Volume 151, No. 92 covering the 1st Session of the 109th Congress (2005 - 2006) 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 Environmental Protection Agency was published in the Senate section on pages S8000-S8088 on July 11, 2005.
The publication is reproduced in full below:
TEXT OF AMENDMENTS
SA 1105. Mrs. CLINTON submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. ___.(a) Not later than 15 days after the date of enactment of this Act, the Secretary of Homeland Security, acting through the Director of the Federal Emergency Management Agency (including the Emergency Preparedness and Response Directorate and all other staff under the direction of the Secretary) (referred to in this section as the
``Secretary''), shall provide to the Subcommittee on Homeland Security of the Committee on Appropriations of the Senate--
(1) a detailed list that describes, as of the date of enactment of this Act--
(A) all associated costs (as determined by the Secretary) incurred by New York City, the State of New York, and any other entity or organization established by New York City or the State of New York, as a result of the terrorist attacks of September 11, 2001, that were paid using funds made available by Congress; and
(B) all requests for funds submitted to the Department of Homeland Security and the Federal Emergency Management Agency by New York City and the State of New York (including the dates of submission, and dates of payment, if any, of those requests) that have been paid or rejected, or that remain unpaid; and
(2) a certified accounting and detailed description of--
(A) the amounts of funds made available after the terrorist attacks of September 11, 2001, that remain unexpended as of the date of enactment of this Act;
(B) the accounts containing those unexpended funds; and
(C) a detailed description of any plans of the Secretary for expenditure or obligation of those unexpended funds.
(b) Not later than 15 days after the date of receipt of a request from the Subcommittee on Homeland Security of the Committee on Appropriations of the Senate for any information in addition to information described in subsection (a), the Secretary, and such staff located in a regional office of the Department of Homeland Security or the Federal Emergency Management Agency as the Secretary determines to be appropriate, shall provide the information to the Subcommittee.
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SA 1106. Mrs. CLINTON (for herself, Mr. Durbin, Mr. Lautenberg, Mr. Corzine, and Mr. Schumer) submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. (a) Not later than 90 days after the date of enactment of this Act, the Secretary of Homeland Security, in consultation with the Secretary of Transportation, shall assess and report in writing to the Committee on Appropriations, the Committee on Homeland Security and Government Affairs, and the Committee on Commerce, Science, and Transportation of the Senate on the following:
(1) The vulnerability posed to high risk areas and facilities from general aviation aircraft that could be stolen or used as a weapon or armed with a weapon.
(2) The security vulnerabilities existing at general aviation airports that would permit general aviation aircraft to be stolen.
(3) Low-cost, high-performance technology that could be used to easily track general aviation aircraft that could otherwise fly undetected.
(4) The feasibility of implementing security measures that would disable general aviation aircraft while on the ground and parked to prevent theft.
(5) The feasibility of performing requisite background checks on individuals working at general aviation airports that have access to aircraft or flight line activities.
(6) An assessment of the threat posed to high population areas, nuclear facilities, key infrastructure, military bases, and transportation infrastructure that stolen or hijacked general aviation aircraft pose especially if armed with weapons or explosives.
(7) An assessment of existing security precautions in place at general aviation airports to prevent breaches of the flight line and perimeter.
(8) An assessment of whether unmanned air traffic control towers provide a security or alert weakness to the security of general aviation aircraft.
(9) An assessment of the additional measures that should be adopted to ensure the security of general aviation aircraft.
(b) The report required by subsection (a) shall include cost estimates associated with implementing each of the measures recommended in the report.
______
SA 1107. Mrs. MURRAY submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. (a) From the money in the Treasury not otherwise obligated or appropriated, there are appropriated to the Department of Veterans Affairs $1,500,000,000 for the fiscal year ending September 30, 2005, for medical services provided by the Veterans Health Administration, which shall be available until expended.
(b) The amount appropriated under subsection (a)--
(1) is designated as an emergency requirement pursuant to section 402 of H.Con.Res. 95 (109th Congress); and
(2) shall remain available until expended.
(c) This section shall take effect on the date of the enactment of this Act.
______
SA 1108. Mr. LOTT submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. It is the sense of the Senate that the Secretary of Homeland Security should conduct a study of the feasibility of leveraging existing FM broadcast radio infrastructure to provide a first alert, encrypted, multi-point emergency messaging system for emergency response using proven technology.
______
SA 1109. Mr. COBURN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 81, line 20, insert before the period ``: Provided further, That each State or territory that receives amounts under paragraph (1) or (2) shall provide a detailed report to the Office of State and Local Government Coordination and Preparedness on the identity of each recipient of such amounts made available by the State or territory and the date of receipt, date of expenditure or obligation, and purpose of such expenditure or obligation by that recipient: Provided further, That each State or territory described under the preceding proviso shall provide access to Congress of all records of that State or territory relating to such amounts: Provided further, That each recipient described under the proviso before the preceding proviso shall provide a written explanation to the State or territory from which any amount is received of the reasons that the expenditure or obligation of any such amount is consistent with the Interim National Preparedness Goal as established by the Department of Homeland Security and the National Priorities as set forth in Homeland Security Presidential Directive 8''.
______
SA 1110. Ms. LANDRIEU submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 78, line 19, insert ``or the proximity of existing or planned high impact targets, including liquified natural gas facilities and liquified petroleum vessels,'' after
``threat''.
______
SA 1111. Mr. DORGAN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. ___. None of the funds appropriated under this Act may be used to pro9mulgate regulations to implement the plan developed pursuant to section 7209(b) of the 9/11 Commission Implementation Act of 2004 (8 U.S.C. 1185 note) to require United States citizens to present a passport or other documents upon entry into the United States from Canada.
______
SA 1112. Mr. AKAKA (for himself, Mr. Lieberman, Mr. Harkin, Ms. Landrieu, Mr. Obama, Mrs. Murray, Mr. Corzine, Mr. Lautenberg, Mr. Bingaman, Mr. Durbin, and Mr. Schumer) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 18, strike ``$2,694,300,000'' and insert
``$3,281,300,000''.
On page 77, line 20, strike ``$1,518,000,000'' and insert
``$1,985,000,000''.
On page 79, line 21, strike ``$321,300,000'' and insert
``$341,300,000''.
______
SA 1113. Mr. AKAKA (for himself, Mr. Lieberman, Mr. Harkin, Ms. Landrieu, Mr. Obama, Mrs. Murray, Mr. Corzine, Mr. Lautenberg, Mr. Bingaman, Mr. Durbin, and Mr. Schumer) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 18, strike ``$2,694,300,000'' and insert
``$3,281,300,000''.
On page 77, line 20, strike ``$1,518,000,000'' and insert
``$1,985,000,000''.
On page 79, line 21, strike ``$321,300,000'' and insert
``$341,300,000''.
On page 81, line 24, strike ``$615,000,000'' and insert
``$715,000,000''.
On page 81, line 24, strike ``$550,000,000'' and insert
``$650,000,000''.
______
SA 1114. Mr. BYRD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
For necessary expenses for programs authorized by the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2201 et seq.), $100,000,000, of which $50,000,000 shall be available to carry out section 33 (15 U.S.C. 2229) and
$50,000,000 shall be available to carry out section 34 (15 U.S.C. 2229a) of such Act, for the fiscal year ending September 30, 2005, to be available immediately upon enactment, and to remain available until September 30, 2007: Provided, That not to exceed 5 percent of this amount shall be available for program administration.
______
SA 1115. Mr. BYRD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 81, line 24, strike ``615,000,000'' and insert
``$715,000,000'' and strike ``$550,000,000'' and insert
``$600,000,000'' and line 26, strike ``$65,000,000'' and insert ``$115,000,000''.
______
SA 1116. Mr. NELSON of Florida submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 5___.(a) Not later than 30 days after the date of enactment of this Act, the Secretary of Homeland Security, acting through the Under Secretary for Emergency Preparedness and Response, shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a detailed accounting of public assistance reimbursements provided to the States affected during 2004 by--
(1) Hurricane Charley;
(2) Hurricane Frances;
(3) Hurricane Ivan; or
(4) Hurricane Jeanne.
(b) The accounting under subsection (a) shall include a description of--
(1) the status of any pending public assistance reimbursement application relating to a State described in subsection (a);
(2) any entity the application for public assistance reimbursement of which was denied by the Under Secretary and the reasons why the application was denied;
(3) each public assistance reimbursement application that is under appeal as of the date on which the accounting is prepared; and
(4) the amount, and each recipient, of public assistance reimbursements described in subsection (a) as of the date on which the accounting is prepared, expressed in a chart.
______
SA 1117. Mr. NELSON of Florida submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 5___. In light of concerns regarding inconsistent policy memoranda and guidelines issued to counties and communities affected by the 2004 hurricane season, the Secretary of Homeland Security, acting through the Under Secretary for Emergency Preparedness and Response, shall provide clear, concise, and uniform guidelines for the reimbursement to any county or government entity affected by a hurricane of the costs of hurricane debris removal.
______
SA 1118. Mr. NELSON of Florida submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 5___. Not later than 60 days after the date of enactment of this Act, the Secretary of Homeland Security, acting through the Under Secretary for Emergency Preparedness and Response, shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report describing any changes to Federal emergency preparedness and response policies and practices made as a result of the report of the Inspector General of the Department of Homeland Security, dated May 20, 2005, relating to the individual and household program of the Federal Emergency Management Agency in Miami-Dade County, Florida, in response to Hurricane Frances.
______
SA 1119. Mr. REED (for himself and Mr. Kennedy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 5___.(a) Beginning in fiscal year 2006 and thereafter, the Commandant of the Coast Guard shall require an applicant for an order to site, construct, expand, or operate a liquefied natural gas import facility, in cooperation with the Commandant and State and local agencies that provide for the safety and security of the liquefied natural gas import facility and any vessels that serve the facility, to develop a cost-sharing plan before the date on which the Federal Energy Regulatory Commission issues an order authorizing the applicant to site the facility.
(b) A cost-sharing plan developed under subsection (a) shall include a description of any direct cost reimbursements that the applicant agrees to provide to any State and local agencies with responsibility for security and safety--
(1) at the liquefied natural gas import facility; and
(2) in proximity to vessels that serve the facility.
______
SA 1120. Mr. FEINGOLD (for himself, Mr. Sununu, and Mr. Leahy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __.(a) Definitions.--In this section:
(1) Data-mining.--The term ``data-mining'' means a query or search or other analysis of 1 or more electronic databases, whereas--
(A) at least 1 of the databases was obtained from or remains under the control of a non- Federal entity, or the information was acquired initially by another department or agency of the Federal Government for purposes other than intelligence or law enforcement;
(B) a department or agency of the Federal Government or a non-Federal entity acting on behalf of the Federal Government is conducting the query or search or other analysis to find a predictive pattern indicating terrorist or criminal activity; and
(C) the search does not use a specific individual's personal identifiers to acquire information concerning that individual.
(2) Database.--The term ``database'' does not include telephone directories, news reporting, information publicly available via the Internet or available by any other means to any member of the public without payment of a fee, or databases of judicial and administrative opinions.
(b) Reports on Data-Mining Activities by the Department of Homeland Security.--
(1) Requirement for report.--The head of each department or agency in the Department of Homeland Security that is engaged in any activity to use or develop data-mining technology shall each submit a report to Congress on all such activities of the agency under the jurisdiction of that official. The report shall be made available to the public.
(2) Content of report.--A report submitted under paragraph
(1) shall include, for each activity to use or develop data-mining technology that is required to be covered by the report, the following information:
(A) A thorough description of the data-mining technology and the data that is being or will be used.
(B) A thorough description of the goals and plans for the use or development of such technology and, where appropriate, the target dates for the deployment of the data-mining technology.
(C) An assessment of the efficacy or likely efficacy of the data-mining technology in providing accurate information consistent with and valuable to the stated goals and plans for the use or development of the technology.
(D) An assessment of the impact or likely impact of the implementation of the data-mining technology on the privacy and civil liberties of individuals.
(E) A list and analysis of the laws and regulations that govern the information being or to be collected, reviewed, gathered, analyzed, or used with the data-mining technology.
(F) A thorough discussion of the policies, procedures, and guidelines that are in place or that are to be developed and applied in the use of such technology for data-mining in order to--
(i) protect the privacy and due process rights of individuals; and
(ii) ensure that only accurate information is collected, reviewed, gathered, analyzed, or used.
(G) Any necessary classified information in an annex that shall be available to the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Appropriations of the Senate and the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives.
______
SA 1121. Mr. BAYH submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 20, strike ``$1,518,000,000'' and insert
``$1,985,000,000''.
On page 79, line 21, strike ``321,300,000'' and insert
``341,300,000''.
On page 79, line 22, insert before the colon ``, of which
$30,000,000 shall be made available for the metropolitan medical response system''.
On page 81, line 24, strike ``$615,000,000'' and insert
``$715,000,000''.
On page 81, line 24, strike ``$550,000,000'' and insert
``$650,000,000''.
______
SA 1122. Mr. BAYH submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. (a) The amount appropriated under the heading
``aviation security'' for screening operations is hereby increased by $334,971, of which $334,971 shall be available for passenger and baggage screener pay, compensation, and benefits. Such amount shall be in addition to any other amounts appropriated for such pay, compensation, and benefits.
(b) None of the funds appropriated to the Transportation Security Administration in this Act may be used to enter into contracts with nongovernmental entities to provide passenger and baggage screening functions.
______
SA 1123. Ms. SNOWE submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 73, line 13, strike ``$988,600,000'' and insert
``$1,082,900,000''.
On page 73, line 15, strike ``program:'' and insert
``program, of which $94,300,000 shall be used for accelerating the fast response cutter acquisition:''.
On page 77, line 18, strike ``$2,694,300,000,'' and insert
$2,600,000,000,''.
______
SA 1124. Mr. ENSIGN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 20, insert ``of which $367,552,000 shall be transferred to Customs and Border Protection for hiring an additional 1,000 border agents and for other necessary support activities for such agency; and'' after ``local grants,''.
______
SA 1125. Mr. PRYOR submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 83, line 26, before the period, insert the following: ``: Provided further, That of the total amount made available under this heading for the support and acquisition of mobile medical units to be used by the Federal Emergency Management Agency, Directorate of Emergency Preparedness and Response, in response to domestic disasters, the Secretary of Homeland Security is encouarged to acquire an integrated mobile medical system for testing and evaluation in accordance with subchapter V of chapter 35 of title 31, United States Code (commonly known as the
`Competition in Contracting Act')''.
______
SA 1126. Mr. BIDEN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. The amount appropriated by title III under the heading ``Office of State and Local Government Coordination and Preparedness'' is increased by $1,100,000,000, of which
$1,100,000,000 shall be made available for discretionary transportation and infrastructure grants for intercity passenger rail transportation, freight rail, and transit security.
______
SA 1127. Mr. BIDEN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
TITLE VI--SEAPORTS
SEC. 601. SHORT TITLE.
This title may be cited as the ``Reducing Crime and Terrorism at America's Seaports Act of 2005''.
SEC. 602. ENTRY BY FALSE PRETENSES TO ANY SEAPORT.
(a) In General.--Section 1036 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2), by striking ``or'' at the end;
(B) by redesignating paragraph (3) as paragraph (4); and
(C) by inserting after paragraph (2) the following:
``(3) any secure or restricted area of any seaport, designated as secure in an approved security plan, as required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that section; or'';
(2) in subsection (b)(1), by striking ``5'' and inserting
``10'';
(3) in subsection (c)(1), by inserting ``, captain of the seaport,'' after ``airport authority''; and
(4) by striking the section heading and inserting the following:
``Sec. 1036. Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport''.
(b) Technical and Conforming Amendment.--The table of sections for chapter 47 of title 18 is amended by striking the matter relating to section 1036 and inserting the following:
``1036. Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport.''.
(c) Definition of Seaport.--Chapter 1 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 26. Definition of seaport
``As used in this title, the term `seaport' means all piers, wharves, docks, and similar structures, adjacent to any waters subject to the jurisdiction of the United States, to which a vessel may be secured, including areas of land, water, or land and water under and in immediate proximity to such structures, buildings on or contiguous to such structures, and the equipment and materials on such structures or in such buildings.''.
(d) Technical and Conforming Amendment.--The table of sections for chapter 1 of title 18 is amended by inserting after the matter relating to section 25 the following:
``26. Definition of seaport.''.
SEC. 603. CRIMINAL SANCTIONS FOR FAILURE TO HEAVE TO,
OBSTRUCTION OF BOARDING, OR PROVIDING FALSE
INFORMATION.
(a) Offense.--Chapter 109 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 2237. Criminal sanctions for failure to heave to, obstruction of boarding, or providing false information
``(a)(1) It shall be unlawful for the master, operator, or person in charge of a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to knowingly fail to obey an order by an authorized Federal law enforcement officer to heave to that vessel.
``(2) It shall be unlawful for any person on board a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to--
``(A) forcibly resist, oppose, prevent, impede, intimidate, or interfere with a boarding or other law enforcement action authorized by any Federal law or to resist a lawful arrest; or
``(B) provide information to a Federal law enforcement officer during a boarding of a vessel regarding the vessel's destination, origin, ownership, registration, nationality, cargo, or crew, which that person knows is materially false.
``(b) This section does not limit the authority of a customs officer under section 581 of the Tariff Act of 1930
(19 U.S.C. 1581), or any other provision of law enforced or administered by the Secretary of the Treasury or the Secretary of Homeland Security, or the authority of any Federal law enforcement officer under any law of the United States, to order a vessel to stop or heave to.
``(c) A foreign nation may consent or waive objection to the enforcement of United States law by the United States under this section by radio, telephone, or similar oral or electronic means. Consent or waiver may be proven by certification of the Secretary of State or the designee of the Secretary of State.
``(d) In this section--
``(1) the term `Federal law enforcement officer' has the meaning given the term in section 115(c);
``(2) the term `heave to' means to cause a vessel to slow, come to a stop, or adjust its course or speed to account for the weather conditions and sea state to facilitate a law enforcement boarding;
``(3) the term `vessel subject to the jurisdiction of the United States' has the meaning given the term in section 2 of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903); and
``(4) the term `vessel of the United States' has the meaning given the term in section 2 of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903).
``(e) Any person who intentionally violates the provisions of this section shall be fined under this title, imprisoned for not more than 5 years, or both.''.
(b) Technical and Conforming Amendment.--The table of sections for chapter 109, title 18, United States Code, is amended by inserting after the item for section 2236 the following:
``2237. Criminal sanctions for failure to heave to, obstruction of boarding, or providing false information.''.
SEC. 604. USE OF A DANGEROUS WEAPON OR EXPLOSIVE ON A
PASSENGER VESSEL.
Section 1993 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1), by inserting ``, passenger vessel,'' after ``transportation vehicle'';
(B) in paragraphs (2)--
(i) by inserting ``, passenger vessel,'' after
``transportation vehicle''; and
(ii) by inserting ``or owner of the passenger vessel'' after ``transportation provider'' each place that term appears;
(C) in paragraph (3)--
(i) by inserting ``, passenger vessel,'' after
``transportation vehicle'' each place that term appears; and
(ii) by inserting ``or owner of the passenger vessel'' after ``transportation provider'' each place that term appears;
(D) in paragraph (5)--
(i) by inserting ``, passenger vessel,'' after
``transportation vehicle''; and
(ii) by inserting ``or owner of the passenger vessel'' after ``transportation provider''; and
(E) in paragraph (6), by inserting ``or owner of a passenger vessel'' after ``transportation provider'' each place that term appears;
(2) in subsection (b)(1), by inserting ``, passenger vessel,'' after ``transportation vehicle''; and
(3) in subsection (c)--
(A) by redesignating paragraph (6) through (8) as paragraphs (7) through (9); and
(B) by inserting after paragraph (5) the following:
``(6) the term `passenger vessel' has the meaning given that term in section 2101(22) of title 46, United States Code, and includes a small passenger vessel, as that term is defined under section 2101(35) of that title.''.
SEC. 605. CRIMINAL SANCTIONS FOR VIOLENCE AGAINST MARITIME
NAVIGATION, PLACEMENT OF DESTRUCTIVE DEVICES,
AND MALICIOUS DUMPING.
(a) Knowing Discharge or Release.--Chapter 111 of title 18, United States Code, is amended by adding after section 2281 the following:
``Sec. 2282. Knowing discharge or release
``(a) Endangerment of Human Life.--A person who knowingly discharges or releases oil, hazardous material, a noxious liquid substance, or any other dangerous substance into navigable waters or onto the adjoining shoreline with the intent to endanger human life, or health, or welfare shall be fined under this title, imprisoned for any term of years or for life, or both.
``(b) Endangerment of Marine Environment.--Any person who knowingly discharges or releases oil, a hazardous material, a noxious liquid substance, or any other dangerous substance into navigable waters or onto the adjacent shoreline with the intent to endanger the marine environment shall be fined under this title, imprisoned not more than 30 years, or both.
``(c) Definitions.--In this section:
``(1) Discharge.--The term `discharge' includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.
``(2) Hazardous material.--The term `hazardous material' has the meaning given the term in section 2101(14) of title 46, United States Code.
``(3) Marine environment.--The term `marine environment' has the meaning given the term in section 2101(15) of title 46, United States Code.
``(4) Navigable waters.--The term `navigable waters' has the meaning given the term in section 1362(7) of title 33, United States Code, and also includes the territorial sea of the United States as described in Presidential Proclamation 5928 of December 27, 1988.
``(5) Noxious liquid substance.--The term `noxious liquid substance' has the meaning given the term in the MARPOL Protocol defined in section 2(1) of the Act to Prevent Pollution from Ships (33 U.S.C. 1901(a)(3)).
``(6) Oil.--The term `oil' has the meaning given the term in section 1321(a)(1) of title 33, United States Code; and
``(7) Dangerous substance.--The term `dangerous substance' means any solid, liquid, or gaseous material that has the capacity of endangering human life, health, or welfare.''.
(b) Technical and Conforming Amendment.--The table of sections for chapter 111 of title 18, United States Code, is amended by adding at the end the following:
``2282. Knowing discharge or release.''.
(c) Placement of Destructive Devices.--Chapter 111 of title 18, United States Code, as amended by subsection (a), is further amended by adding at the end the following:
``Sec. 2282A. Devices or dangerous substances in waters of the united states likely to destroy or damage ships or to interfere with maritime commerce
``(a) A person who knowingly places, or causes to be placed, in navigable waters of the United States, by any means, a device or dangerous substance which is likely to destroy or cause damage to a vessel or its cargo, cause interference with the safe navigation of vessels, or interference with maritime commerce (such as by damaging or destroying marine terminals, facilities, or any other marine structure or entity used in maritime commerce) with the intent of causing such destruction or damage, interference with the safe navigation of vessels, or interference with maritime commerce shall be fined under this title, imprisoned for any term of years or for life, or both.
``(b) A person who causes the death of any person by engaging in conduct prohibited under subsection (a) may be punished by death.
``(c) Nothing in this section shall be construed to apply to otherwise lawfully authorized and conducted activities of the United States Government.
``(d) In this section:
``(1) The term `dangerous substance' means any solid, liquid, or gaseous material that has the capacity to cause damage to a vessel or its cargo, or cause interference with the safe navigation of a vessel.
``(2) The term `device' means any object that, because of its physical, mechanical, structural, or chemical properties, has the capacity to cause damage to a vessel or its cargo, or cause interference with the safe navigation of a vessel.''.
(2) Technical and conforming amendment.--The table of sections for chapter 111 of title 18, United States Code, as amended by subsection (b), is further amended by adding after the item related to section 2282 the following:
``2282A. Devices or dangerous substances in waters of the United States likely to destroy or damage ships or to interfere with maritime commerce.''.
(d) Violence Against Maritime Navigation.--
(1) In general.--Chapter 111 of title 18, United States Code as amended by subsections (a) and (c), is further amended by adding at the end the following:
``Sec. 2282B. Violence against aids to maritime navigation
``Whoever intentionally destroys, seriously damages, alters, moves, or tampers with any aid to maritime navigation maintained by the Saint Lawrence Seaway Development Corporation under the authority of section 4 of the Act of May 13, 1954 (33 U.S.C. 984), by the Coast Guard pursuant to section 81 of title 14, United States Code, or lawfully maintained under authority granted by the Coast Guard pursuant to section 83 of title 14, United States Code, if such act endangers or is likely to endanger the safe navigation of a ship, shall be fined under this title, imprisoned for not more than 20 years, or both.''.
(2) Technical and conforming amendment.--The table of sections for chapter 111 of title 18, United States Code, as amended by subsections (b) and (d) is further amended by adding after the item related to section 2282A the following:
``2282B. Violence against aids to maritime navigation.''.
SEC. 606. TRANSPORTATION OF DANGEROUS MATERIALS AND
TERRORISTS.
(a) Transportation of Dangerous Materials and Terrorists.--Chapter 111 of title 18, as amended by section 605, is further amended by adding at the end the following:
``Sec. 2283. Transportation of explosive, biological, chemical, or radioactive or nuclear materials
``(a) In General.--Any person who knowingly and willfully transports aboard any vessel within the United States and on waters subject to the jurisdiction of the United States or any vessel outside the United States and on the high seas or having United States nationality an explosive or incendiary device, biological agent, chemical weapon, or radioactive or nuclear material, knowing that any such item is intended to be used to commit an offense listed under section 2332b(g)(5)(B), shall be fined under this title, imprisoned for any term of years or for life, or both.
``(b) Causing Death.--Any person who causes the death of any person by engaging in conduct prohibited by subsection
(a) may be punished by death.
``(c) Definitions.--In this section:
``(1) Biological agent.--The term `biological agent' means any biological agent, toxin, or vector (as those terms are defined in section 178).
``(2) By-product material.--The term `by-product material' has the meaning given that term in section 11(e) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(e)).
``(3) Chemical weapon.--The term `chemical weapon' has the meaning given that term in section 229F(1).
``(4) Explosive or incendiary device.--The term `explosive or incendiary device' has the meaning given the term in section 232(5).
``(5) Nuclear material.--The term `nuclear material' has the meaning given that term in section 831(f)(1).
``(6) Radioactive material.--The term `radioactive material' means--
``(A) source material and special nuclear material, but does not include natural or depleted uranium;
``(B) nuclear by-product material;
``(C) material made radioactive by bombardment in an accelerator; or
``(D) all refined isotopes of radium.
``(8) Source material.--The term `source material' has the meaning given that term in section 11(z) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(z)).
``(9) Special nuclear material.--The term `special nuclear material' has the meaning given that term in section 11(aa) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(aa)).
``Sec. 2284. Transportation of terrorists
``(a) In General.--Any person who knowingly and intentionally transports any terrorist aboard any vessel within the United States and on waters subject to the jurisdiction of the United States or any vessel outside the United States and on the high seas or having United States nationality, knowing that the transported person is a terrorist, shall be fined under this title, imprisoned for any term of years or for life, or both.
``(b) Defined Term.--In this section, the term `terrorist' means any person who intends to commit, or is avoiding apprehension after having committed, an offense listed under section 2332b(g)(5)(B).''.
(b) Technical and Conforming Amendment.--The table of sections for chapter 111 of title 18, United States Code, as amended by section 605, is further amended by adding at the end the following:
``2283. Transportation of explosive, chemical, biological, or radioactive or nuclear materials.
``2284. Transportation of terrorists.''.
SEC. 607. DESTRUCTION OF, OR INTERFERENCE WITH, VESSELS OR
MARITIME FACILITIES.
(a) In General.--Title 18, United States Code, is amended by inserting after chapter 111 the following:
``CHAPTER 111A--DESTRUCTION OF, OR INTERFERENCE WITH, VESSELS OR
MARITIME FACILITIES
``Sec.
``2290. Jurisdiction and scope.
``2291. Destruction of vessel or maritime facility.
``2292. Imparting or conveying false information.
``2293. Bar to prosecution.
``Sec. 2290. Jurisdiction and scope
``(a) Jurisdiction.--There is jurisdiction over an offense under this chapter if the prohibited activity takes place--
``(1) within the United States and within waters subject to the jurisdiction of the United States; or
``(2) outside United States and--
``(A) an offender or a victim is a national of the United States (as that term is defined under section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
``(B) the activity involves a vessel in which a national of the United States was on board; or
``(C) the activity involves a vessel of the United States
(as that term is defined under section 2 of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903).
``(b) Scope.--Nothing in this chapter shall apply to otherwise lawful activities carried out by or at the direction of the United States Government.
``Sec. 2291. Destruction of vessel or maritime facility
``(a) Offense.--Whoever willfully--
``(1) sets fire to, damages, destroys, disables, or wrecks any vessel;
``(2) places or causes to be placed a destructive device, as defined in section 921(a)(4), or destructive substance, as defined in section 31(a)(3), in, upon, or near, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any vessel, or any part or other materials used or intended to be used in connection with the operation of a vessel;
``(3) sets fire to, damages, destroys, or disables or places a destructive device or substance in, upon, or near, any maritime facility, including any aid to navigation, lock, canal, or vessel traffic service facility or equipment;
``(4) interferes by force or violence with the operation of any maritime facility, including any aid to navigation, lock, canal, or vessel traffic service facility or equipment, if such action is likely to endanger the safety of any vessel in navigation;
``(5) sets fire to, damages, destroys, or disables or places a destructive device or substance in, upon, or near, any appliance, structure, property, machine, or apparatus, or any facility or other material used, or intended to be used, in connection with the operation, maintenance, loading, unloading, or storage of any vessel or any passenger or cargo carried or intended to be carried on any vessel;
``(6) performs an act of violence against or incapacitates any individual on any vessel, if such act of violence or incapacitation is likely to endanger the safety of the vessel or those on board;
``(7) performs an act of violence against a person that causes or is likely to cause serious bodily injury, as defined in section 1365(h)(3), in, upon, or near, any appliance, structure, property, machine, or apparatus, or any facility or other material used, or intended to be used, in connection with the operation, maintenance, loading, unloading, or storage of any vessel or any passenger or cargo carried or intended to be carried on any vessel;
``(8) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any vessel in navigation; or
``(9) attempts or conspires to do anything prohibited under paragraphs (1) through (8),shall be fined under this title, imprisoned not more than 20 years, or both.
``(b) Limitation.--Subsection (a) shall not apply to any person that is engaging in otherwise lawful activity, such as normal repair and salvage activities, and the transportation of hazardous materials regulated and allowed to be transported under chapter 51 of title 49.
``(c) Penalty.--Whoever is fined or imprisoned under subsection (a) as a result of an act involving a vessel that, at the time of the violation, carried high-level radioactive waste (as that term is defined in section 2(12) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(12)) or spent nuclear fuel (as that term is defined in section 2(23) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(23)), shall be fined under this title, imprisoned for a term up to life, or both.
``(d) Penalty When Death Results.--Whoever is convicted of any crime prohibited by subsection (a) and intended to cause death by the prohibited conduct, if the conduct resulted in the death of any person, shall be subject also to the death penalty or to a term of imprisonment for a period up to life.
``(e) Threats.--Whoever willfully imparts or conveys any threat to do an act which would violate this chapter, with an apparent determination and will to carry the threat into execution, shall be fined under this title, imprisoned not more than 5 years, or both, and is liable for all costs incurred as a result of such threat.
``Sec. 2292. Imparting or conveying false information
``(a) In General.--Whoever imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act that would be a crime prohibited by this chapter or by chapter 111 of this title, shall be subject to a civil penalty of not more than
$5,000, which shall be recoverable in a civil action brought in the name of the United States.
``(b) Malicious Conduct.--Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt to do any act which would be a crime prohibited by this chapter or by chapter 111 of this title, shall be fined under this title, imprisoned not more than 5 years, or both.
``(c) Jurisdiction.--
``(1) In general.--Except as provided under paragraph (2), section 2290(a) shall not apply to any offense under this section.
``(2) Jurisdiction.--Jurisdiction over an offense under this section shall be determined in accordance with the provisions applicable to the crime prohibited by this chapter, or by chapter 111 of this title, to which the imparted or conveyed false information relates, as applicable.
``Sec. 2293. Bar to prosecution
``(a) In general.--It is a bar to prosecution under this chapter if--
``(1) the conduct in question occurred within the United States in relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was committed; or
``(2) such conduct is prohibited as a misdemeanor, and not as a felony, under the law of the State in which it was committed.
``(b) Definitions.--In this section:
``(1) Labor dispute.--The term `labor dispute' has the same meaning given that term in section 13(c) of the Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes (29 U.S.C. 113(c), commonly known as the Norris-LaGuardia Act).
``(2) State.--The term `State' means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.''.
(c) Technical and Conforming Amendment.--The table of chapters at the beginning of title 18, United States Code, is amended by inserting after the item for chapter 111 the following:
``111A. Destruction of, or interference with, vessels or maritime facilities..................................................2290''.
SEC. 608. THEFT OF INTERSTATE OR FOREIGN SHIPMENTS OR
VESSELS.
(a) Theft of Interstate or Foreign Shipments.--Section 659 of title 18, United States Code, is amended--
(1) in the first undesignated paragraph--
(A) by inserting ``trailer,'' after ``motortruck,'';
(B) by inserting ``air cargo container,'' after
``aircraft,''; and
(C) by inserting ``, or from any intermodal container, trailer, container freight station, warehouse, or freight consolidation facility,'' after ``air navigation facility'';
(2) in the fifth undesignated paragraph, by striking ``one year'' and inserting ``3 years''; and
(3) by inserting after the first sentence in the eighth undesignated paragraph the following: ``For purposes of this section, goods and chattel shall be construed to be moving as an interstate or foreign shipment at all points between the point of origin and the final destination (as evidenced by the waybill or other shipping document of the shipment), regardless of any temporary stop while awaiting transshipment or otherwise.''.
(b) Stolen Vessels.--
(1) In general.--Section 2311 of title 18, United States Code, is amended by adding at the end the following:
`` `Vessel' means any watercraft or other contrivance used or designed for transportation or navigation on, under, or immediately above, water.''.
(2) Transportation and sale of stolen vessels.--
(A) Transportation.--Section 2312 of title 18, United States Code, is amended by striking ``motor vehicle or aircraft'' and inserting ``motor vehicle, vessel, or aircraft''.
(B) Sale.--Section 2313(a) of title 18, United States Code, is amended by striking ``motor vehicle or aircraft'' and inserting ``motor vehicle, vessel, or aircraft''.
(c) Review of Sentencing Guidelines.--Pursuant to section 994 of title 28, United States Code, the United States Sentencing Commission shall review the Federal Sentencing Guidelines to determine whether sentencing enhancement is appropriate for any offense under section 659 or 2311 of title 18, United States Code, as amended by this Act.
(d) Annual Report of Law Enforcement Activities.--The Attorney General shall annually submit to Congress a report, which shall include an evaluation of law enforcement activities relating to the investigation and prosecution of offenses under section 659 of title 18, United States Code, as amended by this Act.
(e) Reporting of Cargo Theft.--The Attorney General shall take the steps necessary to ensure that reports of cargo theft collected by Federal, State, and local officials are reflected as a separate category in the Uniform Crime Reporting System, or any successor system, by no later than December 31, 2005.
SEC. 609. INCREASED PENALTIES FOR NONCOMPLIANCE WITH MANIFEST
REQUIREMENTS.
(a) Reporting, Entry, Clearance Requirements.--Section 436(b) of the Tariff Act of 1930 (19 U.S.C. 1436(b)) is amended by--
(1) striking ``or aircraft pilot'' and inserting ``aircraft pilot, operator, owner of such vessel, vehicle or aircraft, or any other responsible party'';
(2) striking ``$5,000'' and inserting ``$10,000''; and
(3) striking ``$10,000'' and inserting ``$25,000''.
(b) Criminal Penalty.--Section 436(c) of the Tariff Act of 1930 (19 U.S.C. 1436(c)) is amended--
(1) by striking ``or aircraft pilot'' and inserting
``aircraft pilot, operator, owner of such vessel, vehicle, or aircraft, or any other responsible party''; and
(2) by striking ``$2,000'' and inserting ``$10,000''.
(c) Falsity or Lack of Manifest.--Section 584(a)(1) of the Tariff Act of 1930 (19 U.S.C. 1584(a)(1)) is amended by striking ``$1,000'' in each place it occurs and inserting
``$10,000''.
SEC. 610. STOWAWAYS ON VESSELS OR AIRCRAFT.
Section 2199 of title 18, United States Code, is amended by striking ``Shall be fined under this title or imprisoned not more than one year, or both.'' and inserting the following:
``(1) shall be fined under this title, imprisoned not more than 5 years, or both;
``(2) if the person commits an act proscribed by this section, with the intent to commit serious bodily injury, and serious bodily injury occurs (as defined under section 1365, including any conduct that, if the conduct occurred in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242) to any person other than a participant as a result of a violation of this section, shall be fined under this title, imprisoned not more than 20 years, or both; and
``(3) if an individual commits an act proscribed by this section, with the intent to cause death, and if the death of any person other than a participant occurs as a result of a violation of this section, shall be fined under this title, imprisoned for any number of years or for life, or both.''.
SEC. 611. BRIBERY AFFECTING PORT SECURITY.
(a) In General.--Chapter 11 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 226. Bribery affecting port security
``(a) In General.--Whoever knowingly--
``(1) directly or indirectly, corruptly gives, offers, or promises anything of value to any public or private person, with intent to commit international terrorism or domestic terrorism (as those terms are defined under section 2331), to--
``(A) influence any action or any person to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud affecting any secure or restricted area or seaport; or
``(B) induce any official or person to do or omit to do any act in violation of the lawful duty of such official or person that affects any secure or restricted area or seaport; or
``(2) directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for--
``(A) being influenced in the performance of any official act affecting any secure or restricted area or seaport; and
``(B) knowing that such influence will be used to commit, or plan to commit, international or domestic terrorism,shall be fined under this title, imprisoned not more than 15 years, or both.
``(b) Definition.--In this section, the term `secure or restricted area' means an area of a vessel or facility designated as secure in an approved security plan, as required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that section.''.
(b) Technical and Conforming Amendment.--The table of sections for chapter 11 of title 18, United States Code, is amended by adding at the end the following:
``226. Bribery affecting port security.''.
______
SA 1128. Mr. BIDEN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. The amount appropriated by title III under the heading ``Office of State and Local Government Coordination and Preparedness'' is increased by $495,000,000, of which
$495,000,000 shall be made available for discretionary transportation and infrastructure grants for intercity passenger rail transportation, freight rail, and transit security.
______
SA 1129. Mr. REID (for Ms. Murray (for herself, Mr. Byrd, Mr. Akaka, and Mr. Kerry)) proposed an amendment to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; as follows:
At the appropriate place, insert the following: SECTION 1. VETERANS HEALTH ADMINISTRATION.
(a) In General.--From any money in the Treasury not otherwise obligated or appropriated, there are appropriated to the Department of Veterans Affairs $1,500,000,000 for the fiscal year ending September 30, 2005, for medical services provided by the Veterans Health Administration, which shall remain available until expended.
(b) Emergency Designation.--The amount appropriated under subsection (a) is designated as an emergency requirement pursuant to (section 402 of H. Con. Res. 95 (109th Congress).
(c) This section shall take effect on the date of enactment of this Act.
______
SA 1130. Mr. LAUTENBERG (for himself and Mr. Corzine) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. HOMELAND SECURITY ASSISTANCE.
It is the sense of the Senate that the Senate agrees with the recommendation of the Final Report of the National Commission on Terrorist Attacks Upon the United States
(commonly known as the ``9/11 Report''), which includes the following: ``Homeland security assistance should be based strictly on an assessment of risks and vulnerabilities. . . .
[F]ederal homeland security assistance should not remain a program for general revenue sharing. It should supplement state and local resources based on the risks or vulnerabilities that merit additional support.''.
______
SA 1131. Mr. LAUTENBERG (for himself and Mr. Corzine) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. RISK-BASED HOMELAND SECURITY FUNDING.
(a) Short Title.--This section may be cited as the ``Risk-Based Homeland Security Funding Act''.
(b) Findings.--Congress agrees with the recommendation of the Final Report of the National Commission on Terrorist Attacks Upon the United States (commonly known as the ``9/11 Report''), which includes the following: ``Homeland security assistance should be based strictly on an assessment of risks and vulnerabilities. . . . [F]ederal homeland security assistance should not remain a program for general revenue sharing. It should supplement state and local resources based on the risks or vulnerabilities that merit additional support.''.
(c) Risk-based Homeland Security Grant Funding.--
(1) Criteria for awarding homeland security grants.--Except for grants awarded under any of the programs listed under subsection d(2), all homeland security grants related to terrorism prevention and terrorism preparedness shall be awarded based strictly on an assessment of risk, threat, and vulnerabilities, as determined by the Secretary of Homeland Security.
(2) Limitation.--Except for grants awarded under any of the programs listed under subsection d(2), none of the funds appropriated for Homeland Security grants related to terrorism prevention and terrorism preparedness may be used for general revenue sharing.
(3) Conforming amendment.--Section 1014(c)(3) of the USA PATRIOT ACT (42 U.S.C. 3714(c)(3)) is repealed.
(d) Preservation of Pre-9/11 Grant Programs for Traditional First Responder Missions.--
(1) Savings provision.--This section shall not be construed to affect any authority to award grants under a Federal grant program listed under paragraph (2), which existed on September 10, 2001, to enhance traditional missions of State and local law enforcement, firefighters, ports, emergency medical services, or public health missions.
(2) Programs excluded.--The programs referred to in paragraph (1) are the following:
(A) The Firefighter Assistance Program authorized under section 33 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2229).
(B) The Emergency Management Performance Grant Program and the Urban Search and Rescue Grant Program authorized under--
(i) title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.);
(ii) the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 2000 (Public Law 1060974; 113 Stat. 1047 et seq.); and
(iii) the Earthquake Hazards Reduction Act of 1977 (42 U.S.C. 7701 et seq.).
(C) The Edward Byrne Memorial State and Local Law Enforcement Assistance Programs authorized under part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).
(D) The Public Safety and Community Policing (COPS ON THE BEAT) Grant Program authorized under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.).
(E) Grant programs under the Public Health Service Act (42 U.S.C. 201 et seq.) regarding preparedness for bioterrorism and other public health emergencies.
(F) The Emergency Response Assistance Program authorized under section 1412 of the Defense Against Weapons of Mass Destruction Act of 1996 (50 U.S.C. 2312).
______
SA 1132. Mr. LAUTENBERG (for himself and Mr. Corzine) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. RISK-BASED HOMELAND SECURITY FUNDING.
Notwithstanding any other provision of law (including any provision of title III of this Act), all homeland security grants related to terrorism prevention and terrorism preparedness shall be allocated based on an assessment of risks, threats, and vulnerabilities.
______
SA 1133. Mr. GREGG proposed an amendment to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; as follows:
On page 81, line 22, strike ``For necessary'' down through and including on line 4, page 82, and insert the following:
``For necessary expenses for programs authorized by the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2201 et seq.), $615,000,000, of which $500,000,000 shall be available to carry out section 33 (15 U.S.C. 2229) an
$115,000,000 shall be available to carry out section 34 (15 U.S.C. 2229a) of such Act, to remain available until September 30, 2007: Provided, That not to exceed 5 percent of this amount shall be available for program administration.''
______
SA 1134. Mr. LEVIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
TITLE __--SCREENING MUNICIPAL SOLID WASTE
SEC. __. CERTIFICATION RELATIVE TO THE SCREENING OF MUNICIPAL
SOLID WASTE TRANSPORTED INTO THE UNITED STATES.
(a) Definition.--In this section, the term ``municipal solid waste'' includes sludge (as defined in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)).
(b) Reports to Congress.--Not later than 90 days after the date of enactment of this section, the Bureau of Customs and Border Protection shall submit a report to Congress that--
(1) indicates whether the methodologies and technologies used by the Bureau to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in municipal solid waste are as effective as the methodologies and technologies used by the Bureau to screen for such materials in other items of commerce entering into the United States by commercial motor vehicle transport; and
(2) if the methodologies and technologies used to screen solid waste are less effective than those used to screen other commercial items, identifies the actions that the Bureau will take to achieve the same level of effectiveness in the screening of solid waste, including the need for additional screening technologies.
(c) Impact on Commercial Motor Vehicles.--If the Bureau of Customs and Border Protection fails to fully implement the actions described in subsection (b)(2) before the earlier of 6 months after the date on which the report is due under subsection (b) or 6 months after the date on which such report is submitted, the Secretary shall deny entry into the United States of any commercial motor vehicle (as defined in section 31101(1) of title 49, United States Code) carrying municipal solid waste until the Secretary certifies to Congress that the methodologies and technologies used by the Bureau to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in such waste are as effective as the methodologies and technologies used by the Bureau to screen for such materials in other items of commerce entering into the United States by commercial motor vehicle transport.
______
SA 1135. Mr. LEVIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. (a)(1) There is established in the Department of Homeland Security an International Border Community Interoperable Communications Demonstration Project (referred to in this section as ``demonstration project'') to address the interoperable communications needs of police officers, firefighters, emergency medical technicians, National Guard, and other emergency response providers, as defined in the Homeland Security Act of 2002.
(2) The Secretary of Homeland Security shall select no fewer than 4 communities to participate in a demonstration project.
(3) No fewer than 2 of the communities selected under paragraph (2) shall be located on the northern border of the United States and no few than 2 of the communities selected under paragraph (2) shall be located on the southern border of the United States. The Secretary shall select sites along the international borders that reflect a variety of conditions, including at least one site with at least 8,000,000 border crossings per year, commercial activity of at least $50,000,000,000 per year, and critical infrastructure, such as bridges, railways, pipelines, and water resources.
(b)(1) The Secretary of Homeland Security shall distribute funds under this section to each community participating in a demonstration project under this section through the State or States in which each community is located.
(2) A State receiving funds under this section shall make the funds available to the local governments and emergency response providers participating in a demonstration project selected by the Secretary of Homeland Security not later than 60 days after receiving funds.
(c) Not later than December 31, 2005, and each year thereafter in which funds are appropriated for a demonstration project, the Secretary of Homeland Security shall provide to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report on the demonstration projects under this section.
(d)(1)) Of the amounts appropriated by this Act,
$10,000,000 shall be for necessary expenses to carry out this section.
(2) The amount appropriated by title IV under the heading
``research, development, acquisition, and operations'' is hereby reduced by $10,000,000.
______
SA 1136. Mr. CONRAD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. (a) Availability of Amount for Grand Forks Air Wing Base, North Dakota.--Of the amount appropriated by title II of this Act under the heading ``BORDER AND TRANSPORTATION SECURITY'' under the heading ``Air and Marine Interdiction, Operations, Maintenance, and Procurement'' and available for the Northern border airwings, $2,000,000 may be available for the Grand Forks Air Wing Base, North Dakota.
(b) Report on Establishment of Air Wing Base.--Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to Congress a report on the establishment of Grand Forks Air Wing Base as part of the Northern border airwing system. The report shall set forth an estimate of the cost of establishment of the Grand Forks Air Wing Base, together with a proposed schedule for completion of the Grand Forks Air Wing Base.
______
SA 1137. Ms. COLLINS submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 78, line 12, strike the period at the end and insert the following: ``: Provided further, That funds made available under this paragraph may be used for overtime costs associated with providing enhanced law enforcement operations in support of Federal agencies for increased border security and border crossing enforcement.''.
______
SA 1138. Mr. COLEMAN (for himself, Mr. Levin, Mr. Wyden, and Mr. Akaka) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. PAYMENTS TO FEDERAL CONTRACTORS WITH FEDERAL TAX
DEBT.
The General Services Administration, in conjunction with the Internal Revenue Service and the Financial Management Service, shall develop procedures to subject purchase card payments to Federal contractors to the Federal Payment Levy program.
SEC. 520. REPORTING OF AIR TRAVEL BY FEDERAL GOVERNMENT
EMPLOYEES.
(a) Annual Reports Required.--The Administrator of the General Services shall submit annually to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives a report on all first class and business class travel by employees of each executive agency undertaken at the expense of the Federal Government.
(b) Content.--The reports submitted pursuant to subsection
(a) shall include, at a minimum, with respect to each travel by first class or business class--
(1) the names of each traveler;
(2) the date of travel;
(3) the points of origination and destination;
(4) the cost of the first class or business class travel; and
(5) the cost difference between such travel and travel by coach class.
(c) Executive Agency Defined.--In this section, the term
``executive agency'' has the meaning given such term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).
______
SA 1139. Mr. SESSIONS (for himself and Mr. Hatch) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 56, line 19, strike ``$124,620,000'' and insert
``$123,620,000''.
At the appropriate place, insert the following:
Sec. __.(a) There are appropriated, out of any money in the Treasury not otherwise appropriated, for the Directorate of Border and Transportation Security for the fiscal year ending September 30, 2006, $1,000,000 for entering information into the Immigration Violators File of the National Crime Information Center database about immigration violators, including all aliens--
(1) against whom a final order of removal has been issued;
(2) who have signed a voluntary departure agreement;
(3) who have overstayed their authorized period of stay; or
(4) whose visas have been revoked.
(b) The information described in subsection (a) shall be provided to the National Crime Information Center and entered into the Immigration Violators File regardless of whether--
(1) the alien received notice of a final order of removal;
(2) the alien has already been removed; or
(3) sufficient identifying information is available regarding the alien.
______
SA 1140. Mr. SESSIONS (for himself and Mr. Hatch) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 56, strike line 19 and insert the following: ``as authorized by law, $113,139,000: Provided, That not to''.
On page 57, line 1, strike ``$146,322,000'' and insert
``$116,803,000''.
At the appropriate place, insert the following:
SEC. __. TRAINING STATE AND LOCAL PERSONNEL TO PERFORM
IMMIGRATION FUNCTIONS.
(a) In General.--There are appropriated, out of any money in the Treasury not otherwise appropriated, for the Department of Homeland Security for the fiscal year ending September 30, 2006, $40,000,000, of which--
(1) $20,000,000 may be used to facilitate agreements under 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)); and
(2) $20,000,000 may be used to reimburse States and political subdivisions of any State for expenses described in subsection (c).
(b) Eligible Recipients.--Reimbursement under subsection
(a)(2) is limited to States and political subdivisions of any State that--
(1) have entered into a written agreement under section 287(g) of such Act under which certain officers or employers are authorized to perform certain functions of an immigration officer; and
(2) desire that such officers or employees receive training from the Department of Homeland Security in relation to such functions.
(c) Expense.--The expenses described in this subsection are the actual and necessary expenses incurred by the State or political subdivision in support of the training described in subsection (b)(2), including--
(1) costs related to travel and transportation to locations where training is provided, including mileage and related allowances for the use of a privately owned automobile;
(2) subsistence payments, including lodging, meals, and other necessary expenses for the personal sustenance and comfort of a person required to travel away from the person's regular post of duty in order to participate in the training;
(3) a per diem allowance paid instead of actual expenses for subsistence and fees or tips to porters and stewards; and
(4) costs of securing temporary replacements or personnel traveling to, and participating in, the training, including overtime expenses.
______
SA 1141. Mr. SESSIONS submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE __--PROTECTION OF RAILROAD CARRIERS AND MASS TRANSPORTATION
SEC. _01. SHORT TITLE.
This title may be cited as the ``Railroad Carriers and Mass Transportation Protection Act of 2005''.
SEC. _02. ATTACKS AGAINST RAILROAD CARRIERS, PASSENGER
VESSELS, AND MASS TRANSPORTATION SYSTEMS.
(a) In General.--Chapter 97 of title 18, United States Code, is amended by striking sections 1992 and 1993 and inserting the following:
``Sec. 11992. Terrorist attacks and other violence against railroad carriers, passenger vessels, and against mass transportation systems on land, on water, or through the air
``(a) General Prohibitions.--Whoever, in a circumstance described in subsection (c), knowingly--
``(1) wrecks, derails, sets fire to, or disables railroad on-track equipment, a passenger vessel, or a mass transportation vehicle;
``(2) with intent to endanger the safety of any passenger or employee of a railroad carrier, passenger vessel, or mass transportation provider, or with a reckless disregard for the safety of human life, and without previously obtaining the permission of the railroad carrier, mass transportation provider, or owner of the passenger vessel--
``(A) places any biological agent or toxin, destructive substance, or destructive device in, upon, or near railroad on-track equipment, a passenger vessel, or a mass transportation vehicle; or
``(B) releases a hazardous material or a biological agent or toxin on or near the property of a railroad carrier, owner of a passenger vessel, or mass transportation provider;
``(3) sets fire to, undermines, makes unworkable, unusable, or hazardous to work on or use, or places any biological agent or toxin, destructive substance, or destructive device in, upon, or near any--
``(A) tunnel, bridge, viaduct, trestle, track, electromagnetic guideway, signal, station, depot, warehouse, terminal, or any other way, structure, property, or appurtenance used in the operation of, or in support of the operation of, a railroad carrier, without previously obtaining the permission of the railroad carrier, and with intent to, or knowing or having reason to know such activity would likely, derail, disable, or wreck railroad on-track equipment;
``(B) garage, terminal, structure, track, electromagnetic guideway, supply, or facility used in the operation of, or in support of the operation of, a mass transportation vehicle, without previously obtaining the permission of the mass transportation provider, and with intent to, or knowing or having reason to know such activity would likely, derail, disable, or wreck a mass transportation vehicle used, operated, or employed by a mass transportation provider; or
``(C) structure, supply, or facility used in the operation of, or in the support of the operation of, a passenger vessel, without previously obtaining the permission of the owner of the passenger vessel, and with intent to, or knowing or having reason to know that such activity would likely disable or wreck a passenger vessel;
``(4) removes an appurtenance from, damages, or otherwise impairs the operation of a railroad signal system or mass transportation signal or dispatching system, including a train control system, centralized dispatching system, or highway-railroad grade crossing warning signal, without authorization from the rail carrier or mass transportation provider;
``(5) with intent to endanger the safety of any passenger or employee of a railroad carrier, owner of a passenger vessel, or mass transportation provider or with a reckless disregard for the safety of human life, interferes with, disables, or incapacitates any dispatcher, driver, captain, locomotive engineer, railroad conductor, or other person while the person is employed in dispatching, operating, or maintaining railroad on-track equipment, a passenger vessel, or a mass transportation vehicle;
``(6) engages in conduct, including the use of a dangerous weapon, with the intent to cause death or serious bodily injury to any person who is on the property of a railroad carrier, owner of a passenger vessel, or mass transportation provider that is used for railroad or mass transportation purposes;
``(7) conveys false information, knowing the information to be false, concerning an attempt or alleged attempt that was made, is being made, or is to be made, to engage in a violation of this subsection; or
``(8) attempts, threatens, or conspires to engage in any violation of any of paragraphs (1) through (7),
shall be fined under this title, imprisoned not more than 20 years, or both.
``(b) Aggravated offense.--(1) Whoever commits an offense under subsection (a) in a circumstance in which--
``(A) the railroad on-track equipment, passenger vessel, or mass transportation vehicle was carrying a passenger or employee at the time of the offense;
``(B) the railroad on-track equipment, passenger vessel, or mass transportation vehicle was carrying high-level radioactive waste or spent nuclear fuel at the time of the offense;
``(C) the railroad on-track equipment, passenger vessel, or mass transportation vehicle was carrying a hazardous material at the time of the offense that--
``(i) was required to be placarded under subpart F of part 172 of title 49, Code of Federal Regulations; and
``(ii) is identified as class number 3, 4, 5, 6.1, or 8 and packing group I or packing group II, or class number 1, 2, or 7 under the hazardous materials table of section 172.101 of title 49, Code of Federal Regulations; or
``(D) the offense results in the death of any person,
shall be fined under this title, imprisoned for any term of years or life, or both.
``(2) The term of imprisonment for a violation described in paragraph (1)(B) shall be not less than 30 years.
``(3) In the case of a violation described in paragraph
(1)(D), the offender shall be fined under this title and imprisoned for a term of years up to life or sentenced to death, in accordance with section 3591 of title 18, United States Code.
``(c) Circumstances Required for Offense.--A circumstance described in this subsection is any of the following:
``(1) Any of the conduct required for the offense is, or, in the case of an attempt, threat, or conspiracy to engage in conduct, the conduct required for the completed offense would be, engaged in, on, against, or affecting a mass transportation provider, owner of a passenger vessel, or railroad carrier engaged in or affecting interstate or foreign commerce.
``(2) Any person who travels or communicates across a State line in order to commit the offense, or transports materials across a State line in aid of the commission of the offense.
``(d) Nonapplicability.--Subsection (a) does not apply to the conduct with respect to a destructive substance or destructive device that is also classified under chapter 51 of title 49 as a hazardous material in commerce if the conduct--
``(1) complies with chapter 51 of title 49 and regulations, exemptions, approvals, and orders issued under that chapter; or
``(2) constitutes a violation, other than a criminal violation, of chapter 51 of title 49 or a regulation or order issued under that chapter.
``(e) Definitions.--In this section--
``(1) the term `biological agent' has the meaning given the term in section 178(1);
``(2) the term `dangerous weapon' means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, including a pocket knife with a blade of less than 2\1/2\ inches in length and a box cutter;
``(3) the term `destructive device' has the meaning given the term in section 921(a)(4);
``(4) the term `destructive substance' means an explosive substance, flammable material, infernal machine, or other chemical, mechanical, or radioactive device or material, or matter of a combustible, contaminative, corrosive, or explosive nature, except that the term `radioactive device' does not include any radioactive device or material used solely for medical, industrial, research, or other peaceful purposes;
``(5) the term `hazardous material' has the meaning given the term in section 5102(2) of title 49;
``(6) the term `high-level radioactive waste' has the meaning given the term in section 2(12) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(12));
``(7) the term `mass transportation' has the meaning given the term in section 5302(a)(7) of title 49, except that the term includes school bus, charter, and sightseeing transportation;
``(8) the term `on-track equipment' means a carriage or other contrivance that runs on rails or electromagnetic guideways;
``(9) the term `passenger vessel' has the meaning given the term in section 2101(22) of title 46, United States Code, and includes a small passenger vessel (as defined under section 2101(35) of that title);
``(10) the term `railroad on-track equipment' means a train, locomotive, tender, motor unit, freight or passenger car, or other on-track equipment used, operated, or employed by a railroad carrier;
``(11) the term `railroad' has the meaning given the term in section 20102(1) of title 49;
``(12) the term `railroad carrier' has the meaning given the term in section 20102(2) of title 49;
``(13) the term `serious bodily injury' has the meaning given the term in section 1365(h)(3);
``(14) the term `spent nuclear fuel' has the meaning given the term in section 2(23) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(23));
``(15) the term `State' has the meaning given the term in section 2266(8);
``(16) the term `toxin' has the meaning given the term in section 178(2); and
``(17) the term `vehicle' means any carriage or other contrivance used, or capable of being used, as a means of transportation on land, on water, or through the air.''.
(b) Conforming Amendments.--
(1) Table of sections.--The table of sections at the beginning of chapter 97 of title 18, United States Code, is amended--
(A) by striking ``RAILROADS'' in the chapter heading and inserting ``RAILROAD CARRIERS AND MASS TRANSPORTATION SYSTEMS ON LAND, ON WATER, OR THROUGH THE AIR'';
(B) by striking the items relating to sections 1992 and 1993; and
(C) by inserting after the item relating to section 1991 the following:
``1992. Terrorist attacks and other violence against railroad carriers, passenger vessels, and against mass transportation systems on land, on water, or through the air.''.
(2) Table of chapters.--The table of chapters at the beginning of part I of title 18, United States Code, is amended by striking the item relating to chapter 97 and inserting the following:
``97. Railroad carriers and mass transportation systems on land, on water, or through the air.....................................1991''.
(3) Conforming amendments.--Title 18, United States Code, is amended--
(A) in section 2332b(g)(5)(B)(i), by striking ``1992
(relating to wrecking trains), 1993 (relating to terrorist attacks and other acts of violence against mass transportation systems),'' and inserting ``1992 (relating to terrorist attacks and other acts of violence against railroad carriers and against mass transportation systems on land, on water, or through the air),'';
(B) in section 2339A, by striking ``1993,''; and
(C) in section 2516(1)(c) by striking ``1992 (relating to wrecking trains),'' and inserting ``1992 (relating to terrorist attacks and other acts of violence against railroad carriers and against mass transportation systems on land, on water, or through the air),''.
______
SA 1142. Ms. COLLINS (for herself, Mr. Lieberman, Mr. DeWine, Mr. Coburn, Mr. Akaka, Mr. Carper, Mr. Salazar, Mr. Coleman, Mr. Voinovich, Mr. Reed, Mr. Bingaman, and Mr. Harkin) proposed an amendment to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; as follows:
At the end of the bill, add the following:
TITLE VI--HOMELAND SECURITY GRANT ENHANCEMENT
SEC. 601. SHORT TITLE.
This title may be cited as the ``Homeland Security Grant Enhancement Act of 2005''.
SEC. 602. INTERAGENCY COMMITTEE TO COORDINATE AND STREAMLINE
HOMELAND SECURITY GRANT PROGRAMS.
(a) In General.--Title VIII of the Homeland Security Act of 2002 (6 U.S.C. 361 et seq.) is amended by inserting after section 801 the following:
``SEC. 802. INTERAGENCY COMMITTEE TO COORDINATE AND
STREAMLINE HOMELAND SECURITY GRANT PROGRAMS.
``(a) Establishment.--
``(1) In general.--Consistent with section 871, the Secretary, in coordination with the Attorney General, the Secretary of Health and Human Services, the Secretary of Transportation, the Administrator of the Environmental Protection Agency, and other agencies providing assistance for emergency response provider preparedness, as identified by the President, shall establish the Interagency Committee to Coordinate and Streamline Homeland Security Grant Programs
(referred to in this subtitle as the `Interagency Committee').
``(2) Composition.--The Interagency Committee shall be composed of--
``(A) at least 2 representatives of the Department, including a representative of the United States Fire Administration;
``(B) a representative of the Department of Health and Human Services;
``(C) a representative of the Department of Transportation;
``(D) a representative of the Department of Justice;
``(E) a representative of the Environmental Protection Agency;
``(F) at least 2 State Governors, or their designees, or other local or tribal officials; and
``(G) a representative of any other department or agency determined to be necessary by the President.
``(3) Responsibilities.--The Interagency Committee shall--
``(A) provide any findings to the Information Clearinghouse established under section 801(c);
``(B) consult with State and local governments and emergency response providers regarding their homeland security needs and capabilities;
``(C) advise the Secretary on the development of performance measures for homeland security and other first responder assistance programs;
``(D) compile a list of homeland security and other first responder assistance programs;
``(E) not later than 1 year after the date of enactment of the Homeland Security Grant Enhancement Act of 2005--
``(i) develop a proposal to coordinate, to the maximum extent practicable, the planning, reporting, application, and other guidance documents contained in homeland security assistance programs to--
``(I) eliminate all redundant and duplicative requirements and onerous application and ongoing reporting requirements;
``(II) ensure accountability of the programs to the intended purposes of such programs;
``(III) coordinate expenditures of grant funds to avoid duplicative or inconsistent purchases; and
``(IV) make the programs as user friendly as possible for applicants, including reducing lapsed time between grant applications, decisions and payments, easing fund matching requirements, and improving application guidance; and
``(ii) submit the proposal developed under clause (i) to--
``(I) the President;
``(II) the Committee on Homeland Security and Governmental Affairs of the Senate; and
``(III) the Committee on Homeland Security of the House of Representatives; and
``(F) otherwise promote the coordination of homeland security grant programs throughout the Federal government.
``(b) Administration.--The Department shall provide administrative support to the Interagency Committee, which shall include--
``(1) scheduling meetings;
``(2) preparing agenda;
``(3) maintaining minutes and records; and
``(4) producing reports.
``(c) Chairperson.--The Secretary shall designate a chairperson of the Interagency Committee.
``(d) Meetings.--The Interagency Committee shall meet--
``(1) at the call of the Secretary; or
``(2) not less frequently than once every month.''.
(b) Technical and Conforming Amendment.--The table of contents for the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by inserting after the item relating to section 801 the following:
``Sec. 802. Interagency Committee to Coordinate and Streamline Homeland
Security Grant Programs.''.
SEC. 603. STREAMLINING FEDERAL HOMELAND SECURITY GRANT
ADMINISTRATION.
(a) Director of State and Local Government Coordination and Preparedness.--Section 801(a) of the Homeland Security Act of 2002 (6 U.S.C. 361(a)) is amended to read as follows:
``(a) Establishment.--
``(1) In general.--There is established within the Office of the Secretary the Office for State and Local Government Coordination and Preparedness, which shall oversee and coordinate departmental programs for, and relationships with, State and local governments.
``(2) Executive director.--The Office established under paragraph (1) shall be headed by the Executive Director of State and Local Government Coordination and Preparedness, who shall be appointed by the President, by and with the advice and consent of the Senate.''.
(b) Office for Domestic Preparedness.--The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended--
(1) by redesignating section 430 as section 803 and transferring that section to the end of subtitle A of title VIII, as amended by section 602; and
(2) in section 803, as redesignated by paragraph (1)--
(A) in subsection (a), by striking ``the Directorate of Border and Transportation Security'' and inserting ``the Office for State and Local Government Coordination and Preparedness'';
(B) in subsection (b), by striking ``who shall be appointed by the President'' and all that follows and inserting ``who shall report directly to the Executive Director of State and Local Government Coordination and Preparedness.''; and
(C) in subsection (c)--
(i) in paragraph (7)--
(I) by striking ``other'' and inserting ``the''; and
(II) by striking ``consistent with the mission and functions of the Directorate'';
(ii) in paragraph (8)--
(I) by inserting ``carrying out'' before ``those elements''; and
(II) by striking ``and'' at the end;
(iii) in paragraph (9), by striking the period at the end and inserting ``; and''; and
(iv) by adding at the end the following:
``(10) managing the Homeland Security Information Clearinghouse established under section 801(c).''.
(c) Technical and Conforming Amendments.--
(1) Table of contents.--The table of contents for the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended--
(A) by striking the item relating to section 430;
(B) by amending the item relating to section 801 to read as follows:
``Sec. 801. Office of State and Local Government Coordination and
Preparedness.'';
and
(C) by inserting after the item relating to section 802, as added by this title, the following:
``Sec. 803. Office for Domestic Preparedness.''.
(2) Section heading.--Section 801 of the Homeland Security Act of 2002 (6 U.S.C. 361) is amended by striking the section heading and inserting the following:
``SEC. 801. OFFICE OF STATE AND LOCAL GOVERNMENT COORDINATION
AND PREPAREDNESS.''.
(d) Establishment of Homeland Security Information Clearinghouse.--Section 801 of the Homeland Security Act of 2002 (6 U.S.C. 361), as amended by subsection (a), is further amended by adding at the end the following:
``(c) Homeland Security Information Clearinghouse.--
``(1) Establishment.--There is established within the Office for State and Local Government Coordination and Preparedness a Homeland Security Information Clearinghouse
(referred to in this section as the `Clearinghouse'), which shall assist States, local governments, and emergency response providers in accordance with paragraphs (2) through
(6).
``(2) Homeland security grant information.--The Clearinghouse shall create a new website or enhance an existing website, establish a toll-free number, and produce a single publication that each contain information regarding the homeland security grant programs administered by the Department.
``(3) Technical assistance.--The Clearinghouse, in consultation with the Interagency Committee established under section 802, shall provide information regarding technical assistance provided by any Federal agency to States and local governments relating to homeland security matters, including templates for conducting threat analyses and vulnerability assessments.
``(4) Best practices.--The Clearinghouse shall work with States, local governments, emergency response providers, the National Domestic Preparedness Consortium, the National Memorial Institute for the Prevention of Terrorism, and private organizations to gather, validate, and disseminate information regarding successful State and local homeland security programs and practices.
``(5) Use of federal funds.--The Clearinghouse shall compile information regarding equipment, training, and other services that can be purchased with Federal funds provided under homeland security grant programs and make such information, and information regarding voluntary standards of training, equipment, and exercises, available to States, local governments, and emergency response providers.
``(6) Other information.--The Clearinghouse shall provide States, local governments, and emergency response providers with any other information that the Secretary determines necessary.''.
SEC. 604. ESSENTIAL CAPABILITIES FOR FIRST RESPONDERS AND
THREAT-BASED HOMELAND SECURITY GRANT PROGRAM.
(a) In General.--The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by adding at the end the following:
``TITLE XVIII--ESSENTIAL CAPABILITIES FOR FIRST RESPONDERS AND THREAT-
BASED HOMELAND SECURITY GRANT PROGRAM
``SEC. 1801. DEFINITIONS.
``In this title, the following definitions shall apply:
``(1) Directly eligible tribe.--The term `directly eligible tribe' means--
``(A) any Indian tribe, as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)), that--
``(i) is located in the continental United States;
``(ii) operates a law enforcement or emergency response agency with the capacity to respond to calls for law enforcement or emergency services;
``(iii) is located--
``(I) on, or within 10 miles of, an international border or a coastline bordering an ocean or international waters;
``(II) within 5 miles of critical infrastructure or having critical infrastructure within its territory; or
``(III) within or contiguous to 1 of the 50 largest metropolitan statistical areas in the United States; and
``(iv) certifies to the Secretary that a State or eligible metropolitan region is not making funds distributed under this title available to the Indian tribe or consortium of Indian tribes for the purpose for which the Indian tribe or consortium of Indian tribes is seeking grant funds; and
``(B) a consortium of Indian tribes if each tribe satisfies the requirements of subparagraph (A).
``(2) Eligible metropolitan region.--The term `eligible metropolitan region' means the following:
``(A) In general.--A combination of 2 or more incorporated municipalities, counties, parishes, or Indian tribes within a metropolitan region that includes the city in that metropolitan region with the largest population. Such eligible metropolitan region may include additional local governments outside the metropolitan region that are likely to be affected by, or be called upon to respond to, a terrorist attack or other catastrophic event within the metropolitan region.
``(B) Other combinations.--Any other combination of contiguous local governments that are formally certified by the Secretary as an eligible metropolitan region for purposes of this title with the consent of the State or States in which such local governments are located.
``(3) Essential capabilities.--The term `essential capabilities' means the levels, availability, and competence of emergency personnel, planning, training, and equipment across a variety of disciplines needed to effectively and efficiently prevent, prepare for, and respond to threatened or actual domestic terrorist attacks and other catastrophic events.
``(4) Indian tribe.--The term `Indian tribe' means an entity described under section 2(10)(B).
``(5) Metropolitan region.--The term `metropolitan region' means--
``(A) any of the 100 largest metropolitan statistical areas in the United States, as defined by the Office of Management and Budget; or
``(B) any combined statistical area, as defined by the Office of Management and Budget, of which any metropolitan statistical area covered by subparagraph (A) is a part.
``(6) Population.--The term `population' means population according to the most recent United States census population estimates available at the start of the relevant fiscal year.
``(7) Population density.--The term `population density' means population divided by land area in square miles.
``(8) Sliding scale baseline allocation.--The term `sliding scale baseline allocation' means 0.001 multiplied by the sum of--
``(A) the value of a State's population relative to that of the most populous of the 50 States of the United States, where the population of such States has been normalized to a maximum value of 100; and
``(B) one-fourth of the value of a State's population density relative to that of the most densely populated of the 50 States of the United States, where the population density of such States has been normalized to a maximum value of 100.
``(9) Threat-based homeland security grant program.--The term `Threat-Based Homeland Security Grant Program' means the program established under section 1804.
``SEC. 1802. PRESERVATION OF PRE-9/11 GRANT PROGRAMS FOR
TRADITIONAL FIRST RESPONDER MISSIONS.
``(a) In General.--This title shall not be construed to affect any authority to award grants under any Federal grant program listed under subsection (b), which existed on September 10, 2001, to enhance traditional missions of State and local law enforcement, firefighters, ports, emergency medical services, or public health missions.
``(b) Programs Not Affected.--The programs referred to in subsection (a) are the following:
``(1) The Firefighter Assistance Program authorized under section 33 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2229) and programs under section 34 of that Act (15 U.S.C. 2229a).
``(2) All grant programs authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), including the Emergency Management Performance Grant Program and the Urban Search and Rescue Grant program.
``(3) The Justice Assistance Grants authorized under part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.) (commonly known as the Edward Byrne Memorial State and Local Law Enforcement Assistance Programs).
``(4) The Public Safety and Community Policing (COPS ON THE BEAT) Grant Program authorized under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.).
``(5) Grant programs under the Public Health Service Act regarding preparedness for bioterrorism and other public health emergencies and the Emergency Response Assistance Program authorized under section 1412 of the Defense Against Weapons of Mass Destruction Act of 1996 (50 U.S.C. 2312).
``SEC. 1803. ESSENTIAL CAPABILITIES FOR FIRST RESPONDERS.
``(a) Establishment of Essential Capabilities.--
``(1) In general.--Building upon the national preparedness guidance issued by the Secretary, the Secretary shall establish clearly defined essential capabilities for State and local governments, in consultation with--
``(A) the Task Force on Essential Capabilities for First Responders established under subsection (d);
``(B) the Under Secretaries for Emergency Preparedness and Response (including representatives of the United States Fire Administration), Border and Transportation Security, Information Analysis and Infrastructure Protection, and Science and Technology, and the Executive Director of the Office for State and Local Government Coordination and Preparedness;
``(C) the Secretary of Health and Human Services;
``(D) other appropriate Federal agencies;
``(E) State and local emergency response providers;
``(F) State and local officials; and
``(G) consensus-based standard making organizations responsible for setting standards relevant to the first responder community.
``(2) Deadlines.--The Secretary shall--
``(A) establish essential capabilities under paragraph (1) within 30 days after receipt of the first report under subsection (d)(3); and
``(B) regularly update such essential capabilities as necessary, but not less than every 3 years.
``(3) Provision of essential capabilities.--The Secretary shall ensure that a detailed description of the essential capabilities established under paragraph (1) is provided promptly to the States and to Congress. The States shall make the description of the essential capabilities available as appropriate to local governments within their jurisdictions.
``(b) Objectives.--The Secretary shall ensure that essential capabilities established under subsection (a)(1) meet the following objectives:
``(1) Specificity.--The determination of essential capabilities shall describe specifically the training, planning, personnel, and equipment that different types of communities in the Nation should possess, or to which they should have access, in order to meet the Department's goals for preparedness based upon--
``(A) the national preparedness goal, the target capabilities list, and the national preparedness guidance;
``(B) the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection of the threats of terrorism against the United States;
``(C) the risks faced by different types of communities, including communities of various sizes, geographies, and other distinguishing characteristics; and
``(D) the principles of regional coordination and mutual aid among State and local governments.
``(2) Flexibility.--The establishment of essential capabilities shall be sufficiently flexible to allow State and local government officials to set priorities based on local or regional needs, while reaching nationally determined preparedness levels within a specified time period.
``(3) Measurability.--The establishment of essential capabilities shall be designed to enable measurement of progress toward specific terrorism preparedness goals.
``(4) Comprehensiveness.--The determination of essential capabilities shall be made within the context of a comprehensive State emergency management system.
``(c) Factors To Be Considered.--In establishing essential capabilities for different types of communities under subsection (a)(1), the Secretary specifically shall consider the variables of threat, vulnerability, and consequences with respect to population (including transient commuting and tourist populations), areas of high population density, critical infrastructure, coastline, and international borders. Such consideration shall be based upon the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection of the threats of terrorism against the United States and the needs described in the national preparedness guidance and the target capabilities list.
``(d) Task Force on Essential Capabilities for First Responders.--
``(1) Establishment.--
``(A) In general.--To assist the Secretary in establishing essential capabilities under subsection (a)(1), the Secretary shall establish an advisory body under section 871(a) not later than 60 days after the date of enactment of this section, which shall be known as the Task Force on Essential Capabilities for First Responders.
``(B) Termination.--Notwithstanding section 871(b), the Task Force shall terminate 5 years after the date of its establishment, unless the Secretary makes a written determination to extend the Task Force to a specified date, which shall not be more than 5 years after the date on which such determination is made. The Secretary may make any number of subsequent extensions consistent with this subsection.
``(2) Public comment.--Not later than 90 days after the date of enactment of this section, the Task Force shall solicit comment on the establishment of essential capabilities for State and local government preparedness.
``(3) Report.--
``(A) In general.--Not later than 9 months after the establishment of the Task Force by the Secretary, and every 3 years thereafter, the Task Force shall submit to the Secretary a report on its recommendations for essential capabilities for preparedness for terrorism.
``(B) Contents.--Each report shall--
``(i) provide a thorough assessment of the national preparedness guidance and target capabilities list and recommendations for revisions;
``(ii) include a priority ranking of essential capabilities in order to provide guidance to the Secretary and to Congress on determining the appropriate allocation of, and funding levels for, first responder needs;
``(iii) set forth a methodology by which any State or local government will be able to determine the extent to which it possesses or has access to the essential capabilities that States and local governments having similar risks should obtain; and
``(iv) describe the availability of national voluntary consensus standards, and whether there is a need for new national voluntary consensus standards, with respect to first responder training and equipment.
``(C) Comprehensiveness.--The Task Force shall ensure that, when recommending essential capabilities for terrorism preparedness, such recommendations are made within the context of a comprehensive State emergency management system.
``(4) Membership.--
``(A) In general.--The Task Force shall consist of 25 members appointed by the Secretary, and shall, to the extent practicable, represent a geographic and substantive cross section of first responder disciplines from the State and local government levels, including as appropriate--
``(i) members selected from the emergency response field, including fire service and law enforcement, hazardous materials response, emergency medical services, and emergency management personnel;
``(ii) health scientists, emergency and inpatient medical providers, and public health professionals, including experts in emergency health care response to chemical, biological, radiological, and nuclear terrorism, and experts in providing mental health care during emergency response operations;
``(iii) experts from Federal, State, and local governments, and the private sector, representing standards-setting organizations, including representatives from the voluntary consensus codes and standards development community, particularly those with expertise in first responder disciplines; and
``(iv) State and local officials with expertise in terrorism preparedness and other emergency preparedness.
``(B) Coordination with the department of health and human services.--In the selection of members of the Task Force who are health professionals, including emergency medical professionals, the Secretary shall coordinate the selection with the Secretary of Health and Human Services.
``(C) Ex officio members.--The Secretary shall designate 1 or more officers of the Department to serve as ex officio members of the Task Force. One of the ex officio members from the Department shall be the designated officer of the Federal Government for purposes of subsection (e) of section 10 of the Federal Advisory Committee Act (5 U.S.C. App.).
``(5) Applicability of federal advisory committee act.--Notwithstanding section 871(a), the Federal Advisory Committee Act (5 U.S.C. App.), including subsections (a),
(b), and (d) of section 10 of the Federal Advisory Committee Act, and section 552b(c) of title 5, United States Code, shall apply to the Task Force.
``SEC. 1804. THREAT-BASED HOMELAND SECURITY GRANT PROGRAM.
``(a) Establishment.--
``(1) In general.--There is established the Threat-Based Homeland Security Grant Program, which includes--
``(A) formula-based grants for State and local programs administered by the Office of State and Local Government Coordination and Preparedness, including the State Homeland Security Grant Program, and the Law Enforcement Terrorism Prevention Program under section 1014 of the USA PATRIOT ACT
(42 U.S.C. 3714);
``(B) discretionary grants for State and local programs administered by the Office of State and Local Government Coordination and Preparedness for use in high-threat, high-density urban areas, including the Urban Area Security Initiative Program; and
``(C) any successor program to any program described in subparagraph (A) or (B).
``(2) Grants authorized.--The Secretary may award grants to States and eligible metropolitan regions under the Threat-Based Homeland Security Grant Program to enhance homeland security.
``(3) Relationship to other laws.--The Threat-Based Homeland Security Grant Program shall be deemed to satisfy the requirements of section 1014 of the USA PATRIOT ACT (42 U.S.C. 3714). The allocation of grants authorized under this section shall be governed by the terms of this section and not by any other provision of law.
``(b) Use of Funds.--
``(1) In general.--Grants awarded under this section--
``(A) shall be used to address homeland security matters related to acts of terrorism or catastrophic events, related capacity building, or otherwise addressing shortfalls in essential capabilities; and
``(B) shall not be used to supplant ongoing emergency response expenses or general protective measures.
``(2) Allowable uses.--Grants awarded under this section may be used to achieve essential capabilities through--
``(A) developing State or regional plans or risk assessments (including the development of the homeland security plan under subsection (e)) to respond to terrorist attacks or other catastrophic events and community wide plans for responding to terrorist or catastrophic events that are coordinated with the capacities of applicable Federal, State, and local governments, emergency response providers, and State and local government health agencies;
``(B) developing State, regional, or local mutual aid agreements;
``(C) purchasing, upgrading, storing, or maintaining equipment based on State and local needs as identified under a State homeland security plan, consistent with essential capability needs;
``(D) conducting exercises to strengthen emergency preparedness of State and local first responders including law enforcement, firefighting personnel, and emergency medical service workers, and other emergency responders identified in a State homeland security plan;
``(E) paying for expenses relating to--
``(i) overtime regarding training activities consistent with the goals outlined in a State homeland security plan; and
``(ii) as determined by the Secretary, overtime activities relating to an increase in the threat level under the Homeland Security Advisory System;
``(F) promoting training relating to homeland security preparedness including--
``(i) emergency preparedness responses to a use or threatened use of a weapon of mass destruction; and
``(ii) training in the use of equipment, including detection, monitoring, and decontamination equipment, and personal protective gear;
``(G) conducting any activity permitted under the Law Enforcement Terrorism Prevention Grant Program under section 1014 of the USA PATRIOT ACT (42 U.S.C. 3714); and
``(H) any other activity relating to achieving essential capabilities approved by the Secretary.
``(3) Prohibited uses.--Grants awarded under this section may not be used to construct buildings or other physical facilities, except those described in section 611 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196) and approved by the Secretary in the homeland security plan certified under subsection (e), or to acquire land.
``(c) Equipment Standards.--If an applicant for a grant under this section proposes to upgrade or purchase, with assistance provided under the grant, new equipment or systems that do not meet or exceed any applicable national voluntary consensus standards established by the Secretary under section 1807(a), the applicant shall include in the application an explanation of why such equipment or systems will serve the needs of the applicant better than equipment or systems that meet or exceed such standards.
``(d) Application.--
``(1) States.--
``(A) Submission.--A State may apply for a grant under this section by submitting to the Secretary an application detailing how requested funds would be used to achieve essential capabilities and containing such other information the Secretary may reasonably require.
``(B) Revisions.--A State may revise a homeland security plan certified under subsection (e) at the time an application is submitted under subparagraph (A) after receiving approval from the Secretary.
``(C) Approval.--The Secretary shall not award a grant under this section unless--
``(i) the State submitting the application has previously submitted a homeland security plan meeting the requirements of subsection (e); and
``(ii) the Secretary finds that the report submitted by the recipient under subsection (g) demonstrates significant progress toward achieving essential capabilities and meeting the goals in the homeland security plan of the State.
``(D) Release of funds.--The Secretary shall release grant funds to States with approved plans after the approval of an application submitted under this paragraph.
``(2) Eligible metropolitan regions.--
``(A) Submission.--An eligible metropolitan region may apply for a grant under this section by submitting an application through the Governor of each State within which any part of the relevant metropolitan region is located.
``(B) Contents.--An application under this paragraph shall include--
``(i) a description of how requested funds would be used to achieve essential capabilities;
``(ii) an explanation of how the proposed use of funds would be consistent with the homeland security plans of all relevant States;
``(iii) a geographic description of the eligible metropolitan region, including a list of all local governments participating in the application;
``(iv) an explanation of how the applicant intends to expend funds under the grant, to administer such funds, and to allocate such funds among the participating local governments;
``(v) if not all of the incorporated municipalities, counties, parishes, or Indian tribes in a metropolitan region are participating in the application, or if additional local governments outside the metropolitan region are participating, an explanation of why the eligible metropolitan region, as constituted, is an appropriate unit to receive grants to prevent, prepare for, and respond to acts of terrorism and other catastrophic events; and
``(vi) such other information the Secretary may reasonably require.
``(C) State review and submission.--
``(i) In general.--To ensure consistency with State homeland security plans, an eligible metropolitan region or a directly eligible tribe applying for a grant under this paragraph shall submit its application to each State within which any part of the eligible metropolitan region or directly eligible tribe is located for review before submission of such application to the Secretary.
``(ii) Deadline.--Not later than 30 days after receiving an application from an eligible metropolitan region or directly eligible tribe, each such State shall transmit the application to the Secretary.
``(iii) State disagreement.--If the Governor of any such State determines that a regional or tribal application is inconsistent with the State homeland security plan of that State, or otherwise does not support the application, the Governor shall--
``(I) notify the Secretary, in writing, of that fact; and
``(II) provide an explanation of the reasons for not supporting the application at the time of transmission of the application.
``(e) Homeland Security Plan.--
``(1) In general.--A State applying for a grant under this section shall have a 3-year State homeland security plan
(referred to in this subsection as the `plan') to respond to terrorist attacks and other catastrophic events that has been approved by the Secretary.
``(2) Contents.--The plan shall contain--
``(A) a 3-year strategy to--
``(i) ensure that the funds allocated to local governments are used exclusively to meet the needs and capabilities described under paragraph (3)(C);
``(ii) provide for interoperable communications;
``(iii) provide for local coordination of response and recovery efforts, including procedures for effective incident command in conformance with the National Incident Management System;
``(iv) ensure that first responders and other emergency personnel have adequate training and appropriate equipment for the threats that may occur;
``(v) provide for improved coordination and collaboration among law enforcement, fire, and public health authorities at Federal, State, local, and tribal government levels;
``(vi) coordinate emergency response and public health plans;
``(vii) mitigate risks to critical infrastructure that may be vulnerable to terrorist attacks;
``(viii) promote regional coordination among contiguous local governments;
``(ix) identify necessary protective measures by private owners of critical infrastructure;
``(x) promote orderly evacuation procedures when necessary;
``(xi) ensure support from the public health community for measures needed to prevent, detect, and treat bioterrorism, and radiological and chemical incidents;
``(xii) increase the number of local jurisdictions participating in local and statewide exercises; and
``(xiii) meet preparedness goals as determined by the Secretary;
``(B) objective measures for assessing the extent to which the goals and objectives set forth in paragraph (A) have been achieved;
``(C) priorities for the allocation of funding to local governments based on the risk, capabilities, and needs described under paragraph (3)(C); and
``(D) a report from the relevant advisory committee established under paragraph (3)(D) that documents the areas of support, disagreement, or recommended changes to the plan before its submission to the Secretary.
``(3) Development process.--
``(A) In general.--In preparing the plan under this section, a State shall--
``(i) provide for the consideration of all homeland security needs;
``(ii) follow a process that is continuing, inclusive, cooperative, and comprehensive, as appropriate; and
``(iii) coordinate the development of the plan with the homeland security planning activities of local governments.
``(B) Coordination with local planning activities.--The coordination under subparagraph (A)(iii) shall contain input from local stakeholders, including--
``(i) local officials, including representatives of rural, high-population, and high-threat jurisdictions and of Indian tribes;
``(ii) emergency response providers; and
``(iii) private sector companies that own or operate critical infrastructure.
``(C) Scope of planning.--Each State preparing a plan under this section shall, in conjunction with the local stakeholders under subparagraph (B), address all the information requested by the Secretary, and complete a comprehensive assessment of--
``(i) risk, including a--
``(I) vulnerability and consequence assessment;
``(II) threat assessment; and
``(III) public health assessment, in coordination with the State bioterrorism plan; and
``(ii) capabilities and needs, consistent with the essential capabilities established by the Secretary, including--
``(I) an evaluation of current preparedness, mitigation, and response capabilities based on such assessment mechanisms as shall be determined by the Secretary;
``(II) an evaluation of capabilities needed to address the risks described under clause (i); and
``(III) an assessment of the shortfall between the capabilities described under subclause (I) and the required capabilities described under subclause (II).
``(D) Advisory committee.--
``(i) In general.--Each State preparing a plan under this section shall establish an advisory committee to receive comments from the public and the local stakeholders identified under subparagraph (B).
``(ii) Composition.--
``(I) In general.--The Advisory Committee shall include--
``(aa) local officials; and
``(bb) emergency response providers, which shall include representatives of the fire service, law enforcement, emergency medical response, and emergency managers.
``(II) Geographic representation.--The members of the Advisory Committee shall be a representative group of individuals from the counties, cities, towns, and Indian tribes within the State, including representatives of rural, high-population, and high-threat jurisdictions.
``(4) Plan approval.--The Secretary shall approve a plan upon finding that the plan meets the requirements of--
``(A) paragraphs (2) and (3); and
``(B) any other criteria the Secretary determines necessary to the approval of a State plan.
``(5) Review of advisory committee report.--The Secretary shall review the recommendations of the advisory committee report incorporated into a plan under subsection (e)(2)(D), including any dissenting views submitted by advisory committee members, to ensure cooperation and coordination between State and local government jurisdictions in planning for the use of grant funds under this section.
``(f) Allocation.--
``(1) Sliding scale baseline distribution.--
``(A) States.--Each State whose application is approved under subsection (d) shall receive, for each fiscal year, the greater of--
``(i) 0.55 percent of the amounts appropriated for the Threat-Based Homeland Security Grant Program; or
``(ii) the State's sliding scale baseline allocation of 28.62 percent of the amounts appropriated for the Threat-Based Homeland Security Grant Program.
``(B) Other entities.--Notwithstanding subparagraph (A)--
``(i) the District of Columbia shall receive for each fiscal year 0.55 percent of the amounts appropriated for the Threat-Based Homeland Security Grant Program;
``(ii) the Commonwealth of Puerto Rico shall receive for each fiscal year 0.35 percent of the amounts appropriated for the Threat-Based Homeland Security Grant Program;
``(iii) American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands shall each receive 0.055 percent of the amounts appropriated for the Threat-Based Homeland Security Grant Program; and
``(iv) no possession of the United States shall receive a baseline distribution under subparagraph (A).
``(2) Urban area security initiative distribution.--
``(A) Distribution.--After the distribution under paragraph
(1), the Secretary may allocate up to 50 percent of the funds remaining to provide grants to eligible metropolitan regions and directly eligible tribes.
``(B) Criteria.--
``(i) In general.--The Secretary shall allocate the grants under this paragraph to assist eligible metropolitan regions and directly eligible tribes to achieve essential capabilities to effectively prevent, prepare for, and respond to acts of terrorism or other catastrophic events.
``(ii) Prioritization.--In prioritizing among the applications of eligible metropolitan regions and directly eligible tribes for such funds, the Secretary shall consider the relative threat, vulnerability, and consequences faced by an eligible metropolitan region or directly eligible tribe from a terrorist attack, including consideration of--
``(I) whether there has been a prior terrorist attack in the eligible metropolitan region or in the area in which the directly eligible tribe is located;
``(II) whether any part of the eligible metropolitan region or the area in which the directly eligible tribe is located has ever had a higher threat level under the Homeland Security Advisory System than the threat level for the United States as a whole;
``(III) the population of the eligible metropolitan region or directly eligible tribe, except that the Secretary shall not establish a minimum population requirement that would disqualify from consideration a locality that otherwise faces significant threats, vulnerabilities, or consequences from acts of terrorism;
``(IV) the population density of the eligible metropolitan region or the area in which the directly eligible tribe is located;
``(V) the degree of threat, vulnerability, and consequence to the eligible metropolitan region or directly eligible tribe related to critical infrastructure or key assets identified by the Secretary or State homeland security plan, including threats, vulnerabilities, and consequences from critical infrastructure in nearby jurisdictions;
``(VI) whether the eligible metropolitan region or the area in which the directly eligible tribe is located is at or near an international border;
``(VII) whether the eligible metropolitan region or the area in which the directly eligible tribe is located has a coastline bordering ocean or international waters;
``(VIII) threats, vulnerabilities, and consequences faced by the eligible metropolitan region or directly eligible tribe related to at-risk sites or activities in nearby jurisdictions, including the need to respond to terrorist attacks arising in those jurisdictions;
``(IX) the extent to which the eligible metropolitan region or directly eligible tribe has unmet essential capabilities;
``(X) the extent to which the application of the eligible metropolitan region includes all incorporated municipalities, counties, parishes, and Indian tribes within the relevant metropolitan region; and
``(XI) such other factors as are specified in writing by the Secretary.
``(C) Distribution of awards to metropolitan regions.--
``(i) In general.--If the Secretary approves the application of an eligible metropolitan region for a grant under this section, the Secretary shall distribute the regional grant funds to the State or States in which the eligible metropolitan region is located.
``(ii) State distribution of funds.--Each State shall provide the eligible metropolitan region not less than 80 percent of the grant funds. Any funds retained by a State shall be expended on items or services approved by the Secretary and that benefit the eligible metropolitan region.
``(iii) Multistate regions.--If parts of an eligible metropolitan region awarded a grant are located in 2 or more States, the Secretary shall distribute to each such State a portion of the grant funds in proportion to that State's share of the population of the eligible metropolitan region, unless the Governors of each State (or in the case of the District of Columbia, the Mayor) agree otherwise.
``(D) Directly eligible tribes.--
``(i) In general.--Notwithstanding subsection (a)(2), the Secretary may award grants to directly eligible tribes under the Threat-Based Homeland Security Grant Program as part of the Urban Area Security Initiative Distribution.
``(ii) Tribal applications.--A directly eligible tribe may apply for a grant under this section by submitting an application to the Secretary that includes the information required for an application by an eligible region under clauses (i), (ii), (iii), (iv), and (vi) of subsection
(d)(2)(B).
``(iii) Distribution of awards to directly eligible tribes.--If the Secretary approves the application of a directly eligible tribe for a grant under this section, the Secretary shall distribute the grant funds directly to the directly eligible tribe. The funds shall not be distributed to the State or States in which the directly eligible tribe is located.
``(iv) Tribal liaison.--A directly eligible tribe applying for a grant under this section shall designate a specific individual to serve as the tribal liaison who shall--
``(I) coordinate with Federal, State, local, regional, and private officials concerning terrorism preparedness;
``(II) develop a process for receiving input from Federal, State, local, regional, and private officials to assist in the development of the application of such tribe and to improve the tribe's access to grants; and
``(III) administer, in consultation with State, local, regional, and private officials, grants awarded to such tribe.
``(v) Tribes receiving direct grants.--An Indian tribe that receives a grant directly under this section is eligible to receive funds for other purposes under a grant from the State or States within the boundaries of which any part of such tribe is located, consistent with the homeland security plan of the State, as described in subsection (e).
``(E) Rule of construction.--Nothing in this section shall be construed to affect the existing authority of an Indian tribe that receives funds under this section.
``(3) Threat-based distribution to states.--
``(A) In general.--After the distribution of funds under paragraphs (1) and (2), the Secretary shall, from the remaining funds for the Threat-Based Homeland Security Grant Program, distribute amounts to each State to assist that State in achieving essential capabilities to effectively prevent, prepare for, and respond to acts of terrorism and other catastrophic events.
``(B) Prioritization.--In prioritizing among State applications for such funds, the Secretary shall--
``(i) consider the relative threat, vulnerability, and consequences faced by a State from a terrorist attack, including consideration of--
``(I) whether there has been a prior terrorist attack in a metropolitan region that is wholly or partly in the State, or in the State itself;
``(II) whether any part of the State has ever had a higher threat level under the Homeland Security Advisory System than the threat level for the United States as a whole;
``(III) the percent of a State's population residing in metropolitan statistical areas, as defined by the Office of Management and Budget;
``(IV) the degree of threat, vulnerability, and consequence related to critical infrastructure or key assets identified by the Secretary or State homeland security plan;
``(V) whether the State has an international border;
``(VI) whether the State has a coastline bordering ocean or international waters;
``(VII) threats, vulnerabilities, and consequences faced by a State related to at-risk sites or activities in adjacent States, including the need to respond to terrorist attacks arising in adjacent States;
``(VIII) the extent to which the State has unmet essential capabilities; and
``(IX) such other factors as are specified in writing by the Secretary; and
``(ii) balance the goal of ensuring that the essential capabilities of the highest-risk areas are achieved quickly and the goal of ensuring that basic levels of preparedness, as measured by the attainment of essential capabilities, are achieved nationwide.
``(C) Multi-state partnerships.--
``(i) In general.--Instead of, or in addition to, any application for funds under subparagraph (A), 2 or more States may submit applications under this paragraph for multi- State efforts to prevent, prepare for, or respond to acts of terrorism or other catastrophic events.
``(ii) Grantees.--Multi-State grants may be awarded to either--
``(I) an individual State acting on behalf of a consortium or partnership of States with the consent of all member States; or
``(II) a group of States applying as a consortium or partnership.
``(iii) Administration of grant.--If a group of States apply as a consortium or partnership such States shall submit to the Secretary at the time of application a plan describing--
``(I) the division of responsibilities for administering the grant; and
``(II) the distribution of funding among the various States and entities that are party to the application.
``(4) Funding for local governments and first responders.--
``(A) In general.--The Secretary shall require recipients of the sliding scale baseline distribution and the threat-based distribution to States to make available to local governments and emergency response providers, consistent with the applicable State homeland security plan, not less than 80 percent of the grant funds, the resources purchased with such grant funds, or a combination thereof, not later than 60 days after receiving grant funding.
``(B) Indian tribes.--States shall be responsible for allocating Federal resources to tribal communities in order to help those tribal communities achieve essential capabilities. Indian tribes shall be eligible for funding directly from the States, and shall not be required to seek funding from any local government.
``(C) Exception.--Subparagraph (A) shall not apply to the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands.
``(5) Supplement not supplant.--Amounts appropriated for grants under this subsection shall be used to supplement and not supplant other State and local government public funds obligated for the purposes provided under this title.
``(6) Law enforcement terrorism prevention program.--
``(A) In general.--The Secretary shall designate 25 percent of the amounts appropriated for the Threat-Based Homeland Security Grant Program to be used for the Law Enforcement Terrorism Prevention Program under section 1014 of the USA PATRIOT ACT (42 U.S.C. 3714) to provide grants to law enforcement agencies to enhance capabilities for terrorism prevention.
``(B) Use of funds.--Notwithstanding subsection (b), grants awarded under this paragraph may be used for--
``(i) information sharing to preempt terrorist attacks;
``(ii) target hardening to reduce the vulnerability of selected high value targets;
``(iii) threat recognition to recognize the potential or development of a threat;
``(iv) intervention activities to interdict terrorists before they can execute a threat;
``(v) interoperable communication systems;
``(vi) overtime expenses related to the homeland security plan approved by the Secretary, including overtime costs associated with providing enhanced law enforcement operations in support of Federal agencies for increased border security and border crossing enforcement; and
``(vii) any other terrorism prevention activity authorized by the Secretary.
``(g) Report on Homeland Security Spending.--Each recipient of a grant under this section shall annually submit a report to the Secretary that contains--
``(1) an accounting of the amount of State and local government funds spent on homeland security activities under the applicable State homeland security plan;
``(2) information regarding the use of grant funds by the State and by units of local government as required by the Secretary; and
``(3) progress of the recipient and subgrantees in achieving essential capabilities.
``(h) Accountability.--
``(1) Government accountability office access to information.--Each recipient of a grant under this section and the Department shall provide the Government Accountability Office with full access to information regarding the activities carried out under this section.
``(2) Audit.--Grant recipients that expend $500,000 or more in Federal funds during any fiscal year shall submit to the Secretary an organization wide financial and compliance audit report in conformance with the requirements of chapter 75 of title 31, United States Code.
``(i) Remedies for Non-Compliance.--
``(1) In general.--If the Secretary finds, after reasonable notice and an opportunity for a hearing, that a recipient of a grant under this section has failed to substantially comply with any provision of this section, or with any regulations or guidelines of the Department regarding eligible expenditures, the Secretary shall--
``(A) terminate any payment of grant funds to be made to the recipient under this section;
``(B) reduce the amount of payment of grant funds to the recipient by an amount equal to the amount of grants funds that were not expended by the recipient in accordance with this section; or
``(C) limit the use of grant funds received under this section to programs, projects, or activities not affected by the failure to comply.
``(2) Duration of penalty.--The Secretary shall apply an appropriate penalty under paragraph (1) until such time as the Secretary determines that the grant recipient is in full compliance with this section or with applicable guidelines or regulations of the Department.
``(3) Direct funding.--If a State fails to substantially comply with any provision of this section or with applicable guidelines or regulations of the Department, including failing to provide local governments with grant funds or resources purchased with grant funds in a timely fashion, a local government entitled to receive such grant funds or resources may petition the Secretary, at such time and in such manner as determined by the Secretary, to request that grant funds or resources be provided directly to the local government.
``(j) Reports to Congress.--The Secretary shall submit an annual report to Congress that provides--
``(1) the status of preparedness goals and objectives;
``(2) an evaluation of how States and local governments are making progress in achieving essential capabilities;
``(3) the total amount of resources provided to the States;
``(4) the total amount of resources provided to local governments and metropolitan regions; and
``(5) an accounting of how these resources were expended.
``(k) Authorization of Appropriations.--There are authorized to be appropriated to carry out this section--
``(1) $2,925,000,000 for fiscal year 2006;
``(2) $2,925,000,000 for fiscal year 2007; and
``(3) such sums as are necessary for each fiscal year thereafter.
``SEC. 1805. ELIMINATING HOMELAND SECURITY FRAUD, WASTE, AND
ABUSE.
``(a) Annual Government Accountability Office Audit and Report.--
``(1) Audit.--The Comptroller General of the United States shall conduct an annual audit of the Threat-Based Homeland Security Grant Program.
``(2) Report.--The Comptroller General of the United States shall provide a report to Congress on the results of the audit conducted under paragraph (1), which includes--
``(A) an analysis of whether the grant recipients allocated funding consistent with the State homeland security plan and the guidelines established by the Department; and
``(B) the amount of funding devoted to overtime and administrative expenses.
``(b) Reviews of Threat-Based Homeland Security Funding.--The Secretary shall conduct periodic reviews of grants made through the Threat Based Homeland Security Grant Program to ensure that recipients allocate funds consistent with the guidelines established by the Department.
``SEC. 1806. FLEXIBILITY IN UNSPENT HOMELAND SECURITY FUNDS.
``(a) Reallocation of Funds.--The Director of the Office for Domestic Preparedness shall allow any State to request approval to reallocate funds received pursuant to appropriations for the State Homeland Security Grant Program under Public Laws 10509277 (112 Stat. 2681 et seq.), 10609113
(113 Stat. 1501A093 et seq.), 10609553 (114 Stat. 2762A093 et seq.), 1070977 (115 Stat. 78 et seq.), or the Consolidated Appropriations Resolution of 2003 (Public Law 108097), among the 4 categories of equipment, training, exercises, and planning.
``(b) Approval of Reallocation Requests.--The Director shall approve reallocation requests under subsection (a) in accordance with the State homeland security plan and any other relevant factors that the Secretary determines to be necessary.
``(c) Limitation.--A waiver under this section shall not affect the obligation of a State to make available 80 percent of the amount appropriated for equipment to units of local government.
``SEC. 1807. NATIONAL STANDARDS FOR FIRST RESPONDER EQUIPMENT
AND TRAINING.
``(a) Equipment Standards.--
``(1) In general.--The Secretary, in consultation with the Under Secretaries for Emergency Preparedness and Response and Science and Technology (including a representative of the United States Fire Administration) and the Executive Director of the Office for State and Local Government Coordination and Preparedness, shall support the development of, promulgate, and update as necessary national voluntary consensus standards for the performance, use, and validation of first responder equipment for purposes of section 1804(c).
``(2) Standards.--Standards under this subsection shall--
``(A) be, to the maximum extent practicable, consistent with any existing voluntary consensus standards;
``(B) take into account, as appropriate, new types of terrorism threats that may not have been contemplated when such existing standards were developed;
``(C) be focused on maximizing interoperability, interchangeability, durability, flexibility, efficiency, efficacy, portability, sustainability, and safety; and
``(D) cover all appropriate uses of the equipment.
``(b) Training Standards.--
``(1) In general.--The Secretary, in consultation with the Under Secretaries for Emergency Preparedness and Response and Science and Technology (including a representative of the United States Fire Administration) and the Director of the Office for Domestic Preparedness, shall support the development of, promulgate, and regularly update as necessary national voluntary consensus standards for first responder training that will enable State and local government first responders to achieve optimal levels of terrorism preparedness as quickly as practicable.
``(c) Consultation With Standards Organizations.--In establishing national voluntary consensus standards for first responder equipment and training under this section, the Secretary shall consult with relevant public and private sector groups, including--
``(1) the National Institute of Standards and Technology;
``(2) the National Fire Protection Association;
``(3) the American National Standards Institute;
``(4) the National Institute of Justice;
``(5) the National Institute for Occupational Safety and Health; and
``(6) to the extent the Secretary considers appropriate, other national voluntary consensus standards development organizations, other interested Federal, State, and local agencies, and other interested persons.
``(d) Coordination With Secretary of HHS.--In establishing any national voluntary consensus standards under this section for first responder equipment or training that involve or relate to health professionals, including emergency medical professionals, the Secretary shall coordinate activities under this section with the Secretary of Health and Human Services.
``SEC. 1808. CERTIFICATION RELATIVE TO THE SCREENING OF
MUNICIPAL SOLID WASTE TRANSPORTED INTO THE
UNITED STATES.
``(a) Definition.--In this section, the term `municipal solid waste' includes sludge (as defined in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)).
``(b) Reports to Congress.--Not later than 90 days after the date of enactment of this section, the Bureau of Customs and Border Protection shall submit a report to Congress that--
``(1) indicates whether the methodologies and technologies used by the Bureau to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in municipal solid waste are as effective as the methodologies and technologies used by the Bureau to screen for such materials in other items of commerce entering into the United States by commercial motor vehicle transport; and
``(2) if the methodologies and technologies used to screen solid waste are less effective than those used to screen other commercial items, identifies the actions that the Bureau will take to achieve the same level of effectiveness in the screening of solid waste, including the need for additional screening technologies.
``(c) Impact on Commercial Motor Vehicles.--If the Bureau of Customs and Border Protection fails to fully implement the actions described in subsection (b)(2) before the earlier of 6 months after the date on which the report is due under subsection (b) or 6 months after the date on which such report is submitted, the Secretary shall deny entry into the United States of any commercial motor vehicle (as defined in section 31101(1) of title 49, United States Code) carrying municipal solid waste until the Secretary certifies to Congress that the methodologies and technologies used by the Bureau to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in such waste are as effective as the methodologies and technologies used by the Bureau to screen for such materials in other items of commerce entering into the United States by commercial motor vehicle transport.''.
(b) Threat-Based Homeland Security Grant Program.--
(1) Fiscal year 2006 administration.--Notwithstanding any provision of title III of this Act, section 1804 of the Homeland Security Act of 2002 (as added by this section) shall apply in the administration of the Threat-Based Homeland Security Grant Program established under section 1804 of that Act.
(2) Funding.--All funds appropriated under paragraphs (1) and (2) under the subheading ``state and local programs'' under the heading ``Office of State and Local Government Coordination and Preparedness'' under title III of this Act are appropriated for the Threat-Based Homeland Security Grant Program established under section 1804 of the Homeland Security Act of 2002 (as added by this section).
(c) Fire Services.--Section 2(6) of the Homeland Security Act of 2002 (6 U.S.C. 101(6)) is amended by inserting
``(including fire services)'' after ``local emergency public safety''.
(d) Technical and Conforming Amendment.--The table of contents in section 1(b) of the Homeland Security Act of 2002
(6 U.S.C. 101 note) is amended by adding at the end the following:
``TITLE XVIII--ESSENTIAL CAPABILITIES FOR FIRST RESPONDERS AND THREAT-
BASED HOMELAND SECURITY GRANT PROGRAM
``Sec. 1801. Definitions.
``Sec. 1802. Preservation of pre-9/11 grant programs for traditional first responder missions.
``Sec. 1803. Essential capabilities for first responders.
``Sec. 1804. Threat-Based Homeland Security Grant Program.
``Sec. 1805. Eliminating homeland security fraud, waste, and abuse.
``Sec. 1806. Flexibility in unspent homeland security funds.
``Sec. 1807. National standards for first responder equipment and training.
``Sec. 1808. Certification relative to the screening of municipal solid waste transported into the United States.''.
SEC. 605. COMMUNICATION SYSTEM GRANTS.
(a) In General.--
(1) Establishment.--There is established in the Department of Homeland Security an International Border Community Interoperable Communications Demonstration Project (referred to in this section as ``demonstration projects'').
(2) Minimum number of communities.--The Secretary of Homeland Security shall select no fewer than 6 communities to participate in a demonstration project.
(3) Location of communities.--No fewer than 3 of the communities selected under paragraph (2) shall be located on the northern border of the United States and no fewer than 3 of the communities selected under paragraph (2) shall be located on the southern border of the United States.
(b) Program Requirements.--The demonstration projects shall--
(1) address the interoperable communications needs of police officers, firefighters, emergency medical technicians, National Guard, and other emergency response providers, as defined in the Homeland Security Act of 2002;
(2) foster interoperable communications--
(A) among Federal, State, local, and tribal government agencies in the United States involved in preventing or responding to terrorist attacks or other catastrophic events; and
(B) with similar agencies in Canada or Mexico;
(3) identify common international cross-border frequencies for communications equipment, including radio or computer messaging equipment;
(4) foster the standardization of interoperable communications equipment;
(5) identify solutions that will facilitate communications interoperability across national borders expeditiously;
(6) ensure that emergency response providers can communicate with one another and the public at disaster sites or in the event of a terrorist attack or other catastrophic event;
(7) provide training and equipment to enable emergency response providers to deal with threats and contingencies in a variety of environments; and
(8) identify and secure appropriate joint-use equipment to ensure communications access.
(c) Distribution of Funds.--
(1) In general.--The Secretary of Homeland Security shall distribute funds under this section to each community participating in a demonstration project under this section through the State or States in which each community is located.
(2) Other participants .--A State receiving funds under this section shall make the funds available to the local governments and emergency response providers participating in a demonstration project selected by the Secretary of Homeland Security not later than 60 days after receiving funds.
(d) Reporting.--Not later than December 31, 2005, and each year thereafter in which funds are appropriated for a demonstration project, the Secretary of Homeland Security shall provide to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report on the demonstration projects under this section.
(e) Authorization of Appropriations.--There are authorized to be appropriated such sums as are necessary in each of fiscal years 2006, 2007, and 2008 to carry out this section.
______
SA 1143. Mr. GREGG submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 15, strike ``For grants,'' down through and including ``protection plan grants.'' on page 79, line 6, and insert the following:
For grants, contracts, cooperative agreements, and other activities, including grants to State and local governments for terrorism prevention activities, notwithstanding any other provision of law, $2,694,300,000, which shall be allocated as follows:
(1) $1,418,000,000 for State and local grants, of which
$425,000,000 shall be allocated such that each State and territory shall receive the same dollar amount for the State minimum as was distributed in fiscal year 2005 for formula-based grants: Provided, That the balance shall be allocated by the Secretary of Homeland Security to States, urban areas, or regions based on risks; threats; vulnerabilities; and unmet essential capabilities pursuant to Homeland Security Presidential Directive 8 (HSPD-8).
(2) $400,000,000 for law enforcement terrorism prevention grants, of which $155,000,000 shall be allocated such that each State and territory shall receive the same dollar amount for the State minimum as was distributed in fiscal year 2005 for law enforcement terrorism prevention grants: Provided, That the balance shall be allocated by the Secretary to States based on risks; threats; vulnerabilities; and unmet essential capabilities pursuant to HSPD-8.
(3) $465,000,000 for discretionary transportation and infrastructure grants, as determined by the Secretary, which shall be based on risks, threats, and vulnerabilities, of which--
(A) $200,000,000 shall be for port security grants pursuant to the purposes of 46 United States Code 70107(a) through
(h), which shall be awarded based on threat notwithstanding subsection (a), for eligible costs as defined in subsections
(b)(2)-(4);
(B) $5,000,000 shall be for trucking industry security grants;
(C) $10,000,000 shall be for intercity bus security grants;
(D) $200,000,000 shall be for intercity passenger rail transportation (as defined in section 24102 of title 49, United States Code), freight rail, and transit security grants; and
(E) $50,000,000 shall be for buffer zone protection plan grants.
______
SA 1144. Mr. MARTINEZ submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. (a) Notwithstanding any other provision of law
(including any provision of title III), any grant from funds under the subheading ``state and local programs'' under the heading ``Office of State and Local Government Coordination and Preparedness'' under title III shall be awarded based strictly on an assessment of risk, threat, and vulnerability to our Nation's ports, critical infrastructure, financial centers, commercial centers, large centers of commuter populations, nationally significant tourist destinations, and areas of national significance determined by the Secretary of Homeland Security.
(b) This section shall not be construed to affect any authority to award grants under a Federal grant program described under subsection (a), which existed on September 10, 2001, to enhance traditional missions of State and local law enforcement, firefighters, ports, emergency medical services, emergency disaster relief, or public health missions.
______
SA 1145. Mr. BUNNING submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. . FEDERAL FLIGHT DECK OFFICER PROGRAM. No funds appropriated or otherwise made available by this Act shall be used to enforce any policy requiring a Federal Flight Deck Officer to transport or store a firearm in a locked box or other container.
____
SA 1146. Mr. BUNNING submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. . FEDERAL FLIGHT DECK OFFICERS.
(a) Training and Requalification Training.--Section 44921
(c) of title 49, United States Code, is amended by adding at the end the following:
``(3) Location of training--
``(A) Study.--The Secretary shall conduct a study of the feasibility of conducting Federal flight deck officer initial training at facilities located throughout the United States, including an analysis of any associated programmatic impacts to the Federal flight deck officer program.
``(B) Report.--Not later than 180 days after the date of enactment of this paragraph, the Secretary shall transmit to Congress a report on the results of the study.
``(4) Dates of training.--The Secretary shall ensure that a pilot who is eligible to receive Federal flight deck officer training is offered, to the maximum extent practicable, a choice of training dates and is provided at least 30 days advance notice of the dates.
``(5) Travel to training facilities.--The Secretary shall establish a program to improve travel access to Federal flight deck officer training facilities through the use of charter flights or improved scheduled air carrier service.
``(6) Requalification and recurrent training.--
``(A) Standards.--The Secretary shall establish qualification standards for facilities where Federal flight deck officers can receive requalification and recurrent training.
``(B) Locations.--The Secretary shall provide for requalification and recurrent training at geographically diverse facilities, including Federal, State, and local law enforcement and government facilities, and private training facilities that meet the qualification standards established under subparagraph (A).
``(7) Costs of training.--
``(A) In general.--The Secretary shall provide Federal flight deck officer training, requalification training, and recurrent training to eligible pilots at no cost to the pilots or the air carriers that employ the pilots.
``(B) Transportation and expenses.--The Secretary may provide travel expenses to a pilot receiving Federal flight deck officer training, requalification training, or recurrent training.
``(8) Communications.--Not later than 180 days after the date of enactment of this paragraph, the Secretary shall establish a secure means for personnel of the Transportation Security Administration to communicate with Federal flight deck officers, and for Federal flight deck officers to communicate with each other, in support of the mission of such officers. Such means of communication may include a secure Internet website.
``(9) Issuance of badges.--Not later than 180 days after the date of enactment of this paragraph, the Secretary shall issue badges to Federal flight deck officers.''.
(b) Revocation of Deputization of Pilot as Federal Flight Deck Officer.--Section 44921(d)(4) of title 49, United States Code, is amended to read as follows:
``(4) Revocation.--
``(A) Orders.--The Assistant Secretary of Homeland Security
(Transportation Security Administration) may issue, for good cause, an order revoking the deputization of a Federal flight deck officer under this section. The order shall include the specific reasons for the revocation.
``(B) Hearings.--An individual who is adversely affected by an order of the Assistant Secretary under subparagraph (A) is entitled to a hearing on the record. When conducting a hearing under this section, the administrative law judge shall not be bound by findings of fact or interpretations of laws and regulations of the Assistant Secretary.
``(C) Appeals.--An appeal from a decision of an administrative law judge as a result of a hearing under subparagraph (B) shall be made to the Secretary or the Secretary's designee.
``(D) Judicial review of a final order.--The determination and order of the Secretary revoking the deputization of a Federal flight deck officer under this section shall be final and conclusive unless the individual against whom such an order is issued files an application for judicial review under subchapter II of chapter 5 of title 5 (popularly known as the Administrative Procedure Act) within 60 days of entry of such order in the appropriate United States court of appeals.''.
(c) Federal Flight Deck Officer Firearm Carriage Pilot Program.--Section 44921(f) of title 49, United States Code, is amended by adding at the end the following:
``(4) Pilot Program.--
``(A) In general.--Not later than 90 days after the date of enactment of this paragraph, the Secretary shall implement a pilot program to allow pilots participating in the Federal flight deck officer program to transport their firearms on their persons. The Secretary may prescribe any training, equipment, or procedures that the Secretary determines necessary to ensure safety and maximize weapon retention.
``(B) Review.--Not later than I year after the date of initiation of the pilot program, the Secretary shall conduct a review of the safety record of the pilot program and transmit a report on the results of the review to Congress.
``(C) Option.--If the Secretary as part of the review under subparagraph (B) determines that the safety level obtained under the pilot program is comparable to the safety level determined under existing methods of pilots carrying firearms on aircraft, the Secretary shall allow all pilots participating in the Federal flight deck officer program the option of carrying their firearm on their person subject to such requirements as the Secretary determines appropriate.''.
(d) Federal Flight Deck Officers on International Flights.--
(1) Agreements with foreign governments.--The President is encouraged to pursue aggressively agreements with foreign governments to allow maximum deployment of Federal flight deck officers on international flights.
(2) Report.--Not later than 180 days after the date of enactment of this Act, the President (or the President's designee) shall submit to Congress a report on the status of the President's efforts to allow maximum deployment of Federal flight deck officers on international flights.
(e) References to Under Secretary.--Section 44921 of title 49, United States Code, is amended--
(1) in subsection ( a) by striking ``Under Secretary of Transportation for Security'' and inserting ``Secretary of Homeland Security'';
(2) by striking ``Under Secretary'' each place it appears and inserting ``Secretary''; and (3) by striking ``Under Secretary's'' each place it appears and inserting
``Secretary's''.
______
SA 1147. Mr. ENSIGN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 69, line 12, after ``presence:'', insert the following: ``Provided further, That of the amount made available under this heading, an amount shall be available for the Transportation Security Administration to develop a plan to research, test, and potentially implement multi compartment bins to screen passenger belongings at security checkpoints: ''
______
SA 1148. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE--RAIL SECURITY
SECTION _01. SHORT TITLE.
This title may be cited as the ``Rail Security Act of 2005''.
SEC. _02. RAIL TRANSPORTATION SECURITY RISK ASSESSMENT.
(a) In General.--
(1) Vulnerability assessment.--The Under Secretary of Homeland Security for Border and Transportation Security, in consultation with the Secretary of Transportation, shall complete a vulnerability assessment of freight and passenger rail transportation (encompassing railroads, as that term is defined in section 20102(1) of title 49, United States Code). The assessment shall include--
(A) identification and evaluation of critical assets and infrastructures;
(B) identification of threats to those assets and infrastructures;
(C) identification of vulnerabilities that are specific to the transportation of hazardous materials via railroad; and
(D) identification of security weaknesses in passenger and cargo security, transportation infrastructure, protection systems, procedural policies, communications systems, employee training, emergency response planning, and any other area identified by the assessment.
(2) Existing private and public sector efforts.--The assessment shall take into account actions taken or planned by both public and private entities to address identified security issues and assess the effective integration of such actions.
(3) Recommendations.--Based on the assessment conducted under paragraph (1), the Under Secretary, in consultation with the Secretary of Transportation, shall develop prioritized recommendations for improving rail security, including any recommendations the Under Secretary has for--
(A) improving the security of rail tunnels, rail bridges, rail switching and car storage areas, other rail infrastructure and facilities, information systems, and other areas identified by the Under Secretary as posing significant rail-related risks to public safety and the movement of interstate commerce, taking into account the impact that any proposed security measure might have on the provision of rail service;
(B) deploying equipment to detect explosives and hazardous chemical, biological, and radioactive substances, and any appropriate countermeasures;
(C) training employees in terrorism prevention, passenger evacuation, and response activities;
(D) conducting public outreach campaigns on passenger railroads;
(E) deploying surveillance equipment; and
(F) identifying the immediate and long-term costs of measures that may be required to address those risks.
(4) Plans.--The report required by subsection (c) shall include--
(A) a plan, developed in consultation with the freight and intercity passenger railroads, and State and local governments, for the government to provide increased security support at high or severe threat levels of alert; and
(B) a plan for coordinating rail security initiatives undertaken by the public and private sectors.
(b) Consultation; Use of Existing Resources.--In carrying out the assessment required by subsection (a), the Under Secretary of Homeland Security for Border and Transportation Security shall consult with rail management, rail labor, owners or lessors of rail cars used to transport hazardous materials, first responders, shippers of hazardous materials, public safety officials (including those within other agencies and offices within the Department of Homeland Security), and other relevant parties.
(c) Report.--
(1) Contents.--Within 180 days after the date of enactment of this Act, the Under Secretary shall transmit to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure a report containing the assessment and prioritized recommendations required by subsection (a) and an estimate of the cost to implement such recommendations.
(2) Format.--The Under Secretary may submit the report in both classified and redacted formats if the Under Secretary determines that such action is appropriate or necessary.
(d) 2-Year Updates.--The Under Secretary, in consultation with the Secretary of Transportation, shall update the assessment and recommendations every 2 years and transmit a report, which may be submitted in both classified and redacted formats, to the Committees named in subsection
(c)(1), containing the updated assessment and recommendations.
(e) Authorization of Appropriations.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $5,000,000 for fiscal year 2006 for the purpose of carrying out this section.
SEC. _03. RAIL SECURITY.
(a) Rail Police Officers.--Section 28101 of title 49, United States Code, is amended by striking ``the rail carrier'' each place it appears and inserting ``any rail carrier''.
(b) Review of Rail Regulations.--Within 1 year after the date of enactment of this Act, the Secretary of Transportation, in consultation with the Under Secretary of Homeland Security for Border and Transportation Security, shall review existing rail regulations of the Department of Transportation for the purpose of identifying areas in which those regulations need to be revised to improve rail security.
SEC. _04. STUDY OF FOREIGN RAIL TRANSPORT SECURITY PROGRAMS.
(a) Requirement for Study.--Within 1 year after the date of enactment of the Rail Security Act of 2005, the Comptroller General shall complete a study of the rail passenger transportation security programs that are carried out for rail transportation systems in Japan, member nations of the European Union, and other foreign countries.
(b) Purpose.--The purpose of the study shall be to identify effective rail transportation security measures that are in use in foreign rail transportation systems, including innovative measures and screening procedures determined effective.
(c) Report.--The Comptroller General shall submit a report on the results of the study to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure. The report shall include the Comptroller General's assessment regarding whether it is feasible to implement within the United States any of the same or similar security measures that are determined effective under the study.
SEC. _05. PASSENGER, BAGGAGE, AND CARGO SCREENING.
(a) Requirement for Study and Report.--The Under Secretary of Homeland Security for Border and Transportation Security, in cooperation with the Secretary of Transportation, shall--
(1) analyze the cost and feasibility of requiring security screening for passengers, baggage, and [mail] cargo on passenger trains; and
(2) report the results of the study, together with any recommendations that the Under Secretary may have for implementing a rail security screening program to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure within 1 year after the date of enactment of this Act.
(b) Pilot Program.--As part of the study under subsection
(a), the Under Secretary shall complete a pilot program of random security screening of passengers and baggage at 5 passenger rail stations served by Amtrak selected by the Under Secretary. In conducting the pilot program, the Under Secretary shall--
(1) test a wide range of explosives detection technologies, devices and methods;
(2) require that intercity rail passengers produce government-issued photographic identification which matches the name on the passenger's tickets prior to boarding trains; and
(3) attempt to give preference to locations at the highest risk of terrorist attack and achieve a distribution of participating train stations in terms of geographic location, size, passenger volume, and whether the station is used by commuter rail passengers as well as Amtrak passengers.
(c) Authorization of Appropriations.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security to carry out this section $5,000,000 for fiscal year 2006.
SEC. _06. CERTAIN PERSONNEL LIMITATIONS NOT TO APPLY.
Any statutory limitation on the number of employees in the Transportation Security Administration of the Department of Transportation, before or after its transfer to the Department of Homeland Security, does not apply to the extent that any such employees are responsible for implementing the provisions of this Act.
SEC. _07. FIRE AND LIFE-SAFETY IMPROVEMENTS.
(a) Life-safety Needs.--The Secretary of Transportation is authorized to make grants to Amtrak for the purpose of making fire and life-safety improvements to Amtrak tunnels on the Northeast Corridor in New York, NY, Baltimore, MD, and Washington, DC.
(b) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary of Transportation for the purposes of carrying out subsection (a) the following amounts:
(1) For the 6 New York tunnels to provide ventilation, electrical, and fire safety technology upgrades, emergency communication and lighting systems, and emergency access and egress for passengers--
(A) $100,000,000 for fiscal year 2006;
(B) $100,000,000 for fiscal year 2007;
(C) $100,000,000 for fiscal year 2008;
(D) $100,000,000 for fiscal year 2009; and
(E) $170,000,000 for fiscal year 2010.
(2) For the Baltimore & Potomac tunnel and the Union tunnel, together, to provide adequate drainage, ventilation, communication, lighting, and passenger egress upgrades--
(A) $10,000,000 for fiscal year 2006;
(B) $10,000,000 for fiscal year 2007;
(C) $10,000,000 for fiscal year 2008;
(D) $10,000,000 for fiscal year 2009; and
(E) $17,000,000 for fiscal year 2010.
(3) For the Washington, DC Union Station tunnels to improve ventilation, communication, lighting, and passenger egress upgrades--
(A) $8,000,000 for fiscal year 2006;
(B) $8,000,000 for fiscal year 2007;
(C) $8,000,000 for fiscal year 2008;
(D) $8,000,000 for fiscal year 2009; and
(E) $8,000,000 for fiscal year 2010.
(c) Infrastructure Upgrades.--There are authorized to be appropriated to the Secretary of Transportation for fiscal year 2006, $3,000,000 for the preliminary design of options for a new tunnel on a different alignment to augment the capacity of the existing Baltimore tunnels.
(d) Availability of Appropriated Funds.--Amounts appropriated pursuant to this section shall remain available until expended.
(e) Plans Required.--The Secretary may not make amounts available to Amtrak for obligation or expenditure under subsection (a)--
(1) until Amtrak has submitted to the Secretary, and the Secretary has approved, an engineering and financial plan for such projects; and
(2) unless, for each project funded pursuant to this section, the Secretary has approved a project management plan prepared by Amtrak addressing appropriate project budget, construction schedule, recipient staff organization, document control and record keeping, change order procedure, quality control and assurance, periodic plan updates, periodic status reports, and such other matters the Secretary deems appropriate.
(f) Review of Plans.--The Secretary of Transportation shall complete the review of the plans required by paragraphs (1) and (2) of subsection (e) and approve or disapprove the plans within 45 days after the date on which each such plan is submitted by Amtrak. If the Secretary determines that a plan is incomplete or deficient, the Secretary shall notify Amtrak of the incomplete items or deficiencies and Amtrak shall, within 30 days after receiving the Secretary's notification, submit a modified plan for the Secretary's review. Within 15 days after receiving additional information on items previously included in the plan, and within 45 days after receiving items newly included in a modified plan, the Secretary shall either approve the modified plan, or, if the Secretary finds the plan is still incomplete or deficient, the Secretary shall identify in writing to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure the portions of the plan the Secretary finds incomplete or deficient, approve all other portions of the plan, obligate the funds associated with those other portions, and execute an agreement with Amtrak within 15 days thereafter on a process for resolving the remaining portions of the plan.
(g) Financial Contribution From Other Tunnel Users.--The Secretary shall, taking into account the need for the timely completion of all portions of the tunnel projects described in subsection (a)--
(1) consider the extent to which rail carriers other than Amtrak use the tunnels;
(2) consider the feasibility of seeking a financial contribution from those other rail carriers toward the costs of the projects; and
(3) obtain financial contributions or commitments from such other rail carriers at levels reflecting the extent of their use of the tunnels, if feasible.
SEC. _08. MEMORANDUM OF AGREEMENT.
(a) Memorandum of Agreement.--Within 60 days after the date of enactment of this Act, the Secretary of Transportation and the Secretary of Homeland Security shall execute a memorandum of agreement governing the roles and responsibilities of the Department of Transportation and the Department of Homeland Security, respectively, in addressing railroad transportation security matters, including the processes the departments will follow to promote communications, efficiency, and nonduplication of effort.
(b) Rail Safety Regulations.--Section 20103(a) of title 49, United States Code, is amended by striking ``safety'' the first place it appears, and inserting ``safety, including security,''.
SEC. _09. AMTRAK PLAN TO ASSIST FAMILIES OF PASSENGERS
INVOLVED IN RAIL PASSENGER ACCIDENTS.
(a) In General.--Chapter 243 of title 49, United States Code, is amended by adding at the end the following:
``Sec. 24316. Plans to address needs of families of passengers involved in rail passenger accidents
``(a) Submission of Plan.--Not later than 6 months after the date of the enactment of the Rail Security Act of 2005, Amtrak shall submit to the Chairman of the National Transportation Safety Board and the Secretary of Transportation a plan for addressing the needs of the families of passengers involved in any rail passenger accident involving an Amtrak intercity train and resulting in a loss of life.
``(b) Contents of Plans.--The plan to be submitted by Amtrak under subsection (a) shall include, at a minimum, the following:
``(1) A process by which Amtrak will maintain and provide to the National Transportation Safety Board and the Secretary of Transportation, immediately upon request, a list (which is based on the best available information at the time of the request) of the names of the passengers aboard the train
(whether or not such names have been verified), and will periodically update the list. The plan shall include a procedure, with respect to unreserved trains and passengers not holding reservations on other trains, for Amtrak to use reasonable efforts to ascertain the number and names of passengers aboard a train involved in an accident.
``(2) A plan for creating and publicizing a reliable, toll-free telephone number within 4 hours after such an accident occurs, and for providing staff, to handle calls from the families of the passengers.
``(3) A process for notifying the families of the passengers, before providing any public notice of the names of the passengers, by suitably trained individuals.
``(4) A process for providing the notice described in paragraph (2) to the family of a passenger as soon as Amtrak has verified that the passenger was aboard the train (whether or not the names of all of the passengers have been verified).
``(5) A process by which the family of each passenger will be consulted about the disposition of all remains and personal effects of the passenger within Amtrak's control; that any possession of the passenger within Amtrak's control will be returned to the family unless the possession is needed for the accident investigation or any criminal investigation; and that any unclaimed possession of a passenger within Amtrak's control will be retained by the rail passenger carrier for at least 18 months.
``(6) A process by which the treatment of the families of nonrevenue passengers will be the same as the treatment of the families of revenue passengers.
``(7) An assurance that Amtrak will provide adequate training to its employees and agents to meet the needs of survivors and family members following an accident.
``(c) Use of Information.--The National Transportation Safety Board, the Secretary of Transportation, and Amtrak may not release to any person information on a list obtained under subsection (b)(1) but may provide information on the list about a passenger to the family of the passenger to the extent that the Board or Amtrak considers appropriate.
``(d) Limitation on Liability.--Amtrak shall not be liable for damages in any action brought in a Federal or State court arising out of the performance of Amtrak in preparing or providing a passenger list, or in providing information concerning a train reservation, pursuant to a plan submitted by Amtrak under subsection (b), unless such liability was caused by Amtrak's conduct.
``(e) Limitation on Statutory Construction.--Nothing in this section may be construed as limiting the actions that Amtrak may take, or the obligations that Amtrak may have, in providing assistance to the families of passengers involved in a rail passenger accident.
``(f) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary of Transportation for the use of Amtrak $500,000 for fiscal year 2006 to carry out this section. Amounts appropriated pursuant to this subsection shall remain available until expended.''.
(b) Conforming Amendment.--The chapter analysis for chapter 243 of title 49, United States Code, is amended by adding at the end the following:
``Sec.
``24316.Plan to assist families of passengers involved in rail passenger accidents.''.
SEC. _10. SYSTEMWIDE AMTRAK SECURITY UPGRADES.
(a) In General.--Subject to subsection (c), the Under Secretary of Homeland Security for Border and Transportation Security is authorized to make grants, through the Secretary of Transportation, to Amtrak--
(1) to secure major tunnel access points and ensure tunnel integrity in New York, Baltimore, and Washington, DC;
(2) to secure Amtrak trains;
(3) to secure Amtrak stations;
(4) to obtain a watch list identification system approved by the Under Secretary;
(5) to obtain train tracking and interoperable communications systems that are coordinated to the maximum extent possible;
(6) to hire additional police and security officers, including canine units; and
(7) to expand emergency preparedness efforts.
(b) Conditions.--The Secretary of Transportation may not disburse funds to Amtrak under subsection (a) unless the projects are contained in a systemwide security plan approved by the Under Secretary, in consultation with the Secretary of Transportation, and, for capital projects, meet the requirements of section _07(e)(2). The plan shall include appropriate measures to address security awareness, emergency response, and passenger evacuation training.
(c) Equitable Geographic Allocation.--The Under Secretary shall ensure that, subject to meeting the highest security needs on Amtrak's entire system, stations and facilities located outside of the Northeast Corridor receive an equitable share of the security funds authorized by this section.
(d) Availability of Funds.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $63,500,000 for fiscal year 2006 for the purposes of carrying out this section. Amounts appropriated pursuant to this subsection shall remain available until expended.
SEC. _11. FREIGHT AND PASSENGER RAIL SECURITY UPGRADES.
(a) Security Improvement Grants.--The Under Secretary of Homeland Security for Border and Transportation Security is authorized to make grants to freight railroads, the Alaska Railroad, hazardous materials shippers, owners of rail cars used in the transportation of hazardous materials, universities, colleges and research centers, State and local governments (for passenger facilities and infrastructure not owned by Amtrak), and, through the Secretary of Transportation, to Amtrak, for full or partial reimbursement of costs incurred in the conduct of activities to prevent or respond to acts of terrorism, sabotage, or other intercity passenger rail and freight rail security threats, including--
(1) security and redundancy for critical communications, computer, and train control systems essential for secure rail operations;
(2) accommodation of cargo or passenger screening equipment at the United States-Mexico border or the United States-Canada border;
(3) the security of hazardous material transportation by rail;
(4) secure intercity passenger rail stations, trains, and infrastructure;
(5) structural modification or replacement of rail cars transporting high hazard materials to improve their resistance to acts of terrorism;
(6) employee security awareness, preparedness, passenger evacuation, and emergency response training;
(7) public security awareness campaigns for passenger train operations;
(8) the sharing of intelligence and information about security threats;
(9) to obtain train tracking and interoperable communications systems that are coordinated to the maximum extent possible;
(10) to hire additional police and security officers, including canine units; and
(11) other improvements recommended by the report required by section _02, including infrastructure, facilities, and equipment upgrades.
(b) Accountability.--The Under Secretary shall adopt necessary procedures, including audits, to ensure that grants made under this section are expended in accordance with the purposes of this title and the priorities and other criteria developed by the Under Secretary.
(c) Equitable Allocation.--The Under Secretary shall equitably distribute the funds authorized by this section, taking into account geographic location, and shall encourage non-Federal financial participation in awarding grants. With respect to grants for passenger rail security, the Under Secretary shall also take into account passenger volume and whether a station is used by commuter rail passengers as well as intercity rail passengers.
(d) Conditions.--The Secretary of Transportation may not disburse funds to Amtrak under subsection (a) unless Amtrak meets the conditions set forth in section _010(b).
(e) Allocation Between Railroads and Others.--Unless as a result of the assessment required by section _02 the Under Secretary of Homeland Security for Border and Transportation Security determines that critical rail transportation security needs require reimbursement in greater amounts to any eligible entity, no grants under this section may be made--
(1) in excess of $65,000,000 to Amtrak; or
(2) in excess of $100,000,000 for the purposes described in paragraphs (3) and (5) of subsection (a).
(f) Authorization of Appropriations.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $350,000,000 for fiscal year 2006 to carry out the purposes of this section. Amounts appropriated pursuant to this subsection shall remain available until expended.
(g) High Hazard Materials Defined.--In this section, the term ``high hazard materials'' means poison inhalation hazard materials, Class 2.3 gases, Class 6.1 materials, and anhydrous ammonia.
SEC. _12. OVERSIGHT AND GRANT PROCEDURES.
(a) Secretarial Oversight.--The Secretary of Transportation may use up to 0.5 percent of amounts made available to Amtrak for capital projects under the Rail Security Act of 2005 to enter into contracts for the review of proposed capital projects and related program management plans and to oversee construction of such projects.
(b) Use of Funds.--The Secretary may use amounts available under subsection (a) of this subsection to make contracts for safety, procurement, management, and financial compliance reviews and audits of a recipient of amounts under subsection
(a).
(c) Procedures for Grant Award.--The Under Secretary shall prescribe procedures and schedules for the awarding of grants under this Act, including application and qualification procedures (including a requirement that the applicant have a security plan), and a record of decision on applicant eligibility. The procedures shall include the execution of a grant agreement between the grant recipient and the Under Secretary. The Under Secretary shall issue a final rule establishing the procedures not later than 90 days after the date of enactment of this Act.
SEC. _13. RAIL SECURITY RESEARCH AND DEVELOPMENT.
(a) Establishment of Research and Development Program.--The Under Secretary of Homeland Security for Border and Transportation Security, in conjunction with the Secretary of Transportation, shall carry out a research and development program for the purpose of improving freight and intercity passenger rail security that may include research and development projects to--
(1) reduce the vulnerability of passenger trains, stations, and equipment to explosives and hazardous chemical, biological, and radioactive substances;
(2) test new emergency response techniques and technologies;
(3) develop improved freight technologies, including--
(A) technologies for sealing rail cars;
(B) automatic inspection of rail cars;
(C) communication-based train controls; and
(D) emergency response training;
(4) test wayside detectors that can detect tampering with railroad equipment;
(5) support enhanced security for the transportation of hazardous materials by rail, including--
(A) technologies to detect a breach in a tank car and transmit information about the integrity of tank cars to the train crew;
(B) research to improve tank car integrity, with a focus on tank cars that carry high hazard materials (as defined in section _011(g));
(C) techniques to transfer hazardous materials from rail cars that are damaged or otherwise represent an unreasonable risk to human life or public; and
(6) other projects recommended in the report required by section _02.
(b) Coordination With Other Research Initiatives.--The Under Secretary of Homeland Security for Border and Transportation Security shall ensure that the research and development program authorized by this section is coordinated with other research and development initiatives at the Department and the Department of Transportation. The Under Secretary of Homeland Security for Border and Transportation Security shall carry out any research and development project authorized by this section through a reimbursable agreement with the Secretary of Transportation if the Secretary of Transportation--
(1) is already sponsoring a research and development project in a similar area; or
(2) has a unique facility or capability that would be useful in carrying out the project.
(c) Accountability.--The Under Secretary shall adopt necessary procedures, including audits, to ensure that grants made under this section are expended in accordance with the purposes of this title and the priorities and other criteria developed by the Under Secretary.
(d) Authorization of Appropriations.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $50,000,000 in each of fiscal years 2006 and 2007 to carry out the purposes of this section. Amounts appropriated pursuant to this subsection shall remain available until expended.
SEC. _14. WELDED RAIL AND TANK CAR SAFETY IMPROVEMENTS.
(a) Track Standards.--Within 90 days after the date of enactment of this Act, the Federal Railroad Administration shall--
(1) require each track owner using continuous welded rail track to include procedures (in its procedures filed with the Administration pursuant to section 213.119 of title 49, Code of Federal Regulations) to improve the identification of cracks in rail joint bars;
(2) instruct Administration track inspectors to obtain copies of the most recent continuous welded rail programs of each railroad within the inspectors' areas of responsibility and require that inspectors use those programs when conducting track inspections; and
(3) establish a program to periodically review continuous welded rail joint bar inspection data from railroads and Administration track inspectors and, whenever the Administration determines that it is necessary or appropriate, require railroads to increase the frequency or improve the methods of inspection of joint bars in continuous welded rail.
(b) Tank Car Standards.--The Federal Railroad Administration shall--
(1) within 1 year after the date of enactment of this Act, validate the predictive model it is developing to quantify the relevant dynamic forces acting on railroad tank cars under accident conditions; and
(2) within 18 months after the date of enactment of this Act, initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars.
(c) Older Tank Car Impact Resistance Analysis and Report.--Within 2 years after the date of enactment of this Act, the Federal Railroad Administration shall--
(1) conduct a comprehensive analysis to determine the impact resistance of the steels in the shells of pressure tank cars constructed before 1989; and
(2) transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure with recommendations for measures to eliminate or mitigate the risk of catastrophic failure.
SEC. _15. NORTHERN BORDER RAIL PASSENGER REPORT.
Within 180 days after the date of enactment of this Act, the Under Secretary of Homeland Security for Border and Transportation Security, in consultation with the heads of other appropriate Federal departments and agencies and the National Railroad Passenger Corporation, shall transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure that contains--
(1) a description of the current system for screening passengers and baggage on passenger rail service between the United States and Canada;
(2) an assessment of the current program to provide preclearance of airline passengers between the United States and Canada as outlined in ``The Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America'', dated January 18, 2001;
(3) an assessment of the current program to provide preclearance of freight railroad traffic between the United States and Canada as outlined in the ``Declaration of Principle for the Improved Security of Rail Shipments by Canadian National Railway and Canadian Pacific Railway from Canada to the United States'', dated April 2, 2003;
(4) information on progress by the Department of Homeland Security and other Federal agencies towards finalizing a bilateral protocol with Canada that would provide for preclearance of passengers on trains operating between the United States and Canada;
(5) a description of legislative, regulatory, budgetary, or policy barriers within the United States Government to providing pre-screened passenger lists for rail passengers travelling between the United States and Canada to the Department of Homeland Security;
(6) a description of the position of the Government of Canada and relevant Canadian agencies with respect to preclearance of such passengers; and
(7) a draft of any changes in existing Federal law necessary to provide for pre-screening of such passengers and providing pre-screened passenger lists to the Department of Homeland Security.
SEC. 16. REPORT REGARDING IMPACT ON SECURITY OF TRAIN TRAVEL
IN COMMUNITIES WITHOUT GRADE SEPARATION.
(a) Study.--The Secretary of Homeland Security shall, in consultation with State and local government officials, conduct a study on the impact of blocked highway-railroad grade crossings on the ability of emergency responders, including ambulances and police, fire, and other emergency vehicles, to perform public safety and security duties in the event of a terrorist attack.
(b) Report.--Not later than 1 year after the date of enactment of this Act, the Secretary of Homeland Security shall submit a report to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate on the findings of the study conducted under subsection (a) and recommendations for reducing the impact of blocked crossings on emergency response.
SEC. 17. WHISTLEBLOWER PROTECTION PROGRAM.
(a) In General.--Subchapter A of chapter 201 of title 49, United States Code, is amended by inserting after section 20115 the following:
``SEC. 20116. WHISTLEBLOWER PROTECTION FOR RAIL SECURITY
MATTERS.
``(a) Discrimination Against Employee.--No rail carrier engaged in interstate or foreign commerce may discharge a railroad employee or otherwise discriminate against a railroad employee because the employee (or any person acting pursuant to a request of the employee)--
``(1) provided, caused to be provided, or is about to provide or cause to be provided, to the employer or the Federal Government information relating to a perceived threat to security;
``(2) provided, caused to be provided, or is about to provide or cause to be provided, testimony before Congress or at any Federal or State proceeding regarding a perceived threat to security; or
``(3) refused to violate or assist in the violation of any law, rule or regulation related to rail security.
``(b) Dispute Resolution.--A dispute, grievance, or claim arising under this section is subject to resolution under section 3 of the Railway Labor Act (45 U.S.C. 153). In a proceeding by the National Railroad Adjustment Board, a division or delegate of the Board, or another board of adjustment established under section 3 to resolve the dispute, grievance, or claim the proceeding shall be expedited and the dispute, grievance, or claim shall be resolved not later than 180 days after it is filed. If the violation is a form of discrimination that does not involve discharge, suspension, or another action affecting pay, and no other remedy is available under this subsection, the Board, division, delegate, or other board of adjustment may award the employee reasonable damages, including punitive damages, of not more than $20,000.
``(c) Procedural Requirements.--Except as provided in subsection (b), the procedure set forth in section 42121(b)(2)(B) of this title, including the burdens of proof, applies to any complaint brought under this section.
``(d) Election of Remedies.--An employee of a railroad carrier may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the carrier.
``(e) Disclosure of Identity.--
``(1) Except as provided in paragraph (2) of this subsection, or with the written consent of the employee, the Secretary of Transportation may not disclose the name of an employee of a railroad carrier who has provided information about an alleged violation of this section.
``(2) The Secretary shall disclose to the Attorney General the name of an employee described in paragraph (1) of this subsection if the matter is referred to the Attorney General for enforcement.''.
(b) Conforming Amendment.--The chapter analysis for chapter 201 of title 49, United States Code, is amended by inserting after the item relating to section 20115 the following:
``Sec. 20116. Whistleblower protection for rail security matters.''.
______
SA 1149. Mr. McCAIN (for himself and Mr. Kennedy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. SENSE OF THE SENATE ON COMPREHENSIVE IMMIGRATION
REFORM.
(a) Findings.--Congress finds that--
(1) the Government of the United States has an obligation to its citizens to ensure the rule of law in its communities, secure its borders, and strengthen international border security efforts;
(2) current immigration laws and the enforcement of such laws are ineffective and do not serve the people of the United States, the national security interests of the United States, or the economic prosperity of the United States; and
(3) illegal immigration fosters other illegal activity, burdens States and local communities with hundreds of millions of dollars in uncompensated expenses and creates an underclass of workers who are vulnerable to fraud and exploitation.
(b) Sense of the Senate.--It is the sense of the Senate that, before the end of the first session of the 109th Congress, Congress should enact comprehensive immigration reform that--
(1) ensures strong enforcement of immigration laws and border security;
(2) provides for adequate legal channels for immigration;
(3) enables willing workers to be matched with willing employers when no United States worker is available to take the job;
(4) identifies undocumented immigrants and encourages them to come forward and participate legally in the economy of the United States; and
(5) serves the economic, social, and security interests of the United States.
______
SA 1150. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519.(a) The amount appropriated for salaries and expenses by title II under the heading ``Customs and Border Protection'' is increased by $179,221,000, all of which shall be made available to hire an additional 1,000 border patrol agents.
(b) The amount appropriated by title II for the United States Coast Guard for the Integrated Deepwater Systems program under the heading ``acquisition, construction, and improvements'' is reduced by $179,221,000.
______
SA 1151. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 61, line 26, insert ``which shall be deployed between ports of entry along the southwestern border of the United States, taking into consideration the particular security risks in the area and the need for constant surveillance of such border,'' after ``unmanned aerial vehicles,''.
______
SA 1152. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 64, line 24, insert after ``agencies'' the following: ``and Indian tribes (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e))''.
On page 65, line 2, insert after ``agencies'' the following: ``and Indian tribes (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e))''.
On page 77, lines 16 and 17, strike ``governments'' and insert ``governments and Indian tribes (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e))''.
Beginning on page 77, line 26, strike ``or'' and all that follows through ``on risks'' on page 78, line 1, and insert
``regions, or Indian tribes (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)) based on risks''.
On page 78, line 10, insert after ``States'' the following:
``or Indian tribes (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450b(e))''.
______
SA 1153. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. Of the amount appropriated by title III for the Office of State and Local Government Coordination and Preparedness under the heading ``state and local programs'' and allocated for the technology transfer program, such sums as may be necessary shall be made available to the Secretary of Homeland Security to implement a plan to enhance communications integration and information sharing on border security as authorized under section 303 of the REAL ID Act of 2005 (division B of Public Law 109-13).
______
SA 1154. Mr. Ms Stabenow submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. Not later than 30 days after the date of enactment of this Act, the United States Customs and Border Protection shall develop guidelines for other than full-time permanent Customs and Border Protection Officers to complete Customs and Border Protection Officer training at the Federal Law Enforcement Training Center. The guidelines shall take into account the special circumstances and needs of other than full-time permanent officers which includes the impact of the Customs and Border Protection Officer training requirement on their other employment and their ability to continue to serve as Customs and Border Protection Officers. The United States Customs and Border Protection should give consideration to extending the length of time for other than full-time permanent officers to complete the training, allowing officers to complete the training in nonconsecutive sessions, giving officers credit for training already completed, or providing for other appropriate arrangements.
______
SA 1155. Mrs. BOXER submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. SPENDING OVERSIGHT.
``None of the funds made available in this Act shall be used on silk plants, art consultants, art work, coffee, microwave ovens, ice makers, plaques, and private event planning companies.''
______
SA 1156. Mrs. BOXER submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. ___. The amount appropriated by title III under the heading ``Office of State and Local Government Coordination and Preparedness'' for State and Local Programs is increased by $530,000,000, all of which shall be made available for discretionary transportation and infrastructure grants and shall be for port security grants pursuant to the purposes of section 70107 (a) through (h) of title 46, United States Code. Such amounts shall be in addition to the amounts otherwise made available by this Act for such purposes.
______
SA 1157. Mrs. BOXER submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. . LETTERS OF INTENT.
(a) Letters of Intent.--Section 70107(e) of title 46, United States Code, is amended by adding at the end the following:
``(5) Letters of intent.--The Secretary may execute letters of intent to commit funding to port sponsors from the Fund.''.
______
SA 1158. Mr. REID submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
COMMISSION ON A STRATEGY FOR SUCCESS IN THE GLOBAL WAR ON TERRORISM
Sec. 519. (a) Establishment.--There is established a commission to be known as the Commission on a Strategy for Success in the Global War on Terrorism (in this section referred to as the ``Commission'').
(b) Study and Report.--
(1) Study.--The duty of the Commission shall be to conduct a study on the strategy, tactics, and metrics for assessing performance and measuring success used by the United States in conduct of the Global War on Terrorism, and to submit a report on the findings of the study according to the guidance set forth in paragraph (2).
(2) Report.--Not later than 6 months after the date of the enactment of this Act, the Secretary of State shall submit to the appropriate congressional committees a report on the study required by paragraph (1) that includes the following content:
(A) Recommendations for a set of benchmarks by which the United States can assess performance and measure success in the following areas:
(i) Reducing the capability of major world wide terrorist organizations for carrying out attacks against the United States and its interests.
(ii) Disrupting senior leadership of major world wide terrorist organizations.
(iii) Decreasing the ability of major world wide terrorist organizations to recruit new members.
(iv) Disrupting major world wide terrorist organizations' access to, movement of, and use of financial assets and key non-financial resources.
(v) Eliminating safe havens and training grounds for major world wide terrorist organizations.
(vi) Preventing terrorists from gaining access to nuclear materials and other weapons of mass destruction.
(vii) Enhancing the public image of the United States within the populations from which terrorists have most often originated.
(B) An assessment of performance and progress by the United States in winning Global War on Terrorism according to the benchmarks set forth by the Commission in accordance with subparagraph (A).
(C) An analysis of the annual country reports on terrorism produced by the Secretary of State in accordance with section 140 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f), including an assessment of the following:
(i) The effectiveness of the process by which the Secretary of State tabulates and categorizes terrorist attacks and events around the world.
(ii) The accuracy of the data reported in the reports.
(iii) The adequacy of safeguards against the influence of political considerations or other corrupting factors on the quality of data included in the reports.
(iv) Any recommendations the Commission may have for expanding, reconfiguring, or otherwise improving the reports.
(c) Membership.--
(1) Number and appointment.--The Commission shall be composed of 12 members who are appointed not later than one month after the date of enactment of this act, as follows:
(A) Two co-chairpersons, of which--
(i) one co-chairperson shall be appointed by a committee consisting of the majority leaders of the Senate and the House of Representatives, and of the chairman of each of the appropriate congressional committees; and
(ii) one co-chairperson shall be appointed by a committee consisting of the minority leaders of the House and Senate, the ranking minority member of each of the appropriate congressional committees.
(B) Ten members appointed by the chairman and ranking minority members of the Committee on Foreign Relations, the Committee on Homeland Security and Government Affairs, and the Committee on Armed Services of the Senate.
(C) Ten members appointed by the chairmen and ranking minority members of the Committee on International Relations, the Committee on Homeland Security, and the Committee on Armed Services of the House of Representatives.
(2) Qualifications.--Individuals appointed to the Commission should have proven experience or expertise in the prosecution of the Global War on Terrorism or in the study and analysis of terrorism, terrorists, United States military strategy, intelligence operations, or other relevant subject matter.
(3) Vacancies.--Any vacancy on the Commission shall not affect its powers and shall be filled in the manner in which the original appointment was made.
(4) Chairpersons.--The members appointed pursuant to paragraph (1)(A) shall serve as co-chairpersons of the Commission.
(5) Prohibition on pay.--Members of the Commission shall serve without pay.
(6) Travel expenses.--Each member of the Commission shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.
(7) Quorum.--A majority of the members of the Commission shall constitute a quorum but a lesser number may hold hearings.
(8) Meetings.--The Commission shall meet at the call of the chairpersons. The initial meeting of the Commission shall occur not later than two weeks after the date on which not less than six members are appointed. The Commission may select a temporary chairperson until such time as the co-chairpersons have been appointed.
(9) Director and staff.--
(A) Director.--The Commission shall have a Director who shall be appointed by the Chairperson. The Director shall be paid at a rate not to exceed the rate of basic pay payable for level V of the Executive Schedule.
(B) Staff.--The Commission may appoint personnel as appropriate. The staff of the Commission shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates.
(10) Experts and consultants.--The Commission may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the maximum annual rate of basic pay payable for the General Schedule.
(11) Powers.--
(A) Hearings and sessions.--The Commission may, for the purpose of carrying out this section, hold hearings, sit and act at times and places, take testimony, and receive evidence as the Commission considers appropriate.
(B) Powers of members and agents.--Any member or agent of the Commission may, if authorized by the Commission, take any action which the Commission is authorized to take by this section.
(C) Obtaining official data.--The Commission may secure directly from any department or agency of the United States information necessary to enable it to carry out this section. Upon request of the chairpersons of the Commission, the head of that department or agency shall furnish that information to the Commission in a timely manner.
(D) Postal services.--The Commission may use the United States postal services in the same manner and under the same conditions as other departments and agencies of the United States.
(E) Gifts.--The Commission may accept, use, and dispose of gifts or donations of services or property.
(F) Administrative support services.--Upon the request of the Commission, the Administrator of General Services shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under this section.
(12) Security clearances for commission members and staff.--The appropriate executive departments and agencies shall cooperate with the Commission in expeditiously providing to the Commission members and staff appropriate security clearances in a manner consistent with existing procedures and requirements, except that no person shall be provided with access to classified information under this section who would not otherwise qualify for such security clearance.
(d) Appropriate Congressional Committees Defined.--In this section, the term ``appropriate congressional committees'' means the Committee on Foreign Relations, the Committee on Homeland Security and Government Affairs, and the Committee on Armed Services of the Senate and the Committee on International Relations, the Committee on Homeland Security, and the Committee on Armed Services of the House of Representatives.
(e) Termination.--The Commission shall terminate one week following the submission of the report described in section
(b)(2).
______
SA 1159. Mr. REID submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. ----. (a) Findings.--Congress makes the following findings:
(1) Protecting the homeland against nuclear, radiological, biological, or chemical terrorism requires a layered defense drawing upon a full spectrum of capabilities and tools, beginning with a national strategy for an international and domestic effort to prevent the proliferation of weapons of mass destruction (WMD) before it affects Americans at home, as well as to harden America and manage the consequences of attacks while preserving fundamental liberties and economic activity.
(2) The National Strategy to Combat Weapons of Mass Destruction was published in December 2002.
(3) Since the development of the National Strategy--
(A) the nature of the weapons of mass destruction threats to the United States has evolved significantly;
(B) the understanding of likely future weapons of mass destruction threats has also progressed; and
(C) United States capabilities for detecting, preventing, and responding to weapons of mass destruction threats have also evolved.
(4) President George W. Bush enumerated in a speech on February 11, 2004, a number of new actions the United States would call for to address weaknesses in efforts to combat the proliferation of weapons of mass destnlction. Some of the most in July 11, 2005 important of these actions have not yet been undertaken or have met international resistance.
(5) Since the National Strategy ,vas developed, a significant intelligence failure has occurred with respect to the assessment of the weapons of mass destruction capabilities of Iraq, which failure has precipitated several efforts to identify systemic deficiencies in intelligence and identify recommended improvements.
(6) As required by the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458), and as recommended by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, President George W. Bush announced in June 2005 the intent to establish a National Counter Proliferation Center (NCPC). The Center will exercise strategic oversight of the work of the intelligence community on threats posed by the proliferation of weapons of mass destruction and will playa unique leading role within the United States Government in addressing such threats.
(7) A number of other significant changes to United States policies, capabilities, and tools to combat the proliferation of weapons of mass destruction have been recommended, and in some cases, implemented since December 2002, in the absence of an updated national strategy on combatting the proliferation of weapons of mass destruction.
(b) Update of National Strategy To Combat Weapons of Mass Destruction.--(1) Not later than 6 months after the date of the enactment of this Act, the President shall develop and submit to Congress an update to the National Strategy to Combat Weapons of Mass Destruction of December 2002.
(2) The update of the National Strategy shall take into account developments since the publication of the National Strategy.
(3) The update of the National Strategy shall include the following:
(A) Intelligence-based assessment.--An intelligence-based assessment of the threat to United States territory, citizens, and interests from the proliferation of weapons of mass destruction and the threat of terrorist acquisition and use of weapons of mass destruction.
(B) Objectives.--A review of the objectives of United States policy, both domestically and internationally, regarding the proliferation of weapons of mass destruction and the threat of terrorist acquisition and use of weapons of mass destruction.
(C) Capabilities, roles, missions, concepts of operations.--A review of the full spectrum of capabilities necessary, whether domestically or internationally, to address the proliferation of weapons of mass destruction and the threat of terrorist acquisition and use of weapons of mass destruction, and a description of the roles, missions, and concepts of operations for each of the organizations and programs responsible for providing such capabilities.
(D) Policy, program and operational coordination.--A review of the mechanisms for planning, coordinating, and implementing policy, programs, and operations, including government-wide strategic operational planning, across all agencies and entities undertaking work to combat the proliferation of weapons of mass destruction and to protect the homeland against weapons of mass destruction attacks.
(4) The update of the National Strategy shall address specific areas key to a successful national strategy to combat the proliferation of weapons of mass destruction, including, but not limited to the following:
(A) National counter proliferation center.--A description of the roles, missions, and concepts of operations for the National Counter Proliferation Center, including a plan and schedule for establishing the Center and developing it to full working capacity.
(B) International nonproliferation regimes.--A review of how the United States will seek to strengthen the international nonproliferation regimes, including, but not limited to, the Nuclear Nonproliferation Treaty and associated entities (such as the Nuclear Suppliers Group) in the wake of the 2005 Nuclear Nonproliferation Treaty review conference, the Missile Technology Control Regime, the Biological Weapons Convention, and the Chemical Weapons Convention and associated entities (such as the Australia Group).
(C) Security of nuclear materials.--A review of how the United States will enhance programs to secure weapons-grade nuclear materials globally.
(D) Detection and characterization capabilities.--A review of how the United States will improve the array of weapons of mass destruction detection devices to ensure the homeland is protected from any means by which weapons of mass destruction could be delivered against the United States.
(E) Interdiction capabilities.--An assessment of the ability of the United States and the international community to interdict in transit illicit materials and personnel related to weapons of mass destruction, including--
(i) an assessment of the number and impact of interdictions under the Proliferation Security Initiative; and
(ii) an assessment of how the Initiative can be strengthened to achieve more concrete results.
(F) Nuclear inspections and safeguards.--A review of how the United States will strengthen the ability of the International Atomic Energy Agency (IAEA) to monitor peaceful nuclear energy programs to ensure that such programs are not used as a cover for nuclear weapons development, including, but not limited to--
(i) how the United States will encourage the adoption and ratification by each non-nuclear weapon state of the Model Additional Protocol with the Agency; and
(ii) how the Executive Branch will implement the United States Additional Protocol with the Agency in light of its inability, thus far, to reach agreement on implementing legislation that would permit United States ratification of the Additional Protocol to which the United States Senate gave its advice and consent to ratification on March 31, 2004.
(G) Intelligence capabilities.--A plan for the implementation of intelligence reforms intended to improve intelligence capabilities relating to weapons of mass destruction.
(H) North korea and iran.--A plan for each of the following:
(i) Preventing further processing of nuclear weapons material in North Korea and ultimately verifiably eliminating the nuclear weapons programs of North Korea.
(ii) Preventing Iran from developing nuclear weapons.
(iii) Deterring other nations from pursuing nuclear weapons.
(5) The update required by paragraph (1) shall be submitted to Congress in unclassified form but may include a classified annex.
______
SA 1160. Mr. REID submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. (a) Congress makes the following findings:
(1) The Homeland Security Advisory System had been raised to threat level Code Orange, a level which indicates a high risk of terrorist attack, on six occasions since the Advisory System was created in March 2002, prior to the rasing of the threat level to Code Orange following the bombings that occurred in London on July 7, 2005.
(2) The Code Orange threat level remained in place for an average of 13 days on each of the first five occasions that it was raised to that level.
(3) The sixth elevation of the threat level to Code Orange occurred in August 2004 and ended 98 days later, making it four times longer than any other such alert and constituting half of the days that the United States has been under a high risk of terrorist attack.
(4) The Conference of Mayors estimates that cities in the United States spend some $70,000,000 per week to implement security measures associated with the Code Orange threat level.
(5) The recommendation to elevate the threat level is made by the Homeland Security Council, a group of Cabinet officials and senior advisors to the President and Vice President, (in this section referred to as the ``Council'').
(6) In May 2005, Secretary of Homeland Security Tom Ridge revealed that there was often considerable disagreement among the members of the Council as to whether or not the threat level should be raised.
(7) There remains considerable confusion among the public and State and local government officials as to the decision-making process and criteria used by the Council in deciding whether the threat level should be raised to Code Orange.
(b) Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a study examining the six occasions in which the Homeland Security Advisory System was raised to Code Orange prior to July 2005 and submit to Congress a report on such study.
(c) The report required by subsection (b) shall include an explanation and analysis of the decision-making process used by the Council to raise the threat level to Code Orange in each of the six instances prior to July 2005, including--
(1) the criteria and standards used by the Council in reaching its decision;
(2) a description of deliberations and votes of the Council were conducted, and whether any of the deliberations and votes have been transcribed or were otherwise recorded in some manner;
(3) a description of the specific intelligence that led to the decision to raise the threat level to Code Orange on each of the six occasions, and what, if any, common factors or trends in the intelligence reporting were present in each of the previous decisions;
(4) an explanation for the decision, on the sixth occasion, for the threat level to remain elevated for 98 days, and what role, if any, staff of the White House played in the decision to raise the level on that occasion;
(5) a description of the direct and indirect costs incurred by cities, States, or the Federal Government after the threat level was raised to Code Orange on each of the six occasions; and
(6) the recommendations of the Comptroller General of the United States, if any, for improving the Homeland Security Advisory System, including recommendations regarding--
(A) measures that could be carried out to build greater public awareness and confidence in the work of the Council;
(B) whether the Council and the Secretary of Homeland Security could benefit from greater transparency and the development of more clearly articulated public standards in the threat level decision-making process;
(C) whether the current composition of the Council should be modified to include representatives from the States; and
(D) the measures that could be carried out to minimize the costs to States and municipalities during periods when the Homeland Security Advisory System is raised to level to Code Orange.
(d) The report required by subsection (b) shall be submitted in an unclassified form and may include a classified annex, if necessary.
______
SA 1161. Mr. REID (for himself, Mr. Biden, and Mr. Kennedy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. (a) Findings.--The Senate makes the following findings:
(1) The Joint Explanatory Statement to accompany the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 1090913) requires the Department of Defense to set forth in a report to Congress a comprehensive set of performance indicators and measures for progress toward military and political stability in Iraq.
(2) The report requires performance standards and goals for security, economic, and security force training objectives in Iraq together with a notional timetable for achieving these goals.
(3) In specific, the report required, at a minimum, the following:
(A) With respect to stability and security in Iraq, the following:
(i) Key measures of political stability, including the important political milestones that must be achieved over the next several years.
(ii) The primary indicators of a stable security environment in Iraq, such as number of engagements per day, numbers of trained Iraqi forces, and trends relating to numbers and types of ethnic and religious-based hostile encounters.
(iii) An assessment of the estimated strength of the insurgency in Iraq and the extent to which it is composed of non-Iraqi fighters.
(iv) A description of all militias operating in Iraq, including the number, size, equipment strength, military effectiveness, sources of support, legal status, and efforts to disarm or reintegrate each militia.
(v) Key indicators of economic activity that should be considered the most important for determining the prospects of stability in Iraq, including--
(I) unemployment levels;
(II) electricity, water, and oil production rates; and
(III) hunger and poverty levels.
(vi) The criteria the Administration will use to determine when it is safe to begin withdrawing United States forces from Iraq.
(B) With respect to the training and performance of security forces in Iraq, the following:
(i) The training provided Iraqi military and other Ministry of Defense forces and the equipment used by such forces.
(ii) Key criteria for assessing the capabilities and readiness of the Iraqi military and other Ministry of Defense forces, goals for achieving certain capability and readiness levels (as well as for recruiting, training, and equipping these forces), and the milestones and notional timetable for achieving these goals.
(iii) The operational readiness status of the Iraqi military forces, including the type, number, size, and organizational structure of Iraqi battalions that are--
(I) capable of conducting counterinsurgency operations independently;
(II) capable of conducting counterinsurgency operations with the support of United States or coalition forces; or
(III) not ready to conduct counterinsurgency operations.
(iv) The rates of absenteeism in the Iraqi military forces and the extent to which insurgents have infiltrated such forces.
(v) The training provided Iraqi police and other Ministry of Interior forces and the equipment used by such forces.
(vi) Key criteria for assessing the capabilities and readiness of the Iraqi police and other Ministry of Interior forces, goals for achieving certain capability and readiness levels (as well as for recruiting, training, and equipping), and the milestones and notional timetable for achieving these goals, including--
(I) the number of police recruits that have received classroom training and the duration of such instruction;
(II) the number of veteran police officers who have received classroom instruction and the duration of such instruction;
(III) the number of police candidates screened by the Iraqi Police Screening Service, the number of candidates derived from other entry procedures, and the success rates of those groups of candidates;
(IV) the number of Iraqi police forces who have received field training by international police trainers and the duration of such instruction; and
(V) attrition rates and measures of absenteeism and infiltration by insurgents.
(vii) The estimated total number of Iraqi battalions needed for the Iraqi security forces to perform duties now being undertaken by coalition forces, including defending the borders of Iraq and providing adequate levels of law and order throughout Iraq.
(viii) The effectiveness of the Iraqi military and police officer cadres and the chain of command.
(ix) The number of United States and coalition advisors needed to support the Iraqi security forces and associated ministries.
(x) An assessment, in a classified annex if necessary, of United States military requirements, including planned force rotations, through the end of calendar year 2006.
(3) The deadline for submittal of the report to Congress was 60 days after the date of the enactment of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, that is July 11, 2005, and every 90 days thereafter through the end of fiscal year 2006.
(4) The report has not yet been received by Congress.
(5) The availability of accurate data on key performance indicators is critical to understanding whether the United States strategy in Iraq is succeeding, and the substantial resources provided by Congress, which total more than
$200,000,000,000 and an approximate monthly expenditure of
$5,000,000,000, with substantial resource expenditures still to come, are being utilized effectively.
(b) Sense of Senate.--It is the sense of the Senate that--
(1) the information requested in the report described by subsection (a) is critical--
(A) to fulfilling the oversight obligations of Congress;
(B) to ensuring the success of United States strategy in Iraq;
(C) to maximizing the effectiveness of the substantial resources provided by Congress and the American people for United States efforts in Iraq;
(D) to identifying when the Iraqi security forces will be able to assume responsibility for security in Iraq; and
(E) to obtaining an estimate of the level of United States troops that will be necessary in Iraq during 2005 and 2006, and in any years thereafter;
(2) the report should be provided by the Department of Defense, as required by the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 as soon as possible; and
(3) the Secretary of Defense should communicate to Congress and the American people why the report was not submitted to Congress by the original deadline for its submittal.
______
SA 1162. Mr. KERRY (for himself and Mr. Lautenberg) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. Within 90 days after the date of enactment of this Act, the Department of Homeland Security's Office of Inspector General shall issue a report to the House and Senate Committees on Appropriations, the House and Senate Committees on Homeland Security, and the Senate Committee on Commerce, Science, and Transportation regarding the steps the Department has taken to comply with the recommendations of the Inspector General's Report on the Port Security Grant Program (OIG-05-10).
______
SA 1163. Mrs. FEINSTEIN (for herself and Mr. Sessions) submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. FRAUDULENT USE OF PASSPORTS.
(a) Criminal Code.--
(1) Secretary of homeland security.--Section 1546 of title 18, United States Code, is amended by striking ``the Attorney General or the Commissioner of the Immigration and Naturalization Service'' each place it appears and inserting
``the Secretary of Homeland Security''.
(2) Definition of passport.--Chapter 75 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 1A1548. Definition
``For the purposes of sections 1543 and 1544, the term
`passport' means any passport or travel document issued by the United States, a foreign government, or an international organization.''.
(3) Clerical amendment.--The table of sections for chapter 75 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 1548. Definition.''.
(b) Immigration and Nationality Act.--Section 101(a)(43)(P) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(P)) is amended to read as follows:
``(P) an offense described in--
``(i) section 1542, 1543, or 1544 of title 18, United States Code, relating to false statements in the application, forgery, or misuse of a passport or travel document;
``(ii) section 1546(a) of title 18, United States Code, relating to the fraudulent use of any document used to gain entry or admission into the United States, regardless of the term of imprisonment; or
``(iii) section 1546(a) of title 18, United States Code, relating to any other fraudulent use of documents not described in clause (ii), including as evidence of authorized stay or employment, for which the term of imprisonment is at least 12 months.''.
______
SA 1164. Ms. STABENOW submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 18, strike ``$2,694,300,000'' and insert
``$11,552,000,000''.
On page 81, line 24, strike ``$615,000,000'' and insert
``$4,000,000,000''.
On page 81, line 24, strike ``$550,000,000'' and insert
``$3,000,000,000''.
On page 81, line 26, strike ``$65,000,000'' and insert
``$1,000,000,000''.
On page 82, line 12, strike ``$180,000,000'' and insert
``$660,000,000''.
On page 89, line 3, strike ``$194,000,000'' and insert
``$690,994,000''.
On page 100, between lines 11 and 12, insert the following:
Sec. 519. The total amount appropriated by title III for the Office of the Under Secretary for Emergency Preparedness and Response under the headings ``preparedness, mitigation, response, and recovery (including recession of funds)'',
``administrative and regional operations'', and ``public health programs'' is increased by $2,845,766,000.
Sec. 520. The Secretary of the Treasury shall take such action as is necessary to reduce benefits provided by the Economic Growth and Tax Relief Reconciliation Act of 2001 to individuals with an adjusted gross income of $1,000,000,000 or more that will result in an increase in revenue sufficient to offset the increased funding provided for the first responder and other programs made by section 518, this section, and any related increases in funding.
______
SA 1165. Ms. STABENOW submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 56, line 19, strike ``$124,620,000'' and insert
``$115,160,000''.
On page 57, line 1, strike ``$146,322,000'' and insert
``$135,572,000''.
On page 57, line 17, strike ``$18,325,000'' and insert
``$17,035,000''.
On page 57, line 22, strike ``$286,540,000'' and insert
``$265,040,000''.
On page 77, line 18, strike ``$2,694,300,000'' and insert
``2,737,300,000''.
On page 79, line 22, strike the colon and insert a period.
On page 79, between lines 22 and 23, insert the following:
(7) $44,000,000 for interoperable communications equipment grants:
______
SA 1166. Mr. DURBIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 70, line 20, strike ``purposes.'' and insert the following: ``purposes: Provided further, That MidAmerica St. Louis Airport in Mascoutah, Illinois, shall be designated as a port of entry.''.
______
SA 1167. Mr. GRASSLEY (for himself and Mr. Hatch) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 88, line 13, strike the period at the end and insert ``, of which $2,500,000 shall be available until expended to carry out section 402(d)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1324a note).''.
______
SA 1168. Mr. DOMENICI (for himself and Mr. Bingaman) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. AMENDMENT TO TITLE 18.
(a) In General.--Chapter 2 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 1A39. Violation of Washington, D.C. airspace
``Whoever negligently flies an aircraft in a manner that violates the Washington, D.C. Metropolitan Area Flight Restricted Zone (as defined by the Federal Aviation Administration) and causes the evacuation a Federal building or any other public property shall be subject to a fine of
$100,000, confiscation of the aircraft, and loss of the right to fly in United States airspace for 5 years.''.
(b) Chapter Analysis.--The table of sections for chapter 2 of title 18, United States Code, is amended by adding at the end the following:
``Sec. 39. Violation of Washington, D.C. airspace.''.
______
SA 1169. Mr. HAGEL submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 69, line 2, strike ``$4,452,318,000'' and insert
``$4,440,318,000''.
On page 70, line 24, strike ``$36,000,000'' and insert
``$48,000,000''.
______
SA 1170. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. The amount appropriated for salaries and expenses by title II under the heading ``Immigration and Customs Enforcement'' is increased by $61,666,500, all of which shall be made available to hire and train an additional 500 full-time active duty Immigration and Cuistoms Enforcement investigators.
______
SA 1171. Mr. McCAIN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519.(a) The amount appropriated for salaries and expenses by title II under the heading ``Immigration and Customs Enforcement'' is increased by $198,000,000, all of which shall be made available to add an additional 5,760 detention beds in the United States.
(b) The amount appropriated by title II for the United States Coast Guard for the Integrated Deepwater Systems program under the heading ``acquisition, construction, and improvements'' is reduced by $198,000,000.
______
SA 1172. Mr. THOMAS submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. (a) Not later than 60 days after the date of the enactment of this Act, the Secretary of Homeland Security shall designate the Natrona International Airport in Casper, Wyoming, as an airport at which private aircraft described in subsection (b) may land for processing by the United States Customs and Border Protection in accordance with section 122.24(b) of title 19, Code of Federal Regulations, and such airport shall not be treated as a user fee airport for purposes of section 122.15 of title 19, Code of Federal Regulations.
(b) Private Aircraft.--Private aircraft described in this subsection are private aircraft that--
(1) arrive in the United States from a foreign area and have a final destination in the United States of Natrona International Airport in Casper, Wyoming; and
(2) would otherwise be required to land for processing by the United States Customs and Border Protection at an airport listed in section 122.24(b) of title 19, Code of Federal Regulations, in accordance with such section.
(c) Definition.--In this section, the term ``private aircraft'' has the meaning given such term in section 122.23(a)(1) of title 19, Code of Federal Regulations.
______
SA 1173. Mrs. HUTCHISON submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. It is the Sense of the Senate that the Director of the Office for State and Local Government Coordination of the Department of Homeland Security should coordinate with the American Red Cross in developing a mass care plan for the areas of the United States most at risk of being the target of a terrorist attack.
______
SA 1174. Mrs. HUTCHISON submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 24, after ``formula-based grants'' insert the following: ``and $50,000,000 shall be allocated to the American Red Cross for use in its mass care catastrophic planning initiative''
______
SA 1175. Mr. THOMAS submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. Not later than 60 days after the date of the enactment of this Act, the Secretary of Homeland Security shall designate an airport in each State as a port of entry.
______
SA 1176. Mr. McCain submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, between lines 5 and 6, insert the following:
PILOT PROGRAM FOR GROUND SURVEILLANCE TECHNOLOGY AND BORDER SECURITY
Of the amounts appropriated under this title, such amounts as may be necessary shall be made available to carry out the pilot program for ground surveillance technology and border security authorized by section 302 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 109-13; 8 U.S.C. 1712 note).
______
SA 1177. Mr. CRAIG (for himself and Mr. Kennedy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE--BORDER ENFORCEMENT AND VISA SECURITY
SEC. _01. DOCUMENT AND VISA REQUIREMENTS.
(a) In General.--Section 221(a) of the Immigration and Nationality Act (8 U.S.C. 1201(a)) is amended by adding at the end the following:
``(3) Visas and immigration related document requirements.--
``(A) Visas issued by the Secretary of State and immigration related documents issued by the Secretary of State or the Secretary of Homeland Security shall comply with authentication and biometric standards recognized by domestic and international standards organizations.
``(B) Such visas and documents shall--
``(i) be machine-readable and tamper-resistant;
``(ii) use biometric identifiers that are consistent with the requirements of section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732), and represent the benefits and status set forth in such section;
``(iii) comply with the biometric and document identifying standards established by the International Civil Aviation Organization; and
``(iv) be compatible with the United States Visitor and Immigrant Status Indicator Technology and the employment verification system established under section 274E.
``(C) The information contained on the visas or immigration related documents described in subparagraph (B) shall include--
``(i) the alien's name, date and place of birth, alien registration or visa number, and, if applicable, social security number;
``(ii) the alien's citizenship and immigration status in the United States; and
``(iii) the date that such alien's authorization to work in the United States expires, if appropriate.''.
(b) Effective Date.--The amendment made by subsection (a) shall take effect on October 26, 2007.
SEC. _02. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
(a) In General.--Chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) is amended by inserting after section 274D the following:
``EMPLOYMENT ELIGIBILITY
``Sec. 274E. (a) Employment Eligibility Confirmation System.--
``(1) In general.--The Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security, shall establish an Employment Eligibility Confirmation System (referred to in this section as the
`System') through which the Commissioner responds to inquiries made by employers who have hired individuals concerning each individual's identity and employment authorization.
``(2) Maintenance of records.--The Commissioner shall electronically maintain records by which compliance under the System may be verified.
``(3) Objectives of the system.--The System shall--
``(A) facilitate the eventual transition for all businesses from the employer verification system established in section 274A with the System;
``(B) utilize, as a central feature of the System, machine-readable documents that contain encrypted electronic information to verify employment eligibility; and
``(C) provide for the evidence of employment required under section 218A.
``(4) Initial response.--The System shall provide--
``(A) confirmation or a tentative nonconfirmation of an individual's identity and employment eligibility not later than 3 working days after the initial inquiry; and
``(B) an appropriate code indicating such confirmation or tentative nonconfirmation.
``(5) Secondary verification process in case of tentative nonconfirmation.--
``(A) Establishment.--For cases of tentative nonconfirmation, the Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security, shall establish a secondary verification process. The employer shall make the secondary verification inquiry not later than 10 days after receiving a tentative nonconfirmation.
``(B) Discrepancies.--If an employee chooses to contest a secondary nonconfirmation, the employer shall provide the employee with a referral letter and instruct the employee to visit an office of the Department of Homeland Security or the Social Security Administration to resolve the discrepancy not later than 10 working days after the receipt of such referral letter in order to obtain confirmation.
``(C) Failure to contest.--An individual's failure to contest a confirmation shall not constitute knowledge (as defined in section 274a.1(l) of title 8, Code of Federal Regulations.
``(6) Design and operation of system.--The System shall be designed, implemented, and operated--
``(A) to maximize its reliability and ease of use consistent with protecting the privacy and security of the underlying information through technical and physical safeguards;
``(B) to allow employers to verify that a newly hired individual is authorized to be employed;
``(C) to permit individuals to--
``(i) view their own records in order to ensure the accuracy of such records; and
``(ii) contact the appropriate agency to correct any errors through an expedited process established by the Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security; and
``(D) to prevent discrimination based on national origin or citizenship status under section 274B.
``(7) Unlawful uses of system.--It shall be an unlawful immigration-related employment practice--
``(A) for employers or other third parties to use the System selectively or without authorization;
``(B) to use the System prior to an offer of employment;
``(C) to use the System to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants;
``(D) to use the System to deny certain employment benefits, otherwise interfere with the labor rights of employees, or any other unlawful employment practice; or
``(E) to take adverse action against any person, including terminating or suspending an employee who has received a tentative nonconfirmation.
``(b) Employment Eligibility Database.--
``(1) Requirement.--The Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security and other appropriate agencies, shall design, implement, and maintain an Employment Eligibility Database
(referred to in this section as the `Database') as described in this subsection.
``(2) Data.--The Database shall include, for each individual who is not a citizen or national of the United States, but is authorized or seeking authorization to be employed in the United States, the individual's--
``(A) country of origin;
``(B) immigration status;
``(C) employment eligibility;
``(D) occupation;
``(E) metropolitan statistical area of employment;
``(F) annual compensation paid;
``(G) period of employment eligibility;
``(H) employment commencement date; and
``(I) employment termination date.
``(3) Reverification of employment eligibility.--The Commissioner of Social Security shall prescribe, by regulation, a system to annually reverify the employment eligibility of each individual described in this section--
``(A) by utilizing the machine-readable documents described in section 221(a)(3); or
``(B) if machine-readable documents are not available, by telephonic or electronic communication.
``(4) Confidentiality.--
``(A) Access to database.--No officer or employee of any agency or department of the United States, other than individuals responsible for the verification of employment eligibility or for the evaluation of the employment verification program at the Social Security Administration, the Department of Homeland Security, and the Department of Labor, may have access to any information contained in the Database.
``(B) Protection from unauthorized disclosure.--Information in the Database shall be adequately protected against unauthorized disclosure for other purposes, as provided in regulations established by the Commissioner of Social Security, in consultation with the Secretary of Homeland Security and the Secretary of Labor.
``(5) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to design, implement, and maintain the Database.
``(c) Gradual Implementation.--The Commissioner of Social Security, in coordination with the Secretary of Homeland Security and the Secretary of Labor shall develop a plan to phase all workers into the Database and phase out the employer verification system established in section 274A over a period of time that the Commissioner determines to be appropriate.
``(d) Employer Responsibilities.--Each employer shall--
``(1) notify employees and prospective employees of the use of the System and that the System may be used for immigration enforcement purposes;
``(2) verify the identification and employment authorization status for newly hired individuals not later than 3 days after the date of hire;
``(3) use--
``(A) a machine-readable document described in subsection
(a)(3)(B); or
``(B) the telephonic or electronic system to access the Database;
``(4) provide, for each employee hired, the occupation, metropolitan statistical area of employment, and annual compensation paid;
``(5) retain the code received indicating confirmation or nonconfirmation, for use in investigations; and
``(6) provide a copy of the employment verification receipt to such employees.
``(e) Good-Faith Compliance.--
``(1) Affirmative defense.--A person or entity that establishes good faith compliance with the requirements of this section with respect to the employment of an individual in the United States has established an affirmative defense that the person or entity has not violated this section.
``(2) Limitation.--Paragraph (1) shall not apply if a person or entity engages in an unlawful immigration-related employment practice described in subsection (a)(7).''.
(b) Interim Directive.--Before the implementation of the Employment Eligibility Confirmation System (referred to in this section as the ``System'') established under section 274E of the Immigration and Nationality Act, as added by subsection (a), the Commissioner of Social Security, in coordination with the Secretary of Homeland Security, shall, to the maximum extent practicable, implement an interim system to confirm employment eligibility that is consistent with the provisions of such section.
(c) Reports.--
(1) In general.--Not later than 3 months after the last day of the second year and of the third year that the System is in effect, the Comptroller General of the United States shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the System.
(2) Contents.--Each report submitted under paragraph (1) shall include--
(A) an assessment of the impact of the System on the employment of unauthorized workers;
(B) an assessment of the accuracy of the Employment Eligibility Database maintained by the Department of Homeland Security and Social Security Administration databases, and timeliness and accuracy of responses from the Department of Homeland Security and the Social Security Administration to employers;
(C) an assessment of the privacy, confidentiality, and system security of the System;
(D) assess whether the System is being implemented in a nondiscriminatory manner; and
(E) include recommendations on whether or not the System should be modified.
SEC. _03. IMPROVED ENTRY AND EXIT DATA SYSTEM.
Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a) is amended--
(1) by striking ``Attorney General'' each place it appears and inserting ``Secretary of Homeland Security'';
(2) in subsection (b)--
(A) in paragraph (1)(C), by striking ``Justice'' and inserting ``Homeland Security'';
(B) in paragraph (4), by striking ``and'' at the end;
(C) in paragraph (5), by striking the period at the end and inserting ``; and''; and
(D) by adding at the end the following:
``(6) collects the biometric machine-readable information from an alien's visa or immigration-related document described in section 221(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1201(a)(3) at the time an alien arrives in the United States and at the time an alien departs from the United States to determine if such alien is entering, or is present in, the United States unlawfully.''; and
(3) in subsection (f)(1), by striking ``Departments of Justice and State'' and inserting ``Department of Homeland Security and the Department of State''.
SEC. _04. DOCUMENT FRAUD DETECTION.
(a) Training.--The Secretary of Homeland Security shall provide all customs and border protection officers with training in identifying and detecting fraudulent travel documents. Such training shall be developed in consultation with the Forensic Document Laboratory of the Immigration and Customs Enforcement.
(b) Access to Forensic Document Laboratory.--The Secretary of Homeland Security shall provide all customs and border protection officers with access to the Forensic Document Laboratory.
SEC. _05. CANCELLATION OF VISAS.
Section 222(g) of the Immigration and Nationality Act (8 U.S.C. 1202(g)) is amended--
(1) in paragraph (1), by inserting ``and any other nonimmigrant visa issued by the United States that is in the possession of the alien'' after ``such visa''; and
(2) in paragraph (2)(A), by striking ``(other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality'' and inserting ``(other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality or foreign residence''.
SEC. _06. INSTITUTIONAL REMOVAL PROGRAM.
(a) Continuation and Expansion.--
(1) In general.--The Attorney General and the Secretary of Homeland Security shall continue to operate and implement the Institutional Removal Program, which identifies removable criminal aliens in Federal and State correctional facilities, ensures such aliens are not released into the community, and removes such aliens from the United States after the completion of their sentences.
(2) Expansion.--The Institutional Removal Program shall be made available to all States.
(3) Cooperation, identification, and notification.--Any State that receives Federal funds for the incarceration of criminal aliens shall--
(A) cooperate with Federal Institutional Removal Program officials;
(B) expeditiously and systematically identify criminal aliens in its prison and jail populations; and
(C) promptly convey such information to authorities of the Institutional Removal Program as a condition for receiving such funds.
(b) Technology Usage.--Technology, such as videoconferencing, shall be used to the maximum extent practicable in order to make the Institutional Removal Program available to facilities in remote locations.
TITLE--AGRICULTURAL JOB OPPORTUNITIES, BENEFITS, AND SECURITY ACT OF
2005
SEC. _01. SHORT TITLE.
This title may be cited as the ``Agricultural Job Opportunities, Benefits, and Security Act of 2005'' or the
``AgJOBS Act of 2005''.
SEC. _02. DEFINITIONS.
In this title:
(1) Agricultural employment.--The term ``agricultural employment'' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, agricultural employment includes employment under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(H)(ii)(a)).
(2) Employer.--The term ``employer'' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.
(3) Job opportunity.--The term ``job opportunity'' means a job opening for temporary full-time employment at a place in the United States to which United States workers can be referred.
(4) Secretary.--The term ``Secretary'' means the Secretary of Homeland Security.
(5) Temporary.--A worker is employed on a ``temporary'' basis where the employment is intended not to exceed 10 months.
(6) United states worker.--The term ``United States worker'' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(H)(ii)(a)).
(7) Work day.--The term ``work day'' means any day in which the individual is employed 1 or more hours in agriculture consistent with the definition of ``man-day'' under section 3(u) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(u)).
Subtitle A--Adjustment to Lawful Status
SEC. _11. AGRICULTURAL WORKERS.
(a) Temporary Resident Status.--
(1) In general.--Notwithstanding any other provision of law, the Secretary shall confer upon an alien who qualifies under this subsection the status of an alien lawfully admitted for temporary residence if the Secretary determines that the alien--
(A) has performed agricultural employment in the United States for at least 575 hours or 100 work days, whichever is less, during any 12 consecutive months during the 18-month period ending on December 31, 2004;
(B) applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this Act; and
(C) is otherwise admissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as otherwise provided under subsection (e)(2).
(2) Authorized travel.--During the period an alien is in lawful temporary resident status granted under this subsection, the alien has the right to travel abroad
(including commutation from a residence abroad) in the same manner as an alien lawfully admitted for permanent residence.
(3) Authorized employment.--During the period an alien is in lawful temporary resident status granted under this subsection, the alien shall be provided an ``employment authorized'' endorsement or other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.
(4) Termination of temporary resident status.--
(A) In general.--During the period of temporary resident status granted an alien under this subsection, the Secretary may terminate such status only upon a determination under this Act that the alien is deportable.
(B) Grounds for termination of temporary resident status.--Before any alien becomes eligible for adjustment of status under subsection (c), the Secretary may deny adjustment to permanent resident status and provide for termination of the temporary resident status granted such alien under paragraph
(1) if--
(i) the Secretary finds, by a preponderance of the evidence, that the adjustment to temporary resident status was the result of fraud or willful misrepresentation (as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or
(ii) the alien--
(I) commits an act that makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (e)(2);
(II) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
(III) is convicted of a single misdemeanor for which the actual sentence served is 6 months or longer.
(5) Record of employment.--
(A) In general.--Each employer of a worker granted status under this subsection shall annually--
(i) provide a written record of employment to the alien; and
(ii) provide a copy of such record to the Secretary.
(B) Sunset.--The obligation under subparagraph (A) shall terminate on the date that is 6 years after the date of enactment of this Act.
(b) Rights of Aliens Granted Temporary Resident Status.--
(1) In general.--Except as otherwise provided in this subsection, an alien who acquires the status of an alien lawfully admitted for temporary residence under subsection
(a), such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence for purposes of any law other than any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(2) Delayed eligibility for certain federal public benefits.--An alien who acquires the status of an alien lawfully admitted for temporary residence under subsection
(a) as described in paragraph (1) shall not be eligible, by reason of such acquisition of that status, for any form of assistance or benefit described in section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(a)) until 5 years after the date on which the Secretary confers permanent resident status upon that alien under subsection (a).
(3) Terms of employment respecting aliens admitted under this section.--
(A) Prohibition.--No alien granted temporary resident status under subsection (a) may be terminated from employment by any employer during the period of temporary resident status except for just cause.
(B) Treatment of complaints.--
(i) Establishment of process.--The Secretary shall establish a process for the receipt, initial review, and disposition in accordance with this subparagraph of complaints by aliens granted temporary resident status under subsection (a) who allege that they have been terminated without just cause. No proceeding shall be conducted under this subparagraph with respect to a termination unless the Secretary determines that the complaint was filed not later than 6 months after the date of the termination.
(ii) Initiation of arbitration.--If the Secretary finds that a complaint has been filed in accordance with clause (i) and there is reasonable cause to believe that the complainant was terminated without just cause, the Secretary shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint a mutually agreeable arbitrator from the roster of arbitrators maintained by such Service for the geographical area in which the employer is located. The procedures and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Secretary shall pay the fee and expenses of the arbitrator, subject to the availability of appropriations for such purpose.
(iii) Arbitration proceedings.--The arbitrator shall conduct the proceeding in accordance with the policies and procedures promulgated by the American Arbitration Association applicable to private arbitration of employment disputes. The arbitrator shall make findings respecting whether the termination was for just cause. The arbitrator may not find that the termination was for just cause unless the employer so demonstrates by a preponderance of the evidence. If the arbitrator finds that the termination was not for just cause, the arbitrator shall make a specific finding of the number of days or hours of work lost by the employee as a result of the termination. The arbitrator shall have no authority to order any other remedy, including, but not limited to, reinstatement, back pay, or front pay to the affected employee. Within 30 days from the conclusion of the arbitration proceeding, the arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Secretary. Such findings shall be final and conclusive, and no official or court of the United States shall have the power or jurisdiction to review any such findings.
(iv) Effect of arbitration findings.--If the Secretary receives a finding of an arbitrator that an employer has terminated an alien granted temporary resident status under subsection (a) without just cause, the Secretary shall credit the alien for the number of days or hours of work lost for purposes of the requirement of subsection (c)(1).
(v) Treatment of attorney's fees.--The parties shall bear the cost of their own attorney's fees involved in the litigation of the complaint.
(vi) Nonexclusive remedy.--The complaint process provided for in this subparagraph is in addition to any other rights an employee may have in accordance with applicable law.
(vii) Effect on other actions or proceedings.--Any finding of fact or law, judgment, conclusion, or final order made by an arbitrator in the proceeding before the Secretary shall not be conclusive or binding in any separate or subsequent action or proceeding between the employee and the employee's current or prior employer brought before an arbitrator, administrative agency, court, or judge of any State or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts, except that the arbitrator's specific finding of the number of days or hours of work lost by the employee as a result of the employment termination may be referred to the Secretary pursuant to clause (iv).
(C) Civil penalties.--
(i) In general.--If the Secretary finds, after notice and opportunity for a hearing, that an employer of an alien granted temporary resident status under subsection (a) has failed to provide the record of employment required under subsection (a)(5) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil money penalty in an amount not to exceed $1,000 per violation.
(ii) Limitation.--The penalty applicable under clause (i) for failure to provide records shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this section.
(c) Adjustment to Permanent Residence.--
(1) Agricultural workers.--
(A) In general.--Except as provided in subparagraph (B), the Secretary shall adjust the status of an alien granted lawful temporary resident status under subsection (a) to that of an alien lawfully admitted for permanent residence if the Secretary determines that the following requirements are satisfied:
(i) Qualifying employment.--The alien has performed at least 360 work days or 2,060 hours, but in no case less than 2,060 hours, of agricultural employment in the United States, during the 6-year period beginning after the date of enactment of this Act.
(ii) Qualifying years.--The alien has performed at least 75 work days or 430 hours, but in no case less than 430 hours, of agricultural employment in the United States in at least 3 nonoverlapping periods of 12 consecutive months during the 6-year period beginning after the date of enactment of this Act. Qualifying periods under this clause may include nonconsecutive 12-month periods.
(iii) Qualifying work in first 3 years.--The alien has performed at least 240 work days or 1,380 hours, but in no case less than 1,380 hours, of agricultural employment during the 3-year period beginning after the date of enactment of this Act.
(iv) Application period.--The alien applies for adjustment of status not later than 7 years after the date of enactment of this Act.
(v) Proof.--In meeting the requirements of clauses (i),
(ii), and (iii), an alien may submit the record of employment described in subsection (a)(5) or such documentation as may be submitted under subsection (d)(3).
(vi) Disability.--In determining whether an alien has met the requirements of clauses (i), (ii), and (iii), the Secretary shall credit the alien with any work days lost because the alien was unable to work in agricultural employment due to injury or disease arising out of and in the course of the alien's agricultural employment, if the alien can establish such disabling injury or disease through medical records.
(B) Grounds for denial of adjustment of status.--The Secretary may deny an alien adjustment to permanent resident status, and provide for termination of the temporary resident status granted such alien under subsection (a), if--
(i) the Secretary finds by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation, as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or
(ii) the alien--
(I) commits an act that makes the alien inadmissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as provided under subsection (e)(2);
(II) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
(III) is convicted of a single misdemeanor for which the actual sentence served is 6 months or longer.
(C) Grounds for removal.--Any alien granted temporary resident status under subsection (a) who does not apply for adjustment of status under this subsection before the expiration of the application period described in subparagraph (A)(iv), or who fails to meet the other requirements of subparagraph (A) by the end of the applicable period, is deportable and may be removed under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a). The Secretary shall issue regulations establishing grounds to waive subparagraph (A)(iii) with respect to an alien who has completed at least 200 days of the work requirement specified in such subparagraph in the event of a natural disaster which substantially limits the availability of agricultural employment or a personal emergency that prevents compliance with such subparagraph.
(2) Spouses and minor children.--
(A) In general.--Notwithstanding any other provision of law, the Secretary shall confer the status of lawful permanent resident on the spouse and minor child of an alien granted status under paragraph (1), including any individual who was a minor child on the date such alien was granted temporary resident status, if the spouse or minor child applies for such status, or if the principal alien includes the spouse or minor child in an application for adjustment of status to that of a lawful permanent resident.
(B) Treatment of spouses and minor children before adjustment of status.--A spouse and minor child of an alien granted temporary resident status under subsection (a) may not be--
(i) removed while such alien maintains such status, except as provided in subparagraph (C); and
(ii) granted authorization to engage in employment in the United States or be provided an ``employment authorized'' endorsement or other work permit, unless such employment authorization is granted under another provision of law.
(C) Grounds for denial of adjustment of status and removal.--The Secretary may deny an alien spouse or child adjustment of status under subparagraph (A) and may remove such spouse or child under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) if the spouse or child--
(i) commits an act that makes the alien spouse or child inadmissible to the United States under section 212 of such Act (8 U.S.C. 1182), except as provided under subsection
(e)(2);
(ii) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
(iii) is convicted of a single misdemeanor for which the actual sentence served is 6 months or longer.
(d) Applications.--
(1) To whom may be made.--
(A) Within the united states.--The Secretary shall provide that--
(i) applications for temporary resident status under subsection (a) may be filed--
(I) with the Secretary, but only if the applicant is represented by an attorney; or
(II) with a qualified designated entity (designated under paragraph (2)), but only if the applicant consents to the forwarding of the application to the Secretary; and
(ii) applications for adjustment of status under subsection
(c) shall be filed directly with the Secretary.
(B) Outside the united states.--The Secretary, in cooperation with the Secretary of State, shall establish a procedure whereby an alien may apply for temporary resident status under subsection (a) at an appropriate consular office outside the United States.
(C) Preliminary applications.--
(i) In general.--During the application period described in subsection (a)(1)(B), the Secretary may grant admission to the United States as a temporary resident and provide an
``employment authorized'' endorsement or other appropriate work permit to any alien who presents a preliminary application for such status under subsection (a) at a designated port of entry on the southern land border of the United States. An alien who does not enter through a port of entry is subject to deportation and removal as otherwise provided in this Act.
(ii) Definition.--For purposes of clause (i), the term
``preliminary application'' means a fully completed and signed application which contains specific information concerning the performance of qualifying employment in the United States, together with the payment of the appropriate fee and the submission of photographs and the documentary evidence which the applicant intends to submit as proof of such employment.
(iii) Eligibility.--An applicant under clause (i) shall otherwise be admissible to the United States under subsection
(e)(2) and shall establish to the satisfaction of the examining officer during an interview that the applicant's claim to eligibility for temporary resident status is credible.
(D) Travel documentation.--The Secretary shall provide each alien granted status under this section with a counterfeit-resistant document of authorization to enter or reenter the United States that meets the requirements established by the Secretary.
(2) Designation of entities to receive applications.--
(A) In general.--For purposes of receiving applications under subsection (a), the Secretary--
(i) shall designate qualified farm labor organizations and associations of employers; and
(ii) may designate such other persons as the Secretary determines are qualified and have substantial experience, demonstrate competence, and have traditional long-term involvement in the preparation and submission of applications for adjustment of status under section 209, 210, or 245 of the Immigration and Nationality Act, Public Law 8909732, Public Law 9509145, or the Immigration Reform and Control Act of 1986.
(B) References.--Organizations, associations, and persons designated under subparagraph (A) are referred to in this Act as ``qualified designated entities''.
(3) Proof of eligibility.--
(A) In general.--An alien may establish that the alien meets the requirement of subsection (a)(1)(A) or (c)(1)(A) through government employment records or records supplied by employers or collective bargaining organizations, and other reliable documentation as the alien may provide. The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.
(B) Documentation of work history.--
(i) Burden of proof.--An alien applying for status under subsection (a)(1) or (c)(1) has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of hours or days (as required under subsection (a)(1)(A) or (c)(1)(A)).
(ii) Timely production of records.--If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under clause (i) may be met by securing timely production of those records under regulations to be promulgated by the Secretary.
(iii) Sufficient evidence.--An alien can meet the burden of proof under clause (i) to establish that the alien has performed the work described in subsection (a)(1)(A) or
(c)(1)(A) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.
(4) Treatment of applications by qualified designated entities.--Each qualified designated entity shall agree to forward to the Secretary applications filed with it in accordance with paragraph (1)(A)(i)(II) but shall not forward to the Secretary applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Secretary. Upon the request of the alien, a qualified designated entity shall assist the alien in obtaining documentation of the work history of the alien.
(5) Limitation on access to information.--Files and records prepared for purposes of this subsection by qualified designated entities operating under this subsection are confidential and the Secretary shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6).
(6) Confidentiality of information.--
(A) In general.--Except as otherwise provided in this subsection, neither the Secretary, nor any other official or employee of the Department of Homeland Security, or bureau or agency thereof, may--
(i) use the information furnished by the applicant pursuant to an application filed under this section, the information provided to the applicant by a person designated under paragraph (2)(A), or any information provided by an employer or former employer, for any purpose other than to make a determination on the application, or for enforcement of paragraph (7);
(ii) make any publication whereby the information furnished by any particular individual can be identified; or
(iii) permit anyone other than the sworn officers and employees of the Department of Homeland Security, or bureau or agency thereof, or, with respect to applications filed with a qualified designated entity, that qualified designated entity, to examine individual applications.
(B) Required disclosures.--The Secretary shall provide the information furnished under this section, or any other information derived from such furnished information, to--
(i) a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, if such information is requested in writing by such entity; or
(ii) an official coroner, for purposes of affirmatively identifying a deceased individual, whether or not the death of such individual resulted from a crime.
(C) Construction.--
(i) In general.--Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Department of Homeland Security pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
(ii) Criminal convictions.--Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
(D) Crime.--Any person who knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be subject to a fine in an amount not to exceed $10,000.
(7) Penalties for false statements in applications.--
(A) Criminal penalty.--Any person who--
(i) files an application for status under subsection (a) or
(c) and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or
(ii) creates or supplies a false writing or document for use in making such an application,shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.
(B) Inadmissibility.--An alien who is convicted of a crime under subparagraph (A) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).
(8) Eligibility for legal services.--Section 504(a)(11) of Public Law 10409134 (110 Stat. 13210953 et seq.) shall not be construed to prevent a recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) from providing legal assistance directly related to an application for adjustment of status under this section.
(9) Application fees.--
(A) Fee schedule.--The Secretary shall provide for a schedule of fees that--
(i) shall be charged for the filing of applications for status under subsections (a) and (c); and
(ii) may be charged by qualified designated entities to help defray the costs of services provided to such applicants.
(B) Prohibition on excess fees by qualified designated entities.--A qualified designated entity may not charge any fee in excess of, or in addition to, the fees authorized under subparagraph (A)(ii) for services provided to applicants.
(C) Disposition of fees.--
(i) In general.--There is established in the general fund of the Treasury a separate account, which shall be known as the ``Agricultural Worker Immigration Status Adjustment Account''. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under subparagraph (A)(i).
(ii) Use of fees for application processing.--Amounts deposited in the ``Agricultural Worker Immigration Status Adjustment Account'' shall remain available to the Secretary until expended for processing applications for status under subsections (a) and (c).
(e) Waiver of Numerical Limitations and Certain Grounds for Inadmissibility.--
(1) Numerical limitations do not apply.--The numerical limitations of sections 201 and 202 of the Immigration and Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the adjustment of aliens to lawful permanent resident status under this section.
(2) Waiver of certain grounds of inadmissibility.--In the determination of an alien's eligibility for status under subsection (a)(1)(C) or an alien's eligibility for adjustment of status under subsection (c)(1)(B)(ii)(I), the following rules shall apply:
(A) Grounds of exclusion not applicable.--The provisions of paragraphs (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply.
(B) Waiver of other grounds.--
(i) In general.--Except as provided in clause (ii), the Secretary may waive any other provision of such section 212(a) in the case of individual aliens for humanitarian purposes, to ensure family unity, or if otherwise in the public interest.
(ii) Grounds that may not be waived.--Paragraphs (2)(A),
(2)(B), (2)(C), (3), and (4) of such section 212(a) may not be waived by the Secretary under clause (i).
(iii) Construction.--Nothing in this subparagraph shall be construed as affecting the authority of the Secretary other than under this subparagraph to waive provisions of such section 212(a).
(C) Special rule for determination of public charge.--An alien is not ineligible for status under this section by reason of a ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public cash assistance.
(f) Temporary Stay of Removal and Work Authorization for Certain Applicants.--
(1) Before application period.--Effective on the date of enactment of this Act, the Secretary shall provide that, in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(B) and who can establish a nonfrivolous case of eligibility for temporary resident status under subsection (a) (but for the fact that the alien may not apply for such status until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for temporary resident status, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in employment in the United States and be provided an ``employment authorized'' endorsement or other appropriate work permit for such purpose.
(2) During application period.--The Secretary shall provide that, in the case of an alien who presents a nonfrivolous application for temporary resident status under subsection
(a) during the application period described in subsection
(a)(1)(B), including an alien who files such an application within 30 days of the alien's apprehension, and until a final determination on the application has been made in accordance with this section, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in employment in the United States and be provided an ``employment authorized'' endorsement or other appropriate work permit for such purpose.
(g) Administrative and Judicial Review.--
(1) In general.--There shall be no administrative or judicial review of a determination respecting an application for status under subsection (a) or (c) except in accordance with this subsection.
(2) Administrative review.--
(A) Single level of administrative appellate review.--The Secretary shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
(B) Standard for review.--Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
(3) Judicial review.--
(A) Limitation to review of removal.--There shall be judicial review of such a determination only in the judicial review of an order of removal under section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
(B) Standard for judicial review.--Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
(h) Dissemination of Information on Adjustment Program.--Beginning not later than the first day of the application period described in subsection (a)(1)(B), the Secretary, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits that aliens may receive under this section and the requirements to be satisfied to obtain such benefits.
(i) Regulations.--The Secretary shall issue regulations to implement this section not later than the first day of the seventh month that begins after the date of enactment of this Act.
(j) Effective Date.--This section shall take effect on the date that regulations are issued implementing this section on an interim or other basis.
(k) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary to carry out this section
$40,000,000 for each of fiscal years 2006 through 2009.
SEC. _12. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(d)(1) of the Social Security Act (42 U.S.C. 408(d)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted status as a lawful temporary resident under the Agricultural Job Opportunity, Benefits, and Security Act of 2005,''; and
(4) by striking ``1990.'' and inserting ``1990, or in the case of an alien described in subparagraph (D), if such conduct is alleged to have occurred before the date on which the alien was granted lawful temporary resident status.''.
(b) Effective Date.--The amendments made by subsection (a) shall take effect on the first day of the seventh month that begins after the date of enactment of this Act.
Subtitle B--Reform of H-2A Worker Program
SEC. _21. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
(a) In General.--The Immigration and Nationality Act is amended by striking section 218 (8 U.S.C. 1188) and inserting the following:
``H-2A EMPLOYER APPLICATIONS
``Sec. 218. (a) Applications to the Secretary of Labor.--
``(1) In general.--No alien may be admitted to the United States as an H-2A worker, or otherwise provided status as an H-2A worker, unless the employer has filed with the Secretary of Labor an application containing--
``(A) the assurances described in subsection (b);
``(B) a description of the nature and location of the work to be performed;
``(C) the anticipated period (expected beginning and ending dates) for which the workers will be needed; and
``(D) the number of job opportunities in which the employer seeks to employ the workers.
``(2) Accompanied by job offer.--Each application filed under paragraph (1) shall be accompanied by a copy of the job offer describing the wages and other terms and conditions of employment and the bona fide occupational qualifications that shall be possessed by a worker to be employed in the job opportunity in question.
``(b) Assurances for Inclusion in Applications.--The assurances referred to in subsection (a)(1) are the following:
``(1) Job opportunities covered by collective bargaining agreements.--With respect to a job opportunity that is covered under a collective bargaining agreement:
``(A) Union contract described.--The job opportunity is covered by a union contract which was negotiated at arm's length between a bona fide union and the employer.
``(B) Strike or lockout.--The specific job opportunity for which the employer is requesting an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.
``(C) Notification of bargaining representatives.--The employer, at the time of filing the application, has provided notice of the filing under this paragraph to the bargaining representative of the employer's employees in the occupational classification at the place or places of employment for which aliens are sought.
``(D) Temporary or seasonal job opportunities.--The job opportunity is temporary or seasonal.
``(E) Offers to united states workers.--The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or the nonimmigrants are, sought and who will be available at the time and place of need.
``(F) Provision of insurance.--If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.
``(2) Job opportunities not covered by collective bargaining agreements.--With respect to a job opportunity that is not covered under a collective bargaining agreement:
``(A) Strike or lockout.--The specific job opportunity for which the employer is requesting an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.
``(B) Temporary or seasonal job opportunities.--The job opportunity is temporary or seasonal.
``(C) Benefit, wage, and working conditions.--The employer will provide, at a minimum, the benefits, wages, and working conditions required by section 218A to all workers employed in the job opportunities for which the employer has applied under subsection (a) and to all other workers in the same occupation at the place of employment.
``(D) Nondisplacement of united states workers.--The employer did not displace and will not displace a United States worker employed by the employer during the period of employment and for a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer seeks approval to employ H-2A workers.
``(E) Requirements for placement of nonimmigrant with other employers.--The employer will not place the nonimmigrant with another employer unless--
``(i) the nonimmigrant performs duties in whole or in part at 1 or more work sites owned, operated, or controlled by such other employer;
``(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer; and
``(iii) the employer has inquired of the other employer as to whether, and has no actual knowledge or notice that, during the period of employment and for a period of 30 days preceding the period of employment, the other employer has displaced or intends to displace a United States worker employed by the other employer in the occupation at the place of employment for which the employer seeks approval to employ H-2A workers.
``(F) Statement of liability.--The application form shall include a clear statement explaining the liability under subparagraph (E) of an employer if the other employer described in such subparagraph displaces a United States worker as described in such subparagraph.
``(G) Provision of insurance.--If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.
``(H) Employment of united states workers.--
``(i) Recruitment.--The employer has taken or will take the following steps to recruit United States workers for the job opportunities for which the H-2A nonimmigrant is, or H-2A nonimmigrants are, sought:
``(I) Contacting former workers.--The employer shall make reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any United States worker the employer employed during the previous season in the occupation at the place of intended employment for which the employer is applying for workers and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous workers, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.
``(II) Filing a job offer with the local office of the state employment security agency.--Not later than 28 days before the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall submit a copy of the job offer described in subsection (a)(2) to the local office of the State employment security agency which serves the area of intended employment and authorize the posting of the job opportunity on `America's Job Bank' or other electronic job registry, except that nothing in this subclause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations.
``(III) Advertising of job opportunities.--Not later than 14 days before the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall advertise the availability of the job opportunities for which the employer is seeking workers in a publication in the local labor market that is likely to be patronized by potential farm workers.
``(IV) Emergency procedures.--The Secretary of Labor shall, by regulation, provide a procedure for acceptance and approval of applications in which the employer has not complied with the provisions of this subparagraph because the employer's need for H-2A workers could not reasonably have been foreseen.
``(ii) Job offers.--The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or nonimmigrants are, sought and who will be available at the time and place of need.
``(iii) Period of employment.--The employer will provide employment to any qualified United States worker who applies to the employer during the period beginning on the date on which the foreign worker departs for the employer's place of employment and ending on the date on which 50 percent of the period of employment for which the foreign worker who is in the job was hired has elapsed, subject to the following requirements:
``(I) Prohibition.--No person or entity shall willfully and knowingly withhold United States workers before the arrival of H-2A workers in order to force the hiring of United States workers under this clause.
``(II) Complaints.--Upon receipt of a complaint by an employer that a violation of subclause (I) has occurred, the Secretary of Labor shall immediately investigate. The Secretary of Labor shall, within 36 hours of the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary of Labor finds that a violation has occurred, the Secretary of Labor shall immediately suspend the application of this clause with respect to that certification for that date of need.
``(III) Placement of united states workers.--Before referring a United States worker to an employer during the period described in the matter preceding subclause (I), the Secretary of Labor shall make all reasonable efforts to place the United States worker in an open job acceptable to the worker, if there are other job offers pending with the job service that offer similar job opportunities in the area of intended employment.
``(iv) Statutory construction.--Nothing in this subparagraph shall be construed to prohibit an employer from using such legitimate selection criteria relevant to the type of job that are normal or customary to the type of job involved so long as such criteria are not applied in a discriminatory manner.
``(c) Applications by Associations on Behalf of Employer Members.--
``(1) In general.--An agricultural association may file an application under subsection (a) on behalf of 1 or more of its employer members that the association certifies in its application has or have agreed in writing to comply with the requirements of this section and sections 218A through 218C.
``(2) Treatment of associations acting as employers.--If an association filing an application under paragraph (1) is a joint or sole employer of the temporary or seasonal agricultural workers requested on the application, the certifications granted under subsection (e)(2)(B) to the association may be used for the certified job opportunities of any of its producer members named on the application, and such workers may be transferred among such producer members to perform the agricultural services of a temporary or seasonal nature for which the certifications were granted.
``(d) Withdrawal of Applications.--
``(1) In general.--An employer may withdraw an application filed pursuant to subsection (a), except that if the employer is an agricultural association, the association may withdraw an application filed pursuant to subsection (a) with respect to 1 or more of its members. To withdraw an application, the employer or association shall notify the Secretary of Labor in writing, and the Secretary of Labor shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws an application under subsection (a), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.
``(2) Limitation.--An application may not be withdrawn while any alien provided status under section 101(a)(15)(H)(ii)(a) pursuant to such application is employed by the employer.
``(3) Obligations under other statutes.--Any obligation incurred by an employer under any other law or regulation as a result of the recruitment of United States workers or H-2A workers under an offer of terms and conditions of employment required as a result of making an application under subsection (a) is unaffected by withdrawal of such application.
``(e) Review and Approval of Applications.--
``(1) Responsibility of employers.--The employer shall make available for public examination, within 1 working day after the date on which an application under subsection (a) is filed, at the employer's principal place of business or work site, a copy of each such application (and such accompanying documents as are necessary).
``(2) Responsibility of the secretary of labor.--
``(A) Compilation of list.--The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of workers sought, period of intended employment, and date of need. The Secretary of Labor shall make such list available for examination in the District of Columbia.
``(B) Review of applications.--The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that the application is incomplete or obviously inaccurate, the Secretary of Labor shall certify that the intending employer has filed with the Secretary of Labor an application as described in subsection (a). Such certification shall be provided within 7 days of the filing of the application.
``H-2A EMPLOYMENT REQUIREMENTS
``Sec. 218A. (a) Preferential Treatment of Aliens Prohibited.--Employers seeking to hire United States workers shall offer the United States workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers. Conversely, no job offer may impose on United States workers any restrictions or obligations which will not be imposed on the employer's H-2A workers.
``(b) Minimum Benefits, Wages, and Working Conditions.--Except in cases where higher benefits, wages, or working conditions are required by the provisions of subsection (a), in order to protect similarly employed United States workers from adverse effects with respect to benefits, wages, and working conditions, every job offer which shall accompany an application under section 218(b)(2) shall include each of the following benefit, wage, and working condition provisions:
``(1) Requirement to provide housing or a housing allowance.--
``(A) In general.--An employer applying under section 218(a) for H-2A workers shall offer to provide housing at no cost to all workers in job opportunities for which the employer has applied under that section and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance.
``(B) Type of housing.--In complying with subparagraph (A), an employer may, at the employer's election, provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets applicable local standards for rental or public accommodation housing or other substantially similar class of habitation, or in the absence of applicable local standards, State standards for rental or public accommodation housing or other substantially similar class of habitation. In the absence of applicable local or State standards, Federal temporary labor camp standards shall apply.
``(C) Family housing.--When it is the prevailing practice in the occupation and area of intended employment to provide family housing, family housing shall be provided to workers with families who request it.
``(D) Workers engaged in the range production of livestock.--The Secretary of Labor shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.
``(E) Limitation.--Nothing in this paragraph shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986.
``(F) Charges for housing.--
``(i) Charges for public housing.--If public housing provided for migrant agricultural workers under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual or entity affiliated with the housing's management.
``(ii) Deposit charges.--Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers. An employer may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.
``(G) Housing allowance as alternative.--
``(i) In general.--If the requirement under clause (ii) is satisfied, the employer may provide a reasonable housing allowance instead of offering housing under subparagraph (A). Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1823) solely by virtue of providing such housing allowance. No housing allowance may be used for housing which is owned or controlled by the employer.
``(ii) Certification.--The requirement of this clause is satisfied if the Governor of the State certifies to the Secretary of Labor that there is adequate housing available in the area of intended employment for migrant farm workers, and H-2A workers, who are seeking temporary housing while employed at farm work. Such certification shall expire after 3 years unless renewed by the Governor of the State.
``(iii) Amount of allowance.--
``(I) Nonmetropolitan counties.--If the place of employment of the workers provided an allowance under this subparagraph is a nonmetropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2 bedroom dwelling unit and an assumption of 2 persons per bedroom.
``(II) Metropolitan counties.--If the place of employment of the workers provided an allowance under this paragraph is in a metropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for metropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2 persons per bedroom.
``(2) Reimbursement of transportation.--
``(A) To place of employment.--A worker who completes 50 percent of the period of employment of the job opportunity for which the worker was hired shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place from which the worker came to work for the employer (or place of last employment, if the worker traveled from such place) to the place of employment.
``(B) From place of employment.--A worker who completes the period of employment for the job opportunity involved shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation and subsistence to such subsequent employer's place of employment.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as provided in clause (ii), the amount of reimbursement provided under subparagraph (A) or (B) to a worker or alien shall not exceed the lesser of--
``(I) the actual cost to the worker or alien of the transportation and subsistence involved; or
``(II) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.
``(ii) Distance traveled.--No reimbursement under subparagraph (A) or (B) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through an allowance as provided in paragraph (1)(G).
``(D) Early termination.--If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (4)(D)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by subparagraph (B) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by subparagraph (A).
``(E) Transportation between living quarters and work site.--The employer shall provide transportation between the worker's living quarters and the employer's work site without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.
``(3) Required wages.--
``(A) In general.--An employer applying for workers under section 218(a) shall offer to pay, and shall pay, all workers in the occupation for which the employer has applied for workers, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the applicable State minimum wage.
``(B) Limitation.--Effective on the date of enactment of the Agricultural Job Opportunity, Benefits, and Security Act of 2005 and continuing for 3 years thereafter, no adverse effect wage rate for a State may be more than the adverse effect wage rate for that State in effect on January 1, 2003, as established by section 655.107 of title 20, Code of Federal Regulations.
``(C) Required wages after 3-year freeze.--
``(i) First adjustment.--If Congress does not set a new wage standard applicable to this section before the first March 1 that is not less than 3 years after the date of enactment of this section, the adverse effect wage rate for each State beginning on such March 1 shall be the wage rate that would have resulted if the adverse effect wage rate in effect on January 1, 2003, had been annually adjusted, beginning on March 1, 2006, by the lesser of--
``(I) the 12 month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; and
``(II) 4 percent.
``(ii) Subsequent annual adjustments.--Beginning on the first March 1 that is not less than 4 years after the date of enactment of this section, and each March 1 thereafter, the adverse effect wage rate then in effect for each State shall be adjusted by the lesser of--
``(I) the 12 month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; and
``(II) 4 percent.
``(D) Deductions.--The employer shall make only those deductions from the worker's wages that are authorized by law or are reasonable and customary in the occupation and area of employment. The job offer shall specify all deductions not required by law which the employer will make from the worker's wages.
``(E) Frequency of pay.--The employer shall pay the worker not less frequently than twice monthly, or in accordance with the prevailing practice in the area of employment, whichever is more frequent.
``(F) Hours and earnings statements.--The employer shall furnish to the worker, on or before each payday, in 1 or more written statements--
``(i) the worker's total earnings for the pay period;
``(ii) the worker's hourly rate of pay, piece rate of pay, or both;
``(iii) the hours of employment which have been offered to the worker (broken out by hours offered in accordance with and over and above the three-quarters guarantee described in paragraph (4);
``(iv) the hours actually worked by the worker;
``(v) an itemization of the deductions made from the worker's wages; and
``(vi) if piece rates of pay are used, the units produced daily.
``(G) Report on wage protections.--Not later than June 1, 2007, the Comptroller General of the United States shall prepare and transmit to the Secretary of Labor, the Committee on the Judiciary of the Senate, and Committee on the Judiciary of the House of Representatives, a report that addresses--
``(i) whether the employment of H-2A or unauthorized aliens in the United States agricultural work force has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;
``(ii) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;
``(iii) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;
``(iv) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage; and
``(v) recommendations for future wage protection under this section.
``(H) Commission on wage standards.--
``(i) Establishment.--There is established the Commission on Agricultural Wage Standards under the H-2A program (in this subparagraph referred to as the `Commission').
``(ii) Composition.--The Commission shall consist of 10 members as follows:
``(I) 4 representatives of agricultural employers and 1 representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.
``(II) 4 representatives of agricultural workers and 1 representative of the Department of Labor, each appointed by the Secretary of Labor.
``(iii) Functions.--The Commission shall conduct a study that shall address--
``(I) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;
``(II) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;
``(III) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;
``(IV) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; and
``(V) recommendations for future wage protection under this section.
``(iv) Final report.--Not later than June 1, 2007, the Commission shall submit a report to the Congress setting forth the findings of the study conducted under clause (iii).
``(v) Termination date.--The Commission shall terminate upon submitting its final report.
``(4) Guarantee of employment.--
``(A) Offer to worker.--The employer shall guarantee to offer the worker employment for the hourly equivalent of at least three-fourths of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker's Sabbath and Federal holidays. If the employer affords the United States or H-2A worker less employment than that required under this paragraph, the employer shall pay such worker the amount which the worker would have earned had the worker, in fact, worked for the guaranteed number of hours.
``(B) Failure to work.--Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker's Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met.
``(C) Abandonment of employment, termination for cause.--If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, the worker is not entitled to the `three-fourths guarantee' described in subparagraph (A).
``(D) Contract impossibility.--If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster, including but not limited to a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker's employment. In the event of such termination, the employer shall fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment. In such cases, the employer will make efforts to transfer the United States worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall provide the return transportation required in paragraph (2)(D).
``(5) Motor vehicle safety.--
``(A) Mode of transportation subject to coverage.--
``(i) In general.--Except as provided in clauses (iii) and
(iv), this subsection applies to any H-2A employer that uses or causes to be used any vehicle to transport an H-2A worker within the United States.
``(ii) Defined term.--In this paragraph, the term `uses or causes to be used'--
``(I) applies only to transportation provided by an H-2A employer to an H-2A worker, or by a farm labor contractor to an H-2A worker at the request or direction of an H-2A employer; and
``(II) does not apply to--
``(aa) transportation provided, or transportation arrangements made, by an H-2A worker, unless the employer specifically requested or arranged such transportation; or
``(bb) car pooling arrangements made by H-2A workers themselves, using 1 of the workers' own vehicles, unless specifically requested by the employer directly or through a farm labor contractor.
``(iii) Clarification.--Providing a job offer to an H-2A worker that causes the worker to travel to or from the place of employment, or the payment or reimbursement of the transportation costs of an H-2A worker by an H-2A employer, shall not constitute an arrangement of, or participation in, such transportation.
``(iv) Agricultural machinery and equipment excluded.--This subsection does not apply to the transportation of an H-2A worker on a tractor, combine, harvester, picker, or other similar machinery or equipment while such worker is actually engaged in the planting, cultivating, or harvesting of agricultural commodities or the care of livestock or poultry or engaged in transportation incidental thereto.
``(v) Common carriers excluded.--This subsection does not apply to common carrier motor vehicle transportation in which the provider holds itself out to the general public as engaging in the transportation of passengers for hire and holds a valid certification of authorization for such purposes from an appropriate Federal, State, or local agency.
``(B) Applicability of standards, licensing, and insurance requirements.--
``(i) In general.--When using, or causing to be used, any vehicle for the purpose of providing transportation to which this subparagraph applies, each employer shall--
``(I) ensure that each such vehicle conforms to the standards prescribed by the Secretary of Labor under section 401(b) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1841(b)) and other applicable Federal and State safety standards;
``(II) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle; and
``(III) have an insurance policy or a liability bond that is in effect which insures the employer against liability for damage to persons or property arising from the ownership, operation, or causing to be operated, of any vehicle used to transport any H-2A worker.
``(ii) Amount of insurance required.--The level of insurance required shall be determined by the Secretary of Labor pursuant to regulations to be issued under this subsection.
``(iii) Effect of workers' compensation coverage.--If the employer of any H-2A worker provides workers' compensation coverage for such worker in the case of bodily injury or death as provided by State law, the following adjustments in the requirements of subparagraph (B)(i)(III) relating to having an insurance policy or liability bond apply:
``(I) No insurance policy or liability bond shall be required of the employer, if such workers are transported only under circumstances for which there is coverage under such State law.
``(II) An insurance policy or liability bond shall be required of the employer for circumstances under which coverage for the transportation of such workers is not provided under such State law.
``(c) Compliance With Labor Laws.--An employer shall assure that, except as otherwise provided in this section, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer, except that a violation of this assurance shall not constitute a violation of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).
``(d) Copy of Job Offer.--The employer shall provide to the worker, not later than the day the work commences, a copy of the employer's application and job offer described in section 218(a), or, if the employer will require the worker to enter into a separate employment contract covering the employment in question, such separate employment contract.
``(e) Range Production of Livestock.--Nothing in this section, section 218, or section 218B shall preclude the Secretary of Labor and the Secretary from continuing to apply special procedures and requirements to the admission and employment of aliens in occupations involving the range production of livestock.
``PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS
``Sec. 218B. (a) Petitioning for Admission.--An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H-2A worker may file a petition with the Secretary. The petition shall be accompanied by an accepted and currently valid certification provided by the Secretary of Labor under section 218(e)(2)(B) covering the petitioner.
``(b) Expedited Adjudication by the Secretary.--The Secretary shall establish a procedure for expedited adjudication of petitions filed under subsection (a) and within 7 working days shall, by fax, cable, or other means assuring expedited delivery, transmit a copy of notice of action on the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States.
``(c) Criteria for Admissibility.--
``(1) In general.--An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section, section 218, and section 218A, and the alien is not ineligible under paragraph (2).
``(2) Disqualification.--An alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years--
``(A) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; or
``(B) otherwise violated a term or condition of admission into the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.
``(3) Waiver of ineligibility for unlawful presence.--
``(A) In general.--An alien who has not previously been admitted into the United States pursuant to this section, and who is otherwise eligible for admission in accordance with paragraphs (1) and (2), shall not be deemed inadmissible by virtue of section 212(a)(9)(B). If an alien described in the preceding sentence is present in the United States, the alien may apply from abroad for H-2A status, but may not be granted that status in the United States.
``(B) Maintenance of waiver.--An alien provided an initial waiver of ineligibility pursuant to subparagraph (A) shall remain eligible for such waiver unless the alien violates the terms of this section or again becomes ineligible under section 212(a)(9)(B) by virtue of unlawful presence in the United States after the date of the initial waiver of ineligibility pursuant to subparagraph (A).
``(d) Period of Admission.--
``(1) In general.--The alien shall be admitted for the period of employment in the application certified by the Secretary of Labor pursuant to section 218(e)(2)(B), not to exceed 10 months, supplemented by a period of not more than 1 week before the beginning of the period of employment for the purpose of travel to the work site and a period of 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment, except that--
``(A) the alien is not authorized to be employed during such 14-day period except in the employment for which the alien was previously authorized; and
``(B) the total period of employment, including such 14-day period, may not exceed 10 months.
``(2) Construction.--Nothing in this subsection shall limit the authority of the Secretary to extend the stay of the alien under any other provision of this Act.
``(e) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status under section 101(a)(15)(H)(ii)(a) who abandons the employment which was the basis for such admission or status shall be considered to have failed to maintain nonimmigrant status as an H-2A worker and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--The employer, or association acting as agent for the employer, shall notify the Secretary not later than 7 days after an H-2A worker prematurely abandons employment.
``(3) Removal by the secretary.--The Secretary shall promptly remove from the United States any H-2A worker who violates any term or condition of the worker's nonimmigrant status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment.
``(f) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the Secretary required by subsection (e)(2), the Secretary of State shall promptly issue a visa to, and the Secretary shall admit into the United States, an eligible alien designated by the employer to replace an H-2A worker--
``(A) who abandons or prematurely terminates employment; or
``(B) whose employment is terminated after a United States worker is employed pursuant to section 218(b)(2)(H)(iii), if the United States worker voluntarily departs before the end of the period of intended employment or if the employment termination is for a lawful job-related reason.
``(2) Construction.--Nothing in this subsection is intended to limit any preference required to be accorded United States workers under any other provision of this Act.
``(g) Identification Document.--
``(1) In general.--Each alien authorized to be admitted under section 101(a)(15)(H)(ii)(a) shall be provided an identification and employment eligibility document to verify eligibility for employment in the United States and verify such person's proper identity.
``(2) Requirements.--No identification and employment eligibility document may be issued which does not meet the following requirements:
``(A) The document shall be capable of reliably determining whether--
``(i) the individual with the identification and employment eligibility document whose eligibility is being verified is in fact eligible for employment;
``(ii) the individual whose eligibility is being verified is claiming the identity of another person; and
``(iii) the individual whose eligibility is being verified is authorized to be admitted into, and employed in, the United States as an H-2A worker.
``(B) The document shall be in a form that is resistant to counterfeiting and to tampering.
``(C) The document shall--
``(i) be compatible with other databases of the Secretary for the purpose of excluding aliens from benefits for which they are not eligible and determining whether the alien is unlawfully present in the United States; and
``(ii) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.
``(h) Extension of Stay of H-2A Aliens in the United States.--
``(1) Extension of stay.--If an employer seeks approval to employ an H-2A alien who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (a), shall request an extension of the alien's stay and a change in the alien's employment.
``(2) Limitation on filing a petition for extension of stay.--A petition may not be filed for an extension of an alien's stay--
``(A) for a period of more than 10 months; or
``(B) to a date that is more than 3 years after the date of the alien's last admission to the United States under this section.
``(3) Work authorization upon filing a petition for extension of stay.--
``(A) In general.--An alien who is lawfully present in the United States may commence the employment described in a petition under paragraph (1) on the date on which the petition is filed.
``(B) Definition.--For purposes of subparagraph (A), the term `file' means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition.
``(C) Handling of petition.--The employer shall provide a copy of the employer's petition to the alien, who shall keep the petition with the alien's identification and employment eligibility document as evidence that the petition has been filed and that the alien is authorized to work in the United States.
``(D) Approval of petition.--Upon approval of a petition for an extension of stay or change in the alien's authorized employment, the Secretary shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition.
``(4) Limitation on employment authorization of aliens without valid identification and employment eligibility document.--An expired identification and employment eligibility document, together with a copy of a petition for extension of stay or change in the alien's authorized employment that complies with the requirements of paragraph
(1), shall constitute a valid work authorization document for a period of not more than 60 days beginning on the date on which such petition is filed, after which time only a currently valid identification and employment eligibility document shall be acceptable.
``(5) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous period of authorized status as an H-2A worker (including any extensions) is 3 years.
``(B) Requirement to remain outside the united states.--
``(i) In general.--Subject to clause (ii), in the case of an alien outside the United States whose period of authorized status as an H-2A worker (including any extensions) has expired, the alien may not again apply for admission to the United States as an H-2A worker unless the alien has remained outside the United States for a continuous period equal to at least \1/5\ the duration of the alien's previous period of authorized status as an H-2A worker (including any extensions).
``(ii) Exception.--Clause (i) shall not apply in the case of an alien if the alien's period of authorized status as an H-2A worker (including any extensions) was for a period of not more than 10 months and such alien has been outside the United States for at least 2 months during the 12 months preceding the date the alien again is applying for admission to the United States as an H-2A worker.
``(i) Special Rules for Aliens Employed as Sheepherders.--Notwithstanding any provision of the Agricultural Job Opportunity, Benefits, and Security Act of 2005, aliens admitted under section 101(a)(15)(H)(ii)(a) for employment as sheepherders--
``(1) may be admitted for a period of 12 months;
``(2) may be extended for a continuous period of up to 3 years; and
``(3) shall not be subject to the requirements of subsection (h)(5) relating to periods of absence from the United States.
``WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT
``Sec. 218C. (a) Enforcement Authority.--
``(1) Investigation of complaints.--
``(A) Aggrieved person or third-party complaints.--The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in section 218(b), or an employer's misrepresentation of material facts in an application under section 218(a). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure, or misrepresentation, respectively. The Secretary of Labor shall conduct an investigation under this subparagraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
``(B) Determination on complaint.--Under such process, the Secretary of Labor shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C), (D), (E), or (H). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code, within 60 days after the date of the determination. If such a hearing is requested, the Secretary of Labor shall make a finding concerning the matter not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary of Labor may consolidate the hearings under this subparagraph on such complaints.
``(C) Failures to meet conditions.--If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(D), (1)(F), (2)(A), (2)(B), or (2)(G) of section 218(b), a substantial failure to meet a condition of paragraph
(1)(C), (1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section 218(b), or a material misrepresentation of fact in an application under section 218(a)--
``(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; and
``(ii) the Secretary may disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) for a period of 1 year.
``(D) Willful failures and willful misrepresentations.--If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b), a willful misrepresentation of a material fact in an application under section 218(a), or a violation of subsection (d)(1)--
``(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate;
``(ii) the Secretary of Labor may seek appropriate legal or equitable relief to effectuate the purposes of subsection
(d)(1); and
``(iii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 2 years.
``(E) Displacement of united states workers.--If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b) or a willful misrepresentation of a material fact in an application under section 218(a), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's application under section 218(a) or during the period of 30 days preceding such period of employment--
``(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary of Labor determines to be appropriate; and
``(ii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 3 years.
``(F) Limitations on civil money penalties.--The Secretary of Labor shall not impose total civil money penalties with respect to an application under section 218(a) in excess of
$90,000.
``(G) Failures to pay wages or required benefits.--If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment, required under section 218A(b), the Secretary of Labor shall assess payment of back wages, or other required benefits, due any United States worker or H-2A worker employed by the employer in the specific employment in question. The back wages or other required benefits under section 218A(b) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.
``(2) Statutory construction.--Nothing in this section shall be construed as limiting the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section, under section 218 or 218A.
``(b) Rights Enforceable by Private Right of Action.--H-2A workers may enforce the following rights through the private right of action provided in subsection (c), and no other right of action shall exist under Federal or State law to enforce such rights:
``(1) The providing of housing or a housing allowance as required under section 218A(b)(1).
``(2) The reimbursement of transportation as required under section 218A(b)(2).
``(3) The payment of wages required under section 218A(b)(3) when due.
``(4) The benefits and material terms and conditions of employment expressly provided in the job offer described in section 218(a)(2), not including the assurance to comply with other Federal, State, and local labor laws described in section 218A(c), compliance with which shall be governed by the provisions of such laws.
``(5) The guarantee of employment required under section 218A(b)(4).
``(6) The motor vehicle safety requirements under section 218A(b)(5).
``(7) The prohibition of discrimination under subsection
(d)(2).
``(c) Private Right of Action.--
``(1) Mediation.--Upon the filing of a complaint by an H-2A worker aggrieved by a violation of rights enforceable under subsection (b), and within 60 days of the filing of proof of service of the complaint, a party to the action may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute. Upon a filing of such request and giving of notice to the parties, the parties shall attempt mediation within the period specified in subparagraph (B).
``(A) Mediation services.--The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under subsection (b) between H-2A workers and agricultural employers without charge to the parties.
``(B) 90-day limit.--The Federal Mediation and Conciliation Service may conduct mediation or other non-binding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives the request for assistance unless the parties agree to an extension of this period of time.
``(C) Authorization.--
``(i) In general.--Subject to clause (ii), there are authorized to be appropriated to the Federal Mediation and Conciliation Service $500,000 for each fiscal year to carry out this section.
``(ii) Mediation.--Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized to conduct the mediation or other dispute resolution activities from any other appropriated funds available to the Director and to reimburse such appropriated funds when the funds are appropriated pursuant to this authorization, such reimbursement to be credited to appropriations currently available at the time of receipt.
``(2) Maintenance of civil action in district court by aggrieved person.--An H-2A worker aggrieved by a violation of rights enforceable under subsection (b) by an agricultural employer or other person may file suit in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, without regard to the citizenship of the parties, and without regard to the exhaustion of any alternative administrative remedies under this Act, not later than 3 years after the date the violation occurs.
``(3) Election.--An H-2A worker who has filed an administrative complaint with the Secretary of Labor may not maintain a civil action under paragraph (2) unless a complaint based on the same violation filed with the Secretary of Labor under subsection (a)(1) is withdrawn before the filing of such action, in which case the rights and remedies available under this subsection shall be exclusive.
``(4) Preemption of state contract rights.--Nothing in this Act shall be construed to diminish the rights and remedies of an H-2A worker under any other Federal or State law or regulation or under any collective bargaining agreement, except that no court or administrative action shall be available under any State contract law to enforce the rights created by this Act.
``(5) Waiver of rights prohibited.--Agreements by employees purporting to waive or modify their rights under this Act shall be void as contrary to public policy, except that a waiver or modification of the rights or obligations in favor of the Secretary of Labor shall be valid for purposes of the enforcement of this Act. The preceding sentence may not be construed to prohibit agreements to settle private disputes or litigation.
``(6) Award of damages or other equitable relief.--
``(A) If the court finds that the respondent has intentionally violated any of the rights enforceable under subsection (b), it shall award actual damages, if any, or equitable relief.
``(B) Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code.
``(7) Workers' compensation benefits; exclusive remedy.--
``(A) Notwithstanding any other provision of this section, where a State's workers' compensation law is applicable and coverage is provided for an H-2A worker, the workers' compensation benefits shall be the exclusive remedy for the loss of such worker under this section in the case of bodily injury or death in accordance with such State's workers' compensation law.
``(B) The exclusive remedy prescribed in subparagraph (A) precludes the recovery under paragraph (6) of actual damages for loss from an injury or death but does not preclude other equitable relief, except that such relief shall not include back or front pay or in any manner, directly or indirectly, expand or otherwise alter or affect--
``(i) a recovery under a State workers' compensation law; or
``(ii) rights conferred under a State workers' compensation law.
``(8) Tolling of statute of limitations.--If it is determined under a State workers' compensation law that the workers' compensation law is not applicable to a claim for bodily injury or death of an H-2A worker, the statute of limitations for bringing an action for actual damages for such injury or death under subsection (c) shall be tolled for the period during which the claim for such injury or death under such State workers' compensation law was pending. The statute of limitations for an action for actual damages or other equitable relief arising out of the same transaction or occurrence as the injury or death of the H-2A worker shall be tolled for the period during which the claim for such injury or death was pending under the State workers' compensation law.
``(9) Preclusive effect.--Any settlement by an H-2A worker and H-2A employer reached through the mediation process required under subsection (c)(1) shall preclude any right of action arising out of the same facts between the parties in any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.
``(10) Settlements.--Any settlement by the Secretary of Labor with an H-2A employer on behalf of an H-2A worker of a complaint filed with the Secretary of Labor under this section or any finding by the Secretary of Labor under subsection (a)(1)(B) shall preclude any right of action arising out of the same facts between the parties under any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.
``(d) Discrimination Prohibited.--
``(1) In general.--It is a violation of this subsection for any person who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subsection, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of section 218 or 218A or any rule or regulation pertaining to section 218 or 218A, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of section 218 or 218A or any rule or regulation pertaining to either of such sections.
``(2) Discrimination against h-2a workers.--It is a violation of this subsection for any person who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against an H-2A employee because such worker has, with just cause, filed a complaint with the Secretary of Labor regarding a denial of the rights enumerated and enforceable under subsection (b) or instituted, or caused to be instituted, a private right of action under subsection (c) regarding the denial of the rights enumerated under subsection (b), or has testified or is about to testify in any court proceeding brought under subsection (c).
``(e) Authorization to Seek Other Appropriate Employment.--The Secretary of Labor and the Secretary shall establish a process under which an H-2A worker who files a complaint regarding a violation of subsection (d) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.
``(f) Role of Associations.--
``(1) Violation by a member of an association.--An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of sections 218 and 218A, as though the employer had filed the application itself. If such an employer is determined, under this section, to have committed a violation, the penalty for such violation shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge, or reason to know, of the violation, in which case the penalty shall be invoked against the association or other association member as well.
``(2) Violations by an association acting as an employer.--If an association filing an application as a sole or joint employer is determined to have committed a violation under this section, the penalty for such violation shall apply only to the association unless the Secretary of Labor determines that an association member or members participated in or had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association member or members as well.
``DEFINITIONS
``Sec. 218D. For purposes of sections 218 through 218D:
``(1) Agricultural employment.--The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, agricultural employment includes employment under section 101(a)(15)(H)(ii)(a).
``(2) Bona fide union.--The term `bona fide union' means any organization in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of work for agricultural employees. Such term does not include an organization formed, created, administered, supported, dominated, financed, or controlled by an employer or employer association or its agents or representatives.
``(3) Displace.--The term `displace', in the case of an application with respect to 1 or more H-2A workers by an employer, means laying off a United States worker from a job for which the H-2A worker or workers is or are sought.
``(4) Eligible.--The term `eligible', when used with respect to an individual, means an individual who is not an unauthorized alien (as defined in section 274A(h)(3)).
``(5) Employer.--The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.
``(6) H-2a employer.--The term `H-2A employer' means an employer who seeks to hire 1 or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a).
``(7) H-2a worker.--The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(8) Job opportunity.--The term `job opportunity' means a job opening for temporary full-time employment at a place in the United States to which United States workers can be referred.
``(9) Lays off.--
``(A) In general.--The term `lays off', with respect to a worker--
``(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in section 218A(b)(4)(D)), or temporary layoffs due to weather, markets, or other temporary conditions; but
``(ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under section 218(b)(2)(E), with either employer described in such section) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
``(B) Statutory construction.--Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.
``(10) Regulatory drought.--The term `regulatory drought' means a decision subsequent to the filing of the application under section 218 by an entity not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to produce an agricultural commodity, thereby reducing the need for labor.
``(11) Seasonal.--Labor is performed on a `seasonal' basis if--
``(A) ordinarily, it pertains to or is of the kind exclusively performed at certain seasons or periods of the year; and
``(B) from its nature, it may not be continuous or carried on throughout the year.
``(12) Secretary.--The term `Secretary' means the Secretary of Homeland Security.
``(13) Temporary.--A worker is employed on a `temporary' basis where the employment is intended not to exceed 10 months.
``(14) United states worker.--The term `United States worker' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a).''.
(b) Table of Contents.--The table of contents of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the item relating to section 218 and inserting the following:
``Sec. 218. H-2A employer applications.
``Sec. 218A. H-2A employment requirements.
``Sec. 218B. Procedure for admission and extension of stay of H-2A workers.
``Sec. 218C. Worker protections and labor standards enforcement.
``Sec. 218D. Definitions.''.
Subtitle C--Miscellaneous Provisions
SEC. _31. DETERMINATION AND USE OF USER FEES.
(a) Schedule of Fees.--The Secretary shall establish and periodically adjust a schedule of fees for the employment of aliens under this title and the amendments made by this title, and a collection process for such fees from employers participating in the program provided under this Act. Such fees shall be the only fees chargeable to employers for services provided under this Act.
(b) Determination of Schedule.--
(1) In general.--The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in the employer's application under section 218 of the Immigration and Nationality Act, as added by section _21 of this Act, and sufficient to provide for the direct costs of providing services related to an employer's authorization to employ eligible aliens pursuant to this Act, to include the certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.
(2) Procedure.--
(A) In general.--In establishing and adjusting such a schedule, the Secretary shall comply with Federal cost accounting and fee setting standards.
(B) Publication and comment.--The Secretary shall publish in the Federal Register an initial fee schedule and associated collection process and the cost data or estimates upon which such fee schedule is based, and any subsequent amendments thereto, pursuant to which public comment shall be sought and a final rule issued.
(c) Use of Proceeds.--Notwithstanding any other provision of law, all proceeds resulting from the payment of the alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretary, the Secretary of State, and the Secretary of Labor for the costs of carrying out sections 218 and 218B of the Immigration and Nationality Act, as added by section _21 of this Act, and the provisions of this Act.
SEC. _32. REGULATIONS.
(a) Regulations of the Secretary.--The Secretary shall consult with the Secretary of Labor and the Secretary of Agriculture on all regulations to implement the duties of the Secretary under this title and the amendments made by this title.
(b) Regulations of the Secretary of State.--The Secretary of State shall consult with the Secretary, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this title and the amendments made by this title.
(c) Regulations of the Secretary of Labor.--The Secretary of Labor shall consult with the Secretary of Agriculture and the Secretary on all regulations to implement the duties of the Secretary of Labor under this title and the amendments made by this title.
(d) Deadline for Issuance of Regulations.--All regulations to implement the duties of the Secretary, the Secretary of State, and the Secretary of Labor created under sections 218, 218A, 218B, and 218C of the Immigration and Nationality Act, as added by section _21 of this Act, shall take effect on the effective date of section _21 and shall be issued not later than 1 year after the date of enactment of this Act.
SEC. _33. RELIGIOUS ORGANIZATIONS.
Section 274(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)) is amended by adding at the end the following:
``(C) It is not a violation of clauses (ii), (iii), or (iv) of subparagraph (A) for a religious denomination described in section 101(a)(27)(C)(i) or an affiliated religious organization described in section 101(a)(27)(C)(ii)(III), or their agents or officers, to encourage, invite, call, allow, or enable an alien who is present in the United States in violation of law to carry on the vocation described in section 101(a)(27)(C)(ii)(I), as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, and other basic living expenses.''.
SEC. _34. EFFECTIVE DATE.
(a) In General.--Except as otherwise provided, sections _21 and _31 shall take effect 1 year after the date of enactment of this Act.
(b) Report.--Not later than 180 days after the date of enactment of this Act, the Secretary shall prepare and submit to the appropriate committees of Congress a report that describes the measures being taken and the progress made in implementing this title.
______
SA 1178. Mr. CRAIG (for himself and Mr. Kennedy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE_--AGRICULTURAL JOB OPPORTUNITIES, BENEFITS, AND SECURITY ACT OF
2005
SEC. _01. SHORT TITLE.
This title may be cited as the ``Agricultural Job Opportunities, Benefits, and Security Act of 2005'' or the
``AgJOBS Act of 2005''.
SEC. _02. DEFINITIONS.
In this title:
(1) Agricultural employment.--The term ``agricultural employment'' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, agricultural employment includes employment under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(H)(ii)(a)).
(2) Employer.--The term ``employer'' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.
(3) Job opportunity.--The term ``job opportunity'' means a job opening for temporary full-time employment at a place in the United States to which United States workers can be referred.
(4) Secretary.--The term ``Secretary'' means the Secretary of Homeland Security.
(5) Temporary.--A worker is employed on a ``temporary'' basis where the employment is intended not to exceed 10 months.
(6) United states worker.--The term ``United States worker'' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(H)(ii)(a)).
(7) Work day.--The term ``work day'' means any day in which the individual is employed 1 or more hours in agriculture consistent with the definition of ``man-day'' under section 3(u) of the Fair Labor Standards Act of 1938
(29 U.S.C. 203(u)).
Subtitle A--Adjustment to Lawful Status
SEC. _11. AGRICULTURAL WORKERS.
(a) Temporary Resident Status.--
(1) In general.--Notwithstanding any other provision of law, the Secretary shall confer upon an alien who qualifies under this subsection the status of an alien lawfully admitted for temporary residence if the Secretary determines that the alien--
(A) has performed agricultural employment in the United States for at least 575 hours or 100 work days, whichever is less, during any 12 consecutive months during the 18-month period ending on December 31, 2004;
(B) applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this Act; and
(C) is otherwise admissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as otherwise provided under subsection (e)(2).
(2) Authorized travel.--During the period an alien is in lawful temporary resident status granted under this subsection, the alien has the right to travel abroad
(including commutation from a residence abroad) in the same manner as an alien lawfully admitted for permanent residence.
(3) Authorized employment.--During the period an alien is in lawful temporary resident status granted under this subsection, the alien shall be provided an ``employment authorized'' endorsement or other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.
(4) Termination of temporary resident status.--
(A) In general.--During the period of temporary resident status granted an alien under this subsection, the Secretary may terminate such status only upon a determination under this Act that the alien is deportable.
(B) Grounds for termination of temporary resident status.--Before any alien becomes eligible for adjustment of status under subsection (c), the Secretary may deny adjustment to permanent resident status and provide for termination of the temporary resident status granted such alien under paragraph
(1) if--
(i) the Secretary finds, by a preponderance of the evidence, that the adjustment to temporary resident status was the result of fraud or willful misrepresentation (as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or
(ii) the alien--
(I) commits an act that makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (e)(2);
(II) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
(III) is convicted of a single misdemeanor for which the actual sentence served is 6 months or longer.
(5) Record of employment.--
(A) In general.--Each employer of a worker granted status under this subsection shall annually--
(i) provide a written record of employment to the alien; and
(ii) provide a copy of such record to the Secretary.
(B) Sunset.--The obligation under subparagraph (A) shall terminate on the date that is 6 years after the date of enactment of this Act.
(b) Rights of Aliens Granted Temporary Resident Status.--
(1) In general.--Except as otherwise provided in this subsection, an alien who acquires the status of an alien lawfully admitted for temporary residence under subsection
(a), such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence for purposes of any law other than any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(2) Delayed eligibility for certain federal public benefits.--An alien who acquires the status of an alien lawfully admitted for temporary residence under subsection
(a) as described in paragraph (1) shall not be eligible, by reason of such acquisition of that status, for any form of assistance or benefit described in section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(a)) until 5 years after the date on which the Secretary confers permanent resident status upon that alien under subsection (a).
(3) Terms of employment respecting aliens admitted under this section.--
(A) Prohibition.--No alien granted temporary resident status under subsection (a) may be terminated from employment by any employer during the period of temporary resident status except for just cause.
(B) Treatment of complaints.--
(i) Establishment of process.--The Secretary shall establish a process for the receipt, initial review, and disposition in accordance with this subparagraph of complaints by aliens granted temporary resident status under subsection (a) who allege that they have been terminated without just cause. No proceeding shall be conducted under this subparagraph with respect to a termination unless the Secretary determines that the complaint was filed not later than 6 months after the date of the termination.
(ii) Initiation of arbitration.--If the Secretary finds that a complaint has been filed in accordance with clause (i) and there is reasonable cause to believe that the complainant was terminated without just cause, the Secretary shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint a mutually agreeable arbitrator from the roster of arbitrators maintained by such Service for the geographical area in which the employer is located. The procedures and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Secretary shall pay the fee and expenses of the arbitrator, subject to the availability of appropriations for such purpose.
(iii) Arbitration proceedings.--The arbitrator shall conduct the proceeding in accordance with the policies and procedures promulgated by the American Arbitration Association applicable to private arbitration of employment disputes. The arbitrator shall make findings respecting whether the termination was for just cause. The arbitrator may not find that the termination was for just cause unless the employer so demonstrates by a preponderance of the evidence. If the arbitrator finds that the termination was not for just cause, the arbitrator shall make a specific finding of the number of days or hours of work lost by the employee as a result of the termination. The arbitrator shall have no authority to order any other remedy, including, but not limited to, reinstatement, back pay, or front pay to the affected employee. Within 30 days from the conclusion of the arbitration proceeding, the arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Secretary. Such findings shall be final and conclusive, and no official or court of the United States shall have the power or jurisdiction to review any such findings.
(iv) Effect of arbitration findings.--If the Secretary receives a finding of an arbitrator that an employer has terminated an alien granted temporary resident status under subsection (a) without just cause, the Secretary shall credit the alien for the number of days or hours of work lost for purposes of the requirement of subsection (c)(1).
(v) Treatment of attorney's fees.--The parties shall bear the cost of their own attorney's fees involved in the litigation of the complaint.
(vi) Nonexclusive remedy.--The complaint process provided for in this subparagraph is in addition to any other rights an employee may have in accordance with applicable law.
(vii) Effect on other actions or proceedings.--Any finding of fact or law, judgment, conclusion, or final order made by an arbitrator in the proceeding before the Secretary shall not be conclusive or binding in any separate or subsequent action or proceeding between the employee and the employee's current or prior employer brought before an arbitrator, administrative agency, court, or judge of any State or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts, except that the arbitrator's specific finding of the number of days or hours of work lost by the employee as a result of the employment termination may be referred to the Secretary pursuant to clause (iv).
(C) Civil penalties.--
(i) In general.--If the Secretary finds, after notice and opportunity for a hearing, that an employer of an alien granted temporary resident status under subsection (a) has failed to provide the record of employment required under subsection (a)(5) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil money penalty in an amount not to exceed $1,000 per violation.
(ii) Limitation.--The penalty applicable under clause (i) for failure to provide records shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this section.
(c) Adjustment to Permanent Residence.--
(1) Agricultural workers.--
(A) In general.--Except as provided in subparagraph (B), the Secretary shall adjust the status of an alien granted lawful temporary resident status under subsection (a) to that of an alien lawfully admitted for permanent residence if the Secretary determines that the following requirements are satisfied:
(i) Qualifying employment.--The alien has performed at least 360 work days or 2,060 hours, but in no case less than 2,060 hours, of agricultural employment in the United States, during the 6-year period beginning after the date of enactment of this Act.
(ii) Qualifying years.--The alien has performed at least 75 work days or 430 hours, but in no case less than 430 hours, of agricultural employment in the United States in at least 3 nonoverlapping periods of 12 consecutive months during the 6-year period beginning after the date of enactment of this Act. Qualifying periods under this clause may include nonconsecutive 12-month periods.
(iii) Qualifying work in first 3 years.--The alien has performed at least 240 work days or 1,380 hours, but in no case less than 1,380 hours, of agricultural employment during the 3-year period beginning after the date of enactment of this Act.
(iv) Application period.--The alien applies for adjustment of status not later than 7 years after the date of enactment of this Act.
(v) Proof.--In meeting the requirements of clauses (i),
(ii), and (iii), an alien may submit the record of employment described in subsection (a)(5) or such documentation as may be submitted under subsection (d)(3).
(vi) Disability.--In determining whether an alien has met the requirements of clauses (i), (ii), and (iii), the Secretary shall credit the alien with any work days lost because the alien was unable to work in agricultural employment due to injury or disease arising out of and in the course of the alien's agricultural employment, if the alien can establish such disabling injury or disease through medical records.
(B) Grounds for denial of adjustment of status.--The Secretary may deny an alien adjustment to permanent resident status, and provide for termination of the temporary resident status granted such alien under subsection (a), if--
(i) the Secretary finds by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation, as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or
(ii) the alien--
(I) commits an act that makes the alien inadmissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as provided under subsection (e)(2);
(II) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
(III) is convicted of a single misdemeanor for which the actual sentence served is 6 months or longer.
(C) Grounds for removal.--Any alien granted temporary resident status under subsection (a) who does not apply for adjustment of status under this subsection before the expiration of the application period described in subparagraph (A)(iv), or who fails to meet the other requirements of subparagraph (A) by the end of the applicable period, is deportable and may be removed under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a). The Secretary shall issue regulations establishing grounds to waive subparagraph (A)(iii) with respect to an alien who has completed at least 200 days of the work requirement specified in such subparagraph in the event of a natural disaster which substantially limits the availability of agricultural employment or a personal emergency that prevents compliance with such subparagraph.
(2) Spouses and minor children.--
(A) In general.--Notwithstanding any other provision of law, the Secretary shall confer the status of lawful permanent resident on the spouse and minor child of an alien granted status under paragraph (1), including any individual who was a minor child on the date such alien was granted temporary resident status, if the spouse or minor child applies for such status, or if the principal alien includes the spouse or minor child in an application for adjustment of status to that of a lawful permanent resident.
(B) Treatment of spouses and minor children before adjustment of status.--A spouse and minor child of an alien granted temporary resident status under subsection (a) may not be--
(i) removed while such alien maintains such status, except as provided in subparagraph (C); and
(ii) granted authorization to engage in employment in the United States or be provided an ``employment authorized'' endorsement or other work permit, unless such employment authorization is granted under another provision of law.
(C) Grounds for denial of adjustment of status and removal.--The Secretary may deny an alien spouse or child adjustment of status under subparagraph (A) and may remove such spouse or child under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) if the spouse or child--
(i) commits an act that makes the alien spouse or child inadmissible to the United States under section 212 of such Act (8 U.S.C. 1182), except as provided under subsection
(e)(2);
(ii) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
(iii) is convicted of a single misdemeanor for which the actual sentence served is 6 months or longer.
(d) Applications.--
(1) To whom may be made.--
(A) Within the united states.--The Secretary shall provide that--
(i) applications for temporary resident status under subsection (a) may be filed--
(I) with the Secretary, but only if the applicant is represented by an attorney; or
(II) with a qualified designated entity (designated under paragraph (2)), but only if the applicant consents to the forwarding of the application to the Secretary; and
(ii) applications for adjustment of status under subsection
(c) shall be filed directly with the Secretary.
(B) Outside the united states.--The Secretary, in cooperation with the Secretary of State, shall establish a procedure whereby an alien may apply for temporary resident status under subsection (a) at an appropriate consular office outside the United States.
(C) Preliminary applications.--
(i) In general.--During the application period described in subsection (a)(1)(B), the Secretary may grant admission to the United States as a temporary resident and provide an
``employment authorized'' endorsement or other appropriate work permit to any alien who presents a preliminary application for such status under subsection (a) at a designated port of entry on the southern land border of the United States. An alien who does not enter through a port of entry is subject to deportation and removal as otherwise provided in this Act.
(ii) Definition.--For purposes of clause (i), the term
``preliminary application'' means a fully completed and signed application which contains specific information concerning the performance of qualifying employment in the United States, together with the payment of the appropriate fee and the submission of photographs and the documentary evidence which the applicant intends to submit as proof of such employment.
(iii) Eligibility.--An applicant under clause (i) shall otherwise be admissible to the United States under subsection
(e)(2) and shall establish to the satisfaction of the examining officer during an interview that the applicant's claim to eligibility for temporary resident status is credible.
(D) Travel documentation.--The Secretary shall provide each alien granted status under this section with a counterfeit-resistant document of authorization to enter or reenter the United States that meets the requirements established by the Secretary.
(2) Designation of entities to receive applications.--
(A) In general.--For purposes of receiving applications under subsection (a), the Secretary--
(i) shall designate qualified farm labor organizations and associations of employers; and
(ii) may designate such other persons as the Secretary determines are qualified and have substantial experience, demonstrate competence, and have traditional long-term involvement in the preparation and submission of applications for adjustment of status under section 209, 210, or 245 of the Immigration and Nationality Act, Public Law 8909732, Public Law 9509145, or the Immigration Reform and Control Act of 1986.
(B) References.--Organizations, associations, and persons designated under subparagraph (A) are referred to in this Act as ``qualified designated entities''.
(3) Proof of eligibility.--
(A) In general.--An alien may establish that the alien meets the requirement of subsection (a)(1)(A) or (c)(1)(A) through government employment records or records supplied by employers or collective bargaining organizations, and other reliable documentation as the alien may provide. The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.
(B) Documentation of work history.--
(i) Burden of proof.--An alien applying for status under subsection (a)(1) or (c)(1) has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of hours or days (as required under subsection (a)(1)(A) or (c)(1)(A)).
(ii) Timely production of records.--If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under clause (i) may be met by securing timely production of those records under regulations to be promulgated by the Secretary.
(iii) Sufficient evidence.--An alien can meet the burden of proof under clause (i) to establish that the alien has performed the work described in subsection (a)(1)(A) or
(c)(1)(A) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.
(4) Treatment of applications by qualified designated entities.--Each qualified designated entity shall agree to forward to the Secretary applications filed with it in accordance with paragraph (1)(A)(i)(II) but shall not forward to the Secretary applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Secretary. Upon the request of the alien, a qualified designated entity shall assist the alien in obtaining documentation of the work history of the alien.
(5) Limitation on access to information.--Files and records prepared for purposes of this subsection by qualified designated entities operating under this subsection are confidential and the Secretary shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6).
(6) Confidentiality of information.--
(A) In general.--Except as otherwise provided in this subsection, neither the Secretary, nor any other official or employee of the Department of Homeland Security, or bureau or agency thereof, may--
(i) use the information furnished by the applicant pursuant to an application filed under this section, the information provided to the applicant by a person designated under paragraph (2)(A), or any information provided by an employer or former employer, for any purpose other than to make a determination on the application, or for enforcement of paragraph (7);
(ii) make any publication whereby the information furnished by any particular individual can be identified; or
(iii) permit anyone other than the sworn officers and employees of the Department of Homeland Security, or bureau or agency thereof, or, with respect to applications filed with a qualified designated entity, that qualified designated entity, to examine individual applications.
(B) Required disclosures.--The Secretary shall provide the information furnished under this section, or any other information derived from such furnished information, to--
(i) a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, if such information is requested in writing by such entity; or
(ii) an official coroner, for purposes of affirmatively identifying a deceased individual, whether or not the death of such individual resulted from a crime.
(C) Construction.--
(i) In general.--Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Department of Homeland Security pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
(ii) Criminal convictions.--Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
(D) Crime.--Any person who knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be subject to a fine in an amount not to exceed $10,000.
(7) Penalties for false statements in applications.--
(A) Criminal penalty.--Any person who--
(i) files an application for status under subsection (a) or
(c) and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or
(ii) creates or supplies a false writing or document for use in making such an application,
shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.
(B) Inadmissibility.--An alien who is convicted of a crime under subparagraph (A) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).
(8) Eligibility for legal services.--Section 504(a)(11) of Public Law 10409134 (110 Stat. 13210953 et seq.) shall not be construed to prevent a recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) from providing legal assistance directly related to an application for adjustment of status under this section.
(9) Application fees.--
(A) Fee schedule.--The Secretary shall provide for a schedule of fees that--
(i) shall be charged for the filing of applications for status under subsections (a) and (c); and
(ii) may be charged by qualified designated entities to help defray the costs of services provided to such applicants.
(B) Prohibition on excess fees by qualified designated entities.--A qualified designated entity may not charge any fee in excess of, or in addition to, the fees authorized under subparagraph (A)(ii) for services provided to applicants.
(C) Disposition of fees.--
(i) In general.--There is established in the general fund of the Treasury a separate account, which shall be known as the ``Agricultural Worker Immigration Status Adjustment Account''. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under subparagraph (A)(i).
(ii) Use of fees for application processing.--Amounts deposited in the ``Agricultural Worker Immigration Status Adjustment Account'' shall remain available to the Secretary until expended for processing applications for status under subsections (a) and (c).
(e) Waiver of Numerical Limitations and Certain Grounds for Inadmissibility.--
(1) Numerical limitations do not apply.--The numerical limitations of sections 201 and 202 of the Immigration and Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the adjustment of aliens to lawful permanent resident status under this section.
(2) Waiver of certain grounds of inadmissibility.--In the determination of an alien's eligibility for status under subsection (a)(1)(C) or an alien's eligibility for adjustment of status under subsection (c)(1)(B)(ii)(I), the following rules shall apply:
(A) Grounds of exclusion not applicable.--The provisions of paragraphs (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply.
(B) Waiver of other grounds.--
(i) In general.--Except as provided in clause (ii), the Secretary may waive any other provision of such section 212(a) in the case of individual aliens for humanitarian purposes, to ensure family unity, or if otherwise in the public interest.
(ii) Grounds that may not be waived.--Paragraphs (2)(A),
(2)(B), (2)(C), (3), and (4) of such section 212(a) may not be waived by the Secretary under clause (i).
(iii) Construction.--Nothing in this subparagraph shall be construed as affecting the authority of the Secretary other than under this subparagraph to waive provisions of such section 212(a).
(C) Special rule for determination of public charge.--An alien is not ineligible for status under this section by reason of a ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public cash assistance.
(f) Temporary Stay of Removal and Work Authorization for Certain Applicants.--
(1) Before application period.--Effective on the date of enactment of this Act, the Secretary shall provide that, in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(B) and who can establish a nonfrivolous case of eligibility for temporary resident status under subsection (a) (but for the fact that the alien may not apply for such status until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for temporary resident status, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in employment in the United States and be provided an ``employment authorized'' endorsement or other appropriate work permit for such purpose.
(2) During application period.--The Secretary shall provide that, in the case of an alien who presents a nonfrivolous application for temporary resident status under subsection
(a) during the application period described in subsection
(a)(1)(B), including an alien who files such an application within 30 days of the alien's apprehension, and until a final determination on the application has been made in accordance with this section, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in employment in the United States and be provided an ``employment authorized'' endorsement or other appropriate work permit for such purpose.
(g) Administrative and Judicial Review.--
(1) In general.--There shall be no administrative or judicial review of a determination respecting an application for status under subsection (a) or (c) except in accordance with this subsection.
(2) Administrative review.--
(A) Single level of administrative appellate review.--The Secretary shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
(B) Standard for review.--Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
(3) Judicial review.--
(A) Limitation to review of removal.--There shall be judicial review of such a determination only in the judicial review of an order of removal under section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
(B) Standard for judicial review.--Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
(h) Dissemination of Information on Adjustment Program.--Beginning not later than the first day of the application period described in subsection (a)(1)(B), the Secretary, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits that aliens may receive under this section and the requirements to be satisfied to obtain such benefits.
(i) Regulations.--The Secretary shall issue regulations to implement this section not later than the first day of the seventh month that begins after the date of enactment of this Act.
(j) Effective Date.--This section shall take effect on the date that regulations are issued implementing this section on an interim or other basis.
(k) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary to carry out this section
$40,000,000 for each of fiscal years 2006 through 2009.
SEC. _12. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(d)(1) of the Social Security Act (42 U.S.C. 408(d)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted status as a lawful temporary resident under the Agricultural Job Opportunity, Benefits, and Security Act of 2005,''; and
(4) by striking ``1990.'' and inserting ``1990, or in the case of an alien described in subparagraph (D), if such conduct is alleged to have occurred before the date on which the alien was granted lawful temporary resident status.''.
(b) Effective Date.--The amendments made by subsection (a) shall take effect on the first day of the seventh month that begins after the date of enactment of this Act.
Subtitle B--Reform of H092A Worker Program
SEC. _21. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
(a) In General.--The Immigration and Nationality Act is amended by striking section 218 (8 U.S.C. 1188) and inserting the following:
``H092A EMPLOYER APPLICATIONS
``Sec. 218. (a) Applications to the Secretary of Labor.--
``(1) In general.--No alien may be admitted to the United States as an H092A worker, or otherwise provided status as an H092A worker, unless the employer has filed with the Secretary of Labor an application containing--
``(A) the assurances described in subsection (b);
``(B) a description of the nature and location of the work to be performed;
``(C) the anticipated period (expected beginning and ending dates) for which the workers will be needed; and
``(D) the number of job opportunities in which the employer seeks to employ the workers.
``(2) Accompanied by job offer.--Each application filed under paragraph (1) shall be accompanied by a copy of the job offer describing the wages and other terms and conditions of employment and the bona fide occupational qualifications that shall be possessed by a worker to be employed in the job opportunity in question.
``(b) Assurances for Inclusion in Applications.--The assurances referred to in subsection (a)(1) are the following:
``(1) Job opportunities covered by collective bargaining agreements.--With respect to a job opportunity that is covered under a collective bargaining agreement:
``(A) Union contract described.--The job opportunity is covered by a union contract which was negotiated at arm's length between a bona fide union and the employer.
``(B) Strike or lockout.--The specific job opportunity for which the employer is requesting an H092A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.
``(C) Notification of bargaining representatives.--The employer, at the time of filing the application, has provided notice of the filing under this paragraph to the bargaining representative of the employer's employees in the occupational classification at the place or places of employment for which aliens are sought.
``(D) Temporary or seasonal job opportunities.--The job opportunity is temporary or seasonal.
``(E) Offers to united states workers.--The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or the nonimmigrants are, sought and who will be available at the time and place of need.
``(F) Provision of insurance.--If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.
``(2) Job opportunities not covered by collective bargaining agreements.--With respect to a job opportunity that is not covered under a collective bargaining agreement:
``(A) Strike or lockout.--The specific job opportunity for which the employer is requesting an H092A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.
``(B) Temporary or seasonal job opportunities.--The job opportunity is temporary or seasonal.
``(C) Benefit, wage, and working conditions.--The employer will provide, at a minimum, the benefits, wages, and working conditions required by section 218A to all workers employed in the job opportunities for which the employer has applied under subsection (a) and to all other workers in the same occupation at the place of employment.
``(D) Nondisplacement of united states workers.--The employer did not displace and will not displace a United States worker employed by the employer during the period of employment and for a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer seeks approval to employ H092A workers.
``(E) Requirements for placement of nonimmigrant with other employers.--The employer will not place the nonimmigrant with another employer unless--
``(i) the nonimmigrant performs duties in whole or in part at 1 or more work sites owned, operated, or controlled by such other employer;
``(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer; and
``(iii) the employer has inquired of the other employer as to whether, and has no actual knowledge or notice that, during the period of employment and for a period of 30 days preceding the period of employment, the other employer has displaced or intends to displace a United States worker employed by the other employer in the occupation at the place of employment for which the employer seeks approval to employ H092A workers.
``(F) Statement of liability.--The application form shall include a clear statement explaining the liability under subparagraph (E) of an employer if the other employer described in such subparagraph displaces a United States worker as described in such subparagraph.
``(G) Provision of insurance.--If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.
``(H) Employment of united states workers.--
``(i) Recruitment.--The employer has taken or will take the following steps to recruit United States workers for the job opportunities for which the H092A nonimmigrant is, or H092A nonimmigrants are, sought:
``(I) Contacting former workers.--The employer shall make reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any United States worker the employer employed during the previous season in the occupation at the place of intended employment for which the employer is applying for workers and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous workers, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.
``(II) Filing a job offer with the local office of the state employment security agency.--Not later than 28 days before the date on which the employer desires to employ an H092A worker in a temporary or seasonal agricultural job opportunity, the employer shall submit a copy of the job offer described in subsection (a)(2) to the local office of the State employment security agency which serves the area of intended employment and authorize the posting of the job opportunity on `America's Job Bank' or other electronic job registry, except that nothing in this subclause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations.
``(III) Advertising of job opportunities.--Not later than 14 days before the date on which the employer desires to employ an H092A worker in a temporary or seasonal agricultural job opportunity, the employer shall advertise the availability of the job opportunities for which the employer is seeking workers in a publication in the local labor market that is likely to be patronized by potential farm workers.
``(IV) Emergency procedures.--The Secretary of Labor shall, by regulation, provide a procedure for acceptance and approval of applications in which the employer has not complied with the provisions of this subparagraph because the employer's need for H092A workers could not reasonably have been foreseen.
``(ii) Job offers.--The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or nonimmigrants are, sought and who will be available at the time and place of need.
``(iii) Period of employment.--The employer will provide employment to any qualified United States worker who applies to the employer during the period beginning on the date on which the foreign worker departs for the employer's place of employment and ending on the date on which 50 percent of the period of employment for which the foreign worker who is in the job was hired has elapsed, subject to the following requirements:
``(I) Prohibition.--No person or entity shall willfully and knowingly withhold United States workers before the arrival of H092A workers in order to force the hiring of United States workers under this clause.
``(II) Complaints.--Upon receipt of a complaint by an employer that a violation of subclause (I) has occurred, the Secretary of Labor shall immediately investigate. The Secretary of Labor shall, within 36 hours of the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary of Labor finds that a violation has occurred, the Secretary of Labor shall immediately suspend the application of this clause with respect to that certification for that date of need.
``(III) Placement of united states workers.--Before referring a United States worker to an employer during the period described in the matter preceding subclause (I), the Secretary of Labor shall make all reasonable efforts to place the United States worker in an open job acceptable to the worker, if there are other job offers pending with the job service that offer similar job opportunities in the area of intended employment.
``(iv) Statutory construction.--Nothing in this subparagraph shall be construed to prohibit an employer from using such legitimate selection criteria relevant to the type of job that are normal or customary to the type of job involved so long as such criteria are not applied in a discriminatory manner.
``(c) Applications by Associations on Behalf of Employer Members.--
``(1) In general.--An agricultural association may file an application under subsection (a) on behalf of 1 or more of its employer members that the association certifies in its application has or have agreed in writing to comply with the requirements of this section and sections 218A through 218C.
``(2) Treatment of associations acting as employers.--If an association filing an application under paragraph (1) is a joint or sole employer of the temporary or seasonal agricultural workers requested on the application, the certifications granted under subsection (e)(2)(B) to the association may be used for the certified job opportunities of any of its producer members named on the application, and such workers may be transferred among such producer members to perform the agricultural services of a temporary or seasonal nature for which the certifications were granted.
``(d) Withdrawal of Applications.--
``(1) In general.--An employer may withdraw an application filed pursuant to subsection (a), except that if the employer is an agricultural association, the association may withdraw an application filed pursuant to subsection (a) with respect to 1 or more of its members. To withdraw an application, the employer or association shall notify the Secretary of Labor in writing, and the Secretary of Labor shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws an application under subsection (a), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.
``(2) Limitation.--An application may not be withdrawn while any alien provided status under section 101(a)(15)(H)(ii)(a) pursuant to such application is employed by the employer.
``(3) Obligations under other statutes.--Any obligation incurred by an employer under any other law or regulation as a result of the recruitment of United States workers or H092A workers under an offer of terms and conditions of employment required as a result of making an application under subsection (a) is unaffected by withdrawal of such application.
``(e) Review and Approval of Applications.--
``(1) Responsibility of employers.--The employer shall make available for public examination, within 1 working day after the date on which an application under subsection (a) is filed, at the employer's principal place of business or work site, a copy of each such application (and such accompanying documents as are necessary).
``(2) Responsibility of the secretary of labor.--
``(A) Compilation of list.--The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of workers sought, period of intended employment, and date of need. The Secretary of Labor shall make such list available for examination in the District of Columbia.
``(B) Review of applications.--The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that the application is incomplete or obviously inaccurate, the Secretary of Labor shall certify that the intending employer has filed with the Secretary of Labor an application as described in subsection (a). Such certification shall be provided within 7 days of the filing of the application.
``H-2A EMPLOYMENT REQUIREMENTS
``Sec. 218A. (a) Preferential Treatment of Aliens Prohibited.--Employers seeking to hire United States workers shall offer the United States workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers. Conversely, no job offer may impose on United States workers any restrictions or obligations which will not be imposed on the employer's H-2A workers.
``(b) Minimum Benefits, Wages, and Working Conditions.--Except in cases where higher benefits, wages, or working conditions are required by the provisions of subsection (a), in order to protect similarly employed United States workers from adverse effects with respect to benefits, wages, and working conditions, every job offer which shall accompany an application under section 218(b)(2) shall include each of the following benefit, wage, and working condition provisions:
``(1) Requirement to provide housing or a housing allowance.--
``(A) In general.--An employer applying under section 218(a) for H-2A workers shall offer to provide housing at no cost to all workers in job opportunities for which the employer has applied under that section and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance.
``(B) Type of housing.--In complying with subparagraph (A), an employer may, at the employer's election, provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets applicable local standards for rental or public accommodation housing or other substantially similar class of habitation, or in the absence of applicable local standards, State standards for rental or public accommodation housing or other substantially similar class of habitation. In the absence of applicable local or State standards, Federal temporary labor camp standards shall apply.
``(C) Family housing.--When it is the prevailing practice in the occupation and area of intended employment to provide family housing, family housing shall be provided to workers with families who request it.
``(D) Workers engaged in the range production of livestock.--The Secretary of Labor shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.
``(E) Limitation.--Nothing in this paragraph shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986.
``(F) Charges for housing.--
``(i) Charges for public housing.--If public housing provided for migrant agricultural workers under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual or entity affiliated with the housing's management.
``(ii) Deposit charges.--Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers. An employer may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.
``(G) Housing allowance as alternative.--
``(i) In general.--If the requirement under clause (ii) is satisfied, the employer may provide a reasonable housing allowance instead of offering housing under subparagraph (A). Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1823) solely by virtue of providing such housing allowance. No housing allowance may be used for housing which is owned or controlled by the employer.
``(ii) Certification.--The requirement of this clause is satisfied if the Governor of the State certifies to the Secretary of Labor that there is adequate housing available in the area of intended employment for migrant farm workers, and H-2A workers, who are seeking temporary housing while employed at farm work. Such certification shall expire after 3 years unless renewed by the Governor of the State.
``(iii) Amount of allowance.--
``(I) Nonmetropolitan counties.--If the place of employment of the workers provided an allowance under this subparagraph is a nonmetropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2 bedroom dwelling unit and an assumption of 2 persons per bedroom.
``(II) Metropolitan counties.--If the place of employment of the workers provided an allowance under this paragraph is in a metropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for metropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2 persons per bedroom.
``(2) Reimbursement of transportation.--
``(A) To place of employment.--A worker who completes 50 percent of the period of employment of the job opportunity for which the worker was hired shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place from which the worker came to work for the employer (or place of last employment, if the worker traveled from such place) to the place of employment.
``(B) From place of employment.--A worker who completes the period of employment for the job opportunity involved shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation and subsistence to such subsequent employer's place of employment.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as provided in clause (ii), the amount of reimbursement provided under subparagraph (A) or (B) to a worker or alien shall not exceed the lesser of--
``(I) the actual cost to the worker or alien of the transportation and subsistence involved; or
``(II) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.
``(ii) Distance traveled.--No reimbursement under subparagraph (A) or (B) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through an allowance as provided in paragraph (1)(G).
``(D) Early termination.--If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (4)(D)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by subparagraph (B) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by subparagraph (A).
``(E) Transportation between living quarters and work site.--The employer shall provide transportation between the worker's living quarters and the employer's work site without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.
``(3) Required wages.--
``(A) In general.--An employer applying for workers under section 218(a) shall offer to pay, and shall pay, all workers in the occupation for which the employer has applied for workers, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the applicable State minimum wage.
``(B) Limitation.--Effective on the date of enactment of the Agricultural Job Opportunity, Benefits, and Security Act of 2005 and continuing for 3 years thereafter, no adverse effect wage rate for a State may be more than the adverse effect wage rate for that State in effect on January 1, 2003, as established by section 655.107 of title 20, Code of Federal Regulations.
``(C) Required wages after 3-year freeze.--
``(i) First adjustment.--If Congress does not set a new wage standard applicable to this section before the first March 1 that is not less than 3 years after the date of enactment of this section, the adverse effect wage rate for each State beginning on such March 1 shall be the wage rate that would have resulted if the adverse effect wage rate in effect on January 1, 2003, had been annually adjusted, beginning on March 1, 2006, by the lesser of--
``(I) the 12 month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; and
``(II) 4 percent.
``(ii) Subsequent annual adjustments.--Beginning on the first March 1 that is not less than 4 years after the date of enactment of this section, and each March 1 thereafter, the adverse effect wage rate then in effect for each State shall be adjusted by the lesser of--
``(I) the 12 month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; and
``(II) 4 percent.
``(D) Deductions.--The employer shall make only those deductions from the worker's wages that are authorized by law or are reasonable and customary in the occupation and area of employment. The job offer shall specify all deductions not required by law which the employer will make from the worker's wages.
``(E) Frequency of pay.--The employer shall pay the worker not less frequently than twice monthly, or in accordance with the prevailing practice in the area of employment, whichever is more frequent.
``(F) Hours and earnings statements.--The employer shall furnish to the worker, on or before each payday, in 1 or more written statements--
``(i) the worker's total earnings for the pay period;
``(ii) the worker's hourly rate of pay, piece rate of pay, or both;
``(iii) the hours of employment which have been offered to the worker (broken out by hours offered in accordance with and over and above the three-quarters guarantee described in paragraph (4);
``(iv) the hours actually worked by the worker;
``(v) an itemization of the deductions made from the worker's wages; and
``(vi) if piece rates of pay are used, the units produced daily.
``(G) Report on wage protections.--Not later than June 1, 2007, the Comptroller General of the United States shall prepare and transmit to the Secretary of Labor, the Committee on the Judiciary of the Senate, and Committee on the Judiciary of the House of Representatives, a report that addresses--
``(i) whether the employment of H-2A or unauthorized aliens in the United States agricultural work force has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;
``(ii) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;
``(iii) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;
``(iv) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage; and
``(v) recommendations for future wage protection under this section.
``(H) Commission on wage standards.--
``(i) Establishment.--There is established the Commission on Agricultural Wage Standards under the H-2A program (in this subparagraph referred to as the `Commission').
``(ii) Composition.--The Commission shall consist of 10 members as follows:
``(I) 4 representatives of agricultural employers and 1 representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.
``(II) 4 representatives of agricultural workers and 1 representative of the Department of Labor, each appointed by the Secretary of Labor.
``(iii) Functions.--The Commission shall conduct a study that shall address--
``(I) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;
``(II) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;
``(III) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;
``(IV) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; and
``(V) recommendations for future wage protection under this section.
``(iv) Final report.--Not later than June 1, 2007, the Commission shall submit a report to the Congress setting forth the findings of the study conducted under clause (iii).
``(v) Termination date.--The Commission shall terminate upon submitting its final report.
``(4) Guarantee of employment.--
``(A) Offer to worker.--The employer shall guarantee to offer the worker employment for the hourly equivalent of at least three-fourths of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker's Sabbath and Federal holidays. If the employer affords the United States or H-2A worker less employment than that required under this paragraph, the employer shall pay such worker the amount which the worker would have earned had the worker, in fact, worked for the guaranteed number of hours.
``(B) Failure to work.--Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker's Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met.
``(C) Abandonment of employment, termination for cause.--If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, the worker is not entitled to the `three-fourths guarantee' described in subparagraph (A).
``(D) Contract impossibility.--If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster, including but not limited to a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker's employment. In the event of such termination, the employer shall fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment. In such cases, the employer will make efforts to transfer the United States worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall provide the return transportation required in paragraph
(2)(D).
``(5) Motor vehicle safety.--
``(A) Mode of transportation subject to coverage.--
``(i) In general.--Except as provided in clauses (iii) and
(iv), this subsection applies to any H-2A employer that uses or causes to be used any vehicle to transport an H-2A worker within the United States.
``(ii) Defined term.--In this paragraph, the term `uses or causes to be used'--
``(I) applies only to transportation provided by an H-2A employer to an H-2A worker, or by a farm labor contractor to an H-2A worker at the request or direction of an H-2A employer; and
``(II) does not apply to--
``(aa) transportation provided, or transportation arrangements made, by an H-2A worker, unless the employer specifically requested or arranged such transportation; or
``(bb) car pooling arrangements made by H-2A workers themselves, using 1 of the workers' own vehicles, unless specifically requested by the employer directly or through a farm labor contractor.
``(iii) Clarification.--Providing a job offer to an H-2A worker that causes the worker to travel to or from the place of employment, or the payment or reimbursement of the transportation costs of an H-2A worker by an H-2A employer, shall not constitute an arrangement of, or participation in, such transportation.
``(iv) Agricultural machinery and equipment excluded.--This subsection does not apply to the transportation of an H-2A worker on a tractor, combine, harvester, picker, or other similar machinery or equipment while such worker is actually engaged in the planting, cultivating, or harvesting of agricultural commodities or the care of livestock or poultry or engaged in transportation incidental thereto.
``(v) Common carriers excluded.--This subsection does not apply to common carrier motor vehicle transportation in which the provider holds itself out to the general public as engaging in the transportation of passengers for hire and holds a valid certification of authorization for such purposes from an appropriate Federal, State, or local agency.
``(B) Applicability of standards, licensing, and insurance requirements.--
``(i) In general.--When using, or causing to be used, any vehicle for the purpose of providing transportation to which this subparagraph applies, each employer shall--
``(I) ensure that each such vehicle conforms to the standards prescribed by the Secretary of Labor under section 401(b) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1841(b)) and other applicable Federal and State safety standards;
``(II) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle; and
``(III) have an insurance policy or a liability bond that is in effect which insures the employer against liability for damage to persons or property arising from the ownership, operation, or causing to be operated, of any vehicle used to transport any H-2A worker.
``(ii) Amount of insurance required.--The level of insurance required shall be determined by the Secretary of Labor pursuant to regulations to be issued under this subsection.
``(iii) Effect of workers' compensation coverage.--If the employer of any H-2A worker provides workers' compensation coverage for such worker in the case of bodily injury or death as provided by State law, the following adjustments in the requirements of subparagraph (B)(i)(III) relating to having an insurance policy or liability bond apply:
``(I) No insurance policy or liability bond shall be required of the employer, if such workers are transported only under circumstances for which there is coverage under such State law.
``(II) An insurance policy or liability bond shall be required of the employer for circumstances under which coverage for the transportation of such workers is not provided under such State law.
``(c) Compliance With Labor Laws.--An employer shall assure that, except as otherwise provided in this section, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer, except that a violation of this assurance shall not constitute a violation of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).
``(d) Copy of Job Offer.--The employer shall provide to the worker, not later than the day the work commences, a copy of the employer's application and job offer described in section 218(a), or, if the employer will require the worker to enter into a separate employment contract covering the employment in question, such separate employment contract.
``(e) Range Production of Livestock.--Nothing in this section, section 218, or section 218B shall preclude the Secretary of Labor and the Secretary from continuing to apply special procedures and requirements to the admission and employment of aliens in occupations involving the range production of livestock.
``PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS
``Sec. 218B. (a) Petitioning for Admission.--An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H-2A worker may file a petition with the Secretary. The petition shall be accompanied by an accepted and currently valid certification provided by the Secretary of Labor under section 218(e)(2)(B) covering the petitioner.
``(b) Expedited Adjudication by the Secretary.--The Secretary shall establish a procedure for expedited adjudication of petitions filed under subsection (a) and within 7 working days shall, by fax, cable, or other means assuring expedited delivery, transmit a copy of notice of action on the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States.
``(c) Criteria for Admissibility.--
``(1) In general.--An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section, section 218, and section 218A, and the alien is not ineligible under paragraph (2).
``(2) Disqualification.--An alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years--
``(A) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; or
``(B) otherwise violated a term or condition of admission into the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.
``(3) Waiver of ineligibility for unlawful presence.--
``(A) In general.--An alien who has not previously been admitted into the United States pursuant to this section, and who is otherwise eligible for admission in accordance with paragraphs (1) and (2), shall not be deemed inadmissible by virtue of section 212(a)(9)(B). If an alien described in the preceding sentence is present in the United States, the alien may apply from abroad for H-2A status, but may not be granted that status in the United States.
``(B) Maintenance of waiver.--An alien provided an initial waiver of ineligibility pursuant to subparagraph (A) shall remain eligible for such waiver unless the alien violates the terms of this section or again becomes ineligible under section 212(a)(9)(B) by virtue of unlawful presence in the United States after the date of the initial waiver of ineligibility pursuant to subparagraph (A).
``(d) Period of Admission.--
``(1) In general.--The alien shall be admitted for the period of employment in the application certified by the Secretary of Labor pursuant to section 218(e)(2)(B), not to exceed 10 months, supplemented by a period of not more than 1 week before the beginning of the period of employment for the purpose of travel to the work site and a period of 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment, except that--
``(A) the alien is not authorized to be employed during such 14-day period except in the employment for which the alien was previously authorized; and
``(B) the total period of employment, including such 14-day period, may not exceed 10 months.
``(2) Construction.--Nothing in this subsection shall limit the authority of the Secretary to extend the stay of the alien under any other provision of this Act.
``(e) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status under section 101(a)(15)(H)(ii)(a) who abandons the employment which was the basis for such admission or status shall be considered to have failed to maintain nonimmigrant status as an H-2A worker and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--The employer, or association acting as agent for the employer, shall notify the Secretary not later than 7 days after an H-2A worker prematurely abandons employment.
``(3) Removal by the secretary.--The Secretary shall promptly remove from the United States any H-2A worker who violates any term or condition of the worker's nonimmigrant status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment.
``(f) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the Secretary required by subsection (e)(2), the Secretary of State shall promptly issue a visa to, and the Secretary shall admit into the United States, an eligible alien designated by the employer to replace an H-2A worker--
``(A) who abandons or prematurely terminates employment; or
``(B) whose employment is terminated after a United States worker is employed pursuant to section 218(b)(2)(H)(iii), if the United States worker voluntarily departs before the end of the period of intended employment or if the employment termination is for a lawful job-related reason.
``(2) Construction.--Nothing in this subsection is intended to limit any preference required to be accorded United States workers under any other provision of this Act.
``(g) Identification Document.--
``(1) In general.--Each alien authorized to be admitted under section 101(a)(15)(H)(ii)(a) shall be provided an identification and employment eligibility document to verify eligibility for employment in the United States and verify such person's proper identity.
``(2) Requirements.--No identification and employment eligibility document may be issued which does not meet the following requirements:
``(A) The document shall be capable of reliably determining whether--
``(i) the individual with the identification and employment eligibility document whose eligibility is being verified is in fact eligible for employment;
``(ii) the individual whose eligibility is being verified is claiming the identity of another person; and
``(iii) the individual whose eligibility is being verified is authorized to be admitted into, and employed in, the United States as an H-2A worker.
``(B) The document shall be in a form that is resistant to counterfeiting and to tampering.
``(C) The document shall--
``(i) be compatible with other databases of the Secretary for the purpose of excluding aliens from benefits for which they are not eligible and determining whether the alien is unlawfully present in the United States; and
``(ii) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.
``(h) Extension of Stay of H-2A Aliens in the United States.--
``(1) Extension of stay.--If an employer seeks approval to employ an H-2A alien who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (a), shall request an extension of the alien's stay and a change in the alien's employment.
``(2) Limitation on filing a petition for extension of stay.--A petition may not be filed for an extension of an alien's stay--
``(A) for a period of more than 10 months; or
``(B) to a date that is more than 3 years after the date of the alien's last admission to the United States under this section.
``(3) Work authorization upon filing a petition for extension of stay.--
``(A) In general.--An alien who is lawfully present in the United States may commence the employment described in a petition under paragraph (1) on the date on which the petition is filed.
``(B) Definition.--For purposes of subparagraph (A), the term `file' means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition.
``(C) Handling of petition.--The employer shall provide a copy of the employer's petition to the alien, who shall keep the petition with the alien's identification and employment eligibility document as evidence that the petition has been filed and that the alien is authorized to work in the United States.
``(D) Approval of petition.--Upon approval of a petition for an extension of stay or change in the alien's authorized employment, the Secretary shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition.
``(4) Limitation on employment authorization of aliens without valid identification and employment eligibility document.--An expired identification and employment eligibility document, together with a copy of a petition for extension of stay or change in the alien's authorized employment that complies with the requirements of paragraph
(1), shall constitute a valid work authorization document for a period of not more than 60 days beginning on the date on which such petition is filed, after which time only a currently valid identification and employment eligibility document shall be acceptable.
``(5) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous period of authorized status as an H-2A worker (including any extensions) is 3 years.
``(B) Requirement to remain outside the united states.--
``(i) In general.--Subject to clause (ii), in the case of an alien outside the United States whose period of authorized status as an H-2A worker (including any extensions) has expired, the alien may not again apply for admission to the United States as an H-2A worker unless the alien has remained outside the United States for a continuous period equal to at least \1/5\ the duration of the alien's previous period of authorized status as an H-2A worker (including any extensions).
``(ii) Exception.--Clause (i) shall not apply in the case of an alien if the alien's period of authorized status as an H-2A worker (including any extensions) was for a period of not more than 10 months and such alien has been outside the United States for at least 2 months during the 12 months preceding the date the alien again is applying for admission to the United States as an H-2A worker.
``(i) Special Rules for Aliens Employed as Sheepherders.--Notwithstanding any provision of the Agricultural Job Opportunity, Benefits, and Security Act of 2005, aliens admitted under section 101(a)(15)(H)(ii)(a) for employment as sheepherders--
``(1) may be admitted for a period of 12 months;
``(2) may be extended for a continuous period of up to 3 years; and
``(3) shall not be subject to the requirements of subsection (h)(5) relating to periods of absence from the United States.
``WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT
``Sec. 218C. (a) Enforcement Authority.--
``(1) Investigation of complaints.--
``(A) Aggrieved person or third-party complaints.--The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in section 218(b), or an employer's misrepresentation of material facts in an application under section 218(a). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure, or misrepresentation, respectively. The Secretary of Labor shall conduct an investigation under this subparagraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
``(B) Determination on complaint.--Under such process, the Secretary of Labor shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C), (D), (E), or (H). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code, within 60 days after the date of the determination. If such a hearing is requested, the Secretary of Labor shall make a finding concerning the matter not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary of Labor may consolidate the hearings under this subparagraph on such complaints.
``(C) Failures to meet conditions.--If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(D), (1)(F), (2)(A), (2)(B), or (2)(G) of section 218(b), a substantial failure to meet a condition of paragraph
(1)(C), (1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section 218(b), or a material misrepresentation of fact in an application under section 218(a)--
``(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; and
``(ii) the Secretary may disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) for a period of 1 year.
``(D) Willful failures and willful misrepresentations.--If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b), a willful misrepresentation of a material fact in an application under section 218(a), or a violation of subsection (d)(1)--
``(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate;
``(ii) the Secretary of Labor may seek appropriate legal or equitable relief to effectuate the purposes of subsection
(d)(1); and
``(iii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 2 years.
``(E) Displacement of united states workers.--If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b) or a willful misrepresentation of a material fact in an application under section 218(a), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's application under section 218(a) or during the period of 30 days preceding such period of employment--
``(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary of Labor determines to be appropriate; and
``(ii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 3 years.
``(F) Limitations on civil money penalties.--The Secretary of Labor shall not impose total civil money penalties with respect to an application under section 218(a) in excess of
$90,000.
``(G) Failures to pay wages or required benefits.--If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment, required under section 218A(b), the Secretary of Labor shall assess payment of back wages, or other required benefits, due any United States worker or H-2A worker employed by the employer in the specific employment in question. The back wages or other required benefits under section 218A(b) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.
``(2) Statutory construction.--Nothing in this section shall be construed as limiting the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section, under section 218 or 218A.
``(b) Rights Enforceable by Private Right of Action.--H-2A workers may enforce the following rights through the private right of action provided in subsection (c), and no other right of action shall exist under Federal or State law to enforce such rights:
``(1) The providing of housing or a housing allowance as required under section 218A(b)(1).
``(2) The reimbursement of transportation as required under section 218A(b)(2).
``(3) The payment of wages required under section 218A(b)(3) when due.
``(4) The benefits and material terms and conditions of employment expressly provided in the job offer described in section 218(a)(2), not including the assurance to comply with other Federal, State, and local labor laws described in section 218A(c), compliance with which shall be governed by the provisions of such laws.
``(5) The guarantee of employment required under section 218A(b)(4).
``(6) The motor vehicle safety requirements under section 218A(b)(5).
``(7) The prohibition of discrimination under subsection
(d)(2).
``(c) Private Right of Action.--
``(1) Mediation.--Upon the filing of a complaint by an H-2A worker aggrieved by a violation of rights enforceable under subsection (b), and within 60 days of the filing of proof of service of the complaint, a party to the action may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute. Upon a filing of such request and giving of notice to the parties, the parties shall attempt mediation within the period specified in subparagraph (B).
``(A) Mediation services.--The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under subsection (b) between H-2A workers and agricultural employers without charge to the parties.
``(B) 90-day limit.--The Federal Mediation and Conciliation Service may conduct mediation or other non-binding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives the request for assistance unless the parties agree to an extension of this period of time.
``(C) Authorization.--
``(i) In general.--Subject to clause (ii), there are authorized to be appropriated to the Federal Mediation and Conciliation Service $500,000 for each fiscal year to carry out this section.
``(ii) Mediation.--Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized to conduct the mediation or other dispute resolution activities from any other appropriated funds available to the Director and to reimburse such appropriated funds when the funds are appropriated pursuant to this authorization, such reimbursement to be credited to appropriations currently available at the time of receipt.
``(2) Maintenance of civil action in district court by aggrieved person.--An H-2A worker aggrieved by a violation of rights enforceable under subsection (b) by an agricultural employer or other person may file suit in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, without regard to the citizenship of the parties, and without regard to the exhaustion of any alternative administrative remedies under this Act, not later than 3 years after the date the violation occurs.
``(3) Election.--An H-2A worker who has filed an administrative complaint with the Secretary of Labor may not maintain a civil action under paragraph (2) unless a complaint based on the same violation filed with the Secretary of Labor under subsection (a)(1) is withdrawn before the filing of such action, in which case the rights and remedies available under this subsection shall be exclusive.
``(4) Preemption of state contract rights.--Nothing in this Act shall be construed to diminish the rights and remedies of an H-2A worker under any other Federal or State law or regulation or under any collective bargaining agreement, except that no court or administrative action shall be available under any State contract law to enforce the rights created by this Act.
``(5) Waiver of rights prohibited.--Agreements by employees purporting to waive or modify their rights under this Act shall be void as contrary to public policy, except that a waiver or modification of the rights or obligations in favor of the Secretary of Labor shall be valid for purposes of the enforcement of this Act. The preceding sentence may not be construed to prohibit agreements to settle private disputes or litigation.
``(6) Award of damages or other equitable relief.--
``(A) If the court finds that the respondent has intentionally violated any of the rights enforceable under subsection (b), it shall award actual damages, if any, or equitable relief.
``(B) Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code.
``(7) Workers' compensation benefits; exclusive remedy.--
``(A) Notwithstanding any other provision of this section, where a State's workers' compensation law is applicable and coverage is provided for an H-2A worker, the workers' compensation benefits shall be the exclusive remedy for the loss of such worker under this section in the case of bodily injury or death in accordance with such State's workers' compensation law.
``(B) The exclusive remedy prescribed in subparagraph (A) precludes the recovery under paragraph (6) of actual damages for loss from an injury or death but does not preclude other equitable relief, except that such relief shall not include back or front pay or in any manner, directly or indirectly, expand or otherwise alter or affect--
``(i) a recovery under a State workers' compensation law; or
``(ii) rights conferred under a State workers' compensation law.
``(8) Tolling of statute of limitations.--If it is determined under a State workers' compensation law that the workers' compensation law is not applicable to a claim for bodily injury or death of an H-2A worker, the statute of limitations for bringing an action for actual damages for such injury or death under subsection (c) shall be tolled for the period during which the claim for such injury or death under such State workers' compensation law was pending. The statute of limitations for an action for actual damages or other equitable relief arising out of the same transaction or occurrence as the injury or death of the H-2A worker shall be tolled for the period during which the claim for such injury or death was pending under the State workers' compensation law.
``(9) Preclusive effect.--Any settlement by an H-2A worker and H-2A employer reached through the mediation process required under subsection (c)(1) shall preclude any right of action arising out of the same facts between the parties in any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.
``(10) Settlements.--Any settlement by the Secretary of Labor with an H-2A employer on behalf of an H-2A worker of a complaint filed with the Secretary of Labor under this section or any finding by the Secretary of Labor under subsection (a)(1)(B) shall preclude any right of action arising out of the same facts between the parties under any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.
``(d) Discrimination Prohibited.--
``(1) In general.--It is a violation of this subsection for any person who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subsection, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of section 218 or 218A or any rule or regulation pertaining to section 218 or 218A, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of section 218 or 218A or any rule or regulation pertaining to either of such sections.
``(2) Discrimination against H-2A workers.--It is a violation of this subsection for any person who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against an H-2A employee because such worker has, with just cause, filed a complaint with the Secretary of Labor regarding a denial of the rights enumerated and enforceable under subsection (b) or instituted, or caused to be instituted, a private right of action under subsection (c) regarding the denial of the rights enumerated under subsection (b), or has testified or is about to testify in any court proceeding brought under subsection (c).
``(e) Authorization to Seek Other Appropriate Employment.--The Secretary of Labor and the Secretary shall establish a process under which an H-2A worker who files a complaint regarding a violation of subsection (d) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.
``(f) Role of Associations.--
``(1) Violation by a member of an association.--An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of sections 218 and 218A, as though the employer had filed the application itself. If such an employer is determined, under this section, to have committed a violation, the penalty for such violation shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge, or reason to know, of the violation, in which case the penalty shall be invoked against the association or other association member as well.
``(2) Violations by an association acting as an employer.--If an association filing an application as a sole or joint employer is determined to have committed a violation under this section, the penalty for such violation shall apply only to the association unless the Secretary of Labor determines that an association member or members participated in or had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association member or members as well.
``DEFINITIONS
``Sec. 218D. For purposes of sections 218 through 218D:
``(1) Agricultural employment.--The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, agricultural employment includes employment under section 101(a)(15)(H)(ii)(a).
``(2) Bona fide union.--The term `bona fide union' means any organization in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of work for agricultural employees. Such term does not include an organization formed, created, administered, supported, dominated, financed, or controlled by an employer or employer association or its agents or representatives.
``(3) Displace.--The term `displace', in the case of an application with respect to 1 or more H-2A workers by an employer, means laying off a United States worker from a job for which the H-2A worker or workers is or are sought.
``(4) Eligible.--The term `eligible', when used with respect to an individual, means an individual who is not an unauthorized alien (as defined in section 274A(h)(3)).
``(5) Employer.--The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.
``(6) H-2A employer.--The term `H-2A employer' means an employer who seeks to hire 1 or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a).
``(7) H-2A worker.--The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(8) Job opportunity.--The term `job opportunity' means a job opening for temporary full-time employment at a place in the United States to which United States workers can be referred.
``(9) Lays off.--
``(A) In general.--The term `lays off', with respect to a worker--
``(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in section 218A(b)(4)(D)), or temporary layoffs due to weather, markets, or other temporary conditions; but
``(ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under section 218(b)(2)(E), with either employer described in such section) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
``(B) Statutory construction.--Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.
``(10) Regulatory drought.--The term `regulatory drought' means a decision subsequent to the filing of the application under section 218 by an entity not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to produce an agricultural commodity, thereby reducing the need for labor.
``(11) Seasonal.--Labor is performed on a `seasonal' basis if--
``(A) ordinarily, it pertains to or is of the kind exclusively performed at certain seasons or periods of the year; and
``(B) from its nature, it may not be continuous or carried on throughout the year.
``(12) Secretary.--The term `Secretary' means the Secretary of Homeland Security.
``(13) Temporary.--A worker is employed on a `temporary' basis where the employment is intended not to exceed 10 months.
``(14) United states worker.--The term `United States worker' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a).''.
(b) Table of Contents.--The table of contents of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the item relating to section 218 and inserting the following:
``Sec. 218. H-2A employer applications.
``Sec. 218A. H-2A employment requirements.
``Sec. 218B. Procedure for admission and extension of stay of H-2A workers.
``Sec. 218C. Worker protections and labor standards enforcement.
``Sec. 218D. Definitions.''.
Subtitle C--Miscellaneous Provisions
SEC. _31. DETERMINATION AND USE OF USER FEES.
(a) Schedule of Fees.--The Secretary shall establish and periodically adjust a schedule of fees for the employment of aliens under this title and the amendments made by this title, and a collection process for such fees from employers participating in the program provided under this Act. Such fees shall be the only fees chargeable to employers for services provided under this Act.
(b) Determination of Schedule.--
(1) In general.--The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in the employer's application under section 218 of the Immigration and Nationality Act, as added by section _21 of this Act, and sufficient to provide for the direct costs of providing services related to an employer's authorization to employ eligible aliens pursuant to this Act, to include the certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.
(2) Procedure.--
(A) In general.--In establishing and adjusting such a schedule, the Secretary shall comply with Federal cost accounting and fee setting standards.
(B) Publication and comment.--The Secretary shall publish in the Federal Register an initial fee schedule and associated collection process and the cost data or estimates upon which such fee schedule is based, and any subsequent amendments thereto, pursuant to which public comment shall be sought and a final rule issued.
(c) Use of Proceeds.--Notwithstanding any other provision of law, all proceeds resulting from the payment of the alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretary, the Secretary of State, and the Secretary of Labor for the costs of carrying out sections 218 and 218B of the Immigration and Nationality Act, as added by section _21 of this Act, and the provisions of this Act.
SEC. _32. REGULATIONS.
(a) Regulations of the Secretary.--The Secretary shall consult with the Secretary of Labor and the Secretary of Agriculture on all regulations to implement the duties of the Secretary under this title and the amendments made by this title.
(b) Regulations of the Secretary of State.--The Secretary of State shall consult with the Secretary, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this title and the amendments made by this title.
(c) Regulations of the Secretary of Labor.--The Secretary of Labor shall consult with the Secretary of Agriculture and the Secretary on all regulations to implement the duties of the Secretary of Labor under this title and the amendments made by this title.
(d) Deadline for Issuance of Regulations.--All regulations to implement the duties of the Secretary, the Secretary of State, and the Secretary of Labor created under sections 218, 218A, 218B, and 218C of the Immigration and Nationality Act, as added by section _21 of this Act, shall take effect on the effective date of section _21 and shall be issued not later than 1 year after the date of enactment of this Act.
SEC. _33. RELIGIOUS ORGANIZATIONS.
Section 274(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)) is amended by adding at the end the following:
``(C) It is not a violation of clauses (ii), (iii), or (iv) of subparagraph (A) for a religious denomination described in section 101(a)(27)(C)(i) or an affiliated religious organization described in section 101(a)(27)(C)(ii)(III), or their agents or officers, to encourage, invite, call, allow, or enable an alien who is present in the United States in violation of law to carry on the vocation described in section 101(a)(27)(C)(ii)(I), as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, and other basic living expenses.''.
SEC. _34. EFFECTIVE DATE.
(a) In General.--Except as otherwise provided, sections _21 and _31 shall take effect 1 year after the date of enactment of this Act.
(b) Report.--Not later than 180 days after the date of enactment of this Act, the Secretary shall prepare and submit to the appropriate committees of Congress a report that describes the measures being taken and the progress made in implementing this title.
______
SA 1179. Mr. INOUYE submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 70, after line 24, insert the following:
vulnerability and risk assessment
For necessary expenses of the Transportation Security Administration in working with the Department of Transportation and other appropriate agencies, to complete a vulnerability and risk assessment of passenger and freight rail transportation.
On page 77, line 18, strike ``$2,694,300,000'' and insert
``$2,959,300,000''.
On page 79, between lines 22 and 23, insert the following:
(7) $265,000,000 for rail security grants, of which--
(A) $185,000,000 shall be for grants to railroads, hazardous materials shippers, rail car owners, universities, State and local governments, and Amtrak for activities to prevent or respond to acts of terrorism, sabotage, or other intercity passenger rail and freight rail security threats;
(B) $40,000,000 shall be for grants to Amtrak to make fire and life-safety improvements to Amtrak tunnels on the Northeast Corridor in New York, NY, Baltimore, MD, and Washington, DC; and
(C) $35,000,000 shall be for research and development to improve freight and intercity passenger rail security.
______
SA 1180. Mr. KENNEDY (for himself and Mr. McCain) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
DIVISION __--BORDER SECURITY AND IMMIGRATION
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This division may be cited as the
``Secure America and Orderly Immigration Act''.
(b) Table of Contents.--The table of contents for this division is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--BORDER SECURITY
Sec. 101. Definitions.
Subtitle A--Border Security Strategic Planning
Sec. 111. National Strategy for Border Security.
Sec. 112. Reports to Congress.
Sec. 113. Authorization of appropriations.
Subtitle B--Border Infrastructure, Technology Integration, and Security
Enhancement
Sec. 121. Border security coordination plan.
Sec. 122. Border security advisory committee.
Sec. 123. Programs on the use of technologies for border security.
Sec. 124. Combating human smuggling.
Sec. 125. Savings clause.
Subtitle C--International Border Enforcement
Sec. 131. North American Security Initiative.
Sec. 132. Information sharing agreements.
Sec. 133. Improving the security of Mexico's southern border.
TITLE II--STATE CRIMINAL ALIEN ASSISTANCE
Sec. 201. State criminal alien assistance program authorization of appropriations.
Sec. 202. Reimbursement of States for indirect costs relating to the incarceration of illegal aliens.
Sec. 203. Reimbursement of States for pre-conviction costs relating to the incarceration of illegal aliens.
TITLE III--ESSENTIAL WORKER VISA PROGRAM
Sec. 301. Essential workers.
Sec. 302. Admission of essential workers.
Sec. 303. Employer obligations.
Sec. 304. Protection for workers.
Sec. 305. Market-based numerical limitations.
Sec. 306. Adjustment to lawful permanent resident status.
Sec. 307. Essential Worker Visa Program Task Force.
Sec. 308. Willing worker-willing employer electronic job registry.
Sec. 309. Authorization of appropriations.
TITLE IV--ENFORCEMENT
Sec. 401. Document and visa requirements.
Sec. 402. Employment Eligibility Confirmation System.
Sec. 403. Improved entry and exit data system.
Sec. 404. Department of labor investigative authorities.
Sec. 405. Protection of employment rights.
Sec. 406. Increased fines for prohibited behavior.
TITLE V--PROMOTING CIRCULAR MIGRATION PATTERNS
Sec. 501. Labor migration facilitation programs.
Sec. 502. Bilateral efforts with Mexico to reduce migration pressures and costs.
TITLE VI--FAMILY UNITY AND BACKLOG REDUCTION
Sec. 601. Elimination of existing backlogs.
Sec. 602. Country limits.
Sec. 603. Allocation of immigrant visas.
Sec. 604. Relief for children and widows.
Sec. 605. Amending the affidavit of support requirements.
Sec. 606. Discretionary authority.
Sec. 607. Family unity.
TITLE VII--H095B NONIMMIGRANTS
Sec. 701. H095B nonimmigrants.
Sec. 702. Adjustment of status for H095B nonimmigrants.
Sec. 703. Aliens not subject to direct numerical limitations.
Sec. 704. Employer protections.
Sec. 705. Authorization of appropriations.
TITLE VIII--PROTECTION AGAINST IMMIGRATION FRAUD
Sec. 801. Right to qualified representation.
Sec. 802. Protection of witness testimony.
TITLE IX--CIVICS INTEGRATION
Sec. 901. Funding for the Office of Citizenship.
Sec. 902. Civics integration grant program.
TITLE X--PROMOTING ACCESS TO HEALTH CARE
Sec. 1001. Federal reimbursement of emergency health services furnished to undocumented aliens.
Sec. 1002. Prohibition against offset of certain Medicare and Medicaid payments.
Sec. 1003. Prohibition against discrimination against aliens on the basis of employment in hospital-based versus nonhospital-
based sites.
Sec. 1004. Binational public health infrastructure and health insurance.
TITLE XI--MISCELLANEOUS
Sec. 1101. Submission to Congress of information regarding H095A nonimmigrants.
Sec. 1102. H095 nonimmigrant petitioner account.
Sec. 1103. Anti-discrimination protections.
Sec. 1104. Women and children at risk of harm.
Sec. 1105. Expansion of S visa.
Sec. 1106. Volunteers.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Government of the United States has an obligation to its citizens to secure its borders and ensure the rule of law in its communities.
(2) The Government of the United States must strengthen international border security efforts by dedicating adequate and significant resources for technology, personnel, and training for border region enforcement.
(3) Federal immigration policies must adhere to the United States tradition as a nation of immigrants and reaffirm this Nation's commitment to family unity, economic opportunity, and humane treatment.
(4) Immigrants have contributed significantly to the strength and economic prosperity of the United States and action must be taken to ensure their fair treatment by employers and protection against fraud and abuse.
(5) Current immigration laws and the enforcement of such laws are ineffective and do not serve the people of the United States, the national security interests of the United States, or the economic prosperity of the United States.
(6) The United States cannot effectively carry out its national security policies unless the United States identifies undocumented immigrants and encourages them to come forward and participate legally in the economy of the United States.
(7) Illegal immigration fosters other illegal activity, including human smuggling, trafficking, and document fraud, all of which undermine the national security interests of the United States.
(8) Illegal immigration burdens States and local communities with hundreds of millions of dollars in uncompensated expenses for law enforcement, health care, and other essential services.
(9) Illegal immigration creates an underclass of workers who are vulnerable to fraud and exploitation.
(10) Fixing the broken immigration system requires a comprehensive approach that provides for adequate legal channels for immigration and strong enforcement of immigration laws which will serve the economic, social, and security interests of the United States.
(11) Foreign governments, particularly those that share an international border with the United States, must play a critical role in securing international borders and deterring illegal entry of foreign nationals into the United States.
(12) Federal immigration policy should foster economic growth by allowing willing workers to be matched with willing employers when no United States worker is available to take a job.
(13) Immigration reform is a key component to achieving effective enforcement and will allow for the best use of security and enforcement resources to be focused on the greatest risks.
(14) Comprehensive immigration reform and strong enforcement of immigration laws will encourage legal immigration, deter illegal immigration, and promote the economic and national security interests of the United States.
TITLE I--BORDER SECURITY
SEC. 101. DEFINITIONS.
In this title:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
(B) the Committee on the Judiciary of the Senate;
(C) the Committee on Homeland Security of the House of Representatives; and
(D) the Committee on the Judiciary of the House of Representatives.
(2) International border of the united states.--The term
``international border of the United States'' means the international border between the United States and Canada and the international border between the United States and Mexico, including points of entry along such international borders.
(3) Secretary.--Except as otherwise provided, the term
``Secretary'' means the Secretary of Homeland Security.
(4) Security plan.--The term ``security plan'' means a security plan developed as part of the National Strategy for Border Security set forth under section 111(a) for the Border Patrol and the field offices of the Bureau of Customs and Border Protection of the Department of Homeland Security that has responsibility for the security of any portion of the international border of the United States.
Subtitle A--Border Security Strategic Planning
SEC. 111. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) In General.--In conjunction with strategic homeland security planning efforts, the Secretary shall develop, implement, and update, as needed, a National Strategy for Border Security that includes a security plan for the Border Patrol and the field offices of the Bureau of Customs and Border Protection of the Department of Homeland Security that has responsibility for the security of any portion of the international border of the United States.
(b) Contents.--The National Strategy for Border Security shall include--
(1) the identification and evaluation of the points of entry and all portions of the international border of the United States that, in the interests of national security and enforcement, must be protected from illegal transit;
(2) a description of the most appropriate, practical, and cost-effective means of defending the international border of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities within the United States for the Border Patrol and the field offices of the Bureau of Customs and Border Protection that have responsibility for any portion of the international border of the United States;
(3) risk-based priorities for assuring border security and realistic deadlines for addressing security and enforcement needs identified in paragraphs (1) and (2);
(4) a strategic plan that sets out agreed upon roles and missions of Federal, State, regional, local, and tribal authorities, including appropriate coordination among such authorities, to enable security enforcement and border lands management to be carried out in an efficient and effective manner;
(5) a prioritization of research and development objectives to enhance the security of the international border of the United States and enforcement needs to promote such security consistent with the provisions of subtitle B;
(6) an update of the 2001 Port of Entry Infrastructure Assessment Study conducted by the United States Customs Service, in consultation with the General Services Administration;
(7) strategic interior enforcement coordination plans with personnel of Immigration and Customs Enforcement;
(8) strategic enforcement coordination plans with overseas personnel of the Department of Homeland Security and the Department of State to end human smuggling and trafficking activities;
(9) any other infrastructure or security plan or report that the Secretary determines appropriate for inclusion;
(10) the identification of low-risk travelers and how such identification would facilitate cross-border travel; and
(11) ways to ensure that the trade and commerce of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.
(c) Priority of National Strategy.--The National Strategy for Border Security shall be the governing document for Federal security and enforcement efforts related to securing the international border of the United States.
SEC. 112. REPORTS TO CONGRESS.
(a) National Strategy.--
(1) Initial submission.--Not later than 1 year after the date of enactment of this Act, the Secretary shall submit the National Strategy for Border Security, including each security plan, to the appropriate congressional committees. Such plans shall include estimated costs of implementation and training from a fiscal and personnel perspective and a cost-benefit analysis of any technological security implementations.
(2) Subsequent submissions.--After the submission required under paragraph (1), the Secretary shall submit to the appropriate congressional committees any revisions to the National Strategy for Border Security, including any revisions to a security plan, not less frequently than April 1 of each odd-numbered year. The plan shall include estimated costs for implementation and training and a cost-benefit analysis of technological security implementations that take place during the time frame under evaluation.
(b) Periodic Progress Reports.--
(1) Requirement for report.--Each year, in conjunction with the submission of the budget to Congress under section 1105(a) of title 31, United States Code, the Secretary shall submit to the appropriate congressional committees an assessment of the progress made on implementing the National Strategy for Border Security, including each security plan.
(2) Content.--Each progress report submitted under this subsection shall include any recommendations for improving and implementing the National Strategy for Border Security, including any recommendations for improving and implementing a security plan.
(c) Classified Material.--
(1) In general.--Any material included in the National Strategy for Border Security, including each security plan, that includes information that is properly classified under criteria established by Executive order shall be submitted to the appropriate congressional committees in a classified form.
(2) Unclassified version.--As appropriate, an unclassified version of the material described in paragraph (1) shall be provided to the appropriate congressional committees.
SEC. 113. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this subtitle for each of the 5 fiscal years beginning with the fiscal year after the fiscal year in which this Act was enacted.
Subtitle B--Border Infrastructure, Technology Integration, and Security
Enhancement
SEC. 121. BORDER SECURITY COORDINATION PLAN.
(a) In General.--The Secretary shall coordinate with Federal, State, local, and tribal authorities on law enforcement, emergency response, and security-related responsibilities with regard to the international border of the United States to develop and implement a plan to ensure that the security of such international border is not compromised--
(1) when the jurisdiction for providing such security changes from one such authority to another such authority;
(2) in areas where such jurisdiction is shared by more than one such authority; or
(3) by one such authority relinquishing such jurisdiction to another such authority pursuant to a memorandum of understanding.
(b) Elements of Plan.--In developing the plan, the Secretary shall consider methods to--
(1) coordinate emergency responses;
(2) improve data-sharing, communications, and technology among the appropriate agencies;
(3) promote research and development relating to the activities described in paragraphs (1) and (2); and
(4) combine personnel and resource assets when practicable.
(c) Report.--Not later than 1 year after implementing the plan developed under subsection (a), the Secretary shall transmit a report to the appropriate congressional committees on the development and implementation of such plan.
SEC. 122. BORDER SECURITY ADVISORY COMMITTEE.
(a) Establishment.--The Secretary is authorized to establish a Border Security Advisory Committee (referred to in this section as the ``Advisory Committee'') to provide advice and recommendations to the Secretary on border security and enforcement issues.
(b) Composition.--
(1) In general.--The members of the Advisory Committee shall be appointed by the Secretary and shall include representatives of--
(A) States that are adjacent to the international border of the United States;
(B) local law enforcement agencies; community officials, and tribal authorities of such States; and
(C) other interested parties.
(2) Membership.--The Advisory Committee shall be comprised of members who represent a broad cross section of perspectives.
SEC. 123. PROGRAMS ON THE USE OF TECHNOLOGIES FOR BORDER
SECURITY.
(a) Aerial Surveillance Technologies Program.--
(1) In general.--In conjunction with the border surveillance plan developed under section 5201 of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 10809458), the Secretary, not later than 60 days after the date of enactment of this Act, shall develop and implement a program to fully integrate aerial surveillance technologies to enhance the border security of the United States.
(2) Assessment and consultation requirements.--In developing the program under this subsection, the Secretary shall--
(A) consider current and proposed aerial surveillance technologies;
(B) assess the feasibility and advisability of utilizing such technologies to address border threats, including an assessment of the technologies considered best suited to address respective threats;
(C) consult with the Secretary of Defense regarding any technologies or equipment, which the Secretary may deploy along the international border of the United States; and
(D) consult with the Administrator of the Federal Aviation Administration regarding safety, airspace coordination and regulation, and any other issues necessary for implementation of the program.
(3) Additional requirements.--
(A) In general.--The program developed under this subsection shall include the utilization of a variety of aerial surveillance technologies in a variety of topographies and areas, including populated and unpopulated areas located on or near the international border of the United States, in order to evaluate, for a range of circumstances--
(i) the significance of previous experiences with such technologies in border security or critical infrastructure protection;
(ii) the cost and effectiveness of various technologies for border security, including varying levels of technical complexity; and
(iii) liability, safety, and privacy concerns relating to the utilization of such technologies for border security.
(B) Use of unmanned aerial vehicles.--The aerial surveillance technologies utilized in the program shall include unmanned aerial vehicles.
(4) Continued use of aerial surveillance technologies.--The Secretary may continue the operation of aerial surveillance technologies while assessing the effectiveness of their utilization and until such time the Secretary determines appropriate.
(5) Report.--
(A) Requirement.--Not later than 1 year after implementing the program under this subsection, the Secretary shall submit a report on such program to the appropriate congressional committees.
(B) Content.--The Secretary shall include in the report required by subparagraph (A) a description of the program together with such recommendations as the Secretary finds appropriate for enhancing the program.
(b) Demonstration Programs.--The Secretary is authorized, as part of the development and implementation of the National Strategy for Border Security, to establish and carry out demonstration programs to strengthen communication, information sharing, technology, security, intelligence benefits, and enforcement activities that will protect the international border of the United States without diminishing international trade and commerce.
(c) INSERT CONTINUED USE OF GROUND SURVEILLANCE TECHNOLOGIES.--
SEC. 124. COMBATING HUMAN SMUGGLING.
(a) Requirement for Plan.--The Secretary shall develop and implement a plan to improve coordination between the Bureau of Immigration and Customs Enforcement and the Bureau of Customs and Border Protection of the Department of Homeland Security and any other Federal, State, local, or tribal authorities, as determined appropriate by the Secretary, to improve coordination efforts to combat human smuggling.
(b) Content.--In developing the plan required by subsection
(a), the Secretary shall consider--
(1) the interoperability of databases utilized to prevent human smuggling;
(2) adequate and effective personnel training;
(3) methods and programs to effectively target networks that engage in such smuggling;
(4) effective utilization of--
(A) visas for victims of trafficking and other crimes; and
(B) investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other operations that are utilized in smuggling;
(5) joint measures, with the Secretary of State, to enhance intelligence sharing and cooperation with foreign governments whose citizens are preyed on by human smugglers; and
(6) other measures that the Secretary considers appropriate to combating human smuggling.
(c) Report.--Not later than 1 year after implementing the plan described in subsection (a), the Secretary shall submit to Congress a report on such plan, including any recommendations for legislative action to improve efforts to combating human smuggling.
SEC. 125. SAVINGS CLAUSE.
Nothing in this subtitle or subtitle A may be construed to provide to any State or local entity any additional authority to enforce Federal immigration laws.
Subtitle C--International Border Enforcement
SEC. 131. NORTH AMERICAN SECURITY INITIATIVE.
(a) In General.--The Secretary of State shall enhance the mutual security and safety of the United States, Canada, and Mexico by providing a framework for better management, communication, and coordination between the Governments of North America.
(b) Responsibilities.--In implementing the provisions of this subtitle, the Secretary of State shall carry out all of the activities described in this subtitle.
SEC. 132. INFORMATION SHARING AGREEMENTS.
The Secretary of State, in coordination with the Secretary of Homeland Security and the Government of Mexico, is authorized to negotiate an agreement with Mexico to--
(1) cooperate in the screening of third-country nationals using Mexico as a transit corridor for entry into the United States; and
(2) provide technical assistance to support stronger immigration control at the border with Mexico.
SEC. 133. IMPROVING THE SECURITY OF MEXICO'S SOUTHERN BORDER.
(a) Technical Assistance.--The Secretary of State, in coordination with the Secretary of Homeland Security, the Canadian Department of Foreign Affairs, and the Government of Mexico, shall establish a program to--
(1) assess the specific needs of the governments of Central American countries in maintaining the security of the borders of such countries;
(2) use the assessment made under paragraph (1) to determine the financial and technical support needed by the governments of Central American countries from Canada, Mexico, and the United States to meet such needs;
(3) provide technical assistance to the governments of Central American countries to secure issuance of passports and travel documents by such countries; and
(4) encourage the governments of Central American countries to--
(A) control alien smuggling and trafficking;
(B) prevent the use and manufacture of fraudulent travel documents; and
(C) share relevant information with Mexico, Canada, and the United States.
(b) Immigration.--The Secretary of Homeland Security, in consultation with the Secretary of State and appropriate officials of the governments of Central American countries shall provide robust law enforcement assistance to such governments that specifically addresses migratory issues to increase the ability of such governments to dismantle human smuggling organizations and gain tighter control over the border.
(c) Border Security Between Mexico and Guatemala or Belize.--The Secretary of State, in consultation with the Secretary of Homeland Security, the Government of Mexico, and appropriate officials of the Governments of Guatemala, Belize, and neighboring contiguous countries, shall establish a program to provide needed equipment, technical assistance, and vehicles to manage, regulate, and patrol the international border between Mexico and Guatemala and between Mexico and Belize.
(d) Tracking Central American Gangs.--The Secretary of State, in coordination with the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, the Government of Mexico, and appropriate officials of the governments of Central American countries, shall--
(1) assess the direct and indirect impact on the United States and Central America on deporting violent criminal aliens;
(2) establish a program and database to track Central American gang activities, focusing on the identification of returning criminal deportees;
(3) devise an agreed-upon mechanism for notification applied prior to deportation and for support for reintegration of these deportees; and
(4) devise an agreement to share all relevant information with the appropriate agencies of Mexico and other Central American countries.
TITLE II--STATE CRIMINAL ALIEN ASSISTANCE
SEC. 201. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM
AUTHORIZATION OF APPROPRIATIONS.
Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) is amended by striking paragraphs (5) and (6) and inserting the following:
``(5) Authorization of appropriations.--
``(A) In general.--There are authorized to be appropriated to carry out this subsection--
``(i) such sums as may be necessary for fiscal year 2005;
``(ii) $750,000,000 for fiscal year 2006;
``(iii) $850,000,000 for fiscal year 2007; and
``(iv) $950,000,000 for each of the fiscal years 2008 through 2011.
``(B) Limitation on use of funds.--Amounts appropriated pursuant to subparagraph (A) that are distributed to a State or political subdivision of a State, including a municipality, may be used only for correctional purposes.''.
SEC. 202. REIMBURSEMENT OF STATES FOR INDIRECT COSTS RELATING
TO THE INCARCERATION OF ILLEGAL ALIENS.
Section 501 of the Immigration Reform and Control Act of 1986 (8 U.S.C. 1365) is amended--
(1) in subsection (a)--
(A) by striking ``for the costs'' and inserting the following: ``for--
``(1) the costs''; and
(B) by striking ``such State.'' and inserting the following: ``such State; and
``(2) the indirect costs related to the imprisonment described in paragraph (1).''; and
(2) by striking subsections (c) through (e) and inserting the following:
``(c) Manner of Allotment of Reimbursements.--Reimbursements under this section shall be allotted in a manner that gives special consideration for any State that--
``(1) shares a border with Mexico or Canada; or
``(2) includes within the State an area in which a large number of undocumented aliens reside relative to the general population of that area.
``(d) Definitions.--As used in this section:
``(1) Indirect costs.--The term `indirect costs' includes--
``(A) court costs, county attorney costs, detention costs, and criminal proceedings expenditures that do not involve going to trial;
``(B) indigent defense costs; and
``(C) unsupervised probation costs.
``(2) State.--The term `State' has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act.
``(e) Authorization of Appropriations.--There are authorized to be appropriated $200,000,000 for each of the fiscal years 2005 through 2011 to carry out subsection
(a)(2).''.
SEC. 203. REIMBURSEMENT OF STATES FOR PRE-CONVICTION COSTS
RELATING TO THE INCARCERATION OF ILLEGAL
ALIENS.
Section 241(i)(3)(A) of the Immigration and Nationality Act
(8 U.S.C. 1231(i)(3)(a) is amended by inserting ``charged with or'' before ``convicted.''
TITLE III--ESSENTIAL WORKER VISA PROGRAM
SEC. 301. ESSENTIAL WORKERS.
Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended--
(1) by striking ``(H) an alien (i)(b)'' and inserting the following:
``(H) an alien--
``(i)(b)'';
(2) by striking ``or (ii)(a)'' and inserting the following:
``(ii)(a)'';
(3) by striking ``or (iii)'' and inserting the following:
``(iii)''; and
(4) by adding at the end the following:
``(v)(a) subject to section 218A, having residence in a foreign country, which the alien has no intention of abandoning, who is coming temporarily to the United States to initially perform labor or services (other than those occupation classifications covered under the provisions of clause (i)(b) or (ii)(a) or subparagraph (L), (O), (P), or
(R)); or.''.
SEC. 302. ADMISSION OF ESSENTIAL WORKERS.
(a) In General.--Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:
``ADMISSION OF TEMPORARY H095A WORKERS
``Sec. 218A. (a) The Secretary of State may grant a temporary visa to a nonimmigrant described in section 101(a)(15)(H)(v)(a) who demonstrates an intent to perform labor or services in the United States (other than those occupational classifications covered under the provisions of clause (i)(b) or (ii)(a) of section 101(a)(15)(H) or subparagraph (L), (O), (P), or (R)) of section 101(a)(15).
``(b) Requirements for Admission.--In order to be eligible for nonimmigrant status under section 101(a)(15)(H)(v)(a), an alien shall meet the following requirements:
``(1) Eligibility to work.--The alien shall establish that the alien is capable of performing the labor or services required for an occupation under section 101(a)(15)(H)(v).
``(2) Evidence of employment.--The alien's evidence of employment shall be provided through the Employment Eligibility Confirmation System established under section 274E or in accordance with requirements issued by the Secretary of State, in consultation with the Secretary of Homeland Security. In carrying out this paragraph, the Secretary may consider evidence from employers, employer associations, and labor representatives.
``(3) Fee.--The alien shall pay a $500 application fee to apply for the visa in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.
``(4) Medical examination.--The alien shall undergo a medical examination (including a determination of immunization status) at the alien's expense, that conforms to generally accepted standards of medical practice.
``(c) Grounds of Inadmissibility.--
``(1) In general.--In determining an alien's admissibility as a nonimmigrant under section 101(a)(15)(H)(v)(a)--
``(A) paragraphs (5), (6) (except for subparagraph (E)),
(7), (9), and (10)(B) of section 212(a) may be waived for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced;
``(B) the Secretary of Homeland Security may not waive--
``(i) subparagraph (A), (B), (C), (E), (G), (H), or (I) of section 212(a)(2) (relating to criminals);
``(ii) section 212(a)(3) (relating to security and related grounds); or
``(iii) subparagraph (A) or (C) of section 212(a)(10)
(relating to polygamists and child abductors);
``(C) for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced, the Secretary of Homeland Security may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or when such waiver is otherwise in the public interest; and
``(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary of Homeland Security to waive the provisions of section 212(a).
``(2) Waiver fine.--An alien who is granted a waiver under subparagraph (1) shall pay a $1,500 fine upon approval of the alien's visa application.
``(3) Applicability of other provisions.--Sections 240B(d) and 241(a)(5) shall not apply to an alien who initially seeks admission as a nonimmigrant under section 101(a)(15)(H)(v)(a).
``(4) Renewal of authorized admission and subsequent admissions.--An alien seeking renewal of authorized admission or subsequent admission as a nonimmigrant under section 101(a)(15)(H)(v)(a) shall establish that the alien is not inadmissible under section 212(a).
``(d) Period of Authorized Admission.--
``(1) Initial period.--The initial period of authorized admission as a nonimmigrant described in section 101(a)(15)(H)(v)(a) shall be 3 years.
``(2) Renewals.--The alien may seek an extension of the period described in paragraph (1) for 1 additional 3-year period.
``(3) Loss of employment.--
``(A) In general.--Subject to subsection (c), the period of authorized admission of a nonimmigrant alien under section 101(a)(15)(H)(v)(a) shall terminate if the nonimmigrant is unemployed for 45 or more consecutive days.
``(B) Return to foreign residence.--Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to return to the country of the alien's nationality or last residence.
``(C) Period of visa validity.--Any alien, whose period of authorized admission terminates under subparagraph (A), who returns to the country of the alien's nationality or last residence under subparagraph (B), may reenter the United States on the basis of the same visa to work for an employer, if the alien has complied with the requirements of subsection
(b)(1).
``(4) Visits outside united states.--
``(A) In general.--Under regulations established by the Secretary of Homeland Security, a nonimmigrant alien under section 101(a)(15)(H)(v)(a)--
``(i) may travel outside of the United States; and
``(ii) may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.
``(B) Effect on period of authorized admission.--Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.
``(e) Portability.--A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(v)(a), may accept new employment with a subsequent employer.
``(f) Waiver of Rights Prohibited.--A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) may not be required to waive any rights or protections under the Secure America and Orderly Immigration Act.
``(g) Change of Address.--An alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) shall comply by either electronic or paper notification with the change of address reporting requirements under section 265.
``(h) Bar to Future Visas for Violations.--
``(1) In general.--Any alien having the nonimmigrant status described in section 101(a)(15)(H)(v)(a) shall not be eligible to renew such nonimmigrant status if the alien willfully violates any material term or condition of such status.
``(2) Waiver.--The alien may apply for a waiver of the application of subparagraph (A) for technical violations, inadvertent errors, or violations for which the alien was not at fault.
``(i) Collection of Fees.--All fees collected under this section shall be deposited in the Treasury in accordance with section 286(w).''.
(b) Conforming Amendment Regarding Presumption of Nonimmigrant Status.--Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by inserting
``(H)(v)(a),'' after ``(H)(i),''.
(c) Clerical Amendment.--The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:
``Sec. 218A. Admission of temporary H095A workers.''.
SEC. 303. EMPLOYER OBLIGATIONS.
Employers employing a nonimmigrant described in section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act, as added by section 301, shall comply with all applicable Federal, State, and local laws, including--
(1) laws affecting migrant and seasonal agricultural workers; and
(2) the requirements under section 274E of such Act, as added by section 402.
SEC. 304. PROTECTION FOR WORKERS.
Section 218A of the Immigration and Nationality Act, as added by section 302, is amended by adding at the end the following:
``(h) Application of Labor and Other Laws.--
``(1) Definitions.--As used in this subsection and in subsections (i) through (k):
``(A) Employ; employee; employer.--The terms `employ',
`employee', and `employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
``(B) Foreign labor contractor.--The term `foreign labor contractor' means any person who for any compensation or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.
``(C) Foreign labor contracting activity.--The term
`foreign labor contracting activity' means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(v)(a).
``(2) Coverage.--Notwithstanding any other provision of law--
``(A) a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) is prohibited from being treated as an independent contractor; and
``(B) no person may treat a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) as an independent contractor.
``(3) Applicability of laws.--A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien's status as a nonimmigrant worker.
``(4) Tax responsibilities.--With respect to each employed nonimmigrant alien described in section 101(a)(15)(H)(v)(a), an employer shall comply with all applicable Federal, State, and local tax and revenue laws.
``(5) Nondiscrimination in employment.--An employer shall provide nonimmigrants issued a visa under this section with the same wages, benefits, and working conditions that are provided by the employer to United States workers similarly employed in the same occupation and the same place of employment.
``(6) No replacement of striking employees.--An employer may not hire a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) as a replacement worker if there is a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
``(7) Waiver of rights prohibited.--A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) may not be required to waive any rights or protections under the Secure America and Orderly Immigration Act. Nothing under this provision shall be construed to affect the interpretation of other laws.
``(8) No threatening of employees.--It shall be a violation of this section for an employer who has filed a petition under section 203(b) to threaten the alien beneficiary of such a petition with withdrawal of the application, or to withdraw such a petition in retaliation for the beneficiary's exercise of a right protected by the Secure America and Orderly Immigration Act.
``(9) Whistleblower protection.--It shall be unlawful for an employer or a labor contractor of a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee--
``(A) discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of Secure America and Orderly Immigration Act.
``(B) cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of the Secure America and Orderly Immigration Act.
``(i) Labor Recruiters.--
``(1) In general.--Each employer that engages in foreign labor contracting activity and each foreign labor contractor shall ascertain and disclose to each such worker who is recruited for employment the following information at the time of the worker's recruitment:
``(A) The place of employment.
``(B) The compensation for the employment.
``(C) A description of employment activities.
``(D) The period of employment.
``(E) Any other employee benefit to be provided and any costs to be charged for each benefit.
``(F) Any travel or transportation expenses to be assessed.
``(G) The existence of any labor organizing effort, strike, lockout, or other labor dispute at the place of employment.
``(H) The existence of any arrangement with any owner, employer, foreign contractor, or its agent where such person receives a commission from the provision of items or services to workers.
``(I) The extent to which workers will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including work related injuries and death, during the period of employment and, if so, the name of the State workers' compensation insurance carrier or the name of the policyholder of the private insurance, the name and the telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given.
``(J) Any education or training to be provided or required, including the nature and cost of such training, who will pay such costs, and whether the training is a condition of employment, continued employment, or future employment.
``(K) A statement, in a form specified by the Secretary of Labor, describing the protections of this Act for workers recruited abroad.
``(2) False or misleading information.--No foreign labor contractor or employer who engages in foreign labor contracting activity shall knowingly provide material false or misleading information to any worker concerning any matter required to be disclosed in paragraph (1).
``(3) Languages.--The information required to be disclosed under paragraph (1) shall be provided in writing in English or, as necessary and reasonable, in the language of the worker being recruited. The Department of Labor shall make forms available in English, Spanish, and other languages, as necessary, which may be used in providing workers with information required under this section.
``(4) Fees.--A person conducting a foreign labor contracting activity shall not assess any fee to a worker for such foreign labor contracting activity.
``(5) Terms.--No employer or foreign labor contractor shall, without justification, violate the terms of any agreement made by that contractor or employer regarding employment under this program.
``(6) Travel costs.--If the foreign labor contractor or employer charges the employee for transportation such transportation costs shall be reasonable.
``(7) Other worker protections.--
``(A) Notification.--Every 2 years, each employer shall notify the Secretary of Labor of the identity of any foreign labor contractor engaged by the employer in any foreign labor contractor activity for or on behalf of the employer.
``(B) Registration of foreign labor contractors.--
``(i) In general.--No person shall engage in foreign labor recruiting activity unless such person has a certificate of registration from the Secretary of Labor specifying the activities that such person is authorized to perform. An employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under this subparagraph.
``(ii) Issuance.--The Secretary shall promulgate regulations to establish an efficient electronic process for the investigation and approval of an application for a certificate of registration of foreign labor contractors not later than 14 days after such application is filed. Such process shall include requirements under paragraphs (1), (4), and (5) of section 1812 of title 29, United States Code, an expeditious means to update registrations and renew certificates and any other requirements the Secretary may prescribe.
``(iii) Term.--Unless suspended or revoked, a certificate under this subparagraph shall be valid for 2 years.
``(iv) Refusal to issue; revocation; suspension.--In accordance with regulations promulgated by the Secretary of Labor, the Secretary may refuse to issue or renew, or may suspend or revoke, a certificate of registration under this subparagraph. The justification for such refusal, suspension, or revocation may include the following:
``(I) The application or holder of the certification has knowingly made a material misrepresentation in the application for such certificate.
``(II) The applicant for or holder of the certification is not the real party in interest in the application or certificate of registration and the real party in interest is a person who has been refused issuance or renewal of a certificate, has had a certificate suspended or revoked, or does not qualify for a certificate under this paragraph.
``(III) The applicant for or holder of the certification has failed to comply with the Secure America and Orderly Immigration Act.
``(C) Remedy for violations.--An employer engaging in foreign labor contracting activity and a foreign labor contractor that violates the provisions of this subsection shall be subject to remedies for foreign labor contractor violations under subsections (j) and (k). If a foreign labor contractor acting as an agent of an employer violates any provision of this subsection, the employer shall also be subject to remedies under subsections (j) and (k). An employer that violates a provision of this subsection relating to employer obligations shall be subject to remedies under this subsections (j) and (k).
``(D) Employer notification.--An employer shall notify the Secretary of Labor any time the employer becomes aware of a violation of this subsection by a foreign labor recruiter.
``(E) Written agreements.--No foreign labor contractor shall violate the terms of any written agreements made with an employer relating to any contracting activity or worker protection under this subsection.
``(F) Bonding requirement.--The Secretary of Labor may require a foreign labor contractor under this subsection to post a bond in an amount sufficient to ensure the protection of individuals recruited by the foreign labor contractor. The Secretary may consider the extent to which the foreign labor contractor has sufficient ties to the United States to adequately enforce this subsection.
``(j) Enforcement.--
``(1) In general.--The Secretary of Labor shall prescribe regulations for the receipt, investigation, and disposition of complaints by an aggrieved person respecting a violation of this section.
``(2) Definition.--As used in this subsection, an
`aggrieved person' is a person adversely affected by the alleged violation, including--
``(A) a worker whose job, wages, or working conditions are adversely affected by the violation; and
``(B) a representative for workers whose jobs, wages, or working conditions are adversely affected by the violation who brings a complaint on behalf of such worker.
``(3) Filing deadline.--No investigation or hearing shall be conducted on a complaint concerning a violation under this section unless the complaint was filed not later than 12 months after the date of such violation.
``(4) Reasonable cause.--The Secretary of Labor shall conduct an investigation under this subsection if there is reasonable cause to believe that a violation of this section has occurred. The process established under this subsection shall provide that, not later than 30 days after a complaint is filed, the Secretary shall determine if there is reasonable cause to find such a violation.
``(5) Notice and hearing.--
``(A) In general.--Not later than 60 days after the Secretary of Labor makes a determination of reasonable cause under paragraph (4), the Secretary shall issue a notice to the interested parties and offer an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code.
``(B) Complaint.--If the Secretary of Labor, after receiving a complaint under this subsection, does not offer the aggrieved party or organization an opportunity for a hearing under subparagraph (A), the Secretary shall notify the aggrieved party or organization of such determination and the aggrieved party or organization may seek a hearing on the complaint in accordance with such section 556.
``(C) Hearing deadline.--Not later than 60 days after the date of a hearing under this paragraph, the Secretary of Labor shall make a finding on the matter in accordance with paragraph (6).
``(6) Attorneys' fees.--A complainant who prevails with respect to a claim under this subsection shall be entitled to an award of reasonable attorneys' fees and costs.
``(7) Power of the secretary.--The Secretary may bring an action in any court of competent jurisdiction--
``(A) to seek remedial action, including injunctive relief;
``(B) to recover the damages described in subsection (k); or
``(C) to ensure compliance with terms and conditions described in subsection (i).
``(8) Solicitor of labor.--Except as provided in section 518(a) of title 28, United States Code, the Solicitor of Labor may appear for and represent the Secretary of Labor in any civil litigation brought under this subsection. All such litigation shall be subject to the direction and control of the Attorney General.
``(9) Procedures in addition to other rights of employees.--The rights and remedies provided to workers under this section are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of the workers, and are not intended to alter or affect such rights and remedies.
``(k) Penalties.--
``(1) In general.--If, after notice and an opportunity for a hearing, the Secretary of Labor finds a violation of subsection (h) or (i), the Secretary may impose administrative remedies and penalties, including--
``(A) back wages;
``(B) fringe benefits; and
``(C) civil monetary penalties.
``(2) Civil penalties.--The Secretary of Labor may impose, as a civil penalty--
``(A) for a violation of subsection (h)--
``(i) a fine in an amount not to exceed $2,000 per violation per affected worker;
``(ii) if the violation was willful violation, a fine in an amount not to exceed $5,000 per violation per affected worker;
``(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not to exceed $25,000 per violation per affected worker; and
``(B) for a violation of subsection (i)--
``(i) a fine in an amount not less than $500 and not more than $4,000 per violation per affected worker;
``(ii) if the violation was willful, a fine in an amount not less than $2,000 and not more than $5,000 per violation per affected worker; and
``(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not less than $6,000 and not more than $35,000 per violation per affected worker.
``(3) Use of civil penalties.--All penalties collected under this subsection shall be deposited in the Treasury in accordance with section 286(w).
``(4) Criminal penalties.--If a willful and knowing violation of subsection (i) causes extreme physical or financial harm to an individual, the person in violation of such subsection may be imprisoned for not more than 6 months, fined not more than $35,000 fine, or both.''.
SEC. 305. MARKET-BASED NUMERICAL LIMITATIONS.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended--
(1) in paragraph (1)--
(A) by striking ``(beginning with fiscal year 1992)'';
(B) in subparagraph (B), by striking the period at the end and inserting ``; and''; and
(C) by adding at the end the following:
``(C) under section 101(a)(15)(H)(v)(a), may not exceed--
``(i) 400,000 for the first fiscal year in which the program is implemented;
``(ii) in any subsequent fiscal year--
``(I) if the total number of visas allocated for that fiscal year are allotted within the first quarter of that fiscal year, then an additional 20 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 20 percent of the original allocated amount in the prior fiscal year;
``(II) if the total number of visas allocated for that fiscal year are allotted within the second quarter of that fiscal year, then an additional 15 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 15 percent of the original allocated amount in the prior fiscal year;
``(III) if the total number of visas allocated for that fiscal year are allotted within the third quarter of that fiscal year, then an additional 10 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year;
``(IV) if the total number of visas allocated for that fiscal year are allotted within the last quarter of that fiscal year, then the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year; and
``(V) with the exception of the first subsequent fiscal year to the fiscal year in which the program is implemented, if fewer visas were allotted the previous fiscal year than the number of visas allocated for that year and the reason was not due to processing delays or delays in promulgating regulations, then the allocated amount for the following fiscal year shall decrease by 10 percent of the allocated amount in the prior fiscal year.''; and
(2) by adding at the end the following:
``(9)(A) Of the total number of visas allocated for each fiscal year under paragraph (1)(C)--
``(i) 50,000 visas shall be allocated to qualifying counties; and
``(ii) any of the visas allocated under clause (i) that are not issued by June 30 of such fiscal year, may be made available to any qualified applicant.
``(B) In this paragraph, the term `qualifying county' means any county that--
``(i) that is outside a metropolitan statistical area; and
``(ii) during the 20-year-period ending on the last day of the calendar year preceding the date of enactment of the Secure America and Orderly Immigration Act, experienced a net out-migration of inhabitants from the county of at least 10 percent of the population of the county at the beginning of such period.
``(10) In allocating visas under this subsection, the Secretary of State may take any additional measures necessary to deter illegal immigration.''.
SEC. 306. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS.
Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:
``(n)(1) For purposes of adjustment of status under subsection (a), employment-based immigrant visas shall be made available to an alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) upon the filing of a petition for such a visa--
``(A) by the alien's employer; or
``(B) by the alien, if the alien has maintained such nonimmigrant status in the United States for a cumulative total of 4 years.
``(2) An alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) may not apply for adjustment of status under this section unless the alien--
``(A) is physically present in the United States; and
``(B) the alien establishes that the alien--
``(i) meets the requirements of section 312; or
``(ii) is satisfactorily pursuing a course of study to achieve such an understanding of English and knowledge and understanding of the history and government of the United States.
``(3) An alien who demonstrates that the alien meets the requirements of section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III.
``(4) Filing a petition under paragraph (1) on behalf of an alien or otherwise seeking permanent residence in the United States for such alien shall not constitute evidence of the alien's ineligibility for nonimmigrant status under section 101(a)(15)(H)(v)(a).
``(5) The limitation under section 302(d) regarding the period of authorized stay shall not apply to any alien having nonimmigrant status under section 101(a)(15)(H)(v)(a) if--
``(A) a labor certification petition filed under section 203(b) on behalf of such alien is pending; or
``(B) an immigrant visa petition filed under section 204(b) on behalf of such alien is pending.
``(6) The Secretary of Homeland Security shall extend the stay of an alien who qualifies for an exemption under paragraph (5) in 1-year increments until a final decision is made on the alien's lawful permanent residence.
``(7) Nothing in this subsection shall be construed to prevent an alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) from filing an application for adjustment of status under this section in accordance with any other provision of law.''.
SEC. 307. ESSENTIAL WORKER VISA PROGRAM TASK FORCE.
(a) Establishment of Task Force.--
(1) In general.--There is established a task force to be known as the Essential Worker Visa Program Task Force
(referred to in this section as the ``Task Force'').
(2) Purposes.--The purposes of the Task Force are--
(A) to study the Essential Worker Visa Program (referred to in this section as the ``Program'') established under this title; and
(B) to make recommendations to Congress with respect to such program.
(3) Membership.--The Task Force shall be composed of 10 members, of whom--
(A) 1 shall be appointed by the President and shall serve as chairman of the Task Force;
(B) 1 shall be appointed by the leader of the Democratic Party in the Senate, in consultation with the leader of the Democratic Party in the House of Representatives, and shall serve as vice chairman of the Task Force;
(C) 2 shall be appointed by the majority leader of the Senate;
(D) 2 shall be appointed by the minority leader of the Senate;
(E) 2 shall be appointed by the Speaker of the House of Representatives; and
(F) 2 shall be appointed by the minority leader of the House of Representatives.
(4) Qualifications.--
(A) In general.--Members of the Task Force shall be--
(i) individuals with expertise in economics, demography, labor, business, or immigration or other pertinent qualifications or experience; and
(ii) representative of a broad cross-section of perspectives within the United States, including the public and private sectors and academia;
(B) Political affiliation.--Not more than 5 members of the Task Force may be members of the same political party.
(C) Nongovernmental appointees.--An individual appointed to the Task Force may not be an officer or employee of the Federal Government or of any State or local government.
(5) Deadline for appointment.--All members of the Task Force shall be appointed not later than 6 months after the Program has been implemented.
(6) Vacancies.--Any vacancy in the Task Force shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.
(7) Meetings.--
(A) Initial meeting.--The Task Force shall meet and begin the operations of the Task Force as soon as practicable.
(B) Subsequent meetings.--After its initial meeting, the Task Force shall meet upon the call of the chairman or a majority of its members.
(8) Quorum.--Six members of the Task Force shall constitute a quorum.
(b) Duties.--The Task Force shall examine and make recommendations regarding the Program, including recommendations regarding--
(1) the development and implementation of the Program;
(2) the criteria for the admission of temporary workers under the Program;
(3) the formula for determining the yearly numerical limitations of the Program;
(4) the impact of the Program on immigration;
(5) the impact of the Program on the United States workforce and United States businesses; and
(6) any other matters regarding the Program that the Task Force considers appropriate.
(c) Information and Assistance From Federal Agencies.--
(1) Information from federal agencies.--The Task Force may seek directly from any Federal department or agency such information, including suggestions, estimates, and statistics, as the Task Force considers necessary to carry out the provisions of this section. Upon request of the Task Force, the head of such department or agency shall furnish such information to the Task Force.
(2) Assistance from federal agencies.--The Administrator of General Services shall, on a reimbursable base, provide the Task Force with administrative support and other services for the performance of the Task Force's functions. The departments and agencies of the United States may provide the Task Force with such services, funds, facilities, staff, and other support services as they determine advisable and as authorized by law.
(d) Reports.--
(1) Initial report.--Not later than 2 years after the Program has been implemented, the Task Force shall submit a report to Congress, the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security that contains--
(A) findings with respect to the duties of the Task Force;
(B) recommendations for improving the Program; and
(C) suggestions for legislative or administrative action to implement the Task Force recommendations.
(2) Final report.--Not later than 4 years after the submission of the initial report under paragraph (1), the Task Force shall submit a final report to Congress, the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security that contains additional findings, recommendations, and suggestions, as described in paragraph
(1).
SEC. 308. WILLING WORKER-WILLING EMPLOYER ELECTRONIC JOB
REGISTRY.
(a) Establishment.--The Secretary of Labor shall direct the coordination and modification of the national system of public labor exchange services (commonly known as ``America's Job Bank'') in existence on the date of enactment of this Act to provide information on essential worker employment opportunities available to United States workers and nonimmigrant workers under section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act, as added by this Act.
(b) Recruitment of United States Workers.--Before the completion of evidence of employment for a potential nonimmigrant worker under section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(v)(a), an employer shall attest that the employer has posted in the Job Registry for not less than 30 days in order to recruit United States workers. An employer shall maintain records for not less than 1 year demonstrating why United States workers who applied were not hired.
(c) Oversight and Maintenance of Records.--The Secretary of Labor shall maintain electronic job registry records, as established by regulation, for the purpose of audit or investigation.
(d) Access to Job Registry.--
(1) Circulation in interstate employment service system.--The Secretary of Labor shall ensure that job opportunities advertised on the electronic job registry established under this section are accessible by the State workforce agencies, which may further disseminate job opportunity information to other interested parties.
(2) Internet.--The Secretary of Labor shall ensure that the Internet-based electronic job registry established or approved under this section may be accessed by workers, employers, labor organizations, and other interested parties.
SEC. 309. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary of State such sums as may be necessary to carry out this title and the amendments made by this title for the period beginning on the date of enactment of this Act and ending on the last day of the sixth fiscal year beginning after the effective date of the regulations promulgated by the Secretary to implement this title.
TITLE IV--ENFORCEMENT
SEC. 401. DOCUMENT AND VISA REQUIREMENTS.
(a) In General.--Section 221(a) of the Immigration and Nationality Act (8 U.S.C. 1201(a)) is amended by adding at the end the following:
``(3) Visas and immigration related document requirements.--
``(A) Visas issued by the Secretary of State and immigration related documents issued by the Secretary of State or the Secretary of Homeland Security shall comply with authentication and biometric standards recognized by domestic and international standards organizations.
``(B) Such visas and documents shall--
``(i) be machine-readable and tamper-resistant;
``(ii) use biometric identifiers that are consistent with the requirements of section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732), and represent the benefits and status set forth in such section;
``(iii) comply with the biometric and document identifying standards established by the International Civil Aviation Organization; and
``(iv) be compatible with the United States Visitor and Immigrant Status Indicator Technology and the employment verification system established under section 274E.
``(C) The information contained on the visas or immigration related documents described in subparagraph (B) shall include--
``(i) the alien's name, date and place of birth, alien registration or visa number, and, if applicable, social security number;
``(ii) the alien's citizenship and immigration status in the United States; and
``(iii) the date that such alien's authorization to work in the United States expires, if appropriate.''.
(b) Effective Date.--The amendment made by subsection (a) shall take effect on the date that is 6 months after the date of enactment of this Act.
SEC. 402. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
(a) In General.--Chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) is amended by inserting after section 274D the following:
``EMPLOYMENT ELIGIBILITY
``Sec. 274E. (a) Employment Eligibility Confirmation System.--
``(1) In general.--The Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security, shall establish an Employment Eligibility Confirmation System (referred to in this section as the `System') through which the Commissioner responds to inquiries made by employers who have hired individuals concerning each individual's identity and employment authorization.
``(2) Maintenance of records.--The Commissioner shall electronically maintain records by which compliance under the System may be verified.
``(3) Objectives of the system.--The System shall--
``(A) facilitate the eventual transition for all businesses from the employer verification system established in section 274A with the System;
``(B) utilize, as a central feature of the System, machine-readable documents that contain encrypted electronic information to verify employment eligibility; and
``(C) provide for the evidence of employment required under section 218A.
``(4) Initial response.--The System shall provide--
``(A) confirmation or a tentative nonconfirmation of an individual's identity and employment eligibility not later than 1 working day after the initial inquiry; and
``(B) an appropriate code indicating such confirmation or tentative nonconfirmation.
``(5) Secondary verification process in case of tentative nonconfirmation.--
``(A) Establishment.--For cases of tentative nonconfirmation, the Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security, shall establish a secondary verification process. The employer shall make the secondary verification inquiry not later than 10 days after receiving a tentative nonconfirmation.
``(B) Discrepancies.--If an employee chooses to contest a secondary nonconfirmation, the employer shall provide the employee with a referral letter and instruct the employee to visit an office of the Department of Homeland Security or the Social Security Administration to resolve the discrepancy not later than 10 working days after the receipt of such referral letter in order to obtain confirmation.
``(C) Failure to contest.--An individual's failure to contest a confirmation shall not constitute knowledge (as defined in section 274a.1(l) of title 8, Code of Federal Regulations.
``(6) Design and operation of system.--The System shall be designed, implemented, and operated--
``(A) to maximize its reliability and ease of use consistent with protecting the privacy and security of the underlying information through technical and physical safeguards;
``(B) to allow employers to verify that a newly hired individual is authorized to be employed;
``(C) to permit individuals to--
``(i) view their own records in order to ensure the accuracy of such records; and
``(ii) contact the appropriate agency to correct any errors through an expedited process established by the Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security; and
``(D) to prevent discrimination based on national origin or citizenship status under section 274B.
``(7) Unlawful uses of system.--It shall be an unlawful immigration-related employment practice--
``(A) for employers or other third parties to use the System selectively or without authorization;
``(B) to use the System prior to an offer of employment;
``(C) to use the System to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants;
``(D) to use the System to deny certain employment benefits, otherwise interfere with the labor rights of employees, or any other unlawful employment practice; or
``(E) to take adverse action against any person, including terminating or suspending an employee who has received a tentative nonconfirmation.
``(b) Employment Eligibility Database.--
``(1) Requirement.--The Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security and other appropriate agencies, shall design, implement, and maintain an Employment Eligibility Database
(referred to in this section as the `Database') as described in this subsection.
``(2) Data.--The Database shall include, for each individual who is not a citizen or national of the United States, but is authorized or seeking authorization to be employed in the United States, the individual's--
``(A) country of origin;
``(B) immigration status;
``(C) employment eligibility;
``(D) occupation;
``(E) metropolitan statistical area of employment;
``(F) annual compensation paid;
``(G) period of employment eligibility;
``(H) employment commencement date; and
``(I) employment termination date.
``(3) Reverification of employment eligibility.--The Commissioner of Social Security shall prescribe, by regulation, a system to annually reverify the employment eligibility of each individual described in this section--
``(A) by utilizing the machine-readable documents described in section 221(a)(3); or
``(B) if machine-readable documents are not available, by telephonic or electronic communication.
``(4) Confidentiality.--
``(A) Access to database.--No officer or employee of any agency or department of the United States, other than individuals responsible for the verification of employment eligibility or for the evaluation of the employment verification program at the Social Security Administration, the Department of Homeland Security, and the Department of Labor, may have access to any information contained in the Database.
``(B) Protection from unauthorized disclosure.--Information in the Database shall be adequately protected against unauthorized disclosure for other purposes, as provided in regulations established by the Commissioner of Social Security, in consultation with the Secretary of Homeland Security and the Secretary of Labor.
``(5) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to design, implement, and maintain the Database.
``(c) Gradual Implementation.--The Commissioner of Social Security, in coordination with the Secretary of Homeland Security and the Secretary of Labor shall develop a plan to phase all workers into the Database and phase out the employer verification system established in section 274A over a period of time that the Commissioner determines to be appropriate.
``(d) Employer Responsibilities.--Each employer shall--
``(1) notify employees and prospective employees of the use of the System and that the System may be used for immigration enforcement purposes;
``(2) verify the identification and employment authorization status for newly hired individuals described in section 101(a)(15)(H)(v)(a) not later than 3 days after the date of hire;
``(3) use--
``(A) a machine-readable document described in subsection
(a)(3)(B); or
``(B) the telephonic or electronic system to access the Database;
``(4) provide, for each employer hired, the occupation, metropolitan statistical area of employment, and annual compensation paid;
``(5) retain the code received indicating confirmation or nonconfirmation, for use in investigations described in section 212(n)(2); and
``(6) provide a copy of the employment verification receipt to such employees.
``(e) Good-Faith Compliance.--
``(1) Affirmative defense.--A person or entity that establishes good faith compliance with the requirements of this section with respect to the employment of an individual in the United States has established an affirmative defense that the person or entity has not violated this section.
``(2) Limitation.--Paragraph (1) shall not apply if a person or entity engages in an unlawful immigration-related employment practice described in subsection (a)(7).''.
(b) Interim Directive.--Before the implementation of the Employment Eligibility Confirmation System (referred to in this section as the ``System'') established under section 274E of the Immigration and Nationality Act, as added by subsection (a), the Commissioner of Social Security, in coordination with the Secretary of Homeland Security, shall, to the maximum extent practicable, implement an interim system to confirm employment eligibility that is consistent with the provisions of such section.
(c) Reports.--
(1) In general.--Not later than 3 months after the last day of the second year and of the third year that the System is in effect, the Comptroller General of the United States shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the System.
(2) Contents.--Each report submitted under paragraph (1) shall include--
(A) an assessment of the impact of the System on the employment of unauthorized workers;
(B) an assessment of the accuracy of the Employment Eligibility Database maintained by the Department of Homeland Security and Social Security Administration databases, and timeliness and accuracy of responses from the Department of Homeland Security and the Social Security Administration to employers;
(C) an assessment of the privacy, confidentiality, and system security of the System;
(D) assess whether the System is being implemented in a nondiscriminatory manner; and
(E) include recommendations on whether or not the System should be modified.
SEC. 403. IMPROVED ENTRY AND EXIT DATA SYSTEM.
Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a) is amended--
(1) by striking ``Attorney General'' each place it appears and inserting ``Secretary of Homeland Security'';
(2) in subsection (b)--
(A) in paragraph (1)(C), by striking ``Justice'' and inserting ``Homeland Security'';
(B) in paragraph (4), by striking ``and'' at the end;
(C) in paragraph (5), by striking the period at the end and inserting ``; and''; and
(D) by adding at the end the following:
``(6) collects the biometric machine-readable information from an alien's visa or immigration-related document described in section 221(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1201(a)(3) at the time an alien arrives in the United States and at the time an alien departs from the United States to determine if such alien is entering, or is present in, the United States unlawfully.''; and
(3) in subsection (f)(1), by striking ``Departments of Justice and State'' and inserting ``Department of Homeland Security and the Department of State''.
SEC. 404. DEPARTMENT OF LABOR INVESTIGATIVE AUTHORITIES.
Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
(1) by redesignating subparagraph (H) as subparagraph (J); and
(2) by inserting after subparagraph (G) the following:
``(H)(i) The Secretary of Labor may initiate an investigation of any employer that employs nonimmigrants described in section 101(a)(15)(H)(v)(a) if the Secretary, or the Secretary's designee--
``(I) certifies that reasonable cause exists to believe that the employer is out of compliance with the Secure America and Orderly Immigration Act or section 274E; and
``(II) approves the commencement of the investigation.
``(ii) In determining whether reasonable cause exists to initiate an investigation under this section, the Secretary shall--
``(I) monitor the Willing Worker-Willing Employer Electronic Job Registry;
``(II) monitor the Employment Eligibility Confirmation System, taking into consideration whether--
``(aa) an employer's submissions to the System generate a high volume of tentative nonconfirmation responses relative to other comparable employers;
``(bb) an employer rarely or never screens hired individuals;
``(cc) individuals employed by an employer rarely or never pursue a secondary verification process as established in section 274E; or
``(dd) any other indicators of illicit, inappropriate or discriminatory use of the System, especially those described in section 274E(a)(6)(D), exist; and
``(III) consider any additional evidence that the Secretary determines appropriate.
``(iii) Absent other evidence of noncompliance, an investigation under this subparagraph should not be initiated for lack of completeness or obvious inaccuracies by the employer in complying with section 101(a)(15)(H)(v)(a).''.
SEC. 405. PROTECTION OF EMPLOYMENT RIGHTS.
The Secretary and the Secretary of Homeland Security shall establish a process under which a nonimmigrant worker described in clause (ii)(b) or (v)(a) of section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) who files a nonfrivolous complaint regarding a violation of this section and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States with an employer for a period not to exceed the maximum period of stay authorized for that nonimmigrant classification.
SEC. 406. INCREASED FINES FOR PROHIBITED BEHAVIOR.
Section 274B(g)(2)(B)(iv) of the Immigration and Nationality Act (8 U.S.C. 1324b(g)(2)(B)(iv)) is amended--
(1) in subclause (I), by striking ``not less than $250 and not more than $2,000'' and inserting ``not less than $500 and not more than $4,000'';
(2) in subclause (II), by striking ``not less than $2,000 and not more than $5,000'' and inserting ``not less than
$4,000 and not more than $10,000''; and
(3) in subclause (III), by striking ``not less than $3,000 and not more than $10,000'' and inserting ``not less than
$6,000 and not more than $20,000''.
TITLE V--PROMOTING CIRCULAR MIGRATION PATTERNS
SEC. 501. LABOR MIGRATION FACILITATION PROGRAMS.
(a) Authority for Program.--
(1) In general.--The Secretary of State is authorized to enter into an agreement to establish and administer a labor migration facilitation program jointly with the appropriate official of a foreign government whose citizens participate in the temporary worker program authorized under section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(v)(a)).
(2) Priority.--In establishing programs under subsection
(a), the Secretary of State shall place a priority on establishing such programs with foreign governments that have a large number of nationals working as temporary workers in the United States under such section 101(a)(15)(H)(v)(a). The Secretary shall enter into such agreements not later than 3 months after the date of enactment of this Act or as soon thereafter as is practicable.
(3) Elements of program.--A program established under paragraph (1) may provide for--
(A) the Secretary of State, in conjunction with the Secretary of Homeland Security and the Secretary of Labor, to confer with a foreign government--
(i) to establish and implement a program to assist temporary workers from such a country to obtain nonimmigrant status under such section 101(a)(15)(H)(v)(a);
(ii) to establish programs to create economic incentives for aliens to return to their home country;
(B) the foreign government to monitor the participation of its nationals in such a temporary worker program, including departure from and return to a foreign country;
(C) the foreign government to develop and promote a reintegration program available to such individuals upon their return from the United States;
(D) the foreign government to promote or facilitate travel of such individuals between the country of origin and the United States; and
(E) any other matters that the foreign government and United States find appropriate to enable such individuals to maintain strong ties to their country of origin.
SEC. 502. BILATERAL EFFORTS WITH MEXICO TO REDUCE MIGRATION
PRESSURES AND COSTS.
(a) Findings.--Congress makes the following findings:
(1) Migration from Mexico to the United States is directly linked to the degree of economic opportunity and the standard of living in Mexico.
(2) Mexico comprises a prime source of migration to the United States.
(3) Remittances from Mexican citizens working in the United States reached a record high of nearly $17,000,000,000 in 2004.
(4) Migration patterns may be reduced from Mexico to the United States by addressing the degree of economic opportunity available to Mexican citizens.
(5) Many Mexican assets are held extra-legally and cannot be readily used as collateral for loans.
(6) A majority of Mexican businesses are small or medium size with limited access to financial capital.
(7) These factors constitute a major impediment to broad-based economic growth in Mexico.
(8) Approximately 20 percent of Mexico's population works in agriculture, with the majority of this population working on small farms and few on large commercial enterprises.
(9) The Partnership for Prosperity is a bilateral initiative launched jointly by the President of the United States and the President of Mexico in 2001, which aims to boost the social and economic standards of Mexican citizens, particularly in regions where economic growth has lagged and emigration has increased.
(10) The Presidents of Mexico and the United States and the Prime Minister of Canada, at their trilateral summit on March 23, 2005, agreed to promote economic growth, competitiveness, and quality of life in the agreement on Security and Prosperity Partnership of North America.
(b) Sense of Congress Regarding Partnership for Prosperity.--It is the sense of Congress that the United States and Mexico should accelerate the implementation of the Partnership for Prosperity to help generate economic growth and improve the standard of living in Mexico, which will lead to reduced migration, by--
(1) increasing access for poor and under served populations in Mexico to the financial services sector, including credit unions;
(2) assisting Mexican efforts to formalize its extra-legal sector, including the issuance of formal land titles, to enable Mexican citizens to use their assets to procure capital;
(3) facilitating Mexican efforts to establish an effective rural lending system for small- and medium-sized farmers that will--
(A) provide long term credit to borrowers;
(B) develop a viable network of regional and local intermediary lending institutions; and
(C) extend financing for alternative rural economic activities beyond direct agricultural production;
(4) expanding efforts to reduce the transaction costs of remittance flows in order to increase the pool of savings available to help finance domestic investment in Mexico;
(5) encouraging Mexican corporations to adopt internationally recognized corporate governance practices, including anti-corruption and transparency principles;
(6) enhancing Mexican efforts to strengthen governance at all levels, including efforts to improve transparency and accountability, and to eliminate corruption, which is the single biggest obstacle to development;
(7) assisting the Government of Mexico in implementing all provisions of the Inter-American Convention Against Corruption (ratified by Mexico on May 27, 1997) and urging the Government of Mexico to participate fully in the Convention's formal implementation monitoring mechanism;
(8) helping the Government of Mexico to strengthen education and training opportunities throughout the country, with a particular emphasis on improving rural education; and
(9) encouraging the Government of Mexico to create incentives for persons who have migrated to the United States to return to Mexico.
(c) Sense of Congress Regarding Bilateral Partnership on Health Care.--It is the sense of Congress that the Government of the United States and the Government of Mexico should enter into a partnership to examine uncompensated and burdensome health care costs incurred by the United States due to legal and illegal immigration, including--
(1) increasing health care access for poor and under served populations in Mexico;
(2) assisting Mexico in increasing its emergency and trauma health care facilities along the border, with emphasis on expanding prenatal care in the United States-Mexico border region;
(3) facilitating the return of stable, incapacitated workers temporarily employed in the United States to Mexico in order to receive extended, long-term care in their home country; and
(4) helping the Government of Mexico to establish a program with the private sector to cover the health care needs of Mexican nationals temporarily employed in the United States.
TITLE VI--FAMILY UNITY AND BACKLOG REDUCTION
SEC. 601. ELIMINATION OF EXISTING BACKLOGS.
(a) Family-Sponsored Immigrants.--Section 201(c) of the Immigration and Nationality Act (8 U.S.C. 1151(c)) is amended to read as follows:
``(c) Worldwide Level of Family-Sponsored Immigrants.--The worldwide level of family-sponsored immigrants under this subsection for a fiscal year is equal to the sum of--
``(1) 480,000;
``(2) the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year; and
``(3) the difference between--
``(A) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 minus the number of visas issued under this subsection during those years; and
``(B) the number of visas described in subparagraph (A) that were issued after fiscal year 2005.''.
(b) Employment-Based Immigrants.--Section 201(d) of the Immigration and Nationality Act (8 U.S.C. 1151(d)) is amended to read as follows:
``(d) Worldwide Level of Employment-Based Immigrants.--The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to the sum of--
``(1) 290,000;
``(2) the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year; and
``(3) the difference between--
``(A) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 and the number of visa numbers issued under this subsection during those years; and
``(B) the number of visas described in subparagraph (A) that were issued after fiscal year 2005.''.
SEC. 602. COUNTRY LIMITS.
Section 202(a) of the Immigration and Nationality Act (8 U.S.C. 1152(a)) is amended--
(1) in paragraph (2)--
(A) by striking ``, (4), and (5)'' and inserting ``and
(4)''; and
(B) by striking ``7 percent (in the case of a single foreign state) or 2 percent'' and inserting ``10 percent (in the case of a single foreign state) or 5 percent''; and
(2) by striking paragraph (5).
SEC. 603. ALLOCATION OF IMMIGRANT VISAS.
(a) Preference Allocation for Family-Sponsored Immigrants.--Section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)) is amended to read as follows:
``(a) Preference Allocations for Family-Sponsored Immigrants.--Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allocated visas as follows:
``(1) Unmarried sons and daughters of citizens.--Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a quantity not to exceed 10 percent of such worldwide level plus any visas not required for the class specified in paragraph (4).
``(2) Spouses and unmarried sons and daughters of permanent resident aliens.--Visas in a quantity not to exceed 50 percent of such worldwide level plus any visas not required for the class specified in paragraph (1) shall be allocated to qualified immigrants--
``(A) who are the spouses or children of an alien lawfully admitted for permanent residence, which visas shall constitute not less than 77 percent of the visas allocated under this paragraph; or
``(B) who are the unmarried sons or daughters of an alien lawfully admitted for permanent residence.
``(3) Married sons and daughters of citizens.--Qualified immigrants who are the married sons and daughters of citizens of the United States shall be allocated visas in a quantity not to exceed 10 percent of such worldwide level plus any visas not required for the classes specified in paragraphs
(1) and (2).
``(4) Brothers and sisters of citizens.--Qualified immigrants who are the brothers or sisters of citizens of the United States who are at least 21 years of age shall be allocated visas in a quantity not to exceed 30 percent of the worldwide level plus any visas not required for the classes specified in paragraphs (1) through (3).''.
(b) Preference Allocation for Employment-based Immigrants.--Section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) is amended--
(1) in paragraph (1), by striking ``28.6 percent'' and inserting ``20 percent'';
(2) in paragraph (2)(A), by striking ``28.6 percent'' and inserting ``20 percent'';
(3) in paragraph (3)(A)--
(A) by striking ``28.6 percent'' and inserting ``35 percent''; and
(B) by striking clause (iii);
(4) by striking paragraph (4);
(5) by redesignating paragraph (5) as paragraph (4);
(6) in paragraph (4)(A), as redesignated, by striking ``7.1 percent'' and inserting ``5 percent'';
(7) by inserting after paragraph (4), as redesignated, the following:
``(5) Other workers.--Visas shall be made available, in a number not to exceed 30 percent of such worldwide level, plus any visa numbers not required for the classes specified in paragraphs (1) through (4), to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor that is not of a temporary or seasonal nature, for which qualified workers are determined to be unavailable in the United States, or to nonimmigrants under section 101(a)(15)(H)(v)(a).''; and
(8) by striking paragraph (6).
(c) Conforming Amendments.--
(1) Definition of special immigrant.--Section 101(a)(27)(M) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(M)) is amended by striking ``subject to the numerical limitations of section 203(b)(4),''.
(2) Repeal of temporary reduction in workers' visas.--Section 203(e) of the Nicaraguan Adjustment and Central American Relief Act (8 U.S.C. 1153 note) is repealed.
SEC. 604. RELIEF FOR CHILDREN AND WIDOWS.
(a) In General.--Section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)) is amended by striking ``spouses, and parents of a citizen of the United States'' and inserting ``(and their children who are accompanying or following to join them), the spouses (and their children who are accompanying or following to join them), and the parents of a citizen of the United States (and their children who are accompanying or following to join them)''.
(b) Petition.--Section 204(a)(1)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1154 (a)(1)(A)(ii) is amended by inserting ``or an alien child or alien parent described in the third sentence of section 201(b)(2)(A)(i)'' after
``section 201(b)(2)(A)(i)''.
(c) Adjustment of Status.--Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:
``(n) Applications for Adjustment of Status by Surviving Spouses, Children, and Parents.--
``(1) In general.--Notwithstanding subsections (a) and (c)
(except subsection (c)(6)), any alien described in paragraph
(2) who applied for adjustment of status prior to the death of the qualifying relative, may have such application adjudicated as if such death had not occurred.
``(2) Alien described.--An alien described in this paragraph is an alien who--
``(A) is an immediate relative (as defined in section 201(b)(2)(A)(i));
``(B) is a family-sponsored immigrant (as described in subsection (a) or (d) of section 203);
``(C) is a derivative beneficiary of an employment-based immigrant under section 203(b), as described in section 203(d); or
``(D) is a derivative beneficiary of a diversity immigrant
(as described in section 203(c)).''.
(d) Transition Period.--Notwithstanding a denial of an application for adjustment of status not more than 2 years before the date of enactment of this Act, in the case of an alien whose qualifying relative died before the date of enactment of this Act, such application may be renewed by the alien through a motion to reopen, without fee, filed not later than 1 year after the date of enactment of this Act.
SEC. 605. AMENDING THE AFFIDAVIT OF SUPPORT REQUIREMENTS.
Section 213A of the Immigration and Nationality Act (8 U.S.C. 1183a) is amended--
(1) in subsection (a)(1)(A), by striking ``125'' and inserting ``100''; and
(2) in subsection (f), by striking ``125'' each place it appears and inserting ``100''.
SEC. 606. DISCRETIONARY AUTHORITY.
Section 212(i) of the Immigration and Nationality Act (8 U.S.C. 1182(i)) is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following:
``(2)(A) The Secretary of Homeland Security may waive the application of subsection (a)(6)(C)--
``(i) in the case of an immigrant who is the spouse, parent, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if the Secretary of Homeland Security determines that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse, child, son, daughter, or parent of such an alien; or
``(ii) in the case of an alien granted classification under clause (iii) or (iv) of section 204(a)(1)(A) or clause (ii) or (iii) of section 204(a)(1)(B), the alien demonstrates extreme hardship to the alien or the alien's parent or child if, such parent or child is a United States citizen, a lawful permanent resident, or a qualified alien.
``(B) An alien who is granted a waiver under subparagraph
(A) shall pay a $2,000 fine.''. SEC. 607. FAMILY UNITY.
Section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)) is amended--
(1) in subparagraph (B)(iii)(I), by striking ``18'' and inserting ``21''; and
(2) in subparagraph (C)(ii)--
(A) by redesignating subclauses (1) and (2) as subclauses
(I) and (II); and
(B) in subclause (II), as redesignated, by redesignating items (A), (B), (C), and (D) as items (aa), (bb), (cc), and
(dd); and
(3) by adding at the end the following:
``(D) Waiver.--
``(i) In general.--The Secretary may waive the application of subparagraphs (B) and (C) for an alien who is a beneficiary of a petition filed under sections 201 and 203 if such petition was filed on or before the date of introduction of Secure America and Orderly Immigration Act.
``(ii) Fine.--An alien who is granted a waiver under clause
(i) shall pay a $2,000 fine.''.
TITLE VII--H-5B NONIMMIGRANTS
SEC. 701. H-5B NONIMMIGRANTS.
(a) In General.--Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by adding after section 250 the following:
``H-5B NONIMMIGRANTS
``Sec. 250A. (a) In General.--The Secretary of Homeland Security shall adjust the status of an alien to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) if the alien--
``(1) submits an application for such adjustment; and
``(2) meets the requirements of this section.
``(b) Presence in the United States.--The alien shall establish that the alien--
``(1) was present in the United States before the date on which the Secure America and Orderly Immigration Act was introduced, and has been continuously in the United States since such date; and
``(2) was not legally present in the United States on the date on which the Secure America and Orderly Immigration Act was introduced under any classification set forth in section 101(a)(15).
``(c) Spouses and Children.--Notwithstanding any other provision of law, the Secretary of Homeland Security shall, if the person is otherwise eligible under subsection (b)--
``(1) adjust the status to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) for, or provide a nonimmigrant visa to, the spouse or child of an alien who is provided nonimmigrant status under section 101(a)(15)(H)(v)(b); or
``(2) adjust the status to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) for an alien who, before the date on which the Secure America and Orderly Immigration Act was introduced in Congress, was the spouse or child of an alien who is provided nonimmigrant status under section 101(a)(15)(H)(v)(b), or is eligible for such status, if--
``(A) the termination of the qualifying relationship was connected to domestic violence; and
``(B) the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent alien who is provided nonimmigrant status under section 101(a)(15)(H)(v)(b).
``(d) Other Criteria.--
``(1) In general.--An alien may be granted nonimmigrant status under section 101(a)(15)(H)(v)(b), or granted status as the spouse or child of an alien eligible for such status under subsection (c), if the alien establishes that the alien--
``(A) is not inadmissible to the United States under section 212(a), except as provided in paragraph (2); or
``(B) has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
``(2) Grounds of inadmissibility.--In determining an alien's admissibility under paragraph (1)(A)--
``(A) paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F),
(6)(G), (7), (9), and (10)(B) of section 212(a) shall not apply for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced;
``(B) the Secretary of Homeland Security may not waive--
``(i) subparagraph (A), (B), (C), (E), (G), (H), or (I) of section 212(a)(2) (relating to criminals);
``(ii) section 212(a)(3) (relating to security and related grounds); or
``(iii) subparagraph (A) or (C) of section 212(a)(10)
(relating to polygamists and child abductors);
``(C) for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced, the Secretary of Homeland Security may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or when such waiver is otherwise in the public interest; and
``(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary of Homeland Security other than under this paragraph to waive the provisions of section 212(a).
``(3) Applicability of other provisions.--Sections 240B(d) and 241(a)(5) shall not apply to an alien who is applying for adjustment of status in accordance with this title for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced.
``(e) Employment.--
``(1) In general.--The Secretary of Homeland Security may not adjust the status of an alien to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) unless the alien establishes that the alien--
``(A) was employed in the United States, whether full time, part time, seasonally, or self-employed, before the date on which the Secure America and Orderly Immigration Act was introduced; and
``(B) has been employed in the United States since that date.
``(2) Evidence of employment.--
``(A) Conclusive documents.--An alien may conclusively establish employment status in compliance with paragraph (1) by submitting to the Secretary of Homeland Security records demonstrating such employment maintained by--
``(i) the Social Security Administration, Internal Revenue Service, or by any other Federal, State, or local government agency;
``(ii) an employer; or
``(iii) a labor union, day labor center, or an organization that assists workers in matters related to employment.
``(B) Other documents.--An alien who is unable to submit a document described in clauses (i) through (iii) of subparagraph (A) may satisfy the requirement in paragraph (1) by submitting to the Secretary at least 2 other types of reliable documents that provide evidence of employment, including--
``(i) bank records;
``(ii) business records;
``(iii) sworn affidavits from nonrelatives who have direct knowledge of the alien's work; or
``(iv) remittance records.
``(3) Intent of congress.--It is the intent of Congress that the requirement in this subsection be interpreted and implemented in a manner that recognizes and takes into account the difficulties encountered by aliens in obtaining evidence of employment due to the undocumented status of the alien.
``(4) Burden of proof.--An alien described in paragraph (1) who is applying for adjustment of status under this section has the burden of proving by a preponderance of the evidence that the alien has satisfied the requirements of this subsection. An alien may meet such burden of proof by producing sufficient evidence to demonstrate such employment as a matter of reasonable inference.
``(f) Special Rules for Minors and Individuals Who Entered as Minors.--The employment requirements under this section shall not apply to any alien under 21 years of age.
``(g) Education Permitted.--An alien may satisfy the employment requirements under this section, in whole or in part, by full-time attendance at--
``(1) an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)); or
``(2) a secondary school (as defined in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)).
``(h) Security and Law Enforcement Background Checks.--
``(1) Submission of fingerprints.--An alien may not be granted nonimmigrant status under section 101(a)(15)(H)(v)(b), or granted status as the spouse or child of an alien eligible for such status under subsection (c), unless the alien submits fingerprints in accordance with procedures established by the Secretary of Homeland Security.
``(2) Background checks.--The Secretary of Homeland Security shall utilize fingerprints and other data provided by the alien to conduct a background check of such alien relating to criminal, national security, or other law enforcement actions that would render the alien ineligible for adjustment of status as described in this section.
``(3) Expeditious processing.--The background checks required under paragraph (2) shall be conducted as expeditiously as possible.
``(i) Period of Authorized Stay and Application Fee and Fine.--
``(1) Period of authorized stay.--
``(A) In general.--The period of authorized stay for a nonimmigrant described in section 101(a)(15)(H)(v)(b) shall be 6 years.
``(B) Limitation.--The Secretary of Homeland Security may not authorize a change from such nonimmigrant classification to any other immigrant or nonimmigrant classification until the termination of the 6-year period described in subparagraph (A). The Secretary may only extend such period to accommodate the processing of an application for adjustment of status under section 245B.
``(2) Application fee.--The Secretary of Homeland Security shall impose a fee for filing an application for adjustment of status under this section. Such fee shall be sufficient to cover the administrative and other expenses incurred in connection with the review of such applications.
``(3) Fines.--
``(A) In general.--In addition to the fee required under paragraph (2), the Secretary of Homeland Security may accept an application for adjustment of status under this section only if the alien pays a $1,000 fine.
``(B) Exception.--Fines paid under this paragraph shall not be required from an alien under the age of 21.
``(4) Collection of fees and fines.--All fees and fines collected under this section shall be deposited in the Treasury in accordance with section 286(w).
``(j) Treatment of Applicants.--
``(1) In general.--An alien who files an application under this section, including the alien's spouse or child--
``(A) shall be granted employment authorization pending final adjudication of the alien's application for adjustment of status;
``(B) shall be granted permission to travel abroad;
``(C) may not be detained, determined inadmissible or deportable, or removed pending final adjudication of the alien's application for adjustment of status, unless the alien, through conduct or criminal conviction, becomes ineligible for such adjustment of status; and
``(D) may not be considered an unauthorized alien (as defined in section 274A(h)(3)) until employment authorization under subparagraph (A) is denied.
``(2) Before application period.--If an alien is apprehended after the date of enactment of this section, but before the promulgation of regulations pursuant to this section, and the alien can establish prima facie eligibility as a nonimmigrant under section 101(a)(15)(H)(v)(b), the Secretary of Homeland Security shall provide the alien with a reasonable opportunity, after promulgation of regulations, to file an application for adjustment.
``(3) During certain proceedings.--Notwithstanding any provision of this Act, an alien who is in removal proceedings shall have an opportunity to apply for adjustment of status under this title unless a final administrative determination has been made.
``(4) Relationships of application to certain orders.--An alien who is present in the United States and has been ordered excluded, deported, removed, or ordered to depart voluntarily from the United States under any provision of this Act may, notwithstanding such order, apply for adjustment of status in accordance with this section. Such an alien shall not be required to file a separate motion to reopen, reconsider, or vacate the exclusion, deportation, removal, or voluntary departure order. If the Secretary of Homeland Security grants the application, the Secretary shall cancel such order. If the Secretary of Homeland Security renders a final administrative decision to deny the application, such order shall be effective and enforceable to the same extent as if the application had not been made.
``(k) Administrative and Judicial Review.--
``(1) Administrative review.--
``(A) Single level of administrative appellate review.--The Secretary of Homeland Security shall establish an appellate authority within the United States Citizenship and Immigration Services to provide for a single level of administrative appellate review of a determination respecting an application for adjustment of status under this section.
``(B) Standard for review.--Administrative appellate review referred to in subparagraph (A) shall be based solely upon the administrative record established at the time of the determination on the application and upon the presentation of additional or newly discovered evidence during the time of the pending appeal.
``(2) Judicial review.--
``(A) In general.--There shall be judicial review in the Federal courts of appeal of the denial of an application for adjustment of status under this section. Notwithstanding any other provision of law, the standard for review of such a denial shall be governed by subparagraph (B).
``(B) Standard for judicial review.--Judicial review of a denial of an application under this section shall be based solely upon the administrative record established at the time of the review. The findings of fact and other determinations contained in the record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record, considered as a whole.
``(C) Jurisdiction of courts.--
``(i) In general.--Notwithstanding any other provision of law, the district courts of the United States shall have jurisdiction over any cause or claim arising from a pattern or practice of the Secretary of Homeland Security in the operation or implementation of this section that is arbitrary, capricious, or otherwise contrary to law, and may order any appropriate relief.
``(ii) Remedies.--A district court may order any appropriate relief under clause (i) if the court determines that resolution of such cause or claim will serve judicial and administrative efficiency or that a remedy would otherwise not be reasonably available or practicable.
``(3) Stay of removal.--Aliens seeking administrative or judicial review under this subsection shall not be removed from the United States until a final decision is rendered establishing ineligibility under this section.
``(l) Confidentiality of Information.--
``(1) In general.--Except as otherwise provided in this subsection, no Federal agency or bureau, nor any officer, employee, or agent of such agency or bureau, may--
``(A) use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application;
``(B) make any publication through which the information furnished by any particular applicant can be identified; or
``(C) permit anyone other than the sworn officers and employees of such agency or bureau to examine individual applications.
``(2) Required disclosures.--The Secretary of Homeland Security shall provide the information furnished pursuant to an application filed under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution or a national security investigation or prosecution, in each instance about an individual suspect or group of suspects, when such information is requested in writing by such entity.
``(3) Criminal penalty.--Any person who knowingly uses, publishes, or permits information to be examined in violation of this subsection shall be fined not more than $10,000.
``(m) Penalties for False Statements in Applications.--
``(1) Criminal penalty.--
``(A) Violation.--It shall be unlawful for any person--
``(i) to file or assist in filing an application for adjustment of status under this section and knowingly and willfully falsify, misrepresent, conceal, or cover up a material fact or make any false, fictitious, or fraudulent statements or representations, or make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or
``(ii) to create or supply a false writing or document for use in making such an application.
``(B) Penalty.--Any person who violates subparagraph (A) shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.
``(2) Inadmissibility.--An alien who is convicted of a crime under paragraph (1) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i).
``(3) Exception.--Notwithstanding paragraphs (1) and (2), any alien or other entity (including an employer or union) that submits an employment record that contains incorrect data that the alien used in order to obtain such employment before the date on which the Secure America and Orderly Immigration Act is introduced, shall not, on that ground, be determined to have violated this section.''.
(b) Clerical Amendment.--The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 250 the following:
``Sec. 250A. H-5B nonimmigrants.''.
SEC. 702. ADJUSTMENT OF STATUS FOR H-5B NONIMMIGRANTS.
(a) In General.--Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after section 245A the following:
``ADJUSTMENT OF STATUS OF FORMER H-5B NONIMMIGRANT TO THAT OF PERSON
ADMITTED FOR LAWFUL PERMANENT RESIDENCE
``Sec. 245B. (a) Requirements.--The Secretary shall adjust the status of an alien from nonimmigrant status under section 101(a)(15)(H)(v)(b) to that of an alien lawfully admitted for permanent residence under this section if the alien satisfies the following requirements:
``(1) Completion of employment or education requirement.--The alien establishes that the alien has been employed in the United States, either full time, part time, seasonally, or self-employed, or has met the education requirements of subsection (f) or (g) of section 250A during the period required by section 250A(e).
``(2) Rulemaking.--The Secretary shall establish regulations for the timely filing and processing of applications for adjustment of status for nonimmigrants under section 101(a)(15)(H)(v)(b).
``(3) Application and fee.--The alien who applies for adjustment of status under this section shall pay the following:
``(A) Application fee.--An alien who files an application under section 245B of the Immigration and Nationality Act, shall pay an application fee, set by the Secretary.
``(B) Additional fine.--Before the adjudication of an application for adjustment of status filed under this section, an alien who is at least 21 years of age shall pay a fine of $1,000.
``(4) Admissible under immigration laws.--The alien establishes that the alien is not inadmissible under section 212(a), except for any provision of that section that is not applicable or waived under section 250A(d)(2).
``(5) Medical examination.--The alien shall undergo, at the alien's expense, an appropriate medical examination
(including a determination of immunization status) that conforms to generally accepted professional standards of medical practice.
``(6) Payment of income taxes.--
``(A) In general.--Not later than the date on which status is adjusted under this section, the alien shall establish the payment of all Federal income taxes owed for employment during the period of employment required by section 250A(e) by establishing that--
``(i) no such tax liability exists;
``(ii) all outstanding liabilities have been met; or
``(iii) the alien has entered into an agreement for payment of all outstanding liabilities with the Internal Revenue Service.
``(B) IRS cooperation.--The Commissioner of Internal Revenue shall provide documentation to an alien upon request to establish the payment of all income taxes required by this paragraph.
``(7) Basic citizenship skills.--
``(A) In general.--Except as provided in subparagraph (B), the alien shall establish that the alien--
``(i) meets the requirements of section 312; or
``(ii) is satisfactorily pursuing a course of study to achieve such an understanding of English and knowledge and understanding of the history and government of the United States.
``(B) Relation to naturalization examination.--An alien who demonstrates that the alien meets the requirements of section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III.
``(8) Security and law enforcement background checks.--The Secretary shall conduct a security and law enforcement background check in accordance with procedures described in section 250A(h).
``(9) Military selective service.--The alien shall establish that if the alien is within the age period required under the Military Selective Service Act (50 U.S.C. App. 451 et seq.), that such alien has registered under that Act.
``(b) Treatment of Spouses and Children.--
``(1) Adjustment of status.--Notwithstanding any other provision of law, the Secretary of Homeland Security shall--
``(A) adjust the status to that of a lawful permanent resident under this section, or provide an immigrant visa to the spouse or child of an alien who adjusts status to that of a permanent resident under this section; or
``(B) adjust the status to that of a lawful permanent resident under this section for an alien who was the spouse or child of an alien who adjusts status or is eligible to adjust status to that of a permanent resident under section 245B in accordance with subsection (a), if--
``(i) the termination of the qualifying relationship was connected to domestic violence; and
``(ii) the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent who adjusts status to that of a permanent resident under this section.
``(2) Application of other law.--In acting on applications filed under this subsection with respect to aliens who have been battered or subjected to extreme cruelty, the Secretary of Homeland Security shall apply the provisions of section 204(a)(1)(J) and the protections, prohibitions, and penalties under section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367).
``(c) Judicial Review; Confidentiality; Penalties.--Subsections (n), (o), and (p) of section 250A shall apply to this section.''.
(b) Clerical Amendment.--The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 245A the following:
``Sec. 245B. Adjustment of status of former H-5B nonimmigrant to that of person admitted for lawful permanent residence.''.
SEC. 703. ALIENS NOT SUBJECT TO DIRECT NUMERICAL LIMITATIONS.
Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended--
(1) in subparagraph (A), by striking ``subparagraph (A) or
(B) of''; and
(2) by adding at the end the following:
``(F) Aliens whose status is adjusted from the status described in section 101(a)(15)(H)(v)(b).''.
SEC. 704. EMPLOYER PROTECTIONS.
(a) Immigration Status of Alien.--Employers of aliens applying for adjustment of status under section 245B or 250A of the Immigration and Nationality Act, as added by this title, shall not be subject to civil and criminal tax liability relating directly to the employment of such alien prior to such alien receiving employment authorization under this title.
(b) Provision of Employment Records.--Employers that provide unauthorized aliens with copies of employment records or other evidence of employment pursuant to an application for adjustment of status under section 245B or 250A of the Immigration and Nationality Act or any other application or petition pursuant to any other immigration law, shall not be subject to civil and criminal liability under section 274A of such Act for employing such unauthorized aliens.
(c) Applicability of Other Law.--Nothing in this section may be used to shield an employer from liability under section 274B of the Immigration and Nationality Act (8 U.S.C. 1324b) or any other labor or employment law.
SEC. 705. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to the Secretary of Homeland Security such sums as may be necessary to carry out this title and the amendments made by this title.
(b) Availability of Funds.--Funds appropriated pursuant subsection (a) shall remain available until expended.
(c) Sense of Congress.--It is the sense of Congress that funds authorized to be appropriated under subsection (a) should be directly appropriated so as to facilitate the orderly and timely commencement of the processing of applications filed under sections 245B and 250A of the Immigration and Nationality Act, as added by this Act.
TITLE VIII--PROTECTION AGAINST IMMIGRATION FRAUD
SEC. 801. RIGHT TO QUALIFIED REPRESENTATION.
Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) is amended to read as follows:
``RIGHT TO QUALIFIED REPRESENTATION IN IMMIGRATION MATTERS
``Sec. 292. (a) Authorized Representatives in Immigration Matters.--Only the following individuals are authorized to represent an individual in an immigration matter before any Federal agency or entity:
``(1) An attorney.
``(2) A law student who is enrolled in an accredited law school, or a graduate of an accredited law school who is not admitted to the bar, if--
``(A) the law student or graduate is appearing at the request of the individual to be represented;
``(B) in the case of a law student, the law student has filed a statement that the law student is participating, under the direct supervision of a faculty member, attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or nonprofit organization, and that the law student is appearing without direct or indirect remuneration from the individual the law student represents;
``(C) in the case of a graduate, the graduate has filed a statement that the graduate is appearing under the supervision of an attorney or accredited representative and that the graduate is appearing without direct or indirect remuneration from the individual the graduate represents; and
``(D) the law student's or graduate's appearance is--
``(i) permitted by the official before whom the law student or graduate wishes to appear; and
``(ii) accompanied by the supervising faculty member, attorney, or accredited representative, to the extent required by such official.
``(3) Any reputable individual, if--
``(A) the individual is appearing on an individual case basis, at the request of the individual to be represented;
``(B) the individual is appearing without direct or indirect remuneration and the individual files a written declaration to that effect, except as described in subparagraph (D);
``(C) the individual has a pre-existing relationship or connection with the individual entitled to representation, such as a relative, neighbor, clergyman, business associate, or personal friend, except that this requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and
``(D) if making a personal appearance on behalf of another individual, the appearance is permitted by the official before whom the individual wishes to appear, except that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself or herself out to the public as qualified to do so.
``(4) An individual representing a recognized organization
(as described in subsection (f)) who has been approved to serve as an accredited representative by the Board of Immigration Appeals under subsection (f)(2).
``(5) An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his or her official capacity and with the consent of the person to be represented.
``(6) An individual who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which the individual resides and who is engaged in such practice, if the person represents persons only in matters outside the United States and that the official before whom such person wishes to appear allows such representation, as a matter of discretion.
``(7) An attorney, or an organization represented by an attorney, may appear, on a case-by-case basis, as amicus curiae, if the Board of Immigration Appeals grants such permission and the public interest will be served by such appearance.
``(b) Former Employees.--No individual previously employed by the Department of Justice, Department of State, Department of Labor, or Department of Homeland Security may be permitted to act as an authorized representative under this section, if such authorization would violate any other applicable provision of Federal law or regulation. In addition, any application for such authorization must disclose any prior employment by or contract with such agencies for services of any nature.
``(c) Advertising.--Only an attorney or an individual approved under subsection (f)(2) as an accredited representative may advertise or otherwise hold themselves out as being able to provide representation in an immigration matter. This provision shall in no way be deemed to diminish any Federal or State law to regulate, control, or enforce laws regarding such advertisement, solicitation, or offer of representation.
``(d) Removal Proceedings.--In any proceeding for the removal of an individual from the United States and in any appeal proceedings from such proceeding, the individual shall have the privilege, as the individual shall choose, of being represented (at no expense to the Government) by an individual described in subsection (a). Representation by an individual other than a person described in subsection (a) may cause the representative to be subject to civil penalties or such other penalties as may be applicable.
``(e) Benefits Filings.--In any filing or submission for an immigration related benefit or a determination related to the immigration status of an individual made to the Department of Homeland Security, the Department of Labor, or the Department of State, the individual shall have the privilege, as the individual shall choose, of being represented (at no expense to the Government) by an individual described in subsection
(a). Representation by an individual other than an individual described in subsection (a) is cause for the representative to be subject to civil or criminal penalties, as may be applicable.
``(f) Recognized Organizations and Accredited Representatives.--
``(1) Recognized organizations.--
``(A) In general.--The Board of Immigration Appeals may determine that a person is a recognized organization if such person--
``(i) is a nonprofit religious, charitable, social service, or similar organization established in the United States that--
``(I) is recognized by the Board of Immigration Appeals; and
``(II) is authorized to designate a representative to appear in an immigration matter before the Department of Homeland Security or the Executive Office for Immigration Review of the Department of Justice; and
``(ii) demonstrates to the Board that such person--
``(I) makes only nominal charges and assesses no excessive membership dues for individuals given assistance; and
``(II) has at its disposal adequate knowledge, information, and experience.
``(B) Bonding.--The Board, in its discretion, may impose a bond requirement on new organizations seeking recognition.
``(C) Reporting obligations.--Recognized organizations shall promptly notify the Board when the organization no longer meets the requirements for recognition or when an accredited representative employed by the recognized organization ceases to be employed by the recognized organization.
``(2) Accredited representatives.--The Board of Immigration Appeals shall approve any qualified individual designated by a recognized organization to serve as an accredited representative. Such individual must be employed by the recognized organization and must meet all requirements set forth in this section and in the accompanying regulations to be authorized to represent individuals in an immigration matter. Accredited representatives, through their recognized organizations, must certify their continuing eligibility for accreditation every 3 years with the Board of Immigration Appeals. Accredited representatives who fail to comply with these requirements shall not have authority to represent persons in an immigration matter for the recognized organization.
``(g) Prohibited Acts.--An individual, other than an individual authorized to represent an individual under this section, may not--
``(1) directly or indirectly provide or offer representation regarding an immigration matter for compensation or contribution;
``(2) advertise or solicit representation in an immigration matter;
``(3) retain any compensation provided for a prohibited act described in paragraph (1) or (2), regardless of whether any petition, application, or other document was filed with any government agency or entity and regardless of whether a petition, application, or other document was prepared or represented to have been prepared by such individual;
``(4) represent directly or indirectly that the individual is an attorney or supervised by or affiliated with an attorney, when such representation is false; or
``(5) violate any applicable civil or criminal statute or regulation of a State regarding the provision of representation by providing or offering to provide immigration or immigration-related assistance referenced in this subsection.
``(h) Civil Enforcement.--
``(1) In general.--Any person, or any entity acting for the interests of itself, its members, or the general public
(including a Federal law enforcement official or agency or law enforcement official or agency of any State or political subdivision of a State), that has reason to believe that any person is being or has been injured by reason of a violation of subsection (g) may commence a civil action in any court of competent jurisdiction.
``(2) Remedies.--
``(A) Damages.--In any civil action brought under this subsection, if the court finds that the defendant has violated subsection (g), it shall award actual damages, plus the greater of--
``(i) an amount treble the amount of actual damages; or
``(ii) $1,000 per violation.
``(B) Injunctive relief.--The court may award appropriate injunctive relief, including temporary, preliminary, or permanent injunctive relief, and restitution. Injunctive relief may include, where appropriate, an order temporarily or permanently enjoining the defendant from providing any service to any person in any immigration matter. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the commission of any act described in subsection (g).
``(C) Attorney's fees.--The court shall also grant a prevailing plaintiff reasonable attorney's fees and costs, including expert witness fees.
``(D) Civil penalties.--The court may also assess a civil penalty not exceeding $50,000 for a first violation, and not exceeding $100,000 for subsequent violations.
``(E) Cumulative remedies.--Unless otherwise expressly provided, the remedies or penalties provided under this paragraph are cumulative to each other and to the remedies or penalties available under all other Federal laws or laws of the jurisdiction where the violation occurred.
``(3) Nonpreemption.--Nothing in this subsection shall be construed to preempt any other private right of action or any right of action pursuant to the laws of any jurisdiction.
``(4) Discovery.--Information obtained through discovery in a civil action under this subsection shall not be used in any criminal action. Upon the request of any party to a civil action under this subsection, any part of the court file that makes reference to information discovered in a civil action under this subsection may be sealed.
``(i) Nonpreemption of More Protective State and Local Laws.--The provisions of this section supersede laws, regulations, and municipal ordinances of any State only to the extent such laws, regulations, and municipal ordinances impede the application of any provision of this section. Any State or political subdivision of a State may impose requirements supplementing those imposed by this section.
``(j) Definitions.--As used in this section--
``(1) the term `attorney' means a person who--
``(A) is a member in good standing of the bar of the highest court of a State; and
``(B) is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting such person in the practice of law;
``(2) the term `compensation' means money, property, labor, promise of payment, or any other consideration provided directly or indirectly to an individual
``(3) the term `immigration matter' means any proceeding, filing, or action affecting the immigration or citizenship status of any person, which arises under any immigration or nationality law, Executive order, Presidential proclamation, or action of any Federal agency;
``(4) the term `representation', when used with respect to the representation of a person, includes--
``(A) the appearance, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client, before any Federal agency or officer; and
``(B) the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers; and
``(5) the term `State' includes a State or an outlying possession of the United States.''.
SEC. 802. PROTECTION OF WITNESS TESTIMONY.
(a) Definition.--Section 101(a)(15)(U)(i) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(i)) is amended--
(1) by inserting in subclause (I) after the phrase ``clause
(iii)'' the following: ``or has suffered substantial financial, physical, or mental harm as the result of a prohibited act described in section 292;''
(2) by inserting in subclause (II) after the phrase
``clause (iii)'' the following: ``or section 292'';
(3) by inserting in subclause (III) after the phrase
``clause (iii)'' the following: ``or section 292''; and
(4) by inserting in subclause (IV) after the phrase
``clause (iii)'' the following: ``or section 292''.
(b) Admission of Nonimmigrants.--Section 214(p) of the Immigration and Nationality Act of (8 U.S.C. 1184(p)) is amended--
(1) in paragraph (1), by inserting ``or section 274E'' after ``section 101(a)(15)(U)(iii)'' each place it appears; and
(2) in paragraph (2)(A), by striking ``10,000'' and inserting ``15,000''.
TITLE IX--CIVICS INTEGRATION
SEC. 901. FUNDING FOR THE OFFICE OF CITIZENSHIP.
(a) Authorization.--The Secretary of Homeland Security, acting through the Director of the Bureau of Citizenship and Immigration Services, is authorized to establish the United States Citizenship Foundation (referred to in this section as the ``Foundation''), an organization duly incorporated in the District of Columbia, exclusively for charitable and educational purposes to support the functions of the Office of Citizenship (as described in section 451(f)(2) of the Homeland Security Act of 2002 (6 U.S.C. 271(f)(2)).
(b) Gifts.--
(1) To foundation.--The Foundation may solicit, accept, and make gifts of money and other property in accordance with section 501(c)(3) of the Internal Revenue Code of 1986.
(2) From foundation.--The Office of Citizenship may accept gifts from the Foundation to support the functions of the Office.
(c) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out the mission of the Office of Citizenship.
SEC. 902. CIVICS INTEGRATION GRANT PROGRAM.
(a) In General.--The Secretary of Homeland Security shall establish a competitive grant program to fund--
(1) efforts by entities certified by the Office of Citizenship to provide civics and English as a second language courses; or
(2) other activities approved by the Secretary to promote civics and English as a second language.
(b) Acceptance of Gifts.--The Secretary may accept and use gifts from the United States Citizenship Foundation for grants under this section.
(c) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this section.
TITLE X--PROMOTING ACCESS TO HEALTH CARE
SEC. 1001. FEDERAL REIMBURSEMENT OF EMERGENCY HEALTH SERVICES
FURNISHED TO UNDOCUMENTED ALIENS.
Section 1011 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (42 U.S.C. 1395dd note) is amended--
(1) by striking ``2008'' and inserting ``2011''; and
(2) in subsection (c)(5), by adding at the end the following:
``(D) Nonimmigrants described in section 101(a)(15)(H)(v) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(v)''.
SEC. 1002. PROHIBITION AGAINST OFFSET OF CERTAIN MEDICARE AND
MEDICAID PAYMENTS.
Payments made under section 1011 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(42 U.S.C. 1395dd note)--
(1) shall not be considered ``third party coverage'' for the purposes of section 1923 of the Social Security Act (42 U.S.C. 1396r-4); and
(2) shall not impact payments made under such section of the Social Security Act.
SEC. 1003. PROHIBITION AGAINST DISCRIMINATION AGAINST ALIENS
ON THE BASIS OF EMPLOYMENT IN HOSPITAL-BASED
VERSUS NONHOSPITAL-BASED SITES.
Section 214(l)(1)(C) of the Immigrant and Nationality Act
(8 U.S.C. 1184(l)(1)(C) is amended--
(1) in clause (i), by striking ``and'' at the end; and
(2) by adding at the end the following:
``(iii) such interested Federal agency or interested State agency, in determining which aliens will be eligible for such waivers, does not utilize selection criteria, other than as described in this subsection, that discriminate on the basis of the alien's employment in a hospital-based versus nonhospital-based facility or organization; and''.
SEC. 1004. BINATIONAL PUBLIC HEALTH INFRASTRUCTURE AND HEALTH
INSURANCE.
(a) Study.--
(1) In general.--The Secretary of Health and Human Services shall contract with the Institute of Medicine of the National Academies (referred to in this section as the ``Institute'') to study binational public health infrastructure and health insurance efforts.
(2) Input.--In conducting the study under paragraph (1), the Institute shall solicit input from border health experts and health insurance companies.
(b) Report.--
(1) In general.--Not later than 1 year after the date on which the Secretary of Health and Human Services enters into a contract under subsection (a), the Institute shall submit a report concerning the study conducted under subsection (a) to the Secretary of Health and Human Services and the appropriate committees of Congress.
(2) Contents.--The report submitted under paragraph (1) shall include the recommendations of the Institute on ways to expand or improve binational public health infrastructure and health insurance efforts.
TITLE XI--MISCELLANEOUS
SEC. 1101. SUBMISSION TO CONGRESS OF INFORMATION REGARDING H-
5A NONIMMIGRANTS.
(a) Ensuring Accurate Count.--The Secretary of State and the Secretary of Homeland Security shall maintain an accurate count of the number of aliens subject to the numerical limitations under section 214(g)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(C)) who are issued visas or otherwise provided nonimmigrant status.
(b) Provision of Information.--
(1) Quarterly notification.--Beginning with the first fiscal year after regulations are promulgated to implement this Act, the Secretary of State and the Secretary of Homeland Security shall submit quarterly reports to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives containing the numbers of aliens who were issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(v)(a) of the Immigrant and Nationality Act (8 U.S.C. 1101(a)(15)(H)(v)(a)) during the preceding 3-month period.
(2) Annual submission.--Beginning with the first fiscal year after regulations are promulgated to implement this Act, the Secretary of Homeland Security shall submit annual reports to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, containing information on the countries of origin and occupations of, geographic area of employment in the United States, and compensation paid to, aliens who were issued visas or otherwise provided nonimmigrant status under such section 101(a)(15)(H)(v)(a). The Secretary shall compile such reports based on the data reported by employers to the Employment Eligibility Confirmation System established in section 402.
SEC. 1102. H-5 NONIMMIGRANT PETITIONER ACCOUNT.
Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following:
``(w)(1) There is established in the general fund of the Treasury of the United States an account, which shall be known as the `H-5 Nonimmigrant Petitioner Account'.
``(2) There shall be deposited as offsetting receipts into the H-5 Nonimmigrant Petitioners Account--
``(A) all fees collected under section 218A; and
``(B) all fines collected under section 212(n)(2)(I).
``(3) Of the fees and fines deposited into the H-5 Nonimmigrant Petitioner Account--
``(A) 53 percent shall remain available to the Secretary of Homeland Security for efforts related to the adjudication and implementation of the H-5 visa programs described in sections 221(a) and 250A and any other efforts necessary to carry out the provisions of the Secure America and Orderly Immigration Act and the amendments made by such Act, of which the Secretary shall allocate--
``(i) 10 percent shall remain available to the Secretary of Homeland Security for the border security efforts described in title I of the Secure America and Orderly Immigration Act.
``(ii) not more than 1 percent to promote public awareness of the H-5 visa program, to protect migrants from fraud, and to combat the unauthorized practice of law described in title III of the Secure America and Orderly Immigration Act;
``(iii) not more than 1 percent to the Office of Citizenship to promote civics integration activities described in section 901 of the Secure America and Orderly Immigration Act; and
``(iv) 2 percent for the Civics Integration Grant Program under section 902 of the Secure America and Orderly Immigration Act.
``(B) 15 percent shall remain available to the Secretary of Labor for the enforcement of labor standards in those geographic and occupational areas in which H-5A visa holders are likely to be employed and for other enforcement efforts under the Secure America and Orderly Immigration Act;
``(C) 15 percent shall remain available to the Commissioner of Social Security for the creation and maintenance of the Employment Eligibility Confirmation System described in section 402 of the Secure America and Orderly Immigration Act;
``(D) 15 percent shall remain available to the Secretary of State to carry out any necessary provisions of the Secure America and Orderly Immigration Act; and
``(E) 2 percent shall remain available to the Secretary of Health and Human Services for the reimbursement of hospitals serving individuals working under programs established in this Act.''.
SEC. 1103. ANTI-DISCRIMINATION PROTECTIONS.
Section 274B(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1324b(a)(3)(B)) is amended to read as follows:
``(B) is an alien who is--
``(i) lawfully admitted for permanent residence;
``(ii) granted the status of an alien lawfully admitted for temporary residence under section 210(a) or 245(a)(1);
``(iii) admitted as a refugee under section 207;
``(iv) granted asylum under section 208; or
``(v) granted the status of nonimmigrant under section 101(a)(15)(H)(v).''.
SEC. 1104. WOMEN AND CHILDREN AT RISK OF HARM.
(a) Certain Children and Women at Risk of Harm.--Section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) is amended--
(1) in subparagraph (L), by inserting a semicolon at the end;
(2) in subparagraph (M), by striking the period at the end and inserting ``; or''; and
(3) by adding at the end the following:
``(N) subject to subsection (j), an immigrant who is not present in the United States--
``(i) who is--
``(I) referred to a consular, immigration, or other designated official by a United States Government agency, an international organization, or recognized nongovernmental entity designated by the Secretary of State for purposes of such referrals; and
``(II) determined by such official to be a minor under 18 years of age (as determined under subsection (j)(5))--
``(aa) for whom no parent or legal guardian is able to provide adequate care;
``(bb) who faces a credible fear of harm related to his or her age;
``(cc) who lacks adequate protection from such harm; and
``(dd) for whom it has been determined to be in his or her best interests to be admitted to the United States; or
``(ii) who is--
``(I) referred to a consular or immigration official by a United States Government agency, an international organization or recognized nongovernmental entity designated by the Secretary of State for purposes of such referrals; and
``(II) determined by such official to be a female who has--
``(aa) a credible fear of harm related to her sex; and
``(bb) a lack of adequate protection from such harm.''.
(b) Statutory Construction.--Section 101 of the Immigration and Nationality Act (8 U.S.C. 1101) is amended by adding at the end the following:
``(j)(1) No natural parent or prior adoptive parent of any alien provided special immigrant status under subsection
(a)(27)(N)(i) shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.
``(2)(A) No alien who qualifies for a special immigrant visa under subsection (a)(27)(N)(ii) may apply for derivative status or petition for any spouse who is represented by the alien as missing, deceased, or the source of harm at the time of the alien's application and admission. The Secretary of Homeland Security may waive this requirement for an alien who demonstrates that the alien's representations regarding the spouse were bona fide.
``(B) An alien who qualifies for a special immigrant visa under subsection (a)(27)(N) may apply for derivative status or petition for any sibling under the age of 18 years or children under the age of 18 years of any such alien, if accompanying or following to join the alien. For purposes of this subparagraph, a determination of age shall be made using the age of the alien on the date the petition is filed with the Department of Homeland Security.
``(3) An alien who qualifies for a special immigrant visa under subsection (a)(27)(N) shall be treated in the same manner as a refugee solely for purposes of section 412.
``(4) The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) shall not be applicable to any alien seeking admission to the United States under subsection (a)(27)(N), and the Secretary of Homeland Security may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Any such waiver by the Secretary of Homeland Security shall be in writing and shall be granted only on an individual basis following an investigation. The Secretary of Homeland Security shall provide for the annual reporting to Congress of the number of waivers granted under this paragraph in the previous fiscal year and a summary of the reasons for granting such waivers.
``(5) For purposes of subsection (a)(27)(N)(i)(II), a determination of age shall be made using the age of the alien on the date on which the alien was referred to the consular, immigration, or other designated official.
``(6) The Secretary of Homeland Security shall waive any application fee for a special immigrant visa for an alien described in section 101(a)(27)(N).''.
(c) Allocation of Special Immigrant Visas.--Section 203(b)(4) of the Immigration Nationality Act (8 U.S.C. 1153(b)(4)) is amended by striking ``(A) or (B) thereof'' and inserting ``(A), (B), or (N) of such section''.
(d) Expedited Process.--Not later than 45 days after the date of referral to a consular, immigration, or other designated official as described in section 101(a)(27)(N) of the Immigration and Nationality Act, as added by subsection
(a), special immigrant status shall be adjudicated and, if granted, the alien shall be--
(1) paroled to the United States pursuant to section 212(d)(5) of that Act (8 U.S.C. 1182(d)(5)); and
(2) allowed to apply for adjustment of status to permanent residence under section 245 of that Act (8 U.S.C. 1255) not later than 1 year after the alien's arrival in the United States.
(e) Requirement Prior to Entry Into the United States.--
(1) Database search.--An alien may not be admitted to the United States under this section or an amendment made by this section until the Secretary of Homeland Security has ensured that a search of each database maintained by an agency or department of the United States has been conducted to determine whether such alien is ineligible to be admitted to the Untied States on criminal, security, or related grounds.
(2) Cooperation and schedule.--The Secretary of Homeland Security and the head of each appropriate agency or department of the United States shall work cooperatively to ensure that each database search required by paragraph (1) is completed not later than 45 days after the date on which an alien files a petition seeking a special immigration visa under section 101(a)(27)(N) of the Immigration and Nationality Act, as added by subsection (a).
(f) Requirement After Entry Into the United States.--
(1) Requirement to submit fingerprints.--
(A) In general.--Not later than 30 days after the date that an alien enters the United States under this section or an amendment made by this section, the alien shall be fingerprinted and submit to the Secretary of Homeland Security such fingerprints and any other personal biometric data required by the Secretary.
(B) Other requirements.--The Secretary of Homeland Security may prescribe regulations that permit fingerprints submitted by an alien under section 262 of the Immigration and Nationality Act (8 U.S.C. 1302) or any other provision of law to satisfy the requirement to submit fingerprints under subparagraph (A).
(2) Database search.--The Secretary of Homeland Security shall ensure that a search of each database that contains fingerprints that is maintained by an agency or department of the United States be conducted to determine whether such alien is ineligible for an adjustment of status under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on criminal, security, or related grounds.
(3) Cooperation and schedule.--The Secretary of Homeland Security and the head of each appropriate agency or department of the United States shall work cooperatively to ensure that each database search required under paragraph (2) is completed not later than 180 days after the date on which the alien enters the United States.
(4) Administrative and judicial review.--
(A) Administrative review.--An alien who is admitted to the United States under this section or an amendment made by this section who is determined to be ineligible for an adjustment of status pursuant to section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) may appeal such a determination through the Administrative Appeals Office of the Bureau of Citizenship and Immigration Services of the Department of Homeland Security. The Secretary of Homeland Security shall ensure that a determination on such appeal is made not later than 60 days after the date on which the appeal is filed.
(B) Judicial review.--Nothing in this section, or in an amendment made by this section, may preclude application of section 242(a)(2)(B) of the Immigration and Nationality Act
(8 U.S.C. 1252(a)(2)(B)).
(g) Report to Congress.--Not later than 1 year after the date of enactment of this Act, the Secretary of Homeland Security shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the progress of the implementation of this section and the amendments made by this section, including--
(1) data related to the implementation of this section and the amendments made by this section;
(2) data regarding the number of placements of females and children who faces a credible fear of harm as referred to in section 101(a)(27)(N) of the Immigration and Nationality Act, as added by subsection (a); and
(3) any other information that the Secretary of Homeland Security determines to be appropriate.
(h) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this section and the amendments made by this section.
SEC. 1105. EXPANSION OF S VISA.
(a) Expansion of S Visa Classification.--Section 101(a)(15)(S) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(S)) is amended--
(1) in clause (i)--
(A) by striking ``Attorney General'' each place that term appears and inserting ``Secretary of Homeland Security''; and
(B) by striking ``or'' at the end; and
(2) in clause (ii)--
(A) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security''; and
(B) by striking ``1956,'' and all that follows through
``the alien;'' and inserting the following: ``1956; or
``(iii) who the Secretary of Homeland Security and the Secretary of State, in consultation with the Director of Central Intelligence, jointly determine--
``(I) is in possession of critical reliable information concerning the activities of governments or organizations, or their agents, representatives, or officials, with respect to weapons of mass destruction and related delivery systems, if such governments or organizations are at risk of developing, selling, or transferring such weapons or related delivery systems; and
``(II) is willing to supply or has supplied, fully and in good faith, information described in subclause (I) to appropriate persons within the United States Government;
and, if the Secretary of Homeland Security (or with respect to clause (ii), the Secretary of State and the Secretary of Homeland Security jointly) considers it to be appropriate, the spouse, married and unmarried sons and daughters, and parents of an alien described in clause (i), (ii), or (iii) if accompanying, or following to join, the alien;''.
(b) Numerical Limitation.--Section 214(k)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(k)(1)) is amended to read as follows:
``(1) The number of aliens who may be provided a visa as nonimmigrants under section 101(a)(15)(S) in any fiscal year may not exceed 3,500.''.
SEC. 1106. VOLUNTEERS.
It is not a violation of clauses (ii), (iii), or (iv) of subparagraph (A) for a religious denomination described in section 101(a)(27)(C)(i) or an affiliated religious organization described in section 101(a)(27)(C)(ii)(III), or their agents or officers, to encourage, invite, call, allow, or enable an alien, who is already present in the United States in violation of law to carry on the violation described in section 101(a)(27)(C)(ii)(I), as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, and other basic living expenses.
______
SA 1181. Mr. BIDEN submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
TITLE VI--HAZARDOUS MATERIALS
SEC. 601. SHORT TITLE; FINDINGS.
(a) Short Title.--This title may be cited as the
``Hazardous Materials Vulnerability Reduction Act of 2005''.
(b) Findings.--Congress makes the following findings:
(1) Congress has specifically given the Department of Homeland Security, working in conjunction with the Department of Transportation and other Federal agencies, the primary authority for the security of the United States transportation sector, including passenger and freight rail.
(2) This authority includes the responsibility to protect American citizens from terrorist incidents related to the transport by rail of extremely hazardous materials.
(3) Federal agencies have determined that hazardous materials can be used as tools of destruction and terror and that extremely hazardous materials are particularly vulnerable to sabotage or misuse during transport.
(4) The Federal Bureau of Investigation and the Central Intelligence Agency have found evidence suggesting that chemical tankers used to transport and store extremely hazardous chemicals have been targeted by terrorist groups.
(5) Rail shipments of extremely hazardous materials are often routed through highly attractive targets and densely populated areas, including within a few miles of the White House and United States Capitol.
(6) According to security experts, certain extremely hazardous materials present a mass casualty terrorist potential rivaled only by improvised nuclear devices, certain acts of bioterrorism, and the collapse of large occupied buildings.
(7) A report by the Chlorine Institute found that a 90-ton rail tanker, if successfully targeted by an explosive device, could cause a catastrophic release of an extremely hazardous material, creating a toxic cloud 40 miles long and 10 miles wide.
(8) The Environmental Protection Agency estimates that in an urban area a toxic cloud could extend for 14 miles.
(9) The United States Naval Research Laboratories concluded that a toxic plume of this type, created while there was a public event on the National Mall, could kill or injure up to 100,000 people in less than 30 minutes.
(10) According to security experts, rail shipments of extremely hazardous materials are particularly vulnerable and dangerous, however the Federal Government has made no material reduction in the inherent vulnerability of hazardous chemical targets inside the United States.
(11) While the safety record related to rail shipments of hazardous materials is very good, recent accidental releases of extremely hazardous materials in rural South Carolina and San Antonio, Texas, demonstrate the fatal danger posed by extremely hazardous materials.
(12) Security experts have determined that re-routing these rail shipments is the only way to immediately eliminate this danger in high threat areas, which currently puts hundreds of thousands of people at risk.
(13) Security experts have determined that the primary benefit of re-routing the shipment of extremely hazardous materials is a reduction in the number of people that would be exposed to the deadly impact of the release due to an attack, and the principal cost would be the additional operating expense associated with possible increase inhaul for the shipment of extremely hazardous materials.
(14) Less than 5 percent of all hazardous materials shipped by rail will meet the definition of extremely hazardous materials under this title.
SEC. 602. DEFINITIONS.
In this title, the following definitions apply:
(1) Extremely hazardous material.--The term ``extremely hazardous material'' means any chemical, toxin, or other material being shipped or stored in sufficient quantities to represent an acute health threat or have a high likelihood of causing injuries, casualties, or economic damage if successfully targeted by a terrorist attack, including materials that--
(A) are--
(i) toxic by inhalation;
(ii) extremely flammable; or
(iii) highly explosive;
(B) contain high level nuclear waste; or
(C) are otherwise designated by the Secretary as extremely hazardous.
(2) High threat corridor.--
(A) In general.--The term ``high threat corridor'' means a geographic area that has been designated by the Secretary as particularly vulnerable to damage from the release of extremely hazardous materials, including--
(i) large populations centers;
(ii) areas important to national security;
(iii) areas that terrorists may be particularly likely to attack; or
(iv) any other area designated by the Secretary as vulnerable to damage from the rail shipment or storage of extremely hazardous materials.
(B) Other areas.--
(i) In general.--Any city that is not designated as a high threat corridor under subparagraph (A) may file a petition with the Secretary to be so designated.
(ii) Procedure.--The Secretary shall establish, by rule, regulation, or order, procedures for petitions under clause
(i), including--
(I) designating the local official eligible to file a petition;
(II) establishing the criteria a city shall include in a petition;
(III) allowing a city to submit evidence supporting its petition; and
(IV) requiring the Secretary to rule on the petition not later than 60 days after the date of submission of the petition.
(iii) Notice.--The Secretary's decision regarding any petition under clause (i) shall be communicated to the requesting city, the Governor of the State in which the city is located, and the Senators and Members of the House of Representatives that represent the State in which the city is located.
(3) Secretary.--The term ``Secretary'' means the Secretary of Homeland Security or the Secretary's designee.
(4) Storage.--The term ``storage'' means any temporary or long-term storage of extremely hazardous materials in rail tankers or any other medium utilized to transport extremely hazardous materials by rail.
SEC. 603. REGULATIONS FOR TRANSPORT OF EXTREMELY HAZARDOUS
MATERIALS.
(a) Purposes of Regulations.--The regulations issued under this section shall establish a national, risk-based policy for extremely hazardous materials transported by rail or being stored. To the extent the Secretary determines appropriate, the regulations issued under this section shall be consistent with other Federal, State, and local regulations and international agreements relating to shipping or storing extremely hazardous materials.
(b) Issuance of Regulations.--Not later than 90 days after the date of enactment of this Act, the Secretary shall issue, after notice and opportunity for public comment, regulations concerning the rail shipment and storage of extremely hazardous materials by owners and operators of railroads. In developing such regulations, the Secretary shall consult with other Federal, State, and local government entities, security experts, representatives of the hazardous materials rail shipping industry, labor unions representing persons who work with hazardous materials in the rail shipping industry, and other interested persons, including private sector interest groups.
(c) Requirements.--The regulations issued under this section shall--
(1) include a list of the high threat corridors designated by the Secretary;
(2) contain the criteria used by the Secretary to determine whether an area qualifies as a high threat corridor;
(3) include a list of extremely hazardous materials;
(4) establish protocols for owners and operators of railroads that ship extremely hazardous materials regarding notifying all governors, mayors, and other designated officials and local emergency responders in a high threat corridor of the quantity and type of extremely hazardous materials that are transported by rail through the high threat corridor;
(5) require reports regarding the transport by railroad of extremely hazardous materials by the Secretary to local governmental officials designated by the Secretary, and Local Emergency Planning Committees, established under the Emergency Planning and Community Right to Know Act of 1986
(42 U.S.C. 11001 et seq.);
(6) establish protocols for the coordination of Federal, State, and local law enforcement authorities in creating a plan to respond to a terrorist attack, sabotage, or accident involving a rail shipment of extremely hazardous materials that causes the release of such materials;
(7) require that any rail shipment containing extremely hazardous materials be re-routed around any high threat corridor; and
(8) establish standards for the Secretary to grant exceptions to the re-routing requirement under paragraph (7).
(d) High Threat Corridors.--
(1) In general.--The criteria under subsection (c)(2) for determining whether an area qualifies as a high threat corridor may be the same criteria used for the distribution of funds under the Urban Area Security Initiative program.
(2) Initial list.--If the Secretary is unable to complete the review necessary to determine which areas should be designated as high threat corridors within 90 days after the date of enactment of this Act, the initial list shall be the cities that receive funding under the Urban Areas Security Initiative Program in fiscal year 2004.
(e) Extremely Hazardous Materials List.--If the Secretary is unable to complete the review necessary to determine which materials should be designated extremely hazardous materials under subsection (c)(3) within 90 days of the date of enactment of this Act, the initial list shall include--
(1) explosives classified as Class 1, Division 1.1, or Class 1, Division 1.2, under section 173.2 of title 49, Code of Federal Regulations, in a quantity greater than 500 kilograms;
(2) flammable gasses classified as Class 2, Division 2.1, under section 173.2 of title 49, Code of Federal Regulations, in a quantity greater than 10,000 liters;
(3) poisonous gasses classified as Class 2, Division 2.3, under section 173.2 of title 49, Code of Federal Regulations, that are also assigned to Hazard Zones A or B under section 173.116 of title 49, Code of Federal Regulations, in a quantity greater than 500 liters;
(4) poisonous materials, other than gasses, classified as Class 6, Division 6.1, under section 173.2 of title 49, Code of Federal Regulations, that are also assigned to Hazard Zones A or B under section 173.116 of title 49, Code of Federal Regulations, in a quantity greater than 1,000 kilograms; and
(5) anhydrous ammonia classified as Class 2, Division 2.2, under section 173.2 of title 49, Code of Federal Regulations, in a quantity greater than 1,000 kilograms.
(f) Notification.--
(1) In general.--The protocols under subsection (c)(4) shall establish the required frequency of reporting by an owner and operator of a railroad to the Governors, Mayors, and other designated officials and local emergency responders in a high threat corridor.
(2) Reports to secretary.--The protocols under subsection
(c)(4) shall require owners and operators of railroad to make annual reports to the Secretary regarding the transportation of extremely hazardous materials, and to make quarterly updates if there has been any significant change in the type, quantity, or frequency of shipments.
(3) Considerations.--In developing protocols under subsection (c)(4), the Secretary shall consider both the security needs of the United States and the interests of State and local governmental officials.
(g) Reports.--
(1) Frequency.--
(A) In general.--The Secretary shall make an annual report to local governmental officials and Local Emergency Planning Committees under subsection (c)(5).
(B) Updates.--If there has been any significant change in the type, quantity, or frequency of rail shipments in a geographic area, the Secretary shall make a quarterly update report to local governmental officials and Local Emergency Planning Committees in that geographic area.
(2) Contents.--Each report made under subsection (c)(5) shall incorporate information from the reports under subsection (c)(4) and shall include--
(A) a good-faith estimate of the total number of rail cars containing extremely hazardous materials shipped through or stored in each metropolitan statistical area; and
(B) if a release from a railcar carrying or storing extremely hazardous materials is likely to harm persons or property beyond the property of the owner or operator of the railroad, a risk management plan that provides--
(i) a hazard assessment of the potential effects of a release of the extremely hazardous materials, including--
(I) an estimate of the potential release quantities; and
(II) a determination of the downwind effects, including the potential exposures to affected populations;
(ii) a program to prevent a release of extremely hazardous materials, including--
(I) security precautions;
(II) monitoring programs; and
(III) employee training measures utilized; and
(iii) an emergency response program that provides for specific actions to be taken in response to the release of an extremely hazardous material, including procedures for informing the public and Federal, State, and local agencies responsible for responding to the release of an extremely hazardous material.
(h) Transportation and Storage of Extremely Hazardous Materials Through High Threat Corridors.--
(1) In general.--The standards for the Secretary to grant exceptions under subsection (c)(8) shall require a finding of special circumstances by the Secretary, including that--
(A) the shipment originates in or is destined to the high threat corridor;
(B) there is no practical alternate route;
(C) there is an unanticipated, temporary emergency that threatens the lives of people in the high threat corridor; or
(D) there would be no harm to persons or property beyond the property of the owner or operator of the railroad in the event of a successful terrorist attack on the shipment.
(2) Practical alternate routes.--Whether a shipper must utilize an interchange agreement or otherwise utilize a system of tracks or facilities owned by another operator shall not be considered by the Secretary in determining whether there is a practical alternate route under paragraph
(1)(B).
(3) Grant of exception.--If the Secretary grants an exception under subsection (c)(8)--
(A) the extremely hazardous material may not be stored in the high threat corridor, including under a leased track or rail siding agreement; and
(B) the Secretary shall notify Federal, State, and local law enforcement and first responder agencies (including, if applicable, transit, railroad, or port authority agencies) within the high threat corridor.
SEC. 604. SAFETY TRAINING.
(a) Homeland Security Grant Program.--
(1) In general.--The Secretary may award grants to local governments and owners and operators of railroads to conduct training regarding safety procedures for handling and responding to emergencies involving extremely hazardous materials.
(2) Use of funds.--Grants under this subsection may be used to provide training and purchase safety equipment for individuals who--
(A) transport, load, unload, or are otherwise involved in the shipment of extremely hazardous materials;
(B) would respond to an accident or incident involving a shipment of extremely hazardous materials; and
(C) would repair transportation equipment and facilities in the event of such an accident or incident.
(3) Application.--A local government or owner or operator of a railroad desiring a grant under this subsection shall submit an application at such time, in such manner, and accompanied by such information as the Secretary may reasonably establish.
(b) Railway Hazmat Training Program.--
(1) Program.--Section 5116(j) of title 49, United States Code, is amended by adding at the end the following:
``(6) Railway hazmat training program.--
``(A) In order to further the purposes of subsection (b), the Secretary of Transportation shall, subject to the availability of funds, make grants to national nonprofit employee organizations with experience in conducting training regarding the transportation of hazardous materials on railways for the purpose of training railway workers who are likely to discover, witness, or otherwise identify a release of extremely hazardous materials and to prevent or respond appropriately to the incident.
``(B) The Secretary of Transportation shall delegate authority for the administration of the Railway Hazmat Training Program to the Director of the National Institute of Environmental Health Sciences under subsection (g). In administering the program under this paragraph, the Director of the National Institute of Environmental Health Sciences shall consult closely with the Secretary of Transportation and the Secretary of Homeland Security.''.
SEC. 605. RESEARCH AND DEVELOPMENT.
(a) Transport.--
(1) In general.--Not later than 90 days after the date of enactment of this Act, the Secretary shall conduct a study of the benefits and availability of technology and procedures that may be utilized to--
(A) reduce the likelihood of a terrorist attack on a rail shipment of extremely hazardous materials;
(B) reduce the likelihood of a catastrophic release of extremely hazardous materials in the event of a terrorist attack; and
(C) enhance the ability of first responders to respond to a terrorist attack on a rail shipment of extremely hazardous materials and other required activities in the event of such an attack.
(2) Matters studied.--The study conducted under this subsection shall include the evaluation of--
(A) whether safer alternatives to 90-ton rail tankers exist;
(B) the feasibility of requiring chemical shippers to electronically track the movements of all shipments of extremely hazardous materials and report this information to the Department of Homeland Security on an ongoing basis as such shipments are transported; and
(C) the feasibility of utilizing finger-print based access controls for all chemical conveyances.
(3) Reporting.--Not later than 180 days after the date of enactment of this Act, the Secretary shall submit a report to Congress describing the findings of the study conducted under this subsection, which shall include recommendations and cost estimates for securing shipments of extremely hazardous materials.
(b) Physical Security.--
(1) In general.--Not later than 90 days after the date of enactment of this Act, the Secretary shall conduct a study of the physical security measures available for rail shipments of extremely hazardous materials that will reduce the risk of leakage or release in the event of a terrorist attack or sabotage.
(2) Matters studied.--The study conducted under this subsection shall consider the use of passive secondary containment of tanker valves, additional security force personnel, surveillance technologies, barriers, decoy rail cars, and methods to minimize delays during shipping.
(3) Reporting.--Not later than 180 days after the date of enactment of this Act, the Secretary shall submit a report to Congress describing the findings of the study conducted under this subsection, which shall contain recommendations and cost estimates for securing shipments of extremely hazardous materials.
(c) Leased Track Storage Arrangements.--
(1) In general.--Not later than 90 days after enactment of this Act, the Secretary shall conduct a study of available alternatives to storing extremely hazardous materials in or on leased track facilities.
(2) Matters studied.--The study conducted under this subsection shall--
(A) evaluate the extent of the use of leased track facilities and the security measures that should be taken to secure leased track facilities; and
(B) assess means to limit the consequences of an attack on extremely hazardous materials stored on leased track facilities to nearby communities.
(3) Report.--Not later than 180 days after the date of enactment of this Act, the Secretary shall submit a report to Congress describing the findings of the study conducted under this subsection, which shall contain recommendations and cost estimates for securing shipments of extremely hazardous materials.
SEC. 606. WHISTLEBLOWER PROTECTION.
(a) Prohibition Against Discrimination.--No owner or operator of a railroad may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to the Secretary, the Attorney General, or any Federal supervisory agency regarding a possible violation of any provision of this title by the owner or operator of a railroad or any director, officer, or employee of an owner or operator of a railroad.
(b) Enforcement.--Any employee or former employee who believes that such employee has been discharged or discriminated against in violation of subsection (a) may file a civil action in the appropriate United States district court before the end of the 2-year period beginning on the date of such discharge or discrimination.
(c) Remedies.--If the district court determines that a violation has occurred, the court may order the owner or operator of a railroad that committed the violation to--
(1) reinstate the employee to the employee's former position;
(2) pay compensatory damages; or
(3) take other appropriate actions to remedy any past discrimination.
(d) Limitation.--The protections of this section shall not apply to any employee who--
(1) deliberately causes or participates in the alleged violation of law or regulation; or
(2) knowingly or recklessly provides substantially false information to the Secretary, the Attorney General, or any Federal supervisory agency.
SEC. 607. PENALTIES.
(a) Right of Action.--
(1) In general.--Any State or local government may bring a civil action in a United States district court for redress of injuries caused by a violation of this title against any person (other than an individual) who transports, loads, unloads, or is otherwise involved in the shipping of extremely hazardous materials by rail and who violated this title.
(2) Relief.--In an action under paragraph (1), a State or local government may seek, for each violation of this title--
(A) an order for injunctive relief; and
(B) a civil penalty of not more than $1,000,000.
(b) Administrative Penalties.--
(1) In general.--The Secretary may issue an order imposing an administrative penalty of not more than $1,000,000 for each failure by a person (other than an individual) who transports, loads, unloads, or is otherwise involved in the shipping of extremely hazardous materials to comply with this title.
(2) Notice and hearing.--Before issuing an order under paragraph (1), the Secretary shall provide the person who allegedly violated this title--
(A) written notice of the proposed order; and
(B) the opportunity to request, not later than 30 days after the date on which the person received the notice, a hearing on the proposed order.
(3) Procedures.--Not later than 90 days after the date of enactment of this Act, the Secretary shall issue regulations establishing procedures for administrative hearings and the appropriate review of penalties issued under this subsection, including establishing deadlines.
______
SA 1182. Mr. SCHUMER (for himself, Mrs. Clinton, Mr. Kerry, and Mr. Kennedy) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 18, strike ``$2,694,300,000'' and insert
``$3,004,300,000''.
On page 78, line 13, strike ``$365,000,000'' and insert
``$685,000,000''.
On page 78, line 24, strike ``$10,000,000'' and insert
``$20,000,000''.
On page 79, line 1, strike ``$100,000,000'' and insert
``$400,000,000''.
On page 79, line 4, insert the following: ``: Provided further, That funding provided above may be used, among other things, for canine patrols for chemical, biological, or explosives detection; overtime reimbursement for enhanced security personnel; and other capital security improvements.''.
On page 91, line 23, strike the period at the end and insert the following: ``: Provided further, That $50,000,000 is solely for the development of devices that can immediately detect explosive, chemical, biological, or radiological materials on mass transit rail cars.''
______
SA 1183. Mr. SCHUMER submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 91, line 23, insert before the period ``: Provided further, That of the total funds made available under this heading, not less than $140,000,000 shall be for activities to demonstrate the viability, economic costs, and effectiveness of adapting military technology to protect commercial aircraft against the treat of man portable air defense systems (MANPADS).
______
SA 1184. Mr. SCHUMER (for himself and Mrs. Boxer) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. Not later than 60 days after the date of enactment of this Act, the Secretary of Homeland Security shall designate an agency within the Department of Homeland Security as having responsibility for managing the procurement and installation of man portable air defense system (MANPAD) countermeasure systems for commercial aircraft, and may use any unobligated funds provided under title I to establish an office within the designated agency for that purpose.
______
SA 1185. Mr. SCHUMER submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, add the following:
SEC. 519. ASSISTANT SECRETARY FOR CYBERSECURITY.
(a)(1) Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the following:
``SEC. 203. ASSISTANT SECRETARY FOR CYBERSECURITY.
``(a) In General.--There shall be in the Directorate for Information Analysis and Infrastructure Protection a National Cybersecurity Office headed by an Assistant Secretary for Cybersecurity (in this section referred to as the `Assistant Secretary'), who shall assist the Secretary in promoting cybersecurity for the Nation.
``(b) General Authority.--The Assistant Secretary, subject to the direction and control of the Secretary, shall have primary authority within the Department for all cybersecurity-related critical infrastructure protection programs of the Department, including with respect to policy formulation and program management.
``(c) Responsibilities.--The responsibilities of the Assistant Secretary shall include the following:
``(1) To establish and manage--
``(A) a national cybersecurity response system that includes the ability to--
``(i) analyze the effect of cybersecurity threat information on national critical infrastructure; and
``(ii) aid in the detection and warning of attacks on, and in the restoration of, cybersecurity infrastructure in the aftermath of such attacks;
``(B) a national cybersecurity threat and vulnerability reduction program that identifies cybersecurity vulnerabilities that would have a national effect on critical infrastructure, performs vulnerability assessments on information technologies, and coordinates the mitigation of such vulnerabilities;
``(C) a national cybersecurity awareness and training program that promotes cybersecurity awareness among the public and the private sectors and promotes cybersecurity training and education programs;
``(D) a government cybersecurity program to coordinate and consult with Federal, State, and local governments to enhance their cybersecurity programs; and
``(E) a national security and international cybersecurity cooperation program to help foster Federal efforts to enhance international cybersecurity awareness and cooperation.
``(2) To coordinate with the private sector on the programs under paragraph (1) as appropriate, and to promote cybersecurity information sharing, vulnerability assessment, and threat warning regarding critical infrastructure.
``(3) To coordinate with other directorates and offices within the Department on the cybersecurity aspects of their missions.
``(4) To coordinate with the Under Secretary for Emergency Preparedness and Response to ensure that the National Response Plan developed pursuant to section 502(6) of the Homeland Security Act of 2002 (6 U.S.C. 312(6)) includes appropriate measures for the recovery of the cybersecurity elements of critical infrastructure.
``(5) To develop processes for information sharing with the private sector, consistent with section 214, that--
``(A) promote voluntary cybersecurity best practices, standards, and benchmarks that are responsive to rapid technology changes and to the security needs of critical infrastructure; and
``(B) consider roles of Federal, State, local, and foreign governments and the private sector, including the insurance industry and auditors.
``(6) To coordinate with the Chief Information Officer of the Department in establishing a secure information sharing architecture and information sharing processes, including with respect to the Department's operation centers.
``(7) To consult with the Electronic Crimes Task Force of the United States Secret Service on private sector outreach and information activities.
``(8) To consult with the Office for Domestic Preparedness to ensure that realistic cybersecurity scenarios are incorporated into tabletop and recovery exercises.
``(9) To consult and coordinate, as appropriate, with other Federal agencies on cybersecurity-related programs, policies, and operations.
``(10) To consult and coordinate within the Department and, where appropriate, with other relevant Federal agencies, on security of digital control systems, such as Supervisory Control and Data Acquisition (SCADA) systems.
``(d) Authority Over the National Communications System.--The Assistant Secretary shall have primary authority within the Department over the National Communications System.''.
(2) The table of contents in section 1(b) of such Act is amended by adding at the end of the items relating to subtitle A of title II the following:
``203. Assistant Secretary for Cybersecurity.''.
(b) Section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101) is amended by adding at the end the following:
``(17)(A) The term `cybersecurity' means the prevention of damage to, the protection of, and the restoration of computers, electronic communications systems, electronic communication services, wire communication, and electronic communication, including information contained therein, to ensure its availability, integrity, authentication, confidentiality, and nonrepudiation.
``(B) In this paragraph--
``(i) each of the terms `damage' and `computer' has the meaning that term has in section 1030 of title 18, United States Code; and
``(ii) each of the terms `electronic communications system', `electronic communication service', `wire communication', and `electronic communication' has the meaning that term has in section 2510 of title 18, United States Code.''.
______
SA 1186. Mr. SCHUMER submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 7, line 16, strike ``$2,413,438,000,'' and insert the following: ``$2,763,438,000, of which $200,000,000 shall be reserved for the International Civil Aviation Organization to establish biometric and document identification standards to measure multiple immutable physical characteristics, including fingerprints, eye retinas, and eye-to-eye width and for the Department of Homeland Security to place multiple biometric identifiers at each point of entry; of which
$50,000,000 shall be reserved for a program that requires the government of each country participating in the visa waiver program to certify that such country will comply with the biometric standards established by the International Civil Aviation Organization; of which $25,000,000 shall be reserved for the entry and exit data systems of the Department of Homeland Security to accommodate traffic flow increases; of which $50,000,000 shall be reserved to integrate the entry and exit data collection and analysis systems of the Department of Homeland Security, the Department of State, and Department of Justice, including the Federal Bureau of Investigation; of which $25,000,000 shall be reserved to establish a uniform translation and transliteration service for all ports of entry to identify the names of individuals entering and exiting the United States;''.
______
SA 1187. Mr. SCHUMER submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place insert the following:
Sec. . None of the funds appropriated under this Act may be used to implement plans by the Department of State and the Department of Homeland Security pursuant to section 7209(b) of the 9/11 Commission Implementation Act of 2004 (8 U.S.C. 1185 note) to require passports as the only acceptable document to enter the United States from Canada or Mexico. The above funding shall be used to implement a plan developed to improve border security that would allow travelers into the United States from Canada and Mexico to use alternative documentation that is as secure as a passport, but more cost effective and efficient to obtain.
______
SA 1188. Mr. SCHUMER submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 91, line 9, strike ``$1,372,399,000'' and insert
``$1,472,399,000''.
On page 91, line 23, strike ``reprogrammed.'' and insert the following: ``reprogrammed: Provided further, That of the total funds made available under this heading, $100,000,000 shall be solely for grants to eligible entities (national laboratories, nonprofit private organizations, institutions of higher education, and other entities the Secretary of Homeland Security determines to be eligible) to reseawrch and develop technologies that can be used to secure the ports of the United States, to develop technologies to increase the ability of the Customs Service to inspect merchandise carried on any vessel that arrives at any port in the United States, to develop equipment that accurately detects explosives, nuclear, radiological, chemical and biological agents that could be used to commit a terrorist act, and to improve tags and seals designed for use on shipping containers.''.
______
SA 1189. Mr. SCHUMER (for himself and Mr. Lieberman) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 69, beginning on line 2, strike $4,452,318,000 and all that follows through ``That'' on line 5, and insert the following: ``$4,754,299,000, to remain available until September 30, 2007, of which not to exceed $3,000 shall be for official reception and representation expenses: Provided, That of the amount made available under this heading, not to exceed $2,000,000 shall be available to carry out section 4051 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3728): Provided further, That of the amount made available under this heading, not to exceed $100,000,000 shall be available to carry out the improvements described in section 4052(b) of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 118 Stat. 3728): Provided further, That of the amount made available under this heading, not to exceed $200,000,000 shall be available to carry out the research and development described section 4052(c) of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 118 Stat. 3728): Provided further, That''.
______
SA 1190. Mr. SCHUMER submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 71, between lines 10 and 11, insert the following:
For necessary expenses of the Transportation Security Administration related to developing and implementing a system for identifying and tracking shipments of hazardous materials (as defined in section 385.402 of title 49, Code of Federal Regulations) by truck using global positioning system technology, $70,000,000.
______
SA 1191. Mr. SCHUMER (for himself and Mr. Lieberman) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 70, line 20, strike ``purposes.'' and insert the following: ``purposes: Provided further, That none of the funds made available under this heading shall be available if the Transportation Security Administration limits, or attempts to limit, the recruitment or hiring of personnel to serve as full-time equivalent screeners: Provided further, That not later than 180 days after the date of enactment of this Act, the Secretary of Homeland Security shall submit to Congress a report on the current screener staffing shortfalls at large airports and what the Secretary considers to be an appropriate nationwide full-time equivalent staffing level based on the waiting time in airport security lines and projected passenger growth.''.
______
SA 1192. Mr. SCHUMER (for himself and Mr. Lieberman) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 69, beginning on line 2, strike ``$4,452,318,000'' and all that follows through ``$2,462,318,000:'' and insert the following: ``$4,787,299,000, to remain available until September 30, 2007, of which not to exceed $3,000 shall be for official reception and representation expenses: Provided, That of the total amount made available under this heading, not to exceed
$3,726,929,000 shall be for screening operations, of which
$1,590,969,000 shall be available for passenger screener pay, compensation, and benefits, of which $931,864,000 shall be available for baggage screener pay, compensation, and benefits, of which $180,000,000 shall be available only for procurement of checked baggage explosive detection systems and $14,000,000 shall be available only for installation of checked baggage explosive detection systems; and not to exceed $1,060,370,000 shall be for aviation security direction and enforcement presence: Provided further, That security service fees authorized under section 44940 of title 49, United States Code, shall be credited to this appropriation as offsetting collections: Provided further, That the sum herein appropriated from the General Fund shall be reduced on a dollar-for-dollar basis as such offsetting collections are received during fiscal year 2006, so as to result in a final fiscal year appropriation from the General Fund estimated at not more than $2,797,299,000:''.
______
SA 1193. Mr. DODD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 21: strike $1,518,000,000 and insert
$2,186,814,841
On page 77, line 22: strike $425,000,000 and insert
$2,058,178,673
On page 78, line 13: strike $365,000,000 and insert
$1,878,088,040
On page 78, line 16: strike $200,000,000 and insert
$1,029,089,337
On page 78, line 22: strike $5,000,000 and insert
$25,727,233
On page 78, line 24: strike $10,000,000 and insert
$51,454,467
On page 77, line 18, strike $2,694,000,000 and insert
$13,863,377,000
On page 77, line 20: strike $1,518,000,000 and insert
$7,810,788,066
On page 79, line 1: strike $100,000,000 and insert
$514,544,668
On page 79, line 5: strike $50,000,000 and insert
$257,272,334
On page 79, line 7: strike $50,000,000 and insert
$257,272,334
On page 79, line 9: strike $40,000,000 and insert
$205,817,867
On page 79, line 21: strike $321,300,000 and insert
$1,653,232,019
On page 81, line 24, strike $615,000,000 and insert
$3,164,802,000
On page 81, line 24, strike $550,000,000 and insert
$2,830,311,000
On page 81, line 26, strike $65,000,000 and insert
$334,491,000
On page 82, line 12, strike $180,000,000 and insert
$926,284,000
On page 83, line 12, strike $203,499,000 and insert
$1,047,210,000
On page 89, line 3, strike $194,000,000 and insert
$998,327,800
______
SA 1194. Mr. NELSON of Florida submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
Not later than 90 days after the date of enactment of this Act, the Secretary of Homeland Security acting through the Under Secretary for Emergency Preparedness shall propose new inspection guidelines that prohibit inspectors from entering into a contract with any individual or entity for whom the inspector performs an inspection for purposes of determining eligibility for assistance from the Federal Emergency Management Agency.
______
SA 1195. Mr. DeWINE submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 57, line 1, strike $146,322,000'' and insert
``$144,876,000''.
On page 67, line 17, strike $50,150,000'' and insert
``$40,150,000''.
On page 79, strike lines 21 and 22, and insert the following:
(6) $307,138,000 for training, exercises, technical assistance, and other programs, of which $135,000,000 shall be available for the National Domestic Preparedness Consortium and $20,838,000 shall be available for the Citizen Corps:
On page 81, line 24, strike ``$615,000,000'' and insert
``$715,000,000''.
On page 81, line 24, strike $550,000,000'' and insert
``$650,000,000''.
On page 89, line 3, strike $194,000,000'' and insert
``$183,362,000''.
On page 89, line 26, strike $88,358,000'' and insert
``$64,743,000''.
On page 90, line 19, strike $701,793,000'' and insert
``$681,654,000, of which $14,387,000 shall be available for programs related to evaluations and studies''.
On page 91, line 9, strike $1,372,399,000'' and insert
``$1,352,399,000, of which $54,650,000 shall be available for projects related to conventional missions support''.
______
SA 1196. Mr. STEVENS submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE --RAIL SECURITY
SEC. --01. RAIL TRANSPORTATION SECURITY RISK ASSESSMENT.
(a) In General.--
(1) Vulnerability and risk assessment.--The Secretary of Homeland Security shall establish a task force, including the Transportation Security Administration, the Department of Transportation, and other appropriate agencies, to complete a vulnerability and risk assessment of freight and passenger rail transportation (encompassing railroads, as that term is defined in section 20102(1) of title 49, United States Code). The assessment shall include--
(A) identification and evaluation of critical assets and infrastructures;
(B) identification of vulnerabilities and risks to those assets and infrastructures;
(C) identification of vulnerabilities and risks that are specific to the transportation of hazardous materials via railroad; and
(D) identification of security weaknesses in passenger and cargo security, transportation infrastructure, protection systems, procedural policies, communications systems, employee training, emergency response planning, and any other area identified by the assessment.
(2) Existing private and public sector efforts.--The assessment shall take into account actions taken or planned by both public and private entities to address identified security issues and assess the effective integration of such actions.
(3) Recommendations.--Based on the assessment conducted under paragraph (1), the Secretary, in consultation with the Secretary of Transportation, shall develop prioritized recommendations for improving rail security, including any recommendations the Secretary has for--
(A) improving the security of rail tunnels, rail bridges, rail switching and car storage areas, other rail infrastructure and facilities, information systems, and other areas identified by the Secretary as posing significant rail-related risks to public safety and the movement of interstate commerce, taking into account the impact that any proposed security measure might have on the provision of rail service;
(B) deploying equipment to detect explosives and hazardous chemical, biological, and radioactive substances, and any appropriate countermeasures;
(C) training appropriate railroad or railroad shipper employees in terrorism prevention, passenger evacuation, and response activities;
(D) conducting public outreach campaigns on passenger railroads;
(E) deploying surveillance equipment; and
(F) identifying the immediate and long-term costs of measures that may be required to address those risks.
(4) Plans.--The report required by subsection (c) shall include--
(A) a plan, developed in consultation with the freight and intercity passenger railroads, and State and local governments, for the Federal government to provide increased security support at high or severe threat levels of alert;
(B) a plan for coordinating existing and planned rail security initiatives undertaken by the public and private sectors; and
(C) a contingency plan, developed in conjunction with freight and intercity and commuter passenger railroads, to ensure the continued movement of freight and passengers in the event of an attack affecting the railroad system, which shall contemplate--
(i) the possibility of rerouting traffic due to the loss of critical infrastructure, such as a bridge, tunnel, yard, or station; and
(ii) methods of continuing railroad service in the Northeast Corridor in the event of a commercial power loss, or catastrophe affecting a critical bridge, tunnel, yard, or station.
(b) Consultation; Use of Existing Resources.--In carrying out the assessment and developing the recommendations and plans required by subsection (a), the Secretary of Homeland Security shall consult with rail management, rail labor, owners or lessors of rail cars used to transport hazardous materials, first responders, shippers of hazardous materials, public safety officials, and other relevant parties.
(c) Report.--
(1) In general.--Within 180 days after the date of enactment of this Act, the Secretary shall transmit to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure a report containing the assessment, prioritized recommendations, and plans required by subsection
(a) and an estimate of the cost to implement such recommendations.
(2) Format.--The Secretary may submit the report in both classified and redacted formats if the Secretary determines that such action is appropriate or necessary.
(3) Failure to meet deadline.--The the Secretary fails to transmit the report required by paragraph (1) within the period required by paragraph (1), the Secretary shall notify the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Homeland Security and explain in writing the reason for the failure.
(d) Annual Updates.--The Secretary, in consultation with the Secretary of Transportation, shall update the assessment and recommendations each year and transmit a report, which may be submitted in both classified and redacted formats, to the Committees named in subsection (c)(1), containing the updated assessment and recommendations.
(e) Funding.--Out of funds appropriated pursuant to section 114(u)(2) of title 49, United States Code, there shall be made available to the Secretary of Homeland Security to carry out this section $5,000,000 for fiscal year 2006.
SEC. --02. RAIL WORKER SECURITY TRAINING PROGRAM.
(a) In General.--Not later than 60 days after the date of enactment of this Act, the Secretary of Homeland Security and the Secretary of Transportation, in consultation with appropriate law enforcement, security, and terrorism experts, representatives of railroad carriers, and nonprofit employee organizations that represent rail workers, shall develop and issue detailed guidance for a rail worker security training program.
(b) Report.--
(1) In general.--The Secretary shall transmit to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure a report on the guidance developed for the program under subsection (a).
(2) Format.--The Secretary may submit the report in both classified and redacted formats if the Secretary determines that such action is appropriate or necessary.
SEC. --03. RAIL SECURITY.
(a) Rail Police Officers.--Section 28101 of title 49, United States Code, is amended by striking ``the rail carrier'' each place it appears and inserting ``any rail carrier''.
(b) Review of Rail Regulations.--Within 1 year after the date of enactment of this Act, the Secretary of Transportation, in consultation with the Under Secretary of Homeland Security for Border and Transportation Security, shall review existing rail regulations of the Department of Transportation for the purpose of identifying areas in which those regulations need to be revised to improve rail security.
SEC. --04. STUDY OF FOREIGN RAIL TRANSPORT SECURITY PROGRAMS.
(a) Requirement for Study.--Within one year after the date of enactment of this Act, the Comptroller General shall complete a study of the rail passenger transportation security programs that are carried out for rail transportation systems in Japan, member nations of the European Union, and other foreign countries.
(b) Purpose.--The purpose of the study shall be to identify effective rail transportation security measures that are in use in foreign rail transportation systems, including innovative measures and screening procedures determined effective.
(c) Report.--The Comptroller General shall submit a report on the results of the study to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure. The report shall include the Comptroller General's assessment regarding whether it is feasible to implement within the United States any of the same or similar security measures that are determined effective under the study.
SEC. --05. PASSENGER, BAGGAGE, AND CARGO SCREENING.
(a) Requirement for Study and Report.--The Secretary of Homeland Security, in cooperation with the Secretary of Transportation through the Assistant Secretary of Homeland Security (Transportation Security Administration) and other appropriate agencies, shall--
(1) study the cost and feasibility of requiring security screening for passengers, baggage, and cargo on passenger trains including an analysis of any passenger train screening pilot programs undertaken by the Department of Homeland Security; and
(2) report the results of the study, together with any recommendations that the Secretary of Homeland Security may have for implementing a rail security screening program to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure within 1 year after the date of enactment of this Act.
(b) Pilot Program.--As part of the study under subsection
(a), the Under Secretary shall complete a pilot program of random security screening of passengers and baggage at 5 passenger rail stations served by Amtrak selected by the Under Secretary. In conducting the pilot program, the Under Secretary shall--
(1) test a wide range of explosives detection technologies, devices and methods;
(2) require that intercity rail passengers produce government-issued photographic identification which matches the name on the passenger's tickets prior to boarding trains; and
(3) attempt to give preference to locations at the highest risk of terrorist attack and achieve a distribution of participating train stations in terms of geographic location, size, passenger volume, and whether the station is used by commuter rail passengers as well as Amtrak passengers.
(c) Authorization of Appropriations.--Out of funds appropriated pursuant to section 114(u)(2) of title 49, United States Code, there shall be made available to the Secretary of Homeland Security to carry out this section
$5,000,000 for fiscal year 2006.
SEC. --06. FIRE AND LIFE-SAFETY IMPROVEMENTS.
(a) Life-safety Needs.--The Secretary of Transportation is authorized to make grants to Amtrak for the purpose of making fire and life-safety improvements to Amtrak tunnels on the Northeast Corridor in New York, NY, Baltimore, MD, and Washington, DC.
(b) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary of Transportation for the purposes of carrying out subsection (a) the following amounts:
(1) For the 6 New York tunnels to provide ventilation, electrical, and fire safety technology upgrades, emergency communication and lighting systems, and emergency access and egress for passengers--
(A) $100,000,000 for fiscal year 2006;
(B) $100,000,000 for fiscal year 2007;
(C) $100,000,000 for fiscal year 2008;
(D) $100,000,000 for fiscal year 2009; and
(E) $170,000,000 for fiscal year 2010.
(2) For the Baltimore & Potomac tunnel and the Union tunnel, together, to provide adequate drainage, ventilation, communication, lighting, and passenger egress upgrades--
(A) $10,000,000 for fiscal year 2006;
(B) $10,000,000 for fiscal year 2007;
(C) $10,000,000 for fiscal year 2008;
(D) $10,000,000 for fiscal year 2009; and
(E) $17,000,000 for fiscal year 2010.
(3) For the Washington, DC Union Station tunnels to improve ventilation, communication, lighting, and passenger egress upgrades--
(A) $8,000,000 for fiscal year 2006;
(B) $8,000,000 for fiscal year 2007;
(C) $8,000,000 for fiscal year 2008;
(D) $8,000,000 for fiscal year 2009; and
(E) $8,000,000 for fiscal year 2010.
(c) Infrastructure Upgrades.--There are authorized to be appropriated to the Secretary of Transportation for fiscal year 2006 $3,000,000 for the preliminary design of options for a new tunnel on a different alignment to augment the capacity of the existing Baltimore tunnels.
(d) Availability of Appropriated Funds.--Amounts appropriated pursuant to this section shall remain available until expended.
(e) Plans Required.--The Secretary may not make amounts available to Amtrak for obligation or expenditure under subsection (a)--
(1) until Amtrak has submitted to the Secretary, and the Secretary has approved, an engineering and financial plan for such projects; and
(2) unless, for each project funded pursuant to this section, the Secretary has approved a project management plan prepared by Amtrak addressing appropriate project budget, construction schedule, recipient staff organization, document control and record keeping, change order procedure, quality control and assurance, periodic plan updates, periodic status reports, and such other matters the Secretary deems appropriate.
(f) Review of Plans.--The Secretary of Transportation shall complete the review of the plans required by paragraphs (1) and (2) of subsection (e) and approve or disapprove the plans within 45 days after the date on which each such plan is submitted by Amtrak. If the Secretary determines that a plan is incomplete or deficient, the Secretary shall notify Amtrak of the incomplete items or deficiencies and Amtrak shall, within 30 days after receiving the Secretary's notification, submit a modified plan for the Secretary's review. Within 15 days after receiving additional information on items previously included in the plan, and within 45 days after receiving items newly included in a modified plan, the Secretary shall either approve the modified plan, or, if the Secretary finds the plan is still incomplete or deficient, the Secretary shall identify in writing to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure the portions of the plan the Secretary finds incomplete or deficient, approve all other portions of the plan, obligate the funds associated with those other portions, and execute an agreement with Amtrak within 15 days thereafter on a process for resolving the remaining portions of the plan.
(g) Financial Contribution From Other Tunnel Users.--The Secretary shall, taking into account the need for the timely completion of all portions of the tunnel projects described in subsection (a)--
(1) consider the extent to which rail carriers other than Amtrak use the tunnels;
(2) consider the feasibility of seeking a financial contribution from those other rail carriers toward the costs of the projects; and
(3) obtain financial contributions or commitments from such other rail carriers at levels reflecting the extent of their use of the tunnels, if feasible. SEC. --07. AMTRAK PLAN TO ASSIST FAMILIES OF PASSENGERS
INVOLVED IN RAIL PASSENGER ACCIDENTS.
(a) In General.--Chapter 243 of title 49, United States Code, is amended by adding at the end the following:
``Sec. 24316. Plans to address needs of families of passengers involved in rail passenger accidents
``(a) Submission of Plan.--Not later than 6 months after the date of the enactment of the Department of Homeland Security Appropriations Act, 2006, Amtrak shall submit to the Chairman of the National Transportation Safety Board and the Secretary of Transportation a plan for addressing the needs of the families of passengers involved in any rail passenger accident involving an Amtrak intercity train and resulting in a loss of life.
``(b) Contents of Plans.--The plan to be submitted by Amtrak under subsection (a) shall include, at a minimum, the following:
``(1) A process by which Amtrak will maintain and provide to the National Transportation Safety Board and the Secretary of Transportation, immediately upon request, a list (which is based on the best available information at the time of the request) of the names of the passengers aboard the train
(whether or not such names have been verified), and will periodically update the list. The plan shall include a procedure, with respect to unreserved trains and passengers not holding reservations on other trains, for Amtrak to use reasonable efforts to ascertain the number and names of passengers aboard a train involved in an accident.
``(2) A plan for creating and publicizing a reliable, toll-free telephone number within 4 hours after such an accident occurs, and for providing staff, to handle calls from the families of the passengers.
``(3) A process for notifying the families of the passengers, before providing any public notice of the names of the passengers, by suitably trained individuals.
``(4) A process for providing the notice described in paragraph (2) to the family of a passenger as soon as Amtrak has verified that the passenger was aboard the train (whether or not the names of all of the passengers have been verified).
``(5) A process by which the family of each passenger will be consulted about the disposition of all remains and personal effects of the passenger within Amtrak's control; that any possession of the passenger within Amtrak's control will be returned to the family unless the possession is needed for the accident investigation or any criminal investigation; and that any unclaimed possession of a passenger within Amtrak's control will be retained by the rail passenger carrier for at least 18 months.
``(6) A process by which the treatment of the families of nonrevenue passengers will be the same as the treatment of the families of revenue passengers.
``(7) An assurance that Amtrak will provide adequate training to its employees and agents to meet the needs of survivors and family members following an accident.
``(c) Use of Information.--The National Transportation Safety Board, the Secretary of Transportation, and Amtrak may not release to any person information on a list obtained under subsection (b)(1) but may provide information on the list about a passenger to the family of the passenger to the extent that the Board or Amtrak considers appropriate.
``(d) Limitation on Liability.--Amtrak shall not be liable for damages in any action brought in a Federal or State court arising out of the performance of Amtrak in preparing or providing a passenger list, or in providing information concerning a train reservation, pursuant to a plan submitted by Amtrak under subsection (b), unless such liability was caused by Amtrak's conduct.
``(e) Limitation on Statutory Construction.--Nothing in this section may be construed as limiting the actions that Amtrak may take, or the obligations that Amtrak may have, in providing assistance to the families of passengers involved in a rail passenger accident.
``(f) Authorization of Appropriations.--There are authorized to be appropriated to the Secretary of Transportation for the use of Amtrak $500,000 for fiscal year 2006 to carry out this section. Amounts appropriated pursuant to this subsection shall remain available until expended.''.
(b) Conforming Amendment.--The chapter analysis for chapter 243 of title 49, United States Code, is amended by adding at the end the following:
``Sec.
``24316. Plan to assist families of passengers involved in rail passenger accidents.''.
SEC. --08. SYSTEMWIDE AMTRAK SECURITY UPGRADES.
(a) In General--Subject to subsection (c), the Under Secretary of Homeland Security for Border and Transportation Security is authorized to make grants, through the Secretary of Transportation, to Amtrak--
(1) to secure major tunnel access points and ensure tunnel integrity in New York, Baltimore, and Washington, DC;
(2) to secure Amtrak trains;
(3) to secure Amtrak stations;
(4) to obtain a watch list identification system approved by the Under Secretary;
(5) to obtain train tracking and interoperable communications systems that are coordinated to the maximum extent possible;
(6) to hire additional police and security officers, including canine units; and
(7) to expand emergency preparedness efforts.
(b) Conditions.--The Secretary of Transportation may not disburse funds to Amtrak under subsection (a) unless the projects are contained in a systemwide security plan approved by the Under Secretary, in consultation with the Secretary of Transportation, and, for capital projects, meet the requirements of section --07(e)(2). The plan shall include appropriate measures to address security awareness, emergency response, and passenger evacuation training.
(c) Equitable Geographic Allocation.--The Under Secretary shall ensure that, subject to meeting the highest security needs on Amtrak's entire system, stations and facilities located outside of the Northeast Corridor receive an equitable share of the security funds authorized by this section.
(d) Availability of Funds.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $63,500,000 for fiscal year 2006 for the purposes of carrying out this section. Amounts appropriated pursuant to this subsection shall remain available until expended.
SEC. --09. FREIGHT AND PASSENGER RAIL SECURITY UPGRADES.
(a) Security Improvement Grants.--The Under Secretary of Homeland Security for Border and Transportation Security is authorized to make grants to freight railroads, the Alaska Railroad, hazardous materials shippers, owners of rail cars used in the transportation of hazardous materials, universities, colleges and research centers, State and local governments (for passenger facilities and infrastructure not owned by Amtrak), and, through the Secretary of Transportation, to Amtrak, for full or partial reimbursement of costs incurred in the conduct of activities to prevent or respond to acts of terrorism, sabotage, or other intercity passenger rail and freight rail security threats, including--
(1) security and redundancy for critical communications, computer, and train control systems essential for secure rail operations;
(2) accommodation of cargo or passenger screening equipment at the United States-Mexico border or the United States-Canada border;
(3) the security of hazardous material transportation by rail;
(4) secure intercity passenger rail stations, trains, and infrastructure;
(5) structural modification or replacement of rail cars transporting high hazard materials to improve their resistance to acts of terrorism;
(6) employee security awareness, preparedness, passenger evacuation, and emergency response training;
(7) public security awareness campaigns for passenger train operations;
(8) the sharing of intelligence and information about security threats;
(9) to obtain train tracking and interoperable communications systems that are coordinated to the maximum extent possible;
(10) to hire additional police and security officers, including canine units; and
(11) other improvements recommended by the report required by section --01, including infrastructure, facilities, and equipment upgrades.
(b) Accountability.--The Under Secretary shall adopt necessary procedures, including audits, to ensure that grants made under this section are expended in accordance with the purposes of this title and the priorities and other criteria developed by the Under Secretary.
(c) Equitable Allocation.--The Under Secretary shall equitably distribute the funds authorized by this section, taking into account geographic location, and shall encourage non-Federal financial participation in awarding grants. With respect to grants for passenger rail security, the Under Secretary shall also take into account passenger volume and whether a station is used by commuter rail passengers as well as intercity rail passengers.
(d) Conditions.--The Secretary of Transportation may not disburse funds to Amtrak under subsection (a) unless Amtrak meets the conditions set forth in section --08(b) of this title.
(e) Allocation Between Railroads and Others.--Unless as a result of the assessment required by section --01 the Under Secretary of Homeland Security for Border and Transportation Security determines that critical rail transportation security needs require reimbursement in greater amounts to any eligible entity, no grants under this section may be made--
(1) in excess of $65,000,000 to Amtrak; or
(2) in excess of $100,000,000 for the purposes described in paragraphs (3) and (5) of subsection (a).
(f) Authorization of Appropriations.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $70,000,000 for each of fiscal years 2006 through 2010 to carry out the purposes of this section. Amounts appropriated pursuant to this subsection shall remain available until expended.
(g) High Hazard Materials Defined.--In this section, the term ``high hazard materials'' means poison inhalation hazard materials, Class 2.3 gases, Class 6.1 materials, and anhydrous ammonia. SEC. --10. OVERSIGHT AND GRANT PROCEDURES.
(a) Secretarial Oversight.--The Secretary of Transportation may use up to 0.5 percent of amounts made available to Amtrak for capital projects under this title to enter into contracts for the review of proposed capital projects and related program management plans and to oversee construction of such projects.
(b) Use of Funds.--The Secretary may use amounts available under subsection (a) of this subsection to make contracts for safety, procurement, management, and financial compliance reviews and audits of a recipient of amounts under subsection
(a).
(c) Procedures for Grant Award.--The Under Secretary shall prescribe procedures and schedules for the awarding of grants under this title, including application and qualification procedures (including a requirement that the applicant have a security plan), and a record of decision on applicant eligibility. The procedures shall include the execution of a grant agreement between the grant recipient and the Under Secretary. The Under Secretary shall issue a final rule establishing the procedures not later than 90 days after the date of enactment of this Act.
SEC. --11. RAIL SECURITY RESEARCH AND DEVELOPMENT.
(a) Establishment of Research and Development Program.--The Under Secretary of Homeland Security for Border and Transportation Security, in conjunction with the Secretary of Transportation, shall carry out a research and development program for the purpose of improving freight and intercity passenger rail security that may include research and development projects to--
(1) reduce the vulnerability of passenger trains, stations, and equipment to explosives and hazardous chemical, biological, and radioactive substances;
(2) test new emergency response techniques and technologies;
(3) develop improved freight technologies, including--
(A) technologies for sealing rail cars;
(B) automatic inspection of rail cars;
(C) communication-based train controls; and
(D) emergency response training;
(4) test wayside detectors that can detect tampering with railroad equipment; and
(5) support enhanced security for the transportation of hazardous materials by rail, including--
(A) technologies to detect a breach in a tank car and transmit information about the integrity of tank cars to the train crew;
(B) research to improve tank car integrity, with a focus on tank cars that carry high hazard materials (as defined in section --09(g) of this title);
(C) techniques to transfer hazardous materials from rail cars that are damaged or otherwise represent an unreasonable risk to human life or public safety;
(6) other projects recommended in the report required by section --01.
(b) Coordination With Other Research Initiatives.--The Under Secretary of Homeland Security for Border and Transportation Security shall ensure that the research and development program authorized by this section is coordinated with other research and development initiatives at the Department and the Department of Transportation. The Under Secretary of Homeland Security for Border and Transportation Security shall carry out any research and development project authorized by this section through a reimbursable agreement with the Secretary of Transportation if the Secretary of Transportation--
(1) is already sponsoring a research and development project in a similar area; or
(2) has a unique facility or capability that would be useful in carrying out the project.
(c) Accountability.--The Under Secretary shall adopt necessary procedures, including audits, to ensure that grants made under this section are expended in accordance with the purposes of this title and the priorities and other criteria developed by the Under Secretary.
(d) Authorization of Appropriations.--There are authorized to be appropriated to the Under Secretary of Homeland Security for Border and Transportation Security $20,000,000 for each of fiscal years 2006 through 2010 to carry out the purposes of this section. Amounts appropriated pursuant to this subsection shall remain available until expended.
SEC. --12. WELDED RAIL AND TANK CAR SAFETY IMPROVEMENTS.
(a) Track Standards.--Within 90 days after the date of enactment of this Act, the Federal Railroad Administration shall--
(1) require each track owner using continuous welded rail track to include procedures (in its procedures filed with the Administration pursuant to section 213.119 of title 49, Code of Federal Regulations) to improve the identification of cracks in rail joint bars;
(2) instruct Administration track inspectors to obtain copies of the most recent continuous welded rail programs of each railroad within the inspectors' areas of responsibility and require that inspectors use those programs when conducting track inspections; and
(3) establish a program to periodically review continuous welded rail joint bar inspection data from railroads and Administration track inspectors and, whenever the Administration determines that it is necessary or appropriate, require railroads to increase the frequency or improve the methods of inspection of joint bars in continuous welded rail.
(b) Tank Car Standards.--The Federal Railroad Administration shall--
(1) within 1 year after the date of enactment of this Act, validate the predictive model it is developing to quantify the relevant dynamic forces acting on railroad tank cars under accident conditions; and
(2) within 18 months after the date of enactment of this Act, initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars.
(c) Older Tank Car Impact Resistance Analysis and Report.--Within 2 years after the date of enactment of this Act, the Federal Railroad Administration shall--
(1) conduct a comprehensive analysis to determine the impact resistance of the steels in the shells of pressure tank cars constructed before 1989; and
(2) transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure with recommendations for measures to eliminate or mitigate the risk of catastrophic failure.
SEC. --13. NORTHERN BORDER RAIL PASSENGER REPORT.
Within 180 days after the date of enactment of this Act, the Under Secretary of Homeland Security for Border and Transportation Security, in consultation with the heads of other appropriate Federal departments and agencies and the National Railroad Passenger Corporation, shall transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure that contains--
(1) a description of the current system for screening passengers and baggage on passenger rail service between the United States and Canada;
(2) an assessment of the current program to provide preclearance of airline passengers between the United States and Canada as outlined in ``The Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America'', dated January 18, 2001;
(3) an assessment of the current program to provide preclearance of freight railroad traffic between the United States and Canada as outlined in the ``Declaration of Principle for the Improved Security of Rail Shipments by Canadian National Railway and Canadian Pacific Railway from Canada to the United States'', dated April 2, 2003;
(4) information on progress by the Department of Homeland Security and other Federal agencies towards finalizing a bilateral protocol with Canada that would provide for preclearance of passengers on trains operating between the United States and Canada;
(5) a description of legislative, regulatory, budgetary, or policy barriers within the United States Government to providing pre-screened passenger lists for rail passengers travelling between the United States and Canada to the Department of Homeland Security;
(6) a description of the position of the Government of Canada and relevant Canadian agencies with respect to preclearance of such passengers; and
(7) a draft of any changes in existing Federal law necessary to provide for pre-screening of such passengers and providing pre-screened passenger lists to the Department of Homeland Security.
SEC. --14. REPORT REGARDING IMPACT ON SECURITY OF TRAIN
TRAVEL IN COMMUNITIES WITHOUT GRADE SEPARATION.
(a) Study.--The Secretary of Homeland Security shall, in consultation with State and local government officials, conduct a study on the impact of blocked highway-railroad grade crossings on the ability of emergency responders, including ambulances and police, fire, and other emergency vehicles, to perform public safety and security duties in the event of a terrorist attack.
(b) Report.--Not later than 1 year after the date of enactment of this Act, the Secretary of Homeland Security shall submit a report to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate on the findings of the study conducted under subsection (a) and recommendations for reducing the impact of blocked crossings on emergency response.
SEC. --15. WHISTLEBLOWER PROTECTION PROGRAM.
(a) In General.--Subchapter A of chapter 201 of title 49, United States Code, is amended by inserting after section 20115 the following:
``Sec. 20116. Whistleblower protection for rail security matters
``(a) Discrimination Against Employee.--No rail carrier engaged in interstate or foreign commerce may discharge a railroad employee or otherwise discriminate against a railroad employee because the employee (or any person acting pursuant to a request of the employee)--
(1) provided, caused to be provided, or is about to provide or cause to be provided, to the employer or the Federal Government information relating to a perceived threat to security; or
``(2) provided, caused to be provided, or is about to provide or cause to be provided, testimony before Congress or at any Federal or State proceeding regarding a perceived threat to security; or
``(3) refused to violate or assist in the violation of any law, rule or regulation related to rail security.
``(b) Dispute Resolution.--A dispute, grievance, or claim arising under this section is subject to resolution under section 3 of the Railway Labor Act (45 U.S.C. 153). In a proceeding by the National Railroad Adjustment Board, a division or delegate of the Board, or another board of adjustment established under section 3 to resolve the dispute, grievance, or claim the proceeding shall be expedited and the dispute, grievance, or claim shall be resolved not later than 180 days after it is filed. If the violation is a form of discrimination that does not involve discharge, suspension, or another action affecting pay, and no other remedy is available under this subsection, the Board, division, delegate, or other board of adjustment may award the employee reasonable damages, including punitive damages, of not more than $20,000.
``(c) Procedural Requirements.--Except as provided in subsection (b), the procedure set forth in section 42121(b)(2)(B) of this title, including the burdens of proof, applies to any complaint brought under this section.
``(d) Election of Remedies.--An employee of a railroad carrier may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the carrier.
``(e) Disclosure of Identity.--
``(1) Except as provided in paragraph (2) of this subsection, or with the written consent of the employee, the Secretary of Transportation may not disclose the name of an employee of a railroad carrier who has provided information about an alleged violation of this section.
``(2) The Secretary shall disclose to the Attorney General the name of an employee described in paragraph (1) of this subsection if the matter is referred to the Attorney General for enforcement.''.
(b) Conforming Amendment.--The chapter analysis for chapter 201 of title 49, United States Code, is amended by inserting after the item relating to section 20115 the following:
``20116. Whistleblower protection for rail security matters.''.
SEC. --16. HAZMAT ROUTING COMMISSION.
(a) In General.--The President shall establish and appoint the members of a commission to study and make recommendations to the President concerning--
(1) the current routing of hazardous materials being transported by rail through or near facilities at high risk for catastrophic damage due to any accident involving the leakage, spilling, or release of such materials;
(2) alternative routings, the construction of additional rail facilities, and other risk reduction strategies to address issues associated with the rail transportation of such materials through or near such facilities; and
(3) feasability and funding strategies and mechanisms for implementing such alternative routings and other risk reduction strategies, including cost-benefit analyses.
(b) Report.--The commission shall report its findings and recommendations to the President within 12 months after the date of enactment of this Act and transmit a copy of the report to the Senate Committee on Commerce, Science, and Transportation, the House of Representives Committee on Homeland Security, and the House of Representatives Committee on Transportation and Infrastructure.
______
SA 1197. Mr. LAUTENBERG submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 78, line 19 after ``based on'', insert ``risk and''.
______
SA 1198. Mr. LAUTENBERG submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 78, line 19 after ``based on'', insert ``risk and''.
______
SA 1199. Mr. BYRD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 81, line 24, strike ``$615,000,000'' and insert
``$715,000,000'' and strike ``$500,000,000'' and insert
``$600,000,000''.
______
SA 1200. Mr. BYRD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
For necessary expenses for programs authorized by the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2201 et seq.), $100,000,000 shall be available to carry out section 33 (15 U.S.C. 2229) for the fiscal year ending September 30, 2005, to be available immediately upon enactment, and to remain available until September 30, 2007.
______
SA 1201. Mr. BYRD submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 81, strike line 20 and insert the following:
award: Provided further, That any recipient of Federal funds granted through the State Homeland Security Grant Program, the Law Enforcement Terrorism Prevention Program, and the Urban Area Security Initiative Program, or any predecessor or successor to these programs, as appropriated in fiscal year 2004 and fiscal year 2005, shall expend funds pursuant to the relevant, approved State plan by September 30, 2007: Provided further, That any recipient of Federal funds granted through any program described in the preceding proviso, as appropriated in fiscal year 2006, shall expend funds pursuant to the relevant, approved State plan by September 30, 2008: Provided further, That any funds not expended by September 30, 2007 or September 30, 2008, respectively, as required by the preceding 2 provisos shall be returned to the Department of Homeland Security to be reallocated to State and local entities based on risk and in conformance with the assessments now being conducted by the States under Homeland Security Presidential Directive 8.
______
SA 1202. Mr. DODD (for himself and Ms. Stabenow) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 22: strike $425,000,000 and insert
$2,058,178,673.
On page 78, line 13: strike $365,000,000 and insert
$1,878,088,040.
On page 78, line 16: strike $200,000,000 and insert
$1,029,089,337.
On page 78, line 22: strike $5,000,000 and insert
$25,727,233.
On page 78, line 24: strike $10,000,000 and insert
$51,454,467.
On page 77, line 18: strike $2,694,000,000 and insert
$13,863,377,000.
On page 77, line 20: strike $1,518,000,000 and insert
$7,810,788,066.
On page 79, line 1: strike $100,000,000 and insert
$514,544,668.
On page 79, line 5: strike $50,000,000 and insert
$257,272,334.
On page 79, line 7: strike $50,000,000 and insert
$257,272,334.
On page 79, line 9: strike $40,000,000 and insert
$205,817,867.
On page 79, line 21: strike $321,300,000 and insert
$1,653,232,019.
On page 81, line 24: strike $615,000,000 and insert
$3,164,802,000.
On page 81, line 24: strike $550,000,000 and insert
$2,830,311,000.
On page 81, line 26: strike $65,000,000 and insert
$334,491,000.
On page 82, line 12: strike $180,000,000 and insert
$926,284,000.
On page 83, line 12: strike $203,499,000 and insert
$1,047,210,000.
On page 89, line 3: strike $194,000,000 and insert
$998,327,800.
______
SA 1203. Mr. CORNYN (for himself and Mrs. Feinstein) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
TITLE VI--HOMELAND SECURITY GRANT ENHANCEMENT
SEC. 601. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This title may be cited as the ``Funding Our Risks With Appropriate Resource Disbursement Act of 2005'' or the ``Homeland Security FORWARD Funding Act of 2005''.
(b) Table of Contents.--The table of contents for this title is as follows:
Sec. 601. Short title; table of contents.
Sec. 602. Risk-based funding for homeland security.
Sec. 603. Essential capabilities, task forces, and standards.
Sec. 604. Effective administration of homeland security grants.
Sec. 605. Implementation and definitions.
SEC. 602. RISK-BASED FUNDING FOR HOMELAND SECURITY.
(a) Risk-Based Funding in General.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.) is amended by adding at the end the following:
``TITLE XVIII--RISK-BASED FUNDING FOR HOMELAND SECURITY
``SEC. 1801. RISK-BASED FUNDING FOR HOMELAND SECURITY.
``(a) Risk-Based Funding.--The Secretary shall ensure that homeland security grants are allocated based on an assessment of threat, vulnerability, and consequence to the maximum extent practicable.
``(b) Covered Grants.--This title applies to grants provided by the Department to States, regions, or directly eligible tribes for the primary purpose of improving the ability of first responders to prevent, prepare for, respond to, or mitigate threatened or actual terrorist attacks, especially those involving weapons of mass destruction, and grants provided by the Department for improving homeland security, including the following:
``(1) State homeland security grant program.--The State Homeland Security Grant Program of the Department, or any successor to such grant program.
``(2) Urban area security initiative.--The Urban Area Security Initiative of the Department, or any successor to such grant program.
``(3) Law enforcement terrorism prevention program.--The Law Enforcement Terrorism Prevention Program of the Department, or any successor to such grant program.
``(4) Citizen corps program.--The Citizen Corps Program of the Department, or any successor to such grant program.
``(c) Excluded Programs.--This title does not apply to or otherwise affect the following Federal grant programs or any grant under such a program:
``(1) Nondepartment programs.--Any Federal grant program that is not administered by the Department.
``(2) Fire grant programs.--The fire grant programs authorized by sections 33 and 34 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2229, 2229a).
``(3) Emergency management planning and assistance account grants.--The Emergency Management Performance Grant program and the Urban Search and Rescue Grants program authorized by title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.), the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 2000 (113 Stat. 1047 et seq.), and the Earthquake Hazards Reduction Act of 1977 (42 U.S.C. 7701 et seq.).
``(d) Effect on Covered Grants.--Nothing in this Act shall be construed to require the elimination of a covered grant program.''.
(b) Covered Grant Eligibility and Criteria.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by subsection (a), is amended by adding at the end the following:
``SEC. 1802. COVERED GRANT ELIGIBILITY AND CRITERIA.
``(a) Grant Eligibility.--
``(1) In general.--
``(A) General eligibility.--Except as provided in subparagraphs (B) and (C), any State, region, or directly eligible tribe shall be eligible to apply for a covered grant.
``(B) Urban area security initiative.--Only a region shall be eligible to apply for a grant under the Urban Area Security Initiative of the Department, or any successor to such grant program.
``(C) State homeland security grant program.--Only a State shall be eligible to apply for a grant under the State Homeland Security Grant Program of the Department, or any successor to such grant program.
``(2) Other grant applicants.--
``(A) In general.--Grants provided by the Department for improving homeland security, including to seaports, airports, and other transportation facilities, shall be allocated as described in section 1801(a).
``(B) Consideration.--Such grants shall be considered, to the extent determined appropriate by the Secretary, pursuant to the procedures and criteria established in this title, except that the eligibility requirements of paragraph (1) shall not apply.
``(3) Certification of regions.--
``(A) In general.--The Secretary shall certify a geographic area as a region if--
``(i) the geographic area meets the criteria under section 1807(10)(B) and (C); and
``(ii) the Secretary determines, based on an assessment of threat, vulnerability, and consequence, that certifying the geographic area as a region under this title is in the interest of national homeland security.
``(B) Existing urban area security initiative areas.--Notwithstanding subparagraphs (B) and (C) of section 1807(10), a geographic area that, on or before the date of enactment of the Homeland Security FORWARD Funding Act of 2005, was designated as a high-threat urban area for purposes of the Urban Area Security Initiative, shall be certified by the Secretary as a region unless the Secretary determines, based on an assessment of threat, vulnerability, and consequence, that certifying the geographic area as a region is not in the interest of national homeland security.
``(b) Grant Criteria.--In awarding covered grants, the Secretary shall assist States, local governments, and operators of airports, ports, or similar facilities in achieving, maintaining, and enhancing the essential capabilities established by the Secretary under section 1803.
``(c) State Homeland Security Plans.--
``(1) Submission of plans.--The Secretary shall require that any State applying to the Secretary for a covered grant shall submit to the Secretary a 3-year State homeland security plan that--
``(A) demonstrates the extent to which the State has achieved the essential capabilities that apply to the State;
``(B) demonstrates the needs of the State necessary to achieve, maintain, or enhance the essential capabilities that apply to the State;
``(C) includes a prioritization of such needs based on threat, vulnerability, and consequence assessment factors applicable to the State;
``(D) describes how the State intends--
``(i) to address such needs at the city, county, regional, tribal, State, and interstate level, including a precise description of any regional structure the State has established for the purpose of organizing homeland security preparedness activities funded by covered grants;
``(ii) to use all Federal, State, and local resources available for the purpose of addressing such needs; and
``(iii) to give particular emphasis to regional planning and cooperation, including the activities of multijurisdictional planning agencies governed by local officials, both within its jurisdictional borders and with neighboring States;
``(E) is developed in consultation with and subject to appropriate comment by local governments within the State; and
``(F) with respect to the emergency preparedness of first responders, addresses the unique aspects of terrorism as part of a comprehensive State emergency management plan.
``(2) Approval by secretary.--The Secretary may not award any covered grant to a State unless the Secretary has approved the applicable State homeland security plan.
``(d) Consistency With State Plans.--The Secretary shall ensure that each covered grant is used to supplement and support, in a consistent and coordinated manner, the applicable State homeland security plan or plans.
``(e) Application for Grant.--
``(1) In general.--Except as otherwise provided in this subsection, any State, region, directly eligible tribe, or operator of an airport, port, or similar facility may apply for a covered grant by submitting to the Secretary an application at such time, in such manner, and containing such information as is required under this subsection, or as the Secretary may reasonably require.
``(2) Deadlines for applications and awards.--All applications for covered grants shall be submitted at such time as the Secretary may reasonably require for the fiscal year for which they are submitted. The Secretary shall award covered grants pursuant to all approved applications for such fiscal year as soon as practicable, but not later than March 1 of such year.
``(3) Availability of funds.--All funds awarded by the Secretary under covered grants in a fiscal year shall be available for obligation through the end of the subsequent fiscal year.
``(4) Minimum contents of application.--The Secretary shall require that each applicant include in its application, at a minimum--
``(A) the purpose for which the applicant seeks covered grant funds and the reasons why the applicant needs the covered grant to meet the essential capabilities for terrorism preparedness within the State, region, or directly eligible tribe or at the airport, port, or similar facility to which the application pertains;
``(B) a description of how, by reference to the applicable State homeland security plan or plans under subsection (c), the allocation of grant funding proposed in the application, including, where applicable, the amount not passed through under section 1806(g)(1), would assist in fulfilling the essential capabilities specified in such plan or plans;
``(C) a statement of whether a mutual aid agreement applies to the use of all or any portion of the covered grant funds;
``(D) if the applicant is a State, a description of how the State plans to allocate the covered grant funds to regions, local governments, and Indian tribes;
``(E) if the applicant is a region--
``(i) a precise geographical description of the region and a specification of all participating and nonparticipating local governments within the geographical area comprising that region;
``(ii) a specification of what governmental entity within the region will administer the expenditure of funds under the covered grant;
``(iii) a designation of a specific individual to serve as regional liaison; and
``(iv) a description of how the governmental entity administering the expenditure of funds under the covered grant plans to allocate the covered grant funds to States, local governments, and Indian tribes;
``(F) a capital budget showing how the applicant intends to allocate and expend the covered grant funds; and
``(G) if the applicant is a directly eligible tribe, a designation of a specific individual to serve as the tribal liaison.
``(5) Regional applications.--
``(A) Relationship to state applications.--A regional application--
``(i) shall be coordinated with an application submitted by the State or States of which such region is a part;
``(ii) shall supplement and avoid duplication with such State application; and
``(iii) shall address the unique regional aspects of such region's terrorism preparedness needs beyond those provided for in the application of such State or States.
``(B) Opportunity for state review and comment.--
``(i) In general.--To ensure coordination with an application submitted by a State or States, an applicant that is a region shall submit its application to each State within the boundaries of which any part of such region is located for review. Before awarding any covered grant to a region, the Secretary shall provide an opportunity to each State within the boundaries of which any part of such region is located to comment to the Secretary on the consistency of the region's application with the State's homeland security plan. Any such comments and the underlying regional application shall be submitted to the Secretary concurrently with the submission of the State and regional applications.
``(ii) Final authority.--The Secretary shall have final authority to determine the consistency of any application of a region with the applicable State homeland security plan or plans, and to approve any application of such region. The Secretary shall notify each State within the boundaries of which any part of such region is located of the approval of an application by such region.
``(C) Distribution of regional awards.--If the Secretary approves a regional application, then the Secretary shall distribute a regional award to the State or States submitting the applicable regional application under subparagraph (B), and each such State shall, not later than the end of the 45-day period beginning on the date after receiving a regional award, pass through to the region all covered grant funds or resources purchased with such funds, except those funds necessary for the State to carry out its responsibilities with respect to such regional application; Provided That, in no such case shall the State or States pass through to the region less than 80 percent of the regional award.
``(D) Certifications regarding distribution of grant funds to regions.--Any State that receives a regional award under subparagraph (C) shall certify to the Secretary, by not later than 30 days after the expiration of the period described in subparagraph (C) with respect to the grant, that the State has made available to the region the required funds and resources in accordance with subparagraph (C).
``(E) Direct payments to regions.--If any State fails to pass through a regional award to a region as required by subparagraph (C) within 45 days after receiving such award and does not request or receive an extension of such period under section 1806(h)(2), the region may petition the Secretary to receive directly the portion of the regional award that is required to be passed through to such region under subparagraph (C).
``(F) Regional liaisons.--A regional liaison designated under paragraph (4)(E)(iii) shall--
``(i) coordinate with Federal, State, local, regional, and private officials within the region concerning terrorism preparedness;
``(ii) develop a process for receiving input from Federal, State, local, regional, and private sector officials within the region to assist in the development of the regional application and to improve the region's access to covered grants; and
``(iii) administer, in consultation with State, local, regional, and private officials within the region, covered grants awarded to the region.
``(6) Tribal applications.--
``(A) Submission to the state or states.--To ensure the consistency required under subsection (d), an applicant that is a directly eligible tribe shall submit its application to each State within the boundaries of which any part of such tribe is located for direct submission to the Department along with the application of such State or States.
``(B) Opportunity for state comment.--Before awarding any covered grant to a directly eligible tribe, the Secretary shall provide an opportunity to each State within the boundaries of which any part of such tribe is located to comment to the Secretary on the consistency of the tribe's application with the State's homeland security plan. Any such comments shall be submitted to the Secretary concurrently with the submission of the State and tribal applications.
``(C) Final authority.--The Secretary shall have final authority to determine the consistency of any application of a directly eligible tribe with the applicable State homeland security plan or plans, and to approve any application of such tribe. The Secretary shall notify each State within the boundaries of which any part of such tribe is located of the approval of an application by such tribe.
``(D) Tribal liaison.--A tribal liaison designated under paragraph (4)(G) shall--
``(i) coordinate with Federal, State, and private sector officials to assist in the development of the application of such tribe and to improve the tribe's access to covered grants; and
``(ii) administer, in consultation with State, local, regional, and private officials, covered grants awarded to such tribe.
``(E) Limitation on the number of direct grants.--The Secretary may make covered grants directly to not more than 20 directly eligible tribes per fiscal year.
``(F) Tribes not receiving direct grants.--An Indian tribe that does not receive a grant directly under this section is eligible to receive funds under a covered grant from the State or States within the boundaries of which any part of such tribe is located, consistent with the homeland security plan of the State as described in subsection (c). If a State fails to comply with section 1806(g)(1), the tribe may request payment under section 1806(h)(3) in the same manner as a local government.
``(7) Equipment standards.--If an applicant for a covered grant proposes to upgrade or purchase, with assistance provided under the grant, new equipment or systems that do not meet or exceed any applicable national voluntary consensus standards established by the Secretary under section 1805(a), the applicant shall include in the application an explanation of why such equipment or systems will serve the needs of the applicant better than equipment or systems that meet or exceed such standards.
``(f) Homeland Security Grants Board.--
``(1) Establishment of board.--The Secretary shall establish a Homeland Security Grants Board, consisting of--
``(A) the Secretary;
``(B) the Deputy Secretary of Homeland Security;
``(C) the Under Secretary for Emergency Preparedness and Response;
``(D) the Under Secretary for Border and Transportation Security;
``(E) the Under Secretary for Information Analysis and Infrastructure Protection;
``(F) the Under Secretary for Science and Technology; and
``(G) the Director of the Office of State and Local Government Coordination.
``(2) Chairman.--
``(A) In general.--The Secretary shall be the Chairman of the Board.
``(B) Exercise of authorities by deputy secretary.--The Deputy Secretary of Homeland Security may exercise the authorities of the Chairman, if the Secretary so directs.
``(3) Risk-based ranking of grant applications.--
``(A) Prioritization of grants.--The Board--
``(i) shall evaluate and annually prioritize all pending applications for covered grants based upon the degree to which they would, by achieving, maintaining, or enhancing the essential capabilities of the applicants on a nationwide basis, lessen the threat to, vulnerability of, and consequences for persons and critical infrastructure; and
``(ii) in evaluating the threat to persons and critical infrastructure for purposes of prioritizing covered grants, shall give greater weight to threats of terrorism based on their specificity and credibility, including any pattern of repetition.
``(B) Minimum amounts.--
``(i) In general.--After evaluating and prioritizing grant applications under subparagraph (A), the Board shall ensure that, for each fiscal year, each State that has an approved State homeland security plan receives no less than 0.25 percent of the funds available for the State Homeland Security Grant Program, as described in section 1801(b)(1), for that fiscal year for purposes of implementing its homeland security plan in accordance with the prioritization of additional needs under subsection (c)(1)(C).
``(ii) Other entities.--Notwithstanding clause (i), the Board shall ensure that, for each fiscal year, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands each receive 0.08 percent of the funds available for the State Homeland Security Grant Program, as described in section 1801(b)(1), for that fiscal year for purposes of implementing its homeland security plan in accordance with the prioritization of additional needs under subsection (c)(1)(C).
``(4) Functions of under secretaries.--The Under Secretaries referred to in paragraph (1) shall seek to ensure that the relevant expertise and input of the staff of their directorates are available to and considered by the Board.''.
SEC. 603. ESSENTIAL CAPABILITIES, TASK FORCES, AND STANDARDS.
The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by section 602, is amended by adding at the end the following:
``SEC. 1803. ESSENTIAL CAPABILITIES FOR HOMELAND SECURITY.
``(a) Establishment of Essential Capabilities.--
``(1) In general.--For purposes of covered grants, the Secretary shall establish clearly defined essential capabilities for State and local government preparedness for terrorism, in consultation with--
``(A) the Task Force on Essential Capabilities established under section 1804;
``(B) the Under Secretaries for Emergency Preparedness and Response, Border and Transportation Security, Information Analysis and Infrastructure Protection, and Science and Technology, and the Director of the Office of State and Local Government Coordination;
``(C) the Secretary of Health and Human Services;
``(D) other appropriate Federal agencies;
``(E) State and local first responder agencies and officials; and
``(F) consensus-based standard making organizations responsible for setting standards relevant to the first responder community.
``(2) Deadlines.--The Secretary shall--
``(A) establish essential capabilities under paragraph (1) within 30 days after receipt of the report under section 1804(b); and
``(B) regularly update such essential capabilities as necessary, but not less than every 3 years.
``(3) Provision of essential capabilities.--The Secretary shall ensure that a detailed description of the essential capabilities established under paragraph (1) is provided promptly to the States and to Congress. The States shall make the essential capabilities available as necessary and appropriate to local governments and operators of airports, ports, and other similar facilities within their jurisdictions.
``(b) Objectives.--The Secretary shall ensure that essential capabilities established under subsection (a)(1) meet the following objectives:
``(1) Specificity.--The determination of essential capabilities specifically shall describe the training, planning, personnel, and equipment that different types of communities in the Nation should possess, or to which they should have access, in order to meet the Department's goals for terrorism preparedness based upon--
``(A) the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection of the threats of terrorism against the United States;
``(B) the types of threats, vulnerabilities, geography, size, and other factors that the Secretary has determined to be applicable to each different type of community; and
``(C) the principles of regional coordination and mutual aid among State and local governments.
``(2) Flexibility.--The establishment of essential capabilities shall be sufficiently flexible to allow State and local government officials to set priorities based on particular needs, while reaching nationally determined terrorism preparedness levels within a specified time period.
``(3) Measurability.--The establishment of essential capabilities shall be designed to enable measurement of progress toward specific terrorism preparedness goals.
``(4) Comprehensiveness.--The determination of essential capabilities for terrorism preparedness shall be made within the context of a comprehensive State emergency management system.
``(c) Factors To Be Considered.--
``(1) In general.--In establishing essential capabilities under subsection (a)(1), the Secretary specifically shall consider the variables of threat, vulnerability, and consequences with respect to the Nation's population
(including transient commuting and tourist populations) and critical infrastructure. Such consideration shall be based upon the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection of the threats of terrorism against the United States.
``(2) Critical infrastructure sectors.--The Secretary specifically shall consider threats of terrorism against the following critical infrastructure sectors in all areas of the Nation, urban and rural:
``(A) Agriculture.
``(B) Banking and finance.
``(C) Chemical industries.
``(D) The defense industrial base.
``(E) Emergency services.
``(F) Energy.
``(G) Food.
``(H) Government.
``(I) Postal and shipping.
``(J) Public health.
``(K) Information and telecommunications networks.
``(L) Transportation.
``(M) Water.
The order in which the critical infrastructure sectors are listed in this paragraph shall not be construed as an order of priority for consideration of the importance of such sectors.
``(3) Types of threat.--The Secretary specifically shall consider the following types of threat to the critical infrastructure sectors described in paragraph (2), and to populations in all areas of the Nation, urban and rural:
``(A) Biological threats.
``(B) Nuclear threats.
``(C) Radiological threats.
``(D) Incendiary threats.
``(E) Chemical threats.
``(F) Explosives.
``(G) Suicide bombers.
``(H) Cyber threats.
``(I) Any other threats based on proximity to specific past acts of terrorism or the known activity of any terrorist group.
The order in which the types of threat are listed in this paragraph shall not be construed as an order of priority for consideration of the importance of such threats.
``(4) Consideration of additional factors.--In establishing essential capabilities under subsection (a)(1), the Secretary shall take into account any other specific threat to a population (including a transient commuting or tourist population) or critical infrastructure sector that the Secretary has determined to exist.
``SEC. 1804. TASK FORCE ON ESSENTIAL CAPABILITIES.
``(a) Establishment.--To assist the Secretary in establishing essential capabilities under section 1803(a)(1), the Secretary shall establish an advisory body pursuant to section 871(a) not later than 60 days after the date of the enactment of this section, which shall be known as the Task Force on Essential Capabilities.
``(b) Report.--
``(1) In general.--The Task Force shall submit to the Secretary, not later than 9 months after its establishment by the Secretary under subsection (a) and every 3 years thereafter, a report on its recommendations for essential capabilities for preparedness for terrorism.
``(2) Contents.--The report shall--
``(A) include a priority ranking of essential capabilities in order to provide guidance to the Secretary and to Congress on determining the appropriate allocation of, and funding levels for, first responder needs;
``(B) set forth a methodology by which any State or local government will be able to determine the extent to which it possesses or has access to the essential capabilities that States and local governments having similar risks should obtain;
``(C) describe the availability of national voluntary consensus standards, and whether there is a need for new national voluntary consensus standards, with respect to first responder training and equipment;
``(D) include such additional matters as the Secretary may specify in order to further the terrorism preparedness capabilities of first responders; and
``(E) include such revisions to the contents of past reports as are necessary to take into account changes in the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection or other relevant information as determined by the Secretary.
``(3) Consistency with federal working group.--The Task Force shall ensure that its recommendations for essential capabilities are, to the extent feasible, consistent with any preparedness goals or recommendations of the Federal working group established under section 319F(a) of the Public Health Service Act (42 U.S.C. 247d-6(a)).
``(4) Comprehensiveness.--The Task Force shall ensure that its recommendations regarding essential capabilities for terrorism preparedness are made within the context of a comprehensive State emergency management system.
``(5) Prior measures.--The Task Force shall ensure that its recommendations regarding essential capabilities for terrorism preparedness take into account any capabilities that State or local officials have determined to be essential and have undertaken since September 11, 2001, to prevent or prepare for terrorist attacks.
``(c) Membership.--
``(1) In general.--The Task Force shall consist of 35 members appointed by the Secretary, and shall, to the extent practicable, represent a geographic and substantive cross section of governmental and nongovernmental first responder disciplines from the State and local levels, including as appropriate--
``(A) members selected from the emergency response field, including fire service and law enforcement, hazardous materials response, emergency medical services, and emergency management personnel (including public works personnel routinely engaged in emergency response);
``(B) health scientists, emergency and inpatient medical providers, and public health professionals, including experts in emergency health care response to chemical, biological, radiological, and nuclear terrorism, and experts in providing mental health care during emergency response operations;
``(C) experts from Federal, State, and local governments, and the private sector, representing standards-setting organizations, including representation from the voluntary consensus codes and standards development community, particularly those with expertise in first responder disciplines; and
``(D) State and local officials with expertise in terrorism preparedness, subject to the condition that if any such official is an elected official representing 1 of the 2 major political parties, an equal number of elected officials shall be selected from each such party.
``(2) Coordination with the department of health and human services.--In the selection of members of the Task Force who are health professionals, including emergency medical professionals, the Secretary shall coordinate the selection with the Secretary of Health and Human Services.
``(3) Ex officio members.--The Secretary and the Secretary of Health and Human Services shall each designate 1 or more officers of their respective Departments to serve as ex officio members of the Task Force. One of the ex officio members from the Department of Homeland Security shall be the designated officer of the Federal Government for purposes of subsection (e) of section 10 of the Federal Advisory Committee Act (5 App. U.S.C.).
``(d) Applicability of Federal Advisory Committee Act.--Notwithstanding section 871(a), the Federal Advisory Committee Act (5 U.S.C. App.), including subsections (a),
(b), and (d) of section 10 of such Act, and section 552b(c) of title 5, United States Code, shall apply to the Task Force.
``SEC. 1805. NATIONAL STANDARDS FOR FIRST RESPONDER EQUIPMENT
AND TRAINING.
``(a) Equipment Standards.--
``(1) In general.--The Secretary, in consultation with the Under Secretaries for Emergency Preparedness and Response and Science and Technology and the Director of the Office of State and Local Government Coordination, shall, not later than 6 months after the date of enactment of this section, support the development of, promulgate, and update as necessary national voluntary consensus standards for the performance, use, and validation of first responder equipment for purposes of section 1802(e)(7). Such standards--
``(A) shall be, to the maximum extent practicable, consistent with any existing voluntary consensus standards;
``(B) shall take into account, as appropriate, new types of terrorism threats that may not have been contemplated when such existing standards were developed;
``(C) shall be focused on maximizing interoperability, interchangeability, durability, flexibility, efficiency, efficacy, portability, sustainability, and safety; and
``(D) shall cover all appropriate uses of the equipment.
``(2) Required categories.--In carrying out paragraph (1), the Secretary shall specifically consider the following categories of first responder equipment:
``(A) Thermal imaging equipment.
``(B) Radiation detection and analysis equipment.
``(C) Biological detection and analysis equipment.
``(D) Chemical detection and analysis equipment.
``(E) Decontamination and sterilization equipment.
``(F) Personal protective equipment, including garments, boots, gloves, and hoods, and other protective clothing.
``(G) Respiratory protection equipment.
``(H) Interoperable communications, including wireless and wireline voice, video, and data networks.
``(I) Explosive mitigation devices and explosive detection and analysis equipment.
``(J) Containment vessels.
``(K) Contaminant-resistant vehicles.
``(L) Such other equipment for which the Secretary determines that national voluntary consensus standards would be appropriate.
``(b) Training Standards.--
``(1) In general.--The Secretary, in consultation with the Under Secretaries for Emergency Preparedness and Response and Science and Technology and the Director of the Office of State and Local Government Coordination, shall support the development of, promulgate, and regularly update as necessary national voluntary consensus standards for first responder training carried out with amounts provided under covered grant programs, that will enable State and local government first responders to achieve optimal levels of terrorism preparedness as quickly as practicable. Such standards shall give priority to providing training to--
``(A) enable first responders to prevent, prepare for, respond to, and mitigate terrorist threats, including threats from chemical, biological, nuclear, and radiological weapons and explosive devices capable of inflicting significant human casualties; and
``(B) familiarize first responders with the proper use of equipment, including software, developed pursuant to the standards established under subsection (a).
``(2) Required categories.--In carrying out paragraph (1), the Secretary specifically shall include the following categories of first responder activities:
``(A) Regional planning.
``(B) Joint exercises.
``(C) Intelligence collection, analysis, and sharing.
``(D) Emergency notification of affected populations.
``(E) Detection of biological, nuclear, radiological, and chemical weapons of mass destruction.
``(F) Such other activities for which the Secretary determines that national voluntary consensus training standards would be appropriate.
``(3) Consistency.--In carrying out this subsection, the Secretary shall ensure that such training standards are consistent with the principles of emergency preparedness for all hazards.
``(c) Consultation With Standards Organizations.--In establishing national voluntary consensus standards for first responder equipment and training under this section, the Secretary shall consult with relevant public and private sector groups, including--
``(1) the National Institute of Standards and Technology;
``(2) the National Fire Protection Association;
``(3) the National Association of County and City Health Officials;
``(4) the Association of State and Territorial Health Officials;
``(5) the American National Standards Institute;
``(6) the National Institute of Justice;
``(7) the Inter-Agency Board for Equipment Standardization and Interoperability;
``(8) the National Public Health Performance Standards Program;
``(9) the National Institute for Occupational Safety and Health;
``(10) ASTM International;
``(11) the International Safety Equipment Association;
``(12) the Emergency Management Accreditation Program;
``(13) the National Domestic Preparedness Consortium; and
``(14) to the extent the Secretary considers appropriate, other national voluntary consensus standards development organizations, other interested Federal, State, and local agencies, and other interested persons.
``(d) Coordination With Secretary of HHS.--In establishing any national voluntary consensus standards under this section for first responder equipment or training that involve or relate to health professionals, including emergency medical professionals, the Secretary shall coordinate activities under this section with the Secretary of Health and Human Services.''.
SEC. 604. EFFECTIVE ADMINISTRATION OF HOMELAND SECURITY
GRANTS.
(a) Use of Grant Funds and Accountability.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by sections 602 and 603, is amended by adding at the end the following:
``SEC. 1806. USE OF FUNDS AND ACCOUNTABILITY REQUIREMENTS.
``(a) In General.--A covered grant may be used for--
``(1) purchasing, upgrading, or maintaining equipment, including computer software, to enhance terrorism preparedness and response;
``(2) exercises to strengthen terrorism preparedness and response;
``(3) training for prevention (including detection) of, preparedness for, or response to attacks involving weapons of mass destruction, including training in the use of equipment and computer software;
``(4) developing or updating response plans;
``(5) establishing or enhancing mechanisms for sharing terrorism threat information;
``(6) systems architecture and engineering, program planning and management, strategy formulation and strategic planning, life-cycle systems design, product and technology evaluation, and prototype development for terrorism preparedness and response purposes;
``(7) additional personnel costs resulting from--
``(A) elevations in the threat alert level of the Homeland Security Advisory System by the Secretary, or a similar elevation in threat alert level issued by a State, region, or local government with the approval of the Secretary;
``(B) travel to and participation in exercises and training in the use of equipment and on prevention activities;
``(C) the temporary replacement of personnel during any period of travel to and participation in exercises and training in the use of equipment and on prevention activities; and
``(D) participation in information, investigative, and intelligence-sharing activities specifically related to terrorism prevention;
``(8) the costs of equipment (including software) required to receive, transmit, handle, and store classified information;
``(9) target hardening to reduce the vulnerability of high-value targets, as determined by the Secretary;
``(10) protecting critical infrastructure against potential attack by the addition of barriers, fences, gates, and other such devices, except that the cost of such measures may not exceed the greater of--
``(A) $1,000,000 per project; or
``(B) such greater amount as may be approved by the Secretary, which may not exceed 10 percent of the total amount of the covered grant;
``(11) the costs of commercially available interoperable communications equipment (which, where applicable, is based on national, voluntary consensus standards) that the Secretary, in consultation with the Chairman of the Federal Communications Commission, deems best suited to facilitate interoperability, coordination, and integration between and among emergency communications systems, and that complies with prevailing grant guidance of the Department for interoperable communications;
``(12) educational curricula development for first responders to ensure that they are prepared for terrorist attacks;
``(13) training and exercises to assist public elementary and secondary schools in developing and implementing programs to instruct students regarding age-appropriate skills to prepare for and respond to an act of terrorism;
``(14) paying of administrative expenses directly related to administration of the grant, except that such expenses may not exceed 3 percent of the amount of the grant; and
``(15) other appropriate activities as determined by the Secretary.
``(b) Prohibited Uses.--Funds provided as a covered grant may not be used--
``(1) to supplant State or local funds that have been obligated for a homeland security or other first responder-related project;
``(2) to construct buildings or other physical facilities, except for--
``(A) activities under section 611 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196); and
``(B) upgrading facilities to protect against, test for, and treat the effects of biological agents, which shall be included in the homeland security plan approved by the Secretary under section 1802(c);
``(3) to acquire land; or
``(4) for any State or local government cost-sharing contribution.
``(c) Multiple-Purpose Funds.--Nothing in this section shall be construed to preclude State and local governments from using covered grant funds in a manner that also enhances first responder preparedness for emergencies and disasters unrelated to acts of terrorism, if such use assists such governments in achieving essential capabilities for terrorism preparedness established by the Secretary under section 1803.
``(d) Reimbursement of Costs.--In addition to the activities described in subsection (a), a covered grant may be used to provide a reasonable stipend to paid-on-call or volunteer first responders who are not otherwise compensated for travel to or participation in training covered by this section. Any such reimbursement shall not be considered compensation for purposes of rendering such a first responder an employee under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).
``(e) Assistance Requirement.--The Secretary may not request that equipment paid for, wholly or in part, with funds provided as a covered grant be made available for responding to emergencies in surrounding States, regions, and localities, unless the Secretary undertakes to pay the costs directly attributable to transporting and operating such equipment during such response.
``(f) Flexibility in Unspent Homeland Security Grant Funds.--Upon request by the recipient of a covered grant, the Secretary may authorize the grantee to transfer all or part of funds provided as the covered grant from uses specified in the grant agreement to other uses authorized under this section, if the Secretary determines that such transfer is in the interests of homeland security.
``(g) State, Regional, and Tribal Responsibilities.--
``(1) Pass-through.--The Secretary shall require a recipient of a covered grant that is a State to obligate or otherwise make available to local governments, first responders, and other local groups, to the extent required under the State homeland security plan or plans specified in the application for the grant, not less than 80 percent of the grant funds, resources purchased with the grant funds having a value equal to at least 80 percent of the amount of the grant, or a combination thereof, by not later than the end of the 45-day period beginning on the date the grant recipient receives the grant funds.
``(2) Certifications regarding distribution of grant funds to local governments.--Any State that receives a covered grant shall certify to the Secretary, by not later than 30 days after the expiration of the period described in paragraph (1) with respect to the grant, that the State has made available for expenditure by local governments, first responders, and other local groups the required amount of grant funds pursuant to paragraph (1).
``(3) Quarterly report on homeland security spending.--Each recipient of a covered grant shall submit a quarterly report to the Secretary not later than 30 days after the end of each fiscal quarter. Each such report shall include, for each recipient of a covered grant or a pass-through under paragraph (1)--
``(A) the amount obligated to that recipient in that quarter;
``(B) the amount expended by that recipient in that quarter; and
``(C) a summary description of the items purchased by such recipient with such amount.
``(4) Annual report on homeland security spending.--Each recipient of a covered grant shall submit an annual report to the Secretary not later than 60 days after the end of each fiscal year. Each recipient of a covered grant that is a region shall simultaneously submit its report to each State of which any part is included in the region. Each recipient of a covered grant that is a directly eligible tribe shall simultaneously submit its report to each State within the boundaries of which any part of such tribe is located. Each report shall include the following:
``(A) The amount, ultimate recipients, and dates of receipt of all funds received under the grant during the previous fiscal year.
``(B) The amount and the dates of disbursements of all such funds expended in compliance with paragraph (1) or pursuant to mutual aid agreements or other sharing arrangements that apply within the State, region, or directly eligible tribe, as applicable, during the previous fiscal year.
``(C) How the funds were utilized by each ultimate recipient or beneficiary during the preceding fiscal year.
``(D) The extent to which essential capabilities identified in the applicable State homeland security plan or plans were achieved, maintained, or enhanced as the result of the expenditure of grant funds during the preceding fiscal year.
``(E) The extent to which essential capabilities identified in the applicable State homeland security plan or plans remain unmet.
``(5) Inclusion of restricted annexes.--A recipient of a covered grant may submit to the Secretary an annex to the annual report under paragraph (4) that is subject to appropriate handling restrictions, if the recipient believes that discussion in the report of unmet needs would reveal sensitive but unclassified information.
``(6) Provision of reports.--The Secretary shall ensure that each annual report under paragraph (4) is provided to the Under Secretary for Emergency Preparedness and Response and the Director of the Office of State and Local Government Coordination.
``(h) Incentives to Efficient Administration of Homeland Security Grants.--
``(1) Penalties for delay in passing through local share.--If a recipient of a covered grant that is a State fails to pass through to local governments, first responders, and other local groups funds or resources required by subsection
(g)(1) within 45 days after receiving funds under the grant, the Secretary may--
``(A) reduce grant payments to the grant recipient from the portion of grant funds that is not required to be passed through under subsection (g)(1);
``(B) terminate payment of funds under the grant to the recipient, and transfer the appropriate portion of those funds directly to local first responders that were intended to receive funding under that grant; or
``(C) impose additional restrictions or burdens on the recipient's use of funds under the grant, which may include--
``(i) prohibiting use of such funds to pay the grant recipient's grant-related overtime or other expenses;
``(ii) requiring the grant recipient to distribute to local government beneficiaries all or a portion of grant funds that are not required to be passed through under subsection
(g)(1); or
``(iii) for each day that the grant recipient fails to pass through funds or resources in accordance with subsection
(g)(1), reducing grant payments to the grant recipient from the portion of grant funds that is not required to be passed through under subsection (g)(1), except that the total amount of such reduction may not exceed 20 percent of the total amount of the grant.
``(2) Extension of period.--The Governor of a State may request in writing that the Secretary extend the 45-day period under section 1802(e)(5)(E) or paragraph (1) for an additional 15-day period. The Secretary may approve such a request, and may extend such period for additional 15-day periods, if the Secretary determines that the resulting delay in providing grant funding to the local government entities that will receive funding under the grant will not have a significant detrimental impact on such entities' terrorism preparedness efforts.
``(3) Provision of non-local share to local government.--
``(A) In general.--The Secretary may upon request by a local government pay to the local government a portion of the amount of a covered grant awarded to a State in which the local government is located, if--
``(i) the local government will use the amount paid to expedite planned enhancements to its terrorism preparedness as described in any applicable State homeland security plan or plans;
``(ii) the State has failed to pass through funds or resources in accordance with subsection (g)(1); and
``(iii) the local government complies with subparagraph
(B).
``(B) Showing required.--To receive a payment under this paragraph, a local government must demonstrate that--
``(i) it is identified explicitly as an ultimate recipient or intended beneficiary in the approved grant application;
``(ii) it was intended by the grantee to receive a severable portion of the overall grant for a specific purpose that is identified in the grant application;
``(iii) it petitioned the grantee for the funds or resources after expiration of the period within which the funds or resources were required to be passed through under subsection (g)(1); and
``(iv) it did not receive the portion of the overall grant that was earmarked or designated for its use or benefit.
``(C) Effect of payment.--Payment of grant funds to a local government under this paragraph--
``(i) shall not affect any payment to another local government under this paragraph; and
``(ii) shall not prejudice consideration of a request for payment under this paragraph that is submitted by another local government.
``(D) Deadline for action by secretary.--The Secretary shall approve or disapprove each request for payment under this paragraph by not later than 15 days after the date the request is received by the Department.
``(i) Reports to Congress.--The Secretary shall submit an annual report to Congress by December 31 of each year--
``(1) describing in detail the amount of Federal funds provided as covered grants that were directed to each State, region, and directly eligible tribe in the preceding fiscal year;
``(2) containing information on the use of such grant funds by grantees; and
``(3) describing--
``(A) the Nation's progress in achieving, maintaining, and enhancing the essential capabilities established under section 1803(a) as a result of the expenditure of covered grant funds during the preceding fiscal year; and
``(B) an estimate of the amount of expenditures required to attain across the United States the essential capabilities established under section 1803(a).''.
(b) Sense of Congress Regarding Interoperable Communications.--
(1) Finding.--Congress finds that--
(A) many emergency response providers (as defined under section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101), as amended by this title) working in the same jurisdiction or in different jurisdictions cannot effectively and efficiently communicate with one another; and
(B) their inability to do so threatens the public's safety and may result in unnecessary loss of lives and property.
(2) Sense of congress.--It is the sense of Congress that interoperable emergency communications systems and radios should continue to be deployed as soon as practicable for use by the emergency response provider community, and that upgraded and new digital communications systems and new digital radios must meet prevailing national voluntary consensus standards for interoperability.
(c) Sense of Congress Regarding Citizen Corps Councils.--
(1) Finding.--Congress finds that Citizen Corps councils help to enhance local citizen participation in terrorism preparedness by coordinating multiple Citizen Corps programs, developing community action plans, assessing possible threats, and identifying local resources.
(2) Sense of congress.--It is the sense of Congress that individual Citizen Corps councils should seek to enhance the preparedness and response capabilities of all organizations participating in the councils, including by providing funding to as many of their participating organizations as practicable to promote local terrorism preparedness programs.
(d) Required Coordination.--The Secretary of Homeland Security shall ensure that there is effective and ongoing coordination of Federal efforts to prevent, prepare for, and respond to acts of terrorism and other major disasters and emergencies among the divisions of the Department of Homeland Security, including the Directorate of Emergency Preparedness and Response and the Office for State and Local Government Coordination and Preparedness.
(e) Coordination of Industry Efforts.--Section 102(f) of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 112(f)) is amended by striking ``and'' after the semicolon at the end of paragraph (6), by striking the period at the end of paragraph (7) and inserting ``; and'', and by adding at the end the following:
``(8) coordinating industry efforts, with respect to functions of the Department of Homeland Security, to identify private sector resources and capabilities that could be effective in supplementing Federal, State, and local government agency efforts to prevent or respond to a terrorist attack.''.
(f) Study Regarding Nationwide Emergency Notification System.--
(1) Study.--The Secretary of Homeland Security, in consultation with the heads of other appropriate Federal agencies and representatives of providers and participants in the telecommunications industry, shall conduct a study to determine whether it is cost effective, efficient, and feasible to establish and implement an emergency telephonic alert notification system that will--
(A) alert persons in the United States of imminent or current hazardous events caused by acts of terrorism; and
(B) provide information to individuals regarding appropriate measures that may be undertaken to alleviate or minimize threats to their safety and welfare posed by such events.
(2) Technologies to consider.--In conducting the study under paragraph (1), the Secretary shall consider the use of the telephone, wireless communications, and other existing communications networks to provide such notification.
(3) Report.--Not later than 9 months after the date of enactment of this title, the Secretary shall submit to Congress a report regarding the conclusions of the study conducted under paragraph (1).
(g) Study of Expansion of Area of Jurisdiction of Office of National Capital Region Coordination.--
(1) Study.--The Secretary of Homeland Security, acting through the Director of the Office of National Capital Region Coordination, shall conduct a study of the feasibility and desirability of modifying the definition of ``National Capital Region'' applicable under section 882 of the Homeland Security Act of 2002 to expand the geographic area under the jurisdiction of the Office of National Capital Region Coordination.
(2) Factors.--In conducting the study under paragraph (1), the Secretary shall analyze whether expanding the geographic area under the jurisdiction of the Office of National Region Coordination will--
(A) promote coordination among State and local governments within the Region, including regional governing bodies, and coordination of the efforts of first responders; and
(B) enhance the ability of such State and local governments and the Federal Government to prevent and respond to a terrorist attack within the Region.
(3) Report.--Not later than 6 months after the date of the enactment of this title, the Secretary shall submit a report to Congress on the study conducted under paragraph (1), and shall include in the report such recommendations (including recommendations for legislation to amend section 882 of the Homeland Security Act of 2002) as the Secretary considers appropriate.
SEC. 605. IMPLEMENTATION; DEFINITIONS; TABLE OF CONTENTS.
(a) Technical and Conforming Amendment.--Section 1014 of the USA PATRIOT ACT (42 U.S.C. 3714) is amended--
(1) by striking subsection (c)(3);
(2) by redesignating subsection (c) as subsection (d); and
(3) by inserting after subsection (b) the following:
``(c) Administration.--Grants under this section shall be administered in accordance with title 18 of the Homeland Security Act of 2002.''.
(b) Temporary Limitations on Application.--
(1) 1-year delay in application.--The following provisions of title XVIII of the Homeland Security Act of 2002, as added by this title, shall not apply during the 1-year period beginning on the date of enactment of this title--
(A) subsections (b), (c), and (e)(4) (A) and (B) of section 1802; and
(B) in section 1802(f)(3)(A)(i), the phrase ``by achieving, maintaining, or enhancing the essential capabilities of the applicants on a nationwide basis,''.
(2) 2-year delay in application.--The following provisions of title XVIII of the Homeland Security Act of 2002, as added by this title, shall not apply during the 2-year period beginning on the date of enactment of this title--
(A) subparagraphs (D) and (E) of section 1806(g)(4); and
(B) section 1806(i)(3).
(c) Definitions.--
(1) Title xviii.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by sections 602, 603, and 604, is amended by adding at the end the following:
``SEC. 1807. DEFINITIONS.
``In this title:
``(1) Board.--The term `Board' means the Homeland Security Grants Board established under section 1802(f).
``(2) Consequence.--The term `consequence' means the assessment of the effect of a completed attack.
``(3) Covered grant.--The term `covered grant' means any grant to which this title applies under section 1801(b).
``(4) Directly eligible tribe.--The term `directly eligible tribe' means any Indian tribe or consortium of Indian tribes that--
``(A) meets the criteria for inclusion in the qualified applicant pool for self-governance that are set forth in section 402(c) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 458bb(c));
``(B) employs at least 10 full-time personnel in a law enforcement or emergency response agency with the capacity to respond to calls for law enforcement or emergency services; and
``(C)(i) is located on, or within 5 miles of, an international border or waterway;
``(ii) is located within 5 miles of a facility designated as high-risk critical infrastructure by the Secretary;
``(iii) is located within or contiguous to 1 of the 50 largest metropolitan statistical areas in the United States; or
``(iv) has more than 1,000 square miles of Indian country, as that term is defined in section 1151 of title 18, United States Code.
``(5) Elevations in the threat alert level.--The term
`elevations in the threat alert level' means any designation
(including those that are less than national in scope) that raises the homeland security threat level to either the highest or second-highest threat level under the Homeland Security Advisory System referred to in section 201(d)(7).
``(6) Emergency preparedness.--The term `emergency preparedness' shall have the same meaning that term has under section 602 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195a).
``(7) Essential capabilities.--The term `essential capabilities' means the levels, availability, and competence of emergency personnel, planning, training, and equipment across a variety of disciplines needed to effectively and efficiently prevent, prepare for, and respond to acts of terrorism consistent with established practices.
``(8) First responder.--The term `first responder' shall have the same meaning as the term `emergency response provider' under section 2.
``(9) Indian tribe.--The term `Indian tribe' means any Indian tribe, band, nation, or other organized group or community, including any Alaskan Native village or regional or village corporation as defined in or established pursuant to the Alaskan Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
``(10) Region.--The term `region' means any geographic area--
``(A) certified by the Secretary under section 1802(a)(3);
``(B) consisting of all or parts of 2 or more counties, municipalities, or other local governments and including a city with a core population exceeding 500,000 according to the most recent estimate available from the United States Census; and
``(C) that, for purposes of an application for a covered grant--
``(i) is represented by 1 or more local governments or governmental agencies within such geographic area; and
``(ii) is established by law or by agreement of 2 or more such local governments or governmental agencies, such as through a mutual aid agreement.
``(11) Risk-based funding.--The term `risk-based funding' means the allocation of funds based on an assessment of threat, vulnerability, and consequence.
``(12) Task force.--The term `Task Force' means the Task Force on Essential Capabilities established under section 1804.
``(13) Threat.--The term `threat' means the assessment of the plans, intentions, and capability of an adversary to implement an identified attack scenario.
``(14) Vulnerability.--The term `vulnerability' means the degree to which a facility is available or accessible to an attack, including the degree to which the facility is inherently secure or has been hardened against such an attack.''.
(2) Definition of emergency response providers.--Paragraph
(6) of section 2 of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 101(6)) is amended by striking
``includes'' and all that follows and inserting ``includes Federal, State, and local governmental and nongovernmental emergency public safety, law enforcement, fire, emergency response, emergency medical (including hospital emergency facilities), and related personnel, organizations, agencies, and authorities.''.
(d) Table of Contents.--Section 1(b) of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 101 note) is amended in the table of contents by adding at the end the following:
``TITLE XVIII--RISK-BASED FUNDING FOR HOMELAND SECURITY
``Sec. 1801. Risk-based funding for homeland security.
``Sec. 1802. Covered grant eligibility and criteria.
``Sec. 1803. Essential capabilities for homeland security.
``Sec. 1804. Task Force on Essential Capabilities.
``Sec. 1805. National standards for first responder equipment and training.
``Sec. 1806. Use of funds and accountability requirements.
``Sec. 1807. Definitions.''.
______
SA 1204. Mr. KYL (for himself and Mr. Cornyn) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
TITLE __---BORDER ENFORCEMENT AND VISA SECURITY
Sec. _01.(a) Not later than December 31, 2006, the Secretary of Homeland Security shall make the expedited removal procedures under section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) available in all border patrol sectors on the borders of the United States.
(b) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A)(i)) is amended by inserting ``a supervisory'' before ``officer shall''.
Sec. _02.(a) The Secretary of Homeland Security shall provide all customs and border protection officers with training in identifying and detecting fraudulent travel documents. Such training shall be developed in consultation with the Forensic Document Laboratory of the Immigration and Customs Enforcement.
(b) The Secretary of Homeland Security shall provide all customs and border protection officers with access to the Forensic Document Laboratory.
Sec. _03. Section 303 of Public Law 107-173 (8 U.S.C. 1732) is amended--
(1) in the header, by striking ``ENTRY AND EXIT DOCUMENTS'' and inserting ``TRAVEL AND ENTRY DOCUMENTS AND EVIDENCE OF STATUS'';
(2) in subsection (b)(1)--
(A) by striking ``Not later than October 26, 2004, the Attorney General'' and inserting ``The Secretary of Homeland Security''; and
(B) by striking ``visas and'' each place it appears and inserting ``visas, evidence of status, and'';
(3) by redesignating subsection (d) as subsection (e); and
(4) by inserting after subsection (c) the following:
``(d) Other Documents.--Not later than October 26, 2007, every document, other than an interim document, issued by the Department of Homeland Security, which may be used as evidence of immigrant, nonimmigrant, parole, asylee, or refugee status, shall be machine-readable, tamper-resistant, and allow biometric authentication.''.
Sec. _04. Section 222(g) of the Immigration and Nationality Act (8 U.S.C. 1202(g)) is amended--
(1) in paragraph (1), by inserting ``and any other nonimmigrant visa issued by the United States that is in the possession of the alien'' after ``such visa''; and
(2) in paragraph (2)(A), by striking ``(other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality'' and inserting ``(other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality or foreign residence''.
Sec. _05.(a) Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended--
(1) in subsection (a)(7), by adding at the end the following:
``(C) Withholders of biometric data.--Any alien who fails to comply with a lawful request for biometric data under section 215(c) or 235(d) is inadmissible.''; and
(2) in subsection (d), by inserting after paragraph (1) the following:
``(2) The Secretary of Homeland Security shall determine whether a ground for inadmissibility exists with respect to an alien described in subparagraph (C) subsection (a)(7) and may waive the application of such subparagraph, for an individual alien or a class of aliens, at the discretion of the Secretary.''.
(b) Section 215 of the Immigration and Nationality Act (8 U.S.C. 1185) is amended--
(1) by redesignating subsection (c) as subsection (g); and
(2) by inserting after subsection (b) the following:
``(c) The Secretary of Homeland Security is authorized to require aliens departing the United States to provide biometric data and other information relating to their immigration status.''.
(c) Section 235(d) of the Immigration and Nationality Act
(8 U.S.C. 1185(d)) is amended by adding at the end the following:
``(5) Authority to collect biometric data.--In conducting inspections under subsection (b), immigration officers are authorized to collect biometric data from--
``(A) any applicant for admission or alien seeking to transit through the United States; or
``(B) any lawful permanent resident who is entering the United States, but is not regarded as seeking admission under section 101(a)(13)(C).''.
(d) Section 252 of the Immigration and Nationality Act (8 U.S.C. 1282) is amended by inserting ``Immigration officers are authorized to collect biometric data from any alien crewman seeking permission to land temporarily in the United States.'' after ``this title.''.
(e) Not later than 6 months after the date of enactment of this Act, the Secretary shall submit a report to Congress on the full implementation of the exit portion of US-VISIT.
Sec. _06.(a) Section 236(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)) is amended--
(1) by striking ``on'';
(2) in subparagraph (A)--
(A) by inserting ``except as provided under subparagraph
(B), upon the giving of a''; and
(B) by striking ``or'' at the end;
(3) by redesignating subparagraph (B) as subparagraph (C); and
(4) by inserting after subparagraph (A) the following:
``(B) if the alien is a national of a noncontiguous country, has not been admitted or paroled into the United States, and was apprehended within 100 miles of the international border of the United States or presents a flight risk, as determined by the Secretary of Homeland Security, upon the giving of a bond of at least $5,000 with security approved by, and containing conditions prescribed by, the Secretary of Homeland Security or the Attorney General; or''.
(b) Not later than 2 years after the effective date of this Act, the Secretary of Homeland Security shall submit a report to Congress that summarizes the implementation of the amendment made by subsection (a).
Sec. _07. Section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253(d)) is amended--
(1) by striking ``On being notified'' and inserting the following:
``(1) In general.--Upon notification''; and
(2) by striking ``Attorney General'' each place it appears and inserting ``Secretary of Homeland Security''; and
(3) by adding at the end the following:
``(2) Denial of admission.--The Secretary of Homeland Security, after making a determination that the government of a foreign country has denied or unreasonably delayed accepting an alien who is a citizen, subject, national, or resident of that country after the alien has been ordered removed, and after consultation with the Secretary of State, may deny admission to any citizen, subject, national or resident of that country until the country accepts the alien that was ordered removed.''.
Sec. _08.(a) Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended--
(1) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security''; and
(2) by adding at the end the following: ``Reinstatement under this paragraph shall not require a proceeding under section 240.''.
(b)(1) The amendment made by subsection (a)(1) shall take effect as if enacted on March 1, 2003.
(2) The amendments made by subsection (a) shall take effect on September 30, 1996, as if included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(Division C of Public Law 104-208).
Sec. _09.(a) The Attorney General and the Secretary of Homeland Security shall continue to operate and implement the Institutional Removal Program, which identifies removable criminal aliens in Federal and State correctional facilities, ensures such aliens are not released into the community, and removes such aliens from the United States after the completion of their sentences.
(b) The Institutional Removal Program shall be made available to all States.
(c) Law enforcement officers of a State or political subdivision of a State are authorized to hold an illegal alien for a period of up to 14 days after the alien has completed the alien's State prison sentence in order to effectuate the transfer of the alien to Federal custody when the alien is removable or not lawfully present in the United States.
(d) Technology, such as videoconferencing, shall be used to the maximum extent practicable in order to make the Institutional Removal Program available to facilities in remote locations.
______
SA 1205. Mr. SHELBY (for himself, Mr. Sarbanes, Mr. Reed, Mrs. Dole, Mr. Dodd, Mr. Schumer, Ms. Stabenow, Mr. Corzine, Mr. Byrd, Mrs. Clinton, Mr. Lieberman, Ms. Mikulski, Mr. Lautenberg, Mr. Kennedy, and Mr. Kerry) submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 77, line 18, strike ``$2,694,300,000'' and insert
``$3,760,300,000''.
On page 78, strike line 25 and all that follows through
``(E)'' on page 79, line 5, and insert the following:
``security grants; and
``(D)''.
On page 79, between 22 and 23, insert the following:
(7) $1,166,000,000 for transit security grants, of which--
(A) $790,000,000 shall be for grants for public transportation agencies for allowable capital security improvements;
(B) $333,000,000 shall be for grants for public transportation agencies for allowable operational security improvements; and
(C) $43,000,000 shall be for grants to public or private entities to conduct research into, and demonstration of, technologies and methods to reduce and deter terrorist threats or mitigate damages resulting from terrorist attacks against public transportation systems:
______
SA 1206. Mr. SARBANES submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 83, line 26, strike the period at the end and insert ``: Provided further, That of the total amount made available under this heading, $52,600,000 shall be for the United States Fire Administration.''.
______
SA 1207. Mr. SALAZAR submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
Sec. __. (a) Not later than September 30, 2006, the Secretary of Homeland Security shall submit a report to the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Homeland Security of the House of Representatives that includes--
(1) the results of the survey under subsection (c); and
(2) a plan to implement changes to address problems identified in the survey.
(b) Not later than June 30, 2006, the Secretary of Homeland Security shall submit an interim report to the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Homeland Security of the House of Representatives on the specific design of the survey under subsection (c).
(c) In preparing the report under subsection (a), the Secretary of Homeland Security shall conduct a survey of State and local government emergency officials that--
(1) involve enough respondents to get an adequate, representational response from police, fire, medical, and emergency planners on the regional, State, county, and municipal levels, and other State and local homeland security officials as determined by the Secretary; and
(2) identifies problems relating to the effectiveness and user-friendliness of programs in which the Department of Homeland Security interacts with State and local officials, including grant management, intelligence sharing, training, incident management, regional coordination, critical infrastructure prioritization, and long-term homeland security planning.
______
SA 1208. Mr. CORZINE submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place insert the following:
(a) Findings.--The Senate finds that--
(1) On February 6, 2002, Director of Central Intelligence George Tenet testified that ``[A]l Qaeda or other terrorist groups might also try to launch conventional attacks against the chemical or nuclear industrial infrastructure of the United States to cause widespread toxic or radiological damage.''
(2) On April 27, 2005, the GAO found that ``Experts agree that the nation's chemical facilities present an attractive target for terrorists intent on causing massive damage. For example, the Department of Justice has concluded that the risk of an attempt in the foreseeable future to cause an industrial chemical release is both real and credible. Terrorist attacks involving the theft or release of certain chemicals could significantly impact the health and safety of millions of Americans, disrupt the local or regional economy, or impact other critical infrastructures that rely on chemicals, such as drinking water and wastewater treatment systems.''
(3) As of May 2005, according to data collected pursuant to the Risk Management Plan (RMP) of the Environmental Protection Agency (EPA), a worst-case release of chemicals from 2237 facilities would potentially affect between 10,000 and 99,999 people, a release from 493 facilities would potentially affect between 100,000 and 999,000, and a release from 111 facilities would potentially affect over one million.
(4) On April 27, 2005, the GAO found that EPA RMP data was based on a release from a single vessel or pipe rather than the entire quantity on site and that ``[A]n attack that breached multiple chemical vessels simultaneously could result in a larger release with potentially more severe consequences than those outlined in 'worst-case' scenarios.''
(5) On April 27, 2005, the GAO found that ``Despite efforts by DHS to assess facility vulnerabilities and suggest security improvements, no one has comprehensively assessed security at facilities that house chemicals nationwide.'' GAO further testified that ``EPA officials estimated in 2003, that voluntary initiatives led by industry associations only reach a portion of the 15,000 RMP facilities. Further, EPA and DHS have stated publicly that voluntary efforts alone are not sufficient to assure the public of the industry's preparedness.''
(6) On June 15, 2005, Thomas P. Dunne, Deputy Assistant Administrator for the Office of Solid Waste and Emergency Response of the EPA testified that ``[O]n1y a fraction of U.S. hazardous chemical facilities are currently subject to Federal security requirements'' and that ``we cannot be sure that every high-risk chemical facility has taken voluntary action to secure itself against terrorism.''
(7) On June 15, 2005, Robert Stephan, Acting Undersecretary for Information Analysis and Infrastructure Protection and Assistant Secretary for Infrastructure Protection at the Department of Homeland Security testified that that the Department ``has concluded that from the regulatory perspective, the existing patchwork of authorities does not permit us to regulate the industry effectively.'' Stephen further testified that ``[I]t has become clear that the entirely voluntary efforts of [chemical facility] companies alone will not sufficiently address security for the entire sector'' and that ``The Department should develop enforceable performance standards . . .''
(8) The Senate Committee on Homeland Security and Governmental Affairs, through a series of valuable and wide-ranging hearings, has demonstrated bipartisan commitment to effective Congressional action to protect Americans against a possible terrorist attack against chemical facilities.
(b) Sense of the Senate.--It is the Sense of the Senate that the Congress should pass legislation establishing enforceable federal standards to protect against a terrorist attack on chemical facilities within the United States.
______
SA 1209. Mr. SALAZAR submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. QUADRENNIAL HOMELAND DEFENSE REVIEW.
(a) In General.--
(1) Frequency and scope.--Beginning in fiscal year 2008, and every 4 years thereafter, the Secretary of Homeland Security shall conduct every 4 years, during a year following a year evenly divisible by 4, a comprehensive examination of the national homeland defense strategy, inter-agency cooperation, preparedness of Federal response assets, infrastructure, budget plan, and other elements of the homeland defense program and policies of the United States with a view toward determining and expressing the homeland defense strategy of the United States and establishing a homeland defense program for the next 20 years. Each review under this paragraph shall be known as the ``quadrennial homeland defense review''.
(2) Consultation.--Each quadrennial homeland defense review under paragraph (1) shall be conducted in consultation with the Attorney General of the United States and the Secretaries of State, Defense, Health and Human Services, and the Treasury.
(b) Contents of Review.--Each quadrennial homeland defense review shall--
(1) delineate a national homeland defense strategy consistent with the most recent National Response Plan prepared under Homeland Security Presidential Directive 5 or any directive meant to replace or augment that directive;
(2) describe the inter-agency cooperation, preparedness of Federal response assets, infrastructure, budget plan, and other elements of the homeland defense program and policies of the United States associated with that national homeland defense strategy required to execute successfully the full range of missions called for in the national homeland defense strategy delineated under paragraph
(1); and
(3) identify--
(A) the budget plan required to provide sufficient resources to successfully execute the full range of missions called for in that national homeland defense strategy at a low-to-moderate level of risk, and
(B) any additional resources required to achieve such a level of risk.
(c) Level of Risk.--The assessment of the level of risk for purposes of subsection (b)(3) shall be conducted by the Director of National Intelligence.
(d) Reporting.--
(1) In general.--The Secretary of Homeland Security shall submit a report regarding each quadrennial homeland defense review to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives. The report shall be submitted not later than September 30 of the year in which the review is conducted.
(2) Contents of report.--The report submitted under paragraph (1) shall include--
(A) the results of the quadrennial homeland defense review;
(B) the threats to the assumed or defined national homeland security interests of the United States that were examined for the purposes of the review and the scenarios developed in the examination of those threats;
(C) the status of cooperation among Federal agencies in the effort to promote national homeland security;
(D) the status of cooperation between the Federal Government and State governments in preparing for emergency response to threats to national homeland security, and
(E) any other matter the Secretary of Homeland Security considers appropriate.
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SA 1210. Mr. SALAZAR submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
SEC. 519. RAIL TUNNEL SECURITY RESEARCH.
(a) Findings.--The Senate finds that--
(1) railroad tunnels, and underground stations have been identified as particularly high risk terrorist targets because of the potential for large passenger volumes, confined spaces, relatively unrestricted access, and the potential for network disruptions and significant economic, political and social impact;
(2) many rail tunnels have safety problems including structural deficiencies, ventilation problems, lack of communications equipment and insufficient emergency access and exits;
(3) there are more than 898 miles of rail tunnels in transit systems across the country;
(4)(A) security experts have identified a number of technology and training needs to prevent attacks on tunnels and to mitigate and remediate the impact of such attacks;
(B) technological needs include detection systems, dispersal control, and decontamination techniques; and
(C) training for emergency response to a variety of scenarios is also needed; and
(5) the Department of Transportations Transportation Technology Center in Pueblo, Colorado--
(A) is one of the Nation's largest and most advanced rail safety research centers in the Nation; and
(B) offers full-scale testing, dynamic modeling, performance monitoring, technical analyses, feasibility and economic studies as well as training classes to prepare first responders and test new safety technologies.
(b) Sense of the Senate.--It is the sense of the Senate that--
(1) the Department of Homeland Security is urged to invest in research to promote tunnel rail safety as well as training to ensure first responders are prepared to respond to rail tunnel emergencies; and
(2) employing existing Federal facilities in this effort can result in efficiencies and permit this important research to proceed at decreased cost to the taxpayer and with minimal interference with ongoing passenger and freight rail traffic.
______
SA 1211. Mrs. BOXER submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. . INTEROPERABLE COMMUNICATION.
On page 79, strikes lines 21 and 22 and insert in lieu thereof the following:
(6) $374,300,000 for training, exercises, technical assistance, and other programs: Provided, That not less than
$65,400,000 shall be used by States, units of local government, local law enforcement agencies, and local fire departments to purchase or improve communication systems to allow for real-time, interoperable communication between first responders
______
SA 1212. Ms. STABENOW submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 56, line 19, strike ``$124,620,000'' and insert
``$115,160,000''.
On page 57, line 1, strike ``$146,322,000'' and insert
``$135,572,000''.
On page 57, line 17, strike ``$18,325,000'' and insert
``$17,035,000''.
On page 57, line 22, strike ``$286,540,000'' and insert
``$265,040,000''.
On page 77, line 18, strike ``$2,694,300,000'' and insert
``2,737,300,000''.
On page 79, line 22, strike the colon and insert a period.
On page 79, between lines 22 and 23, insert the following:
(7) $43,000,000 for non-urban communities that are not eligible for the Urban Area Security Initiative grants, distributed at the discretion of the Secretary of Homeland Security based on risks, threats, and vulnerabilities. When distributing these funds the Secretary should consider and give preference to communities with close proximity to international borders, chemical facilities, nuclear power facilities, inland waterway infrastructure, rail transportation infrastructure and major U.S. water and land ports and airports:
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SA 1213. Ms. STABENOW submitted an amendment intended to be proposed by her to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 56, line 19, strike ``$124,620,000'' and insert
``$115,160,000''.
On page 57, line 1, strike ``$146,322,000'' and insert
``$135,572,000''.
On page 57, line 17, strike ``$18,325,000'' and insert
``$17,035,000''.
On page 57, line 22, strike ``$286,540,000'' and insert
``$265,040,000''.
On page 77, line 18, strike ``$2,694,300,000'' and insert
``2,737,300,000''.
On page 79, line 22, strike the colon and insert a period.
On page 79, between lines 22 and 23, insert the following:
(7) $43,000,000 for interoperable communications equipment grants:
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SA 1214. Mr. SANTORUM submitted an amendment intended to be proposed by him to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 100, between lines 11 and 12, insert the following:
Sec. 519. (a) Liability Protection.--A person who donates fire control or fire rescue equipment to a volunteer fire company shall not be liable for civil damages under any State or Federal law for personal injuries, property damage or loss, or death caused by the equipment after the donation.
(b) Exceptions.--Subsection (a) does not apply to a person if--
(1) the person's act or omission causing the injury, damage, loss, or death constitutes gross negligence or intentional misconduct; or
(2) the person is the manufacturer of the fire control or fire rescue equipment.
(c) Preemption.--This section preempts the laws of any State to the extent that such laws are inconsistent with this section, except that notwithstanding subsection (b) this section shall not preempt any State law that provides additional protection from liability for a person who donates fire control or fire rescue equipment to a volunteer fire company.
(d) Definitions.--In this section:
(1) Person.--The term ``person'' includes any governmental or other entity.
(2) Fire control or rescue equipment.--The term ``fire control or fire rescue equipment'' includes any fire vehicle, fire fighting tool, communications equipment, protective gear, fire hose, or breathing apparatus.
(3) State.--The term ``State'' includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the Virgin Islands, any other territory or possession of the United States, and any political subdivision of any such State, territory, or possession.
(4) Volunteer fire company.--The term ``volunteer fire company'' means an association of individuals who provide fire protection and other emergency services, where at least 30 percent of the individuals receive little or no compensation compared with an entry level full-time paid individual in that association or in the nearest such association with an entry level full-time paid individual.
(e) Effective Date.--This section applies only to liability for injury, damage, loss, or death caused by equipment that, for purposes of subsection (a), is donated on or after the date that is 30 days after the date of the enactment of this Act.
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SA 1215. Mrs. FEINSTEIN (for herself, Mr. Cornyn, Mr. Lautenberg, Mrs. Boxer, Mrs. Hutchison, Mr. Kerry, Mr. Martinez, Mr. Schumer, Mr. Nelson of Florida, Mrs. Clinton, Mr. Corzine, and Mr. Kennedy) proposed an amendment to amendment SA 1142 proposed by Ms. Collins (for herself, Mr. Lieberman, Mr. DeWine, Mr. Coburn, Mr. Akaka, Mr. Carper, Mr. Salazar, Mr. Coleman, Mr. Voinovich, Mr. Reed, Mr. Bingaman, and Mr. Harkin) to the bill H.R. 2360, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2006, and for other purposes; as follows:
In lieu of the matter proposed to be inserted, insert the following:
TITLE VI--HOMELAND SECURITY GRANT ENHANCEMENT
SEC. 601. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This title may be cited as the ``Funding Our Risks With Appropriate Resource Disbursement Act of 2005'' or the ``Homeland Security FORWARD Funding Act of 2005''.
(b) Table of Contents.--The table of contents for this title is as follows:
Sec. 601. Short title; table of contents.
Sec. 602. Risk-based funding for homeland security.
Sec. 603. Essential capabilities, task forces, and standards.
Sec. 604. Effective administration of homeland security grants.
Sec. 605. Implementation and definitions.
SEC. 602. RISK-BASED FUNDING FOR HOMELAND SECURITY.
(a) Risk-Based Funding in General.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.) is amended by adding at the end the following:
``TITLE XVIII--RISK-BASED FUNDING FOR HOMELAND SECURITY
``SEC. 1801. RISK-BASED FUNDING FOR HOMELAND SECURITY.
``(a) Risk-Based Funding.--The Secretary shall ensure that homeland security grants are allocated based on an assessment of threat, vulnerability, and consequence to the maximum extent practicable.
``(b) Covered Grants.--This title applies to grants provided by the Department to States, regions, or directly eligible tribes for the primary purpose of improving the ability of first responders to prevent, prepare for, respond to, or mitigate threatened or actual terrorist attacks, especially those involving weapons of mass destruction, and grants provided by the Department for improving homeland security, including the following:
``(1) State homeland security grant program.--The State Homeland Security Grant Program of the Department, or any successor to such grant program.
``(2) Urban area security initiative.--The Urban Area Security Initiative of the Department, or any successor to such grant program.
``(3) Law enforcement terrorism prevention program.--The Law Enforcement Terrorism Prevention Program of the Department, or any successor to such grant program.
``(4) Citizen corps program.--The Citizen Corps Program of the Department, or any successor to such grant program.
``(c) Excluded Programs.--This title does not apply to or otherwise affect the following Federal grant programs or any grant under such a program:
``(1) Nondepartment programs.--Any Federal grant program that is not administered by the Department.
``(2) Fire grant programs.--The fire grant programs authorized by sections 33 and 34 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2229, 2229a).
``(3) Emergency management planning and assistance account grants.--The Emergency Management Performance Grant program and the Urban Search and Rescue Grants program authorized by title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.), the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 2000 (113 Stat. 1047 et seq.), and the Earthquake Hazards Reduction Act of 1977 (42 U.S.C. 7701 et seq.).
``(d) Effect on Covered Grants.--Nothing in this Act shall be construed to require the elimination of a covered grant program.''.
(b) Covered Grant Eligibility and Criteria.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by subsection (a), is amended by adding at the end the following:
``SEC. 1802. COVERED GRANT ELIGIBILITY AND CRITERIA.
``(a) Grant Eligibility.--
``(1) In general.--
``(A) General eligibility.--Except as provided in subparagraphs (B) and (C), any State, region, or directly eligible tribe shall be eligible to apply for a covered grant.
``(B) Urban area security initiative.--Only a region shall be eligible to apply for a grant under the Urban Area Security Initiative of the Department, or any successor to such grant program.
``(C) State homeland security grant program.--Only a State shall be eligible to apply for a grant under the State Homeland Security Grant Program of the Department, or any successor to such grant program.
``(2) Other grant applicants.--
``(A) In general.--Grants provided by the Department for improving homeland security, including to seaports, airports, and other transportation facilities, shall be allocated as described in section 1801(a).
``(B) Consideration.--Such grants shall be considered, to the extent determined appropriate by the Secretary, pursuant to the procedures and criteria established in this title, except that the eligibility requirements of paragraph (1) shall not apply.
``(3) Certification of regions.--
``(A) In general.--The Secretary shall certify a geographic area as a region if--
``(i) the geographic area meets the criteria under section 1807(10)(B) and (C); and
``(ii) the Secretary determines, based on an assessment of threat, vulnerability, and consequence, that certifying the geographic area as a region under this title is in the interest of national homeland security.
``(B) Existing urban area security initiative areas.--Notwithstanding subparagraphs (B) and (C) of section 1807(10), a geographic area that, on or before the date of enactment of the Homeland Security FORWARD Funding Act of 2005, was designated as a high-threat urban area for purposes of the Urban Area Security Initiative, shall be certified by the Secretary as a region unless the Secretary determines, based on an assessment of threat, vulnerability, and consequence, that certifying the geographic area as a region is not in the interest of national homeland security.
``(b) Grant Criteria.--In awarding covered grants, the Secretary shall assist States, local governments, and operators of airports, ports, or similar facilities in achieving, maintaining, and enhancing the essential capabilities established by the Secretary under section 1803.
``(c) State Homeland Security Plans.--
``(1) Submission of plans.--The Secretary shall require that any State applying to the Secretary for a covered grant shall submit to the Secretary a 3-year State homeland security plan that--
``(A) demonstrates the extent to which the State has achieved the essential capabilities that apply to the State;
``(B) demonstrates the needs of the State necessary to achieve, maintain, or enhance the essential capabilities that apply to the State;
``(C) includes a prioritization of such needs based on threat, vulnerability, and consequence assessment factors applicable to the State;
``(D) describes how the State intends--
``(i) to address such needs at the city, county, regional, tribal, State, and interstate level, including a precise description of any regional structure the State has established for the purpose of organizing homeland security preparedness activities funded by covered grants;
``(ii) to use all Federal, State, and local resources available for the purpose of addressing such needs; and
``(iii) to give particular emphasis to regional planning and cooperation, including the activities of multijurisdictional planning agencies governed by local officials, both within its jurisdictional borders and with neighboring States;
``(E) is developed in consultation with and subject to appropriate comment by local governments within the State; and
``(F) with respect to the emergency preparedness of first responders, addresses the unique aspects of terrorism as part of a comprehensive State emergency management plan.
``(2) Approval by secretary.--The Secretary may not award any covered grant to a State unless the Secretary has approved the applicable State homeland security plan.
``(d) Consistency With State Plans.--The Secretary shall ensure that each covered grant is used to supplement and support, in a consistent and coordinated manner, the applicable State homeland security plan or plans.
``(e) Application for Grant.--
``(1) In general.--Except as otherwise provided in this subsection, any State, region, directly eligible tribe, or operator of an airport, port, or similar facility may apply for a covered grant by submitting to the Secretary an application at such time, in such manner, and containing such information as is required under this subsection, or as the Secretary may reasonably require.
``(2) Deadlines for applications and awards.--All applications for covered grants shall be submitted at such time as the Secretary may reasonably require for the fiscal year for which they are submitted. The Secretary shall award covered grants pursuant to all approved applications for such fiscal year as soon as practicable, but not later than March 1 of such year.
``(3) Availability of funds.--All funds awarded by the Secretary under covered grants in a fiscal year shall be available for obligation through the end of the subsequent fiscal year.
``(4) Minimum contents of application.--The Secretary shall require that each applicant include in its application, at a minimum--
``(A) the purpose for which the applicant seeks covered grant funds and the reasons why the applicant needs the covered grant to meet the essential capabilities for terrorism preparedness within the State, region, or directly eligible tribe or at the airport, port, or similar facility to which the application pertains;
``(B) a description of how, by reference to the applicable State homeland security plan or plans under subsection (c), the allocation of grant funding proposed in the application, including, where applicable, the amount not passed through under section 1806(g)(1), would assist in fulfilling the essential capabilities specified in such plan or plans;
``(C) a statement of whether a mutual aid agreement applies to the use of all or any portion of the covered grant funds;
``(D) if the applicant is a State, a description of how the State plans to allocate the covered grant funds to regions, local governments, and Indian tribes;
``(E) if the applicant is a region--
``(i) a precise geographical description of the region and a specification of all participating and nonparticipating local governments within the geographical area comprising that region;
``(ii) a specification of what governmental entity within the region will administer the expenditure of funds under the covered grant;
``(iii) a designation of a specific individual to serve as regional liaison; and
``(iv) a description of how the governmental entity administering the expenditure of funds under the covered grant plans to allocate the covered grant funds to States, local governments, and Indian tribes;
``(F) a capital budget showing how the applicant intends to allocate and expend the covered grant funds; and
``(G) if the applicant is a directly eligible tribe, a designation of a specific individual to serve as the tribal liaison.
``(5) Regional applications.--
``(A) Relationship to state applications.--A regional application--
``(i) shall be coordinated with an application submitted by the State or States of which such region is a part;
``(ii) shall supplement and avoid duplication with such State application; and
``(iii) shall address the unique regional aspects of such region's terrorism preparedness needs beyond those provided for in the application of such State or States.
``(B) Opportunity for state review and comment.--
``(i) In general.--To ensure coordination with an application submitted by a State or States, an applicant that is a region shall submit its application to each State within the boundaries of which any part of such region is located for review. Before awarding any covered grant to a region, the Secretary shall provide an opportunity to each State within the boundaries of which any part of such region is located to comment to the Secretary on the consistency of the region's application with the State's homeland security plan. Any such comments and the underlying regional application shall be submitted to the Secretary concurrently with the submission of the State and regional applications.
``(ii) Final authority.--The Secretary shall have final authority to determine the consistency of any application of a region with the applicable State homeland security plan or plans, and to approve any application of such region. The Secretary shall notify each State within the boundaries of which any part of such region is located of the approval of an application by such region.
``(C) Distribution of regional awards.--If the Secretary approves a regional application, then the Secretary shall distribute a regional award to the State or States submitting the applicable regional application under subparagraph (B), and each such State shall, not later than the end of the 45-day period beginning on the date after receiving a regional award, pass through to the region all covered grant funds or resources purchased with such funds, except those funds necessary for the State to carry out its responsibilities with respect to such regional application; Provided That, in no such case shall the State or States pass through to the region less than 80 percent of the regional award.
``(D) Certifications regarding distribution of grant funds to regions.--Any State that receives a regional award under subparagraph (C) shall certify to the Secretary, by not later than 30 days after the expiration of the period described in subparagraph (C) with respect to the grant, that the State has made available to the region the required funds and resources in accordance with subparagraph (C).
``(E) Direct payments to regions.--If any State fails to pass through a regional award to a region as required by subparagraph (C) within 45 days after receiving such award and does not request or receive an extension of such period under section 1806(h)(2), the region may petition the Secretary to receive directly the portion of the regional award that is required to be passed through to such region under subparagraph (C).
``(F) Regional liaisons.--A regional liaison designated under paragraph (4)(E)(iii) shall--
``(i) coordinate with Federal, State, local, regional, and private officials within the region concerning terrorism preparedness;
``(ii) develop a process for receiving input from Federal, State, local, regional, and private sector officials within the region to assist in the development of the regional application and to improve the region's access to covered grants; and
``(iii) administer, in consultation with State, local, regional, and private officials within the region, covered grants awarded to the region.
``(6) Tribal applications.--
``(A) Submission to the state or states.--To ensure the consistency required under subsection (d), an applicant that is a directly eligible tribe shall submit its application to each State within the boundaries of which any part of such tribe is located for direct submission to the Department along with the application of such State or States.
``(B) Opportunity for state comment.--Before awarding any covered grant to a directly eligible tribe, the Secretary shall provide an opportunity to each State within the boundaries of which any part of such tribe is located to comment to the Secretary on the consistency of the tribe's application with the State's homeland security plan. Any such comments shall be submitted to the Secretary concurrently with the submission of the State and tribal applications.
``(C) Final authority.--The Secretary shall have final authority to determine the consistency of any application of a directly eligible tribe with the applicable State homeland security plan or plans, and to approve any application of such tribe. The Secretary shall notify each State within the boundaries of which any part of such tribe is located of the approval of an application by such tribe.
``(D) Tribal liaison.--A tribal liaison designated under paragraph (4)(G) shall--
``(i) coordinate with Federal, State, and private sector officials to assist in the development of the application of such tribe and to improve the tribe's access to covered grants; and
``(ii) administer, in consultation with State, local, regional, and private officials, covered grants awarded to such tribe.
``(E) Limitation on the number of direct grants.--The Secretary may make covered grants directly to not more than 20 directly eligible tribes per fiscal year.
``(F) Tribes not receiving direct grants.--An Indian tribe that does not receive a grant directly under this section is eligible to receive funds under a covered grant from the State or States within the boundaries of which any part of such tribe is located, consistent with the homeland security plan of the State as described in subsection (c). If a State fails to comply with section 1806(g)(1), the tribe may request payment under section 1806(h)(3) in the same manner as a local government.
``(7) Equipment standards.--If an applicant for a covered grant proposes to upgrade or purchase, with assistance provided under the grant, new equipment or systems that do not meet or exceed any applicable national voluntary consensus standards established by the Secretary under section 1805(a), the applicant shall include in the application an explanation of why such equipment or systems will serve the needs of the applicant better than equipment or systems that meet or exceed such standards.
``(f) Homeland Security Grants Board.--
``(1) Establishment of board.--The Secretary shall establish a Homeland Security Grants Board, consisting of--
``(A) the Secretary;
``(B) the Deputy Secretary of Homeland Security;
``(C) the Under Secretary for Emergency Preparedness and Response;
``(D) the Under Secretary for Border and Transportation Security;
``(E) the Under Secretary for Information Analysis and Infrastructure Protection;
``(F) the Under Secretary for Science and Technology; and
``(G) the Director of the Office of State and Local Government Coordination.
``(2) Chairman.--
``(A) In general.--The Secretary shall be the Chairman of the Board.
``(B) Exercise of authorities by deputy secretary.--The Deputy Secretary of Homeland Security may exercise the authorities of the Chairman, if the Secretary so directs.
``(3) Risk-based ranking of grant applications.--
``(A) Prioritization of grants.--The Board--
``(i) shall evaluate and annually prioritize all pending applications for covered grants based upon the degree to which they would, by achieving, maintaining, or enhancing the essential capabilities of the applicants on a nationwide basis, lessen the threat to, vulnerability of, and consequences for persons and critical infrastructure; and
``(ii) in evaluating the threat to persons and critical infrastructure for purposes of prioritizing covered grants, shall give greater weight to threats of terrorism based on their specificity and credibility, including any pattern of repetition.
``(B) Minimum amounts.--
``(i) In general.--After evaluating and prioritizing grant applications under subparagraph (A), the Board shall ensure that, for each fiscal year, each State that has an approved State homeland security plan receives no less than 0.25 percent of the funds available for the State Homeland Security Grant Program, as described in section 1801(b)(1), for that fiscal year for purposes of implementing its homeland security plan in accordance with the prioritization of additional needs under subsection (c)(1)(C).
``(ii) Other entities.--Notwithstanding clause (i), the Board shall ensure that, for each fiscal year, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands each receive 0.08 percent of the funds available for the State Homeland Security Grant Program, as described in section 1801(b)(1), for that fiscal year for purposes of implementing its homeland security plan in accordance with the prioritization of additional needs under subsection (c)(1)(C).
``(4) Functions of under secretaries.--The Under Secretaries referred to in paragraph (1) shall seek to ensure that the relevant expertise and input of the staff of their directorates are available to and considered by the Board.''.
SEC. 603. ESSENTIAL CAPABILITIES, TASK FORCES, AND STANDARDS.
The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by section 602, is amended by adding at the end the following:
``SEC. 1803. ESSENTIAL CAPABILITIES FOR HOMELAND SECURITY.
``(a) Establishment of Essential Capabilities.--
``(1) In general.--For purposes of covered grants, the Secretary shall establish clearly defined essential capabilities for State and local government preparedness for terrorism, in consultation with--
``(A) the Task Force on Essential Capabilities established under section 1804;
``(B) the Under Secretaries for Emergency Preparedness and Response, Border and Transportation Security, Information Analysis and Infrastructure Protection, and Science and Technology, and the Director of the Office of State and Local Government Coordination;
``(C) the Secretary of Health and Human Services;
``(D) other appropriate Federal agencies;
``(E) State and local first responder agencies and officials; and
``(F) consensus-based standard making organizations responsible for setting standards relevant to the first responder community.
``(2) Deadlines.--The Secretary shall--
``(A) establish essential capabilities under paragraph (1) within 30 days after receipt of the report under section 1804(b); and
``(B) regularly update such essential capabilities as necessary, but not less than every 3 years.
``(3) Provision of essential capabilities.--The Secretary shall ensure that a detailed description of the essential capabilities established under paragraph (1) is provided promptly to the States and to Congress. The States shall make the essential capabilities available as necessary and appropriate to local governments and operators of airports, ports, and other similar facilities within their jurisdictions.
``(b) Objectives.--The Secretary shall ensure that essential capabilities established under subsection (a)(1) meet the following objectives:
``(1) Specificity.--The determination of essential capabilities specifically shall describe the training, planning, personnel, and equipment that different types of communities in the Nation should possess, or to which they should have access, in order to meet the Department's goals for terrorism preparedness based upon--
``(A) the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection of the threats of terrorism against the United States;
``(B) the types of threats, vulnerabilities, geography, size, and other factors that the Secretary has determined to be applicable to each different type of community; and
``(C) the principles of regional coordination and mutual aid among State and local governments.
``(2) Flexibility.--The establishment of essential capabilities shall be sufficiently flexible to allow State and local government officials to set priorities based on particular needs, while reaching nationally determined terrorism preparedness levels within a specified time period.
``(3) Measurability.--The establishment of essential capabilities shall be designed to enable measurement of progress toward specific terrorism preparedness goals.
``(4) Comprehensiveness.--The determination of essential capabilities for terrorism preparedness shall be made within the context of a comprehensive State emergency management system.
``(c) Factors To Be Considered.--
``(1) In general.--In establishing essential capabilities under subsection (a)(1), the Secretary specifically shall consider the variables of threat, vulnerability, and consequences with respect to the Nation's population
(including transient commuting and tourist populations) and critical infrastructure. Such consideration shall be based upon the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection of the threats of terrorism against the United States.
``(2) Critical infrastructure sectors.--The Secretary specifically shall consider threats of terrorism against the following critical infrastructure sectors in all areas of the Nation, urban and rural:
``(A) Agriculture.
``(B) Banking and finance.
``(C) Chemical industries.
``(D) The defense industrial base.
``(E) Emergency services.
``(F) Energy.
``(G) Food.
``(H) Government.
``(I) Postal and shipping.
``(J) Public health.
``(K) Information and telecommunications networks.
``(L) Transportation.
``(M) Water.The order in which the critical infrastructure sectors are listed in this paragraph shall not be construed as an order of priority for consideration of the importance of such sectors.
``(3) Types of threat.--The Secretary specifically shall consider the following types of threat to the critical infrastructure sectors described in paragraph (2), and to populations in all areas of the Nation, urban and rural:
``(A) Biological threats.
``(B) Nuclear threats.
``(C) Radiological threats.
``(D) Incendiary threats.
``(E) Chemical threats.
``(F) Explosives.
``(G) Suicide bombers.
``(H) Cyber threats.
``(I) Any other threats based on proximity to specific past acts of terrorism or the known activity of any terrorist group.
The order in which the types of threat are listed in this paragraph shall not be construed as an order of priority for consideration of the importance of such threats.
``(4) Consideration of additional factors.--In establishing essential capabilities under subsection (a)(1), the Secretary shall take into account any other specific threat to a population (including a transient commuting or tourist population) or critical infrastructure sector that the Secretary has determined to exist.
``SEC. 1804. TASK FORCE ON ESSENTIAL CAPABILITIES.
``(a) Establishment.--To assist the Secretary in establishing essential capabilities under section 1803(a)(1), the Secretary shall establish an advisory body pursuant to section 871(a) not later than 60 days after the date of the enactment of this section, which shall be known as the Task Force on Essential Capabilities.
``(b) Report.--
``(1) In general.--The Task Force shall submit to the Secretary, not later than 9 months after its establishment by the Secretary under subsection (a) and every 3 years thereafter, a report on its recommendations for essential capabilities for preparedness for terrorism.
``(2) Contents.--The report shall--
``(A) include a priority ranking of essential capabilities in order to provide guidance to the Secretary and to Congress on determining the appropriate allocation of, and funding levels for, first responder needs;
``(B) set forth a methodology by which any State or local government will be able to determine the extent to which it possesses or has access to the essential capabilities that States and local governments having similar risks should obtain;
``(C) describe the availability of national voluntary consensus standards, and whether there is a need for new national voluntary consensus standards, with respect to first responder training and equipment;
``(D) include such additional matters as the Secretary may specify in order to further the terrorism preparedness capabilities of first responders; and
``(E) include such revisions to the contents of past reports as are necessary to take into account changes in the most current risk assessment available by the Directorate for Information Analysis and Infrastructure Protection or other relevant information as determined by the Secretary.
``(3) Consistency with federal working group.--The Task Force shall ensure that its recommendations for essential capabilities are, to the extent feasible, consistent with any preparedness goals or recommendations of the Federal working group established under section 319F(a) of the Public Health Service Act (42 U.S.C. 247d-6(a)).
``(4) Comprehensiveness.--The Task Force shall ensure that its recommendations regarding essential capabilities for terrorism preparedness are made within the context of a comprehensive State emergency management system.
``(5) Prior measures.--The Task Force shall ensure that its recommendations regarding essential capabilities for terrorism preparedness take into account any capabilities that State or local officials have determined to be essential and have undertaken since September 11, 2001, to prevent or prepare for terrorist attacks.
``(c) Membership.--
``(1) In general.--The Task Force shall consist of 35 members appointed by the Secretary, and shall, to the extent practicable, represent a geographic and substantive cross section of governmental and nongovernmental first responder disciplines from the State and local levels, including as appropriate--
``(A) members selected from the emergency response field, including fire service and law enforcement, hazardous materials response, emergency medical services, and emergency management personnel (including public works personnel routinely engaged in emergency response);
``(B) health scientists, emergency and inpatient medical providers, and public health professionals, including experts in emergency health care response to chemical, biological, radiological, and nuclear terrorism, and experts in providing mental health care during emergency response operations;
``(C) experts from Federal, State, and local governments, and the private sector, representing standards-setting organizations, including representation from the voluntary consensus codes and standards development community, particularly those with expertise in first responder disciplines; and
``(D) State and local officials with expertise in terrorism preparedness, subject to the condition that if any such official is an elected official representing 1 of the 2 major political parties, an equal number of elected officials shall be selected from each such party.
``(2) Coordination with the department of health and human services.--In the selection of members of the Task Force who are health professionals, including emergency medical professionals, the Secretary shall coordinate the selection with the Secretary of Health and Human Services.
``(3) Ex officio members.--The Secretary and the Secretary of Health and Human Services shall each designate 1 or more officers of their respective Departments to serve as ex officio members of the Task Force. One of the ex officio members from the Department of Homeland Security shall be the designated officer of the Federal Government for purposes of subsection (e) of section 10 of the Federal Advisory Committee Act (5 App. U.S.C.).
``(d) Applicability of Federal Advisory Committee Act.--Notwithstanding section 871(a), the Federal Advisory Committee Act (5 U.S.C. App.), including subsections (a),
(b), and (d) of section 10 of such Act, and section 552b(c) of title 5, United States Code, shall apply to the Task Force.
``SEC. 1805. NATIONAL STANDARDS FOR FIRST RESPONDER EQUIPMENT
AND TRAINING.
``(a) Equipment Standards.--
``(1) In general.--The Secretary, in consultation with the Under Secretaries for Emergency Preparedness and Response and Science and Technology and the Director of the Office of State and Local Government Coordination, shall, not later than 6 months after the date of enactment of this section, support the development of, promulgate, and update as necessary national voluntary consensus standards for the performance, use, and validation of first responder equipment for purposes of section 1802(e)(7). Such standards--
``(A) shall be, to the maximum extent practicable, consistent with any existing voluntary consensus standards;
``(B) shall take into account, as appropriate, new types of terrorism threats that may not have been contemplated when such existing standards were developed;
``(C) shall be focused on maximizing interoperability, interchangeability, durability, flexibility, efficiency, efficacy, portability, sustainability, and safety; and
``(D) shall cover all appropriate uses of the equipment.
``(2) Required categories.--In carrying out paragraph (1), the Secretary shall specifically consider the following categories of first responder equipment:
``(A) Thermal imaging equipment.
``(B) Radiation detection and analysis equipment.
``(C) Biological detection and analysis equipment.
``(D) Chemical detection and analysis equipment.
``(E) Decontamination and sterilization equipment.
``(F) Personal protective equipment, including garments, boots, gloves, and hoods, and other protective clothing.
``(G) Respiratory protection equipment.
``(H) Interoperable communications, including wireless and wireline voice, video, and data networks.
``(I) Explosive mitigation devices and explosive detection and analysis equipment.
``(J) Containment vessels.
``(K) Contaminant-resistant vehicles.
``(L) Such other equipment for which the Secretary determines that national voluntary consensus standards would be appropriate.
``(b) Training Standards.--
``(1) In general.--The Secretary, in consultation with the Under Secretaries for Emergency Preparedness and Response and Science and Technology and the Director of the Office of State and Local Government Coordination, shall support the development of, promulgate, and regularly update as necessary national voluntary consensus standards for first responder training carried out with amounts provided under covered grant programs, that will enable State and local government first responders to achieve optimal levels of terrorism preparedness as quickly as practicable. Such standards shall give priority to providing training to--
``(A) enable first responders to prevent, prepare for, respond to, and mitigate terrorist threats, including threats from chemical, biological, nuclear, and radiological weapons and explosive devices capable of inflicting significant human casualties; and
``(B) familiarize first responders with the proper use of equipment, including software, developed pursuant to the standards established under subsection (a).
``(2) Required categories.--In carrying out paragraph (1), the Secretary specifically shall include the following categories of first responder activities:
``(A) Regional planning.
``(B) Joint exercises.
``(C) Intelligence collection, analysis, and sharing.
``(D) Emergency notification of affected populations.
``(E) Detection of biological, nuclear, radiological, and chemical weapons of mass destruction.
``(F) Such other activities for which the Secretary determines that national voluntary consensus training standards would be appropriate.
``(3) Consistency.--In carrying out this subsection, the Secretary shall ensure that such training standards are consistent with the principles of emergency preparedness for all hazards.
``(c) Consultation With Standards Organizations.--In establishing national voluntary consensus standards for first responder equipment and training under this section, the Secretary shall consult with relevant public and private sector groups, including--
``(1) the National Institute of Standards and Technology;
``(2) the National Fire Protection Association;
``(3) the National Association of County and City Health Officials;
``(4) the Association of State and Territorial Health Officials;
``(5) the American National Standards Institute;
``(6) the National Institute of Justice;
``(7) the Inter-Agency Board for Equipment Standardization and Interoperability;
``(8) the National Public Health Performance Standards Program;
``(9) the National Institute for Occupational Safety and Health;
``(10) ASTM International;
``(11) the International Safety Equipment Association;
``(12) the Emergency Management Accreditation Program;
``(13) the National Domestic Preparedness Consortium; and
``(14) to the extent the Secretary considers appropriate, other national voluntary consensus standards development organizations, other interested Federal, State, and local agencies, and other interested persons.
``(d) Coordination With Secretary of HHS.--In establishing any national voluntary consensus standards under this section for first responder equipment or training that involve or relate to health professionals, including emergency medical professionals, the Secretary shall coordinate activities under this section with the Secretary of Health and Human Services.''.
SEC. 604. EFFECTIVE ADMINISTRATION OF HOMELAND SECURITY
GRANTS.
(a) Use of Grant Funds and Accountability.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by sections 602 and 603, is amended by adding at the end the following:
``SEC. 1806. USE OF FUNDS AND ACCOUNTABILITY REQUIREMENTS.
``(a) In General.--A covered grant may be used for--
``(1) purchasing, upgrading, or maintaining equipment, including computer software, to enhance terrorism preparedness and response;
``(2) exercises to strengthen terrorism preparedness and response;
``(3) training for prevention (including detection) of, preparedness for, or response to attacks involving weapons of mass destruction, including training in the use of equipment and computer software;
``(4) developing or updating response plans;
``(5) establishing or enhancing mechanisms for sharing terrorism threat information;
``(6) systems architecture and engineering, program planning and management, strategy formulation and strategic planning, life-cycle systems design, product and technology evaluation, and prototype development for terrorism preparedness and response purposes;
``(7) additional personnel costs resulting from--
``(A) elevations in the threat alert level of the Homeland Security Advisory System by the Secretary, or a similar elevation in threat alert level issued by a State, region, or local government with the approval of the Secretary;
``(B) travel to and participation in exercises and training in the use of equipment and on prevention activities;
``(C) the temporary replacement of personnel during any period of travel to and participation in exercises and training in the use of equipment and on prevention activities; and
``(D) participation in information, investigative, and intelligence-sharing activities specifically related to terrorism prevention;
``(8) the costs of equipment (including software) required to receive, transmit, handle, and store classified information;
``(9) target hardening to reduce the vulnerability of high-value targets, as determined by the Secretary;
``(10) protecting critical infrastructure against potential attack by the addition of barriers, fences, gates, and other such devices, except that the cost of such measures may not exceed the greater of--
``(A) $1,000,000 per project; or
``(B) such greater amount as may be approved by the Secretary, which may not exceed 10 percent of the total amount of the covered grant;
``(11) the costs of commercially available interoperable communications equipment (which, where applicable, is based on national, voluntary consensus standards) that the Secretary, in consultation with the Chairman of the Federal Communications Commission, deems best suited to facilitate interoperability, coordination, and integration between and among emergency communications systems, and that complies with prevailing grant guidance of the Department for interoperable communications;
``(12) educational curricula development for first responders to ensure that they are prepared for terrorist attacks;
``(13) training and exercises to assist public elementary and secondary schools in developing and implementing programs to instruct students regarding age-appropriate skills to prepare for and respond to an act of terrorism;
``(14) paying of administrative expenses directly related to administration of the grant, except that such expenses may not exceed 3 percent of the amount of the grant; and
``(15) other appropriate activities as determined by the Secretary.
``(b) Prohibited Uses.--Funds provided as a covered grant may not be used--
``(1) to supplant State or local funds that have been obligated for a homeland security or other first responder-related project;
``(2) to construct buildings or other physical facilities, except for--
``(A) activities under section 611 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196); and
``(B) upgrading facilities to protect against, test for, and treat the effects of biological agents, which shall be included in the homeland security plan approved by the Secretary under section 1802(c);
``(3) to acquire land; or
``(4) for any State or local government cost-sharing contribution.
``(c) Multiple-Purpose Funds.--Nothing in this section shall be construed to preclude State and local governments from using covered grant funds in a manner that also enhances first responder preparedness for emergencies and disasters unrelated to acts of terrorism, if such use assists such governments in achieving essential capabilities for terrorism preparedness established by the Secretary under section 1803.
``(d) Reimbursement of Costs.--In addition to the activities described in subsection (a), a covered grant may be used to provide a reasonable stipend to paid-on-call or volunteer first responders who are not otherwise compensated for travel to or participation in training covered by this section. Any such reimbursement shall not be considered compensation for purposes of rendering such a first responder an employee under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).
``(e) Assistance Requirement.--The Secretary may not request that equipment paid for, wholly or in part, with funds provided as a covered grant be made available for responding to emergencies in surrounding States, regions, and localities, unless the Secretary undertakes to pay the costs directly attributable to transporting and operating such equipment during such response.
``(f) Flexibility in Unspent Homeland Security Grant Funds.--Upon request by the recipient of a covered grant, the Secretary may authorize the grantee to transfer all or part of funds provided as the covered grant from uses specified in the grant agreement to other uses authorized under this section, if the Secretary determines that such transfer is in the interests of homeland security.
``(g) State, Regional, and Tribal Responsibilities.--
``(1) Pass-through.--The Secretary shall require a recipient of a covered grant that is a State to obligate or otherwise make available to local governments, first responders, and other local groups, to the extent required under the State homeland security plan or plans specified in the application for the grant, not less than 80 percent of the grant funds, resources purchased with the grant funds having a value equal to at least 80 percent of the amount of the grant, or a combination thereof, by not later than the end of the 45-day period beginning on the date the grant recipient receives the grant funds.
``(2) Certifications regarding distribution of grant funds to local governments.--Any State that receives a covered grant shall certify to the Secretary, by not later than 30 days after the expiration of the period described in paragraph (1) with respect to the grant, that the State has made available for expenditure by local governments, first responders, and other local groups the required amount of grant funds pursuant to paragraph (1).
``(3) Quarterly report on homeland security spending.--Each recipient of a covered grant shall submit a quarterly report to the Secretary not later than 30 days after the end of each fiscal quarter. Each such report shall include, for each recipient of a covered grant or a pass-through under paragraph (1)--
``(A) the amount obligated to that recipient in that quarter;
``(B) the amount expended by that recipient in that quarter; and
``(C) a summary description of the items purchased by such recipient with such amount.
``(4) Annual report on homeland security spending.--Each recipient of a covered grant shall submit an annual report to the Secretary not later than 60 days after the end of each fiscal year. Each recipient of a covered grant that is a region shall simultaneously submit its report to each State of which any part is included in the region. Each recipient of a covered grant that is a directly eligible tribe shall simultaneously submit its report to each State within the boundaries of which any part of such tribe is located. Each report shall include the following:
``(A) The amount, ultimate recipients, and dates of receipt of all funds received under the grant during the previous fiscal year.
``(B) The amount and the dates of disbursements of all such funds expended in compliance with paragraph (1) or pursuant to mutual aid agreements or other sharing arrangements that apply within the State, region, or directly eligible tribe, as applicable, during the previous fiscal year.
``(C) How the funds were utilized by each ultimate recipient or beneficiary during the preceding fiscal year.
``(D) The extent to which essential capabilities identified in the applicable State homeland security plan or plans were achieved, maintained, or enhanced as the result of the expenditure of grant funds during the preceding fiscal year.
``(E) The extent to which essential capabilities identified in the applicable State homeland security plan or plans remain unmet.
``(5) Inclusion of restricted annexes.--A recipient of a covered grant may submit to the Secretary an annex to the annual report under paragraph (4) that is subject to appropriate handling restrictions, if the recipient believes that discussion in the report of unmet needs would reveal sensitive but unclassified information.
``(6) Provision of reports.--The Secretary shall ensure that each annual report under paragraph (4) is provided to the Under Secretary for Emergency Preparedness and Response and the Director of the Office of State and Local Government Coordination.
``(h) Incentives to Efficient Administration of Homeland Security Grants.--
``(1) Penalties for delay in passing through local share.--If a recipient of a covered grant that is a State fails to pass through to local governments, first responders, and other local groups funds or resources required by subsection
(g)(1) within 45 days after receiving funds under the grant, the Secretary may--
``(A) reduce grant payments to the grant recipient from the portion of grant funds that is not required to be passed through under subsection (g)(1);
``(B) terminate payment of funds under the grant to the recipient, and transfer the appropriate portion of those funds directly to local first responders that were intended to receive funding under that grant; or
``(C) impose additional restrictions or burdens on the recipient's use of funds under the grant, which may include--
``(i) prohibiting use of such funds to pay the grant recipient's grant-related overtime or other expenses;
``(ii) requiring the grant recipient to distribute to local government beneficiaries all or a portion of grant funds that are not required to be passed through under subsection
(g)(1); or
``(iii) for each day that the grant recipient fails to pass through funds or resources in accordance with subsection
(g)(1), reducing grant payments to the grant recipient from the portion of grant funds that is not required to be passed through under subsection (g)(1), except that the total amount of such reduction may not exceed 20 percent of the total amount of the grant.
``(2) Extension of period.--The Governor of a State may request in writing that the Secretary extend the 45-day period under section 1802(e)(5)(E) or paragraph (1) for an additional 15-day period. The Secretary may approve such a request, and may extend such period for additional 15-day periods, if the Secretary determines that the resulting delay in providing grant funding to the local government entities that will receive funding under the grant will not have a significant detrimental impact on such entities' terrorism preparedness efforts.
``(3) Provision of non-local share to local government.--
``(A) In general.--The Secretary may upon request by a local government pay to the local government a portion of the amount of a covered grant awarded to a State in which the local government is located, if--
``(i) the local government will use the amount paid to expedite planned enhancements to its terrorism preparedness as described in any applicable State homeland security plan or plans;
``(ii) the State has failed to pass through funds or resources in accordance with subsection (g)(1); and
``(iii) the local government complies with subparagraph
(B).
``(B) Showing required.--To receive a payment under this paragraph, a local government must demonstrate that--
``(i) it is identified explicitly as an ultimate recipient or intended beneficiary in the approved grant application;
``(ii) it was intended by the grantee to receive a severable portion of the overall grant for a specific purpose that is identified in the grant application;
``(iii) it petitioned the grantee for the funds or resources after expiration of the period within which the funds or resources were required to be passed through under subsection (g)(1); and
``(iv) it did not receive the portion of the overall grant that was earmarked or designated for its use or benefit.
``(C) Effect of payment.--Payment of grant funds to a local government under this paragraph--
``(i) shall not affect any payment to another local government under this paragraph; and
``(ii) shall not prejudice consideration of a request for payment under this paragraph that is submitted by another local government.
``(D) Deadline for action by secretary.--The Secretary shall approve or disapprove each request for payment under this paragraph by not later than 15 days after the date the request is received by the Department.
``(i) Reports to Congress.--The Secretary shall submit an annual report to Congress by December 31 of each year--
``(1) describing in detail the amount of Federal funds provided as covered grants that were directed to each State, region, and directly eligible tribe in the preceding fiscal year;
``(2) containing information on the use of such grant funds by grantees; and
``(3) describing--
``(A) the Nation's progress in achieving, maintaining, and enhancing the essential capabilities established under section 1803(a) as a result of the expenditure of covered grant funds during the preceding fiscal year; and
``(B) an estimate of the amount of expenditures required to attain across the United States the essential capabilities established under section 1803(a).''.
(b) Sense of Congress Regarding Interoperable Communications.--
(1) Finding.--Congress finds that--
(A) many emergency response providers (as defined under section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101), as amended by this title) working in the same jurisdiction or in different jurisdictions cannot effectively and efficiently communicate with one another; and
(B) their inability to do so threatens the public's safety and may result in unnecessary loss of lives and property.
(2) Sense of congress.--It is the sense of Congress that interoperable emergency communications systems and radios should continue to be deployed as soon as practicable for use by the emergency response provider community, and that upgraded and new digital communications systems and new digital radios must meet prevailing national voluntary consensus standards for interoperability.
(c) Sense of Congress Regarding Citizen Corps Councils.--
(1) Finding.--Congress finds that Citizen Corps councils help to enhance local citizen participation in terrorism preparedness by coordinating multiple Citizen Corps programs, developing community action plans, assessing possible threats, and identifying local resources.
(2) Sense of congress.--It is the sense of Congress that individual Citizen Corps councils should seek to enhance the preparedness and response capabilities of all organizations participating in the councils, including by providing funding to as many of their participating organizations as practicable to promote local terrorism preparedness programs.
(d) Required Coordination.--The Secretary of Homeland Security shall ensure that there is effective and ongoing coordination of Federal efforts to prevent, prepare for, and respond to acts of terrorism and other major disasters and emergencies among the divisions of the Department of Homeland Security, including the Directorate of Emergency Preparedness and Response and the Office for State and Local Government Coordination and Preparedness.
(e) Coordination of Industry Efforts.--Section 102(f) of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 112(f)) is amended by striking ``and'' after the semicolon at the end of paragraph (6), by striking the period at the end of paragraph (7) and inserting ``; and'', and by adding at the end the following:
``(8) coordinating industry efforts, with respect to functions of the Department of Homeland Security, to identify private sector resources and capabilities that could be effective in supplementing Federal, State, and local government agency efforts to prevent or respond to a terrorist attack.''.
(f) Study Regarding Nationwide Emergency Notification System.--
(1) Study.--The Secretary of Homeland Security, in consultation with the heads of other appropriate Federal agencies and representatives of providers and participants in the telecommunications industry, shall conduct a study to determine whether it is cost effective, efficient, and feasible to establish and implement an emergency telephonic alert notification system that will--
(A) alert persons in the United States of imminent or current hazardous events caused by acts of terrorism; and
(B) provide information to individuals regarding appropriate measures that may be undertaken to alleviate or minimize threats to their safety and welfare posed by such events.
(2) Technologies to consider.--In conducting the study under paragraph (1), the Secretary shall consider the use of the telephone, wireless communications, and other existing communications networks to provide such notification.
(3) Report.--Not later than 9 months after the date of enactment of this title, the Secretary shall submit to Congress a report regarding the conclusions of the study conducted under paragraph (1).
(g) Study of Expansion of Area of Jurisdiction of Office of National Capital Region Coordination.--
(1) Study.--The Secretary of Homeland Security, acting through the Director of the Office of National Capital Region Coordination, shall conduct a study of the feasibility and desirability of modifying the definition of ``National Capital Region'' applicable under section 882 of the Homeland Security Act of 2002 to expand the geographic area under the jurisdiction of the Office of National Capital Region Coordination.
(2) Factors.--In conducting the study under paragraph (1), the Secretary shall analyze whether expanding the geographic area under the jurisdiction of the Office of National Region Coordination will--
(A) promote coordination among State and local governments within the Region, including regional governing bodies, and coordination of the efforts of first responders; and
(B) enhance the ability of such State and local governments and the Federal Government to prevent and respond to a terrorist attack within the Region.
(3) Report.--Not later than 6 months after the date of the enactment of this title, the Secretary shall submit a report to Congress on the study conducted under paragraph (1), and shall include in the report such recommendations (including recommendations for legislation to amend section 882 of the Homeland Security Act of 2002) as the Secretary considers appropriate.
SEC. 605. IMPLEMENTATION; DEFINITIONS; TABLE OF CONTENTS.
(a) Technical and Conforming Amendment.--Section 1014 of the USA PATRIOT ACT (42 U.S.C. 3714) is amended--
(1) by striking subsection (c)(3);
(2) by redesignating subsection (c) as subsection (d); and
(3) by inserting after subsection (b) the following:
``(c) Administration.--Grants under this section shall be administered in accordance with title 18 of the Homeland Security Act of 2002.''.
(b) Temporary Limitations on Application.--
(1) 1-year delay in application.--The following provisions of title XVIII of the Homeland Security Act of 2002, as added by this title, shall not apply during the 1-year period beginning on the date of enactment of this title--
(A) subsections (b), (c), and (e)(4) (A) and (B) of section 1802; and
(B) in section 1802(f)(3)(A)(i), the phrase ``by achieving, maintaining, or enhancing the essential capabilities of the applicants on a nationwide basis,''.
(2) 2-year delay in application.--The following provisions of title XVIII of the Homeland Security Act of 2002, as added by this title, shall not apply during the 2-year period beginning on the date of enactment of this title--
(A) subparagraphs (D) and (E) of section 1806(g)(4); and
(B) section 1806(i)(3).
(c) Definitions.--
(1) Title xviii.--The Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 361 et seq.), as amended by sections 602, 603, and 604, is amended by adding at the end the following:
``SEC. 1807. DEFINITIONS.
``In this title:
``(1) Board.--The term `Board' means the Homeland Security Grants Board established under section 1802(f).
``(2) Consequence.--The term `consequence' means the assessment of the effect of a completed attack.
``(3) Covered grant.--The term `covered grant' means any grant to which this title applies under section 1801(b).
``(4) Directly eligible tribe.--The term `directly eligible tribe' means any Indian tribe or consortium of Indian tribes that--
``(A) meets the criteria for inclusion in the qualified applicant pool for self-governance that are set forth in section 402(c) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 458bb(c));
``(B) employs at least 10 full-time personnel in a law enforcement or emergency response agency with the capacity to respond to calls for law enforcement or emergency services; and
``(C)(i) is located on, or within 5 miles of, an international border or waterway;
``(ii) is located within 5 miles of a facility designated as high-risk critical infrastructure by the Secretary;
``(iii) is located within or contiguous to 1 of the 50 largest metropolitan statistical areas in the United States; or
``(iv) has more than 1,000 square miles of Indian country, as that term is defined in section 1151 of title 18, United States Code.
``(5) Elevations in the threat alert level.--The term
`elevations in the threat alert level' means any designation
(including those that are less than national in scope) that raises the homeland security threat level to either the highest or second-highest threat level under the Homeland Security Advisory System referred to in section 201(d)(7).
``(6) Emergency preparedness.--The term `emergency preparedness' shall have the same meaning that term has under section 602 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195a).
``(7) Essential capabilities.--The term `essential capabilities' means the levels, availability, and competence of emergency personnel, planning, training, and equipment across a variety of disciplines needed to effectively and efficiently prevent, prepare for, and respond to acts of terrorism consistent with established practices.
``(8) First responder.--The term `first responder' shall have the same meaning as the term `emergency response provider' under section 2.
``(9) Indian tribe.--The term `Indian tribe' means any Indian tribe, band, nation, or other organized group or community, including any Alaskan Native village or regional or village corporation as defined in or established pursuant to the Alaskan Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
``(10) Region.--The term `region' means any geographic area--
``(A) certified by the Secretary under section 1802(a)(3);
``(B) consisting of all or parts of 2 or more counties, municipalities, or other local governments and including a city with a core population exceeding 500,000 according to the most recent estimate available from the United States Census; and
``(C) that, for purposes of an application for a covered grant--
``(i) is represented by 1 or more local governments or governmental agencies within such geographic area; and
``(ii) is established by law or by agreement of 2 or more such local governments or governmental agencies, such as through a mutual aid agreement.
``(11) Risk-based funding.--The term `risk-based funding' means the allocation of funds based on an assessment of threat, vulnerability, and consequence.
``(12) Task force.--The term `Task Force' means the Task Force on Essential Capabilities established under section 1804.
``(13) Threat.--The term `threat' means the assessment of the plans, intentions, and capability of an adversary to implement an identified attack scenario.
``(14) Vulnerability.--The term `vulnerability' means the degree to which a facility is available or accessible to an attack, including the degree to which the facility is inherently secure or has been hardened against such an attack.''.
(2) Definition of emergency response providers.--Paragraph
(6) of section 2 of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 101(6)) is amended by striking
``includes'' and all that follows and inserting ``includes Federal, State, and local governmental and nongovernmental emergency public safety, law enforcement, fire, emergency response, emergency medical (including hospital emergency facilities), and related personnel, organizations, agencies, and authorities.''.
(d) Table of Contents.--Section 1(b) of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 101 note) is amended in the table of contents by adding at the end the following:
``TITLE XVIII--RISK-BASED FUNDING FOR HOMELAND SECURITY
``Sec. 1801. Risk-based funding for homeland security.
``Sec. 1802. Covered grant eligibility and criteria.
``Sec. 1803. Essential capabilities for homeland security.
``Sec. 1804. Task Force on Essential Capabilities.
``Sec. 1805. National standards for first responder equipment and training.
``Sec. 1806. Use of funds and accountability requirements.
``Sec. 1807. Definitions.''.
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