[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)''.

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