[House Report 106-492]
[From the U.S. Government Publishing Office]
106th Congress
Rept. 106-492
HOUSE OF REPRESENTATIVES
2d Session Part 1
=======================================================================
DEPARTMENT OF ENERGY COMMERCIAL APPLICATION OF ENERGY TECHNOLOGY
AUTHORIZATION ACT OF 1999
_______
February 3, 2000.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on Science, submitted the
following
R E P O R T
[To accompany H.R. 1656]
[Including cost estimate of the Congressional Budget Office]
The Committee on Science, to whom was referred the bill (H.R.
1656) to authorize appropriations for fiscal years 2000 and
2001 for the commercial application of energy technology and
related civilian energy and scientific programs, projects, and
activities of the Department of Energy, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
CONTENTS
Page
I. Amendment.................................................... 2
II. Purpose of the Bill.......................................... 10
III. Background and Need for Legislation.......................... 10
IV. Summary of Hearings.......................................... 13
V. Committee Actions............................................ 18
VI. Summary of Major Provisions of the Bill...................... 20
VII. Section-by-Section Analysis and Committee Views.............. 27
VIII. Cost Estimate................................................ 36
IX. Congressional Budget Office Cost Estimate.................... 37
X. Compliance With Public Law 104-4............................. 41
XI. Committee Oversight Findings and Recommendations............. 41
XII. Oversight Findings and Recommendations by the Committee on
Government Reform............................................ 41
XIII. Constitutional Authority Statement........................... 42
XIV. Federal Advisory Committee Statement......................... 42
XV. Congressional Accountability Act............................. 42
XVI. Changes in Existing Law Made by the Bill, as Reported........ 42
XVII. Committee Recommendations.................................... 43
XVIII. Proceedings of Committee on Science Markup................... 43
I. Amendment
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Energy Commercial
Application of Energy Technology Authorization Act of 1999''.
SEC. 2. DEFINITIONS.
For the purposes of this Act--
(1) the term ``Department'' means the Department of Energy;
and
(2) the term ``Secretary'' means the Secretary of Energy.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
(a) Energy Supply.--There are authorized to be appropriated to the
Secretary for Energy Supply commercial application of energy technology
and related civilian energy and scientific research, development, and
demonstration operation and maintenance and construction programs,
projects, and activities for which specific sums are not authorized
under other authority of law $309,662,000 for fiscal year 2000 and
$306,857,000 for fiscal year 2001, to remain available through the end
of fiscal year 2002, of which--
(1) $136,000,000 for fiscal year 2000 and $131,840,000 for
fiscal year 2001 shall be for Nuclear Energy, including--
(A) $85,000,000 for fiscal year 2000 and $87,550,000
for fiscal year 2001 for Termination Costs;
(B) $30,000,000 for fiscal year 2000 and $30,900,000
for fiscal year 2001 for the Fast Flux Test Facility;
(C) $13,000,000 for fiscal year 2000 and $13,390,000
for fiscal year 2001 for Isotope Support; and
(D) $8,000,000 for fiscal year 2000 for completion of
Project 98-E-201, Isotope Production Facility, Los
Alamos National Laboratory;
(2) $50,750,000 for fiscal year 2000 and $51,703,000 for
fiscal year 2001 shall be for Environment, Safety, and Health;
(3) $9,100,000 for fiscal year 2000 and $9,148,000 for fiscal
year 2001 shall be for Technical Information Management;
(4) $102,000,000 for fiscal year 2000 and $102,000,000 for
fiscal year 2001 shall be for Field Operations; and
(5) $11,812,000 for fiscal year 2000 and $12,166,000 for
fiscal year 2001 shall be for Oak Ridge Landlord.
(b) Non-Defense Environmental Management.--There are authorized to be
appropriated to the Secretary for Non-Defense Environmental Management
commercial application of energy technology and related civilian energy
and scientific research, development, and demonstration operation and
maintenance programs, projects, and activities for which specific sums
are not authorized under other authority of law $330,934,000 for fiscal
year 2000 and $340,862,000 for fiscal year 2001, to remain available
through the end of fiscal year 2002, of which--
(1) $211,146,000 for fiscal year 2000 and $217,480,000 for
fiscal year 2001 shall be for Site Closure;
(2) $100,866,000 for fiscal year 2000 and $103,892,000 for
fiscal year 2001 shall be for the Site/Project Completion; and
(3) $18,922,000 for fiscal year 2000 and $19,490,000 for
fiscal year 2001 shall be for Post 2006 Completion.
(c) Fossil Energy Research and Development.--There are authorized to
be appropriated to the Secretary for Fossil Energy Research and
Development Environmental Restoration commercial application of energy
technology and related civilian energy and scientific research,
development, and demonstration operation and maintenance programs,
projects, and activities for which specific sums are not authorized
under other authority of law $10,000,000 for fiscal year 2000 and
$10,300,000 for fiscal year 2001, to remain available through the end
of fiscal year 2002.
(d) Energy Conservation Research and Development.--There are
authorized to be appropriated to the Secretary for Energy Conservation
Research and Development commercial application of energy technology
and related civilian energy and scientific research, development, and
demonstration operation and maintenance programs, projects, and
activities for which specific sums are not authorized under other
authority of law $52,163,000 for fiscal year 2000 and $53,727,890 for
fiscal year 2001, to remain available through the end of fiscal year
2002, of which--
(1) $10,700,000 for fiscal year 2000 and $11,021,000 for
fiscal year 2001 shall be for Clean Cities;
(2) $12,802,000 for fiscal year 2000 and $13,186,060 for
fiscal year 2001 shall be for Building Standards and
Guidelines;
(3) $13,343,000 for fiscal year 2000 and $13,743,290 for
fiscal year 2001 shall be for Lighting and Appliance Standards;
and
(4) $15,318,000 for fiscal year 2000 and $15,777,540 for
fiscal year 2001 for Management and Planning for the Building
Technology, State and Community Sector (nongrants).
SEC. 4. NOTICE.
(a) Reprogramming.--The Secretary may use for any authorized civilian
energy or scientific research, development, and demonstration and
commercial application of energy technology programs, projects, and
activities of the Department--
(1) up to the lesser of $250,000 or 5 percent of the total
funding for a fiscal year of another such program, project, or
activity of the Department; or
(2) after the expiration of 60 days after transmitting to the
Committee on Science and the Committee on Appropriations of the
House of Representatives, and to the Committee on Energy and
Natural Resources and the Committee on Appropriations of the
Senate, a report described in subsection (b), up to 25 percent
of the total funding for a fiscal year of another such program,
project, or activity of the Department.
(b) Report.--(1) The report referred to in subsection (a)(2) is a
report containing a full and complete statement of the action proposed
to be taken and the facts and circumstances relied upon in support of
such proposed action.
(2) In the computation of the 60-day period under subsection (a)(2),
there shall be excluded any day on which either House of Congress is
not in session because of an adjournment of more than 3 days to a day
certain.
(c) Limitations.--In no event may funds be used pursuant to
subsection (a) for a civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology program, project, or activity for which funding has been
requested to the Congress but which has not been funded by the
Congress.
(d) Notice of Reorganization.--The Secretary shall provide notice to
the Committee on Science and the Committee on Appropriations of the
House of Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, not later
than 15 days before any major reorganization of any civilian energy or
scientific research, development, and demonstration or commercial
application of energy technology program, project, or activity of the
Department.
(e) Copy of Reports.--The Secretary shall provide copies to the
Committee on Science and the Committee on Appropriations of the House
of Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, of any
report relating to the civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology activities of the Department prepared at the direction of
any committee of Congress.
SEC. 5. LIMITATION ON DEMONSTRATIONS.
The Department shall provide funding for civilian energy or
scientific or commercial application of energy technology demonstration
programs, projects, and activities only for technologies or processes
that can be reasonably expected to yield new, measurable benefits to
the cost, efficiency, or performance of the technology or process.
SEC. 6. LIMITS ON GENERAL PLANT PROJECTS.
If, at any time during the construction of a civilian energy or
scientific research, development, and demonstration or commercial
application of energy technology project of the Department for which no
specific funding level is provided by law, the estimated cost
(including any revision thereof) of the project exceeds $2,000,000, the
Secretary may not continue such construction unless the Secretary has
furnished a complete report to the Committee on Science and the
Committee on Appropriations of the House of Representatives, and to the
Committee on Energy and Natural Resources and the Committee on
Appropriations of the Senate, explaining the project and the reasons
for the estimate or revision.
SEC. 7. LIMITS ON CONSTRUCTION PROJECTS.
(a) Limitation.--Except as provided in subsection (b), construction
on a civilian energy or scientific research, development, and
demonstration or commercial application of energy technology project of
the Department for which funding has been specifically provided by law
may not be started, and additional obligations may not be incurred in
connection with the project above the authorized funding amount,
whenever the current estimated cost of the construction project exceeds
by more than 10 percent the higher of--
(1) the amount authorized for the project, if the entire
project has been funded by the Congress; or
(2) the amount of the total estimated cost for the project as
shown in the most recent budget justification data submitted to
Congress.
(b) Notice.--An action described in subsection (a) may be taken if--
(1) the Secretary has submitted to the Committee on Science
and the Committee on Appropriations of the House of
Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, a
report on the proposed actions and the circumstances making
such actions necessary; and
(2) a period of 30 days has elapsed after the date on which
the report is received by the committees.
(c) Exclusion.--In the computation of the 30-day period described in
subsection (b)(2), there shall be excluded any day on which either
House of Congress is not in session because of an adjournment of more
than 3 days to a day certain.
(d) Exception.--Subsections (a) and (b) shall not apply to any
construction project which has a current estimated cost of less than
$2,000,000.
SEC. 8. AUTHORITY FOR CONCEPTUAL AND CONSTRUCTION DESIGN.
(a) Requirement for Conceptual Design.--(1) Subject to paragraph (2)
and except as provided in paragraph (3), before submitting to Congress
a request for funds for a construction project that is in support of a
civilian energy or scientific research, development, and demonstration
or commercial application of energy technology program, project, or
activity of the Department, the Secretary shall complete a conceptual
design for that project.
(2) If the estimated cost of completing a conceptual design for a
civilian energy or scientific research, development, and demonstration
or commercial application of energy technology construction project
exceeds $750,000, the Secretary shall submit to Congress a request for
funds for the conceptual design before submitting a request for funds
for the construction project.
(3) The requirement in paragraph (1) does not apply to a request for
funds for a construction project, the total estimated cost of which is
less than $2,000,000.
(b) Authority for Construction Design.--(1) The Secretary may carry
out construction design (including architectural and engineering
services) in connection with any proposed construction project that is
in support of a civilian energy or scientific research, development,
and demonstration or commercial application of energy technology
program of the Department if the total estimated cost for such design
does not exceed $250,000.
(2) If the total estimated cost for construction design in connection
with any construction project described in paragraph (1) exceeds
$250,000, funds for such design must be specifically authorized by law.
SEC. 9. LIMITS ON USE OF FUNDS.
(a) Clean Coal Technology Reserve.--No funds in the Clean Coal
Technology Reserve may be used to initiate or carry out a clean coal
technology energy demonstration project based outside the United
States.
(b) Travel.--Not more than 1 percent of the funds authorized by this
Act may be used either directly or indirectly to fund travel costs of
the Department or travel costs for persons awarded contracts or
subcontracts by the Department. As part of the Department's annual
budget request submission to the Congress, the Secretary shall submit a
report to the Committee on Science and the Committee on Appropriations
of the House of Representatives, and to the Committee on Energy and
Natural Resources and the Committee on Appropriations of the Senate,
that identifies--
(1) the estimated amount of travel costs by the Department
and for persons awarded contracts or subcontracts by the
Department for the fiscal year of such budget submission, as
well as for the 2 previous fiscal years;
(2) the major purposes for such travel; and
(3) the sources of funds for such travel.
(c) Trade Associations.--No funds authorized by this Act may be used
either directly or indirectly to fund a grant, contract, subcontract,
or any other form of financial assistance awarded by the Department to
a trade association on a noncompetitive basis. As part of the
Department's annual budget request submission to the Congress, the
Secretary shall submit a report to the Committee on Science and the
Committee on Appropriations of the House of Representatives, and to the
Committee on Energy and Natural Resources and the Committee on
Appropriations of the Senate, that identifies--
(1) the estimated amount of funds provided by the Department
to trade associations, by trade association, for the fiscal
year of such budget submission, as well as for the 2 previous
fiscal years;
(2) the services either provided or to be provided by each
such trade association; and
(3) the sources of funds for services provided by each such
trade association.
SEC. 10. MANAGEMENT AND OPERATING CONTRACTS.
(a) Competitive Procedure Requirement.--None of the funds authorized
to be appropriated by this Act or any prior Act may be used to award a
management and operating contract for a federally owned or operated
nonmilitary energy laboratory of the Department unless such contract is
awarded using competitive procedures or the Secretary grants, on a
case-by-case basis, a waiver to allow for such a deviation. The
Secretary may not delegate the authority to grant such a waiver.
(b) Congressional Notice.--At least 60 days before a contract award,
amendment, or modification for which the Secretary intends to grant
such a waiver, the Secretary shall submit to the Committee on Science
and the Committee on Appropriations of the House of Representatives,
and to the Committee on Energy and Natural Resources and the Committee
on Appropriations of the Senate, a report notifying the committees of
the waiver and setting forth the reasons for the waiver.
SEC. 11. FEDERAL ACQUISITION REGULATION.
(a) Requirement.--None of the funds authorized to be appropriated by
this Act or any prior Act for any commercial application of energy
technology or civilian energy or scientific research, development, and
demonstration or commercial application of energy technology programs,
projects, and activities may be used to award, amend, or modify a
contract of the Department in a manner that deviates from the Federal
Acquisition Regulation, unless the Secretary grants, on a case-by-case
basis, a waiver to allow for such a deviation. The Secretary may not
delegate the authority to grant such a waiver.
(b) Congressional Notice.--At least 60 days before a contract award,
amendment, or modification for which the Secretary intends to grant
such a waiver, the Secretary shall submit to the Committee on Science
and the Committee on Appropriations of the House of Representatives,
and to the Committee on Energy and Natural Resources and the Committee
on Appropriations of the Senate, a report notifying the committees of
the waiver and setting forth the reasons for the waiver.
SEC. 12. REQUESTS FOR PROPOSALS.
None of the funds authorized to be appropriated by this Act or any
prior Act may be used by the Department to prepare or initiate Requests
for Proposals (RFPs) for a civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology program, project, or activity if the program, project, or
activity has not been specifically authorized by Congress.
SEC. 13. PRODUCTION OR PROVISION OF ARTICLES OR SERVICES.
(a) Restriction.--Except as provided in subsection (b), none of the
funds authorized to be appropriated by this Act or any prior Act may be
used by any civilian energy or scientific research, development, and
demonstration or commercial application of energy technology program,
project, or activity of the Department to produce or provide articles
or services for the purpose of selling the articles or services to a
person outside the Federal Government, unless the Secretary determines
that comparable articles or services are not available from a
commercial source in the United States.
(b) Exception.--Subsection (a) does not apply to the transmission and
sale of electricity by any Federal power marketing administration.
SEC. 14. ELIGIBILITY FOR AWARDS.
(a) In General.--The Secretary shall exclude from consideration for
grant agreements for civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology activities made by the Department after fiscal year 1999 any
person who received funds, other than those described in subsection
(b), appropriated for a fiscal year after fiscal year 1999, under a
grant agreement from any Federal funding source for a program, project,
or activity that was not subjected to a competitive, merit-based award
process, except as specifically authorized by this Act. Any exclusion
from consideration pursuant to this section shall be effective for a
period of 5 years after the person receives such Federal funds.
(b) Exception.--Subsection (a) shall not apply to the receipt of
Federal funds by a person due to the membership of that person in a
class specified by law for which assistance is awarded to members of
the class according to a formula provided by law or under circumstances
permitting other than full and open competition under the Federal
Acquisition Regulation.
(c) Definition.--For purposes of this section, the term ``grant
agreement'' means a legal instrument whose principal purpose is to
transfer a thing of value to the recipient to carry out a public
purpose of support or stimulation authorized by a law of the United
States, and does not include the acquisition (by purchase, lease, or
barter) of property or services for the direct benefit or use of the
United States Government. Such term does not include a cooperative
agreement (as such term is used in section 6305 of title 31, United
States Code) or a cooperative research and development agreement (as
such term is defined in section 12(d)(1) of the Stevenson-Wydler
Technology Innovation Act of 1980 (15 U.S.C. 3710a(d)(1))).
SEC. 15. EXTERNAL REGULATION.
(a) Authority.--
(1) Elimination of department of energy authority.--Except as
provided in paragraph (2), effective January 1, 2000, the
Department shall have no regulatory or enforcement authority,
through rules, regulations, orders, and standards, or reporting
requirements, with respect to Federal, State, and local
environmental, safety, and health requirements at any federally
owned or operated nonmilitary energy laboratory.
(2) Exception.--Notwithstanding paragraph (1), the Department
shall retain regulatory or enforcement authority described in
paragraph (1) at any federally owned or operated nonmilitary
energy laboratory to the extent that no other Federal, State,
or local governmental agency has such regulatory or enforcement
authority.
(b) Nuclear Regulatory Commission Authority.--
(1) Enforcement responsibilities.--Effective January 1, 2000,
the Nuclear Regulatory Commission shall assume the regulatory
and enforcement responsibilities of the Department under the
Atomic Energy Act of 1954 with regard to federally owned or
operated nonmilitary energy laboratories, including such
responsibilities with respect to accelerator-produced
radioactive material and ionizing radiation generating
machines.
(2) Licensed entity.--For the purposes of carrying out at
federally owned or operated nonmilitary energy laboratories
regulatory and enforcement responsibilities described in
paragraph (1), the Nuclear Regulatory Commission may regulate
and license or provide certification for the Department, the
Department's contractor, or both.
(3) Decommissioning.--A contractor operating a federally
owned nonmilitary energy laboratory shall not be responsible
for the costs of decommissioning that facility. No enforcement
action may be taken against such contractor for any violation
of Nuclear Regulatory Commission decommissioning requirements,
if such violation is the result of a failure of the Department
to authorize or fund decommissioning activities. The Nuclear
Regulatory Commission and the Department shall, not later than
July 1, 2000, enter into a memorandum of understanding
establishing decommissioning procedures and requirements for
federally owned or operated nonmilitary energy laboratories.
(c) Occupational Safety and Health.--
(1) OSHA jurisdiction.--Notwithstanding any other provision
of law, effective January 1, 2000, the Occupational Safety and
Health Administration shall assume the regulatory and
enforcement responsibilities of the Department relating to
matters covered by the Occupational Safety and Health Act of
1970 with regard to all federally owned or operated nonmilitary
energy laboratories. The Department's contractor or contractors
operating those laboratories shall be considered employers for
purposes of the Occupational Safety and Health Act of 1970.
(2) Applicability.--Section 4(b)(1) of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)) does not
apply with respect to the Department's regulation, or the
Nuclear Regulatory Commission's regulation, of federally owned
or operated nonmilitary energy laboratories.
(3) Radiation regulations.--With respect to federally owned
or operated nonmilitary energy laboratories, the Secretary of
Labor may enforce the regulations contained in part 20 of title
10 of the Code of Federal Regulations, relating to Protection
from Radiation, to the same extent as regulations issued under
section 6(b) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 655(b)).
(4) Memorandum of understanding.--The Nuclear Regulatory
Commission and the Occupational Safety and Health
Administration shall, within 90 days after the date of the
enactment of this Act, enter into a memorandum of understanding
to govern the exercise of their respective authorities over
occupational safety and health hazards at federally owned or
operated nonmilitary energy laboratories.
(d) Civil Penalties.--The Department's contractor operating a
federally owned or operated nonmilitary energy laboratory shall not be
liable for civil penalties under the Atomic Energy Act of 1954 or the
Occupational Safety and Health Act of 1970 for any actions taken before
October 1, 2000, pursuant to the transfer of regulatory and enforcement
responsibilities required by this section.
(e) Indemnification.--The Secretary shall continue to indemnify
federally owned or operated nonmilitary energy laboratories in
accordance with the provisions of section 170d. of the Atomic Energy
Act of 1954.
(f) Department of Energy Reporting Requirement.--By October 31, 1999,
the Secretary shall transmit to the Committee on Science and the
Committee on Appropriations of the House of Representatives, and the
Committee on Energy and Natural Resources and the Committee on
Appropriations of the Senate, a plan for the termination of the
Department's regulatory and enforcement responsibilities for federally
owned or operated nonmilitary energy laboratories required by this
section. The report shall include--
(1) a detailed transition plan, drafted in coordination with
the Nuclear Regulatory Commission and the Occupational Safety
and Health Administration, giving the schedule for termination
of self-regulation authority as outlined in subsection (a),
including the activities to be coordinated with the Nuclear
Regulatory Commission and the Occupational Safety and Health
Administration;
(2) a description of any issues remaining to be resolved with
the Nuclear Regulatory Commission, the Occupational Safety and
Health Administration, or other external regulators, and a
timetable for resolving such issues before January 1, 2000;
(3) an estimate of--
(A) the annual cost of administering and implementing
self-regulation of environmental, safety, and health
activities at federally owned or operated nonmilitary
energy laboratories;
(B) the number of Federal and contractor employees
administering and implementing such self-regulation;
(C) the cost of external regulation based on the
pilot projects of simulated Nuclear Regulatory
Commission regulation which have already been
conducted; and
(D) the extent and schedule by which the Department
and laboratory staffs will be reduced as a result of
implementation of this section; and
(4) a description of regulatory or enforcement authorities
the Department determines it will be required to retain
pursuant to subsection (a)(2).
SEC. 16. INTERNET AVAILABILITY OF INFORMATION.
The Secretary shall make available through the Internet home page of
the Department the abstracts relating to all research grants and awards
made with funds authorized by this Act. Nothing in this section shall
be construed to require or permit the release of any information
prohibited by law or regulation from being released to the public.
SEC. 17. MORATORIUM ON FOREIGN VISITORS PROGRAM.
(a) Moratorium.--Until the appropriate conditions are met under
subsection (c), the Secretary may not admit any individual who is a
citizen of a nation that is named on the current Department of Energy
List of Sensitive Countries to--
(1) any classified facility of a laboratory owned by the
Department; or
(2) any facility of a laboratory owned by the Department for
the purposes of conducting activities related to any of the
sensitive subjects listed in part 1 of Appendix 4 of the
February 1997 document entitled ``Guidelines on Export Control
and Nonproliferation'', issued by the Nuclear Transfer and
Supplier Policy Division of the Office of Arms Control and
Nonproliferation of the Office of Nonproliferation and National
Security of the Department.
(b) Waiver Authority.--(1) The Secretary may waive the prohibition in
subsection (a) on a case-by-case basis with respect to specific
individuals whose admission to a laboratory owned by the Department is
determined by the Secretary to be necessary for the national security
of the United States.
(2) Not later than 30 days after granting a waiver under paragraph
(1), the Secretary shall transmit to the committees described in
subsection (e) a report in writing regarding the waiver. The report
shall identify each individual for whom such a waiver is granted and,
with respect to each such individual, provide a detailed justification
for the waiver and the Secretary's certification that the admission of
that individual to a laboratory owned by the Department is necessary
for the national security of the United States.
(3) The authority of the Secretary under paragraph (1) may not be
delegated.
(c) Conditions for Lifting Moratorium.--The moratorium on a
laboratory owned by the Department shall be lifted when the Secretary,
in consultation with and with the concurrence of the Director of the
Federal Bureau of Investigation, transmits to the Congress a report
certifying that--
(1) all of the applicable counterintelligence and safeguards
and security measures contained in Presidential Decision
Directive 61 have been fully implemented at the laboratory, and
that adequate oversight and resources exist to ensure that they
are properly followed;
(2) all of the additional applicable counterintelligence and
safeguards and security measures announced by the Secretary on
March 17, 1999, and March 31, 1999, have been fully implemented
at the laboratory, and that adequate oversight and resources
exist to ensure that they are appropriately followed; and
(3) all of the guidelines in February 1997 document entitled
``Guidelines on Export Control and Nonproliferation'', issued
by the Nuclear Transfer and Supplier Policy Division of the
Office of Arms Control and Nonproliferation of the Office of
Nonproliferation and National Security of the Department are
being followed with respect to all activities at the
laboratory.
(d) Report to Congress.--(1) The Director of the Federal Bureau of
Investigation and the Secretary jointly shall transmit to the
committees described in subsection (e) an annual report, the first of
which shall be transmitted not later than 90 days after the date of the
enactment of this Act, on counterintelligence and safeguards and
security activities at the laboratories owned by the Department,
including facilities and areas at those laboratories at which
unclassified work is carried out.
(2) The report required by paragraph (1) shall include--
(A) a description of the status of counterintelligence and
safeguards and security at each of the laboratories owned by
the Department;
(B) a description of the status of the conditions for lifting
the moratorium under subsection (c); and
(C) a net assessment of the foreign visitors program at the
laboratories owned by the Department, prepared by a panel of
individuals with expertise in intelligence,
counterintelligence, and nuclear weapons design matters.
(e) Committees.--The Committees referred to in this section are the
Committee on Armed Services, the Committee on Appropriations, the
Committee on Commerce, Science, and Transportation, the Committee on
Energy and National Resources, and the Select Committee on Intelligence
of the Senate, and the Committee on Armed Services, the Committee on
Appropriations, the Committee on Commerce, the Committee on Science,
and the Permanent Select Committee on Intelligence of the House of
Representatives.
SEC. 18. TECHNOLOGY TRANSFER COORDINATION.
Within 90 days after the date of the enactment of this Act, the
Secretary shall ensure, for the laboratories owned by the Department
carrying out programs under this Act--
(1) consistency of technology transfer policies and
procedures with respect to patenting, licensing, and
commercialization;
(2) the availability to aggrieved private sector entities on
request of binding alternative dispute resolution, nonbinding
alternative dispute resolution, mediation, negotiation between
authorized representatives of the disputing parties, or
resolution by the Department's site contracting officer to
resolve disputes regarding all technology transfer and
intellectual property matters, with costs and damages to be
provided for by the contractor to the extent that any such
resolution attributes fault to the contractor;
(3) annual reports to the Secretary, as part of the annual
performance evaluation, on technology transfer and intellectual
property successes, current technology transfer and
intellectual property disputes involving the laboratory, and
progress toward resolving those disputes; and
(4) training to ensure that laboratory personnel responsible
for patenting, licensing, and commercialization activities are
knowledgeable of the appropriate legal, procedural, and ethical
issues necessary to carry out those activities with the highest
possible professional and ethical standards.
SEC. 19. DEPARTMENT OF ENERGY REGULATIONS RELATING TO THE SAFEGUARDING
AND SECURITY OF RESTRICTED DATA.
(a) In General.--Chapter 18 of title I of the Atomic Energy Act of
1954 (42 U.S.C. 2271 et seq.) is amended by inserting after section
234A the following new section:
``Sec. 234B. Civil Monetary Penalties for Violations of Department of
Energy Regulations Regarding Security of Classified or Sensitive
Information or Data.--
``a. Any person who has entered into a contract or agreement with the
Department of Energy, or a subcontract or subagreement thereto, and who
violates (or whose employee violates) any applicable rule, regulation,
or order prescribed or otherwise issued by the Secretary pursuant to
this Act relating to the safeguarding or security of Restricted Data or
other classified or sensitive information shall be subject to a civil
penalty of not to exceed $100,000 for each such violation.
``b. The Secretary shall include in each contract with a contractor
of the Department provisions which provide an appropriate reduction in
the fees or amounts paid to the contractor under the contract in the
event of a violation by the contractor or contractor employee of any
rule, regulation, or order relating to the safeguarding or security of
Restricted Data or other classified or sensitive information. The
provisions shall specify various degrees of violations and the amount
of the reduction attributable to each degree of violation.
``c. The powers and limitations applicable to the assessment of civil
penalties under section 234A, except for subsection d. of that section,
shall apply to the assessment of civil penalties under this section.''.
(b) Clarifying Amendment.--The section heading of section 234A of
such Act (42 U.S.C. 2282a) is amended by inserting ``Safety'' before
``Regulations''.
(c) Clerical Amendment.--The table of sections for that Act is
amended by inserting after the item relating to section 234 the
following new items:
``Sec. 234A. Civil Monetary Penalties for Violations of Department of
Energy Safety Regulations.
``Sec. 234B. Civil Monetary Penalties for Violations of Department of
Energy Regulations Regarding Security of Classified or Sensitive
Information or Data.''.
SEC. 20. WHISTLEBLOWER PROTECTION.
(a) Program.--The Secretary shall establish a program to ensure that
an employee of the Department, or a contractor employee, may not be
discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a person or entity referred to in subsection (b)
information which the employee or contractor employee reasonably
believes to provide direct and specific evidence of a violation
described in subsection (c).
(b) Covered Persons and Entities.--A person or entity referred to in
this subsection is the following:
(1) A Member of Congress.
(2) An employee of Congress who has an appropriate security
clearance for access to the information.
(3) The Inspector General of the Department.
(4) The Federal Bureau of Investigation.
(5) Any other element of the Federal Government designated by
the Secretary as authorized to receive information of the type
disclosed.
(c) Covered Violations.--A violation referred to in subsection (a)
is--
(1) a violation of law or Federal regulation;
(2) gross mismanagement, a gross waste of funds, or abuse of
authority; or
(3) a false statement to Congress on an issue of material
fact.
SEC. 21. INVESTIGATION AND REMEDIATION OF ALLEGED REPRISALS FOR
DISCLOSURE OF CERTAIN INFORMATION TO CONGRESS.
(a) Submittal of Allegations to Inspector General.--A Department
employee or contractor employee who believes that the employee has been
discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing information referred to in subsection (a) of section 20
in accordance with the provisions of that section may submit a
complaint relating to such action to the Inspector General of the
Department.
(b) Investigation.--(1) For each complaint submitted under subsection
(a), the Inspector General shall--
(A) determine whether or not the complaint is frivolous; and
(B) if the Inspector General determines the complaint is not
frivolous, conduct an investigation of the complaint.
(2) The Inspector General shall submit a report on each investigation
undertaken under paragraph (1)(B) to--
(A) the employee who submitted the complaint on which the
investigation is based;
(B) the contractor concerned, if any; and
(C) the Secretary.
(c) Remedial Actions.--(1) If the Secretary determines that an
employee has been subjected to an adverse personnel action referred to
in subsection (a) in contravention of the provisions of section 20(a),
the Secretary shall--
(A) in the case of a Department employee, take appropriate
actions to abate the action; or
(B) in the case of a contractor employee, order the
contractor concerned to take appropriate actions to abate the
action.
(2)(A) If a contractor fails to comply with an order issued under
paragraph (1)(B), the Secretary may file an action for enforcement of
the order in the appropriate United States district court.
(B) In any action brought under subparagraph (A), the court may grant
appropriate relief, including injunctive relief and compensatory and
exemplary damages.
(d) Quarterly Report.--(1) Not later than 30 days after the
commencement of each fiscal quarter, the Inspector General shall submit
to the Committee on Science and other relevant committees of the House
of Representatives, and to the Committee on Energy and Natural
Resources and other relevant committees of the Senate, a report on the
investigations undertaken under subsection (b)(1)(B) during the
preceding fiscal quarter, including a summary of the results of such
investigations.
(2) A report under paragraph (1) shall not identify or otherwise
provide any information on a person submitting a complaint under this
section without the consent of the person.
II. Purpose of the Bill
The purpose of H.R. 1656 is to authorize appropriations for
fiscal years (FYs) 2000 and 2001 for the commercial application
of energy technology and related civilian energy and scientific
research, development and demonstration (RD&D) programs,
projects, and activities of the Department of Energy (DOE).
III. Background and Need for the Legislation
Three circumstances dictate the need for this legislation:
(1) the importance of preserving and strengthening the Nation's
scientific leadership; (2) the lack of specific authorizations
for the bulk of the DOE's civilian commercial application of
energy technology and energy and scientific RD&D activities
under the Committee on Science's jurisdiction; and (3) the
necessity to maintain discretionary budget caps.
In the next century, it is imperative that the United
States maintains and improves its scientific, technical, and
engineering base to sustain prosperity, meet the challenge of
new ideas, and ensure a better quality of life for future
generations. Notwithstanding the projections of budget
surpluses, competition for scarce Federal discretionary
resources by competing interests requires Congress to stress
the fundamental importance of Federal science programs to the
nation. In this fiscal environment, it is the view of the
Committee on Science that funding for basic scientific research
should take precedence over activities better conducted by the
private sector, which tends to focus more on short-term,
applied research.
Within this framework, the Committee on Science continues
to support the goal of increasing research funding in a
responsible manner. This means that increases must fall within
the discretionary budget caps and be predicated upon the
following five principles:
1. Federal RD&D must focus on programs that are long-term,
high-risk, non-commercial, well-managed, and provide the
potential for fruitful scientific advances.
2. Federal RD&D should hue closely to agency missions and
be open to rigorous evaluations of quality and results.
3. Beyond the demonstration of technical feasibility,
research providing incremental improvements in a product or
process design, or associated with marketing and
commercialization, should be left to the private sector.
4. Partnerships of all kinds should be encouraged to
leverage scarce taxpayer dollars.
5. Infrastructure necessary for carrying out essential
Federal RD&D programs needs to be prioritized consistent with
program requirements.
The DOE is a major funding source for science--its Office
of Science supports the Federal Government's third largest
basic research program, exceeded in size only by the National
Institutes of Health and the National Science Foundation. In
addition, DOE supports major energy RD&D efforts, including
solar and renewable energy, energy efficiency, fossil energy,
and nuclear and fusion energy.
The general authority for these DOE activities lies in
various statutes, including the Atomic Energy Act of 1954, as
amended (P.L. 83-703), the Energy Reorganization Act of 1974
(P.L. 93-438), the Federal Nonnuclear Energy Research and
Development Act of 1974 (P.L. 93-577), and the Department of
Energy Organization Act (P.L. 95-91)--which established DOE in
the Executive Branch on October 1, 1977, as an cabinet-level
agency. Beyond this general authority, statutes such as the
Energy Policy Act of 1992 (P.L. 102-486) authorize numerous
specific RD&D activities. However, with 3 exceptions--Hydrogen
Research,\1\ Next Generation Internet,\2\ and Renewable Indian
Energy Resources \3\--very few of the Department's civilian
programs have specific authorizations. And nearly all such
authorizations contained in the Energy Policy of Act of 1992
either have or soon will expire. This circumstance, in and of
itself, dictates a compelling need for a comprehensive
authorization bill to provide guidance and direction to the
Department that will preserve and strengthen the Nation's
science base and our energy future.
---------------------------------------------------------------------------
\1\ Hydrogen Research is authorized at $35.0 million for FY 2000
and at $40.0 million for FY 2001 by the Hydrogen Future Act of 1996
(P.L. 104-271).
\2\ NGI is authorized at $25.0 million for FY 2000 by the Next
Generation Internet Research Act of 1998 (P.L. 105-305).
\3\ Renewable Indian Energy Resources is authorized at $30.0
million for each of FY 2000-2003 by the Energy Conservation
Reauthorization Act of 1998 (P.L. 105-388).
---------------------------------------------------------------------------
Under Rule X, clause 1(n)(1) of the Rules of the House, the
Committee on Science has jurisdiction over ``all bills,
resolutions, and other matters relating to * * * [all] energy
research, development, and demonstration, and projects therefor
* * * '' [emphases added]. Similarly, under Rule X, clause
1(n)(4), the Committee has jurisdiction over environmental R&D;
under Rule X, clause 1(n)(6), the Committee has jurisdiction
over the commercial application of energy technology; and under
Rule X, clause 1(n)(14), the Committee has jurisdiction over
scientific RD&D.
In 1997, the Committee reported H.R. 1277, the DOE Civilian
RD&D Authorization Act of 1997, which would have authorized
specific sums for DOE's civilian energy and scientific RD&D and
related commercial application of energy technology programs
for FYs 1998 and 1999. That bill was referred sequentially to
the House Committee on Commerce, and was never acted on by the
House because the two Committees could not resolve their
jurisdictional differences. In the spirit of bipartisan
cooperation to address the Commerce Committee's concerns about
H.R. 1277, the Science Committee has divided the DOE programs
contained in H.R. 1277 into two bills: (1) this bill, H.R.
1656, which authorizes those DOE commercial application of
energy technology and related civilian energy and scientific
RD&D programs, projects, and activities that the Science
Committee shares jurisdiction with the Commerce Committee; and
(2) H.R. 1656, which authorizes the DOE civilian energy and
scientific RD&D and related commercial application programs,
projects, and activities that are under the sole jurisdiction
of the Science Committee.\4\
---------------------------------------------------------------------------
\4\ H.R. 1656, as introduced, authorized only those DOE's civilian
energy and scientific RD&D and related commercial application of energy
technology programs that the Committee on Commerce did not strike from
H.R. 1277.
---------------------------------------------------------------------------
As a result of bipartisan consultations with the Commerce
Committee after the introduction of H.R. 1656, Mr. Calvert,
Chairman of the Science Committee's Subcommittee on Energy and
Environment, offered a manager's amendment on behalf of himself
and Mr. Costello, Ranking Minority Member of the Subcommittee
on Energy and Environment, that deleted the Field Operations,
Oak Ridge Landlord and Building Technology, State, and
Community Sector (nongrants) Management and Planning line items
from H.R. 1655--items for which the Commerce Committee has now
claimed joint jurisdiction \5\--and added them to H.R. 1656. In
addition, the manager's amendment struck the Uranium Programs
authorization in H.R. 1656.
---------------------------------------------------------------------------
\5\ The Field Operations, Oak Ridge Landlord and Building
Technology, State, and Community Sector (nongrants) Management and
Planning line items were included the Commerce Committee's reported
version of H.R. 1277, thereby indicating that at that time the Commerce
Committee agreed that these line items were the sole jurisdiction of
the Science Committee.
---------------------------------------------------------------------------
The Committee believes that this authorization bill--the
Department of Energy Commercial Application of Energy
Technology Authorization Act of 1999--authorizes the DOE
civilian commercial application of energy technology and
related scientific RD&D programs, projects, and activities that
are the joint jurisdiction of the Science and Commerce
Committees, and meets the Committee's responsibilities to set
priorities for good fundamental science and a balanced energy
research portfolio that is vital to the Nation's future, while
maintaining the discretionary budget caps.\6\
---------------------------------------------------------------------------
\6\ The Committee recognizes that other provisions of the bill,
such as those dealing with external regulation and national security,
may also fall within the jurisdiction of other committees.
---------------------------------------------------------------------------
IV. Summary of Hearings
The Subcommittee on Energy and Environment of the Committee
on Science held hearings on March 3, March 10, March 24, and
April 14, 1999 to hear testimony on the Administration's FY
2000 budget request for the civilian energy and scientific RD&D
and related commercial application of energy technology
programs, projects, and activities of the DOE.
Appearing as witnesses before the Subcommittee hearing on
March 3, 1999, titled ``Fiscal Year 2000 Budget Authorization
Request: Department of Energy--Offices of Science; Environment,
Safety and Health; and Environmental Management,'' were: Dr.
Martha A. Krebs, Director, DOE Office of Science; Dr. David M.
Michaels, DOE Assistant Secretary for Environment, Safety and
Health (EH); Mr. Dan M. Berkovitz, DOE Deputy Assistant
Secretary for Planning, Policy and Budget, Office of
Environmental Management (EM); and Mr. Victor S. Rezendes,
Director, Energy, Natural Resources, and Science Issues,
Development Division, U.S. General Accounting Office (GAO).
Dr. Krebs testified on the $2.85 billion request from the
Office of Science. Her testimony included the following:
DOE ranks second behind the Department of Defense
in terms of the investment made in science by the Federal
Government.
Background and status of the Spallation Neutron
Source (SNS), including some recent reviews of the project DOE
has taken into account in planning the project.
DOE hopes to use the Scientific Simulation
Initiative to build computer and information technology for the
second decade of the new century with the hope that the
terascale computers developed will be used for numerous
projects within DOE and the science community in general.
Dr. Michael's testimony on the $50.8 million EH non-defense
budget request discussed the following:
In 1997 DOE decided to run pilot programs to
determine the costs and benefits of external regulation, and
subsequently intended to submit legislation to Congress that
would externally regulate certain single-purpose energy
research laboratories.
The FY 1999 Energy and Water Development
Appropriations Conference Report directed DOE not to begin any
pilot projects that did not include the Nuclear Regulatory
Commission (NRC), the Occupational Safety and Health
Administration (OSHA), and other State and local bodies.
These pilots have raised unexpected and as yet
unresolved issues. With such issues outstanding, DOE does not
feel comfortable in submitting single-purpose laboratory
external-regulation legislation at this time. DOE, however, is
still continuing with external regulation activities.
Secretary of Energy Richardson designated the
Integrated Safety Management (ISM) as the Department's safety
policy and is continuing to take step towards implementing ISM.
EH is currently soliciting input from outside
experts with the hope of addressing concerns by workers who
claim that their health was put in jeopardy.
Mr. Berkovitz discussed the $330 million non-defense
request for EM and said the following:
EM is responsible for cleaning up government-
related nuclear energy research facilities that have
accumulated over the past 50 years. In addition, EM is tasked
with maintaining the safety and security of weapons-usable
plutonium and radioactive spent nuclear fuel.
EM has set a goal of cleaning up as many sites as
possible by the year 2006. There are 48 sites left (down from
53 the previous year) and EM hopes to reduce that number to 42
by the end of FY 2000.
EM uses technological innovations to contribute to
clean-up and continues to research and develop new technologies
to aid in the future.
Mr. Rezendes testified on the GAO review of the status of
the SNS project and noted the following findings:
DOE has not assembled a complete team with the
necessary technical skills and experience to manage the
project.
The project is underspending its appropriations
and has currently spent 60 percent of the planned budget.
The project's cost and schedule estimates are not
fully developed and thus do not represent a reliable estimate
baseline. There is also an inadequate allowance for
contingencies.
DOE's complex management structure also creates
problems for the SNS project.
GAO reviewed 80 DOE projects from a 15-year period
and found that only 15 were completed and 31 were terminated
after spending $10 billion.
Appearing as witnesses before the Subcommittee hearing on
March 10, 1999, titled ``Fiscal Year 2000 Budget Authorization
Request: Department of Energy--Offices of Energy Efficiency and
Renewable Energy; Fossil Energy; and Nuclear Energy, Science
and Technology,'' were: The Honorable Dan Reicher, DOE
Assistant Secretary for Energy Efficiency and Renewable Energy
(EERE); Mr. Robert Kripowicz, DOE Acting Assistant Secretary
for Fossil Energy; and Mr. William Magwood, IV, Director,
Office of Nuclear Energy, Science and Technology, U.S.
Department of Energy.
Mr. Reicher discussed the EERE budget request of just over
$1 billion and claimed the following:
Consumer savings have totaled more than $33
billion since 1978 as a result of several DOE-supported
technologies, and energy-intensive industries such as steel,
glass, aluminum, and paper have saved $2.1 billion because of
energy-saving technologies.
Renewable energy costs are down 80 percent since
1980.
DOE wants to reduce energy use 50 percent in new
homes and 30 percent in commercial buildings.
The EERE budget request hopes to keep up this pace
as well as reach the following goals: complete work on advanced
industrial turbine; accelerate R&D for high efficiency
vehicles; increase grants to states for energy work, increase
weatherization funding; improve R&D on highly efficient and
affordable buildings; and increase the use of coal mixed with
biomass.
Eleven percent of the Office of Power Technologies
budget is earmarked, and 93 percent of the remaining funds are
distributed on a competitive basis. The Office of
Transportation Technologies is in the 70 to 80 percent
competitive awards range and the Office of Industrial
Technologies is near 100 percent.
The next generation of turbines will allow for
wind energy in the two to three cents per kilowatt hour range--
down from 30 to 40 cents in 1980.
Mr. Kripowicz gave testimony justifying the $364 million
budget request by the Office of Fossil Energy (FE), which
includes the following:
FE has set as a priority the development of a
virtually pollution-free power plant (named the Vision 21 Power
Plant) in the 2015 timeframe. Also a key aspect in this project
is higher efficiency resulting in lower costs and fewer
emissions of greenhouse gases.
Another priority of FE is research into carbon
sequestration.
Diversifying the future domestic supplies,
including assuring adequate supplies of natural gas at
reasonable prices and conducting more research into the
potential of methane hydrates, is important.
FE is also working to provide the technical
assistance, including demonstrating improvements in both tools
and techniques, as well as developing new technologies to keep
oil flowing from the most threatened reserves, as it often
costs more to pump out of the ground than it brings on the
market. In most fields, only one-third or so of the oil has
been produced.
FE offered the deferral of $246 million from the
Clean Coal Technology Program because only two of the 40
projects in the program still require funding.
Approximately 10 percent of the FE budget is
earmarked; the remainder is awarded competitively.
Mr. Magwood discussed the Office of Nuclear Energy, Science
and Technology (NE) civilian budget request of $269.3 million,
and gave the following justifications for the request:
The U.S. remains a key international participant
in the discussion over future application of nuclear
technology. However, this position is in jeopardy as momentum
from past accomplishments fades and the nuclear R&D
infrastructure decays.
NE's requested increase of $25 million, as well as
increases requested in their university programs, are geared
toward keeping the U.S. in a leadership role of nuclear
technology.
NE also is proposing several new projects,
including the Nuclear Energy Plant Optimization Program to
ensure nuclear plants are safe and efficient over the next
three decades and the Advanced Nuclear Medicine Initiative,
part of the isotope program, to fight against cancer,
arthritis, and other illnesses.
NE is relying more than ever on outside advice in
conducting nuclear R&D activity.
DOE remains confident that the
Electrometallurgical Treatment (EMT) project will continue
after an independent review by the National Research Council
even though the Administration has proposed cutting $20
million, or one-fourth, of the project's funding.
Appearing as witnesses before the Subcommittee hearing on
March 24, 1999, titled ``Fiscal Year 2000 Budget Authorization
Request: Department of Energy Results Act Implementation,''
were: The Honorable Gregory H. Friedman, DOE Inspector General;
Ms. Susan D. Kladiva, Associate Director, Energy Resources, and
Science Resources, Community, and Economic Development
Division, U.S. General Accounting Office (GAO); Mr. John R.
Sullivan, Director of Strategic Planning, Budget and Program
Evaluation, DOE Office of Policy and International Affairs; and
Ms. Gwendolyn Cowan, Director, Office of Procurement and
Assistance Policy, DOE Office of Management and Administration.
Mr. Friedman testified on reviews conducted by the Office
of Inspector General regarding DOE's implementation of the
Government Performance and Results Act (Results Act) and
discussed the following findings and recommendations:
The Offices of Science, NE, and EERE have not
integrated their planning, budgeting, and performance measures
into a unified strategy. On the other hand, the Offices of
Defense Programs and of Environmental Management (EM) have
performed such an integration.
The Offices of Science, NE, and EERE also had
limited success in developing results-oriented performance
standards while the Office of Defense Programs and EM
demonstrated significant progress in this area.
None of the aforementioned offices adequately
validated the estimated and actual costs used to measure
performance, which is also a requirement of the Results Act.
The Office of Inspector General has offered the
following recommendations to DOE: (1) enhance the links between
overall strategic plan and its individual program office budget
request; (2) require program offices to develop performance
standards that are results-oriented, clear, measurable, and
tied to projected resources; and (3) require program managers
to collect and validate both estimated and actual costs used in
performance measures.
DOE made significant use of the peer-review
process of off-set problems in defining results and performance
goals in areas such as basic research.
Ms. Kladiva discussed GAO's observations concerning DOE's
ability to implement GPRA, and noted the following:
DOE's annual performance plan could be more useful
if it better identified planned outcomes, presented information
on individual offices' planned performance and requested funds,
and described its verification and validation in more detail.
While many of DOE's goals and measures clearly
quantify planned performance, no baseline information is given,
and therefore it is impossible to judge how much progress has
been made.
Some of DOE's annual goals and measures are vague
and ambiguous and make it difficult to judge performance.
DOE's measuring system is flawed because it allows
DOE to rate incomplete work as successful.
It is often difficult to associate an office's
total planned performance with funds requested because of a
complex matrix used by the Department.
Mr. Sullivan testified on DOE's efforts to comply with and
implement the Results Act and discussed the following:
The Department initiated its strategic management
system in 1996 which allows it to perform the functions of
planning, budgeting, program execution, and evaluation.
The first performance agreement between the
President and the Secretary was published for FY 1995 and the
first annual performance report was released later 1995; 1996
brought about the release of the first annual performance plan
for the Department.
The two main challenges remaining for DOE are
refining and perfecting measures so that they represent
outcomes, not outputs, and ensuring that all Departmental
activities, budgets, contracts, and plans clearly link to the
strategic plan.
DOE is planning on using the National Academy of
Sciences report to learn how to shape and build their next
strategic plan.
Ms. Cowan talked about the progress DOE had made regarding
GPRA and also discussed DOE's procurement and financial
assistance award activities. She noted that in 1994, the
Department eliminated its unique competition policy, the result
being that incidents of competition for major contracts has
been greater in the subsequent four years than in any time in
the Department's history.
The Subcommittee hearing of April 14, 1999, titled ``Fiscal
Year 2000 Climate Change Budget Authorization Request,''
examined the Administration's FY 2000 climate change budget
proposals related to the Kyoto Protocol and the Protocol's
requirement that the U.S. reduce its net greenhouse gas
emissions by 7 percent below 1990 levels in the 2008-2012
timeframe--a reduction in projected U.S. carbon emissions of
about 550 million metric tons, according to the most recent
estimate of the Energy Information Administration (EIA)
contained in its Annual Outlook 1999 (AEO99) report. The
hearing also considered the U.S. Global Climate Change Research
Program (USGCRP).
The Administration's FY 2000 climate change budget request
totals $4.142 billion, which includes: (1) $200 million for an
EPA ``Clean Air Partnership Fund''; (2) $1.368 billion for
Climate Change Technology Initiative (CCTI) spending programs;
(3) $387 million for CCTI tax incentives; (4) $400 million in
other climate-related programs (DOE clean coal and natural gas,
weatherization, and state energy grants); and (5) $1.787
billion for the USGCRP.
Appearing as witnesses were: The Honorable Neal F. Lane,
Assistant to the President for Science and Technology and
Director, Office of Science and Technology Policy; the
Honorable Dan W. Reicher, DOE Assistant Secretary for Energy
Efficiency and Renewable Energy; the Honorable David M.
Gardiner, EPA Assistant Administrator for Policy; and the
Honorable Jay E. Hakes, EIA Administrator.
Dr. Lane testified on the Administration's FY 2000 budget
requests for CCTI and USGCRP, and noted the following:
CCTI is the Administration's response to a report
issued from the President's Committee of Advisors on Science
and Technology (PCAST), which concluded that the federal energy
R&D programs were not commensurate in scope and scale with the
energy challenges and opportunities for the 21st century. PCAST
also warned that this shortfall could translate into higher
dependence on imported oil, higher energy costs, smaller U.S.
energy technology exports, worse air quality than would
otherwise be the case, and the diminished capacity to reduce
greenhouse gas emissions costs effectively.
U.S. climate change science is largely supported
by the $1.8 billion FY 2000 budget request of the USGCRP. This
request includes a new Carbon Cycle Science Initiative and the
U.S. climate modeling effort.
The climate change issue requires two issues to be
addressed: (1) a sustained and enhanced commitment to energy
research, development, and deployment; and (2) continued
research into the science of climate change.
Mr. Reicher testified on the DOE's FY 2000 climate change
budget request of approximately $1.1 billion, and Mr. Gardiner
discussed EPA's role in CCTI and its FY 2000 budget requests of
$216 million for CCTI and $200 million for a Clean Air
Partnership Fund.
Finally, Dr. Hakes gave testimony on the EIA report,
Analysis of The Climate Change Technology Initiative, which was
conducted at the request of Science Committee Chairman
Sensenbrenner and Ranking Minority Member George Brown, Jr. The
EIA analysis predicts that the CCTI tax incentives would only
reduce projected U.S. carbon emissions in 2010 by 3.1 million
metric tons, or 0.17 percent. The EIA also found that while
research, development, and deployment programs also have
benefits in reducing carbon emissions, it is not possible to
link program expenditures directly to program results or to
separate the impacts of incremental funding requested for FY
2000 from ongoing program expenditures. In addition, Dr. Hakes
testified that the current EIA AE099 estimates already include
the impacts of ongoing research and development.
V. Committee Actions
As summarized above, the Subcommittee on Energy and
Environment of the Committee on Science heard testimony
relevant to the programs authorized in H.R. 1656 at hearings
held on March 3, March 10, March 24, and April 14, 1999.
On May 3, 1999, Mr. Ken Calvert, Chairman of the
Subcommittee on Energy and Environment, introduced H.R. 1656,
the Department of Energy Commercial Application of Energy
Technology Authorization Act of 1999, a bill to authorize
appropriations for FY 2000 and FY 2001 for the commercial
application of energy technology and related energy and
scientific R&D programs, projects, and activities of the DOE.
The Committee on Science met to consider H.R. 1656 on
Wednesday, May 26, 1999, and entertained the following
amendments and report language.
Amendment 1.--Mr. Calvert, Chairman of the Science
Committee's Subcommittee on Energy and Environment, offered a
manager's amendment on behalf of himself and Mr. Costello,
Ranking Minority Member of the Subcommittee on Energy and
Environment, that: (1) made technical and conforming changes to
H.R. 1656, as introduced; (2) added reporting requirements to
the provisions in the bill dealing with Fossil Energy and
Energy Efficiency Initiatives; (3) clarified the intent of the
``Limitations on Demonstrations'' section; (4) raised the
limits on the provisions dealing with General Plant Projects,
Construction Projects, Authority for Conceptual and
Construction Designs; and (5) clarified the intent of the
``Production or Provision of Articles or Services'' and the
``Eligibility of Awards'' sections. As a result of bipartisan
consultations with the Commerce Committee, the manager's
amendment also transferred the Field Operations, Oak Ridge
Landlord and Building Technology, State, and Community Sector
(nongrants) Management and Planning line items to H.R. 1656
from H.R. 1655, as introduced, and deleted the authorization
for Uranium Programs.
Amendment 2.--Mr. Udall withdrew an amendment to the
manager's amendment (Amendment 1) that added: (1) $3,664,000
for FY 2000 and $3,774,060 for FY 2001 for Buildings Standards
and Guidelines; (2) $6,954,000 for FY 2000 and $7,162,290 for
FY 2001 for Lighting and Appliance Standards; and (3)
$2,147,000 for FY 2000 and $2,606,540 for FY 2001 for Building
Technology, State, and Community Sector (nongrants) Management.
Amendment 3.--Mr. Udall offered an amendment that added:
(1) $3,664,000 for FY 2000 and $3,774,060 for FY 2001 for
Buildings Standards and Guidelines; (2) $6,954,000 for FY 2000
and $7,162,290 for FY 2001 for Lighting and Appliance
Standards; and (3) $2,147,000 for FY 2000 and $2,606,540 for FY
2001 for Building Technology, State, and Community Sector
(nongrants) Management. The amendment was adopted by voice
vote.
Amendment 4.--Ms. Biggert offered an amendment requiring
the Secretary of Energy to make available through DOE's
Internet home page abstracts relating to all research grants
and awards made with funds authorized by this Act, with the
proviso that nothing in the amendment shall be construed to
require or permit the release of any information prohibited by
law or regulation from being released to the public. The
amendment was adopted by voice vote.
Amendment 5.--Mr. Costello, on behalf of himself and Mr.
Nethercutt, offered an amendment prohibiting the Secretary of
Energy from admitting to any classified facility of any DOE
Laboratory, or to any facility of any DOE Laboratory to discuss
sensitive subject material, an individual who is a citizen of a
nation that is named on the DOE List of Sensitive Countries.
The amendment was adopted by voice vote.
Amendment 6.--Mr. Etheridge offered an amendment requiring,
among other things, that the Secretary of Energy ensure
consistency of technology transfer policies and procedures with
respect to patenting, licensing, and commercialization for the
DOE-owned laboratories carrying out programs under this Act.
The amendment was adopted by voice vote.
Amendment 7.--Mr. Costello offered an amendment providing
for civil monetary penalties for DOE-contractor violations of
DOE regulations regarding the safeguarding or security of
Restricted Data or other classified or sensitive information.
The amendment was adopted by voice vote.
Amendment 8.--Mr. Calvert, on behalf of himself and Mr.
Rohrabacher, offered an amendment requiring the Secretary of
Energy to establish a whistleblower protection program, and
also providing for an investigative and remediation process for
alleged reprisals against whistleblowers. The amendment was
adopted by voice vote.
Report Language.--Mr. Calvert asked and received unanimous
consent that: (1) the budget table for H.R. 1656 be included in
the bill's report language; (2) staff be permitted to make
technical corrections to the table; (3) the minority be given
the opportunity to examine the table in detail and negotiate
over its content; and (4) upon completion of negotiations a
final version be signed by a majority of the Committee, and
thereafter the minority have two subsequent days to file any
minority supplemental or additional views.
With a quorum present, Mr. Costello moved that the
Committee favorably report the bill, H.R. 1656, as amended, the
House with the recommendation that the bill as amended do pass,
that the staff be instructed to prepare the legislative report
and make necessary technical and conforming changes, and that
the Chairman take all necessary steps to bring the bill before
the House for consideration. The motion was adopted by a voice
vote.
Mr. Sensenbrenner asked and received unanimous consent
that: (1) Members have two subsequent calendar days in which to
submit supplemental, minority or additional views on the
measure; (2) pursuant to clause 1 of Rule XXII of the Rules of
the House of Representatives, the Chairman may offer such
motions as may be necessary in the House to go to conference
with the Senate on H.R. 1656 or a similar Senate bill; (3)
staff be given authority to make technical andconforming
changes; and (4) the bill be reported in the form of a single amendment
in the nature of a substitute reflecting amendments adopted.
VI. Summary of Major Provisions of the Bill
As shown in Tables 1 and 2 below, H.R. 1656 authorizes for
DOE civilian commercial application of energy technology and
related energy and scientific RD&D programs, projects, and
activities $702,759,000 for FR 2000 and $711,746,890 for FY
2001, to remain available through the end of FY 2002, of
which--(1) $309,662,000 for FY 2000 and $306,857,000 for FY
2001 is for Energy Supply; (2) $330,934,000 for FY 2000 and
$340,862,000 for FY 2001 is for Non-Defense Environmental
Management; (3) $10,000,000 for FY 2000 and $10,300,000 for FY
2001 is for Fossil Energy R&D; and (4) $52,163,000 for FY 2000
and $53,727,890 for FY 2001 is for Energy Conservation R&D.
Other provisions of the bill include the following:
Limits the amounts of funds that may be
reprogrammed.
Limits DOE funding for civilian or scientific or
related commercial application of energy technology
demonstration programs, projects, or activities to technologies
and processes that can be reasonably expected to yield new,
measurable benefits to the cost, efficiency, or performance of
the technology or process.
Limits funding for general plant and construction
projects that overrun costs and amounts that may be spent for
conceptual and construction design of a construction project in
the absence of a specific authorization.
Prohibits the use of Clean Coal Technology Reserve
funds to initiate or carry out a clean coal technology energy
demonstration project based outside the U.S.
Provides that not more than 1 percent of the funds
authorized by this Act may be used either directly or
indirectly to fund travel costs of the Department or travel
costs for its contractors or subcontractors. As part of the
Department's annual budget request submission to the Congress,
the Secretary must submit a report identifying travel costs,
the purposes of such travel, and the sources of the funds used.
Provides that no funds authorized by the Act may
be used either directly or indirectly to fund a grant,
contract, subcontract or any other form of financial assistance
awarded by the Department to a trade association on a
noncompetitive basis. As part of the Department's annual budget
request submission to the Congress, the Secretary shall also
submit a report identifying the amount of funds provided to
trade associations, the services provided, and the sources of
the funds used.
Prohibits DOE from using of any funds authorized
by the bill to: (1) award a management and operating contract
for one of its federally owned or operated civilian energy
laboratories unless the Secretary of Energy grants a case-by-
case waiver and reports to Congress; (2) award, amend, or
modify a contact that deviates from the Federal Acquisition
Regulation (FAR), unless the Secretary grants on a case-by-case
basis, a waiver to allow for such a deviation and reports to
Congress on the reasons for the waiver; (3) prepare or initiate
Requests for Proposals (RFPs) for unauthorized programs,
projects or activities; or (4) produce or provide articles or
services for the purpose of selling them to a person outside
the Federal Government, unless the Secretary of Energy
determines that comparable articles or services are not
available from a commercial source in the U.S.
Excludes from consideration for grant agreements
made after 1999 by the DOE for a period of 5 years any person
who received funding for a project not subject to a
competitive, merit-based award process, except as specifically
authorized by the bill.
Requires the Secretary of Energy to make available
through DOE's Internet home page the abstracts relating to all
research grants and awards made with funds authorized by the
bill.
Prohibits the Secretary of Energy from admitting
to any classified facility of any DOE Laboratory, or to any
facility of any DOE Laboratory to discuss sensitive subject
material, an individual who is a citizen of a nation that is
named on the DOE List of Sensitive Countries, unless the
Secretary waives the prohibition on a case-by-case basis if the
Secretary determines that such access is necessary for the
national security of the U.S., and, within 30 days after
granting the waiver submits a report to Congress justifying the
waiver.
Requires the Secretary of Energy to ensure for the
DOE-owned laboratories carrying out programs under this Act:
(1) consistency of technology transfer policies and procedures
with respect to patenting, licensing, and commercialization;
(2) the availability to aggrieved private sector entities on
request of binding alternative dispute resolution, nonbinding
alternative dispute resolution, mediation, negotiation between
authorized representatives of the disputing parties, or
resolution by the Department's site contracting officer to
resolve disputes regarding all technology transfer and
intellectual property matters, with costs and damages to be
provided for by the contractor to the extent that any such
resolution attributes fault to the contractor; (3) annual
reports to the Secretary, as part of the annual performance
evaluation, on technology transfer and intellectual property
successes, current technology transfer and intellectual
property disputes involving the laboratory, and progress toward
resolving those disputes; and (4) training to ensure that
laboratory personnel responsible for patenting, licensing, and
commercialization activities are knowledgeable of the
appropriate legal, procedural, and ethical issues necessary to
carry out those activities with the highest possible
professional and ethical standards.
Amends the Atomic Energy Act of 1954 (42 U.S.C.
2241 et seq.) by inserting a new section authorization of
assessment of civil penalties of not more than $100,000 per
incidence for a DOE contractor who violates (or whose employee
violates) any applicable DOE rule, regulation, or order
relating to the safeguarding or security of Restricted Data or
other classified or sensitive information.
Requires the Secretary of Energy to establish a
whistleblower protection program;
Provides for an investigative and remediation
process for alleged reprisals against whistleblowers.
VII. Section-by-Section Analysis and Committee Views
Section 1. Short title
Section 1 cites the Act as the ``Department of Energy
Commercial Application of Energy Technology Authorization Act
of 1999.''
Section 2. Definitions
Section 2 defines: (1) the ``Department'' as the Department
of Energy; and (2) the ``Secretary'' as the Secretary of
Energy.
Section 3. Authorization of appropriations
Subsection 3(a) authorizes $309,662,000 for FY $306,857,000
for FY 2001 for Energy Supply commercial application of energy
technology and related civilian energy and scientific RD&D
operation and maintenance programs, projects and activities for
which specific sums are not authorized under other authority of
law, to remain available through the end of FY 2002, which:
(1) $136,000,000 for FY 2000 and $131,840,000 for FY 2001
shall be for Nuclear Energy, including--(A) $85,000,000 for FY
2000 and $87,550,000 for FY 2001 for Termination Costs; (B)
$30,000,000 for FY 2000 and $30,900,000 for FY 2001 for the
Fast Flux Test Facility; (C) $13,000,000 for FY 2000 and
$13,390,000 for FY 2001 for Isotope Support; and (D) $8,000,000
for FY 2000 for completion of Project 98-E-201, Isotope
Production Facility, Los Alamos National Laboratory.
(2) $50,750,000 for FY 2000 and $51,703,000 for FY 2001
shall be for Environment, Safety, and Health;
(3) $9,100,000 for FY 2000 and $9,148,000 for FY 2001 shall
be for Technical Information Management;
(4) $102,000,000 for FY 2000 and $102,000,000 for FY 2001
shall be for Field Operations;
(5) $11,812,000 for FY 2000 and $12,166,000 for FY 2001
shall be for Oak Ridge Landlord.
Subsection 3(b) authorizes to be appropriated $330,934,000
for FY 2000 and $340,862,000 for FY 2001 for Non-Defense
Environmental Management commercial application of energy
technology and related civilian scientific and energy RD&D
operation and maintenance programs, projects and activities for
which specific sums are not authorized under other authority of
law, to remain available through the end of FY 2002, of which:
(1) $211,146,000 for FY 2000 and $217,480,000 for FY 2001
shall be for Site Closure;
(2) $100,866,000 for FY 2000 and $103,892,000 for FY 2001
shall be for Site Project Completion;
(3) $18,922,000 for FY 2000 and $19,490,000 for FY 2001
shall be for post 2006 completion.
Subsection 3(c) authorizes to be appropriated $10,000,000
for FY 2000 and $10,300,000 for FY 2001 for Fossil Energy
Research and Development Environmental Restoration commercial
application of energy technology and related energy and
scientific RD&D programs, projects and activities for which
specific sums are not authorized under other authority of law,
to remain available through the end of FY 2002.
Finally, subsection 3(d) authorizes to be appropriated
$52,163,000 for FY 2000 and $53,727,890 for FY 2001 for Energy
Conservation Research and Development commercial application of
energy technology and related energy and scientific RD&D
operation and maintenance programs, projects and activities for
which specific sums are not authorized under other authority of
law, to remain available through the end of FY 2002, of which:
(1) $10,700,000 for FY 2000 and $11,021,000 for FY 2001
shall be for Clean Cities;
(2) $12,802,000 for FY 2000 and $13,186,060 for FY 2001
shall be for Building Standards and Guidelines;
(3) $13,343,000 for FY 2000 and $13,743,290 for FY 2001
shall be for Lighting and Appliance Standards; and
(4) $15,318,000 for FY 2000 and $15,777,540 for FY 2001
shall be for Management and Planning for the Building
Technology, State and Community Sector (nongrants).
Section 4. Notice
Subsections 4(a) and (b) allow the Secretary to reprogram
funds for any authorized civilian energy or scientific
research, development, or demonstration or related commercial
application of energy technology programs, projects, or
activities of the Department--(1) up to the lesser of $250,000
or 5 percent of the total funding for a fiscal year of another
such program, project or activity of the Department; or (2) up
to 25 percent of the total funding for a fiscal year for such
program, project, or activity of the Department after the
Secretary has transmitted a report containing a full and
complete statement of the action proposed to be taken and the
facts and circumstances that support such proposed action to
the Committee on Science and the Committee on Appropriations of
the House, and to the Committee on Energy and Natural Resources
and the Committee on Appropriations of the Senate and a period
of 60 days has elapsed after the date on which the report is
received (excluding any day on which either House of Congress
is not in session because of an adjournment of more than 3 days
to a day certain).
Subsection 4(c) prohibits the use of reprogrammed funds for
a program, project, or activity for which funding has been
requested to the Congress but which has not been funded by the
Congress.
Subsection 4(d) requires the Secretary to provide notice to
the Committee on Science and the Committee on Appropriations of
the House, and to the Committee on Energy and Natural Resources
and the Committee on Appropriations of the Senate, not later
than 15 days before any major reorganization of any civilian
energy or scientific research, development, or demonstration or
related application of energy technology program, project, or
activity of the Department.
Subsection 4(e) requires the Secretary to provide copies to
the Committee on Science and the Committee on Appropriations of
the House, and to the Committee on Energy and Natural Resources
and the Committee on Appropriations of the Senate, of any
report relating to the civilian energy or scientific research,
development, or demonstration or related commercial application
of projects, programs and activities of the Department prepared
at the direction of any committee of Congress.
Section 5. Limitation on demonstrations
Subsection 5 requires DOE to provide funding only for
civilian energy or scientific or commercial application of
energy technology demonstration programs, projects and
activities for technologies or processes that can reasonably be
expected to yield new, measurable benefits to the costs,
efficiency, or performance of the technology or process.
Section 6. Limits on general plant projects
Section 6 requires the Secretary to halt the construction
of a civilian energy or scientific research, development, or
demonstration or related commercial application of energy
technology ``general plant project'' if the estimated cost of
the project (including any revisions) exceeds $2,000,000 unless
the Secretary has furnished a complete report to the Committee
on Science and the Committee on Appropriations of the House,
and to the Committee on Energy and Natural Resources and the
Committee on Appropriations of the Senate, explaining the
project and the reasons for the estimate or revision.
Section 7. Limits on construction projects
Section 7 prohibits construction on a civilian energy or
scientific research, development, or demonstration or related
commercial application of energy technology construction
project for which funding has been specifically authorized by
law to be initiated and continued if the estimated cost for the
project exceeds 110 percent of the higher of: (1) the amount
authorized for the project, or (2) the most recent total
estimated cost presented to the Congress as justification for
such project. To exceed such limits, the Secretary of Energy
must report in detail to the Committee on Science and the
Committee on Appropriations of the House, and to the Committee
on Energy and Natural Resources and the Committee on
Appropriations of the Senate and the report must be before the
committees for 30 legislative days (excluding any day on which
either House of Congress is not in session because of an
adjournment of more than 3 days to a day certain). This section
shall not apply to any construction project which has a current
estimated cost of less than $2,000,000.
Section 8. Authority for conceptual and construction design
Section 8 limits the Secretary's authority to request
construction funding in excess of $2,000,000 for a civilian
energy or scientific research, development, or demonstration or
related commercial application of energy technology
construction project until the Secretary has completed a
conceptual design for that project. Furthermore, if the
estimated cost of completing a conceptual design for the
construction project exceeds $750,000, the Secretary must
submit a request to Congress for funds for the conceptual
design before submitting a request for the construction
project.
In addition, the section allows the Secretary to carry out
construction design (including architectural and engineering
services) in connection with any proposed construction project
that is in support of a civilian energy or scientific research,
development, or demonstration or related commercial application
of energy technology program, project, or activity of the
Department if the total estimated cost for such design does not
exceed $250,000; if the total estimated cost for construction
design exceeds $250,000, funds for such design must be
specifically authorized by law.
Section 9. Limits of use of funds
Subsection 9(a) prohibits the obligation of any funds in
the Clean Coal Technology Reserve from being used to initiate
or carry out a clean coal technology demonstration project
based outside the U.S.
Subsection 9(b) provides that not more than 1 percent of
the funds authorized by this Act may be used either directly or
indirectly to fund travel costs of the Department or travel
costs for persons awarded contracts or subcontracts by the
Department. As part of the Department's annual budget request
submission to the Congress, the Secretary must submit a report
to the Committee on Science and Committee on Appropriations of
the House, and to the Committee on Energy and Natural Resources
and Committee on Appropriations of the Senate that identifies--
(1) the estimated amount of travel costs by the Department and
for persons awarded contracts or subcontracts by the Department
for the fiscal year of such budget submission, as well as for
the two previous years; (2) the major purposes for such travel;
and (3) the sources of funds for such travel.
Subsection 9(c) provides that no funds authorized by the
Act may be used either directly or indirectly to fund a grant,
contract, subcontract or any other form of financial assistance
awarded by the Department to a trade association on a
noncompetitive basis. As part of the Department's annual budget
request submission to the Congress, the Secretary shall also
submit a report to the Committee on Science and Committee on
Appropriations of the House, and to the Committee on Energy and
Natural Resources and Committee on Appropriations of the Senate
that shall identify--(1) the estimated amount of funds provided
by the Department to trade associations, by trade association,
for the fiscal year of such budget submission, as well as for
the two previous years; (2) the services either provided or to
be provided by each such trade association; and (3) the sources
of funds for services provided by each such trade association.
Section 10. Management and operating contracts
Subsection 10(a) prohibits the use of funds authorized by
this Act to award a management and operating contract for a
federally owned or operated civilian energy laboratory of the
Department unless such contract is awarded using competitive
procedures or the Secretary grants, on a case-by-case basis, a
waiver to allow for such a deviation. The Secretary may not
delegate the authority to grant such a waiver.
In the event the Secretary intends to grant a waiver to the
subsection 10(a) prohibition, subsection 10(b) requires the
Secretary to submit at least 60 days in advance of such waiver
a report to the Committee on Science and the Committee on
Appropriations of the House, and to the Committee on Energy and
Natural Resources and the Committee on Appropriations of the
Senate, notifying the committees of the waiver and setting
forth the reasons for the waiver.
Section 11. Federal acquisition regulation
Subsection 11(a) prohibits the use of funds authorized by
this Act to be used to award, amend, or modify a contract of
the Department in a manner that deviates from the FAR unless
the Secretary grants, on a case-by-case basis, a waiver to
allow for such a deviation. The Secretary may not delegate the
authority to grant such a waiver.
Subsection 11(b) requires that at least 60 days before a
contract award, amendment, or modification for which the
Secretary intends to grant such a waiver, the Secretary shall
submit to the Committee on Science and the Committee on
Appropriations of the House, and to the Committee on Energy and
Natural Resources and the Committee on Appropriations of the
Senate, a report notifying the committees of the waiver and
setting forth the reasons for the waiver.
Section 12. Requests for proposals
Subsection 12 prohibits the Department from using funds
authorized by this Act to prepare or initiate RFPs for a
civilian energy or scientific research, development, and
demonstration or commercial application of energy technology
program, project, or activity if the program, project or
activity has not been specifically authorized by Congress.
Section 13. Production or provision of articles or services
Subsection 13 prohibits the use of funds authorized by this
Act by any civilian energy or scientific research, development,
and demonstration or related commercial application of energy
technology programs, project, or activity of the Department to
produce or provide articles or services for the purpose of
selling the articles or services to a person outside the
Federal Government, unless the Secretary determines that
comparable articles or services are not available from a
commercial source in the United States. The only exception to
this prohibition is the transmission and sale of electricity by
any Federal power marketing administration.
Section 14. Eligibility for awards
Subsection 14(a) requires the Secretary to exclude from
consideration for grant agreements for civilian energy or
scientific research, development, or demonstration or related
commercial application of energy technology programs, projects
and activities made by the Department after 1999 any person who
received funds, other than those described in subsection 14(b),
appropriated for a fiscal year after FY 1999, under a grant
agreement from any Federal funding source for a project that
was not subjected to a competitive, merit-based award process,
except as specifically authorized by this Act. Any exclusion
from consideration pursuant to this section shall be effective
for a period of 5 years after the person receives such Federal
funds.
Subsection 14(b) provides that subsection 14(a) shall not
apply to the receipt of Federal funds by a person due to the
membership of that person in a class specified by law for which
assistance is awarded to members of the class according to a
formula provided by law, or under circumstances permitting
other than full and open competition under the Federal
Acquisition Regulation.
Subsection 14(c) defines the term ``grant agreement'' to
mean a legal instrument whose principal purpose is to transfer
a thing of value to the recipient to carry out a public purpose
of support or stimulation authorized by a law of the United
States, and does not include the acquisition (by purchase,
lease, or barter) of property or services for the direct
benefit or use of the United States Government. Such term also
does not include a cooperative agreement (as such term is used
in section 6305 of title 31, United States Code) or a
cooperative research and development agreement (as such term is
defined in section 12(d)(1) of the Stevenson-Wydler Technology
Innovation Act of 1980 (15 U.S.C. 3710a(d)(1))).
Section 15. External regulation
Subsection 15(a) provides that--effective January 1, 2000--
the Department shall have no regulatory or enforcement
authority, through rules, regulations, orders, and standards,
or reporting requirements, with respect to Federal, State, and
local environmental, safety, and health requirements at any
federally owned or operated nonmilitary energy laboratory
(hereafter referred as ``laboratory''), except to the extent
that no other Federal, State, or local government agency has
such regulatory or enforcement authority.
Subsection 15(b) provides that--also effective January 1,
2000--the NRC shall assume the regulatory and enforcement
responsibilities of the Department under the Atomic Energy Act
of 1954 with regard to laboratories, including such
responsibilities with respect to accelerator-produced
radioactive material and ionizing radiation generating
machines. For the purposes of carrying out these
responsibilities, the NRC may regulate and license or provide
certification for the Department, the Department's contractor,
or both. A contractor operating a laboratory shall not be
responsible for the costs of decommissioning that facility, and
no enforcement action may be taken against such contractor for
any violation of NRC decommissioning requirements, if such
violation is the result of a failure of the Department to
authorize or fund decommissioning activities. Not later than
July 1, 2000, the NRC and the Department shall enter into a
memorandum of understanding establishing laboratory
decommissioning procedures and requirements.
Subsection 15(c) provides that--effective January 1, 2000--
OSHA shall assume the Department's regulatory and enforcement
responsibilities of the Department to matters covered by the
Occupational Safety and Health Act of 1970 with regard to all
laboratories. The Department's contractor or contractors
operating those laboratories shall be considered employers for
purposes of the Occupational Safety and Health Act of 1970.
Furthermore, section 4(b)(1) of the Occupational Safety and
Health Act of 1970, which prohibits OSHA from regulating the
Department or the NRC, shall not apply with respect to the
Department's or the NRC's regulation of the laboratories, and
the Secretary of Labor may enforce current Department radiation
protection regulations. Within 90 days of the date of enactment
of this Act, the Department and OSHA shall enter into a
memorandum of understanding to govern the exercise of their
respective authorities over occupational safety and health
hazards at the laboratories.
Subsection 15(d) provides that Department's contractor
operating a laboratory shall not be liable for civil penalties
under the Atomic Energy Act of 1954 or the Occupational Safety
and Health Act of 1970 for any actions taken before October 1,
2000, pursuant to the transfer of regulatory and enforcement
responsibilities required by this section.
Subsection 15(e) requires the Secretary to continue to
indemnify laboratories in accordance with the provisions of
section 170d. of the Atomic Energy Act of 1954.
And finally, subsection 15(f) requires the Secretary to
transmit, by October 1, 1999, to the Committee on Science and
the Committee on Appropriations of the House, and the Committee
on Energy and Natural Resources and the Committee on
Appropriations of the Senate, a plan for the termination of the
Department's regulatory and enforcement responsibilities for
laboratories required by this section. The report shall
include--(1) a detailed transition plan, drafted in
coordination with the NRC and OSHA, giving the schedule for
termination of self-regulation authority as outlined in
subsection 15(a) above, including the activities to be
coordinated with the NRC and OSHA; (2) a description of any
issues remaining to be resolved with the NRC and OSHA, or other
external regulators, and a timetable for resolving such issues
before January 1, 2000; (3) an estimate of--(A) the annual cost
of administering and implementing self-regulation of
environmental, safety, and health activities at the
laboratories; (B) the number of Federal and contractor
employees administering and implementing such self-regulation;
(C) the cost of external regulation based on the pilot projects
of simulated NRC regulation which have already been conducted;
and (D) the extent and schedule by which the Department and
laboratory staffs will be reduced as a result of implementation
of this section; and (4) a description of regulatory or
enforcement authorities the Department determines it will be
required to retain pursuant to subsection 15(a)(2) above.
Section 16. Internet availability of information
Section 16 requires the Secretary to make available through
DOE's Internet home page the abstracts relating to all research
grants and awards make with funds authorized by this Act.
Nothing in this section shall be construed to require or permit
the release of any information prohibited by law or regulation
from being released to the public.
Committee views
The Committee believes that by giving public access to
information about how tax dollars are spent, it is acting as a
responsible steward of taxpayer resources. Such information can
also stimulate additional public and private sector research by
informing the research community.
Section 17. Moratorium on Foreign Visitors Program
Section 17 prohibits the Secretary of Energy from admitting
to any classified facility or sensitive area of any DOE
Laboratory an individual who is a citizen of a nation that is
named on the DOE List of Sensitive Countries. The Secretary may
waive the prohibition on a case-by-case basis if the Secretary
determines that such access is necessary for the national
security interests of the U.S., and, within 30 days after
granting the waiver, submits a report justifying the waiver to
various committees of Congress. Furthermore, the moratorium on
a DOE-owned laboratory shall be lifted when the Secretary, in
consultation with and with the concurrence of the Director of
the Federal Bureau of Investigation (FBI), transmits to the
Congress a report certifying that--(1) all of the applicable
counterintelligence and safeguards and security measures
contained in Presidential Decision Directive 61 have been fully
implemented at the laboratory, and that adequate oversight and
resources exist to ensure that they are properly followed; (2)
all of the additional applicable counterintelligence and
safeguards and security measures announced by the Secretary on
March 17, 1999, and March 31, 1999, have been fully implemented
at the laboratory, and that adequate oversight and resources
exist to ensure that they are appropriately followed; and (3)
all of the guidelines in February 1997 document entitled
``Guidelines on Export Control and Nonproliferation,'' issued
by the Nuclear Transfer and Supplier Policy Division of the
Office of Arms Control and Nonproliferation of the Office of
Nonproliferation and National Security of the Department are
being followed with respect to all activities at the
laboratory. This section also requires the Director of the FBI
and the Secretary to transmit jointly to the committees of
Congress an annual report, the first of which shall be
transmitted not later than 90 days after the date of the
enactment of this Act, on counterintelligence and safeguards
and security activities at the DOE-owned laboratories,
including facilities and areas at those laboratories at which
unclassified work is carried out. The report shall include--(A)
a description of the status of counterintelligence and
safeguards and security at each of the DOE-owned laboratories;
(B) a description of the status of the conditions for lifting
the moratorium under subsection (c); and (C) a net assessment
of the foreign visitors program at the DOE-owned laboratories,
prepared by a panel of individuals with expertise in
intelligence, counterintelligence, and nuclear weapons design
matters.
Section 18. Technology transfer coordination
Section 18 requires that within 90 days after the date of
the enactment of this Act, the Secretary shall ensure, for the
DOE-owned laboratories carrying out programs under this Act:
(1) consistency of technology transfer policies and procedures
with respect to patenting, licensing, and commercialization;
(2) the availability to aggrieved private sector entities on
request of binding alternative dispute resolution, nonbinding
alternative dispute resolution, mediation, negotiation between
authorized representatives of the disputing parties, or
resolution by the Department's site contracting officer to
resolve disputes regarding all technology transfer and
intellectual property matters, with costs and damages to be
provided for by the contractor to the extent that any such
resolution attributes fault to the contractor; (3) annual
reports to the Secretary, as part of the annual performance
evaluation, on technology transfer and intellectual property
successes, current technology transfer and intellectual
property disputes involving the laboratory, and progress toward
resolving those disputes; and (4) training to ensure that
laboratory personnel responsible for patenting, licensing, and
commercialization activities are knowledgeable of the
appropriate legal, procedural, and ethical issues necessary to
carry out those activities with the highest possible
professional and ethical standards.
Section 19. Department of Energy regulations relating to the
safeguarding and security of restricted data
Section 19 amends the Atomic Energy Act of 1954 (42 U.S.C.
2241 et seq.) by inserting a new section authorizing the
assessment of civil penalties of not more than $100,000 per
incidence for any person who has entered in a contract or
agreement with the DOE, or a subcontract or subagreement
thereto, and who violates (or whose employee violates) any
applicable DOE rule, regulation, or order relating to the
safeguarding or security of Restricted Data or other classified
or sensitive information. This section also authorizes the
Secretary to assess monetary penalties against DOE contractors
for any violation by the contractor or contractor employees of
any rule, regulation, or order relating to the safeguarding or
security of Restricted Data or other classified or sensitive
information.
Section 20. Whistleblower protection
Subsection 20(a) requires the Secretary of Energy to
establish a whistleblower protection program to ensure that no
DOE employee or DOE contractor employee may be discharged,
demoted, or otherwise discriminated against as a reprisal for
disclosing information to a person or entity referred to in
subsection 20(b) information which the employee or contractor
reasonably believes to provide direct and specific evidence of
a violation of any Federal law or regulation; of gross
mismanagement, gross waste of funds, or abuse of authority; or
of a false statement to Congress on an issue of material fact.
Subsection 20(b) defines the person or entity referred to
in subsection 20(a) to be: (1) a Member of Congress; (2) an
employee of Congress who has an appropriate security clearance
for access to the information; (3) the DOE Inspector General
(IG); (4) the FBI; or (5) any other element of the Federal
Government designated by the Secretary as authorized to receive
information of the type disclosed.
Section 21. Investigation and remediation of alleged reprisals for
disclosure of certain information to Congress
Subsection 21(a) provides that a DOE employee or DOE
contractor employee who believes that they or any other such
employee have been discharged, demoted, or otherwise
discriminated against as a reprisal for disclosing information
referred to in subsection 20(a) may submit a complaint relating
to such action to the DOE IG.
Subsection 21(b)(1) requires the IG to review all
complaints submitted to him pursuant to subsection 21(a) and
to: (A) determine whether or not the complaint is frivolous;
and (B) to conduct an investigation of the complaint if the IG
determines the complaint is not frivolous. In addition,
Subsection 21(b)(2) requires the IG to submit a report on each
such investigation to: (A) the employee who submitted the
complaint on which the investigation is based; (B) the
contractor concerned, if any; and (C) the Secretary.
If the Secretary determines that an employee has been
subjected to an adverse personnel action, then Subsection 21(c)
requires the Secretary to: (A) in the case of a Department
employee, take appropriate actions to abate the action; or (B)
in the case of a contractor employee, order the contractor
concerned to take appropriate actions to abate the action. If a
contractor fails to comply with an order issued by the
Secretary, the Secretary may file an action for enforcement of
the order in the appropriate United States district court,
which may grant appropriate relief, including injunctive relief
and compensatory and exemplary damages.
Subsection 21(d) requires the IG, not later than 30 days
after the commencement of each fiscal quarter, to submit to the
Committee on Science and other relevant committees of the House
of Representatives, and to the Committee on Energy and Natural
Resources and other relevant committees of the Senate, a report
on the investigations undertaken during the preceding fiscal
quarter, including a summary of the results of such
investigations. This report shall not identify orotherwise
provide any information on a person submitting a complaint under this
section without the consent of that person.
VIII. Cost Estimate
Rule XIII, clause 3(d)(2) of Rules of the House of
Representatives requires that each report of a committee on a
public bill or public joint resolution contain: (A) an estimate
by the committee of the costs that would be incurred in
carrying out the bill or joint resolution in the fiscal year in
which it is reported, and in each of the five fiscal years
following that fiscal year (or for the authorized duration of
any program authorized by such bill or joint resolution, if
less than five years); (B) a comparison of the estimate of
costs described in subdivision (A) made by the committee with
any estimate of such costs made by a Government agency and
submitted to such committee; and (C) when practicable, a
comparison of the total estimated funding level for the
relevant programs with the appropriate levels under current
law. However, House Rule XIII, clause 3(d)(3)(B) provides that
this requirement does not apply when a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been included in the report pursuant to House Rule
XIII, clause 3(c)(3). A cost estimate and comparison prepared
by the Director of the Congressional Budget Office under
section 402 of the Congressional Budget Act of 1974 has been
timely submitted to the Committee on Science prior to the
filing of this report and is included in Section IX of this
report pursuant to House Rule XIII, clause 3(c)(3).
Rule XIII, clause 3(c)(2) of the Rules of the House of
Representatives requires that the report of a committee on a
measure that has been approved by the committee providing new
budget authority (other than continuing appropriations), new
spending authority, or new credit authority, or changes in
revenues or tax expenditures include the statement required by
section 308(a) of the Congressional Budget Act of 1974, except
that an estimate of new budget authority shall include, when
practicable, a comparison of the total estimated funding level
for the relevant programs to the appropriate levels under
current law. H.R. 1656 does not contain any new budget
authority, new spending authority, or new credit authority, or
changes in revenues or tax expenditures. Assuming that the sums
authorized under the bill are appropriated, H.R. 1656 does
authorize additional discretionary spending, as described in
the Congressional Budget Office report on the bill, which is
contained in Section IX of this report.
IX. Congressional Budget Office Cost Estimate
Rule XIII, clause 3(c)(3) of the Rules of the House of
Representatives requires that the report of a committee on a
measure that has been approved by the committee include an
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974 if timely submitted to the
committee before the filing of the report. The Committee on
Science has received the following cost estimate for H.R. 1656
from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 16, 1999.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on Science,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1656, the
Department of Energy Commercial Application of Energy
Technology Authorization Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Kim Cawley
and Cynthia Dudzinski.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 1656--Department of Energy Commercial Application of Energy
Technology Authorization Act of 1999
Summary: H.R. 1656 would authorize appropriations for
civilian research and development programs at the Department of
Energy (DOE) for fiscal years 2000 and 2001, and would end
DOE's authority to regulate or enforce environmental safety,
and health requirements at nonmilitary energy laboratories
beginning on January 1, 2000. Assuming the appropriation of all
amounts specifically authorized in the bill for research and
development activities, CBO estimates that implementing H.R.
1656 would cost about $1.4 billion over the 2000-2004 period.
Additional civil penalties under current law could be
collected as a result of implementing this bill, and new civil
penalties that would be established by the legislation could
also affect receipts; therefore, pay-as-you-go procedures would
apply. However, CBO estimates any such collections would total
less than $500,000 annually. H.R. 1656 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no
significant costs on state, local, or tribal governments.
In addition to the research and development spending
authorized by the bill, CBO estimates enactment of the bill
would increase the need for appropriated funds at the Nuclear
Regulatory Commission (NRC) and the Occupational Safety and
Health Administration (OSHA) to pay for new efforts that would
be necessary because the bill would end DOE's authority to
regulate health and safety at its nonmilitary laboratories
(this activity by DOE is known as self-regulation). While the
cost of this provision of the bill is uncertain, and would
depend on many future decisions made by DOE and these
regulatory agencies, CBO estimates that ending self-regulation
of health and safety at DOE nonmilitary laboratories would cost
about $14 million annually over the 2000-2004 period. This
estimate does not include the cost to implement corrective
actions that are required at nonmilitary laboratories today
because these facilities do not comply with DOE health and
safety standards. In addition, this estimate assumes that NRC
and OSHA regulation of nonmilitary laboratories will not reveal
significant new corrective actions that must be undertaken,
beyond those already known to DOE.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1656 is shown in the following table.
The costs of this legislation fall within budget functions 270
(energy) and 550 (health).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------
2000 2001 2002 2003 2004
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Specified Authorization Level.................. 703 712 0 0 0
Estimated Outlays.............................. 481 696 223 13 3
Estimated Authorization Level.................. 15 14 13 13 12
Estimated Outlays.............................. 13 14 13 13 13
Total Spending:................................
Authorization Level........................ 718 726 13 13 12
Estimated Outlays.......................... 494 710 236 26 16
----------------------------------------------------------------------------------------------------------------
Basis of estimate: Most of H.R. 1656's budgetary impact
would stem from its authorization of $1.4 billion over the next
two years. CBO expects that implementing the bill would require
additional appropriations averaging about $13 million a year.
Enacting the bill could also affect governmental receipts, but
any such effects would not be significant.
Research and development spending
Section 3 would authorize the appropriation of $703 million
in 2000 and $712 million in 2001 for the commercial application
of energy technology and related civilian energy and scientific
programs, projects, and activities of the DOE. For purposes of
this estimate, CBO assumes the full amounts authorized will be
appropriated each year and that spending will occur at
historical rates for these programs and activities.
Costs of external regulation
Section 17 would end DOE's authority to regulate or enforce
environmental, safety, and health requirements at any federally
owned or operated nonmilitary energy laboratory after January
1, 2000. The bill does not define the term ``nonmilitary energy
laboratory;'' but for the purposes of this estimate, CBO
assumes that the bill intends to include all DOE laboratories
except for Sandia, Los Alamos, and Lawrence Livermore National
Laboratories. In addition, based on information from DOE, we
assume that the Environmental Protection Agency, and state and
local governments are already the primary enforcers of
environmental laws at DOE laboratories. Over the next five
years, CBO estimates that moving to external regulation of DOE
nonmilitary laboratories would require additional applications
averaging about $14 million annually for the NRC and OSHA, and
that this sum would not initially be offset by reduced
expenditures at DOE.
Department of Energy. Based on information from DOE, CBO
estimates that the DOE laboratories received appropriations of
about $3.2 billion in 1999, and that $285 million (or 9
percent) of these funds were allocated to ongoing health and
safety activities. In 1996, DOE compared its own health and
safety spending to regulatory compliance costs at nuclear power
reactors and other private-sector industries licensed by the
NRC and found that such costs usually accounted for 10 percent
or less of facility operating costs. This comparison suggests
there is no compelling basis for estimating significantly
higher (or lower) compliance costs at DOE nonmilitary
facilities under external regulation. Furthermore, any future
savings in health and safety oversight costs to DOE as a result
of enacting this bill could be applied to the existing backlog
of corrective actions needed at the nonmilitary laboratories.
Many DOE facilities do not comply with the department's
current health and safety standards, in most cases corrective
actions have not been taken because sufficient funds have not
been allocated to these projects. DOE estimates that full
funding of identified corrective actions necessary at its
nonmilitary laboratories would total about $0.25 billion over
the next five years. DOE, NRC, and OSHA have conducted limited
pilot studies of external regulation at DOE laboratories and
some former DOE facilities are now regulated by NRC and OSHA.
Based on these experiences, CBO assumes that external
regulation would not significantly increase the cost of needed
health and safety corrective actions at nonmilitary DOE
facilities, nor change the timing of these costs in the short
term. We assume DOE will be able to negotiate compliance
agreements with NRC and OSHA for implementing corrective
actions at facilities that do not comply with agency standards.
If compliance agreements between these agencies cannot be
reached, it is possible that the imposition of external
regulation at DOE facilities could change the future funding
profile for identified corrective action projects by
accelerating the timing of such spending by DOE or by revealing
the need for additional spending. CBO has no information to
predict whether or not additional funds for corrective actions
would be required as a result of enacting this bill, but any
increase in such spending would be subject to the availability
of appropriated funds.
Nuclear Regulatory Commission and Occupation Safety and
Health Administration. Over the next five years, CBO estimates
that moving to external regulation of DOE nonmilitary
laboratories would require about $13 million annually of
additional appropriated funds for the NRC and OSHA.
Based on information from the NRC and DOE, we estimate NRC
would incur additional oversight costs at DOE nonmilitary
laboratories of about $10 million annually. The DOE facilities
that were selected for pilot studies of NRC regulation are not
considered representative of all DOE nonmilitary laboratories.
NRC estimated that its annual oversight costs for the pilot
studies of external regulation at three DOE facilities ranged
from less than $100,000 to nearly $400,000. NRC does not have
experience with regulating particle accelerators which are
found at several DOE laboratories and would require
significantly more resources to oversee. We estimate that some
of the nonmilitary laboratories with accelerators, nuclear fuel
storage facilities, or areas that handle transuranic materials
could cost the NRC between $1 million and $2 million annually
to regulate.
CBO estimates that transferring the responsibility of
enforcing safety and health regulations at DOE nonmilitary
laboratories to OSHA would cost $5 million in 2000, and an
average of about $3 million per year thereafter. This estimate
is based on information from OSHA concerning the cost to the
agency of transferring enforcement of health and safety laws
for all DOE facilities to OSHA. We estimate that during the
first two years following enactment of H.R. 1656 OSHA would
hire additional inspectors and health physicists, purchase
radiation monitoring equipment, and perform an initial
inspection and evaluation at each nonmilitary laboratory.
Following these initial inspections, OSHA would continue to
monitor the DOE labs to verify that identified hazards are
corrected. OSHA anticipates that it would implement an enhanced
compliance program at the DOE labs and could reinspect most of
these facilities once every two years initially, then gradually
decrease to an inspection rate of once every four years. For
purposes of comparison, high hazard industrials in the private
sector are inspected about once every six years.
Civil penalties
Section 19 would amend the Atomic Energy Act to establish a
monetary penalty for violations of DOE regulations concerning
the security of classified or sensitive information. Civil
penalties are recorded in the budget as governmental receipts,
thus this provision could result in additional collections;
however, CBO estimates any amounts collected under this
provision would not be significant.
Under H.R. 1656, private contractors who operate DOE's
nonmilitary laboratories would be liable for any enforcement
penalties imposed by OSHA. The bill would give the NRC the
option to issue licenses (and impose penalties) under the
Atomic Energy Act to either DOE, or the private operating
contractors who operate the laboratories, or both. Any
penalties that would be collected from private contractors
would increase governmental revenues, but CBO estimates
additional collections would be less than $500,000 annually.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. Imposing
the new civil penalties contained in H.R. 1656, and subjecting
private operating contractors to penalties under the Atomic
Energy Act and the Occupational Safety and Health Act could
result in an increase in governmental receipts, but CBO
estimates that any such changes would be less than $500,000 a
year.
Intergovernmental and private-sector impact: H.R. 1656
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. Some of the funds authorized in the bill
would be used for research at academic institutions, including
public universities.
Estimate prepared by: Kim Cawley and Cynthia Dudzinski.
Estimate approved by: Peter M. Fontaine, Deputy Assistant
Director for Budget Analysis.
X. Compliance With Public Law 104-4
H.R. 1656 contains no unfunded mandates.
XI. Committee Oversight Findings and Recommendations
Rule XIII, clause 3(c)(1) of the Rules of the House of
Representatives requires that the report of a committee on a
measure that has been approved by the committee include
oversight findings and recommendations under clause 2(b)(1) of
rule X. The Committee of Science's oversight findings and
recommendations are reflected in the body of this report.
XII. Oversight Findings and Recommendations by the Committee on
Government Reform
Rule XIII, clause 3(c)(4) of the Rules of the House of
Representatives requires that the report of a committee on a
measure that has been approved by the committee include a
summary of oversight findings and recommendations made by the
Committee on Government Reform under clause 4(c)(2) of the rule
X if such findings and recommendations have been submitted to
the reporting committee in time to allow it to consider such
findings and recommendations during its deliberations on the
measure. The Committee on Science has received no such findings
or recommendations from the Committee on Government Reform.
XIII. Constitutional Authority Statement
Rule XIII, clause 3(d)(1) of the Rules of the House of
Representatives requires that each report of a committee on a
public bill or public joint resolution contain a statement
citing the specific powers granted to the Congress in the
Constitution to enact the law proposed by the bill or joint
resolution. Article I, section 8 of the Constitution of the
United States grants Congress the authority to enact H.R. 1656.
XIV. Federal Advisory Committee Statement
H.R. 1656 does not establish or authorize the establishment
of any advisory committee.
XV. Congressional Accountability Act
The Committee finds that H.R. 1656 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act (Public Law 104-1).
XVI. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ATOMIC ENERGY ACT OF 1954
* * * * * * *
TITLE I--ATOMIC ENERGY
* * * * * * *
CHAPTER 18--ENFORCEMENT
Sec. 221. General Provisions.
* * * * * * *
Sec. 234. Civil Monetary Penalties for Violations of Licensing
Requirements.
Sec. 234A. Civil Monetary Penalties for Violations of Department of
Energy Safety Regulations.
Sec. 234B. Civil Monetary Penalties for Violations of Department of
Energy Regulations Regarding Security of Classified or
Sensitive Information or Data.
* * * * * * *
Sec. 234. Civil Monetary Penalties for Violations of
Licensing Requirements.--
a. * * *
Sec. 234A. Civil Monetary Penalties for Violations of
Department of Energy Safety Regulations.--
a. * * *
* * * * * * *
a. Any person who has entered into a contract or agreement
with the Department of Energy, or a subcontract or subagreement
thereto, and who violates (or whose employee violates) any
applicable rule, regulation, or order prescribed or otherwise
issued by the Secretary pursuant to this Act relating to the
safeguarding or security of Restricted Data or other classified
or sensitive information shall be subject to a civil penalty of
not to exceed $100,000 for each such violation.
b. The Secretary shall include in each contract with a
contractor of the Department provisions which provide an
appropriate reduction in the fees or amounts paid to the
contractor under the contract in the event of a violation by
the contractor or contractor employee of any rule, regulation,
or order relating to the safeguarding or security of Restricted
Data or other classified or sensitive information. The
provisions shall specify various degrees of violations and the
amount of the reduction attributable to each degree of
violation.
c. The powers and limitations applicable to the assessment of
civil penalties under section 234A, except for subsection d. of
that section, shall apply to the assessment of civil penalties
under this section.
* * * * * * *
XVII. Committee Recommendations
On May 26, 1999, a quorum being present, the Committee
favorably reported H.R. 1656, the Department of Energy
Commercial Application of Energy Technology Authorization Act
of 1999, as amended, by a voice vote, and recommended its
enactment.
XVIII. Proceedings of Committee on Science Markup
MARKUP OF: H.R. 1656, DEPARTMENT OF ENERGY COMMERCIAL APPLICATION OF
ENERGY TECHNOLOGY AUTHORIZATION ACT OF 1999
----------
WEDNESDAY, MAY 26, 1999
House of Representatives,
Committee on Science,
Washington, DC.
The committee met, pursuant to notice, at 3:05 p.m., in
room 2318, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (chairman of the committee) presiding.
Chairman Sensenbrenner. The next bill up is H.R. 1656, the
Department of Energy Commercial Application of Energy
Technology Authorization Act of 1999. Without objection, the
Chairman's opening statement will appear in the record at this
point.
[The statement of Chairman Sensenbrenner follows:]
Opening Statement of Chairman F. James Sensenbrenner, Jr., Committee on
Science
H.R. 1656 authorizes $605.0 million for fiscal year (FY) 2000 and
$608.2 million for FY 2001 for Department of Energy (DOE) Energy
Supply, Non-Defense Environmental Management, Fossil Energy R&D and
Energy Conservation R&D programs. Highlights of the bill's
authorizations for fiscal years 2000 and 2001 include:
Nuclear Energy--H.R. 1656 maintains a strong commitment to
the Nation's Nuclear Energy Program. The bill recommends $177.0 million
in FY 2000 for Nuclear Energy--an increase of $5.1 million, or 3.0
percent above the amount appropriated for FY 1999 and $20.0 million
above the Administration's request; and recommends $174.1 million for
FY 2001--a decrease of $2.9 million, or 1.7 percent below the amount
recommended for FY 2000.
Environment, Safety and Health (ES&H)--Non-Defense--H.R.
1656 supports DOE's efforts to protect its workers, the public, and the
environment. The bill recommends $50.75 million in FY 2000 for ES&H--an
increase of $3.3 million, or 7.0 percent above the amount appropriated
for FY 1999; and recommends $51.7 million for FY 2001--an increase of
$1.0 million, or 1.9 percent above the amount recommended for FY 2000.
Non-Defense Environmental Management--H.R. 1656 fully
supports DOE's request to accelerate cleanup of legacy waste sites. The
bill recommends $330.9 million--the Administration's request in FY 2000
for Non-Defense Environmental Management; and recommends $340.9 million
for FY 2001--an increase of $9.9 million, or 3.0 percent above the
amount recommended for FY 2000.
Fossil Energy Environmental Restoration--H.R. 1656 also
fully supports DOE's request to accelerate cleanup of old fossil energy
sites. The bill recommends $10 million--the Administration's request in
FY 2000 for Fossil Energy Environmental Restoration; and recommends
$10.3 million for FY 2001--an increase of $0.9 million, or 3.0 percent
above the amount recommended for FY 2000.
Energy Conservation R&D--H.R. 1656 also maintains a strong
commitment to energy efficiency, which not only saves energy, but also
benefits the environment. The bill recommends $26.2 million in FY 2000
for Energy Conservation R&D programs--an increase of $3.2 million, or
14.1 percent above the amount appropriated for FY 1999; and recommends
$27.0 million for FY 2001--an increase of $0.5 million, or 3.0 percent
above the amount recommended for FY 2000.
Other provisions of the bill include the following:
Prohibits the use of Clean Coal Technology Reserve
funds to initiate a clean coal technology energy demonstration
project based outside the U.S.;
Cuts wasteful travel by DOE and its contractors by
more than 55 percent from current levels;
Prohibits noncompetitive awards of grants,
contracts, subcontracts, or any other forms of financial
assistance to trade associations;
Limits demonstrations to technologies and processes
that are substantially new, and not for incremental
improvements for technologies or processes that exist in the
marketplace; and
Ends DOE's self-regulation of its civilian energy
and scientific laboratories and transfers these
responsibilities to the Nuclear Regulatory Commission and to
the Occupational Safety and Health Administration.
Chairman Sensenbrenner. Does the gentleman from Illinois
wish to make an opening statement?
Mr. Costello. Mr. Chairman, I will insert my statement in
the record so we can move onto amendments.
Chairman Sensenbrenner. Without objection. Also without
objection, all members may insert opening statements at this
point in the record.
[The information follows:]
Opening Statement of Jerry F. Costello
Thank you Mr. Chairman. Again, I'd like to extend my thanks to you
and your staff for your willingness to discuss our concerns and address
so many of them before today's mark up.
The only remaining major concern I have with this bill is the
failure to include the amount requested by the President for the
building and lighting standards programs. These programs help to save
consumers money by facilitating the introduction of energy efficient
technologies into industries that have not used them in the past.
I do however support a lot of what is contained in this bill, and
am pleased that it includes language to externally regulate DOE energy
research labs. In recent weeks, we have seen that DOE seems to have had
a very difficult time managing itself with respect to some of our
nation's most vital secrets. I think that requiring the Nuclear
Regulatory Commission and OSHA to regulate nuclear and worker safety
issues at DOE facilities makes a tremendous amount of sense.
Thank you very much, Mr. Chairman, and I look forward to working
with you to get the provisions in this bill enacted.
Statement of Chairman Ken Calvert, Energy and Environment Subcommittee
Thank you Mr. Chairman. The business before the Committee is the
mark up of H.R. 1656, which authorizes funding for the commercial
application of energy technology and related civilian energy and
scientific programs, projects and activities of the Department of
Energy (DOE) for fiscal years 2000 and 2001.
HR 1656 authorizes funding of $605 million for FY 2000, a 1.7
percent increase over the Administration request, and $608.2 million
for FY 2001. These totals include an increase of $21 million, or 9.7
percent over the Administration's request, for Energy Supply research.
Non-Defense Environmental Management and Fossil Energy R&D are funded
at the Administration's requested levels. And Energy Conservation R&D
is increased by $3.2 million, or 14.1 percent from last year's
appropriated levels.
I believe that these authorization levels responsibly fund these
DOE programs. Due to a very crowded schedule today I will conclude my
remarks at this point by asking for your support on this bill.
Mr. Chairman, I thank you for your time.
Chairman Sensenbrenner. Without objection, the bill is read
a first time and open for amendment at any point.
[The information follows:]
H.R. 1656
A bill to authorize appropriations for fiscal years 2000 and 2001 for
the commercial application of energy technology and related civilian
energy and scientific programs, projects, and activities of the
Department of Energy, and for other purposes.
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 ``Department of Energy Commercial
Application of Energy Technology Authorization Act of 1999''.
SEC. 2. DEFINITIONS.
For the purposes of this Act--
(1) the term ``Department'' means the Department of Energy;
and
(2) the term ``Secretary'' means the Secretary of Energy.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
(a) Energy Supply.--There are authorized to be appropriated to the
Secretary for Energy Supply commercial application of energy technology
and related civilian energy and scientific research, development, and
demonstration operation and maintenance and construction programs,
projects, and activities for which specific sums are not authorized
under other authority of law $237,850,000 for fiscal year 2000 and
$235,921,000 for fiscal year 2001, to remain available through the end
of fiscal year 2002, of which--
(1) $177,000,000 for fiscal year 2000 and $174,070,000 for
fiscal year 2001 shall be for Nuclear Energy, including--
(A) $85,000,000 for fiscal year 2000 and $87,550,000
for fiscal year 2001 for Termination Costs;
(B) $30,000,000 for fiscal year 2000 and $30,900,000
for fiscal year 2001 for the Fast Flux Test Facility;
(C) $13,000,000 for fiscal year 2000 and $13,390,000
for fiscal year 2001 for Isotope Support;
(D) $8,000,000 for fiscal year 2000 for completion of
Project 98-E-201, Isotope Production Facility, Los
Alamos National Laboratory; and
(E) $41,000,000 for fiscal year 2000 and $42,230,000
for fiscal year 2001 for Uranium Programs;
(2) $50,750,000 for fiscal year 2000 and $51,703,000 for
fiscal year 2001 shall be for Environment, Safety, and Health;
(3) $9,100,000 for fiscal year 2000 and $9,148,000 for fiscal
year 2001 shall be for Technical Information Management; and
(4) $1,000,000 for fiscal year 2000 and $1,000,000 for fiscal
year 2001 shall be for transfer to the Occupational Health and
Safety Administration for external regulation of all federally
owned or operated nonmilitary energy laboratories under section
15.
(b) Non-Defense Environmental Management.--There are authorized to be
appropriated to the Secretary for Non-Defense Environmental Management
commercial application of energy technology and related civilian energy
and scientific research, development, and demonstration operation and
maintenance programs, projects, and activities for which specific sums
are not authorized under other authority of law $330,934,000 for fiscal
year 2000 and $340,862,000 for fiscal year 2001, to remain available
through the end of fiscal year 2002, of which--
(1) $211,146,000 for fiscal year 2000 and $217,480,000 for
fiscal year 2001 shall be for Site Closure;
(2) $100,866,000 for fiscal year 2000 and $103,892,000 for
fiscal year 2001 shall be for the Site/Project Completion; and
(3) $18,922,000 for fiscal year 2000 and $19,490,000 for
fiscal year 2001 shall be for post 2006 Completion.
(c) Fossil Energy Research and Development.--There are authorized to
be appropriated to the Secretary for Fossil Energy Research and
Development Environmental Restoration commercial application of energy
technology and related civilian energy and scientific research,
development, and demonstration operation and maintenance programs,
projects, and activities for which specific sums are not authorized
under other authority of law $10,000,000 for fiscal year 2000 and
$10,300,000 for fiscal year 2001, to remain available through the end
of fiscal year 2002.
(d) Energy Conservation Research and Development.--There are
authorized to be appropriated to the Secretary for Energy Conservation
Research and Development commercial application of energy technology
and related civilian energy and scientific research, development, and
demonstration operation and maintenance programs, projects, and
activities for which specific sums are not authorized under other
authority of law $26,227,000 for fiscal year 2000 and $27,014,000 for
fiscal year 2001, to remain available through the end of fiscal year
2002, of which--
(1) $10,700,000 for fiscal year 2000 and $11,021,000 for
fiscal year 2001 shall be for Clean Cities;
(2) $9,138,000 for fiscal year 2000 and $9,412,000 for fiscal
year 2001 shall be for Building Standards and Guidelines; and
(3) $6,389,000 for fiscal year 2000 and $6,581,000 for fiscal
year 2001 shall be for Lighting and Appliance Standards.
SEC. 4. NOTICE.
(a) Reprogramming.--The Secretary may use for any authorized civilian
energy or scientific research, development, and demonstration and
commercial application of energy technology programs, projects, and
activities of the Department--
(1) up to the lesser of $250,000 or 5 percent of the total
funding for a fiscal year of another such program, project, or
activity of the Department; or
(2) after the expiration of 60 days after transmitting to the
Committee on Science and the Committee on Appropriations of the
House of Representatives, and to the Committee on Energy and
Natural Resources and the Committee on Appropriations of the
Senate, a report described in subsection (b), up to 25 percent
of the total funding for a fiscal year of another such program,
project, or activity of the Department.
(b) Report.--(1) The report referred to in subsection (a)(2) is a
report containing a full and complete statement of the action proposed
to be taken and the facts and circumstances relied upon in support of
such proposed action.
(2) In the computation of the 60-day period under subsection (a)(2),
there shall be excluded any day on which either House of Congress is
not in session because of an adjournment of more than 3 days to a day
certain.
(c) Limitations.--In no event may funds be used pursuant to
subsection (a) for a civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology program, project, or activity for which funding has been
requested to the Congress but which has not been funded by the
Congress.
(d) Notice of Reorganization.--The Secretary shall provide notice to
the Committee on Science and the Committee on Appropriations of the
House of Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, not later
than 15 days before any major reorganization of any civilian energy or
scientific research, development, and demonstration or commercial
application of energy technology program, project, or activity of the
Department.
(e) Copy of Reports.--The Secretary shall provide copies to the
Committee on Science and the Committee on Appropriations of the House
of Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, of any
report relating to the civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology activities of the Department prepared at the direction of
any committee of Congress.
SEC. 5. LIMITATION ON DEMONSTRATIONS.
The Department of Energy shall provide funding for civilian energy or
scientific or commercial application of energy technology demonstration
programs, projects, and activities only for technologies or processes
that are substantially new, and not for incremental improvements to
technologies or processes that exist in the marketplace.
SEC. 6. LIMITS ON GENERAL PLANT PROJECTS.
If, at any time during the construction of a civilian energy or
scientific research, development, and demonstration or commercial
application of energy technology project of the Department for which no
specific funding level is provided by law, the estimated cost
(including any revision thereof) of the project exceeds $500,000, the
Secretary may not continue such construction unless the Secretary has
furnished a complete report to the Committee on Science and the
Committee on Appropriations of the House of Representatives, and to the
Committee on Energy and Natural Resources and the Committee on
Appropriations of the Senate, explaining the project and the reasons
for the estimate or revision.
SEC. 7. LIMITS ON CONSTRUCTION PROJECTS.
(a) Limitation.--Except as provided in subsection (b), construction
on a civilian energy or scientific research, development, and
demonstration or commercial application of energy technology project of
the Department for which funding has been specifically provided by law
may not be started, and additional obligations may not be incurred in
connection with the project above the authorized funding amount,
whenever the current estimated cost of the construction project exceeds
by more than 5 percent the higher of--
(1) the amount authorized for the project, if the entire
project has been funded by the Congress; or
(2) the amount of the total estimated cost for the project as
shown in the most recent budget justification data submitted to
Congress.
(b) Notice.--An action described in subsection (a) may be taken if--
(1) the Secretary has submitted to the Committee on Science
and the Committee on Appropriations of the House of
Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, a
report on the proposed actions and the circumstances making
such actions necessary; and
(2) a period of 60 days has elapsed after the date on which
the report is received by the committees.
(c) Exclusion.--In the computation of the 60-day period described in
subsection (b)(2), there shall be excluded any day on which either
House of Congress is not in session because of an adjournment of more
than 3 days to a day certain.
SEC. 8. AUTHORITY FOR CONCEPTUAL AND CONSTRUCTION DESIGN.
(a) Requirement for Conceptual Design.--(1) Subject to paragraph (2)
and except as provided in paragraph (3), before submitting to Congress
a request for funds for a construction project that is in support of a
civilian energy or scientific research, development, and demonstration
or commercial application of energy technology program, project, or
activity of the Department, the Secretary shall complete a conceptual
design for that project.
(2) If the estimated cost of completing a conceptual design for a
civilian energy or scientific research, development, and demonstration
or commercial application of energy technology construction project
exceeds $500,000, the Secretary shall submit to Congress a request for
funds for the conceptual design before submitting a request for funds
for the construction project.
(3) The requirement in paragraph (1) does not apply to a request for
funds for a construction project, the total estimated cost of which is
less than $1,000,000.
(b) Authority for Construction Design.--(1) The Secretary may carry
out construction design (including architectural and engineering
services) in connection with any proposed construction project that is
in support of a civilian energy or scientific research, development,
and demonstration or commercial application of energy technology
program of the Department if the total estimated cost for such design
does not exceed $100,000.
(2) If the total estimated cost for construction design in connection
with any construction project described in paragraph (1) exceeds
$100,000, funds for such design must be specifically authorized by law.
SEC. 9. LIMITS ON USE OF FUNDS.
(a) Clean Coal Technology Reserve.--No funds in the Clean Coal
Technology Reserve may be used to initiate or carry out a clean coal
technology energy demonstration project based outside the United
States.
(b) Travel.--Not more than 1 percent of the funds authorized by this
Act may be used either directly or indirectly to fund travel costs of
the Department or travel costs for persons awarded grants, contracts,
subcontracts, or any other form of financial assistance by the
Department. As part of the Department's annual budget request
submission to the Congress, the Secretary shall submit a report to the
Committee on Science and the Committee on Appropriations of the House
of Representatives, and to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate, that
identifies--
(1) the estimated amount of travel costs by the Department
and for persons awarded grants, contracts, subcontracts, or any
other form of financial assistance by the Department for the
fiscal year of such budget submission, as well as for the 2
previous fiscal years;
(2) the major purposes for such travel; and
(3) the sources of funds for such travel.
(c) Trade Associations.--No funds authorized by this Act may be used
either directly or indirectly to fund a grant, contract, subcontract,
or any other form of financial assistance awarded by the Department to
a trade association on a noncompetitive basis. As part of the
Department's annual budget request submission to the Congress, the
Secretary shall submit a report to the Committee on Science and the
Committee on Appropriations of the House of Representatives, and to the
Committee on Energy and Natural Resources and the Committee on
Appropriations of the Senate, that identifies--
(1) the estimated amount of funds provided by the Department
to trade associations, by trade association, for the fiscal
year of such budget submission, as well as for the 2 previous
fiscal years;
(2) the services either provided or to be provided by each
such trade association; and
(3) the sources of funds for services provided by each such
trade association.
SEC. 10. MANAGEMENT AND OPERATING CONTRACTS.
(a) Competitive Procedure Requirement.--None of the funds authorized
to be appropriated by this Act or any prior Act may be used to award a
management and operating contract for a federally owned or operated
nonmilitary energy laboratory of the Department unless such contract is
awarded using competitive procedures or the Secretary grants, on a
case-by-case basis, a waiver to allow for such a deviation. The
Secretary may not delegate the authority to grant such a waiver.
(b) Congressional Notice.--At least 60 days before a contract award,
amendment, or modification for which the Secretary intends to grant
such a waiver, the Secretary shall submit to the Committee on Science
and the Committee on Appropriations of the House of Representatives,
and to the Committee on Energy and Natural Resources and the Committee
on Appropriations of the Senate, a report notifying the committees of
the waiver and setting forth the reasons for the waiver.
SEC. 11. FEDERAL ACQUISITION REGULATION.
(a) Requirement.--None of the funds authorized to be appropriated by
this Act or any prior Act for any commercial application of energy
technology or civilian energy or scientific research, development, and
demonstration or commercial application of energy technology activities
may be used to award, amend, or modify a contract of the Department in
a manner that deviates from the Federal Acquisition Regulation, unless
the Secretary grants, on a case-by-case basis, a waiver to allow for
such a deviation. The Secretary may not delegate the authority to grant
such a waiver.
(b) Congressional Notice.--At least 60 days before a contract award,
amendment, or modification for which the Secretary intends to grant
such a waiver, the Secretary shall submit to the Committee on Science
and the Committee on Appropriations of the House of Representatives,
and to the Committee on Energy and Natural Resources and the Committee
on Appropriations of the Senate, a report notifying the committees of
the waiver and setting forth the reasons for the waiver.
SEC. 12. REQUESTS FOR PROPOSALS.
None of the funds authorized to be appropriated by this Act or any
prior Act may be used by the Department to prepare or initiate Requests
for Proposals (RFPs) for a civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology program, project, or activity if the program, project, or
activity has not been specifically authorized by Congress.
SEC. 13. PRODUCTION OR PROVISION OF ARTICLES OR SERVICES.
(a) Restriction.--Except as provided in subsection (b), none of the
funds authorized to be appropriated by this Act or any prior Act may be
used by any civilian energy or scientific research, development, and
demonstration or commercial application of energy technology program,
project, or activity of the Department to produce or provide articles
or services for the purpose of selling the articles or services to a
person outside the Federal Government, unless the Secretary determines
that the articles or services are not available from a commercial
source in the United States.
(b) Exception.--Subsection (a) does not apply to the transmission and
sale of electricity by any Federal power marketing administration.
SEC. 14. ELIGIBILITY FOR AWARDS.
(a) In General.--The Secretary shall exclude from consideration for
grant agreements for civilian energy or scientific research,
development, and demonstration or commercial application of energy
technology activities made by the Department after fiscal year 1999 any
person who received funds, other than those described in subsection
(b), appropriated for a fiscal year after fiscal year 1999, under a
grant agreement from any Federal funding source for a program, project,
or activity that was not subjected to a competitive, merit-based award
process, except as specifically authorized by this Act. Any exclusion
from consideration pursuant to this section shall be effective for a
period of 5 years after the person receives such Federal funds.
(b) Exception.--Subsection (a) shall not apply to the receipt of
Federal funds by a person due to the membership of that person in a
class specified by law for which assistance is awarded to members of
the class according to a formula provided by law.
(c) Definition.--For purposes of this section, the term ``grant
agreement'' means a legal instrument whose principal purpose is to
transfer a thing of value to the recipient to carry out a public
purpose of support or stimulation authorized by a law of the United
States, and does not include the acquisition (by purchase, lease, or
barter) of property or services for the direct benefit or use of the
United States Government. Such term does not include a cooperative
agreement (as such term is used in section 6305 of title 31, United
States Code) or a cooperative research and development agreement (as
such term is defined in section 12(d)(1) of the Stevenson-Wydler
Technology Innovation Act of 1980 (15 U.S.C. 3710a(d)(1))).
SEC. 15. EXTERNAL REGULATION.
(a) Authority.--
(1) Elimination of department of energy authority.--Except as
provided in paragraph (2), effective January 1, 2000, the
Department shall have no regulatory or enforcement authority,
through rules, regulations, orders, and standards, or reporting
requirements, with respect to Federal, State, and local
environmental, safety, and health requirements at any federally
owned or operated nonmilitary energy laboratory.
(2) Exception.--Notwithstanding paragraph (1), the Department
shall retain regulatory or enforcement authority described in
paragraph (1) at any federally owned or operated nonmilitary
energy laboratory to the extent that no other Federal, State,
or local governmental agency has such regulatory or enforcement
authority.
(b) Nuclear Regulatory Commission Authority.--
(1) Enforcement responsibilities.--Effective January 1, 2000,
the Nuclear Regulatory Commission shall assume the regulatory
and enforcement responsibilities of the Department under the
Atomic Energy Act of 1954 with regard to federally owned or
operated nonmilitary energy laboratories, including such
responsibilities with respect to accelerator-produced
radioactive material and ionizing radiation generating machine.
(2) Licensed entity.--For the purposes of carrying out at
federally owned or operated nonmilitary energy laboratories
regulatory and enforcement responsibilities described in
paragraph (1), the Nuclear Regulatory Commission may regulate
and license or provide certification for the Department, the
Department's contractor, or both.
(3) Decommissioning.--A contractor operating a federally
owned nonmilitary energy laboratory shall not be responsible
for the costs of decommissioning that facility. No enforcement
action may be taken against such contractor for any violation
of Nuclear Regulatory Commission decommissioning requirements,
if such violation is the result of a failure of the Department
to authorize or fund decommissioning activities. The Nuclear
Regulatory Commission and the Department shall, not later than
July 1, 2000, enter into a memorandum of understanding
establishing decommissioning procedures and requirements for
federally owned or operated nonmilitary energy laboratories.
(c) Occupational Safety and Health.--
(1) OSHA jurisdiction.--Notwithstanding any other provision
of law, effective January 1, 2000, the Occupational Safety and
Health Administration shall assume the regulatory and
enforcement responsibilities of the Department relating to
matters covered by the Occupational Safety and Health Act of
1970 with regard to all federally owned or operated nonmilitary
energy laboratories. The Department's contractor or contractors
operating those laboratories shall be considered employers for
purposes of the Occupational Safety and Health Act of 1970.
(2) Applicability.--Section 4(b)(1) of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)) does not
apply with respect to the Department's regulation, or the
Nuclear Regulatory Commission's regulation, of federally owned
or operated nonmilitary energy laboratories.
(3) Radiation regulations.--With respect to federally owned
or operated nonmilitary energy laboratories, the Secretary of
Labor may enforce the regulations contained in part 20 of title
10 of the Code of Federal Regulations, relating to Protection
from Radiation, to the same extent as regulations issued under
section 6(b) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 655(b)).
(4) Memorandum of understanding.--The Nuclear Regulatory
Commission and the Occupational Safety and Health
Administration shall, within 90 days after the date of the
enactment of this Act, enter into a memorandum of understanding
to govern the exercise of their respective authorities over
occupational safety and health hazards at federally owned or
operated nonmilitary energy laboratories.
(d) Transfer of Funds.--For the purposes of carrying out this
section, and for conducting pilot programs and other activities
necessary to prepare for and effect the transition of regulatory and
enforcement responsibilitiesfor federally owned or operated nonmilitary
energy laboratories from the Department, the Secretary shall transfer
$1,000,000 from the appropriation made pursuant to section 3(a)(4) to
the Occupational Safety and Health Administration.
(e) Civil Penalties.--The Department's contractor operating a
federally owned or operated nonmilitary energy laboratory shall not be
liable for civil penalties under the Atomic Energy Act of 1954 or the
Occupational Safety and Health Act of 1970 for any actions taken before
October 1, 2000, pursuant to the transfer of regulatory and enforcement
responsibilities required by this section.
(f) Indemnification.--The Secretary shall continue to indemnify
federally owned or operated nonmilitary energy laboratories in
accordance with the provisions of section 170d. of the Atomic Energy
Act of 1954.
(g) Department of Energy Reporting Requirement.--By October 31, 1999,
the Secretary shall transmit to the Committee on Science and the
Committee on Appropriations of the House of Representatives, and the
Committee on Energy and Natural Resources and the Committee on
Appropriations of the Senate, a plan for the termination of the
Department's regulatory and enforcement responsibilities for federally
owned or operated nonmilitary energy laboratories required by this
section. The report shall include--
(1) a detailed transition plan, drafted in coordination with
the Nuclear Regulatory Commission and the Occupational Safety
and Health Administration, giving the schedule for termination
of self-regulation authority as outlined in subsection (a),
including the activities to be coordinated with the Nuclear
Regulatory Commission and the Occupational Safety and Health
Administration;
(2) a description of any issues remaining to be resolved with
the Nuclear Regulatory Commission, the Occupational Safety and
Health Administration, or other external regulators, and a
timetable for resolving such issues before January 1, 2000;
(3) an estimate of--
(A) the annual cost of administering and implementing
self-regulation of environmental, safety, and health
activities at federally owned or operated nonmilitary
energy laboratories;
(B) the number of Federal and contractor employees
administering and implementing such self-regulation;
(C) the cost of external regulation based on the
pilot project of simulated Nuclear Regulatory
Commission regulation which has already been conducted;
and
(D) the extent and schedule by which the Department
and laboratory staffs will be reduced as a result of
implementation of this section; and
(4) a description of regulatory or enforcement authorities
the Department determines it will be required to retain
pursuant to subsection (a)(2).
Chairman Sensenbrenner. The first amendment on the roster
is by the gentleman from California, Mr. Calvert, and the
gentleman from Illinois, Mr. Costello.
For what purpose does the gentleman from Illinois seek--or
the gentleman from California seek recognition?
Mr. Calvert. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 1656 offered by Mr. Calvert
and Mr. Costello.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The information follows:]
Amendment to H.R. 1656 Offered by Mr. Calvert and Mr. Costello
Page 2, line 19, strike ``$237,850,000'' and insert ``$309,662,000''.
Page 2, line 19, strike ``$235,921,000'' and insert ``$306,857,000''.
Page 2, line 22, strike ``$177,000,000'' and insert ``$136,000,000''.
Page 2, line 23, strike ``$174,070,000'' and insert ``$131,840,000''.
Page 3, line 9, insert ``and'' after ``Support;''.
Page 3, line 13, strike ``and''.
Page 3, lines 14 through 16, strike subparagraph (E).
Page 3, line 22, strike ``and''.
Page 3, line 23, through page 4, line 3, strike paragraph (4).
Page 4, after line 3, insert the following new paragraphs:
(4) $102,000,000 for fiscal year 2000 and $102,000,000 for
fiscal year 2001 shall be for Field Operations; and
(5) $11,812,000 for fiscal year 2000 and $12,166,000 for
fiscal year 2001 shall be for Oak Ridge Landlord.
Page 4, line 22, strike ``post'' and insert ``Post''.
Page 5, line 17, strike ``$26,227,000'' and insert ``$39,398,000''.
Page 5, line 18, strike ``$27,014,000'' and insert ``$40,185,000''.
Page 6, line 3, strike ``and''.
Page 6, line 6, strike the period and insert ``; and''.
Page 6, after line 6, insert the following new paragraph:
(4) $13,171,000 for fiscal year 2000 and $13,171,000 for
fiscal year 2001 for Management and Planning for the Building
Technology, State and Community Sector (nongrants).
Page 8, lines 10 through 16, amend section 5 to read as follows:
SEC. 5. LIMITATION ON DEMONSTRATIONS.
The Department shall provide funding for civilian energy or
scientific or commercial application of energy technology demonstration
programs, projects, and activities only for technologies or processes
that can be reasonably expected to yield new, measurable benefits to
the cost, efficiency, or performance of the technology or process.
Page 8, line 23, strike ``$500,000'' and insert ``$2,000,000''.
Page 9, line 15, strike ``5'' and insert ``10''.
Page 10, line 6, strike ``60'' and insert ``30''.
Page 10, line 9, strike ``60'' and insert ``30''.
Page 10, after line 13, insert the following new subsection:
(d) Exception.--Subsections (a) and (b) shall not apply to any
construction project which has a current estimated cost of less than
$2,000,000.
Page 11, line 4, strike ``$500,000'' and insert ``$750,000''.
Page 11, line 10, strike ``$1,000,000'' and insert ``$2,000,000''.
Page 11, line 18, strike ``$100,000'' and insert ``$250,000''.
Page 11, line 21, strike ``$100,000'' and insert ``$250,000''.
Page 12, lines 6 and 7, strike ``grants, contracts, subcontracts, or
any other form of financial assistance'' and insert ``contracts or
subcontracts''.
Page 12, lines 16 through 18, strike ``grants, contracts,
subcontracts, or any other form of financial assistance'' and insert
``contracts or subcontracts''.
Page 14, line 17, insert ``programs, projects, and'' after ``energy
technology''.
Page 16, lines 2 and 3, strike ``that the articles'' and insert
``that comparable articles''.
Page 17, line 2, insert ``or under circumstances permitting other
than full and open competition under the Federal Acquisition
Regulation'' after ``provided by law''.
Page 18, line 20, strike ``machine'' and insert ``machines''.
Page 21, lines 3 through 11, strike subsection (d).
Page 21, lines 12, 19, and 23, redesignate subsections (e) through
(g) as subsections (d) through (f), respectively.
Page 23, line 5, strike ``pilot project'' and insert ``pilot
projects''.
Page 23, line 6, strike ``which has'' and insert ``which have''.
Chairman Sensenbrenner. The gentleman from California will
be recognized for five minutes.
Mr. Calvert. Thank you, Mr. Chairman. I offer this
manager's amendment on behalf of myself and my friend, the
Ranking Minority Member of the Subcommittee, Mr. Costello. This
bipartisan managers amendment makes technical and conforming
changes to H.R. 1656 as introduced; better clarifies the intent
of the limitations on demonstration section; raises the limits
on the provisions dealing with general plant projects,
construction projects, authority for conceptual and
construction designs; and better clarifies the intent of the
production or provision of articles or services, and the
eligibility of award section.
Again, after bipartisan consultation with our friends at
the Commerce Committee, this amendment transfers the field
operations of Oak Ridge Landlord and Building Technology, State
and Community Sector Management and Planning line items to this
bill, H.R. 1656, from H.R. 1655, and deletes the authorization
for Uranium Programs.
I want to thank my friend for his cooperation in crafting
this bipartisan managers amendment, and would ask my colleagues
for their support. With that, I would yield the balance of my
time to Mr. Costello.
Mr. Costello. I thank Chairman Calvert for working with the
Minority on this managers amendment, and urge my colleagues to
support it.
Chairman Sensenbrenner. The time is yielded back. Further
discussion on the amendment by the gentleman from California,
Mr. Calvert? If none, all those in favor will signify by saying
aye.
Opposed, no.
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Amendment number 2 is by the gentleman from Colorado, Mr.
Udall.
For what purpose does he seek recognition?
Mr. Udall. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report amendment
number 2.
The Clerk. Amendment offered----
Mr. Udall. Mr. Chairman, I would ask unanimous consent that
the amendment be considered as read.
Chairman Sensenbrenner. Without objection.
[The information follows:]
Amendment Offered by Mr. Udall of Colorado to the Amendment Offered by
Mr. Calvert and Mr. Costello
Page 2, in the item relating to page 5, line 17, in lieu of the
matter proposed to be inserted, insert the following: ``$41,545,000''.
Page 2, in the item relating to page 5, line 18, in lieu of the
matter proposed to be inserted, insert the following: ``$42,791,540''.
Page 2, line 7, strike ``$13,171,000'' and insert ``$15,318,000''.
Page 2, line 8, strike ``$13,171,000'' and insert ``$15,777,540''.
Mr. Udall. Thank you, Mr. Chairman. Mr. Chairman, you
offered to accept my amendment to this bill provided that I
find offsets to the increases in clean energy----
Chairman Sensenbrenner. The gentleman is recognized for
five minutes.
Mr. Udall. Thank you. Mr. Chairman, you offered to accept
my amendment to this bill, provided that I find offsets in the
bill to the increases in clean energy programs that I am
proposing. I appreciate your offer, and I want to thank you for
your readiness to support such an amendment. I know that you
understand the importance of these energy efficiency programs,
and that you believe in the importance of clean energy research
and development.
However, I have chosen not to seek offsets to these
programs. As my colleague, Ms. Rivers, explained so well
yesterday, these authorization bills are intended to give
guidance to appropriators about our priorities, not to fit into
some artificially binding number.
How do we determine what is an appropriate level of
funding? In some bills we have considered, we have used the
President's requested funding levels. In others, we have not. I
am simply seeking to restore funding levels to the level of the
President's request, a process that involved months of
deliberation between DOE and OMB. Moreover, by offsetting my
proposed increases, I would be forced to pick and choose
between important programs, favoring some over others. This
doesn't send the overall signal to appropriators that I would
like to send.
Now to the amendment. This amendment would authorize
funding for the Department of Energy's Conservation Research
and Development Commercial Application Programs at the level of
the President's request for Fiscal Year 2000, and would
increase these numbers by 3 percent in Fiscal Year 2001. Energy
efficiency programs which work to improve energy use in our
homes, industries, and cars, are largely voluntary initiatives
that further our national goals of broad-based economic growth,
environmental protection, national security, and economic
competitiveness. DOE's conservation programs are designed to
significantly improve the fuel economy of automobiles and other
vehicles, to increase the productivity of the Nation's most
energy-intensive industries, and improve the energy efficiency
of buildings and appliances.
My amendment would allow full funding of the Building
Standards and Guidelines Program which assists the building
industry in setting codes to provide a working framework for
the home building industry, and to help consumers save energy
and money, and stay comfortable in energy efficient living
spaces.
Additionally, my amendment would allow full funding of the
Lighting and Appliances Standards Program. This programenables
DOE to work hand in hand in manufacturers to develop such products as
the super-efficient refrigerator and the horizontal axis clothes
washer, both of which are now being marketed to consumers everywhere
for their energy and cost savings.
All of these programs are voluntary initiatives that have
drawn from technologies developed in DOE labs, and combined
them with the tools necessary to push those technologies into
the market. Over the past two decades, energy efficiency has
reduced energy use from projected levels by nearly 30 percent,
making in effect the Nation's largest energy resource. By
developing the means to more cost effectively manage energy
use, these programs provide tools for our Nation, our
industries, and our citizens to be smart about energy.
In our discussion yesterday, my colleague from Michigan,
Mr. Ehlers, pointed out that increasing energy efficiency is
really our challenge. Mr. Chairman, I urge you and my
colleagues to think about the important implications of these
programs for our environment and our future. I urge support for
my amendment. Thank you. I yield back the balance.
Chairman Sensenbrenner. Would the gentleman from Colorado
yield?
Mr. Udall. I would be happy to yield, Mr. Chairman.
Chairman Sensenbrenner. Listening to your argument, it
sounds like you are arguing in favor of amendment number 3
rather than amendment number 2. Amendment number 2 is what was
called up and is before us. Does the gentleman want to withdraw
amendment number 2 and try amendment number 3?
Mr. Udall. Thank you, Mr. Chairman. I would ask unanimous
consent that amendment 2 be withdrawn.
Chairman Sensenbrenner. You don't need unanimous consent,
because somebody can object to that. That is your right to
withdraw it.
All right. Amendment is withdrawn.
Mr. Udall. I would ask to withdraw my amendment.
Chairman Sensenbrenner. For what purpose does the gentleman
from Colorado seek recognition on amendment number 3?
Mr. Udall. I would ask that my statement appear in the
record.
Chairman Sensenbrenner. I believe that the gentleman has an
amendment at the desk, number 3, which the clerk will report.
The Clerk. Amendment to H.R. 1656----
Mr. Udall. Mr. Chairman, I would ask unanimous consent that
the amendment be considered as read.
Chairman Sensenbrenner. Without objection.
[The information follows:]
Amendment to H.R. 1656 Offered by Mr. Udall of Colorado
Page 5, line 17, strike ``$26,227,000'' and insert ``$52,163,000''.
Page 5, line 18, strike ``$27,014,000'' and insert ``$53,727,890''.
Page 6, line 1, strike ``$9,138,000'' and insert ``$12,802,000''.
Page 6, line 2, strike ``$9,412,000'' and insert ``$13,186,060''.
Page 6, line 4, strike ``$6,389,000'' and insert ``$13,343,000''.
Page 6, line 5, strike ``$6,581,000'' and insert ``$13,743,290''.
In the matter inserted as section 3(d)(4) by the Managers'
Amendment, strike ``$13,171,000'' the first place it appears and insert
``$15,318,000''.
In the matter inserted as section 3(d)(4) by the Managers'
Amendment, strike ``$13,171,000'' the second place it appears and
insert ``$15,777,540''.
Chairman Sensenbrenner. The gentleman is recognized for
five minutes.
Mr. Udall. Mr. Chairman, I would also ask that the
statement I just gave be considered as----
Chairman Sensenbrenner. Without objection, Mr. Udall's
statement will be transferred from amendment number 2 to
amendment number 3.
Mr. Udall. Thank you, Mr. Chairman. If I might just add, I
appreciate your help. The previous amendment was prepared in
response to the managers amendments. After consideration, it
was realized we didn't need to submit that amendment. I thank
you for your understanding.
Chairman Sensenbrenner. Further discussion on the Udall
amendment? If not, all those in favor will signify by saying
aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Amendment number 4 is by the gentlewoman from Illinois,
Mrs. Biggert.
For what purpose does she seek recognition?
Mrs. Biggert. Thank you, Mr. Chairman. I have an amendment
at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 1656 offered by Mrs. Biggert.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The information follows:]
Amendment to H.R. 1656 Offered by Mrs. Biggert
Page 23, after line 14, insert the following new section:
SEC. 16. INTERNET AVAILABILITY OF INFORMATION.
The Secretary shall make available through the Internet home page
of the Department the abstracts relating to all research grants and
awards made with funds authorized by this Act. Nothing in this section
shall be construed to require or permit the release of any information
prohibited by law or regulation from being released to the public.
Chairman Sensenbrenner. The gentlewoman from Illinois is
recognized for five minutes.
Mrs. Biggert. Thank you, Mr. Chairman. As in the other
bills, this amendment is to have grant abstracts with
descriptions of the research being done on the Internet. I
think that in this--this agency needs to provide consistent
information on grants and awards that is easily accessible. I
ask my colleagues to support this amendment.
Chairman Sensenbrenner. Further discussion on the Biggert
amendment? The question is on agreeing to the amendment.
Those in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Amendment number 5 is by Mr. Costello and Mr. Nethercutt.
For what purpose does the gentleman from Illinois seek
recognition?
Mr. Costello. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 1656 offered by Mr. Costello
and Mr. Nethercutt.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The information follows:]
Amendment to H.R. 1656 Offered by Mr. Costello and Mr. Nethercutt
Page 23, after line 14, insert the following new section:
SEC. 16. MORATORIUM ON FOREIGN VISITORS PROGRAM.
(a) Moratorium.--Until the appropriate conditions are met under
subsection (c), the Secretary may not admit any individual who is a
citizen of a nation that is named on the current Department of Energy
List of Sensitive Countries to--
(1) any classified facility of a laboratory owned by the
Department; or
(2) any facility of a laboratory owned by the Department for
the purposes of conducting activities related to any of the
sensitive subjects listed in part 1 of Appendix 4 of the
February 1997 document entitled ``Guidelines on Export Control
and Nonproliferation'', issued by the Nuclear Transfer and
Supplier Policy Division of the Office of Arms Control and
Nonproliferation of the Office of Nonproliferation and National
Security of the Department.
(b) Waiver Authority.--(1) The Secretary may waive the prohibition in
subsection (a) on a case-by-case basis with respect to specific
individuals whose admission to a laboratory owned by the Department is
determined by the Secretary to be necessary for the national security
of the United States.
(2) Not later than 30 days after granting a waiver under paragraph
(1), the Secretary shall transmit to the committees described in
subsection (e) a report in writing regarding the waiver. The report
shall identify each individual for whom such a waiver is granted and,
with respect to each such individual, provide a detailed justification
for the waiver and the Secretary's certification that the admission of
that individual to a laboratory owned by the Department is necessary
for the national security of the United States.
(3) The authority of the Secretary under paragraph (1) may not be
delegated.
(c) Conditions for Lifting Moratorium.--The moratorium on a
laboratory owned by the Department shall be lifted when the Secretary,
in consultation with and with the concurrence of the Director of the
Federal Bureau of Investigation, transmits to the Congress a report
certifying that--
(1) all of the applicable counterintelligence and safeguards
and security measures contained in Presidential Decision
Directive 61 have been fully implemented at the laboratory, and
that adequate oversight and resources exist to ensure that they
are properly followed;
(2) all of the additional applicable counterintelligence and
safeguards and security measures announced by the Secretary on
March 17, 1999, and March 31, 1999, have been fully implemented
at the laboratory, and that adequate oversight and resources
exist to ensure that they are appropriately followed; and
(3) all of the guidelines in February 1997 document entitled
``Guidelines on Export Control and Nonproliferation'', issued
by the Nuclear Transfer and Supplier Policy Division of the
Office of Arms Control and Nonproliferation of the Office of
Nonproliferation and National Security of the Department are
being followed with respect to all activities at the
laboratory.
(d) Report to Congress.--(1) The Director of the Federal Bureau of
Investigation and the Secretary jointly shall transmit to the
committees described in subsection (e) an annual report, the first of
which shall be transmitted not later than 90 days after the date of the
enactment of this Act, on counterintelligence and safeguards and
security activities at the laboratories owned by the Department,
including facilities and areas at those laboratories at which
unclassified work is carried out.
(2) The report required by paragraph (1) shall include--
(A) a description of the status of counterintelligence and
safeguards and security at each of the laboratories owned by
the Department;
(B) a description of the status of the conditions for lifting
the moratorium under subsection (c); and
(C) a net assessment of the foreign visitors program at the
laboratories owned by the Department, prepared by a panel of
individuals with expertise in intelligence,
counterintelligence, and nuclear weapons design matters.
(e) Committees.--The Committees referred to in this section are the
Committee on Armed Services, the Committee on Appropriations, the
Committee on Commerce, Science, and Transportation, the Committee on
Energy and National Resources, and the Select Committee on Intelligence
of the Senate, and the Committee on Armed Services, the Committee on
Appropriations, the Committee on Commerce, the Committee on Science,
and the Permanent Select Committee on Intelligence of the House of
Representatives.
Chairman Sensenbrenner. The gentleman from Illinois is
recognized for five minutes.
Mr. Costello. Mr. Chairman, I realize we are trying to get
through our business today, so I'll be brief. This is the same
amendment that I offered yesterday to Mr. Nethercutt's
amendment to H.R. 1655 and then withdrew it because of
jurisdictional concerns.
My amendment calls for a moratorium on foreign visitors
from sensitive countries to all labs when the visit is to a
classified facility, and topics involve export control and non-
proliferation. It also waives, provides a waiver of a
moratorium on visits related to the U.S.-Russia non-
proliferation programs that are important to our national
security.
In addition, this is similar to the bipartisan bill passed
by the Senate Intelligence Committee. The Secretary can issue
waivers as long as he reports to the Congress within 30 days.
Also, it contains a sunset to the moratorium after all
applicable portions of the Presidential Decision Directive 61
are in place, additional counterintelligence safeguards and
security measures announced by the Secretary are in place, and
the DOE's current export controls on non-proliferation that
govern foreign visits is in place.
In addition, an annual report would be required. The
Secretary of DOE would be required to file an annual report, as
would the Director of the FBI to the Congress, assessing
security at each lab.
Mr. Chairman, I hope that this will address the issue of
foreign visitors to our national labs, and I would ask that the
amendment be adopted.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Costello. I would be happy to yield.
Chairman Sensenbrenner. I enthusiastically support this
amendment. Let me express my appreciation to the gentleman from
Illinois for not putting in this version of the amendment. Let
me express my appreciation to the gentleman from Illinois for
not putting in this version of the amendment to the bill that
we considered yesterday. That was important for jurisdictional
reasons. The bill we considered yesterday is not within the
jurisdiction of other committees and we can bring that bill to
the floor relatively promptly if we avoid a sequential
referral.
This bill is very clearly in the jurisdiction of other
committees in part. So adding this language at this time is not
going to slow down the legislative process, but have a much
more clear and definitive guideline on when foreign visitors
will be allowed, and under what circumstances, while the
Department of Energy figures out how to clean up its act. It
has been in disrepair for a good 20 years, from what I have
read in the newspaper.
Mr. Costello. Mr. Chairman, I thank you for your support.
Mr. Nethercutt. Will the gentleman yield?
Mr. Costello. I would be happy to yield.
Mr. Nethercutt. I might just say as a cosponsor of this
measure, I also thank the gentleman from Illinois for his
discussion and withdrawal of this amendment yesterday. I
certainly support the Chairman relative to the jurisdictional
question. I thank the gentleman for working with us and trying
to make this whole concept of security effective on both
yesterday's bill and today's bill. I'll yield back.
Mr. Costello. I thank the gentleman for his support and his
input on this amendment.
I yield to Mr. Ehlers.
Mr. Ehlers. Thank you. I thank the gentleman for yielding.
I rise to object to the amendment. As I mentioned the other day
during the security hearing, I am appalled at some of the
practices that the Department of Energy has followed. I have
previous experience working in these laboratories. But to my
knowledge, foreign visitors have never been a problem. I am not
aware of any case where spying has occurred as a result of a
foreign visitor taking information in and either selling it or
giving it to country of his or her choice.
It seems to me this misleads the public into thinking that
the problem is foreign visitors, when in fact, the problem is
the DOE's lax security with regard to employees. I really
question the need for this amendment. There are already rather
stringent requirements on foreign visitors. We have to
recognize that foreign visitors generally are far more
beneficial to the lab they are visiting than the reverse of
that. So I just wanted to voice that concern about passing this
amendment. I had somewhat similar reservations about the one
yesterday, but that was more tightly constructed, and I don't
think it created quite as many problems.
So I register my objections to it, and I would be happy to
hear any counter arguments on it. But I really don't think that
this is the problem that we have to deal with. I don't think
what we have outlined here is necessary. There are other ares
of the lab security that are much more at question and have to
be dealt with much more promptly rather than spending time on
this. Thank you. I yield back.
Chairman Sensenbrenner. The time belongs to the gentleman
from Illinois.
Mr. Costello. If I do have time, let me just address a
couple of issues. First, the moratorium applies to all visits
to classified facilities.
Chairman Sensenbrenner. Does the gentleman ask unanimous
consent for an additional two minutes?
Mr. Costello. I do, Mr. Chairman.
Chairman Sensenbrenner. Without objection.
Mr. Costello. For example, the Lawrence Berkeley Lab does
not classified work, so this part wouldn't apply to them at
all. Let me say that the moratorium on each lab is unlike many
of the amendments that I understand will be offered to the DOD
authorization bill and other bills that have jurisdiction. It
is unlike those bills in the sense that this in fact has a
sunset. As soon as the Secretary of Energy and the Director of
the FBI and everyone certifies that the Presidential Directive
61 is in place, in fact it specifically says when all of the
security measures are in place, that the moratorium will be
lifted and visits can in fact be conducted.
I share Mr. Ehler's concern. I know that it is very healthy
for us to be able to allow for us to visit labs in other
countries and for us to share our science. This of course only
applies to sensitive classified issues that are going on in our
labs here in the United States.
Chairman Sensenbrenner. For what purpose does the gentleman
from Michigan seek recognition?
Mr. Ehlers. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for
five minutes.
Mr. Ehlers. Mr. Chairman, let me just add a few comments on
this. First of all, I recognize Lawrence Berkley Lab has no
classified areas at this time. Argonne Laboratory, however,
which is in Illinois, does have something like 3 percent of
their effort is in classified areas. I think it is important
also to recognize that a classified area may require the
attendance--let me restate that. A foreign visitor may have to
enter a classified area to conduct certain experiments. There
may be a piece of equipment that is classified but is not
conducting a classified experiment at the time that the visitor
comes to work on that particular piece of equipment. I believe
in that case, there is no reason for the foreign visitor to be
hindered in that effort. There is a requirement now that they
must be accompanied by either a guard or a person who stays
with them constantly while they are in the classified area. So
I think we have sufficient security already.
I would also comment in regard to the statement by the
gentleman from Illinois, I do appreciate that this amendment is
far better than some others that are floating around the
Capitol on this issue. I do appreciate that. My point is
simply, just because there's a lot of garbage out there doesn't
mean we have to offer an amendment that still addresses this.
Even though it's not garbage, it is still questionable whether
or not we need it. I yield back the balance.
Mr. Costello. I wonder if the gentleman would yield?
Mr. Ehlers. I would be pleased to yield.
Mr. Costello. Let me just finally touch on one point that
you mentioned. That is that the Secretary--this amendment is
similar to what the Senate Intelligence Committee passed. The
Secretary can issue waivers as long as he reports to Congress
within 30 days that he in fact issued a waiver. So waivers are
built into this amendment, unlike the other amendments that we
no doubt will have an opportunity to vote on. I thank the
gentleman.
Mr. Ehlers. Reclaiming my time. I just want to thank the
gentleman for that statement. That is true, and I recognize
that. I am just concerned about misleading the public and
anyone else into thinking that this is the cause of the
security problems we have had, when to the best of my
knowledge, this has never been a problem. I don't know of any
security leak resulting from foreign visitors.
Mr. Calvert. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman from Michigan
yield back the balance of his time?
Mr. Ehlers. I yield back the balance of my time.
Mr. Calvert. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California is
recognized for five minutes.
Mr. Calvert. Mr. Chairman, I want to support the amendment
from my good friend from Illinois. This is a good amendment. I
think it is a reasonable amendment. It has been well thought
out. The gentleman from Michigan is correct. There are other
ideas out there that are far more radical. I think this is a
rational approach to a problem. I don't know if we know all the
problems that have happened at the National Laboratories yet.
In the short term, I think this is a reasonable approach to be
cautious. I support this amendment and I urge its adoption.
I would yield time to the gentleman from California, Mr.
Rohrabacher.
Mr. Rohrabacher. Mr. Chairman, let me just state for the
record that I don't think it is a good idea for the United
States of America to play host to scientists from totalitarian
and potential hostile powers. If the country is anti-democratic
and militaristic, and one of the worst human rights abusers or
perhaps the worst human rights abuser in the world, as is the
case with Communist China, I don't want their scientists in our
laboratories. I don't care if there hasn't been any proof that
these people have managed to obtain information while on
exchange programs to the United States. I don't want to
establish personal relationships between Nazi German
scientists, even though there hasn't been any proof that those
Nazi German scientists stole any information or Communist
Chinese scientists or anybody else from a power that's hostile
to the United States.
What we have here, and what the big stir in Washington, DC
is, along with the Cox Report and everything else, comes right
down to a fundamental analysis of how do we cope with 1.2
billion people who are currently under the control of a regime
that is the worst human rights abuser in the world, a regime
conducting genocide in Tibet, a regime that's modernizing its
military, a regime that uses its relationship to the United
States to gain leverage on the United States, a regime that is
not just potentially hostile, but is run by people who are
hostile to everything the United States believes in.
So I am sorry, Vern, and I am sorry to the others. I mean I
don't think this amendment goes far enough, as far as I am
concerned. I don't want Communist Chinese scientists over here.
When they start evolving in the right direction, I'm not
talking about imperfect governments now, if they start evolving
towards a freer society, boy, I'll be the first one to say
let's loosen up here and let more of them come in and let's
have a better relationship. But not until that happens.
I yield back the balance of my time.
Mr. Ehlers. Will the gentleman from California yield?
Mr. Calvert. I would be happy to yield to the gentleman
from Michigan.
Mr. Ehlers. Just a brief response, Mr. Chairman. That is, I
don't have the list of sensitive countries at hand right now,
but to the best of my memory, it included Israel, as an
example. There have been extremely fruitful collaborations
between the United States and Israel on a number of
experiments, some of which involved using equipment housed in
classified areas. There are also a large number of other
friendly countries on the list. I recognize the need to have
some controls with some countries, but I think the majority of
the visitors are from friendly countries and not unfriendly
ones. I yield back.
Mr. Rohrabacher. Will the gentleman yield?
Mr. Calvert. I will be happy to yield.
Mr. Rohrabacher. I'm not sure how much of the information
is public, but I'm sure most of us who have read the classified
reports understand that Israel is a proliferator, and a
proliferator to countries that are not just hostile to the
United States, but who have declared themselves enemies of the
United States, who have done great damage to this country.
Perhaps whether it's Israel or whatever country, if they are a
proliferator or if they are declared hostile to the United
States, we should not be facilitating the transfer of
information, scientific information to them by having exchange
programs.
Now perhaps the current Israeli government will change or
perhaps the violations that I saw earlier have been corrected
already. If that is the case, terrific. Let's make sure we have
a good exchange program. Israel is a democratic country. Israel
is not a massive abuser of human rights or an enemy of the
United States. But if they either are going to proliferate, if
they are going to give our secrets to countries that are
enemies of ours, I don't want them in our laboratories. Thank
you.
Mr. Calvert. I yield back.
Chairman Sensenbrenner. Further discussion on the Costello
compromise? [Laughter.]
That's between the Ehlers and Rohrabacher positions.
Hearing none, the question is on agreeing to the amendment.
Those in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Amendment number six. For what purpose does the gentleman
from North Carolina, Mr. Etheridge, seek recognition?
Mr. Etheridge. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 1656 offered by Mr. Etheridge.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The information follows:]
Amendment to H.R. 1656 Offered by Mr. Etheridge
Page 23, after line 14, insert the following new section:
SEC. 16. TECHNOLOGY TRANSFER COORDINATION.
Within 90 days after the date of the enactment of this Act, the
Secretary shall ensure, for the laboratories owned by the Department
carrying out programs under this Act--
(1) consistency of technology transfer policies and
procedures with respect to patenting, licensing, and
commercialization;
(2) the availability to aggrieved private sector entities on
request of binding alternative dispute resolution, nonbinding
alternative dispute resolution, mediation, negotiation between
authorized representatives of the disputing parties, or
resolution by the Department's site contracting officer to
resolve disputes regarding all technology transfer and
intellectual property matters, with costs and damages to be
provided for by the contractor to the extent that any such
resolution attributes fault to the contractor;
(3) annual reports to the Secretary, as part of the annual
performance evaluation, on technology transfer and intellectual
property successes, current technology transfer and
intellectual property disputes involving the laboratory, and
progress toward resolving those disputes; and
(4) training to ensure that laboratory personnel responsible
for patenting, licensing, and commercialization activities are
knowledgeable of the appropriate legal, procedural, and ethical
issues necessary to carry out those activities with the highest
possible professional and ethical standards.
Chairman Sensenbrenner. The gentleman from North Carolina
is recognized for five minutes.
Mr. Etheridge. Thank you, Mr. Chairman. The question is to
this Committee, what would you do if you owned a small
business, risked your money to license technology from a
Federal Government lab, and then find out that you have been
sold a bill of goods. It turns out that there isn't much you
can do. This very thing happened to Remote Data Systems, a
small engineering company in North Carolina.
In 1995, RDS saw an article in Popular Science which touted
the radar on the chip technology developed by Lawrence
Livermore National Lab. The microcomputer impulse radar device
were advertised to be technological miracles. They cost only
$10 to make, they would comply with FCC regulations they were
told, and the Livermore inventors it said, had won many awards.
The RDS shareholders borrowed money on their personal
guarantees to develop the products based on the technology and
were under the impression that they had literally struck gold.
But it turned out the technology which had been called the most
successful technological transfer project in DOE's history, was
not a miracle after all. For one, the technology had been the
subject of an intellectual property dispute since 1995, a
dispute that RDS found out only after the press reported that
the Patent Office had initially rejected key claims from
Livermore's patent. Despite devoting almost all of its personal
resources and all the profits of the company on making it work,
RDS found that the technology did not work the way Livermore
said it would, and came nowhere close to costing the $10 that
they said it would cost.
Finally and most importantly, the technology does not
comply with FCC regulations as advertised. In fact, the
technology is illegal. What's worse, I'm informed, that
Livermore met with the FCC in 1994 and was told that the
technology could not comply with the FCC regulations. But that
didn't stop them from taking Remote Data's money in 1995,
almost a year later, and the money of dozens of other
companies.
These facts are presented and can be found in the House
Science Committee Democratic Staff's report entitled Spin Off
or Rip Off. I would like to submit the executive summary of
that report for the record, Mr. Chairman.
Chairman Sensenbrenner. Without objection.
[The information follows:]
Spinoff or Ripoff?
executive summary
It is increasingly apparent that one of the keys to the success of
the U.S. innovation system is R&D partnership--that is, ``cooperative
arrangements engaging companies, universities, and government agencies
and laboratories in varying combinations to pool resources in pursuit
of a shared R&D objective''.\1\ These collaborations give us an edge in
the international marketplace, but they do not come without conflicts
and stresses. For example, university researchers engaged in industrial
partnerships often have to adjust to new practices regarding
publication rights. Federal agencies may have to deal with fair pricing
of products, including breakthrough drugs and genetically engineered
seeds, which have been developed at universities with federally
sponsored research and then licensed to for-profit corporations. And,
with growing economic globalization comes questions about licensing of
federally sponsored research to corporations wholly or partly owned by
foreign interests.
---------------------------------------------------------------------------
\1\ ``Endless Frontier, Limited Resources: U.S. Policy for
Competitives'', by the Council on Competitiveness, 1996.
---------------------------------------------------------------------------
All facets of these issues are in play in collaborations involving
government-owned Laboratories. Since the mid-1980s, Congress has
encouraged the Department of Energy (DOE) National Laboratories to
partner with industry to transfer technology into the private
sector.\2\ These partnerships have taken the form of Cooperative
Research and Development Agreements (CRADAs) between the Laboratories
and consortia of private companies and/or universities, as well as
licensing agreements. These activities are designed to enhance U.S.
industrial competitiveness by allowing companies access to technologies
developed as part of DOE's mission. The Laboratories and their
scientists have been given incentives to pursue this new mission: the
Laboratory contractors are allowed to retain ownership of the
intellectual property developed by the scientists; the Laboratories are
able to use licensing fees to fund further technology development; and
the inventors receive a share of the licensing fees and royalties.
---------------------------------------------------------------------------
\2\ See Trademark Clarification Act of 1984 (P.L. 98-620), Federal
Technology Transfer Act of 1986 (P.L. 99-502), National Competitiveness
Technology Transfer Act of 1989 (Section 3131 of P.L. 101-189), Defense
Authorization Act of 1991 (P.L. 101-510), and the National Technology
Transfer and Advancement Act of 1995 (P.L. 104-113).
---------------------------------------------------------------------------
There has been extensive Congressional oversight of the technology
transfer mission of the DOE government-owned contractor-operated
laboratories. Advocates of this mission believe that transferring
technology developed at the taxpayer's expense to private industry
allows taxpayers to reap additional rewards from the technologies.
However, skeptics have expressed concerns that the Laboratories may use
their resources to unfairly compete against the private sector, that
inadequate oversight of Laboratory activities by DOE could result in
inappropriate conduct by the Laboratories, and that Laboratory
personnel do not have the knowledge necessary to interact with the
private sector in a productive manner. The Galvin report, which
assessed the state of the National Laboratory system, articulated some
of these concerns:
We are further concerned about the possibility that DOE and
its laboratories, in engaging in industrial R&D, may find
themselves competing with private firms in providing technical
services or new technological developments. In such a
situation, the laboratories' access to public funds would give
them an inappropriate advantage.\3\
---------------------------------------------------------------------------
\3\ ``Alternative Futures for the Department of Energy
Laboratories,'' Secretary of Energy Advisory Board, Task Force on
Alternative futures for the Department of Energy Laboratories,
February, 1995.
In the Conference Report for the FY99 Energy and Water
Appropriations bill, Congress also pointed out the potential advantage
the Laboratories might have in competing with existing private sector
capabilities, and requested that DOE examine the issue in a section
---------------------------------------------------------------------------
entitled ``Competing With Private Sector Companies'':
The Department of energy's laboratories are prohibited from
competing with the private sector by numerous statutes and
regulations including the Atomic Energy Act of 1954 and
provisions in the Federal Acquisition Regulation regarding
Federally Funded Research and Development Centers.
The conferees have received complaints that the Department of
energy has failed to enforce these provisions at the
laboratories and other facilities, and that adequate recourse
is not available to those that allege harm.
The conferees direct the Secretary of Energy to assess the
statutory and regulatory limitations on laboratories and other
Departmental entities allegedly competing with the private
sector, and to ascertain what grievance mechanisms are
available to the private sector. The Secretary is directed to
provide this information to the Committees by March 1, 1999,
and make such information readily available to the private
sector.\4\
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\4\ Conference Report (H. Rept. 105-749) on H.R. 4060, the Energy
and Water Development Appropriations Act of 1999.
Technology transfer programs allow Laboratories and inventors to
reap financial rewards for patenting and licensing technologies to the
private sector, but may not have effective mechanisms to prevent unfair
competition with the private sector, misrepresentation of the
capabilities of a particular technology to prospective licensees, or
intellectual property conflicts. Private sector entities engaged in
such activity would be subject to a variety of legally or financially
punitive measures such as lawsuits or losses in stock value. By
contrast, DOE Laboratories do not risk their annual operating budgets
(which, for some Laboratories, exceed $1 billion), and companies who
feel they have been wronged by a National Laboratory are faced with the
daunting prospect of having to sue the U.S. Government or a National
Laboratory (whose litigation costs are often reimbursed by the U.S.
Government at the taxpayers' expense).
Allegations of misconduct surround one of the most widely
publicized technological developments in DOE history, the Micropower
Impulse Radar (MIR) announced by Lawrence Livermore National Laboratory
(LLNL) in 1993. MIR, advertised as a cheap, small, low-power ultra-
wideband (UWB) radar device, was featured on CNN, in the Financial
Times, Business Week, Popular Science, and countless other
publications, Thomas McEwan, the LLNL inventor, won the Distinguished
Inventor of 1994 award, the only government inventor ever to have been
so honored; the technology won an R&D 100 award in 1994. LLNL, the
University of California (UC) \5\ and Mr. McEwan have collected several
million dollars in licensing fees, and LLNL won a Federal Laboratory
Consortium Award for Excellence in Technology Transfer in 1995. MIR has
been lauded by Laboratory officials in Congressional testimony, and
according to LLNL press releases, there have been several thousand
inquiries made by interested companies. Thirty licenses for the
technology have been sold, each for a $100,000 up-front licensing fee
and a $25,000 minimum annual royalty payment. In late 1996, Mr. McEwan
left LLNL and started his own company, TEM Innovations, which sought to
further commercialize MIR technology.
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\5\ LLNL is a Government owned Laboratory that is managed and
operated by the University of California under a contract with the DOE.
---------------------------------------------------------------------------
In June, 1998, Congressman Bud Cramer (D-AL) asked Congressman
George Brown (D-CA), ranking Democratic Member of the Houses Science
Committee, and several other Members of Congress, to examine long-
standing allegations made by Time Domain Corporation (TDC) regarding
the development and commercialization of MIR. TDC specifically charged
that:
TDC inventor Larry Fullerton invented and patented
the same technology 7 years prior to LLNL/UC;
LLNL/UC and the MIR inventor, Thomas McEwan, were
aware of Fullerton's inventions, but did not cite the
inventions or other publications describing them to the Patent
Office as is required by law;
LLNL/UC was engaged in false and deceptive
advertising practices, because MIR technology did not perform
as advertised from a technical or economic perspective;
LLNL/UC marketed its technology aggressively in the
private sector despite the existence of, and in unfair
competition with, TDC's allegedly superior technology;
LLNL/UC have intentionally misled the licensees of
MIR technology regarding the intellectual property dispute
between LLNL/UC and TDC;
High-ranking LLNL/UC and DOE personnel have been
aware of these issues since 1995 and have failed to take
appropriate measures to resolve them.
House Science Committee Democratic Staff (hereafter to be referred
to as Democratic Staff) have examined these allegations. Dozens of
technical and legal experts on all sides of the dispute were consulted,
including Thomas McEwan, LLNL/UC personnel, DOE personnel, TDC
personnel, and independent technical and legal experts, and tensof
thousands of pages of documents were reviewed.\6\ Several written and
verbal requests for information from LLNL/UC were made by Members of
Congress and Democratic Staff. LLNL/UC did respond to most requests for
information, but generally months after the information was requested,
often without providing specific or complete answers to the questions
asked, or with information that was later shown to be in conflict with
other information obtained by the Democratic Staff.
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\6\ Most LLNL/UC documents cited in this report were obtained from
sources other than LLNL/UC, most notably from a company named Geisis
which obtained its information only after litigating a California
Public Records Act (CPRA, the California equivalent of the Freedom of
Information Act) request regarding MIR with LLNL/UC. Ultimately, after
a 9-month legal dispute, the judge ordered the release of about 70,000
pages of LLNL/UC documents. LLNL/UC paid almost $70,000 to reimburse
Geisis' legal fees, in addition to the $150,000 LLNL/UC spent fighting
the request.
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Democratic Staff have obtained documents that support many of the
allegations made by TDC, and in addition have obtained information that
suggests further disturbing behavior on the part of LLNL/UC in the
development and commercialization of MIR:
LLNL/UC claimed, to its licensees and prospective
licensees of MIR technology, that MIR devices could be licensed
by the Federal Communications Commission (FCC), even though
LLNL/UC knew that the devices could not comply with FCC
regulations and could not be legally marketed. MIR licensees
may also have been encouraged to take deceptive measures to
gain approval from the FCC and other regulatory bodies;
There appear to be serious inadequacies in
technology transfer and patenting practices at LLNL/UC;
LLNL/UC misled Members of Congress and the public
about the genesis of early UWB radar work at LLNL;
LLNL/UC may have misled its MIR licensees in a
variety of ways, resulting in considerable financial damage to
many companies.
It is not the role of a Congressional committee to determine
whether the behavior alleged to have been committed by LLNL/UC should
incur any civil or criminal penalties. However, there is sufficient
information to suggest that LLNL/UC engaged in activities that do not
live up to the high professional and ethical standards expected of a
federally funded entity. Moreover, LLNL's status as a Federal
Laboratory caused some MIR licensees to trust assertions made by the
Laboratory to a greater extent than they might have had the licensor
been a private entity. In the words of one MIR licensee:
Perhaps RDS [Remote Data Systems, a MIR licensee] would have
been more diligent if the licensor had been a for-profit
corporation, but here the licensor was a U.S. Government funded
national laboratory with the credentials of having developed
revolutionary technologies in the past. Moreover, assurances by
LLNL/UC and the policy of limiting of the identity of other
licensees restricted the information to which RDS had
access.\7\
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\7\ November 10, 1998 letter from Mr. Bill Mason, attorney for RDS,
to Dr. Michal Freedhoff.
Not only does this behavior highlight serious problems with
technology transfer activities at LLNL/UC, it may also have resulted in
substantial economic damages to many U.S. small businesses at the hands
of a U.S. Government funded entity. TDC lost several valuable years of
the lifetime of its patents by investing significant time and money
into attempting to resolve the intellectual property dispute, and
claims to have lost tens of millions of dollars in government contracts
and licensing revenues. Dozens of companies who licensed MIR invested
many millions of dollars trying to develop and commercialize a
technology that LLNL/UC may have known was not theirs to license, not
legal for the licensees to market, and not capable of living up to its
advertisements. The following MIR licensees cite the substantial
economic damages their companies suffered at the hands of a U.S.
---------------------------------------------------------------------------
government-funded Laboratory.
In summary, had Pile Dynamics, Inc. had any knowledge either
that the patent for MIR was invalid or that the product would
never be FCC compliant under the current regulations, we would
not have wasted our money on a LLNL/UC license for Micropower
Impulse Radar nor on the subsequent 2 year wasted engineering
effort. This was a very costly process for us. The negative
effects of this have resulted in damage to our business.\8\
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\8\ December 17, 1998 letter form Mr. George Piscsalko, Pile
Dynamics, Inc., to Dr. Michal Freedhoff.
---------------------------------------------------------------------------
After expending these substantial resources, it became
apparent that the licensed technology was compromised and not
effective for the applications licensed, that the license
agreement did not provide meaningful legal protection, and that
the FCC certification would be significantly delayed or not be
forthcoming at all. * * * In summary, [the MIR licensee] has
found that LLNL business practices lacked integrity and
transparency. There were extensive delays, attempts to obtain
additional monies for the ``improvements' which would
supposedly make the technology work, and failures to provide
support. In general, there was a lack of communication and
cooperation by LLNL. Contrary to LLNL's indications that the
technology was reliable and functional, that the license would
provide valuable legal protection, and that it was highly
confident of obtaining FCC certification, none of these were
forthcoming.\9\
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\9\ December 22, 1998 email from the CEO of a MIR licensee company
to Dr. Michal Freedhoff.
The broader consequences of this case are of even greater concern--
namely, a lack of serious oversight of Laboratory technology transfer
activities by DOE and UC. Some MIR licensees contacted by Democratic
Staff have decided never to partner with a National Laboratory again,
highlighting a profound lack of trust in the U.S. Government in the
---------------------------------------------------------------------------
words of TDC:
As the son of a distinguished government research scientist,
and as someone who has personally benefited from NASA
Technology Transfer programs, I am greatly saddened that the
actions of LLNL-UC will bring unfair criticism to legitimate
government research scientists. LLNL-UC's actions could
undermine national support for important national research
goals and endanger future funding.\10\
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\10\ February 9, 1999 letter from Mr. Ralph Petroff, President and
CEO of TDC, to Dr. Michal Freedhoff.
The U.S. Congress and the DOE need to seriously and comprehensively
evaluate the technology transfer activities of the DOE Laboratories,
and take whatever legislative and/or administrative measures are
necessary to ensure that the Laboratories conduct these activities in
the future in a manner consistent with the highest possible
---------------------------------------------------------------------------
professional and ethical standards.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Etheridge. Yes, sir.
Chairman Sensenbrenner. I am prepared to support the
amendment. I think that there are some drafting problems that
we will be willing to work with you to resolve between now and
the time the bill goes to the Floor. I think it's important
that there be provisions in the statute that clearly states
what's in-bounds and what's out-of-bounds over at the national
labs. I think that this is a welcome addition to the bill.
With respect to the allegations that appeared in USA Today
a number of weeks ago on this issue, I just want the record to
state that right after they did that, I have written the Patent
Office asking for a speedy determination of the claims.
Mr. Etheridge. Very good.
Chairman Sensenbrenner. Because either the patent was
violated by the Department of Energy's labs or it was not. That
should not be a legislative determination. That should be a
determination that is made on the facts and the evidence by the
Patent Office, which is subject to judicial review if somebody
disagrees with their decision. That is the proper way to get a
final determination on that.
But I have asked the Patent Office not to tarry on this,
because I do think that it is important for them to make a
determination which we can review, as well as the parties to
this dispute. So I would hope that this amendment would be
adopted, and we'll work with you to try to improve upon it.
Mr. Etheridge. Thank you, Mr. Chairman. I would be happy to
make whatever adjustments we need, but I think it's important
that we get at least a policy in place.
Mrs. Morella. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Maryland, for
what purpose do you seek recognition?
Mrs. Morella. Thank you. To comment. To strike the last
word.
Chairman Sensenbrenner. The gentlewoman is recognized for
five minutes.
Mrs. Morella. Thank you. I want to commend Mr. Etheridge,
who is a member of our Technology Subcommittee, for his
amendment and his interest in furthering Federal technology
transfer. From what I understand, Mr. Chairman, from what you
have just said, you will not oppose the amendment in the hopes
that the technical aspects and other concerns can be addressed.
I agree. I will not oppose the amendment. But again, I make a
plea that some concerns be addressed.
I do want to--I believe it is important to note for the
record that the Department of Energy and a number of Federal
laboratories have significant concerns regarding the provisions
contained in the amendment before us. My office has been
contacted by Lawrence Livermore National Laboratory, Los Alamos
National Laboratory, and Sandia National Laboratories,
expressing their belief that the amendment, if adopted, could
significantly impact the public policy objectives of the
technology transfer programs that Congress has carefully
crafted over the past 19 years.
As the author of a number of technology transfer bills that
have been supported by this Committee, I have sought to pursue
greater collaboration between our Federal labs, private
industry, and universities, with the goal of encouraging
commercialization of taxpayer-funded technology in order to
assure public access and to provide a return on our R&D
investment to the American people.
The Department of Energy's concern that's also echoed by
other Federal laboratories is that this amendment would
fundamentally shift the nature of the relationship between the
laboratories and its industrial partners by potentially placing
the two in an adversarial relationship. Currently, the
Department, the laboratories, and their industrial partners
have equal access to all formal and informal mechanisms to
resolve conflicts. While there may be conflicts that arise in
negotiations over licenses and research and development
agreements, they are often resolved through compromises reached
in the process of achieving a mutual agreement, with most
disputes historically having been resolved informally.
The amendment's requirement that an industrial partner
would have the right to a binding non-judicial process with the
exception of finding a fault being placed on one of the parties
as a first attempt at resolving differences between the two
partners could significantly increase the number of challenges
to technology transfer related actions. The Federal labs
believe that this requirement could result in increased costs
of legal defense, create a hostile adversarial climate instead
of a climate of cooperative partnership, and potentially
prolong the process of resolution.
Additionally, the Federal labs believe that this amendment
would place them at a disadvantage in fulfilling their
obligations under existing laws to protect the public's
investment in the technology that they have developed by
limiting their opportunity to the appropriate legal recourse in
reaching disputes.
So I offer this in the hopes that as this bill is being
prepared for consideration by the House, and I understand the
motivation for the gentleman from North Carolina, that he will
be able to work out these concerns and others relating to
various ambiguities in his amendment with the Department of
Energy and the Federal laboratories. By successfullyaddressing
these concerns, I think that Mr. Etheridge could improve his amendment
and improve our federal technology transfer process.
Mr. Etheridge. Will the lady yield?
Mrs. Morella. I stand ready to work with him. Yes, indeed.
Mr. Etheridge. Thank you. I look forward to working with
you, Madam Chair, because we have had a chance to work on
transfer. I believe very strongly in it.
It bothers me that DOE has had the amendment almost three
weeks, and they chose not to even talk about it. I think they
are the ones who really ought to come forward and come forward
earlier so we can work them out. But I look forward to working
out the details so that it can be appropriate.
Really the issue that I want to get to is just make sure
that there is protection on both sides. We certainly don't want
to do anything to limit the transfer to the private sector,
because that's really where the action is.
Mrs. Morella. I understand your motivation and value your
feeling about it. I would agree with you too, that DOE should
have contacted you about that as they contacted me. Thank you.
I yield back, Mr. Chairman.
Mr. Doyle. Mr. Chairman.
Chairman Sensenbrenner. Who seeks recognition? The
gentleman from Pennsylvania, Mr. Doyle, for what purpose do you
seek recognition?
Mr. Doyle. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for
five minutes.
Mr. Doyle. Thank you, Mr. Chairman. I would just like to
say a few words on the amendment offered by my colleague, Mr.
Etheridge. This is a complex issue. I recognize that a lot of
work has been done on this issue by the Democratic and
Republican staffs and representatives at DOE. The work is
continuing. The intent of the amendment, as I understand it, is
to address specific abuses at DOE National Labs with regard to
technology transfer.
Mr. Chairman, I have the honor to work closely with DOE
personnel at a research in my district, the Federal Energy
Technology Center, which operates under different rules in
technology transfer and a host of other areas. For example,
Government-owned, Government-operated research facilities such
as the one in my district are subject to Department of Commerce
regulations on technology transfer, unlike the National Labs.
In short, I am aware that the work is continuing on this
amendment. I understand that the Administration has concerns at
this point, and everyone is working hard to address the issues
raised by Mr. Etheridge without creating additional barriers to
cooperation between the Department of Energy and industry.
We have an understanding that one of the changes that has
been agreed to in the current round of drafting is to exclude
Government-owned, Government-operated research facilities from
the restrictions imposed by the amendment. The grounds for this
are that the intent of the amendment is to address specific
problems at the National Labs with regard to technology
transfer, and because there are different regulations governing
technology transfer at these two different kinds of research
facilities.
With that understanding, and recognizing that the work is
continuing on the details, I intend to support the amendment
offered by my colleague, Mr. Etheridge. Thank you, Mr.
Chairman. I yield back the balance of my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment by the gentleman from North Carolina, Mr. Etheridge.
Those in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Number 7, by Mr. Costello. For what purpose do you seek
recognition?
Mr. Costello. Mr. Chairman, I have a replacement amendment
to my amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment. The staff will distribute it.
The Clerk. Amendment to H.R. 1656 offered by Mr. Costello.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The information follows:]
Amendment to H.R. 1656 Offered by Mr. Costello
Page 23, after line 14, insert the following new section:
SEC. 16. DEPARTMENT OF ENERGY REGULATIONS RELATING TO THE SAFEGUARDING
AND SECURITY OF RESTRICTED DATA.
(a) In General.--Chapter 18 of title I of the Atomic Energy Act of
1954 (42 U.S.C. 2271 et seq.) is amended by inserting after section
234A the following new section:
``Sec. 234B. Civil Monetary Penalties for Violations of Department of
Energy Regulations Regarding Security of Classified or Sensitive
Information or Data.--
``a. Any person who has entered into a contract or agreement with the
Department of Energy, or a subcontract or subagreement thereto, and who
violates (or whose employee violates) any applicable rule, regulation,
or order prescribed or otherwise issued by the Secretary pursuant to
this Act relating to the safeguarding or security of Restricted Data or
other classified or sensitive information shall be subject to a civil
penalty of not to exceed $100,000 for each such violation.
``b. The Secretary shall include in each contract with a contractor
of the Department provisions which provide an appropriate reduction in
the fees or amounts paid to the contractor under the contract in the
event of a violation by the contractor or contractor employee of any
rule, regulation, or order relating to the safeguarding or security of
Restricted Data or other classified or sensitive information. The
provisions shall specify various degrees of violations and the amount
of the reduction attributable to each degree of violation.
``c. The powers and limitations applicable to the assessment of civil
penalties under section 234A, except for subsection d. of that section,
shall apply to the assessment of civil penalties under this section.''.
(b) Clarifying Amendment.--The section heading of section 234A of
such Act (42 U.S.C. 2282a) is amended by inserting ``Safety'' before
``Regulations''.
(c) Clerical Amendment.--The table of sections for that Act is
amended by inserting after the item relating to section 234 the
following new items:
``Sec. 234A. Civil Monetary Penalties for Violations of Department of
Energy Safety Regulations.
``Sec. 234B. Civil Monetary Penalties for Violations of Department of
Energy Regulations Regarding Security of Classified or Sensitive
Information or Data.''.
Chairman Sensenbrenner. Will the gentleman from Illinois in
his five minutes explain the differences between this and
what's in the packet?
Mr. Costello. Mr. Chairman, first, last week as you well
know and the members of this Committee know, Secretary
Richardson testified before the Committee. He agreed that civil
fines should be charged for infractions of civil liabilities,
including not-for-profit contractors such as universities.
Therefore, I am offering the following amendment.
This amendment, one, ensures that any lab contractor who
violates the rules relating to the safeguards and security of
sensitive information of data will be accountable. Two, this is
similar to bipartisan language passed in the Senate Armed
Services Committee last week. Three, the amendment calls for a
new fine of up to $100,000 to be imposed on lab contractors in
the event that the contractor or contracting employee violates
any of the rules associated with keeping classified data
secure. Last, it will, in my judgment, provide lab contractors
and universities an incentive to protect our national security.
Without this amendment, Mr. Chairman, as you recognized and
stated so, I believe, before Secretary Richardson when he was
with the Committee last week, right now the private contractors
are held accountable, but contract employees and universities
are not. This amendment will rectify that problem and provide
an incentive, in my judgment, for universities and private
contractors to protect our national security.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Costello. I would be happy to yield, Mr. Chairman.
Chairman Sensenbrenner. I would like to commend the
gentleman for drafting this amendment. In fact, this amendment
is better than what is in the Senate version of the Department
of Defense authorization bill, because the Senate tied its
penalties to the limitations in the Price-Andersen Act, and had
a number of specific exemptions which included all of the
contractors at the major labs where sensitive and classified
material is dealt with. So it is something that appears to
impose a penalty on the contractor for breach of security, but
when you look at the fine print, it shows that it is not.
Your amendment I think does what the Secretary needs to
have. It is better than what the Senate did, but that doesn't
surprise me. So I am happy to support it.
Mr. Costello. Mr. Chairman, thank you. You have just
explained the difference between my amendment that was in the
packet and the replacement amendment. I want to thank you for
your support, and not only for supporting the amendment today,
but for your input to strengthen this amendment.
Chairman Sensenbrenner. Does the gentleman yield back the
balance of his time? Further discussion on Costello amendment
number 7? Hearing none, all those in favor of agreeing to the
amendment will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Number 8, by Mr. Calvert and Mr. Rohrabacher. For what
purpose does the gentleman from California seek recognition?
Mr. Calvert. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 1656 offered by Mr. Calvert
and Mr. Rohrabacher.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The information follows:]
Amendment to H.R. 1656 Offered by Mr. Calvert and Mr. Rohrabacher
Page 23, after line 14, insert the following new sections:
SEC. 16. WHISTLEBLOWER PROTECTION.
(a) Program.--The Secretary shall establish a program to ensure that
an employee of the Department, or a contractor employee, may not be
discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a person or entity referred to in subsection (b)
information which the employee or contractor employee reasonably
believes to provide direct and specific evidence of a violation
described in subsection (c).
(b) Covered Persons and Entities.--A person or entity referred to in
this subsection is the following:
(1) A Member of Congress.
(2) An employee of Congress who has an appropriate security
clearance for access to the information.
(3) The Inspector General of the Department.
(4) The Federal Bureau of Investigation.
(5) Any other element of the Federal Government designated by
the Secretary as authorized to receive information of the type
disclosed.
(c) Covered Violations.--A violation referred to in subsection (a)
is--
(1) a violation of law or Federal regulation;
(2) gross mismanagement, a gross waste of funds, or abuse of
authority; or
(3) a false statement to Congress on an issue of material
fact.
SEC. 17. INVESTIGATION AND REMEDIATION OF ALLEGED REPRISALS FOR
DISCLOSURE OF CERTAIN INFORMATION TO CONGRESS.
(a) Submittal of Allegations to Inspector General.--A Department
employee or contractor employee who believes that the employee has been
discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing information referred to in subsection (a) of section 16
in accordance with the provisions of that section may submit a
complaint relating to such action to the Inspector General of the
Department.
(b) Investigation.--(1) For each complaint submitted under subsection
(a), the Inspector General shall--
(A) determine whether or not the complaint is frivolous; and
(B) if the Inspector General determines the complaint is not
frivolous, conduct an investigation of the complaint.
(2) The Inspector General shall submit a report on each investigation
undertaken under paragraph (1)(B) to--
(A) the employee who submitted the complaint on which the
investigation is based;
(B) the contractor concerned, if any; and
(C) the Secretary.
(c) Remedial Actions.--(1) If the Secretary determines that an
employee has been subjected to an adverse personnel action referred to
in subsection (a) in contravention of the provisions of section 16(a),
the Secretary shall--
(A) in the case of a Department employee, take appropriate
actions to abate the action; or
(B) in the case of a contractor employee, order the
contractor concerned to take appropriate actions to abate the
action.
(2)(A) If a contractor fails to comply with an order issued under
paragraph (1)(B), the Secretary may file an action for enforcement of
the order in the appropriate United States district court.
(B) In any action brought under subparagraph (A), the court may grant
appropriate relief, including injunctive relief and compensatory and
exemplary damages.
(d) Quarterly Report.--(1) Not later than 30 days after the
commencement of each fiscal quarter, the Inspector General shall submit
to the Committee on Science and other relevant committees of the House
of Representatives, and to the Committee on Energy and Natural
Resources and other relevant committees of the Senate, a report on the
investigations undertaken under subsection (b)(1)(B) during the
preceding fiscal quarter, including a summary of the results of such
investigations.
(2) A report under paragraph (1) shall not identify or otherwise
provide any information on a person submitting a complaint under this
section without the consent of the person.
Chairman Sensenbrenner. The gentleman from California, Mr.
Calvert, is recognized for five minutes.
Mr. Calvert. Mr. Chairman, this amendment, the
whistleblower protection amendment, crafted along with my good
friend Mr. Rohrabacher, is an attempt to address certain
recently revealed problems at the Department of Energy. This
amendment establishes a program within DOE to ensure that an
employee or contractor shall not be retaliated against for
disclosing waste, fraud, and abuse or violations of the law by
the Department.
Furthermore, it calls upon the DOE Inspector General to
investigate allegations, and report back to employees and
contractors involved, and the Secretary. The Secretary is
required to undertake appropriate remedial action. The IG shall
also be required to submit a quarterly report of its
investigation to the House Committee on Science and other
appropriate committees.
I ask for the members of the Committee to support this
important amendment that will protect DOE employees. With that,
I yield time to my friend, Mr. Rohrabacher.
Mr. Rohrabacher. I am in strong support of this amendment.
Currently, at the Department of Energy, there is a controversy
swirling around one of the people that was identified by The
Wall Street Journal as a security official who was Director of
the Safeguards and Security Office at the Department of Energy.
During that time period, The Wall Street Journal stated that he
had identified lax security inside the Agency. His name is Ed
McCallum.
Unfortunately, Mr. McCallum, for being what is the
equivalent of a whistleblower, is now finding himself charged
with all kinds of charges and going through all kinds of
problems. This is what happens sometimes.
Now I cannot at this time say what are the facts behind
this because it needs to be looked into, because this man might
be guilty of some of the charges against him, or he might be
totally innocent. But we know that when you have someone who is
willing to speak up and point out mistakes that are going on
within an agency, that they are leaving themselves open to all
kinds of abuse, especially in terms of this national security
issue, which is controversial and one that has a great deal of
public attention now.
I think that it behooves all of us to make sure that if
people like Ed McCallum are being unjustly punished simply by
bringing out or bringing to attention to the Congress things
that should be taken care of at the agencies, that they not be
retaliated against. I believe that this, Mr. Calvert's
amendment will go a long way to sending the type of message
that we need to have sent, and also to protecting people or
watching out for the interests of our country.
With that said, I yield back my time to Mr. Calvert.
Mr. Calvert. I yield back the balance of my time.
Chairman Sensenbrenner. Further discussion? The gentleman
from Illinois, Mr. Costello.
Mr. Costello. Mr. Chairman, I strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for
five minutes.
Mr. Costello. Mr. Chairman, I want to commend Chairman
Calvert and my friend Mr. Rohrabacher for proposing this
amendment. I have read similar press reports, and we had
Secretary Richardson before the Committee last week. I think
Mr. Rohrabacher asked some important questions about
whistleblowing at the Department. I think the last thing we
want to do is to send the message out to employees at DOE or
any other Federal agency that if they come forward and identify
security lapses or other problems within their agency that they
will be retaliated against.
So I commend my colleagues for supporting or proposing this
amendment, and urge my colleagues to support it.
Mr. Rohrabacher. Will the gentleman yield?
Mr. Costello. I would be happy to yield?
Mr. Rohrabacher. Just for the record, I have every faith in
Bill Richardson. I think Bill Richardson is a terrific human
being. I am sorry that he didn't get over to the Department of
Energy earlier. He has my faith and confidence. But I do know
that the people under him have been working there, and maybe
they have made mistakes, and maybe they would report something
that wasn't true to him. So while I have every faith in Mr.
Richardson, we have to make sure that any of these charges that
are brought up, and especially the people who are making
charges, are protected so they know that they shouldn't just
keep their mouth shut.
With that, again, I don't want anybody to believe that we
don't have faith in Bill Richardson. He is a fine man. We
worked with him here in Congress. He is a man of his word. He
is a man of integrity.
Chairman Sensenbrenner. The question is on agreeing to the
amendment by the gentleman from California, Mr. Calvert. Those
in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments to the bill? If not, report
language and the gentleman from California, Mr. Calvert, has a
unanimous consent relative to tables.
Mr. Calvert. Thank you, Mr. Chairman. I ask unanimous
consent that the budget tables for H.R. 1656 be included in the
bill's report language, and that the staff be permitted to make
technical corrections. This is consistent with Mr. Hall's
unanimous consent offered yesterday on H.R. 1655. I ask my
colleagues to support its adoption. Thank you.
Chairman Sensenbrenner. Without objection, the gentleman's
unanimous consent is agreed to.
Further report language on this bill? If not, it is time to
make a motion to report the bill favorably.
The gentleman from Illinois, Mr. Costello.
Mr. Costello. Mr. Chairman, I move that the Committee
favorably report H.R. 1656, as amended, to the House with the
recommendation that the bill, as amended, do pass. Furthermore,
I move that staff be instructed to prepare the legislative
report and make necessary technical and conforming amendments,
and that the Chairman take all necessary steps to bring the
bill before the House for consideration.
Chairman Sensenbrenner. You have heard the motion. The
Chair notes the presence of a reporting quorum. Those in favor
of reporting the bill favorably will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it. The bill is
reported favorably.
Members will have two subsequent calendar days in which to
submit supplemental Minority dissenting or additional views.
Without objection, pursuant to clause 1 of rule XXII of the
rules of the House, the Committee authorizes the Chairman to
offer such motions as may be necessary in the House to go to
conference with the Senate on the bill. Without objection, the
staff is given the authority to make technical and conforming
changes to the bill, and without objection to this bill and the
two previous bills reported today, they will be reported in the
form of a single amendment in the nature of a substitute
reflecting all amendments that were adopted today. Without
objection, those unanimous consents are agreed to.