Security Liaison Officer in that State or District.

(2) Duties.--Each Homeland Security Liaison Officer designated under paragraph (1) shall--

(A) provide State and local government officials with regular information, research, and technical support to assist local efforts at securing the homeland;

(B) provide coordination between the Department and State and local first responders, including--

(i) law enforcement agencies;

(ii) fire and rescue agencies;

(iii) medical providers;

(iv) emergency service providers; and

(v) relief agencies;

(C) notify the Department of the State and local areas requiring additional information, training, resources, and security;

(D) provide training, information, and education regarding homeland security for State and local entities;

(E) identify homeland security functions in which the Federal role is duplicative of the State or local role, and recommend ways to decrease or eliminate inefficiencies;

(F) assist State and local entities in priority setting based on discovered needs of first responder organizations, including law enforcement agencies, fire and rescue agencies, medical providers, emergency service providers, and relief agencies;

(G) assist the Department to identify and implement State and local homeland security objectives in an efficient and productive manner;

(H) serve as a liaison to the Department in representing State and local priorities and concerns regarding homeland security;

(I) consult with State and local government officials, including emergency managers, to coordinate efforts and avoid duplication; and

(J) coordinate with Homeland Security Liaison Officers in neighboring States to--

(i) address shared vulnerabilities; and

(ii) identify opportunities to achieve efficiencies through interstate activities .

(d) Federal Interagency Committee on First Responders and State, Local, and Cross-jurisdictional issues.--

(1) In general.--There is established an Interagency Committee on First Responders and State, Local, and Cross-jurisdictional Issues (in this section referred to as the

``Interagency Committee'', that shall--

(A) ensure coordination, with respect to homeland security functions, among the Federal agencies involved with--

(i) State, local, and regional governments;

(ii) State, local, and community-based law enforcement;

(iii) fire and rescue operations; and

(iv) medical and emergency relief services;

(B) identify community-based law enforcement, fire and rescue, and medical and emergency relief services needs;

(C) recommend new or expanded grant programs to improve community-based law enforcement, fire and rescue, and medical and emergency relief services;

(D) identify ways to streamline the process through which Federal agencies support community-based law enforcement, fire and rescue, and medical and emergency relief services; and

(E) assist in priority setting based on discovered needs.

(2) Membership.--The Interagency Committee shall be composed of--

(A) a representative of the Office for State and Local Government Coordination;

(B) a representative of the Health Resources and Services Administration of the Department of Health and Human Services;

(D) a representative of the Federal Emergency Management Agency of the Department;

(E) a representative of the United States Coast Guard of the Department;

(F) a representative of the Department of Defense;

(G) a representative of the Office of Domestic Preparedness of the Department;

(H) a representative of the Directorate of Immigration Affairs of the Department;

(I) a representative of the Transportation Security Agency of the Department;

(J) a representative of the Federal Bureau of Investigation of the Department of Justice; and

(K) representatives of any other Federal agency identified by the President as having a significant role in the purposes of the Interagency Committee.

(3) Administration.--The Department shall provide administrative support to the Interagency Committee and the Advisory Council, which shall include--

(A) scheduling meetings;

(B) preparing agenda;

(D) producing reports; and

(E) reimbursing Advisory Council members.

(4) Leadership.--The members of the Interagency Committee shall select annually a chairperson.

(5) Meetings.--The Interagency Committee shall meet--

(A) at the call of the Secretary; or

(B) not less frequently than once every 3 months.

(e) Advisory Council for the Interagency Committee.--

(1) Establishment.--There is established an Advisory Council for the Interagency Committee (in this section referred to as the ``Advisory Council'').

(2) Membership.--

(A) In general.--The Advisory Council shall be composed of not more than 13 members, selected by the Interagency Committee.

(B) Duties.--The Advisory Council shall--

(i) develop a plan to disseminate information on first response best practices;

(ii) identify and educate the Secretary on the latest technological advances in the field of first response;

(iii) identify probable emerging threats to first responders;

(iv) identify needed improvements to first response techniques and training;

(v) identify efficient means of communication and coordination between first responders and Federal, State, and local officials;

(vi) identify areas in which the Department can assist first responders; and

(vii) evaluate the adequacy and timeliness of resources being made available to local first responders.

(i) the law enforcement community;

(ii) fire and rescue organizations;

(iii) medical and emergency relief services; and

(iv) both urban and rural communities.

(3) Chairperson.--The Advisory Council shall select annually a chairperson from among its members.

(4) Compensation of members.--The members of the Advisory Council shall serve without compensation, but shall be eligible for reimbursement of necessary expenses connected with their service to the Advisory Council.

(5) Meetings.--The Advisory Council shall meet with the Interagency Committee not less frequently than once every 3 months.

______

SA 4566. Mr. LEVIN (for himself, Mr. Grassley, Mr. Akaka, and Mr. Leahy) submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

On page 211, insert between lines 9 and 10 the following:

TITLE VI--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL

EMPLOYEES

SEC. 601. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY

FEDERAL EMPLOYEES.

(a) Clarification of Disclosures Covered.--Section 2302(b)(8) of title 5, United States Code, is amended--

(1) in subparagraph (A)--

(B) in clause (i), by striking ``a violation'' and inserting ``any violation'';

(2) in subparagraph (B)--

(A) by striking ``which the employee or applicant reasonably believes evidences'' and inserting ``, without restriction to time, place, form, motive, context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties, to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information that the employee or applicant reasonably believes is evidence of''; and

(B) in clause (i), by striking ``a violation'' and inserting ``any violation (other than a violation of this section)''; and

(3) by adding at the end the following:

``(C) a disclosure that--

``(i) is made by an employee or applicant of information required by law or Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs that the employee or applicant reasonably believes is evidence of--

``(I) any violation of any law, rule, or regulation;

``(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

``(III) a false statement to Congress on an issue of material fact; and

``(ii) is made to--

``(I) a member of a committee of Congress having a primary responsibility for oversight of a department, agency, or element of the Federal Government to which the disclosed information relates and who is authorized to receive information of the type disclosed;

``(II) any other Member of Congress who is authorized to receive information of the type disclosed; or

``(III) an employee of the executive branch or Congress who has the appropriate security clearance for access to the information disclosed.''.

(b) Covered Disclosures.--Section 2302(b) of title 5, United States Code, is amended--

(1) in the matter following paragraph (12), by striking

``This subsection'' and inserting the following:

``This subsection''; and

(2) by adding at the end the following:

``In this subsection, the term `disclosure' means a formal or informal communication or transmission.''.

(c) Rebuttable Presumption.--Section 2302(b) of title 5, United States Code, is amended by adding after the matter following paragraph (12) (as amended by subsection (b) of this section) the following:

``For purposes of paragraph (8), any presumption relating to the performance of a duty by an employee who has authority to take, direct others to take, recommend, or approve any personnel action may be rebutted by substantial evidence.''.

(d) Nondisclosure Policies, Forms, and Agreements; Security Clearances; and Retaliatory Investigations.--

(1) Personnel action.--Section 2302(a)(2)(A) of title 5, United States Code, is amended--

(A) in clause (x), by striking ``and'' after the semicolon; and

(B) by redesignating clause (xi) as clause (xiv) and inserting after clause (x) the following:

``(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement;

``(xii) a suspension, revocation, or determination relating to a security clearance;

``(xiii) an investigation of an employee or applicant for employment because of any activity protected under this section; and''.

(2) Prohibited personnel practice.--Section 2302(b) of title 5, United States Code, is amended--

(A) in paragraph (11), by striking ``or'' at the end;

(B) in paragraph (12), by striking the period and inserting a semicolon; and

``(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement:

`` `These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code

(governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling.'; or

``(14) conduct, or cause to be conducted, an investigation of an employee or applicant for employment because of any activity protected under this section.''.

(3) Board and court review of actions relating to security clearances.--

(A) In general.--Chapter 77 of title 5, United States Code, is amended by inserting after section 7702 the following:

``Sec. 7702a. Actions relating to security clearances

``(a) In any appeal relating to the suspension, revocation, or other determination relating to a security clearance, the Merit Systems Protection Board or a court--

``(1) shall determine whether section 2302 was violated;

``(2) may not order the President to restore a security clearance; and

``(3) subject to paragraph (2), may issue declaratory relief and any other appropriate relief.

``(b)(1) If, in any final judgment, the Board or court declares that any suspension, revocation, or other determination with regards to a security clearance was made in violation of section 2302, the affected agency shall conduct a review of that suspension, revocation, or other determination, giving great weight to the Board or court judgment.

``(2) Not later than 30 days after any Board or court judgment declaring that a security clearance suspension, revocation, or other determination was made in violation of section 2302, the affected agency shall issue an unclassified report to the congressional committees of jurisdiction (with a classified annex if necessary), detailing the circumstances of the agency's security clearance suspension, revocation, or other determination. A report under this paragraph shall include any proposed agency action with regards to the security clearance.

``(c) An allegation that a security clearance was revoked or suspended in retaliation for a protected disclosure shall receive expedited review by the Office of Special Counsel, the Merit Systems Protection Board, and any reviewing court.''.

(B) Technical and Conforming Amendment.--The table of sections for chapter 77 of title 5, United States Code, is amended by inserting after the item relating to section 7702 the following:

``7702a. Actions relating to security clearances.''.

(e) Exclusion of Agencies by the President.--Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking clause (ii) and inserting the following:

``(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency; and

``(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, if the determination (as that determination relates to a personnel action) is made before that personnel action; or''.

(f) Attorney Fees.--Section 1204(m)(1) of title 5, United States Code, is amended by striking ``agency involved'' and inserting ``agency where the prevailing party is employed or has applied for employment''.

(g) Compensatory Damages.--Section 1214(g)(2) of title 5, United States Code, is amended by inserting ``compensatory or'' after ``forseeable''.

(h) Disciplinary Action.--Section 1215 of title 5, United States Code, is amended in subsection (a), by striking paragraph (3) and inserting the following:

``(3)(A) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1000.

``(B) In any case in which the Board finds that an employee has committed a prohibited personnel practice under section 2303(b) (8) or (9), the Board shall impose disciplinary action if the Board finds that protected activity was a significant motivating factor in the decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by preponderance of evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.''.

(i) Disclosures to Congress.--Section 2302 of title 5, United States Code, is amended by adding at the end the following:

``(f) Each agency shall establish a process that provides confidential advice to employees on making a lawful disclosure to Congress of information that is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.''.

(j) Authority of Special Counsel Relating to Civil Actions.--

(1) Representation of special counsel.--Section 1212 of title 5, United States Code, is amended by adding at the end the following:

``(h) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Special Counsel may appear for the Special Counsel and represent the Special Counsel in any civil action brought in connection with section 2302(b)(8) or subchapter III of chapter 73, or as otherwise authorized by law.''.

(2) Judicial review of merit systems protection board decisions.--Section 7703 of title 5, United States Code, is amended by adding at the end the following:

``(e)(1) Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Special Counsel. The Special Counsel may obtain review of any final order or decision of the Board by filing a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Special Counsel determines, in the discretion of the Special Counsel, that the Board erred in deciding a case arising under section 2302(b)(8) or subchapter III of chapter 73 and that the Board's decision will have a substantial impact on the enforcement of section 2302(b)(8) or subchapter III of chapter 73. If the Special Counsel was not a party or did not intervene in a matter before the Board, the Special Counsel may not petition for review of a Board decision under this section unless the Special Counsel first petitions the Board for reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceedings before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

``(2) During the 5-year period beginning on February 1, 2003, this paragraph shall apply to any review obtained by the Special Counsel. The Special Counsel may obtain review of any final order or decision of the Board by filing a petition for judicial review in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction if the Special Counsel determines, in the discretion of the Special Counsel, that the Board erred in deciding a case arising under section 2302(b)(8) or subchapter III of chapter 73 and that the Board's decision will have a substantial impact on the enforcement of section 2302(b)(8) or subchapter III of chapter 73. If the Special Counsel was not a party or did not intervene in a matter before the Board, the Special Counsel may not petition for review of a Board decision under this section unless the Special Counsel first petitions the Board for reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceedings before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the court of appeals.''.

(k) Judicial Review.--

(1) In general.--Section 7703(b) of title 5, United States Code, is amended by striking paragraph (1) and inserting the following:

``(b)(1)(A) Except as provided in subparagraph (B) and paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.

``(B) During the 5-year period beginning on February 1, 2003, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit or the United States Court of Appeals for the circuit in which the petitioner resides. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.''.

(2) Review obtained by office of personnel management.--Section 7703 of title 5, United States Code, is amended by striking subsection (d) and inserting the following:

``(d)(1) Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

``(2) During the 5-year period beginning on February 1, 2003, this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in any appellate court of competent jurisdiction as provided under subsection (b)(2) if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.''.

(l) Nondisclosure Policies, Forms, and Agreements.--

(1) In general.--

(A) Requirement.--Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: ``These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982

(50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling.''

(B) Enforceability.--Any nondisclosure policy, form, or agreement described under subparagraph (A) that does not contain the statement required under subparagraph (A) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

(2) Persons other than federal employees.--Notwithstanding paragraph (1), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure forms shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

______

SA 4567. Mr. LEVIN (for himself and Mr. McConnell, submitted an amendment intended to be proposed to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

At the appropriate place, insert the following:

SEC. __. PRIVATE SECURITY OFFICERS RECORD REVIEWS.

(a) Findings.--Congress finds that--

(1) employment of private security officers in the United States is growing rapidly;

(2) private security officers function as an adjunct to, but not a replacement for, public law enforcement by helping to reduce and prevent crime;

(3) such private security officers protect individuals, property, and proprietary information, and provide protection to such diverse operations as banks, hospitals, research and development centers, manufacturing facilities, defense and aerospace contractors, high technology businesses, nuclear power plants, chemical companies, oil and gas refineries, airports, communication facilities and operations, office complexes, schools, residential properties, apartment complexes, gated communities, and others;

(4) sworn law enforcement officers provide significant services to the citizens of the United States in its public areas, and are supplemented by private security officers;

(5) the threat of additional terrorist attacks requires cooperation between public and private sectors and demands professional, reliable, and responsible security officers for the protection of people, facilities, and institutions;

(6) the trend in the Nation toward growth in such security services has accelerated rapidly;

(7) such growth makes available more public sector law enforcement officers to combat serious and violent crimes, including terrorism;

(8) the American public deserves the employment of qualified, well-trained private security personnel as an adjunct to sworn law enforcement officers; and

(9) private security officers and applicants for private security officer positions should be thoroughly screened and trained.

(b) Definitions.--In this section:

(1) Employee.--The term ``employee'' includes both a current employee and an applicant for employment as a private security officer.

(2) Authorized employer.--The term ``authorized employer'' means any person that--

(A) employs private security officers; and

(B) is authorized by regulations promulgated by the Attorney General to request a criminal history record information search of an employee through a State identification bureau pursuant to this section.

(3) Private security officer.-- The term ``private security officer''--

(A) means an individual other than an employee of a Federal, State, or local government, whose primary duty is to perform security services, full- or part-time, for consideration, whether armed or unarmed and in uniform or plain clothes; but

(B) does not include--

(i) employees whose duties are primarily internal audit or credit functions;

(ii) employees of electronic security system companies acting as technicians or monitors; or

(iii) employees whose duties primarily involve the secure movement of prisoners.

(4) Security services.--The term ``security services'' means acts to protect people or property as defined by regulations promulgated by the Attorney General.

(5) State identification bureau.--The term ``State identification bureau'' means the State entity designated by the Attorney General for the submission and receipt of criminal history record information.

(1) In general.--

(A) Submission of fingerprints.--An authorized employer may submit to the State identification bureau of a participating State, fingerprints or other means of positive identification, as determined by the Attorney General, of an employee of such employer for purposes of a criminal history record information search pursuant to this section.

(B) Employee rights.--

(i) Permission.--An authorized employer shall obtain written consent from an employee to submit to the State identification bureau of a participating State the request to search the criminal history record information of the employee under this section.

(ii) Access.--An authorized employer shall provide to the employee confidential access to any information relating to the employee received by the authorized employer pursuant to this section.

(C) Providing information to the state identification bureau.--Upon receipt of a request for a criminal history record information search from an authorized employer pursuant to this section, submitted through the State identification bureau of a participating State, the Attorney General shall--

(i) search the appropriate records of the Criminal Justice Information Services Division of the Federal Bureau of Investigation; and

(ii) promptly provide any resulting identification and criminal history record information to the submitting State identification bureau requesting the information.

(D) Use of information.--

(i) In general.--Upon receipt of the criminal history record information from the Attorney General by the State identification bureau, the information shall be used only as provided in clause (ii).

(ii) Terms.--In the case of--

(I) a participating State that has no State standards for qualification to be a private security officer, the State shall notify an authorized employer as to the fact of whether an employee has been convicted of a felony, an offense involving dishonesty or a false statement if the conviction occurred during the previous 10 years, or an offense involving the use or attempted use of physical force against the person of another if the conviction occurred during the previous 10 years; or

(II) a participating State that has State standards for qualification to be a private security officer, the State shall use the information received pursuant to this section in applying the State standards and shall only notify the employer of the results of the application of the State standards.

(E) Frequency of requests.--An authorized employer may request a criminal history record information search for an employee only once every 12 months of continuous employment by that employee unless the authorized employer has good cause to submit additional requests.

(2) Regulations.--Not later than 180 days after the date of enactment of this Act, the Attorney General shall issue such final or interim final regulations as may be necessary to carry out this section, including--

(A) measures relating to the security, confidentiality, accuracy, use, submission, dissemination, and destruction of information and audits, and recordkeeping;

(B) standards for qualification as an authorized employer; and

(3) Criminal penalty.--Whoever falsely certifies that he meets the applicable standards for an authorized employer or who knowingly and intentionally uses any information obtained pursuant to this section other than for the purpose of determining the suitability of an individual for employment as a private security officer shall be fined under title 18, United States Code, or imprisoned for not more than 2 years, or both.

(4) User fees.--

(A) In general.--The Director of the Federal Bureau of Investigation may--

(i) collect fees pursuant to regulations promulgated under paragraph (2) to process background checks provided for by this section;

(ii) notwithstanding the provisions of section 3302 of title 31, United States Code, retain and use such fees for salaries and other expenses incurred in providing such processing; and

(iii) establish such fees at a level to include an additional amount to remain available until expended to defray expenses for the automation of fingerprint identification and criminal justice information services and associated costs.

(B) State costs.--Nothing in this section shall be construed as restricting the right of a State to assess a reasonable fee on an authorized employer for the costs to the State of administering this section.

(5) State opt out.--A State may decline to participate in the background check system authorized by this section by enacting a law or issuing an order by the Governor (if consistent with State law) providing that the State is declining to participate pursuant to this paragraph.

______

SA 4568. Mr. HOLLINGS (for himself, Mr. McCain, Mr. Reid, Mr. Jeffords, Mr. Carper, and Mr. Torricelli) submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

Strike section 170 and insert the following:

SEC. 170. REVIEW OF TRANSPORTATION SECURITY ENHANCEMENTS.

(a) Review of Transportation Vulnerabilities and Federal Transportation Security Efforts.--The Comptroller General shall conduct a detailed, comprehensive study which shall--

(1) review all available intelligence on terrorist threats against aviation, seaport, rail, motor carrier, motor coach, pipeline, highway, and transit facilities and equipment;

(2) review all available information on vulnerabilities of the aviation, seaport, rail, motor carrier, motor coach, pipeline, highway, and transit modes of transportation to terrorist attack; and

(3) review the steps taken by public and private entities since September 11, 2001, to improve aviation, seaport, rail, motor carrier, motor coach, pipeline, highway, and transit security to determine their effectiveness at protecting passengers, freight (including hazardous materials), and transportation infrastructure from terrorist attack.

(b) Report.--

(1) Content.--Not later than 1 year after the date of enactment of this Act, the Comptroller General shall prepare and submit to Congress, the Secretary, and the Secretary of Transportation a comprehensive report, without compromising national security, containing--

(A) the findings and conclusions from the reviews conducted under subsection (a); and

(B) proposed steps to improve any deficiencies found in aviation, seap0ort, rail, motor carrier, motor coach, pipeline, highway, and transit security, including, to the extent possible, the cost of implementing the steps.

(2) Format.--The Comptroller General may submit the report in both classified and redacted format if the Comptroller General determines that such action is appropriate or necessary.

(1) In general.--Not alter than 90 days after the date on which the report under this section is submitted to the Secretary, the Secretary shall provide to the President and Congress--

(A) the response of the Department to the recommendations of the report; and

(B) recommendations of the Department to further protect passengers and transportation infrastructure from terrorist attack.

(2) Formats.--The Secretary may submit the report in both classified and redacted formats if the Secretary determines that such action is necessary or appropriate.

(d) Reports Provided to Committees.--In furnishing the report required by subsection (b), and the Secretary's response and recommendations under subsection (c), to the Congress, the Comptroller General and the Secretary, respectively, shall ensure that the report, response, and recommendations are transmitted to the Senate Committee on Commerce, Science, and Transportation, the Senate Committee on Environment and Public Works, and the House of Representatives Committee on Transportation and Infrastructure.

______

SA 4569. Mr. FEINGOLD submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

Insert after section 172, the following:

SEC. 173. REPEAL OF IMMUNITY FOR CUSTOMS OFFICERS IN

CONDUCTING CERTAIN SEARCHES.

(a) In General.--Section 3061 of the Revised Statutes is amended--

(1) in subsection (a), by striking ``(a)''; and

(2) by striking subsection (b).

(b) Trade Act of 2002.--The Trade Act of 2002 is amended--

(1) by striking section 341; and

(2) in the table of contents, by striking the item relating to section 341.

(c) Effective Date.--The amendments made by this section shall take effect as if included in chapter 4 of title III of the Trade Act of 2002.

______

SA 4570. Mr. FEINGOLD submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

On page 147, after line 25, add the following:

(e) Information Analysis Report.--

(1) Purposes.--The purposes of this subsection are to--

(A) require the Secretary, for the first 5 years after the date of enactment of this Act, to submit a semi-annual report to Congress on--

(i) the specific policies and procedures governing the sharing of law enforcement, intelligence, and other information relating to threats of terrorism against the United States and other threats to homeland security within the Federal government, including the Federal Bureau of Investigation, and between the Federal Government, State and local governments, local law enforcement, and intelligence agencies;

(ii) the specific policies and procedures for the tasking of information between the Department and the Federal Government, including the Federal Bureau of Investigation, and between the Federal Government, State and local governments, local law enforcement, and intelligence agencies; and

(iii) the nature of law enforcement information the Department has received from the Federal Bureau of Investigation and State and local law enforcement agencies;

(B) provide relevant information to Congress to assist in determining if the sharing of intelligence between the Department and the Federal Bureau of Investigation is working efficiently and effectively; and

(C) enable Congress to accurately determine if the Department is working effectively with the Federal, State, and local law enforcement agencies so that an accurate and useful exchange of information occurs between the Department and such agencies.

(2) Reporting requirements.--

(A) In general.--The Department shall study the issues under subparagraph (B) and submit a report of such study to Congress not less than every 6 months during the 5 years following enactment of this Act, without disclosing the actual substance of any information relating to national security.

(B) Issues to be studied.--The report under subparagraph

(A) shall include--

(i) the policies and procedures developed by the Department--

(I) to obtain relevant information from the Federal Government (including the Federal Bureau of Investigation) and State and local law enforcement agencies;

(II) to request follow-up information and investigation from such entities; and

(III) for sharing information with other Federal, State, and local government agencies;

(ii) the specific rules and practices developed between the Department and other Federal, State, and local government agencies;

(iii) the nature and type of information--

(I) shared with Federal, State, and local government agencies; and

(II) related to law enforcement, intelligence, and homeland security that was received by the Department during the relevant reporting period, including reports, documents, summaries, tapes, and photographs;

(iv) a list of the agencies that have received information under clause (iii)(I), including whether the information was provided by the Department upon the request of such agency;

(v) a summary of the items received by the Department from the Federal Bureau of Investigation, including--

(I) individual witness grand jury transcripts;

(II) notes of witness interviews

(III) wire-tap applications;

(IV) wire-tap transcripts (including actual tapes);

(V) search warrant applications;

(VI) search warrants;

(VII) photographs;

(VIII) videos;

(IX) computer disks;

(X) summary reports; and

(XI) any other relevant items;

(vi) the nature of the follow-up requests made by the Department--

(I) for information and intelligence from the Federal Bureau of Investigation;

(II) for raw intelligence data from the Federal Bureau of Investigation; and

(III) that required additional investigation by the Federal Bureau of Investigation;

(vii) the nature of each follow-up request made by the Department to the Federal Bureau of Investigation, including whether the request related to a witness interview, subpoena information, surveillance, or undercover work;

(viii) the efforts that have been made by the Department and the Federal Bureau of Investigation to improve interdepartmental communication, including the development of computer programs to facilitate electronic communication between the Department and the Federal Bureau of Investigation;

(ix) the general nature of investigations conducted by analysts of the Department and any similar analyses performed by the Federal Bureau of Investigation; and

(x) the identification of the method of transmission of all information provided to the Department, whether transmitted by mail, computer, or messenger.

______

SA 4571. Mr. NELSON of Nebraska submitted an amendment intended to be proposed by him to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

In the amendment strike all after the first word and insert the following:

SEC. __. EMPLOYEE RIGHTS.

(a) Definition.--In this section, the term ``primary job duty'' means a job duty that occupies not less than 25 percent of the job duties of an employee of the Department.

(b) Transferred Agencies.--The Department, or a subdivision of the Department, that includes an entity or organizational unit, or subdivision thereof, transferred under this Act, or performs functions transferred under this Act shall not be excluded from coverage of chapter 71 of title 5, United States Code, as a result of any order issued under section 7103(b)(1) of title 5, United States Code, after July 19, 2002.

(c) Transferred Employees.--An employee, or class of employees who share the same job duties, transferred to the Department under this Act, in an appropriate unit under section 7112 of title 5, United States Code, prior to the transfer, shall not be excluded from a unit under subsection

(b)(6) of that section, unless--

(1) the primary job duty of the employee or class of employees has materially changed after the transfer;

(2) the primary job duty of the employee or class of employees after such change consists of intelligence, counterintelligence, or investigative duties directly related to the investigation of terrorism; and

(3) it is demonstrated that membership in a unit and coverage under chapter 71 of title 5, United States Code, cannot be applied in a manner that would not have a substantial adverse effect on national security.

(d) Other Agencies and Employees.--

(1) Exclusion of subdivision.--Subject to subsection (b), a subdivision of the Department shall not be excluded from coverage under chapter 71 of title 5, United States Code, under section 7103(b)(1) of that title, unless--

(A) the subdivision has, as a primary function, intelligence, counterintelligence, or investigative duties directly related to terrorism investigation; and

(B) the provisions of that chapter cannot be applied to that subdivision in a manner consistent with national security requirements and considerations.

(2) Exclusion of employee.--Subject to subsection (c), an employee of the Department or class of employees of the Department who share the same job duties shall not be excluded from a unit under section 7112(b)(6) of title 5, United States Code, unless--

(A) the primary job duty of the employee or class of employees consists of intelligence, counterintelligence, or investigative duties directly related to terrorism investigation; and

(B) it is demonstrated that membership in a unit and coverage under chapter 71 of title 5, United States Code, cannot be applied in a manner that would not have a substantial adverse effect on national security.

(e) Prior Exclusion.--Subsections (b) through (d) shall not apply to any entity or organizational unit, or subdivision thereof, transferred to the Department under this Act that, on July 19, 2002, was excluded from coverage under chapter 71 of title 5, United States Code, under section 7103(b)(1) of that title.

(f) Removal From Unit During Pendency of Proceeding.--No employee or class of employees of the Department shall be a member of a unit during the pendency of any proceeding before the Federal Labor Relations Authority in which the Department has asserted that the employee or class of employees may not be included in a unit under section 7112(b)(6) of title 5, United States Code.

(g) National Security Showing Rebuttable Only by Clear and Convincing Evidence.--In any proceeding referred to in subsection (f), if the Department has made the showing regarding national security as set forth in subsection (c)(3) and subsection (d)(2)(B), the showing may be rebutted only by clear and convincing evidence.

(h) Expedited Review.--The Authority shall grant priority consideration to a unit clarification petition with respect to which the Department asserts that any employee or class of employees may not be included in a unit under section 7112(b)(6) of title 5, United States Code. In any such proceeding, the parties shall follow the following expedited procedures:

(1) The Department shall provide any information requested by the Regional Director of the Authority within 10 days after the request is made.

(2) A hearing on the petition shall be commenced within 15 days of receipt of the requested information, if any, by the Authority and the parties.

(3) If briefs are filed after the conclusion of the hearing, the Regional Director shall issue a decision within 30 days after the receipt of the briefs, and if no briefs are filed, no later than 45 days after the conclusion of the hearings.

(4) The parties shall have 15 days to appeal after the receipt of the decision of the Regional Director.

(5) If the Authority does not accept the appeal within 30 days, the Regional Director's decision becomes final.

(6) If the Authority accepts the appeal, a decision by the Authority shall issue within 30 days.

(7) There shall be no judicial review of the decision of the Authority.

SEC. __. PREEMPTED PROVISIONS.

Notwithstanding any other provision of this Act, including any effective date provision, the following provisions of this Act shall not take effect:

(1)Sec. 187(f)(1).

The provisions of this section shall take effect one day after the date of this bill's enactment.

______

SA 4572. Mr. CLELAND submitted an amendment intended to be proposed to amendment SA 4471 proposed by Mr. Lieberman to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows:

On page 70, strike lines 9 through 13 and insert the following:

(10) Consulting with the Centers for Disease Control and Prevention in the administration by the Centers of the Strategic National Stockpile.

On page 72, line 22, strike all through page 73, line 2.

______

SA 4573. Mrs. BOXER (for herself, Mr. Inouye, and Mr. Campbell) proposed an amendment to amendment SA 4472 proposed by Mr. Byrd to the bill H.R. 5093, making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 2003, and for other purposes; as follows:

On page 64, between lines 15 and 16, insert the following:

SEC. 1__. IMPERIAL PROJECT.

Notwithstanding any other provision of law, none of the funds provided by this Act or under any other Act may be used by the Secretary of the Interior to determine the validity of mining claims of, or to approve the plan of operations submitted by, the Glamis Imperial Corporation for the Imperial project, an open-pit gold mine located on public land administered by the Bureau of Land Management in Imperial County, California.

______

SA 4574. Mr. BURNS (for Mr. Brownback) proposed an amendment to amenment SA 4472 proposed by Mr. Byrd to the bill H.R. 5093, making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 2003, and for other purposes; as follows:

On page 64, between lines 15 and 16, insert the following:

SEC. 1__. EFFECT OF CERTAIN PROVISIONS ON DECISION AND INDIAN

LAND.

(a) In General.--Nothing in section 134 of the Department of the Interior and Related Agencies Appropriations Act, 2002

(115 Stat. 443) affects the decision of the United States Court of Appeals for the 10th Circuit in Sac and Fox Nation v. Norton, 240 F.3d 1250 (2001).

(b) Use of Certain Indian Land.--Nothing in this section permits the conduct of gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) on land described in section 123 of the Department of the Interior and Related Agencies Appropriations Act, 2001 (114 Stat. 944), or land that is contiguous to that land, regardless of whether the land or contiguous land has been taken into trust by the Secretary of the Interior.

______

SA 4575. Mr. NELSON of Nebraska submitted an amendment intended to be proposed by him to the bill H.R. 5005, to establish the Department of Homeland Security, and for other purposes; which was ordered to lie on the table; as follows: