II

105TH CONGRESS

1ST SESSION S. 1226

To dismantle the Department of Commerce.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 26, 1997

Mr. ABRAHAM (for himself, Mr. BROWNBACK, Mr. KYL, Mr. HAGEL, Mr. ALLARD, Mr. FAIRCLOTH, Mr. HUTCHINSON, Mr. NICKLES, and Mr.

GRAMM) introduced the following bill; which was read twice and referred

to the Committee on Governmental Affairs

A BILL

To dismantle the Department of Commerce.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Department of Com5 merce Dismantling Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—ABOLISHMENT OF DEPARTMENT OF COMMERCE

Sec. 101. Definitions.

Sec. 102. Abolishment of Department of Commerce.

Sec. 103. Resolution and termination of Department functions.
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Sec. 104. Responsibilities of the Director of the Office of Management and

Budget.

Sec. 105. Personnel.

Sec. 106. Plans and reports.

Sec. 107. General Accounting Office audit and access to records.

Sec. 108. Conforming amendments.

Sec. 109. Privatization framework.

Sec. 110. Priority placement programs for Federal employees affected by a reduction in force attributable to this Act.

Sec. 111. Funding reductions for transferred functions.

TITLE II—DISPOSITION OF PROGRAMS, FUNCTIONS, AND

AGENCIES OF DEPARTMENT OF COMMERCE

Sec. 201. Economic development.

Sec. 202. Technology Administration.

Sec. 203. Reorganization of the Bureau of the Census and the Bureau of Economic Analysis.

Sec. 204. Terminated functions of National Telecommunications and Information Administration.

Sec. 205. Terminations and transfers.

Sec. 206. National Oceanic and Atmospheric Administration.

Sec. 207. Miscellaneous terminations; moratorium on program activities.

Sec. 208. Effective date.

TITLE III—ESTABLISHMENT OF UNITED STATES TRADE

ADMINISTRATION

Subtitle A—General Provisions

Sec. 301. Definitions.

Subtitle B—United States Trade Administration

CHAPTER 1—ESTABLISHMENT

Sec. 311. Establishment of the United States Trade Administration.

Sec. 312. Functions of the Trade Representative.

CHAPTER 2—OFFICERS

Sec. 321. Deputy United States Trade Representatives.

Sec. 322. Assistant Administrators.

Sec. 323. General Counsel.

Sec. 324. Inspector General.

Sec. 325. Chief Financial Officer.

CHAPTER 3—TRANSFERS TO THE TRADE ADMINISTRATION

Sec. 331. Office of the United States Trade Representative.

Sec. 332. Transfers from the Department of Commerce.

Sec. 333. Trade and Development Agency.

Sec. 334. Export-Import Bank.

Sec. 335. Overseas Private Investment Corporation.

Sec. 336. Consolidation of export promotion and financing activities.

Sec. 337. Functions related to textile agreements.

CHAPTER 4—ADMINISTRATIVE PROVISIONS
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Sec. 341. Personnel provisions.

Sec. 342. Delegation and assignment.

Sec. 343. Succession.

Sec. 344. Reorganization.

Sec. 345. Rules.

Sec. 346. Funds transfer.

Sec. 347. Contracts, grants, and cooperative agreements.

Sec. 348. Use of facilities.

Sec. 349. Gifts and bequests.

Sec. 350. Working capital fund.

Sec. 351. Service charges.

Sec. 352. Seal of office.

CHAPTER 5—RELATED AGENCIES

Sec. 361. Interagency trade organization.

Sec. 362. National Security Council.

Sec. 363. International Monetary Fund.

CHAPTER 6—CONFORMING AMENDMENTS

Sec. 371. Amendments to general provisions.

Sec. 372. Repeals.

Sec. 373. Conforming amendments relating to Executive Schedule positions.

CHAPTER 7—MISCELLANEOUS

Sec. 381. Effective date.

Sec. 382. Interim appointments.

Sec. 383. Funding reductions resulting from reorganization.

TITLE IV—UNITED STATES PATENT AND TRADEMARK

ORGANIZATION

Subtitle A—United States Patent and Trademark Organization

Sec. 401. Short title.

CHAPTER 1—ESTABLISHMENT OF THE UNITED STATES PATENT AND

TRADEMARK ORGANIZATION

Sec. 411. Establishment of the United States Patent and Trademark Organization as a Government corporation.

Sec. 412. Powers and duties.

Sec. 413. Organization and management.

Sec. 414. United States Patent Office.

Sec. 415. United States Trademark Office.

Sec. 416. Suits by and against the Organization.

Sec. 417. Funding.

Sec. 418. Transfers.

Sec. 419. Use of Organization name.

CHAPTER 2—EFFECTIVE DATE; TECHNICAL AMENDMENTS

Sec. 431. Effective date.

Sec. 432. Technical and conforming amendments.

Subtitle B—Early Publication of Patent Applications
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Sec. 441. Short title.

Sec. 442. Early publication.

Sec. 443. Time for claiming benefit of earlier filing date.

Sec. 444. Provisional rights.

Sec. 445. Prior art effect of published applications.

Sec. 446. Cost recovery for publication.

Sec. 447. Conforming changes.

Sec. 448. Last day of pendency of provisional application.

Sec. 449. Effective date.

Subtitle C—Patent Term Restoration

Sec. 451. Patent term restoration authority.

Sec. 452. Further examination of patent applications.

Sec. 453. Technical clarification.

Sec. 454. Effective date.

Subtitle D—Prior Domestic Commercial Use

Sec. 461. Short title.

Sec. 462. Defense to patent infringement based on prior domestic commercial

use.

Sec. 463. Effective date and applicability.

Subtitle E—Patent Reexamination Reform

Sec. 471. Short title.

Sec. 472. Definitions.

Sec. 473. Reexamination procedures.

Sec. 474. Conforming amendments.

Sec. 475. Report to Congress.

Sec. 476. Effective date.

Subtitle F—Miscellaneous Patent Provisions

Sec. 481. Provisional applications.

Sec. 482. International applications.

Sec. 483. Access to electronic patent information.

Sec. 484. Certain limitations on damages for patent infringement not applicable.

Sec. 485. Plant patents.

Sec. 486. Electronic filing.

Sec. 487. Study and report on biological deposits in support of biotechnology

patents.

TITLE V—STATISTICAL CONSOLIDATION

Subtitle A—General Provisions

Sec. 501. Findings.

Sec. 502. Sense of Congress.

Sec. 503. Definitions.

Subtitle B—Establishment of the Federal Statistical Service

Sec. 511. Establishment.

Sec. 512. Principal officers.

Sec. 513. Federal Council on Statistical Policy.
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Subtitle C—Transfers of Functions and Offices

Sec. 521. Transfer of the Bureau of Labor Statistics.

Sec. 522. Transfer date.

Subtitle D—Administrative Provisions

Sec. 531. Officers and employees.

Sec. 532. Experts and consultants.

Sec. 533. Acceptance of voluntary services.

Sec. 534. General authority.

Sec. 535. Delegation.

Sec. 536. Reorganization.

Sec. 537. Contracts.

Sec. 538. Regulations.

Sec. 539. Seal.

Sec. 540. Annual report.

Subtitle E—Miscellaneous

Sec. 541. Incidental transfers.

Sec. 542. References.

Sec. 543. Proposed changes in law.

Sec. 544. Transition.

Sec. 545. Interim appointments.

Sec. 546. Conforming amendments.

TITLE VI—MISCELLANEOUS PROVISIONS

Sec. 601. References.

Sec. 602. Exercise of authorities.

Sec. 603. Savings provisions.

Sec. 604. Transfer of assets.

Sec. 605. Delegation and assignment.

Sec. 606. Authority of Director of the Office of Management and Budget with

respect to functions transferred.

Sec. 607. Certain vesting of functions considered transfers.

Sec. 608. Availability of existing funds.

Sec. 609. Definitions.

Sec. 610. Conforming amendments.

1 TITLE I—ABOLISHMENT OF

2 DEPARTMENT OF COMMERCE

3 SEC. 101. DEFINITIONS.

4 For purposes of this title, the following definitions

5 apply:

6 (1) DEPARTMENT.—The term ‘‘Department’’

7 means the Department of Commerce.
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1 (2) DIRECTOR.—The term ‘‘Director’’ means

2 the Director of the Office of Management and Budg3 et.

4 (3) OFFICE.—The term ‘‘Office’’ means the Of5 fice of Management and Budget.

6 SEC. 102. ABOLISHMENT OF DEPARTMENT OF COMMERCE.

7 (a) ABOLISHMENT OF DEPARTMENT.—Effective on

8 the applicable date specified in subsection (c), the Depart9 ment of Commerce is abolished.

10 (b) TRANSFER OF DEPARTMENT FUNCTIONS TO OF11 FICE OF MANAGEMENT AND BUDGET.—Except as other12 wise provided in this Act, all functions that on the day

13 before the applicable date specified in subsection (c) are

14 authorized to be performed by the Secretary of Commerce,

15 any other officer or employee of the Department acting

16 in that capacity, or any agency or office of the Depart17 ment, are transferred to the Director effective on that

18 date.

19 (c) ABOLISHMENT DATE.—The date of abolishment

20 of the Department is the earlier of—

21 (1) the last day of the 6-month period begin22 ning on the date of enactment of this Act; or

23 (2) September 30, 1998.
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1 SEC. 103. RESOLUTION AND TERMINATION OF DEPART2 MENT FUNCTIONS.

3 (a) RESOLUTION OF FUNCTIONS.—During the period

4 beginning on the date of enactment of this Act and ending

5 on the date specified in subsection (c)—

6 (1) the disposition and resolution of functions

7 of the Department shall be completed in accordance

8 with this Act; and

9 (2) the Director shall resolve all functions that

10 are transferred to the Director under section 102(b)

11 and are not otherwise continued under this Act.

12 (b) TERMINATION OF FUNCTIONS.—All functions

13 that are transferred to the Director under section 102(b)

14 that are not otherwise continued by this Act shall termi15 nate on the date specified in subsection (c).

16 (c) FUNCTIONS TERMINATION DATE.—The date of

17 termination of functions referred to in subsections (a) and

18 (b) is the last day of the 3-year period beginning on the

19 date of enactment of this Act.

20 SEC. 104. RESPONSIBILITIES OF THE DIRECTOR OF THE OF21 FICE OF MANAGEMENT AND BUDGET.

22 (a) IN GENERAL.—The Director shall be responsible

23 for the implementation of this title, including—

24 (1) the administration, during the period speci25 fied in section 103(c), of all functions transferred to

26 the Director under section 102(b);
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1 (2) the administration, during the period speci2 fied in section 103(a), of any outstanding obligations

3 of the Federal Government under any programs ter4 minated by this Act; and

5 (3) taking any other action that may be nec6 essary to complete any outstanding affairs of the

7 Department before the end of the period specified in

8 section 103(a).

9 (b) DELEGATION OF FUNCTIONS.—

10 (1) IN GENERAL.—Except as provided in para11 graph (2), the Director may, to the extent that the

12 Director determines that such delegation is appro13 priate to carry out this title, delegate to any officer

14 of the Office or to any other Federal department or

15 agency head the performance of the functions of the

16 Director under this title.

17 (2) EXCEPTION.—The Director may not dele18 gate the planning and reporting responsibilities

19 under section 106.

20 (c) TRANSFER OF ASSETS AND PERSONNEL.—In

21 connection with any delegation of functions under sub22 section (b), the Director may transfer, within the Office

23 or to the department or agency concerned, such assets,

24 funds, personnel, records, and other property relating to
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1 the delegated function as the Director determines to be

2 appropriate.

3 (d) AUTHORITIES OF THE DIRECTOR.—For purposes

4 of performing the functions of the Director under this

5 title, the Director may—

6 (1) enter into contracts;

7 (2) employ experts and consultants in accord8 ance with section 3109 of title 5, United States

9 Code, at rates for individuals not to exceed the per

10 diem rate equivalent to the rate for level IV of the

11 Executive Schedule; and

12 (3) utilize, on a reimbursable basis, the services,

13 facilities, and personnel of other Federal agencies.

14 SEC. 105. PERSONNEL.

15 Effective on the date specified in section 102(c), there

16 is transferred to the Office any individual who—

17 (1) on the day before that date, was an officer

18 or employee of the Department; and

19 (2) in the capacity as an officer or employee of

20 the Department, performed functions that are trans21 ferred to the Director under section 102(b).

22 SEC. 106. PLANS AND REPORTS.

23 (a) INITIAL IMPLEMENTATION PLAN.—

24 (1) IN GENERAL.—Not later than 90 days after

25 the date of enactment of this Act, the Director shall
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1 submit a report to Congress and the President that

2 specifies actions that have been taken and actions

3 that have not been taken but are necessary—

4 (A) to resolve the programs and functions

5 terminated in this Act on the date of enactment

6 of this Act; and

7 (B) to implement the additional transfers

8 and other program dispositions provided for in

9 this Act.

10 (2) CONTENTS.—The report in paragraph (1)

11 shall include—

12 (A) recommendations for any legislation

13 necessary for the implementation of the

14 abolishments, transfers, terminations, and other

15 dispositions of programs and functions under

16 this Act; and

17 (B) a description of actions planned and

18 taken to comply with limitations imposed by

19 this Act on spending for continued functions.

20 (b) ANNUAL STATUS REPORTS.—At the end of the

21 first full fiscal year following the date of enactment of this

22 Act and at the end of each of the 2 following fiscal years,

23 the Director shall submit a report, through the President,

24 to Congress that—
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1 (1) specifies the status and progress of actions

2 taken to implement this Act and to wind up the af3 fairs of the Department of Commerce by the func4 tions termination date specified in section 103(c);

5 (2) includes any recommendations for legisla6 tion that the Director considers appropriate; and

7 (3) describes actions taken to comply with limi8 tations imposed by this Act on spending for contin9 ued functions.

10 (c) GAO REPORTS.—Not later than 60 days after the

11 issuance of a report under subsection (a) or (b), the Comp12 troller General of the United States shall submit to Con13 gress a report that—

14 (1) evaluates the report; and

15 (2) includes any recommendations the Comp16 troller General considers appropriate.

17 SEC. 107. GENERAL ACCOUNTING OFFICE AUDIT AND AC18 CESS TO RECORDS.

19 (a) AUDIT OF PERSONS PERFORMING FUNCTIONS

20 PURSUANT TO THIS ACT.—All agencies, corporations, or21 ganizations, and other persons of any description that,

22 under the authority of the United States, perform any

23 function or activity covered under this Act shall be subject

24 to an audit by the Comptroller General of the United

25 States with respect to that function or activity.
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1 (b) AUDIT OF PERSONS PROVIDING CERTAIN GOODS

2 OR SERVICES.—All persons and organizations that, by

3 contract, grant, or otherwise, provide goods or services to,

4 or receive financial assistance from, any agency or other

5 person performing functions or activities covered under

6 this Act shall be subject to an audit by the Comptroller

7 General of the United States with respect to the provision

8 of such goods or services or the receipt of such financial

9 assistance.

10 (c) PROVISIONS APPLICABLE TO AUDITS UNDER

11 THIS SECTION.—

12 (1) NATURE AND SCOPE OF AUDIT.—The

13 Comptroller General of the United States shall de14 termine the nature, scope, terms, and conditions of

15 audits conducted under this section.

16 (2) COORDINATION WITH OTHER PROVISIONS

17 OF LAW.—The authority of the Comptroller General

18 of the United States under this section shall be in

19 addition to any audit authority available to the

20 Comptroller General under any other provision of

21 law (including any other provision of this Act).

22 (3) RIGHTS OF ACCESS, EXAMINATION, AND

23 COPYING.—The Comptroller General of the United

24 States, and any duly authorized representative of the

25 Comptroller General, shall have access to, and the
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1 right to examine and copy, all records and other re2 corded information in any form, and to examine any

3 property within the possession or control of any

4 agency or person that—

5 (A) is subject to audit under this section;

6 and

7 (B) the Comptroller General considers rel8 evant to an audit conducted under this section.

9 (4) ENFORCEMENT OF RIGHT OF ACCESS.—The

10 right of access of the Comptroller General of the

11 United States to information under this section shall

12 be enforceable under section 716 of title 31, United

13 States Code.

14 (5) MAINTENANCE OF CONFIDENTIAL

15 RECORDS.—Section 716(e) of title 31, United States

16 Code, shall apply to information obtained by the

17 Comptroller General under this section.

18 SEC. 108. CONFORMING AMENDMENTS.

19 (a) PRESIDENTIAL SUCCESSION.—Section 19(d)(1)

20 of title 3, United States Code, is amended by striking

21 ‘‘Secretary of Commerce,’’.

22 (b) EXECUTIVE DEPARTMENTS.—Section 101 of title

23 5, United States Code, is amended by striking the follow24 ing item:

25 ‘‘The Department of Commerce.’’.
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1 (c) SECRETARY’S COMPENSATION.—Section 5312 of

2 title 5, United States Code, is amended by striking the

3 following item:

4 ‘‘Secretary of Commerce.’’.

5 (d) COMPENSATION FOR POSITIONS AT LEVEL III.—

6 Section 5314 of title 5, United States Code, is amended—

7 (1) by striking the following item:

8 ‘‘Under Secretary of Commerce, Under Sec9 retary of Commerce for Economic Affairs, Under

10 Secretary of Commerce for Export Administration

11 and Under Secretary of Commerce for Travel and

12 Tourism.’’;

13 (2) by striking the following item:

14 ‘‘Under Secretary of Commerce for Oceans and

15 Atmosphere, the incumbent of which also serves as

16 Administrator of the National Oceanic and Atmos17 pheric Administration.’’; and

18 (3) by striking the following item:

19 ‘‘Under Secretary of Commerce for Tech20 nology.’’.

21 (e) COMPENSATION FOR POSITIONS AT LEVEL IV.—

22 Section 5315 of title 5, United States Code, is amended—

23 (1) by striking the following item:

24 ‘‘Assistant Secretaries of Commerce (11).’’;

25 (2) by striking the following item:
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1 ‘‘General Counsel of the Department of Com2 merce.’’;

3 (3) by striking the following item:

4 ‘‘Assistant Secretary of Commerce for Oceans

5 and Atmosphere, the incumbent of which also serves

6 as Deputy Administrator of the National Oceanic

7 and Atmospheric Administration.’’;

8 (4) by striking the following item:

9 ‘‘Director, National Institute of Standards and

10 Technology, Department of Commerce.’’;

11 (5) by striking the following item:

12 ‘‘Inspector General, Department of Com13 merce.’’;

14 (6) by striking the following item:

15 ‘‘Chief Financial Officer, Department of Com16 merce.’’;

17 (7) by striking the item relating to the Director

18 of the Bureau of the Census and inserting ‘‘Director

19 of the Census, Federal Statistical Service’’; and

20 (8) by striking the following item:

21 ‘‘Chief Information Officer, Department of

22 Commerce.’’.

23 (f) COMPENSATION FOR POSITIONS AT LEVEL V.—

24 Section 5316 of title 5, United States Code, is amended—

25 (1) by striking the following item:
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1 ‘‘Director, United States Travel Service, De2 partment of Commerce.’’; and

3 (2) by striking the following item:

4 ‘‘National Export Expansion Coordinator, De5 partment of Commerce.’’.

6 (g) INSPECTOR GENERAL ACT OF 1978.—The In7 spector General Act of 1978 (5 U.S.C. App.) is amend8 ed—

9 (1) in section 9(a)(1)—

10 (A) by striking subparagraph (B); and

11 (B) by redesignating subparagraphs (C)

12 through (W) as subparagraphs (B) through

13 (V), respectively;

14 (2) in section 11(1), by striking ‘‘Commerce,’’;

15 and

16 (3) in section 11(2), by striking ‘‘Commerce,’’.

17 (h) EFFECTIVE DATE.—The amendments made by

18 this section shall be effective on the applicable date speci19 fied in section 102(c).

20 SEC. 109. PRIVATIZATION FRAMEWORK.

21 (a) IN GENERAL.—

22 (1) PRIVATIZATION.—Not later than 18 months

23 after a function designated for privatization under

24 title II is transferred to the Office, the Director shall

25 privatize that function. The Director shall pursue
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1 such forms of privatization arrangements as the Di2 rector considers appropriate to best serve the inter3 ests of the United States.

4 (2) REPORT.—If, by the date specified in para5 graph (1), the Director is unable to privatize a func6 tion, the Director shall submit a report that states

7 that inability to Congress, together with rec8 ommendations concerning the appropriate disposi9 tion of the function involved and the assets of the

10 function.

11 (b) ROLE OF THE FEDERAL GOVERNMENT.—No pri12 vatization arrangement made under subsection (a) shall

13 include any role for, or accountability to, the Federal Gov14 ernment unless the role or accountability is necessary to

15 ensure the continued accomplishment of a specific Federal

16 objective. The Federal role should be the minimum role

17 necessary to accomplish Federal objectives.

18 (c) ASSETS.—In privatizing a function, the Director

19 shall take any action necessary—

20 (1) to preserve the value of the assets of a func21 tion during the period during which the Office holds

22 such assets; and

23 (2) to continue the performance of the function

24 to the extent necessary—

25 (A) to preserve the value of the assets; or
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1 (B) to accomplish core Federal objectives

2 (as that term is defined by the Director).

3 SEC. 110. PRIORITY PLACEMENT PROGRAMS FOR FEDERAL

4 EMPLOYEES AFFECTED BY A REDUCTION IN

5 FORCE ATTRIBUTABLE TO THIS ACT.

6 (a) IN GENERAL.—Subchapter I of chapter 33 of title

7 5, United States Code, is amended by inserting after sec8 tion 3329 the following:

9 ‘‘§ 3329a. Priority placement programs for employees

10 affected by a reduction in force attrib11 utable to the Department of Commerce

12 Dismantling Act

13 ‘‘(a)(1) For the purpose of this section, the term ‘af14 fected agency’—

15 ‘‘(A) except as provided in subparagraph (B),

16 means an Executive agency to which personnel are

17 transferred in connection with a transfer of function

18 under the Department of Commerce Dismantling

19 Act, and

20 ‘‘(B) with respect to employees of the Depart21 ment of Commerce in general administration, the In22 spector General’s office, or the General Counsel’s of23 fice, or who provided overhead support to other com24 ponents of the Department on a reimbursable basis,

25 means all agencies to which functions of those em-
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1 ployees are transferred under the Department of

2 Commerce Dismantling Act.

3 ‘‘(2) This section applies with respect to any reduc4 tion in force that—

5 ‘‘(A) occurs within 12 months after the date of

6 enactment of this section; and

7 ‘‘(B) is due to—

8 ‘‘(i) the termination of any function of the

9 Department of Commerce; or

10 ‘‘(ii) the agency’s having excess personnel

11 as a result of a transfer of function described

12 in paragraph (1), as determined by—

13 ‘‘(I) the Director of the Office of

14 Management and Budget, in the case of a

15 function transferred to the Office of Man16 agement and Budget; or

17 ‘‘(II) the head of the agency, in the

18 case of any function transferred to an

19 agency other than the Office of Manage20 ment and Budget.

21 ‘‘(b) As soon as practicable after the date of enact22 ment of this section, each affected agency shall establish

23 an agencywide priority placement program to facilitate

24 employment placement for employees who, due to a reduc25 tion in force described in subsection (a)(2)—
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1 ‘‘(1) are scheduled to be separated from service;

2 or

3 ‘‘(2) are separated from service.

4 ‘‘(c)(1) Each agencywide priority placement program

5 shall include provisions under which a vacant position

6 shall not be filled by the appointment or transfer of any

7 individual from outside of that agency if—

8 ‘‘(A) an individual described in paragraph (2)

9 who is qualified for the position is available for the

10 position at the time of the occurrence of the va11 cancy; and

12 ‘‘(B) the position—

13 ‘‘(i) is at the same grade (or pay level) or

14 not more than 1 grade (or pay level) below that

15 of the position last held by such individual be16 fore placement in the new position; and

17 ‘‘(ii) is within the same commuting area as

18 the individual’s last-held position (as referred to

19 in clause (i)) or residence.

20 ‘‘(2) For purposes of an agencywide priority place21 ment program, an individual shall be considered to be de22 scribed in this paragraph if the most recent performance

23 evaluation of the individual was at least fully successful

24 (or the equivalent), and such individual is either—
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1 ‘‘(A) an employee of the agency who is sched2 uled to be separated, as described in subsection

3 (b)(1); or

4 ‘‘(B) an individual who became a former em5 ployee of the agency as a result of a separation, as

6 described in subsection (b)(2).

7 ‘‘(d)(1) Nothing in this section shall affect any prior8 ity placement program of the Department of Defense that

9 is in operation as of the date of enactment of this section.

10 ‘‘(2) Nothing in this section shall impair any place11 ment program within an agency subject to a reduction in

12 force resulting from a cause other than the Department

13 of Commerce Dismantling Act.

14 ‘‘(e) An individual shall cease to be eligible to partici15 pate in a program under this section on the earlier of—

16 ‘‘(1) the conclusion of the 12-month period be17 ginning on the date on which the individual first be18 came eligible to participate under subsection (c)(2);

19 or

20 ‘‘(2) the date on which the individual declines

21 a bona fide offer (or if the individual does not act

22 on the offer, the last date on which the individual

23 could accept the offer) from the affected agency of

24 a position described in subsection (c)(1)(B).’’.
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1 (b) CONFORMING AMENDMENT.—The chapter analy2 sis for chapter 33 of title 5, United States Code, is amend3 ed by inserting after the item relating to section 3329 the

4 following:

‘‘3329a. Priority placement programs for employees affected by a reduction in

force attributable to the Department of Commerce Dismantling

Act.’’.

5 SEC. 111. FUNDING REDUCTIONS FOR TRANSFERRED

6 FUNCTIONS.

7 (a) FUNDING REDUCTIONS.—Except as provided in

8 subsection (b), the total amount authorized to be appro9 priated by the United States for accounts related to the

10 performance of functions transferred under this Act to the

11 Director or to the Office from the Department, or any of

12 its officers or components, shall not exceed—

13 (1) for the first fiscal year that begins after the

14 date specified in section 102(c), 75 percent of the

15 total amount appropriated to the Department for

16 the performance of those functions for fiscal year

17 1997; and

18 (2) for the second fiscal year that begins after

19 the date specified in section 102(c) and for each fis20 cal year thereafter, 65 percent of the total amount

21 appropriated to the Department for the performance

22 of those functions for fiscal year 1997.

23 (b) EXCEPTION.—Subsection (a) shall not apply to

24 obligations or expenditures incurred as a direct con-
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1 sequence of the termination, transfer, or other disposition

2 of functions described in subsection (a) pursuant to this

3 Act.

4 (c) RULE OF CONSTRUCTION.—This section shall su5 persede any other provision of law that does not explic6 itly—

7 (1) refer to this section; and

8 (2) create an exemption from this section.

9 (d) RESPONSIBILITIES OF THE DIRECTOR.—The Di10 rector shall—

11 (1) ensure compliance with the requirements of

12 this section; and

13 (2) include in each report under subsections (a)

14 and (b) of section 106 a description of actions taken

15 to comply with the requirements referred to in para16 graph (1).

17 TITLE II—DISPOSITION OF PRO18 GRAMS, FUNCTIONS, AND

19 AGENCIES OF DEPARTMENT

20 OF COMMERCE

21 SEC. 201. ECONOMIC DEVELOPMENT.

22 (a) TERMINATED FUNCTIONS.—The Public Works

23 and Economic Development Act of 1965 (42 U.S.C. 3121

24 et seq.) is repealed.
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1 (b) TRANSFER OF FINANCIAL OBLIGATIONS OWED

2 TO THE DEPARTMENT.—There are transferred to the Sec3 retary of the Treasury the loans, notes, bonds, debentures,

4 securities, and other financial obligations owned by the

5 Department of Commerce under the Public Works and

6 Economic Development Act of 1965, together with all as7 sets or other rights (including security interests) incident

8 thereto, and all liabilities related thereto. There are as9 signed to the Secretary of the Treasury the functions,

10 powers, and abilities vested in or delegated to the Sec11 retary of Commerce or the Department of Commerce to

12 manage, service, collect, sell, dispose of, or otherwise real13 ize proceeds on obligations owed to the Department of

14 Commerce under authority of such Act with respect to any

15 loans, obligations, or guarantees made or issued by the

16 Department of Commerce pursuant to such Act.

17 (c) AUDIT.—Not later than 18 months after the date

18 of enactment of this Act, the Comptroller General shall—

19 (1) conduct an audit of all grants made or is20 sued by the Department of Commerce under the

21 Public Works and Economic Development Act of

22 1965 in fiscal year 1997 and all loans, obligations,

23 and guarantees; and

24 (2) transmit to Congress a report on the results

25 of the audit referred to in paragraph (1).
25

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1 SEC. 202. TECHNOLOGY ADMINISTRATION.

2 (a) TECHNOLOGY ADMINISTRATION.—

3 (1) GENERAL RULE.—Except as otherwise pro4 vided in this section, the Technology Administration

5 of the Department of Commerce is terminated.

6 (2) OFFICE OF TECHNOLOGY POLICY.—The Of7 fice of Technology Policy of the Department of Com8 merce is terminated.

9 (b) NATIONAL INSTITUTE OF STANDARDS AND

10 TECHNOLOGY.—

11 (1) REDESIGNATION.—The National Institute

12 of Standards and Technology of the Department of

13 Commerce is hereby redesignated as the National

14 Bureau of Standards, and all references to the Na15 tional Institute of Standards and Technology in

16 Federal law or regulations are deemed to be ref17 erences to the National Bureau of Standards.

18 (2) GENERAL RULE.—The National Bureau of

19 Standards (in this subsection referred to as the

20 ‘‘Bureau’’) is transferred from the Department of

21 Commerce to the National Oceanic and Atmospheric

22 Administration, established in section 206.

23 (3) FUNCTIONS OF DIRECTOR.—Except as oth24 erwise provided in this section or section 207, upon

25 the transfer under paragraph (2), the Director of

26 the Bureau shall perform all functions relating to
26

•S 1226 IS

1 the Bureau that, immediately before the effective

2 date specified in section 208(a), were functions of

3 the Secretary of Commerce or the Under Secretary

4 of Commerce for Technology.

5 (c) NATIONAL TECHNICAL INFORMATION SERV6 ICE.—

7 (1) PRIVATIZATION.—All functions of the Na8 tional Technical Information Service of the Depart9 ment of Commerce are transferred to the Director of

10 the Office of Management and Budget for privatiza11 tion in accordance with section 109 by the date spec12 ified in subsection (a) of that section.

13 (2) TRANSFER TO NATIONAL OCEANIC AND AT14 MOSPHERIC ADMINISTRATION.—If, by the date speci15 fied in section 109(a), an appropriate arrangement

16 for the privatization of functions of the National

17 Technical Information Service under paragraph (1)

18 has not been made, the National Technical Informa19 tion Service shall be transferred to the National

20 Oceanic and Atmospheric Administration established

21 in section 206.

22 (3) GOVERNMENT CORPORATION.—If, by the

23 date specified in section 109(a), an appropriate ar24 rangement for the privatization of functions of the

25 National Technical Information Service under para-
27

•S 1226 IS

1 graph (1) has not been made, the Director of the

2 Office of Management and Budget shall, not later

3 than 180 days after the date specified in section

4 109(a), submit to Congress recommended legislation

5 to establish the National Technical Information

6 Service as a wholly owned Government corporation.

7 The recommended legislation shall provide for the

8 corporation to perform substantially the same func9 tions that, as of the date of enactment of this Act,

10 are performed by the National Technical Informa11 tion Service.

12 (4) FUNDING.—No funds are authorized to be

13 appropriated for the National Technical Information

14 Service or any successor corporation established pur15 suant to recommended legislation under paragraph

16 (3).

17 (d) AMENDMENTS.—

18 (1) NATIONAL INSTITUTE OF STANDARDS AND

19 TECHNOLOGY ACT.—The National Institute of

20 Standards and Technology Act (15 U.S.C. 271 et

21 seq.) is amended—

22 (A) in section 2(b), by striking paragraph

23 (1) and redesignating paragraphs (2) through

24 (11) as paragraphs (1) through (10), respec25 tively;
28

•S 1226 IS

1 (B) in section 2(d), by striking ‘‘, including

2 the programs established under sections 25, 26,

3 and 28 of this Act’’;

4 (C) in section 10—

5 (i) in the section heading, by striking

6 ‘‘Advanced’’ and inserting ‘‘Standards

7 and’’; and

8 (ii) in subsection (a), by striking ‘‘Ad9 vanced’’ and inserting ‘‘Standards and’’;

10 and

11 (D) by striking sections 24, 25, 26, and

12 28.

13 (2) STEVENSON-WYDLER TECHNOLOGY INNOVA14 TION ACT OF 1980.—The Stevenson-Wydler Tech15 nology Innovation Act of 1980 (15 U.S.C. 3701 et

16 seq.) is amended—

17 (A) in section 3, by striking paragraph (2)

18 and redesignating paragraphs (3) through (5)

19 as paragraphs (2) through (4), respectively;

20 (B) in section 4, by striking paragraphs

21 (1), (4), and (13) and redesignating paragraphs

22 (2), (3), (5), (6), (7), (8), (9), (10), (11), and

23 (12) as paragraphs (1) through (10), respec24 tively;

25 (C) by striking sections 5 through 10;
29

•S 1226 IS

1 (D) in section 11—

2 (i) in subsection (c)(3), by striking ‘‘,

3 the Federal Laboratory Consortium for

4 Technology Transfer,’’;

5 (ii) in subsection (d)—

6 (I) in paragraph (2), by striking

7 ‘‘and the Federal Laboratory Consor8 tium for Technology Transfer’’; and

9 (II) in paragraph (3), by striking

10 ‘‘, and refer such requests’’ and all

11 that follows through ‘‘available to the

12 Service’’; and

13 (iii) by striking subsection (e); and

14 (E) in section 17—

15 (i) in subsection (c)—

16 (I) in paragraph (1), by striking

17 ‘‘Subject to paragraph (2), separate’’

18 and inserting ‘‘Separate’’; and

19 (II) by striking paragraph (2)

20 and redesignating paragraph (3) as

21 paragraph (2);

22 (ii) in subsection (f), by striking

23 ‘‘funds to carry out’’ and inserting ‘‘funds

24 only to pay the salary of the Director of
30

•S 1226 IS

1 the Office of Quality Programs, who shall

2 be responsible for carrying out’’; and

3 (iii) by adding at the end the follow4 ing new subsection:

5 ‘‘(h) VOLUNTARY AND UNCOMPENSATED SERV6 ICES.—The Director of the Office of Quality Programs

7 may accept voluntary and uncompensated services not8 withstanding the provisions of section 1342 of title 31,

9 United States Code.’’.

10 (3) MISCELLANEOUS AMENDMENTS.—Section 3

11 of Public Law 94–168 (15 U.S.C. 205b) is amend12 ed—

13 (A) by striking paragraph (2);

14 (B) by redesignating paragraphs (3) and

15 (4) as paragraphs (2) and (3), respectively; and

16 (C) in paragraph (3), as redesignated by

17 subparagraph (B) of this paragraph, by striking

18 ‘‘in nonbusiness activities’’.

19 SEC. 203. REORGANIZATION OF THE BUREAU OF THE CEN20 SUS AND THE BUREAU OF ECONOMIC ANALY21 SIS.

22 (a) TRANSFER OF FUNCTIONS.—All functions of the

23 Secretary of Commerce relating to the Bureau of the Cen24 sus and the Bureau of Economic Analysis of the Depart-
31

•S 1226 IS

1 ment of Commerce are transferred to the Federal Statis2 tical Service established under title V.

3 (b) TRANSFER OF BUREAUS.—The Bureau of the

4 Census and Bureau of Economic Analysis of the Depart5 ment of Commerce are transferred to the Federal Statis6 tical Service established under title V.

7 (c) REFERENCES TO SECRETARY.—Section 1(2) of

8 the title 13, United States Code, is amended by striking

9 ‘‘Secretary of Commerce’’ and inserting ‘‘Administrator of

10 the Federal Statistical Service’’.

11 (d) REFERENCES TO DEPARTMENT.—Section 2 of

12 title 13, United States Code, is amended by striking ‘‘De13 partment of Commerce’’ and inserting ‘‘Federal Statistical

14 Service’’.

15 (e) GENERAL REFERENCES TO SECRETARY AND DE16 PARTMENT.—Title 13, United States Code, is further

17 amended—

18 (1) by striking ‘‘Secretary of Commerce’’ each

19 place it appears and inserting ‘‘Administrator of the

20 Federal Statistical Service’’; and

21 (2) by striking ‘‘Department of Commerce’’

22 each place it appears and inserting ‘‘Federal Statis23 tical Service’’.
32

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1 SEC. 204. TERMINATED FUNCTIONS OF NATIONAL TELE2 COMMUNICATIONS AND INFORMATION AD3 MINISTRATION.

4 (a) REPEALS.—The following provisions of law are

5 repealed:

6 (1) Subpart A of part IV of title III of the

7 Communications Act of 1934 (47 U.S.C. 390 et

8 seq.), relating to assistance for public telecommuni9 cations facilities.

10 (2) Subpart B of part IV of title III of the

11 Communications Act of 1934 (47 U.S.C. 394), relat12 ing to the Endowment for Children’s Educational

13 Television.

14 (3) Subpart C of part IV of title III of the

15 Communications Act of 1934 (47 U.S.C. 395), relat16 ing to Telecommunications Demonstration grants.

17 (b) DISPOSAL OF NATIONAL TELECOMMUNICATIONS

18 AND INFORMATION ADMINISTRATION LABORATORIES.—

19 (1) PRIVATIZATION.—All laboratories of the

20 National Telecommunications and Information Ad21 ministration are transferred to the Director of the

22 Office of Management and Budget for privatization

23 in accordance with section 109 by the date specified

24 in subsection (a) of that section.

25 (2) TRANSFER TO NATIONAL OCEANIC AND AT26 MOSPHERIC ADMINISTRATION.—If an appropriate
33

•S 1226 IS

1 arrangement for the privatization of functions of the

2 laboratories of the National Telecommunications and

3 Information Administration under paragraph (1) has

4 not been made by the date specified in section

5 109(a), the laboratories of the National Tele6 communications and Information Administration

7 shall be transferred as of the end of such period to

8 the National Oceanic and Atmospheric Administra9 tion established in section 206.

10 (3) TRANSFER OF FUNCTIONS.—The functions

11 of the National Telecommunications and Informa12 tion Administration concerning research and analy13 sis of the electromagnetic spectrum described in sec14 tion 5112(b) of the Omnibus Trade and Competi15 tiveness Act of 1988 (15 U.S.C. 1532) are trans16 ferred to the Director of the National Bureau of

17 Standards.

18 (c) TRANSFER OF NATIONAL TELECOMMUNICATIONS

19 AND INFORMATION ADMINISTRATION FUNCTIONS.—

20 (1) TRANSFER TO FEDERAL COMMUNICATIONS

21 COMMISSION.—Except as provided in subsection

22 (b)(2), the functions of the National Telecommuni23 cations and Information Administration, and of the

24 Secretary of Commerce and the Assistant Secretary

25 for Communications and Information of the Depart-
34

•S 1226 IS

1 ment of Commerce with respect to the National

2 Telecommunications and Information Administra3 tion, are transferred to the Federal Communications

4 Commission. The functions transferred by this para5 graph shall be placed in an organizational compo6 nent that is independent from all Federal Commu7 nications Commission functions directly related to

8 the negotiation of trade agreements. Such functions

9 shall be supervised by an individual whose principal

10 professional expertise is in the area of telecommuni11 cations. The position to which such individual is ap12 pointed shall be graded at a level sufficiently high to

13 attract a highly qualified individual, while ensuring

14 autonomy in the conduct of such functions from all

15 activities and influences associated with trade nego16 tiations.

17 (2) REFERENCES.—References in any provision

18 of law (including the National Telecommunications

19 and Information Administration Organization Act)

20 to the Secretary of Commerce or the Assistant Sec21 retary for Communications and Information of the

22 Department of Commerce—

23 (A) with respect to a function vested pur24 suant to this section in the Federal Commu-
35

•S 1226 IS

1 nications Commission shall be deemed to refer

2 to the United States Trade Representative; and

3 (B) with respect to a function vested pur4 suant to this section in the Director of the Na5 tional Bureau of Standards shall be deemed to

6 refer to the Director of the National Bureau of

7 Standards.

8 (3) TERMINATION OF NTIA.—Effective on the

9 applicable date specified in section 102(c), the Na10 tional Telecommunications and Information Admin11 istration is abolished.

12 SEC. 205. TERMINATIONS AND TRANSFERS.

13 (a) TERMINATION OF MISCELLANEOUS RESEARCH

14 PROGRAMS AND ACCOUNTS.—

15 (1) IN GENERAL.—No funds may be appro16 priated for any fiscal year for the following pro17 grams and accounts of the National Oceanic and At18 mospheric Administration:

19 (A) The National Undersea Research Pro20 gram.

21 (B) The Fleet Modernization Program.

22 (C) The Charleston, South Carolina, Spe23 cial Management Plan.

24 (D) Chesapeake Bay Observation Buoys

25 (as of September 30, 1996).
36

•S 1226 IS

1 (E) Federal/State Weather Modification

2 Grants.

3 (F) The Southeast Storm Research Ac4 count.

5 (G) The Southeast United States Carib6 bean Fisheries Oceanographic Coordinated In7 vestigations Program.

8 (H) National Institute for Environmental

9 Renewal.

10 (I) The Lake Champlain Study.

11 (J) The Maine Marine Research Center.

12 (K) The South Carolina Cooperative Geo13 detic Survey Account.

14 (L) Pacific Island Technical Assistance.

15 (M) Sea Grant Oyster Disease Account.

16 (O) National Weather Service non-Federal,

17 non-wildfire Weather Service.

18 (P) National Weather Service Regional Cli19 mate Centers.

20 (Q) National Weather Service Samoa

21 Weather Forecast Office Repair and Upgrade

22 Account.

23 (R) Dissemination of Weather Charts (Ma24 rine Facsimile Service).
37

•S 1226 IS

1 (S) The Climate and Global Change Ac2 count.

3 (T) The Global Learning and Observations

4 to Benefit the Environment Program.

5 (U) Mussel watch.

6 (2) REPEALS.—The following provisions of law

7 are repealed:

8 (A) The Ocean Thermal Conversion Act of

9 1980 (42 U.S.C. 9101 et seq.).

10 (B) Title IV of the Marine Protection, Re11 search, and Sanctuaries Act of 1972 (16 U.S.C.

12 1447 et seq.).

13 (C) Title V of the Marine Protection, Re14 search, and Sanctuaries Act of 1972 (33 U.S.C.

15 2801 et seq.).

16 (D) The Great Lakes Fish and Wildlife

17 Tissue Bank Act (16 U.S.C. 943 et seq.).

18 (E) Section 208(c) of the National Sea

19 Grant College Program Act (33 U.S.C.

20 1127(c)).

21 (F) Section 305 of the Coastal Zone Man22 agement Act of 1972 (16 U.S.C. 1454) is re23 pealed effective October 1, 2000.

24 (G) The NOAA Fleet Modernization Act

25 (33 U.S.C. 891 et seq.).
38

•S 1226 IS

1 (H) Public Law 85–342 (72 Stat. 35; 16

2 U.S.C. 778 et seq.), relating to fish research

3 and experimentation.

4 (I) The first section of the Act of August

5 8, 1956 (70 Stat. 1126, chapter 1039; 16

6 U.S.C. 760d), relating to grants for commercial

7 fishing education.

8 (J) Public Law 86–359 (16 U.S.C. 760e et

9 seq.), relating to the study of migratory marine

10 gamefish.

11 (b) AERONAUTICAL MAPPING AND CHARTING.—

12 (1) IN GENERAL.—The aeronautical mapping

13 and charting functions of the National Oceanic and

14 Atmospheric Administration are transferred to the

15 Transportation Administrative Services Center at

16 the Department of Transportation.

17 (2) TERMINATION OF CERTAIN FUNCTIONS.—

18 The Transportation Administrative Services Center

19 shall terminate any functions transferred under

20 paragraph (1) that are performed by the private sec21 tor or obtain by contract from the private sector

22 those activities that are commercial in nature and

23 necessary to carry out inherently governmental func24 tions.
39

•S 1226 IS

1 (3) FUNCTIONS REQUESTED BY FEDERAL AVIA2 TION ADMINISTRATION.—

3 (A) IN GENERAL.—Notwithstanding para4 graph (2), the Director of the Transportation

5 Administrative Services Center (referred to in

6 this paragraph as the ‘‘Director’’) shall carry

7 out such aeronautical charting functions as may

8 be requested by the Administrator of the Fed9 eral Aviation Administration.

10 (B) AERONAUTICAL MAPPING.—In carry11 ing out aeronautical mapping functions re12 quested by the Administrator under subpara13 graph (A), the Director shall in such manner

14 and including such information as the Adminis15 trator determines is necessary for, or will pro16 mote, the safe and efficient movement of air17 craft in air commerce—

18 (i) publish and distribute to the public

19 and to the Administrator any aeronautical

20 charts requested by the Administrator; and

21 (ii) provide to the Administrator such

22 other air traffic control products and serv23 ices as may be requested by the Adminis24 trator.

25 (4) CONTINUING APPLICABILITY.—
40

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1 (A) IN GENERAL.—Except as provided in

2 subparagraph (B), the requirements of section

3 1307 of title 44, United States Code, shall con4 tinue to apply with respect to all aeronautical

5 products created or published by the Director in

6 carrying out the functions transferred to the

7 Director under this paragraph.

8 (B) EXCEPTIONS.—The prices for products

9 referred to in subparagraph (A) shall be estab10 lished jointly by the Director and the Secretary

11 of Transportation on an annual basis.

12 (c) TRANSFER OF MAPPING, CHARTING, AND GEOD13 ESY FUNCTIONS TO THE ARMY CORPS OF ENGINEERS.—

14 (1) IN GENERAL.—Except as provided in sub15 section (b), there are transferred to the Army Corps

16 of Engineers the functions relating to mapping,

17 charting, and geodesy authorized under the Act of

18 August 7, 1947 (61 Stat. 787, chapter 504; 33

19 U.S.C. 883a).

20 (2) TERMINATION OF CERTAIN FUNCTIONS.—

21 The Secretary of the Army, acting through the Chief

22 of Engineers of Army Corps of Engineers, shall ter23 minate any functions transferred under paragraph

24 (1) that are performed by the private sector or ob25 tain by contract from the private sector those func-
41

•S 1226 IS

1 tions that are commercial in nature and are nec2 essary to carry out inherently governmental func3 tions.

4 (d) NATIONAL ENVIRONMENTAL SATELLITE, DATA,

5 AND INFORMATION.—There are transferred to the Na6 tional Oceanic and Atmospheric Administration estab7 lished in section 206 all functions and assets of the Na8 tional Oceanic and Atmospheric Administration that on

9 the date immediately before the effective date of this sec10 tion are authorized to be performed by the National Envi11 ronmental Satellite, Data, and Information System.

12 (e) OCEANIC AND ATMOSPHERIC ADMINISTRA13 TION.—There are transferred to the National Oceanic and

14 Atmospheric Administration established in section 206 all

15 functions and assets of the National Oceanic and Atmos16 pheric Administration (including global programs) that on

17 the date immediately before the effective date of this sec18 tion were authorized to be performed by the Office of Oce19 anic and Atmospheric Research.

20 (f) NATIONAL WEATHER SERVICE.—

21 (1) IN GENERAL.—There are transferred to the

22 National Oceanic and Atmospheric Administration

23 established in section 206 all functions and assets of

24 the National Oceanic and Atmospheric Administra25 tion that on the date immediately before the effec-
42

•S 1226 IS

1 tive date of this section are authorized to be per2 formed by the National Weather Service.

3 (2) DUTIES.—Except as provided in paragraph

4 (3), to protect life and property and enhance the na5 tional economy, the Administrator of Oceans and At6 mosphere, through the National Weather Service,

7 shall be responsible for the following:

8 (A) Forecasts. (The Administrator shall

9 serve as the sole and official sources of weather

10 and flood warnings for the Federal Govern11 ment.)

12 (B) The issuance of storm warnings.

13 (C) The collection, exchange, and distribu14 tion of meteorological, hydrological, climatic,

15 and oceanographic data and information.

16 (D) The preparation of hydro-meteorologi17 cal guidance and core forecast information.

18 (3) LIMITATIONS ON COMPETITION.—The Na19 tional Weather Service may not compete, or assist

20 other entities in competing, with the private sector

21 to provide a service in any case in which that service

22 is provided by a private sector commercial enterprise

23 or a private sector commercial enterprise is able to

24 provide that service, unless—
43

•S 1226 IS

1 (A) the Administrator of Oceans and At2 mosphere finds that private sector commercial

3 enterprises are unwilling or unable to provide

4 the service; and

5 (B) the Administrator of Oceans and At6 mosphere finds that the service provides vital

7 weather warnings and forecasts for the protec8 tion of lives and property of the general public.

9 (4) ORGANIC ACT AMENDMENTS.—The Act en10 titled ‘‘An Act to increase the efficiency and reduce

11 the expenses of the Signal Corps of the Army, and

12 to transfer the Weather Bureau to the Department

13 of Agriculture’’, approved October 1, 1890 (26 Stat.

14 653, chapter 1266) is amended—

15 (A) by striking section 3 (15 U.S.C. 313);

16 and

17 (B) in section 9 (15 U.S.C. 317), by strik18 ing ‘‘Department of’’ and all that follows there19 after and inserting ‘‘National Oceanic and At20 mospheric Administration.’’.

21 (5) REPEAL.—Sections 706 and 707 of the

22 Weather Service Modernization Act (15 U.S.C. 313

23 note) are repealed.
44

•S 1226 IS

1 (6) CONFORMING AMENDMENTS.—The Weather

2 Service Modernization Act (15 U.S.C. 313 note) is

3 amended—

4 (A) in section 702, by striking paragraph

5 (3) and redesignating paragraphs (4) through

6 (10) as paragraphs (3) through (9), respec7 tively; and

8 (B) in section 703—

9 (i) by striking ‘‘(a) NATIONAL IMPLE10 MENTATION PLAN.—’’;

11 (ii) by striking paragraph (3) and re12 designating paragraphs (4) through (6) as

13 paragraphs (3) through (5), respectively;

14 and

15 (iii) by striking subsections (b) and

16 (c).

17 (g) TERMINATION OF THE NATIONAL OCEANIC AND

18 ATMOSPHERIC ADMINISTRATION CORPS OF COMMIS19 SIONED OFFICERS.—

20 (1) NUMBER OF OFFICERS.—Notwithstanding

21 section 8 of the Act of June 3, 1948 (62 Stat. 298,

22 chapter 390; 33 U.S.C. 853g), no funding may be

23 provided for a commissioned officer of the National

24 Oceanic and Atmospheric Administration Corps

25 after fiscal year 1997 and no individual may serve
45

•S 1226 IS

1 as such a commissioned officer after fiscal year

2 1997.

3 (2) SEPARATION PAY.—

4 (A) IN GENERAL.—Commissioned officers

5 may be separated from the active list of the Na6 tional Oceanic and Atmospheric Administration.

7 Any officer so separated because of paragraph

8 (1) shall, subject to subparagraph (B) and the

9 availability of appropriations, be eligible for sep10 aration pay under section 9 of the Act of June

11 3, 1948 (62 Stat. 299, chapter 390; 33 U.S.C.

12 853h) to the same extent as if such officer had

13 been separated under section 8 of such Act (62

14 Stat. 298, chapter 390; 33 U.S.C. 853g).

15 (B) TRANSFEREES.—Any officer who,

16 under paragraph (4), transfers to another of

17 the uniformed services or becomes employed in

18 a civil service position shall not be eligible for

19 separation pay under this paragraph.

20 (C) REPAYMENT.—

21 (i) IN GENERAL.—Any officer who re22 ceives separation pay under this paragraph

23 shall be required to repay the amount re24 ceived if, within 1 year after the date of

25 the separation on which the payment is
46

•S 1226 IS

1 based, such officer is reemployed in a civil

2 service position in the National Oceanic

3 and Atmospheric Administration, the du4 ties of which position would formerly have

5 been performed by a commissioned officer,

6 as determined by the Administrator of

7 Oceans and Atmosphere.

8 (ii) LUMP SUM.—A repayment under

9 this subparagraph shall be made in a lump

10 sum or in such installments as the Admin11 istrator may specify.

12 (D) REPAYMENTS.—

13 (i) IN GENERAL.—In the case of any

14 officer who makes a repayment under sub15 paragraph (C)—

16 (I) the National Oceanic and At17 mospheric Administration shall pay

18 into the Civil Service Retirement and

19 Disability Fund, on such officer’s be20 half, any deposit required under sec21 tion 8422(e)(1) of title 5, United

22 States Code, with respect to any prior

23 service performed by that individual

24 as such an officer; and
47

•S 1226 IS

1 (II) if the amount paid under

2 subclause (I) is less than the amount

3 of the repayment under subparagraph

4 (C), the National Oceanic and Atmos5 pheric Administration shall pay into

6 the Government Securities Investment

7 Fund (established under section

8 8438(b)(1)(A) of title 5, United

9 States Code), on such individual’s be10 half, an amount equal to the dif11 ference.

12 (ii) APPLICABILITY.—The provisions

13 of paragraph (5)(C)(iv) shall apply with re14 spect to any contribution to the Thrift

15 Savings Plan made under clause (ii).

16 (3) PRIORITY PLACEMENT PROGRAM.—A prior17 ity placement program similar to the programs de18 scribed in section 3329a of title 5, United States

19 Code (as added by section 110 of this Act) shall be

20 established by the National Oceanic and Atmos21 pheric Administration to assist commissioned offi22 cers who are separated from the active list of the

23 National Oceanic and Atmospheric Administration

24 because of paragraph (1).

25 (4) TRANSFER.—
48

•S 1226 IS

1 (A) TRANSFERS TO ARMED FORCES.—Sub2 ject to the approval of the Secretary of Defense

3 and under terms and conditions specified by the

4 Secretary, commissioned officers subject to

5 paragraph (1) may transfer to the Armed

6 Forces under section 716 of title 10, United

7 States Code.

8 (B) TRANSFERS TO UNITED STATES COAST

9 GUARD.—Subject to the approval of the Sec10 retary of Transportation and under terms and

11 conditions specified by the Secretary, commis12 sioned officers subject to paragraph (1) may

13 transfer to the United States Coast Guard

14 under section 716 of title 10, United States

15 Code.

16 (C) TRANSFERS TO NATIONAL OCEANIC

17 AND ATMOSPHERIC ADMINISTRATION.—Subject

18 to the approval of the Administrator of Oceans

19 and Atmosphere and under terms and condi20 tions specified by that Administrator, commis21 sioned officers subject to paragraph (1) may be

22 employed by the National Oceanic and Atmos23 pheric Administration as members of the civil

24 service.

25 (5) RETIREMENT PROVISIONS.—
49

•S 1226 IS

1 (A) IN GENERAL.—For commissioned offi2 cers who transfer under paragraph (4)(A) to

3 the Armed Forces, the National Oceanic and

4 Atmospheric Administration shall pay into the

5 Department of Defense Military Retirement

6 Fund an amount, to be calculated by the Sec7 retary of Defense in consultation with the Sec8 retary of the Treasury, equal to the actuarial

9 present value of any retired or retainer pay they

10 will draw upon retirement, including full credit

11 for service in the National Oceanic and Atmos12 pheric Administration (referred to in this title

13 as the ‘‘NOAA Corps’’). Any payment under

14 this subparagraph shall, for purposes of para15 graph (2) of section 206(g), be considered to be

16 an expenditure described in such paragraph.

17 (B) OTHER TRANSFERS.—For commis18 sioned officers who transfer under paragraph

19 (4)(B) to the United States Coast Guard, full

20 credit for service in the NOAA Corps shall be

21 given for purposes of any annuity or other simi22 lar benefit under the retirement system for

23 members of the United States Coast Guard, en24 titlement to which is based on the separation of

25 such officer.
50

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1 (C) PAYMENT TO CERTAIN COMMISSIONED

2 OFFICERS WHO TRANSFER TO CIVIL SERVICE

3 POSITIONS.—(i) For a commissioned officer

4 who becomes employed in a civil service position

5 pursuant to paragraph (4)(C) and thereupon

6 becomes subject to the Federal Employees’ Re7 tirement System, the National Oceanic and At8 mospheric Administration shall pay, on such of9 ficer’s behalf—

10 (I) into the Civil Service Retirement

11 and Disability Fund, the amounts required

12 under clause (ii); and

13 (II) into the Government Securities

14 Investment Fund, the amount required

15 under clause (iii).

16 (ii)(I) The amount required under this

17 subclause is the amount of any deposit required

18 under section 8422(e)(1) of title 5, United

19 States Code, with respect to any prior service

20 performed by the individual as a commissioned

21 officer of the National Oceanic and Atmos22 pheric Administration.

23 (II) To determine the amount required

24 under this subclause, first determine, for each

25 year of service with respect to which the deposit
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1 under subclause (I) relates, the product of the

2 normal-cost percentage for such year (as deter3 mined under the last sentence of this subclause)

4 multiplied by basic pay received by the individ5 ual for any such service performed in such year.

6 Second, take the sum of the amounts deter7 mined for the respective years under the first

8 sentence. Finally, subtract from such sum the

9 amount of the deposit under subclause (I). For

10 purposes of the first sentence, the normal-cost

11 percentage for any year shall be as determined

12 for such year under the provisions of section

13 8423(a)(1) of title 5, United States Code, ex14 cept that, in the case of any year before the

15 first year for which any normal-cost percentage

16 was determined under such provisions, the nor17 mal-cost percentage for such first year shall be

18 used.

19 (iii) The amount required under this clause

20 is the amount by which the separation pay to

21 which the officer would have been entitled

22 under the second sentence of paragraph (2)(A)

23 (assuming the conditions for receiving such sep24 aration pay have been met) exceeds the amount

25 of the deposit under clause (ii)(I), if at all.
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1 (iv)(I) Any contribution made under this

2 subparagraph to the Thrift Savings Plan shall

3 not be subject to any otherwise applicable limi4 tation on contributions contained in the Inter5 nal Revenue Code of 1986, and shall not be

6 taken into account in applying any such limita7 tion to other contributions or benefits under the

8 Thrift Savings Plan, with respect to the year in

9 which the contribution is made.

10 (II) A plan referred to in subclause (I)

11 shall not be treated as failing to meet any non12 discrimination requirement by reason of the

13 making of such contribution.

14 (6) REPEALS.—

15 (A) IN GENERAL.—The following provi16 sions of law are repealed:

17 (i) The Coast and Geodetic Survey

18 Commissioned Officers’ Act of 1948 (33

19 U.S.C. 853a–853o, 853p–853u).

20 (ii) Section 5 of the Act of February

21 16, 1929 (45 Stat. 1187, chapter 221; 33

22 U.S.C. 852a).

23 (iii) The Act of January 19, 1942 (56

24 Stat. 6, chapter 6).
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1 (iv) Section 9(c) of Public Law 87–

2 649 (76 Stat. 495).

3 (v) Section 16 of the Act of May 22,

4 1917 (40 Stat. 87, chapter 20; 33 U.S.C.

5 854).

6 (vi) The Act of December 3, 1942 (56

7 Stat. 1038, chapter 670).

8 (vii) Sections 1 through 5 of Public

9 Law 91–621 (33 U.S.C. 857–1 through

10 857–5).

11 (viii) Section 3 of the Act of August

12 10, 1956 (70A Stat. 619, chapter 1041; 33

13 U.S.C. 857a).

14 (ix) Section 11 of the Act of May 18,

15 1920 (41 Stat. 603, chapter 190; 33

16 U.S.C. 864).

17 (x) The Act of July 22, 1947 (61

18 Stat. 400, chapter 286; 33 U.S.C. 873 and

19 874).

20 (xi) The Act of August 3, 1956 (70

21 Stat. 988, chapter 932; 33 U.S.C. 875 and

22 876).

23 (B) RULE OF CONSTRUCTION.—No repeal

24 under this subparagraph shall affect any annu25 ity or other similar benefit payable, under any
54

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1 provision of law so repealed, based on the sepa2 ration of any individual from the NOAA Corps

3 on or before September 30, 2000. Any author4 ity exercised by the Secretary of Commerce or

5 the designee of the Secretary with respect to

6 any such benefits shall be exercised by the Ad7 ministrator of Oceans and Atmosphere, and any

8 authorization of appropriations relating to those

9 benefits, which is in effect as of September 30,

10 2000, shall be considered to have remained in

11 effect.

12 (C) EFFECTIVE DATE OF REPEALS.—The

13 effective date of the repeals under subpara14 graph (A) shall be October 1, 2000.

15 (D) APPLICABILITY OF RETIREMENT

16 LAWS.—

17 (i) IN GENERAL.—All laws relating to

18 the retirement of commissioned officers of

19 the Navy shall apply to commissioned offi20 cers of the former Commissioned Officers

21 Corps of the National Oceanic and Atmos22 pheric Administration and its predecessors.

23 (ii) ACTIVE MILITARY SERVICE.—Ac24 tive service of officers of the former Com25 missioned Officers Corps of the National
55

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1 Oceanic and Atmospheric Administration

2 and its predecessors who have retired from

3 the Commissioned Officers Corps shall be

4 deemed to be active military service in the

5 United States Navy for purposes of all

6 rights, privileges, immunities, and benefits

7 provided to retired commissioned officers

8 of the Navy by the laws and regulations of

9 the United States and any agency thereof.

10 In the Administration of those laws (in11 cluding regulations) with respect to retired

12 officers of the former Commissioned Offi13 cers Corps of the National Oceanic and At14 mospheric Administration and its prede15 cessors, the authority of the Secretary of

16 the Navy shall be exercised by the Admin17 istrator of Oceans and Atmosphere.

18 (iii) ITS PREDECESSORS DEFINED.—

19 For purposes of this subparagraph, the

20 term ‘‘its predecessors’’ means the former

21 Commissioned Officers Corps of the Envi22 ronmental Science Services Administration

23 and the former Commissioned Officers

24 Corps of the Coast and Geodetic Survey.
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1 (7) CREDITABILITY OF NATIONAL OCEANIC AND

2 ATMOSPHERIC ADMINISTRATION SERVICE FOR PUR3 POSES RELATING TO REDUCTIONS IN FORCE.—A

4 commissioned officer who is separated from the ac5 tive list of the National Oceanic and Atmospheric

6 Administration or its successor by reason of para7 graph (1) shall, for purposes of any subsequent re8 duction in force, receive credit for any period of

9 service performed as such an officer before separa10 tion from such list to the same extent and in the

11 same manner as if the period had been a period of

12 active service in the Armed Forces.

13 (8) ABOLITION.—Effective September 30,

14 2000, the Office of the National Oceanic and Atmos15 pheric Administration Corps of Operations or its

16 successor and the Commissioned Personnel Center

17 are abolished.

18 (g) NATIONAL OCEANIC AND ATMOSPHERIC ADMIN19 ISTRATION FLEET.—

20 (1) SERVICE CONTRACTS.—Notwithstanding

21 any other provision of law, the Administrator of

22 Oceans and Atmosphere shall enter into contracts,

23 including multiyear contracts, subject to paragraph

24 (3), for the use of vessels to conduct oceanographic

25 research and fisheries research, monitoring, enforce-
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1 ment, and management, and to acquire other data

2 necessary to carry out the missions of the National

3 Oceanic and Atmospheric Administration. The Ad4 ministrator of Oceans and Atmosphere shall enter

5 into these contracts unless—

6 (A) the cost of the contract is more than

7 the cost (including the cost of vessel operation,

8 maintenance, and all personnel) to the National

9 Oceanic and Atmospheric Administration of ob10 taining those services on vessels of the National

11 Oceanic and Atmospheric Administration;

12 (B) the contract is for a period greater

13 than 7 years; or

14 (C) the data is acquired through a vessel

15 agreement pursuant to paragraph (4).

16 (2) VESSELS.—The Administrator of Oceans

17 and Atmosphere may not enter into any contract for

18 the construction, lease-purchase, upgrade, or service

19 life extension of any vessel.

20 (3) MULTIYEAR CONTRACTS.—

21 (A) IN GENERAL.—Subject to subpara22 graphs (B) and (C), and notwithstanding sec23 tion 1341 of title 31, United States Code, and

24 section 11 of title 41, United States Code, the
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1 Administrator of Oceans and Atmosphere may

2 acquire data under multiyear contracts.

3 (B) REQUIRED FINDINGS.—The Adminis4 trator of Oceans and Atmosphere may not enter

5 into a contract pursuant to this paragraph un6 less the Administrator finds, with respect to

7 that contract, that there is a reasonable expec8 tation that throughout the contemplated con9 tract period the Administrator will request from

10 Congress funding for the contract at the level

11 required to avoid the termination of that con12 tract.

13 (C) REQUIRED PROVISIONS.—The Admin14 istrator of Oceans and Atmosphere may not

15 enter into a contract under this paragraph un16 less the contract includes—

17 (i) a provision under which the obliga18 tion of the United States to make pay19 ments under the contract for any fiscal

20 year is subject to the availability of appro21 priations provided in advance for those

22 payments;

23 (ii) a provision that specifies the term

24 of effectiveness of the contract; and
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•S 1226 IS

1 (iii) appropriate provisions under

2 which, in case of any termination of the

3 contract before the end of the term speci4 fied pursuant to clause (ii), the United

5 States shall only be liable for the lesser

6 of—

7 (I) an amount specified in the

8 contract for such a termination; or

9 (II) amounts that were appro10 priated before the date of the termi11 nation for the performance of the con12 tract or for procurement of the type

13 of acquisition covered by the contract

14 and are unobligated on the date of the

15 termination.

16 (4) VESSEL AGREEMENTS.—The Administrator

17 of Oceans and Atmosphere—

18 (A) shall, if appropriate, use excess capac19 ity of University National Oceanographic Lab20 oratory System vessels; and

21 (B) may enter into memoranda of agree22 ment with the operators of the vessels referred

23 to in subparagraph (A) to carry out the require24 ment under that subparagraph.
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1 (5) TRANSFER OF EXCESS VESSELS.—The Ad2 ministrator of Oceans and Atmosphere shall transfer

3 any vessel that weighs more than 1,500 gross tons

4 that are excess to the needs of the National Oceanic

5 and Atmospheric Administration to the National De6 fense Reserve Fleet. Notwithstanding any other pro7 vision of law, these vessels may be scrapped in ac8 cordance with section 510(i) of the Merchant Marine

9 Act, 1936 (46 U.S.C. App. 1160(i)).

10 (i) NATIONAL MARINE FISHERIES SERVICE.—There

11 are transferred to the National Oceanic and Atmospheric

12 Administration all functions that on the day before the

13 effective date of this section are authorized by law to be

14 performed by the National Marine Fisheries Service.

15 (h) NATIONAL OCEAN SERVICE.—Except as other16 wise provided in this Act, there are transferred to the Na17 tional Oceanic and Atmospheric Administration estab18 lished under section 206 all functions and assets of the

19 National Oceanic and Atmospheric Administration that on

20 the date immediately before the effective date of this sec21 tion are authorized to be performed by the National Ocean

22 Service (including the Coastal Ocean Program).

23 (k) TRANSFER OF COASTAL NONPOINT POLLUTION

24 CONTROL FUNCTIONS.—There are transferred to the Ad25 ministrator of the Environmental Protection Agency the
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1 functions under section 6217 of the Omnibus Budget Rec2 onciliation Act of 1990 (16 U.S.C. 1455b) that on the day

3 before the effective date of this section are vested in the

4 Secretary of Commerce.

5 SEC. 206. NATIONAL OCEANIC AND ATMOSPHERIC ADMIN6 ISTRATION.

7 (a) ESTABLISHMENT.—

8 (1) IN GENERAL.—There is established as an

9 independent agency in the executive branch the Na10 tional Oceanic and Atmospheric Administration (in

11 this section referred to as ‘‘NOAA’’). NOAA, and all

12 functions and offices transferred to NOAA under

13 this Act, shall be administered under the supervision

14 and direction of an Administrator of Oceans and At15 mosphere.

16 (2) ADMINISTRATOR OF OCEANS AND ATMOS17 PHERE.—The Administrator of Oceans and Atmos18 phere shall—

19 (A) be appointed by the President, by and

20 with the advice and consent of the Senate; and

21 (B) receive basic pay at the rate payable

22 for level II of the Executive Schedule under sec23 tion 5313 of title 5, United States Code.

24 (3) FUNCTIONS.—The Administrator of Oceans

25 and Atmosphere shall perform the functions per-
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1 formed by the Administrator of the National Oce2 anic and Atmospheric Administration, except as oth3 erwise provided in this Act.

4 (b) PRINCIPAL OFFICER.—There shall be in NOAA,

5 on the transfer of functions and offices under this Act,

6 a Director of the National Bureau of Standards, who—

7 (1) shall be appointed by the President, by and

8 with the advice and consent of the Senate; and

9 (2) shall receive basic pay at the rate payable

10 for level IV of the Executive Schedule under section

11 5315 of title 5, United States Code.

12 (c) ADDITIONAL OFFICERS.—

13 (1) IN GENERAL.—There shall be in NOAA—

14 (A) a Chief Financial Officer, to be ap15 pointed by the President, by and with the ad16 vice and consent of the Senate;

17 (B) a Chief of External Affairs, to be ap18 pointed by the President, by and with the ad19 vice and consent of the Senate;

20 (C) a General Counsel, to be appointed by

21 the President, by and with the advice and con22 sent of the Senate; and

23 (D) an Inspector General, to be appointed

24 in accordance with the Inspector General Act of

25 1978 (5 U.S.C. App.).
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1 (2) COMPENSATION.—Each Officer appointed

2 under this subsection shall receive basic pay at the

3 rate payable for level IV of the Executive Schedule

4 under section 5315 of title 5, United States Code.

5 (d) TRANSFER OF FUNCTIONS AND OFFICES.—Ex6 cept as otherwise provided in this Act, there are trans7 ferred to NOAA—

8 (1) the functions and offices of the National

9 Oceanic and Atmospheric Administration, as pro10 vided in section 205;

11 (2) the National Bureau of Standards, along

12 with its functions and offices, as provided in section

13 202; and

14 (3) the Office of Space Commerce, along with

15 its functions and offices.

16 (e) ELIMINATION OF POSITIONS.—The Adminis17 trator of Oceans and Atmosphere may eliminate positions

18 that are no longer necessary because of the termination

19 of functions under this section and sections 202 and 205.

20 (f) AGENCY TERMINATIONS.—

21 (1) TERMINATIONS.—

22 (A) IN GENERAL.—On the date specified

23 in section 208(a), the following shall terminate:

24 (i) The Office of the Deputy Adminis25 trator and Assistant Secretary of the Na-
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1 tional Oceanic and Atmospheric Adminis2 tration.

3 (ii) The Office of the Deputy Under

4 Secretary of the National Oceanic and At5 mospheric Administration.

6 (iii) The Office of the Chief Scientist

7 of the National Oceanic and Atmospheric

8 Administration.

9 (iv) The position of Deputy Assistant

10 Secretary for Oceans and Atmosphere.

11 (v) The position of Deputy Assistant

12 Secretary for International Affairs.

13 (vi) Any office of the National Oce14 anic and Atmospheric Administration or

15 the National Bureau of Standards whose

16 primary purpose is to perform high per17 formance computing communications, leg18 islative, personnel, public relations, budget,

19 constituent, intergovernmental, inter20 national, policy and strategic planning,

21 sustainable development, administrative, fi22 nancial, educational, legal and coordination

23 functions.
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1 (vii) The position of Associate Direc2 tor of the National Institute of Standards

3 and Technology.

4 (B) REQUIREMENT.—The functions re5 ferred to in subparagraph (A)(vi) shall be per6 formed only by officers described in subsection

7 (c).

8 (2) TERMINATION OF EXECUTIVE SCHEDULE

9 POSITIONS.—Each position that, before the effective

10 date of this section, was expressly authorized by law,

11 or the incumbent of which is authorized to receive

12 compensation at the rate prescribed for levels I

13 through V of the Executive Schedule under sections

14 5312 through 5315 of title 5, United States Code,

15 in an office terminated pursuant to this section and

16 sections 202 and 205 shall also terminate.

17 SEC. 207. MISCELLANEOUS TERMINATIONS; MORATORIUM

18 ON PROGRAM ACTIVITIES.

19 (a) TERMINATIONS.—The following agencies and pro20 grams of the Department of Commerce are terminated:

21 (1) The Minority Business Development Admin22 istration.

23 (2) The programs and activities of the National

24 Telecommunications and Information Administration

25 referred to in section 204(a).
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1 (3) The Advanced Technology Program under

2 section 28 of the National Institute of Standards

3 and Technology Act (15 U.S.C. 278n), as in effect

4 on the day before the effective date of section

5 202(d).

6 (4) The Manufacturing Extension Programs

7 under sections 25 and 26 of the National Institute

8 of Standards and Technology Act (15 U.S.C. 278k

9 and 278l), as in effect on the day before the effective

10 date of section 202(d).

11 (5) The National Institute of Standards and

12 Technology METRIC Program.

13 (6) The Economics and Statistics Administra14 tion.

15 (b) MORATORIUM ON PROGRAM ACTIVITIES.—The

16 authority to make grants, enter into contracts, provide as17 sistance, incur obligations, or provide commitments (in18 cluding any enlargement of existing obligations or commit19 ments, except if required by law) with respect to the agen20 cies and programs described in subsection (a) is termi21 nated effective on the date of enactment of this Act.

22 SEC. 208. EFFECTIVE DATE.

23 (a) IN GENERAL.—Except as provided in subsection

24 (b), this title shall take effect on the date specified in sec25 tion 102(c).
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1 (b) PROVISIONS EFFECTIVE ON DATE OF ENACT2 MENT.—The following provisions of this title shall take ef3 fect on the date of enactment of this Act:

4 (1) Section 201.

5 (2) Section 205(g), except as otherwise pro6 vided in that section.

7 (3) Section 207(b).

8 (4) This section.

9 TITLE III—ESTABLISHMENT OF

10 UNITED STATES TRADE AD11 MINISTRATION

12 Subtitle A—General Provisions

13 SEC. 301. DEFINITIONS.

14 In this title:

15 (1) FEDERAL AGENCY.—The term ‘‘Federal

16 agency’’ has the meaning given to the term ‘‘agen17 cy’’ in section 551(1) of title 5, United States Code.

18 (2) TRADE ADMINISTRATION.—The term

19 ‘‘Trade Administration’’ means the United States

20 Trade Administration established by section 311 of

21 this Act.

22 (3) TRADE REPRESENTATIVE.—The term

23 ‘‘Trade Representative’’ means the United States

24 Trade Representative provided for under section 311

25 of this Act.
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1 Subtitle B—United States Trade

2 Administration

3 CHAPTER 1—ESTABLISHMENT

4 SEC. 311. ESTABLISHMENT OF THE UNITED STATES TRADE

5 ADMINISTRATION.

6 (a) IN GENERAL.—The Trade Administration is es7 tablished in the executive branch of Government as an

8 independent establishment as defined in section 104 of

9 title 5, United States Code. The Trade Representative

10 shall be the head of the Trade Administration and shall

11 be appointed by the President, by and with the advice and

12 consent of the Senate.

13 (b) AMBASSADOR STATUS.—The Trade Representa14 tive shall have the rank of Ambassador Extraordinary and

15 Plenipotentiary and shall represent the United States in

16 all trade negotiations conducted by the Trade Administra17 tion.

18 (c) CONTINUED SERVICE OF CURRENT TRADE REP19 RESENTATIVE.—The individual serving as Trade Rep20 resentative on the date immediately preceding the effective

21 date of this title may continue to serve as Trade Rep22 resentative under this section until such time as the Trade

23 Representative is appointed pursuant to subsection (a).
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1 (d) SUCCESSOR TO THE DEPARTMENT OF COM2 MERCE.—The Trade Administration shall be the successor

3 to the Department of Commerce for purposes of protocol.

4 SEC. 312. FUNCTIONS OF THE TRADE REPRESENTATIVE.

5 (a) IN GENERAL.—In addition to the functions trans6 ferred to the Trade Representative by this title, such other

7 functions as the President may assign or delegate to the

8 Trade Representative, and such other functions as the

9 Trade Representative may, after the effective date of this

10 title, be required to carry out by law, the Trade Represent11 ative shall—

12 (1) serve as the principal advisor to the Presi13 dent on international trade policy and advise the

14 President on the impact of other policies of the

15 United States Government on international trade;

16 (2) exercise primary responsibility, with the ad17 vice of the interagency organization established

18 under section 242 of the Trade Expansion Act of

19 1962 (19 U.S.C. 1872), for developing and imple20 menting international trade policy, including com21 modity matters and, to the extent related to inter22 national trade policy, direct investment matters and,

23 in exercising such responsibility, advance and imple24 ment, as the primary mandate of the Trade Admin25 istration, the goals of the United States to—
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1 (A) maintain United States leadership in

2 international trade liberalization and expansion

3 efforts;

4 (B) reinvigorate the ability of the United

5 States economy to compete in international

6 markets and to respond flexibly to changes in

7 international competition; and

8 (C) expand United States participation in

9 international trade through aggressive pro10 motion and marketing of goods and services

11 that are products of the United States;

12 (3) exercise lead responsibility for the conduct

13 of international trade negotiations, including nego14 tiations relating to commodity matters and, to the

15 extent that such negotiations are related to inter16 national trade, direct investment negotiations;

17 (4) exercise lead responsibility for the establish18 ment of a national export strategy, including policies

19 designed to implement such strategy;

20 (5) with the advice of the interagency organiza21 tion established under section 242 of the Trade Ex22 pansion Act of 1962, issue policy guidance to other

23 Federal agencies on international trade, commodity,

24 and direct investment functions to the extent nec-
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1 essary to assure the coordination of international

2 trade policy;

3 (6) seek and promote new opportunities for

4 United States products and services to compete in

5 the world marketplace;

6 (7) assist small businesses in developing export

7 markets;

8 (8) enforce the laws of the United States relat9 ing to trade;

10 (9) analyze economic trends and developments;

11 (10) report directly to Congress—

12 (A) on the administration of, and matters

13 pertaining to, the trade agreements program

14 under the Omnibus Trade and Competitiveness

15 Act of 1988, the Trade Act of 1974, the Trade

16 Expansion Act of 1962, section 350 of the Tar17 iff Act of 1930, and any other law relating to

18 trade agreements; and

19 (B) with respect to other issues pertaining

20 to international trade;

21 (11) keep each official adviser to the United

22 States delegations to international conferences,

23 meetings, and negotiation sessions relating to trade

24 agreements who is appointed from the Committee on

25 Finance of the Senate or the Committee on Ways
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1 and Means of the House of Representatives under

2 section 161 of the Trade Act of 1974 (19 U.S.C.

3 2211) currently informed on United States negotiat4 ing objectives with respect to—

5 (A) trade agreements;

6 (B) the status of negotiations in progress

7 with respect to such agreements; and

8 (C) the nature of any changes in domestic

9 law or the administration thereof that the

10 Trade Representative may recommend to Con11 gress to carry out any trade agreement;

12 (12) consult and cooperate with State and local

13 governments and other interested parties on inter14 national trade matters of interest to such govern15 ments and parties, and to the extent related to inter16 national trade matters, on investment matters, and,

17 when appropriate, hold informal public hearings;

18 (13) serve as the principal advisor to the Presi19 dent on Government policies designed to contribute

20 to enhancing the ability of United States industry

21 and services to compete in international markets;

22 (14) develop recommendations for national

23 strategies and specific policies intended to enhance

24 the productivity and international competitiveness of

25 United States industries;
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1 (15) serve as the principal advisor to the Presi2 dent in identifying and assessing the consequences

3 of any Government policies that adversely affect, or

4 have the potential to adversely affect, the inter5 national competitiveness of United States industries

6 and services;

7 (16) promote cooperation between business,

8 labor, and Government to improve industrial per9 formance and the ability of United States industries

10 to compete in international markets and to facilitate

11 consultation and communication between the Gov12 ernment and the private sector about domestic in13 dustrial performance and prospects and the perform14 ance and prospects of foreign competitors; and

15 (17) monitor and enforce foreign government

16 compliance with international trade agreements to

17 protect United States interests.

18 (b) INTERAGENCY ORGANIZATION.—The Trade Rep19 resentative shall be the chairperson of the interagency or20 ganization established under section 242 of the Trade Ex21 pansion Act of 1962.

22 (c) NATIONAL SECURITY COUNCIL.—The Trade Rep23 resentative shall be a member of the National Security

24 Council.
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1 (d) ADVISORY COUNCIL.—The Trade Representative

2 shall be Deputy Chairman of the National Advisory Coun3 cil on International Monetary and Financial Policies es4 tablished under Executive Order No. 11269, issued Feb5 ruary 14, 1966.

6 (e) AGRICULTURE.—

7 (1) CONSULTATIONS.—The Trade Representa8 tive shall consult with the Secretary of Agriculture

9 or the designee of the Secretary of Agriculture on all

10 matters that potentially involve international trade

11 in agricultural products.

12 (2) UNITED STATES DELEGATION.—If an inter13 national meeting for negotiation or consultation in14 cludes discussion of international trade in agricul15 tural products, the Trade Representative or the des16 ignee of the Trade Representative shall be Chairman

17 of the United States delegation to such meeting and

18 the Secretary of Agriculture or the designee of such

19 Secretary shall be Vice Chairman. The provisions of

20 this paragraph shall not limit the authority of the

21 Trade Representative under subsection (h) to assign

22 to the Secretary of Agriculture responsibility for the

23 conduct of, or participation in, any trade negotiation

24 or meeting.
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1 (f) TRADE PROMOTION.—The Trade Representative

2 shall be the chairperson of the Trade Promotion Coordi3 nating Committee established under section 2312 of the

4 Export Enhancement Act of 1988 (15 U.S.C. 4727).

5 (g) NATIONAL ECONOMIC COUNCIL.—The Trade

6 Representative shall be a member of the National Eco7 nomic Council established under Executive Order No.

8 12835, issued January 25, 1993.

9 (h) INTERNATIONAL TRADE NEGOTIATIONS.—Ex10 cept where expressly prohibited by law, the Trade Rep11 resentative, at the request or with the concurrence of the

12 head of any other Federal agency, may assign the respon13 sibility for conducting or participating in any specific

14 international trade negotiation or meeting to the head of

15 such agency whenever the Trade Representative deter16 mines that the subject matter of such international trade

17 negotiation is related to the functions carried out by such

18 agency.

19 CHAPTER 2—OFFICERS

20 SEC. 321. DEPUTY UNITED STATES TRADE REPRESENTA21 TIVES.

22 (a) ESTABLISHMENT.—There shall be in the Trade

23 Administration 3 Deputy United States Trade Represent24 atives, who shall be appointed by the President, by and

25 with the advice and consent of the Senate. The Deputy
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•S 1226 IS

1 United States Trade Representatives shall exercise all

2 functions under the direction of the Trade Representative,

3 and shall include—

4 (1) the Deputy United States Trade Represent5 ative for Negotiations (referred to in this title as the

6 ‘‘Deputy Trade Representative for Negotiations’’);

7 (2) the Deputy United States Trade Represent8 ative to the World Trade Organization (referred to

9 in this title as the ‘‘Deputy Trade Representative to

10 the WTO’’); and

11 (3) the Deputy United States Trade Represent12 ative for Administration (referred to in this title as

13 the ‘‘Deputy Trade Representative for Administra14 tion’’).

15 (b) FUNCTIONS OF DEPUTY TRADE REPRESENTA16 TIVES.—

17 (1) DEPUTY TRADE REPRESENTATIVE FOR NE18 GOTIATIONS.—The Deputy Trade Representative for

19 Negotiations shall exercise all functions transferred

20 under section 331 relating to trade negotiations and

21 such other functions as the Trade Representative

22 may direct and shall have the rank and status of

23 Ambassador.

24 (2) DEPUTY TRADE REPRESENTATIVE TO THE

25 WTO.—The Deputy Trade Representative to the
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1 WTO shall exercise all functions relating to rep2 resentation to the World Trade Organization and

3 shall have the rank and status of Ambassador.

4 (3) DEPUTY TRADE REPRESENTATIVE FOR AD5 MINISTRATION.—

6 (A) ABSENCE, DISABILITY, OR VACANCY

7 OF TRADE REPRESENTATIVE.—The Deputy

8 Trade Representative for Administration shall

9 act for and exercise the functions of the Trade

10 Representative during the absence or disability

11 of the Trade Representative or in the event the

12 office of the Trade Representative becomes va13 cant. The Deputy Administrator shall act for

14 and exercise the functions of the Trade Rep15 resentative until the absence or disability of the

16 Trade Representative no longer exists or a suc17 cessor to the Trade Representative has been ap18 pointed by the President and confirmed by the

19 Senate.

20 (B) FUNCTIONS.—The Deputy Trade Rep21 resentative for Administration shall exercise all

22 functions, under the direction of the Trade

23 Representative, transferred to or established in

24 the Trade Administration, except those func25 tions exercised by the Deputy United States
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1 Trade Representatives described in paragraphs

2 (1) and (2), the Assistant Administrator for

3 Export Promotion, the Inspector General of the

4 Trade Administration, and the General Counsel

5 of the Trade Administration.

6 SEC. 322. ASSISTANT ADMINISTRATORS.

7 (a) ESTABLISHMENT.—There shall be in the Trade

8 Administration 4 Assistant Administrators, who shall be

9 appointed by the President, by and with the advice and

10 consent of the Senate. The Assistant Administrators shall

11 exercise all functions under the direction of the Deputy

12 Trade Representative for Administration and include—

13 (1) the Assistant Administrator for Export Ad14 ministration;

15 (2) the Assistant Administrator for Import Ad16 ministration;

17 (3) the Assistant Administrator for Trade and

18 Policy Analysis; and

19 (4) the Assistant Administrator for Export Pro20 motion.

21 (b) FUNCTIONS OF ASSISTANT ADMINISTRATORS.—

22 (1) EXPORT ADMINISTRATION.—The Assistant

23 Administrator for Export Administration shall exer24 cise all functions transferred under section

25 332(1)(C).
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1 (2) IMPORT ADMINISTRATION.—The Assistant

2 Administrator for Import Administration shall exer3 cise all functions transferred under section

4 332(1)(D).

5 (3) TRADE AND POLICY ANALYSIS.—The Assist6 ant Administrator for Trade and Policy Analysis

7 shall exercise all functions transferred under section

8 332(1)(B) and all functions transferred under sec9 tion 332(2).

10 (4) EXPORT PROMOTION.—The Assistant Ad11 ministrator for Export Promotion shall exercise all

12 functions transferred under sections 332(1)(A)(ii)

13 and 333, and shall have the rank and status of Am14 bassador.

15 SEC. 323. GENERAL COUNSEL.

16 There shall be in the Trade Administration a General

17 Counsel, who shall be appointed by the President, by and

18 with the advice and consent of the Senate. The General

19 Counsel shall provide legal assistance to the Trade Rep20 resentative concerning the activities, programs, and poli21 cies of the Trade Administration.

22 SEC. 324. INSPECTOR GENERAL.

23 There shall be in the Trade Administration an In24 spector General who shall be appointed in accordance with
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1 the Inspector General Act of 1978, as amended by section

2 371(a) of this Act.

3 SEC. 325. CHIEF FINANCIAL OFFICER.

4 There shall be in the Trade Administration a Chief

5 Financial Officer who shall be appointed in accordance

6 with section 901 of title 31, United States Code, as

7 amended by section 371(e) of this Act. The Chief Finan8 cial Officer shall perform all functions prescribed by the

9 Deputy Trade Representative for Administration, under

10 the direction of the Deputy Trade Representative.

11 CHAPTER 3—TRANSFERS TO THE TRADE

12 ADMINISTRATION

13 SEC. 331. OFFICE OF THE UNITED STATES TRADE REP14 RESENTATIVE.

15 (a) ABOLISHMENT OF OFFICE OF THE USTR.—Ef16 fective on the applicable date specified in section 102(c),

17 the Office of the United States Trade Representative es18 tablished by section 141 of the Trade Act of 1974 (19

19 U.S.C. 141) as in effect on the day before the applicable

20 date specified in section 102(c) is abolished.

21 (b) TRANSFER OF FUNCTIONS.—Except as otherwise

22 provided in this Act, all functions that on the day before

23 the applicable date specified in section 102(c) are author24 ized to be performed by the United States Trade Rep25 resentative, any other officer or employee of the Office of
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1 the United States Trade Representative acting in that ca2 pacity, or any agency or office of the Office of the United

3 States Trade Representative, are transferred to the Trade

4 Administration established under this title effective on

5 that date.

6 (c) DETERMINATION OF CERTAIN FUNCTIONS.—If

7 necessary, the Office of Management and Budget shall

8 make any determination of the functions that are trans9 ferred under this title.

10 SEC. 332. TRANSFERS FROM THE DEPARTMENT OF COM11 MERCE.

12 There are transferred to the Trade Administration

13 the following functions:

14 (1) All functions of, and all functions performed

15 under the direction of, the following officers and em16 ployees of the Department of Commerce:

17 (A)(i) The Under Secretary of Commerce

18 for International Trade.

19 (ii) The Director General of the United

20 States and Foreign Commercial Service, relat21 ing to all functions exercised by the Service.

22 (B) The Assistant Secretary of Commerce

23 for International Economic Policy and the As24 sistant Secretary of Commerce for Trade Devel25 opment.
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1 (C) The Under Secretary of Commerce for

2 Export Administration.

3 (D) The Assistant Secretary of Commerce

4 for Import Administration.

5 (2) All functions of the Secretary of Commerce

6 relating to the National Trade Data Bank.

7 (3) All functions of the Secretary of Commerce

8 under the Tariff Act of 1930, the Uruguay Round

9 Agreements Act, the Trade Act of 1974, and other

10 Acts relating to international trade for which re11 sponsibility is not otherwise assigned under this

12 title.

13 SEC. 333. TRADE AND DEVELOPMENT AGENCY.

14 There are transferred to the Assistant Administrator

15 for Export Promotion all functions of the Trade and De16 velopment Agency and all functions of the Director of the

17 Trade and Development Agency.

18 SEC. 334. EXPORT-IMPORT BANK.

19 (a) IN GENERAL.—

20 (1) TRANSFER OF FUNCTIONS.—There are

21 transferred to the Trade Representative all functions

22 of the Secretary of Commerce relating to the Ex23 port-Import Bank of the United States.
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1 (2) CONFORMING AMENDMENT.—Section

2 3(c)(1) of the Export-Import Bank Act of 1945 (12

3 U.S.C. 635a(c)(1)) is amended to read as follows:

4 ‘‘(c)(1) There shall be a Board of Directors of the

5 Bank consisting of the United States Trade Representa6 tive (who shall serve as Chairman), the President of the

7 Export-Import Bank of the United States (who shall serve

8 as Vice Chairman), the first Vice President, and 2 addi9 tional persons appointed by the President of the United

10 States, by and with the advice and consent of the Sen11 ate.’’.

12 (b) EX OFFICIO MEMBER OF EXPORT-IMPORT BANK

13 BOARD OF DIRECTORS.—The Assistant Administrator for

14 Export Promotion shall serve as an ex officio nonvoting

15 member of the Board of Directors of the Export-Import

16 Bank.

17 (c) AMENDMENTS TO RELATED BANKING AND

18 TRADE ACTS.—Section 2301(h) of the Omnibus Trade

19 and Competitiveness Act of 1988 (15 U.S.C. 4721(h)) is

20 amended to read as follows:

21 ‘‘(h) ASSISTANCE TO EXPORT-IMPORT BANK.—The

22 Commercial Service shall provide such services as the As23 sistant Administrator for Export Promotion of the United

24 States Trade Administration determines necessary to as25 sist the Export-Import Bank of the United States to carry
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1 out the lending, loan guarantee, insurance, and other ac2 tivities of the Bank.’’.

3 SEC. 335. OVERSEAS PRIVATE INVESTMENT CORPORATION.

4 (a) BOARD OF DIRECTORS.—The second and third

5 sentences of section 233(b) of the Foreign Assistance Act

6 of 1961 (22 U.S.C. 2193(b)) are amended to read as fol7 lows: ‘‘The United States Trade Representative shall be

8 the Chairman of the Board. The Administrator of the

9 Agency for International Development (who shall serve as

10 Vice Chairman) shall serve on the Board.’’.

11 (b) EX OFFICIO MEMBER OF OVERSEAS PRIVATE IN12 VESTMENT CORPORATION BOARD OF DIRECTORS.—The

13 Assistant Administrator for Export Promotion of the

14 United States Trade Administration shall serve as an ex

15 officio nonvoting member of the Board of Directors of the

16 Overseas Private Investment Corporation.

17 SEC. 336. CONSOLIDATION OF EXPORT PROMOTION AND FI18 NANCING ACTIVITIES.

19 (a) SUBMISSION OF PLAN.—

20 (1) IN GENERAL.—Not later than 180 days

21 after the date of enactment of this Act, the Presi22 dent shall transmit to Congress a comprehensive

23 plan—
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1 (A) to consolidate Federal nonagricultural

2 export promotion activities and export financing

3 activities; and

4 (B) to transfer those functions to the

5 Trade Administration.

6 (2) CONTENTS OF PLAN.—The plan under

7 paragraph (1) shall provide for—

8 (A) the elimination of overlap and duplica9 tion among all Federal nonagricultural export

10 promotion activities and export financing activi11 ties;

12 (B) a unified budget for all Federal non13 agricultural export promotion activities which

14 eliminates funding for overlapping and duplica15 tive activities identified under subparagraph

16 (A); and

17 (C) a long-term agenda for developing bet18 ter cooperation between local, State, and Fed19 eral programs and activities designed to stimu20 late or assist United States businesses in ex21 porting nonagricultural goods or services that

22 are products of the United States, including

23 sharing of facilities, costs, and export market

24 research data.
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1 (b) PLAN ELEMENTS.—The plan under subsection

2 (a) shall—

3 (1) place all Federal nonagricultural export pro4 motion activities and export financing activities with5 in the Trade Administration;

6 (2) achieve an overall 25 percent reduction in

7 the amount of funding for all Federal non8 agricultural export promotion activities by not later

9 than 2 years after the date of enactment of this Act;

10 (3) identify any function of the Department of

11 Commerce or of any other Federal department not

12 transferred to the Trade Administration by this title,

13 which should be transferred to the Trade Adminis14 tration in order to ensure United States competitive15 ness in international trade; and

16 (4) assess the feasibility and potential savings

17 resulting from—

18 (A) the consolidation of the Export-Import

19 Bank of the United States and the Overseas

20 Private Investment Corporation;

21 (B) the consolidation of the Boards of Di22 rectors of the Export-Import Bank and the

23 Overseas Private Investment Corporation; and
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1 (C) the consolidation of the Trade and De2 velopment Agency with the consolidations de3 scribed in subparagraphs (A) and (B).

4 (c) DEFINITION.—As used in this section, the term

5 ‘‘Federal nonagricultural export promotion activities’’

6 means all programs or activities of any department or

7 agency of the Federal Government (including trade mis8 sions, and departments and agencies with representatives

9 on the Trade Promotion Coordinating Committee estab10 lished under section 2312 of the Export Enhancement Act

11 of 1988 (15 U.S.C. 4727)), that are designed to stimulate

12 or assist United States businesses in exporting non13 agricultural goods or services that are products of the

14 United States.

15 SEC. 337. FUNCTIONS RELATED TO TEXTILE AGREEMENTS.

16 (a) FUNCTIONS OF CITA.—

17 (1) IN GENERAL.—Subject to paragraph (2),

18 those functions delegated to the Committee for the

19 Implementation of Textile Agreements established

20 under Executive Order No. 11651 (7 U.S.C. 1854

21 note) (in this subsection referred to as ‘‘CITA’’) are

22 transferred to the Trade Administration.

23 (2) OTHER FUNCTIONS.—Those functions dele24 gated to CITA that relate to the assessment of the

25 impact of textile imports on domestic industry are
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1 transferred to the International Trade Commission.

2 The International Trade Commission shall make a

3 determination and advise the President of the deter4 mination not later than 60 days after receiving a re5 quest for an investigation.

6 (b) ABOLITION OF CITA.—CITA is abolished.

7 CHAPTER 4—ADMINISTRATIVE

8 PROVISIONS

9 SEC. 341. PERSONNEL PROVISIONS.

10 (a) APPOINTMENTS.—The Trade Representative may

11 appoint and fix the compensation of such officers and em12 ployees, including investigators, attorneys, and adminis13 trative law judges, as may be necessary to carry out the

14 functions of the Trade Representative and the Trade Ad15 ministration. Except as otherwise provided by law, such

16 officers and employees shall be appointed in accordance

17 with the civil service laws and their compensation fixed

18 in accordance with title 5, United States Code.

19 (b) POSITIONS ABOVE GS–15.—

20 (1) IN GENERAL.—At the request of the Trade

21 Representative, the Director of the Office of Person22 nel Management shall, under section 5108 of title 5,

23 United States Code, provide for the establishment in

24 a grade level above GS–15 of the General Schedule,

25 and in the Senior Executive Service, of a number of
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1 positions in the Trade Administration equal to the

2 number of positions in that grade level which—

3 (A) were used primarily for the perform4 ance of functions and offices transferred by this

5 title; and

6 (B) were assigned and filled on the day be7 fore the effective date of this title.

8 (2) APPOINTMENTS.—Appointments to posi9 tions provided for under this subsection may be

10 made without regard to the provisions of section

11 3324 of title 5, United States Code, if the individual

12 appointed to such position is an individual who is

13 transferred in connection with the transfer of func14 tions and offices pursuant to this title and, on the

15 day before the effective date of this title, holds a po16 sition and has duties comparable to those of the po17 sition to which appointed pursuant to this sub18 section.

19 (3) TERMINATION OF AUTHORITY.—The au20 thority under this subsection with respect to any po21 sition established at a grade level above GS–15 shall

22 terminate when the person first appointed to fill

23 such position ceases to hold such position.

24 (4) EXCEPTION TO EXECUTIVE POSITION LIMI25 TATION.—For purposes of section 414(a)(3)(A) of
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1 the Civil Service Reform Act of 1978, an individual

2 appointed under this subsection shall be deemed to

3 occupy the same position as the individual occupied

4 on the day before the effective date of this title.

5 (c) EXPERTS AND CONSULTANTS.—The Trade Rep6 resentative may obtain the services of experts and consult7 ants in accordance with section 3109 of title 5, United

8 States Code, and compensate such experts and consultants

9 for each day (including traveltime) at rates not in excess

10 of the maximum rate of pay for a position above GS–15

11 of the General Schedule under section 5332 of such title.

12 The Trade Representative may pay experts and consult13 ants who are serving away from their homes or regular

14 place of business travel expenses and per diem in lieu of

15 subsistence at rates authorized by sections 5702 and 5703

16 of such title for persons in Government service employed

17 intermittently.

18 (d) VOLUNTARY SERVICES.—

19 (1) IN GENERAL.—

20 (A) VOLUNTARY SERVICES UNDER TITLE

21 31.—The Trade Representative is authorized to

22 accept voluntary and uncompensated services

23 without regard to the provisions of section 1342

24 of title 31, United States Code, if such services

25 will not be used to displace Federal employees
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1 employed on a full-time, part-time, or seasonal

2 basis.

3 (B) VOLUNTARY SERVICES UNDER TITLE

4 5.—The Trade Representative is authorized to

5 accept volunteer service in accordance with the

6 provisions of section 3111 of title 5, United

7 States Code.

8 (2) PAYMENT OF EXPENSES.—The Trade Rep9 resentative is authorized to provide for incidental ex10 penses, including transportation, lodging, and sub11 sistence for individuals who provide voluntary serv12 ices under subparagraph (A) or (B) of paragraph

13 (1).

14 (3) LIMITATION.—An individual who provides

15 voluntary services under paragraph (1)(A) shall not

16 be considered a Federal employee for any purpose

17 other than for purposes of chapter 81 of title 5,

18 United States Code, relating to compensation for

19 work injuries, and chapter 171 of title 28, United

20 States Code, relating to tort claims.

21 SEC. 342. DELEGATION AND ASSIGNMENT.

22 Except as otherwise expressly prohibited by law or

23 otherwise provided by this title, the Trade Representative

24 may delegate any of the functions transferred to the Trade

25 Representative by this title and any function transferred
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1 or granted to the Trade Representative after the effective

2 date of this title to such officers and employees of the

3 Trade Administration as the Trade Representative may

4 designate, and may authorize successive redelegations of

5 such functions as may be necessary or appropriate. No

6 delegation of functions by the Trade Representative under

7 this section or under any other provision of this title shall

8 relieve the Trade Representative of responsibility for the

9 administration of such functions.

10 SEC. 343. SUCCESSION.

11 (a) ORDER OF SUCCESSION.—Subject to the author12 ity of the President, and except as provided in section

13 321(b), the Trade Representative shall prescribe the order

14 by which officers of the Trade Administration who are ap15 pointed by the President, by and with the advice and con16 sent of the Senate, shall act for, and perform the functions

17 of, the Trade Representative or any other officer of the

18 Trade Administration appointed by the President, by and

19 with the advice and consent of the Senate, during the ab20 sence or disability of the Trade Representative or such

21 other officer, or in the event of a vacancy in the office

22 of the Trade Representative or such other officer.

23 (b) CONTINUATION.—Notwithstanding any other pro24 vision of law, and unless the President directs otherwise,

25 an individual acting for the Trade Representative or an-
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1 other officer of the Trade Administration pursuant to sub2 section (a) shall continue to serve in that capacity until

3 the absence or disability of the Trade Representative or

4 such other officer no longer exists or a successor to the

5 Trade Representative or such other officer has been ap6 pointed by the President and confirmed by the Senate.

7 SEC. 344. REORGANIZATION.

8 (a) IN GENERAL.—Subject to subsection (b), the

9 Trade Representative is authorized to allocate or reallo10 cate functions among the officers of the Trade Adminis11 tration, and to establish, consolidate, alter, or discontinue

12 such organizational entities in the Trade Administration

13 as may be necessary or appropriate.

14 (b) EXCEPTION.—The Trade Representative may not

15 exercise the authority under subsection (a) to establish,

16 consolidate, alter, or discontinue any organizational entity

17 in the Trade Administration or allocate or reallocate any

18 function of an officer or employee of the Trade Adminis19 tration that is inconsistent with any specific provision of

20 this title.

21 SEC. 345. RULES.

22 The Trade Representative is authorized to prescribe,

23 in accordance with the provisions of chapters 5 and 6 of

24 title 5, United States Code, such rules and regulations as

25 the Trade Representative determines necessary or appro-
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1 priate to administer and manage the functions of the

2 Trade Representative or the Trade Administration.

3 SEC. 346. FUNDS TRANSFER.

4 The Trade Representative may, when authorized in

5 an appropriation Act in any fiscal year, transfer funds

6 from one appropriation to another within the Trade Ad7 ministration, except that—

8 (1) no appropriation for any fiscal year shall be

9 either increased or decreased by more than 10 per10 cent; and

11 (2) no such transfer shall result in increasing

12 any such appropriation above the amount authorized

13 to be appropriated for that purpose.

14 SEC. 347. CONTRACTS, GRANTS, AND COOPERATIVE AGREE15 MENTS.

16 (a) IN GENERAL.—Subject to the provisions of the

17 Federal Property and Administrative Services Act of

18 1949, the Trade Representative may make, enter into, and

19 perform such contracts, leases, cooperative agreements,

20 grants, or other similar transactions with public agencies,

21 private organizations, and persons, and make payments

22 (in lump sum or installments, and by way of advance or

23 reimbursement, and, in the case of any grant, with nec24 essary adjustments on account of overpayments and un25 derpayments) as the Trade Representative considers nec-
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1 essary or appropriate to carry out the functions of the

2 Trade Representative or the Trade Administration.

3 (b) EXCEPTION.—Notwithstanding any other provi4 sion of this title, the authority to enter into contracts or

5 to make payments under this chapter shall be effective

6 only to such extent, or in such amounts, as are provided

7 in advance in appropriation Acts. This subsection does not

8 apply with respect to the authority granted under section

9 349.

10 SEC. 348. USE OF FACILITIES.

11 (a) USE BY TRADE REPRESENTATIVE.—In carrying

12 out any function of the Trade Representative or the Trade

13 Administration, the Trade Representative, with or without

14 reimbursement, may use the research, services, equipment,

15 and facilities of—

16 (1) an individual;

17 (2) any public or private nonprofit agency or

18 organization, including any agency or instrumental19 ity of the United States or of any State, the District

20 of Columbia, the Commonwealth of Puerto Rico, or

21 any territory or possession of the United States;

22 (3) any political subdivision of any State, the

23 District of Columbia, the Commonwealth of Puerto

24 Rico, or any territory or possession of the United

25 States; or
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1 (4) any foreign government.

2 (b) USE OF TRADE REPRESENTATIVE FACILITIES.—

3 The Trade Representative, under terms, at rates, and for

4 periods that the Trade Representative considers to be in

5 the public interest, may permit the use by public and pri6 vate agencies, corporations, associations or other organiza7 tions, or individuals, of any real property, or any facility,

8 structure or other improvement thereon, under the cus9 tody of the Trade Representative. The Trade Representa10 tive may require permittees under this section to maintain

11 or recondition, at their own expense, the real property, fa12 cilities, structures, and improvements used by such per13 mittees.

14 SEC. 349. GIFTS AND BEQUESTS.

15 (a) IN GENERAL.—The Trade Representative is au16 thorized to accept, hold, administer, and utilize gifts and

17 bequests of property, both real and personal, for the pur18 pose of aiding or facilitating the work of the Trade Admin19 istration. Gifts and bequests of money and the proceeds

20 from sales of other property received as gifts or bequests

21 shall be deposited in the United States Treasury in a sepa22 rate fund and shall be disbursed on order of the Trade

23 Representative. Property accepted pursuant to this sub24 section, and the proceeds thereof, shall be used as nearly
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1 as possible in accordance with the terms of the gift or be2 quest.

3 (b) TAX TREATMENT.—For the purpose of Federal

4 income, estate, and gift taxes, and State taxes, property

5 accepted under subsection (a) shall be considered a gift

6 or bequest to or for the use of the United States.

7 (c) INVESTMENT.—

8 (1) IN GENERAL.—Upon the request of the

9 Trade Representative, the Secretary of the Treasury

10 may invest and reinvest in securities of the United

11 States or in securities guaranteed as to principal

12 and interest by the United States any moneys con13 tained in the fund provided for in subsection (a).

14 (2) TREATMENT OF INCOME.—Income accruing

15 from the securities referred to in paragraph (1), and

16 from any other property held by the Trade Rep17 resentative pursuant to subsection (a), shall—

18 (A) be deposited to the credit of the fund;

19 and

20 (B) be disbursed upon order of the Trade

21 Representative.

22 SEC. 350. WORKING CAPITAL FUND.

23 (a) ESTABLISHMENT.—The Trade Representative is

24 authorized to establish for the Trade Administration a

25 working capital fund, to be available without fiscal year
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1 limitation, for expenses necessary for the maintenance and

2 operation of such common administrative services as the

3 Trade Representative shall find to be desirable in the in4 terest of economy and efficiency, including—

5 (1) a central supply service for stationery and

6 other supplies and equipment for which adequate

7 stocks may be maintained to meet in whole or in

8 part the requirements of the Trade Administration

9 and its components;

10 (2) central messenger, mail, and telephone serv11 ice and other communications services;

12 (3) office space and central services for docu13 ment reproduction and for graphics and visual aids;

14 (4) a central library service; and

15 (5) such other services as may be approved by

16 the Director of the Office of Management and Budg17 et.

18 (b) OPERATION OF FUND.—

19 (1) IN GENERAL.—The capital of the fund shall

20 consist of any appropriations made for the purpose

21 of providing working capital and the fair and reason22 able value of such stocks of supplies, equipment, and

23 other assets and inventories on order as the Trade

24 Representative may transfer to the fund, less the re25 lated liabilities and unpaid obligations.
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1 (2) ADVANCE REIMBURSEMENTS.—The fund

2 shall be reimbursed in advance from available funds

3 of agencies and offices in the Trade Administration,

4 or from other sources, for supplies and services at

5 rates which will approximate the expense of oper6 ation, including the accrual of annual leave and the

7 depreciation of equipment.

8 (3) OTHER CREDITS.—In addition to the cred9 its made under paragraph (1), the fund shall be

10 credited with receipts from sale or exchange of prop11 erty and receipts in payment for loss or damage to

12 property owned by the fund.

13 (4) SURPLUS.—There shall be covered into the

14 United States Treasury as miscellaneous receipts

15 any surplus of the fund (all assets, liabilities, and

16 prior losses considered) above the amounts trans17 ferred or appropriated to establish and maintain the

18 fund.

19 (5) TRANSFERS TO FUND.—There shall be

20 transferred to the fund the stocks of supplies, equip21 ment, other assets, liabilities, and unpaid obligations

22 relating to those services which the Trade Rep23 resentative determines will be performed.
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1 SEC. 351. SERVICE CHARGES.

2 (a) AUTHORITY.—Notwithstanding any other provi3 sion of law, the Trade Representative may establish rea4 sonable fees and commissions with respect to applications,

5 documents, awards, loans, grants, research data, services,

6 and assistance administered by the Trade Administration.

7 The Trade Representative may change and abolish such

8 fees and commissions. Before establishing, changing, or

9 abolishing any schedule of fees or commissions under this

10 section, the Trade Representative may submit such sched11 ule to Congress.

12 (b) DEPOSITS.—The Trade Representative is author13 ized to require a deposit before the Trade Representative

14 provides any item, information, service, or assistance for

15 which a fee or commission is required under this section.

16 (c) DEPOSIT OF MONEYS.—Moneys received under

17 this section shall be deposited in the Treasury in a special

18 account for use by the Trade Representative and are au19 thorized to be appropriated and made available until ex20 pended.

21 (d) FACTORS IN ESTABLISHING FEES AND COMMIS22 SIONS.—In establishing reasonable fees or commissions

23 under this section, the Trade Representative may take into

24 account—
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1 (1) the actual costs which will be incurred in

2 providing the items, information, services, or assist3 ance concerned;

4 (2) the efficiency of the Government in provid5 ing such items, information, services, or assistance;

6 (3) the portion of the cost that will be incurred

7 in providing such items, information, services, or as8 sistance which may be attributed to benefits for the

9 general public rather than exclusively for the person

10 to whom the items, information, services, or assist11 ance is provided;

12 (4) any public service which occurs through the

13 provision of such items, information, services, or as14 sistance; and

15 (5) such other factors as the Trade Representa16 tive considers appropriate.

17 (e) REFUNDS OF EXCESS PAYMENTS.—In any case

18 in which the Trade Representative determines that any

19 person has made a payment which is not required under

20 this section or has made a payment which is in excess of

21 the amount required under this section, the Trade Rep22 resentative, upon application or otherwise, may cause a

23 refund to be made from applicable funds.
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1 SEC. 352. SEAL OF OFFICE.

2 The Trade Representative shall cause a seal of office

3 to be made for the Trade Administration of such design

4 as the Trade Representative shall approve. Judicial notice

5 shall be taken of such seal.

6 CHAPTER 5—RELATED AGENCIES

7 SEC. 361. INTERAGENCY TRADE ORGANIZATION.

8 Section 242(a)(3) of the Trade Expansion Act of

9 1962 (19 U.S.C. 1872(a)(3)) is amended to read as fol10 lows:

11 ‘‘(3)(A) The interagency organization estab12 lished under subsection (a) shall be composed of—

13 ‘‘(i) the United States Trade Representa14 tive, who shall be the chairperson,

15 ‘‘(ii) the Secretary of Agriculture,

16 ‘‘(iii) the Secretary of the Treasury,

17 ‘‘(iv) the Secretary of Labor,

18 ‘‘(v) the Secretary of State, and

19 ‘‘(vi) the representatives of such other de20 partments and agencies as the United States

21 Trade Representative shall designate.

22 ‘‘(B) The United States Trade Representative

23 may invite representatives from other agencies, as

24 appropriate, to attend particular meetings if subject

25 matters of specific functional interest to such agen26 cies are under consideration. It shall meet at such
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1 times and with respect to such matters as the Presi2 dent or the chairperson shall direct.’’.

3 SEC. 362. NATIONAL SECURITY COUNCIL.

4 The fourth paragraph of section 101(a) of the Na5 tional Security Act of 1947 (50 U.S.C. 402(a)) is amend6 ed—

7 (1) by redesignating paragraphs (5), (6), and

8 (7) as paragraphs (6), (7), and (8), respectively; and

9 (2) by inserting after paragraph (4) the follow10 ing new paragraph:

11 ‘‘(5) the United States Trade Representative;’’.

12 SEC. 363. INTERNATIONAL MONETARY FUND.

13 Section 3 of the Bretton Woods Agreement Act (22

14 U.S.C. 286a) is amended by adding at the end the follow15 ing new subsection:

16 ‘‘(e) The United States executive director of the Fund

17 shall consult with the United States Trade Representative

18 with respect to matters under consideration by the Fund

19 which relate to trade.’’.

20 CHAPTER 6—CONFORMING AMENDMENTS

21 SEC. 371. AMENDMENTS TO GENERAL PROVISIONS.

22 (a) INSPECTOR GENERAL.—The Inspector General

23 Act of 1978 (5 U.S.C. App. 1 et seq.) is amended—

24 (1) in section 9(a)(1) by adding after subpara25 graph (W) the following:
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1 ‘‘(X) of the United States Trade Rep2 resentative, all functions of the Inspector Gen3 eral of the Department of Commerce and the

4 Office of the Inspector General of the Depart5 ment of Commerce relating to the functions

6 transferred to the United States Trade Rep7 resentative by section 332 of the Department of

8 Commerce Dismantling Act; and’’; and

9 (2) in section 11—

10 (A) in paragraph (1) by inserting ‘‘the

11 United States Trade Representative;’’ after

12 ‘‘the Attorney General;’’; and

13 (B) in paragraph (2) by inserting ‘‘the

14 United States Trade Administration,’’ after

15 ‘‘Treasury;’’.

16 (b) AMENDMENT TO THE TRADE ACT OF 1974.—

17 (1) TRADE NEGOTIATIONS.—Chapter 4 of title

18 I of the Trade Act of 1974 (19 U.S.C. 2171) is

19 amended to read as follows:
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1 ‘‘CHAPTER 4—ADMINISTRATION OF

2 TRADE AGREEMENTS, REPRESENTA3 TION IN TRADE NEGOTIATIONS, AND

4 OTHER TRADE MATTERS

5 ‘‘SEC. 141. FUNCTIONS OF THE UNITED STATES TRADE REP6 RESENTATIVE.

7 ‘‘The United States Trade Representative, estab8 lished under section 311 of the Department of Commerce

9 Dismantling Act, shall—

10 ‘‘(1) be the chief representative of the United

11 States for each trade negotiation under this title or

12 chapter 1 of title III of this Act, or subtitle A of

13 title I of the Omnibus Trade and Competitiveness

14 Act of 1988, or any other provision of law relating

15 to international trade negotiations;

16 ‘‘(2) be responsible for the administration of

17 trade agreement programs under this Act, the Omni18 bus Trade and Competitiveness Act of 1988, the

19 Trade Expansion Act of 1962, section 350 of the

20 Tariff Act of 1930, and any other provision of law

21 relating to trade agreement programs;

22 ‘‘(3) advise the President and Congress with re23 spect to nontariff barriers to international trade,

24 international commodity agreements, and other mat-
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1 ters which are related to trade agreement programs;

2 and

3 ‘‘(4) be responsible for making reports to the

4 President and Congress with respect to the matters

5 set forth in paragraphs (1) and (2).’’.

6 (2) TABLE OF CONTENTS.—Title I of the table

7 of contents of the Trade Act of 1974 is amended by

8 striking the items relating to chapter 4 and section

9 141 and inserting:

‘‘CHAPTER 4—ADMINISTRATION OF TRADE AGREEMENTS, REPRESENTATION

IN TRADE NEGOTIATIONS, AND OTHER TRADE MATTERS

‘‘Sec. 141. Functions of the United States Trade Representative.’’.

10 (d) FOREIGN SERVICE PERSONNEL.—Section 202(a)

11 of the Foreign Service Act of 1980 (22 U.S.C. 3922(a))

12 is amended by striking paragraph (3) and inserting:

13 ‘‘(3) The United States Trade Representative

14 may utilize the Foreign Service personnel system in

15 accordance with this Act—

16 ‘‘(A) with respect to the personnel per17 forming functions—

18 ‘‘(i) which were transferred to the De19 partment of Commerce from the Depart20 ment of State by Reorganization Plan No.

21 3 of 1979; and

22 ‘‘(ii) which were subsequently trans23 ferred to the United States Trade Rep-
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1 resentative by section 332 of the Depart2 ment of Commerce Dismantling Act; and

3 ‘‘(B) with respect to other personnel of the

4 United States Trade Administration to the ex5 tent the President determines to be necessary in

6 order to enable the United States Trade Ad7 ministration to carry out functions which re8 quire service abroad.’’.

9 (e) CHIEF FINANCIAL OFFICERS.—Section

10 901(b)(1)(B) of title 31, United States Code, is amended

11 to read as follows:

12 ‘‘(B) The Trade Administration.’’.

13 SEC. 372. REPEALS.

14 (a) DEPARTMENT OF COMMERCE.—The first section

15 of the Act entitled ‘‘An Act to establish the Department

16 of Commerce and Labor’’, approved February 14, 1903

17 (15 U.S.C. 1501), is repealed.

18 (b) UNDER SECRETARY; ASSISTANT SECRETARIES;

19 OTHER POSITIONS.—

20 (1) Subsection (a) of the first section of the Act

21 entitled ‘‘An Act to authorize an Under Secretary of

22 Commerce for Economic Affairs’’, approved June

23 16, 1982 (96 Stat. 115; 15 U.S.C. 1503a), is re24 pealed.
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1 (2) The Act entitled ‘‘An Act to provide for the

2 appointment of one additional Assistant Secretary of

3 Commerce, and for other purposes’’, approved July

4 15, 1947 (15 U.S.C. 1505), is repealed.

5 (3) The first sentence of section 304 of the De6 partment of Commerce Appropriation Act, 1955 (15

7 U.S.C. 1506), is repealed.

8 (4) The Act entitled ‘‘An Act to authorize an

9 additional Assistant Secretary of Commerce’’, ap10 proved February 16, 1962 (15 U.S.C. 1507), is re11 pealed.

12 (5) Subsection (a) of section 9 of the Maritime

13 Appropriation Authorization Act for Fiscal Year

14 1978 (15 U.S.C. 1507b), is repealed.

15 (6)(A) The first section of the Act of March 18,

16 1904 (33 Stat. 135, chapter 716; 15 U.S.C. 1508),

17 is repealed.

18 (B) Section 2 of the Act of July 17, 1952 (66

19 Stat. 758, chapter 932; 15 U.S.C. 1508), is re20 pealed.

21 (c) BUREAUS IN DEPARTMENT.—

22 (1) Sections 4 and 12 of the Act entitled ‘‘An

23 Act to Establish the Department of Commerce and

24 Labor’’, approved February 14, 1903 (15 U.S.C.

25 1511), are repealed.
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1 (2) The first section of the Act of January 5,

2 1923 (42 Stat. 1109, chapter 23; 15 U.S.C. 1511),

3 is repealed.

4 (3) The first section of the Act of May 27,

5 1936 (49 Stat. 1380, chapter 463; 15 U.S.C. 1511),

6 is repealed.

7 (d) ANNUAL REPORTS.—Section 8 of the Act entitled

8 ‘‘An Act to Establish the Department of Commerce and

9 Labor’’, approved February 14, 1903 (15 U.S.C. 1519),

10 is repealed.

11 (e) WORKING CAPITAL FUND.—Title III of the Act

12 entitled ‘‘An Act making appropriations for the Depart13 ments of State, Justice, and Commerce for the fiscal year

14 ending June 30, 1945, and for other purposes’’, approved

15 June 28, 1944 (15 U.S.C. 1521), is amended by striking

16 the paragraph relating to the working capital fund of the

17 Department of Commerce.

18 (f) GIFTS, BEQUESTS, INVESTMENTS.—Sections 1, 2,

19 and 3 of Public Law 88–611 (15 U.S.C. 1522, 1523, and

20 1524) are repealed.

21 SEC. 373. CONFORMING AMENDMENTS RELATING TO EXEC22 UTIVE SCHEDULE POSITIONS.

23 (a) POSITIONS AT LEVEL II.—Section 5313 of title

24 5, United States Code, is amended by adding at the end

25 the following:
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1 ‘‘Deputy United States Trade Representatives

2 (3).’’.

3 (b) POSITIONS AT LEVEL III.—Section 5314 of title

4 5, United States Code, is amended by striking the item

5 relating to Deputy United States Trade Representatives

6 and inserting the following:

7 ‘‘Assistant Administrators, United States Trade

8 Administration (4).’’.

9 (c) POSITIONS AT LEVEL IV.—Section 5315 of title

10 5, United States Code, is amended by adding at the end

11 the following:

12 ‘‘General Counsel, United States Trade Admin13 istration.

14 ‘‘Inspector General, United States Trade Ad15 ministration.

16 ‘‘Chief Financial Officer, United States Trade

17 Administration.’’.

18 CHAPTER 7—MISCELLANEOUS

19 SEC. 381. EFFECTIVE DATE.

20 (a) IN GENERAL.—This title shall take effect on the

21 effective date specified in section 102(c), except that—

22 (1) section 336 shall take effect on the date of

23 enactment of this Act; and

24 (2) at any time after the date of enactment of

25 this Act the officers provided for in chapter 2 may
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1 be nominated and appointed, as provided in such

2 chapter.

3 (b) INTERIM COMPENSATION AND EXPENSES.—

4 Funds available to the Department of Commerce or the

5 Office of the United States Trade Representative (or any

6 official or component thereof), with respect to the func7 tions transferred by this title, may be used, with approval

8 of the Director of the Office of Management and Budget,

9 to pay the compensation and expenses of an officer ap10 pointed under subsection (a) who will carry out such func11 tions until funds for that purpose are otherwise available.

12 SEC. 382. INTERIM APPOINTMENTS.

13 (a) IN GENERAL.—If one or more officers required

14 by this title to be appointed by and with the advice and

15 consent of the Senate have not entered upon office on the

16 effective date of this title and notwithstanding any other

17 provision of law, the President may designate any officer

18 who was appointed by and with the advice and consent

19 of the Senate, and who was such an officer on the day

20 before the effective date of this title, to act in the office

21 until it is filled as provided by this title.

22 (b) COMPENSATION.—Any officer acting in an office

23 pursuant to subsection (a) shall receive compensation at

24 the rate prescribed by this title for such office.
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1 SEC. 383. FUNDING REDUCTIONS RESULTING FROM REOR2 GANIZATION.

3 (a) FUNDING REDUCTIONS.—Notwithstanding the

4 transfer of functions under this title, and except as pro5 vided in subsection (b), the total amount appropriated by

6 the United States in performing all functions vested in the

7 Trade Representative and the Trade Administration pur8 suant to this title shall not exceed—

9 (1) for the first fiscal year that begins after the

10 date specified in section 102(c), 75 percent of the

11 total amount appropriated in fiscal year 1998 for

12 the performance of all those functions; and

13 (2) for the second fiscal year that begins after

14 the date specified in section 102(c) and for each fis15 cal year thereafter, 65 percent of the total amount

16 appropriated in fiscal year 1998 for the performance

17 of all those functions.

18 (b) EXCEPTION.—Subsection (a) shall not apply to

19 obligations or expenditures incurred as a direct con20 sequence of the termination, transfer, or other disposition

21 of functions described in subsection (a) pursuant to this

22 Act.

23 (c) RULE OF CONSTRUCTION.—This section shall su24 persede any other provision of law that does not—

25 (1) explicitly refer to this section, and

26 (2) create an exemption from this section.
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1 (d) RESPONSIBILITY OF TRADE REPRESENTATIVE.—

2 The Trade Representative, in consultation with the Direc3 tor of the Office of Management and Budget, shall make

4 such modifications in programs as are necessary to carry

5 out the reductions in appropriations set forth in para6 graphs (1) and (2) of subsection (a).

7 (e) RESPONSIBILITIES OF THE DIRECTOR OF THE

8 OFFICE OF MANAGEMENT AND BUDGET.—The Director

9 of the Office of Management and Budget shall include in

10 each report under subsections (a) and (b) of section 106

11 a description of the actions taken to comply with the re12 quirements of this section.

13 TITLE IV—UNITED STATES PAT14 ENT AND TRADEMARK ORGA15 NIZATION

16 Subtitle A—United States Patent

17 and Trademark Organization

18 SEC. 401. SHORT TITLE.

19 This subtitle may be cited as the ‘‘United States Pat20 ent and Trademark Organization Act of 1997’’.
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1 CHAPTER 1—ESTABLISHMENT OF THE

2 UNITED STATES PATENT AND TRADE3 MARK ORGANIZATION

4 SEC. 411. ESTABLISHMENT OF THE UNITED STATES PAT5 ENT AND TRADEMARK ORGANIZATION AS A

6 GOVERNMENT CORPORATION.

7 (a) ESTABLISHMENT.—The United States Patent

8 and Trademark Organization is established as a wholly

9 owned Government corporation subject to chapter 91 of

10 title 31, separate from any department.

11 (b) OFFICES.—The United States Patent and Trade12 mark Organization shall maintain its principal office in

13 the District of Columbia, or the metropolitan area thereof,

14 for the service of process and papers and for the purpose

15 of carrying out its powers, duties, and obligations under

16 this subtitle. The United States Patent and Trademark

17 Organization shall be deemed, for purposes of venue in

18 civil actions, to be a resident of the district in which its

19 principal office is located except where jurisdiction is oth20 erwise provided by law. The United States Patent and

21 Trademark Organization may establish satellite offices in

22 such places within the United States as it considers nec23 essary and appropriate in the conduct of its business.

24 (c) REFERENCE.—For purposes of this subtitle, a

25 reference to the ‘‘Organization’’ shall be a reference to the
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1 United States Patent and Trademark Organization, unless

2 the context provides otherwise.

3 SEC. 412. POWERS AND DUTIES.

4 (a) IN GENERAL.—The United States Patent and

5 Trademark Organization, shall be responsible for—

6 (1) the granting and issuing of patents and the

7 registration of trademarks;

8 (2) conducting studies, programs, or exchanges

9 of items or services regarding domestic and inter10 national patent and trademark law, the administra11 tion of the Organization, or any other function vest12 ed in the Organization by law, including programs to

13 recognize, identify, assess, and forecast the tech14 nology of patented inventions and their utility to in15 dustry;

16 (3)(A) authorizing or conducting studies and

17 programs cooperatively with foreign patent and

18 trademark offices and international organizations, in

19 connection with the granting and issuing of patents

20 and the registration of trademarks; and

21 (B) with the concurrence of the Secretary of

22 State, authorizing the transfer of not to exceed

23 $100,000 in any year to the Department of State

24 for the purpose of making special payments to inter25 national intergovernmental organizations for studies
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1 and programs for advancing international coopera2 tion concerning patents, trademarks, and related

3 matters; and

4 (4) disseminating to the public information with

5 respect to patents and trademarks.

6 (b) SPECIAL PAYMENTS.—The special payments

7 under subsection (a)(3)(B) may be in addition to any

8 other payments or contributions to international organiza9 tions and shall not be subject to any limitations imposed

10 by law on the amounts of such other payments or con11 tributions by the United States Government.

12 (c) SPECIFIC POWERS.—The Organization—

13 (1) shall have perpetual succession;

14 (2) shall adopt and use a corporate seal, which

15 shall be judicially noticed and with which letters pat16 ent, certificates of trademark registrations, and pa17 pers issued by the Organization shall be authenti18 cated;

19 (3) may sue and be sued in its corporate name

20 and be represented by its own attorneys in all judi21 cial and administrative proceedings, subject to the

22 provisions of section 416;

23 (4) may indemnify the Director of the United

24 States Patent and Trademark Organization, the

25 Commissioner of Patents, the Commissioner of
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1 Trademarks, and other officers, attorneys, agents,

2 and employees (including members of the Manage3 ment Advisory Boards of the Patent Office and the

4 Trademark Office) of the Organization for liabilities

5 and expenses incurred within the scope of their em6 ployment;

7 (5) may adopt, amend, and repeal bylaws, rules,

8 regulations, and determinations, which—

9 (A) shall govern the manner in which its

10 business will be conducted and the powers

11 granted to it by law will be exercised; and

12 (B) shall be made after notice and oppor13 tunity for full participation by interested public

14 and private parties;

15 (6)(A) may acquire, construct, purchase, lease,

16 hold, manage, operate, improve, alter, and renovate

17 any real, personal, or mixed property, or any interest

18 therein, as it considers necessary to carry out its

19 functions; and

20 (B) sell, lease, grant, and dispose of such prop21 erty as it considers necessary to effectuate the pur22 poses of this title;

23 (7)(A) may make such purchases, contracts for

24 the construction, maintenance, or management and

25 operation of facilities, and contracts for supplies or
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1 services, without regard to the provisions of the Fed2 eral Property and Administrative Services Act of

3 1949 (40 U.S.C. 471 et seq.), the Public Buildings

4 Act (40 U.S.C. 601 et seq.), and the Stewart B.

5 McKinney Homeless Assistance Act (42 U.S.C.

6 11301 et seq.); and

7 (B) may enter into and perform such purchases

8 and contracts for printing services, including the

9 process of composition, platemaking, presswork, silk

10 screen processes, binding, microform, and the prod11 ucts of such processes, as it considers necessary to

12 carry out the functions of the Organization, without

13 regard to sections 501 through 517 and 1101

14 through 1123 of title 44, United States Code;

15 (8) may use, with their consent, services, equip16 ment, personnel, and facilities of other departments,

17 agencies, and instrumentalities of the Federal Gov18 ernment, on a reimbursable basis, and cooperate

19 with such other departments, agencies, and instru20 mentalities in the establishment and use of services,

21 equipment, and facilities of the Organization;

22 (9) may obtain from the Administrator of Gen23 eral Services such services as the Administrator is

24 authorized to provide to other agencies of the United
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1 States, on the same basis as those services are pro2 vided to other agencies of the United States;

3 (10) may use, with the consent of the United

4 States and the agency, government, or international

5 organization concerned, the services, records, facili6 ties, or personnel of any State or local government

7 agency or instrumentality or foreign government or

8 international organization to perform functions on

9 its behalf;

10 (11) may determine the character of, and the

11 necessity for, its obligations and expenditures and

12 the manner in which they shall be incurred, allowed,

13 and paid, subject to the provisions of title 35, Unit14 ed States Code and the Act of July 5, 1946 (com15 monly referred to as the Trademark Act of 1946);

16 (12) may retain and use all of its revenues and

17 receipts, including revenues from the sale, lease, or

18 disposal of any real, personal, or mixed property, or

19 any interest therein, of the Organization, including

20 for research and development and capital invest21 ment, subject to the provisions of section 10101 of

22 the Omnibus Budget Reconciliation Act of 1990 (35

23 U.S.C. 41 note);
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1 (13) shall have the priority of the United States

2 with respect to the payment of debts from bankrupt,

3 insolvent, and decedents’ estates;

4 (14) may accept monetary gifts or donations of

5 services, or of real, personal, intellectual, or mixed

6 property, in order to enhance libraries and museums

7 operated by the Organization, support the edu8 cational programs of the Organization, or otherwise

9 carry out the functions of the Organization;

10 (15) may execute, in accordance with its by11 laws, rules, and regulations, all instruments nec12 essary and appropriate in the exercise of any of its

13 powers; and

14 (16) may provide for liability insurance and in15 surance against any loss in connection with its prop16 erty, other assets, or operations either by contract or

17 by self-insurance.

18 (d) RESTRICTIONS ON GIFTS.—Any acceptance of a

19 gift or donation under subsection (c)(14) shall be subject

20 to section 201 of title 18, United States Code. The Direc21 tor shall establish regulations for the acceptance of such

22 gifts and donations including regulations prohibiting gifts

23 or donations to the Organization by foreign countries.

24 (e) RULE OF CONSTRUCTION.—Nothing in this sec25 tion shall be construed to nullify, void, cancel, or interrupt
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1 any pending request-for-proposal let or contract issued by

2 the General Services Administration for the specific pur3 pose of relocating or leasing space to the United States

4 Patent and Trademark Organization.

5 SEC. 413. ORGANIZATION AND MANAGEMENT.

6 (a) OFFICES.—The United States Patent and Trade7 mark Organization shall consist of—

8 (1) the Office of the Director;

9 (2) the United States Patent Office; and

10 (3) the United States Trademark Office.

11 (b) DIRECTOR.—

12 (1) IN GENERAL.—The management of the

13 United States Patent and Trademark Organization

14 shall be vested in a Director of the United States

15 Patent and Trademark Organization (referred to in

16 this subtitle as the ‘‘Director’’, unless the context

17 provides otherwise), who shall be a citizen of the

18 United States and who shall be appointed by the

19 President, by and with the advice and consent of the

20 Senate. The Director shall be a person who, by rea21 son of professional background and experience in

22 patent or trademark law, is especially qualified to

23 manage the Organization.

24 (2) DUTIES.—(A) The Director shall—
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1 (i) be responsible for the Management and

2 direction of the Organization and shall perform

3 this duty in a fair, impartial, and equitable

4 manner; and

5 (ii) strive to meet the goals set forth in the

6 performance agreement described under para7 graph (4).

8 (B) The Director shall advise the President, of

9 all activities of the Organization undertaken in re10 sponse to obligations of the United States under

11 treaties and executive agreements, or which relate to

12 cooperative programs with those authorities of for13 eign governments that are responsible for granting

14 patents or registering trademarks. The Director

15 shall also recommend to the President changes in

16 law or policy which may improve the ability of Unit17 ed States citizens to secure and enforce patent and

18 trademark rights in the United States or in foreign

19 countries.

20 (C)(i) At the direction of the President, the Di21 rector may represent the United States in inter22 national negotiations on matters of patents or trade23 marks, or may designate an officer or officers of the

24 Organization to participate in such negotiations.
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1 (ii) Nothing in this subparagraph shall be con2 strued to alter any statutory responsibility of the

3 Secretary of State or the United States Trade Rep4 resentative.

5 (D) The Director, in consultation with the Di6 rector of the Office of Personnel Management, shall

7 maintain a program for identifying national security

8 positions and providing for appropriate security

9 clearances.

10 (E) The Director may perform such personnel,

11 procurement, and other functions, with respect to

12 the United States Patent Office and the United

13 States Trademark Office, where a centralized admin14 istration of such functions would improve the effi15 ciency of the Offices, by continuous unanimous

16 agreement of the Director, the Commissioner of Pat17 ents, and the Commissioner of Trademarks. The

18 agreement shall be in writing and shall indicate the

19 allocation of costs among the Office of the Director,

20 the United States Patent Office, and the United

21 States Trademark Office.

22 (F) Except as otherwise provided in this sub23 title, the Director shall ensure that—
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1 (i) the United States Patent Office and the

2 United States Trademark Office, respectively,

3 shall—

4 (I) prepare all appropriation requests

5 under section 1108 of title 31, United

6 States Code, for each office for submission

7 by the Director;

8 (II) adjust fees to provide sufficient

9 revenues to cover the expenses of such of10 fice; and

11 (III) expend funds derived from such

12 fees for only the functions of such office;

13 and

14 (ii) each such office is not involved in the

15 management of any other office.

16 (G) The Director shall submit to Congress an17 nually such information as is required under chapter

18 91 of title 31, United States Code, including—

19 (i) the total monies received and expended

20 by the Organization;

21 (ii) the purpose for which the monies were

22 spent;

23 (iii) the amount of any surplus revenues

24 retained by the Organization;
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1 (iv) the quality and quantity of the work of

2 the Organization; and

3 (v) other information relating to the Orga4 nization.

5 (3) OATH.—The Director shall, before taking

6 office, take an oath to discharge faithfully the duties

7 of the Organization.

8 (4) COMPENSATION.—The Director shall re9 ceive compensation at the rate of pay in effect for

10 level III of the Executive Schedule under section

11 5314 of title 5, United States Code and, in addition,

12 may receive as a bonus, an amount which would

13 raise total compensation to the equivalent of the

14 level of the rate of pay in effect for level II of the

15 Executive Schedule under section 5313 of title 5,

16 based upon an evaluation by the Director of OMB

17 of the Director’s performance as defined in an an18 nual performance agreement between the Director

19 and the Director of OMB. The annual performance

20 agreement shall incorporate measurable goals as de21 lineated in an annual performance plan agreed to by

22 the Director and the Director of OMB.

23 (5) REMOVAL.—The Director shall serve at the

24 pleasure of the President.
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1 (6) DESIGNEE OF DIRECTOR.—The Director

2 shall designate an officer of the Organization who

3 shall be vested with the authority to act in the ca4 pacity of the Director in the event of the absence or

5 incapacity of the Director.

6 (7) RELATIONSHIP WITH EXISTING AUTHORI7 TIES.—Nothing in this section shall derogate from

8 the duties or functions of the Register of Copyrights.

9 (c) OFFICERS AND EMPLOYEES OF THE ORGANIZA10 TION.—

11 (1) COMMISSIONERS OF PATENTS AND TRADE12 MARKS.—The Director shall appoint a Commissioner

13 of Patents and a Commissioner of Trademarks

14 under section 3 of title 35, United States Code and

15 section 53 of the Act of July 5, 1946 (commonly re16 ferred to as the Trademark Act of 1946), respec17 tively, as amended by this title.

18 (2) OTHER OFFICERS AND EMPLOYEES.—The

19 Director shall—

20 (A) appoint officers, employees (including

21 attorneys), and agents of the Organization, who

22 shall be citizens of the United States, as the Di23 rector considers necessary to carry out its func24 tions;
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1 (B) fix the compensation of such officers

2 and employees, except as provided in subsection

3 (e); and

4 (C) define the authority and duties of such

5 officers and employees and delegate to them

6 such of the powers vested in the Organization

7 as the Director may determine.

8 (3) PERSONNEL LIMITATIONS.—The Organiza9 tion shall not be subject to any administratively or

10 statutorily imposed limitation on positions or person11 nel, and no positions or personnel of the Organiza12 tion shall be taken into account for purposes of ap13 plying any such limitation.

14 (d) LIMITS ON COMPENSATION.—Except as other15 wise provided by law, the annual rate of basic pay of an

16 officer or employee of the Organization may not be fixed

17 at a rate that exceeds, and total compensation payable to

18 any such officer or employee for any year may not exceed,

19 the annual rate of basic pay in effect for level II of the

20 Executive Schedule under section 5313 of title 5, United

21 States Code. The Director shall prescribe such regulations

22 as may be necessary to carry out this subsection.

23 (e) INAPPLICABILITY OF TITLE 5, UNITED STATES

24 CODE, GENERALLY.—Except as otherwise provided in this

25 section, officers and employees of the Organization shall
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1 not be subject to the provisions of title 5, United States

2 Code, relating to Federal employees.

3 (f) CONTINUED APPLICABILITY OF CERTAIN PROVI4 SIONS OF TITLE 5, UNITED STATES CODE.—

5 (1) IN GENERAL.—The following provisions of

6 title 5, United States Code, shall apply to the Orga7 nization and its officers and employees:

8 (A) Section 3110 (relating to employment

9 of relatives; restrictions).

10 (B) Subchapter II of chapter 55 (relating

11 to withholding pay).

12 (C) Subchapters II and III of chapter 73

13 (relating to employment limitations and political

14 activities, respectively).

15 (D) Chapter 71 (relating to labor-manage16 ment relations), subject to paragraph (2) and

17 subsection (g).

18 (E) Section 3303 (relating to political rec19 ommendations).

20 (F) Subchapter II of chapter 61 (relating

21 to flexible and compressed work schedules).

22 (G) Section 2302(b)(8) (relating to whis23 tleblower protection) and whistleblower related

24 provisions of chapter 12 (covering the role of

25 the Office of Special Counsel).
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1 (2) COMPENSATION SUBJECT TO COLLECTIVE

2 BARGAINING.—

3 (A) IN GENERAL.—Notwithstanding any

4 other provision of law, for purposes of applying

5 chapter 71 of title 5, United States Code, pur6 suant to paragraph (1)(D), basic pay and other

7 forms of compensation shall be considered to be

8 among the matters as to which the duty to bar9 gain in good faith extends under such chapter.

10 (B) EXCEPTIONS.—The duty to bargain in

11 good faith shall not, by reason of subparagraph

12 (A), be considered to extend to any benefit

13 under title 5, United States Code, which is af14 forded by paragraph (1), (2), (3), or (4) of sub15 section (g).

16 (C) LIMITATIONS APPLY.—Nothing in this

17 subsection shall be considered to allow any limi18 tation under subsection (d) to be exceeded.

19 (g) PROVISIONS OF TITLE 5, UNITED STATES CODE,

20 THAT CONTINUE TO APPLY, SUBJECT TO CERTAIN RE21 QUIREMENTS.—

22 (1) RETIREMENT.—(A) The provisions of sub23 chapter III of chapter 83 and chapter 84 of title 5,

24 United States Code, shall apply to the Organization
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1 and its officers and employees, subject to subpara2 graph (B).

3 (B)(i) The amount required of the Organization

4 under the second sentence of section 8334(a)(1) of

5 title 5, United States Code, with respect to any par6 ticular individual shall, instead of the amount which

7 would otherwise apply, be equal to the normal-cost

8 percentage (determined with respect to officers and

9 employees of the Organization using dynamic as10 sumptions, as defined by section 8401(9) of such

11 title) of the individual’s basic pay, minus the amount

12 required to be withheld from such pay under such

13 section 8334(a)(1).

14 (ii) The amount required of the Organization

15 under section 8334(k)(1)(B) of title 5, United

16 States Code, with respect to any particular individ17 ual shall be equal to an amount computed in a man18 ner similar to that specified in clause (i), as deter19 mined in accordance with clause (iii).

20 (iii) Any regulations necessary to carry out this

21 subparagraph shall be prescribed by the Office of

22 Personnel Management.

23 (C) The United States Patent and Trademark

24 Organization may supplement the benefits provided

25 under the preceding provisions of this paragraph.
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1 (2) HEALTH BENEFITS.—(A) The provisions of

2 chapter 89 of title 5, United States Code, shall

3 apply to the Organization and its officers and em4 ployees, subject to subparagraph (B).

5 (B)(i) With respect to any individual who be6 comes an officer or employee of the Organization

7 pursuant to subsection (i), the eligibility of such in8 dividual to participate in such program as an annu9 itant (or of any other person to participate in such

10 program as an annuitant based on the death of such

11 individual) shall be determined disregarding the re12 quirements of section 8905(b) of title 5, United

13 States Code. The preceding sentence shall not apply

14 if the individual ceases to be an officer or employee

15 of the Organization for any period of time after be16 coming an officer or employee of the Organization

17 pursuant to subsection (i) and before separation.

18 (ii) The Government contributions authorized

19 by section 8906 of title 5, United States Code, for

20 health benefits for anyone participating in the health

21 benefits program pursuant to this subparagraph

22 shall be made by the Organization in the same man23 ner as provided under section 8906(g)(2) of such

24 title with respect to the United States Postal Service

25 for individuals associated therewith.
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1 (iii) For purposes of this subparagraph, the

2 term ‘‘annuitant’’ has the meaning given such term

3 by section 8901(3) of title 5, United States Code.

4 (C) The Organization may supplement the ben5 efits provided under the preceding provisions of this

6 paragraph.

7 (3) LIFE INSURANCE.—(A) The provisions of

8 chapter 87 of title 5, United States Code, shall

9 apply to the Organization and its officers and em10 ployees, subject to subparagraph (B).

11 (B)(i) Eligibility for life insurance coverage

12 after retirement or while in receipt of compensation

13 under subchapter I of chapter 81 of title 5, United

14 States Code, shall be determined, in the case of any

15 individual who becomes an officer or employee of the

16 Organization pursuant to subsection (i), without re17 gard to the requirements of section 8706(b) (1) or

18 (2) of such title, but subject to the condition speci19 fied in the last sentence of paragraph (2)(B)(i) of

20 this subsection.

21 (ii) Government contributions under section

22 8708(d) of such title on behalf of any such individ23 ual shall be made by the Organization in the same

24 manner as provided under paragraph (3) thereof
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•S 1226 IS

1 with respect to the United States Postal Service for

2 individuals associated therewith.

3 (C) The Organization may supplement the ben4 efits provided under the preceding provisions of this

5 paragraph.

6 (4) EMPLOYEES’ COMPENSATION FUND.—(A)

7 Officers and employees of the Organization shall not

8 become ineligible to participate in the program

9 under chapter 81 of title 5, United States Code, re10 lating to compensation for work injuries, by reason

11 of subsection (e).

12 (B) The Organization shall remain responsible

13 for reimbursing the Employees’ Compensation Fund,

14 pursuant to section 8147 of title 5, United States

15 Code, for compensation paid or payable after the ef16 fective date of this subtitle in accordance with chap17 ter 81 of title 5, United States Code, with regard to

18 any injury, disability, or death due to events arising

19 before such date, whether or not a claim has been

20 filed or is final on such date.

21 (h) LABOR-MANAGEMENT RELATIONS.—

22 (1) LABOR RELATIONS AND EMPLOYEE RELA23 TIONS PROGRAMS.—The Organization shall develop

24 hiring practices, labor relations and employee rela25 tions programs with the objective of improving pro-
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1 ductivity and efficiency, incorporating the following

2 principles:

3 (A) Such programs shall be consistent with

4 the merit principles in section 2301(b) of title

5 5, United States Code.

6 (B) Such programs shall provide veterans

7 preference protections equivalent to those estab8 lished by sections 2108, 3308 through 3318,

9 3320, 3502, and 3504 of title 5, United States

10 Code.

11 (C)(i) The right to work shall not be sub12 ject to undue restraint or coercion. The right to

13 work shall not be infringed or restricted in any

14 way based on membership in, affiliation with, or

15 financial support of a labor organization.

16 (ii) No person shall be required, as a con17 dition of employment or continuation of employ18 ment—

19 (I) to resign or refrain from voluntary

20 membership in, voluntary affiliation with,

21 or voluntary financial support of a labor

22 organization;

23 (II) to become or remain a member of

24 a labor organization;
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•S 1226 IS

1 (III) to pay any dues, fees, assess2 ments, or other charges of any kind or

3 amount to a labor organization;

4 (IV) to pay to any charity or other

5 third party, in lieu of such payments, any

6 amount equivalent to or a pro rata portion

7 of dues, fees, assessments, or other charges

8 regularly required of members of a labor

9 organization; or

10 (V) to be recommended, approved, re11 ferred, or cleared by or through a labor or12 ganization.

13 (iii) This subparagraph shall not apply to

14 a person described in section 7103(a)(2)(v) of

15 title 5, United States Code, or a ‘‘supervisor’’,

16 ‘‘management official’’, or ‘‘confidential em17 ployee’’ as those terms are defined in 7103(a)

18 (10), (11), and (13) of such title.

19 (iv) Any labor organization recognized by

20 the Organization as the exclusive representative

21 of a unit of employees of the Organization shall

22 represent the interests of all employees in that

23 unit without discrimination and without regard

24 to labor organization membership.
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1 (2) ADOPTION OF EXISTING LABOR AGREE2 MENTS.—The Organization shall adopt all labor

3 agreements which are in effect, as of the day before

4 the effective date of this subtitle, with respect to

5 such Organization (as then in effect).

6 (i) CARRYOVER OF PERSONNEL.—

7 (1) FROM PTO.—Effective as of the effective

8 date of this subtitle, all officers and employees of the

9 Patent and Trademark Office on the day before

10 such effective date shall become officers and employ11 ees of the Organization, without a break in service.

12 (2) OTHER PERSONNEL.—(A) Any individual

13 who, on the day before the effective date of this sub14 title, is an officer or employee of the Department of

15 Commerce (other than an officer or employee under

16 paragraph (1)) shall be transferred to the Organiza17 tion if—

18 (i) such individual serves in a position for

19 which a major function is the performance of

20 work reimbursed by the Patent and Trademark

21 Office, as determined by the Director of OMB;

22 (ii) such individual serves in a position

23 that performed work in support of the Patent

24 and Trademark Office during at least half of
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•S 1226 IS

1 the incumbent’s work time, as determined by

2 the Director of OMB; or

3 (iii) such transfer would be in the interest

4 of the Organization, as determined by the Di5 rector of OMB in consultation with the Direc6 tor.

7 (B) Any transfer under this paragraph shall be

8 effective as of the same effective date as referred to

9 in paragraph (1), and shall be made without a break

10 in service.

11 (3) ACCUMULATED LEAVE.—The amount of

12 sick and annual leave and compensatory time accu13 mulated under title 5, United States Code, before

14 the effective date described in paragraph (1), by any

15 individual who becomes an officer or employee of the

16 Organization under this subsection, are obligations

17 of the Organization.

18 (4) TERMINATION RIGHTS.—Any employee re19 ferred to in paragraph (1) or (2) of this subsection

20 whose employment with the Organization is termi21 nated during the 1-year period beginning on the ef22 fective date of this subtitle shall be entitled to rights

23 and benefits, to be afforded by the Organization,

24 similar to those such employee would have had

25 under Federal law if termination had occurred im-
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•S 1226 IS

1 mediately before such date. An employee who would

2 have been entitled to appeal any such termination to

3 the Merit Systems Protection Board, if such termi4 nation had occurred immediately before such effec5 tive date, may appeal any such termination occur6 ring within such 1-year period to the Board under

7 such procedures as it may prescribe.

8 (5) TRANSITION PROVISIONS.—(A)(i) On or

9 after the effective date of this subtitle, the President

10 shall appoint a Director of the United States Patent

11 and Trademark Organization who shall serve until

12 the earlier of—

13 (I) the date on which a Director qualifies

14 under subsection (b); or

15 (II) the date occurring 1 year after the ef16 fective date of this subtitle.

17 (ii) The President shall not make more than 1

18 appointment under this subparagraph.

19 (B) The individual serving as the Assistant

20 Commissioner of Patents on the day before the ef21 fective date of this subtitle shall serve as the Com22 missioner of Patents until the date on which a Com23 missioner of Patents is appointed under section 3 of

24 title 35, United States Code, as amended by this

25 title.
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1 (C) The individual serving as the Assistant

2 Commissioner of Trademarks on the day before the

3 effective date of this subtitle shall serve as the Com4 missioner of Trademarks until the date on which a

5 Commissioner of Trademarks is appointed under

6 section 53 of the Act of July 5, 1946 (commonly re7 ferred to as the Trademark Act of 1946), as amend8 ed by this title.

9 (j) COMPETITIVE STATUS.—For purposes of appoint10 ment to a position in the competitive service for which an

11 officer or employee of the Organization is qualified, such

12 officer or employee shall not forfeit any competitive status,

13 acquired by such officer or employee before the effective

14 date of this subtitle, by reason of becoming an officer or

15 employee of the Organization under subsection (i).

16 (k) SAVINGS PROVISIONS.—Compensation, benefits,

17 and other terms and conditions of employment in effect

18 immediately before the effective date of this subtitle,

19 whether provided by statute or by rules and regulations

20 of the former Patent and Trademark Office or the execu21 tive branch of the Government of the United States, shall

22 continue to apply to officers and employees of the Organi23 zation, until changed in accordance with this section

24 (whether by action of the Director or otherwise).
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1 (l) REMOVAL OF QUASI-JUDICIAL EXAMINERS.—The

2 Organization may remove a patent examiner or examiner3 in-chief, or a trademark examiner or member of a Trade4 mark Trial and Appeal Board only for such cause as will

5 promote the efficiency of the Organization.

6 SEC. 414. UNITED STATES PATENT OFFICE.

7 (a) ESTABLISHMENT OF THE PATENT OFFICE AS A

8 SEPARATE ADMINISTRATIVE UNIT.—Section 1 of title 35,

9 United States Code, is amended to read as follows:

10 ‘‘§ 1. Establishment

11 ‘‘(a) ESTABLISHMENT.—The United States Patent

12 Office is established as a separate administrative unit of

13 the United States Patent and Trademark Organization,

14 where records, books, drawings, specifications, and other

15 papers and things pertaining to patents shall be kept and

16 preserved, except as otherwise provided by law.

17 ‘‘(b) REFERENCE.—For purposes of this title, the

18 United States Patent Office shall also be referred to as

19 the ‘Office’ and the ‘Patent Office’.’’.

20 (b) POWERS AND DUTIES.—Section 2 of title 35,

21 United States Code, is amended to read as follows:

22 ‘‘§ 2. Powers and duties

23 ‘‘The United States Patent Office, through the Direc24 tor of the United States Patent and Trademark Organiza25 tion, shall be responsible for—
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•S 1226 IS

1 ‘‘(1) granting and issuing patents;

2 ‘‘(2) conducting studies, programs, or ex3 changes of items or services regarding domestic and

4 international patent law, the administration of the

5 Organization, or any other function vested in the

6 Organization by law, including programs to recog7 nize, identify, assess, and forecast the technology of

8 patented inventions and their utility to industry;

9 ‘‘(3) authorizing or conducting studies and pro10 grams cooperatively with foreign patent offices and

11 international organizations, in connection with the

12 granting and issuing of patents; and

13 ‘‘(4) disseminating to the public information

14 with respect to patents.’’.

15 (c) ORGANIZATION AND MANAGEMENT.—Section 3 of

16 title 35, United States Code, is amended to read as fol17 lows:

18 ‘‘§ 3. Officers and employees

19 ‘‘(a) COMMISSIONER.—

20 ‘‘(1) IN GENERAL.—The management of the

21 United States Patent Office shall be vested in a

22 Commissioner of Patents, who shall be a citizen of

23 the United States and who shall be appointed by the

24 Director of the United States Patent and Trade25 mark Organization and shall serve at the pleasure
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•S 1226 IS

1 of the Director of the United States Patent and

2 Trademark Organization. The Commissioner shall be

3 a person who, by reason of professional background

4 and experience in patent law, is especially qualified

5 to manage the Office.

6 ‘‘(2) DUTIES.—

7 ‘‘(A) IN GENERAL.—The Commissioner

8 shall be responsible for all aspects of the man9 agement, administration, and operation of the

10 Office, including the granting and issuing of

11 patents, and shall perform these duties in a

12 fair, impartial, and equitable manner.

13 ‘‘(B) ADVISING THE DIRECTOR OF THE

14 UNITED STATES PATENT AND TRADEMARK OR15 GANIZATION.—The Commissioner shall advise

16 the Director of the United States Patent and

17 Trademark Organization of all activities of the

18 Office undertaken in response to obligations of

19 the United States under treaties and executive

20 agreements, or which relate to cooperative pro21 grams with those authorities of foreign govern22 ments that are responsible for granting patents.

23 The Commissioner shall advise the Director of

24 the United States Patent and Trademark Orga25 nization on matters of patent law and shall rec-
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•S 1226 IS

1 ommend to the Director of the United States

2 Patent and Trademark Organization changes in

3 law or policy which may improve the ability of

4 United States citizens to secure and enforce

5 patent rights in the United States or in foreign

6 countries.

7 ‘‘(C) REGULATIONS.—The Commissioner

8 may establish regulations, not inconsistent with

9 law, for the conduct of proceedings in the Pat10 ent Office.

11 ‘‘(D) CONSULTATION WITH THE MANAGE12 MENT ADVISORY BOARD.—(i) The Commis13 sioner shall consult with the Management Advi14 sory Board established in section 5—

15 ‘‘(I) on a regular basis on matters re16 lating to the operation of the Office; and

17 ‘‘(II) before submitting budgetary

18 proposals to the Director of the United

19 States Patent and Trademark Organiza20 tion for submission to the Office of Man21 agement and Budget or changing or pro22 posing to change patent user fees or patent

23 regulations.
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1 ‘‘(3) OATH.—The Commissioner shall, before

2 taking office, take an oath to discharge faithfully the

3 duties of the Office.

4 ‘‘(4) COMPENSATION.—

5 ‘‘(A) IN GENERAL.—The Commissioner

6 shall receive compensation at the rate of pay in

7 effect for level IV of the Executive Schedule

8 under section 5315 of title 5.

9 ‘‘(B) BONUS.—In addition to compensa10 tion under subparagraph (A), the Commissioner

11 may, at the discretion of the Director of the

12 United States Patent and Trademark Organiza13 tion, receive as a bonus, an amount which

14 would raise total compensation to the equivalent

15 of the rate of pay in effect for level III of the

16 Executive Schedule under section 5314 of title

17 5.

18 ‘‘(b) OFFICERS AND EMPLOYEES.—

19 ‘‘(1) DEPUTY COMMISSIONER OF PATENTS.—

20 The Commissioner shall appoint a Deputy Commis21 sioner of Patents who shall be vested with the au22 thority to act in the capacity of the Commissioner in

23 the event of the absence or incapacity of the Com24 missioner. In the event of a vacancy in the office of

25 Commissioner, the Deputy Commissioner shall fill
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•S 1226 IS

1 the office of Commissioner until a new Commis2 sioner is appointed and takes office.

3 ‘‘(2) OMBUDSMAN.—The Commissioner shall

4 appoint an ombudsman to advise the Commissioner

5 on the concerns of independent inventors, nonprofit

6 organizations, and small business concerns.

7 ‘‘(3) OTHER OFFICERS AND EMPLOYEES.—

8 Other officers, attorneys, employees, and agents

9 shall be selected and appointed by the Commis10 sioner, and shall be vested with such powers and du11 ties as the Commissioner may determine.’’.

12 (d) MANAGEMENT ADVISORY BOARD.—Chapter 1 of

13 part I of title 35, United States Code, is amended by in14 serting after section 4 the following:

15 ‘‘§ 5. Patent Office Management Advisory Board

16 ‘‘(a) ESTABLISHMENT OF MANAGEMENT ADVISORY

17 BOARD.—

18 ‘‘(1) APPOINTMENT.—The United States Pat19 ent Office shall have a Management Advisory Board

20 (hereafter in this title referred to as the ‘Advisory

21 Board’) of 5 members, who shall be appointed by the

22 President and shall serve at the pleasure of the

23 President. Not more than 3 of the 5 members shall

24 be members of the same political party. At least 1
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•S 1226 IS

1 member shall be an independent inventor, as defined

2 in regulations issued by the Commissioner.

3 ‘‘(2) CHAIR.—The President shall designate a

4 Chair of the Advisory Board, whose term as chair

5 shall be for 3 years.

6 ‘‘(3) TIMING OF APPOINTMENTS.—Initial ap7 pointments to the Advisory Board shall be made

8 within 3 months after the effective date of the Unit9 ed States Patent and Trademark Organization Act

10 of 1997. Vacancies shall be filled in the manner in

11 which the original appointment was made under this

12 subsection within 3 months after they occur.

13 ‘‘(b) BASIS FOR APPOINTMENTS.—Members of the

14 Advisory Board shall be citizens of the United States who

15 shall be chosen so as to represent the interests of diverse

16 users of the United States Patent Office, and shall include

17 individuals with substantial background and achievement

18 in corporate finance and management.

19 ‘‘(c) MEETINGS.—The Advisory Board shall meet at

20 the call of the Chair to consider an agenda set by the

21 Chair.

22 ‘‘(d) DUTIES.—The Advisory Board shall—

23 ‘‘(1) review the policies, goals, performance,

24 budget, and user fees of the United States Patent
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•S 1226 IS

1 Office, and advise the Commissioner on these mat2 ters;

3 ‘‘(2) within 60 days after the end of each fiscal

4 year—

5 ‘‘(A) prepare an annual report on the mat6 ters referred to in paragraph (1);

7 ‘‘(B) transmit the report to the Director of

8 the United States Patent and Trademark Orga9 nization, the President, and the Committees on

10 the Judiciary of the Senate and the House of

11 Representatives; and

12 ‘‘(C) publish the report in the Patent Of13 fice Official Gazette.

14 ‘‘(f) COMPENSATION.—Each member of the Advisory

15 Board shall be compensated for each day (including travel

16 time) during which such member is attending meetings or

17 conferences of the Advisory Board or otherwise engaged

18 in the business of the Advisory Board, at the rate which

19 is the daily equivalent of the annual rate of basic pay in

20 effect for level III of the Executive Schedule under section

21 5314 of title 5, and while away from such member’s home

22 or regular place of business such member may be allowed

23 travel expenses, including per diem in lieu of subsistence,

24 as authorized by section 5703 of title 5.
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•S 1226 IS

1 ‘‘(g) ACCESS TO INFORMATION.—Members of the Ad2 visory Board shall be provided access to records and infor3 mation in the United States Patent Office, except for per4 sonnel or other privileged information and information

5 concerning patent applications required to be kept in con6 fidence by section 122.

7 ‘‘(h) APPLICABILITY OF CERTAIN ETHICS LAWS.—

8 Members of the Advisory Board shall be special Govern9 ment employees within the meaning of section 202 of title

10 18.’’.

11 (e) CONFORMING AMENDMENTS.—Section 6 of title

12 35, United States Code, and the item relating to such sec13 tion in the table of contents for chapter 1 of title 35, Unit14 ed States Code, are repealed.

15 (f) BOARD OF PATENT APPEALS AND INTER16 FERENCES.—Section 7 of title 35, United States Code, is

17 amended to read as follows:

18 ‘‘§ 7. Board of Patent Appeals and Interferences

19 ‘‘(a) ESTABLISHMENT AND COMPOSITION.—There

20 shall be in the United States Patent Office a Board of

21 Patent Appeals and Interferences. The Commissioner, the

22 Deputy Commissioner, and the administrative patent

23 judges shall constitute the Board. The administrative pat24 ent judges shall be persons of competent legal knowledge

25 and scientific ability.
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•S 1226 IS

1 ‘‘(b) DUTIES.—

2 ‘‘(1) IN GENERAL.—The Board of Patent Ap3 peals and Interferences shall, on written appeal of

4 an applicant, a patent owner, or a third-party re5 quester in a reexamination proceeding—

6 ‘‘(A) review adverse decisions of examin7 ers—

8 ‘‘(i) upon applications for patents; and

9 ‘‘(ii) in reexamination proceedings;

10 and

11 ‘‘(B) determine priority and patentability

12 of invention in interferences declared under sec13 tion 135(a).

14 ‘‘(2) HEARINGS.—Each appeal and interference

15 shall be heard by at least 3 members of the Board,

16 who shall be designated by the Deputy Commis17 sioner. Only the Board of Patent Appeals and Inter18 ferences may grant rehearings.’’.

19 (g) ANNUAL REPORT OF COMMISSIONER.—Section

20 14 of title 35, United States Code, is amended to read

21 as follows:

22 ‘‘§ 14. Annual report to Congress

23 ‘‘The Commissioner shall report to the Director of

24 the United States Patent and Trademark Organization

25 such information as the Director is required to submit to
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•S 1226 IS

1 Congress annually under section 157(d) of this title, and

2 under chapter 91 of title 31, including—

3 ‘‘(1) the total of the moneys received and ex4 pended by the Office;

5 ‘‘(2) the purposes for which the moneys were

6 spent;

7 ‘‘(3) the quality and quantity of the work of the

8 Office; and

9 ‘‘(4) other information relating to the Office.’’.

10 (h) PRACTICE BEFORE PATENT OFFICE.—

11 (1) IN GENERAL.—Section 31 of title 35, Unit12 ed States Code, is amended to read as follows:

13 ‘‘§ 31. Regulations for agents and attorneys

14 ‘‘The Commissioner may prescribe regulations gov15 erning the recognition and conduct of agents, attorneys,

16 or other persons representing applicants or other parties

17 before the Office. The regulations may require such per18 sons, before being recognized as representatives of appli19 cants or other persons, to show that they are of good

20 moral character and reputation and are possessed of the

21 necessary qualifications to render to applicants or other

22 persons valuable service, advice, and assistance in the

23 presentation or prosecution of their applications or other

24 business before the Office.’’.
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1 (2) DESIGNATION OF ATTORNEY TO CONDUCT

2 HEARING.—Section 32 of title 35, United States

3 Code, is amended—

4 (A) in the first sentence, by striking ‘‘Pat5 ent and Trademark Office’’ and inserting ‘‘Pat6 ent Office’’; and

7 (B) by inserting before the last sentence

8 the following: ‘‘The Commissioner shall have

9 the discretion to designate any attorney who is

10 an officer or employee of the United States Pat11 ent Office to conduct the hearing required by

12 this section.’’.

13 (i) FUNDING.—

14 (1) ADJUSTMENT OF FEES.—Section 41(f) of

15 title 35, United States Code, is amended to read as

16 follows:

17 ‘‘(f) The Commissioner, after consulting with the

18 Patent Office Management Advisory Board pursuant to

19 section 3(a)(2)(C) of this title and after notice and oppor20 tunity for full participation by interested public and pri21 vate parties, may, by regulation, adjust the fees estab22 lished in this section.’’.

23 (2) PATENT OFFICE FUNDING.—Section 42 of

24 title 35, United States Code, is amended to read as

25 follows:
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•S 1226 IS

1 ‘‘§ 42. Patent Office funding

2 ‘‘(a) FEES PAYABLE TO THE OFFICE.—All fees for

3 services performed by or materials furnished by the Unit4 ed States Patent Office shall be payable to the Office.

5 ‘‘(b) USE OF MONEYS.—Moneys from fees shall be

6 available to the United States Patent Office to carry out,

7 to the extent provided in appropriations Acts, the func8 tions of the Office. Moneys of the Office not otherwise

9 used to carry out the functions of the Office shall be kept

10 in cash on hand or on deposit, or invested in obligations

11 of the United States or guaranteed by the United States,

12 or in obligations or other instruments which are lawful in13 vestments for fiduciary, trust, or public funds. Fees avail14 able to the Commissioner under this title shall be used

15 only for the processing of patent applications and for other

16 services and materials relating to patents, including the

17 agreed upon share of any centralized function, as set forth

18 in section 413(b)(2)(E) of the United States Patent and

19 Trademark Organization Act of 1997.

20 ‘‘(c) CONTRIBUTION TO THE OFFICE OF THE DIREC21 TOR OF THE UNITED STATES PATENT AND TRADEMARK

22 ORGANIZATION.—The Patent Office shall contribute 50

23 percent of the annual budget of the Office of the Director

24 of the United States Patent and Trademark Organiza25 tion.’’.
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1 SEC. 415. UNITED STATES TRADEMARK OFFICE.

2 (a) ESTABLISHMENT OF THE UNITED STATES

3 TRADEMARK OFFICE AS A SEPARATE ADMINISTRATIVE

4 UNIT.—The Act of July 5, 1946 (commonly referred to

5 as the Trademark Act of 1946) is amended—

6 (1) by redesignating titles X and XI as titles XI

7 and XII, respectively;

8 (2) by redesignating sections 45, 46, 47, 48,

9 49, 50, and 51 as sections 61, 71, 72, 73, 74, 75,

10 and 76, respectively; and

11 (3) by inserting after title IX the following new

12 title:

13 ‘‘TITLE X—UNITED STATES

14 TRADEMARK OFFICE

15 ‘‘SEC. 51. ESTABLISHMENT.

16 ‘‘(a) ESTABLISHMENT.—The United States Trade17 mark Office is established as a separate administrative

18 unit of the United States Patent and Trademark Organi19 zation.

20 ‘‘(b) REFERENCE.—For purposes of this chapter, the

21 United States Trademark Office shall also be referred to

22 as the ‘Office’ and the ‘Trademark Office’.

23 ‘‘SEC. 52. POWERS AND DUTIES.

24 ‘‘The United States Trademark Office, under the pol25 icy direction of the Secretary of Commerce through the
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•S 1226 IS

1 Director of the United States Patent and Trademark Or2 ganization, shall be responsible for—

3 ‘‘(1) the registration of trademarks;

4 ‘‘(2) conducting studies, programs, or ex5 changes of items or services regarding domestic and

6 international trademark law or the administration of

7 the Office;

8 ‘‘(3) authorizing or conducting studies and pro9 grams cooperatively with foreign trademark offices

10 and international organizations, in connection with

11 the registration of trademarks; and

12 ‘‘(4) disseminating to the public information

13 with respect to trademarks.

14 ‘‘SEC. 53. OFFICERS AND EMPLOYEES.

15 ‘‘(a) COMMISSIONER.—

16 ‘‘(1) IN GENERAL.—The management of the

17 United States Trademark Office shall be vested in a

18 Commissioner of Trademarks, who shall be a citizen

19 of the United States and who shall be appointed by

20 the Director of the United States Patent and Trade21 mark Organization and shall serve at the pleasure of

22 the Director of the United States Patent and Trade23 mark Organization. The Commissioner shall be a

24 person who, by reason of professional background
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•S 1226 IS

1 and experience in trademark law, is especially quali2 fied to manage the Office.

3 ‘‘(2) DUTIES.—

4 ‘‘(A) IN GENERAL.—The Commissioner

5 shall be responsible for all aspects of the man6 agement, administration, and operation of the

7 Office, including the registration of trademarks,

8 and shall perform these duties in a fair, impar9 tial, and equitable manner.

10 ‘‘(B) ADVISING THE DIRECTOR OF THE

11 UNITED STATES PATENT AND TRADEMARK OR12 GANIZATION.—The Commissioner shall advise

13 the Director of the United States Patent and

14 Trademark Organization of all activities of the

15 Office undertaken in response to obligations of

16 the United States under treaties and executive

17 agreements, or which relate to cooperative pro18 grams with those authorities of foreign govern19 ments that are responsible for registering trade20 marks. The Commissioner shall advise the Di21 rector of the United States Patent and Trade22 mark Organization on matters of trademark

23 law and shall recommend to the Director of the

24 United States Patent and Trademark Organiza25 tion changes in law or policy which may im-
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1 prove the ability of United States citizens to se2 cure and enforce trademark rights in the Unit3 ed States or in foreign countries.

4 ‘‘(C) REGULATIONS.—The Commissioner

5 may establish regulations, not inconsistent with

6 law, for the conduct of proceedings in the

7 Trademark Office.

8 ‘‘(D) CONSULTATION WITH THE MANAGE9 MENT ADVISORY BOARD.—(i) The Commis10 sioner shall consult with the Trademark Office

11 Management Advisory Board established under

12 section 54—

13 ‘‘(I) on a regular basis on matters re14 lating to the operation of the Office; and

15 ‘‘(II) before submitting budgetary

16 proposals to the Director of the United

17 States Patent and Trademark Organiza18 tion for submission to the Office of Man19 agement and Budget or changing or pro20 posing to change trademark user fees or

21 trademark regulations.

22 ‘‘(E) PUBLICATIONS.—(i) The Commis23 sioner may print, or cause to be printed, the

24 following:
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1 ‘‘(I) Certificates of trademark reg2 istrations, including statements and draw3 ings, together with copies of the same.

4 ‘‘(II) The Official Gazette of the Unit5 ed States Trademark Office.

6 ‘‘(III) Annual indexes of trademarks

7 and registrants.

8 ‘‘(IV) Annual volumes of decisions in

9 trademark cases.

10 ‘‘(V) Pamphlet copies of laws and

11 rules relating to trademarks and circulars

12 or other publications relating to the busi13 ness of the Office.

14 ‘‘(ii) The Commissioner may exchange any

15 of the publications specified under clause (i) for

16 publications desirable for the use of the Trade17 mark Office.

18 ‘‘(3) OATH.—The Commissioner shall, before

19 taking office, take an oath to discharge faithfully the

20 duties of the Office.

21 ‘‘(4) COMPENSATION.—

22 ‘‘(A) IN GENERAL.—The Commissioner

23 shall receive compensation at the rate of pay in

24 effect for level IV of the Executive Schedule
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1 under section 5315 of title 5, United States

2 Code.

3 ‘‘(B) BONUS.—In addition to compensa4 tion under subparagraph (A), the Commissioner

5 may, at the discretion of the Director of the

6 United States Patent and Trademark Organiza7 tion, receive as a bonus, an amount which

8 would raise total compensation to the equivalent

9 of the rate of pay in effect for level III of the

10 Executive Schedule under section 5314 of title

11 5.

12 ‘‘(b) OFFICERS AND EMPLOYEES.—The Commis13 sioner shall appoint a Deputy Commissioner of Trade14 marks who shall be vested with the authority to act in

15 the capacity of the Commissioner in the event of the ab16 sence or incapacity of the Commissioner. In the event of

17 a vacancy in the office of Commissioner, the Deputy Com18 missioner shall fill the office of Commissioner until a new

19 Commissioner is appointed and takes office. Other offi20 cers, attorneys, employees, and agents shall be selected

21 and appointed by the Commissioner, and shall be vested

22 with such powers and duties as the Commissioner may de23 termine.
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1 ‘‘SEC. 54. TRADEMARK OFFICE MANAGEMENT ADVISORY

2 BOARD.

3 ‘‘(a) ESTABLISHMENT OF MANAGEMENT ADVISORY

4 BOARD.—

5 ‘‘(1) APPOINTMENT.—The United States

6 Trademark Office shall have a Management Advi7 sory Board (referred to in this title as the ‘Advisory

8 Board’) of 5 members, who shall be appointed by the

9 President and shall serve at the pleasure of the

10 President. Not more than 3 of the 5 members shall

11 be members of the same political party.

12 ‘‘(2) CHAIR.—The President shall designate a

13 Chair of the Advisory Board, whose term as chair

14 shall be for 3 years.

15 ‘‘(3) TIMING OF APPOINTMENTS.—Initial ap16 pointments to the Advisory Board shall be made

17 within 3 months after the effective date of the Unit18 ed States Patent and Trademark Organization Act

19 of 1997. Vacancies shall be filled in the manner in

20 which the original appointment was made under this

21 section within 3 months after they occur.

22 ‘‘(b) BASIS FOR APPOINTMENTS.—Members of the

23 Advisory Board shall be citizens of the United States who

24 shall be chosen so as to represent the interests of diverse

25 users of the United States Trademark Office, and shall
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1 include individuals with substantial background and

2 achievement in corporate finance and management.

3 ‘‘(c) MEETINGS.—The Advisory Board shall meet at

4 the call of the Chair to consider an agenda set by the

5 Chair.

6 ‘‘(d) DUTIES.—The Advisory Board shall—

7 ‘‘(1) review the policies, goals, performance,

8 budget, and user fees of the United States Trade9 mark Office, and advise the Commissioner on these

10 matters; and

11 ‘‘(2) within 60 days after the end of each fiscal

12 year—

13 ‘‘(A) prepare an annual report on the mat14 ters referred to under paragraph (1);

15 ‘‘(B) transmit the report to the Director of

16 the United States Patent and Trademark Orga17 nization, the President, and the Committees on

18 the Judiciary of the Senate and the House of

19 Representatives; and

20 ‘‘(C) publish the report in the Trademark

21 Office Official Gazette.

22 ‘‘(f) COMPENSATION.—Each member of the Advisory

23 Board shall be compensated for each day (including travel

24 time) during which such member is attending meetings or

25 conferences of the Advisory Board or otherwise engaged
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1 in the business of the Advisory Board, at the rate which

2 is the daily equivalent of the annual rate of basic pay in

3 effect for level III of the Executive Schedule under section

4 5314 of title 5, United States Code, and while away from

5 such member’s home or regular place of business such

6 member may be allowed travel expenses, including per

7 diem in lieu of subsistence, as authorized by section 5703

8 of title 5, United States Code.

9 ‘‘(g) ACCESS TO INFORMATION.—Members of the Ad10 visory Board shall be provided access to records and infor11 mation in the United States Trademark Office, except for

12 personnel or other privileged information.

13 ‘‘(h) APPLICABILITY OF CERTAIN ETHIC LAWS.—

14 Members of the Advisory Board shall be special Govern15 ment employees within the meaning of section 202 of title

16 18, United States Code.

17 ‘‘SEC. 55. ANNUAL REPORT TO CONGRESS.

18 ‘‘The Commissioner shall report to the Director of

19 the United States Patent and Trademark Organization

20 such information as the Director is required to report to

21 Congress annually under chapter 91 of title 5, United

22 States Code, including—

23 ‘‘(1) the moneys received and expended by the

24 Office;
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1 ‘‘(2) the purposes for which the moneys were

2 spent;

3 ‘‘(3) the quality and quantity of the work of the

4 Office; and

5 ‘‘(4) other information relating to the Office.

6 ‘‘SEC. 56. TRADEMARK OFFICE FUNDING.

7 ‘‘(a) FEES PAYABLE TO THE OFFICE.—All fees for

8 services performed by or materials furnished by the Unit9 ed States Trademark Office shall be payable to the Office.

10 ‘‘(b) USE OF MONEYS.—Moneys from fees shall be

11 available to the United States Trademark Office to carry

12 out, to the extent provided in appropriations Acts, the

13 functions of the Office. Moneys of the Office not otherwise

14 used to carry out the functions of the Office shall be kept

15 in cash on hand or on deposit, or invested in obligations

16 of the United States or guaranteed by the United States,

17 or in obligations or other instruments which are lawful in18 vestments for fiduciary, trust, or public funds. Fees avail19 able to the Commissioner under this chapter shall be used

20 only for the registration of trademarks and for other serv21 ices and materials relating to trademarks, including the

22 agreed upon share of any centralized function, as set forth

23 in section 413(b)(2)(E) of the United States Patent and

24 Trademark Organization Act of 1997.
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1 ‘‘(c) CONTRIBUTION TO THE OFFICE OF THE DIREC2 TOR OF THE UNITED STATES PATENT AND TRADEMARK

3 ORGANIZATION.—The Trademark Office shall contribute

4 50 percent of the annual budget of the Office of the Direc5 tor of the United States Patent and Trademark Organiza6 tion.’’.

7 (b) TRADEMARK TRIAL AND APPEAL BOARD.—Sec8 tion 17 of the Act of July 5, 1946 (commonly referred

9 to as the Trademark Act of 1946) (15 U.S.C. 1067) is

10 amended to read as follows:

11 ‘‘SEC. 17. (a) In every case of interference, opposition

12 to registration, application to register as a lawful concur13 rent user, or application to cancel the registration of a

14 mark, the Commissioner shall give notice to all parties and

15 shall direct a Trademark Trial and Appeal Board to deter16 mine and decide the respective rights of registration.

17 ‘‘(b) The Trademark Trial and Appeal Board shall

18 include the Commissioner of Trademarks, the Deputy

19 Commissioner of Trademarks, and administrative trade20 mark judges competent in trademark law who are ap21 pointed by the Commissioner.’’.

22 (c) DETERMINATION OF FEES.—Section 31(a) of the

23 Act of July 5, 1946 (commonly referred to as the Trade24 mark Act of 1946) (15 U.S.C. 1067(a)) is amended by

25 striking the second and third sentences and inserting the
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1 following: ‘‘Fees established under this subsection may be

2 adjusted by the Commissioner, after consulting with the

3 Trademark Office Management Advisory Board in accord4 ance with section 53(a)(2)(C) of this Act and after notice

5 and opportunity for full participation by interested public

6 and private parties. The Director of the United States

7 Patent and Trademark Organization shall determine

8 whether such fees are consistent with the policy direction

9 of the Secretary of Commerce.’’.

10 SEC. 416. SUITS BY AND AGAINST THE ORGANIZATION.

11 (a) ACTIONS UNDER UNITED STATES LAW.—Any

12 civil action or proceeding to which the United States Pat13 ent and Trademark Organization is a party is deemed to

14 arise under the laws of the United States. The Federal

15 courts shall have exclusive jurisdiction over all civil actions

16 by or against the Organization.

17 (b) REPRESENTATION BY THE DEPARTMENT OF JUS18 TICE.—The United States Patent and Trademark Organi19 zation shall be deemed an agency of the United States for

20 purposes of section 516 of title 28, United States Code.

21 (c) PROHIBITION ON ATTACHMENT, LIENS, OR SIMI22 LAR PROCESS.—No attachment, garnishment, lien, or

23 similar process, intermediate or final, in law or equity,

24 may be issued against property of the Organization.
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1 SEC. 417. FUNDING.

2 (a) IN GENERAL.—The activities of the United

3 States Patent and Trademark Organization and each of4 fice of the Organization shall be funded entirely through

5 fees payable to the United States Patent Office (under

6 section 42 of title 35, United States Code) and the United

7 States Trademark Office (under section 56 of the Act of

8 July 5, 1946 (commonly known as the Trademark Act of

9 1946)), and surcharges appropriated by Congress, to the

10 extent provided in appropriations Acts and subject to the

11 provisions of subsection (b).

12 (b) BORROWING AUTHORITY.—

13 (1) IN GENERAL.—The United States Patent

14 and Trademark Organization is authorized to issue

15 from time to time for purchase by the Secretary of

16 the Treasury its debentures, bonds, notes, and other

17 evidences of indebtedness (referred to in this sub18 section as ‘‘obligations’’) to assist in financing the

19 activities of the United States Patent Office and the

20 United States Trademark Office. Borrowing under

21 this section shall be subject to prior approval in ap22 propriations Acts. Such borrowing shall not exceed

23 amounts approved in appropriations Acts.

24 (2) BORROWING AUTHORITY.—Any borrowing

25 under this subsection shall be repaid only from fees

26 paid to the Office for which such obligations were is-
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1 sued and surcharges appropriated by Congress. Such

2 obligations shall be redeemable at the option of the

3 United States Patent and Trademark Organization

4 before maturity in the manner stipulated in such ob5 ligations and shall have such maturity as is deter6 mined by the United States Patent and Trademark

7 Organization with the approval of the Secretary of

8 the Treasury. Each such obligation issued to the

9 Treasury shall bear interest at a rate not less than

10 the current yield on outstanding marketable obliga11 tions of the United States of comparable maturity

12 during the month preceding the issuance of the obli13 gation as determined by the Secretary of the Treas14 ury.

15 (3) PURCHASE OF OBLIGATIONS.—The Sec16 retary of the Treasury shall purchase any obligations

17 of the United States Patent and Trademark Organi18 zation issued under this subsection and for such

19 purpose the Secretary of the Treasury is authorized

20 to use as a public-debt transaction the proceeds of

21 any securities issued under chapter 31 of title 31,

22 United States Code, and the purposes for which se23 curities may be issued under that chapter are ex24 tended to include such purpose.
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1 (4) TREATMENT.—Payment under this sub2 section of the purchase price of such obligations of

3 the United States Patent and Trademark Organiza4 tion shall be treated as public debt transactions of

5 the United States.

6 SEC. 418. TRANSFERS.

7 (a) TRANSFER OF FUNCTIONS.—Except as relates to

8 the direction of patent and trademark policy, there are

9 transferred to, and vested in, the United States Patent

10 and Trademark Organization all functions, powers, and

11 duties vested by law in the Secretary of Commerce or the

12 Department of Commerce or in the officers or components

13 in the Department of Commerce with respect to the au14 thority to grant patents and register trademarks, and in

15 the Patent and Trademark Office, as in effect on the day

16 before the effective date of this subtitle, and in the officers

17 and components of such office.

18 (b) TRANSFER OF FUNDS AND PROPERTY.—The

19 Secretary of Commerce shall transfer to the United States

20 Patent and Trademark Organization, on the effective date

21 of this subtitle, so much of the assets, liabilities, contracts,

22 property, records, and unexpended and unobligated bal23 ances of appropriations, authorizations, allocations, and

24 other funds employed, held, used, arising from, available

25 to, or to be made available to the Department of Com-
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1 merce, including funds set aside for accounts receivable

2 which are related to functions, powers, and duties which

3 are vested in the United States Patent and Trademark

4 Office by this subtitle.

5 SEC. 419. USE OF ORGANIZATION NAME.

6 The use of the terms ‘‘United States Patent and

7 Trademark Organization’’, ‘‘Patent and Trademark Of8 fice’’, ‘‘United States Patent Office’’, ‘‘Patent Office’’,

9 ‘‘United States Trademark Office’’, ‘‘Trademark Office’’,

10 or any combination of such terms, as the name or part

11 thereof under which an individual or entity does business,

12 is prohibited. A violation of this section may be enjoined

13 by any Federal court at the suit of the Organization. In

14 any such suit, the Organization shall be entitled to statu15 tory damages of $1,000 for each day during which such

16 violation continues or is repeated following notice by the

17 Organization and, in addition, may recover actual dam18 ages flowing from such violations.

19 CHAPTER 2—EFFECTIVE DATE;

20 TECHNICAL AMENDMENTS

21 SEC. 431. EFFECTIVE DATE.

22 This subtitle and the amendments made by this sub23 title shall take effect 4 months after the date of enactment

24 of this Act.
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1 SEC. 432. TECHNICAL AND CONFORMING AMENDMENTS.

2 (a) AMENDMENTS TO TITLE 35.—

3 (1) TABLE OF PARTS.—The item relating to

4 part I in the table of parts for title 35, United

5 States Code, is amended to read as follows:

‘‘I. United States Patent Office ................................................................ 1.’’.

6 (2) HEADING.—The heading for part I of title

7 35, United States Code, is amended to read as fol8 lows:

9 ‘‘PART I—UNITED STATES PATENT OFFICE’’.

10 (3) TABLE OF CHAPTERS.—The table of chap11 ters for part I of title 35, United States Code, is

12 amended by amending the item relating to chapter

13 1 to read as follows:

‘‘1. Establishment, Officers and Employees, Functions ...... 1’’.

14 (4) TABLE OF SECTIONS.—The table of sections

15 for chapter 1 of title 35, United States Code, is

16 amended to read as follows:

17 ‘‘CHAPTER 1—ESTABLISHMENT, OFFICERS

18 AND EMPLOYEES, FUNCTIONS

‘‘Sec.

‘‘1. Establishment.

‘‘2. Powers and duties.

‘‘3. Officers and employees.

‘‘4. Restrictions on officers and employees as to interest in patents.

‘‘5. Patent Office Management Advisory Board.

‘‘6. Duties of Commissioner.

‘‘7. Board of Patent Appeals and Interferences.

‘‘8. Library.

‘‘9. Classification of patents.

‘‘10. Certified copies of records.

‘‘11. Publications.
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‘‘12. Exchange of copies of patents with foreign countries.

‘‘13. Copies of patents for public libraries.

‘‘14. Annual report to Congress.’’.

1 (5) COMMISSIONER OF PATENTS AND TRADE2 MARKS.—(A) Section 41(h)(1) of title 35, United

3 States Code, is amended by striking ‘‘Commissioner

4 of Patents and Trademarks’’ and inserting ‘‘Com5 missioner’’.

6 (B) Section 155 of title 35, United States Code,

7 is amended by striking ‘‘Commissioner of Patents

8 and Trademarks’’ and inserting ‘‘Commissioner’’.

9 (C) Section 155A(c) of title 35, United States

10 Code, is amended by striking ‘‘Commissioner of Pat11 ents’’ and inserting ‘‘Commissioner’’.

12 (6) PATENT AND TRADEMARK OFFICE.—The

13 provisions of title 35, United States Code, are

14 amended by striking ‘‘Patent and Trademark Of15 fice’’ each place it appears and inserting ‘‘Patent Of16 fice’’.

17 (7) SECRETARY OF COMMERCE.—Section

18 157(d) of title 35, United States Code, is amended

19 by striking ‘‘Secretary of Commerce’’ and inserting

20 ‘‘Director of the United States Patent and Trade21 mark Organization’’.

22 (b) AMENDMENTS TO THE TRADEMARK ACT OF

23 1946.—
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1 (1) REFERENCES.—All amendments in this

2 subsection refer to the Act of July 5, 1946 (com3 monly referred to as the Trademark Act of 1946).

4 (2) AMENDMENTS RELATING TO COMMIS5 SIONER.—Section 61 (as redesignated by section

6 415(a)(2) of this title) is amended by striking the

7 undesignated paragraph relating to the definition of

8 the term ‘‘Commissioner’’ and inserting the follow9 ing:

10 ‘‘The term ‘Commissioner’ means the Commissioner

11 of Trademarks.’’.

12 (3) AMENDMENTS RELATING TO PATENT AND

13 TRADEMARK OFFICE.—(A) Section 1(a)(1) is

14 amended by striking ‘‘Patent and Trademark Of15 fice’’ and inserting ‘‘Trademark Office’’.

16 (B) Section 1(a)(2) is amended by striking

17 ‘‘Patent and Trademark Office’’ and inserting

18 ‘‘Trademark Office’’.

19 (C) Section 1(b)(1) is amended by striking

20 ‘‘Patent and Trademark Office’’ and inserting

21 ‘‘Trademark Office’’.

22 (D) Section 1(b)(2) is amended by striking

23 ‘‘Patent and Trademark Office’’ and inserting

24 ‘‘Trademark Office’’.
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1 (E) Section 1(d)(1) is amended by striking

2 ‘‘Patent and Trademark Office’’ each place such

3 term appears and inserting ‘‘Trademark Office’’.

4 (F) Section 1(e) is amended by striking ‘‘Pat5 ent and Trademark Office’’ and inserting ‘‘Trade6 mark Office’’.

7 (G) Section 2(d) is amended by striking ‘‘Pat8 ent and Trademark Office’’ and inserting ‘‘Trade9 mark Office’’.

10 (H) Section 7(a) is amended by striking ‘‘Pat11 ent and Trademark Office’’ each place such term ap12 pears and inserting ‘‘Trademark Office’’.

13 (I) Section 7(d) is amended by striking ‘‘Patent

14 and Trademark Office’’ and inserting ‘‘Trademark

15 Office’’.

16 (J) Section 7(e) is amended by striking ‘‘Patent

17 and Trademark Office’’ each place such term ap18 pears and inserting ‘‘Trademark Office’’.

19 (K) Section 7(f) is amended by striking ‘‘Pat20 ent and Trademark Office’’ each place such term ap21 pears and inserting ‘‘Trademark Office’’.

22 (L) Section 7(g) is amended by striking ‘‘Pat23 ent and Trademark Office’’ each place such term ap24 pears and inserting ‘‘Trademark Office’’.
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1 (M) Section 8(a) is amended by striking ‘‘Pat2 ent and Trademark Office’’ and inserting ‘‘Trade3 mark Office’’.

4 (N) Section 8(b) is amended by striking ‘‘Pat5 ent and Trademark Office’’ and inserting ‘‘Trade6 mark Office’’.

7 (O) Section 10 is amended by striking ‘‘Patent

8 and Trademark Office’’ each place such term ap9 pears and inserting ‘‘Trademark Office’’.

10 (P) Section 12(a) is amended by striking ‘‘Pat11 ent and Trademark Office’’ and inserting ‘‘Trade12 mark Office’’.

13 (Q) Section 13(a) is amended by striking ‘‘Pat14 ent and Trademark Office’’ and inserting ‘‘Trade15 mark Office’’.

16 (R) Section 13(b)(1) is amended by striking

17 ‘‘Patent and Trademark Office’’ each place such

18 term appears and inserting ‘‘Trademark Office’’.

19 (S) Section 15(2) is amended by striking ‘‘Pat20 ent and Trademark Office’’ and inserting ‘‘Trade21 mark Office’’.

22 (T) Section 17 is amended by striking ‘‘Patent

23 and Trademark Office’’ and inserting ‘‘Trademark

24 Office’’.
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1 (U) Section 21(a)(2) is amended by striking

2 ‘‘Patent and Trademark Office’’ and inserting

3 ‘‘Trademark Office’’.

4 (V) Section 21(a)(3) is amended by striking

5 ‘‘Patent and Trademark Office’’ each place such

6 term appears and inserting ‘‘Trademark Office’’.

7 (W) Section 21(a)(4) is amended by striking

8 ‘‘Patent and Trademark Office’’ each place such

9 term appears and inserting ‘‘Trademark Office’’.

10 (X) Section 21(b)(3) is amended by striking

11 ‘‘Patent and Trademark Office’’ each place such

12 term appears and inserting ‘‘Trademark Office’’.

13 (Y) Section 21(b)(4) is amended by striking

14 ‘‘Patent and Trademark Office’’ and inserting

15 ‘‘Trademark Office’’.

16 (Z) Section 24 is amended by striking ‘‘Patent

17 and Trademark Office’’ and inserting ‘‘Trademark

18 Office’’.

19 (AA) Section 29 is amended by striking ‘‘Pat20 ent and Trademark Office’’ each place such term ap21 pears and inserting ‘‘Trademark Office’’.

22 (BB) Section 30 is amended by striking ‘‘Pat23 ent and Trademark Office’’ and inserting ‘‘Trade24 mark Office’’.
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1 (CC) Section 31(a) is amended by striking

2 ‘‘Patent and Trademark Office’’ and inserting

3 ‘‘Trademark Office’’.

4 (DD) Section 34(a) is amended by striking

5 ‘‘Patent and Trademark Office’’ and inserting

6 ‘‘Trademark Office’’.

7 (EE) Section 34(d)(1)(B)(i) is amended by

8 striking ‘‘Patent and Trademark Office’’ and insert9 ing ‘‘Trademark Office’’.

10 (FF) Section 35(a) is amended by striking

11 ‘‘Patent and Trademark Office’’ and inserting

12 ‘‘Trademark Office’’.

13 (GG) Section 36 is amended by striking ‘‘Pat14 ent and Trademark Office’’ and inserting ‘‘Trade15 mark Office’’.

16 (HH) Section 37 is amended by striking ‘‘Pat17 ent and Trademark Office’’ and inserting ‘‘Trade18 mark Office’’.

19 (II) Section 38 is amended by striking ‘‘Patent

20 and Trademark Office’’ and inserting ‘‘Trademark

21 Office’’.

22 (JJ) Section 39(b) is amended by striking

23 ‘‘Patent and Trademark Office’’ and inserting

24 ‘‘Trademark Office’’.
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1 (KK) Section 41 is amended by striking ‘‘Pat2 ent and Trademark Office’’ and inserting ‘‘Trade3 mark Office’’.

4 (LL) Section 61 (as redesignated under section

5 415(a)(2) of this title) is amended in the undesig6 nated paragraph relating to the definition of ‘‘reg7 istered mark’’—

8 (i) by striking ‘‘Patent and Trade Mark

9 Office’’ and inserting ‘‘Trademark Office; and

10 (ii) by striking ‘‘Patent and Trade Office’’

11 and inserting ‘‘Trademark Office’’.

12 (MM) Section 72(a) (as redesignated under sec13 tion 415(a)(2) of this title) is amended by striking

14 ‘‘Patent and Trademark Office’’ and inserting

15 ‘‘Trademark Office’’.

16 (NN) Section 75 (as redesignated under section

17 415(a)(2) of this title) is amended by striking ‘‘Pat18 ent and Trademark Office’’ and inserting ‘‘Trade19 mark Office’’.

20 (c) AMENDMENTS TO TITLE 5.—Title 5, United

21 States Code, is amended—

22 (1) in section 5102(c)(23)—

23 (A) by striking ‘‘examiners-in-chief’’ in

24 each place it appears and inserting ‘‘adminis25 trative patent judges’’; and
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1 (B) by striking ‘‘Office, Department of

2 Commerce’’ and inserting ‘‘Organization’’; and

3 (2) in section 5316—

4 (A) by striking ‘‘Commissioner of Patents,

5 Department of Commerce.’’; and

6 (B) by striking:

7 ‘‘Deputy Commissioner of Patents and Trade8 marks.

9 ‘‘Assistant Commissioner for Patents.

10 ‘‘Assistant Commissioner for Trademarks.’’.

11 (d) AMENDMENT TO TITLE 31.—Section 9101(3) of

12 title 31, United States Code, is amended by adding at the

13 end the following:

14 ‘‘(O) the United States Patent and Trade15 mark Organization.’’.

16 (e) AMENDMENTS TO INSPECTOR GENERAL ACT OF

17 1978.—Section 11 of the Inspector General Act of 1978

18 (5 U.S.C. App.) is amended—

19 (1) in paragraph (1) by striking ‘‘or the Com20 missioner of Social Security, Social Security Admin21 istration;’’ and inserting ‘‘the Commissioner of So22 cial Security, Social Security Administration; or the

23 Director of the United States Patent and Trade24 mark Organization, United States Patent and

25 Trademark Organization;’’; and
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1 (2) in paragraph (2) by striking ‘‘or the Veter2 ans’ Administration, or the Social Security Adminis3 tration;’’ and inserting ‘‘the Veterans’ Administra4 tion, the Social Security Administration, or the

5 United States Patent and Trademark Organiza6 tion;’’.

7 Subtitle B—Early Publication of

8 Patent Applications

9 SEC. 441. SHORT TITLE.

10 This subtitle may be cited as the ‘‘Patent Application

11 Publication Act of 1997’’.

12 SEC. 442. EARLY PUBLICATION.

13 Section 122 of title 35, United States Code, is

14 amended to read as follows:

15 ‘‘§ 122. Confidential status of applications; publica16 tion of patent applications

17 ‘‘(a) CONFIDENTIALITY.—Except as provided in sub18 section (b), applications for patents shall be kept in con19 fidence by the Patent Office and no information concern20 ing the same given without authority of the applicant or

21 owner unless necessary to carry out the provisions of an

22 Act of Congress or in such special circumstances as may

23 be determined by the Commissioner.

24 ‘‘(b) PUBLICATION.—
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1 ‘‘(1) IN GENERAL.—(A) Subject to paragraph

2 (2), each application for patent, except applications

3 for design patents filed under chapter 16 of this title

4 and provisional applications filed under section

5 111(b) of this title, shall be published, in accordance

6 with procedures determined by the Commissioner, as

7 soon as possible after the expiration of a period of

8 18 months from the earliest filing date for which a

9 benefit is sought under this title. At the request of

10 the applicant, an application may be published ear11 lier than the end of such 18-month period.

12 ‘‘(B) No information concerning published pat13 ent applications shall be made available to the public

14 except as the Commissioner determines.

15 ‘‘(C) Notwithstanding any other provision of

16 law, a determination by the Commissioner to release

17 or not to release information concerning a published

18 patent application shall be final and nonreviewable.

19 ‘‘(2) EXCEPTIONS.—(A) An application that is

20 no longer pending shall not be published.

21 ‘‘(B) An application that is subject to a secrecy

22 order pursuant to section 181 of this title shall not

23 be published.

24 ‘‘(C)(i) Where an applicant makes a request

25 upon filing, certifying that the invention disclosed in
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1 the application has not and will not be the subject

2 of an application filed in a foreign country, the ap3 plication shall not be published as provided in para4 graph (1).

5 ‘‘(ii) An applicant may rescind a request made

6 under clause (i) at any time. An applicant has a

7 duty to notify the Director within 1 month of filing

8 an application in a foreign country.

9 ‘‘(iii) Where an applicant rescinds a request

10 made under clause (i) or notifies the Director that

11 an application was filed in a foreign country, the ap12 plication shall be published in accordance with the

13 provisions of paragraph (1).

14 ‘‘(c) PRE-ISSUANCE OPPOSITION.—The provisions of

15 this section shall not operate to create any new oppor16 tunity for pre-issuance opposition. The Commissioner may

17 establish appropriate procedures to ensure that this sec18 tion does not create any new opportunity for pre-issuance

19 opposition that did not exist prior to the adoption of this

20 section.

21 ‘‘(d) STUDY.—

22 ‘‘(1) IN GENERAL.—The General Accounting

23 Office shall conduct a 3-year study of the applicants

24 who file only in the United States after the effective

25 date of this title.
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1 ‘‘(2) CONTENTS.—The study conducted under

2 paragraph (1) shall—

3 ‘‘(A) consider the number of such appli4 cants in relation to the number of applicants

5 who file in the United States and outside the

6 United States;

7 ‘‘(B) examine how many domestic-only fil8 ers request at the time of filing not to be pub9 lished;

10 ‘‘(C) examine how many such filers rescind

11 that request or later choose to file abroad; and

12 ‘‘(D) examine the manner of entity seeking

13 an application and any correlation that may

14 exist between such manner and publication of

15 patent applications.’’.

16 SEC. 443. TIME FOR CLAIMING BENEFIT OF EARLIER FIL17 ING DATE.

18 (a) IN A FOREIGN COUNTRY.—Section 119(b) of title

19 35, United States Code, is amended to read as follows:

20 ‘‘(b)(1) No application for patent shall be entitled to

21 this right of priority unless a claim, identifying the foreign

22 application by specifying its application number, country,

23 and the day, month, and year of its filing, is filed in the

24 Patent Office at such time during the pendency of the ap25 plication as required by the Commissioner.
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1 ‘‘(2) The Commissioner may consider the failure of

2 the applicant to file a timely claim for priority as a waiver

3 of any such claim. The Commissioner may establish proce4 dures, including the payment of a surcharge, to accept an

5 unintentionally delayed claim under this section.

6 ‘‘(3) The Commissioner may require a certified copy

7 of the original foreign application, specification, and draw8 ings upon which it is based, a translation if not in the

9 English language, and such other information as the Com10 missioner considers necessary. Any such certification shall

11 be made by the foreign intellectual property authority in

12 which the foreign application was filed and show the date

13 of the application and of the filing of the specification and

14 other papers.’’.

15 (b) IN THE UNITED STATES.—Section 120 of title

16 35, United States Code, is amended by adding at the end

17 the following: ‘‘The Commissioner may determine the time

18 period during the pendency of the application within which

19 an amendment containing the specific reference to the ear20 lier filed application is submitted. The Commissioner may

21 consider the failure to submit such an amendment within

22 that time period as a waiver of any benefit under this sec23 tion. The Commissioner may establish procedures, includ24 ing the payment of a surcharge, to accept unavoidably late

25 submissions of amendments under this section.’’.
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1 SEC. 444. PROVISIONAL RIGHTS.

2 Section 154 of title 35, United States Code, is

3 amended—

4 (1) in the section caption by inserting ‘‘; pro5 visional rights’’ after ‘‘patent’’; and

6 (2) by adding at the end the following new sub7 section:

8 ‘‘(d) PROVISIONAL RIGHTS.—

9 ‘‘(1) IN GENERAL.—In addition to other rights

10 provided by this section, a patent shall include the

11 right to obtain a reasonable royalty from any person

12 who, during the period beginning on the date of pub13 lication of the application for such patent pursuant

14 to section 122(b) of this title, or in the case of an

15 international application filed under the treaty de16 fined in section 351(a) of this title designating the

17 United States under Article 21(2)(a) of such treaty,

18 the date of publication of the application, and ending

19 on the date the patent is issued—

20 ‘‘(A)(i) makes, uses, offers for sale, or sells

21 in the United States the invention as claimed in

22 the published patent application or imports

23 such an invention into the United States; or

24 ‘‘(ii) if the invention as claimed in the pub25 lished patent application is a process, uses, of26 fers for sale, or sells in the United States or
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1 imports into the United States products made

2 by that process as claimed in the published pat3 ent application; and

4 ‘‘(B) had actual notice of the published

5 patent application, and where the right arising

6 under this paragraph is based upon an inter7 national application designating the United

8 States that is published in a language other

9 than English, a translation of the international

10 application into the English language.

11 ‘‘(2) RIGHT BASED ON SUBSTANTIALLY IDEN12 TICAL INVENTIONS.—The right under paragraph (1)

13 to obtain a reasonable royalty shall not be available

14 under this subsection unless the invention as claimed

15 in the patent is substantially identical to the inven16 tion as claimed in the published patent application.

17 ‘‘(3) TIME LIMITATION ON OBTAINING A REA18 SONABLE ROYALTY.—The right under paragraph (1)

19 to obtain a reasonable royalty shall be available only

20 in an action brought not later than 6 years after the

21 patent is issued. The right under paragraph (1) to

22 obtain a reasonable royalty shall not be affected by

23 the duration of the period described in paragraph

24 (1).
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1 ‘‘(4) REQUIREMENTS FOR INTERNATIONAL AP2 PLICATIONS.—

3 ‘‘(A) EFFECTIVE DATE.—The right under

4 paragraph (1) to obtain a reasonable royalty

5 based upon the publication under the treaty of

6 an international application designating the

7 United States shall commence from the date

8 that the Patent Office receives a copy of the

9 publication under the treaty defined in section

10 351(a) of this title of the international applica11 tion, or, if the publication under the treaty of

12 the international application is in a language

13 other than English, from the date that the Pat14 ent Office receives a translation of the inter15 national application in the English language.

16 ‘‘(B) COPIES.—The Commissioner may re17 quire the applicant to provide a copy of the

18 international application and a translation

19 thereof.

20 ‘‘(5) ISSUANCE OF PATENTS ON INDIVIDUAL

21 CLAIMS.—Where the Director in a notification to the

22 applicant under section 132 of this title indicates

23 that one or more claims of a published application

24 are allowable, the applicant may request the issu25 ance of a patent incorporating those claims. The ap-
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1 plicant may continue prosecution of the remaining

2 claims as provided in chapter 12 of this title. Any

3 subsequently allowed claims may be incorporated

4 into the patent. The Director may establish appro5 priate fees to cover the costs of incorporating any

6 additional claims into the patent.’’.

7 SEC. 445. PRIOR ART EFFECT OF PUBLISHED APPLICA8 TIONS.

9 Section 102(e) of title 35, United States Code, is

10 amended to read as follows:

11 ‘‘(e) the invention was described in—

12 ‘‘(1)(A) an application for patent, published

13 pursuant to section 122(b) of this title, by another

14 filed in the United States before the invention by the

15 applicant for patent, except that an international ap16 plication filed under the treaty defined in section

17 351(a) of this title shall have the effect under this

18 subsection of a national application published under

19 section 122(b) of this title only if the international

20 application designating the United States was pub21 lished under Article 21(2)(a) of such treaty in the

22 English language, or

23 ‘‘(B) a patent granted on an application for

24 patent by another filed in the United States before

25 the invention by the applicant for patent, or’’.
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1 SEC. 446. COST RECOVERY FOR PUBLICATION.

2 The Commissioner of Patents shall recover the cost

3 of early publication required by the amendment made by

4 section 442 by adjusting the filing, issue, and maintenance

5 fees under title 35, United States Code, by charging a sep6 arate publication fee, or by any combination of these meth7 ods.

8 SEC. 447. CONFORMING CHANGES.

9 The following provisions of title 35, United States

10 Code, are amended:

11 (1) Section 11 is amended in paragraph 1 of

12 subsection (a) by inserting ‘‘and published applica13 tions for patents’’ after ‘‘Patents’’.

14 (2) Section 12 is amended—

15 (A) in the section caption by inserting

16 ‘‘and applications’’ after ‘‘patents’’; and

17 (B) by inserting ‘‘and published applica18 tions for patents’’ after ‘‘patents’’.

19 (3) Section 13 is amended—

20 (A) in the section caption by inserting

21 ‘‘and applications’’ after ‘‘patents’’; and

22 (B) by inserting ‘‘and published applica23 tions for patents’’ after ‘‘patents’’.

24 (4) The items relating to sections 12 and 13 in

25 the table of sections for chapter 1 are each amended

26 by inserting ‘‘and applications’’ after ‘‘patents’’.
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1 (5) The item relating to section 122 in the table

2 of sections for chapter 11 is amended by inserting

3 ‘‘; publication of patent applications’’ after ‘‘applica4 tions’’.

5 (6) The item relating to section 154 in the table

6 of sections for chapter 14 is amended by inserting

7 ‘‘; provisional rights’’ after ‘‘patent’’.

8 (7) Section 181 is amended—

9 (A) in the first undesignated paragraph—

10 (i) by inserting ‘‘by the publication of

11 an application or’’ after ‘‘disclosure’’; and

12 (ii) ‘‘the publication of the application

13 or’’ after ‘‘withhold’’;

14 (B) in the second undesignated paragraph

15 by inserting ‘‘by the publication of an applica16 tion or’’ after ‘‘disclosure of an invention’’;

17 (C) in the third undesignated paragraph—

18 (i) by inserting ‘‘by the publication of

19 the application or’’ after ‘‘disclosure of the

20 invention’’; and

21 (ii) ‘‘the publication of the application

22 or’’ after ‘‘withhold’’; and

23 (D) in the fourth undesignated paragraph

24 by inserting ‘‘the publication of an application

25 or’’ after ‘‘and’’ in the first sentence.
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1 (8) Section 252 is amended in the first undesig2 nated paragraph by inserting ‘‘substantially’’ before

3 ‘‘identical’’ each place it appears.

4 (9) Section 284 is amended by adding at the

5 end of the second undesignated paragraph the fol6 lowing: ‘‘Increased damages under this paragraph

7 shall not apply to provisional rights under section

8 154(d) of this title.’’.

9 (10) Section 374 is amended to read as follows:

10 ‘‘§ 374. Publication of international application: Ef11 fect

12 ‘‘The publication under the treaty, defined in section

13 351(a) of this title, of an international application des14 ignating the United States shall confer the same rights

15 and shall have the same effect under this title as an appli16 cation for patent published under section 122(b), except

17 as provided in sections 102(e) and 154(d) of this title.’’.

18 SEC. 448. LAST DAY OF PENDENCY OF PROVISIONAL APPLI19 CATION.

20 Section 119(e) of title 35, United States Code, is

21 amended by adding at the end the following:

22 ‘‘(3) If the day that is 12 months after the filing date

23 of a provisional application falls on a Saturday, Sunday,

24 or legal holiday as defined in rule 6(a) of the Federal

25 Rules of Civil Procedure, the period of pendency of the
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1 provisional application shall be extended to the next suc2 ceeding business day.’’.

3 SEC. 449. EFFECTIVE DATE.

4 (a) SECTIONS 442 THROUGH 447.—Sections 442

5 through 447, and the amendments made by such sections,

6 shall take effect on the date that is 1 year after the date

7 of enactment of this Act and shall apply to all applications

8 filed under section 111 of title 35, United States Code,

9 on or after that date, and all applications complying with

10 section 371 of title 35, United States Code, that resulted

11 from international applications filed on or after that date.

12 The amendment made by section 444 shall also apply to

13 international applications designating the United States

14 that are filed on or after the date that is 1 year after

15 the date of enactment of this Act.

16 (b) SECTION 448.—The amendments made by sec17 tion 448 shall take effect on the date of enactment of this

18 Act and, except for a design patent application filed under

19 chapter 16 of title 35, United States Code, shall apply to

20 any application filed on or after June 8, 1995.

21 Subtitle C—Patent Term

22 Restoration

23 SEC. 451. PATENT TERM RESTORATION AUTHORITY.

24 Section 154(b) of title 35, United States Code, is

25 amended to read as follows:
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1 ‘‘(b) ADJUSTMENT OF PATENT TERM.—

2 ‘‘(1) BASIS FOR PATENT TERM RESTORA3 TION.—

4 ‘‘(A) DELAY.—Subject to the limitations

5 under paragraph (2), if the issue of an original

6 patent is delayed due to—

7 ‘‘(i) a proceeding under section 135(a)

8 of this title;

9 ‘‘(ii) the imposition of an order pursu10 ant to section 181 of this title;

11 ‘‘(iii) appellate review by the Board of

12 Patent Appeals and Interferences or by a

13 Federal court where the patent was issued

14 pursuant to a decision in the review revers15 ing an adverse determination of patentabil16 ity; or

17 ‘‘(iv) an unusual administrative delay

18 by the Patent Office in issuing the patent,

19 the term of the patent shall be adjusted for the

20 period of delay.

21 ‘‘(B) ADMINISTRATIVE DELAY.—For pur22 poses of subparagraph (A)(iv), an unusual ad23 ministrative delay by the Patent Office is the

24 failure to—
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1 ‘‘(i) make a notification of the rejec2 tion of any claim for a patent or any objec3 tion or argument under section 132 of this

4 title or give or mail a written notice of al5 lowance under section 151 of this title not

6 later than 14 months after the date on

7 which the application was filed;

8 ‘‘(ii) respond to a reply under section

9 132 of this title or to an appeal taken

10 under section 134 of this title not later

11 than 4 months after the date on which the

12 reply was filed or the appeal was taken;

13 ‘‘(iii) act on an application not later

14 than 4 months after the date of a decision

15 by the Board of Patent Appeals and Inter16 ferences under section 134 or 135 of this

17 title or a decision by a Federal court under

18 section 141, 145, or 146 of this title where

19 allowable claims remain in an application;

20 ‘‘(iv) issue a patent not later than 4

21 months after the date on which the issue

22 fee was paid under section 151 of this title

23 and all outstanding requirements were sat24 isfied; or
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1 ‘‘(v) issue a patent within 3 years

2 after the actual filing date of the applica3 tion in the United States, if the appli4 cant—

5 ‘‘(I) has not obtained further lim6 ited examination of the application

7 under section 132(b) of this title;

8 ‘‘(II) has not benefited from an

9 adjustment of patent term under

10 clause (i), (ii), or (iii) or paragraph

11 (1)(A);

12 ‘‘(III) has not sought or obtained

13 appellate review by the Board of Pat14 ent Appeals and Interferences or by a

15 Federal court other than in a case in

16 which the patent was issued pursuant

17 to a decision in the review reversing

18 an adverse determination of patent19 ability; and

20 ‘‘(IV) has not requested any

21 delay in the processing of the applica22 tion by the Patent Office.

23 ‘‘(2) LIMITATIONS.—

24 ‘‘(A) IN GENERAL.—The total duration of

25 any adjustments granted pursuant to either
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1 subclause (iii) or (iv) of paragraph (1)(A) or

2 both such subclauses shall not exceed 10 years.

3 To the extent that periods of delay attributable

4 to grounds specified in paragraph (1) overlap,

5 the period of any adjustment granted under

6 this subsection shall not exceed the actual num7 ber of days the issuance of the patent was de8 layed.

9 ‘‘(B) REDUCTION OF ADJUSTMENT.—The

10 period of adjustment of the term of a patent

11 under this subsection shall be reduced by a pe12 riod equal to the time in which the applicant

13 failed to engage in reasonable efforts to con14 clude prosecution of the application. The Com15 missioner shall prescribe regulations establish16 ing the circumstances that constitute a failure

17 of an applicant to engage in reasonable efforts

18 to conclude processing or examination of an ap19 plication.

20 ‘‘(C) DISCLAIMED TERM.—No patent the

21 term of which has been disclaimed beyond a

22 specified date may be adjusted under this sec23 tion beyond the expiration date specified in the

24 disclaimer.
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1 ‘‘(D) APPLICANT DELAY.—The period of

2 adjustment of the term of a patent under clause

3 (iv) of paragraph (1)(A), which is based on the

4 failure of the Patent Office to meet the criteria

5 set forth in clause (v) of paragraph (1)(B),

6 shall be reduced by the cumulative total of any

7 periods of time that an applicant takes to re8 spond in excess of 3 months after the date on

9 which the Patent Office makes any rejection,

10 objection, argument, or other request, except

11 that the Commissioner, upon petition from the

12 applicant in the case of a nonprofit research

13 laboratory or nonprofit entity such as a univer14 sity, research center, or hospital, shall reinstate

15 all or part of such time upon a showing of good

16 cause by the applicant, but in no case more

17 than 3 additional months for each such re18 sponse beyond 3 months.

19 ‘‘(3) PROCEDURES.—The Commissioner shall

20 prescribe regulations establishing procedures for the

21 notification of patent term extensions under this

22 subsection and procedures for contesting patent

23 term extensions under this subsection.

24 ‘‘(4) NOTICE TO COMMISSIONER.—In a case in

25 which a patent term is adjusted under this sub-
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1 section, the Commissioner shall determine the period

2 of any patent term adjustment available under this

3 section and shall include a copy of that determina4 tion with the final notice. The Commissioner shall

5 prescribe regulations establishing procedures for the

6 application for, and notification of, patent term ad7 justments granted by the Commissioner under this

8 subsection.

9 ‘‘(5) JUDICIAL REVIEW.—Any applicant dissat10 isfied with a determination of the Commissioner

11 under paragraph (3) may have remedy by civil ac12 tion in the United States Court of Federal Claims

13 if commenced within 180 days after the mailing of

14 the notice of allowance as the Commissioner ap15 points. The initiation of a civil action under this sec16 tion shall not delay the issuance of a patent.’’.

17 SEC. 452. FURTHER EXAMINATION OF PATENT APPLICA18 TIONS.

19 Section 132 of title 35, United States Code, is

20 amended—

21 (1) in the first sentence by striking ‘‘Whenever’’

22 and inserting ‘‘(a) Whenever’’; and

23 (2) by adding at the end the following:

24 ‘‘(b) The Commissioner shall prescribe regulations to

25 provide for the further limited reexamination of applica-
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1 tions for patent at the request of the applicant. The Com2 missioner may establish appropriate fees for such further

3 limited examination and shall be authorized to provide a

4 50 percent reduction on such fees for small entities that

5 qualify for reduced fees under section 41(h)(1) of this

6 title.’’.

7 SEC. 453. TECHNICAL CLARIFICATION.

8 Section 156(a) of title 35, United States Code, is

9 amended—

10 (1) in the matter preceding paragraph (1) by

11 inserting ‘‘, which shall include any patent term ad12 justment granted under section 154(b),’’ after ‘‘the

13 original expiration date of the patent’’.

14 SEC. 454. EFFECTIVE DATE.

15 The amendments made by section 451 shall take ef16 fect on the date of enactment of this Act and, except for

17 a design patent application filed under chapter 16 of title

18 35, United States Code, shall apply to any application

19 filed on or after June 8, 1995.

20 Subtitle D—Prior Domestic

21 Commercial Use

22 SEC. 461. SHORT TITLE.

23 This subtitle may be cited as the ‘‘Prior Domestic

24 Commercial Use Act of 1997’’.
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1 SEC. 462. DEFENSE TO PATENT INFRINGEMENT BASED ON

2 PRIOR DOMESTIC COMMERCIAL USE.

3 (a) DEFENSE.—Chapter 28 of title 35, United States

4 Code, is amended by adding at the end the following new

5 section:

6 ‘‘§ 273. Prior domestic commercial use; defense to in7 fringement

8 ‘‘(a) DEFINITIONS.—For purposes of this section—

9 ‘‘(1) the terms ‘commercially used’, ‘commer10 cially use’, and ‘commercial use’—

11 ‘‘(A) mean the use in the United States in

12 commerce, use by the United States, or the use

13 in the design, testing, or production in the

14 United States of a product or service which is

15 used in commerce or used by the United States,

16 whether or not the subject matter at issue is ac17 cessible to or otherwise known to the public;

18 and

19 ‘‘(B) includes in the case of activities per20 formed by a nonprofit research laboratory, or

21 nonprofit entity such as a university, research

22 center, or hospital, a use for which the public

23 is the intended beneficiary shall be considered

24 to be a use described in subparagraph (A) ex25 cept that the use—
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1 ‘‘(i) may be asserted as a defense

2 under this section only for continued use

3 by and in the laboratory or nonprofit en4 tity; and

5 ‘‘(ii) may not be asserted as a defense

6 with respect to any subsequent commer7 cialization or use outside such laboratory

8 or nonprofit entity;

9 ‘‘(2) the terms ‘used in commerce’, and ‘use in

10 commerce’ mean that there has been an actual

11 arms-length sale or other commercial transfer, or

12 use by the United States, of the subject matter at

13 issue or that there has been an actual arms-length

14 sale or other commercial transfer, or use by the

15 United States, of a product or service resulting from

16 the use of the subject matter at issue; and

17 ‘‘(3) the ‘effective filing date’ of a patent is the

18 earlier of the actual filing date of the application for

19 the patent or the filing date of any earlier United

20 States, foreign, or international application to which

21 the subject matter at issue is entitled under section

22 119, 120, or 365 of this title.

23 ‘‘(b) DEFENSE TO INFRINGEMENT.—

24 ‘‘(1) IN GENERAL.—A person shall not be liable

25 as an infringer under section 271 of this title, nor
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1 shall the United States be held liable under section

2 1498(a) of title 28, with respect to any subject mat3 ter that would otherwise infringe one or more claims

4 in the patent being asserted against such person, if

5 such person had, acting in good faith, commercially

6 used the subject matter before the effective filing

7 date of such patent.

8 ‘‘(2) EXHAUSTION OF RIGHT.—The sale or

9 other disposition of the subject matter of a patent

10 by a person entitled to assert a defense under this

11 section with respect to that subject matter shall ex12 haust the patent owner’s rights under the patent to

13 the extent such rights would have been exhausted

14 had such sale or other disposition been made by the

15 patent owner.

16 ‘‘(c) LIMITATIONS AND QUALIFICATIONS OF DE17 FENSE.—The defense to infringement under this section

18 is subject to the following:

19 ‘‘(1) DERIVATION.—A person may not assert

20 the defense under this section if the subject matter

21 on which the defense is based was derived from the

22 patentee or persons in privity with the patentee.

23 ‘‘(2) NOT A GENERAL LICENSE.—The defense

24 asserted by a person under this section is not a gen25 eral license under all claims of the patent at issue,
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1 but extends only to the subject matter claimed in the

2 patent with respect to which the person can assert

3 a defense under this chapter, except that the defense

4 shall also extend to variations in the quantity or vol5 ume of use of the claimed subject matter, and to im6 provements in the claimed subject matter that do

7 not infringe additional specifically claimed subject

8 matter of the patent.

9 ‘‘(3) EFFECTIVE AND SERIOUS PREPARA10 TION.—With respect to subject matter that cannot

11 be commercialized without a significant investment

12 of time, money, and effort, a person shall be deemed

13 to have commercially used the subject matter if—

14 ‘‘(A) before the effective filing date of the

15 patent, the person reduced the subject matter

16 to practice in the United States, completed a

17 significant portion of the total investment nec18 essary to commercially use the subject matter,

19 and made an arms-length commercial trans20 action in the United States in connection with

21 the preparation to use the subject matter; and

22 ‘‘(B) thereafter the person diligently com23 pleted the remainder of the activities and in24 vestments necessary to commercially use the

25 subject matter, and promptly began commercial
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1 use of the subject matter, even if such activities

2 were conducted after the effective filing date of

3 the patent.

4 ‘‘(4) BURDEN OF PROOF.—A person asserting

5 the defense under this section shall have the burden

6 of establishing the defense.

7 ‘‘(5) ABANDONMENT OF USE.—A person who

8 has abandoned commercial use of subject matter

9 may not rely on activities performed before the date

10 of such abandonment in establishing a defense under

11 subsection (b) with respect to actions taken after the

12 date of such abandonment.

13 ‘‘(6) PERSONAL DEFENSE.—The defense under

14 this section may only be asserted by the person who

15 performed the acts necessary to establish the defense

16 and, except for any transfer to the patent owner, the

17 right to assert the defense shall not be licensed or

18 assigned or transferred to another person except in

19 connection with the good faith assignment or trans20 fer of the entire enterprise or line of business to

21 which the defense relates.

22 ‘‘(7) ONE-YEAR LIMITATION.—A person may

23 not assert a defense under this section unless the

24 subject matter on which the defense is based had

25 been commercially used or actually reduced to prac-
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1 tice more than one year prior to the effective filing

2 date of the patent by the person asserting the de3 fense or someone in privity with that person.

4 ‘‘(d) UNSUCCESSFUL ASSERTION OF DEFENSE.—If

5 the defense under this section is pleaded by a person who

6 is found to infringe the patent and who subsequently fails

7 to demonstrate a reasonable basis for asserting the de8 fense, the court shall find the case exceptional for the pur9 pose of awarding attorney’s fees under section 285 of this

10 title.

11 ‘‘(e) INVALIDITY.—A patent shall not be deemed to

12 be invalid under section 102 or 103 of this title solely be13 cause a defense is established under this section.’’.

14 (b) CONFORMING AMENDMENT.—The table of sec15 tions at the beginning of chapter 28 of title 35, United

16 States Code, is amended by adding at the end the follow17 ing new item:

‘‘Sec. 273. Prior domestic commercial use; defense to infringement.’’.

18 SEC. 463. EFFECTIVE DATE AND APPLICABILITY.

19 This subtitle and the amendments made by this sub20 title shall take effect on the date of enactment of this Act,

21 but shall not apply to any action for infringement that

22 is pending on such date of enactment or with respect to

23 any subject matter for which an adjudication of infringe24 ment, including a consent judgment, has been made before

25 such date of enactment.
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1 Subtitle E—Patent Reexamination

2 Reform

3 SEC. 471. SHORT TITLE.

4 This subtitle may be cited as the ‘‘Patent Reexamina5 tion Reform Act of 1997’’.

6 SEC. 472. DEFINITIONS.

7 Section 100 of title 35, United States Code, is

8 amended by adding at the end the following new sub9 section:

10 ‘‘(e) The term ‘third-party requester’ means a person

11 requesting reexamination under section 302 of this title

12 who is not the patent owner.’’.

13 SEC. 473. REEXAMINATION PROCEDURES.

14 (a) REQUEST FOR REEXAMINATION.—Section 302 of

15 title 35, United States Code, is amended to read as fol16 lows:

17 ‘‘§ 302. Request for reexamination

18 ‘‘(a) IN GENERAL.—Any person at any time may file

19 a request for reexamination by the Office of a patent on

20 the basis of any prior art cited under the provisions of

21 section 301 of this title.

22 ‘‘(b) REQUIREMENTS.—The request shall—

23 ‘‘(1) be in writing, include the identity of the

24 real party in interest, and be accompanied by pay25 ment of a reexamination fee established by the Com-
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1 missioner of Patents pursuant to the provisions of

2 section 41 of this title; and

3 ‘‘(2) set forth the pertinency and manner of ap4 plying cited prior art to every claim for which reex5 amination is requested.

6 ‘‘(c) COPY.—Unless the requesting person is the

7 owner of the patent, the Commissioner promptly shall

8 send a copy of the request to the owner of record of the

9 patent.’’.

10 (b) DETERMINATION OF ISSUE BY COMMISSIONER.—

11 Section 303 of title 35, United States Code, is amended

12 to read as follows:

13 ‘‘§ 303. Determination of issue by Commissioner

14 ‘‘(a) REEXAMINATION.—Not later than 3 months

15 after the filing of a request for reexamination under the

16 provisions of section 302 of this title, the Commissioner

17 shall determine whether a substantial new question of pat18 entability affecting any claim of the patent concerned is

19 raised by the request, with or without consideration of

20 other patents or printed publications. On the Commis21 sioner’s initiative, and any time, the Commissioner may

22 determine whether a substantial new question of patent23 ability is raised by patents and publications.

24 ‘‘(b) RECORD.—A record of the Commissioner’s de25 termination under subsection (a) shall be placed in the of-
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1 ficial file of the patent, and a copy shall be promptly given

2 or mailed to the owner of record of the patent and to the

3 third-party requester, if any.

4 ‘‘(c) FINAL DECISION.—A determination by the

5 Commissioner pursuant to subsection (a) shall be final

6 and nonappealable. Upon a determination that no sub7 stantial new question of patentability has been raised, the

8 Commissioner may refund a portion of the reexamination

9 fee required under section 302 of this title.’’.

10 (c) REEXAMINATION ORDER BY COMMISSIONER.—

11 Section 304 of title 35, United States Code, is amended

12 to read as follows:

13 ‘‘§ 474. Reexamination order by Commissioner

14 ‘‘If, in a determination made under the provisions of

15 section 303(a) of this title, the Commissioner finds that

16 a substantial new question of patentability affecting a

17 claim of a patent is raised, the determination shall include

18 an order for reexamination of the patent for resolution of

19 the question. The order may be accompanied by the initial

20 action of the Patent Office on the merits of the reexamina21 tion conducted in accordance with section 305 of this

22 title.’’.

23 (d) CONDUCT OF REEXAMINATION PROCEEDINGS.—

24 Section 305 of title 35, United States Code, is amended

25 to read as follows:
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1 ‘‘§ 305. Conduct of reexamination proceedings

2 ‘‘(a) IN GENERAL.—Subject to subsection (b), reex3 amination shall be conducted according to the procedures

4 established for initial examination under the provisions of

5 sections 132 and 133 of this title. In any reexamination

6 proceeding under this chapter, the patent owner shall be

7 permitted to propose any amendment to the patent and

8 a new claim or claims, except that no proposed amended

9 or new claim enlarging the scope of the claims of the pat10 ent shall be permitted.

11 ‘‘(b) RESPONSE.—(1) This subsection shall apply to

12 any reexamination proceeding in which the order for reex13 amination is based upon a request by a third-party re14 quester.

15 ‘‘(2) With the exception of the reexamination request,

16 any document filed by either the patent owner or the

17 third-party requester shall be served on the other party.

18 ‘‘(3) If the patent owner files a response to any Pat19 ent Office action on the merits, the third-party requester

20 shall have 1 opportunity to file written comments within

21 a reasonable period not less than 1 month after the date

22 of service of the patent owner’s response. Written com23 ments provided under this paragraph shall be limited to

24 issues covered by the Patent Office action or the patent

25 owner’s response.
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1 ‘‘(c) SPECIAL DISPATCH.—Unless otherwise provided

2 by the Commissioner for good cause, all reexamination

3 proceedings under this section, including any appeal to the

4 Board of Patent Appeals and Interferences, shall be con5 ducted with special dispatch within the Office.’’.

6 (e) APPEAL.—Section 306 of title 35, United States

7 Code, is amended to read as follows:

8 ‘‘§ 306. Appeal

9 ‘‘(a) PATENT OWNER.—The patent owner involved in

10 a reexamination proceeding under this chapter—

11 ‘‘(1) may appeal under the provisions of section

12 134 of this title, and may appeal under the provi13 sions of sections 141 through 144 of this title, with

14 respect to any decision adverse to the patentability

15 of any original or proposed amended or new claim

16 of the patent, and

17 ‘‘(2) may be a party to any appeal taken by a

18 third-party requester pursuant to subsection (b) of

19 this section.

20 ‘‘(b) THIRD-PARTY REQUESTER.—A third-party re21 quester may—

22 ‘‘(1) appeal under the provisions of section 134

23 of this title, and may appeal under the provisions of

24 sections 141 through 144 of this title, with respect

25 to any final decision favorable to the patentability of
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1 any original or proposed amended or new claim of

2 the patent; or

3 ‘‘(2) be a party to any appeal taken by the pat4 ent owner, subject to subsection (c) of this section.

5 ‘‘(c) PARTICIPATION AS PARTY.—

6 ‘‘(1) IN GENERAL.—A third-party requester

7 whose request for a reexamination results in an

8 order under section 304 of this title is estopped from

9 asserting at a later time, in any civil action arising

10 in whole or in part under section 1338 of title 28,

11 the invalidity of any claim determined to be patent12 able on appeal on any ground which the third-party

13 requester raised or could have raised during the re14 examination proceedings. This subsection does not

15 prevent the assertion of invalidity based on newly

16 discovered prior art unavailable to the third-party

17 requester and the Patent Office at the time of the

18 reexamination proceedings.

19 ‘‘(2) ELECTION TO PARTICIPATE.—A third20 party requester is deemed not to have participated

21 as a party to an appeal by the patent owner unless,

22 not later than 20 days after the patent owner has

23 filed notice of appeal, the third-party requester files

24 notice with the Commissioner electing to partici25 pate.’’.
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1 (f) REEXAMINATION PROHIBITED.—

2 (1) IN GENERAL.—Chapter 30 of title 35, Unit3 ed States Code, is amended by adding at the end the

4 following new section:

5 ‘‘§ 308. Reexamination prohibited

6 ‘‘(a) ORDER FOR REEXAMINATION.—Notwithstand7 ing any provision of this chapter, once an order for reex8 amination of a patent has been issued under section 304

9 of this title, neither the patent owner nor the third-party

10 requester, if any, nor privies of either, may file a subse11 quent request for reexamination of the patent until a reex12 amination certificate is issued and published under section

13 307 of this title, unless authorized by the Commissioner.

14 ‘‘(b) FINAL DECISION.—Once a final decision has

15 been entered against a party in a civil action arising in

16 whole or in part under section 1338 of title 28 that the

17 party has not sustained its burden of proving the invalidity

18 of any patent claim in suit or if a final decision in a reex19 amination proceeding instituted by a third-party requester

20 is favorable to a patentability of any original or proposed

21 amended as new claim of the patent and such decision is

22 not appealed by the third-party requester under section

23 306(b), then neither that party nor its privies may there24 after request reexamination of any such patent claim on

25 the basis of issues which that party or its privies raised
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1 or could have raised in such civil action or reexamination

2 proceeding, and a reexamination requested by that party

3 or its privies on the basis of such issues may not thereafter

4 be maintained by the Office, notwithstanding any other

5 provision of this chapter. This subsection does not prevent

6 the assertion of invalidity based on newly discovered prior

7 art unavailable to the third-party requester and the Patent

8 Office at the time of the reexamination proceedings.’’.

9 (2) TECHNICAL AND CONFORMING AMEND10 MENT.—The table of sections for chapter 30 of title

11 35, United States Code, is amended by adding at

12 the end the following:

‘‘308. Reexamination prohibited.’’.

13 SEC. 474. CONFORMING AMENDMENTS.

14 (a) PATENT FEES; PATENT SEARCH SYSTEMS.—Sec15 tion 41(a)(7) of title 35, United States Code, is amended

16 to read as follows:

17 ‘‘(7) On filing each petition for the revival of an

18 unintentionally abandoned application for a patent,

19 for the unintentionally delayed payment of the fee

20 for issuing each patent, or for an unintentionally de21 layed response by the patent owner in a reexamina22 tion proceeding, $1,250, unless the petition is filed

23 under sections 133 or 151 of this title, in which case

24 the fee shall be $110.’’.
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1 (b) APPEAL TO THE BOARD OF PATENT APPEALS

2 AND INTERFERENCES.—Section 134 of title 35, United

3 States Code, is amended to read as follows:

4 ‘‘§ 134. Appeal to the Board of Patent Appeals and

5 Interferences

6 ‘‘(a) PATENT APPLICANT.—An applicant for a pat7 ent, any of whose claims has been twice rejected, may ap8 peal from the decision of the primary examiner to the

9 Board of Patent Appeals and Interferences, having once

10 paid the fee for such appeal.

11 ‘‘(b) PATENT OWNER.—A patent owner in a reexam12 ination proceeding may appeal from the final rejection of

13 any claim by the primary examiner to the Board of Patent

14 Appeals and Interferences, having once paid the fee for

15 such appeal.

16 ‘‘(c) THIRD-PARTY.—A third-party requester may

17 appeal to the Board of Patent Appeals and Interferences

18 from the final decision of the primary examiner favorable

19 to the patentability of any original or proposed amended

20 or new claim of a patent, having once paid the fee for

21 such appeal.’’.

22 (d) APPEAL TO COURT OF APPEALS FOR THE FED23 ERAL CIRCUIT.—Section 141 of title 35, United States

24 Code, is amended by amending the first sentence to read

25 as follows: ‘‘An applicant, a patent owner, or a third-party
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1 requester, dissatisfied with the final decision in an appeal

2 to the Board of Patent Appeals and Interferences under

3 section 134 of this title, may appeal the decision to the

4 United States Court of Appeals for the Federal Circuit.’’.

5 (e) PROCEEDINGS ON APPEAL.—Section 143 of title

6 35, United States Code, is amended by amending the third

7 sentence to read as follows: ‘‘In ex parte and reexamina8 tion cases, the Commissioner shall submit to the court in

9 writing the grounds for the decision of the Patent Office,

10 addressing all the issues involved in the appeal.’’.

11 (f) CIVIL ACTION TO OBTAIN PATENT.—Section 145

12 of title 35, United States Code, is amended in the first

13 sentence by inserting ‘‘(a)’’ after ‘‘section 134’’.

14 SEC. 475. REPORT TO CONGRESS.

15 Not later than 5 years after the effective date of this

16 subtitle, the Director shall submit to Congress a report

17 evaluating whether the reexamination proceedings estab18 lished under the amendments made by this subtitle are

19 inequitable to any of the parties in interest and, if so, the

20 report shall contain recommendations for changes to the

21 amendments made by this subtitle to remove such in22 equity.

23 SEC. 476. EFFECTIVE DATE.

24 This subtitle and the amendments made by this sub25 title shall take effect on the date that is 1 year after the
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1 date of enactment of this Act and shall apply to all reex2 amination requests filed on or after such date.

3 Subtitle F—Miscellaneous Patent

4 Provisions

5 SEC. 481. PROVISIONAL APPLICATIONS.

6 (a) ABANDONMENT.—Section 111(b)(5) of title 35,

7 United States Code, is amended to read as follows:

8 ‘‘(5) ABANDONMENT.—Notwithstanding the ab9 sence of a claim, upon timely request and as pre10 scribed by the Commissioner, a provisional applica11 tion may be treated as an application filed under

12 subsection (a). Subject to section 1993(c)(3) of this

13 title, if no such request is made, the provisional ap14 plication shall be regarded as abandoned 12 months

15 after the filing date of such application and shall not

16 be subject to revival thereafter.’’.

17 (b) TECHNICAL AMENDMENT RELATING TO WEEK18 ENDS AND HOLIDAYS.—Section 119(e) of title 35, United

19 States Code, is amended by adding at the end the follow20 ing:

21 ‘‘(3) If the day that is 12 months after the fil22 ing date of a provisional application falls on a Satur23 day, Sunday, or Federal holiday within the District

24 of Columbia, the period of pendency of the provi-
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1 sional application shall be extended to the next suc2 ceeding secular or business day.’’.

3 (c) EFFECTIVE DATE.—The amendments made by

4 subsection (a) apply to a provisional application filed on

5 or after June 8, 1995.

6 SEC. 482. INTERNATIONAL APPLICATIONS.

7 Section 119 of title 35, United States Code, is

8 amended as follows:

9 (1) In subsection (a), insert ‘‘or in a WTO

10 member country’’ after ‘‘or to citizens of the United

11 States,’’.

12 (2) At the end of section 119 add the following

13 new subsections:

14 ‘‘(f) Applications for plant breeder’s rights filed in

15 a WTO member country (or in a foreign UPOV Contract16 ing Party) shall have the same effect for the purpose of

17 the right of priority under subsections (a) through (c) of

18 this section as applications for patents, subject to the

19 same conditions and requirements of this section as apply

20 to applications for patents.

21 ‘‘(g) As used in this section—

22 ‘‘(1) the term ‘WTO member country’ has the

23 same meaning as the term is defined in section

24 104(b)(2) of this title; and
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1 ‘‘(2) the term ‘UPOV Contracting Party’ means

2 a member of the International Convention for the

3 Protection of New Varieties of Plants.’’.

4 SEC. 483. ACCESS TO ELECTRONIC PATENT INFORMATION.

5 (a) IN GENERAL.—The United States Patent and

6 Trademark Organization shall develop and implement

7 statewide computer networks with remote library sites in

8 requesting rural States such that citizens in those States

9 will have enhanced access to information in their State’s

10 patent and trademark depository library.

11 (b) DEFINITION.—In this section, the term ‘‘rural

12 States’’ means the States that qualified on January 1,

13 1997, as rural States under section 1501(b) of the Omni14 bus Crime Control and Safe Streets Act of 1968 (42

15 U.S.C. 379bb(b)).

16 SEC. 484. CERTAIN LIMITATIONS ON DAMAGES FOR PAT17 ENT INFRINGEMENT NOT APPLICABLE.

18 Section 287(c) of title 35, United States Code, is

19 amended in paragraph (4) by striking ‘‘before the date

20 of enactment of this subsection’’ and inserting ‘‘based on

21 an application the earliest effective filing date of which

22 is prior to September 30, 1996’’.
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1 SEC. 485. PLANT PATENTS.

2 (a) TUBER PROPAGATED PLANTS.—Section 161 of

3 title 35, United States Code, is amended by striking ‘‘a

4 tuber propagated plant or’’.

5 (b) RIGHTS IN PLANT PATENTS.—The text of section

6 163 of title 35, United States Code, is amended to read

7 as follows: ‘‘In the case of a plant patent, the grant to

8 the patentee, such patentee’s heirs or assigns, shall have

9 the right to exclude others from asexually reproducing the

10 plant, and from using, offering for sale, or selling the

11 plant so reproduced, or any of its parts, throughout the

12 United States, or from importing the plant so reproduced,

13 or any parts thereof, into the United States.’’.

14 (c) EFFECTIVE DATE.—The amendments made by

15 subsection (a) shall apply on the date of enactment of this

16 Act. The amendments made by subsection (b) shall apply

17 to any plant patent issued on or after the date of enact18 ment of this Act.

19 SEC. 486. ELECTRONIC FILING.

20 Section 22 of title 35, United States Code, is amend21 ed by striking ‘‘printed or typewritten’’ and inserting

22 ‘‘printed, typewritten, or on an electronic medium’’.

23 SEC. 487. STUDY AND REPORT ON BIOLOGICAL DEPOSITS

24 IN SUPPORT OF BIOTECHNOLOGY PATENTS.

25 (a) IN GENERAL.—No later than 6 months after the

26 date of enactment of this Act, the General Accounting Of-
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1 fice, in consultation with the United States Patent Office,

2 shall conduct a study and submit a report to Congress

3 on the potential risks to the United States biotechnology

4 industry relating to biological deposits in support of bio5 technology patents.

6 (b) CONTENTS.—The study conducted under this sec7 tion shall include—

8 (1) an examination of the risk of export and the

9 risk of third-party transfer of biological deposits,

10 and the risks posed by the change to 18-month pub11 lication requirements;

12 (2) an analysis of comparative legal and regu13 latory regimes; and

14 (3) any related recommendations.

15 (c) CONSIDERATION OF REPORT.—In drafting regu16 lations affecting biological deposits (including any modi17 fication of 37 Code of Federal Regulations 1.801 et seq.),

18 the United States Patent Office shall consider the rec19 ommendations of the study conducted under this section.

20 TITLE V—STATISTICAL

21 CONSOLIDATION

22 Subtitle A—General Provisions

23 SEC. 501. FINDINGS.

24 Congress, recognizing the importance of statistical in25 formation in the development of national priorities and
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1 policies and in the administration of public programs,

2 finds that—

3 (1) improved coordination and planning among

4 the statistical programs of the Federal Government

5 is necessary—

6 (A) to strengthen and improve the quality

7 and utility of Federal statistics; and

8 (B) to reduce duplication and waste in in9 formation collected for statistical purposes;

10 (2) while the demand for statistical information

11 has grown substantially over the 30-year period pre12 ceding the date of enactment of this Act, the lack

13 of coordinated planning within the decentralized

14 Federal statistical system has limited the usefulness

15 of statistics in defining problems and determining

16 national policies to deal with complex social and eco17 nomic issues;

18 (3) the establishment of a unified statistical

19 policy for the Federal Government to ensure that—

20 (A) data available from Federal statistical

21 programs are responsive to the information

22 needs of the President and Congress in develop23 ing national policies; and
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1 (B) necessary statistical information is col2 lected with the least reporting burden imposed

3 on individuals, businesses, and public entities;

4 (4) a central statistical policy and coordination

5 office is necessary—

6 (A) to develop and implement a Federal

7 statistical policy;

8 (B) to establish priorities for Federal sta9 tistical programs;

10 (C) to oversee and evaluate the statistical

11 programs of the Government; and

12 (D) to ensure that data collected for statis13 tical purposes by the Government are collected

14 and reported in accordance with established

15 standards; and

16 (5) it is conducive and integral to a sound Fed17 eral policy that the heads of major statistical agen18 cies within a Federal department or agency have di19 rect access to the head of such department or agen20 cy.

21 SEC. 502. SENSE OF CONGRESS.

22 (a) CHIEF STATISTICIAN.—It is the sense of Con23 gress that—

24 (1) a more centralized statistical system is inte25 gral to efficiency;
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1 (2) with increased efficiency comes better inte2 gration of research, methodology, survey design, and

3 taking advantage of economies of scale;

4 (3) the Chief Statistician should have the au5 thority, personnel, and other resources necessary to

6 carry out the duties of that office effectively, includ7 ing duties relating to statistical forms clearance;

8 (4) statistical forms clearance at the Office of

9 Management and Budget should be better distin10 guished from regulatory forms clearance; and

11 (5) recognizing that the Chief Statistician has

12 numerous responsibilities with respect to statistical

13 policy and coordination, the Chief Statistician should

14 have a direct reporting relationship with the Direc15 tor of the Office of Management and Budget.

16 (b) CONFIDENTIALITY.—It is the sense of Congress

17 that—

18 (1) entities of the Federal Government (includ19 ing the Federal Council on Statistical Policy and the

20 Interagency Council on Statistical Policy) and pri21 vate entities should examine the efficacy of replacing

22 the individual confidentiality provisions of statistical

23 agencies with a single, uniform standard that guar24 antees confidentiality across the affected agencies;

25 and
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1 (2) those entities should also examine the shar2 ing of confidential data for statistical purposes with3 in the Federal Statistical Service and special ar4 rangements to permit the sharing of confidential

5 data for statistical purposes with State agencies co6 operating with Federal agencies in statistical pro7 grams.

8 (c) DECENNIAL CENSUSES.—It is the sense of Con9 gress that the budget and functions of the Bureau of the

10 Census relating to any decennial census of population

11 should be segregated from the other budget and functions

12 of the Bureau of the Census.

13 SEC. 503. DEFINITIONS.

14 In this title:

15 (1) ADMINISTRATOR.—The term ‘‘Adminis16 trator’’ means the Administrator of the Federal Sta17 tistical Service.

18 (2) CENSUS OF POPULATION.—The term ‘‘cen19 sus of population’’ has the meaning given such term

20 by section 141(g) of title 13, United States Code.

21 (3) CHIEF STATISTICIAN.—The term ‘‘Chief

22 Statistician’’ means the Chief Statistician of the Of23 fice of Management and Budget.
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1 (4) COUNCIL.—The term ‘‘Council’’ means the

2 Federal Council on Statistical Policy under section

3 513.

4 (5) DEPUTY ADMINISTRATOR.—The term

5 ‘‘Deputy Administrator’’ means the Deputy Admin6 istrator of the Federal Statistical Service.

7 (6) FEDERAL AGENCY.—The term ‘‘Federal

8 agency’’ has the meaning provided the term ‘‘agen9 cy’’ in section 551(1) of title 5, United States Code.

10 (7) FUNCTION.—The term ‘‘function’’ includes

11 any duty, obligation, power, authority, responsibility,

12 right, privilege, activity, or program.

13 (8) OFFICE.—The term ‘‘office’’ includes any

14 office, bureau, institute, council, unit, or organiza15 tional entity, or any component thereof.

16 (9) SERVICE.—The term ‘‘Service’’ means the

17 Federal Statistical Service.

18 Subtitle B—Establishment of the

19 Federal Statistical Service

20 SEC. 511. ESTABLISHMENT.

21 The Federal Statistical Service is established as an

22 independent establishment, as that term is defined in sec23 tion 104 of title 5, United States Code, in the executive

24 branch of the Federal Government.
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1 SEC. 512. PRINCIPAL OFFICERS.

2 (a) ADMINISTRATOR.—

3 (1) IN GENERAL.—There shall be at the head

4 of the Service an Administrator of the Federal Sta5 tistical Service, who shall be appointed, from among

6 individuals nominated for that purpose by the Fed7 eral Council on Statistical Policy who are experi8 enced in the collection and utilization of statistical

9 data or survey research, by the President, by and

10 with the advice and consent of the Senate.

11 (2) ADMINISTRATION.—The Service, including

12 all functions and offices transferred to the Service

13 under this title, shall be administered, in accordance

14 with the provisions of this title, under the super15 vision and direction of the Administrator.

16 (3) COMPENSATION OF ADMINISTRATOR.—The

17 Administrator shall receive basic pay at the rate

18 payable for level II of the Executive Schedule under

19 section 5313 of title 5, United States Code.

20 (b) DEPUTY ADMINISTRATOR.—

21 (1) IN GENERAL.—There shall be in the Service

22 a Deputy Administrator of the Federal Statistical

23 Service who shall be appointed, from among individ24 uals nominated for that purpose by the Federal

25 Council on Statistical Policy who are experienced in

26 the collection and utilization of statistical data or
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1 survey research, by the President, by and with the

2 advice and consent of the Senate.

3 (2) DUTIES OF DEPUTY ADMINISTRATOR.—

4 During the absence or disability of the Adminis5 trator, or in the event of a vacancy in the office of

6 the Administrator, the Deputy Administrator shall

7 act as Administrator. The Deputy Administrator

8 shall perform such other duties and exercise such

9 powers as the Administrator may from time to time

10 prescribe.

11 (3) COMPENSATION OF DEPUTY ADMINIS12 TRATOR.—The Deputy Administrator shall receive

13 basic pay at the rate payable for level III of the Ex14 ecutive Schedule under section 5314 of title 5, Unit15 ed States Code.

16 (c) BUREAU DIRECTORS.—

17 (1) IN GENERAL.—There shall be in the Serv18 ice—

19 (A) a Director of the Census who shall, on

20 the transfer of functions and offices under sec21 tion 203, serve as the head of the Bureau of

22 the Census; and

23 (B) a Director of the Bureau of Economic

24 Analysis who shall, on the transfer of functions
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1 and offices under section 203, serve as the head

2 of the Bureau of Economic Analysis; and

3 (C) a Director of the Bureau of Labor Sta4 tistics who shall, on the transfer of functions

5 and offices under subtitle C, serve as the head

6 of the Bureau of Labor Statistics.

7 (2) APPOINTMENT.—Each of the Directors re8 ferred to in paragraph (1) shall be appointed by the

9 President, by and with the advice and consent of the

10 Senate.

11 (4) COMPENSATION OF DIRECTOR OF BUREAU

12 OF ECONOMIC ANALYSIS.—

13 (A) IN GENERAL.—The position of Direc14 tor of the Bureau of Economic Analysis shall be

15 a Senior Executive Service position.

16 (B) SENIOR EXECUTIVE SERVICE DE17 FINED.—For purposes of this paragraph, the

18 term ‘‘Senior Executive Service position’’ shall

19 have the same meaning as in section 3132(a) of

20 title 5, United States Code.

21 (5) TERMS.—The term of office for each Direc22 tor referred to in paragraph (1) shall be as specified

23 in the predecessor under the applicable provision of

24 law in effect on the day before the date of enactment

25 of this Act, except that, notwithstanding section 21
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1 of title 13, United States Code, the term of the Di2 rector of the Census shall be 4 years.

3 (d) GENERAL COUNSEL.—There shall be in the Serv4 ice a General Counsel who shall administer the Office of

5 General Counsel of the Federal Statistical Service. The

6 General Counsel shall be appointed by the President, by

7 and with the advice and consent of the Senate.

8 (e) INSPECTOR GENERAL.—There shall be in the

9 Service an Inspector General appointed in accordance with

10 the Inspector General Act of 1978 (5 U.S.C. App.).

11 SEC. 513. FEDERAL COUNCIL ON STATISTICAL POLICY.

12 (a) ESTABLISHMENT.—A Federal Council on Statis13 tical Policy shall advise the Service.

14 (b) COMPOSITION.—The Council shall be composed

15 of 9 members as follows:

16 (1) The Administrator of the Federal Statistical

17 Service.

18 (2) The Director of the Census.

19 (3) The Director of the Bureau of Labor Statis20 tics.

21 (4) The Director of the Bureau of Economic

22 Analysis.

23 (5) The Chief Statistician of the Office of Man24 agement and Budget.
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1 (6) Two members appointed by the Majority

2 Leader of the Senate from among individuals who—

3 (A) are not officers or employees of the

4 Government; and

5 (B) are especially qualified to serve on the

6 Council by virtue of experience relating to 1 or

7 more of the bureaus referred to in title III.

8 (7) Two members appointed by the Speaker of

9 the House of Representatives from among individ10 uals who—

11 (A) are not officers or employees of the

12 Government; and

13 (B) are especially qualified to serve on the

14 Council by virtue of experience relating to 1 or

15 more of the bureaus referred to in section 203

16 or subtitle C.

17 (c) TERMS.—

18 (1) IN GENERAL.—Each member under sub19 section (b)(6) shall be appointed for a term of 5

20 years, except that, of the members first appointed—

21 (A) 1 shall be appointed for a term of 5

22 years; and

23 (B) 1 shall be appointed for a term of 3

24 years.
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1 (2) STAGGERED TERMS.—Each member under

2 subsection (b)(7) shall be appointed for a term of 5

3 years, except that, of the members first appointed—

4 (A) 1 shall be appointed for a term of 5

5 years; and

6 (B) 1 shall be appointed for a term of 2

7 years.

8 (d) FUNCTIONS.—

9 (1) IN GENERAL.—The Council shall—

10 (A) make any nominations required under

11 section 512(a)(1);

12 (B) serve as an advisory body to the Chief

13 Statistician on confidentiality issues, such as

14 those relating to—

15 (i) the collection or sharing of data

16 for statistical purposes among Federal

17 agencies; and

18 (ii) the sharing of data, for statistical

19 purposes, by States and political subdivi20 sions with the Federal Government; and

21 (C) establish a statistical policy as de22 scribed in section 501(3).

23 (2) STUDY AND REPORT AS PROCEDURES.—
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1 (A) STUDY.—The Council shall study pro2 cedures for the release of major economic and

3 social indicators by the Federal Government.

4 (B) REPORT.—Not later than 18 months

5 after the date of enactment of this Act, the

6 Council shall submit to Congress a report on

7 the findings of the study under subparagraph

8 (A).

9 (3) STUDY OF FUNCTIONS.—

10 (A) STUDY.—The Council shall study—

11 (i) whether or not the functions of the

12 Bureau of the Census relating to decennial

13 censuses of population could be delineated

14 from the other functions of the Bureau;

15 and

16 (ii) if the functions referred to in

17 clause (i) could be delineated from other

18 functions of the Bureau, recommendations

19 on how such a delineation of functions

20 might be achieved.

21 (B) REPORT.—Not later than 12 months

22 after the date of enactment of this Act, the

23 Council shall submit to Congress a report on

24 the findings of the study conducted under sub25 paragraph (A).
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1 (4) STUDY AND REPORT ON FIELD OFFICES.—

2 (A) STUDY.—The Council shall study—

3 (i) making as appropriate, the field

4 offices of the Bureau of the Census part of

5 the field offices of the Bureau of Labor

6 Statistics; and

7 (ii) any savings anticipated as a result

8 of the implementation of clause (i).

9 (B) REPORT.—Not later than 12 months

10 after the date of enactment of this Act, the

11 Council shall submit to Congress a report on

12 the findings of the study conducted under sub13 paragraph (A).

14 (e) COMPENSATION.—Members of the Council under

15 subsection (b)(6) shall be entitled to receive the daily

16 equivalent of the rate of basic pay for level IV of the Exec17 utive Schedule under section 5315 of title 5, United States

18 Code, for each day (including travel time) during which

19 they are engaged in the actual performance of duties vest20 ed in the Council.

21 (f) CHAIRPERSON.—The Chairperson of the Council

22 shall be elected by and from the members for a term of

23 1 year.
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1 Subtitle C—Transfers of Functions

2 and Offices

3 SEC. 521. TRANSFER OF THE BUREAU OF LABOR STATIS4 TICS.

5 There is transferred to the Service the Bureau of

6 Labor Statistics of the Department of Labor, along with

7 all of its functions and offices.

8 SEC. 522. TRANSFER DATE.

9 The transfers of functions and offices under this title

10 shall be effective on the date specified in section 102(c).

11 Subtitle D—Administrative

12 Provisions

13 SEC. 531. OFFICERS AND EMPLOYEES.

14 The Administrator may appoint and fix the com15 pensation of such officers and employees as may be nec16 essary to carry out the functions of the Administrator and

17 the Service. Except as otherwise provided by law, such of18 ficers and employees shall be appointed in accordance with

19 the civil service laws and their compensation shall be fixed

20 in accordance with title 5, United States Code.

21 SEC. 532. EXPERTS AND CONSULTANTS.

22 The Administrator, as may be provided in appropria23 tion Acts, obtain the services of experts and consultants

24 in accordance with section 3109 of title 5, United States

25 Code, and may compensate such experts and consultants
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1 at rates not to exceed the daily rate prescribed for level

2 IV of the Executive Schedule under section 5315 of title

3 5, United States Code.

4 SEC. 533. ACCEPTANCE OF VOLUNTARY SERVICES.

5 (a) IN GENERAL.—Notwithstanding section 1342 of

6 title 31, United States Code, the Administrator may ac7 cept, subject to regulations issued by the Office of Person8 nel Management, voluntary services if such services—

9 (1) are to be uncompensated; and

10 (2) are not used to displace any employee.

11 (b) TREATMENT.—Any individual who provides vol12 untary services under this section shall not be considered

13 a Federal employee for any purpose other than for pur14 poses of chapter 81 of title 5, United States Code (relating

15 to compensation for injury) and sections 2671 through

16 2680 of title 28, United States Code (relating to tort

17 claims).

18 SEC. 534. GENERAL AUTHORITY.

19 In carrying out any function transferred by this Act,

20 the Administrator, or any officer or employee of the Serv21 ice, may exercise any authority available by law with re22 spect to such function to the official or agency from which

23 such function is transferred, and the actions of the Admin24 istrator in exercising such authority shall have the same
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1 force and effect as when exercised by such official or agen2 cy.

3 SEC. 535. DELEGATION.

4 Except as otherwise provided in this title, the Admin5 istrator may delegate any function to such officers and

6 employees of the Service as the Administrator may des7 ignate, and may authorize such successive redelegations

8 of such functions within the Service as may be necessary

9 or appropriate. No delegation of functions by the Adminis10 trator under this section or under any other provision of

11 this title shall relieve the Administrator of responsibility

12 for the Administration of such functions.

13 SEC. 536. REORGANIZATION.

14 The Administrator may allocate or reallocate func15 tions among the officers of the Service, and to establish,

16 consolidate, alter, or abolish such offices or positions with17 in the Service as may be necessary or appropriate.

18 SEC. 537. CONTRACTS.

19 (a) IN GENERAL.—Subject to the Federal Property

20 and Administrative Services Act of 1949 and other appli21 cable Federal law, the Administrator may make, enter

22 into, and perform such contracts, grants, leases, coopera23 tive agreements, and other similar transactions with Fed24 eral or other public agencies (including State and local

25 governments) and private organizations and persons, and
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1 to make such payments, by way of advance or reimburse2 ment, as the Administrator may determine necessary or

3 appropriate to carry out functions of the Administrator

4 or the Service.

5 (b) APPROPRIATION AUTHORITY REQUIRED.—No

6 authority to enter into contracts or to make payments

7 under this title shall be effective except to such extent or

8 in such amounts as are provided in advance under appro9 priation Acts.

10 SEC. 538. REGULATIONS.

11 The Administrator may prescribe such rules and reg12 ulations as the Administrator considers necessary or ap13 propriate to administer and manage the functions of the

14 Administrator or the Service, in accordance with chapter

15 5 of title 5, United States Code.

16 SEC. 539. SEAL.

17 The Administrator shall cause a seal of office to be

18 made for the Service of such design as the Administrator

19 shall approve. Judicial notice shall be taken of such seal.

20 SEC. 540. ANNUAL REPORT.

21 The Administrator, in consultation with the Council,

22 shall, as soon as practicable after the close of each fiscal

23 year, make a single, comprehensive report to the President

24 for transmission to Congress on the activities of the Serv25 ice during such fiscal year.
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1 Subtitle E—Miscellaneous

2 SEC. 541. INCIDENTAL TRANSFERS.

3 The Director of the Office of Management and Budg4 et, in consultation with the Administrator, shall make such

5 determinations as may be necessary with regard to the

6 functions, offices, or portions thereof transferred by this

7 title, and make such additional incidental dispositions of

8 personnel, assets, liabilities, grants, contracts, property,

9 records, and unexpended balances of appropriations, au10 thorizations, allocations, and other funds held, used, aris11 ing from, available to, or to be made available in connec12 tion with such functions, offices, or portions thereof, as

13 may be necessary to carry out this title. The Director shall

14 provide for the termination of the affairs of all entities

15 terminated by this title and, in consultation with the Ad16 ministrator, for such further measures and dispositions as

17 may be necessary to effectuate the purposes of this title.

18 SEC. 542. REFERENCES.

19 With respect to any function transferred by this title

20 and exercised on or after the date of such transfer, any

21 reference in any other Federal law to any department,

22 commission, or agency or any officer or office the func23 tions of which so transferred shall be deemed to refer to

24 the Administrator, other official, or component of the

25 Service to which this title transfers such functions.
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1 SEC. 543. PROPOSED CHANGES IN LAW.

2 Not later than 90 days after the date of enactment

3 of this Act, the President shall submit to Congress a de4 scription of any changes in Federal law necessary to re5 flect any transfers or other measures under this title.

6 SEC. 544. TRANSITION.

7 (a) USE OF FUNDS.—Funds available to any depart8 ment or agency (or any official or component thereof), the

9 functions or offices of which are transferred to the Admin10 istrator or the Service by this title, may, with the approval

11 of the Director of the Office of Management and Budget,

12 be used to pay the compensation and expenses of any offi13 cer appointed pursuant to this title and other transitional

14 and planning expenses associated with the establishment

15 of the Service or transfer of functions or offices thereto

16 until such time as funds for such purposes are otherwise

17 available.

18 (b) USE OF PERSONNEL.—With the consent of the

19 appropriate department or agency head concerned, the Ad20 ministrator may utilize the services of such officers, em21 ployees, and other personnel of the departments and agen22 cies from which functions or offices have been transferred

23 to the Administrator or the Service, for such period of

24 time as may reasonably be needed to facilitate the orderly

25 implementation of this title.
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1 SEC. 545. INTERIM APPOINTMENTS.

2 (a) AUTHORITY TO APPOINT.—Notwithstanding any

3 other provision of law, in the event that 1 or more officers

4 required by this title to be appointed by and with the ad5 vice and consent of the Senate shall not have entered upon

6 office on the date of the transfer of functions and offices

7 under section 203 or subtitle C, the President may des8 ignate an officer in the executive branch to act in such

9 office for 120 days or until the office is filled as provided

10 in this title, whichever occurs first.

11 (b) COMPENSATION.—Any officer acting in an office

12 in the Department pursuant to the provisions of sub13 section (a) shall receive compensation at the rate pre14 scribed for such office under this title.

15 SEC. 546. CONFORMING AMENDMENTS.

16 (a) DIRECTOR, BUREAU OF LABOR STATISTICS.—

17 Section 5315 of title 5, United States Code, as amended

18 by this Act, is further amended by adding at the end the

19 following new item:

20 ‘‘Director, Bureau of Labor Statistics.’’.

21 (b) GENERAL COUNSEL; INSPECTOR GENERAL.—

22 Section 5315 of title 5, United States Code, as amended

23 by subsection (a), is further amended by adding at the

24 end the following new items:

25 ‘‘General Counsel, Bureau of Labor Statistics.
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1 ‘‘Inspector General, Bureau of Labor Statis2 tics.’’.

3 (c) BUREAU DIRECTORS.—Section 5315 of title 5,

4 United States Code, as amended by subsection (b), is fur5 ther amended—

6 (1) by striking ‘‘The Commissioner of Labor

7 Statistics, Department of Labor’’; and

8 (2) by inserting after the item relating to the

9 Director of the Census, the following new items:

10 ‘‘Director of the Bureau of Labor Statistics,

11 Federal Statistical Service.

12 ‘‘Director of the Bureau of Economic Analysis,

13 Federal Statistical Service.’’.

14 (d) DEPUTY ADMINISTRATOR.—Section 5314 of title

15 5, United States Code, is amended by adding at the end

16 the following new item:

17 ‘‘Deputy Administrator, Federal Statistical

18 Service.’’.

19 (e) ADMINISTRATOR.—Section 5313 of title 5, United

20 States Code, is amended by adding at the end the follow21 ing new item:

22 ‘‘Administrator, Federal Statistical Service.’’.
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1 TITLE VI—MISCELLANEOUS

2 PROVISIONS

3 SEC. 601. REFERENCES.

4 Any reference in any other Federal law, Executive

5 order, rule, regulation, or delegation of authority, or any

6 document of or pertaining to a department or office from

7 which a function is transferred by this Act—

8 (1) to the head of such department or office is

9 deemed to refer to the head of the department or of10 fice to which such function is transferred; or

11 (2) to such department or office is deemed to

12 refer to the department or office to which such func13 tion is transferred.

14 SEC. 602. EXERCISE OF AUTHORITIES.

15 Except as otherwise provided by law, a Federal offi16 cial to whom a function is transferred by this Act may,

17 for purposes of performing the function, exercise all au18 thorities under any other provision of law that were avail19 able with respect to the performance of that function to

20 the official responsible for the performance of the function

21 immediately before the effective date of the transfer of the

22 function under this Act.
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1 SEC. 603. SAVINGS PROVISIONS.

2 (a) LEGAL DOCUMENTS.—All orders, determinations,

3 rules, regulations, permits, grants, loans, contracts, agree4 ments, certificates, licenses, and privileges—

5 (1) that have been issued, made, granted, or al6 lowed to become effective by the President, the Sec7 retary of Commerce, the United States Trade Rep8 resentative, any officer or employee of any office

9 transferred by this Act, or any other Government of10 ficial, or by a court of competent jurisdiction, in the

11 performance of any function that is transferred by

12 this Act; and

13 (2) that are in effect on the effective date of

14 such transfer (or become effective after such date

15 pursuant to their terms as in effect on such effective

16 date),

17 shall continue in effect according to their terms until

18 modified, terminated, superseded, set aside, or revoked in

19 accordance with law by the President, any other author20 ized official, a court of competent jurisdiction, or operation

21 of law.

22 (b) PROCEEDINGS.—This Act shall not affect any

23 proceedings or any application for any benefits, service,

24 license, permit, certificate, or financial assistance pending

25 on the date of enactment of this Act before an office trans26 ferred by this Act, but such proceedings and applications
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1 shall be continued. Orders shall be issued in such proceed2 ings, appeals shall be taken therefrom, and payments shall

3 be made pursuant to such orders, as if this Act had not

4 been enacted, and orders issued in any such proceeding

5 shall continue in effect until modified, terminated, super6 seded, or revoked by a duly authorized official, by a court

7 of competent jurisdiction, or by operation of law. Nothing

8 in this subsection shall be considered to prohibit the dis9 continuance or modification of any such proceeding under

10 the same terms and conditions and to the same extent that

11 such proceeding could have been discontinued or modified

12 if this Act had not been enacted.

13 (c) SUITS.—This Act shall not affect suits com14 menced before the date of enactment of this Act, and in

15 all such suits, proceeding shall be had, appeals taken, and

16 judgments rendered in the same manner and with the

17 same effect as if this Act had not been enacted.

18 (d) NONABATEMENT OF ACTIONS.—No suit, action,

19 or other proceeding commenced by or against the Depart20 ment of Commerce or the Secretary of Commerce, or by

21 or against any individual in the official capacity of such

22 individual as an officer or employee of an office trans23 ferred by this Act, shall abate by reason of the enactment

24 of this Act.
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1 (e) CONTINUANCE OF SUITS.—If any Government of2 ficer in the official capacity of such officer is party to a

3 suit with respect to a function of the officer, and under

4 this Act such function is transferred to any other officer

5 or office, then such suit shall be continued with the other

6 officer or the head of such other office, as applicable, sub7 stituted or added as a party.

8 (f) ADMINISTRATIVE PROCEDURE AND JUDICIAL RE9 VIEW.—Except as otherwise provided by this Act, any

10 statutory requirements relating to notice, hearings, action

11 upon the record, or administrative or judicial review that

12 apply to any function transferred by this Act shall apply

13 to the exercise of such function by the head of the Federal

14 agency, and other officers of the agency, to which such

15 function is transferred by this Act.

16 SEC. 604. TRANSFER OF ASSETS.

17 Except as otherwise provided in this Act, so much

18 of the personnel, property, records, and unexpended bal19 ances of appropriations, allocations, and other funds em20 ployed, used, held, available, or to be made available in

21 connection with a function transferred to an official or

22 agency by this Act shall be available to the official or the

23 head of that agency, respectively, at such time or times

24 as the Director of the Office of Management and Budget
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1 directs for use in connection with the functions trans2 ferred.

3 SEC. 605. DELEGATION AND ASSIGNMENT.

4 Except as otherwise expressly prohibited by law or

5 otherwise provided in this Act, an official to whom func6 tions are transferred under this Act (including the head

7 of any office to which functions are transferred under this

8 Act) may delegate any of the functions so transferred to

9 such officers and employees of the office of the official as

10 the official may designate, and may authorize successive

11 redelegations of such functions as may be necessary or ap12 propriate. No delegation of functions under this section

13 or under any other provision of this Act shall relieve the

14 official to whom a function is transferred under this Act

15 of responsibility for the administration of the function.

16 SEC. 606. AUTHORITY OF DIRECTOR OF THE OFFICE OF

17 MANAGEMENT AND BUDGET WITH RESPECT

18 TO FUNCTIONS TRANSFERRED.

19 (a) DETERMINATIONS.—If necessary, the Director

20 shall make any determination of the functions that are

21 transferred under this Act.

22 (b) INCIDENTAL TRANSFERS.—The Director, at such

23 time or times as the Director shall provide, may make

24 such determinations as may be necessary with regard to

25 the functions transferred by this Act, and to make such
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1 additional incidental dispositions of personnel, assets, li2 abilities, grants, contracts, property, records, and unex3 pended balances of appropriations, authorizations, alloca4 tions, and other funds held, used, arising from, available

5 to, or to be made available in connection with such func6 tions, as may be necessary to carry out the provisions of

7 this Act. The Director shall provide for the termination

8 of the affairs of all entities terminated by this Act and

9 for such further measures and dispositions as may be nec10 essary to effectuate the purposes of this Act.

11 SEC. 607. CERTAIN VESTING OF FUNCTIONS CONSIDERED

12 TRANSFERS.

13 For purposes of this Act, the vesting of a function

14 in a department or office pursuant to reestablishment of

15 an office shall be considered to be the transfer of the

16 function.

17 SEC. 608. AVAILABILITY OF EXISTING FUNDS.

18 Existing appropriations and funds available for the

19 performance of functions, programs, and activities termi20 nated pursuant to this Act shall remain available, for the

21 duration of their period of availability, for necessary ex22 penses in connection with the termination and resolution

23 of such functions, programs, and activities.

24 SEC. 609. DEFINITIONS.

25 For purposes of this Act—
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1 (1) the term ‘‘function’’ includes any duty, obli2 gation, power, authority, responsibility, right, privi3 lege, activity, or program; and

4 (2) the term ‘office’ includes any office, admin5 istration, agency, bureau, institute, council, unit, or6 ganizational entity, or component thereof.

7 SEC. 610. CONFORMING AMENDMENTS.

8 Section 11 of the Inspector General Act of 1978 (5

9 U.S.C. App.) is amended—

10 (1) in paragraph (1), by striking ‘‘or the Com11 missioner of the Social Security Administration;’’

12 and inserting ‘‘the Commissioner of the Social Secu13 rity Administration; the Administrator of the Na14 tional Oceanic and Atmospheric Administration; or

15 the Administrator of the Federal Statistical Serv16 ice;’’; and

17 (2) in paragraph (2), by striking ‘‘or the Social

18 Security Administration’’ and inserting ‘‘the Na19 tional Oceanic and Atmospheric Administration, the

20 Federal Statistical Service, or the Social Security

21 Administration’’.

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