Homeland Security Act of 2002 Part 15

SEC. 835. [6 U.S.C. 395] PROHIBITION ON CONTRACTS WITH CORPORATE EXPATRIATES.

(a) In General.--The Secretary may not enter into any contract with a foreign incorporated ent.i.ty which is treated as an inverted domestic corporation under subsection (b), or any subsidiary of such an ent.i.ty.

(b) Inverted Domestic Corporation.--For purposes of this section, a foreign incorporated ent.i.ty shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)-- (1) the ent.i.ty completes before, on, or after the date of enactment of this Act, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties const.i.tuting a trade or business of a domestic partnership; (2) after the acquisition at least 80 percent of the stock (by vote or value) of the ent.i.ty is held-- (A) in the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or (B) in the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and (3) the expanded affiliated group which after the acquisition includes the ent.i.ty does not have substantial business activities in the foreign country in which or under the law of which the ent.i.ty is created or organized when compared to the total business activities of such expanded affiliated group.

(c) Definitions and Special Rules.-- (1) Rules for application of subsection (b).--In applying subsection (b) for purposes of subsection (a), the following rules shall apply: (A) Certain stock disregarded.--There shall not be taken into account in determining ownership for purposes of subsection (b)(2)-- (i) stock held by members of the expanded affiliated group which includes the foreign incorporated ent.i.ty; or (ii) stock of such ent.i.ty which is sold in a public offering related to the acquisition described in subsection (b)(1).

(B) Plan deemed in certain cases.--If a foreign incorporated ent.i.ty acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is 2 years before the ownership requirements of subsection (b)(2) are met, such actions shall be treated as pursuant to a plan.

(C) Certain transfers disregarded.--The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a princ.i.p.al purpose of which is to avoid the purposes of this section.

(D) Special rule for related partnerships.--For purposes of applying subsection (b) to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as I partnership.

(E) Treatment of certain rights.--The Secretary shall prescribe such regulations as may be necessary to-- (i) treat warrants, options, contracts to acquire stock, convertible debt instruments, and other similar interests as stock; and (ii) treat stock as not stock.

(2) Expanded affiliated group.--The term ''expanded affiliated group'' means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by subst.i.tuting ''more than 50 percent'' for ''at least 80 percent'' each place it appears.

(3) Foreign incorporated ent.i.ty.--The term ''foreign incorporated ent.i.ty'' means any ent.i.ty which is, or but for subsection (b) would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.

(4) Other definitions.--The terms ''person'', ''domestic'', and ''foreign'' have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.

(d) Waivers.--The Secretary shall waive subsection (a) with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security.

Subt.i.tle E--Human Resources Management

SEC. 841. [6 U.S.C. 411] ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT SYSTEM.

(a) Authority.-- (1) Sense of congress.--It is the sense of Congress that-- (A) it is extremely important that employees of the Department be allowed to partic.i.p.ate in a meaningful way in the creation of any human resources management system affecting them; (B) such employees have the most direct knowledge of the demands of their jobs and have a direct interest in ensuring that their human resources management system is conducive to achieving optimal operational efficiencies; (C) the 21st century human resources management system envisioned for the Department should be one that benefits from the input of its employees; and (D) this collaborative effort will help secure our homeland.

(b) Effect on Personnel.-- (1) Nonseparation or nonreduction in grade or compensation of full-time personnel and part-time personnel holding permanent positions.--Except as otherwise provided in this Act, the transfer under this Act of full-time personnel (except special Government employees) and part-time personnel holding permanent positions shall not cause any such employee to be separated or reduced in grade or compensation for 1 year after the date of transfer to the Department.

(2) Positions compensated in accordance with executive schedule.--Any person who, on the day preceding such person's date of transfer pursuant to this Act, held a position compensated in accordance with the Executive Schedule prescribed in chapter 53 of t.i.tle 5, United States Code, and who, without a break in service, is appointed in the Department to a position having duties comparable to the duties performed immediately preceding such appointment shall continue to be compensated in such new position at not less than the rate provided for such position, for the duration of the service of such person in such new position.

(3) Coordination rule.--Any exercise of authority under chapter 97 of t.i.tle 5, United States Code (as amended by subsection (a)), including under any system established under such chapter, shall be in conformance with the requirements of this subsection.

SEC. 842. [6 U.S.C. 412] LABOR-MANAGEMENT RELATIONS.

(a) Limitation on Exclusionary Authority.-- (1) In general.--No agency or subdivision of an agency which is transferred to the Department pursuant to this Act shall be excluded from the coverage of chapter 71 of t.i.tle 5, United States Code, as a result of any order issued under section 7103(b)(1) of such t.i.tle 5 after June 18, 2002, unless-- (A) the mission and responsibilities of the agency (or subdivision) materially change; and (B) a majority of the employees within such agency (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation.

(2) Exclusions allowable.--Nothing in paragraph (1) shall affect the effectiveness of any order to the extent that such order excludes any portion of an agency or subdivision of an agency as to which-- (A) recognition as an appropriate unit has never been conferred for purposes of chapter 71 of such t.i.tle 5; or (B) any such recognition has been revoked or otherwise terminated as a result of a determination under subsection (b)(1).

(b) Provisions Relating to Bargaining Units.-- (1) Limitation relating to appropriate units.--Each unit which is recognized as an appropriate unit for purposes of chapter 71 of t.i.tle 5, United States Code, as of the day before the effective date of this Act (and any subdivision of any such unit) shall, if such unit (or subdivision) is transferred to the Department pursuant to this Act, continue to be so recognized for such purposes, unless-- (A) the mission and responsibilities of such unit (or subdivision) materially change; and (B) a majority of the employees within such unit (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation.

(2) Limitation relating to positions or employees.--No position or employee within a unit (or subdivision of a unit) as to which continued recognition is given in accordance with paragraph (1) shall be excluded from such unit (or subdivision), for purposes of chapter 71 of such t.i.tle 5, unless the primary job duty of such position or employee-- (A) materially changes; and (B) consists of intelligence, counterintelligence, or investigative work directly related to terrorism investigation.

In the case of any positions within a unit (or subdivision) which are first established on or after the effective date of this Act and any employees first appointed on or after such date, the preceding sentence shall be applied disregarding subparagraph (A).

(c) Waiver.--If the President determines that the application of subsections (a), (b), and (d) would have a substantial adverse impact on the ability of the Department to protect homeland security, the President may waive the application of such subsections 10 days after the President has submitted to Congress a written explanation of the reasons for such determination.

(d) Coordination Rule.--No other provision of this Act or of any amendment made by this Act may be construed or applied in a manner so as to limit, supersede, or otherwise affect the provisions of this section, except to the extent that it does so by specific reference to this section.

(e) Rule of Construction.--Nothing in section 9701(e) of t.i.tle 5, United States Code, shall be considered to apply with respect to any agency or subdivision of any agency, which is excluded from the coverage of chapter 71 of t.i.tle 5, United States Code, by virtue of an order issued in accordance with section 7103(b) of such t.i.tle and the preceding provisions of this section (as applicable), or to any employees of any such agency or subdivision or to any individual or ent.i.ty representing any such employees or any representatives thereof.

SEC. 843. [6 U.S.C. 413] USE OF COUNTERNARCOTICS ENFORCEMENT ACTIVITIES IN CERTAIN EMPLOYEE PERFORMANCE APPRAISALS.

(a) In General.--Each subdivision of the Department that is a National Drug Control Program Agency shall include as one of the criteria in its performance appraisal system, for each employee directly or indirectly involved in the enforcement of Federal, State, or local narcotics laws, the performance of that employee with respect to the enforcement of Federal, State, or local narcotics laws, relying to the greatest extent practicable on objective performance measures, including-- (1) the contribution of that employee to seizures of narcotics and arrests of violators of Federal, State, or local narcotics laws; and (2) the degree to which that employee cooperated with or contributed to the efforts of other employees, either within the Department or other Federal, State, or local agencies, in counternarcotics enforcement.

(b) Definitions.--For purposes of this section-- (1) the term ''National Drug Control Program Agency'' means-- (A) a National Drug Control Program Agency, as defined in section 702(7) of the Office of National Drug Control Policy Reauthorization Act of 1998 (as last in effect); and (B) any subdivision of the Department that has a significant counternarcotics responsibility, as determined by-- (i) the counternarcotics officer, appointed under section 878; or (ii) if applicable, the counternarcotics officer's successor in function (as determined by the Secretary); and (2) the term ''performance appraisal system'' means a system under which periodic appraisals of job performance of employees are made, whether under chapter 43 of t.i.tle 5, United States Code, or otherwise.

SEC. 844. HOMELAND SECURITY ROTATION PROGRAM.

(a) Establishment.-- (1) In general.--Not later than 180 days after the date of enactment of this section, the Secretary shall establish the Homeland Security Rotation Program (in this section referred to as the ''Rotation Program'') for employees of the Department. The Rotation Program shall use applicable best practices, including those from the Chief Human Capital Officers Council.

(2) Goals.--The Rotation Program established by the Secretary shall-- (A) be established in accordance with the Human Capital Strategic Plan of the Department; (B) provide middle and senior level employees in the Department the opportunity to broaden their knowledge through exposure to other components of the Department; (C) expand the knowledge base of the Department by providing for rotational a.s.signments of employees to other components; (D) build professional relationships and contacts among the employees in the Department; (E) invigorate the workforce with exciting and professionally rewarding opportunities; (F) incorporate Department human capital strategic plans and activities, and address critical human capital deficiencies, recruitment and retention efforts, and succession planning within the Federal workforce of the Department; and (G) complement and incorporate (but not replace) rotational programs within the Department in effect on the date of enactment of this section.

(3) Administration.-- (A) In general.--The Chief Human Capital Officer shall administer the Rotation Program.

(B) Responsibilities.--The Chief Human Capital Officer shall-- (i) provide oversight of the establishment and implementation of the Rotation Program; (ii) establish a framework that supports the goals of the Rotation Program and promotes cross-disciplinary rotational opportunities; (iii) establish eligibility for employees to partic.i.p.ate in the Rotation Program and select partic.i.p.ants from employees who apply; (iv) establish incentives for employees to partic.i.p.ate in the Rotation Program, including promotions and employment preferences; (v) ensure that the Rotation Program provides professional education and training; (vi) ensure that the Rotation Program develops qualified employees and future leaders with broad-based experience throughout the Department; (vii) provide for greater interaction among employees in components of the Department; and (viii) coordinate with rotational programs within the Department in effect on the date of enactment of this section.

(4) Allowances, privileges, and benefits.--All allowances, privileges, rights, seniority, and other benefits of employees partic.i.p.ating in the Rotation Program shall be preserved.

(5) Reporting.--Not later than 180 days after the date of the establishment of the Rotation Program, the Secretary shall submit a report on the status of the Rotation Program, including a description of the Rotation Program, the number of employees partic.i.p.ating, and how the Rotation Program is used in succession planning and leadership development to the appropriate committees of Congress.

SEC. 845. HOMELAND SECURITY EDUCATION PROGRAM.

(a) Establishment.--The Secretary, acting through the Administrator, shall establish a graduate-level Homeland Security Education Program in the National Capital Region to provide educational opportunities to senior Federal officials and selected State and local officials with homeland security and emergency management responsibilities. The Administrator shall appoint an individual to administer the activities under this section.

(b) Leveraging of Existing Resources.--To maximize efficiency and effectiveness in carrying out the Program, the Administrator shall use existing Department-reviewed Master's Degree curricula in homeland security, including curricula pending accreditation, together with a.s.sociated learning materials, quality a.s.sessment tools, digital libraries, exercise systems and other educational facilities, including the National Domestic Preparedness Consortium, the National Fire Academy, and the Emergency Management Inst.i.tute. The Administrator may develop additional educational programs, as appropriate.

(c) Student Enrollment.-- (1) Sources.--The student body of the Program shall include officials from Federal, State, local, and tribal governments, and from other sources designated by the Administrator.

(2) Enrollment priorities and selection criteria.-- The Administrator shall establish policies governing student enrollment priorities and selection criteria that are consistent with the mission of the Program.

(3) Diversity.--The Administrator shall take reasonable steps to ensure that the student body represents racial, gender, and ethnic diversity.

(d) Service Commitment.-- (1) In general.--Before any employee selected for the Program may be a.s.signed to partic.i.p.ate in the program, the employee shall agree in writing-- (A) to continue in the service of the agency sponsoring the employee during the 2- year period beginning on the date on which the employee completes the program, unless the employee is involuntarily separated from the service of that agency for reasons other than a reduction in force; and (B) to pay to the Government the amount of the additional expenses incurred by the Government in connection with the employee's education if the employee is voluntarily separated from the service to the agency before the end of the period described in subparagraph (A).

(2) Payment of expenses.-- (A) Exemption.--An employee who leaves the service of the sponsoring agency to enter into the service of another agency in any branch of the Government shall not be required to make a payment under paragraph (1)(B), unless the head of the agency that sponsored the education of the employee notifies that employee before the date on which the employee enters the service of the other agency that payment is required under that paragraph.

(B) Amount of payment.--If an employee is required to make a payment under paragraph (1)(B), the agency that sponsored the education of the employee shall determine the amount of the payment, except that such amount may not exceed the pro rata share of the expenses incurred for the time remaining in the 2-year period.

(3) Recovery of payment.--If an employee who is required to make a payment under this subsection does not make the payment, a sum equal to the amount of the expenses incurred by the Government for the education of that employee is recoverable by the Government from the employee or his estate by-- (A) setoff against accrued pay, compensation, amount of retirement credit, or other amount due the employee from the Government; or (B) such other method as is provided by lay for the recovery of amounts owing to the Government.

Subt.i.tle F--Federal Emergency Procurement Flexibility

SEC. 851. [6 U.S.C. 421] DEFINITION.

In this subt.i.tle, the term ''executive agency'' has the meaning given that term under section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)).

SEC. 852. [6 U.S.C. 422] PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY FROM TERRORISM OR NUCLEAR, BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK.

The authorities provided in this subt.i.tle apply to any procurement of property or services by or for an executive agency that, as determined by the head of the executive agency, are to be used to facilitate defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack, but only if a solicitation of offers for the procurement is issued during the 1-year period beginning on the date of the enactment of this Act.

SEC. 853. [6 U.S.C. 423] INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR PEACEKEEPING OPERATIONS OR CONTINGENCY OPERATIONS.

(a) Temporary Threshold Amounts.--For a procurement referred to in section 852 that is carried out in support of a humanitarian or peacekeeping operation or a contingency operation, the simplified acquisition threshold definitions shall be applied as if the amount determined under the exception provided for such an operation in those definitions were-- (1) in the case of a contract to be awarded and performed, or purchase to be made, inside the United States, $200,000; or (2) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States, $300,000.

(b) Simplified Acquisition Threshold Definitions.--In this section, the term ''simplified acquisition threshold definitions'' means the following: (1) Section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)).

(2) Section 309(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(d)).

(3) Section 2302(7) of t.i.tle 10, United States Code.

(c) Small Business Reserve.--For a procurement carried out pursuant to subsection (a), section 15(j) of the Small Business Act (15 U.S.C. 644(j)) shall be applied as if the maximum antic.i.p.ated value identified therein is equal to the amounts referred to in subsection (a).

SEC. 854. [6 U.S.C. 424] INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS.

In the administration of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) with respect to a procurement referred to in section 852, the amount specified in subsections (c), (d), and (f) of such section 32 shall be deemed to be $7,500.

SEC. 855. [6 U.S.C. 425] APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES TO CERTAIN PROCUREMENTS.

(a) Authority.-- (1) In general.--The head of an executive agency may apply the provisions of law listed in paragraph (2) to a procurement referred to in section 852 without regard to whether the property or services are commercial items.

(2) Commercial item laws.--The provisions of law referred to in paragraph (1) are as follows: (A) Sections 31 and 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 427, 430).

(B) Section 2304(g) of t.i.tle 10, United States Code.

(C) Section 303(g) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)).

(b) Inapplicability of Limitation on Use of Simplified Acquisition Procedures.-- (1) In general.--The $5,000,000 limitation provided in section 31(a)(2) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of t.i.tle 10, United States Code, and section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C.

253(g)(1)(B)) shall not apply to purchases of property or services to which any of the provisions of law referred to in subsection (a) are applied under the authority of this section.

(2) OMB guidance.--The Director of the Office of Management and Budget shall issue guidance and procedures for the use of simplified acquisition procedures for a purchase of property or services in excess of $5,000,000 under the authority of this section.

(c) Continuation of Authority for Simplified Purchase Procedures.--Authority under a provision of law referred to in subsection (a)(2) that expires under section 4202(e) of the Clinger-Cohen Act of 1996 (divisions D and E of Public Law 104- 106; 10 U.S.C. 2304 note) shall, notwithstanding such section, continue to apply for use by the head of an executive agency as provided in subsections (a) and (b).

SEC. 856. [6 U.S.C. 426] USE OF STREAMLINED PROCEDURES.

(a) Required Use.--The head of an executive agency shall, when appropriate, use streamlined acquisition authorities and procedures authorized by law for a procurement referred to in section 852, including authorities and procedures that are provided under the following provisions of law: (1) Federal property and administrative services act of 1949.--In t.i.tle III of the Federal Property and Administrative Services Act of 1949: (A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 303 (41 U.S.C. 253), relating to use of procedures other than compet.i.tive procedures under certain circ.u.mstances (subject to subsection (e) of such section).

(B) Section 303J (41 U.S.C. 253j), relating to orders under task and delivery order contracts.