Department of Homeland Security Office for Civil Rights and Civil Liberties Authorization Act

II Calendar No. 574 116TH CONGRESS 2D SESSION H. R. 4713 [Report No. 116–280] IN THE SENATE OF THE UNITED STATES DECEMBER 10, 2019 Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs OCTOBER 19, 2020 Reported by Mr. JOHNSON, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] AN ACT To amend the Homeland Security Act of 2002 to make certain improvements in the Office for Civil Rights and Civil Liberties of the Department of Homeland Security, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Department of Home- 4 land Security Office of Civil Rights and Civil Liberties Au- 5 thorization Act’’. 6 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 4713 RS SEC. 2. OFFICER FOR CIVIL RIGHTS AND CIVIL LIBERTIES. 1 (a) IN GENERAL.—Section 705 of the Homeland Se- 2 curity Act of 2002 (6 U.S.C. 345) is amended— 3 (1) in the section heading, by striking ‘‘ESTAB- 4 LISHMENT OF’’; and 5 (2) by striking subsections (a) and (b) and in- 6 serting the following new subsections: 7 ‘‘(a) IN GENERAL.—There is established within the 8 Department an Office for Civil Rights and Civil Liberties. 9 The head of such Office is the Officer for Civil Rights 10 and Civil Liberties, who shall report directly to the Sec- 11 retary. 12 ‘‘(b) RESPONSIBILITIES.—The Officer for Civil 13 Rights and Civil Liberties shall carry out the following re- 14 sponsibilities: 15 ‘‘(1) Oversee compliance with constitutional, 16 statutory, regulatory, policy, and other requirements 17 relating to the civil rights and civil liberties of indi- 18 viduals affected by the programs and activities of 19 the Department. 20 ‘‘(2) Integrate civil rights and civil liberties pro- 21 tections into all programs and activities of the De- 22 partment. 23 ‘‘(3) Conduct civil rights and civil liberties im- 24 pact assessments, as appropriate, including prior to 25 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 4713 RS the implementation of new Department regulations, 1 initiatives, programs, or policies. 2 ‘‘(4) Conduct periodic reviews of policies, proce- 3 dures, and activities of the Department relating to 4 civil rights and civil liberties. 5 ‘‘(5) Provide policy advice, recommendations, 6 and other technical assistance relating to civil rights 7 and civil liberties to the Secretary and to heads of 8 components, directorates, and offices and other per- 9 sonnel within the Department. 10 ‘‘(6) Review, assess, and investigate complaints, 11 including complaints filed by members of the public, 12 and information indicating possible abuses of civil 13 rights or civil liberties at the Department, unless the 14 Inspector General of the Department determines 15 that any such complaint should be investigated by 16 the Inspector General. 17 ‘‘(7) Initiate reviews, investigations, and assess- 18 ments of the administration of the programs and ac- 19 tivities by the Department relating to civil rights 20 and civil liberties, as the Officer determines nec- 21 essary. 22 ‘‘(8) Coordinate with the Privacy Officer to en- 23 sure that— 24 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 4713 RS ‘‘(A) programs, policies, and procedures in- 1 volving civil rights, civil liberties, and privacy 2 considerations are addressed in an integrated 3 and comprehensive manner; and 4 ‘‘(B) Congress receives appropriate reports 5 regarding such programs, policies, and proce- 6 dures. 7 ‘‘(9) Lead the equal employment opportunity 8 programs of the Department, including complaint 9 management and adjudication, workforce diversity, 10 and promotion of the merit system principles. 11 ‘‘(10) Make publicly available through acces- 12 sible communications channels, including the website 13 of the Department— 14 ‘‘(A) information on the responsibilities 15 and functions of, and how to contact, the Of- 16 fice; 17 ‘‘(B) summary of reports of investigations 18 that result in final recommendations that are 19 issued by the Officer upon completion of inves- 20 tigations carried out pursuant to paragraph (6); 21 and 22 ‘‘(C) summaries of impact assessments 23 issued by the Officer and carried out pursuant 24 to paragraph (3) or (7). 25 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 4713 RS ‘‘(11) Engage with individuals and communities 1 whose civil rights and civil liberties may be affected 2 by programs and activities of the Department, in- 3 cluding by informing such individuals and commu- 4 nities about report and redress processes and advis- 5 ing the Secretary and heads of components, direc- 6 torates, offices, and other personnel within the De- 7 partment of concerns raised by such individuals and 8 communities. 9 ‘‘(c) COORDINATION WITH INSPECTOR GENERAL.— 10 ‘‘(1) AUTHORITY TO INVESTIGATE POSSIBLE 11 ABUSES.—The Officer for Civil Rights and Civil Lib- 12 erties may investigate any matter referred to in 13 paragraph (6) or (7) of subsection (b) after fulfilling 14 the coordination requirements under paragraph (2) 15 with respect to such matter. 16 ‘‘(2) COORDINATION REQUIREMENTS.— 17 ‘‘(A) REFERRAL OF MATTERS TO INSPEC- 18 TOR GENERAL.—Before initiating any investiga- 19 tion described under paragraph (1), the Officer 20 for Civil Rights and Civil Liberties shall refer 21 the matter and all related complaints to the In- 22 spector General of the Department. 23 ‘‘(B) INSPECTOR GENERAL RESPONSIBIL- 24 ITIES.— 25 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 4713 RS ‘‘(i) DETERMINATION AND NOTIFICA- 1 TION.—Not later than 5 business days 2 after the receipt of a matter referred under 3 subparagraph (A), the Inspector General 4 shall— 5 ‘‘(I) make a determination re- 6 garding whether the Inspector Gen- 7 eral intends to initiate an audit or in- 8 vestigation of the matter referred 9 under subparagraph (A); and 10 ‘‘(II) notify the Officer of such 11 determination. 12 ‘‘(ii) AUDITS AND INVESTIGATIONS.— 13 If the Inspector General notifies the Offi- 14 cer for Civil Rights and Civil Liberties that 15 the Inspector General intends to initiate an 16 audit or investigation, the Inspector Gen- 17 eral shall— 18 ‘‘(I) initiate such audit or inves- 19 tigate by not later than 90 days after 20 providing such notification; or 21 ‘‘(II) not later than 3 days after 22 the end of the 90-day period specified 23 in subclause (I), notify the Officer 24 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 4713 RS that such audit or investigation was 1 not initiated. 2 ‘‘(C) PROVISION OF ASSISTANCE.—At the 3 request of the Inspector General, the Officer for 4 Civil Rights and Civil Liberties may provide as- 5 sistance to the Inspector General on any inves- 6 tigation or audit initiated by the Inspector Gen- 7 eral based on a referral under subparagraph 8 (A). 9 ‘‘(D) INVESTIGATION BY OFFICER.—The 10 Officer for Civil Rights and Civil Liberties may 11 investigate a matter referred to the Inspector 12 General under subparagraph (A) only if— 13 ‘‘(i) the Inspector General notifies the 14 Officer for Civil Rights and Civil Liberties 15 that the Inspector General does not intend 16 to initiate an audit or investigation relat- 17 ing to that matter; or 18 ‘‘(ii) the Inspector General provides 19 notification under subparagraph (B)(ii)(II) 20 that an audit or investigation was not initi- 21 ated. 22 ‘‘(d) TRANSPARENCY.— 23 ‘‘(1) COMPLAINTS.—In the case of a complaint 24 made concerning allegations of abuses of civil rights 25 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 4713 RS and civil liberties under paragraph (6) of subsection 1 (b), the Officer for Civil Rights and Civil Liberties 2 shall— 3 ‘‘(A) provide to the individual who made 4 the complaint notice of the receipt of such com- 5 plaint within 30 days of receiving the com- 6 plaint; and 7 ‘‘(B) inform the complainant of the deter- 8 mination of the Officer regarding the initiation 9 of a review, assessment, or investigation within 10 the Office, a referral to the Inspector General 11 of the Department, or any other action taken. 12 ‘‘(2) INVESTIGATIONS.—In the case of an inves- 13 tigation initiated by the Officer pursuant to para- 14 graph (6) or (7) of subsection (b), upon the conclu- 15 sion of the investigation, the Officer shall produce a 16 report on the investigation which— 17 ‘‘(A) shall include the findings and rec- 18 ommendations of the Officer; 19 ‘‘(B) a summary of which shall be made 20 publicly available; 21 ‘‘(C) shall not include any personally iden- 22 tifiable information related to any individual in- 23 volved in such investigation; and 24 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 4713 RS ‘‘(D) may include a classified appendix, as 1 the Officer determines appropriate. 2 ‘‘(3) SUBMITTAL TO HEADS OF OPERATIONAL 3 COMPONENTS.—The Officer shall transmit a copy of 4 each report produced under paragraph (2) to the 5 Secretary and to the relevant head of each relevant 6 operational component of the Department. 7 ‘‘(4) REPORTS TO CONGRESS.—Upon the con- 8 clusion of any investigation conducted by the Officer 9 for Civil Rights and Civil Liberties under paragraph 10 (6) or (7) of subsection (b), the Officer shall submit 11 to Congress a report on the investigation, which 12 shall be prepared and submitted without any prior 13 comment or amendment by the Secretary, Deputy 14 Secretary, or any other officer or employee of the 15 Department, unless the Officer seeks such comment. 16 ‘‘(e) COMPONENT CIVIL RIGHTS AND CIVIL LIB- 17 ERTIES OFFICER.—The head of each of the operational 18 components of the Department shall designate a career 19 appointee (as such term is defined in section 3132 of title 20 5, United States Code) from such component as the Offi- 21 cer for Civil Rights and Civil Liberties of that component. 22 The Officer for Civil Rights and Civil Liberties of each 23 such component shall coordinate with and provide infor- 24 mation to the Officer for Civil Rights and Civil Liberties 25 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 4713 RS of the Department on matters related to civil rights and 1 civil liberties within the components. 2 ‘‘(f) ACCESS TO INFORMATION.—The Officer for Civil 3 Rights and Civil Liberties of the Department— 4 ‘‘(1) shall have access to all records, reports, 5 audits, reviews, documents, papers, recommenda- 6 tions, and other materials available to the Depart- 7 ment that relate to programs and operations with 8 respect to the responsibilities of the Officer under 9 subsection (b); and 10 ‘‘(2) may, to the extent the Officer determines 11 necessary, and subject to the approval of the Sec- 12 retary— 13 ‘‘(A) issue a subpoena to require the pro- 14 duction, by any person other than a Federal 15 agency, of all information, documents, reports, 16 answers, records, accounts, papers, and other 17 documentary evidence necessary in the perform- 18 ance of the responsibilities of the Officer under 19 this section; and 20 ‘‘(B) administer to or take from any per- 21 son an oath, affirmation, or affidavit, whenever 22 necessary in the performance of the responsibil- 23 ities of the Officer under this section. 24 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 4713 RS ‘‘(g) ANNUAL REPORT.—Not later than March 31 of 1 each year, the Officer for Civil Rights and Civil Liberties 2 of the Department shall submit directly to the President, 3 the President of the Senate, the Speaker of the House of 4 Representatives, and the appropriate committees and sub- 5 committees of Congress, a report on the implementation 6 of this section during the year preceding the year during 7 which the report is submitted. Each such report shall in- 8 clude, for the year covered by the report— 9 ‘‘(1) any allegations of abuse described under 10 subsection (b)(6) and any actions by the Depart- 11 ment or a component, directorate, or office of the 12 Department that the Officer identifies as responsive 13 to such allegations; 14 ‘‘(2) a list of Department programs and activi- 15 ties for which civil rights and civil liberties impact 16 assessments were conducted, or policy advice, rec- 17 ommendations, or other technical assistance was 18 provided; 19 ‘‘(3) any recommendations issued by the Officer 20 to the Secretary or the head of a component, direc- 21 torate, or office, together with information on the 22 status of the implementation of such recommenda- 23 tions; 24 VerDate Sep 11 2014 00:07 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\H4713.RS H4713 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 4713 RS ‘‘(4) information on the diversity and equal em- 1 ployment opportunity activities of the Department, 2 including information on complaint management and 3 adjudication of equal employment opportunity com- 4 plaints and efforts to ensure compliance throughout 5 the Department with equal employment opportunity 6 requirements; 7 ‘‘(5) a description of any efforts to engage with 8 individuals and communities whose civil rights and 9 civil liberties may be affected by activities carried 10 out by the Department, including public meetings; 11 and 12 ‘‘(6) information on total staffing for the Office 13 of Civil Rights and Civil Liberties, including— 14 ‘‘(A) the number of full-time, part-time 15 and contract support personnel; and 16 ‘‘(B) information on the number of em- 17 ployees whose primary responsibilities include 18 supporting the Officer in carrying out para- 19 graph (9) of subsection (b).’’. 20 (b) CLERICAL AMENDMENT.—The item relating to 21 section 705 in section 1(b) of the Homeland Security Act [Text truncated for display. 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