[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[House]
[Pages 14938-14992]
[From the U.S. 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 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

[[Page 14939]]

     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 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

[[Page 14940]]

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.
  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

[[Page 14941]]

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. 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.
  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

[[Page 14942]]

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)

                             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,

[[Page 14943]]

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
     Kirk
     Knollenberg
     Kolbe
     LaHood
     Langevin
     Larson (CT)

[[Page 14944]]


     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

[[Page 14945]]

     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 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

  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 240, 
noes 188, not voting 5, as follows:

                             [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

[[Page 14946]]

     appropriate unit for purposes of chapter 71 of title 5, 
     United States Code, as of the day before the effective date 
     of this Act (and any subdivision of any such unit) shall, if 
     such unit (or subdivision) is transferred to the Department 
     pursuant to this Act, continue to be so recognized for such 
     purposes, unless--
       (A) the mission and responsibilities of such unit (or 
     subdivision) materially change; and
       (B) a majority of the employees within such unit (or 
     subdivision) have as their primary duty intelligence, 
     counterintelligence, or investigative work directly related 
     to terrorism investigation.
       (2) Limitation relating to positions or employees.--No 
     position or employee within a unit (or subdivision of a unit) 
     as to which continued recognition is given in accordance with 
     paragraph (1) shall be excluded from such unit (or 
     subdivision), for purposes of chapter 71 of such title 5, 
     unless the primary job duty of such position or employee--
       (A) materially changes; and
       (B) consists of intelligence, counterintelligence, or 
     investigative work directly related to terrorism 
     investigation.
     In the case of any positions within a unit (or subdivision) 
     which are first established on or after the effective date of 
     this Act and any employees first appointed on or after such 
     date, the preceding sentence shall be applied disregarding 
     subparagraph (A).
       (c) 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.

[[Page 14947]]

  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. 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 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

[[Page 14948]]

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 (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

[[Page 14949]]

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.
  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.

[[Page 14950]]

                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.

       (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 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.

[[Page 14951]]

  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 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-

[[Page 14952]]

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 want 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.
  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. 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 ``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.
  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

[[Page 14953]]

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.
  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.

[[Page 14954]]

  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.
  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.
  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)

[[Page 14955]]



                             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.
       ``(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.

[[Page 14956]]

  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.
  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.

[[Page 14957]]

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.
  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. 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

[[Page 14958]]

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
     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.

[[Page 14959]]

       (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.
  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

[[Page 14960]]

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 guaranteed 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. 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.
  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.

[[Page 14961]]

  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. 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?
  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

[[Page 14962]]

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 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

[[Page 14963]]

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.
       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

[[Page 14964]]

     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;
       ``(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--

[[Page 14965]]

       ``(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 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

[[Page 14966]]

     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.
       ``(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);

[[Page 14967]]

       ``(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--
       (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);

[[Page 14968]]

       ``(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 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.

[[Page 14969]]

  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. 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 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.

[[Page 14970]]

  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 (Mr. Oberstar), the ranking 
member of the Committee on Transportation and Infrastructure.
  Mr. OBERSTAR. Mr. Chairman, I thank the gentlewoman for yielding me

[[Page 14971]]

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

[[Page 14972]]

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 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 an ounce of confidence if people can produce a 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. 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 vulner-
abilities 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

[[Page 14973]]

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.
  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.

[[Page 14974]]

  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.
  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.

[[Page 14975]]

  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.
  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;

[[Page 14976]]

       ``(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 
     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

[[Page 14977]]

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 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. 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

[[Page 14978]]

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 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 Armey 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 Armey 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 Armey 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 Armey 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.

[[Page 14979]]

  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. 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 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. 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

[[Page 14980]]

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.
  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.''

[[Page 14981]]

  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 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. 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.

[[Page 14982]]

  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.
  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

[[Page 14983]]


     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 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)

[[Page 14984]]


     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
     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.

[[Page 14985]]

  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. 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. 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. 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

[[Page 14986]]

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 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.

[[Page 14987]]

  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 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.

[[Page 14988]]


  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 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

[[Page 14989]]

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. 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. 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 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.

[[Page 14990]]

  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.
  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

[[Page 14991]]

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. Chairman, 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 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

[[Page 14992]]

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.

                          ____________________