TITLE VIII — TRANSITION

This title concerns the orderly transfer of agencies and functions from their current locations to the Department of Homeland Security.

Section 801. Definitions.

For purposes of this title, this section defines "agency" to include any entity, organizational unit, or function, and defines "transition period" to mean the twelve-month period beginning on the effective date of the bill.

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Section 802. Transfer of agencies.

This section provides that the transfer of an agency to the Department of Homeland Security will occur when the President so directs within the twelve-month transition period. It further authorizes the transfer of related adjudicatory and review units, such as the immigration judges, Board of Immigration Appeals, and Executive Office for Immigration Review, associated with the Immigration and Naturalization Service.

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Section 803. Transitional authorities.

Subsection (a) of this section directs officials having responsibilities relating to an agency that will be transferred to the Department of Homeland Security to provide requested assistance to the Secretary of Homeland Security in preparing for the transfer and integration of the agency into the Department of Homeland Security.

Subsection (b) expressly authorizes the head of any executive agency, upon the request of the Secretary of Homeland Security, to provide services and to detail personnel to assist with the transition, on a reimbursable or nonreimbursable basis.

Pending the transfer of an agency to the Department of Homeland Security, subsection (c) authorizes the President to transfer to the Secretary of Homeland Security up to five percent of the unobligated balance of any appropriation available to the agency to fund the purposes authorized in the bill. Notice of at least 15 days to the Appropriations Committees would be required prior to such a transfer.

Subsection (d) allows the President to make interim acting appointments to fill the new offices created by the bill pending confirmation of nominees. The President is authorized to designate in an acting capacity any person who held a Senate-confirmed position immediately prior to the effective date (if that person is still a Senate-confirmed officer on the date of designation) or immediately prior to the date of designation. Subsection (d)(2) makes clear that, in accordance with established case law, Senate-confirmed officers who are appointed to fill new offices in the Department whose duties are germane to their original offices may be appointed without undergoing an additional confirmation proceeding. See, e.g., Weiss v. United States, 510 U.S. 163 (1994); Shoemaker v. United States, 147 U.S. 282 (1893).

Subsection (e)(1) provides that, upon the transfer of an agency to the Department of Homeland Security, the pertinent personnel, assets, and liabilities will be transferred, subject to the approval of the Director of the Office of Management and Budget. Subsection (e)(2) provides that the Secretary of Homeland Security will have all functions relating to a transferred agency that any other official could by law exercise in relation to the agency immediately before its transfer to the Department of Homeland Security, and in addition all functions vested in the Secretary by the bill or by law.

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Section 804. Savings provisions.

This section contains provisions to ensure the appropriate continuation and effectiveness of rules, proceedings, laws, and other provisions relating to agencies, notwithstanding the enactment of the bill and the transfer of agencies to the Department of Homeland Security. Subsection (a) provides for the continued effectiveness of completed administrative actions, such as orders, rules, regulations, personnel actions, permits, grants, contracts, and licenses. Subsection (b) provides for the continuation of pending proceedings in an agency, such as notices of proposed rulemaking, and applications for licenses, permits, certificates, grants, and financial assistance. Subsection (c) provides for the continuation of pending civil actions. Subsection (d) provides that references relating to an agency in pre-existing statutes, executive orders, rules, regulations, and delegations of authority are generally to be understood so as to give them continued effect in a manner consistent with the agency's transfer to the Department of Homeland Security. For example, a reference to the Coast Guard as being in the Department of Transportation or under the authority of the Secretary of Transportation would be deemed to be a reference to the Coast Guard as being in the Department of Homeland Security or under the authority of the Secretary of Homeland Security, and a reference to the Attorney General as carrying out functions that are now assigned to the Immigration and Naturalization Service would be deemed to be a reference to the Secretary of Homeland Security as carrying out the same functions. Subsection (e) allows for the continuation and use in the Department of the various personnel and employment systems in place in the transferred agencies prior to transfer.

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Section 805. Terminations.

This section provides for the termination of certain offices when all of an agency’s functions have been transferred to the Department of Homeland Security.

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Section 806. Incidental transfers.

This section authorizes and directs the Director of the Office of Management and Budget, in consultation with the Secretary of Homeland Security, to make certain additional incidental dispositions of personnel, assets, and liabilities related to functions transferred to the Department of Homeland Security.

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