Homeland Security Act of 2002: HR 5005 |
H.R.5005Homeland Security Act of 2002 (Engrossed as Agreed to or Passed by House) SEC. 761. ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT SYSTEM. (a) AUTHORITY- (1) SENSE OF CONGRESS- It is the sense of the Congress that-- (A) it is extremely important that employees of the Department be allowed to participate 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. (2) IN GENERAL- Subpart I of part III of title 5, United States Code, is amended by adding at the end the following: `CHAPTER 97--DEPARTMENT OF HOMELAND SECURITY `Sec. `9701. Establishment of human resources management system. `Sec. 9701. Establishment of human resources management system `(a) IN GENERAL- Notwithstanding any other provision of this title, the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management, establish, and from time to time adjust, a human resources management system for some or all of the organizational units of the Department of Homeland Security. `(b) SYSTEM REQUIREMENTS- Any system established under subsection (a) shall-- `(1) be flexible; `(2) be contemporary; `(3) not waive, modify, or otherwise affect-- `(A) the public employment principles of merit and fitness set forth in section 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other non-merit considerations, equal pay for equal work, and protection of employees against reprisal for whistleblowing; `(B) any provision of section 2302, relating to prohibited personnel practices; `(C)(i) any provision of law referred to in section 2302(b)(1); or `(ii) any provision of law implementing any provision of law referred to in section 2302(b)(1) by-- `(I) providing for equal employment opportunity through affirmative action; or `(II) providing any right or remedy available to any employee or applicant for employment in the civil service; `(D) any other provision of this part (as described in subsection (c)); or `(E) any rule or regulation prescribed under any provision of law referred to in any of the preceding subparagraphs of this paragraph; `(4) ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law; and `(5) permit the use of a category rating system for evaluating applicants for positions in the competitive service. `(c) OTHER NONWAIVABLE PROVISIONS- The other provisions of this part, as referred to in subsection (b)(3)(D), are (to the extent not otherwise specified in subparagraph (A), (B), (C), or (D) of subsection (b)(3))-- `(1) subparts A, B, E, G, and H of this part; and `(2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and this chapter. `(d) LIMITATIONS RELATING TO PAY- Nothing in this section shall constitute authority-- `(1) to modify the pay of any employee who serves in-- `(A) an Executive Schedule position under subchapter II of chapter 53 of title 5, United States Code; or `(B) a position for which the rate of basic pay is fixed in statute by reference to a section or level under subchapter II of chapter 53 of such title 5; `(2) to fix pay for any employee or position at an annual rate greater than the maximum amount of cash compensation allowable under section 5307 of such title 5 in a year; or `(3) to exempt any employee from the application of such section 5307. `(e) PROVISIONS TO ENSURE COLLABORATION WITH EMPLOYEE REPRESENTATIVES- `(1) IN GENERAL- In order to ensure that the authority of this section is exercised in collaboration with, and in a manner that ensures the direct participation of employee representatives in the planning, development, and implementation of any human resources management system or adjustments under this section, the Secretary of Homeland Security and the Director of the Office of Personnel Management shall provide for the following: `(A) NOTICE OF PROPOSAL, ETC- The Secretary and the Director shall, with respect to any proposed system or adjustment-- `(i) provide to each employee representative representing any employees who might be affected, a written description of the proposed system or adjustment (including the reasons why it is considered necessary); `(ii) give each representative at least 60 days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposal; and `(iii) give any recommendations received from any such representative under clause (ii) full and fair consideration in deciding whether or how to proceed with the proposal. `(B) PRE-IMPLEMENTATION REQUIREMENTS- If the Secretary and the Director decide to implement a proposal described in subparagraph (A), they shall before implementation-- `(i) give each employee representative details of the decision to implement the proposal, together with the information upon which the decision was based; `(ii) give each representative an opportunity to make recommendations with respect to the proposal; and `(iii) give such recommendations full and fair consideration, including the providing of reasons to an employee representative if any of its recommendations are rejected. `(C) CONTINUING COLLABORATION- If a proposal described in subparagraph (A) is implemented, the Secretary and the Director shall-- `(i) develop a method for each employee representative to participate in any further planning or development which might become necessary; and `(ii) give each employee representative adequate access to information to make that participation productive. `(2) PROCEDURES- Any procedures necessary to carry out this subsection shall be established by the Secretary and the Director jointly. Such procedures shall include measures to ensure-- `(A) in the case of employees within a unit with respect to which a labor organization is accorded exclusive recognition, representation by individuals designated or from among individuals nominated by such organization; `(B) in the case of any employees who are not within such a unit, representation by any appropriate organization which represents a substantial percentage of those employees or, if none, in such other manner as may be appropriate, consistent with the purposes of this subsection; and `(C) the selection of representatives in a manner consistent with the relative numbers of employees represented by the organizations or other representatives involved. `(f) PROVISIONS RELATING TO APPELLATE PROCEDURES- `(1) SENSE OF CONGRESS- It is the sense of the Congress that-- `(A) employees of the Department of Homeland Security are entitled to fair treatment in any appeals that they bring in decisions relating to their employment; and `(B) in prescribing regulations for any such appeals procedures, the Secretary of Homeland Security and the Director of the Office of Personnel Management-- `(i) should ensure that employees of the Department are afforded the protections of due process; and `(ii) toward that end, should be required to consult with the Merit Systems Protection Board before issuing any such regulations. `(2) REQUIREMENTS- Any regulations under this section which relate to any matters within the purview of chapter 77-- `(A) shall be issued only after consultation with the Merit Systems Protection Board; and `(B) shall ensure the availability of procedures which shall-- `(i) be consistent with requirements of due process; and `(ii) provide, to the maximum extent practicable, for the expeditious handling of any matters involving the Department of Homeland Security. `(g) SUNSET PROVISION- Effective 5 years after the date of the enactment of this section, all authority to issue regulations under this section (including regulations which would modify, supersede, or terminate any regulations previously issued under this section) shall cease to be available.'. (3) CLERICAL AMENDMENT- The table of chapters for part III of title 5, United States Code, is amended by adding at the end the following: 9701'. (b) EFFECT ON PERSONNEL- (1) NON-SEPARATION OR NON-REDUCTION IN GRADE OR COMPENSATION OF FULL-TIME PERSONNEL AND PART-TIME PERSONNEL HOLDING PERMANENT POSITIONS- Except as otherwise provided in this Act, the transfer pursuant to 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 one 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 title 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 previous 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 title 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. 762. 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 title 5, United States Code, as a result of any order issued under section 7103(b)(1) of such title 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 title 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 title 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 title 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) HOMELAND SECURITY- Subsections (a), (b), and (d) of this section shall not apply in circumstances where the President determines in writing that such application would have a substantial adverse impact on the Department's ability to protect homeland security. (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. SEC. 763. ADVISORY COMMITTEES. The Secretary may establish, appoint members of, and use the services of, advisory committees, as the Secretary may deem necessary. An advisory committee established under this section may be exempted by the Secretary from Public Law 92-463, but the Secretary shall publish notice in the Federal Register announcing the establishment of such a committee and identifying its purpose and membership. Notwithstanding the preceding sentence, members of an advisory committee that is exempted by the Secretary under the preceding sentence who are special Government employees (as that term is defined in section 202 of title 18, United States Code) shall be eligible for certifications under subsection (b)(3) of section 208 of title 18, United States Code, for official actions taken as a member of such advisory committee. SEC. 764. REORGANIZATION; TRANSFER OF APPROPRIATIONS. (a) REORGANIZATION- (1) IN GENERAL- The Secretary may allocate or reallocate functions among the officers of the Department, and may establish, consolidate, alter, or discontinue organizational units within the Department, but only-- (A) pursuant to section 802; or (B) after the expiration of 60 days after providing notice of such action to the appropriate congressional committees, which shall include an explanation of the rationale for the action. (2) LIMITATIONS- (A) Authority under paragraph (1)(A) does not extend to the abolition of any agency, entity, organizational unit, program, or function established or required to be maintained by this Act. (B) Authority under paragraph (1)(B) does not extend to the abolition of any agency, entity, organizational unit, program, or function established or required to be maintained by statute. (b) TRANSFER OF APPROPRIATIONS- (1) IN GENERAL- Except as otherwise specifically provided by law, not to exceed two percent of any appropriation available to the Secretary in any fiscal year may be transferred between such appropriations, except that not less than 15 days' notice shall be given to the Committees on Appropriations of the Senate and House of Representatives before any such transfer is made. (2) EXPIRATION OF AUTHORITY- The authority under paragraph (1) shall expire two years after the date of enactment of this Act. SEC. 765. MISCELLANEOUS AUTHORITIES. (a) SEAL- The Department shall have a seal, whose design is subject to the approval of the President. (b) GIFTS, DEVISES, AND BEQUESTS- With respect to the Department, the Secretary shall have the same authorities that the Attorney General has with respect to the Department of Justice under section 524(d) of title 28, United States Code. (c) PARTICIPATION OF MEMBERS OF THE ARMED FORCES- With respect to the Department, the Secretary shall have the same authorities that the Secretary of Transportation has with respect to the Department of Transportation under section 324 of title 49, United States Code. (d) REDELEGATION OF FUNCTIONS- Unless otherwise provided in the delegation or by law, any function delegated under this Act may be redelegated to any subordinate. SEC. 766. MILITARY ACTIVITIES. Nothing in this Act shall confer upon the Secretary any authority to engage in warfighting, the military defense of the United States, or other military activities, nor shall anything in this Act limit the existing authority of the Department of Defense or the Armed Forces to engage in warfighting, the military defense of the United States, or other military activities. SEC. 767. REGULATORY AUTHORITY AND PREEMPTION. (a) REGULATORY AUTHORITY- Except as otherwise provided in sections 305(c) and 752(c) of this Act, this Act vests no new regulatory authority in the Secretary or any other Federal official, and transfers to the Secretary or another Federal official only such regulatory authority as exists on the date of enactment of this Act within any agency, program, or function transferred to the Department pursuant to this Act, or that on such date of enactment is exercised by another official of the executive branch with respect to such agency, program, or function. Any such transferred authority may not be exercised by an official from whom it is transferred upon transfer of such agency, program, or function to the Secretary or another Federal official pursuant to this Act. This Act may not be construed as altering or diminishing the regulatory authority of any other executive agency, except to the extent that this Act transfers such authority from the agency. |