[Congressional Record Volume 146, Number 127 (Thursday, October 12, 2000)]
[Senate]
[Pages S10412-S10424]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
Mr. AKAKA (for himself and Mr. Levin):
S. 3190. A bill to amend chapter 23 of title 5, United States Code,
to clarify the disclosures of information protected from prohibited
personnel practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements conform
with certain disclosure protection, provide certain authority for the
Special Counsel, and for other purposes; to the Committee on
Governmental Affairs.
WHISTLEBLOWER PROTECTION ACT
Mr. AKAKA. Mr. President, as the ranking member of the Federal
Services Subcommittee, I am pleased to introduce legislation to amend
the Whistleblower Protection Act, WPA, one of the cornerstone of our
nation's good government laws. Enacted in 1989, the WPA is intended to
protect federal employees from workplace retaliation when disclosing
waste, fraud, or abuse. The law was passed unanimously in 1989, and
strengthened through amendments in 1994, again with unanimous support
of both houses of Congress. I am joined today by Senator Levin, who was
a primary sponsor of the landmark 1989 Act and the 1994 amendments.
A key goal of the Whistleblower Protection Act was to close the
loopholes that had developed under prior law. Back in 1978, Congress
passed the Civil Service Reform Act, which included statutory
whistleblower rights that elevated certain disclosures to absolute
protection due to their public policy significance. The 1978 Act
protected ``a'' disclosure evidencing a reasonable belief of specified
misconduct, with certain listed statutory exceptions--classified or
other information whose release was specifically barred by other
statutes. Despite statutory language, the Federal Court of Appeals, the
Merit Systems Protection Board, and the Office of Special Counsel--all
created in 1978 to investigate and adjudicate the WPA--appeared to
interpret the law as discretionary rather than absolute.
This removed the law's foundation. Congress, in 1978, had intended to
create absolute categories of protection to end the inherent chilling
effect in constitutional balancing tests that required employees to
guess whether they were covered by the First Amendment. Congress sought
to eliminate the confusion by resolving the balance in favor of free
speech rights for serious misconduct listed in the statute.
Unfortunately, the Federal Circuit and administrative agencies did not
respect this mandate and created loopholes based on factors irrelevant
to the public, such as whether an employee had selfless motives or was
the first to expose particular misconduct.
As a result, a cornerstone of the Whistleblower Protection Act was to
close these loopholes that arose under prior law by amending protection
of ``a'' disclosure to ``any'' disclosure which meets the law's
standards. The purpose was to clearly prohibit any new exceptions to
the law's coverage. Only Congress has that authority. Again, however,
in both formal and informal interpretations of the Act, loopholes
continued to proliferate.
Congress responded to this reluctance to abide by congressional
intent through the passage of the 1994 amendments. The Governmental
Affairs Committee report on the amendments rebutted prior
interpretations by the Federal Circuit, the Merit Systems Protection
Board, and the Office of Special Counsel that there were exceptions to
``any.'' The Committee report concluded, ``The plain language of the
Whistleblower Protection Act extends to retaliation for `any
disclosure,' regardless of the setting of the disclosure, the form of
the disclosure, or the person to whom the disclosure is made.''
I am pleased to note that since the enactment of the 1994 amendments,
both the Office of the Special Counsel and the Merit Systems Protection
Board generally have honored congressional boundaries. However, the
Federal Circuit continues to disregard clear statutory language that
the Act covers disclosures made to supervisors, to possible wrongdoers
(Horton v. Dept. of Navy 66 F.3d 279, 1995), or as part of their job
duties. (Willis v. Dept. of Agriculture, 141 F.3d 1139, 1998).
In order to protect the statute's cornerstone that ``any" lawful
disclosure evidencing significant abuse is covered by the Whistleblower
Protection Act, our bill would codify the repeated and unconditional
statements of congressional intent and legislative history. It would
amend sections 2302(b)(8)(A) and 2302(b)(8)(B) of title 5, U.S.C. to
protect any disclosure of information. This would be without
restriction to time, place, form, motive or context, made to any
audience unless specifically excluded in section 2302(b)(8) by an
employee or applicant, including a disclosure made in the ordinary
course of an employee's duties, which the employee or applicant
reasonably believes evidences any violation of any law, rule, or
regulation, or other misconduct specified in section 2302(b)(8). These
include gross waste, gross mismanagement, abuse of authority, or a
substantial and specific danger to public
[[Page S10413]]
health or safety. Consistent with current law, if the disclosure
evidences a prohibited personnel practice against the employee making
the disclosure, his or her remedy will continue to be available through
section 2302(b)(9), rather than section 2302(b)(8).
The exceptions resulting from the Federal Circuit's rulings defeat
the underlying good government goals of the Whistleblower Protection
Act by removing protection where it counts the most: for federal
employees, who acting as public servants, are carrying out their
responsibilities to the public as employees of their agencies. By
stripping protection from in-house disclosures, the Federal Circuit
imposed loopholes that chill employees from working within their
agencies to address potential waste, mismanagement, or abuse issues. If
employees seek to solve problems within the chain of command, they
could forfeit their rights to whistleblower protection from subsequent
retaliation under the Court's rulings in Horton and Willis. To maintain
protection against reprisal, federal employees must now bypass normal
organizational activities responsible for implementing the law.
Moreover, the loophole created by Willis removes protection when
employees are performing their job duties. Because of the Court's
rulings, the intent of the Act to create an environment where federal
employees can safely serve the public on the job has been compromised.
Secondly, the legislation would institutionalize a principle
currently expressed by a ban on spending on enforcement of any
nondisclosure agreement that does not contain language specifically
protecting an employee's rights under various open government statutes.
This includes the Whistleblower Protection Act, the Military
Whistleblower Protection Act, and the Lloyd Lafollette Act, which
prohibits discrimination against government employees who communicate
with Congress. This prohibition has been passed on an annual basis
since 1988 as part of the yearly appropriations process. Our bill would
make it a prohibited personnel practice to take a personnel action
implementing or enforcing nondisclosure rules without specific notice
of the listed statutes and their supremacy in the event of a conflict.
The appropriations provision, known as the ``anti-gag statute,'' has
proved effective against attempts by agencies to override the
Whistleblower Protection Act through prior restraint. The law
originally passed as a spending control against abuses of national
security secrecy, in which as a procedural prerequisite for security
clearances, employees had to waive their constitutional and statutory
free speech rights. Since its passage, however, it has been useful
against gag orders in broad areas of specific and generic public
concerns, including gag orders imposed as a precondition for employment
and resolution of disputes, as well as general agency policies barring
employees from communicating directly with Congress or the public.
Prior restraint not only has a severe chilling effect, but strikes at
the heart of this body's ability to perform its oversight duties by
negating the repeatedly reaffirmed unequivocal congressional policy
that whistleblowers have the right to make protected disclosures
anonymously as a way to prevent retaliation.
Disclosing classified information is prohibited by law except to
specific audiences listed in section 2302 and would not be a protected
disclosure under this legislation. Nor would this legislation require
the Merit System Protection Board to review security clearance
determinations. The Supreme Court clearly spoke on this issue in Dept.
of the Navy v. Egan, 484 U.S. 518 (1988), which found that denial of a
security clearance is not . . . an ``adverse action.'' The Court upheld
the Board's jurisdiction over due process procedures underlying a
clearance decision. Egan stands as a bright line test, and if an
employee requests review of the substantive judgments underlying a
security clearance, OSC examiners, administrative judges, and members
of the MSPB would be justified in denying jurisdiction. However, the
Board could have jurisdiction if an employee complained that he or she
suffered a prohibited personnel practice, because he or she was forced
to sign an illegal nondisclosure agreement or its terms were enforced,
regardless of context.
Congress repeatedly has reaffirmed its intent that employees should
not be forced to sign agreements that supercede an employee's rights
under good government statutes. Moreover, Congress has unanimously
supported the concept that federal employees should not be subject to
prior restraint from disclosing wrongdoing nor suffer retaliation for
speaking out.
Lastly, the bill provides the Special Counsel with authority to
appear and represent the interests of the Office of Special Counsel in
civil actions brought in connection with the exercise of its authority
to protect the merit system against prohibited personnel practices
under section 2302(b)(8) and violations of the Hatch Act. It also gives
the Special Counsel the right to seek review of decisions by the Merit
Systems Protection Board before the Federal Circuit where the Special
Counsel determines that the Board issued an erroneous decision in a
whistleblower retaliation case or in a case arising under the Hatch
Act, or that the Board's decision will have a substantial impact on the
enforcement of those laws.
Under the bill, in Board cases in which the Special Counsel was not a
party, the Special Counsel must first petition the Board for
reconsideration of its decision before seeking review. The Court of
Appeals shall grant petitions for review by the Special Counsel at its
discretion.
This additional authority would enable the Office of Special Counsel
to fulfill its statutory missions more effectively to protect federal
whistleblowers against retaliation and to enforce the Hatch Act. While
OSC, under current law, has a central role as public prosecutor in
cases before the Merit Systems Protection Board, it in no way
authorizes OSC to seek judicial review of an MSPB decision that the
Special Counsel considers erroneous. Our legislation recognizes that
providing the Special Counsel the authority to seek such review--in
precedential cases--is crucial to ensuring the promotion of the public
interests furthered by these statutes.
Moreover, under existing law, the Special Counsel cannot appear to
represent himself or herself as a party, or even as an amicus curiae,
where another party has invoked the jurisdiction of the Court of
Appeals in a whistleblower retaliation or Hatch Act case. As a result,
the Special Counsel, who Congress intended would be a vigorous,
independent advocate for protection of the merit system, cannot
participate at all in the arena in which the law is largely shaped: the
Court of Appeals for the Federal Circuit. This bill reflects our
conviction that the public interests underlying the whistleblower
retaliation laws and the Hatch Act are best served by ensuring that the
Special Counsel's views are considered by the Court in important cases.
Mr. President, there is significant history that defines
congressional intent with respect to ensuring that federal
whistleblowers are protected from retaliatory measures. It is my
intention that this bill will begin the needed dialogue to guarantee
that any disclosures within the boundaries of the statutory language
are protected. As the ranking member of the Federal Services
Subcommittee, I will seek hearings in the next Congress on the
Whistleblower Protection Act and the amendments I am proposing today.
It is my intention to request a hearing that would be independent of
any reauthorization hearing held for the MSPB and the OSC, both of
whose authority expires in 2002.
There is strong support for the legislation Senator Levin and I are
introducing today. I ask unanimous consent, in addition to the text of
the bill, that I be allowed to insert into the Record immediately
following my statement, a petition signed by the heads of 72
organizations urging Congress to restore the Whistleblower Protection
Act to its 1994 boundaries. Among the 70-plus groups that support this
effort are the AFL-CIO, American Federation of Government Employees,
Blacks in Government, National Association of Treasury Agents, National
Treasury Employees Union, Common Cause, and the Federation of American
Scientists. I also wish to extend my appreciation to the Special
Counsel and the Acting Chair of the Merit Systems Protection Board for
the technical assistance they provided. Lastly, I would
[[Page S10414]]
like to commend the Government Accountability Project for its
dedication and perseverance over the years. Since 1977, GAP has sought
to protect the public interest and promote government accountability by
defending whistleblowers.
I urge my colleagues to join me in the effort to ensure that
congressional intent embodied in the Whistleblower Protection Act is
codified to ensure that the law is not weakened further.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 3190
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.
(a) Clarification of Disclosures Covered.--Section
2302(b)(8)(A) of title 5, United States Code, is amended--
(1) by striking ``by an employee or applicant'' and
inserting ``, without restriction to time, place, form,
motive, or context, made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties,''; and
(2) in clause (i) by striking ``a violation'' and inserting
``any violation''.
(b) Nondisclosure Policies, Forms, and Agreements.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x) by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(2) Prohibited Personnel Practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement:
`` `These provisions are consistent with and do not
supersede, conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by Executive
Order No. 12958; section 7211 of title 5, United States Code
(governing disclosures to Congress); section 1034 of title
10, United States Code (governing disclosure to Congress by
members of the military); section 2302(b)(8) of title 5,
United States Code (governing disclosures of illegality,
waste, fraud, abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50 U.S.C. 421
et seq.) (governing disclosures that could expose
confidential Government agents); and the statutes which
protect against disclosures that could compromise national
security, including sections 641, 793, 794, 798, and 952 of
title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.' ''.
(c) Authority of Special Counsel Relating to Civil
Actions.--
(1) Representation of special counsel.--Section 1212 of
title 5, United States Code, is amended by adding at the end
the following:
``(h) Except as provided in section 518 of title 28,
relating to litigation before the Supreme Court, attorneys
designated by the Special Counsel may appear for the Special
Counsel and represent the Special Counsel in any civil action
brought in connection with section 2302(b)(8) or subchapter
III of chapter 73, or as otherwise authorized by law.''.
(2) Judicial review of merit systems protection board
decisions.--Section 7703 of title 5, United States Code, is
amended by adding at the end the following:
``(e) The Special Counsel may obtain review of any final
order or decision of the Board by filing a petition for
judicial review in the United States Court of Appeals for the
Federal Circuit if the Special Counsel determines, in the
discretion of the Special Counsel, that the Board erred in
deciding a case arising under section 2302(b)(8) or
subchapter III of chapter 73 and that the Board's decision
will have a substantial impact on the enforcement of section
2302(b)(8) or subchapter III of chapter 73. If the Special
Counsel was not a party or did not intervene in a matter
before the Board, the Special Counsel may not petition for
review of a Board decision under this section unless the
Special Counsel first petitions the Board for reconsideration
of its decision, and such petition is denied. In addition to
the named respondent, the Board and all other parties to the
proceedings before the Board shall have the right to appear
in the proceedings before the Court of Appeals. The granting
of the petition for judicial review shall be at the
discretion of the Court of Appeals.''.
Whistleblower Protection Act Petition--Signers as of October 3, 2000
Whereas: The undersigned organizations believe that freedom
of speech is the foundation of democracy, and agree with
Congress' repeated judgment that it is sound public policy to
prohibit reprisals against whistleblowers who challenge
Executive branch misconduct through disclosures of
illegality, mismanagement, abuse of authority, gross waste
and substantial and specific danger to public health or
safety; and
Whereas: The Whistleblower Protection Act (WPA) is the
nation's premier good government statute to protect federal
workers who risk retaliation by disclosing betrayals of the
public trust; and
Whereas: There is an overwhelming legislative mandate for
this law, which Congress passed unanimously in 1989 and
unanimously strengthened in 1994; and
Whereas: The law needs to be further strengthened, rather
than weakened. Government surveys have confirmed that some
half million employees annually witness serious government
misconduct but choose to do nothing; and
Whereas: The Federal Circuit Court of Appeals, which has a
monopoly of judicial review for the Act, has functionally
overturned the law since congressional approval of 1994
amendments strengthening it; and
Whereas: The Court has created a series of loopholes in the
WPA removing the Act's coverage in the most common scenarios
where it is needed:
when employees blow the whistle to co-workers, superiors or
others in the chain of command, or to suspected wrongdoers;
when employees' disclosures challenge policies that are
illegal or otherwise improper, or
when employees make disclosures in the course of doing
their jobs.
These loopholes flatly contradict explicit 1989 statutory
language, which protects disclosures in ``any'' context, and
1994 legislative history warning the Federal Circuit that
``any'' means ``any,'' without restrictions and defining it
to ban exceptions for ``time, place, motive or context;'' and
Whereas: In 1999 the Court made it practically impossible
or anyone to be recognized as deserving whistleblower
protection regardless of circumstances. Under the Act passed
by Congress, whistleblowers qualify for protection if they
make disclosures that they ``reasonably believe evidences''
wrongdoing. However, without an explanation of the basis for
overturning some twenty years of prior precedent, the Court
ruled that an employee does not qualify for protection
without ``irrefragable proof'' of the alleged wrongdoing.
Webster's Dictionary defines ``irrefragable'' as
``incontrovertible, undeniable, incapable of being
overthrown;'' and
Whereas: The practical impact of the decision is that if
there are two sides to a story about alleged misconduct, it
is not possible for a federal employee to be protected as a
whistleblower. In light of this decision, no organization can
responsibly advise whistleblowers that they have a realistic
chance of defending themselves; and
Whereas: In the same 1999 decision, the Court ordered that
every employee who exercise Whistleblower Protection Act
rights must be investigated to determine whether the employee
had a conflict of interest for raising the issue in the first
place. As a result, the Act actually subjects whistleblowers
to intimidation and harassment rather than protecting them
from it. This violates Congress' 1994 ban on retaliatory
investigations for engaging in protected activity such as
exercising appeal rights; and
Whereas: There has never been any expression of legislative
support either for the loopholes created by the Court or its
requirement that whistleblowers prove their charges
``irrefragably.'' The court' extremist activism overturned
the repeatedly stated unanimous intent. Restoring the
congressional mandate does not require opening any new
debates on previously resolved issues; and
Whereas: A cornerstone of any free speech law is
prohibiting prior restraint, threats and pre-emptive strikes
that silence employees through mandatory nondisclosure
agreements and gag orders. For over 12 years Congress has
passed an annual spending ban on enforcing such gag orders.
The time has come to eliminate the uncertainty of annual
renewal for this free speech cornerstone.
Therefore: We, the undersigned organizations, petition
Congress to restore the Whistleblower Protection Act to its
1994 boundaries, prevent recurrence of judicial activism that
neutralizes the value of this good government law and
permanently pass the prohibition on gag orders. This can
occur by codifying current appropriations language and prior
WPA legislative history to cancel judicial decisions that
unraveled the law, and by restoring normal judicial review in
any U.S. Circuit Court of Appeals--the normal course under
the Administrative Procedures Act and the structure approved
by Congress when the Civil Service Reform Act of 1978 was
passed.
James K. Wyerman, Executive Director, 20/20 Vision.
Laurence E. Gold, Associate General Counsel, AFL-CIO.
Joseph LeBeau, Director, Alaska Center for the Environment,
Palmer, AK.
Ross Coen, Executive Director Alaska Forum on Environmental
Responsibility, Fairbanks, AK.
Charles Hamel, on behalf of AlaskaGroupSix.org (the
anonymous Trans-Alaska pipeline whistleblowers).
Cindy Shogun, Executive Director, Alaska Wilderness League.
[[Page S10415]]
Carol Bernstein, Ph.D., American Association of University
Professors, Arizona Conference, Tucson, AZ.
Bobby Harnage, President, American Federation of Government
Employees (AFGE).
Charles M. Loveless, Director of Legislation, American
Federation of State, County & Municipal Employees (AFSCME).
Mary Ellen McNish, General Secretary, American Friends
Service Committee, Philadelphia, PA.
Steve Holmer, Campaign Coordinator, American Lands
Alliance.
D.W. Bennett, Executive Director, American Littoral
Society, Broad Channel, NY.
J. Terrence Brunner, Executive Director, Better Government
Association, Chicago, IL.
Gerald Reed, National President, Blacks In Government.
Michael Cavallo, President, Cavallo Foundation, Cambridge,
MA.
Ron Daniels, Executive Director, Center for Constitutional
Rights, New York, NY.
Joseph Mendelson, III, Legal Director, Center for Food
Safety.
David Hunter, Executive Director, Center for International
Environmental Law.
Robert E. White, President & William Goodfellow, Executive
Director, Center for International Policy.
Craig Williams Director, Chemical Weapons Working Group and
Common Ground, Berea, KY.
Gwen Lachelt, Executive Director, Citizens Oil and Gas
Support Center, Durango, CO.
Phil Doe, Citizens Progressive Alliance, Denver, CO.
Anne Hemenway, Treasurer, Citizen's Vote, Inc.
Lynn Thorp, National Programs Coordinator, Clean Water
Action.
Scott Harshbarger, President, Common Cause.
Joan Kiley, Executive Director, Community Recovery
Services, Berkley, CA.
Joni Arends, Waste Programs Director, Concerned Citizens
for Nuclear Safety, Santa Fe, NM.
Travis Plunkett, Legislative Director, Consumer Federation
of America.
James Love, Director, Consumer Project on Technology.
Marc Rotenberg, Executive Director, Electronic Privacy
Information Center.
Richard J. Baldes, Senior Biologist, Environmental Legacy,
Washakie, WY.
John Richard, Executive Director, Essential Information.
Steve Aftergood, Project Director, Federation of American
Scientists.
John C. Horning, Watershed Protection Program, Forest
Guardians, Santa Fe, NM.
Andy Stahl, Executive Director, & Jeff DeBonis, Founder,
Forest Service Employees for Environmental Ethics (FSEEE),
Eugene, OR.
Courtney Cuff, Legislative Director, Friends of the Earth.
Conrad Martin, Executive Director, Fund for Constitutional
Government.
Tom Devine, Legal Director, Government Accountability
Project.
Bill Hedden, Utah Conservation Director, Grand Canyon
Trust, Moab, UT.
Bill Sheehan, Network Coordinator, GrassRoots Recycling
Network, Athens, GA.
Gary Wolf, Co-Chair, Green Party of Tennessee.
James C. Turner, Executive Director, HALT: An Organization
of Americans for Legal Reform.
Rebecca Clarren, Assistant Editor, High Country News,
Paonia, Colorado.
Scott Armstrong, Executive Director, Information Trust.
Don Soeken, Ph.D., Director, Integrity International,
Laurel, MD.
Peter Hille, Chairman, Kentucky Environmental Foundation,
Berea, KY.
Steve D'Esposito, Executive Director, Mineral Policy
Center.
Russell Hemenway, President, National Committee for an
Effective Congress.
Brett Kay, Health Policy Associate, National Consumers
League.
Patricia Ireland, President, National Organization for
Women.
Colleen M. Kelley, National President, National Treasury
Employees Union.
Stephen M. Kohn, Chairperson, Board of Directors, National
Whistleblower Center.
Audrie Krause, Executive Director, NetAction.
Elizabeth Crowe, Director, Non-Stockpile Chemical Weapons,
Citizens Coalition, Berea, KY.
Bill Smirnow, Director, Nuclear Free New York, Huntington,
NY.
Michael Mariotte, Executive Director, Nuclear Information
and Resource Service.
Fred Fellerman, Northwest Director, Ocean Advocates,
Seattle, WA.
Gary Bass, Executive Director, OMB Watch.
Ken Rait, Conservation Director, Oregon Natural Resources
Council, Portland, OR.
Danielle Brian, Executive Director, Project On Government
Oversight.
Frank Clemente, Director, Public Citizen Congress Watch.
Wenonah Hauter, Executive Director, Public Citizen Critical
Mass Energy and Environment Program.
Jeff DeBonis, Founder & Dan Meyer, General Counsel, Public
Employees for Environmental Responsibility.
Lucy Dalglish, Executive Director, Reporters Committee for
Freedom of the Press.
Tim Little, Executive Director, Rose Foundation for
Communities and the Environment, Oakland, CA.
Scott Denman, Executive Director, Safe Energy Communication
Council.
James W. Moorman, President, Taxpayers Against Fraud.
Jude Filler, Executive Director, Texas Alliance for Human
Needs, Austin, TX.
Ann Hoffman, Legislative Director, Union of Needletrades,
Industrial and Textile Employees (UNITE).
Marcia Hanscom, Executive Director, Wetlands Action
Network, Malibu, CA.
Dan Heilig, Executive Director, Wyoming Outdoor Council,
Lander, WY.
______
By Mr. TORRICELLI:
S. 3191. A bill to create a Federal drug court program, and for other
purposes; to the Committee on the Judiciary.
federal drug courts foundation act of 2000
Mr. TORRICELLI. Mr. President, I rise today to introduce the
``Federal Drug Courts Foundation Act of 2000.'' This legislation will
usher in an new era in the struggle against drug-related crime by
establishing a system of federal drug courts. These courts will help
bring an end to the cycle of repeated and escalating crimes committed
by small-time drug offenders. As General Barry McCaffrey has said:
``The establishment of drug courts . . . constitutes one of the most
monumental changes in social justice in this country since World War
II.''
Mr. President, I have long fought against the scourge of drug-related
crime that has plagued this nation. The legislation I introduce today
will continue that fight by creating a three-year pilot program
establishing federal drug courts in ten cities selected by the
Department of Justice.
Drug courts are a response to the fact that more than fifty percent
of state parole violators were under the influence of drugs, alcohol,
or both when they committed their new offense. They represent a
creative new way to address this disturbing fact and are aimed at
cleaning up first-time, small-time offenders through comprehensive
supervision, drug testing and treatment.
Drug court programs have been successfully implemented at the state
level. Since 1989, more than 100,000 drug offenders have participated
in drug court programs at the state level and there are now more than
400 drug courts in existence. These drug courts have proven to be both
effective and cost-efficient. A study in one New York drug court showed
that only 11% of offenders were rearrested as compared to 27% in the
general prison population. And while the incarceration of a drug
offender costs between $20,000 and $50,000 annually, a drug court costs
less than $2,500 per offender.
Drugs continue to be one of the greatest threats to our children and
to the well-being of our communities. For this reason, we must continue
to fight against the scourge of illegal drugs ravaging our communities.
To that end, I am introducing the ``Federal Drug Courts Foundations Act
of 2000,'' legislation designed to sensibly combat the epidemic of
drug-related crime. I hope that this much-needed legislation will enjoy
your support and I look forward to working with each and every one of
you in order to get this legislation enacted into law.
I ask unanimous consent the text of the legislation be included in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 3191
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Drug Court Act of 2000''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Drug courts.--The term ``drug courts'' means a Federal
district court of general jurisdiction in a high drug crime
district, as defined by the Department of Justice, that
will--
(A) expedite the criminal justice process for eligible
offenders until such time as they are declared ineligible or
selected for inclusion in a drug court program; and
(B) maintain jurisdiction over the offenders' cases before,
during, and after participation in the program.
(2) Drug court program.--The term ``drug court program''
means a program for substance abuse treatment and
rehabilitation for eligible offenders that--
(A) requires a successful plea agreement immediately
following conviction or in lieu of incarceration; and
(B) is operated by a drug court in a State criminal justice
system that has agreed to accept, for a fee per offender, all
offenders selected for inclusion in such a program by a
Federal drug court.
[[Page S10416]]
(3) Eligible offender.--The term ``eligible offender''
means a person who meets the requirements established in
section 4 of this Act.
(4) Office.--The term ``Office'' means the Office of
Justice Programs of the Department of Justice.
SEC. 3. AUTHORIZATION OF DRUG COURTS.
(a) Establishment of Drug Courts.--10 Federal district
courts in the United States, as selected by the Office, are
authorized to establish drug courts under this Act.
(b) Drug Court Responsibilities.--Each Federal drug court
shall enter into an agreement with a State drug court program
that will allow all eligible offenders to participate in the
drug court program of that State, in exchange for the payment
of a fee equal to the amount of the cost of the program for
that offender. Each such agreement shall be subject to the
approval of the Office.
(c) Oversight.--Except as specified in this Act, rules
governing drug courts will be promulgated separately by each
participating Federal district court, with the advice of the
Office, and subject to Department of Justice approval.
SEC. 4. ELIGIBLE OFFENDERS.
(a) In General.--An ``eligible offender'' means a person
who, by virtue of a Federal crime committed and other factors
that the drug court may consider, may be considered for
inclusion in the drug court program.
(b) Program Participants.--Drug court program eligibility
under this Act shall not be available to any offender who--
(1) is accused of violent criminal offenses;
(2) is not accused of drug, drug-related, or drug-motivated
offenses;
(3) has previously been convicted of a Federal or State
violent felony offense; or
(4) for any other reason within the discretion of the
court, does not meet all requirements of the applicable drug
court.
(b) Additional Eligibility Requirements.--In addition to
the criteria in subsection (a), no offender will be
considered eligible for participation in a drug court program
unless, following a reasonable investigation conducted
according to standards set by the court, and one or more
hearings before the court, consensus agreement is achieved
among the prosecutor, the defense counsel, and the presiding
judge, that the offender is a person who--
(1) currently suffers from a drug dependency;
(2) would benefit from the drug court program; and
(3) is appropriate for inclusion in the drug court program.
(c) Ineligible Offender Handling.--If at any point before
admission into the drug court program, an offender is found
ineligible for participation in a drug court program under
this Act, the case of that offender shall be processed by the
Federal district court under the applicable rules of
procedure and sentencing.
(d) Requirements for Drug Program Participants.--Each
eligible offender shall understand, sign, and acknowledge
understanding of drug court documents, including--
(1) a waiver of the right of the offender to a speedy
trial;
(2) a written plea agreement that sets forth the offense
charged, the sanction to be imposed in the event of a breach
of the agreement, and the penalty to be imposed, if any, in
the event of a successful completion of the drug court
program, except that incarceration may not be imposed upon
successful completion of the program;
(3) a written treatment plan that is subject to
modification at any time during the drug court program;
(4) a written performance contract requiring the offender
to enter the drug court program as directed by the court and
participate until completion, withdrawal, or removal by the
court; and
(5) a limited applicability waiver of confidentiality for
information relating to the treatment program of the
offender, and progress in that program, limited only to
agencies and parties participating in the drug court program,
and agencies and parties participating in oversight of the
case of the offender by the drug court.
SEC. 5. DRUG COURT OPERATIONS.
(a) Identification of Drug Program Participants.--The
Office of the United States Attorney office in a Federal drug
court, through the Office, shall establish procedures for the
identification of eligible offenders not later than 30 days
after the date of arrest of the alleged offender.
(b) Participant Fitness Examination.--A United States
Attorney, defense counsel, and a treatment professional
affiliated with the drug court program in which the offender
would be placed, shall separately conduct investigations
regarding the eligibility of an offender for inclusion in the
drug court program. Upon a finding by any of the examining
parties that the offender is ineligible to participate in the
drug court program, the alleged offender shall be subject to
prosecution under the applicable rules of procedure and
sentencing.
(c) Hearing.--Upon agreement of the prosecutor, defense
counsel, and treatment professional that an offender is
eligible for the drug court program, the prosecutor, defense
counsel, treatment professional, and offender shall appear
for a hearing before a drug court judge, who shall receive
testimony from each of the examining parties.
(d) Judicial Discretion.--Upon a finding by the judge that
the offender is eligible for inclusion in the drug court
program, the judge shall obtain from the offender all
appropriate drug court documents, and the offender shall
immediately be removed to the custody of the drug treatment
program. Should the offender not agree to any of the
conditions of participation in the drug court program, the
offender shall be subject to prosecution under the applicable
rules of procedure and sentencing.
(e) Drug Court Responsibilities.--The drug court shall--
(1) assign to the drug court program responsibility over
all treatment, supervision, education, job skills training,
and other ancillary services incidental to the program;
(2) hold regular hearings, attended by the judge,
prosecutor, defense counsel, and treatment professional to
assess the progress of the offender within the drug court
program; and
(3) assess any and all disciplinary sanctions, penalties,
and fines resulting from a violation by the offender of the
drug court program plea agreement.
(f) Disciplinary Sanctions.--The drug court shall establish
methods for measuring application of disciplinary sanctions,
which may include--
(1) short term confinement;
(2) reintroducing the offender into the drug court program
after a disciplinary action for a minor violation of the
treatment plan; and
(3) removal from the drug court program and reinstatement
of the criminal case.
(g) Drug Court Records.--All drug courts shall maintain
records regarding rates of recidivism, relapses, restarts,
sanctions imposed, and incentives given. All such data shall
be collected and reported annually by the Office.
(h) Administrative Fees.--For each offender admitted to the
drug court program, the drug court shall pay to the drug
court program an amount agreed upon at the outset of the
relationship between the drug court and drug court program.
This amount shall represent payment for the cost of
treatment, supervision, rehabilitation, education, job skills
training, and other ancillary services that the program of
the offender shall require.
SEC. 6. DRUG COURT PROGRAM PARTICIPANT SUPPORT.
(a) In General.--Each drug court program shall provide all
participating offenders with a personalized program,
including elements of treatment, supervision, rehabilitation,
education, and job skills training, and other ancillary
services that the program of the offender shall require.
(b) Participant Development.--Each drug court program shall
ensure, at a minimum--
(1) strong linkage between all agencies participating in
the drug court program, and the drug court judge, prosecutor,
and defense counsel responsible for oversight of the case;
(2) access for all participating agencies to information on
the progress of the offender within the program,
notwithstanding normally confidential treatment and
counseling information;
(3) vigilant supervision and monitoring procedures;
(4) random substance abuse testing not less frequently than
weekly;
(5) provisions for noncompliance, modification of the
treatment plan, and revocation proceedings;
(6) availability of residential treatment facilities and
outpatient services; and
(7) methods for measuring performance-based effectiveness
of the services of individual treatment providers.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
Subject to an appropriations Act, there is authorized to be
appropriated for each of fiscal years 2000 through 2004, the
following amounts:
(1) $15,000,000, to the Office, to carry out a pilot
program to establish a Federal drug court in each of 10
cities in the United States that are statistically considered
high drug crime areas.
(2) $5,000,000 to the Department of Justice, for additional
prosecutorial resources, including personnel, dedicated to
drug enforcement in each of the 10 cities in which a Federal
drug court is established under this Act.
______
By Mr. TORRICELLI:
S. 3192. A bill to provide grants to law enforcement agencies to
purchase firearms needed to perform law enforcement duties; to the
Committee on the Judiciary.
police gun buyback assistance act
Mr. TORRECELLI. Mr. President, I rise today to introduce a bill that
will reduce the number of firearms on the street and help guns out of
the hands of criminals. In the wake of the tragic shootings this year
in Michigan and Pennsylvania, we are reminded of what happens when the
wrong people have access to guns. These tragic shootings become even
more troubling when they involve a former police gun or firearms
previously involved in a crime.
It is vital that law enforcement agencies have the very best
equipment available to ensure their safety and to protect America's
communities, but purchasing new weapons can be expensive, particularly
for cash-strapped municipalities. To deal with this problem, for almost
two decades law enforcement agencies have been reselling their
[[Page S10417]]
old guns to dealers or auctioning them off to the public to offset the
cost of purchasing new guns. However, this practice has led to an
unintended result--increased risk that these guns would end up back on
the streets and in the hands of criminals.
In the past nine years, firearms once used by law enforcement
agencies have been involved in more than 3,000 crimes, including 293
homicides, 301 assaults and 279 drug-related crimes throughout the
United States. Just last year, Bufford Furrow, a white supremacist,
used a Glock pistol that was decommissioned and sold by a police agency
in the State of Washington to terrorize and shoot children at a Jewish
community center in Los Angeles and then kill a postal worker. Members
of the Latin Kings, a violent Chicago street gang, used guns formerly
owned by the Miami-Dade Police Department in Florida to commit violent
crimes in Illinois. And a 1996 investigation by the New York State
inspector general found that weapons used by New York law enforcement
officers had been used in crimes in at least two other states.
In is time that we help our law enforcement agencies do what they
have long tried to do--get out of the business of selling guns. Under
the bill I introduce today, law enforcement agencies will no longer be
forced to resell their old guns or guns seized from criminals to help
them obtain the new weapons that are necessary to carry out their
duties. Instead, this bill would provide grants to state or local law
enforcement agencys to assist them in purchasing new firearms so that
they will no longer be forced to sell their decommissioned firearms to
anyone. In order to receive these grants, the law enforcement agencies
must simply agree to either destroy their decommissioned guns or not
sell them to the public.
A growing number of states and cities have already decided to ban the
practice of pouring old police guns into the consumer market. They
recognize that the extra money gained from selling old police guns is
not worth the price of possible human suffering or loss of life. It is
simply bad policy for governments to be suppliers of guns and
potentially add to the problem of gun violence in America. Regardless
of where one stands on gun control, logic, and common sense and decency
demand that we also recognize this simple truth and unite behind moving
this bill to passage.
I ask unanimous consent that a copy of the legislation appear in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 3192
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Police Gun Buyback
Assistance Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Buford Furrow, a white supremacist, used a Glock pistol
decommissioned and sold by a law enforcement agency in the
State of Washington, to shoot children at a Jewish community
center in Los Angeles and kill a postal worker.
(2) Twelve firearms were recently stolen during shipment
from the Miami-Dade Police Department to Chicago, Illinois.
Four of these firearms have been traced to crimes in Chicago,
Illinois, including a shooting near a playground.
(3) In the past 9 years, decommissioned firearms once used
by law enforcement agencies have been involved in more than
3,000 crimes, including 293 homicides, 301 assaults, and 279
drug-related crimes.
(4) Many State and local law enforcement departments also
engage in the practice of reselling firearms involved in the
commission of a crime and confiscated. Often these firearms
are assault weapons that were in circulation prior to the
restrictions imposed by the Violent Crime Control and Law
Enforcement Act of 1994.
(5) Law enforcement departments in the States of New York
and Georgia, the City of Chicago, and other localities have
adopted the practice of destroying decommissioned firearms.
(b) Purpose.--The purpose of this Act is to reduce the
number of firearms on the streets by assisting State and
local law enforcement agencies to eliminate the practice of
transferring decommissioned firearms to any person.
SEC. 3. PROGRAM AUTHORIZED.
(a) Grants.--The Attorney General may make grants to States
or units of local government--
(1) to assist States and units of local government in
purchasing new firearms without transferring decommissioned
firearms to any person; and
(2) to destroy decommissioned firearms.
(b) Eligibility.--
(1) In general.--Except as provided in paragraph (2), to be
eligible to receive a grant under this Act, a State or unit
of local government shall certify that it has in effect a law
or official policy that--
(A) eliminates the practice of transferring any
decommissioned firearm to any person; and
(B) provides for the destruction of a decommissioned
firearm.
(2) Exception.--A State or unit of local government may
transfer a decommissioned firearm to another law enforcement
agency.
(c) Use of Funds.--A State or unit of local government that
receives a grant under this Act shall use such grant only to
purchase new firearms.
SEC. 4. APPLICATIONS.
(a) State Applications.--To request a grant under this Act,
the chief executive of a State shall submit an application,
signed by the Attorney General of the State requesting the
grant, to the Attorney General in such form and containing
such information as the Attorney General may reasonably
require.
(b) Local Applications.--To request a grant under this Act,
the chief executive of a unit of local government shall
submit an application, signed by the chief law enforcement
officer in the unit of local government requesting the grant,
to the Attorney General in such form and containing such
information as the Attorney General may reasonably require.
SEC. 5. REGULATIONS.
Not later than 90 days after the date of enactment of this
Act, the Attorney General shall promulgate regulations to
implement this Act, which shall specify the information that
must be included and the requirements that the States and
units of local government must meet in submitting
applications for grants under this Act.
SEC. 6. REPORTING.
A State or unit of local government shall report to the
Attorney General not later than 2 years after funds are
received under this Act, regarding the implementation of this
Act. Such report shall include budget assurances that any
future purchase of a firearm by the law enforcement agency
will be possible without transferring a decommissioned
firearm.
SEC. 7. DEFINITION.
For purposes of this Act--
(1) the term ``firearm'' has the same meaning given such
term in section 921(a)(3) of title 18, United States Code;
(2) the term ``decommissioned firearm'' means a firearm--
(A) no longer in service or use by a law enforcement
agency; or
(B) involved in the commission of a crime and confiscated
and no longer needed for evidentiary purposes; and
(3) the term ``person'' has the same meaning given such
term in section 1 of title 1 of the United States Code.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
Act $10,000,000 for each of the fiscal years 2001 through
2005.
______
By Mr. MURKOWSKI:
S. 3193. A bill to amend section 527 of the Internal Revenue Code of
1986 to exempt State and local political committees from required
notification of section 527 status; to the Committee on Finance.
finance disclosure legislation
Mr. MURKOWSKI. Mr. President, in our desire to close the so-called
527 loophole involving campaign financing earlier this year, I believe
we may have gone too far in the disclosure requirements.
In the bill ultimately creating P.L. 106-230, we essentially adopted
the House language without any amendments. When it became law on July
1, 2000, one of the provisions required candidates for state and local
offices to file Form 8871 by July 31, 2000.
The goal of the new law is to find out who is contributing to 527
political organizations that have proliferated in recent years. The
organizations. including the Sierra Club's 527, were taking in large
size donations and yet not have and to reveal who the donors were.
Under the new law, contributions in excess of $200 by a single person
must be disclosed. Expenditures by a 527 organization in excess of $500
also would have to be disclosed. However, these financial disclosures--
the heart and soul of the bill--do not apply to candidates for state
and local elections. Clearly, the rules for state and local elections
are to be regulated by the states, not the federal government.
Yet, under the new law, candidates for state and local offices must
file Form 8871 with the IRS. This form essentially notifies IRS that
state or local officeholder has established a 527
[[Page S10418]]
organization. It must also list the name and address of the
organization, the purpose of the organization; the names and addresses
of its officers and highly compensated persons and identify a contact
person and custodian of records and its Board of Directors (if any).
Since we have exempted state and local candidates from having to file
financial disclosure statements, I see no reason why they should be
burdened with filing Form 8857. This requirement serves no purpose
except to create needless paperwork for both the candidates and the
IRS.
That is why I am introducing legislation to exempt state and local
candidates from this burden just as the current law exempts 527
Organizations that do not expect that they will raise $25,000 do not
have to file this information.
My bill is retroactive so that some candidates for local office who
were caught unaware of the filing requirement do not face any
penalties.
It is my hope that after this election, when campaign finance reform
will be debated in a less political environment, that this common sense
technical amendment will be included in reform legislation.
______
By Mr. AKAKA (for himself, Mr. Murkowski, Mr. Bingaman, Mr. Bayh,
Mr. Reid, and Mr. Inouye):
S. 3196. A bill to reauthorize and amend the Spark M. Matsunaga
Hydrogen Research, Development, and Demonstration Act of 1990, and for
other purposes; to the Committee on Energy and Natural Resources
george e. brown, jr. hyrodgen future act
Mr. AKAKA. Mr. President, I rise today with Senator Murkowski and
Senator Bingaman, Chairman and Ranking Member of Senate Committee on
Energy and Natural Resources, my colleague on the Committee, Senator
Bayh, my friend from Nevada, Senator Reid, and my senior colleague from
Hawaii, Senator Inouye, to introduce legislation that will accelerate
the ongoing efforts for the development of a fuel for the future--
hydrogen. Hydrogen is an efficient and environmentally friendly energy
carrier that can be obtained using conventional or renewable resources.
There is strong evidence that hydrogen can be a solution for America's
long-term energy needs.
All indications suggest that America's summer of discontent is going
to continue and become the winter of discontent with respect to energy
prices. Americans have paid record-breaking prices at the pump this
summer. They will continue to suffer escalating prices this winter too.
Higher energy prices hit most those Americans who can afford it the
least.
Our Nation is heavily dependent on fossil fuels. We rely on imports
to meet our needs. Our dependence on imported oil has been increasing
for years. Oil imports have been rising for the past two decades. The
combination of lower domestic production and increased demand has led
to imports making up a larger share of total oil consumed in the United
States. In 1992, crude oil imports accounted for approximately 45
percent of our domestic demand. Last year crude oil imports amounted
for 58 percent. The Energy Information Administration's Short-Term
Outlook forecasts that oil imports will exceed 60 percent of total
demand this year. EIA's long-term forecasts have oil imports
constituting 66 percent of U.S. supply by 2010, and more than 71
percent by 2000.
Continued reliance on such large quantities of imported oil will
frustrate our efforts to develop a national energy policy and set the
stage for energy emergencies in the future.
Mr. President, the way to improve our energy outlook is to adopt
energy conservation, encourage energy efficiency, and support renewable
energy programs. Above all, we must develop energy resources that
diversify our energy mix and strengthen our energy security.
Now is the time to increase our efforts to develop new sources of
energy. Growing evidence points to hydrogen as a fuel to resolve our
energy problems and satisfy a wide variety of the world's energy needs.
Hydrogen as a fuel is not a new concept. For more than two decades
there has been global interest in hydrogen as a renewable fuel.
Progress is being made at an accelerating pace. Fuel cells for
distributed stationary power are being commercialized and installed in
various locations in the United States and worldwide. Transit bus
demonstrations are underway in both the United States and Europe. Major
automobile companies are poised to deploy fuel cell passengers cars
within the next few years. All these activities involve government and
private sector cooperation.
But many problems and challenges remain. Hydrogen production costs
from both fossil and renewable energy sources remain high. Attractive
low-cost storage technologies are not available. There is an inadequate
infrastructure.
We need to address these challenges and barriers if we are to enjoy
the fruits of an efficient and environmentally friendly energy source.
This Senator believes that an aggressive research and development
program can help us overcome many of these challenges such as bringing
down the production costs from fossil and renewable sources, by
advancing storage technologies, and addressing safety concerns with
efforts in establishing codes and standards.
Our Nation needs an active and focused research, development, and
demonstration program to make the breakthroughs necessary to make
hydrogen a viable source of energy.
My predecessor, Senator Spark Matsunaga was one of the first to focus
attention on hydrogen by sponsoring hydrogen research legislation. The
Matsunaga Hydrogen Act, as this legislation has come to be known, was
designed to accelerate development of domestic capability to produce an
economically renewable energy source in sufficient quantities to reduce
the Nation's dependence on conventional fuels. As a result of Senator
Matsunaga's vision, the Department of Energy has been conducting
research that will advance technologies for cost-effective production,
storage, and utilization of hydrogen. The Hydrogen Future Act of 1996
expanded the research, and development, and demonstration program under
the Matsunaga Act. It authorized activities leading to production,
storage, transformation, and use of hydrogen for industrial,
residential, transportation, and utility applications.
My good friend and former colleague in the House, Representative
George E. Brown, Jr., was instrumental in the introduction and passage
of the Hydrogen Future Act. Serving as the Chairman and Ranking Member
of the House Science Committee, Congressman Brown earned a reputation
as a true champion and advocate for science. He was an early supporter
of hydrogen as a source of energy. He was the principal sponsor of the
companion legislation to Senator Matsunaga's bill in the House.
Congressman Brown passed away on July 15, 1999.
Mr. President, the legislation I am introducing today reauthorizes
and amends the Hydrogen Future Act of 1996. I propose that Congress
dedicate this legislation to George Brown's memory and cite the Act as
George E. Brown, Jr. Hydrogen Future Act.
The legislation I am introducing today is consistent with the
thinking of experts who have looked at this issue. The President's
Committee of Advisors on Science and Technology (PCAST) issued a report
titled ``Federal Energy Research and Development for the Challenges of
the Twenty-First Century'' in response to a request from President
Clinton to review the national energy R&D portfolio and make
recommendations on how to ensure that the U.S. has a program that
addresses its energy needs for the next century. In its report issued
in November 1997, PCAST proposed a substantial increase in Federal
spending for applied energy technology R&D, with the largest share
going to energy efficiency and renewable energy technologies. This was
a major change in focus. With this new R&D emphasis, the PCAST report
acknowledges and supports advances in a wide range of both hydrogen-
producing and hydrogen-using technologies. The bill I am introducing
today supports the recommendations of PCAST.
The Hydrogen Technical Advisory Panel (HTAP) was established pursuant
to the Spark Matsunaga Hydrogen Act. The panel's primary functions are
to advise the Secretary of Energy on the
[[Page S10419]]
implementation and conduct of the Department of Energy's Hydrogen
Program and to review and make recommendations on the economic,
technical, and environmental consequences of deploying hydrogen energy
systems. The Hydrogen Future Act gave additional functions to HTAP. The
Act requires HTAP to evaluate the effectiveness of the Department's
Hydrogen Program and make recommendations for improvements. HTAP is
also required to make recommendations for future legislation.
The panel, appointed by the Secretary of Energy, has broad
representation from industry, government, and academia. While some
members of the panel represent the hydrogen community, others represent
fossil energy, industrial gases, transportation, and environment
groups--areas affected by the development and deployment of hydrogen
energy systems. This mix provides the panel with a balanced perspective
that allows diversity of viewpoints. Members serve on a pro-bono basis.
HTAP, in its report to Congress has strongly endorsed reauthorizing
the Hydrogen Future Act. Today's bill reflects most of the
recommendations of this expert body.
The long-term vision for hydrogen energy is that sometime well into
21st century, hydrogen will join electricity as one of our Nation's
primary energy carriers, and hydrogen will ultimately be produced from
renewable sources. But fossil fuels will be a significant long-term
transitional resource. In the next twenty years, increasing concerns
about global climate changes and energy security concerns will help
bring about penetration of hydrogen in several niche markets. The
growth of fuel cell technology will allow the introduction of hydrogen
in both transportation and electricity sectors.
We are a long way from realizing this vision for hydrogen energy. But
progress is being made and many challenges and barriers remain.
Sustained effort is the only way to overcome these challenges and
barriers. We need to support a strategy that focuses on mid-term and
long-term goals. We must support development of technologies that
enable distributed electric-generation fuel cell systems and hydrogen
fuel cell vehicles for transportation applications. For the long-term,
we should look to hydrogen technologies that enhance renewable systems
and offer society the promise of clean, abundant fuels.
Significant forces are coming together that may accelerate wider
acceptance of hydrogen as an energy source. Industry is moving ahead
with fuel cell developments at a rapid pace. Many companies are forming
partnerships to bring new technologies to the market place. Daimler-
Chrysler, Ford, and Ballard have formed a partnership and pledged $1.5
billion for commercialization of automotive fuel cells. Edison
Development Company, General Electric, SoCal Gas, and Plug Power have
agreement to commercialize residential fuel cells. There are other
companies pursuing the same market sector and are developing high
performance fuel cell technology for automotive and electrical
generation systems.
Initiatives for controls of emissions from automobiles such as
California's zero emissions vehicle requirements favor early
introduction of hydrogen powered vehicles. There is significant
industry interest in bringing fuel cell technology to mining
operations.
The Department of Energy administers the Hydrogen Program that
supports a broad range of research and development projects in the
areas of hydrogen production, storage, and use in a safer and less
expensive manner in the near future. Progress in several research and
development areas shows promise that some of these new technologies may
become available for wider use in the next few years. Some of the
promising technologies include advanced natural gas- and biomass-based
hydrogen production technologies, high pressure gaseous and cryogas
storage systems, reversible PEM fuel cell systems. Others lay the
groundwork for long range opportunities.
The Hydrogen Program utilizes the talents of our national
laboratories and our universities. National Renewable Energy
Laboratory, Sandia, Lawrence Livermore, Los Alamos, and Oak Ridge, as
well as Jet Propulsion Laboratory are involved in the program. DOE
Field Office at Golden, Colorado, and Nevada Operations Office in
Nevada are also involved. University-led centers-of-excellence have
been established at Florida Solar Energy Center at University of Miami
and University of Hawaii. The U.S. participation in the International
Energy Agency contributes to the advancement of DOE hydrogen research
through international cooperation.
The DOE Hydrogen Program is well managed and run by dedicated
managers and capable and talented technologists. The program has also
built strong links with the industry. This has resulted in strong
industry participation and cost sharing. HTAP, in its review of the
program reached similar conclusions.
The legislation I am introducing today reauthorizes the Hydrogen
Future Act and adds provisions for the demonstration of hydrogen
technologies at government facilities. It highlights the potential of
hydrogen as an efficient and environmentally friendly source of energy,
the need for a strong partnership between the Federal government,
industry, and academia, and the importance of continued support for
hydrogen research. It fosters collaboration between Federal agencies,
state and local governments, universities, and industry. It encourages
private sector investment and cost sharing in the development of
hydrogen as an energy source.
The legislation authorizes $250 million over the next five years for
research and development of technologies for hydrogen production,
storage and use. This will allow advancement of technologies such as
smaller-scale production systems that are applicable to distributed-
generation and vehicle applications, advanced pressure vessels,
photobiological and photocatalytic production of hydrogen, and carbon
nanotubes, graphite nanofibers, and fullerenes.
It also authorizes $50 million for conducting integrated
demonstrations of hydrogen technologies at government facilities. This
will help secure industry participation through competitive
solicitations for technology development and testing. It may encourage
integration of renewable energy resources with hydrogen storage in
distributed power scenarios. It will test the viability of hydrogen
production, storage, and use. It will lead to development of hydrogen-
based operating experience acceptable to meet safety codes and
standards.
By supporting the development of hydrogen technologies, we will be
ushering in an era of a non-polluting source of energy that will reduce
our dependence on foreign oil. The price we will pay for development of
this clean and renewable energy is minuscule compared to the benefits.
And Mr. President, if we develop hydrogen technologies, we will be less
likely to be held hostage by our friends in the Middle East.
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 3196
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``George E. Brown, Jr.
Hydrogen Future Act''.
SEC. 2. PURPOSES.
Section 102(b)(2) of the Spark M. Matsunaga Hydrogen
Research, Development, and Demonstration Act of 1990 (42
U.S.C. 12401(b)(2)) is amended by striking ``among the
Federal agencies and aerospace, transportation, energy, and
other entities'' and inserting ``, including education, among
the Federal agencies and industry, transportation entities,
energy entities, and other entities''.
SEC. 3. REPORT TO CONGRESS.
Section 103 of the Spark M. Matsunaga Hydrogen Research,
Development, and Demonstration Act of 1990 (42 U.S.C. 12402)
is amended--
(1) in subsection (a), by striking ``1999,'' and inserting
``2003,'';
(2) in subsection (b), by striking paragraph (1) and
inserting the following:
``(1) an analysis of hydrogen-related activities throughout
the United States Government to identify productive areas for
increased intergovernmental collaboration; and''; and
(3) by adding at the end the following:
``(c) Requirements.--The report under subsection (a)
shall--
[[Page S10420]]
``(1) be based on a comprehensive coordination plan for
hydrogen energy prepared by the Department with other Federal
agencies; and
``(2) to the extent practicable, include State and local
activities.''.
SEC. 4. TECHNOLOGY TRANSFER.
Section 106 of the Spark M. Matsunaga Hydrogen Research,
Development, and Demonstration Act of 1990 (42 U.S.C. 12405)
is amended--
(1) in subsection (b)--
(A) in the first sentence--
(i) in paragraph (1), by striking ``an inventory'' and
inserting ``an update of the inventory''; and
(ii) in paragraph (2), by inserting ``other Federal
agencies as appropriate,'' before ``and industry''; and
(B) by striking the second and third sentences; and
(2) by adding at the end the following:
``(c) Information Exchange Program Activities.--The
information exchange program under subsection (b)--
``(1) may consist of workshops, publications, conferences,
and a database for the use by the public and private sectors;
and
``(2) shall foster the exchange of generic, nonproprietary
information and technology, developed under this Act, among
industry, academia, and the Federal Government, to help the
United States economy attain the economic benefits of the
information and technology.''.
SEC. 5. TECHNICAL PANEL REVIEW.
Section 108(d) of the Spark M. Matsunaga Hydrogen Research,
Development, and Demonstration Act of 1990 (42 U.S.C.
12407(d)) is amended--
(1) in the matter preceding paragraph (1), by striking
``the following items'';
(2) in paragraph (1), by striking ``and'' at the end;
(3) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(3) the plan developed by the interagency task force
under section 202(b) of the Hydrogen Future Act of 1996.''.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
Section 109 of the Spark M. Matsunaga Hydrogen Research,
Development, and Demonstration Act of 1990 (42 U.S.C. 12408)
is amended--
(1) in paragraph (8), by striking ``and'';
(2) in paragraph (9), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(10) $40,000,000 for fiscal year 2002;
``(11) $45,000,000 for fiscal year 2003;
``(12) $50,000,000 for fiscal year 2004;
``(13) $55,000,000 for fiscal year 2005; and
``(14) $60,000,000 for fiscal year 2006.''.
SEC. 7. FUEL CELLS.
(a) Integration of Fuel Cells with Hydrogen Production
Systems.--Section 201(a) of the Hydrogen Future Act of 1996
(42 U.S.C. 12403 note; Public Law 104-271) is amended--
(1) by striking ``(a) Not later than 180 days after the
date of enactment of this section, and subject'' and
inserting ``(a) In General.--Subject''; and
(2) by striking ``with--'' and all that follows and
inserting ``into Federal and State facilities for stationary
and transportation applications.''.
(b) Cooperative and Cost-Sharing Agreements; Integration of
Technical Information.--Title II of the Hydrogen Future Act
of 1996 (42 U.S.C. 12403 note; Public Law 104-271) is
amended--
(1) by redesignating section 202 as section 205; and
(2) by inserting after section 201 the following:
``SEC. 202. INTERAGENCY TASK FORCE.
``(a) Establishment.--Not later than 120 days after the
date of enactment of this section, the Secretary shall
establish an interagency task force led by a Deputy Assistant
Secretary of the Department of Energy and comprised of
representatives of--
``(1) the Office of Science and Technology Policy;
``(2) the Department of Transportation;
``(3) the Department of Defense;
``(4) the Department of Commerce (including the National
Institute for Standards and Technology);
``(5) the Environmental Protection Agency;
``(6) the National Aeronautics and Space Administration;
and
``(7) other agencies as appropriate.
``(b) Duties.--
``(1) In general.--The task force shall develop a plan for
carrying out this title.
``(2) Focus of plan.--The plan shall focus on development
and demonstration of integrated systems and components for--
``(A) hydrogen production, storage, and use in Federal
buildings;
``(B) power generation; and
``(C) transportation systems.
``(3) Projects.--The plan may provide for projects to
demonstrate the feasibility of--
``(A) hydrogen-based distributed power systems;
``(B) systems for hydrogen-based generation of combined
heat, power, and other products; and
``(C) hydrogen-based infrastructure for transportation
systems (including zero-emission vehicles).''.
``SEC. 203. COOPERATIVE AND COST-SHARING AGREEMENTS.
``The Secretary shall enter into cooperative and cost-
sharing agreements with Federal and State agencies for
participation by the agencies in demonstrations at sites
administered by the agencies, with the aim of replacing
commercially available systems based on fossil fuels with
systems using fuel cells.
``SEC. 204. INTEGRATION OF TECHNICAL INFORMATION.
``The Secretary shall--
``(1) integrate all the technical information that becomes
available as a result of development and demonstration
projects under this title; and
``(2) make the information available to all Federal and
State agencies.''.
(c) Authorization of Appropriations.--Section 205 of the
Hydrogen Future Act of 1996 (42 U.S.C. 12403 note; Public Law
104-271) (as redesignated by subsection (b)) is amended by
striking ``this section, a total of $50,000,000 for fiscal
years 1997 and 1998, to remain available until September 30,
1999'' and inserting ``this title $50,000,000 for fiscal
years 2002, 2003, and 2004, to remain available until
September 30, 2005''.
______
By Mr. KERREY (for himself, Mr. Santorum, Mr. Moynihan, Mr.
Grassley, and Mr. Breaux):
S. 3200. A bill to amend the Social Security Act to provide each
American child with a KidSave Account, and for other purposes: to the
Committee on Finance.
kidsave accounts
Mr. KERREY. Mr. President, many of the things we do in the Senate
involve making investments in America's future. Investments in research
through the National Science Foundation or investments in
infrastructure development through the Department of Transportation
reap great rewards for the citizens of tomorrow.
Today, I am pleased to be joined by Senators Santorum, Moynihan,
Grassley, and Breaux in introducing a piece of legislation that
represents a remarkable new investment in the financial security of
future generations of Americans.
This proposal, called KidSave, aims to give every American a stake in
the growth of the American economy, to help all Americans accumulate
wealth and assets, and to teach all Americans firsthand the value of
savings and compounding interest. Not only will this legislation
promote savings and investments across all income levels, but it will
also help to close the growing wealth gap.
One of the discoveries I have made in researching this idea is that
the most important variable in compounding interest rates is time. The
earlier you start, the more wealth you build.
One of the poster children for understanding the value of compounding
interest is Osceola McCarty. Osceola was a Hattiesburg, Mississippi,
washerwoman, who after more than seven decades of low-wage work donated
$150,000 to the University of Southern Mississippi--wealth she had
built by saving a little bit of money over a long period of time.
Wealth has also empowered the Federal employees I talk to in the
halls of the Senate, who are excited about their ability to participate
in their government Thrift Savings Plan, TSP, and who talk more
knowledgeably than me about index funds and the difference between a
stock and bond. These employees, and other workers across the country
who are able to participate in employer-sponsored pension plans and
IRAs, feel more confident about their own futures and their own
retirement security. They are confident that they won't face poverty in
their final years.
Our KidSave proposal will gave that same sense of confidence and
pride in one's future to all future generations of Americans.
How does KidSave work? The KidSave program would use part of the
surplus to provide each newborn child with a $2,000 KidSave retirement
savings loan to jumpstart his or her retirement savings. Each KidSave
loan will be deposited into a qualified KidSave account. The KidSave
program will be administered by the Thrift Savings Plan, TSP, Board.
Future KidSave loans will be adjusted for inflation, CPI, beginning in
2008.
Parents and grandparents will be able to add $500 per year to each
KidSave account for each child under the age of 19.
A KidSave loan recipient--with no additional account contributions--
can expect to generate future retirement savings of $250,000 by the age
of 67 (assuming an 8 percent rate of return). Furthermore, since
KidSave accounts are personal property, they can be willed on to an
heir as part of an estate.
[[Page S10421]]
How will these KidSave loans be financed? Our legislation uses Social
Security surpluses to finance the loans in the early years of the
program. But, as older KidSavers begin to repay their KidSave loans,
the program will virtually become self-funded, as the loan repayment
revenues are used to fund the KidSave loans of a new generation.
Since the $2,000 KidSave loan is--just that--a loan, KidSavers are
expected to pay back the loan amount at the CPI inflated rate starting
at age 30. The KidSave loan repayment mechanism is designed in such a
way to allow future KidSavers to pay back 20 percent of the loan each
year for five years, beginning at the age of 30. In the rare event that
an individual's KidSave account may perform poorly, no individual will
have to pay more than 20 percent of his total account value back in any
given year.
Building upon existing investment structures in the Federal
government, KidSave accounts will be managed and administered through
the Federal employees' Thrift Savings Plan (TSP). Investment options
will be determined by the TSP Board. KidSave account holders and
guardians will have the same flexibility in changing their investment
distributions as current TSP participants.
As I noted earlier in my remarks, one goal of this proposal is to
close the growing wealth gap. Despite all of the glowing media reports
about the booming American economy, most of the economic gains of the
last decade have gone to families who have owned financial assets. Ed
Wolff, the wealth data guru, has reported that the wealthiest 10
percent of households enjoyed 85 percent of the stock market gains
between 1989 and 1998. Since 1989, the share of wealth held by the top
1 percent of households grew from 37 percent to 39 percent, while the
net worth of the bottom 40 percent of households dropped from .9
percent to .2 percent.
An editorial by the Progressive Policy Institute has called this
proposal a democratization of the ownership of financial assets''. I
think they've hit the nail on the head. This proposal will create
universal access to the tools of wealth creation and asset
accumulation. It will make future workers less dependent on the Federal
government for their retirement income security.
This proposal is also aimed at improving the personal savings rate in
the United States. In fact, unlike other spending programs, KidSave
loans will not only generate wealth, but also improve national and
personal savings rates.
It has been widely reported that the personal savings rate has been
in a long and steady decline in the U.S.--according to the Bureau of
Economic Analysis, it has dropped from 11 percent in 1981 to 2 percent
in 1999. Many workers are spending beyond their means, accumulating
more and more consumer debt, while others simply can't afford to save
because of high payroll tax rates and low wages. Many of these same
workers are relying on Social Security to be their sole or primary
source of income at retirement.
But the co-sponsors of this bill recognize that a Social Security
retirement check isn't enough to live on. The average Social Security
check in Nebraska is $766 a month. Nationwide, eighteen percent of
beneficiaries have no other source of income. Another 12 percent rely
on Social Security for more than 90 percent of their income, and nearly
two-thirds overall derive more than half their income from that small
check. For many of them, it's not enough. Our proposal is based on the
idea that retirees need both income and wealth.
And Mr. President, that opportunity to hold assets and create wealth
is an opportunity we can open today to every baby born in America.
Guaranteed. I urge my colleagues to support this legislation.
______
By Mr. BIDEN:
S. 3202. A bill to amend title 18, United States Code, with respect
to biological weapons; to the Committee on the Judiciary.
Dangerous Biological Agent and Toxin Control Act of 2000
Mr. BIDEN. Mr. President, today I am introducing the Dangerous
Biological Agent and Toxin Control Act of 2000. Similar legislation was
originally submitted by the Administration in 1999 as part of a larger
anti-crime proposal.
Today a terrorist attack in the United States using chemical or
biological weapons is one of the most significant terrorist threats we
face. In recent years, through the ratification of the Chemical Weapons
Convention and the enactment of the related implementing legislation,
we have provided several statutory safeguards designed to prevent and
deter against an attack using chemical weapons. But gaps remain in our
laws regulating biological pathogens. It is essential not only that
America be fully prepared to respond to such an attack, but also that
we take steps to prevent them from happening in the first place.
Currently, federal law bans only the development and possession of
biological agents for use as a weapon. But there are sensible things
that we can do in the near term to give federal law enforcement the
tools that they need to protect our country from these threats--before
they materialize into unspeakable scenarios.
Earlier this year, the National Commission on Terrorism reported to
Congress. Among its conclusions was that the federal laws regarding the
possession of dangerous pathogens are currently insufficient. The
Commission specifically recommended, among other things, that Congress
make it illegal for anyone not properly certified to possess certain
critical pathogens. And they were right.
The bill I introduce today fill several gaps in the law.
First, the bill will make it unlawful for anyone to possess
biological agent, toxin or delivery system of a type or in a quantity
that under the circumstances is not reasonably justified by a
prophylactic, protective or other peaceful purpose. Second, the bill
makes it unlawful to handle a biological agent with conscious disregard
of an unreasonable risk to public health and safety. Third, the
legislation makes it unlawful to knowingly communicate false, but
believable information, concerning an activity which would constitute a
violation of this statute. Finally, the bill requires people to report
to the federal government their possession of listed biological agents,
prohibits the transfer of a listed biological agent to a person who is
not registered and makes possession by certain restricted persons--such
as convicted felons--unlawful.
Closing these gaps in the law would be a modest but important step to
prevent and deter a terrorist act involving biological agents. This
should not be a partisan issue. This is an issue of governance, not
politics. From Wilmington to Washington State, our constituents need
protection and expect and deserve nothing less.
Mr. President, I recognize that the Congressional session is about to
end, and therefore it is too late for the bill to be considered this
year. But I wanted to introduce the bill now so that it would be
available for review by my colleagues and other interested parties
inside and outside of government. In particular, I invite comment by
interested parties in the scientific community, the business community,
and the civil liberties community. I regard the bill I introduce today
as an initial draft that is a work in progress, and I welcome
constructive comments and suggestions for improvement. I look forward
to working with my colleagues on the Committee on the Judiciary early
in the next session of Congress.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 3202
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Dangerous Biological Agent
and Toxin Control Act of 2000''.
SEC. 2. EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE.
(a) Findings and Purposes.--
(1) Findings.--Congress finds that--
(A) certain biological agents and toxins have the potential
to pose a severe threat to the Nation's public health and
safety, and thereby affect interstate and foreign commerce;
(B) the Secretary of Health and Human Services has
published a list of biological agents and toxins that pose a
severe threat to the Nation's public health and safety as an
appendix to part 72 of title 42, Code of Federal Regulations;
[[Page S10422]]
(C) biological agents and toxins can be used as weapons by
individuals or organizations for the purpose of domestic or
international terrorism or for other criminal purposes;
(D) terrorists and other criminals can also harm national
security, drain the limited resources of all levels of
government devoted to thwarting biological weapons, and
damage interstate and foreign commerce by threatening to use,
and by falsely reporting efforts to use, biological agents
and toxins as weapons;
(E) the Biological Weapons Convention obligates the United
States to take necessary measures within the United States to
prohibit and prevent the development, production,
stockpiling, acquisition, or retention of biological agents
and toxins of types and in quantities that have no
justification for prophylactic, protective, or other peaceful
purposes;
(F) the mere possession of biological agents and toxins is
a potential danger that affects the obligations of the United
States under the Biological Weapons Convention and affects
interstate and foreign commerce; and
(G) persons in possession of harmful biological agents and
toxins should handle them in a safe manner and, in the case
of agents and toxins listed by the Department of Health and
Human Services as posing a severe threat to the Nation's
public health and safety, report their possession and the
purpose for their possession to the appropriate Federal
agency in order to ensure that such possession is for
peaceful scientific research or development.
(2) Purposes.--The purposes of this section are to--
(A) strengthen the implementation by the United States of
the Biological Weapons Convention and to ensure that
biological agents and toxins are possessed for only
prophylactic, protective, or other peaceful purposes;
(B) establish penalties for the false reporting of
violations of chapter 10 of title 18, United States Code
(relating to biological weapons); and
(C) improve the statutory definitions relating to
biological weapons.
(b) Additional Measures.--
(1) In general.--Section 175 of title 18, United States
Code, is amended by adding at the end the following:
``(c) Additional Prohibitions Relating to Biological
Agents, Toxins, and Delivery Systems.--
``(1) Unlawful possession.--Whoever knowingly possesses any
biological agent, toxin, or delivery system of a type or in a
quantity that, under the circumstances, is not reasonably
justified by a prophylactic, protective, or other peaceful
purpose, shall be fined under this title, imprisoned not more
than 10 years, or both. Knowledge of whether the type or
quantity of any biological agent, toxin, or delivery system
is reasonably justified by a prophylactic, protective, or
other peaceful purpose is not an element of the offense. For
purposes of this paragraph, the terms `biological agent' and
`toxin' do not encompass any biological agent or toxin that
is in its naturally occurring environment, if such agent or
toxin has not been cultivated, collected, or otherwise
extracted from its natural source.
``(2) Unsafe handling.--
``(A) In general.--Whoever, with conscious disregard of an
unreasonable risk to public health and safety, handles an
item knowing it to be a biological agent, toxin, or delivery
system in a manner that grossly deviates from accepted norms,
shall be fined under this title, imprisoned not more than 1
year, or both.
``(B) Aggravated offense.--Whoever in the course of a
violation of subparagraph (A) causes bodily injury (as
defined in section 1365(g)(4) of this title) to any
individual (other than the perpetrator)--
``(i) shall be fined under this title, imprisoned not more
than 10 years, or both; and
``(ii) if death results from the offense, shall be fined
under this title, imprisoned for any term of years or for
life, or both fined and imprisoned.
``(d) False Information.--
``(1) Criminal violation.--Whoever communicates
information, knowing the information to be false and under
circumstances in which such information may reasonably be
believed, concerning the existence of activity that would
constitute a violation of subsection (a) or (c) shall be
fined under this title, imprisoned not more than 5 years, or
both.
``(2) Civil penalty.--Whoever communicates information,
knowing the information to be false, concerning the existence
of activity that would constitute a violation of subsection
(a) or (c) is liable to the United States or any State for a
civil penalty of the greater of $10,000 or the amount of
money expended by the United States or the State in
responding to the false information.
``(e) Reporting, Transfer, and Possession of Select
Agents.--
``(1) Obligation to report.--Any person who possesses a
select agent shall report such possession to the designated
agency, in the manner prescribed by the designated agency,
within 72 hours of the effective date of the regulation
issued by that agency pursuant to this paragraph or within 72
hours of subsequently obtaining possession of the agent or
toxin, except that, if such person is a registered entity,
the reporting, if any, shall be in the manner as otherwise
directed by regulation by the designated agency. If a person
complies with this paragraph, there is no obligation for any
employee of such person to file a separate report concerning
the employee's possession of a select agent in the workplace
of such person.
``(2) Criminal penalty for willful failure to report.--Any
person who willfully fails to make the report required by
paragraph (1) within the prescribed period shall be fined
under this title, imprisoned not more than 3 years, or both.
In this paragraph, the term `willfully' means an intentional
violation of a known duty to report.
``(3) Civil penalty for failure to report.--Any person who
fails to make the report required by paragraph (1) within the
prescribed period is liable to the United States for a civil
penalty of $5,000.
``(4) Penalty for possession of unreported select agents.--
Any person who knowingly possesses a biological agent or
toxin that is a select agent for which a report required by
paragraph (1) has not been made shall be fined under this
title, imprisoned not more than 1 year, or both.
``(5) Unauthorized transfer of select agents.--Whoever
knowingly transfers a select agent to any person who is not a
registered entity shall be fined under this title, imprisoned
not more than 5 years, or both. For purposes of this
paragraph, the term `transfers' does not encompass the
transfer of a select agent within the workplace between
employees of the same registered entity, or between employees
of any person who has filed the report required by paragraph
(1), if the transfer is authorized by such entity or person.
``(6) Possession of select agents by restricted
individuals.--
``(A) Prohibition on possession.--Except as otherwise
provided in this section or in section 2(b)(3)(G) of the
Dangerous Biological Agent and Toxin Control Act of 2000, no
restricted individual shall knowingly possess or attempt to
possess any biological agent or toxin if that biological
agent or toxin is a select agent.
``(B) Penalty.--Any individual who violates subparagraph
(A) shall be fined under this title, imprisoned not more than
5 years, or both.
``(C) Employers of individuals who possess select agents.--
Employers of individuals who will possess select agents in
the course of their employment shall require such
individuals, prior to being given access to select agents, to
complete a form in which the individual affirms or denies the
existence of each of the restrictions set forth in section
178(8) of this title. In the case of individuals already
employed as of the date of enactment of this subsection who
possess select agents in the course of their employment,
employers shall, not later than 90 days after the date of
enactment of this subsection, require those individuals to
complete such a form. Such form shall be retained by the
employer for not less than 5 years after the individual
terminates his employment with that employer.
``(D) Employees.--
``(i) Whoever willfully and knowingly falsifies or conceals
a material fact or makes any materially false, fictitious, or
fraudulent statement or representation in completing the form
required under subparagraph (C) shall be fined under this
title, imprisoned not more than 5 years, or both.
``(ii) The prohibition of subparagraph (A) does not apply
to possession by a restricted individual of a select agent in
the workplace of his employer if the basis for the
prohibition relates solely to subparagraph (A) or (B)(i) of
section 178(8) of this title and a determination is made to
waive the prohibition in accordance with the rules and
procedures established pursuant to subsection (f).
``(iii) The prohibition of subparagraph (A) does not apply
to possession by a restricted individual of a select agent in
the workplace of his employer if the basis for the
prohibition relates solely to subparagraph (B)(ii) or (G) of
section 178(8) of this title and is more than 5 years old
(not counting time served while in custody), and a
determination is made to waive the prohibition in accordance
with the rules and procedures established pursuant to
subsection (f).
``(iv) For the purposes of this subparagraph, the term
`employer' means any person who is a registered entity or has
filed the report required by section 175(e)(1) of this title
and employs a restricted individual.
``(E) Certain nonpermanent resident aliens.--The
prohibition of subparagraph (A) does not apply to possession
by a restricted individual of a select agent if the basis for
the prohibition relates solely to subparagraph (F) of section
178(8) of this title, and the restricted individual has
received a waiver from the agency designated to carry out the
functions of this subparagraph. The designated agency may
issue a waiver if it determines, in consultation with the
Attorney General, that a waiver is in the public interest.
``(f) Waivers of Restrictions on Possession of Select
Agents in Course of Employment.--The agency designated to
carry out this subsection, after consultation with
appropriate agencies, with representatives of the scientific
and medical community, and with other appropriate public and
private entities and organizations (including consultation
concerning employment practices in working with select
agents), shall establish the rules and procedures governing
waivers of the provisions of subsection (e)(6)(A) with
[[Page S10423]]
respect to possession of select agents by restricted
individuals in the course of employment. Such rules and
procedures shall address, among other matters as found
appropriate by the designated agency, whether (or the
circumstances under or the extent to which) the determination
to grant a waiver shall be reserved to the Government, or may
be made by the employer (either with or without consultation
with the Government).
``(g) Reimbursement of Costs.--
``(1) Convicted defendant.--
``(A) Subsection (a), (c), or (e).--The court shall order
any person convicted of an offense under subsection (a), (c),
or (e) to reimburse the United States or any State for any
expenses incurred by the United States or the State incident
to the seizure, storage, handling, transportation, and
destruction or other disposal of any property that was seized
in connection with an investigation of the commission of such
offense by that person.
``(B) Subsection (d)(1).--The court shall order any person
convicted of an offense under subsection (d)(1) to reimburse
the United States for any expenses incurred by the United
States incident to the investigation of the commission by
that person of such offense, including the cost of any
response made by any Federal military or civilian agency to
protect public health or safety.
``(2) Owner liability.--The owner or possessor of any
property seized and forfeited under this chapter shall be
liable to the United States for any expenses incurred
incident to the seizure and forfeiture, including any
expenses relating to the handling, storage, transportation,
and destruction or other disposition of the seized and
forfeited property.
``(3) Jointly and severally liable.--A person ordered to
reimburse the United States for expenses under this chapter
shall be jointly and severally liable for such expenses with
each other person, if any, who is ordered under this
subsection to reimburse the United States for the same
expenses.''.
(2) Technical clarifications.--
(A) Section 175.--Section 175(a) of title 18, United States
Code, is amended by striking ``section'' and inserting
``subsection''.
(B) Section 176.--Section 176(a)(1)(A) of title 18, United
States Code, is amended by striking ``exists by reason of''
and inserting ``pertains to''.
(3) Designation of responsible agencies.--
(A) In general.--Not later than 60 days after the date of
enactment of this Act, the President shall designate--
(i) the agency responsible for prescribing the regulation
required by section 175(e)(1) of title 18, United States
Code;
(ii) the agency responsible for granting the waivers under
section 175(e)(6)(E) of title 18, United States Code; and
(iii) the agency responsible for implementing the waiver
provisions of section 175(f) of title 18, United States Code.
(B) Regulations.--The agencies designated pursuant to
subparagraph (A)--
(i) shall issue proposed rules not later than 90 days after
the date of the President's designation; and
(ii) shall issue final rules not later than 270 days after
the date of enactment of this Act.
(C) Inspections.--The agency designated pursuant to
subparagraph (A)(i) may inspect the facilities of any person
who files a report required by section 175(e)(1) of title 18,
United States Code, to determine whether the person is
handling the select agent in a safe manner, whether he is
holding such agent for a prophylactic, protective, or other
peaceful purpose, and whether the type and quantity being
held are reasonable for that purpose. Any agency designated
pursuant to subparagraph (A) may inspect any form required by
section 175(e)(6)(C) of title 18, United States Code, and any
documentation relating to a determination made pursuant to
section 175(e)(6)(D) of that title. The designated agency
shall endeavor to not interfere with the normal business
operations of any such facility.
(D) Freedom of information act exemption.--Any information
provided to the Secretary of Health and Human Services
pursuant to regulations issued under section 511(f) of the
Antiterrorism and Effective Death Penalty Act of 1996 (42
C.F.R. 72.6) or to the designated agency under section
175(e)(1) of title 18, United States Code, shall not be
disclosed under section 552 of title 5, United States Code.
The Secretary or the designated agency may use and disclose
such information to protect the public health, and shall also
disclose any such relevant information to the Attorney
General for use in any investigation or other proceeding to
enforce any law relating to select agents or any other law.
Any such information shall be made available to any committee
or subcommittee of Congress with appropriate jurisdiction
upon the written request of the Chairman or Ranking Member of
such committee or subcommittee, except that no such committee
or subcommittee, and no member and no staff member of such
committee or subcommittee, shall disclose such information
except as otherwise required or authorized by law.
(E) Clarification of the scope of the select agent rule.--
Section 511 of the Antiterrorism and Effective Death Penalty
Act of 1996 (Public Law 104-132; 110 Stat. 1284) is amended--
(i) in each of subsections (a), (d), and (e)--
(I) by inserting ``and toxins'' after ``agents'' each place
it appears; and
(II) by inserting ``or toxin'' after ``agent'' each place
it appears; and
(ii) in subsection (g)(1), by striking ``the term
`biological agent' has'' and inserting ``the terms
`biological agent' and `toxin' have''.
(F) Effective dates.--
(i) Subparagraph (D) shall take effect on the effective
date for the final rule issued pursuant to section 511(d)(1)
of the Antiterrorism and Effective Death Penalty Act of 1996
(Public Law 104-132; 110 Stat. 1284).
(ii) The amendments made by subparagraph (E) shall take
effect as if included in the enactment of section 511 of the
Antiterrorism and Effective Death Penalty Act of 1996 (Public
Law 104-132; 110 Stat. 1284).
(G) Transitional exemptions.--
(i) The prohibition created by section 175(e)(6)(A) of
title 18, United States Code, shall not apply to the
possession of a select agent in the workplace of an employer
(as defined in section 175(e)(6)(D)(iv) of title 18, United
States Code) by a restricted individual (as defined in
subparagraph (A), (B), or (G) of section 178(8) of title 18,
United States Code), until the effective date of the
regulations issued to implement section 175(f) of title 18,
United States Code, or 270 days after the date of enactment
of this Act, whichever occurs earlier.
(ii) The prohibition created by section 175(e)(6)(A) of
title 18, United States Code, shall not apply to the
possession of a select agent by a restricted individual (as
defined in section 178(8)(F) of title 18, United States
Code), until the effective date of the regulations issued to
implement section 175(e)(6)(E) of title 18, United States
Code, or 270 days after the enactment of this Act, whichever
occurs earlier.
(c) Definitional Amendments.--
(1) Section 178.--Section 178 of title 18, United States
Code, is amended--
(A) in paragraph (1), by striking ``means any
microorganism, virus, or infectious substance, or biological
product that may be engineered as a result of biotechnology,
or any naturally occurring or bioengineered component of any
such microorganism, virus, infectious substance, or
biological product'' and inserting the following: ``means any
microorganism (including, but not limited to, bacteria,
viruses, fungi, rickettsiae, or protozoa), or infectious
substance, or any naturally occurring, bioengineered or
synthesized component of any such microorganism or infectious
substance'';
(B) in paragraph (2), by striking ``means the toxic
material of plants, animals, microorganisms, viruses, fungi,
or infectious substances, or a recombinant molecule, whatever
its origin or method of production, including'' and inserting
the following: ``means the toxic material or product of
plants, animals, microorganisms (including, but not limited
to, bacteria, viruses, fungi, rickettsiae, or protozoa), or
infectious substances, or a recombinant or synthesized
molecule, whatever their origin and method of production, and
includes'';
(C) in paragraph (4)--
(i) by striking ``recombinant molecule, or biological
product that may be engineered as a result of biotechnology''
and inserting ``recombinant or synthesized molecule''; and
(ii) by striking ``and'' at the end;
(D) in paragraph (5), by striking the period at the end and
inserting a semicolon; and
(E) by adding at the end the following:
``(6) the term `select agent' means a biological agent or
toxin that is on the list established by the Secretary of
Health and Human Services pursuant to section 511(d)(1) of
the Antiterrorism and Effective Death Penalty Act of 1996
(Public Law 104-132; 110 Stat. 1284) that is not exempted
under part 72.6(h) of title 42, Code of Federal Regulations
or appendix A to such part (or any successor to either such
provision), except that the term does not include any such
biological agent or toxin that is in its naturally occurring
environment, if the biological agent or toxin has not been
cultivated, collected, or otherwise extracted from its
natural source;
``(7) the term `registered entity' means a registered
facility, or a certified laboratory exempted from
registration, pursuant to the regulations promulgated by the
Secretary of Health and Human Services under section 511(f)
of the Antiterrorism and Effective Death Penalty Act of 1996
(42 C.F.R. 72.6(a), 72.6(h));
``(8) the term `restricted individual' means an individual
who--
``(A) is under indictment for a crime punishable by
imprisonment for a term exceeding 1 year;
``(B) has been convicted in any court of a crime--
``(i) punishable by imprisonment for a term exceeding 1
year but not more than 5 years; or
``(ii) punishable by imprisonment for a term exceeding 5
years;
``(C) is a fugitive from justice;
``(D) is an unlawful user of any controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802));
``(E) is an alien illegally or unlawfully in the United
States;
``(F) is an alien (other than an alien lawfully admitted
for permanent residence) who is a national of a country as to
which the Secretary of State, pursuant to section 6(j) of the
Export Administration Act of 1979 (50 U.S.C. App. 2405(j))
(or its successor law), section 620A of the Foreign
Assistance Act of 1961 (22 U.S.C. 2371), or section 40(d) of
the
[[Page S10424]]
Arms Export Control Act (22 U.S.C. 2780(d)), has made a
determination, which remains in effect, that such country has
repeatedly provided support for acts of international
terrorism; or
``(G) has been discharged from the Armed Forces of the
United States under dishonorable conditions;
``(9) the term `alien' has the same meaning as in section
101(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3));
``(10) the term `lawfully admitted for permanent residence'
has the same meaning as in section 101(a)(20) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(20));
``(11) the term `designated agency' means--
``(A) except as provided in subparagraphs (B) and (C) of
this paragraph, the agency designated by the President under
section 2(b)(3)(A)(i) of the Dangerous Biological Agent and
Toxin Control Act of 2000'';
``(B) for purposes of section 175(e)(6)(E) of this title,
the agency designated by the President under section
2(b)(3)(A)(ii) of the Dangerous Biological Agent and Toxin
Control Act of 2000; and
``(C) for purposes of section 175(f) of this title, the
agency designated by the President under section
2(b)(3)(A)(iii) of the Dangerous Biological Agent and Toxin
Control Act of 2000; and
``(12) the term `State' includes a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States, including any
political subdivision thereof.''.
(2) Section 2332a.--Section 2332a of title 18, United
States Code, is amended--
(A) in subsection (a), by striking ``, including any
biological agent, toxin, or vector (as those terms are
defined in section 178)''; and
(B) in subsection (c)(2)(C), by striking ``a disease
organism'' and inserting ``any biological agent, toxin, or
vector (as those terms are defined in section 178 of this
title)''.
____________________