H. R. 5913
IN THE SENATE OF THE UNITED STATES
November 28, 2012
Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs
To create an independent advisory panel to comprehensively assess the management structure and capabilities related to the Department of Homeland Security and make recommendations to improve the efficiency and effectiveness of the management of the Department.
This Act may be cited as the
DHS Accountability Act of
Congress finds that the Subcommittee on Oversight, Investigations, and Management of the Committee on Homeland Security of the House of Representatives held a series of four hearings related to the management of the Department of Homeland Security. The key findings from such hearings were the following:
The Department of Homeland Security has not prioritized the missions outlined in its key strategic planning documents. This lack of prioritization may hinder the Department’s efforts to effectively manage risks to the United States. Since 2003, the Government Accountability Office designated the transformation of the Department as high risk because the Department had to transform 22 agencies—several with major management challenges—into one department, and failure to effectively address the Department’s management and mission risks could have serious consequences to United States national and economic security. The Government Accountability Office continues to designate the transformation of the Department as high risk.
The Department has considerable work ahead to achieve actions and outcomes critical to addressing persistent management challenges. For example, a significant number of acquisition programs proceeded without component or departmental approval of essential planning documents. These reviews are important to ensure the success of an acquisition program. The Department also continues to face challenges implementing key human capital initiatives. Integrating financial data essential to effectively managing the Department also remains a challenge.
Areas of duplicative effort have also been identified within the Department. For example, some Federal Government agencies are paying fees to the Department’s Federal Protective Service for facility risk assessments that are not being performed, while at the same time performing their own risk assessments. The Department also lacks robust acquisition practices in place to position programs for success. Federal Government auditors questioned U.S. Customs and Border Protection’s plan to secure the Arizona border because the agency could not justify the specific types, quantities, cost, and deployment locations of its surveillance technologies.
Investigators continue to identify cases of employee corruption within the Department. Investigations by the Department’s Inspector General led to over 400 arrests of employees in 2011. Examples include Border Patrol agents accepting bribes, thefts by airport screeners, and immigration officers complicit in fraud. In addition, overall employee morale in the Department remains one of the lowest in the Federal Government.
There is established in the legislative branch an independent advisory panel to—
comprehensively assess the management structure and capabilities related to the Department of Homeland Security; and
make recommendations to improve the efficiency and effectiveness of the management of the Department.
advisory panel (in this Act referred to as the
established under section 3 shall be composed of eight members as
Two members shall be appointed by the Speaker of the House of Representatives, in coordination with the Chairman of the Committee on Homeland Security of the House of Representatives. Only one of such members may be from the same political party as the Speaker of the House of Representatives.
Two members shall be appointed by the majority leader of the Senate, in coordination with the Chairman of the Committee on Homeland Security and Governmental Affairs of the Senate. Only one of such members may be from the same political party as the majority leader of the Senate.
One member shall be appointed by the minority leader of the House of Representatives, in coordination with the Ranking Minority Member of the Committee on Homeland Security of the House of Representatives.
One member shall be appointed by the minority leader of the Senate, in coordination with the Ranking Minority Member of the Committee on Homeland Security and Governmental Affairs of the Senate.
Two members shall be appointed by the President, in consultation with the Secretary of Homeland Security. Only one of such members may be from the same political party as the President.
Except as provided in subsection (a), members of the Panel may not be current appointees of the President’s Administration or Members of Congress, in order to ensure objectivity of the Panel’s assessments.
Deadline for appointments
All appointments to the Panel shall be made not later than 90 days after the date of the enactment of this Act.
The Panel shall have two co-chairmen, as follows:
A co-chairman who shall be a member of the Panel designated by the Speaker of the House of Representatives.
A co-chairman who shall be a member of the Panel designated by the majority leader of the Senate.
In the event of a vacancy on the Panel, the individual appointed to fill the vacant seat shall be—
subject to paragraph (2), appointed by the same officer (or the officer’s successor) who made the appointment to the seat when the Panel was first established; or
if the officer’s successor is of a party other than the party of the officer who made the initial appointment when the Panel was first established, chosen in consultation with the senior officers of the House of Representatives and the Senate of the party which is the party of the officer who made such initial appointment.
Members of the Panel who are officers or employees of the Federal Government shall serve without additional pay (or benefits in the nature of compensation) for service as a member of the Panel.
The Panel shall meet and begin the operations of the Panel not later than 60 days after the appointment of all Panel members under subsection (a).
The Panel shall assess the current management structure and capabilities of the Department of Homeland Security, including examining the following:
The efficiency and effectiveness of the management structure and capabilities, including the policies, practices, and procedures, of the Department of Homeland Security and its component agencies in carrying out the management functions, such as program acquisition, financial management, information technology, human capital issues, performance measurement, and risk management efforts, related to homeland security.
The extent to which unnecessary duplication exists in such management structure and capabilities, and how, if at all, such duplication negatively affects the mission of protecting the United States.
The extent to which management of key homeland security missions is centralized under the Department.
Options, as appropriate, to reduce or eliminate harmful waste and duplication of effort in the Department.
Measures to evaluate the Department’s progress in reducing and eliminating waste and duplication from its management structure and capabilities.
In carrying out its duties, the Panel should consult and leverage the work performed and recommendations made by the Government Accountability Office on the management structure and capabilities of the Department of Homeland Security, in particular with respect to the issues identified under subsection (a).
Powers and authorities
Hearings and evidence
The Panel or, on the authority of the Panel, any portion thereof, may, for the purpose of carrying out this section—
hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, administer such oaths (provided that the quorum for a hearing shall be two members of the Panel); and
subject to subsection (b), require by subpoena or otherwise provide for the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Panel, or such portion thereof, may determine advisable.
Open to the public
Hearings and other activities conducted under paragraph (1) shall be open to the public unless the Panel, or, on the authority of the Panel, any portion thereof, determines that such is not appropriate, including for reasons relating to the disclosure of information or material regarding the national security interests of the United States or the disclosure of sensitive law enforcement data.
A subpoena may be issued under this subsection only—
by the two co-chairmen; or
by the affirmative recorded vote of six members of the Panel.
Subpoenas issued under this subsection may be—
issued under the signature of the two co-chairmen or any member designated by a majority of the Panel; and
served by any person designated by the two co-chairmen or by any member designated by a majority of the Panel.
In the case of contumacy or failure to obey a subpoena issued under this subsection, the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as contempt of that court.
In the case of any failure of any witness to comply with any subpoena, the Panel may, by majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney, who may bring the matter before a grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194).
The Panel shall have the authorities provided in section 3161 of title 5, United States Code, and shall be subject to the conditions specified in such section, except to the extent that such conditions would be inconsistent with the requirements of this section.
The co-chairmen, in accordance with rules agreed upon by the Panel, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Panel to carry out its functions, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that no rate of pay fixed under this paragraph may exceed the equivalent of that payable for a position at level V of the Executive Schedule under section 5316 of title 5, United States Code.
Any employee of the Federal Government may be detailed to the Panel without reimbursement from the Panel, and such detailee shall retain the rights, status, and privileges of the employee’s regular employment without interruption.
Expert and consultant services
The Panel is authorized to procure the services of experts and consultants in accordance with section 3109 of title 5, United States Code, but at rates not to exceed the daily rate paid a person occupying a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code.
Notwithstanding section 1342 of title 31, United States Code, the Panel may accept and use voluntary and uncompensated services as the Panel determines necessary.
The appropriate departments or agencies of the Federal Government shall cooperate with the Panel in expeditiously providing to the Panel members and staff appropriate security clearances to the extent possible pursuant to existing procedures and requirements, except that no person shall be provided with access to classified information under this section without the appropriate security clearances.
The Panel may, to such extent and in such amounts as are provided in appropriation Acts, enter into contracts to enable the Panel to carry out its duties under this Act.
The Panel may use the United States mails in the same manner and under the same conditions as departments and agencies of the United States.
Upon request of the Panel, the Administrator of General Services shall provide the Panel, on a reimbursable basis, with the administrative support services necessary for the Panel to carry out its duties under this Act. Such administrative services may include human resource management, budget, leasing, accounting, and payroll services.
Rules of procedure
The Panel may establish rules for the conduct of the Panel’s business, if such rules are not inconsistent with this Act or other applicable law.
Nonapplicability of the Federal Advisory Committee Act
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Panel.
The Panel shall terminate on the date that is 60 days after the date of the submission of its final report.
Reports to Congress
Not later than one year after the date of the appointment of all the members of the Panel, the Panel shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate an interim report, including the results and findings of the assessment and examination carried out in accordance with section 5.
Other reports and briefings
The Panel may from time to time submit to the committees specified in subsection (a) such other reports and briefings relating to the assessment and examination carried out in accordance with section 5 as the Panel considers appropriate. Such committees may request information on the Panel’s progress as it conducts its work.
Not later than two years after the date of the appointment of all the members of the Panel, the Panel shall submit to the committees specified in subsection (a) a final report on the assessment and examination carried out in accordance with section 5. Such final report shall—
include the findings of the Panel;
identify lessons learned related to homeland security management issues; and
include specific recommendations related to—
improving the efficiency and effectiveness of the management structure and capabilities, including the policies, practices, and procedures, of the Department of Homeland Security and its component agencies in carrying out the Department’s management functions and mission to protect the United States;
reducing or eliminating unnecessary duplication in the management structure and capabilities of the Department and its component agencies;
options, as appropriate, to reduce or eliminate harmful waste and duplication of effort in the Department; and
developing measures to evaluate the Department’s progress in reducing and eliminating waste and duplication from its management structure and capabilities.
Passed the House of Representatives November 27, 2012.
Karen L. Haas,