[Congressional Record Volume 145, Number 104 (Wednesday, July 21, 1999)]
[Senate]
[Pages S8924-S8931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2000--Continued


      Amendments Nos. 1266 And 1267 To Amendment No. 1258, En Bloc

  Mr. KERREY. Mr. President, I send two amendments to the desk--one on 
behalf of myself for Senator Shelby, and the other for Senator 
Feinstein.
  The PRESIDING OFFICER. The clerk will report.
  The legislative assistant read as follows:

       The Senator from Nebraska (Mr. Kerrey) for Mr. Shelby and 
     Mrs. Feinstein, proposes amendments numbered 1266 and 1267 to 
     Amendment No. 1258, en bloc.

  Mr. KERREY. Mr. President, I ask unanimous consent that reading of 
the amendments be dispensed with.

[[Page S8925]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments en bloc are as follows:


                AMENDMENT NO. 1266 to Amendment No. 1258

       Following section (213)(t) add the following new subsection 
     to section 213 as added by the Kyl amendment:
       ``(u) The Secretary shall be responsible for developing and 
     promulgating Departmental security, counterintelligence and 
     intelligence policies, and may use his immediate staff to 
     assist him in developing and promulgating such policies. The 
     Under Secretary for Nuclear Stewardship is responsible for 
     implementation of all security, counterintelligence and 
     intelligence policies within the Agency for Nuclear 
     Stewardship. The Under Secretary for Nuclear Stewardship may 
     establish agency-specific policies unless disapproved by the 
     Secretary.''.
                                  ____



                AMENDMENT NO. 1267 to Amendment No. 1258

       On page 6, line 13 following the word ``report'' insert: 
     ``, consistent with their contractual obligations,''.

  Mr. KERREY. Mr. President, these two amendments have been agreed to 
on both sides.
  The first one was the agreed-upon amendment between Senator Levin and 
Senator Kyl. We took my language and the language of Senator Shelby and 
merged them. There is agreement on both sides. I think this and the 
reporting requirements of Senator Feinstein are excellent additions to 
the bill.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, I concur with Senator Kerrey.
  I commend Senators Levin, Kyl, Domenici, Murkowski, and others who 
brought about the progress on the bill.
  I urge adoption of the amendments en bloc.
  The PRESIDING OFFICER. Without objection, the amendments are agreed 
to en bloc.
  The amendments (Nos. 1266 and 1267) were agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. KERREY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, I extend my appreciation to the managers, 
the good Senators, who have worked very hard to adopt this language.
  This implements the heart of the amendment which I previously 
offered. I want to read it so that people who are following this 
debate--it is very short--can understand why this is important.
  The amendment reads:

       The Secretary shall be responsible for developing and 
     promulgating Departmental security, counterintelligence and 
     intelligence policies, and may use his immediate staff to 
     assist him in developing and promulgating such policies.

  With one minute change, that is the same sentence which was 
previously in my amendment.
  The next sentence is:

       The Under Secretary for Nuclear Stewardship is responsible 
     for implementation of all security, counterintelligence and 
     intelligence policies within the Agency for Nuclear 
     Stewardship.

  I think that is basically the previous language.
  The one change is really in the third sentence, which is now with 
this amendment:

       The Under Secretary for Nuclear Stewardship may establish 
     agency-specific policies unless disapproved by the Secretary.

  That was the intention of the third sentence in effect. Senator Kyl 
thought it was an important change and would clarify a point. We accept 
that.
  We thank Senator Kyl, as well as our other colleague, Senator 
Domenici, and others who have worked on this language. This language is 
fully acceptable to me, because it does indeed carry out the language 
for the most part in the spirit, in toto, of the previous amendment.
  I thank our colleagues.
  Mr. KERREY. I didn't hear everything the distinguished Senator said. 
He read, I think, an earlier draft. I don't think he meant to. The word 
``all'' in the first sentence had been stricken.
  Mr. LEVIN. The draft given to me had that in it, and I read it, but 
it was stricken in the actual amendment sent to the desk.
  I thank the Senator for that correction.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so 
ordered.


                Amendment No. 1268 To Amendment No. 1258

  (Purpose: To provide for the delegation to the Deputy Secretary of 
  Energy of authority to supervise and direct the Under Secretary of 
                    Energy for Nuclear Stewardship)

  Mr. LEVIN. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative assistant read as follows:

       The Senator from Michigan [Mr. Levin] proposes an amendment 
     numbered 1268 to amendment No. 1258.
       In the fourth sentence of section 213(c) of the Department 
     of Energy Organization Act, as proposed by subsection (c) of 
     the amendment, insert after ``to any Department official'' 
     the following: ``other than the Deputy Secretary''.

  Mr. LEVIN. Mr. President, this amendment makes it possible for the 
Secretary of Energy to fully utilize his Deputy Secretary. The Deputy 
Secretary of Energy, as with the Deputy Secretary of Defense, is the 
No. 2 person in the Department. The Secretary of Energy simply must be 
allowed to rely on his deputy to serve in his absence, to help with the 
running of the Department when he is absent and, indeed, to effectively 
be his alter ego.
  To be useful to the Secretary and perform his job, the Deputy 
Secretary must be involved fully in every facet of the business of the 
Department. This amendment will allow the Deputy Secretary to carry out 
that very important function.
  The bill will now have that change, that the Secretary may not 
delegate to any departmental official other than the deputy the duty to 
service or direct the Under Secretary for Nuclear Stewardship.
  This is a very important change. I thank the managers for their 
support of this change. I believe it has broad support. I hope it will 
pass.
  The organizational chart contained in the Rudman panel report, which 
graphically displays the panel's recommendation to create a new 
separately organized Agency for Nuclear Stewardship, includes the 
Deputy Secretary in the same box as the Secretary. The amendment before 
the Senate today, however, is silent with respect to the duties and 
responsibilities of the Deputy Secretary.
  The absence of any reference to the Deputy Secretary of Energy could 
be simply an oversight. But given the language in the underlying 
amendment that prohibits all others in the Department of Energy, except 
the Secretary, from supervising or directing the new Agency or its 
staff, I believe the role of the Deputy should be clearly spelled out.
  Each of the separately organized agencies of the Department of 
Defense, sited as organizational models by Senators Rudman's panel, 
relies heavily on the involvement of the Deputy Secretary of Defense. 
Indeed, the Deputy Secretary of Defense has a full delegation of 
responsibility from the Secretary of Defense to act for the Secretary.
  This amendment removes the potential for confusion about the role of 
the Deputy Secretary of Energy and is consistent with the 
organizational charts contained in the Rudman panel report that 
describe the organization of the new Agency for Nuclear Stewardship.
  Mr. KERREY. Mr. President, I think it is a good amendment. I believe 
the amendment has been cleared by Senator Domenici as well. I don't 
think there is any problem with this amendment at all. I think it is a 
good amendment and a good improvement in the bill.
  Mr. SHELBY. Mr. President, I agree with the Senator from Nebraska. 
This is an agreed-on amendment. A lot of work has gone into it. I 
commend the Senator from Michigan, the Senator from Arizona, and also 
the Senator from New Mexico in fashioning this with their staff.
  I urge adoption of the amendment.
  The PRESIDING OFFICER. The question is on the amendment.
  The amendment (No. 1268) was agreed to.

[[Page S8926]]

  Mr. SHELBY. I move to reconsider the vote.
  Mr. KERREY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SHELBY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, the amendments which we have just adopted 
improve the underlying provision. Nevertheless, there are some 
important concerns that were raised, and I want to take a moment to 
address them and speak to the hope they be addressed in conference. Let 
me go through some of these concerns.
  First, section (k) of the amendment prohibits anybody in the 
Department except for the Secretary and Deputy Secretary from providing 
supervision or direction to the Agency for Nuclear Stewardship.
  That could prohibit certain specific statutory authorities found in 
other laws from being implemented. For instance, the Chief Financial 
Officers Act established some very specific authorities and duties for 
chief financial officers. They must direct all aspects of a 
department's fiscal policy.
  Second, the same is true for the Inspector Generals Act. The 
inspector general has independent investigatory authority over the 
entire Department of Energy, including the new Agency. This authority 
includes the authority to direct and conduct investigations unimpeded. 
To conduct the investigations, the inspector general has, by law, full 
access to everyone in the department.
  Those two important pieces of law, existing legislation, are key 
tools in avoiding waste, fraud, and abuse. I do not believe that we can 
nor should nor perhaps even intend in this amendment, this underlying 
amendment, to modify them. But it is unclear and I hope it will be 
clarified in conference so we do not impede the operation of those laws 
by this language.
  Third, the method of appointing certain employees of the new Agency, 
in my judgment, violates the appointments clause of the Constitution. 
For instance, in section 213 (j)(1), the amendment says that ``the 
Under Secretary shall, with the approval of the Secretary and Director 
of the Federal Bureau of Investigation, designate the chief of 
Counterintelligence. . . .'' That responsibility, making an 
appointment, is, under the appointments clause, restricted to the 
Secretary or the President of the United States. I do not think we can 
delegate that authority by statute to this new Agency Director.
  Fourth, there are certain restrictions on how the head of the new 
Agency submits reports to Congress, which I believe run afoul of the 
separation of powers doctrine.
  Fifth, there are still too many restrictions on the Secretary's 
authority to control and direct the Agency.
  Sixth, there are provisions which establish new relationships between 
the Department of Energy contractors and Federal employees of the 
Department. Those relationships may violate the current operating 
contracts for DOE facilities. More important, these new relationships 
may make these contractor employees Federal employees for certain 
purposes, such as the Federal Authority Claims Act, the Federal Drivers 
Act, and the Federal ethics statutes.
  These are a few of the statutes that could be interpreted as being 
applicable to contractor employees, raising new issues of liability and 
responsibilities. I believe the implications of these should be and 
must be fully understood before we finally adopt a law in this area, a 
reorganization of this Department, and a conference report which 
contains any such implications or changes.

  These issues and others should be addressed in conference on this 
provision. I wanted to highlight them now for our colleagues. We have 
made some progress on this underlying amendment, on the amendment which 
I think reflects the determination of most of us that we do create this 
semiautonomous agency. That represents, I believe, almost the consensus 
view of the Senate--pretty close to it--that we have a semiautonomous 
agency. But there are a lot of subquestions to that issue. Just 
creating a semiautonomous agency does not resolve the myriad of 
questions that exist in that process. Some of them have now been 
resolved. I thank my colleagues for their work with me on that.
  Senator Bingaman has had some very important amendments which have 
been adopted as well. The Kyl amendment is a better amendment now that 
those amendments of ours have been added to it. But, again, there are 
many remaining questions and doubts which, hopefully, the conferees 
will resolve. I wanted to bring some of those to the attention of our 
colleague at this time.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I want to report on the status, as I 
understand, of where we are on the Kyl amendment. When you turn on your 
television set and see what is happening in the Senate Chamber, you see 
that the pending business is the Kyl amendment. Since that is me, I 
thought I should explain we are about ready to bring this to a 
conclusion, I think a very successful conclusion. In fact, the 
bipartisanship we were seeking to attain earlier in the day, in fact, 
will be attained with respect to the adoption of the Kyl amendment.
  I will back up a little bit and recapitulate where we are. The 
underlying bill is the intelligence authorization bill. There will be a 
little bit of business to transact on that after the adoption of the 
Kyl amendment. Then the intelligence authorization bill can be approved 
by the Senate and we can move on to other business.
  In the meantime, the Kyl amendment is the pending amendment. That is 
the amendment cosponsored by Senator Domenici, Senator Murkowski, and a 
host of others, that will reform the Department of Energy so it will be 
less likely in the future that there will be nuclear secrets walking 
out the door of our National Laboratories. That is an 
oversimplification, but that is the essence of what we are trying to 
do.
  The reorganization involves the creation of a semiautonomous agency 
within the Department. We basically have followed the recommendations 
of the President's Foreign Intelligence Advisory Board in establishing 
that new Agency.
  There have been some amendments dealing with details of this 
reorganization that have been worked out between representatives of the 
Democratic side and supporters of our amendment.
  With respect to the most perplexing of the difficulties, a matter on 
which an earlier vote was held, where the Levin amendment was defeated, 
we have gone back and rewritten the language of the bill and the Levin 
amendment and combined the two in a way in which we think both sides 
think we can make the legislation work. There have been some other 
concessions, as well, to Members on the Democratic side in order to 
achieve a broad bipartisan consensus for this legislation.
  I am pleased to report that there is an agreement, A, to bring this 
Kyl amendment to a vote very soon, so I think Members should expect 
that in the very near term we will be able to have a final vote on it; 
and, B, that it will have the concurrence of many, if not most, of the 
Members on the other side of the aisle, as well as the Republican side 
of the aisle. That is because of the concessions that have been made in 
this intervening time.
  So my hope is, if there is anyone else who wishes to discuss any 
aspect of the Kyl amendment, or to raise any questions about it, or 
about the other amendments that have been offered and to one degree or 
another worked out in the interim, that they would come and do that now 
because in just a matter of a few minutes we are going to propound a 
request to get on with the vote and then be able to move on.

[[Page S8927]]

 I know that is the leader's desire, and we would like to be able to do 
that.
  If there isn't anybody at this point who wants to weigh in, let me 
add one other point about the reason why the Senate is acting on this 
important matter. At the end of the day, for the Nation, there is 
nothing more important than our national security. We in the Senate and 
the House and the President understand that probably our first 
obligation is to protect the American people.
  One of the stable elements of the peace that has prevailed over the 
last many decades has been the nuclear stockpile of the United States, 
the fact that we have nuclear weapons that provide a deterrent to any 
attack by an aggressor that would threaten the homeland of the United 
States.
  It is a horrible thing to ever contemplate using those weapons, but 
it is undeniable that the threat of nuclear retaliation has enabled us 
to have a period of peace literally since World War II with our major 
adversaries.
  It is important that the stability the world has seen because of the 
creation of those weapons not be disrupted by other nations acquiring 
the same weapons. Obviously, that could unbalance this stability that 
has been created over time because of the U.S. possession of those 
weapons.
  We now know that the design information for all of the nuclear 
warheads that are currently in our useful arsenal are in the hands of 
people who could cause us harm if they were able to build weapons from 
that data, from those plans. That is a very distressing fact.
  There are ways that we can hope to prevent the development of those 
weapons. It is going to require us to be very careful about what we 
sell to other countries and what we permit by way of technology 
transfer because it is still difficult to build a nuclear weapon even 
if you have the designs. You have to have the materials; you have to 
have the computing capacity and the machining capacity, and all the 
rest of it.

  So there may still be some ability on our part to have control over 
our own destiny. There is no question we have now been put at risk 
because of the theft of these secrets. The National Laboratories, which 
are responsible for developing those nuclear weapons, have begun to 
embark upon a very important project called the Stockpile Stewardship 
Program in which we will attempt to be able to certify the safety and 
reliability of our nuclear stockpile through computing which will 
simulate nuclear testing.
  If that program is compromised, it would, in effect, be the 
compromise of everything we have, not just the design information but 
also our analysis of how all these things work.
  If we cannot protect that, we cannot protect our national security. 
That is one of the reasons why it is important for us to ensure that 
nothing else happens in the way of security breaches at our National 
Labs.
  The Rudman report made it very clear that under the existing 
organization of the Department of Energy, we could not guarantee that. 
There were too many people that had too much influence over things, 
and, in effect, everybody's responsibility became nobody's 
responsibility. As a result, that recommendation was: We have to 
reorganize the Department; and it cannot reorganize itself.
  Congress needs to pass a statute that provides for that 
reorganization. That is why we brought forth the Kyl-Domenici-Murkowski 
amendment. That is why I am very proud of the fact that soon the Senate 
is going to vote to approve that amendment. By putting it on the 
intelligence authorization bill, we will enable it to become the law of 
the land and enable the Department of Energy to be reorganized with 
this semiautonomous agency having jurisdiction over the nuclear 
programs, including the National Laboratories.
  That will be a very big step. No one should rest easy that this is 
the end of the issue, that we do not have to worry about spying, that 
this will stop the espionage or the release of secrets that other 
people should not have. But at least it is one thing we can do, and we 
believe it will have a significant impact in at least this one area.
  I guess one of the things many of us were saying was: If we can't do 
this now, after all of this time, then we think it is fairly clear we 
can't protect the national security of the United States.
  I am not saying this is easy. But if we cannot accomplish this 
reorganization, then, frankly, we are not up to the task. That is why I 
am so glad we are going to be able to effect this reorganization. After 
we pass this bill, I am very hopeful that our friends in the House will 
be willing to work with us. If they have additional ideas, obviously, 
we want to work with them. But we need to send to the President a bill 
that he can sign. After all, his own advisory board made the 
recommendations we are attempting to follow.
  If I am correct that what we have done has resulted in a broad 
bipartisan consensus, we will be able to make it clear to the executive 
branch of the Government that it is the will of the Congress--not just 
one party, the majority party of the Congress--and that should enable 
us to also then gain the support from the Secretary of Energy, who has 
acknowledged that he supports the basic concept of a semiautonomous 
agency but had some disagreements with us about specifics. By making 
some changes that go some distance toward meeting his objections, I 
hope we will not only have the support of both Democrats and 
Republicans in the Congress but also the Secretary of Energy because we 
have to get about this quickly.

  There is no reason, after the Senate acts today, hopefully, that the 
process cannot begin in anticipation of the fact that this will be the 
law. No one has to wait until September or whatever date we might 
actually be able to get the President's signature on this law. This 
Secretary of Energy has a great opportunity; as the person who came 
into office about the time all of these revelations were made public 
and who himself began to make some changes in a positive way, he is in 
a unique position now to take advantage of the reorganization that we 
will present to him and actually institute the changes so that his 
successor, a year and a half from now, whoever that might be, 
presumably will have in place a very well-functioning Department of 
Energy with a semiautonomous agency in charge of our nuclear weapons 
programs.
  That is something this Secretary will have the opportunity to do. But 
it is a real challenge for him. If he is able to accomplish that, he 
will certainly have earned his place in history. Meanwhile, it is up to 
us to earn our place in history by adopting this legislation and moving 
the process forward.
  I am very hopeful we will not see any additional delays now. There 
have been some in the past. I had complained about that earlier in the 
day. I am hopeful we will not see any additional delays, that we will 
move this legislation forward, get it signed into law, and get it 
implemented. If we do that, we will be proud of the fact that we have 
helped the security of the people of the United States of America.
  Mr. President, I will soon propound a request with respect to a vote 
on my amendment. I will check with a couple other people before I do 
that. But, again, I think Members should expect that pretty soon we 
will be having a vote on this amendment.
  Mr. CRAIG. Mr. President, I rise to engage in a colloquy with my 
colleague from New Mexico, Senator Domenici, regarding an issue 
associated with the implementation of the Kyl, Domenici, Murkowski 
amendment. This amendment creates a new semi-autonomous Agency for 
Nuclear Stewardship within the Department of Energy by collecting 
together various national security programs and nuclear weapons 
laboratories and facilities into a new agency. My state of Idaho hosts 
two Department of Energy laboratories--the Idaho National Engineering 
and Environmental Laboratory and Argonne National Laboratory West. 
Since these laboratories do not meet the definition of nuclear weapons 
laboratories, they are not included in the amendment, but I want to 
raise for my colleagues some of the complexities of implementing this 
new organizational structure.
  As I said, the laboratories in my state are not included in the 
proposal for the new agency but it is important to understand that 
Idaho's laboratories are making significant contributions to national 
security. Just as my colleagues from New Mexico have mentioned earlier 
in this debate, that we

[[Page S8928]]

must do nothing to impede the continued contribution of the weapons 
laboratories to the critical civilian missions of the Department of 
Energy, I want to emphasize and confirm my colleague's agreement that 
the non-weapons laboratories shall continue to contribute and have 
their capabilities made available to the national security programs of 
the Department of Energy.
  To clarify this point, I would like to use a specific example from 
the Idaho National Engineering and Environmental Laboratory. The 
Advanced Test Reactor, or ATR, in Idaho is the only world-class test 
reactor left in the United States. I do not state this as a boast, but 
as a fact. The ATR has a vital role in both improving the operation of 
the nuclear Navy and supporting our nation's future nuclear energy 
research and development endeavors. In addition, this important 
facility has the potential to attract significant international 
interest and investment. I am concerned that this amendment, which 
moves the Naval Reactors program from under the umbrella of DOE's 
nuclear research and development program to the new agency, will also 
reassign responsibility for this reactor.
  Reassigning the responsibility for this reactor to the new agency 
would be harmful from two perspectives. First, our Naval Reactors 
program is a user of this facility but should not be burdened with its 
operation and maintenance. Second, moving responsibility for this 
reactor out of the nuclear research and development program could 
inadvertently endanger its use by the U.S. civilian and international 
research community. Since this latter use is growing and very important 
to our future civilian nuclear research activities, could I ask my 
colleague from New Mexico to confirm that it is not the intent of this 
amendment to move responsibility for the Advanced Test Reactor when 
moving the Naval Reactors program to the new agency?
  Mr. DOMENICI. In responding, let me first confirm for my friend from 
Idaho that it is not the intent of this amendment to shift or reassign 
responsibility for Idaho's Advanced Test Reactor to the new Agency for 
Nuclear Stewardship. Let me further acknowledge the larger issue that 
my colleague has raised, by stating that under the new Departmental 
structure created by the Kyl, Domenici, Murkowski amendment the 
Secretary of Energy should continue to ensure that the capabilities, 
skills and unique expertise of all of the Department's laboratories are 
made available to the national security programs of DOE. In this way, 
the beneficial collaboration between defense and non-defense sectors of 
the Department--a collaboration that has been taking place over the 
entire history of DOE--will continue under the new structure.
  Mr. CRAIG. I thank my colleague for that clarification and assurance. 
The Naval Reactors program has a proud history in Idaho. All spent 
naval nuclear fuel is sent to Idaho for examination and storage pending 
its permanent disposition. Although Idaho's facilities are not included 
in the new agency, I am assured that the many ways in which Idaho's 
laboratories contribute to our national security will continue under 
this new organizational structure.
  Mr. LIEBERMAN. Mr. President, I rise today in support of Mr. 
Domenici's amendment to the Department of Energy reorganization 
amendment. I have been a strong supporter of the need to reorganize the 
defense labs in order to improve security and I applaud the sponsors of 
the reorganization amendment that we will be considering. It is of 
overriding importance that we take all necessary actions to protect our 
national security.
  However, as I have considered the very serious need to address 
security threats, I have also been listening closely to the debate 
about how environment, safety, and health protections can best be 
incorporated into the Department of Energy's operations as they relate 
to the weapons labs.
  The legacy of the Atomic Energy Commission and the Department of 
Energy regarding environmental protection is not a proud one. Since the 
first days of the Atomic Energy Commission over 40 years ago, weapons 
production programs and facilities emphasized production and too often 
neglected environmental safety. By the 1980s, the history of 
mismanagement caught up with the Agency, when 17 major plants in 13 
states, employing 80,000 people were brought to a standstill because of 
a series of accidents and leaks. Over 10,000 individual sites have been 
documented where toxic or radioactive substances were improperly 
abandoned or released into soil, groundwater, or surface waters. 
``Tiger Teams'' of trained investigators were sent to plants to ensure 
compliance with environmental and safety requirements. The Agency and 
the public have paid for the cost of this mismanagement: the price tag 
of past mistakes is now at about $250 billion dollars, or $6 billion a 
year. Clearly we have to learn from the past as we think about how to 
deal with environment and safety in the future.
  Based on the Rudman report, there is a strong case made for treating 
environment and safety issues separately. Our former colleague Warren 
Rudman himself has said that environment and health issues ``ought to 
stay where they ought to stay, with the Secretary . . . because I know 
what we all went through back during the 1980s.'' GAO has testified on 
numerous occasions that independent oversight is critical to ensuring 
adequate protection of health and safety. They have said explicitly 
that this oversight needs to encompass on-site reviews of compliance 
with environmental and safety laws.
  Much has changed since the time that rampant disregard for 
environmental protections at the labs was discovered. Over time, we as 
a society, within industry, and within government have come to 
incorporate environment and health concerns more fully into both policy 
and practice. And I have no reason to believe that there would be any 
intentional disregard for environmental and health concerns if the 
those functions were put under the supervision of the Agency for 
Nuclear Stewardship. However, given the potential magnitude of problems 
that could be caused even by simple, honest mistakes, the best course 
of action is to be prudent. I therefore support the Domenici amendment 
because it allows the Secretary of the Department of Energy to ensure 
compliance with all environmental, safety and health requirements, 
while protecting the security of the weapons labs. I am pleased that we 
were able to work out this issue as part of the restructuring proposal.
  Ms. COLLINS. Mr. President, I rise today as a cosponsor to the Kyl/
Domenici/Murkowski amendment requiring reorganization of the Department 
of Energy.
  Over the past several months, I have been deeply troubled by the 
revelations regarding the efforts made by the People's Republic of 
China to acquire our most sensitive technology. The report of the House 
Select Committee revealed that design information has been stolen on 
all of the nuclear warheads that the United States currently has 
deployed. Among the material stolen by China was design information on 
the W-88, the most sophisticated nuclear weapon the U.S. has ever 
built. We use the W-88 on the sixth-generation ballistic missiles 
carried aboard our nuclear submarine fleet.
  With this information, the PRC has rapidly assimilated stolen nuclear 
secrets into its own weapons systems and advanced their nuclear program 
by approximately forty years. Not only am I deeply concerned about 
these incidents of espionage, I am even more disturbed by the 
lackadaisical response by the Clinton Administration. After learning 
about the theft of information in 1995, the Administration failed to 
undertake a serious reassessment of our intelligence community. When 
questioned a few months ago about the Department of Energy's security 
structure, Secretary Bill Richardson commented, ``whoever figured it 
out must've been smoking dope or drunk.'' What a sobering assessment, 
indeed, of the state of security at our nuclear weapons laboratories. 
In fact, only after the espionage accounts hit the news media earlier 
this year did the President take any action to reevaluate the security 
of our weapons labs.
  In March, the President requested that the President's Foreign 
Intelligence Advisory Board (PFIAB) undertake an inquiry and issue a 
report on the security threat at the Department of Energy's weapons 
labs. This review, chaired by the former Senator Warren B. Rudman, 
found that the Department of Energy is responsible for the worst 
security record that the members of

[[Page S8929]]

the advisory board had ever encountered. The Department devoted far too 
little time, attention, and resources to the responsibilities of 
security and counterintelligence. Without change, it is feared that the 
Department of Energy laboratories would continue to be a major target 
of foreign intelligence services. According to the Rudman report, the 
only way to combat these problems is through a reorganization which 
takes the oversight of our weapons labs away from the ``dysfunctional 
bureaucracy'' of the Department of Energy and gives it to a new, semi-
autonomous agency.
  The Kyl/Domenici/Murkowski amendment, which I am pleased to 
cosponsor, will begin the reform efforts at the Department of Energy by 
establishing a separate organizational entity, the Agency for Nuclear 
Stewardship, with clear lines of authority, accountability, and 
responsibility. These changes will help correct the current 
organizational disarray and ensure that all programs and activities 
related to national security functions receive proper attention and 
oversight. These changes will strengthen the security and protection of 
our most vital technological secrets and ensure that if violations do 
occur, the responsible parties are readily identified, and the proper 
corrective actions put into place immediately.
  I urge my colleagues to join with us in support of this amendment to 
help ensure the security of our nation for years to come.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BRYAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BRYAN. Mr. President, I thank the Chair. I ask unanimous consent 
that the pending amendment be set aside momentarily for the purpose of 
considering an amendment that I propose to offer.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1269

 (Purpose: To terminate the exemption of certain contractors and other 
    entities from civil penalties for violations of nuclear safety 
           requirements under the Atomic Energy Act of 1954)

  Mr. BRYAN. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Nevada [Mr. Bryan] proposes an amendment 
     numbered 1269.

  Mr. BRYAN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the appropriate place in the bill, insert the following:

     SEC. __. TERMINATION OF EXEMPTION OF CERTAIN CONTRACTORS AND 
                   OTHER ENTITIES FROM CIVIL PENALTIES FOR 
                   VIOLATIONS OF NUCLEAR SAFETY REQUIREMENTS UNDER 
                   ATOMIC ENERGY ACT OF 1954.

       (a) Nonprofit Educational Institutions.--Subsection b. (2) 
     of section 234A of the Atomic Energy Act of 1954 (42 U.S.C. 
     2282a) is amended by striking the second sentence.
       (b) Liability of Nonprofit Contractors.--Subsection b. of 
     that section is further amended by adding at the end the 
     following:
       ``(3)(A) Subject to subparagraph (B), the amounts of civil 
     penalties for violations of this section by nonprofit 
     contractors of the Department shall be determined in 
     accordance with the schedule of penalties employed by the 
     Nuclear Regulatory Commission under the General Statement of 
     Policies and Procedures for NRC Enforcement for similar 
     violations by nonprofit contractors.
       ``(B) A civil penalty may be imposed on a nonprofit 
     contractor of the Department for a violation of this section 
     only to the extent that such civil penalty, when aggregated 
     with any other penalties under the contract concerned at the 
     time of the imposition of such civil penalty, does not exceed 
     the performance fee of the contractor under such contract.''.
       (c) Specified Contractors.--That section is further amended 
     by striking subsection d..
       (d) Applicability.--The amendments made by this section 
     shall take effect on the date of the enactment of this Act, 
     and shall apply with respect to violations specified in 
     section 234A of the Atomic Energy Act of 1954 that occur on 
     or after that date.

  Mr. BRYAN. Mr. President, I want to call your attention to a 
situation that I became aware of only a short time ago. An article that 
appeared in the June 28 issue of Newsweek caught my attention. It is 
entitled ``Nuclear Leaks of Another Kind.''
  This was in the context of a discussion we have had about some of the 
espionage activity that has occurred in our labs and, particularly, the 
issue as it relates to Los Alamos in recent months. Let me share an 
excerpt so my colleagues will get the flavor of the article and 
understand the amendment I am offering and its underlying purpose.
  The article begins by saying:

       Nuclear secrets aren't the only kind of unauthorized leaks 
     from U.S. weapons labs. According to a General Accounting 
     Office draft report obtained by Newsweek, over the past three 
     weeks, the Los Alamos and Lawrence Livermore labs were 
     assessed fines of hundreds of thousands of dollars for safety 
     violations, including exposing their employees to radiation 
     levels that exceed the standards promulgated by the 
     Department of Energy.

  Then it goes on to say that, under the law, in an anomaly--which the 
occupant of the Chair will readily appreciate because of his own 
extraordinary and impressive legal background--we make a distinction 
with respect to the contractor status of those who work in the DOE 
labs. If the contractor is a contractor who is a private entrepreneur--
that is to say, it is a profit-making contractor--these fines for 
safety violations--one in particular that caught my eye is the 
radiation standards to protect the employees according to the DOE 
promulgated standards. With respect to those fines that would be 
imposed upon a contractor who is a private sector contractor, the fines 
are assessed and collected. But under what I consider an extraordinary 
anomaly in the law, if you are a nonprofit contractor, the very 
violation--again, fundamental to the essence of protecting the health 
and safety of the employees; namely, the radiation standard they would 
be exposed to--for those kinds of violations, a fine is assessed but is 
never collected.
  So in effect we have a totally inconsistent policy. One says that if 
you are a private contractor and you are an entrepreneur and are in the 
business to make money or to profit from that--all of which is very 
legitimate--and you violate one of the DOE's safety regulations and you 
are fined, you are assessed initially, and the fine is collected. If 
you are a nonprofit, you are assessed for the identical violation, but 
it is never collected.
  Let me say that the General Accounting Office report that was 
referenced in this Newsweek article has now been made public in its 
final form. This is a document issued June 1999: General Accounting 
Office, Department of Energy Nuclear Safety, ``Enforcement Program 
Should Be Strengthened.''
  This report gives additional persuasive force to what I propose in 
the amendment. This General Accounting Office report makes an important 
point that if the regulations were promulgated by the Nuclear 
Regulatory Commission, the NRC, no distinction is made between the 
private sector contractor and the public sector contractor. That is to 
say, if a violation occurs with respect to the nonprofit contractor, 
and it is a violation of health and safety standards, then the 
nonprofit is assessed and a fine may be collected. So we have an 
anomaly in the law that makes no public policy sense at all.
  Let me make it clear to my colleagues that it is not my intention to 
impose onerous fines on nonprofit entities that have a contract. But as 
the General Accounting Office makes very clear, the fact that a fine 
may be collected has a deterrent value. As this report further makes 
the point, there is no rational basis--none whatsoever--in making the 
distinction between for-profit and nonprofit contractors, and the 
further point that the purpose of imposing these civil penalties is not 
to collect fines but to encourage contractors to perform safely, that 
is the issue that I seek to address.

  I recognize the concern that the nonprofits raise that, my golly, if 
you change the law, somehow this may constitute an invasion of our 
endowment moneys; that all of this could be compromised. Let me assure 
my colleagues that nothing is further from the truth. That is not what 
I intend.
  So as a further effort to assuage those concerns in the amendment 
that

[[Page S8930]]

is before this body, we would limit any fine that was assessed to the 
amount of the performance fee provided to the nonprofit contractor by 
the Department. Let me repeat that. In effect, we would put a ceiling, 
a limit, if you will, on any fine that would be assessed and would say 
that, in no event, notwithstanding the extent, severity, and the 
extended period of time in which the violation may have occurred, may 
the fine exceed the performance fee that you are provided. It strikes 
me that that addresses fairly and reasonably the concern that a 
nonprofit would have in terms of the potential invasion of the 
endowments.
  The point I seek to emphasize is that nonprofits have a track record 
of some very extensive fines. The assessments, according to the report, 
amount to several hundreds of thousands of dollars. So we are not 
talking about something that is theoretical, hypothetical, or highly 
speculative; it has occurred. And, remember, under current law, with 
respect to nonprofits, a fine can be assessed but never collected. So 
human nature tells us--and our entire legal system is structured on 
this premise--that for people who violate the rules, whether it is a 
speed limit or some other regulation, the fact that one can be fined or 
can be subject to some kind of a sanction, tends to influence our 
behavior in a positive way. That is, we don't do that sort of thing. No 
one is accusing the nonprofits of bad faith. But I must say we have not 
gotten their attention with respect to these violations.

  I conclude, as I began, by describing the nature of these violations. 
We are not talking about some highly technical extenuated rule or 
regulation that only a flyspeck--as we used to say--lawyer could pick 
up. We are talking about something fundamental to the public health and 
safety. That is the radiation standard--the exposure to which employees 
in these laboratories could be exposed.
  I can't think of anything that would be more significant or more 
important in terms of health and safety than to make sure the 
laboratory is adhering to a radiation standard which the Department of 
Energy has promulgated, which they say is to observe to protect health 
and safety.
  Let me say that I have had a little experience in this area, not as a 
technical person, but many years ago in my youth I worked as an 
employee at the Nevada Test Site. Every employee who entered the Nevada 
Test Site was given a badge. That badge had in it a gasometer. The 
reason for that is this was during the days of atmospheric testing 
programs. It was to periodically check to make sure no employee by 
inadvertence or accident was exposed to a higher radiation standard 
than had been determined necessary for the protection of the health and 
safety of that employee.
  In the same spirit, these standards have been imposed to protect the 
health and safety of those individuals who work in the lab. That is the 
kind of violation about which we are talking.
  I have attempted to work some type of an accommodation through the 
very able manager of the bill, and others, particularly the 
distinguished Senator from New Mexico, who understandably have an 
interest in this measure. We have not been able to reach an agreement.
  I want to serve notice that this is not the last time this amendment 
will surface. This is a gross injustice to those employees who serve in 
the lab, and their families. Their health and safety can be endangered. 
And those who would do so face no penalty under the law.
  I will not ask for a rollcall vote on this amendment. I intend to 
withdraw the amendment at the appropriate time, after the distinguished 
chairman of the committee responds. But this is an issue which must be 
addressed. It will be addressed by this Senator. We will have a series 
of votes on this at a later point in time if we are not able to reach 
an accommodation.
  I will be happy to either yield the floor or to respond to any 
questions that the able managers of the bill have.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Alabama.
  Mr. SHELBY. Mr. President, I will be brief.
  First of all, I commend my friend and colleague, Senator Bryan, who 
brought this to the attention of the Senate. We have discussed this 
before. He feels very strongly about it. I believe if you look at it in 
its entirety, it has some merit. But I also think this should be 
addressed at the level of the appropriate committee. At the time when 
he pursues this, I will tell every one of my colleagues to look at this 
very carefully because I believe what he is proposing should be 
evaluated in that light. Personally, I think it has some merit.
  I commend the Senator from Nevada, who is also a member of the 
Intelligence Committee, and a senior member. Perhaps soon he will be 
the vice chairman of the committee--next year.

  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. KERREY. Mr. President, I, too, thank the Senator from Nevada for 
bringing this to our attention. I was not aware of the problem. I look 
forward to the opportunity of having a chance to work with the Senator 
to change the law and to end the problem he has identified.
  Mr. BRYAN. I thank both the Senator from Alabama and the Senator from 
Nebraska, with whom I have the privilege of working closely in the 
Intelligence Committee.
  We need to address that. His comments have been very helpful and 
encouraging. We want to work through this and protect the employees in 
these critically important national security facilities.
  I am not sure of the parliamentary vehicle that I may need to employ. 
If I need to ask unanimous consent to withdraw my amendment--I don't 
think I need that--if I do, I will ask for it.
  If the Chair will guide the gentleman from Nevada, I will ease us out 
of this parliamentary situation.
  The PRESIDING OFFICER. The Senator would need to ask unanimous 
consent to withdraw the amendment.


                      Amendment No. 1269 Withdrawn

  Mr. BRYAN. Mr. President, I ask unanimous consent that the amendment 
be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 1269) was withdrawn.
  Mr. BRYAN. I thank the Chair. I thank my colleagues.


                           Amendment No. 1258

  Mr. SHELBY. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The pending business is the amendment of the 
Senator from Arizona, Mr. Kyl.
  Mr. SHELBY. I urge adoption of the amendment, and I ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. If there is no further debate, the question is 
on agreeing to the amendment. On this question, the yeas and nays have 
been ordered, and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) 
and the Senator from Vermont (Mr. Jeffords) are necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 96, nays 1, as follows:

                      [Rollcall Vote No. 216 Leg.]

                                YEAS--96

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bunning
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McConnell
     Mikulski
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes

[[Page S8931]]


     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone

                                NAYS--1

       
     Wyden
       

                             NOT VOTING--3

     Jeffords
     Kennedy
     McCain
  The amendment (No. 1258), as amended, was agreed to.
  Mr. SHELBY. Mr. President, I move to reconsider the vote.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SHELBY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SHELBY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Unanimous-Consent Request

  Mr. SHELBY. Mr. President, I ask unanimous consent that it now be in 
order to offer a substitute amendment which consists of the committee-
reported bill, S. 1009, a managers' package of amendments, and all 
previously agreed to amendments. The substitute is at the desk, and I 
ask for its consideration.
  The PRESIDING OFFICER. Is there objection?
  Mr. KYL. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. KYL. There is an issue we have to work out before we can proceed.
  Mr. SHELBY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, I ask unanimous consent that I be permitted 
to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________