Congressional Record, Volume 148 Issue 104 (Friday, July 26, 2002)

[Congressional Record Volume 148, Number 104 (Friday, July 26, 2002)]
[House]
[Pages H5793-H5845]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

HOMELAND SECURITY ACT OF 2002

The SPEAKER pro tempore. Pursuant to House Resolution 502 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the further consideration of the bill,
H.R. 5005.

{time} 0905

In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the further consideration of
the bill (H.R. 5005) to establish the Department of Homeland Security,
and for other purposes, with Mr. Linder (Chairman pro tempore) in the
chair.
The Clerk read the title of the bill.
The CHAIRMAN pro tempore. When the Committee of the Whole rose on the
legislative day of Thursday, July 25, 2002, amendment No. 16 printed in
House Report 107-615 offered by the gentleman from Connecticut (Mr.
Shays) had been disposed of.
Pursuant to section 4 of House Resolution 502 and the order of the
House of that date, it is now in order to consider amendment No. 3
printed in House Report 107-615.

Amendment No. 3 Offered by Mr. Waxman

Mr. WAXMAN. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 3 offered by Mr. Waxman:
At the end of the bill add the following new title:

TITLE XI--OFFICE OF HOMELAND SECURITY

SEC. 1101. ESTABLISHMENT.

(a) In General.--There is established in the Executive
Office of the President an Office of Homeland Security
(b) Director.--The head of the Office shall be the Director
of Homeland Security, who shall be appointed by the President
and advice and consent of the Senate.

SEC. 1102. MISSION.

As provided in Executive Order 13228, the mission of the
Office of Homeland Security is to develop and coordinate the
implementation of a comprehensive national strategy to secure
the United States from terrorist threats or attacks.

SEC. 1103. FUNCTIONS.

As provided in Executive Order 13228, the functions of the
Office of Homeland Security shall be to coordinate the
executive branch's efforts to detect, prepare for, prevent,
protect against, respond to, and recover from terrorist
attacks within the United States. Such functions shall
include--
(1) working with executive departments and agencies, State
and local governments, and private entities to ensure the
adequacy of the national strategy for detecting, preparing
for, preventing, protecting against, responding to, and
recovering from terrorist threats or attacks within the
United States and periodically reviewing and coordinating
revisions to that strategy as necessary;
(2) identifying priorities and coordinating efforts for
collection and analysis of information regarding threats of
terrorism against the United States, including ensuring that
all executive departments and agencies that have intelligence
collection responsibilities have sufficient technological
capabilities and resources and that, to the extent permitted
by law, all appropriate and necessary intelligence and law
enforcement information relating to homeland security is
disseminated to and exchanged among appropriate executive
departments and agencies;
(3) coordinating national efforts to prepare for and
mitigate the consequences of terrorist threats or attacks
within the United

[[Page H5794]]

States, including coordinating Federal assistance to State
and local authorities and nongovernmental organizations to
prepare for and respond to terrorist threats or attacks and
ensuring the readiness and coordinated deployment of Federal
response teams to respond to terrorist threats or attacks;
(4) coordinating efforts to prevent terrorist attacks
within the United States;
(5) coordinating efforts to protect the United States and
its critical infrastructure from the consequences of
terrorist attacks;
(6) coordinating efforts to respond to and promote recovery
from terrorist threats or attacks within the United States;
(7) coordinating the domestic response efforts of all
departments and agencies in the event of an imminent
terrorist threat and during and in the immediate aftermath of
a terrorist attacks within the United States and acting as
the principal point of contact for and to the President with
respect to coordination of such efforts;
(8) in coordination with the Assistant to the President for
National Security Affairs, reviewing plans and preparations
for ensuring the continuity of the Federal Government in the
event of a terrorist attacks that threatens the safety and
security of the United States Government or its leadership;
(9) coordinating the strategy of the executive branch for
communicating with the public in the event of a terrorist
threats or attacks within the United States and coordinating
the development of programs for educating the public about
the nature of terrorist threats and appropriate precautions
and responses; and
(10) encouraging and inviting the participation of State
and local governments and private entities, as appropriate,
in carrying out the Offices's functions.

SEC. 1104. ACCESS TO INFORMATION.

As provided in Executive Order 13228, executive agencies,
shall, to the extent permitted by law, make available to the
Office of Homeland Security all information relating to
terrorist threats and activities within the United States.

SEC. 1105. BUDGET APPROVAL.

(a) Authority.--The Director of the Office of Homeland
Security shall--
(1) review the budget requests submitted to the President
by all executive agencies with homeland security
responsibilities; and
(2) if a budget request fails to conform to the objectives
set forth in the national strategy described in section 1102,
may disapprove such budget request.
(b) Effect of Disapproval.--In any case in which a budget
request is disapproved under subsection (a)--
(1) the Director shall notify the appropriate Committees of
Congress; and
(2) the President may not include such budget request in
the annual budget submission to Congress unless the President
makes an express determination that including such request is
in the national interest.

SEC. 1106. ADMINISTRATION.

As provided in Executive Order 13228, the Office of
Administration within the Executive Office of the President
shall provide the Office of Homeland Security with such
personnel, funding, and administrative support, to the extent
permitted by law and subject to the availability of
appropriations, as necessary to carry out the provisions of
this title.

SEC. 1107. DETAIL AND ASSIGNMENT.

As provided in Executive Order 13228, the heads of
executive agencies are authorized, to the extent permitted by
law, to detail or assign personnel of such agencies to the
Office of Homeland Security upon request of the Director of
Homeland Security.

SEC. 1108. OVERSIGHT BY CONGRESS.

The establishment of the Office of Homeland Security within
the Executive Office of the President shall not be construed
as affecting access by Congress, or any committee of
Congress, to--
(1) any information, document, or study in the possession
of, or conducted by or at the direction of, the Director; or
(2) personnel of the Office.

The CHAIRMAN pro tempore. Pursuant to the previous order of the
House, the gentleman from California (Mr. Waxman) and a Member opposed
each will control 10 minutes.
The Chair recognizes the gentleman from California (Mr. Waxman).
Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment would do three things. First, it would
codify the Office of Homeland Security in statute and subject it to
congressional oversight.
Second, it would require that the director of this office be
confirmed by the Senate.
Third, it would provide the director of the office with authority to
review the budgets of all agencies involved in homeland security to
ensure that they conform to the objectives of the national strategy. If
they don't, the director could decertify these budgets. This would
prohibit the OMB director from submitting them to Congress unless the
President made an express finding that they served the national
interest. Decertification would also trigger a requirement to report
the deficiencies to relevant committees in the House and Senate.
Mr. Chairman, creating a new department is fine, but the most
critical challenge is and will continue to be coordinating the efforts
of the entire Federal Government as part of a comprehensive national
strategy.
This chart to my right shows the current situation. There are 153
different agencies involved in homeland security.
The chart next to it, to my right, shows what this bill will do.
There will be even more agencies involved. In fact, according to the
Congressional Budget Office, this new department is so complex it will
cost over $4 billion just to organize and manage the department.
As the chart shows, and I am talking about the chart to the far
right, the chart shows that many agencies integral to homeland security
will remain outside the new department, including the FBI, the CIA, the
Defense Department, the National Guard, and many others.
What is urgently needed is an office at the White House level with
the mandate and authority to develop a national strategy and unite the
government behind it. That is what my amendment would do.
The starting point for this coordination should be the executive
order that established the Office of Homeland Security within the White
House, which President Bush issued last October. This order
appropriately created a White House-level office charged with
coordinating intelligence-gathering, preparedness, prevention,
protection of critical infrastructure, and response and recovery across
the entire country.
The main shortcoming of the executive order, however, is that it did
not give the director of the office sufficient authority to implement
these functions.
This amendment tracks the executive order, but it also provides
additional authority to give the Nation what it needs most: a single
office in the White House with the mission and authority needed to
develop and implement a comprehensive national strategy for homeland
security.
This amendment would do more to protect our national security, I
believe, than the rest of the bill combined, and it is a whole lot
simpler and less expensive.
I urge Members to vote yes on this amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. ARMEY. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN pro tempore. The gentleman from Texas (Mr. Armey) is
recognized for 10 minutes.
Mr. ARMEY. Mr. Chairman, I yield 4 minutes to the gentlewoman from
California (Ms. Harman).
Ms. HARMAN. Mr. Chairman, I thank the gentleman for yielding time to
me, and I thank him for his leadership on this bill.
Mr. Chairman, I say to my colleagues that I thank them for their
leadership and their participation in this important effort to secure
the homeland.
Mr. Chairman, I rise to address the context in which we consider this
amendment. Coming late to this debate, my colleague, the gentleman from
California, may not know the issue's history.
His amendment is similar to a bill that I and a bipartisan group
introduced last October at a time when we believed the administration
would not support a large Department of Homeland Security. We felt, and
still do, that there needs to be one integrating strategy across the
Federal Government. One person needs to be accountable for budget and
coordination. One person needs to be a Cabinet-level official confirmed
by the Senate.
The difference between now and last October is that, under H.R. 5005,
that person is the Secretary of Homeland Security, who presides over
the critical homeland security functions and a large workforce.
Under H.R. 5005, a statutory Homeland Security Council in the White
House will coordinate government functions not contained in the new
department, just as the National Security Council coordinates defense,
foreign policy, and other national security functions.
If the sponsor of this amendment believes that the National Security
Advisor lacks the authority to coordinate national security, I am
unaware of it.
Mr. Chairman, a long history got us to this concept. As I mentioned,
last

[[Page H5795]]

October I introduced the Office of Homeland Security Act with the
gentleman from Nevada (Mr. Gibbons) and 34 bipartisan cosponsors. The
sponsor of this pending amendment was not one of them.
The organizing principle of that bill was included in legislation
introduced by the gentleman from New Jersey (Mr. Menendez) and 117
members of the Democratic Caucus. The language was modified to
accommodate concerns of our colleagues on the Committee on the Budget
and the Committee on Armed Services.
The sponsor of this pending amendment did not participate in these
negotiations and did not cosponsor the task force bill. Further, his
amendment, the one we are considering today, disregards the careful
budget process that our colleagues, the gentleman from South Carolina
(Mr. Spratt), the gentleman from Missouri (Mr. Skelton), and the
gentleman from Texas (Mr. Turner) helped construct.
When a bipartisan, bicameral group developed and introduced H.R.
4660, which combined the White House coordination and Department of
Homeland Security functions, and which is the precursor of the bill we
are considering today, the principal sponsor of this amendment did not
participate.
On May 21, the minority leader supported this bill, our bill, H.R.
4660, at a press conference, where we were joined by the ranking member
of the Committee on Appropriations, the gentleman from Wisconsin (Mr.
Obey).
This issue has been my principal focus for this term in Congress. My
position has adapted as the context has changed, and I believe that
careful consideration will show that the gentleman's amendment would
hurt rather than help coordination.
Finally, I urge our colleagues to note that this amendment would cut
OMB completely out of the budget process for homeland security. The
Director of Homeland Security in this amendment is given the power to
reject unilaterally homeland security budgets from any department,
tying even the hands of the President.
Mr. Chairman, there is a better concept than this amendment, and it
is in the base bill. The bipartisan process that developed that
language should be respected.
I urge our colleagues to consider the context in which this amendment
arises and to reject it.
Mr. WAXMAN. Mr. Chairman, I yield 3 minutes to the gentlewoman from
California (Ms. Pelosi).
Ms. PELOSI. Mr. Chairman, I thank the gentleman for yielding time to
me; and I thank him for his leadership as a ranking member on the
Committee on Government Reform and for his thorough understanding of
the challenge that we have before us today.
I also want to commend the gentlewoman from California (Ms. Harman)
for her leadership over the past year on this issue of homeland
security. I want to take my lead from her when she said we must
consider the context within which this amendment will be judged,
because I believe the context within which this amendment will be
judged is the context of a very big bill to establish a department,
which we all agree we need, but the size of which and the approach to
which harkens back to the 1950s, rather than into the future.
It is not a department for this new century. It is old and fashioned
in a very old-fashioned way. It does not utilize to the maximum extent
the technologies, and instead depends on locating 170,000 people. That
is the low estimate. GAO says it could be as many as 200,000 people.
Mr. Chairman, there are 85,000 jurisdictions in our country, cities,
towns, governments, of one kind or another, that this homeland security
initiative must communicate with. Of that 85,000, only about 120 are
larger than this proposed department. Cities like Salt Lake City;
Providence, Rhode Island; Portsmouth, Maine; Reno, Nevada; and the list
goes on and on, have fewer people than this Department of Homeland
Security will have. The CBO says it will cost $4.5 billion to set this
up, it is so large.
We will pay any price to protect our people, but that money might be
better spent protecting our people than to go down this path of big
government, a bureaucratic approach. We want that secretary of a lean
department to be able to use his or her thinking about how to protect
the American people, rather than spend time managing a department
larger than most cities and towns in our country.
But the main point that I want to make is that the GAO, the
Government Accounting Office, has said that it will take 5 to 10 years
to have a Department of this size up and running. We simply cannot wait
that long. Nothing less than the safety and security of the American
people depend on us being, from day one, ready to protect them in the
strongest possible way.
I have supported the amendment of the gentlewoman from California
(Ms. Harman) to codify the Office of Homeland Security in the White
House. I think that is a good idea. I think it is a better idea to make
that department stronger, at least for the time that it takes to set up
this department.
That is why I support the gentleman's amendment. I commend him for
tracking the President's executive order, and I hope that he will be
open to some compromise so that we can get this part of the bill moving
and to have it signed.
I urge our colleagues to support the Waxman amendment. I support him,
and I commend the gentlewoman from California (Ms. Harman) for her
leadership.
Mr. ARMEY. Mr. Chairman, I yield 4\1/2\ minutes to the gentleman from
Ohio (Mr. Portman).
Mr. PORTMAN. Mr. Chairman, I thank the Chair of the Select Committee
on Homeland Security for yielding time to me.
Mr. Chairman, I am very eager to talk on this proposal this morning.
First of all, I would like to say to the gentleman from California
(Mr. Waxman) that I know he is well-intended, I know that his proposal
is sincere, and I know we share the same goal, but I strongly believe
that the structure he has laid out will fail.
I also strongly believe that he does not understand the design and
the purpose of this new department. I want to start by talking a bit
about that.
The chart we had up here earlier looked a little like the health care
plan we saw a few years ago, and it does look very complicated. It is
very bureaucratic, when we look at all the different agencies and
departments now involved in combatting terrorism.
That is the point. We do have over 100 different agencies. We have
everyone in charge and no one in charge. We need to bring
accountability to this. We need to align authority with responsibility,
with very aggressive congressional oversight.
The gentleman has been very good at that over the years, and I would
hope that, through Democrat and Republican administrations alike, this
Congress and this gentleman, as long as he is here, will provide that
oversight so we have real accountability. That is what this is about.
It is not about creating a 1950s-size organization. It is about
streamlining and consolidation.
The chart the gentleman held up showed a lot of different boxes and
agencies and departments. This is the new Department of Homeland
Security. This is the proposal the President sent us. This is the
proposal that got through the various select committees. This is the
proposal of the standing committees and now the select committee.
It has only four areas. One, the vast majority, almost all of the
employees, will be in border and transportation security. The whole
notion here is to streamline and consolidate; and to get the synergies
out of that consolidation and streamlining in one new department, where
we have real accountability, where somebody is in charge, that is the
only way we are going to protect the homeland.
He has talked a lot about the CBO study, as has my friend, the
gentlewoman from California (Ms. Pelosi). I hope they read it. I hope
all my colleagues will read this CBO study. At least look at the
summary of it.
They say this will cost $4.5 billion, and $2.2 billion is in existing
departments in the Department of Defense. I don't know where they come
up with that $2.2 billion. The remaining part of this for
administrative costs for start-up is less than 1 percent of the budget
of this department.
Finally, they take absolutely no account of any savings. They have no
offsets at all for the consolidation and streamlining.

[[Page H5796]]

Again, with all due respect, the Congressional Budget Office is a
20th century budget-scoring organization trying to score a 21st century
idea. This merger will create synergies and will create, over time, I
am convinced, cost savings if we do it right and if the Congress
provides the needed oversight.
I think there will be some start-up costs, but they will be minor.
The more important thing is in the mid-term and long term there will be
substantial efficiencies, and we will now have accountability and be
able to protect our kids and grandkids from the threat of terrorism
that faces us in this new century, the most important thing.
One of the ironies in this debate to me is that the very people who
are saying, gee, this is going to be a big, new, 20th-century
bureaucracy, 1950s bureaucracy, are the same people who say we cannot
give the President and this new department the kind of flexibilities
they need to manage this new agency.
Managerial, budget, and personnel flexibilities are absolutely
critical to make this work. I agree that we need to provide those.
Today we will have an opportunity to discuss that further as a number
of amendments will be offered to try to take the select committee
product, which is a streamlined, consolidated, 21st century agency, and
try to take it back to the 1950s. We need to reject that.
Finally, the President's proposal does include a coordinating
council. He has already done that. He has set up a Homeland Security
Council by executive order.
In the select committee, on a bipartisan basis, in fact, all four
Democrats and three of us Republicans decided to support the
gentlewoman from California (Ms. Harman) and her proposal she has
worked on, not just for weeks or months but for years, to establish a
coordinating council in the White House by statute.
Why is that important? Because this administration has shown that it
is going to prioritize fighting terrorism by executive order. We want
to ensure in Congress that future administrations will do the same. We
do need to have this coordinating council.
Mr. Chairman, this is the right way to go for 3 quick reasons.
One, this allows the President to have an actual advisor. Otherwise,
if you have Mr. Waxman's proposal, this advisor has to come up and
testify before Congress, has to be confirmed by the Senate, the
President will not rely on that person for candid advice, period.
Number two, it has no teeth. Look at the Council on Environmental
Quality, if you are interested in the environment as the gentleman from
California (Mr. Waxman) is, and tell me whether the CEQ has been
effective in telling agencies how to prioritize budgets. Tell me if the
drug czar has been effective. That is the other model. These are not
the right models.
Third, the right model is there. It is the National Security Council.
That is the one the gentlewoman from California (Ms. Harman) proposes.
It has teeth. Let us reject the toothless alternative. Let us go with
the real thing.
Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, we might have some difference about how this office
ought to function in the White House. The proposal that I am offering
is not something that I alone am supporting. It is, by the way, the
proposal that has reached bipartisan support in the Senate. Senator
Lieberman's committee has supported this concept. The Brookings
Institution, this is the core idea of their recommendation.
The General Accounting Office said that we need a stronger director
in the White House with the tools to be able to do the job of
coordinating these activities.
Evidently, none of the three of them talked to my colleague, the
gentlewoman from California (Ms. Harman), but they came to a different
conclusion, as have I, than her recommendation.
I must say that I do not think that what we are proposing is
inconsistent with what the gentleman from Ohio (Mr. Portman) offered to
create this Homeland Security Council to advise the President of
homeland security matters and work in consultation with OMB on a
homeland security budget.
The difference we have is the Council would have much weaker powers
than the Director of Homeland Security under the current amendment. For
example, the Council would not be permitted to decertify an agency's
budget submission. It would not prohibit the Office of Management and
Budget Director from submitting the decertified budgets to the Congress
without the President's review and approval, and it would not be
required to report deficiencies to the Congress.
In other words, the Director of Homeland Security would have far
fewer tools to coordinate the dozens and dozens of agencies that remain
outside the new department. Passing this amendment in addition to the
Portman language would not be inconsistent. Both could be included in
the final bill.
Mr. Chairman, we are all trying to make this whole business work of
trying to protect our country, and we are talking on a bipartisan basis
about a department and strengthening the coordination at the White
House.
I would submit that my amendment, which is the amendment that has
been recommended by think tanks that have been involved in these
organizational questions for many years, is a sound way for us to
proceed. It gives the President the flexibility and the tools to have
someone in the White House be able to do the job. I fear that with all
the rearranging of the bureaucracy, if that is all we do, we will not
have done enough.
We may have differences on this matter, and I respect the fact that
people can have differences, but let us recognize that all of us are
trying to do what we can in the national interest.
Mr. Chairman, I reserve the balance of my time.
Mr. ARMEY. Mr. Chairman, I yield such time as he may consume to the
gentleman from Nevada (Mr. Gibbons).
(Mr. GIBBONS asked and was given permission to revise and extend his
remarks.)
Mr. GIBBONS. Mr. Chairman, I rise in opposition to the Waxman
amendment.
Mr. Chairman, I have been privileged to work closely with the White
House, the House Select Committee on Homeland Security and several of
my colleagues on both sides of the aisle on this legislation.
This amendment gives the head of the Office of Homeland Security too
much power. It creates the possibility of a turf war between the
Director of the Office of Homeland Security and the new Secretary of
Homeland Security. I believe it is more appropriate at this time to
create in statue the Homeland Security Council that is in the
legislation that the Select Committee on Homeland Security reported
out.
This council will coordinate with the over 80 government agencies
that play a role in Homeland Security that will not be part of the new
Department. The council enables key organizations outside the new
Department to meet and talk about Homeland Security with the President.
At the center of this council is an advisor, whose role will be
similar to that of National Security Advisor Condoleezza Rice. The
advisor will coordinate homeland security efforts among federal
departments and agencies, update national strategy, and be available to
advise and perform other duties that the President may direct.
The establishment of this council is vital to ensure all information
is shared with all agencies and not just kept within the new
Department. While not a Senate confirmable position, it establishes the
position that Governor Ridge currently holds in statue.
Mr. Chairman, as you know, the White House is against this amendment,
the House Select Committee on Homeland Security is against this
amendment, even the gentleman's own party leadership is against this
amendment.
I urge my colleagues to vote against this amendment.
Mr. WAXMAN. Mr. Chairman, I yield my remaining 30 seconds to my
colleague, the gentlewoman from California (Ms. Pelosi), the ranking
member on the Select Committee on Homeland Security.
Ms. PELOSI. Mr. Chairman, I thank the gentleman for yielding time to
me.
Again, I acknowledge the fine work of the gentlewoman from California
(Ms. Harman) and the fine work of our ranking member on the Committee
on Government Reform, the gentleman from California (Mr. Waxman).
I just want to make this final point: I talked earlier about the size
of this department and the number of localities in this country that
are larger. There are not that many that have more people than this
department will have.

[[Page H5797]]

The main point about what we do here is about localities, localities,
localities, is it not, I ask the leader, and how we communicate with
them; how we do it immediately to protect from day one the American
people? Those localities need a place to coordinate with that is strong
and effective from day one, and not wait 5 to 10 years for the
department to be established.
I urge my colleagues to support the amendment.
Mr. ARMEY. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, absent this legislation that we are considering today,
the proposition proposed by the gentleman from California (Mr. Waxman)
might have been a good idea. I think there was a time it was.
But as soon as we turned ourselves in the direction of establishing a
Department of Homeland Security with a Secretary of Homeland Security,
this proposition was just simply out of place.
What we are doing with this legislation before us is establishing a
Department of Homeland Security with a Secretary of Homeland Security.
The Secretary will himself be confirmed by advice and consent in the
other body, as will several other deputy under secretaries that relate
to that department.
Mr. Chairman, I would submit that the other body will have all the
opportunity to advise and consent on the question of homeland security
that they can handle, perhaps even more.
The other thing about this that bothers me is it is an imposition
against the separation of powers. We in the Congress jealously guard
our powers. We would not accept the idea that anyone from the executive
branch should tell us how to staff the United States Congress, nor
should we try to impose on the White House how it should staff itself.
The President of the United States is perfectly capable, as we have
seen in the case of Governor Ridge, to make a decision about what is
needed in his White House staff, select the person that can perform the
duties that would be assigned to that person, and carry out those, or
watch oversight of those duties being carried out.
This amendment is out of step, out of place, and I believe out of
line. We ought to vote it down.
Mrs. CHRISTENSEN. Mr. Chairman, I rise in support of the Waxman
Amendment to codify and strengthen the White House Office of Homeland
Security.
This is the right approach. It is supported by independent research
and expert opinion. This amendment is the only way to create the kind
of Office of Homeland Defense that can be effective and provide the
protection we need, and the people of the United States deserve.
We should not be creating a large unwieldy bureaucracy that
undermines the mission of many important agencies as H.R. 5005 would
do. The base bill and the agency it creates, passed, will undermine our
health, our safety and response to natural disasters, our safety on the
seas, and countless other protections that Americans have always
counted on to be there.
The approach contained in this amendment is the correct approach, and
the only one that would provide homeland security.
The CHAIRMAN pro tempore. All time for debate has expired.
The question is on the amendment offered by the gentleman from
California (Mr. Waxman).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.

Recorded Vote

Mr. WAXMAN. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN pro tempore. Following this 15-minute vote on the Waxman
amendment, pursuant to clause 6 of rule XVIII, proceedings will resume
on those amendments on which further proceedings were postponed last
night in the following order: Amendment No. 1 offered by the gentleman
from Minnesota (Mr. Oberstar), amendment No. 8 offered by the gentleman
from Maryland (Mr. Cardin), and amendment No. 14 offered by the
gentleman from Kentucky (Mr. Rogers).
This is a 15-minute vote, and the following three votes will be 5-
minute vote.
The vote was taken by electronic device, and there were--ayes 175,
noes 248, not voting 11, as follows:

[Roll No. 352]

AYES--175

Abercrombie
Ackerman
Allen
Andrews
Baca
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Blumenauer
Bonior
Borski
Boswell
Boucher
Brady (PA)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Clayton
Clyburn
Conyers
Costello
Coyne
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne
Pelosi
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Solis
Strickland
Stupak
Tanner
Taylor (MS)
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--248

Aderholt
Akin
Armey
Bachus
Baird
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Berry
Biggert
Bilirakis
Bishop
Blagojevich
Boehlert
Boehner
Bonilla
Bono
Boozman
Boyd
Brady (TX)
Brown (FL)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Carson (OK)
Castle
Chabot
Chambliss
Clement
Coble
Collins
Combest
Cooksey
Cox
Cramer
Crane
Crenshaw
Crowley
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
Delahunt
DeLay
DeMint
Diaz-Balart
Dooley
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Ford
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Harman
Hart
Hastert
Hastings (FL)
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
Kind (WI)
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Maloney (CT)
Manzullo
McCrery
McHugh
McInnis
McIntyre
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moore
Moran (KS)
Moran (VA)
Morella
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Pascrell
Paul
Pence
Peterson (PA)
Petri
Phelps
Pitts
Platts
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schiff
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (WA)
Snyder
Souder
Spratt
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tauscher
Tauzin
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (FL)

[[Page H5798]]

NOT VOTING--11

Blunt
Clay
Condit
Doolittle
Meehan
Pickering
Pombo
Smith (TX)
Stark
Waters
Young (AK)

{time} 0955

Mrs. TAUSCHER, Mrs. NORTHUP, and Messrs. BARTON of Texas, HASTINGS of
Florida, BAIRD, CROWLEY, HEFLEY, BARR of Georgia, MANZULLO, PAUL, and
BERRY changed their vote from ``aye'' to ``no.''
Messrs. CUMMINGS, WATT of North Carolina, and SKELTON changed their
vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
Stated against:
Mr. PICKERING. Mr. Chairman, on rollcall No. 352, I was detained due
to traffic. Had I been present, I would have voted ``no.''
(Ms. PELOSI asked and was given permission to speak out of order.)

Congratulations to Congressman Meehan and his wife, Ellen, on the birth
of Daniel Martin Meehan

Ms. PELOSI. Mr. Chairman, as we debate matters of great seriousness
today, there is some good news to report, and I think a good omen, and
that is that last night Marty Meehan and his wife, Ellen, received
God's blessing of Daniel Martin Meehan, 9 pounds, 10 ounces, 22 inches
long, in Lawrence, Massachusetts.
I know we all want to congratulate Marty and Ellen Meehan.

Announcement by the Chairman pro tempore

The CHAIRMAN pro tempore. Pursuant to clause 6, rule XVIII, the Chair
announces that he will reduce to a minimum of 5 minutes the period of
time during which a vote by electronic device will be taken on each
amendment on which the Chair has postponed further proceedings.

Amendment No. 1 Offered by Mr. Oberstar

The CHAIRMAN pro tempore. The unfinished business is the demand for a
recorded vote on amendment No. 1 offered by the gentleman from
Minnesota (Mr. Oberstar) on which further proceedings were postponed
and on which the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The text of the amendment is as follows:

Amendment No. 1 offered by Mr. Oberstar:
Strike section 402(5) of the bill (and redesignate
subsequent paragraphs accordingly).
In section 501(1) of the bill, strike ``, major disasters,
and other emergencies''.
In the matter preceding subparagraph (A) of section 501(3)
of the bill, strike ``and major disasters''.
In section 501(3)(D) of the bill, strike ``or major
disaster''.
In section 501(4) of the bill--
(1) strike ``and major disasters'';
(2) strike ``or major disasters''; and
(3) strike ``or disasters''.
In section 501(5) of the bill, strike ``and disasters''.
Strike section 501(6) of the bill and insert the following:
(6) In consultation with the Director of the Federal
Emergency Management Agency, consolidating existing Federal
Government emergency response plans for terrorist attacks
into the Federal Response Plan referred to in section 506(b).
In section 502(1) of the bill, strike the text after
``(1)'' and preceding ``Integrated'' and insert ``The''.
At the end of title V of the bill, insert the following
(and conform the table of contents of the bill accordingly):

SEC. 506. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.

(a) In General.--The functions of the Federal Emergency
Management Agency include, but are not limited to, the
following:
(1) All functions and authorities prescribed by the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5121 et seq.).
(2) Carrying out its mission to reduce the loss of life and
property and protect the Nation from all hazards by leading
and supporting the Nation in a comprehensive, risk-based
emergency management program--
(A) of mitigation, by taking sustained actions to reduce or
eliminate long-term risk to people and property from hazards
and their effects;
(B) of preparedness, by building the emergency management
profession to prepare effectively for, mitigate against,
respond to, and recover from any hazard by planning,
training, and exercising;
(C) of response, by conducting emergency operations to save
lives and property through positioning emergency equipment
and supplies, through evacuating potential victims, through
providing food, water, shelter, and medical care to those in
need, and through restoring critical public services;
(D) of recovery, by rebuilding communities so individuals,
businesses, and governments can function on their own, return
to normal life, and protect against future hazards; and
(E) of increased efficiencies, by coordinating efforts
relating to preparedness and response activities to maximize
efficiencies.
(b) Federal Response Plan.--
(1) Role of fema.--Notwithstanding any other provision of
this Act, the Federal Emergency Management Agency shall
remain the lead agency for the Federal Response Plan
established under Executive Order 12148 (44 Fed. Reg. 43239)
and Executive Order 12656 (53 Fed. Reg. 47491).
(2) Revision of response plan.--Not later than 60 days
after the date of enactment of this Act, the Director of the
Federal Emergency Management Agency shall revise the Federal
Response Plan to reflect the establishment of and incorporate
the Department.
(3) Memorandum of understanding.--Not later than 60 days
after the date of enactment of this Act, the Secretary and
the Director of the Federal Emergency Management Agency shall
adopt a memorandum of understanding to address the roles and
responsibilities of their respective agencies under this
title.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN pro tempore. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 165,
noes 261, not voting 8, as follows:

[Roll No. 353]

AYES--165

Ackerman
Allen
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Boozman
Borski
Boswell
Boucher
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Conyers
Costello
Coyne
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
Davis, Jo Ann
DeFazio
DeLauro
Dicks
Dingell
Doyle
Duncan
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Frank
Frost
Gephardt
Gonzalez
Gordon
Gutierrez
Hall (OH)
Hilliard
Hinchey
Hinojosa
Honda
Hooley
Hostettler
Inslee
Isakson
Istook
Jackson (IL)
Jefferson
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Lantos
Larsen (WA)
LaTourette
Lee
Lewis (GA)
Lipinski
Lowey
Lynch
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Mica
Miller, George
Mink
Moore
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Petri
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Snyder
Solis
Spratt
Strickland
Stupak
Thompson (MS)
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--261

Abercrombie
Aderholt
Akin
Andrews
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bentsen
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bonior
Bono
Boyd
Brady (PA)
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Combest
Cooksey
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Tom
Deal
DeGette
Delahunt
DeLay
DeMint
Deutsch
Diaz-Balart
Doggett
Dooley
Dreier
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Ford
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (TX)
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Harman
Hart
Hastert
Hastings (FL)
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoeffel
Hoekstra
Holden
Holt
Horn
Houghton
Hoyer
Hulshof
Hunter
Hyde
Israel
Issa
Jackson-Lee (TX)
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
Kildee
King (NY)
Kingston

[[Page H5799]]

Kirk
Knollenberg
Kolbe
LaHood
Langevin
Larson (CT)
Latham
Leach
Levin
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lofgren
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Manzullo
McCrery
McGovern
McHugh
McInnis
McKeon
Menendez
Millender-McDonald
Miller, Dan
Miller, Gary
Miller, Jeff
Mollohan
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Pascrell
Pence
Peterson (PA)
Phelps
Pickering
Pitts
Platts
Pomeroy
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schiff
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (WA)
Souder
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Turner
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (FL)

NOT VOTING--8

Blunt
Condit
Doolittle
Meehan
Pombo
Smith (TX)
Stark
Young (AK)

{time} 1006

Mr. FORD and Mr. DEUTSCH changed their vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 8 Offered by Mr. Cardin

The CHAIRMAN pro tempore. The unfinished business is the demand for a
recorded vote on the amendment offered by the gentleman from Maryland
(Mr. Cardin) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The text of the amendment is as follows:

Amendment No. 8 offered by Mr. Cardin:
In section 401(1), add the following at the end: ``The
functions, personnel, assets, and obligations of the Customs
Service so transferred shall be maintained as a distinct
entity within the Department.''.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 177,
noes 245, not voting 11, as follows:

[Roll No. 354]

AYES--177

Abercrombie
Ackerman
Allen
Baca
Baird
Baldacci
Baldwin
Barcia
Becerra
Bentsen
Berkley
Berman
Bishop
Blumenauer
Bonior
Borski
Boswell
Boucher
Boyd
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clayton
Clement
Clyburn
Conyers
Costello
Coyne
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Hastings (FL)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holt
Honda
Houghton
Hoyer
Inslee
Israel
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCollum
McDermott
McGovern
McHugh
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Paul
Payne
Pelosi
Petri
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Rothman
Roybal-Allard
Rush
Sabo
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Woolsey
Wu
Wynn

NOES--245

Aderholt
Akin
Andrews
Armey
Bachus
Baker
Ballenger
Barr
Barrett
Bartlett
Barton
Bass
Bereuter
Berry
Biggert
Bilirakis
Blagojevich
Boehlert
Boehner
Bonilla
Bono
Boozman
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Clay
Coble
Collins
Combest
Cooksey
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Deal
DeLay
DeMint
Deutsch
Diaz-Balart
Dooley
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Harman
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Holden
Hooley
Horn
Hostettler
Hulshof
Hunter
Hyde
Isakson
Issa
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
Kind (WI)
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaFalce
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Luther
Lynch
Maloney (CT)
Manzullo
McCarthy (NY)
McCrery
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Murtha
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Pascrell
Pence
Peterson (MN)
Peterson (PA)
Phelps
Pickering
Pitts
Platts
Portman
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Roemer
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Roukema
Royce
Ryan (WI)
Ryun (KS)
Sanchez
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shows
Shuster
Simmons
Simpson
Skeen
Skelton
Smith (MI)
Smith (NJ)
Souder
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Udall (NM)
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (PA)
Weller
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (FL)

NOT VOTING--11

Blunt
Condit
Doolittle
Fletcher
Meehan
Morella
Pombo
Pryce (OH)
Smith (TX)
Weldon (FL)
Young (AK)

{time} 1014

Mr. BLAGOJEVICH changed his vote from ``aye'' to ``no.''
Mr. FRANK changed his vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
Stated against:
Ms. PRYCE of Ohio. Mr. Chairman, on rollcall No. 354, I was
inadvertently detained. Had I been present, I would have voted ``no.''

{time} 1015

Amendment No. 14 Offered by Mr. Rogers of Kentucky

The CHAIRMAN pro tempore (Mr. Latham). The unfinished business is the
demand for a recorded vote on amendment No. 14 offered by the gentleman
from Kentucky (Mr. Rogers) on which further proceedings were postponed
and on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The text of the amendment is as follows:

At the appropriate place in the bill, add the following new
section:

SEC. . JOINT INTERAGENCY TASK FORCE.

(a) Establishment.--The Secretary may establish and operate
a permanent Joint Interagency Homeland Security Task Force
composed of representatives from military and civilian
agencies of the United States Government for the purposes of
anticipating terrorist threats against the United States and
taking appropriate actions to prevent harm to the United
States.
(b) Structure.--It is the sense of Congress that the
Secretary should model the Joint

[[Page H5800]]

Interagency Homeland Security Task Force on the approach
taken by the Joint Interagency Task Forces for drug
interdiction at Key West, Florida and Alameda, California, to
the maximum extent feasible and appropriate.

Recorded Vote

[Roll No. 355]

AYES--240

Aderholt
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bonior
Bono
Boozman
Borski
Boswell
Boucher
Boyd
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Chabot
Chambliss
Clement
Coble
Collins
Combest
Cooksey
Costello
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Dicks
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Fletcher
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gephardt
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Gordon
Goss
Graham
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hansen
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Honda
Horn
Houghton
Hulshof
Hunter
Hyde
Isakson
Israel
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Keller
Kelly
Kennedy (MN)
Kerns
Kind (WI)
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaFalce
LaHood
Lantos
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Lynch
Maloney (NY)
Manzullo
McCrery
McHugh
McInnis
McIntyre
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Mollohan
Moran (KS)
Morella
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Pence
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherman
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (WA)
Souder
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tanner
Tauzin
Terry
Thomas
Thune
Tiahrt
Tiberi
Toomey
Turner
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Wu
Young (FL)

NOES--188

Abercrombie
Ackerman
Akin
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Castle
Clay
Clayton
Clyburn
Condit
Conyers
Coyne
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Doggett
Dooley
Doyle
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Flake
Ford
Frank
Frost
Gonzalez
Granger
Green (TX)
Gutierrez
Hall (OH)
Hall (TX)
Harman
Hastings (FL)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Hooley
Hostettler
Hoyer
Inslee
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Kucinich
Lampson
Langevin
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Maloney (CT)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Ryan (WI)
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Shows
Skelton
Slaughter
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tauscher
Taylor (MS)
Taylor (NC)
Thompson (CA)
Thompson (MS)
Thornberry
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wynn

NOT VOTING--5

Blunt
Doolittle
Meehan
Smith (TX)
Young (AK)

{time} 1024

Mr. WATT of North Carolina and Mr. Luther changed their vote from
``aye'' to ``no''.
Mr. McINTYRE changed his vote from ``no'' to ``aye''.
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Stated against:
Mr. BONIOR. Mr. Chairman, on rollcall No. 355, the Rogers amendment
to H.R. 5005, I mistakenly cast an ``aye'' vote. I intended to vote no.
(By unanimous consent, Mr. Shays was allowed to speak out of order.)

Moment of Silence for Miners Trapped in Somerset, Pennsylvania

Mr. SHAYS. Mr. Chairman, in consultation with the gentleman from
Pennsylvania (Mr. Murtha) and the gentleman from Pennsylvania (Mr.
Gekas), I ask for a moment of silence for the 9 miners in Somerset,
Pennsylvania, trapped 240 feet underground. They have been trapped
there for over 48 hours under very extreme conditions.
Mr. Chairman, this is in the district of the gentleman from
Pennsylvania (Mr. Murtha), and he and others in this Chamber request
the prayers of the Members of this Chamber for those miners, for their
families, and for the heroic work of our rescue workers.
I ask for a moment of silence.
The CHAIRMAN pro tempore. Would all Members please stand.
It is now in order to consider amendment No 17 printed in House
Report 107-615.

Amendment No. 17 Offered by Mr. Shays

Mr. SHAYS. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 17 offered by Mr. Shays:
Page 189, after line 7, insert the following (and
redesignate succeeding sections and references thereto
accordingly):

SEC. 762. LABOR-MANAGEMENT RELATIONS.

(a) Limitation on Exclusionary Authority.--
(1) In general.--No agency or subdivision of an agency
which is transferred to the Department pursuant to this Act
shall be excluded from the coverage of chapter 71 of title 5,
United States Code, as a result 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

[[Page H5801]]

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) Homeland Security.--Subsections (a), (b), and (d) of
this section shall not apply in circumstances where the
President determines in writing that such application would
have a substantial adverse impact on the Department's ability
to protect homeland security.
(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.
The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentleman from Connecticut (Mr. Shays) and the gentleman from
California (Mr. Waxman) each will control 10 minutes.
The Chair recognizes the gentleman from Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment is a matter of absolute national
security. In creating the Department of Homeland Security, it would be
dangerous to leave the President with less authority to act in the
interest of national security than he has under current law.
Management powers afforded every President since Jimmy Carter must be
available to this President and to future Presidents to preserve the
safety and defend the security of this great Nation.
Mr. Chairman, this amendment addresses the heartfelt concerns of the
gentlewoman from Maryland (Mrs. Morella), our colleague, and others who
feel current authority to exclude Federal employees from coverage under
the labor laws could be used overbroadly in a department with so broad
a security mission.
So we have included the Morella amendment adopted by the Committee on
Government Reform, but with a safety valve. The Morella amendment would
limit use of current exclusions that might otherwise apply to some
Homeland Security Department employees. Existing exclusions could not
be used unless the mission and the responsibilities of the affected
agency or unit have changed materially and a majority of employees have
as their primary duty intelligence, counterintelligence or
investigative work directly related to terrorism investigation.
But our amendment also provides an essential safety valve. And safety
is the reason we are creating the new Department. Subsection C would
allow the President to apply existing exclusion authority in those
special circumstances where he determines in writing that labor law
coverage of the agency in question would have, quote, ``a substantial
adverse impact,'' end of quote, on homeland security.
This puts a new tough new standard on the top of already rigorous
tests the President must meet under title 5, chapter 71. To exercise
his national security authority under this provision, the President
must pass through three gates. First, he must determine that the
Department's ability to protect homeland security will be significantly
and adversely affected. Then, the current law tests must be met:
Employee's primary function is in intelligence, counterintelligence,
investigative or national security work; and, there is an
incompatibility between labor law coverage and national security in the
particular agency.
We believe this approach represents a sensible and workable
compromise between permanently diminishing Presidential national
security authority, as the Morella amendment alone would do, and
providing no new standards for exercise of that authority in the new
Department.
This amendment preserves the President's ability to act in the
interest of national security while acknowledging the unique
circumstance of employees being transferred into this new Department.
Mr. Chairman, I reserve the balance of my time.
Mr. WAXMAN. Mr. Chairman, I yield myself 3 minutes.
Mr. Chairman, at the outset, I want to comment on the process under
which we are considering this and the Morella amendment. The Republican
leadership has rigged the process regarding the Shays and the Morella
amendments by denying the gentlewoman from Maryland (Mrs. Morella) a
clean vote on her amendment.
The Shays and Morella amendments are identical to each other, except
that the Shays amendment includes a final paragraph that undoes the
rest of the amendment. As a result, if both pass, the Morella amendment
will be meaningless. It will do nothing.
The gentlewoman asked for a chance to modify her amendment so that it
could strike the offending provision in the Shays amendment, but she
was denied the opportunity to do that by her own leadership.
The result is a rigged process. So even if the Morella amendment
prevails, she loses if the Shays amendment is also adopted.
Mr. Chairman, I would urge my colleagues who want to support the
Morella amendment to vote for the Morella amendment and vote against
the Shays amendment. This issue deals with labor management relations.
The amendment takes the Morella amendment, which passed out of the
Committee on Government Reform on a bipartisan basis, and renders it
useless.
Let me explain the situation. Under existing law, the President can
strip an agency's employees of collective bargaining rights if he
determines that the agency or subdivision's primary function is
counterintelligence, investigative or national security work. The
amendment offered by the gentlewoman from Maryland provides a very
limited exception to this authority. It says that the collective
bargaining rights of employees who are currently in unions cannot be
eliminated unless their functions change after they are transferred to
the new Department.
The Shays amendment states that the Morella amendment would apply,
except if the President does not want it to apply. Well, that means the
Morella amendment has no meaning to it. Basically, it allows the
President to do exactly what the gentlewoman's amendment was seeking to
prohibit.
Mr. Chairman, the Morella amendment is carefully crafted. It gives
the President broad flexibility to restrict collective bargaining
rights when the duties of employees change. Moreover, it does not apply
to over two-thirds of the employees in the Department because these
employees are not currently in collective bargaining units. And it will
not apply to the new units with sensitive responsibilities such as the
new intelligence analysis office.
The Morella amendment would not be needed if the President and the
administration had a track record of respecting employees' legitimate
rights to organize and bargain collectively. Unfortunately, the
administration has not respected these rights. Earlier this year, the
President striped union rights away from clerical workers in the
offices of U.S. Attorneys. Many of these employees had been in unions
and they were union members for over 20 years.
So if we do not pass the Morella amendment, the same thing that
happened at the offices of the U.S. Attorneys will happen in the new
Department. That is why she offered the amendment in committee and why
it was adopted.
So I would urge my colleagues to vote against the Shays amendment and
then, when the Morella amendment is offered, to support it.
Mr. Chairman, I reserve the balance of my time.
Mr. SHAYS. Mr. Chairman, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Weldon.)
(Mr. WELDON of Pennsylvania asked and was given permission to revise
and extend his remarks.)
Mr. WELDON of Pennsylvania. Mr. Chairman, I rise in a difficult
position, but very supportive of the Shays amendment, and let me
explain why.
First of all, as most of my colleagues certainly on this side know, I
am a strong supporter of the labor movement in this country and I make
no bones about it. I coauthored family medical leave with the gentleman
from Tennessee (Mr. Gordon) as a compromise many sessions ago and still
support that legislation. I opposed

[[Page H5802]]

NAFTA. I was one of the few Republicans that opposed my President on
trade promotion authority. I supported Davis-Bacon so that our building
trades have the kind of support that they need. Pension reform, minimum
wage, I have been there and that is because I come from a blue collar
background.
Mr. Chairman, I am the youngest of nine kids. My father worked in a
factory and was a member of the Textile Workers Union. My job is to try
to strike a balance between what is best for business and what is best
for the worker.
In this case I have to come down not just on the side of the worker
and the right to organize, but in support of our President to deal with
the difficult issue of homeland security.
I have looked at this amendment. I have the highest regard for the
gentlewoman from Maryland (Mrs. Morella), I might add, and she is an
absolutely tireless worker for the rights of workers and I have the
highest respect for her. But in this case the Shays amendment changes
the Morella amendment by one particular issue. It calls for three
levels of the process of a President before he can take adverse action,
but he must certify that the effect on homeland security must be
substantial and adverse. This just cannot be by whim that is put forth
by someone in the White House or agency who was opposed to labor rights
or the union representation of the workers. It must require our
President to take decisive action, go beyond the fact that it is merely
incompatible with national security, and must actually determine that
the effect is substantial and adverse.
So for these reasons, Mr. Chairman, I think the Shays amendment is a
good amendment because it does in fact continue to protect workers, but
it also gives the President that important capability that I think he
deserves in the new Office of Homeland Security.
Mr. WAXMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Maryland (Mrs. Morella), the author of the amendment on this whole
subject.
Mrs. MORELLA. Mr. Chairman, I thank the gentleman from California
(Mr. Waxman) for yielding me this time. I want to recognize the fact
that the gentleman from Connecticut (Mr. Shays) is my friend. And while
I appreciate the fact that the gentleman's amendment mirrors mine
almost exactly, unfortunately he has chosen to include one extra
sentence which I see as the escape clause which negates the point of my
amendment.
In the amendment that I will offer, I allow the union rights of
existing employees transferred to the new Department of Homeland
Security who have the same duties to remain in place. It kind of
grandfathers them in. The Shays amendment has a loophole in that it
would allow the union rights to be stripped for ambiguous reasons.
Presently, two sections of title 5 provide for administrative actions
to disallow union membership for certain classes of Federal employees.
Section 7103 allows the President to issue an executive order taking
away title 5 labor management rights, including the right to be in a
union for agency or subdivisions for national security reasons.
Section 7112 of title 5 makes the bargaining unit inappropriate for
numerous reasons, including the performance of national security
duties. Now, because the new homeland security agency's mission could
easily all be defined automatically as national security, I am
concerned that potentially tens of thousands of employees could be
prevented from being members of a union, even though their work and
responsibilities have not changed.
This concern is really not groundless because in January, 500
Department of Justice employees had their union rights stripped for
national security work even though their responsibilities had not
changed. Many of them had belonged to the union for 20 years and many
of them had clerical responsibilities.
So my amendment seeks to set a slightly higher standard for the
President so that the transferred employees who have the same
responsibilities who already are in the union, not new ones, do not see
their union rights stripped for the same capricious reasons as those
DOJ employees.
Unfortunately, as I reiterate, the amendment offered by the gentleman
from Connecticut, though well intentioned, has that escape clause and
that renders it unacceptably weak and I urge defeat of the Shays
amendment.
Mr. SHAYS. Mr. Chairman, I yield myself 15 seconds, to just point out
that what we want is for the President to have the same powers and
collective bargaining issues when national security is involved that
past presidents from President Carter have had, and yet we are taking
the gentlewoman's amendment and adding an additional test so we are
making it a little more difficult for this President.
Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from New York
(Mr. McHugh).
Mr. McHUGH. Mr. Chairman, I would like to engage the distinguished
Speaker of the House in a colloquy regarding subsection (c).
Mr. Speaker, clearly this subsection of Mr. Shays' amendment adds an
additional requirement on the President over and above what currently
appears in section 7103 of title 5 before this or any other President
would be enabled to exempt an agency or subdivision from the provisions
of the Federal Labor Management Relations Act, a very important right,
very important protection.
However, and added to the original Morella amendment as the Shays
amendment proposed, this could create a methodology by which a
President might circumvent the limitations on that section 7103
authority that the original Morella amendment, and I commend the
gentlewoman, that would have put in place under the Department.
Accordingly, I believe that subsection (c) authority should, if it
ever becomes law, be limited. I believe that it should be crafted in a
fashion that each time that the President should invoke authority under
subsection (c) of the pending amendment, that the exclusion would only
be effective for a period of no more than 24 months. Further, I believe
that written notification of substantial adverse impact must be
conveyed to both Houses of Congress no less than 30 days prior to the
invoking of that subsection (c).
Thereafter, upon any subsequent finding of substantial adverse impact
on homeland security, the President could only again, upon written
determination, convey to both Houses of Congress no less than 30 days
prior to the expiration of that original term of exclusion, extend such
a waiver for additional periods not to exceed 24 months each, with
written determination and congressional notification for each exclusion
as previously described.
And lastly, Mr. Speaker, upon such time as the war is won, conditions
even out and waivers are no longer extended, each bargain unit
previously recognized should be reinstated with all of its rights as
they existed the day before the original waiver. And I would ask would
the distinguished Speaker agree with me that we should provide for
congressional notification allowing us to consider those issues, make
those determinations, not as under current law, but for a determined
period, and when the war on terrorism is leveled out or is over and
won, the workers and their union organizations should fully return to
their previous status and relationship?
Mr. HASTERT. Mr. Chairman, will the gentleman yield?
Mr. McHUGH. I yield to the gentleman from Illinois.
Mr. HASTERT. Mr. Chairman, I think the gentleman makes a good point.
This proposal is certainly reasonable. He has my assurance that the
bill works its way through the conference with the other body, that I
will do my best to make sure that the gentleman's proposal is not only
considered carefully by the Congress and both sides but we will take
very, very extraordinary methods and work to make sure that this type
of concept is incorporated in the bill.
It could form the basis, I think, for an excellent conference
agreement.
Mr. McHUGH. Mr. Chairman, I thank the Speaker for his assurance and I
commend him, the gentlewoman from Maryland (Mrs. Morella), and the
gentleman from Connecticut (Mr. Shays), and all the people who have
worked so hard on this for their leadership.
Mr. WAXMAN. Mr. Chairman, I yield 1 minute to the gentleman from
Texas

[[Page H5803]]

(Mr. Reyes), who has personal experience on this subject that I think
Members ought to know about.
Mr. REYES. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, I want to offer my personal experience. Back in 1969
when I first joined the Border Patrol as a young officer freshly out of
the military after spending 13 months in Vietnam, I went to a station
where I was only one of three Latinos. And had it not been for the fact
that I was able to join the Border Patrol Union, I would have not had a
career in the Border Patrol for 26\1/2\ years.
Union protection is vital and important, specifically for minorities,
but for all employees. To somehow draw the conclusion that to be able
to have bargaining rights would be contrary to this Nation's national
security is wrong.
Mr. Chairman, I intend to oppose the Shays amendment and I intend to
oppose anything that would put in jeopardy the kinds of rights that
gave me the opportunity to serve this country proudly in the United
States Border Patrol, both as an agent ultimately retiring as the
Chief. So I have been on both sides.
I would rather have our employees have the protection and have to
deal with a problem employee as a responsibility of a chief than to
subject employees to no protections.
Mr. SHAYS. Mr. Chairman, I yield myself 15 seconds to just respond to
the gentleman. We are not trying to do anything with collective
bargaining that does not exist in present law. In fact, we are even
restricting in some ways the power of the President. Collective
bargaining still exists. But like with Jimmy Carter all the way down,
if there is a national security issue, the President has the right to
take action.
Mr. Chairman, I reserve the balance of my time.
Mr. WAXMAN. Mr. Chairman, may I inquire how much time there is on
each side?
The CHAIRMAN pro tempore. The gentleman from California (Mr. Waxman)
has 4 minutes remaining, and the gentleman from Connecticut (Mr. Shays)
has 2\1/2\ minutes remaining.
Mr. WAXMAN. Mr. Chairman, I inquire through the Chair of the
gentleman from Connecticut whether he has another speaker other than
himself.
Mr. SHAYS. Mr. Chairman, I will have the gentleman from Ohio (Mr.
Portman) to close, and I might make a comment after the next speaker.
But between me and the gentleman from Ohio, that is it.
Mr. WAXMAN. Mr. Chairman, I yield 3 minutes to the gentleman from
Maryland (Mr. Hoyer).
Mr. HOYER. Mr. Chairman, if this were campaign finance reform, the
gentleman from Connecticut would have a sheet in our hands saying this
amendment is a poison pill designed to undermine the Morella amendment.
Mr. Chairman, this amendment is a wolf in sheep's clothing. It tries
to send a reassuring message to Federal employees that their rights
will be protected and their collective bargaining rights retained. I
want to tell our Federal employees: Do not believe it. This language
provides the President with a trap door to deny union representation to
anyone in this Department if he determines that it would have a
substantial adverse effect on the Department's ability to protect
homeland security.
In general, that is the law. Why add this? To provide the trap door
to the Morella amendment. When the President removed collective
bargaining rights of some 500 Department of Justice employees earlier
this year, he said it was in the interest of national security. Yet
most of those employees work in clerical jobs and have been union
members for over 20 years.
Last month I had the opportunity to question the deputy director of
the Office of Personnel Management and I asked him in the last 20
years, in the last 50 years, could he cite me one or two or three
instances where union membership ever in any instance at any time
adversely affected national security? I got back a two-page letter with
11 pages of attachments. It does not cite one single incident where
union membership had any adverse effect on collective bargaining.
Mr. Chairman, this is a windmill that the Republicans are tilting at
because they do not believe in collective bargaining. That is their
right, but do not be fooled. This amendment undermines and is designed
to undermine, I tell my friend from Connecticut, like a poison pill,
the effect of the Morella amendment. Do not tell my Federal employees,
do not tell the gentlewoman from Maryland (Mrs. Morella) that this is
some benign offering simply to make it a little better and to give the
President a little more flexibility.
Mr. Chairman, I say to my colleagues, read the law. The President has
that ability now, and the OPM sent me 11 pages of attachments citing
instances where every President, admittedly in small instances, because
this is not a problem, made such exemption.
Mr. Chairman, I say to my friends and my friends on the Republican
side of the aisle, give the gentlewoman a fair shot. Do not play
legislative games with her. Vote the Shays amendment down and then vote
for the Morella amendment.
Mr. SHAYS. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, this is not campaign finance reform, it is national
security. And we want the President of the United States to have the
same power previous Presidents have had for national security. This is
national security. What the Morella amendment, in my judgment, is is a
poison pill to his ability to govern this country under national
security, unless we have the safety valve that we have put in there.
Mr. WAXMAN. Mr. Chairman, I yield 30 seconds to the gentleman from
Maryland (Mr. Hoyer).
Mr. HOYER. Mr. Chairman, as I told my colleagues, I have an 11-page
attachment here from the Office of Personnel Management where
Presidents under existing authority, that is not adversely affected,
have that ability. No one in this House wants to adversely affect
national security.
The point that I am making is that the Office of Personnel Management
in direct response to my question cannot cite a single incident. Not
one in the history of this country, or at least since we have had
collective bargaining for Federal employees where national security was
adversely affected.
Mr. SHAYS. Mr. Chairman, I yield myself 15 seconds to point out that
before 9/11, we could not cite certain instance of terrorist activity.
The bottom line is the Morella amendment restricts the President's
ability under national security to take action. We are qualifying her
restriction.
Mr. Chairman, I reserve the balance of my time.
Mr. WAXMAN. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, if Mr. Shays and some Republicans do not like the
Morella amendment, they should just vote against it. They should not
engage in this kind of trick to put in what appears to be the Morella
amendment, but then to negate it. If they were being honest about the
matter, they would simply oppose the Morella amendment as the gentleman
from Connecticut (Mr. Shays) did in the Committee on Government Reform.
Mr. Chairman, a majority in that committee supported the Morella
amendment. I would urge the House to adopt the Morella amendment and to
defeat the Shays amendment, because what it does is negate the Morella
amendment.
Mr. SHAYS. Mr. Chairman, I yield the balance of our time to the
gentleman from Ohio (Mr. Portman).
Mr. PORTMAN. Mr. Chairman, I thank the gentleman from Connecticut, my
friend, for yielding me this time.
Mr. Chairman, the gentlewoman from Maryland (Mrs. Morella) cares as
deeply about national security as any Member of this Chamber, and it
has been a pleasure to work with her on this. We were not able to come
together, but we tried.
The Shays amendment is identical to the Morella amendment. And by the
way, the gentlewoman from Maryland will have an opportunity to offer
her amendment. It is specified under the rule. It is a special rule
offered in the rule and I am glad she has that right. But the Shays
amendment has one additional feature, an extremely important and
limited safety valve which would allow the President to use the
provisions of existing law to exempt an agency or subdivision from
collective bargaining when he determines in writing that it has an
adverse and significant impact on homeland security.

[[Page H5804]]

Mr. Chairman, it is a tougher standard on top of the already existing
standard than any other agency of government. The employees of this
Department will have more protections than the employees of any other
department of the Federal government. Here at a time when we are trying
to address this threat of terrorism, would it not be ironic if we took
away existing national security protection that the President can
employ through his waiver for the new Department of Homeland Security?
In this amendment, I believe that we have struck a sensible
compromise between doing nothing and adopting the amendment of the
gentlewoman from Maryland. It makes it harder for the President to
exempt anything that existing law would permit. But it has an important
safety valve. To make sure that it can deal with homeland security
emergencies and critical situations if necessary and that protection of
bargaining rights for workers will not imperil the protection of the
physical safety and security of all of us as Americans.
Mr. Chairman, I urge a ``yes'' vote on the Shays amendment. I think
it is a responsible and a correct compromise. I urge a ``no'' vote on
the Morella amendment.
The CHAIRMAN pro tempore. All time has expired. The question is on
the amendment offered by the gentleman from Connecticut (Mr. Shays).
The question was taken; and the Chairman announced that the ayes
appeared to have it.

Recorded Vote

Mr. WAXMAN. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 229,
noes 201, not voting 3, as follows:

[Roll No. 356]

AYES--229

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bono
Boozman
Boyd
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Combest
Cooksey
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Dooley
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Harman
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hulshof
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
McCrery
McHugh
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schiff
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Sullivan
Sununu
Sweeney
Tancredo
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOES--201

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Hastings (FL)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Hoyer
Hunter
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (CT)
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Morella
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOT VOTING--3

Blunt
Meehan
Stump

{time} 1118

Messrs. PALLONE, HUNTER, and PETERSON of Minnesota changed their vote
from ``aye'' to ``no.''
Messrs. BONILLA, ADERHOLT, BACHUS, and HALL of Texas changed their
vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore (Mr. Latham). It is now in order to consider
amendment No. 18 printed in House Report 107-615.

Amendment No. 18 Offered by Mrs. Morella

Mrs. MORELLA. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 18 offered by Mrs. Morella:
In subtitle G of title VII of the bill, insert after
section 761 the following (and redesignate succeeding
sections and references thereto accordingly):

SEC. 762. LABOR-MANAGEMENT RELATIONS.

[[Page H5805]]

(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) 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.

The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentlewoman from Maryland (Mrs. Morella) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentlewoman from Maryland (Mrs. Morella).
Mrs. MORELLA. Mr. Chairman, I yield myself such time as I may
consume.
I am going to offer this amendment despite the fact that the Shays
amendment did pass because I believe the integrity of the Committee on
Government Reform is important enough so that what they voted on in the
full committee should be what is sent over to the conferees and what
ultimately will become law.
The amendment that I am offering today is with the gentleman from
Illinois (Mr. Davis), who is the ranking member of the Subcommittee on
Civil Service, Census and Agency Organization, and very much a
supporter of Federal employees. What the amendment does is it simply
aims to protect the union rights of existing employees transferred to
the new Department of Homeland Security who have the same duties.
I want to point out at the onset that the language of my amendment is
similar to language that was included in the gentleman from Texas's
(Mr. Thornberry) original Homeland Security bill and the language that
was agreed to on a bipartisan basis by the Senate Committee on
Governmental Affairs.
Let me just say one big agency, 22 other agencies become part of
Homeland Security; therefore, everything under it is called security.
Therefore, it offers an opportunity for arbitrarily saying that some
union rights will be taken away from some people. One hundred seventy
thousand employees would be part of it. Only 50,000 employees who
already belong to unions whose duties have not changed would be able to
continue with the functions of their unions and collective bargaining
rights. That is all. It is grandfathering those people in.
Why do we need it? Already it has been mentioned, as we discussed the
Shays amendment, the fact that in January, 500 employees of the
Department of Justice lost their collective bargaining rights. They
lost their rights even though many of them were clerical and that even
had been part of a union for over 20 years. I do want to say that this
House really should reflect, at a time when we have Local Commission
No. 2, when we have Partnership for Public Service, when 51 percent of
our work force are eligible to retire in 5 years, when 71 percent of
the Executive Service are eligible to retire in 5 years and we are
trying to recruit and retain, the fact that trust is so very important.
So I ask this body, despite the fact that the Shays amendment passed,
that they pass the Morella amendment so we can also send on the intent
of the Committee on Government Reform as well as this Congress.
Mr. Chairman, I yield 2 minutes to the gentleman from Illinois (Mr.
Davis).
Mr. DAVIS of Illinois. Mr. Chairman, I am pleased to join with the
gentlewoman from Maryland (Mrs. Morella) in cosponsoring this amendment
and rise in strong support.
The Morella amendment provides that employees who have elected unions
to represent them in collective bargaining, before being transferred
into the Department of Homeland Security, should not lose their
representation rights. Essentially the Morella amendment is a
grandfather clause. All it really does is protect those individuals who
have collective bargaining rights and are currently union members.
There are some people who suggest that this is going to undercut the
President's authority. Absolutely not. It only deals with those
individuals who are currently union members, and it also provides
enough flexibility that if individuals' work assignments change
significantly, then the President could, in fact, move them around.
We also know that the President issued an executive order barring
union representation in U.S. Attorney's offices. Individuals who were
doing clerical work were denied the opportunity to be unionized and to
have the representation. As a matter of fact, we believe in a strong
Presidency. We believe that the flexibility ought to be there. But we
also believe that these are hard-won rights that people have struggled
to achieve for years and years and years. They should not be
diminished. They should not be taken away.
And so I simply urge my colleagues to stand with the American people
who believe in Civil Service protection, who believe in the rights of
the individuals that work. Stand and support the Morella amendment.
Mr. WAXMAN. Mr. Chairman, I ask unanimous consent as the ranking
Democrat on the Committee on Government Reform to manage the time on
this Morella amendment.
Mr. PORTMAN. Mr. Chairman, I object.
The CHAIRMAN pro tempore. Is the gentleman from Ohio seeking time in
opposition?
Mr. PORTMAN. Exactly, Mr. Chairman. I rise in opposition to the
amendment.
The CHAIRMAN pro tempore. The gentleman from Ohio is recognized to
control the time in opposition as a member of the select committee.
Mr. PORTMAN. Mr. Chairman, I yield myself such time as I may consume.
First of all, we have already had a good debate on this issue in the
context of the Shays amendment, and I appreciate the fact that the
gentlewoman from Maryland comes at this in good faith. As I said
earlier, nobody in this Chamber cares more about national security. We
do differ on this issue. The gentlewoman from Maryland talked a lot
about the Committee on Government Reform and what the Committee on
Government Reform thinks about this.
I think it is only appropriate, Mr. Chairman, to yield 2\1/2\ minutes
to the gentleman from Indiana (Mr. Burton), chairman of the Committee
on Government Reform.
Mr. BURTON of Indiana. Mr. Chairman, I thank the gentleman for
yielding time.
First of all, let me just say that I have very high regard for the
gentlewoman from Maryland. She is a very fine member of our committee.
As a matter of fact, I admire her so much, we made her a subcommittee
chairman. But we have a strong disagreement on this issue. We are at
war, and we are talking about national security, and there is really no
evidence that we have a problem. In fact, this very issue has been used
very sparingly by past Presidents, both Republican and Democrat, and
they have never abused the privilege.
Second, as I said, we are in a war, and the Homeland Security
Department is a very, very important part of the President's strategy
of dealing with that war. This amendment would give the President less
authority over the defense of America, the new Homeland Security
Department, less authority than he has over any other department of
government. Why would we do that? Why would we give the President less
authority over the security of America, the Homeland Security
Department, than he has over any other department? It makes no sense.
Regarding this vote, this was one of the most controversial votes we
had before our committee. It came right down to the last vote. It
passed by one vote. When it went to the select committee, the
leadership committee, that issue was reversed by one vote. So this

[[Page H5806]]

is a very, very difficult issue for us to deal with. That is why we
supported the Shays amendment, because the Shays amendment is an
amendment we think that deals with the subject very well.
Finally, let me just say, President Bush is not an antiunion
President. He cares about organized labor, and he will work with
organized labor. So let us not give the President less authority than
he already has over every other agency in dealing with the security of
this Nation. It makes absolutely no sense.
I hope Members will all vote against the Morella amendment, not
because she is not a lovely lady, but because it is the wrong thing to
do.
Mrs. MORELLA. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Waxman), who is the ranking member of the full
Committee on Government Reform.

{time} 1130

Mr. WAXMAN. Mr. Chairman, I thank the gentlewoman for yielding me
time.
At the close of the last amendment by Mr. Shays, the gentleman from
Ohio (Mr. Portman) said that the gentlewoman from Maryland (Mrs.
Morella) was being treated fairly because she could offer her
amendment.
Now, that is absolutely wrong. She is a senior Member of Congress.
She is the author of an amendment that passed in the committee on a
bipartisan basis, and she is being demeaned by that previous amendment
that makes the vote on this amendment completely meaningless.
I support the Morella amendment. You can vote for it, you can vote
against it, but it does not make any difference, because even if it
passed, the previous amendment negates it. I just think that is an
incredible way to treat somebody in your own party. After all, she gave
the Republicans the votes to organize the House. What do they do? They
turn around and deny her a fair opportunity to offer her amendment and
to try to convince Members to support it and to make it the House
position.
Now, if we adopt the Morella amendment it will be the House position,
but we have already adopted another amendment that says the Morella
amendment is not going to be the House position.
I think that this is a wrong way on the process to treat this matter,
and I think it is an unfair way to treat the gentlewoman from Maryland
(Mrs. Morella). I am going to support the Morella amendment. I asked
for the time so we could control it, but we were not even given that
courtesy.
This is partisanship in the sneakiest, meanest, narrowest way; and
not to me, but to one of their own Members. I commend the gentlewoman
from Maryland (Mrs. Morella). She offered the amendment in committee,
she argued for it, her arguments prevailed and she won on a bipartisan
basis. I am going to vote for her amendment. I urge other Members to
vote for it. But we all know it is meaningless.
Mr. PORTMAN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I wholeheartedly agree with the endorsement of the
gentlewoman from Maryland (Mrs. Morella) by my friend from California
and appreciate it. She is a fine Member, and, as I said earlier, no one
cares more about national security than her.
I would just make the point very clearly that notwithstanding the
fact she would not be able to offer the same amendment to the same
section of the bill, this rule was drafted in a way to permit that. I
think it is appropriate, and she does have the right to offer her
amendment today, and I am glad she does.
Mr. Chairman, I yield 2 minutes to the gentleman from Virginia (Mr.
Tom Davis), a member of the Committee on Government Reform.
Mr. TOM DAVIS of Virginia. Mr. Chairman, let me just add, this is not
the end of the legislation. This bill goes to conference. The House
vote on this is important in terms of the message it says to conferees,
and I think to dispel it is not appropriate.
I also commend my colleague for her work and her courage in standing
up to leadership on this particular issue, as she has done so many
times during her career. Like her, I have a number of Federal employees
and union members in my Congressional district, and I believe strongly
that the traditional Federal workforce protections need to be applied
and extended to Federal employees as they are transitioned into the new
Department of Homeland Security.
But I differ with her on this amendment for this reason: The
underlying legislation gives the employees the traditional rights they
would enjoy in being able to transfer from one agency to this new
agency. The amendment offered by the gentlewoman from Maryland (Mrs.
Morella) gives them additional rights that they currently do not enjoy
under Federal law, and it gives them additional rights at a time when
we are at war with global terrorists, where the President has come to
us saying this is the organization he needs to be able to win the war
on global terrorism, and we are taking away the President's flexibility
to deploy people that he enjoys in the Department of Defense, in the
FBI, in the CIA and every other Federal agency.
So they are treated under this the same way as they are in those
other agencies that help us fight wars, and if this amendment passes,
it basically creates a two-tier system and a lot of potential for
inequities. For example, at a time of crisis, the President would not
be able to treat Department of Justice, CIA, in the same manner as he
treats employees at the Department of Homeland Security. That does not
make any sense.
Mr. Chairman, section 7103(b) of title IV represents a finely crafted
balance between the rights of employees and the duty of the President
to act in exceptional times, in exceptional times. Rarely used, in
exceptional times with exceptional action. We are at war now, and
certainly these are exceptional times.
In my view, we should enact the legislation and give our Commmander-
in-Chief the tools he needs to enact the war on terrorism.
Mrs. MORELLA. Mr. Chairman, I yield myself such time as I may
consume.
I just want to make a brief statement. I want to thank the gentleman
from California (Mr. Waxman) for what he had said, but I wants to
disagree with him on one issue, because this is not meaningless. If we
pass this amendment, this also indicates the intent of the House, the
intent of the committee. And the battle has just begun. I will not
relent until we do what is best for our Federal employees.
Mr. Chairman, I yield 1 minute to the gentleman from Virginia (Mr.
Moran).
Mr. MORAN of Virginia. Mr. Chairman, Congress enacted civil service
protections and collective bargaining rights so the U.S. Government
could attract the very best to government service. As we stand together
to fight terrorism, we should also stand together for the rights and
well-being of those people who are on the front lines of that fight.
It is no secret that one of the Federal Government's biggest
challenges is recruiting and retaining highly qualified workers. Within
3 short years, the Federal Government will face a mass retirement of
Federal employees. Given the composition of the workforce, this is a
given.
I support the Morella amendment because it will ensure that Federal
employees at the new Department of Homeland Security will retain their
rights to belong to unions. This provision would guarantee that the
50,000 employees, only about 25 percent of those expected to be
transferred to the new department, who are currently under collective
bargaining agreements, retain their union representation.
Let us be clear this amendment would apply only to those who
currently have collective bargaining rights and would in no way affect
those employees who are not currently members of unions. The need to
establish this new department should not be used as a veiled attempt to
strip Federal servants of the fundamental protections and collective
bargaining rights they enjoy today.
Mr. PORTMAN. Mr. Chairman, I yield 1\1/4\ minutes to the gentleman
from Florida (Mr. Weldon), the distinguished chairman of the
Subcommittee on Civil Service of the Committee on Government Reform.
Mr. WELDON of Pennsylvania. Mr. Chairman, I thank the gentleman for
yielding me time.

[[Page H5807]]

Mr. Chairman, I rise in opposition to the gentlewoman's amendment. I
think it is going to be very, very important as we move through the
process of consolidating all these agencies together into one unified
Homeland Security Department that the President of the United States
has the ability to deal with the conflicting union agreements that he
is going to have to try to bring together.
I know the President of the United States is going to do everything
he can to protect the rights of the workers.
This amendment I think is extremely strange, because it basically is
saying that we are going to take the right that the President of the
United States has to suspend collective bargaining agreements for
national security purposes and deny it to the President of the United
States within the Department of Homeland Security.
If this amendment passes, the President of the United States for
national security reasons, and this is an authority that Democratic and
Republican presidents have exercised authority rarely, and, when they
have, they have done it appropriately. To deny it within the Department
of Homeland Security to me does not make any sense.
Mr. PORTMAN. Mr. Chairman, I yield 30 seconds to the gentleman from
Texas (Mr. Thornberry), another distinguished colleague who has been at
the forefront of this issue over the last several years, not just weeks
or months.
Mr. THORNBERRY. Mr. Chairman, I thank the gentleman for yielding me
time.
Mr. Chairman, earlier this year a bipartisan group of House and
Senate Members, a bipartisan group of Members from both bodies,
introduced identical bills, and basically we said that this issue of
collective bargaining ought to be the same.
That, in my view, is the same as it is now. That, in my view, is what
the Shays amendment was. It was unimaginable to us then and it is
unimaginable to me now that we would reduce the ability of the
President to act in a national security situation. That is why I
believe this amendment should be rejected.
Mr. PORTMAN. Mr. Chairman, I yield 30 seconds to my friend, the
gentlewoman from Maryland (Mrs. Morella). We have more time than she
does, and she would like some additional time.
The CHAIRMAN pro tempore (Mr. Latham). Without objection, 30 seconds
will be yielded to the gentlewoman from Maryland (Mrs. Morella).
There was no objection.
The CHAIRMAN pro tempore. The gentlewoman from Maryland (Mrs.
Morella) has 2 minutes remaining.
Mrs. MORELLA. Mr. Chairman, I yield such time as she may consume to
the gentlewoman from New York (Mrs. Maloney).
(Mrs. MALONEY of New York asked and was given permission to revise
and extend her remarks.)
Mrs. MALONEY of New York. Mr. Chairman, I rise in strong support of
the Morella amendment. We do not make our homeland more secure by
undermining job security.
Mr. Chairman, I rise in support of the Morella-Danny Davis amendment
to protect federal workers.
As a New Yorker, I care deeply about homeland security.
Even since, Sept. 11th, we have had several security alerts issued by
the government.
Everyone wants a strong homeland, but it shouldn't be achieved on the
backs of the dedicated and talented men and women of the federal
workforce. We should not erode the rights of federal workers.
In the event of a homeland security crisis, do you really believe
that anyone would abandon their posts when the clock strikes five?
The Morella amendment is a fair amendment.
It is clear that the government employees who transfer into the new
department can keep the rights they already have.
It applies only to those who currently have collective bargaining
rights and would in NO WAY affect those employees who do not currently
have these rights.
Some of the papers are using the example of a ``druken Border Patrol
agent'' as a reason of why they want to take away workers' rights. This
is a silly anecdote. I can tell you in New York right now, if this were
to happen with one of our officers in the City, such a person would be
removed immediately from their post, but due process would still be
protected.
We don't make our homeland secure by undermining job security.
Mrs. MORELLA. Mr. Chairman, I yield 30 seconds to the gentleman from
Maryland (Mr. Hoyer).
Mr. HOYER. Mr. Chairman, the Japanese attacked us at Pearl Harbor and
we fought World War II. We went into Korea, we went into Vietnam, we
went into Bosnia, we went into the Persian Gulf. We did not do this. We
saw no need to do it, because we saw no threat from collective
bargaining.
My colleagues, support the Morella amendment. I agree with her, it
does mean something. It says to our employees, we understand that your
collective bargaining rights do not in any way, at any time, undermine
our national security, for which we all will fight and for which we
will all support legislation to protect it.
I rise in favor of the Morella amendment.
Mr. Chairman, we must ensure that ``flexibility'' does not become a
code word for favoritism.
Furthermore, we must ensure that ``flexibility'' does not become a
euphemism for gutting federal civil servants' rights.
The federal civil service was created for a reason: to prevent
arbitrary and capricious employment decisions based on politics and
patronage rather than competence and professionalism.
All this amendment does is tell the employees who will be working in
the new department, ``If you will be performing the same job as you do
now, you will be able to retain the right to collective bargaining
rights.''
There is no doubt that certain reforms to our civil service are
necessary, but stripping the rights of federal employees behind the
curtain of homeland security is not the right approach.
We have an opportunity to turn national tragedy into national triumph
by demonstrating to the American people, particularly the generation
just entering the workforce, that employment in the Federal Government
is not only honorable and patriotic, but also rewarding.
There is absolutely no doubt in my mind that employees currently
covered by the full force and affect of title 5 will have no adverse
affect on our homeland security as it pertains to employment in this
department. I support this amendment and urge my colleagues to vote in
favor of it.
Mrs. MORELLA. Mr. Chairman, I yield 30 seconds to my colleague, the
gentleman from Maryland (Mr. Wynn).
Mr. WYNN. Mr. Chairman, I thank the gentlewoman for yielding me time.
Mr. Chairman, I rise in strong support of the Morella amendment. I
represent 72,000 Federal employees. I think this so-called
``flexibility'' is a great mistake. It abrogates employee rights and
ultimately it undermines their moral.
Our greatest asset is our human capital. We cannot expect our fellow
employees to protect homeland security if we undermine their employment
security. The Morella amendment provides a compromise. It allows the
President to say if they are engaged in investigative work relating to
counterterrorism, relating to the war on terrorism, they can abrogate
those rights. If they do not, if they are performing administrative or
clerical functions not relating to investigations, they retain their
bargaining rights.
Support the Morella amendment.
Mr. PORTMAN. Mr. Chairman, it is my understanding we have the right
to close, is that correct?
The CHAIRMAN pro tempore. The gentleman from Ohio has the right to
close.
Mr. PORTMAN. Mr. Chairman, I would like to give the gentlewoman from
Maryland (Mrs. Morella) the right to close.
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, again, we have had a good debate here today in the
context of the Shays amendment and now the Morella amendment. The
bottom line is we have a good compromise. It is the Shays amendment. It
gives workers in this new department more protection than any workers
in any department in government, and yet it retains in the president
this extremely important national security authority. It would be
ironic if during this time of addressing this new threat of terrorism
we were to take away that authority altogether.
I think the compromise makes sense. I strongly urge a no vote on the
Morella amendment, which would, according to the President, be the
basis for a veto of this legislation.
Mr. Chairman, I yield the balance of my time to the gentleman from
Connecticut (Mr. Shays).
The CHAIRMAN pro tempore. The gentleman from Connecticut is
recognized for 2 minutes.

[[Page H5808]]

Mr. SHAYS. Mr. Chairman, in the 3\1/2\ years my Subcommittee on
National Security has been looking at homeland security, one thing is
very clear: We need to know what the threat is, we need to develop a
strategy, and we need to do what we are doing today, which is to
reorganize our government to meet the terrorist threat.
When the President implements the reorganization of our Federal
Government under this law that we will provide him, he needs the same
flexibility President Carter had, the same flexibility President Reagan
had, the same flexibility President Bush had, the same flexibility
President Clinton had. He needs that same flexibility.
It is interesting to note that my colleagues have not sought to limit
past presidents in their ability to have this flexibility to deal with
national security. You must vote no on the Morella amendment. It is in
conflict with the amendment that has passed before. We included all
aspects of the Morella amendment, but we had a safety valve.
When you hear of the 500 clerical employees that were impacted, they
were under the National Drug Intelligence Center, the U.S. National
Central Bureau of Interpol, the Office of Intelligence, Policy and
Review, the Criminal Justice Division of DOJ. They were clericals under
the professionals. But the law does not give the President the ability
to leave the clericals in place, and that is what the Morella amendment
should have done. We need to give the President the ability to utilize
his power in a way that enables him to impact only the employees we
need to.

{time} 1145

Our primary concern must be national security; it would be absolutely
unbelievable if we would give the President less power to fight
terrorism when terrorism is a greater threat. It is not a question of
if, but when, where, and what magnitude we will face the potential of
chemical, biological, or nuclear attack.
We had people testify before our committee that pointed out a small
group of scientists could alter a biological agent and wipe out
humanity as we know it. We are talking about a threat to our national
security. How can we think that Federal employees are not willing to
step up to the plate and live under the same law that has existed under
previous presidents? I believe they want this law and the President to
have the power that previous presidents have had.
Mrs. MORELLA. Mr. Chairman, I yield myself the remaining time.
I do not see how being in a union would disallow any of those
employees from performing their responsibilities.
I think, Mr. Chairman, the crux of this debate comes down to trust.
It is for this reason that I simply refuse to buy the argument that we
have to matter-of-factly give the administration or any administration
as much flexibility as possible. I am a friend of the President, I
think he has done a wonderful job guiding the country through this
crisis, but on the Federal employee issues, his record is not as
laudable as I would like it to be.
So my amendment speaks to those concerns. It speaks to the lack of
trust that has been engendered if we have policies that are anti-
Federal employee rights, and that is why I feel it is necessary to
create a slightly higher standard for this department.
The fact is, I simply cannot take the chance on being wrong on this
issue. The President's executive order authority under chapter 7103 has
never been overturned, and there are simply too many Federal employees
who could lose their rights for the same questionable reason that those
500 DOJ employees did.
I have 78,000 Federal employees living in my district. This issue is
important to them, and it is important to the country. I ask my
colleagues to vote for the amendment.
Mr. DAVIS of Illinois. Mr. Chairman, as a member of the House
Committee on Government Reform, and as the Ranking Member of its
Subcommittee on Civil Service, Census, and Agency Organization, I am
proud to join my colleague, the gentlewoman from Maryland,
Representative Morella, in co-sponsoring this amendment to H.R. 5005.
We certainly have come a long way from the days, back in the 1800's,
when it would not have been uncommon to find an ad in a Washington
newspaper saying: ``WANTED--A GOVERNMENT CLERKSHIP at a salary of not
less than $1,000 per annum. Will give $100 to any one securing me such
a position.''
We now have a merit-based Federal civilian workforce that is
unsurpassed by none. Our civil servants have responded with
professionalism to the threats against our borders and assaults against
our values. Those 170,000 employees who are identified to become the
first employees of our new Department of Homeland Security will
coalesce together to ``prevent terrorist attacks within the United
States, reduce the vulnerability of the United States to terrorism; and
minimize the damage, and assist in the recovery, from terrorist attacks
that do occur.'' We are charging much to them--and they are up to the
task.
However, just as we are expecting much from these Federal civil
servants, they should expect much from a grateful nation. We should
safeguard their employment rights to the extent that doing so does not
interfere with national security. This amendment that Mrs. Morella and
I have introduced strikes this delicate balance.
The President and the Federal Labor Relations Authority can presently
exempt employees from union membership for ``national security work.''
The President used this authority last year to take away the collective
bargaining rights for approximately 500 Justice Department workers,
most of whom were clerical employees who had been unionized for twenty
years. Their duties had not changed--what had changed was their rights
to union membership.

Simply stated, our amendment protects the rights of Federal
employees. Those who currently have the right of union membership will
retain this right in the new Department of Homeland Security--so long
as they are doing the same work. This is no more than what is commonly
referred to as a ``grandfather'' clause. Of the approximately 170,000
employees that will be transferred to the new Department, only 50,000
are represented by unions--less than one-third. These are the employees
who would be protected under our amendment. We cannot take the risk
that thousands of employees could lose their labor rights for ambiguous
reasons. If they are doing the same work, they should have the same
protections.
This amendment would not change the standard for new employees hired
to the Department of Homeland Security or those employees transferred
who were not previously allowed union membership. Also, any employee
transferred to the new Department, who was previously allowed union
membership, but whose responsibilities change significantly, would no
longer retain this right.
We have a big challenge ahead of us in shoring up this new
Department. Let's protect those who will be protecting us. I urge my
colleagues to support Federal employee rights and to pass this
amendment.
Thank you, Mr. Speaker.
Mrs. MALONEY of New York. Mr. Chairman, I rise in support of the
Morella-Danny Davis amendment to protect federal workers.
As a New Yorker, I care deeply about homeland security.
On September 11th, we should remember that the first responders who
rushed to the World Trade Center were civil servants--wonderful,
selfless civil servants.
More than 10 months after September 11, the pain from that day has
not begun to fade for my constituents in New York. While we have
cleaned up the site and begun to focus on rebuilding, no New Yorker can
walk past a firehouse or see a police car race across the city without
being reminded of the incredible herorism displayed by the 343
firefighters, 37 Port Authority Police and 23 New York City Police who
gave their lives to save others that day.
In my own district 25 different fire stations lost people in the
terror attacks. One firehouse in my district--the Roosevelt Island
based Special--Operations unit lost 10 men. The loss was so great from
this facility because a duty change was in progress. Men who were
finishing their shift grabbed their equipment and headed to the scene.
As a result, twice as many perished as would have otherwise.
These men and women didn't hesitate to respond.
So I ask you, in the event of a future homeland security crisis, do
we really believe that any federal worker at the new Department of
Homeland Security would abandon their posts when the clock strikes
five?
Everyone wants a strong homeland, but it shouldn't be achieved on the
backs of the dedicated and talented men and women of the federal
workforce.
We should not erode the rights of federal workers.
The Morella amendment is a fair amendment.
It is clear that the government employees who transfer into the new
department can keep the rights they already have.
The amendment applies only to those who currently have collective
bargaining rights and would in NO WAY affect those employees who do not
currently have these rights.

[[Page H5809]]

Some of the papers are using the example of a ``drunken Border Patrol
agent'' as a reason of why they want to take away workers' rights. This
is a silly anecdote. I can tell you in New York right now, if this were
to happen with one of our officers in the City, such a person would be
removed immediately from their post, but due process would still be
protected.
We don't make our homeland secure by undermining job security.
Vote for the Morella amendment.
The CHAIRMAN pro tempore (Mr. Sununu). The question is on the
amendment offered by the gentlewoman from Maryland (Mrs. Morella).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.

Recorded Vote

Mrs. MORELLA. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 208,
noes 222, not voting 3, as follows:

[Roll No. 357]

AYES--208

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capito
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Cramer
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Harman
Hastings (FL)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Hoyer
Hunter
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (CT)
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Morella
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Petri
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Shows
Simmons
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--222

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bono
Boozman
Boyd
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Castle
Chabot
Chambliss
Coble
Combest
Cooksey
Cox
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Dooley
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hulshof
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
McCrery
McHugh
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pence
Peterson (PA)
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--3

Blunt
Collins
Meehan

{time} 1207

Mr. CONDIT changed his vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore (Mr. Sununu). It is now in order to consider
amendment No. 19 printed in House Report 107-615.

Amendment No. 19 Offered by Mr. Quinn

Mr. QUINN. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 19 offered by Mr. Quinn:
In section 761(a) of the bill, redesignate paragraphs (1)
and (2) as paragraphs (2) and (3), respectively, and insert
after the heading for subsection (a) the following:
(1) Sense of congress.--It is the sense of the Congress
that--
(A) it is extremely important that employees of the
Department be allowed to participate in a meaningful way in
the creation of any human resources management system
affecting them;
(B) such employees have the most direct knowledge of the
demands of their jobs and have a direct interest in ensuring
that their human resources management system is conducive to
achieving optimal operational efficiencies;
(C) the 21st century human resources management system
envisioned for the Department should be one that benefits
from the input of its employees; and
(D) this collaborative effort will help secure our
homeland.
In paragraph (4) of section 9701(b) of title 5, United
States Code (as proposed to be added by section 761(a) of the
bill), strike all that follows ``by law'' and insert ``;
and''.
In section 9701 of title 5, United States Code (as proposed
to be added by section 761(a) of the bill), redesignate
subsection (e) as subsection (g) and insert after subsection
(d) the following:
``(e) Provisions To Ensure Collaboration With Employee
Representatives.--
``(1) In general.--In order to ensure that the authority of
this section is exercised in collaboration with, and in a
manner that ensures the direct participation of employee
representatives in the planning, development, and
implementation of any human resources management system or
adjustments under this section, the Secretary of Homeland
Security and the Director of the Office of Personnel
Management shall provide for the following:
``(A) Notice of proposal, etc.--The Secretary and the
Director shall, with respect to any proposed system or
adjustment--
``(i) provide to each employee representative representing
any employees who might be affected, a written description of
the proposed system or adjustment (including the reasons why
it is considered necessary);
``(ii) give each representative at least 60 days (unless
extraordinary circumstances require earlier action) to review
and make recommendations with respect to the proposal; and
``(iii) give any recommendations received from any such
representative under clause (ii) full and fair consideration
in deciding whether or how to proceed with the proposal.
``(B) Pre-implementation requirements.--If the Secretary
and the Director decide to implement a proposal described in
subparagraph (A), they shall before implementation--
``(i) give each employee representative details of the
decision to implement the proposal, together with the
information upon which the decision was based;
``(ii) give each representative an opportunity to make
recommendations with respect to the proposal; and
``(iii) give such recommendations full and fair
consideration, including the providing of reasons to an
employee representative if any of its recommendations are
rejected.

[[Page H5810]]

``(C) Continuing collaboration.--If a proposal described in
subparagraph (A) is implemented, the Secretary and the
Director shall--
``(i) develop a method for each employee representative to
participate in any further planning or development which
might become necessary; and
``(ii) give each employee representative adequate access to
information to make that participation productive.
``(2) Procedures.--Any procedures necessary to carry out
this subsection shall be established by the Secretary and the
Director jointly. Such procedures shall include measures to
ensure--
``(A) in the case of employees within a unit with respect
to which a labor organization is accorded exclusive
recognition, representation by individuals designated or from
among individuals nominated by such organization;
``(B) in the case of any employees who are not within such
a unit, representation by any appropriate organization which
represents a substantial percentage of those employees or, if
none, in such other manner as may be appropriate, consistent
with the purposes of this subsection; and
``(C) the selection of representatives in a manner
consistent with the relative numbers of employees represented
by the organizations or other representatives involved.
``(f) Provisions Relating to Appellate Procedures.--
``(1) Sense of congress.--It is the sense of the Congress
that--
``(A) employees of the Department of Homeland Security are
entitled to fair treatment in any appeals that they bring in
decisions relating to their employment; and
``(B) in prescribing regulations for any such appeals
procedures, the Secretary of Homeland Security and the
Director of the Office of Personnel Management--
``(i) should ensure that employees of the Department are
afforded the protections of due process; and
``(ii) toward that end, should be required to consult with
the Merit Systems Protection Board before issuing any such
regulations.
``(2) Requirements.--Any regulations under this section
which relate to any matters within the purview of chapter
77--
``(A) shall be issued only after consultation with the
Merit Systems Protection Board; and
``(B) shall ensure the availability of procedures which
shall--
``(i) be consistent with requirements of due process; and
``(ii) provide, to the maximum extent practicable, for the
expeditious handling of any matters involving the Department
of Homeland Security.

The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentleman from New York (Mr. Quinn) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentleman from New York (Mr. Quinn).
Mr. QUINN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the President called on the Congress to create the
Department of Homeland Security in an effort to condense the numerous
government agencies performing these functions into a single more
manageable unit and department.
This massive realignment of people and resources is developed to
enhance the protections of our Nation, without eliminating the basic
rights of our employees that comprise the Department.
The President needs the flexibility we talked about earlier today to
have the right people in the right place at the right time to address
rapidly evolving terrorist threats.
His vision is of a performance-based system that rewards employees
who provide exemplary service and removes those who are not performing
their duties adequately. With the security of our Nation at stake, it
is our duty to provide this and future Presidents with that ability.
Mr. Chairman, it is an opportunity for me to also congratulate and
thank the gentlewoman from Maryland (Mrs. Morella) for her work on this
issue, to thank the administration and the President's personal
involvement these pass few weeks to get us to this point this morning,
to thank my good friend from New York (Mr. McHugh), the Speaker, and
the gentleman from Ohio (Mr. Portman).
Once we have this system in place, however, it is important we do not
compromise the basic employee protections of the workers who perform
these functions. Therefore, Mr. Chairman, it is imperative that the
House approve the amendment that I offer.
The Quinn amendment as it is outlined is a part of the overall
picture that puts this Department in place. We improve the personnel
flexibility provisions in the underlying text by expanding and
broadening worker protections in the following three ways:
First of all, it ensures the direct participation of employee
representatives in the planning, the development, and the
implementation of any human resources management system. It
accomplishes this goal by requiring that the Secretary of this new
Homeland Security and the Director of Personnel Management provide each
and every employee, number one, with a written description of the
proposed amendments; secondly, 60 days to review the proposal; and,
thirdly, a full and fair consideration of those employees'
recommendations.
In other words, Mr. Chairman, what this does is it gives the labor
unions, the employees a seat at the table from the beginning to the end
of the process.
Secondly, with this amendment this morning, it preserves the current
appeals rights of employees, emphasizes due process, expedites
resolutions, and requires consultation with the merit systems
protection board which is already in place.
And, thirdly, it places a sense of Congress language directly into
the underlying statute that clearly protects the employee's right to
appeal and that due process.
Mr. Chairman, this amendment allows the President to use provisions
in current law to exempt an agency from collective bargaining only when
he determines in writing that a substantial, adverse impact on the
homeland security exists.
This standard is actually more restrictive now than current law. I
believe that these protections are absolutely critical to the employees
of the new Department. Mr. Chairman, it is an opportunity to point out
that these employees of our Federal Government, particularly the
example of 9-11, none of them asked when their shift change occurred.
None of them asked if they were going to be paid overtime. Nobody said
it is my time to return in a time of war, in a time when the President
has to have all the tools necessary to fight terrorism and this war.
We know that these employees will respond the way they have always
responded. We are proud of their work. We are proud of them as
employees. We want to make certain now that the Morella-Shays issue has
been settled, that we are able to talk about making certain that this
President or any President does not take advantage of these workers,
these Federal workers that we are so proud of.
Mr. Chairman, I reserve the balance of my time.
Mr. WAXMAN. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN pro tempore. The Chair recognizes the gentleman from
California (Mr. Waxman) for 10 minutes.
Mr. WAXMAN. Mr. Chairman, I yield 2 minutes to the gentleman from
Illinois (Mr. Davis).
Mr. DAVIS of Illinois. Mr. Chairman, I rise in opposition to this
amendment, and I do so because it is actually a step backwards. This is
a step backwards by taking away worker rights and protections that
Americans have come to cherish.
When you take away chapter 5, you talk about fighting terror, you
create terror and strike terror and fear in the hearts of workers
because now you are saying to them that they may not be able to get
annual cost-of-living increases in their wages. That is no longer
automatic. You say to those individuals who work in high-market areas
that they may not get adequate compensation if they have to work in
places like New York, Chicago, Washington, D.C., places where the cost
of living is much greater and much higher than in other places.

{time} 1215

It means that we do not have to give employees the right to grieve
and to have the protections that every American in the workplace so
rightly deserves. So I cannot imagine why it would be necessary to take
these protections away under the guise of fighting terror because I can
guarantee my colleagues that the people I have been speaking with are
terrorized with fear that the rights they have earned will be taken
away.
Mr. QUINN. Mr. Chairman, I yield 3 minutes to the gentleman from New
York (Mr. Sweeney), a fellow New Yorker who worked on this package
these last couple of weeks, a leader in labor issues, not only in our
State of New York but the country.

[[Page H5811]]

Mr. SWEENEY. Mr. Chairman, I thank the gentleman for yielding me
time, and, Mr. Chairman, I rise in strong support of the gentleman from
New York's (Mr. Quinn) amendment that I believe will provide personnel
flexibility broadening worker protections.
Mr. Chairman, we have had great discussions this morning and for the
last several weeks about the challenges that we face in forming a new
Homeland Security Department and providing for the protection of the
American people. It seems in the course of those discussions we have
needed to find a balance between the needs to provide those protections
against terrorist attacks and worker rights, and I submit to my
colleagues as the former State labor commissioner of New York State,
probably the largest unionized State in the Nation, that that conflict
ought not to occur, and I am very proud today that we seem to be moving
in a very positive direction, a very positive direction in passing the
Shays amendment.
I will note the colloquy that my colleague, the gentleman from New
York (Mr. McHugh), had with the Speaker of the House and the
conversations that we had with the President of the United States in
which they made commitments to the basic precepts of collective
bargaining and the rights of workers and ensuring that workers' rights
would not be abrogated in this process, and, indeed, with this
amendment from the gentleman from New York (Mr. Quinn), Mr. Chairman,
it is important that we reaffirm those commitments and those rights.
As the gentleman from New York (Mr. Quinn) pointed out on September
11, a shift change had occurred at 8:45 a.m. and two planes flew into
the World Trade Center. Unionized firefighters and unionized police
officers did not ask whether their shift was beginning or ending,
simply charged into those buildings to do their jobs as they have
always done their jobs and save American lives.
That is why it is important that this amendment pass. That is why it
is important that we keep those commitments first and foremost and
forward as we decide and deliberate how to best secure America's
borders.
On a personal note, I would like to speak in terms of my commitments
to collective bargaining, workers' rights, because my dad, Mr.
Chairman, was a labor leader. He fought all his life for collective
bargaining issues. I sat at the kitchen table discussing those issues
and know, indeed, I would not have been here today representing the
people of the 22nd Congressional District in New York had he not won
those fights.
This is not about an abrogation of those rights. This is about
ensuring that the President of the United States has the flexibility to
protect American lives and American people. He has given his commitment
that he will do that job and as well will ensure that the workers who
fulfill those duties, who we know will fulfill those duties will as
well be protected.
I fully, strongly support this amendment and all of the efforts on
the part of my colleagues to ensure those rights are protected and that
the American public is protected from the terrorist attacks that we
face.
Mr. WAXMAN. Mr. Chairman, I yield 2 minutes to the gentleman from
Maryland (Mr. Cummings).
Mr. CUMMINGS. Mr. Chairman, I want to thank the gentleman for
yielding me the time.
Mr. Chairman, I rise today to ask my colleagues to vote against the
Quinn amendment. This amendment does not fix the problems in the civil
service provisions of the bill. In fact, the Quinn amendment is
actually a step backward from the current law.
In the underlying bill, the new Department does not have to comply
with essential parts of title V. In fact, the reported bill does not
guarantee the Federal employees will receive protections against unfair
labor practices, get cost-of-living increases or even locality pay.
Mr. Chairman, as former ranking member of the Committee on Government
Reform, Subcommittee on Civil Service, Census and Agency Organization,
I firmly believe that it is critical that Federal employees transferred
to this new Department retain their civil service protections. Federal
employees whose responsibilities are the same today as they were a week
ago or even a year ago could lose civil service protections just
because the government's organizational chart will change. This is an
unfair result that I know my colleagues want to avoid.
Again, I ask my colleagues to vote against the Quinn amendment and
support the Waxman-Frost amendment. Civil service protections should
not be altered merely because employees are moved to the new
Department. The Federal employees in the new mega agency should have
the same rights as employees in other agencies.
Mr. QUINN. Mr. Chairman, I yield 3 minutes to the gentleman from Ohio
(Mr. Portman). This discussion these last few weeks has been including
a lot of people. The gentleman from Ohio (Mr. Portman), of course, with
his expertise and involvement in the House was very, very helpful.
Mr. PORTMAN. Mr. Chairman, I want to say to my friend from Maryland,
and he is my friend, that this is a good amendment because it does
actually enhance the worker protections in the underlying bill. I
understand his concerns with the underlying bill, but this amendment
expands them. It does it in a few very specific ways.
I want to commend the gentleman from New York (Mr. Quinn) because he
listened. He listened to the 25 percent of the employees who are coming
into this new Department who are currently represented by unions, and
he listened to the 75 percent of employees coming into this new
Department who are not members of the union.
What he did is very simple. He got the unions a place at the table so
that when we go through these new flexibilities we are going to talk
about in the next amendment, the unions have a voice, and they wanted
that.
He makes sure that the Secretary of this new Department could not use
a waiver authority to pull union members out of collective bargaining
for national security purposes, which is in the underlying bill. He
removes that authority, again listening to the concerns of union
members and their representatives.
He also preserves the appeal rights for all workers in this new
Department to make sure that due process is followed to clarify the
underlying language and be sure that the Merit Systems Protection Board
is used in the case of appeal, should there be a firing.
He also puts very important language in the amendment to clarify the
intent of this entire bill which is exactly what I have heard on the
other side of the aisle today by the gentleman from Maryland (Mr. Wynn)
and others, to be sure that we prioritize human capital. It is the key.
Good morale, working as a team, is the only way this is going to work,
and the Federal workers are going be the heroes in this case. They are
going to be the ones responding as the first responders. They are going
to be the ones protecting our kids and grandkids over time. We need to
be sure that this morale and this team effort is taken.
I have heard a lot of comments here today about the underlying draft
in the McHugh amendment and that somehow it does not protect worker
protections under title V. That is wrong. It does. We have heard, for
instance, that the merit system principles are optional. They are not.
They are guaranteed in this bill and in the amendment.
The whistleblower protections are guaranteed. Political cronyism is
not allowed. In fact, all the language prohibiting political coercion
is absolutely in this legislation, explicitly. Veterans' preferences
are not eliminated. They are guaranteed. Annual leave, sick leave is
totally guaranteed and protected. Diversity hiring is guaranteed.
Nepotism prohibition, I have heard that is not in the bill. It is. It
is in the bill. It is guaranteed. Arbitrary dismissals are not
permitted. It is guaranteed that there is protection against arbitrary
dismissals, and finally, health insurance and other retirement benefits
are absolutely guaranteed in this legislation.
Mr. Chairman, the Quinn amendment improves, perfects an underlying
piece of legislation which gives the President the flexibility he will
need to adequately protect our homeland. I strongly support the
underlying bill. I support the gentleman from New York's (Mr. Quinn)
amendment, and I hope my colleagues will support it as well on a
bipartisan basis.

[[Page H5812]]

Mr. WAXMAN. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, let me tell my colleagues what this does not do. The
gentleman from Ohio (Mr. Portman) tried to make us think that civil
servants were going to be protected. Well, if an annual cost-of-living
is going to other employees, there is no guarantee that employees
working in this Department will get it. Nor would they be guaranteed
the locality pay increases to offset the higher cost of living. The
employee is also not protected against the Department if it engaged in
unfair labor practices, such as coercing employees or discriminating
against employees who assert their collective bargaining right. Rights
are not restored. They are not protected anymore.
The employees are at the mercy of the Department, and, in fact, if an
agency wanted to take an adverse action against an employee, it does
not even have to give them, as existing law, 30 days notice and 7 days
to respond, and then if there is an adverse action taken against the
employees, there is no provision to give them the right to appeal.
These are current rights that are being taken away, and the gentleman
from Ohio (Mr. Portman) does not restore those rights.
Mr. QUINN. Mr. Chairman, could I inquire as to the amount of time
remaining.
The CHAIRMAN pro tempore (Mr. Sununu). The gentleman from New York
(Mr. Quinn) has 30 seconds remaining and the right to close. The
gentleman from California (Mr. Waxman) has 5\1/2\ minutes remaining.
Mr. QUINN. Mr. Chairman, I reserve my time.
Mr. WAXMAN. Mr. Chairman, I yield 1 minute to the gentleman from
Maine (Mr. Allen).
Mr. ALLEN. Mr. Chairman, I thank the gentleman for yielding me the
time.
Mr. Chairman, I rise in strong opposition to the Quinn amendment
which weakens the already weak civil service provisions of the
underlying bill. Federal employees want more than the right to consult
with their employers. They want to be partners with the government in
the effort to defend our Nation. Workplace rights for employees will
not undermine homeland security. After all, if the first responders,
the heroes of September 11, can belong to unions and enjoy workplace
protections, surely the staff of the Department of Homeland Security
can do the same.
Flexibility and consultation rights, with these words, the Republican
majority puts lipstick on their attack on existing civil service and
collective bargaining rights of Federal employees. If this new
Department is to succeed, Federal employees will make it work. We
should treat these professionals with the respect they deserve. Defeat
the Quinn amendment and support the Waxman-Frost amendment.
Mr. WAXMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
gentleman for yielding me the time.
Let me offer to say to the gentleman from New York (Mr. Quinn), a
good friend, I appreciate the good faith and the good intentions that
may be behind the offering of this amendment, but let me, Mr. Chairman,
suggest what we are actually seeing here in contrast to what we are
supposed to be doing in a bipartisan effort to pass homeland security,
and that is, that on this floor today over the last hour, we have seen
a change in the method or either the focus of this legislation.
We are supposed to be fighting terrorism, Mr. Chairman. We are now
fighting workers, and the reason why I say that is because we are
offering legislation contrary to the Frost-Waxman amendment that really
implodes longstanding commitments and obligations and responsibilities
to the working people of America.
This bill impacts negatively our Federal firefighters, our Federal
law enforcement, our military personnel. Is that what we want to say to
those first responders, that we do not care about their working rights?
That is what this consultation amendment does because it does not allow
negotiation.
The reason why I know this House bill poses difficulty for me is
because in the morning's presentation that the administration had that
many of us did not secure an invitation to--even though we have
responsibilities dealing with homeland security, the administration
said pointedly that they did not like the other body's bill, why--
because the other body had a bill that was fair, that recognized that
the thrust of homeland security should be fighting terrorism and not
American workers.
I do not believe that disallowing the rights that workers have makes
us more secure. I am insulted for this bill to suggest that Americans,
when challenged by foreign terroristic acts or domestic terroristic
acts, will not come together, will not give up rights and stand united
with this administration.
Why are we destroying workers' rights, Mr. Chairman? This is what
this amendment does. I would ask my colleagues to defeat it and vote
for Frost-Waxman.
Mr. WAXMAN. Mr. Chairman, we have no other requests for time, and we
will yield back the balance of our time.
Mr. QUINN. Mr. Chairman, I yield myself the remaining time.
Simply in closing, I would say this. I have spent a career here in
the Congress, 10 years now fighting for workers' rights, fighting for
labor unions and working families across the country, and I would not
be here this morning offering the amendment if I did not think it
helped the working families of this country and it helps our President
protecting the country, those same workers, not exclusive of each
other, but the same people all at the same time, and I would urge, on
those merits and the help of a lot of friends in the House, passage.
Mr. QUINN. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from New York (Mr. Quinn).
The question was taken; and the Chairman pro tempore announced that
the ayes appeared to have it.

Recorded Vote

Mr. QUINN. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 227,
noes 202, not voting 4, as follows:

[Roll No. 358]

AYES--227

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bono
Boozman
Boyd
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Combest
Cooksey
Cox
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Dooley
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
McCrery
McHugh
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Stump

[[Page H5813]]

Sullivan
Sununu
Sweeney
Tancredo
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOES--202

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Cramer
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Harman
Hastings (FL)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (CT)
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Morella
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOT VOTING--4

Blunt
Kaptur
Meehan
Radanovich

{time} 1250

Messrs. CUMMINGS, BLAGOJEVICH, JOHN, and JEFFERSON and Ms. ROYBAL-
ALLARD changed their vote from ``aye'' to ``no.''
Mr. TOM DAVIS of Virginia changed his vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore (Mr. Sununu). It is now in order to consider
amendment No. 20 printed in House Report 107-615.

Amendment No. 20 Offered by Mr. Waxman

Mr. WAXMAN. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 20 offered by Mr. Waxman:
Strike section 761 and insert the following:

SEC. 761. HUMAN RESOURCES MANAGEMENT.

(a) Authority To Adjust Pay Schedules.--
(1) In general.--Notwithstanding any provision of title 5,
United States Code, the Secretary may, under regulations
prescribed jointly with the Director of the Office of
Personnel Management, provide for such adjustments in rates
of basic pay as may be necessary to address inequitable pay
disparities among employees within the Department performing
similar work in similar circumstances.
(2) Applicability.--No authority under paragraph (1) may be
exercised with respect to any employee who serves in--
(A) an Executive Schedule position under subchapter II of
chapter 53 of title 5, United States Code; or
(B) a position for which the rate of basic pay is fixed in
statute by reference to a section or level under subchapter
II of chapter 53 of such title 5.
(3) Limitations.--Nothing in this subsection shall
constitute authority--
(A) to fix pay at a rate greater than the maximum amount of
cash compensation allowable under section 5307 of title 5,
United States Code, in a year; or
(B) to exempt any employee from the application of such
section 5307.
(4) Sunset provision.--Effective 5 years after the
effective date of this Act, all authority to issue
regulations under this subsection (including regulations
which would modify, supersede, or terminate any regulations
previously issued under this subsection) shall cease to be
available.
(b) Suspension and Removal of Employees in the Interests of
National Security.--The Secretary shall establish procedures
consistent with section 7532 of title 5, United States Code,
to provide for the suspension and removal of employees of the
Department when necessary in the interests of national
security or homeland security. Such regulations shall provide
for written notice, hearings, and review similar to that
provided by such section 7532.
(c) Demonstration Project.--
(1) In general.--Not later than 5 years after the effective
date of this Act, the Secretary shall submit to Congress a
proposal for a demonstration project, the purpose of which
shall be to help attain a human resources management system
which in the judgment of the Secretary is necessary in order
to enable the Department best to carry out its mission.
(2) Requirements.--The proposal shall--
(A) ensure that veterans' preference and whistleblower
protection rights are retained;
(B) ensure that existing collective bargaining agreements
and rights under chapter 71 of title 5, United States Code,
remain unaffected;
(C) ensure the availability of such measures as may be
necessary in order to allow the Department to recruit and
retain the best persons possible to carry out its mission;
(D) include one or more performance appraisal systems which
shall--
(i) provide for periodic appraisals of the performance of
covered employees;
(ii) provide for meaningful participation of covered
employees in the establishment of employee performance plans;
and
(iii) use the results of performance appraisals as a basis
for rewarding, reducing in grade, retaining, and removing
covered employees; and
(E) contain recommendations for such legislation or other
actions by Congress as the Secretary considers necessary.
(3) Definition of a covered employee.--For purposes of
paragraph (2)(D), the term ``covered employee'' means a
supervisor or management official (as defined in paragraphs
(10) and (11) of section 7103(a) of title 5, United States
Code, respectively) who occupies a position within the
Department which is in the General Schedule.
(d) Merit System Principles.--All authorities under
subsections (a) and (b) shall be exercised in a manner, and
all personnel management flexibilities or authorities
proposed under subsection (c) shall be, consistent with merit
system principles under section 2301 of title 5, United
States Code.
(e) Remedies for Retaliation Against Whistleblowers.--
Section 7211 of title 5, United States Code, is amended--
(1) by inserting ``(a)'' before ``The right''; and
(2) by adding at the end the following:
``(b) Any employee aggrieved by a violation of subsection
(a) may bring a civil action in the appropriate United States
district court, within 3 years after the date on which such
violation occurs, against any agency, organization, or other
person responsible for the violation, for lost wages and
benefits, reinstatement, costs and attorney fees,
compensatory damages, and equitable, injunctive, or any other
relief that the court considers appropriate. Any such action
shall, upon request of the party bringing the action, be
tried by the court with a jury.
``(c) The same legal burdens of proof in proceedings under
subsection (b) shall apply as under sections 1214(b)(4)(B)
and 1221(e) in the case of an alleged prohibited personnel
practice described in section 2302(b)(8).
``(d) For purposes of this section, the term `employee'
means an employee (as defined by section 2105) and any
individual performing services under a personal services
contract with the Government (including as an employee of an
organization).''.
(f) Nonreduction in Pay.--Nothing in this section shall,
with respect to any employee who is transferred to the
Department pursuant to this Act, constitute authority to
reduce the rate of basic pay (including any comparability
pay) payable to such employee below the rate last payable to
such employee before the date on which such employee is so
transferred.

In section 812(e)(1), strike ``Act; and'' and insert the
following: ``Act, except that the rules, procedures, terms,
and conditions relating to employment in the Transportation
Security Administration before the effective date of this Act
may be applied only to the personnel employed by or carrying
out the functions of the Transportation Security
Administration.''.

In section 812(e)(2), strike ``except'' and insert
``Except''.
The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentleman from California (Mr. Waxman) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentleman from California (Mr. Waxman).
Mr. WAXMAN. Mr. Chairman, I yield myself 3 minutes and 30 seconds.

[[Page H5814]]

I rise in support of the Waxman-Frost amendment on Civil Service.
This amendment strikes the flawed section 761 which was reported out of
the Select Committee regarding civil service and replaces it with the
civil service language reported by the Committee on Government Reform
with unanimous bipartisan support.
Our Nation has the most honest, most professional civil service in
the world, and the reason is our civil service laws. These civil
service laws prevent abuses such as patronage, they guarantee important
rights such as appeals to the Merit Systems Protection Board, and they
provide for collective bargaining rights.
The President's proposal eliminated these essential protections, but
the Committee on Government Reform and the gentleman from Indiana
(Chairman Burton) crafted an amendment that restored the protections of
title V to employees of this new Department. His amendment received
unanimous bipartisan support from the Members of the committee, and we
had other civil service amendments offered by the gentlewoman from the
District of Columbia (Ms. Norton) on preserving pay, the gentleman from
Massachusetts (Mr. Tierney) for ensuring that TSA procedures do not
apply agency-wide, the gentleman from Ohio (Mr. Kucinich) offered an
amendment to protect whistleblowers, and these were all adopted by
unanimous bipartisan support.
The amendment I am offering right now is simply the amendment of the
gentleman from Indiana (Mr. Burton) as amplified by the other
amendments, adopted without dissent in our committee.
As currently drafted in the bill before us, section 761 does not
guarantee Federal employees basic civil service protections. The
section preserves some rights. It is an improvement over the
President's proposal, but it specifically allows the secretary to waive
any of the provisions of chapters 43, 51, 53, 71, 75 and 77 of title V.
This is wrong. Civil servants whose responsibilities will be the same
today if they are transferred into this new department as they were
before the transfer should not lose their civil service protections
just because that organizational chart may change.
In essence, the bill before us makes the employees of the new
department second-class employees. Degrading the rights of Federal
workers in the new Department makes no sense. We want the new
department to succeed, but this will not happen if the employees of the
new department are stripped of their basic rights.
The Waxman-Frost amendment corrects these problems. It ensures that
the basic title V protections apply to the new department, and it does
so in exactly the same way that the Committee on Government Reform
recommended unanimously. The Committee on Government Reform is the
committee of jurisdiction on civil service and public employees'
issues.
Mr. Chairman, I am asking, and it is quite rare that I would do this,
for the Members of this House to support the amendment of the gentleman
from Indiana (Mr. Burton) that we all supported in committee.
Mr. Chairman, I reserve the balance of my time.
Mr. PORTMAN. Mr. Chairman, I rise in opposition to the Waxman
amendment.
The CHAIRMAN. The gentleman from Ohio (Mr. Portman) is recognized for
10 minutes.
Mr. PORTMAN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the gentleman from California (Mr. Waxman) called this
the amendment of the gentleman from Indiana (Mr. Burton), and I think
it is only appropriate that the gentleman from Indiana (Mr. Burton) can
explain his position on this amendment and the underlying bill.
Just to make one point, though, what we are talking about here is an
underlying draft that does protect title V. It does provide all of the
protections that the gentleman referenced, including patronage
protections, whistleblower protections, and the other collective
bargaining rights that are guarantee in the underlying bill.
Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Indiana
(Mr. Burton), the chairman of the Committee on Government Reform.
Mr. BURTON of Indiana. Mr. Chairman, first let me say that my good
friend, the gentleman from California (Mr. Waxman), and I did work very
closely along with the Democrats on the committee to come up with a
product that we can all be proud of, and it did pass by a vote of 30-1.
While I do have some pride of authorship, I believe that the Portman
amendment goes a little further and does a little better job than I did
in the manager's amendment.
First, in the committee bill we maintained whistleblower protections,
veterans' preferences, and we retained collective bargaining rights,
not that we thought the administration would in some way violate those
things, but we thought they should be in the bill. We wanted to
reassure the Federal workforce.
But the Portman language goes even further. It provides against
political retaliation regarding the Hatch Act. It retains protections
against racial discrimination and gender discrimination. It protects
health care benefits, retirement benefits, and it protects workers
compensation. Those are things that ought to be in the bill that are
not.
Now, putting this department together is a monumental undertaking. We
are talking about taking parts of 22 different departments and bringing
them together to protect this Nation. It is not an easy job, and the
administration is going to have a difficult time getting all of this
accomplished, and they have to have flexibility wherever possible in
order to make this whole thing work.
One of the things that concerned me was protections against those who
may be set aside because there is a possibility there is a national
security concern about these people and their jobs and what they may or
may not be doing. For that reason, I supported the Quinn amendment that
provides due process for those individuals. That was not in the
manager's mark or the original bill, but it is now.
I know that Federal employees are very nervous and I know that change
is hard and it causes anxiety. But I believe the administration is
going to be fair. I believe we are putting as many protections as
possible in this legislation, and we are still providing the
flexibility that the President needs.

{time} 1300

We are talking about protecting every single American, and the
President is going to have to have flexibility. I believe that the bill
that we passed in the committee, much of which has been talked about
here on the floor, does that; and I believe the Portman amendment even
improves upon that. I would just like to say that I support the Portman
amendment. I did before the Committee on Rules, and for that reason I
hope we will defeat this amendment that would take that out.
Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume.
The improvements in the bill are improvements not from the language
of the Committee on Government Reform but from the original bill
introduced by the President. What we need to do is restore all of the
provisions that were adopted by the Committee on Government Reform.
Mr. Chairman, I yield 3\1/2\ minutes to the gentleman from Texas (Mr.
Frost), the cosponsor of this amendment.
(Mr. FROST asked and was given permission to revise and extend his
remarks.)
Mr. FROST. I thank the gentleman for yielding me this time.
Mr. Chairman, the Waxman-Frost amendment preserves the national
security flexibility the President needs without sacrificing the
current civil service protections for the new Department. It strikes
from the bill a needlessly partisan attack on the civil service system
and replaces it with the bipartisan compromise adopted unanimously by
the House Committee on Government Reform, the committee with original
jurisdiction and expertise on civil service.
The Waxman-Frost amendment is essential because the underlying bill
and the Quinn amendment just agreed to contain language that actually
turns back the clock on important civil service protections. That may
be crucial to the ideology of some on the other side of the aisle, but
it will harm the effectiveness of the new Department.

[[Page H5815]]

Throughout this process, Mr. Chairman, some Republican leaders have
thrown around attacks on worker protections in current law. The truth
is the civil service system protects Americans against a ``spoils''
system that would allow politicians to reward their friends and
supporters with important government jobs. And it is crucial that the
Department of Homeland Security be staffed by professionals, not by the
cronies of whichever party happens to hold the White House.
Mr. Chairman, Democrats and Republicans on the Committee on
Government Reform recognized this fact, so they voted unanimously to
protect the fundamental title V protections of employees in the new
Department.
Mr. Chairman, much has been said about flexibility. I want to assure
the House that the Waxman-Frost amendment ensures that the Department
of Homeland Security has the flexibility to effectively and efficiently
carry out its mission to protect the American people.
Mr. Chairman, our Federal employees are our most valuable asset in
the Department of Homeland Security. They are our first line of
defense. We are entrusting our safety to them because we know they will
rise to the challenge and serve the Nation well. So it is critical that
the new Department hires and retains the best and the brightest
employees to protect our Nation from terrorism. The question is, do we
treat these people with the respect and professionalism they deserve?
Or do we undermine the morale of these employees, and risk compromising
the mission of the new Department, by gutting their most fundamental
workplace rights?
I urge Republicans to join Democrats in supporting worker protections
and the professionalism of the Department of Homeland Security. Support
the Waxman-Frost amendment.
Mr. PORTMAN. Mr. Chairman, I yield 2 minutes to the gentleman from
Oklahoma (Mr. Watts), a member of the Select Committee on Homeland
Security who has been a leader on protecting the homeland actually long
before September 11 and has added considerable value to the work of the
select committee and to the debate today.
Mr. WATTS of Oklahoma. I thank my friend from Ohio for yielding me
this time.
Mr. Chairman, it is interesting that a terrorist can attack us in a
matter of 5 minutes, and then we have got these antiquated systems that
it could take us 5 months in order to respond. What the President is
asking is for Congress in this new agency to give him the latitude and
flexibility to defend our homeland and to do the necessary things in
order to respond to these terrorist attacks.
Friends, we are in a new day. I have heard all these things, and I
know the gentleman from Ohio (Mr. Portman) talked about this a little
earlier, but I think this is worth repeating to just kind of denounce
some of the myths and some of the accusations that have been thrown
around.
They say the merit system principles, in the new bill that they are
optional. The merit system principles are guaranteed.
Whistleblower protections. They say they are eliminated. They are
guaranteed in the new bill.
Political cronyism is allowed, they say. There is a prohibition on
political coercion and favoritism in our bill. We have got guarantees
there.
Veterans preference, they say it is eliminated. They are guaranteed
in the legislation.
Sick and annual leave. Unprotected, they say. Sick and annual leave,
guaranteed.
Diversity hiring, they say it is optional in this bill. Not true.
Minority recruitment and reporting under title V is guaranteed.
Nepotism prohibition is guaranteed. Protection against arbitrary
dismissal, guaranteed in this legislation. Health insurance, FEHBP,
guaranteed in this legislation.
The President is saying, give me the flexibility and latitude to
defend our homeland, and we can still guarantee all these things.
Employees will not lose any of these benefits. They are still in place.
But give the President the latitude and the flexibility to defend our
kids and our grandkids, our families.
Friends, we are in a new world. We need to think outside of the box
without thinking outside of the Constitution. This is the right thing
to do. Vote down the Waxman-Frost amendment and support the
legislation.
Mr. WAXMAN. Mr. Chairman, I yield 1 minute to the gentleman from
Illinois (Mr. Davis).
(Mr. DAVIS of Illinois asked and was given permission to revise and
extend his remarks.)
Mr. DAVIS of Illinois. Mr. Chairman, I believe that preserving
democracy is as important as fighting terrorism. In a democracy, one
set of rights ends where the next set begins. We are hearing this
business that there is not enough flexibility, that the Secretary
cannot deal with individuals who are not prepared to do their job.
Absolutely false. Section 7532 of title V provides: ``Notwithstanding
other statutes, the head of an agency may suspend without pay an
employee of his agency when he considers that action necessary in the
interests of national security.'' You cannot be much clearer than that
in terms of the ability of the Secretary to function.
The real deal is that we are suspending individual rights and
protections. The Waxman-Frost amendment restores those protections. And
if we want the agency to function, vote for the amendment.
Mr. PORTMAN. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Kansas (Mr. Ryun), who has been at the forefront of these issues.
Mr. RYUN of Kansas. Mr. Chairman, the new Department of Homeland
Security will be on the front lines in the war on terrorism. The people
who will fulfill the Department's mission must be highly qualified,
motivated, and effective. In attracting and keeping this team, we will
be competing against the private sector. Recognizing these challenges,
the President asked the Congress to give him the maximum flexibility in
putting together and managing the Department's workforce.
The legislation crafted by the select committee gives the President
the flexibility he requested while at the same time preserving a number
of important employment protections. This approach represents what is
best for both the Nation's security and those who will serve in this
new Department.
First of all, the bill allows the Secretary to develop a performance
management program that effectively links employee performance with the
Department's objectives and mission. Secondly, the Secretary will have
the freedom to use a broad approach in making job classifications and
will not be bound by our current system that confines Federal workers
to 15 artificial grades. Additionally, the Secretary will not be
restricted by the current rigid pay system. Rather, the Secretary will
be able to meaningfully reward performance.
We are engaged in a different kind of war. We face a new enemy. We
must adapt to meet this new threat. This bill ensures that we will
adapt to overcome these new threats. I urge my colleagues to support
the select committee's bill and vote against Frost-Waxman.
Mr. WAXMAN. Mr. Chairman, I yield 1 minute to the gentleman from Ohio
(Mr. Kucinich), a very important member of our committee.
Mr. KUCINICH. Mr. Chairman, whistleblower rights are workers' rights.
No worker should lose his or her job for exposing waste, cover-up or
lies of their supervisors. It is ironic that in a bill designed to
fight terrorism, we have a provision designed to terrorize workers.
Congress must be able to receive the insights of security guards,
border patrol agents, policemen, military and others who may need to
expose security weaknesses to Congress. Therefore, the Waxman-Frost
amendment improves the law, protecting whistleblowers to ensure the
security of our Nation.
It would apply remedies, the right to a civil action in U.S. district
court. Remedies available would include lost wages and benefits,
reinstatement, costs and attorney fees, compensatory damages and
equitable, injunctive or any other relief that the court considers
appropriate.
If we really want our Nation to be secure, then let us make sure that
the workers who are a part of homeland security are going to be
protected when they do the right thing.
Mr. PORTMAN. Mr. Chairman, we have one more speaker to close. Who has
the right to close?

[[Page H5816]]

The CHAIRMAN pro tempore (Mr. Bonilla). The gentleman from Ohio (Mr.
Portman) has the right to close.

parliamentary inquiry

Mr. WAXMAN. Mr. Chairman, I have a parliamentary inquiry.
The CHAIRMAN pro tempore. The gentleman will state it.
Mr. WAXMAN. How is it that whenever the amendment is offered on the
other side, they get the right to close, and when an amendment is
offered on our side, they still get the right to close? When they
propose it they close, and when they oppose it they close. Is it a rule
or does it just simply go to the majority party?
The CHAIRMAN pro tempore. The manager of the bill in opposition to
the amendment has the right to close.
Mr. WAXMAN. Mr. Chairman, that has not been the way that the House
has proceeded up to now, because I have been managing opposition to a
number of amendments, and I have been told the other side has the right
to close on those amendments because they are offering the amendment.
The CHAIRMAN pro tempore. The Member of the committee, the select
committee in this case as the only reporting committee opposing ane
amendment always has the right to close.
Mr. WAXMAN. I see. I thank the Chair for the clarification.
The CHAIRMAN pro tempore. It is consistent.
Mr. WAXMAN. Mr. Chairman, I yield 30 seconds to the gentleman from
Massachusetts (Mr. Tierney), who played a very important role in the
development of this bill in our committee.
Mr. TIERNEY. I thank the gentleman for yielding me this time.
Mr. Chairman, our colleague from Oklahoma spoke a few moments ago
about civil service laws meaning it would take 5 months for a response.
It did not take the first responders in New York and Pennsylvania and
Virginia 5 months to respond on September 11. It took minutes to
respond. It has taken this administration 5 months, or more than 5
months to fulfill its promises to close up the cockpits of airplanes
securely and to screen luggage and baggage for passengers.
Civil service protections are not the issue in this homeland security
bill. We need to encourage good employees, not treat them as second-
class employees. We need to give people an understanding that they are
important. This administration and the majority, we should have great
concern that they choose a homeland security bill to take on an
ideological effort against employees.
Mr. WAXMAN. Mr. Chairman, I yield 30 seconds to the gentlewoman from
Maryland (Mrs. Morella).
Mrs. MORELLA. Mr. Chairman, I rise today in strong support of the
Waxman-Frost amendment. It is the exact language that the Committee on
Government Reform unanimously adopted. It makes crystal clear that all
Federal employees transferred to the new Department will continue to
have full title V civil service rights and protections.
While I appreciate that the gentleman from Ohio (Mr. Portman) offered
better language in the select committee than what the administration
had previously proposed, his language would still allow the new
Secretary and the Director of OPM to waive numerous sections of title
V. We need to create a new Department that demonstrates the value we
place in civil servants and not one that insinuates our distrust of
them.

{time} 1315

Mr. WAXMAN. Mr. Chairman, I yield the balance of my time to the
gentlewoman from California (Ms. Pelosi), the very distinguished whip.
Ms. PELOSI. Mr. Chairman, I thank the gentleman for yielding me time
and for his outstanding leadership on protecting the civil service. We
have a civil service for a reason. It has served our country, indeed,
it serves democracy well. We are an example to the world. As we go
forward to reduce risk and to protect the American people, we should
not do so at the expense of a democratic institution like civil
service.
One of the previous speakers said that we are competing with the
private sector so we need this flexibility. We are competing with the
private sector, and that is precisely why we need to respect our
workers and give them the civil service protection that President Bush
did in the mark that the President sent to this body.
Support the President's bill. Support the Waxman amendment.
The CHAIRMAN pro tempore (Mr. Bonilla). All time has expired for the
gentleman from California (Mr. Waxman).
Mr. PORTMAN. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, we face an unpredictable and unprecedented agile and
deadly threat. It is not the Cold War any more, it is not about which
side has the most muscle mass, it is not about what the biggest
department might be. It is about agility. It is about being able to
meet the enemy's agility with our own agility.
As any athlete will tell you, including the gentleman from Kansas
(Mr. Ryun) who just spoke, you cannot be agile without being flexible
first. The President, and Presidents after him, need this flexibility
to be sure that this Department works. We simply cannot work with the
1950s era bureaucratic personnel practices that would otherwise be
available to him, and, again, to future Presidents and future
Secretaries.
The Waxman-Frost amendment protects the antiquated civil service
system in a way that blunts this Department's ability to modernize, to
consolidate, to streamline, to bring together 22 different personnel
systems into one team.
For instance, the amendment prohibits the Secretary from using
innovative compensation plans like incentive pay. There is nothing more
important than having a work force with high morale that is focused on
a team effort to combat terrorism. This is all about human capital and
the workforce. If you cannot provide the kind of incentive pay that the
President and the Secretary want to provide to people who are
performing, you are not going to have that kind of morale.
It keeps the new agency stuck in the mud of over 100 pay grades,
arcane job classifications that make no sense whatsoever, and
performance appraisals that are indifferent to the mission of this
agency. You want to align the performance with the mission.
On hiring, let me raise a specific example, because it was mentioned
earlier that it took 5 seconds for a terrorist to commit an act, or 5
minutes, and 5 months to respond. Here is a specific example of that.
It takes 5 months, conceivably, to hire a bioterrorism expert under
current civil service rules, whereas it only takes 5 minutes or 5
seconds to commit that bioterrorist act. Why? Developing the written
job description, personnel office, classification, conducting job
analysis, developing recruiting strategy, announcing the position, rate
application, rank-qualified applications, refer the top three qualified
to the interviews, conduct interviews, and so on. Five months. That is
a specific example of where this Department otherwise would not have
the agility to respond.
Also the Secretary could have a bureaucratic nightmare trying to
decide who is a security risk and who is not. If you want to fire
somebody under the current rules, it can take, yes, weeks and months.
Red tape comes first; homeland security comes second.
The Quinn amendment guaranteed that in the appeals process, that due
process will be protected and the Merit System Protection Board would
be used. The Quinn amendment made sure people would have that appeal.
But matters of national security concern, where there needs to be a
severance, must be disposed of immediately when national security is at
risk.
It also does not allow the Secretary to rationalize all these
different departments coming. Again, 22 different personnel systems.
There needs to be one unified, flexible system. Not only does the
Waxman-Frost language not provide any needed flexibility, it actually
does not provide the ability of the Secretary to develop a human
resources system at all. All it says is, unbelievably, that the new
Department has to propose to Congress a new personnel system and then
Congress has to work its will on it. How long would that take? I do not
know. It would go through the committees, it would go through the
House, it would go through the Senate. Other agencies and departments
do not even have to go through

[[Page H5817]]

that process. All it does, this amendment, is allow the Department to
propose a system, not even to develop a system.
We want this Department set up and ready to go immediately, and not
when we finally get around to it here in Congress.
Finally, while the Waxman-Frost amendment does not offer the
flexibility that is absolutely needed, it also does not provide the
same civil service protections that the underlying bill provides. Yes,
it mentions whistleblowers and veterans, but others it does not
mention, including racial discrimination, thrift savings, and so on.
Mr. Chairman, I ask my colleagues to give the President the
flexibility he needs to protect the workers' rights at the same time.
Support the underlying bill and vote no on the Waxman-Frost amendment.
Mr. RODRIGUEZ. Mr. Chairman, I rise today in strong support of
workers' rights. As we meet today to engage in the important work of
enacting legislation which would guide the creation of the new
Department of Homeland Security (DHS), H.R. 5005, it is disconcerting
that we are also put in a position to introduce an amendment to protect
the rights of workers who will engage in the important work of
protecting our country from terrorists attacks. The Waxman-Frost
amendment will ensure that workers are provided full civil service
protections as they engage in the important work of securing our
homeland.
As we move to reorganize and consolidate our efforts to ensure a
strong and efficient DHS it is imperative that we not place in jeopardy
the rights of its workers. H.R. 5005, as amended within the Select
Committee on Homeland Security, would allow the DHS Secretary to have
complete control over pay and classification systems, including whether
or not to provide DHS workers with an annual Congressionally-passed pay
raise, whether to remove workers from the locality pay system
established in 1990, and how to establish the initial pay rate for a
particular occupation.
Essentially, we would be asking federal workers, already
involuntarily transferred to a new agency, to be completely left at the
mercy of an agency head who would not be bound by the pay system under
which the employees had previously worked. This places in danger DHS's
ability to retain its workforce and to provide for the adequate worker
protections available to all civil service employees. This is wrong and
dangerous especially given the great need for DHS to be successful. If
in the purpose of DHS is to ensure the physical security of America,
then included in its charge should also be the economic security of its
workforce. Stripping the workforce of their civil service protections,
would put in danger the success of this department and ultimately the
security of our country.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from California (Mr. Waxman).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. WAXMAN. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from California
(Mr. Waxman) will be postponed.
The CHAIRMAN pro tempore. It is now in order to consider amendment
No. 21 printed in House Report 107-615.

Amendment No. 21 En Bloc Offered by Mr. Armey

Mr. ARMEY. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 21 offered by Mr. Armey:
Page 13, line 20, strike ``The Secretary'' and insert
``With respect to homeland security, the Secretary''.
Page 22, line 13, strike ``Under the direction of the
Secretary, developing'' and insert ``Developing''.
Page 24, lines 10 to 11, strike ``and to other areas of
responsibility described in section 101(b)''.
Page 25, lines 9 to 10, strike ``and to other areas of
responsibility described in section 101(b)''.
Page 24, line 12, strike ``concerning infrastructure or
other vulnerabilities'' and insert ``concerning
infrastructure vulnerabilities or other vulnerabilities''.
Page 25, lines 11 to 12, strike ``concerning infrastructure
or other vulnerabilities'' and insert ``concerning
infrastructure vulnerabilities or other vulnerabilities''.
Page 28, line 14, strike ``(1) and (2)'' and insert ``(2)
and (3)''.
Page 19, line 16, strike ``Director of Homeland Security''
and insert ``President''.
Page 43, line 11, strike ``the Congress'' and insert ``the
appropriate congressional committees''.
Page 142, line 2, insert ``including'' before
``interventions''.
Page 142, line 4, insert a comma after ``asters''.
In section 811(f)(1)--
(1) insert ``or'' before ``Harbor''; and
(2) strike ``or Oil Spill Liability Trust Fund''.
In section 205(1), strike ``information'' the first place
it appears.
In section 205(3) insert ``and regulatory'' after
``legislative''.
In section 302, strike paragraph (1) and redesignate the
subsequent paragraphs in order as paragraphs (1) and (2).
In section 305(d), strike ``section 302(2)(D)'' and insert
``302(1)(D)''.
Strike section 906, and redesignate sections 907 through
913 as sections 906 through 912, respectively.
In section 301--
(1) in paragraph (8), strike ``homeland security,
including'' and all that follows and insert ``homeland
security; and'';
(2) strike paragraph (9); and
(3) redesignate paragraph (10) as paragraph (9).
In title III, add at the end the following section:

SEC. 309. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT
INNOVATIVE SOLUTIONS TO ENHANCE HOMELAND
SECURITY.

(a) Establishment of Program.--The Secretary, acting
through the Under Secretary for Science and Technology, shall
establish and promote a program to encourage technological
innovation in facilitating the mission of the Department (as
described in section 101).
(b) Elements of Program.--The program described in
subsection (a) shall include the following components:
(1) The establishment of a centralized Federal
clearinghouse for information relating to technologies that
would further the mission of the Department for
dissemination, as appropriate, to Federal, State, and local
government and private sector entities for additional review,
purchase, or use.
(2) The issuance of announcements seeking unique and
innovative technologies to advance the mission of the
Department.
(3) The establishment of a technical assistance team to
assist in screening, as appropriate, proposals submitted to
the Secretary (except as provided in subsection (c)(2)) to
assess the feasibility, scientific and technical merits, and
estimated cost of such proposals, as appropriate.
(4) The provision of guidance, recommendations, and
technical assistance, as appropriate, to assist Federal,
State, and local government and private sector efforts to
evaluate and implement the use of technologies described in
paragraph (1) or (2).
(5) The provision of information for persons seeking
guidance on how to pursue proposals to develop or deploy
technologies that would enhance homeland security, including
information relating to Federal funding, regulation, or
acquisition.
(c) Miscellaneous Provisions.--
(1) In general.--Nothing in this section shall be construed
as authorizing the Secretary or the technical assistance team
established under subsection (b)(3) to set standards for
technology to be used by the Department, any other executive
agency, any State or local government entity, or any private
sector entity.
(2) Certain proposals.--The technical assistance team
established under subsection (b)(3) shall not consider or
evaluate proposals submitted in response to a solicitation
for offers for a pending procurement or for a specific agency
requirement.
(3) Coordination.--In carrying out this section, the
Secretary shall coordinate with the Technical Support Working
Group (organized under the April 1982 National Security
Decision Directive Numbered 30).
In title II, at the end of subtitle A add the following:

SEC. . ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.

In carrying out the responsibilities under section 201, the
Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to State and local government
entities, and upon request to private entitites that own or
operate critical information systems--
(A) analysis and warnings related to threats to, and
vulnerabilities of, critical information systems; and
(B) in coordination with the Under Secretary for Emergency
Preparedness and Response, crisis management support in
response to threats to, or attacks on, critical information
systems; and
(2) as appropriate, provide technical assistance, upon
request, to the private sector and other government entities,
in coordination with the Under Secretary for Emergency
Preparedness and Response, with respect to emergency recovery
plans to respond to major failures of critical information
systems.
At the end of title II add the following:

SEC. . NET GUARD.

The Under Secretary for Information Analysis and
Infrastructure Protection may establish a national technology
guard, to be known as ``NET Guard'', comprised of local teams
of volunteers with expertise in relevant areas of science and
technology, to assist local communities to respond and
recover from attacks on information systems and
communications networks.
Strike section 814.

[[Page H5818]]

In section 761--
(1) in the proposed section 9701(b)(3)(D) strike ``title''
and insert ``part''; and
(2) in the proposed section 9701(c), strike ``title'' and
insert ``part''.
At the end of title VII, insert the following new section:

SEC. 774. SENSE OF CONGRESS REAFFIRMING THE CONTINUED
IMPORTANCE AND APPLICABILITY OF THE POSSE
COMITATUS ACT.

(a) Findings.--The Congress finds the following:
(1) Section 1385 of title 18, United States Code (commonly
known as the ``Posse Comitatus Act''), prohibits the use of
the Armed Forces as a posse comitatus to execute the laws
except in cases and under circumstances expressly authorized
by the Constitution or Act of Congress.
(2) Enacted in 1878, the Posse Comitatus Act was expressly
intended to prevent United States Marshals, on their own
initiative, from calling on the Army for assistance in
enforcing Federal law.
(3) The Posse Comitatus Act has served the Nation well in
limiting the use of the Armed Forces to enforce the law.
(4) Nevertheless, by its express terms, the Posse Comitatus
Act is not a complete barrier to the use of the Armed Forces
for a range of domestic purposes, including law enforcement
functions, when the use of the Armed Forces is authorized by
Act of Congress or the President determines that the use of
the Armed Forces is required to fulfill the President's
obligations under the Constitution to respond promptly in
time of war, insurrection, or other serious emergency.
(5) Existing laws, including chapter 15 of title 10, United
States Code (commonly known as the ``Insurrection Act''), and
the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.), grant the President
broad powers that may be invoked in the event of domestic
emergencies, including an attack against the Nation using
weapons of mass destruction, and these laws specifically
authorize the President to use the Armed Forces to help
restore public order.
(b) Sense of Congress.--The Congress reaffirms the
continued importance of section 1385 of title 18, United
States Code, and it is the sense of the Congress that nothing
in this Act should be construed to alter the applicability of
such section to any use of the Armed Forces as a posse
comitatus to execute the laws.
Amend the heading for section 766 to read as follows:

SEC. 766. REGULATORY AUTHORITY AND PREEMPTION.

In section 766--
(1) before the first sentence insert the following: ``(a)
``Regulatory Authority.--''; and
(2) at the end of the section add the following:
(b) Preemption of State or Local Law.--Except as otherwise
provided in this Act, this Act preempts no State or local
law, except that any authority to preempt State or local law
vested in any Federal agency or official transferred to the
Department pursuant to this Act shall be transferred to the
Department effective on the date of the transfer to the
Department of that Federal agency or official.
Page 31, after line 5, insert the following:

SEC. 207. INFORMATION SECURITY.

In carrying out the responsibilities under section 201, the
Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to State and local government
entities, and, upon request, to private entities that own or
operate critical information systems--
(A) analysis and warnings related to threats to, and
vulnerabilities of, critical information systems; and
(B) in coordination with the Under Secretary for Emergency
Preparedness and Response, crisis management support in
response to threats to, or attacks on, critical information
systems; and
(2) as appropriate, provide technical assistance, upon
request, to the private sector and with other government
entities, in coordination with the Under Secretary for
Emergency Preparedness and Response, with respect to
emergency recovery plans to respond to major failures of
critical information systems.
At the end of the bill add the following new title:

TITLE XI--INFORMATION SECURITY

SEC. 1101. INFORMATION SECURITY.

(a) Short Title.--The amendments made by this title may be
cited as the ``Federal Information Security Management Act of
2002''.
(b) Information Security.--
(1) In general.--Subchapter II of chapter 35 of title 44,
United States Code, is amended to read as follows:

``SUBCHAPTER II--INFORMATION SECURITY

``Sec. 3531. Purposes

``The purposes of this subchapter are to--
``(1) provide a comprehensive framework for ensuring the
effectiveness of information security controls over
information resources that support Federal operations and
assets;
``(2) recognize the highly networked nature of the current
Federal computing environment and provide effective
governmentwide management and oversight of the related
information security risks, including coordination of
information security efforts throughout the civilian,
national security, and law enforcement communities;
``(3) provide for development and maintenance of minimum
controls required to protect Federal information and
information systems;
``(4) provide a mechanism for improved oversight of Federal
agency information security programs;
``(5) acknowledge that commercially developed information
security products offer advanced, dynamic, robust, and
effective information security solutions, reflecting market
solutions for the protection of critical information
infrastructures important to the national defense and
economic security of the nation that are designed, built, and
operated by the private sector; and
``(6) recognize that the selection of specific technical
hardware and software information security solutions should
be left to individual agencies from among commercially
developed products.''.

``Sec. 3532. Definitions

``(a) In General.--Except as provided under subsection (b),
the definitions under section 3502 shall apply to this
subchapter.
``(b) Additional Definitions.--As used in this subchapter--
``(1) the term `information security' means protecting
information and information systems from unauthorized access,
use, disclosure, disruption, modification, or destruction in
order to provide--
``(A) integrity, which means guarding against improper
information modification or destruction, and includes
ensuring information nonrepudiation and authenticity;
``(B) confidentiality, which means preserving authorized
restrictions on access and disclosure, including means for
protecting personal privacy and proprietary information;
``(C) availability, which means ensuring timely and
reliable access to and use of information; and
``(D) authentication, which means utilizing digital
credentials to assure the identity of users and validate
their access;
``(2) the term `national security system' means any
information system (including any telecommunications system)
used or operated by an agency or by a contractor of an
agency, or other organization on behalf of an agency, the
function, operation, or use of which--
``(A) involves intelligence activities;
``(B) involves cryptologic activities related to national
security;
``(C) involves command and control of military forces;
``(D) involves equipment that is an integral part of a
weapon or weapons system; or
``(E) is critical to the direct fulfillment of military or
intelligence missions provided that this definition does not
apply to a system that is used for routine administrative and
business applications (including payroll, finance, logistics,
and personnel management applications);
``(3) the term `information technology' has the meaning
given that term in section 5002 of the Clinger-Cohen Act of
1996 (40 U.S.C. 1401); and
``(4) the term `information system' means any equipment or
interconnected system or subsystems of equipment that is used
in the automatic acquisition, storage, manipulation,
management, movement, control, display, switching,
interchange, transmission, or reception of data or
information, and includes--
``(A) computers and computer networks;
``(B) ancillary equipment;
``(C) software, firmware, and related procedures;
``(D) services, including support services; and
``(E) related resources.''.

``Sec. 3533. Authority and functions of the Director

``(a) The Director shall oversee agency information
security policies and practices, by--
``(1) promulgating information security standards under
section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441);
``(2) overseeing the implementation of policies,
principles, standards, and guidelines on information
security;
``(3) requiring agencies, consistent with the standards
promulgated under such section 5131 and the requirements of
this subchapter, to identify and provide information security
protections commensurate with the risk and magnitude of the
harm resulting from the unauthorized access, use, disclosure,
disruption, modification, or destruction of--
``(A) information collected or maintained by or on behalf
of an agency; or
``(B) information systems used or operated by an agency or
by a contractor of an agency or other organization on behalf
of an agency;
``(4) coordinating the development of standards and
guidelines under section 20 of the National Institute of
Standards and Technology Act (15 U.S.C. 278g-3) with agencies
and offices operating or exercising control of national
security systems (including the National Security Agency) to
assure, to the maximum extent feasible, that such standards
and guidelines are complementary with standards and
guidelines developed for national security systems;
``(5) overseeing agency compliance with the requirements of
this subchapter, including through any authorized action
under section 5113(b)(5) of the Clinger-Cohen Act of 1996 (40
U.S.C. 1413(b)(5)) to enforce accountability for compliance
with such requirements;

[[Page H5819]]

``(6) reviewing at least annually, and approving or
disapproving, agency information security programs required
under section 3534(b);
``(7) coordinating information security policies and
procedures with related information resources management
policies and procedures; and
``(8) reporting to Congress no later than March 1 of each
year on agency compliance with the requirements of this
subchapter, including--
``(A) a summary of the findings of evaluations required by
section 3535;
``(B) significant deficiencies in agency information
security practices;
``(C) planned remedial action to address such deficiencies;
and
``(D) a summary of, and the views of the Director on, the
report prepared by the National Institute of Standards and
Technology under section 20(e)(7) of the National Institute
of Standards and Technology Act (15 U.S.C. 278g-3).''.
``(b) Except for the authorities described in paragraphs
(4) and (7) of subsection (a), the authorities of the
Director under this section shall not apply to national
security systems.

``Sec. 3534. Federal agency responsibilities

``(a) The head of each agency shall--
``(1) be responsible for--
``(A) providing information security protections
commensurate with the risk and magnitude of the harm
resulting from unauthorized access, use, disclosure,
disruption, modification, or destruction of--
``(i) information collected or maintained by or on behalf
of the agency; and
``(ii) information systems used or operated by an agency or
by a contractor of an agency or other organization on behalf
of an agency;
``(B) complying with the requirements of this subchapter
and related policies, procedures, standards, and guidelines,
including--
``(i) information security standards promulgated by the
Director under section 5131 of the Clinger-Cohen Act of 1996
(40 U.S.C. 1441); and
``(ii) information security standards and guidelines for
national security systems issued in accordance with law and
as directed by the President; and
``(C) ensuring that information security management
processes are integrated with agency strategic and
operational planning processes;
``(2) ensure that senior agency officials provide
information security for the information and information
systems that support the operations and assets under their
control, including through--
``(A) assessing the risk and magnitude of the harm that
could result from the unauthorized access, use, disclosure,
disruption, modification, or destruction of such information
or information systems;
``(B) determining the levels of information security
appropriate to protect such information and information
systems in accordance with standards promulgated under
section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441) for information security classifications and related
requirements;
``(C) implementing policies and procedures to cost-
effectively reduce risks to an acceptable level; and
``(D) periodically testing and evaluating information
security controls and techniques to ensure that they are
effectively implemented;
``(3) delegate to the agency Chief Information Officer
established under section 3506 (or comparable official in an
agency not covered by such section) the authority to ensure
compliance with the requirements imposed on the agency under
this subchapter, including--
``(A) designating a senior agency information security
officer who shall--
``(i) carry out the Chief Information Officer's
responsibilities under this section;
``(ii) possess professional qualifications, including
training and experience, required to administer the functions
described under this section;
``(iii) have information security duties as that official's
primary duty; and
``(iv) head an office with the mission and resources to
assist in ensuring agency compliance with this section;
``(B) developing and maintaining an agencywide information
security program as required by subsection (b);
``(C) developing and maintaining information security
policies, procedures, and control techniques to address all
applicable requirements, including those issued under section
3533 of this title, and section 5131 of the Clinger-Cohen Act
of 1996 (40 U.S.C. 1441);
``(D) training and overseeing personnel with significant
responsibilities for information security with respect to
such responsibilities; and
``(E) assisting senior agency officials concerning their
responsibilities under subparagraph (2);
``(4) ensure that the agency has trained personnel
sufficient to assist the agency in complying with the
requirements of this subchapter and related policies,
procedures, standards, and guidelines; and
``(5) ensure that the agency Chief Information Officer, in
coordination with other senior agency officials, reports
annually to the agency head on the effectiveness of the
agency information security program, including progress of
remedial actions.
``(b) Each agency shall develop, document, and implement an
agencywide information security program, approved by the
Director under section 3533(a)(5), to provide information
security for the information and information systems that
support the operations and assets of the agency, including
those provided or managed by another agency, contractor, or
other source, that includes--
``(1) periodic assessments of the risk and magnitude of the
harm that could result from the unauthorized access, use,
disclosure, disruption, modification, or destruction of
information and information systems that support the
operations and assets of the agency;
``(2) policies and procedures that--
``(A) are based on the risk assessments required by
subparagraph (1);
``(B) cost-effectively reduce information security risks to
an acceptable level;
``(C) ensure that information security is addressed
throughout the life cycle of each agency information system;
and
``(D) ensure compliance with--
``(i) the requirements of this subchapter;
``(ii) policies and procedures as may be prescribed by the
Director, and information security standards promulgated
under section 5131 of the Clinger-Cohen Act of 1996 (40
U.S.C. 1441);
``(iii) minimally acceptable system configuration
requirements, as determined by the agency; and
``(iv) any other applicable requirements, including
standards and guidelines for national security systems issued
in accordance with law and as directed by the President;
``(3) subordinate plans for providing adequate information
security for networks, facilities, and systems or groups of
information systems, as appropriate;
``(4) security awareness training to inform personnel,
including contractors and other users of information systems
that support the operations and assets of the agency, of--
``(A) information security risks associated with their
activities; and
``(B) their responsibilities in complying with agency
policies and procedures designed to reduce these risks;
``(5) periodic testing and evaluation of the effectiveness
of information security policies, procedures, and practices,
to be performed with a frequency depending on risk, but no
less than annually, of which such testing--
``(A) shall include testing of management, operational, and
technical controls of every information system identified in
the inventory required under section 3505(c); and
``(B) may include testing relied on in a evaluation under
section 3535;
``(6) a process for planning, implementing, evaluating, and
documenting remedial action to address any deficiencies in
the information security policies, procedures, and practices
of the agency;
``(7) procedures for detecting, reporting, and responding
to security incidents, including--
``(A) mitigating risks associated with such incidents
before substantial damage is done; and
``(B) notifying and consulting with, as appropriate--
``(i) law enforcement agencies and relevant Offices of
Inspector General;
``(ii) an office designated by the President for any
incident involving a national security system; and
``(iii) any other agency or office, in accordance with law
or as directed by the President; and
``(8) plans and procedures to ensure continuity of
operations for information systems that support the
operations and assets of the agency.
``(c) Each agency shall--
``(1) report annually to the Director, the Committees on
Government Reform and Science of the House of
Representatives, the Committees on Governmental Affairs and
Commerce, Science, and Transportation of the Senate, the
appropriate authorization and appropriations committees of
Congress, and the Comptroller General on the adequacy and
effectiveness of information security policies, procedures,
and practices, and compliance with the requirements of this
subchapter, including compliance with each requirement of
subsection (b);
``(2) address the adequacy and effectiveness of information
security policies, procedures, and practices in plans and
reports relating to--
``(A) annual agency budgets;
``(B) information resources management under subchapter 1
of this chapter;
``(C) information technology management under the Clinger-
Cohen Act of 1996 (40 U.S.C. 1401 et seq.);
``(D) program performance under sections 1105 and 1115
through 1119 of title 31, and sections 2801 and 2805 of title
39;
``(E) financial management under chapter 9 of title 31, and
the Chief Financial Officers Act of 1990 (31 U.S.C. 501 note;
Public Law 101-576) (and the amendments made by that Act);
``(F) financial management systems under the Federal
Financial Management Improvement Act (31 U.S.C. 3512 note);
and
``(G) internal accounting and administrative controls under
section 3512 of title 31, United States Code, (known as the
`Federal Managers Financial Integrity Act'); and
``(3) report any significant deficiency in a policy,
procedure, or practice identified under paragraph (1) or
(2)--
``(A) as a material weakness in reporting under section
3512 of title 31, United States Code; and
``(B) if relating to financial management systems, as an
instance of a lack of substantial compliance under the
Federal Financial

[[Page H5820]]

Management Improvement Act (31 U.S.C. 3512 note).
``(d)(1) In addition to the requirements of subsection (c),
each agency, in consultation with the Director, shall include
as part of the performance plan required under section 1115
of title 31 a description of--
``(A) the time periods, and
``(B) the resources, including budget, staffing, and
training,

that are necessary to implement the program required under
subsection (b).
``(2) The description under paragraph (1) shall be based on
the risk assessments required under subsection (b)(2)(1).
``(e) Each agency shall provide the public with timely
notice and opportunities for comment on proposed information
security policies and procedures to the extent that such
policies and procedures affect communication with the public.

``Sec. 3535. Annual independent evaluation

``(a)(1) Each year each agency shall have performed an
independent evaluation of the information security program
and practices of that agency to determine the effectiveness
of such program and practices.
``(2) Each evaluation by an agency under this section shall
include--
``(A) testing of the effectiveness of information security
policies, procedures, and practices of a representative
subset of the agency's information systems;
``(B) an assessment (made on the basis of the results of
the testing) of compliance with--
``(i) the requirements of this subchapter; and
``(ii) related information security policies, procedures,
standards, and guidelines; and
``(C) separate presentations, as appropriate, regarding
information security relating to national security systems.
``(b) Subject to subsection (c)--
``(1) for each agency with an Inspector General appointed
under the Inspector General Act of 1978, the annual
evaluation required by this section shall be performed by the
Inspector General or by an independent external auditor, as
determined by the Inspector General of the agency; and
``(2) for each agency to which paragraph (1) does not
apply, the head of the agency shall engage an independent
external auditor to perform the evaluation.
``(c) For each agency operating or exercising control of a
national security system, that portion of the evaluation
required by this section directly relating to a national
security system shall be performed--
``(1) only by an entity designated by the agency head; and
``(2) in such a manner as to ensure appropriate protection
for information associated with any information security
vulnerability in such system commensurate with the risk and
in accordance with all applicable laws.
``(d) The evaluation required by this section--
``(1) shall be performed in accordance with generally
accepted government auditing standards; and
``(2) may be based in whole or in part on an audit,
evaluation, or report relating to programs or practices of
the applicable agency.
``(e) Each year, not later than such date established by
the Director, the head of each agency shall submit to the
Director the results of the evaluation required under this
section.
``(f) Agencies and evaluators shall take appropriate steps
to ensure the protection of information which, if disclosed,
may adversely affect information security. Such protections
shall be commensurate with the risk and comply with all
applicable laws and regulations.
``(g)(1) The Director shall summarize the results of the
evaluations conducted under this section in the report to
Congress required under section 3533(a)(8).
``(2) The Director's report to Congress under this
subsection shall summarize information regarding information
security relating to national security systems in such a
manner as to ensure appropriate protection for information
associated with any information security vulnerability in
such system commensurate with the risk and in accordance with
all applicable laws.
``(3) Evaluations and any other descriptions of information
systems under the authority and control of the Director of
Central Intelligence or of National Foreign Intelligence
Programs systems under the authority and control of the
Secretary of Defense shall be made available to Congress only
through the appropriate oversight committees of Congress, in
accordance with applicable laws.
``(h) The Comptroller General shall periodically evaluate
and report to Congress on--
``(1) the adequacy and effectiveness of agency information
security policies and practices; and
``(2) implementation of the requirements of this
subchapter.

``Sec. 3536. National security systems

``The head of each agency operating or exercising control
of a national security system shall be responsible for
ensuring that the agency--
``(1) provides information security protections
commensurate with the risk and magnitude of the harm
resulting from the unauthorized access, use, disclosure,
disruption, modification, or destruction of the information
contained in such system;
``(2) implements information security policies and
practices as required by standards and guidelines for
national security systems, issued in accordance with law and
as directed by the President; and
``(3) complies with the requirements of this subchapter.

``Sec. 3537. Authorization of appropriations

``There are authorized to be appropriated to carry out the
provisions of this subchapter such sums as may be necessary
for each of fiscal years 2003 through 2007.

``Sec. 3538. Effect on existing law

``Nothing in this subchapter, section 5131 of the Clinger-
Cohen Act of 1996 (40 U.S.C. 1441), or section 20 of the
National Standards and Technology Act (15 U.S.C. 278g-3) may
be construed as affecting the authority of the President, the
Office of Management and Budget or the Director thereof, the
National Institute of Standards and Technology, or the head
of any agency, with respect to the authorized use or
disclosure of information, including with regard to the
protection of personal privacy under section 552a of title 5,
the disclosure of information under section 552 of title 5,
the management and disposition of records under chapters 29,
31, or 33 of title 44, the management of information
resources under subchapter I of chapter 35 of this title, or
the disclosure of information to the Congress or the
Comptroller General of the United States.''.
(2) Clerical amendment.--The items in the table of sections
at the beginning of such chapter 35 under the heading
``SUBCHAPTER II'' are amended to read as follows:
``3531. Purposes.
``3532. Definitions.
``3533. Authority and functions of the Director.
``3534. Federal agency responsibilities.
``3535. Annual independent evaluation.
``3536. National security systems.
``3537. Authorization of appropriations.
``3538. Effect on existing law.''.
(c) Information Security Responsibilities of Certain
Agencies.--
(1) National security responsibilities.--(A) Nothing in
this Act (including any amendment made by this Act) shall
supersede any authority of the Secretary of Defense, the
Director of Central Intelligence, or other agency head, as
authorized by law and as directed by the President, with
regard to the operation, control, or management of national
security systems, as defined by section 3532(3) of title 44,
United States Code.
(B) Section 2224 of title 10, United States Code, is
amended--
(i) in subsection 2224(b), by striking ``(b) Objectives and
Minimum Requirements.--(1)'' and inserting ``(b) Objectives
of the Program.--'';
(ii) in subsection 2224(b), by striking ``(2) the program
shall at a minimum meet the requirements of section 3534 and
3535 of title 44, United States Code.''; and
(iii) in subsection 2224(c), by inserting
``, including through compliance with subtitle II of chapter
35 of title 44'' after ``infrastructure''.
(2) Atomic energy act of 1954.--Nothing in this Act shall
supersede any requirement made by or under the Atomic Energy
Act of 1954 (42 U.S.C. 2011 et seq.). Restricted Data or
Formerly Restricted Data shall be handled, protected,
classified, downgraded, and declassified in conformity with
the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

SEC. 1102. MANAGEMENT OF INFORMATION TECHNOLOGY.

Section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441) is amended to read as follows:

``SEC. 5131. RESPONSIBILITIES FOR FEDERAL INFORMATION SYSTEMS
STANDARDS.

``(a)(1)(A) Except as provided under paragraph (2), the
Director of the Office of Management and Budget shall, on the
basis of proposed standards developed by the National
Institute of Standards and Technology pursuant to paragraphs
(2) and (3) of section 20(a) of the National Institute of
Standards and Technology Act (15 U.S.C. 278g-3(a)) and in
consultation with the Secretary of Homeland Security,
promulgate information security standards pertaining to
Federal information systems.
``(B) Standards promulgated under subparagraph (A) shall
include--
``(i) standards that provide minimum information security
requirements as determined under section 20(b) of the
National Institute of Standards and Technology Act (15 U.S.C.
278g-3(b)); and
``(ii) such standards that are otherwise necessary to
improve the efficiency of operation or security of Federal
information systems.
``(C) Information security standards described under
subparagraph (B) shall be compulsory and binding.
``(2) Standards and guidelines for national security
systems, as defined under section 3532(3) of title 44, United
States Code, shall be developed, promulgated, enforced, and
overseen as otherwise authorized by law and as directed by
the President.
``(b) The head of an agency may employ standards for the
cost-effective information security for all operations and
assets within or under the supervision of that agency that
are more stringent than the standards promulgated by the
Director under this section, if such standards--
``(1) contain, at a minimum, the provisions of those
applicable standards made compulsory and binding by the
Director; and
``(2) are otherwise consistent with policies and guidelines
issued under section 3533 of title 44, United States Code.

[[Page H5821]]

``(c)(1) The decision regarding the promulgation of any
standard by the Director under subsection (a) shall occur not
later than 6 months after the submission of the proposed
standard to the Director by the National Institute of
Standards and Technology, as provided under section 20 of the
National Institute of Standards and Technology Act (15 U.S.C.
278g-3).
``(2) A decision by the Director to significantly modify,
or not promulgate, a proposed standard submitted to the
Director by the National Institute of Standards and
Technology, as provided under section 20 of the National
Institute of Standards and Technology Act (15 U.S.C. 278g-3),
shall be made after the public is given an opportunity to
comment on the Director's proposed decision.''.
``(d) In this section, the term `information security' has
the meaning given that term in section 3532(b)(1) of title
44, United States Code.''.

SEC. 1103. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.

Section 20 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-3), is amended by striking the
text and inserting the following:
``(a) The Institute shall--
``(1) have the mission of developing standards, guidelines,
and associated methods and techniques for information
systems;
``(2) develop standards and guidelines, including minimum
requirements, for information systems used or operated by an
agency or by a contractor of an agency or other organization
on behalf of an agency, other than national security systems
(as defined in section 3532(b)(2) of title 44, United States
Code);
``(3) develop standards and guidelines, including minimum
requirements, for providing adequate information security for
all agency operations and assets, but such standards and
guidelines shall not apply to national security systems; and
``(4) carry out the responsibilities described in paragraph
(3) through the Computer Security Division.
``(b) The standards and guidelines required by subsection
(a) shall include, at a minimum--
``(1)(A) standards to be used by all agencies to categorize
all information and information systems collected or
maintained by or on behalf of each agency based on the
objectives of providing appropriate levels of information
security according to a range of risk levels;
``(B) guidelines recommending the types of information and
information systems to be included in each such category; and
``(C) minimum information security requirements for
information and information systems in each such category;
``(2) a definition of and guidelines concerning detection
and handling of information security incidents; and
``(3) guidelines developed in coordination with the
National Security Agency for identifying an information
system as a national security system consistent with
applicable requirements for national security systems, issued
in accordance with law and as directed by the President.
``(c) In developing standards and guidelines required by
subsections (a) and (b), the Institute shall--
``(1) consult with other agencies and offices (including,
but not limited to, the Director of the Office of Management
and Budget, the Departments of Defense and Energy, the
National Security Agency, the General Accounting Office, and
the Secretary of Homeland Security) to assure--
``(A) use of appropriate information security policies,
procedures, and techniques, in order to improve information
security and avoid unnecessary and costly duplication of
effort; and
``(B) that such standards and guidelines are complementary
with standards and guidelines employed for the protection of
national security systems and information contained in such
systems;
``(2) provide the public with an opportunity to comment on
proposed standards and guidelines;
``(3) submit to the Director of the Office of Management
and Budget for promulgation under section 5131 of the
Clinger-Cohen Act of 1996 (40 U.S.C. 1441)--
``(A) standards, as required under subsection (b)(1)(A), no
later than 12 months after the date of the enactment of this
section; and
``(B) minimum information security requirements for each
category, as required under subsection (b)(1)(C), no later
than 36 months after the date of the enactment of this
section;
``(4) issue guidelines as required under subsection
(b)(1)(B), no later than 18 months after the date of the
enactment of this Act;
``(5) ensure that such standards and guidelines do not
require specific technological solutions or products,
including any specific hardware or software security
solutions;
``(6) ensure that such standards and guidelines provide for
sufficient flexibility to permit alternative solutions to
provide equivalent levels of protection for identified
information security risks; and
``(7) use flexible, performance-based standards and
guidelines that, to the greatest extent possible, permit the
use of off-the-shelf commercially developed information
security products.''
``(d) The Institute shall--
``(1) submit standards developed pursuant to subsection
(a), along with recommendations as to the extent to which
these should be made compulsory and binding, to the Director
of the Office of Management and Budget for promulgation under
section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441);
``(2) provide assistance to agencies regarding--
``(A) compliance with the standards and guidelines
developed under subsection (a);
``(B) detecting and handling information security
incidents; and
``(C) information security policies, procedures, and
practices;
``(3) conduct research, as needed, to determine the nature
and extent of information security vulnerabilities and
techniques for providing cost-effective information security;
``(4) develop and periodically revise performance
indicators and measures for agency information security
policies and practices;
``(5) evaluate private sector information security policies
and practices and commercially available information
technologies to assess potential application by agencies to
strengthen information security;
``(6) evaluate security policies and practices developed
for national security systems to assess potential application
by agencies to strengthen information security;
``(7) periodically assess the effectiveness of standards
and guidelines developed under this section and undertake
revisions as appropriate;
``(8) solicit and consider the recommendations of the
Information Security and Privacy Advisory Board, established
by section 21, regarding standards and guidelines developed
under subsection (a) and submit such recommendations to the
Director of the Office of Management and Budget with such
standards submitted to the Director; and
``(9) prepare an annual public report on activities
undertaken in the previous year, and planned for the coming
year, to carry out responsibilities under this section.
``(e) As used in this section--
``(1) the term `agency' has the same meaning as provided in
section 3502(1) of title 44, United States Code;
``(2) the term `information security' has the same meaning
as provided in section 3532(1) of such title;
``(3) the term `information system' has the same meaning as
provided in section 3502(8) of such title;
``(4) the term `information technology' has the same
meaning as provided in section 5002 of the Clinger-Cohen Act
of 1996 (40 U.S.C. 1401); and
``(5) the term `national security system' has the same
meaning as provided in section 3532(b)(2) of such title.''.

SEC. 1104. INFORMATION SECURITY AND PRIVACY ADVISORY BOARD.

Section 21 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-4), is amended--
(1) in subsection (a), by striking ``Computer System
Security and Privacy Advisory Board'' and inserting
``Information Security and Privacy Advisory Board'';
(2) in subsection (a)(1), by striking ``computer or
telecommunications'' and inserting ``information
technology'';
(3) in subsection (a)(2)--
(A) by striking ``computer or telecommunications
technology'' and inserting ``information technology''; and
(B) by striking ``computer or telecommunications
equipment'' and inserting ``information technology'';
(4) in subsection (a)(3)--
(A) by striking ``computer systems'' and inserting
``information system''; and
(B) by striking ``computer systems security'' and inserting
``information security'';
(5) in subsection (b)(1) by striking ``computer systems
security'' and inserting ``information security'';
(6) in subsection (b) by striking paragraph (2) and
inserting the following:
``(2) to advise the Institute and the Director of the
Office of Management and Budget on information security and
privacy issues pertaining to Federal Government information
systems, including through review of proposed standards and
guidelines developed under section 20; and'';
(7) in subsection (b)(3) by inserting ``annually'' after
``report'';
(8) by inserting after subsection (e) the following new
subsection:
``(f) The Board shall hold meetings at such locations and
at such time and place as determined by a majority of the
Board.'';
(9) by redesignating subsections (f) and (g) as subsections
(g) and (h), respectively; and
(10) by striking subsection (h), as redesignated by
paragraph (9), and inserting the following:
``(h) As used in this section, the terms ``information
system'' and ``information technology'' have the meanings
given in section 20.''.

SEC. 1105. TECHNICAL AND CONFORMING AMENDMENTS.

(a) Computer Security Act.--Sections 5 and 6 of the
Computer Security Act of 1987 (40 U.S.C. 1441 note) are
repealed.
(b) Floyd D. Spence National Defense Authorization Act for
Fiscal Year 2001.--The Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (Public Law 106-398)
is amended by striking subtitle G of title X.
(c) Paperwork Reduction Act.--(1) Section 3504(g) of title
44, United States Code, is amended--

[[Page H5822]]

(A) by adding ``and'' at the end of paragraph (1);
(B) in paragraph (2)--
(i) by striking ``sections 5 and 6 of the Computer Security
Act of 1987 (40 U.S.C. 759 note)'' and inserting ``subchapter
II of this title''; and
(ii) by striking the semicolon and inserting a period; and
(C) by striking paragraph (3).
(2) Section 3505 of such title is amended by adding at the
end--
``(c)(1) The head of each agency shall develop and maintain
an inventory of the information systems (including national
security systems) operated by or under the control of such
agency;
``(2) The identification of information systems in an
inventory under this subsection shall include an
identification of the interfaces between each such system and
all other systems or networks, including those not operated
by or under the control of the agency;
``(3) Such inventory shall be--
``(A) updated at least annually;
``(B) made available to the Comptroller General; and
``(C) used to support information resources management,
including--
``(i) preparation and maintenance of the inventory of
information resources under section 3506(b)(4);
``(ii) information technology planning, budgeting,
acquisition, and management under section 3506(h), the
Clinger-Cohen Act of 1996, and related laws and guidance;
``(iii) monitoring, testing, and evaluation of information
security controls under subchapter II;
``(iv) preparation of the index of major information
systems required under section 552(g) of title 5, United
States Code; and
``(v) preparation of information system inventories
required for records management under chapters 21, 29, 31,
and 33.
``(4) The Director shall issue guidance for and oversee the
implementation of the requirements of this subsection.''.
(3) Section 3506(g) of such title is amended--
(A) by adding ``and'' at the end of paragraph (1);
(B) in paragraph (2)--
(i) by striking ``the Computer Security Act of 1987 (40
U.S.C. 759 note)'' and inserting ``subchapter II of this
title''; and
(ii) by striking the semicolon and inserting a period; and
(C) by striking paragraph (3).

SEC. 1106. CONSTRUCTION.

Nothing in this Act, or the amendments made by this Act,
affects the authority of the National Institute of Standards
and Technology or the Department of Commerce relating to the
development and promulgation of standards or guidelines under
paragraphs (1) and (2) of section 20(a) of the National
Institute of Standards and Technology Act (15 U.S.C. 278g-
3(a)).
In section 752(b)(1), strike ``and extensive''.
In section 752(b)(1), strike ``and'' and insert ``or''.
In section 752(b)(6), strike ``evaluation'' and insert
``Evaluation''.
At the end of section 752(b), insert:
(7) Anti-terrorism technology that would be effective in
facilitating the defense against acts of terrorism.
In section 753(d)(1), insert ``or other'' after
``liability''.
In section 753(d)(3), strike ``those products'' and insert
``anti-terrorism technology''.
In section 753(d)(3), strike ``product'' and insert ``anti-
terrorism technology''.
In section 754(a)(1), strike, ``to non-federal'' and insert
``to Federal and non-Federal''.
In section 754(a)(1), insert ``and certified by the
Secretary'' after ``section''.
In section 755(1), strike ``device, or technology designed,
developed, or modified'' and insert ``equipment, service
(including support services), device, or technology
(including information technology) designed, developed,
modified, or procured''.
Page 182, line 2, strike ``and'' and insert ``or''.
At the end of subtitle G of title VII of the bill, add the
following (and conform the table of contents of the bill
accordingly):

SEC. 774. AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION
ACT AMENDMENTS.

The Air Transportation Safety and System Stabilization Act
(49 U.S.C. 40101 note) is amended--
(1) in section 408 by striking the last sentence of
subsection (c); and
(2) in section 402 by striking paragraph (1) and inserting
the following:
``(1) Air carrier.--The term `air carrier' means a citizen
of the United States undertaking by any means, directly or
indirectly, to provide air transportation and includes
employees and agents (including persons engaged in the
business of providing air transportation security and their
affiliates) of such citizen. For purposes of the preceding
sentence, the term `agent', as applied to persons engaged in
the business of providing air transportation security, shall
only include persons that have contracted directly with the
Federal Aviation Administration on or after February 17,
2002, to provide such security, or are not debarred.''.
Page 12, line 5, strike ``and''.
Page 12, line 9, strike the period and insert ``; and''.
Page 12, after line 9, insert the following:
(G) monitor connections between illegal drug trafficking
and terrorism, coordinate efforts to sever such connections,
and otherwise contribute to efforts to interdict illegal drug
trafficking.
Page 195, line 16, after ``terrorism.'' insert: ``Such
official shall--
(1) ensure the adequacy of resources within the Department
for illicit drug interdiction; and
(2) serve as the United States Interdiction Coordinator for
the Director of National Drug Control Policy.''.
In section 307(b)(1)--
(1) strike ``and'' at the end of subparagraph (A);
(2) redesignate subparagraph (B) as subparagraph (C); and
(3) after subparagraph (A), insert the following new
subparagraph:
(B) ensure that the research funded is of high quality, as
determined through merit review processes developed under
section 301(10); and
In section 766 of the bill, insert ``sections 305(c) and
752(c) of'' after ``provided in''.
Add at the end of title V of the bill the following
section:

SEC. 506. SENSE OF CONGRESS REGARDING FUNDING OF TRAUMA
SYSTEMS.

It is the sense of the Congress that States should give
particular emphasis to developing and implementing the trauma
care and burn center care components of the State plans for
the provision of emergency medical services using funds
authorized through Public Law 107-188 for grants to improve
State, local, and hospital preparedness for and response to
bioterrorism and other public health emergencies.
The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentleman from Texas (Mr. Armey), and a Member opposed each will
control 20 minutes.
The Chair recognizes the gentleman from Texas (Mr. Armey).
Mr. ARMEY. Mr. Chairman, I yield myself 5 minutes.
Mr. Chairman, this is the manager's amendment for the bill. The
amendment includes the following: Technical amendments requested by the
Committee on Energy and Commerce;
Technical amendments requested by the Committee on Science;
Technical correction regarding Oil Spill Liability Trust Fund
requested by Committee on Transportation and Infrastructure;
Technical amendments related to DHS privacy officer;
Technical correction related to the biological agent registration
function requested by Committee on Agriculture;
Amendment to create a program to encourage and support innovative
solutions to enhance homeland security requested by the gentleman from
Virginia (Mr. Tom Davis) and the gentlewoman from California (Ms.
Harman);
Amendment to enforce non-Federal cybersecurity activities of Under
Secretary for Information Analysis and Infrastructure Protection
requested by the Committee on Science;
An amendment to establish the NET Guard program to promote voluntary
activities in support of information technology protection activities
requested by the Committee on Science;
An amendment striking Section 814 related to incidental transfers by
Director of OMB requested by Committee on Appropriations;
Technical correction to section 761 to insert proper cross
references;
Amendment inserting a sense of Congress provision reaffirming our
support for the Posse Comitatus Act;
An amendment clarifying that this act preempts no State or local law
except that any preemption authority vested in the agencies or
officials transferred to DHS shall be transferred to DHS;
Amendment inserting the text of Federal Information Security
Management Act of 2002 recommended by Committee on Government Reform at
the request of the gentleman from Virginia (Mr. Tom Davis). The
amendment will achieve several objectives vital to Federal information
security. Specifically it will, one, remove the Government Information
Security Reform Act's GISRA sunset clause and permanently require a
Federal agency-wide, risk-based approach to information security
management, with annual independent evaluations of agency and
information security practices; two, require that all agencies
implement a risk-based management approach to developing and
implementing information security measures for all information and
information systems; three, streamline and make technical corrections
to GISRA to clarify and simplify its requirements; four, strengthen the
role of NIST in the standards-setting process; and, five, require OMB
to implement

[[Page H5823]]

minimum and mandatory standards for Federal information and information
systems, and to consult with the Department of Homeland Security
regarding the promulgation of these standards.
The amendment to subtitle F of title VII relating to liability
management intended to clarify ability of liability protections
afforded by this title;
An amendment asserting a new section to reinstate liability cap for
aviation screening companies that are under contract with the
Transportation Security Administration are not debarred.
Mr. Chairman, let me be very clear about this amendment. It does not
reinstate a cap for any company that has been debarred; that is,
Argenbright.
Mr. Chairman, I must suggest that we will all be labored to death
with fulminations against Argenbright. So let me relate again that this
amendment does not reinstate a cap for any company that has been
debarred. That is, in particular, Argenbright. We would like that to be
considered a fact.
Mr. Chairman, amendments clarifying responsibilities of DHS and the
DHS counternarcotics officer with regard to narcotics interdiction
requested by the gentleman from Illinois (Mr. Hastert);
Amendments clarifying eligibility criteria for participation in
certain extramural research programs of the Department requested by the
gentleman from California (Mr. Dreier);
Technical amendment to section 766 regarding regulatory authority
requested by the Committee on Energy and Commerce;
Amendment adding a new section expressing the sense of Congress
regarding funding of trauma systems consisting of language originally
offered by the gentlewoman from California (Ms. Harman).
Mr. Chairman, you can see that the manager's amendment is a final,
full, comprehensive and respectful regard to our colleagues in their
standing committees of jurisdiction and as Members of this body who
wish consideration in this bill.
Mr. Chairman, I reserve the balance of my time.
Ms. PELOSI. Mr. Chairman, I rise in opposition to the en bloc
amendment and request the time in opposition.
The CHAIRMAN pro tempore. The gentlewoman from California is
recognized for 20 minutes.
Ms. PELOSI. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, throughout the course of all of this we have striven to
find our areas of agreement, and we have made some successes in that
regard. Every now and then something will come along that just really
takes your breath away. That happened last week when we had the markup
of the bill when the majority tried to give an indefinite extension for
the installation of detection devices for explosives in baggage and
when the distinguished leader put into his mark a total immunity, a
total immunity, for those who were guilty of wrongdoing and
jeopardizing the safety of the American people.
So here we now have today an en bloc amendment, the en bloc amendment
of the chairman, which we would all love to support. The chairman has
worked hard on this bill and he has some technicalities he would like
to correct, and we would like to support him. Except, once again, out
of the blue, comes an amendment that fatally flaws this en bloc
amendment. Let us dissect that.
This amendment is fatally flawed. That means it has a flaw that kills
it. It is fundamentally flawed. It is flawed in a way that undermines
any reason why anyone should vote for it.
The Armey amendment takes a bad provision, which gives immunity to
corporate wrongdoers, and makes it even worse. I am going to have more
to say on this subject as we go along.
Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from
Michigan (Mr. Conyers), the distinguished ranking member on the
Committee on the Judiciary.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Chairman, we have got a bit of a dilemma here.
According to the General Services Administration, excluded parties
listing system, page 5, Argenbright Security, Incorporated. They will
be excluded. Term date, 14 October 2002.
So I say to the distinguished majority leader, if that is what you
call debarment, that is what I call somebody getting rolled in the
House this afternoon. They are debarred for exactly 2 months, and they
are back in business.

{time} 1330

So I rise in support of the gentlewoman's objection to this en bloc
manager's amendment, because notwithstanding all of the concern about
corporate accountability that has been raised to the roof here on both
sides of the Capitol, the last thing we need to do is to pass a special
interest law which protects negligent airport screening companies at
the expense of victims of the September 11 tragedy.
Do we know what we are doing here? Two of these screening companies
have been criminally convicted for falsely certifying that they made
criminal background checks of their employees when they did not. Two of
these companies have been convicted for knowingly hiring convicted
felons, and last November when we passed the Aviation Security Act, we
expressly decided that private screening companies should not be
relieved of liability.
That is because we evaluated airline security in the wake of
September 11, and it was obvious on both sides of the aisle that the
private companies conducting airline screening, in general, had done a
woefully inadequate job.
So now, I should be shocked that the Republican leadership would use
an en bloc manager's amendment to the homeland security bill as a
vehicle to further harm the victims of the September 11 terrorist
attack. Yet, that is precisely what this amendment does.
It not only protects Argenbright, but it protects their parent
company as well, totally shielding them from liability for letting
terrorist and terrorist weapons through checkpoints on September 11. So
those responsible for providing staff at, for example, Logan Airport in
Boston, would receive liability protection. Even the notorious
screening company that I have already named, which provided security at
Dulles and Newark Airports and has been cited for more security
violations than any other company, would benefit from the Army
language.
Mr. Chairman, I urge my colleagues to reject this en bloc manager's
amendment that is before us now.

Excluded Parties Listing System

NO. OF DEBAR TRANSACTIONS: 3

Name: Argenbright Holdings, Limited
Class: Firm
Record Type: Primary
Exclusion Type: Reciprocal
DUNS:
Address: 3465 North Desert, Atlanta, GA, 30344
Description:
CT Actions--
1. Action Date: 20-MAR-2001
Term Date: Indef.
CT Code: A1
Agency: GSA
2. Action Data: 20-MAR-2001
Term Date: Indef.
CT Code: J1
Agency: GSA
Cr. Ref. Names:
1: AHL Services, Inc.
2: Fields, Helen
3: Lawrence, Sandra H.
4: Suller, Steven E.

Name: Argenbright, Security, Inc.
Class: Firm
Record Type: Primary
Exclusion Type: Reciprocial
DUNS:
Address: 3465 North Desert Dr., Atlanta, GA 30344
Description:
CT Action--
Action Date: 18-MAR-2002
Term Date: 14-OCT-2002
CT Code: A
Agency: STATE
Cr. Ref. Name: Argenbright, Frank A., Jr.

Name: Argenbright, Frank Jr..
Class: Individual
Record Type: Cross-Reference
Exclusion Type: Reciprocial
DUNS:
Address: 3553 Peachtree Rd., NE, Suite 1120, Atlanta, GA
30326
Description:
CT Action--
Action Date: 18-MAR-2002
Term Date: 14-OCT-2002
CT Code: A
Agency: STATE
Primary Name: Argenbright Security, Inc.

Mr. ARMEY. Mr. Chairman, I yield myself such time as I may consume.
Let me first observe that the officials at Argenbright would be much
comforted by the gentleman's speech since they called my office
viciously angry and upset, disappointed that they are

[[Page H5824]]

not included in this amendment. So obviously, they clearly understand
themselves to be not included in this coverage, and whether or not they
take comfort from the remarks we just heard I do not know.
Mr. Chairman, that being as it is, I yield 3 minutes to the
distinguished gentleman from North Carolina (Mr. Coble), my classmate
and a subcommittee chairman of the Committee on the Judiciary.
Mr. COBLE. Mr. Chairman, I thank the leader for yielding me this
time.
The manager's amendment as just presented by the gentleman from Texas
(Mr. Armey) is technical for the most part, so I am going to direct my
attention generally to the bill before us.
Mr. Chairman, I traditionally oppose the capping or prohibition of
damages. It is my belief that generally speaking, the matter of
awarding damages should be an exclusive assignment to be discharged by
the jury. When first the State legislature, then the Congress, then
this third party or that third party began inserting their oars into
the jury's waters regarding damages, potential problems rear their
respective, troublesome heads. Invasions of the jury's province should
be pursued very delicately, very deliberately, and very infrequently.
The homeland security legislation directs our attention to plaguing,
unrelenting threats imposed by terrorism, and that is the hook on which
I hang my departure from long-held views in opposing capping or
restricting damages.
This bill proposes the elimination of damages in certain instances,
and given the 9-11 attack by those wicked messengers of evil, I believe
this justifies capping or prohibiting damages. Terrorism, my friends,
is not our traditional adversary. Terrorists punish the innocent.
Terrorists recklessly and needlessly destroy property. Terrorists are
wicked and evil people and, given this set of circumstances, I believe
our addressing damages is, therefore, justified.
I do not believe I am compromising my beliefs. I hold to my strongly-
held belief that the province of the jury is close to sacred ground
but, in this instance, I believe the proposals presented in the
homeland security legislation justify my support of this bill,
including the matter of damages.
Mr. Chairman, there will be a subsequent amendment that will involve
near universal indemnification. We can ill-afford to authorize the
negotiation of blank checks. After 9-11, I believe, Mr. Chairman, that
this House proved that we will not leave helpless victims behind, but
we must generously lace our proposals with prudence in lieu of fiscal
recklessness.
Finally, I say to the distinguished gentleman from Texas, our
majority leader, I think he has done a good job in crafting a
responsible piece of legislation, and I urge its support.
Ms. PELOSI. Mr. Chairman, I am pleased to yield 2 minutes to the
distinguished gentleman from California (Mr. Waxman), ranking member of
the Committee on Government Reform.
Mr. WAXMAN. Mr. Chairman, I really cannot believe this. Yesterday,
the Republicans were forced, kicking and screaming, to vote for
legislation on corporate responsibility and today, they are proposing
legislation that would give a green light to corporate
irresponsibility.
Now, do you remember when they passed under the Contract for America
the Private Securities Litigation Reform Act? It said to accountants,
they did not have to be responsible anymore, they could not be sued. So
what happened? We got Enron. We got all of these scandals.
This bill exempts from liability a company that would make a
defective smallpox vaccine. It would exempt from liability a seller of
what was supposed to be antiterrorism technology that did not work.
They would allow people who are supposed to be doing the work of
protecting the people and who are negligent in doing it not to even be
held responsible. Even worse, if somebody was grossly negligent and
acted intentionally, they would still not be held liable.
Let me give another example. A company that is supposed to screen for
our protection at an airport can hire a known felon and maybe someone
that if they had checked and used reasonable due care could have found
out that person was a terrorist, and they would hire them and a
terrible tragedy could occur, but the company would not be responsible.
They are not held to legal liability because they are given this
exemption from any legal liability under the Armey proposal.
This is a green light to corporations to cut corners, to not have the
incentive to do the job right because they are going to be second-
guessed and held accountable in the courts if they do it wrong. The
biggest problem they might have is they might not have their contract
renewed. But do you know what? If they violate their contract, they
cannot even be sued to do their part of the agreement because they are
exempt from liability even under contract law.
Mr. Chairman, this is the most irresponsible provision I can imagine,
and if anything, we have to wonder, how could they do this? It must be
a payoff to corporations to get a lot of campaign money. How else could
anybody come up with something so irresponsible in light of what this
country has gone through in the last few years and all that our economy
is suffering from.
Mr. ARMEY. Mr. Chairman, I would like to believe the gentleman from
California could rise above the kind of sophomorish allegation that
there are payoffs in the legislative process. I have been many times
disappointed by the gentleman from California, but this is the first
time I have been embarrassed for him.
Mr. Chairman, I yield 3 minutes to the gentlewoman from Ohio (Ms.
Pryce), a jurist and member of the committee.
Ms. PRYCE of Ohio. Mr. Chairman, I thank the gentleman for yielding,
and I compliment him once again on the job he has done with putting
this together.
Mr. Chairman, the claims arising out of the deployment of qualified
antiterrorism technologies would be covered by litigation management
provisions that simply provide for this; once again, very simply. A
consolidation of claims in Federal court. That makes perfect sense.
The requirement that any noneconomic damages be awarded only in the
proportion to a party's percentage of fault. That makes perfect sense.
A ban on punitive damages. A ban on punitive damages that so often
are disproportionate to any real claim or harm done. A ban on punitive
damages. Once again, perfect sense.
Offsets of awards based on receipt of collateral source benefits. We
can only get paid once, not twice or 3 times.
A reasonable, very reasonable limit on attorneys' fees, once again,
perfect sense.
Mr. Chairman, the Safety Act provisions of this en bloc manager's
amendment are vital to ensuring that the American people are protected
by the most reliable and up-to-date antiterrorism technology available.
Unfortunately, the flaws in our current tort system keep that from
happening right now. We need the life-saving and life-protecting
technologies that are out there close to being developed.
But one company, for instance, based in my home State of Ohio,
produces a state of the art technology that is vital to decontamination
following an anthrax attack. Yet, they are prevented from using this
technology to assist in the cleanup of any infected areas or buildings
by the daunting and limitless liability that they could face if their
patriotic efforts failed for some reason.
The Safety Act provisions certainly do not provide immunity in any
way from any lawsuit; they simply place reasonable and sensible limits
on lawsuits so that America's leading technology innovators will be
able to deploy solutions to thwart terrorist attacks.
The alternative solution of indemnification is no solution at all. It
is fiscally irresponsible; it will attempt to put the Treasury and,
through it, the U.S. taxpayers and their deep pockets at risk by those,
the very people that exploit the technology producers who join in the
fight against terrorism.
Mr. Chairman, this is common sense. The time is right for it to
happen. The threat of liability has a chilling effect, both on
technological advances and the implementation of any new technology. I
think it is a perfect place for it in the en bloc amendment; it is
reasonable, it makes sense. The time is right for it. We need it now.
Ms. PELOSI. Mr. Chairman, it is my privilege to yield 4 minutes to
the distinguished gentleman from Minnesota

[[Page H5825]]

(Mr. Oberstar), the ranking member of the Committee on Transportation
and Infrastructure.
Mr. OBERSTAR. Mr. Chairman, I thank the gentlewoman for yielding me
this time, and I compliment her on her management of the time on our
side and on this whole process, and for her splendid work on the Select
Committee on Homeland Security.
For whatever valid reasons there may be to extend liability to other
functions, as have already been discussed and debated and without
entering into those merits, I cannot, for the life of me, imagine a
reason, a valid reason for extending liability to the screener
companies.

{time} 1345

We debated this issue at length last October and November in
consideration of the Aviation and Transportation Security Act that is
now law. We discussed it in the Committee on Transportation and
Infrastructure. We debated it in the House Senate Conference Committee.
We discussed it at great length and rejected any suggestion, and there
were suggestions, any proposals for extension of liability limitation
and immunization for the airport screening companies. It is their
possible negligence that may have contributed to the September 11
attack. Why would you want to excuse them?
In the amendment offered by the gentleman, buried in this amendment
is what I might call mirage language. Whether by design or by
inadvertence, Mr. Chairman, I do know and I do not want to ascribe
motives, it is just that here it is. The language intends to on its
face exclude any screening company that is debarred under Federal
contracts. However, the infamous Argenbright Company's debarment is
over in October, 2002. It then becomes eligible for liability
protection under the gentleman's en bloc amendment. Furthermore, the
parent company of Argenbright, Securicor, is not debarred from any
Federal contracts. So they are now covered by this immunization
protection. And look at Argenbright. Someone last fall in the debate,
and I think it was a Member on the Republican side, said Argenbright is
the poster child for why we need to have a Federalized screener
program.
They were in October of 2000 put on a 36-month probation, ordered to
pay $1,600,000 fine for failure to conduct background checks on their
employees and hiring convicted felons to staff security screening
checkpoints at the Philadelphia Airport between 1995 and 1999. A month
after September 11, Argenbright's probation was extended by 2 years
because they continued to hire convicted felons and improperly train
workers in violation of their probation terms. In the 5 years before
September 11, FAA prosecuted 1,776 cases for screening violations with
$8.1 million in civil penalties.
The en bloc vote furthermore extends liability protections, put
Argenbright aside, to other airport security firms. Globe Aviation
Services and Huntleigh USA Corporation, the security companies
responsible for checkpoint security at Logan Airport on September 11
and which continue to hold a contract with the Transportation Security
Administration, why would you want to exclude them? These are the same
groups whose lobbyists argued last October against the Federal screener
program. It does not make sense to now exempt them.
In May of this year, Huntleigh Security Screeners were fired for
allowing a man to go through a security checkpoint with two loaded
semiautomatic pistols. In February of this year, a Globe security
screener fell asleep at a checkpoint. The whole terminal had to be
evacuated at Louisville because of that failure. Why in heaven's name
do you want to exclude them? This defies imagination. It is the wrong
policy. If we could move to strike this provision, I would; but in lieu
of that, we ought to defeat the entire en bloc amendment.
Mr. ARMEY. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, the confusion about Argenbright has nothing to do with
my amendment. Argenbright is today debarred. My amendment does not
provide coverage to firms that are debarred. If GSA sometime in the
future should remove that debarment, the gentleman from Minnesota (Mr.
Oberstar) would have an argument with GSA, but he has no argument in
respect to Argenbright with my amendment. If I were the gentleman from
Minnesota, I would take up his case with GSA and plead with them to not
lift the debarment on Argenbright, and this gentleman would join the
gentleman from Minnesota (Mr. Oberstar).
Ms. PELOSI. Mr. Chairman, I yield 30 seconds to the gentleman from
Minnesota (Mr. Oberstar).
Mr. OBERSTAR. Mr. Chairman, I just want to reaffirm for the
distinguished gentleman from Texas (Mr. Armey), majority leader, that
Argenbright's debarment expires in October of this year. Why would you
not extend a prohibition on coverage?
Mr. ARMEY. Mr. Chairman, I yield myself 30 seconds to respond to the
proposition that the gentleman from Minnesota (Mr. Oberstar) and I
differ in our understanding of the facts.
Ms. PELOSI. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman
from Oregon (Mr. Blumenauer), a distinguished member of the Committee
on Transportation and Infrastructure.
Mr. BLUMENAUER. Mr. Chairman, I appreciate the gentlewoman's courtesy
in permitting me to speak and for her hard work on this issue. It is a
tough one, but the manager's amendment that is brought before us this
afternoon captures my concerns about the legislation, why I am against
the amendment and frankly I do not think I will be able to vote for it
in its final form.
This is legislation that has been candidly rushed forward. We have an
artificial deadline, perhaps to beat the anniversary of September 11,
but it is not because this is the best time frame to protect the
security of America.
It includes elements that are not necessary and some which may
actually hinder both the discharge of the overall concept of the
legislation and have critical functions for the American public that
suffer. And we have had lots of discussions on this floor about the
potential problems for FEMA, for the Coast Guard; indeed, almost all
our colleagues on all of the substantive committees of jurisdiction
reject the all-encompassing approach that has been suggested here, the
people who know something about these functions. And this, frankly, Mr.
Chairman, is an area that is where the approach that is being taken is
contrary to my experience.
Now, I have not had the range of experience in Congress that some of
these people have who have been here for not just years, but decades;
and I defer to them. But I have actually done work in government
reorganization on the State level and on the local level, city and
county. And without exception, reorganization costs money. It is not
cost-neutral, let alone with something with tens of thousands of
employees. It takes time and there can be short-term dislocations as a
result of these functions.
And finally, it is critical when you are dealing with people who are
going to be moving in to new structures to be able to have a certainty
of working conditions. And some of the proposals that we have had
advanced as a part of this are going to produce uncertainty of working
conditions, apprehension for tens of thousands of dedicated public
employees; and that is going to hurt. It is not going to help.
Finally, the manager's amendment is an example of my underlying
concern. Adding the exemption that has been argued by my good friend
from Minnesota (Mr. Oberstar), not asked for by the President, not
asked for by any committees where there are legitimate questions about
the logic behind it, it all sums up giving me a bad feeling. I am
afraid that serious problems are going to result from the manager's
amendment from the underlying bill. I hope I am wrong, but I fear I am
right.
Mr. ARMEY. Mr. Chairman, I reserve the balance of my time.
Ms. PELOSI. Mr. Chairman, I yield 1\1/2\ minutes to the distinguished
gentleman from New York (Mr. Hinchey).
Mr. HINCHEY. Mr. Chairman, this presents us with a very interesting
situation. First, we are told that the employees of the Homeland
Security Department cannot have civil service protection. They cannot
be unionized. We want to be flexible with them. If they make any
mistakes, we want to throw them out. Yet, at the same time, what do we
do with regard to corporate entities that work for the Homeland
Security Department? If the Secretary approves any design for any
material or

[[Page H5826]]

product that they sell to homeland security, so long as the Secretary
approves it, that corporation is exempt from any product-liability
suits.
The manager's amendment, however, goes even further. It protects
corporate wrongdoers from any kind of action whatsoever. If the product
does not work, if the product does not work because the corporation was
fraudulent in its submission, if the product does not work because they
willfully or maliciously made it so that it would not work effectively,
nevertheless, they are exempt from any kind of lawsuits.
This situation that we are presented with and asked to vote for is
totally absurd. You want to have a circumstance whereby people are
going to feel protected and will be protected. And if they are going to
be protected, you have to have the ability to have confidence in the
corporate entities, the private sector people who are supplying the new
homeland security office. Under the provision of this bill and
particularly under the amendment, all of that confidence goes out the
window.
Why should we have any ounce of confidence if people can produce bad
product and not have to be responsible for the product they produce?
This is a bad piece of legislation.
Mr. ARMEY. Mr. Chairman, I yield 3 minutes to the gentleman from
Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, I rise to thank the Members on both sides of
the aisle for the basic decorum that has existed during the past 2
days. I am beginning to feel that tempers are getting a little short,
but we do not have much further to go.
I, for one, have been the focus of the majority leader's
disappointment sometimes, but I have never ever questioned his
sincerity, his fairness, or his motives. They are beyond reproach. And
I just would say to the Members there is a danger, obviously, when you
have a manager's amendment that has 19 parts. There is going to be
something that somebody does not like. That is the risk. Everyone can
find some part of a comprehensive amendment they do not like. They can
find a reason to vote against it.
There are just too many important parts of this amendment to cause
its defeat. We need this manager's amendment.
Having said this I now would like to take the time to express my
disappointment that I did not make the manager's amendment, that I did
not have an amendment I want called to order. I would like Members to
listen to what this was.
My amendment said the ``Director of Central Intelligence shall, to
the maximum extent practical, in accordance with the law, render full
assistance and support to the Department and the Secretary.''
I am told this was not included because the Permanent Select
Committee on Intelligence had a problem with this. That, to me, is the
very reason why it should have been included. What is amazing to me is
that this very language is the identical language that can be found in
the establishment of the Office on the National Drug Control Policy.
Implicit in our bill is, obviously, support by the head of the CIA; but
nowhere does it state it. I am very, very concerned this is lacking in
our legislation.
I am trying to get it in the Senate bill, and I am using this
opportunity to lobby the most distinguished gentlewoman from California
(Ms. Pelosi) and the most distinguished gentleman from Texas (Mr.
Armey). I am lobbying them up front and in this Chamber to please
include this language when we have the Conference Report and final
passage. It is needed. It is the very problem I encountered in my
committee on national security. When we wanted the CIA to come and
testify about the relationship they had with the FBI, they got a
permission slip from the Permanent Select Committee on Intelligence
saying they did not have to attend. Months later we had 9-11.
I believe we need to have very explicit language stating that the
Director of the Central Intelligence Agency will cooperate with the
Department of Homeland Security. I thank the leader for what he and the
gentlewoman from California (Ms. Pelosi) have done to shepherd this
bill through Congress. I think we are close to passage. It is an
extraordinarily fine piece of legislation. I think it will be made
better by the manager's amendment.

{time} 1400

The CHAIRMAN pro tempore (Mr. Bonilla). At this time, the Chair would
inform the managers on both sides that the gentleman from Texas (Mr.
Armey) has 4 minutes remaining and the gentlewoman from California (Ms.
Pelosi) has 4 minutes remaining, and the gentlewoman from California
(Ms. Pelosi) does have the right to close.
Mr. ARMEY. Mr. Chairman, I might ask the gentlewoman then how many
more speakers she has?
Ms. PELOSI. Mr. Chairman, we will be looking forward to the
distinguished leader's remarks, and then I will close.
Mr. ARMEY. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from Virginia (Mr. Tom Davis), one of the hardest working and
quite frankly most able legislators we have in this body, a good friend
and Member that has important provisions in this manager's amendment.
(Mr. TOM DAVIS of Virginia asked and was given permission to revise
and extend his remarks.)
Mr. TOM DAVIS of Virginia. Mr. Chairman, I thank the gentleman for
yielding me the time.
First of all, just to correct a couple of things I keep hearing from
the other side about a government contractor not being able to be sued
if something goes wrong, nothing could be further from the truth. We do
change traditional tort law in that punitive damages are capped and
that we have comparative negligence and these kind of items. The reason
we do this, of course, in the amendment is to try to hold down the
liability and get contractors to be able to share some of their
innovations with the government.
Also, on the Argenbright debarment issue, debarment is traditionally
done by professionals in the procurement offices in Federal agencies,
not by the Congress. Whether it extends or not, I am certain that that
will be extended at that level.
I rise today in strong support of this language and the technical
innovations language that is included in the gentleman from Texas' (Mr.
Armey) en bloc amendment. This title is going to strengthen information
security management for the Federal Government, and this is critical in
the war against terrorism because if we are vulnerable anywhere it is
in our critical infrastructures. This language goes a long way towards
strengthening that, which seems to me would be a prime target for
terrorists.
Poor information security management has persisted in both the public
and private sectors long before information technology became
ubiquitous engine driving governmental, business and even home
activities. As our reliance on technology and our desire for
interconnectivity have grown over the past decade, intensifying with
the advent of the Internet, our vulnerabilities to attack on Federal
information systems has grown exponentially. The high degree of
dependence between information systems, both internally and externally,
exposes the Federal Government's computer networks to benign and
destructive disruptions.
Therefore, the Federal Information Security Management Act of 2002,
which I introduced with the gentleman from California (Mr. Horn) is
included in this manager's amendment. This requires the agencies
utilize information security best practices that could help ensure the
integrity, confidentiality and availability of Federal information
services and doing a lot of other things as well.
I also want to thank the gentleman from New York (Mr. Boehlert), the
Committee on Science chairman and the gentleman from Louisiana (Mr.
Tauzin), the Committee on Energy and Commerce chairman, for working on
this language. In addition to this, we have technical innovation
language in this legislation that will allow the most up-to-date
innovations in technology to come forward quickly and be processed by
the homeland security agency where they can start looking as they set
their requirements and find out what are the latest innovations that we
have in technology in this country that we can use to help fight
terrorism.

[[Page H5827]]

In February, we held a hearing on this, the challenges facing us, and
one theme that was expressed unanimously by industry was the need for
an organized, cohesive and comprehensive process within the government
so we could evaluate private sector solutions to homeland security
problems. We have a lot of contractors with great ideas running around,
but there is no place to really take them at this point.
This manager's amendment now has a central clearinghouse for these.
They are part of the solution. With the creation of the homeland
security in the bill before us today the gentleman from Texas (Mr.
Armey) has included language in this legislation that closes the loop
and provides a vehicle to get these solutions into the government and
to the front lines in the war against terrorism as soon as possible.
I urge adoption of the manager's amendment.
In ordinary times, primarily because of recent acquisition reforms,
the current acquisition system will enable the new Department of
Homeland Security to buy what it needs with reasonable efficiency.
While we all hope that it will never be needed, we also know that in an
emergency the new Department may have to quickly and efficiently
acquire the high tech and sophisticated products and services needed
for its critical mission. The carefully limited authorities contained
in the Homeland Security Act on the floor today are based on the Davis/
Turner amendment, which was accepted and incorporated into the
Government Reform Committee's version of the Homeland Security bill.
The bi-partisan provisions would permit the Department to quickly
acquire the emergency goods and services it needs while maintaining
safeguards against wasteful spending.
The amendment builds on contracting authorities currently in place,
in fact, the procedures appear in Part 13 of the Federal Acquisition
Regulation--and provides for an extension of these authorities only
upon a determination of the Secretary of Homeland Security or one of
his Senatorially confirmed officials that the terror fighting mission
of the new Department would be seriously impaired without their use.
The new authorities would sunset at the end of fiscal year 2007. The
GAO would be required to report to the Committee on Government Reform
assessing the extend to which the authorities contributed to the
mission of the Department, the extent to which the prices paid reflect
best value, and the effectiveness of the safeguards put in place to
monitor the use of the new authorities. The current government-wide
procurement laws will govern the Department's ``normal'' purchases.
Specifically, the provisions would raise the current micro-purchase
threshold from $2,500 to $5,000. It would raise the current $100,000
threshold to $175,000, and permit the application of the current
streamlined commercial acquisition procedures and statutory waivers to
non-commercial goods and services and increase the current $5,000,000
ceiling on the use of streamlined commercial procedures to $7,500,000
for these goods and services.
How could these new authorities be used?
Well, for example, the increase in the micro-purchase threshold could
be used in the event of a terror attack, to permit a Department of
Homeland Security official at the scene to rent several floors of a
nearby hotel to house rescue workers by simply presenting his
Government credit card.
The increase in the simplified acquisition threshold would permit a
Department official to quickly enter into a $175,000 contract for
specialized medical services for rescue workers responding to a terror
attack.
The application of streamlined commercial acquisition procedures
would permit the Department to conduct a limited competition among high
technology firms for a specialized advisory and assistance services
contract valued at $7,500,000 to fight a cyber-attack.
Mr. Chairman, I also rise in strong support of Title XI information
security language and the technical innovations language included in
Chairman Armey's en bloc amendment. This Title will strengthen the
information security management infrastructure of the Federal
Government.
The events of September 11th and the ensuing war on terrorism have
raised an unprecedented awareness of the vulnerabilities we face. This
has naturally focused more attention on security issues, particularly
with respect to information security. From my work in the Government
Reform Committee, it is clear that the state of federal information
security suffers from a lack of coordinated, uniform management.
Federal information systems continue to be woefully unprotected from
both malevolent attacks and benign interruptions.
Poor information security management has persisted in both the public
and private sectors long before IT became the ubiquitous engine driving
governmental, business, and even home activities. As our reliance on
technology and our desire for interconnectivity have grown over the
past decade, intensifying with the advent of the Internet, our
vulnerability to attacks on Federal information systems has grown
exponentially. The high degree of interdependence between information
systems, both internally and externally, exposes the Federal
government's computer networks to benign and destructive disruptions.
Therefore, I introduced the Federal Information Security Management
Act of 2002 (FISMA) with Congressman Stephen Horn, Chairman of the
Government Efficiency, Financial Management and Intergovernmental
Relations Subcommittee. FISMA is the basis for Title XI in the Homeland
Security bill we are considering today.
FISMA will require that agencies utilize information security best
practices that will ensure the integrity, confidentiality, and
availability of Federal information systems. It builds on the
foundation laid by the Government Information Security Reform Act
(GISRA), which requires every Federal agency to develop and implement
security policies that include risk assessment, risk-based policies,
security awareness training, and periodic reviews. Our Subcommittees
held joint legislative hearings on FISMA, and I worked closely with
Chairman Horn, industry, and agencies to develop a bill that is
satisfactory to all parties.
FISMA will achieve several objectives vital to Federal information
security. Specifically, it will:
1. Remove GISRA's sunset clause and permanently require a Federal
agency-wide risk-based approach to information security management with
annual independent evaluations of agency information security
practices;
2. Require that all agencies implement a risk-based management
approach to developing and implementing information security measures
for all information and information systems;
3. Streamline and make technical corrections to GISRA to clarify and
simplify its requirements;
4. Strengthen the role of NIST in the standards-setting process; and
5. Require OMB to implement minimum and mandatory standards for
Federal information and information systems, and to consult with the
Department of Homeland Security regarding the promulgation of these
standards.
At a time when uncertainty threatens confidence in our nation's
preparedness, the Federal government must make information security a
priority. We demand that in our networked era, where technology is the
driver, every Federal information system must be managed in a way that
minimizes both the risk that a breach or disruption will occur and the
harm that would result should such a disruption take place. Title XI is
vitally important to accomplishing our objective. Chairman Armey
understands this and has shown tremendous leadership by this including
this critical language in his en bloc amendment.
I would like to take a moment to thank Science Committee Chairman
Sherwood Boehlert and Energy and Commerce Chairman Billy Tauzin for
working with the Committee on Government Reform to reach a substantive
agreement on Title XI. And I would also like to thank Congresswoman
Connie Morella, Congressman Lamar Smith, and Congressman Adam Smith for
their strong support and invaluable efforts to promote Title XI.
Also, the En Bloc amendment includes language that I developed to
allow for reaching out to new technology companies that may not being
doing business with the government. We all know that the Federal, State
and local governments will spend billions and billions of dollars to
fight the war against terror. Contentious floor debates aside, we all
support these efforts. But to me, the question isn't simply how much we
spend, but how well we spend it.
Since the tragic events of 9/11 the Government, in general, and the
Office of Homeland Security, in particular has been overwhelmed by a
flood of industry proposals offering various solutions to our homeland
security challenges. Because of a lack of staffing expertise, many of
these proposals have been sitting unevaluated, perhaps denying the
government breakthrough technology.
In February, I held a hearing in my Subcommittee on Technology and
Procurement Policy on homeland security challenges facing the
government. One theme that was expressed unanimously by industry was
the need for an organized, cohesive, comprehensive process within the
Government to evaluate private-sector solutions to homeland security
problems. Now we have part of the solution, with the creation of the
new Department of Homeland Security in the bill on the floor today.
Chairman Armey at my request included language in a new Section 309
which is based on H.R. 4629, legislation I introduced in May. This
language will close the loop and provide a vehicle to get these
solutions into government and to the front lines in the war against
terror.

[[Page H5828]]

Chairman Armey's Manager's amendment included a new section 309 in
the Homeland Security Act to the establishment within the Department a
program to meet the current challenge faced by the Federal government,
as well as by state and local entities, in leveraging private sector
innovation in the fight against terror. The amendment would establish a
focused effort by:
Creating a centralized Federal clearinghouse in the new Department
for information relating to terror-fighting technologies for
dissemination to Federal, State, local and private sector entities and
to issue announcements to industry seeking unique and innovative anti-
terror solutions.
Establishing a technical assistance team to assist in screening
proposals for terror-fighting technology to assess their feasibility,
scientific and technical merit and cost.
Providing for the new Department to offer guidance, recommendations
and technical assistance to Federal, State, local and private efforts
to evaluate and use anti-terror technologies and provide information
relating to Federal funding, regulation, or acquisition regarding these
technologies.
Since September 11, we have all been struggling to understand what
changes will occur in our daily lives, in our economy, and within the
Government. We now will establish a new Department of Homeland Security
to focus and coordinate the war against terror. The new section 309 in
this landmark legislation will give the new Department the framework it
needs to examine and act on the best innovations the private sector has
to offer.
I would also like to offer my thanks to the staff of the Science and
Energy and Commerce Committees who collaborated with my staff in
crafting this consensus amendment.
And finally, Mr. Chairman, I would also like to thank the Chairman
for including my bipartisan legislation that I developed with
Congressman Jim Moran that will promote voluntary information sharing
about our nation's critical infrastructure assets. As many of you know,
over ninety percent of our nation's critical infrastructure as owned
and operated. In Presidential Decision Directive 63 issued by the
previous Administration, concerns about the Freedom of Information Act,
antitrust, and liability were identified as primary barriers to
facilitating information sharing with the private sector.
The critical infrastructure of the United States is largely owned and
operated by the private sector. Critical infrastructures are those
systems that are essential to the minimum operations of the economy and
government. Traditionally, these sectors operated largely independently
of one another and coordinated with government to protect themselves
against threats posed by traditional warfare. Today, these sectors must
learn how to protect themselves against unconventional threats such as
terrorist attacks, and cyber intrusions.
We must, as a nation, prepare both our public and private sectors to
protect ourselves against such efforts. As we discovered when we went
to the caves in Afghanistan, the Al Qaeda groups had copies of GAO
reports and other government information obtained through FOIA. While
we work to protect our nation's assets in this war against terrorism,
we also need to ensure that we are not arming terrorists.
Today, the private sector has established many information sharing
organizations (ISOs) for the different sectors of our nation's critical
infrastructure. Information regarding potential physical or cyber
vulnerabilities is now shared within some industries but it is not
shared with the government and it is not shared across industries. The
private sector stands ready to expand this model but have also
expressed concerns about voluntarily sharing information with the
government and the unintended consequences they could face for acting
in good faith.
Specifically, there has been concern that industry could potentially
face antitrust violations for sharing information with other industry
partners, have their shared information be subject to the Freedom of
Information Act, or face potential liability concerns for information
shared in good faith. My language included in H.R. 5005 will address
all three of these concerns. Additionally, consumers and operators will
have the confidence they need to know that information will be handled
accurately, confidentially, and reliably.
The Critical Infrastructure Information Act procedures are closely
modeled after the successful Year 2000 Information and Readiness
Disclosure Act by providing a limited FOIA exemption, civil litigation
protection for shared information, and a new process for resolving
potential antitrust concerns for information shared among private
sector companies for the purpose of correcting, avoiding, communicating
or disclosing information about a critical infrastructure threat or
vulnerability.

This legislation will enable the private sector, including ISOs, to
move forward without fear from government so that government and
industry may enjoy a mutually cooperative partnership. This will also
allow us to get a timely and accurate assessment of the vulnerabilities
of each sector to physical and cyber attacks and allow for the
formulation of proposals to eliminate these vulnerabilities without
increasing government regulation, or expanding unfunded federal
mandates on the private sector.
I am disappointed that the final language contained in the bill is
different than the Government Reform Committee mark that passed the
Committee 30 to 1. My FOIA language passed the Committee by voice vote.
However, the language included in the Manager's Amendment only extends
the protections to the Department of Homeland Security. My original
language gave the Secretary the authority to designate other covered
federal agencies to receive and share the information. While the
Department would have remained the central repository for this
information, it allowed other Departments and agencies involved in
fighting the war on terrorism to also receive this voluntarily provided
information. I will be offering an amendment later today that will make
a technical correction to H.R. 5005 and allow the Secretary to again
designate covered federal agencies.
The amendment that I am offering today is supported by every critical
infrastructure sector. It is also supported by the Business Roundtable,
the U.S. Chamber of Commerce, the Information Technology Association of
America, the Financial Services Roundtale, the National Association of
Manufacturers, the Edison Electric Institute, and the American Chemical
Council. Industry wants to fulfill its' responsibility to the American
people, we need to give them the necessary tools to do so.
Mr. ARMEY. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, this manager's amendment exists in 19 parts. Eight of
the 19 parts are included in the amendment at the request of the
various committees of the House. The remainder are included at the
request of different Members of the body from both sides of the aisle.
We have had the opposition to the manager's amendment focused on one
of the 19 provisions, a provision that provides liability coverage to
providers of services to homeland defense and a provision that has been
passed by this House before. It is not something new. The only thing
that is different about this provision now, as opposed to the time in
which it was passed earlier in this session, is that we now have an
identifiable pair of providers within that population who are debarred
from providing and would not benefit. They have been identified under
it.
The overall manager's amendment conformed to the practices of a
select committee and to the commitment of this chairman in that it gave
first priority, first preference, first respect to the standing
committees and to the Members of this body and their shared commitment
to making this Nation safe from terrorism, and I urge its passage.
Mr. Chairman, I yield back the balance of my time.
Ms. PELOSI. Mr. Chairman, I yield myself the remainder of my time.
Mr. Chairman, in his closing remarks, our distinguished leader
explained how many elements there were to this en bloc amendment and
said that we were finding fault with a small part of it. The fact is
that we would like to find no fault with an en bloc amendment. There
are many provisions in it. I dare say most of us have not the faintest
idea what they are, but we trust the Chairman on those technicalities
and recommendations from the committee.
This is usually a noncontroversial measure that most Members would
expect to support. That is why it is so disappointing that this en bloc
amendment is being used to put a very controversial amendment in. To
use the engine of an en bloc on technicalities for a substantive change
in the bill that is controversial is unusual, and that is why we oppose
it, because of the substance of the provisions.
It has been said that this is about protecting the American people.
Let us keep our standard before us. How do we protect the American
people best? In the bill, and another amendment will come up later, the
Turner amendment to strike it, but in the bill, under section 753 of
the bill, corporations can submit designs for antiterrorism products to
the Homeland Security Department if those designs are approved by the
Secretary. Those corporations get total immunity from product liability
lawsuits under the government contractor defense of any kind, even if
there is wrongdoing, including willful and malicious corporate
misconduct.

[[Page H5829]]

Imagine that this bill to protect the American people has that
provision in it the day after we pass the corporate accountability
bill, but this amendment, this en bloc amendment, even does that one
worse. This amendment goes further to protect corporate wrongdoers. It
extends total immunity to all kinds of lawsuits. Even if a product does
not work, they cannot sue for breach of contract, et cetera, but this
would give it immunity for willful wrongdoing to corporations that
provide services and software.
I have heard people say that this is important so that we can get
people to bid. The Turner amendment addresses that next with a wise
amendment that addresses the concerns of the private sector in a
responsible way.
In this bill, the Armey amendment immunizes airport screening
companies whose negligence may have contributed to the September 11
attacks, and I have heard people say here, of course, a person can sue
under this bill. Let me just read from the en bloc amendment.
It talks about the presumption and it says, The presumption shall
only be overcome, in other words the presumption of innocence, that
this presumption shall only be overcome by evidence showing that the
seller acted fraudulently or with willful misconduct in submitting
information to the Secretary. Only in submitting information to the
Secretary. Not in how the person manufactured the product or spelled
out how it should be used.
So this, the standard that is set in this bill, is how a person makes
their case to the Secretary. Not about how they deliver on the promise
to protect the American people.
We all know that in a time leading up to September 11, there were
many causes for the tragedy coming our way, and one of them was the
fact that the airport screening companies played Russian Roulette with
the safety of the American people. Sooner or later there was going to
be a tragedy because of their lax approach to safety in the security
and the screening process.
This bill that we have before us, on a day when we are discussing how
to make the country safer in the best possible way, says that we will
make matters worse by passing this en bloc amendment.
I would urge my colleagues to do the responsible thing and reject
this en bloc amendment.
Mr. RODRIGUEZ. Mr. Chairman: the debate today should be on improving
our homeland defense. We should be focused on finding ways to encourage
the responsible development, testing and deployment of new technologies
and products that will enhance the protection of the American people.
Mr. Chairman, we hear so much about responsibility in this House. Yet
when it comes to corporate responsibility, the Majority seems to run
and hide.
The bill crafted by the House majority, and the amendment offered by
the Majority Leader, represent a wholesale attack on our longstanding
system of justice. They rob the American people of their ability to
receive compensation for irresponsible or even grossly negligent
conduct. In the name of homeland defense, they conduct a brash assault
on our ability to hold corporate wrongdoers accountable for their
misconduct or simply their failure to make a product that works.
That's right. The product could fail completely, but the manufacturer
would have no liability. The product could backfire, misfire, or not
fire at all, yet the company that made it could simply walk away with
not even a slap on the wrist.
It is an outrage.
It undermines our security.
One of the foundations of our democracy is the system of checks and
balances. Within the world of product development and the provision of
services, our legal system is the check on substandard conduct.
Without that check, without the threat of being held accountable, we
will seen an increase in poor product design and faulty service
delivery. It is simply human nature.
Corporations won't need to worry about making sure their products are
safe and effective. They won't have to worry about the potential harm
they cause. They won't have incentives to improve their safety. They
will simply have blanket immunity. Forever.
Those injured in the process--whether it's our soldiers, police
officers, firefighters, homeland defense volunteers, or victims of
product failure--will be left out in the cold. With no legal recourse,
they and their families will suffer, they will not receive the care
they need, they will receive no compensation for the harm caused to
them.
This is nothing short of the legalization of corporate
irresponsibility.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from Texas (Mr. Armey).
The question was taken; and the Chairman pro tempore announced that
the ayes appeared to have it.
Ms. PELOSI. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Texas (Mr.
Armey) will be postponed.
It is now in order to consider Amendment No. 22 printed in House
Report 107-615.

Amendment No. 22 Offered by Mr. Turner

Mr. TURNER. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 22 offered by Mr. Turner:
Strike subtitle F of title VII and insert the following:

Subtitle F--Risk Sharing and Indemnification

SEC. 751. RISK SHARING AND INDEMNIFICATION.

(a) Definitions.--Section 4 of the Office of Federal
Procurement Policy Act (41 U.S.C. 403) is amended by adding
at the end the following new paragraphs:
``(16) The term `anti-terrorism technology and services'
means any product, equipment, service or device, including
information technology, system integration and any other kind
of services (including support services) related to
technology, designed, developed, modified or procured for the
purpose of preventing, detecting, identifying, or otherwise
deterring acts of terrorism.
``(17) The term `act of terrorism,' means the calculated
attack or threat of attack against persons, property or
infrastructure to inculcate fear, intimidate or coerce a
government, the civilian population, or any segment thereof,
in the pursuit of political, religious or ideological
grounds.
``(18) The term `insurance carrier' means any corporation,
association, society, order, firm, company, mutual,
partnership, individual, aggregation of individuals, or any
other legal entity that provides commercial property and
casualty insurance. Such term includes any affiliates of a
commercial insurance carrier.
``(19) The term `liability insurance' means insurance for
legal liabilities incurred by the insured resulting from--
``(A) loss of or damage to property of others;
``(B) ensuing loss of income or extra expense incurred
because of loss of or damage to property of others;
``(C) bodily injury (including death) to persons other than
the insured or its employees; or
``(D) loss resulting from debt or default of another.
``(20) The term `homeland security procurement' means any
procurement of anti-terrorism technology and services, as
determined by the head of the agency, procured for the
purpose of preventing, detecting, or otherwise deterring acts
of terrorism.
``(21) The term `information technology'--
``(A) means any equipment or interconnected system or
subsystem of equipment that is used in the automatic
acquisition, storage, manipulation, management, movement,
control, display, switching, interchange, transmission, or
reception of data or information;
``(B) includes computers, ancillary equipment, software,
firmware, and similar procedures, services (including support
services), and related resources; and
``(C) does not include any equipment that is acquired by a
Federal contractor incidental to a Federal contract.''.
(b) Federal Risk Sharing and Indemnification.--The Office
of Federal Procurement Policy Act is further amended by
adding at the end the following new sections:

``SEC. 40. FEDERAL RISK SHARING AND INDEMNIFICATION.

``(a) When conducting a homeland security procurement the
head of an agency may include in a contract an
indemnification provision specified in subsection (e) if the
head of the agency determines in writing that it is in the
best interest of the Government to do so and determines
that--
``(1) the anti-terrorism technology and services are needed
to protect critical infrastructure services or facilities;
``(2) the anti-terrorism technology and services would be
effective in facilitating the defense against acts of
terrorism; and
``(3) the supplier of the anti-terrorism technology is
unable to secure insurance coverage adequate to make the
anti-terrorism technology and services available to the
Government.
``(b) The head of the agency may exercise the authority in
this section only if authorized by the Director of the Office
of Management and Budget to do so.
``(c) In order to be eligible for an indemnification
provision specified in this section, any entity that provides
anti-terrorism technology and services to an agency
identified in this Act shall obtain liability insurance of

[[Page H5830]]

such types and in such amounts, to the maximum extent
practicable as determined by the agency, to satisfy otherwise
compensable third party claims resulting from an act of
terrorism when anti-terrorism technologies and services have
been deployed in defense against acts of terrorism.
``(d) An indemnification provision included in a contract
under the authority of this section shall be without regard
to other provisions of law relating to the making,
performance, amendment or modification of contracts.
``(e)(1) The indemnification provision to be included in a
contract under the authority of this section shall indemnify,
in whole or in part, the contractor for liability, including
reasonable expenses of litigation and settlement, that is not
covered by the insurance required under subsection (c), for:
``(A) Claims by third persons, including employees of the
contractor, for death, personal injury, or loss of, damage
to, or loss of use of property, or economic losses resulting
from an act of terrorism;
``(B) Loss of, damage to, or loss of use of property of the
Government; and
``(C) Claims arising (i) from indemnification agreements
between the contractor and a subcontractor or subcontractors,
or (ii) from such arrangements and further indemnification
arrangements between subcontractors at any tier, provided
that all such arrangements were entered into pursuant to the
terms of this section.
``(2) Liabilities arising out of the contractor's willful
misconduct or lack of good faith shall not be entitled to
indemnification under the authority of this section.
``(f) An indemnification provision included in a contract
under the authority of this section shall be negotiated and
signed by the agency contracting officer and an authorized
representative of the contractor and approved by the head of
the agency prior to the commencement of performance of the
contract.
``(g) The authority conferred by this section shall be
limited to the following agencies:
``(1) The Department of Homeland Security;
``(2) The Department of Agriculture;
``(3) The Department of Commerce;
``(4) The Department of Defense;
``(5) The Department of Energy;
``(6) The Department of Health and Human Services;
``(7) The Department of the Interior;
``(8) The Department of Justice;
``(9) The Department of State;
``(10) The Department of the Treasury;
``(11) The Department of Transportation;
``(12) The Federal Emergency Management Agency;
``(13) The Federal Reserve System;
``(14) The General Services Administration;
``(15) The National Aeronautics and Space Administration;
``(16) The Tennessee Valley Authority;
``(17) The U.S. Postal Service;
``(18) The Central Intelligence Agency;
``(19) The Architect of the Capitol; and
``(20) Any other agency designated by the Secretary of
Homeland Security that engages in homeland security
contracting activities.
``(h) If any suit or action is filed or any claim is made
against the contractor for any losses to third parties
arising out of an act of terrorism when its anti-terrorism
technologies and services have been deployed such that the
cost and expense of the losses may be indemnified by the
United States under this section, the contractor shall--
``(1) immediately notify the Secretary and promptly furnish
copies of all pertinent papers received;
``(2) authorize United States Government representatives to
collaborate with counsel for the contractor's insurance
carrier in settling or defending the claim when the amount of
the liability claimed may exceed the amount of insurance
coverage; and
``(3) authorize United States Government representatives to
settle or defend the claim and to represent the contractor in
or to take charge of any litigation, if required by the
United States Government, when the liability is not insured.
The contractor may, at its own expense, be associated with
the United States Government representatives in any such
claim or litigation.''.
(c) State and Local Risk Sharing and Indemnification.--(1)
The Secretary may, upon the application of a State or local
government, provide for indemnification of contractors who
provide anti-terrorism technologies and services to State or
local governments if the Secretary determines in writing
that--
(A) it is in the best interest of the Government to do so;
(B) the State or local government is unable to provide the
required indemnification; and
(C) the anti-terrorism technology and services are needed
to protect critical infrastructure services or facilities,
would be effective in facilitating the defense against acts
of terrorism, and would not be reasonably available absent
indemnification.
(2) The Secretary may exercise the authority in this
subsection only if authorized by the Director of the Office
of Management and Budget to do so.
(3) In order to be eligible for indemnification, any entity
that provides anti-terrorism technology and services to a
State or local government shall obtain liability insurance of
such types and in such amounts to the maximum extent
practicable, as determined by the Secretary, to satisfy
otherwise compensable third party claims resulting from an
act of terrorism when anti-terrorism technologies and
services have been deployed in defense against acts of
terrorism.
(4) The indemnification provided under the authority of
this subsection shall indemnify, in whole or in part, the
contractor for liability, including reasonable expenses of
litigation and settlement, that is not covered by the
insurance required under paragraph (3) for--
(A) claims by third persons, including employees of the
contractor, for death, personal injury, or loss of, damage
to, or loss of use of property, or economic losses resulting
from an act of terrorism;
(B) loss of, damage to, or loss of use of property of the
Government; and
(C) claims arising--
(i) from indemnification agreements between the contractor
and a subcontractor or subcontractors; or
(ii) from such arrangements and further indemnification
arrangements between subcontractors at any tier, provided
that all such arrangements were entered into pursuant to the
terms of this subsection.
Liabilities arising out of the contractor's willful
misconduct or lack of good faith shall not be entitled to
indemnification under the authority of this subsection.
(5) If any suit or action is filed or any claim is made
against the contractor for any losses to third parties
arising out of an act of terrorism when its anti-terrorism
technologies and services have been deployed such that the
cost and expense of the losses may be indemnified by the
United States under this subsection, the contractor shall--
(A) immediately notify the Secretary and promptly furnish
copies of all pertinent papers received;
(B) authorize United States Government representatives to
collaborate with counsel for the contractor's insurance
carrier in settling or defending the claim when the amount of
the liability claimed may exceed the amount of insurance
coverage; and
(C) authorize United States Government representatives to
settle or defend the claim and to represent the contractor in
or to take charge of any litigation, if required by the
United States Government, when the liability is not insured.
The contractor may, at its own expense, be associated with
the United States Government representatives in any such
claim or litigation.
(6) In this subsection, the definitions in paragraphs (16)
through (21) of section 4 of the Office of Federal
Procurement Policy Act shall apply.
(c) Implementing Regulations.--Not later than 120 days
after the date of the enactment of this Act, the Federal
Acquisition Regulation shall be amended to ensure consistency
between the Federal Acquisition Regulation and this section.
The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentleman from Texas (Mr. Turner) and a Member opposed each will
control 20 minutes.
The Chair recognizes the gentleman from Texas (Mr. Turner).
Mr. TURNER. Mr. Chairman, I yield myself 2\1/2\ minutes.
Mr. Chairman, the amendment that we are offering here on the floor
today is the language that was approved by the Committee on Government
Reform that was sent to the special panel. In the Committee on
Government Reform it was adopted without opposition, with bipartisan
support.
The amendment is very important because it allows the timely
deployment of advanced technology in the fight against terrorism, while
at the same time preserving the legal rights and remedies that are
available to the victims of any terrorist incident.
The amendment extends to the Department of Homeland Security and
other agencies that purchase anti-terrorism technologies a common
practice of indemnity that has been around for a long, long time at the
Department of Defense. In fact, this authority has existed since 1958
when President Eisenhower issued an executive order under law which
allowed indemnity to be granted by the Secretary of Defense to certain
of our defense contractors.
The concept of indemnity is not only one that has been with us for a
while, but has been used most recently by President Bush when he
granted the Secretary of Health and Human Services the authority to
give indemnity to the manufacturers of Cipro after the anthrax scare.
The language that we offer today came to the attention of the
gentleman from Virginia (Mr. Tom Davis) as the Chairman of the
Subcommittee on Technology and Procurement Policy of the Committee on
Government Reform and to me as the ranking member. It was brought to
our attention by Federal contractors, a coalition including Lockheed
Martin, Northrop Grumman and the Information Technology Association of
America.
Our language, which was adopted by the committee, allows discretion
in the

[[Page H5831]]

Secretary of Homeland Security to grant in whole or in part indemnity
against potential liabilities.

{time} 1415

It requires that the companies carry insurance up to the amount that
they reasonably can.
This legislation is modeled, as I said, after existing law and
practice; and as they say, ``If it ain't broke, don't fix it.'' So we
are again offering today our language, which we believe is fiscally
responsible, which is understandable, and which is supported in a
bipartisan way. The language that we have in our amendment protects the
Federal Treasury.
It has been suggested by those who support the alternative language
that is in the bill that somehow we open the doors of the Treasury if
we grant indemnity. Our language makes it very clear that the indemnity
offered by the Secretary can be limited, limited in amount, limited in
scope. And once the Secretary makes the decision to grant indemnity, it
must be approved by the Office of Management and Budget.
We believe this is a much superior way to get technology deployed in
a rapid manner, which is what this amendment is all about. The
alternative language in the bill is going to slow down the process. It
requires an FDA-type approval procedure that would allow the director
of Homeland Security to examine the equipment and then certify it. We
think that is the wrong approach, and we will urge adoption of our
amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. ARMEY. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN pro tempore (Mr. Bonilla). The gentleman from Texas (Mr.
Armey) is recognized for 20 minutes.
Mr. ARMEY. Mr. Chairman, I yield 3 minutes to the gentleman from Iowa
(Mr. Nussle), the distinguished chairman of the Committee on the
Budget.
Mr. NUSSLE. Mr. Chairman, I want to thank the distinguished majority
leader for his fine work on this piece of legislation and congratulate
him on it.
We have a good bill here, my colleagues; and we are about to just
blow a hole so wide in the budget we have not seen nothing. In fact, we
asked CBO, the Congressional Budget Office, to score this amendment
because we wanted to at least be able to nail down a ballpark figure of
what this would cost. And even CBO, who has been known from time to
time to guess and predict, and sometimes guess incorrectly even, will
not even hazard a guess of what this bill costs. In fact, what they
tell us in the letter is that they know it is going to cost something,
but they have no idea how much.
And why is that? Because none of us can predict the future. But we
can predict one thing, and that is that Congress will respond. To just
fully indemnify and throw in this blanket blank check into this bill,
without recognizing the perspective and the understanding of where we
have been this year, would be, I believe, irresponsible.
Let us just review this year. Even before passing the supplemental,
we increased homeland security funding this year, already almost by 45
percent in 2001 and 65 percent in 2002. Forty billion dollars, my
colleagues, we, in a bipartisan way, spent in response in two
supplementals for reconstruction and for the war; $8.4 billion in
economic assistance to the aviation industry; almost $200 million in
immediate assistance to victims of terrorism; and our 2003 budget
included a $35 billion increase for defense to fully fund the
President's request.
Just this week, we passed an additional bill for $10 billion in
addition to that $35 billion. Just yesterday, we sent to the President
a second supplemental where we provided $28.9 billion in emergency
funding, $13 billion of which went to defense and $11 billion went to
the other agencies. In addition, we provided roughly $75 billion of
economic stimulus to help recover from the shock.
Indemnification? I do not know what my colleagues are worried about
here. We will respond. But to give a blank check and to put the
taxpayers on the hook with absolutely no check from the House of
Representatives, with no oversight, with no accountability, and with no
understanding of what this will do to the budget, is the wrong thing to
do to this very responsible bill.
This bill fits within our budget. Do not pass this amendment or it
busts every budget anyone has ever contemplated.
Mr. TURNER. Mr. Chairman, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Weldon), a distinguished member of the Committee on
Armed Services.
(Mr. WELDON of Pennsylvania asked and was given permission to revise
and extend his remarks.)
Mr. WELDON of Pennsylvania. Mr. Chairman, I rise in support of this
amendment. Why do I rise in support of the amendment? Well, first of
all, before coming to Congress, I worked for the insurance industry at
the home office of the INA Cigna Corporation. I spent 18 years working
on issues involving reinsurance and liability concerns for the American
people.
I understand where we do not have enough market capability where the
government has to come in, and we in fact are doing that. This
legislation that the gentleman from Texas (Mr. Turner) offers is
modeled after indemnification laws for the nuclear power industry and
the commercial space launch industry, and they have operated
successfully for decades. This is modeled after that.
The second reason I come to the floor on this issue, and by the way
the letter we sent out was signed by 23 Republican colleagues on this
very issue not more than several weeks ago, was I worked very closely
with this group. This is the NBC Working Group. This group is made up
of all the companies in America that produce cutting-edge chemical,
nuclear and biological technologies. In fact, I have hosted them twice
on Capitol Hill in the Rayburn Building, where Members have had a
chance to see technology associated with detection systems, with
systems that are being designed on the cutting edge to assist us in the
war on terrorism.
They have a major concern, Mr. Chairman. They have a major concern
relative to the ability of these kinds of companies to still continue
to do the cutting-edge research necessary to give us the products that
we need to have. This legislation that the gentleman from Texas (Mr.
Turner) offers, I think, is a fair compromise. It gives us an ability
to protect them while still protecting the taxpayer. In fact, I think
there is in fact a cap in here that can be set by the administration.
So the administration has the final determination.
As the chairman of the Subcommittee on Military Procurement for
defense, my job is to work with our defense industrial base to make
sure we are being given the cutting-edge technology to fight the war on
terrorism. Working closely with these industry groups, working closely
with the NBC Working Group, I am convinced that we need to have this
kind of a modern approach. And so I rise in support of this legislation
and encourage my colleagues to vote ``yes'' on the Turner amendment.
Mr. ARMEY. Mr. Chairman, it is my pleasure to yield 3 minutes to the
gentleman from Texas (Mr. DeLay), the distinguished majority whip.
Mr. DeLAY. Let me first, Mr. Chairman, say that those that are on the
cutting edge of technology and wanting to provide it are protected in
the base text of the bill by limiting their liability and banning
punitive damages, just like we have done in the Transportation Safety
Administration and other instances.
But, Mr. Chairman, there is an unacceptable demand that America needs
to know about right now. Some of the largest and most profitable
corporations in the country are attempting to pass off legal liability
for their products onto average Americans. These defense contractors
are trying to feed the taxpaying public to the crocodiles of the
plaintiff's bar.
American taxpayers should not be asked to absorb the devastating
financial consequences that would flow from creating an enormous new
unfunded liability. Taxpayers should not be footing the bill for a
gigantic new windfall for trial lawyers. Even now, the plaintiff's bar
is eagerly anticipating new ways to exploit the new terrorist attack
through litigation against the companies that are developing terror-
fighting tools.
What is even more outrageous is that multibillion dollar defense
contractors

[[Page H5832]]

have the nerve to come to Congress, hat in hand, to demand that
taxpayers foot this bill. If these defense contractors bear the
responsibility for the failure of their technology, then they should be
held responsible. And if these contractors are being unfairly sued and
being penalized only because they contributed to the anti-terrorism
effort in this country, then these lawsuits need to be stopped. And
that is exactly what our base text ensures. We defang frivolous
lawsuits that do nothing but line the pockets of trial lawyers.
What we need is broad-base litigation reform. What we do not need are
multibillion dollar defense contractors making American taxpayers
responsible for the quality of their technology. This would truly be a
case of corporate welfare. It is ironic that Members of the minority,
who routinely malign Republicans as the party of corporate America, are
so willing to subject taxpayers to a bottomless pit of unfunded
liability to protect these corporations.
Clearly, supporters of this amendment place a far greater weight on
the wishes of their trial lawyer friends than they do to the dangers
created for fiscal discipline and the American taxpayers. I ask that my
colleagues vote ``no'' on the Turner amendment.
Mr. TURNER. Mr. Chairman, I yield 2\1/2\ minutes to the gentlewoman
from California (Ms. Waters).
Ms. WATERS. Mr. Chairman, I thank the gentleman from Texas for
yielding me this time, and I rise in support of the Turner amendment.
This amendment provides a reasonable balance between the protections
needed by the liability insurance market and the access to compensation
needed by the public and certain industries, such as the airlines. The
Turner amendment uses language which has received strong support from
both sides of the aisle, language that was contained in the bill
reported by the Committee on Government Reform. It provides a sensible
alternative to the bill, and particularly to the Army amendment we just
debated.
H.R. 5005, the Homeland Security Act, only requires sellers to carry
liability insurance to the extent that it is reasonably available from
private sources at prices and terms that will not unreasonably distort
the sales prices of sellers' antiterrorism technologies. That simply
means that if a company cannot obtain insurance that is reasonably
priced, it does not need to have any insurance whatsoever and victims
cannot recover one penny for their injuries.
Amazingly, the Army amendment is even worse. It would give total
immunity from lawsuits for any kind of wrongdoing, including willful
and malicious corporate misconduct. This is true so long as the designs
for the antiterrorism products and services have been approved by the
Homeland Security Department. The only exception is if the seller acted
fraudulently or with willful misconduct prior to that approval. The
seller is free to deceive the public or continue to market a product
subsequently determined to be dangerous or defective.
Even worse, the Army amendment protects corporate wrongdoers against
all other kinds of lawsuits, so a buyer cannot sue the corporation for
breach of warranty, breach of contract, public nuisance, or anything
else. In other words, the corporation's protection allows it to make
products that do not even work. The Army amendment protects the
corporation against lawsuits by the injured victims and against
lawsuits by the airlines or other groups who purchase the product.
We do not need to be giving blanket immunity to all corporations. Too
many companies are acting in ways that are contrary to the public
interest, and too many of our constituents are suffering as a result.
We should not pass such a Draconian amendment. What we should do is
support the Turner amendment. This amendment maintains a cap on the
liability of corporations, recognizing the importance of doing so in
order to stabilize the liability insurance market. That stability makes
it easier for corporations to obtain capital to develop technologies.
The Turner amendment also includes an indemnity clause, such as the
one used by the Department of Defense. This will enable victims to
receive compensation from the government for costs that exceed the
corporate liability cap. This is a good, balanced approach to the real
problems we are facing as a Nation. Let us protect companies and
compensate victims. Support the Turner amendment.
Mr. ARMEY. Mr. Chairman, I am proud to yield 3 minutes to the
gentleman from Oklahoma (Mr. Watts), the distinguished conference
chairman and a member of the Select Committee on Homeland Security.
Mr. WATTS of Oklahoma. Mr. Chairman, I thank the chairman for
yielding me this time.
Mr. Chairman, the Turner amendment is fiscally irresponsible because
it hands over the keys of the United States Treasury to trial lawyers.
It would have the American taxpayer, not corporations, but American
taxpayers pay nearly infinite damages caused by terrorists. We need the
safety act provisions to ensure that Americans get the protections they
deserve against future terrorists.

{time} 1430

The fatally flawed tort system in America and the unbounded threat of
liability are blocking the deployment of anti-terrorism technologies
that can protect the American people. I want to give one illustration
of where this really comes into play and give Members some idea of the
lack of common sense that the Turner amendment would tear down.
The insidious dynamic that prevails under current law works as
follows: A company might produce a smallpox detection device and deploy
100 of them. Terrorists strike, and 99 of the devices might work saving
millions of lives. One device may not work and several thousand people
might die. Lawsuits will follow. The potentially infinite liability to
which the lawsuits currently expose the company will prevent the
company from being able to deploy any of the 100 smallpox detection
devices in the first place. The 99 that worked will be pulled off the
market which, if that happens, would put millions of Americans at risk.
It would expose them. That is the tragic consequence the SAFETY Act is
designed to protect.
The SAFETY Act provisions place reasonable and sensible limits on
lawsuits so America's leading technology companies will be able to
deploy solutions to defeat terrorists.
What the Turner amendment does, it actually takes the liability away
or takes the safety features away from the people that go to the malls,
that go to the stadiums, the water treatment facilities, they will not
be able to have access to these technologies that protect us, that
protect our families, that protects this Nation. It just makes no
sense.
It is time for Congress to stand up to the trial lawyers yet again
and say no, especially now that we are at war against terrorists who
will stop at nothing to harm innocent Americans. We saw it on September
11. We saw it on April 19, 1995, in Oklahoma City. This is about
protecting American life, it is not about limitless lawsuits. Vote
``no'' on the Turner amendment.
Mr. TURNER. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from South Carolina (Mr. Spratt), a distinguished member of the
Committee on Armed Services.
(Mr. SPRATT asked and was given permission to revise and extend his
remarks.)
Mr. SPRATT. Mr. Chairman, this amendment is very basic. What it does
is it takes blanket immunity which is added to this bill and replaces
it with selective indemnity. The bill as it stands would exonerate
contractors who provide all kinds of equipment, gear and protective
devices, undertaking the most serious sort of responsibility from any
liability whatsoever for the products they provide. Any. Just across
the board, blanket immunity.
Instead it would say let us go back to the model of an old law called
Public Law 85-804 and allow on a case-by-case basis, not a priori, but
case-by-case indemnification to be provided to these contractors so
they would have protection if they were sued in certain cases under
certain circumstances. It makes far more sense than to try and sit here
in judgment on all kinds of liability situations which we cannot even
begin to foresee, much less render final judgment on.
85-804 has been on the books for as long as anyone around here can
remember. Lockheed Aircraft Corporation almost went bankrupt in 1971.
It

[[Page H5833]]

was the authority of 85-804, the extraordinary authority of that law
that had been carried forward for at least 60 years that allowed us to
put Lockheed back on its feet. It is the largest contractor today.
That is basically what we are saying here today. Let us use the
extraordinary authority given agency heads which has been used
sparingly, to negotiate these agreements selectively case by case as
opposed to doing this across the board. What we are doing here with
this amendment is replacing something that is novel and new, untried
and vast, with something that has proven to work. It is that basic,
that simple, and that is why we should adopt this amendment.
Mr. ARMEY. Mr. Chairman, I yield 3 minutes to the gentlewoman from
Ohio (Ms. Pryce), a member of the Committee on Rules.
Ms. PRYCE of Ohio. Mr. Chairman, I thank the gentleman for yielding
me this time.
Mr. Chairman, we keep hearing reference to the word responsibility.
We must have responsibility, and the SAFETY Act, the provision included
in the en bloc amendment, the manager's amendment, makes the wrong-
doers responsible. This indemnification amendment makes the taxpayers
responsible. Responsibility is very important, but we cannot make the
taxpayers of this country responsible for everything that goes wrong.
We do not even know how much this will cost. Proponents did not even
ask for a cost estimate. All we know is that the Congressional Budget
Office tells us that it will cost a lot over a period of 5 years. We
should find out how much this will cost before we proceed by adopting
this amendment.
Mr. Chairman, the SAFETY Act does not provide immunity from lawsuits,
it simply provides that products approved by the Federal Government for
use in homeland security, and deployed in cooperation with customers
other than the Federal Government in order to save lives, should be
allowed the benefit of the existing government contractor defense. We
already know that this works. It is already in law.
Under these provisions, any person or entity who engages in criminal
or terrorist acts, including corporate crimes such as consumer fraud
and government contract fraud, they are denied the protections. They do
not get them.
The Democrats cannot have it both ways. The SAFETY Act that is in the
manager's amendment is the fastest and the most efficient way to deploy
anti-terrorism technologies, much-needed technologies that will save
lives, and it does it without extending any immunity and it does it
without leaving the American taxpayers holding the bag.
The Turner provision will do just that. It will leave the American
taxpayers holding the bag. We get that assignment all too often, Mr.
Chairman. Allow the reasonable insurance coverage to kick in, provide
for very limited tort reform, and we have the answer. We can go
forward.
Mr. TURNER. Mr. Chairman, I yield 1\3/4\ minutes to the gentleman
from Georgia (Mr. Bishop).
Mr. BISHOP. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, I rise in strong support of the Turner amendment, which
is a reasoned, bipartisan alternative to an irresponsible liability
provision in the bill. There currently exists a myriad of new and
undeployed technologies which are needed now to protect America from
the threat of nuclear, biological, chemical and other terrorist
threats.
However, under current law, many of the technologies may never be
deployed because they cannot be insured under our current legal
liability structure. Section 753 of the bill addresses this problem,
but it is extremely misguided and irresponsible. Under the bill,
victims who are injured cannot sue for personal injuries because the
corporate wrong-doer enjoys total immunity from lawsuits by any kind of
wrongdoing, including willful and malicious corporate misconduct under
the so-called government contractor defense.
Mr. Chairman, this is wrong. It is unAmerican. It is overkill. It is
throwing the baby out with the bath water. The Turner amendment is
narrowly tailored to address this issue. It allows the new Department
of Homeland Security and other agencies that are responsible for
homeland security the discretion to indemnify providers of anti-
terrorist technology from liability above and beyond the coverage that
they are able to obtain in the private marketplace. This approach is
modeled after successful indemnification laws which are targeted and
fiscally responsible.
Mr. Chairman, the Turner amendment gives America the technologies
that we need to remain secure while guaranteeing the victims' rights
that they deserve and are entitled to under the law. It is the right
thing to do, and I strongly urge Members to support it.
Mr. ARMEY. Mr. Chairman, I yield 1 minute to the gentleman from
Virginia (Mr. Tom Davis).
(Mr. TOM DAVIS of Virginia asked and was given permission to revise
and extend his remarks.)
Mr. TOM DAVIS of Virginia. Mr. Chairman, the concept of contractor
indemnification, which is core to the term, is not a new plan. It has
been around since the 1950s under Public Law 85-804. And so Members
understand, less than $100 million has been paid out over the course of
45 years because the discretion that the agencies have in exercising
that, and also because under this, it would also be subject to OMB
approval.
In order to get protection under either the Turner plan or the Armey
plan, the contractor has to acquire insurance to fully protect to the
extent the risk is not covered by insurance. And if supplier technology
engages in willful misconduct or displays a lack of good faith, neither
plan saves it. The solutions proposed differ, but I think each
represents a viable solution to the dilemma faced by the Nation.
Our committee liked the indemnification plan because it was written
into current law. The Armey plan, though, has been the policy of the
House as we have moved legislation forward. I thank the gentleman from
Texas (Mr. Turner) for working with us on this language in the
committee. I appreciate what the gentleman has done on this.
Mr. TURNER. Mr. Chairman, I yield 2 minutes to the gentleman from
Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, I just wanted to express my sympathies for my
distinguished friend, the gentleman from Virginia (Mr. Tom Davis),
whose amendment this was when we were in committee and in rules. Now
all of a sudden, something happened on the way to the floor. I just
express to the gentleman, maybe I can find out in the cloakroom what
happened that caused this sudden change of heart and the support of the
Turner amendment.
Here we go again. We have unprecedented corporate immunity in
subtitle F of the homeland security bill. I am going to tell the other
side of the aisle they were going to lose votes on final passage by
continuing to immunize these corporations against liability.
First it was the airport security group, and some of the lousiest
contractors in the business are now going to get immunized. Here we are
going to give companies corporate immunity that will not be able to be
penalized by injuries.
Mr. Chairman, what is this? This is not a tort liability bill. This
is a homeland security department that we are trying to create. All of
this foolishness is not doing the other side of the aisle any good.
Extending this product liability immunity to anti-terrorist products is
a bad idea, and I hope that we will reject this amendment; and, if
necessary, reject the whole bill.

{time} 1445

Mr. ARMEY. Mr. Chairman, I reserve the balance of my time.
Mr. TURNER. Mr. Chairman, I yield 2 minutes to the distinguished
gentlewoman from New York (Mrs. Maloney).
Mrs. MALONEY of New York. Mr. Chairman, I rise in support of the
Turner amendment.
The Turner amendment is narrowly targeted and fiscally responsible.
The Republican majority's immunity provisions in the bill are the
ultimate anti-corporate responsibility provisions and living proof that
the leadership is not serious about increasing corporate
accountability.

[[Page H5834]]

The Turner amendment addresses one of the challenges that we have
experienced in New York after September 11 where one of the biggest
problems we have is the lack of available insurance. It is stifling our
economy. Commerce cannot go forward without insurance, and I hope
Congress will act quickly on antiterrorism insurance.
Similarly, we have very talented private sector industries developing
cutting-edge technologies to make our homeland secure. But without
sufficient insurance coverage and liability, these technologies simply
will not be offered. And without a safety net for catastrophe,
businesses simply will not do antiterrorism business.
What this amendment does is that it indemnifies providers of
antiterrorism technology, which we desperately need, only after they
have obtained all the insurance that they can from the private market
and above that insurance they are indemnified for additional liability.
I might say that they must also get the approval of the Secretary of
Homeland Security and of OMB. So I urge my colleagues to support the
Turner amendment. It merely gives companies that will do business with
the new Department of Homeland Security the same protections, the same
indemnity protections to companies that work with other agencies like
the Department of Defense.
I urge my colleagues to vote in favor of the Turner amendment.
Mr. ARMEY. Mr. Chairman, it is my pleasure to yield 3 minutes to the
distinguished attorney and Member of this body, the gentleman from
Virginia (Mr. Goodlatte).
Mr. GOODLATTE. Mr. Chairman, I thank the leader for yielding me this
time, and I commend him for his very strong work in creating the
legislation that will allow homeland security to be consolidated in one
department of our government and also on his work to make sure that we
can effectively make sure that our country is indeed secure.
Mr. Chairman, I strongly oppose the amendment offered by the
gentleman from Texas. Advanced technology companies are developing
technologies that can help detect and prevent acts of terrorism.
However, these companies are effectively prohibited from making these
technologies widely available because they would be subjected to
unlimited liability and uninsurable risks.
As we sadly learned from the tragic events of September 11, our
terrorist enemies will not limit their attacks to government targets.
In choosing their targets, terrorists make no distinction between
military personnel and civilian men, women and children. Therefore, it
is imperative that our local shopping malls, ball fields, schools and
office buildings be protected from terrorist attack. One way to do that
is to untie the hands of technology companies and allow them to provide
the best technologies available to the private sector without fear that
they will be put out of business for doing so.
The provisions in the bill help ensure that effective antiterrorism
technologies that meet very stringent safety and effectiveness
requirements are deployed and requires that companies selling such
devices obtain the maximum amount of liability insurance possible. It
also ensures that victims are compensated for demonstrable injuries as
equitably as possible.
Opponents argue that the bill provisions provide for immunity to
corporations who willfully sell defective products. But they are simply
wrong. Nothing in these provisions provide immunity from lawsuits.
Further, any person or company who engages in criminal or terrorist
acts, including corporate crime such as consumer fraud and government
contract fraud, is denied the protections of the act. In addition,
under the act, if a company engages in any fraud or willful misconduct
in submitting information on product safety to the Secretary of
Homeland Security, it will be denied the opportunity to even assert the
government contractor defense.
I urge my colleagues to join me in supporting the current provisions
of the bill so that Americans may be protected by the best technologies
available without sticking American taxpayers with the bill in the case
of catastrophe caused by terrorists.
Oppose this amendment and support the legislation.
Mr. TURNER. Mr. Chairman, I yield 2 minutes to the distinguished
gentleman from Texas (Mr. Doggett), a distinguished member of the
Committee on Ways and Means.
Mr. DOGGETT. How very disappointing this afternoon that the
leadership has chosen to reject a successful bipartisan initiative by
the gentleman from Texas (Mr. Turner) and the gentleman from
Pennsylvania (Mr. Weldon) that has already been endorsed by a number of
major corporations. It seems to me that public safety should be the
first, the last, and the only goal of this Homeland Security bill. Yet
with this last-minute legal loophole that has been tacked onto the
bill, the goal is clearly to rid corporations of responsibility for the
harm their products cause.
If the wrongdoer does not bear the responsibility, then who will bear
the responsibility? Well, the decision the gentleman from Texas (Mr.
Armey) has made is to place all of the responsibility for wrongdoing on
the victim. This is basically a ``blame the victim,'' ``let-the-victim-
bear-the-full-cost-of-the-wrongdoer'' approach. And the timing is so
strange not only the last-minute way in which it was slipped in after
the Committee on Government Reform approved the bipartisan, moderate
approach, but strange timing that in a year when so many retirees, so
many workers, so many investors are paying the very painful cost of
corporate irresponsibility, that this Congress would say, ``let us have
a little more unaccountability.''
The Reserve Officers Association, certainly no group that has been
involved in any of these high-profile debates over tort issues, has
stated its unqualified opposition to the special exemption that this
legislation provides, noting that even unscrupulous government
contractors guilty of willful misconduct will be let off the hook when
they provide anti-terrorism technology to our American troops.
This is not a debate about liability limits. It is a debate about
corporate accountability limits, a debate about corporate
responsibility limits. And I do not think we ought to limit that
responsibility, particularly at this time in American history. Clearly,
there are no limits to the willingness of this leadership to provide
backdoor favors to their friends. Protecting Americans working at home
and fighting abroad means holding corporations responsible for their
misdeeds. That is what we need to do, instead of blaming the victim,
instead of saying that it will be the soldiers, the fathers, the
mothers, the children and other innocents, all the victims, that must
pay the price for corporate misconduct. We need to make a firm
statement in favor of a reasonable, bipartisan approach that the
gentleman from Texas (Mr. Turner) advances.
Mr. TURNER. Mr. Chairman, I yield 1\1/4\ minutes to the gentleman
from California (Mr. Schiff).
Mr. SCHIFF. Mr. Chairman, I rise in support of this amendment. Today,
our Nation faces a new threat and a new enemy. And while the terrorists
we fight have new ways of attack, we have much greater new abilities to
defend this great Nation.
America has always been the arsenal of democracy, and we remain so.
And the new tools we possess are the technologies that spring from the
ingenuity of the American mind. We have seen those technologies
deployed in the Gulf War, in Afghanistan, and now those new
technologies help protect us here at home.
In order to encourage the private sector to use its ingenuity to
develop these defensive capabilities, they must have the ability to
protect themselves from excessive exposure and liability. There is a
mechanism in existing law that provides indemnity on a case-by-case
basis for those under contract with the Department of Defense. And as
demonstrated by the extraordinary work of the Department of Defense,
this targeted immunity works.
The Turner amendment, based on a bipartisan agreement attested to by
those who have contracted with the Department of Defense, restores this
targeted indemnity. The opposition says that what has worked for the
Department of Defense is not enough. They want blanket indemnity. They
want an indemnity so broad it threatens to remove some of the vital and
powerful incentives for technology

[[Page H5835]]

makers to make sure they get it right. This goes too far.
We want to incentivize the development of new technologies that work,
that meet their promise, that live up to their expectation, that
protect this country and all who serve it. The Turner amendment will do
this. Nothing more and nothing less.
Mr. TURNER. Mr. Chairman, I yield 1 minute to the gentlewoman from
Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise to support the Turner
amendment, and I ask a question today on this very important debate:
Are we fighting terrorism, or are we fighting the American people?
Nothing in the Turner amendment will thwart the intent of the
Department of Homeland Security to save lives and to prevent terrorism.
The Turner amendment will, in effect, encourage innovative devices
and technology to be presented to the government. It will not, on the
other hand, provide the corporate escape that the manager's amendment
gives to this particular bill by inserting immunity provisions in the
bill for Corporations that have technology that might harm us if it
fails. What the Turner amendment does is say use your innovative
devices, use your innovative technology and we will indentify you, with
restrictions. Those restrictions will be the Secretary of the
Department of Homeland Security and the OMB Director. What more can you
ask for? Are we here to save lives? Are we here to help the American
people? Are we here to fight terrorism? Or are we here to stuff money
into corporate America's pocketbook?
Support the Turner amendment.
Mr. TURNER. Mr. Chairman, I yield myself the balance of my time.
I want to thank, first, the gentleman from Virginia (Mr. Tom Davis)
for his efforts with me in crafting this language. We both worked with
Lockheed Martin, Northrop Grumman, and the Information Technology
Association to come forward with this language that we reported out of
the Committee on Government Reform unanimously without opposition. The
gentleman from Virginia and I brought the amendment to the attention of
the Committee on Rules. And I am very grateful we had the opportunity,
Mr. Leader, to offer the amendment.
I must say that it is somewhat surprising to hear the criticism from
the other side today of what is existing law. The Department of Defense
grants indemnity to companies that launch missiles because of the
concern of those corporations about business risk. I was quite
surprised to hear the provision criticized, because it has been in the
law since 1958 and was first implemented by President Eisenhower and
most recently used by President Bush when he authorized the Department
of Health and Human Services to indemnify the manufacturers of Cipro
who would not provide that to our government unless we did so.
Our amendment follows existing law, existing practice and, most
importantly, does not take anyone's legal rights away from them. I
would urge the House to join with us in supporting this bipartisan
amendment. Twenty Democrats and 21 Republicans wrote a letter to the
special panel asking them to include our language in the bill. We enjoy
bipartisan support. We believe it is the right way to deal with a very
serious problem. And we will be able, under our amendment, to get the
technology out there and in place much quicker than the approach that
is in the bill which requires an FDA-type review process for every
piece of equipment and will take years to implement the technology we
need to fight terrorism.
Mr. ARMEY. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, we have heard a great deal about the bipartisan support
of this amendment. Irony of ironies, where there is bipartisan support
there can be bipartisan rejection.
Let me say, Mr. Chairman, this amendment had an interesting
experience in the committee of jurisdiction, one of the 12 standing
committees that worked on this bill. When it was proposed on the eve of
the night markup of this bill in that committee, it was opposed by the
ranking Democrat on the committee, the gentleman from California (Mr.
Waxman), who said, and I quote, ``It really is opening up the Treasury
of the United States to a lot of companies that might have exercised
due care. And, more importantly, when companies are indemnified, even
if they are negligent, there is not the incentive to avoid being
negligent.''

{time} 1500

This approach to the problem was contemplated in the other body and,
indeed, in this case the ranking minority member, a Republican member
in the other body, intended to offer this amendment in the other body's
markup just yesterday and was dissuaded from doing so by the majority
members, the Democrats of the committee, who thought it imposed too big
a burden on the Treasury of the United States.
Mr. Chairman, I am not a lawyer, so I have to rely on other legal
experts like, for example, the Supreme Court. In this debate it has
been argued that when a government contractor has a defense, it is an
immunity. I only point out to the minority that the Supreme Court has
said a defense is not an immunity. Always going back to the legal
questions that baffle us so such as what the meaning of the word ``is''
is, but in this case the meaning of the word ``defense'' is not
immunity.
Let me say, Mr. Chairman, that what we are trying to do was well
described by several people. We are trying to encourage that practical
American genius to bring its product to the defense of America. What
this base language that would be set aside by this amendment does do is
provide a consolidation of claims in Federal court to stop venue-
shopping. It has a requirement that noneconomic damages be awarded only
in proportion to a party's percentage of fault. It has a ban on
punitive damage. It takes a sort of simple practical American notion
that if someone is a victim, they should not be treated as if they were
a perpetrator. A rather novel idea, I am sure, in some circles but
quite well understood by most Americans.
The underlying language says offsets are awarded based on receipt of
collateral source benefits providing compensation for the same
injuries; no double-dipping. This is something that I have in other
contexts referred to as the Daschle provision, having been enacted in
law pursuant to the innovation of the distinguished Democrat majority
leader in the other body. The underlying language has a defense modeled
on government's contractor defense that applies following sales of
qualified antiterrorism technologies in the private sector, and it caps
liability and insurance.
This has been enacted in this body before. This is not some Johnny-
come-lately notion new to this body. It was part of the Aviation
Security Act. It was part of the Air Stabilization Act. It was part of
the Terrorism Risk Insurance bill, and it part of the Class Action
Reform bill passed in this body in this year.
What we do not do in the underlying language that would be set aside
by this amendment is put a cap on attorneys' fees, provide any immunity
for anybody anywhere at any time, or exempt criminals from coverage.
Mr. Chairman, I do not ask much, but I do ask for accuracy in debate.
There has been far too little of it. I ask the body to reject this
amendment and uphold the underlying language.
Mr. RODRIGUEZ. Mr. Chairman, I fully support the amendment offered by
the Gentleman from Texas [Mr. Turner]. This amendment balances the need
to encourage responsible development of new homeland defense
technologies and products with the need to maintain a system that holds
wrongdoers responsible for their misconduct.
His amendment would allow under appropriate circumstances the
Secretary of Homeland Security to provide indemnification to the
manufacturers of anti-terrorism products, much like the Secretary of
Defense today can provide indemnification to companies making products
critical to our national defense.
Under this approach, any victims of product failure would still be
able to receive full compensation. They would not be left to suffer
alone.
Companies do not get a free ride: they must take out the maximum
level of insurance possible, and they can get the indemnity coverage
only after they convince the Department of Homeland Security and the
White House's Office of Management and Budget that they qualify for
indemnification.

[[Page H5836]]

At the same time, the many companies which make the products and
develop the technologies we need also won't be asked to take inordinate
risks. The Turner Amendment would provide them the incentives to invest
aggressively in homeland defense technologies without upsetting the
entire system of checks and balances within our civil justice system.
Just earlier this week, we celebrated the passage of legislation to
hold corporate executives accountable for misconduct. Shockingly, the
majority now tries to exempt those same companies from any
responsibility for the products they make.
Mrs. MEEK of Florida. Mr. Chairman, I rise in strong support of the
Turner Amendment that seeks to add back the indemnification provisions
that the Government Reform Committee had recommended for inclusion in
the bill. The Turner Amendment does not require any indemnification by
the Federal government. It simply permits such indemnification when the
head of a Federal agency and the head of the new Office of Homeland
Security deem it in the public interest to do so.
The blanket corporate immunity in Subtitle F of the bill is not in
the public interest. Our goal is to achieve homeland security, not
reflexively broaden corporate protection from negligence.
The Turner Amendment is a very responsible, narrow and targeted means
to deal with this problem. It would allow Federal agencies to indemnity
contractors for anti-terrorist technology after they've purchased as
much private insurance as they can get. The Secretary of Homeland
Security could also indemnify contractors on behalf of state and local
governments on the same terms.
There are high-tech companies across the country that are developing
cutting-edge technology to help prevent terrorist attacks. But in some
cases, they can't sell them because they can't get enough insurance.
The risks of liability from a major terrorist attack are so great that
insurance companies can't afford to insure these products. So let's
help high-tech companies by offering them indemnification where the
private insurance market is unable or unwilling to insure them in those
limited, special circumstances where the head of a federal agency deems
it in the best interests of the government to provide such
indemnification.
Support the Turner Amendment.
The CHAIRMAN pro tempore (Mr. Hastings of Washington). The question
is on the amendment offered by the gentleman from Texas (Mr. Turner).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.

Recorded Vote

Mr. TURNER. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII,
following this 15-minute vote, the Chair will reduce to 5 minutes the
time for the vote, if ordered, on: Amendment No. 20 by the gentleman
from California (Mr. Waxman), and amendment No. 21 by the gentleman
from Texas (Mr. Armey).
This will be a 15-minute vote followed by two 5-minute votes.
The vote was taken by electronic device, and there were--ayes 214,
noes 215, not voting 5, as follows:

[Roll No. 359]

AYES--214

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Boyd
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Cramer
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Dooley
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gilman
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Harman
Hastings (FL)
Hill
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Horn
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Lucas (KY)
Luther
Lynch
Maloney (CT)
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Morella
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Stenholm
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Weldon (PA)
Wexler
Woolsey
Wu
Wynn

NOES--215

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bono
Boozman
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Cooksey
Cox
Crane
Crenshaw
Cubin
Culberson
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gillmor
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Hart
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hilleary
Hobson
Hoekstra
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (OK)
Manzullo
McCrery
McHugh
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tauzin
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--5

Blunt
Combest
Cunningham
Gilchrest
Meehan

{time} 1537

Messrs. GALLEGLY, HERGER, TOOMEY, HEFLEY, PETERSON of Pennsylvania,
GUTKNECHT, HUNTER, ROHRABACHER, EHRLICH, and GRAHAM, Mrs. BONO, and
Mrs. JO ANN DAVIS of Virginia changed their vote from ``aye'' to
``no.''
Messrs. BERRY, DINGELL, and DELAHUNT changed their vote from ``no''
to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (Mr. Hastings of Washington). Pursuant to
clause 6 of rule XVIII, the Chair announces that he will reduce to a
minimum of 5 minutes the period of time within which a vote by
electronic device will be taken on each amendment on which the Chair
has postponed further proceedings.

Sequential Votes Postponed in the Committee of the Whole

The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII,
proceedings will now resume on those amendments on which further
proceedings were postponed in the following order: amendment No. 20
offered by the gentleman from California (Mr. Waxman); amendment No. 21
offered by

[[Page H5837]]

the gentleman from Texas (Mr. Armey).
The Chair will reduce to 5 minutes the time for any remaining vote in
this series.

Amendment No. 20 Offered by Mr. Waxman

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from California
(Mr. Waxman) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 208,
noes 220, not voting 5, as follows:

[Roll No. 360]

AYES--208

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Boyd
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Cramer
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Dooley
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Harman
Hastings (FL)
Hill
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (CT)
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Morella
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--220

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bono
Boozman
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Cooksey
Cox
Crane
Crenshaw
Cubin
Culberson
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
McCrery
McHugh
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tauzin
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--5

Blunt
Combest
Cunningham
Gilchrest
Meehan

{time} 1549

Mr. CANNON changed his vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 21 Offered by Mr. Armey

The CHAIRMAN pro tempore (Mr. Hastings of Washington). The pending
business is the demand for a recorded vote on the amendment offered by
the gentleman from Texas (Mr. Armey) on which further proceedings were
postponed and on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 222,
noes 204, not voting 7, as follows:

[Roll No. 361]

AYES--222

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Biggert
Bilirakis
Boehlert
Boehner
Bonilla
Bono
Boozman
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Cooksey
Cox
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Dooley
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Fossella
Gallegly
Ganske
Gekas
Gibbons
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Harman
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hilleary
Hobson
Hoekstra
Honda
Horn
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Jenkins
Johnson (CT)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
McCrery
McHugh
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Morella
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Pastor
Paul
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tauzin
Taylor (NC)
Terry
Thomas

[[Page H5838]]

Thornberry
Thune
Tiahrt
Tiberi
Toomey
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOES--204

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Berry
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Boyd
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Cramer
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Hastings (FL)
Hill
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (CT)
Maloney (NY)
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Payne
Pelosi
Peterson (MN)
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Shows
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOT VOTING--7

Blunt
Combest
Frelinghuysen
Gilchrest
Istook
Meehan
Wicker

{time} 1558

So the amendment was agreed to.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore. It is now in order to consider amendment
No. 23 printed in House Report 107-615.

Amendment No. 23 Offered by Mr. Oberstar

Mr. OBERSTAR. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 23 offered by Mr. Oberstar:
Strike section 409 of the bill.
Redesignate section 410 of the bill as section 409.
Conform the table of contents of the bill accordingly.
The CHAIRMAN pro tempore. Pursuant to House Resolution 502, the
gentleman from Minnesota (Mr. Oberstar) and a Member opposed each will
control 22\1/2\ minutes.
The Chair recognizes the gentleman from Minnesota (Mr. Oberstar).

{time} 1600

Mr. OBERSTAR. Mr. Chairman, I yield myself 3 minutes.
Mr. Chairman, all of the amendments we debated last night and so far
today have had important consequences for the future of the country,
for the operation of the Department of Homeland Security, for various
aspects of our domestic life.
The one I propose at this point is quite possibly the only life or
death vote we will consider in this legislation. Because whether or not
explosive detection systems are installed at airports and whether or
not complete screening of checked luggage is accomplished at the
Nation's domestic airports will determine whether a terrorist can get a
bomb aboard an aircraft and blow it out of the sky, as happened with
Pan Am 103 over Lockerbee, Scotland. Make no mistake about it, there
are serious consequences, life or death consequences for what we do in
this piece of the legislation.
Previously, on the en bloc amendment of the majority leader, I said I
cannot understand why anyone would want to protect the security company
providers from liability. In this amendment, in this the provision of
the committee bill, I can understand why Members are confused and why
there was an attempt to extend the deadline for compliance with the law
that we enacted a year ago, 8 months ago in this body, 410 to 9.
I understand that airport authorities have badgered Members of this
body. Airlines have lobbied many Members of this body to extend the
time for compliance with that law. They are wrong.
The law provides alternative means if we cannot get explosive
detection systems in place by December 31. The law specifically
provides for alternative means of screening checked luggage. There is
no excuse for removing the pressure upon the Transportation Security
Administration to comply with that law that virtually everyone in this
body, everyone seated on this floor voted for. Why would we vote for
airline security, tough airline stick measures and then turn around and
undo it? Do not do it.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN pro tempore (Mr. Hastings of Washington). For what
purpose does the gentleman from Ohio (Mr. Portman) rise?
Mr. PORTMAN. Mr. Chairman, I rise to claim the time in opposition to
the amendment.
The CHAIRMAN pro tempore. The gentleman from Ohio (Mr. Portman) is
recognized for 22\1/2\ minutes.
Mr. PORTMAN. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman
from Texas (Mr. Barton).
(Mr. BARTON of Texas asked and was given permission to revise and
extend his remarks.)
Mr. BARTON of Texas. Mr. Chairman, I thank the gentleman for yielding
me the time.
Mr. Chairman, let us set one thing straight. Nobody that opposes the
amendment to strike the language that is before us at this point in
time is trying to take the pressure off of any airport to not implement
tough baggage screening processes. The point of the fact is the major
hub airports simply cannot meet it.
I have Dallas/Ft. Worth Airport in my congressional district. Over
100,000 people go through that airport every day. Fifty-five thousand
bags are checked every day. DFW and their management team have been
working with TSA since the law was passed. TSA has yet to give them a
definite answer on their solution. There is a backlog of equipment that
cannot be put in place. If we have to meet the deadline, do my
colleagues know what DFW is going to do, they are going to have to hire
1,500 temporary employees. They are going to have to put up folding
tables. They are going to have check by hand almost every bag that
comes in to be checked.
That is going to be long lines. It is going to cost $142 million just
at DFW, and they are still going to have to come in with a permanent
solution within the next year that is going to cost another $150- to
$170 million.
Why not give them a little extra time? They still have to be working
on the solution. They still have to try to get it done, but if they do
not, there are not going to be any penalties imposed. There are not
enough equipment manufacturers to meet the sophisticated equipment for
the larger hub airports that have to be in place if we literally tried
to get it all done by December 31.
Let me give my colleagues an example. As of today, of the 429
airports that are subject to the existing law, only 24, one out of
five, 5 percent have had a complete TSA inspection and had the sign-off
on the plan. There are another 129 airports that have had some
negotiations, some contacts with TSA. That means that 64 percent of the
Nation's airports that TSA has not even come to the airport yet, and we
want them to meet this arbitrary deadline by December 31? It is
physically impossible and philosophically unnecessary.
Vote against the Oberstar amendment.
Mr. OBERSTAR. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from New Jersey (Mr.

[[Page H5839]]

Menendez), a member of our committee.
Mr. MENENDEZ. Mr. Chairman, I represent Newark International Airport
where United Airlines Flight 93 departed before crashing in
Pennsylvania on September 11. I also represent the families of over a
hundred victims who lost their lives in the attack on the World Trade
Center. I have consoled enough families who were the victims of
terrorist attacks, and I do not want there to be a reason to console
anymore.
I ask my colleagues, if God forbid, a plane is blown up by a device
that could have been prevented by the deployment of these bomb
detection devices, explosive detection devices, had TSA met its
requirements or had we kept TSA's feet to the fire, who among us wants
to go and console those families? Who among us wants to go and tell
them that we delayed? Who among us wants to say that in expectation of
some new technology that has not been approved yet, that we waited? I
do not and I do not know anybody here who does, and that is why in the
first round in our Select Committee on Homeland Security, my amendment
was approved striking this language.
The Congress charged the Transportation Security Administration with
the responsibility, not the airports, TSA, to determine whether or not
an extension is needed. It is the responsibility of TSA, and neither
the TSA nor the administration nor the Secretary of Transportation nor
the Committee on Transportation and Infrastructure has asked for such
an extension. As a matter of fact, the Committee on Transportation and
Infrastructure in a unanimous, bipartisan vote said this should not be
in the bill.
The December 31 deadline that we imposed was in the Act that passed
this House 410 to 9, and the deadline was necessary to ensure the
security of our aviation system. As a matter of fact, Members on both
sides of the aisle got up on this floor and criticized the other body's
bill because it did not have the deadlines, and now, there are those
who would seek to erase that.
Look, if an airport like mine, one of the largest in the Nation,
cannot meet the deadline, there are alternatives under the existing
law, and for those airlines who say that those alternatives will cause
delay, I will have them know that the Republican bill, the text bill,
still insists on those alternatives even if they get the year
extension. So they get the year extension for the explosive detection
devices, they still have to implement alternatives, the alternatives
that the airline and the industry are saying are going to cause them
delays. Nothing changes. Nothing changes.
What do we say to the traveling public and to those who would wish us
ill? We are going to give them another year, and I would venture to say
that it is not only another year. If we look at what section 409 says,
it extends in my mind the deadline indefinitely because it says they
must develop a plan for the modifications, and the deadline for
executing the plan for that modification is a year from this December,
but nowhere in the bill, nowhere in the bill does it set a deadline for
deployment of the explosive detection systems. That is a travesty, and
it does not ensure the traveling public, and it certainly does not
belong in this bill.
That is why my colleagues should vote for the Oberstar amendment.
Mr. PORTMAN. Mr. Chairman, I yield 2\1/4\ minutes to the
distinguished gentleman from Arizona (Mr. Pastor).
(Mr. PASTOR asked and was given permission to revise and extend his
remarks.)
Mr. PASTOR. Mr. Chairman, I find myself in a very awkward situation,
because I think this is the only time that I have been in opposition to
my two friends from the Democratic Caucus. The gentleman from New
Jersey (Mr. Menendez) and I are good friends, and I have always
followed the lead of the gentleman from Minnesota (Mr. Oberstar), but
do I want people to be less secure as they get on a plane? The answer
is no. I fly twice a week so obviously there is a self-interest to make
sure that the baggage is examined and it is safe.
Did I vote for this bill? Yes, I did. At the time I thought it was
needed and the deadline was there. I am a member of the Committee on
Appropriations Subcommittee on Transportation, and since I voted for
this bill and to date, I have been involved in a number of briefings,
and also three hearings that involve the TSA, and I have to tell my
colleagues that after listening to the testimony and reading the
evidence presented to me, that I have come to the conclusion that the
airports need an extension, not because they have pressured me, but
because I think it is the right thing to do.
If we talk about the equipment, and there is a various mix of
equipment, but if we talk about the detector, it is about as big as an
SUV, and it costs about $1 million, and I have been told at least in
the evidence I have seen that probably it works for one out of three
baggage. So at 30 percent, it is effective. I feel that if there is the
case, then possibly this technology may not be the proper one, but then
if my colleagues persuade me, say Ed, you know we need it and we cannot
delay, let us order more of these machines, well, then, I would tell my
colleagues that at least the evidence I have seen and testimony I have
heard, the machines are going to take a long time to put in operation.
In fact, the operator is not going to have enough equipment to install,
and so in installing this equipment, it is going to take hundreds of
millions of dollars for the airports to install them.
I would say let us take three deep breaths and let us make a decision
that would allow the airports to take reasonable time to make sure that
they are safe and secure with our luggage.
Mr. OBERSTAR. Mr. Chairman, I yield myself 5 seconds to point out to
the gentleman from Arizona, whom I have great respect and affection,
that the explosive detection system is certified to detect explosives
in all checked luggage. The question is the throughput rate. If we have
a high throughput rate, we may have a higher number of false positives
but it works. It is certified by the FAA and the TSA.
Mr. Chairman, I yield 2 minutes to the gentleman from New Jersey (Mr.
Pascrell), a distinguished member of our committee.
Mr. PASCRELL. Mr. Chairman, I rise in strong support of the Oberstar-
Menendez amendment to strike the extension for airline baggage
screening.

{time} 1615

It is no secret that there have been serious problems at the
Transportation Security Administration with fund shortfalls and
organizational issues causing troubles. However, extending the
deadlines in this manner is not the way to go about securing our
homeland. No Federal agency has asked for delay. The administration has
not asked for delay. Do not allow the hope of newer yet nonexistent
technologies into the work of the TSA. We cannot and we should not
allow the TSA to slow their efforts toward implementing a program of
100 percent explosive screening at all commercial airports by year's
end.
The DOT Inspector General, who is always brutally honest when
reporting to Congress, told the Subcommittee on Aviation just this past
Tuesday that ``we will be in a much better position in a month to judge
what is or is not feasible to accomplish by the deadlines.'' One month
to 45 days to be exact, according to the IG. Now is not the appropriate
time to delay. The Congress should not be undermining a law that the
House passed 410 to 9.
This is important for the security of everybody in this room here on
the floor and up in the gallery. Tell them, tell America what is going
on here. The airlines are suffering economic damage, and yet we do not
want to help people get back on the airlines so that they feel more
secure. It does not make sense. There is not one Federal agency that
supports a delay. All we are doing is bailing out an organization and
organizations that for 20 years have been told they had better secure
the baggage.
Until I came to the Congress, Mr. Chairman, I thought every piece of
baggage was checked. Boy, was I sadly wrong. We should not go
backwards. We need to go forwards so we put our actions where our mouth
is.
Mr. PORTMAN. Mr. Chairman, I yield 4 minutes to the gentlewoman from
Texas (Ms. Granger), a member of the Committee on Appropriations,
Subcommittee on Transportation.
Ms. GRANGER. Mr. Chairman, this Congress set December 31 as the
deadline for screening checked baggage for

[[Page H5840]]

explosives, and 75 percent of our airports will make that deadline, but
for the other 25 percent, we have a train wreck coming. It is a crisis
and it is a crisis of our own making because the deadline cannot be
met. And let us understand why.
First of all, let us talk about equipment, the baggage screening
systems that will be used. As of this month, only 488 machines are
being used at 59 airports nationwide. That leaves 6,600 machines that
have to be bought, installed, and tested for accuracy by December 31.
Can that be done? How well have we done so far? The Transportation
Security Administration has been buying, installing, and testing one
machine every 48 hours, and perhaps that is okay except TSA will have
to go from one every 48 hours to one every 35 minutes to meet the
December 31 deadline. That is assuming the machines can even be
manufactured and ready, 6,600 in the next 5 months.
And let us now go to personnel. We had a big debate over Federal
baggage screeners, and upon our instructions TSA began hiring. Thus
far, TSA has hired 166 Federal baggage screeners at the rate of one
every other day. To meet the requirement and demand for a December
deadline, TSA has to recruit, hire, and train another 21,434 baggage
screeners in the next 159 days. That means not one every other day but
one every 11 minutes.
But it gets worse because if you add the 30,525 passenger screeners
still needed to be hired, TSA will have to speed up to one new screener
every 4\1/2\ seconds.
Equipment, personnel, but I think you are seeing the problem. Let us
talk about one other problem that would be out there if we could
recruit and train those people and hire them every 4\1/2\ seconds and
install the equipment every 35 minutes. All airports are not alike and
you know it and I know it. In fact, they are greatly different in
design and configuration. But we set very specific instructions as to
how each airport would accommodate those SUV-sized machines if they
were alike. So if it were possible to get them and man them in the next
5 months, we would have to reconfigure one out of every four of our
major airports in the country. I am talking about moving walls,
reconfiguring floors, major renovations. In one airport alone we are
talking $200 million in construction in 5 months, construction
completed. It just cannot be done.
And last but not least, there is the work of the Transportation
Security Administration that has to approve every plan, visit every
airport, and report to Congress on what we have demanded. How is this
working? I will tell my colleagues, the airport I fly in and out of,
they submitted their plan in March telling TSA exactly what they had to
do to meet the December deadline, March, and it has not been approved
to this day. Others have not even started because TSA has not told them
what kind or how many machines are even needed.
Is there a solution? Yes, there is a solution, a solution that gives
TSA a deadline, gives a deadline to airports, demands reporting to
Congress, and also it is, by the way, our original date. What if we do
not do this? What if we do not fix it today? We will spend millions of
dollars unnecessarily, we will allow airlines to use a less than ideal
solution, we will hire thousands of people who will be dismissed when
their interim machines are scrapped, and we will force 3 and 4-hour
waits at every major airport in this Nation at one of the most heavily-
used times in the year, December. And that is a security problem that I
do not want to face. That is not what I want to be a part of.
So let us do the right thing today. Let us quit posturing. Let us do
something that is reasonable and responsible.
And, by the way, in the time we have debated this, we have missed by
four people and one machine.
Mr. OBERSTAR. Mr. Chairman, I yield myself 10 seconds.
If this is war, as the President has repeatedly said, then I am
astonished by the repetition of the cannot-do attitude that I have been
hearing so far. At the outset of World War II, we took on a million men
in one year.
Mr. Chairman, I yield 2 minutes to the distinguished gentleman from
Oregon (Mr. DeFazio), fearless champion of aviation security.
Mr. DeFAZIO. Mr. Chairman, I thank the gentleman for yielding me this
time.
Fourteen years ago, Pan Am 103 was blown from the ski over Scotland.
In response the British Government screened every piece of baggage. And
we are told we cannot do it here. Guess where they bought the
technology? Right here in the United States of America. Every machine
that I observed over there was manufactured in this country, but we
cannot do it in the United States. Why not? Because special interests
are holding us back and because of the incompetence of this
administration.
Ten years ago, Ramsi Youssef developed a plan to blow 12 747s
simultaneously from the sky, U.S. planes, over the Pacific. He was only
discovered and thwarted by accident. They will return to these
patterns. This is a known threat.
How quickly we have forgotten September 11 in this body. How quickly
we bow to the powerful special interests and campaign contributors. We
can meet this deadline.
Now, last week the Bush administration fired the head of the
Transportation Security Administration for incompetence. Thank God he
is gone. He was doing a horrible job. Now we have a man in charge who
knows how to get things done, Admiral Loy. Let him come to us with a
plan in September. I know he can get this job done. We have someone in
charge.
Then they say, well, there is not enough money. Guess what? The night
before the money was voted on, the Office of Management and Budget, the
head of whom is appointed by the President of the United States, and
works, I think, pretty closely with the President and the White House,
recommended cutting $219 million from this program to detect explosives
to make Americans safe, and now the Republicans say there is not enough
money.
Does the right hand of the administration know what the left hand is
doing? Until a week ago, there was not one person in the administration
that said they could not meet these deadlines. Then they fired the
incompetent head of the agency, and we have a competent head now. What
changed in a week? Politics changed. Special interests changed.
Shame on you. If you do not support this amendment when a plane goes
down, I will expect you to talk to the grieving families.
Mr. PORTMAN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, as a member of the Select Committee, I heard a lot of
this discussion, and I just wanted to make a comment on some of the
comments we have had on the floor. Not referring to the gentleman from
Minnesota (Mr. Oberstar), but a lot of raising of voices and yelling is
not going to get the job done.
We all share the same goal, and that is that the flying public be
safer. My own airport, the Greater Cincinnati Airport, says they cannot
meet the deadline, even though they are pushing hard.
Mr. DeFAZIO. Will the gentleman yield?
Mr. PORTMAN. No, I will not.
Mr. DeFAZIO. Well, since the gentleman referred to me, will the
gentleman yield?
Mr. PORTMAN. Mr. Chairman?
The CHAIRMAN. The gentleman from Ohio controls the time.
Mr. DeFAZIO. The gentleman will not yield, clearly.
Mr. PORTMAN. Mr. Chairman, more raising of voices and more yelling is
not going to solve this problem. What is going to solve the problem is
putting together a plan to get it done.
Mr. DeFAZIO. Will the gentleman yield on that?
The CHAIRMAN. The gentleman from Ohio controls the time.
Mr. DeFAZIO. So he does not want to discuss the issue, he just wants
to cast aspersions.
The CHAIRMAN. The gentleman from Ohio controls the time.
Mr. PORTMAN. As has been stated earlier in the debate, three-quarters
of our airports can probably meet the deadline. They will push hard and
they will make it. For those who cannot make it, the question is will
the flying public be safer if we force this deadline or will the flying
public be safer if we

[[Page H5841]]

give them a plan where they have to meet the deadline over a specified
period, which is 1 year.
Incidentally, it is the same date that passed this House by an
overwhelming bipartisan vote, December 31, 2002. I do not know how the
gentleman voted who is now walking off the floor, but that was the vote
in this House.
The DOT Inspector General Ken Mead has recently told us, and this is
a quote from him, and this is the Department of Transportation
Inspector General, ``The challenge facing TSA in meeting the December
31 deadline of this year is unprecedented. An effort of this magnitude
has never been executed in any single country or group of countries.''
That is what we have heard from the gentlewoman from Texas (Ms.
Granger) and others. Most of the airports are going to meet it, but
those who cannot, we need to be sure they have a plan to meet it so
that the flying public is safer.
Now, if we force machines into these airports that do not work as
well as machines that would be able to be in place within this plan,
within the 1-year extension, is the flying public safer? I do not think
so. More important is that we get it right than do it in haste.
Mr. Chairman, I yield 2 minutes to the gentleman from Georgia (Mr.
Isakson), who has spent a lot of time on this issue.
Mr. ISAKSON. Mr. Chairman, I thank the gentleman for yielding me this
time, and I certainly thank the gentlewoman from Texas (Ms. Granger)
for her leadership.
I have great respect for the gentleman from Minnesota (Mr. Oberstar),
and I accept the fact that he is confused. We do confusing things
sometimes. But facts are stubborn things. Two hundred eighty-six of us
voted in favor when TSA left this House of a 2003 deadline. Because at
that time, as it came out of our committee, we made the judgment that
we thought that was the right date. Now, 139 did not vote for it, but
the fact is that was originally the House position.
Fact number two. We created TSA and the deadline on the same day when
we finally finished the conference report. We created an agency with a
deadline before the due diligence had been done to see what we could
do. It is only reasonable to assume that once the due diligence is
done, and facts are learned, then maybe some adjustments are made.
Now, the third fact, and this refers to a statement made by the
gentleman from Oregon, I take every vote I take very seriously. It did
not miss me, the inference the gentleman made with regard to the
responsibilities of this vote. If I thought our vote would cost a
single American their life, of course, I would never vote that way, and
neither would anybody else in this House.
This is about us doing the right thing. This is not about us being
irresponsible. This is about the most important thing the U.S. economy
could have: Our aviation industry. I visited my airport. I serve on the
Subcommittee on Aviation. I have done my due diligence. If TSA needs
the opportunity to adjust that timetable to allow the right
installation to be done on a timely basis, they should have that
authority.
Facts are stubborn things. We are all responsible for our votes. We
are all responsible for what we do. On November 1 we responsibly
thought 2003 was the right date. Due diligence has told us that
probably is correct. But we do not just accept it, we say if it cannot
be met, then we will use reasonable judgment to give the time for the
right installation to be implemented. I think that is fair and I think
that is right.
Mr. OBERSTAR. Mr. Chairman, I yield 2 minutes to the gentleman from
Ohio (Mr. Strickland).
Mr. STRICKLAND. Mr. Chairman, I would like to ask my friends on this
side of the aisle: If you knew for sure that an airplane was going to
be blown out of the sky on March 15 of next year, would you dare, would
you dare not support this amendment?
How ironic, how ironic that in a bill that is supposed to create a
new Department of Homeland Security we are taking an action that will
make the traveling American public less secure.

{time} 1630

Mr. Chairman, I am raising my voice because I think this is a serious
matter. How would Members feel if they vote against this amendment and
in February, March, April, or May of next year, an American passenger
plane is blown out of the sky? How will Members feel?
The American people are watching us today, but the terrorists are
also watching us today. We must not give them an easy way to kill
additional Americans. Do not push the wishes of the special interests
above the safety of the American people.
Mr. PORTMAN. Mr. Chairman, I yield 3 minutes to the gentleman from
Florida (Mr. Mica), the chairman of the Subcommittee on Aviation.
Mr. MICA. Mr. Chairman, this is not a time to come before the House
of Representatives or the American people and make charges that are not
correct. Every Member in this body wants to make certain that their
family is secure, that every American is secure as they travel our
airways.
I have had the great honor and privilege of working with the ranking
member of the full committee, the gentleman from Minnesota (Mr.
Oberstar), and the ranking member of the subcommittee, the gentleman
from Illinois (Mr. Lipinski). We set goals that are very difficult to
meet, and I do not think that we should back off from those
obligations, but we know that the math does not add up. To accomplish
the task that we set forth in the law November 19, the math does not
add up. Here is the appropriations that we passed and voted for, and we
approved 45,000 employees.
Here is a report by the inspector general, the facts. We need 67,000
employees to complete the task. The gentleman from Minnesota (Mr.
Oberstar) and I heard testimony that in fact they can only produce 800
machines because we have missed the deadline by the delay in the
appropriations measure, in passing the supplemental appropriations
measure.
What we have is the potential, if we pass this, of leaving a state of
chaos and disorder for the December deadline. We do not need chaos and
disorder; we need the plan that has been put together first by the
gentlewoman from Texas (Ms. Granger), and then modified so it requires
that when we do not meet the technical or personnel requirements that
we put in place a plan. Do we want chaos or order? This requires order.
The amendment does not.
Are we to build bureaucracy in the name of security? I say no. But we
have a responsibility. I just met with the President of the United
States downstairs, and he talked about homeland security. That is what
this bill and this measure is about, acting responsibly, putting the
facts together and doing the best job we can as representatives of the
people to secure for us the best security possible.
Mr. MENENDEZ. Mr. Chairman, will the gentleman yield?
Mr. MICA. I yield to the gentleman from New Jersey.
Mr. MENENDEZ. Did the President ask this House for an extension?
Mr. MICA. No; but we need to act responsibly.
Mr. OBERSTAR. Mr. Chairman, I yield 30 seconds to the gentleman from
Minnesota (Mr. Sabo).
Mr. SABO. Mr. Chairman, I thank the gentleman for yielding me this
time.
Let us be clear. We have appropriated every dollar asked for for
equipment. We have appropriated more dollars than asked for for
installation. We have approved thousands of employees for this agency,
very few who have been hired. They clearly have the ability to manage
the personnel to put them where they are needed. There may or may not
be a reason for this amendment, but the reason there is delay does not
relate to money. It relates to management.
Mr. OBERSTAR. Mr. Chairman, I yield 2 minutes to the gentlewoman from
California (Ms. Waters).
Ms. WATERS. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, I rise to support the Oberstar-Menendez amendment that
deletes the deadline extension for airports to install explosive
detection equipment.
Since September 11, Congress and the administration have been
consumed with fighting the war on terrorism. Congress has responded to
all of the administration's requests, developed its

[[Page H5842]]

own initiatives, and bent over backwards to protect the American people
from further terrorist attacks.
Today we are completely considering of H.R. 5005, the Homeland
Security Act, a massive and complex piece of legislation, to create a
new Department of Homeland Security. Members of Congress have been
working hard on this legislation. Eleven standing committees of the
House of Representatives have made individual recommendations on
various aspects of the legislation in order to improve our Nation's
ability to anticipate and prevent every conceivable type of potential
terrorist attack.
Now at the 11th hour, we are being asked to undo a critical provision
of anti-terrorism legislation that we passed last year. We are being
asked to extend for a whole year the December 31, 2002, deadline for
airports to install explosive detection equipment. This equipment would
allow commercial airlines to screen the baggage that is checked at the
gate and loaded into the bellies of the airplanes.
The deadline extension was not recommended by the committee of
jurisdiction or the administration. Even if some airports are unable to
meet the deadline, last year's law gives the Department of
Transportation Administration the flexibility to have baggage screened
by other means while the installation is being completed. These
alternatives include positive bag matches, manual searches, and bomb-
sniffing dogs. We must maintain the deadline in last year's law. We
want every airport to make every effort to install explosive detection
equipment as quickly as possible.
Mr. PORTMAN. Mr. Chairman, I yield 1 minute to the gentleman from
California (Mr. Dooley).
Mr. DOOLEY of California. Mr. Chairman, I rise in opposition to this
amendment. I think all of us in this Chamber understand that our
objective is to enhance the safety of passengers on the airlines. There
is nothing in this legislation that is circumventing that objective.
When we recognized after the events of September 11 that we had to do
more to enhance safety, we set some arbitrary deadlines to establish
goals when we could have equipment in place that could make a
difference, that could ensure greater safety. But with a lot of goals
and objectives that are established, it sometimes becomes apparent that
we do not have the resources nor the time in order to achieve them.
What we are doing today is not saying that we are backing away from our
commitment to provide safety, it is a recognition that we need to set
up a process that recognizes that there are some airports in this
country that unfortunately cannot meet this deadline.
In order to meet the needs of those airports as well as the
passengers they serve, we need to have some prescriptions and some
guidelines that are going to ensure that they are on a track towards
the earliest possible moment to implement those systems that can make a
difference in ensuring that our air travel is safe.
Mr. OBERSTAR. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Schiff).
Mr. SCHIFF. Mr. Chairman, I rise in support of the Oberstar
amendment. We must not delay. We must accept no excuse for any delay in
the immediate improvement of the security at our airports. Congress
should speak unambiguously, find a way to get the job done now. Can it
be done by the end of the year? Yes. The Secretary, the administration
and the agency charged with this responsibility all say it can be done.
Will it be difficult? Yes.
Is the challenge any greater than the technological challenges we
faced immediately after Pearl Harbor in gearing up our industrial
capacity, of course not. This task is infinitely simpler. Will it cause
some delays in some airports in flights, yes, in all likelihood. Will
it cause the adoption and deployment of technologies that will need to
be replaced in the future, it just might. After all, technologies, all
technologies, eventually become obsolete.
But what is the cost of delaying our efforts to secure our airports
and our airplanes, the cost is potentially catastrophic. Imagine the
devastation to the families if a plane is blown out of the air, imagine
the devastation to our economy and the loss of confidence in our
Nation's ability to defend itself in the very department that we
establish today.
On September 11, terrorists turned our planes into jet-fuel-powered
bombs. That was the last attack. Some would argue since we are now
better prepared against that eventuality, we can delay our preparedness
against other attacks.
Mr. Chairman, we must be prepared to fight terrorists in whatever
form. Terrorists do not need to hijack planes to devastate this
country. Placing a bomb in the cargo hold of a plane is all that it
would take. We must defend against this massive vulnerability, and we
must do it now. We cannot delay. I urge support of this amendment to
make this country safe today.
Mr. PORTMAN. Mr. Chairman, I yield 2 minutes to the gentleman from
Oklahoma (Mr. Watts), one of the House leaders on this issue.
Mr. WATTS of Oklahoma. Mr. Chairman, as I have served the last 8
years in the United States House of Representatives, I have often said
we made a real mistake 40 years ago by not creating a Federal
Department of unintended consequences, because we often do things and
after we have done it, we look back and say oops, we made a mistake.
Let me tell Members, there are 25 percent of the Nation's airports
that cannot comply with this deadline on December 31, 2002. It is
unrealistic. The Transportation Safety Administration, these airports,
many of these airports, they have submitted plans to comply that they
need to have certified by TSA. They have not gotten the certification.
In order for all airports to meet the deadline, TSA must purchase and
install an EDS or EDT machine every 35 minutes between now and December
31. In order for all airports to have the security staff needed to
operate the new machinery, TSA will need to hire and train and make
operational a new screener every 4.5 minutes between today and December
31, 2002.
We are saying that these people will be able to comply? If Members
vote to strip the December 31, 2002 deadline, they are voting for 3- or
4-hour airport lines that are inviting targets for terrorists. I think
we are making a huge mistake by not extending the deadlines. Get the
bureaucracy off their duff, and have them certify the airport plans and
then move forward.
In the end, I think it is a shame that we would come and talk about
these things and all the rhetoric that I have heard, we are literally
telling the terrorists what is going on. We need to extend this
deadline, get those plans certified by TSA, get the people hired, get a
director that was fired over a week ago. Vote ``no'' on this amendment.
Mr. OBERSTAR. Mr. Chairman, I yield 1 minute to the gentleman from
Washington (Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Chairman, in 1961, President Kennedy sat right there
and said America is a country that can do the moon. Now we have people
around here saying America is a country that cannot even check baggage.
Why would Members want to take a bill called the homeland security
bill and change it into the home air insecurity bill. Members are darn
right that there are some challenges in getting this done, but it does
not help that this administration has demonstrated rank incompetence
for months and months doing nothing on this issue.

{time} 1645

It took them 7 months to order the first machine after September 11.
I will not allow or vote for this administration's rank ineptness to
endanger my flying public for the next year.
If you cannot get this job done, turn the administration over to us
and we will do it because we know if you want some horses to go, you
put the spurs to them and this administration needs it.
Mr. PORTMAN. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Texas (Mr. Sam Johnson).
(Mr. SAM JOHNSON of Texas asked and was given permission to revise
and extend his remarks.)
Mr. SAM JOHNSON of Texas. Mr. Chairman, let us set the record
straight. The Secretary, based on current facts, says that they are
unable to make these deadlines without us giving

[[Page H5843]]

them a billion dollars more. I know the contract is with Boeing-
Siemens. I have talked to those people. They can do it by the end of
the year, but only to have the machines by the end of the year. That
does not mean they are in the airports.
I am concerned that, worst-case scenario, the Transportation Security
Agency is going to be unable to train personnel and install necessary
equipment to meet this deadline. Under the best-case scenario, I am
concerned that TSA will meet the deadline but only by implementing an
ineffective and outrageously expensive temporary solution. Either way,
the safety of our air travelers and the security of our system will
benefit from giving TSA flexibility to focus on a long-term, permanent
solution and not a quick fix.
Unfortunately, only 75 percent of our airports are going to be able
to make that December 31 deadline. These are the smaller airports that
are going to rely on the ETD for their long-term solution. They are
going to be using primarily small machines. It is no longer feasible to
meet the December 31 deadline for larger airports, especially like my
hometown DFW. Since they submitted their plan in March, they still have
yet to hear back from the TSA to find out if they have been approved
and are on the right track. For larger airports like DFW, it is
impossible for them to be ready by the end of the year.
Have we not provided enough bureaucracy? It is ridiculous that
opponents to this commonsense measure would rather have airports miss
the deadline altogether. This is not a one-size-fits-all solution.
Mr. OBERSTAR. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from New Jersey (Mr. Menendez), a member of the select
committee.
Mr. MENENDEZ. Mr. Chairman, we heard about facts.
Fact: the House voted 410-9 for these deadlines.
Fact: neither the President, the Secretary of Transportation, TSA nor
the Committee on Transportation and Infrastructure has asked for an
extension.
Fact: the bill extends the execution of a plan for another year, but
it has no deadline for deployment of explosive detection devices.
Fact: technology to detect bombs exists now and is certified. No
other technology is certified.
Fact: alternatives exist under the law if the deadlines cannot be
met, and they are the same as the bill before us.
Fact: Congress delayed in a similar case in the '80s on technology to
avoid collisions midair, and we had three midair collisions. Who went
to those families and said, We're sorry we delayed; we waited for
better technology''?
Ask your constituents if after the events of September 11, would they
rather save a few minutes or save lives? The answer would be, save
lives. That is what this Oberstar-Menendez amendment does, and that is
why you should be voting for it.
Mr. OBERSTAR. Mr. Chairman, I yield myself the balance of my time.
The CHAIRMAN pro tempore (Mr. Hastings of Washington.) The gentleman
from Minnesota is recognized for 3\1/2\ minutes.
(Mr. OBERSTAR asked and was given permission to revise and extend his
remarks.)
Mr. OBERSTAR. Mr. Chairman, we have all come to this issue with good
will and those who advocate the extension of the deadline have come
genuinely inspired by their airports or airlines out of a concern, as
repeated speakers have said, We can't meet the deadline. I have always
thought of America as a can-do Nation, not a can't-do Nation.
In World War II, we put a million men under arms in 1 year. In World
War II, we produced an average of 60,000 war planes a year, starting
from zero. Why can we not do this now? We can do it, is the point.
I have heard the argument about long lines. The question you have to
ask yourself is which do you fear more, long lines or a bomb aboard an
airplane?
I also read the language proposed very carefully. Many are not aware
that the language of the amendment proposes to give the airport the
decision on whether to demand a delay, not the Transportation Security
Administration who is paying the cost, and also vests with airports the
authority to develop a plan to the maximum extent practicable to do
certain things. This is a change in the fundamental way the program is
operating. I was not aware of that until late last night, early this
morning, reading this language more carefully. That should not be done.
We have provided authority in the basic law that was enacted 410-9
for alternative means to check luggage, to screen luggage checked
aboard aircraft if you cannot meet the December 31 deadline for
explosive detection systems. It includes authority for the TSA to
certify, or to verify the use of explosive trace detection systems if
they cannot deploy the explosive detection systems. There is ample
authority to use other means. We are all human beings. That is why the
leadership here keeps us till late at night, because we work against
deadlines. The distinguished whip knows that.
But I come for another purpose. Twelve years ago, as a member of the
Pan Am 103 commission, I stood at Lockerbie, Scotland, at the abyss of
Pan Am 103 where a trench 14 feet deep, 40 feet wide, and 120 feet long
was dug by that airplane, and 259 lives aboard that plane and 11 on the
ground were incinerated because a bomb was aboard that airplane in a
piece of luggage that did not have a passenger accompanying it. And we
members of that commission, two of us from the House, John Paul
Hammerschmidt, a distinguished Member from Arkansas, and I, looked in
the abyss and said, ``Never again will we allow this to happen. We are
going to pass tough legislation to make aviation security the best in
the world.'' And we passed it.
Now we stand on the abyss again. Never again do I want to confront
families and say, We didn't do enough. Please, do not let that happen.
Do not extend that deadline.
Mr. PORTMAN. Mr. Chairman, I yield the balance of my time to the
gentleman from Texas (Mr. DeLay), the distinguished majority whip and a
member of the Select Committee on Homeland Security.
The CHAIRMAN pro tempore. The gentleman from Texas is recognized for
2\1/2\ minutes.
Mr. DeLAY. Mr. Chairman, that almost brought a tear to my eye; but I
have got to tell you, after Lockerbie, England went for this technology
that the gentleman wants to install. It took them 8 years to install
it. Eight years. That was 12 years ago. That same technology is what he
wants to buy, 20-year-old technology that does not work, or is not as
good as other technology that is being suggested.
Let me just clear the air here a little bit. First of all, I think it
is irresponsible to try to scare the American people away from flying.
The rhetoric on this floor is irresponsible in doing that. Let me just
say that 100 percent, 100 percent of your bags today are being checked
before they go on the plane. What this argument is about is buying a
machine, a bomb detection machine to try to make it more efficient to
check your bags. They want you to buy a 20-year-old technology that is
wrong 30 percent of the time.
Let us get how this works. Thirty percent of the time it is wrong; so
when it is wrong, you have to take it off the machine and check it by
hand, adding to the time of that plane taking off. What we want is
technology that is ready, it just needs to be certified, that has less
than a 5 percent error rate. Technology is coming on line. And besides,
these deadlines that they are so interested in, this House voted 286-
139 for the deadline that is in this bill. The deadlines that were put
in there, and I will not argue the deadlines, but what is really
interesting about this is that the deadlines that they are so adamant
to have and have all this wonderful rhetoric, and a little demagoguery
added to it, is that the deadlines have no penalties. Their deadlines
have no sanctions. So it does not matter. If they cannot meet the
deadlines, they cannot meet the deadlines. You are stringent, we are
going to meet these deadlines, and you cannot make them do anything.
So what we have done is realized that there is a problem here, that
we can put good technology in as quickly as possible; but we need a
good, solid process by which to implement this and we are suggesting
that process. There is a process that we go through.

[[Page H5844]]

This makes sense. It makes common sense. It faces reality. Vote down
the Oberstar amendment.

Parliamentary Inquiry

Mr. DeFAZIO. Mr. Chairman, I have a parliamentary inquiry.
The CHAIRMAN pro tempore. The gentleman will state it.
Mr. DeFAZIO. Mr. Chairman, is it required that one use accurate facts
during debate on the floor of the House?
The CHAIRMAN pro tempore. The purpose of debate is to discuss issues
as Members see them.
Mr. DeFAZIO. Does it require the use of accurate facts or is
fabrication allowed?
The CHAIRMAN pro tempore. Accuracy in debate is for each Member to
ascertain in his own mind.
Mr. DeFAZIO. I thank the gentleman. We just heard fabrication.
Mrs. LOWEY. Mr. Chairman, I rise in strong support of the Oberstar
Amendment.
My colleagues, the first obligation of our government is to protect
our citizens.
While I strongly believe we are united in our determination to win
the war on terrorism and committed to reorganizing the federal
government to better serve our country during these times, I continue
to be puzzled by the actions of some of my colleagues.
In the fall, the Leadership took only three days to start bailing out
the airline industry, but dodged the issue of aviation security for
months.
Democrats fought hard, constantly reminding our colleagues that in
order to assure the public that our skies are safe we had to require
that the federal government to assume passenger screening
responsibilities, expand its air marshal program, and screen all
checked baggage for explosives.
Although our efforts were successful, some of my colleagues have been
working bit by bit to unravel the commitment we made to Americans.
When the TSA asked for $4.4 billion, Republicans shortchanged them by
$1 billion.
Now, they are using the bill designed to set up a department to
ensure homeland security to postpone the deadline for installing bomb-
detecting equipment at our airports. The Administration says it cannot
meet the deadline of December 2002 due to the delay in passing the
emergency supplemental and the lack of necessary funding--the fault of
the House Republicans.
To that I say, I am truly disappointed that any of us would backtrack
in the face of a self-imposed deadline. We should hunker down and work
together to tackle this deadline because compromised security in our
skies and airports is a clear and present danger.
My colleagues, we cannot break our promise. When we passed the
transportation security act last year, we acknowledged the immediate
need to make aviation security a matter of national security. We must
vote to reinstate the baggage screening deadline, and stand by our
promise to have every bag screened, on every flight, every day by the
new year.
Our homeland won't be secure until our skies are secure. I urge you
to carefully consider the risks we would take by postponing this
deadline.
Vote for the Oberstar amendment.
EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, with some reluctance, I
rise in opposition to the Oberstar-Menendez amendment regarding the
deadline for installation of explosive detection systems at the
nation's airports.
Let me first say that I would have much preferred that this issue not
have been highlighted so prominently. If airports continue to be
vulnerable, we do not need to be announcing that for all the world to
see.
I understand the concerns of airports and their desire to extend the
deadline. Many of them, particularly large airports like DFW in my
district, have made a compelling case that the existing deadlines
cannot be met.
The Transportation and Infrastructure Committee, on which I serve,
has been looking at this issue carefully. Earlier this week, it held a
hearing on TSA's implementation of the Aviation and Transportation
Security Act, featuring Secretary Mineta and the DOT Inspector
General's office.
Secretary Mineta indicated concern that the TSA might not be able to
meet the deadline for EDS deployment because of insufficient funding in
the FY2002 supplemental for TSA. In part because of his testimony, I
voted against the supplemental.
The IG's office testified that it would be premature to extend the
deadlines at this time because they were still conducting their
airport-by-airport assessments.
I will quote from the IG's written testimony: ``Because airport
assessment for the deployment of explosives detection equipment are
scheduled to be completed at the largest airports by the end of August,
and because of the current ramp-up in hiring passenger screeners, we
will be in a much better position in a month to judge what is or is not
feasible to accomplish by the deadlines.''
Mr. Speaker, the language to extend the deadline by one year is far
from perfect. Most likely, the deadlines cannot be met, but would it
not be prudent to wait until the IG's office completes their assessment
and issues a recommendation for a new deadline?
However, I also recognize the anxiety that airports are experiencing
and their desire to move this language on ``must-pass'' legislation.
I will therefore support the one-year extension at this time and vote
against the Oberstar-Menendez amendment so that we can move forward on
this issue and ensure that this gets resolved in conference.
However, I will also be monitoring the IG's recommendations and
insist that the conference adjust the language if it conflicts with the
IG's findings. Explosive detection systems must be deployed as quickly
as possible, and if the IG indicates that compliance before December
31, 2003 is feasible, the conferees must adjust the language
accordingly.
Mr. BEREUTER. Mr. Chairman, this Member rises in opposition to the
amendment offered by the distinguished gentleman from Minnesota (Mr.
Oberstar) which would strike the bill's deadline extension for airports
to screen all checked baggage.
This Member would like to begin by stating his view that the safety
and security of the traveling public must remain the primary objective
when addressing aviation matters. However, it appears that the current
arbitrary deadline for screening all checked baggage actually is
unlikely to enhance security. Instead, it surely will result in larger
expenditures, longer lines and greater frustration.
It is now clear that airports in Nebraska and throughout the nation
will have difficulty meeting the logistical requirements of the current
deadline of December 31, 2002. Instead of emphasizing safety and
efficiency, airports would be forced simply to put something in place.
Nebraska airport managers are very concerned that they will not be
able to meet the current deadline due to two major issues: checked bag
screening and the Federalization of security for passenger and baggage
screening. For example, there is concern regarding the effectiveness
and expense of the new required baggage screening equipment, with the
possibility that the equipment required for installation may be less
effective in reaching desirable screening than other smaller and less
expensive alternative equipment now in production and with the
likelihood that some of the new equipment now to be required would need
to be replaced within a few years.
The deadline extension included in H.R. 5005 offers realistic, cost-
effective and efficient flexibility. The provision makes it clear that
airports will still be required to install equipment to detect weapons
and bombs. However, the installation will be done in a manner that
takes into account not only safety, but also cost, efficiency, and
reliability.
Mr. Chairman, rather than taking ineffective interim steps, every
effort must be made to get it right the first time. Therefore, this
Member urges his colleagues to oppose the Oberstar Amendment.
Ms. DeLAURO. Mr. Chairman, I rise in strong support of this
amendment. We may have disagreements regarding some of the specifics of
this legislation, but its goal--ensuring Americans' safety--is
something we all support.
So why then was a provision slipped into this legislation to extend
the deadline by which the Transportation Security Administration must
screen all baggage for explosives? Why are we risking the safety of the
American people when we already have the certified technology necessary
to ensure that every bag can be screened?
Some suggest that we must extend the deadline because we are awaiting
the development of better technology down the road, as there always is,
Mr. Chairman. I am not willing to risk another year of randomly
screening a few bags when we have the technology to screen all of them
now while we wait for a superior technology a year from now. By then,
it might very well be too late.
If we must revisit this issue in a year and begin upgrading the
equipment, so be it. No price is too high when it comes to ensuring the
safety of the American people. But without this amendment, we put
American lives needlessly at risk.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise in support of the
Oberstar/Menendez Amendment, to strike the provision extending the date
for screening airline baggage for explosives.
Mr. Chairman, I am bewildered that we are even arguing about this.
We are here to find ways to increase the Security of our Homeland. Last
year, in an intelligent step in the right direction, we passed the
Aviation and Transportation Security Act, in overwhelmingly bipartisan
fashion by a vote of 410 to 9. That Act gave the Transportation
Security Administration and our nation's airports over a year to

[[Page H5845]]

get into place systems that would prevent terrorists from stowing bombs
in baggage being loaded onto airplanes. That seems to make good sense.
We have equipment that has already been certified to be able to
detect explosives that could destroy an airplane in flight. Just last
week, Transportation Secretary Norm Mineta came before the Select
Committee, and gave testimony that yes indeed, the TSA would meet the
December 31, 2002 deadline to get that equipment installed. Again,
everything seemed to be on track.
But now, all of a sudden, because the job is hard and it may be
challenging to get the job done exactly on time, we are going to double
the amount of time given to get the job done. We are going from one
year to two years. At a time when we have been warned that terrorists
may still be walking our land, and on a day that we are trying to make
history by securing our nation, we are going to say, ``Don't worry
about the deadline. Let's leave the window open to terrorists for
another year.'' As a former lawyer in the Pan Am 103 air crash case,
where I represented the family of a deceased flight attendant, I cannot
take the chance that a suitcase bomb could explode on a passenger-full
airplane. To change the deadline is a profoundly bad idea.
The argument for leaving the window open is that if we wait, we can
maybe use better technology, or install the equipment more efficiently.
The problem with that argument is that we are vulnerable now. The
American people deserve protection now. It is like if you had cancer.
There are always better drugs coming out each year. So if you get
cancer, do you wait a year until the next generation of drugs comes
out, or do you work with what you've got? Of course you work with what
you've got. And that is the position we are in today. Terrorism is like
a cancer that has the potential to destroy us. We have to take the
medicine now.

But we don't even need to look beyond the aviation industry for such
analogies. We have paid the price of ``waiting for the next best
thing'' before. In the 1980s we had an opportunity to have collision
avoidance equipment, called TCAS II, installed in all of our airplanes.
TCAS II worked pretty well, but it only gave vertical directions for
evasive actions to the plane. So, the FAA waited. While they waited for
TCAS III, three tragic midair collisions occurred--three deadly crashes
that could have been avoided if the FAA had moved when it had the
chance. After the third crash, legislation was finally passed that
required the installation of TCAS II even though it was not perfect and
would eventually be replaced.
Let us not waste hundreds of lives again.
Keeping the TSA and our nation's airports on track to get a baggage
screening system into place by the end of this year is not a rash
action. If extenuating circumstances present at a few airports, the
Aviation and Transportation Security Act already authorizes
alternatives to keep those airports up to code. They can employ
positive bag match, manual search, search by dogs, or any other
technology approved by the TSA. Even if they do not, there are no
established penalties or punishments for non-compliance. There is no
reason to risk taking an extra year to complete this critical task.
Since September 11th we have been marching forward on the path toward
homeland security. Let us not take a step backward today.
I encourage my colleagues to support the Oberstar/Menendez Amendment,
and keep our nation in the spirit of progress, and our airports moving
in the right direction.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from Minnesota (Mr. Oberstar).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. OBERSTAR. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Minnesota
(Mr. Oberstar) will be postponed.
The Committee will rise informally.
The Speaker pro tempore (Mr. Simpson) assumed the chair.

____________________