ENVIRONMENT AND PUBLIC WORKS COMMITTEE
RELEASES COMMITTEE VIEWS ON
HOMELAND SECURITY LEGISLATION
Washington, D.C. - U.S. Senators Jim Jeffords (I-Vt.), and Bob Smith, (R-NH), the Chairman and Ranking Member of the Senate Environment and Public Works (EPW) Committee, today released the Committee's views on the Department of Homeland Security legislation.
The following is a letter sent today by Jeffords and Smith to the Senate Governmental Affairs Committee.
July 17, 2002
The Honorable Joseph I. Lieberman Chairman
Senate Committee on Governmental Affairs
United States Senate
Washington, DC 20510
The Honorable Fred Thompson
Ranking Member
Senate Committee on Governmental Affairs
United States Senate
Washington, DC 20510
Dear Chairman Lieberman:
As you requested in your letter of June 14, 2002, we are writing to share the views of the Committee on Environment and Public Works (EPW) regarding the proposed creation of a new Department of Homeland Security.
Both S. 2452 and the President's proposal incorporate the entire Federal Emergency Management Agency into the Department. The President's proposal also would include the Federal Protective Service from the General Services Administration. While both proposals recommend that the new Department take the necessary steps to assess the vulnerability of and to protect critical infrastructure, neither proposal clearly lays out the coordinating relationship between numerous Federal agencies, like the Environmental Protection Agency, and the new Department. In addition, the Bush proposal also contains broad Freedom of Information Act (FOIA) waivers and inadequate whistleblower protections.
While the Committee agrees with the need to consolidate the Federal government's efforts to protect and prepare our nation, but there are several unanswered concerns relating to agencies and functions within this Committee's jurisdiction included in the proposals for the new Department. This letter will address some of those concerns and offer the Committee's recommendations.
The President's proposal for the new Department also incorporates the Federal Protective Service (FPS) from the General Services Administration (GSA).
In 1971, Congress created the FPS to provide comprehensive security and law enforcement services for Federal buildings under GSA's control. The FPS traces it roots back to 1790 when a Congressional commission hired six night watchmen to protect the buildings that eventually would become the permanent home of the United States government in Washington, D.C. Today, the FPS provides security to GSA-managed public buildings throughout the country.
Coordinated through GSA's Public Buildings Service, FPS police officers are responsible for enforcing laws enacted for the protection of persons and property, keeping the peace, suppressing unlawful assemblies, and enforcing rules and regulations promulgated by the GSA Administrator. This authority can extend, by agreement, to any area with a significant Federal interest.
Currently, FPS officers do not enjoy full law enforcement officer status. Because of this, FPS officers cannot carry a weapon off Federal property. This poses serious pursuit restraints for FPS officers and also limits their ability to aid other law enforcement agencies in the prevention of crime near Federal facilities.
The Committee makes the following recommendations with regard to the Federal
Protective Service--
· Law Enforcement Officer Status. FPS officers should receive full law enforcement officer status. FPS officers should have law enforcement status on and off Federal property when appropriate memoranda of understanding are in place. This includes the ability to carry and, when appropriate, to use a weapon off Federal property. FPS officers also must receive full law enforcement officer pay and benefits. This will help ensure the ability of the Federal government to attract and to retain high-quality law enforcement personnel at public facilities.
· Standards for Securing Federal Buildings. The Department of Homeland Security, in coordination with appropriate law enforcement agencies, should create minimum standards for Federal building security and should play an active role in training law enforcement personnel at these facilities.
· Funding for the Federal Protective Service. Starting with fiscal year 2004, FPS should receive direct appropriation through the Department of Homeland Security. Appropriations to other agencies for security charges paid to GSA should be reduced accordingly and in a timely manner.
The President's proposal exempts the Department of Homeland Security from the Federal Property and Administrative Services Act of 1949 and provides increased flexibility to the Secretary for the acquisition and disposal of property.
GSA maintains a 334 million square foot inventory of more than 8,300 owned and leased buildings and properties. This inventory includes space currently occupied by many agencies incorporated into the new Department. GSA collects rents and fees from its Federal and private sector tenants and deposits those monies into the Federal Buildings Fund (Fund). GSA then operates and maintains its building inventory, leases space from the private sector, and provides building security from the Fund.
Transferring management of occupied space from GSA to the new Department of Homeland Security could have a significant impact on the Fund. Significant reductions in Fund revenues could impair GSA's ability to maintain existing Federal properties and continue limited capital investments, such as new construction or property acquisition.
· Management of current inventory. GSA should retain management responsibilities over properties currently in its inventory. The Department of Homeland Security should make payments to the Federal Buildings Fund in a manner consistent with the current practices of the consolidated agencies.
· Special needs facilities. The new Department should have authorization to manage any special needs facilities in a manner consistent with the practices of Department of Defense and Department of Energy for special needs facilities.
· Department Headquarters. GSA should construct or lease space for the headquarters of the new Department of Homeland Security. Congress should afford GSA some flexibility to expedite this process.
II. Coordination with the Environmental Protection Agency
The President's proposal implies that the new Department will be responsible for water and wastewater infrastructure protection. But the proposal does not explicitly identify this function as a priority, nor does it clearly define the integration of ongoing work at the Environmental Protection Agency (EPA).
It is imperative that the enabling legislation clearly define and highlight as a priority the coordination role between EPA and the new Department. To this end, the Committee makes the following recommendations--
· Water Infrastructure Security. EPA should retain its current role in leading efforts to protect our nation's water infrastructure, but cooperation with the Department of Homeland Security should enhance this function. When reviewing the primary mission and responsibilities of the proposed new Department, it is clear that EPA is already performing many of these functions for the water sector.
These functions should remain at EPA because of the Agency's unique, specific, technical knowledge about drinking water and wastewater systems that is imperative in evaluating risks and making decisions about the security of these facilities. EPA has well-established channels of communication with the industry and ongoing infrastructure protection projections that should continue without the delay caused by transferring functions.
To ensure maximum protection of our water infrastructure, the enabling legislation should clearly define coordination between EPA and the new Department. For example, the legislation could include a provision requiring the Secretary to carry out the Department's water infrastructure protection responsibilities through the EPA. This change could mirror the language in the President's proposal providing for this arrangement with the Department of Health and Human Services for certain functions.
· Chemical Site Security. EPA also should play a leading role in protecting communities from the threat of terrorist attack on facilities that store large quantities of hazardous chemicals. EPA has chemical hazard expertise not found in the proposed components of the Department of Homeland Security or elsewhere in the federal government. In addition, EPA already has relationships with chemical facilities through the Clean Air Act Risk Management Program, which covers approximately 15,000 facilities that have on site more than a threshold quantity of one or more extremely hazardous substances.
EPA should work with the Department of Homeland Security to ensure that the chemical facilities posing the greatest risks take appropriate steps to assess vulnerabilities, implement safer technologies and improve security. Effective implementation of such a program may require additional EPA authorities, an issue currently pending in the EPW committee.
· Additional Coordination Functions. The Secretary of the Department should coordinate with EPA to share information and expertise related to emergency response and to develop countermeasures to chemical, biological, radiological, nuclear and other emerging terrorist threats. For example, as mentioned in the President's National Strategy, the Department could aid the EPA in fulfilling its responsibilities to decontaminate affected buildings and neighborhoods and to provide advice and assistance to public health authorities in determining when it is safe to return to those areas.
The mission of the Nuclear Regulatory Commission (NRC) is to "regulate the Nation's civilian use of byproduct, source, and special nuclear materials to ensure adequate protection of public health and safety, to promote the common defense and security, and to protect the environment." Although the NRC is a relatively small Federal regulatory agency with approximately 2,800 employees, the NRC has broad statutory authority under the Atomic Energy Act of 1954, as amended, to ensure protection of the public health and safety and the environment.
While none of the current homeland security proposals contemplate including the NRC in the new Department, the Committee feels that close coordination between the two entities is vital. Accordingly, the Committee makes the following recommendation--
· Coordination Function. The NRC should retain its current structure and regulatory responsibilities, and the Department of Homeland Security should closely coordinate with the NRC on threat assessments and emergency response and other areas as appropriate.
IV. Freedom of Information Act and Whistleblower
Protections.
Section 204 of the President's proposal provides Freedom of Information Act (FOIA) exemptions to information voluntarily disclosed to the new Department of Homeland Security. We strongly urge the Committee to defer consideration of this issue until the panel proposed in the Administration's "National Strategy for Homeland Security" makes recommendations pertaining to the matter of public disclosure. The Strategy states--
“(T)he Attorney General will convene a panel with representatives of state
attorneys general, state governors, state legislators, state law enforcement,
the FBA, the Environmental Protection Agency, the Department of Health and Human Services, and other Federal agencies as necessary upon consultation with the Office of Management and Budget, to propose needed legislative reform or guidance regarding statutes governing public disclosure."
Pending the deliberations of this panel, it would be premature to enact any legislative changes to FOIA.
We recognize the need to balance the public’s right to information about possible risks and measures taken to mitigate those risks with legitimate homeland security concerns. In fact, FOIA itself provides for such a balance. There are currently national security exemptions, law enforcement information exemptions and confidential business information exemptions contained in the Freedom of Information Act. Because of this, blanket exemptions are unnecessary.
In particular, blanket exemptions that apply to the Department or to a type of information (such as any information voluntarily disclosed) are far too broad and afford no opportunity for the government or the public to assess the need for disclosure of the information. By "voluntarily" disclosing information to the Department, or even by early disclosure of information required to be disclosed by a statutory deadline, a person arguably can shield vital health and safety information from FOIA coverage, even if the information poses no threat whatsoever to the public. One particular target of section 204, within this Committee's jurisdiction, appears to be the "Risk Management Plans" required by section 112 of the Clean Air Act.
We await the findings of the Attorney General's panel and look forward to engaging in a reasoned debate over the adequacy or inadequacy of existing FOIA exemptions.
Additionally, the President's homeland security proposal contains exemptions from civil service protections such as the prohibition on reprisal against employees for the lawful disclosure of information about illegal or wasteful government activity (whistleblower protections).
Proponents of the exemptions of civil service protections have not presented compelling arguments against these important protections, nor do these provisions of current law present any threat to the mission of the Department of Homeland Security.
V. Savings Clause.
Any legislation authorizing creation of the Department of Homeland Security should expressly preserve the statutory and regulatory authorities of other executive agencies except in those instances when the authorizing legislation specifically and expressly transfers those authorities to the Secretary of the Department. The Department's vulnerabilities assessments of key resources and critical infrastructures in the United States should be in addition to, and not in lieu of, assessments collected, possessed or prepared by other executive agencies.
We appreciate this opportunity to address the agencies and functions within the jurisdiction of the Committee on Environment and Public Works and to make recommendations concerning their treatment in a new Department of Homeland Security. We look forward to working closely with you as you continue to consider legislation to create this new department.