Chapter 3

of any order issued under section 7103(b)(1) of such title 5 after June 18, 2002, unless-- (A) the mission and responsibilities of the agency (or subdivision) materially change; and (B) a majority of the employees within such agency (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation. (2) Exclusions allowable.--Nothing in paragraph (1) shall affect the effectiveness of any order to the extent that such order excludes any portion of an agency or subdivision of an agency as to which-- (A) recognition as an appropriate unit has never been conferred for purposes of chapter 71 of such title 5; or (B) any such recognition has been revoked or otherwise terminated as a result of a determination under subsection (b)(1). (b) Provisions Relating to Bargaining Units.-- (1) Limitation relating to appropriate units.--Each unit which is recognized as an appropriate unit for purposes of chapter 71 of title 5, United States Code, as of the day before the effective date of this Act (and any subdivision of any such unit) shall, if such unit (or subdivision) is transferred to the Department pursuant to this Act, continue to be so recognized for such purposes, unless-- (A) the mission and responsibilities of such unit (or subdivision) materially change; and (B) a majority of the employees within such unit (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation. (2) Limitation relating to positions or employees.--No position or employee within a unit (or subdivision of a unit) as to which continued recognition is given in accordance with paragraph (1) shall be excluded from such unit (or subdivision), for purposes of chapter 71 of such title 5, unless the primary job duty of such position or employee-- (A) materially changes; and (B) consists of intelligence, counterintelligence, or investigative work directly related to terrorism investigation. In the case of any positions within a unit (or subdivision) which are first established on or after the effective date of this Act and any employees first appointed on or after such date, the preceding sentence shall be applied disregarding subparagraph (A). (c) Waiver.--If the President determines that the application of subsections (a), (b), and (d) would have a substantial adverse impact on the ability of the Department to protect homeland security, the President may waive the application of such subsections 10 days after the President has submitted to Congress a written explanation of the reasons for such determination. (d) Coordination Rule.--No other provision of this Act or of any amendment made by this Act may be construed or applied in a manner so as to limit, supersede, or otherwise affect the provisions of this section, except to the extent that it does so by specific reference to this section. (e) Rule of Construction.--Nothing in section 9701(e) of title 5, United States Code, shall be considered to apply with respect to any agency or subdivision of any agency, which is excluded from the coverage of chapter 71 of title 5, United States Code, by virtue of an order issued in accordance with section 7103(b) of such title and the preceding provisions of this section (as applicable), or to any employees of any such agency or subdivision or to any individual or entity representing any such employees or any representatives thereof.

SEC. 843. [6 U.S.C. 413] USE OF COUNTERNARCOTICS ENFORCEMENT ACTIVITIES IN CERTAIN EMPLOYEE PERFORMANCE APPRAISALS.

(a) In General.--Each subdivision of the Department that is a National Drug Control Program Agency shall include as one of the criteria in its performance appraisal system, for each employee directly or indirectly involved in the enforcement of Federal, State, or local narcotics laws, the performance of that employee with respect to the enforcement of Federal, State, or local narcotics laws, relying to the greatest extent practicable on objective performance measures, including-- (1) the contribution of that employee to seizures of narcotics and arrests of violators of Federal, State, or local narcotics laws; and (2) the degree to which that employee cooperated with or contributed to the efforts of other employees, either within the Department or other Federal, State, or local agencies, in counternarcotics enforcement. (b) Definitions.--For purposes of this section-- (1) the term ``National Drug Control Program Agency'' means-- (A) a National Drug Control Program Agency, as defined in section 702(7) of the Office of National Drug Control Policy Reauthorization Act of 1998 (as last in effect); and (B) any subdivision of the Department that has a significant counternarcotics responsibility, as determined by-- (i) the counternarcotics officer, appointed under section 878; or (ii) if applicable, the counternarcotics officer's successor in function (as determined by the Secretary); and (2) the term ``performance appraisal system'' means a system under which periodic appraisals of job performance of employees are made, whether under