113
(U) The Global Learning and Observations
to Benefit the Environment Program.
(V) Great Lakes nearshore research.
(W) Mussel watch.
(2) REPEALS.—The following provisions of law
are repealed:
(A) The Ocean Thermal Conversion Act of
1980 (42 U.S.C. 9101 et seq.).
(B) Title IV of the Marine Protection, Re-
search, and Sanctuaries Act of 1972 (16 U.S.C.
1447 et seq.).
(C) Title V of the Marine Protection, Re-
search, and Sanctuaries Act of 1972 (33 U.S.C.
2801 et seq.).
(D) The Great Lakes Shoreline Mapping
Act of 1987 (33 U.S.C. 883a note).
(E) The Great Lakes Fish and Wildlife
Tissue Bank Act (16 U.S.C. 943 et seq.).
(F) The Nonindigenous Aquatic Nuisance
Prevention and Control Act of 1990 (16 U.S.C.
4701 et seq.), except for those provisions affect-
ing the Assistant Secretary of the Army (civil
works) and the Secretary of the department in
which the Coast Guard is operating.
114
(G) Section 3 of the Sea Grant Program
Improvement Act of 1976 (33 U.S.C. 1124a).
(H) Section 208(c) of the National Sea
Grant 
College 
Program 
Act 
(33 
U.S.C.
1127(c)).
(I) Section 305 of the Coastal Zone Man-
agement Act of 1972 (16 U.S.C. 1454) is re-
pealed effective October 1, 1998.
(J) The NOAA Fleet Modernization Act
(33 U.S.C. 891 et seq.).
(K) Public Law 85–342 (72 Stat. 35; 16
U.S.C. 778 et seq.), relating to fish research
and experimentation.
(L) The first section of the Act of August
8, 1956 (70 Stat. 1126; 16 U.S.C. 760d), relat-
ing to grants for commercial fishing education.
(M) Public Law 86–359 (16 U.S.C. 760e
et seq.), relating to the study of migratory ma-
rine gamefish.
(N) The Act of August 15, 1914 (Chapter
253; 38 Stat. 692; 16 U.S.C. 781 et seq.), pro-
hibiting the taking of sponges in the Gulf of
Mexico and the Straits of Florida.
(b) AERONAUTICAL MAPPING AND CHARTING.—
115
(1) IN
GENERAL.—The aeronautical mapping
and charting functions of the National Oceanic and
Atmospheric Administration are transferred to the
Defense Mapping Agency.
(2) TERMINATION OF CERTAIN FUNCTIONS.—
The Defense Mapping Agency shall terminate any
functions transferred under paragraph (1) that are
performed by the private sector.
(3) FUNCTIONS REQUESTED BY FEDERAL AVIA-
TION ADMINISTRATION.—(A) Notwithstanding para-
graph (2), the Director of the Defense Mapping
Agency shall carry out such aeronautical charting
functions as may be requested by the Administrator
of the Federal Aviation Administration.
(B) In carrying out aeronautical mapping func-
tions requested by the Administrator under subpara-
graph (A), the Director shall—
(i) publish and distribute to the public and
to the Administrator any aeronautical charts re-
quested by the Administrator; and
(ii) provide to the Administrator such
other air traffic control products and services as
may be requested by the Administrator,
in such manner and including such information as
the Administrator determines is necessary for, or
116
will promote, the safe and efficient movement of air-
craft in air commerce.
(4) CONTINUING APPLICABILITY.—The require-
ments of section 1307 of title 44, United States
Code, shall continue to apply with respect to all
aeronautical products created or published by the
Director of the Defense Mapping Agency in carrying
out the functions transferred to the Director under
this paragraph; except that the prices for such prod-
ucts shall be established jointly by the Director and
the Secretary of Transportation on an annual basis.
(c) TRANSFER OF MAPPING, CHARTING, AND GEOD-
ESY FUNCTIONS TO THE UNITED STATES GEOLOGICAL
SURVEY.—
(1) IN GENERAL.—Except as provided in sub-
section (b), there are hereby transferred to the Di-
rector of the United States Geological Survey the
functions relating to mapping, charting, and geodesy
authorized under the Act of August 7, 1947 (61
Stat. 787; 33 U.S.C. 883a).
(2) TERMINATION OF CERTAIN FUNCTIONS.—
The Director of the United States Geological Survey
shall terminate any functions transferred under
paragraph (1) that are performed by the private sec-
tor.
117
(d) NESDIS.—There are transferred to the National
Scientific, Oceanic, and Atmospheric Administration all
functions and assets of the National Oceanic and Atmos-
pheric Administration that on the date immediately before
the effective date of this section were authorized to be per-
formed by the National Environmental Satellite, Data,
and Information System.
(e) OAR.—There are transferred to the National Sci-
entific, Oceanic, and Atmospheric Administration all func-
tions and assets of the National Oceanic and Atmospheric
Administration (including global programs) that on the
date immediately before the effective date of this section
were authorized to be performed by the Office of Oceanic
and Atmospheric Research.
(f) NWS.—
(1) IN GENERAL.—There are transferred to the
National Scientific, Oceanic, and Atmospheric Ad-
ministration all functions and assets of the National
Oceanic and Atmospheric Administration that on the
date immediately before the effective date of this
section were authorized to be performed by the Na-
tional Weather Service.
(2) DUTIES.—To protect life and property and
enhance the national economy, the Administrator of
Science, Oceans, and the Atmosphere, through the
119
the protection of lives and property of the gen-
eral public.
(4) ORGANIC ACT AMENDMENTS.—
(A) AMENDMENTS.—The Act of 1890 is
amended—
(i) by striking section 3 (15 U.S.C.
313); and
(ii) in section 9 (15 U.S.C. 317), by
striking ‘‘Department of’’ and all that fol-
lows thereafter and inserting ‘‘National
Scientific, Oceanic, and Atmospheric Ad-
ministration.’’.
(B) DEFINITION.—For purposes of this
paragraph, the term ‘‘Act of 1890’’ means the
Act entitled ‘‘An Act to increase the efficiency
and reduce the expenses of the Signal Corps of
the Army, and to transfer the Weather Bureau
to the Department of Agriculture’’, approved
October 1, 1890 (26 Stat. 653).
(5) REPEAL.—Sections 706 and 707 of the
Weather Service Modernization Act (15 U.S.C. 313
note) are repealed.
(6) CONFORMING AMENDMENTS.—The Weather
Service Modernization Act (15 U.S.C. 313 note) is
amended—
120
(A) in section 702, by striking paragraph
(3) and redesignating paragraphs (4) through
(10) as paragraphs (3) through (9), respec-
tively; and
(B) in section 703—
(i) by striking ‘‘(a) NATIONAL IMPLE-
MENTATION PLAN.—’’;
(ii) by striking paragraph (3) and re-
designating paragraphs (4), (5), and (6) as
paragraphs (3), (4), and (5), respectively;
and
(iii) by striking subsections (b) and
(c).
(g) TERMINATION OF THE NATIONAL OCEANIC AND
ATMOSPHERIC
ADMINISTRATION
CORPS
OF
COMMIS-
SIONED OFFICERS.—
(1) NUMBER
OF
OFFICERS.—Notwithstanding
section 8 of the Act of June 3, 1948 (33 U.S.C.
853g), the total number of commissioned officers on
the active list of the National Scientific, Oceanic,
and Atmospheric Administration shall not exceed—
(A) 358 as of September 30, 1996;
(B) 180 as of September 30, 1997; and
(C) 0 for any fiscal year beginning after
September 30, 1998.
121
(2) SEPARATION PAY.—(A) Commissioned offi-
cers may be separated from the active list of the Na-
tional Scientific, Oceanic, and Atmospheric Adminis-
tration. Any officer so separated because of para-
graph (1) shall, subject to subparagraph (B) and the
availability of appropriations, be eligible for separa-
tion pay under section 9 of the Act of June 3, 1948
(33 U.S.C. 853h) to the same extent as if such offi-
cer had been separated under section 8 of such Act
(33 U.S.C. 853g).
(B) Any officer who, under paragraph (4),
transfers to another of the uniformed services or be-
comes employed in a civil service position shall not
be eligible for separation pay under this paragraph.
(C)(i) Any officer who receives separation pay
under this paragraph shall be required to repay the
amount received if, within 1 year after the date of
the separation on which the payment is based, such
officer is reemployed in a civil service position in the
National Scientific, Oceanic, and Atmospheric Ad-
ministration, the duties of which position would for-
merly have been performed by a commissioned offi-
cer, as determined by the Administrator of Science,
Oceans, and the Atmosphere.
122
(ii) A repayment under this subparagraph shall
be made in a lump sum or in such installments as
the Administrator may specify.
(D) In the case of any officer who makes a re-
payment under subparagraph (C)—
(i) the National Scientific, Oceanic, and
Atmospheric Administration shall pay into the
Civil Service Retirement and Disability Fund,
on such officer’s behalf, any deposit required
under section 8422(e)(1) of title 5, United
States Code, with respect to any prior service
performed by that individual as such an officer;
and
(ii) if the amount paid under clause (i) is
less than the amount of the repayment under
subparagraph (C), the National Scientific, Oce-
anic, and Atmospheric Administration shall pay
into the Government Securities Investment
Fund (established under section 8438(b)(1)(A)
of title 5, United States Code), on such individ-
ual’s behalf, an amount equal to the difference.
The provisions of paragraph (5)(C)(iv) shall apply
with respect to any contribution to the Thrift Sav-
ings Plan made under clause (ii).
123
(3) PRIORITY PLACEMENT PROGRAM.—A prior-
ity placement program similar to the programs de-
scribed in section 3329b of title 5, United States
Code, as amended by section 2109, shall be estab-
lished by the National Scientific, Oceanic, and At-
mospheric Administration to assist commissioned of-
ficers who are separated from the active list of the
National Scientific, Oceanic, and Atmospheric Ad-
ministration because of paragraph (1).
(4) TRANSFER.—(A) Subject to the approval of
the Secretary of Defense and under terms and con-
ditions specified by the Secretary, commissioned offi-
cers subject to paragraph (1) may transfer to the
Armed Forces under section 716 of title 10, United
States Code.
(B) Subject to the approval of the Secretary of
Transportation and under terms and conditions
specified by the Secretary, commissioned officers
subject to paragraph (1) may transfer to the United
States Coast Guard under section 716 of title 10,
United States Code.
(C) Subject to the approval of the Adminis-
trator of Science, Oceans, and the Atmosphere and
under terms and conditions specified by that Admin-
istrator, commissioned officers subject to paragraph
124
(1) may be employed by the National Scientific, Oce-
anic, and Atmospheric Administration as members
of the civil service.
(5) RETIREMENT PROVISIONS.—(A) For com-
missioned officers who transfer under paragraph
(4)(A) to the Armed Forces, the National Scientific,
Oceanic, and Atmospheric Administration shall pay
into the Department of Defense Military Retirement
Fund an amount, to be calculated by the Secretary
of Defense in consultation with the Secretary of the
Treasury, equal to the actuarial present value of any
retired or retainer pay they will draw upon retire-
ment, including full credit for service in the NOAA
Corps. Any payment under this subparagraph shall,
for purposes of paragraph (2) of section 2206(g), be
considered to be an expenditure described in such
paragraph.
(B) For commissioned officers who transfer
under paragraph (4)(B) to the United States Coast
Guard, full credit for service in the NOAA Corps
shall be given for purposes of any annuity or other
similar benefit under the retirement system for
members of the United States Coast Guard, entitle-
ment to which is based on the separation of such of-
ficer.
125
(C)(i) For a commissioned officer who becomes
employed in a civil service position pursuant to para-
graph (4)(C) and thereupon becomes subject to the
Federal Employees’ Retirement System, the Na-
tional Scientific, Oceanic, and Atmospheric Adminis-
tration shall pay, on such officer’s behalf—
(I) into the Civil Service Retirement and
Disability Fund, the amounts required under
clause (ii); and
(II) into the Government Securities Invest-
ment Fund, the amount required under clause
(iii).
(ii)(I) 
The 
amount 
required 
under 
this
subclause is the amount of any deposit required
under section 8422(e)(1) of such title 5 with respect
to any prior service performed by the individual as
a commissioned officer of the National Oceanic and
Atmospheric Administration.
(II) To determine the amount required under
this subclause, first determine, for each year of serv-
ice with respect to which the deposit under subclause
(I) relates, the product of the normal-cost percent-
age for such year (as determined under the last sen-
tence of this subclause) multiplied by basic pay re-
ceived by the individual for any such service per-
126
formed in such year. Second, take the sum of the
amounts determined for the respective years under
the first sentence. Finally, subtract from such sum
the amount of the deposit under subclause (I). For
purposes of the first sentence, the normal-cost per-
centage for any year shall be as determined for such
year under the provisions of section 8423(a)(1) of
title 5, United States Code, except that, in the case
of any year before the first year for which any nor-
mal-cost percentage was determined under such pro-
visions, the normal-cost percentage for such first
year shall be used.
(iii) The amount required under this clause is
the amount by which the separation pay to which
the officer would have been entitled under the sec-
ond sentence of paragraph (2)(A) (assuming the
conditions for receiving such separation pay have
been met) exceeds the amount of the deposit under
clause (ii)(I), if at all.
(iv)(I) Any contribution made under this sub-
paragraph to the Thrift Savings Plan shall not be
subject to any otherwise applicable limitation on con-
tributions contained in the Internal Revenue Code of
1986, and shall not be taken into account in apply-
ing any such limitation to other contributions or
127
benefits under the Thrift Savings Plan, with respect
to the year in which the contribution is made.
(II) Such plan shall not be treated as failing to
meet any nondiscrimination requirement by reason
of the making of such contribution.
(6) REPEALS.—(A) The following provisions of
law are repealed:
(i) The Coast and Geodetic Survey Com-
missioned Officers’ Act of 1948 (33 U.S.C.
853a–853o, 853p–853u).
(ii) The Act of February 16, 1929 (Chap-
ter 221, section 5; 45 Stat. 1187; 33 U.S.C.
852a).
(iii) The Act of January 19, 1942 (Chap-
ter 6; 56 Stat. 6).
(iv) Section 9 of Public Law 87–649 (76
Stat. 495).
(v) The Act of May 22, 1917 (Chapter 20,
section 16; 40 Stat. 87; 33 U.S.C. 854 et seq.).
(vi) The Act of December 3, 1942 (Chap-
ter 670; 56 Stat. 1038.
(vii) Sections 1 through 5 of Public Law
91–621 (84 Stat. 1863; 33 U.S.C. 857–1 et
seq.).
128
(viii) The Act of August 10, 1956 (Chapter
1041, section 3; 70A Stat. 619; 33 U.S.C.
857a).
(ix) The Act of May 18, 1920 (Chapter
190, section 11; 41 Stat. 603; 33 U.S.C. 864).
(x) The Act of July 22, 1947 (Chapter
286; 61 Stat. 400; 33 U.S.C. 873, 874).
(xi) The Act of August 3, 1956 (Chapter
932; 70 Stat. 988; 33 U.S.C. 875, 876).
(xii) All other Acts inconsistent with this
subsection.
No repeal under this subparagraph shall affect any
annuity or other similar benefit payable, under any
provision of law so repealed, based on the separation
of any individual from the NOAA Corps or its suc-
cessor on or before September 30, 1998. Any au-
thority exercised by the Secretary of Commerce or
his designee with respect to any such benefits shall
be exercised by the Administrator of Science,
Oceans, and the Atmosphere, and any authorization
of appropriations relating to those benefits, which is
in effect as of September 30, 1998, shall be consid-
ered to have remained in effect.
(B) The effective date of the repeals under sub-
paragraph (A) shall be October 1, 1998.
129
(C)(i) All laws relating to the retirement of
commissioned officers of the Navy shall apply to
commissioned officers of the former Commissioned
Officers Corps of the National Oceanic and Atmos-
pheric Administration and its predecessors.
(ii) Active service of officers of the former Com-
missioned Officers Corps of the National Oceanic
and Atmospheric Administration and its prede-
cessors who have retired from the Commissioned Of-
ficers Corps shall be deemed to be active military
service in the United States Navy for purposes of all
rights, privileges, immunities, and benefits provided
to retired commissioned officers of the Navy by the
laws and regulations of the United States and any
agency thereof. In the Administration of those laws
and regulations with respect to retired officers of the
former Commissioned Officers Corps of the National
Oceanic and Atmospheric Administration and its
predecessors, the authority of the Secretary of the
Navy shall be exercised by the Administrator of
Science, Oceans, and the Atmosphere.
(iii) For purposes of this subparagraph, the
term ‘‘its predecessors’’ means the former Commis-
sioned Officers Corps of the Environmental Science
Services Administration and the former Commis-
130
sioned Officers Corps of the Coast and Geodetic
Survey.
(7) CREDITABILITY
OF
NOAA
SERVICE
FOR
PURPOSES RELATING TO REDUCTIONS IN FORCE.—
A commissioned officer who is separated from the
active list of the National Oceanic and Atmospheric
Administration or its successor because of paragraph
(1) shall, for purposes of any subsequent reduction
in force, receive credit for any period of service per-
formed as such an officer before separation from
such list to the same extent and in the same manner
as if it had been a period of active service in the
Armed Forces.
(8) ABOLITION.—The Office of the National
Oceanic and Atmospheric Administration Corps of
Operations or its successor and the Commissioned
Personnel Center are abolished effective September
30, 1998.
(h) NOAA FLEET.—
(1) 
SERVICE
CONTRACTS.—Notwithstanding
any other provision of law and subject to the avail-
ability of appropriations, the Administrator of
Science, Oceans, and the Atmosphere shall enter
into contracts, including multiyear contracts, subject
to paragraph (3), for the use of vessels to conduct
131
oceanographic research and fisheries research, mon-
itoring, enforcement, and management, and to ac-
quire other data necessary to carry out the missions
of the National Scientific, Oceanic, and Atmospheric
Administration. The Administrator of Science,
Oceans, and the Atmosphere shall enter into these
contracts unless—
(A) the cost of the contract is more than
the cost (including the cost of vessel operation,
maintenance, and all personnel) to the National
Scientific, Oceanic, and Atmospheric Adminis-
tration of obtaining those services on vessels of
the National Scientific, Oceanic, and Atmos-
pheric Administration;
(B) the contract is for more than 7 years;
or
(C) the data is acquired through a vessel
agreement pursuant to paragraph (4).
(2) VESSELS.—The Administrator of Science,
Oceans, and the Atmosphere may not enter into any
contract for the construction, lease-purchase, up-
grade, or service life extension of any vessel.
(3) MULTIYEAR CONTRACTS.—
(A) IN
GENERAL.—Subject to subpara-
graphs (B) and (C), and notwithstanding sec-
133
(ii) a provision that specifies the term
of effectiveness of the contract; and
(iii) 
appropriate 
provisions 
under
which, in case of any termination of the
contract before the end of the term speci-
fied pursuant to clause (ii), the United
States shall only be liable for the lesser
of—
(I) an amount specified in the
contract for such a termination; or
(II) amounts that were appro-
priated before the date of the termi-
nation for the performance of the con-
tract or for procurement of the type
of acquisition covered by the contract
and are unobligated on the date of the
termination.
(4) VESSEL AGREEMENTS.—The Administrator
of Science, Oceans, and the Atmosphere shall use ex-
cess capacity of University National Oceanographic
Laboratory System vessels where appropriate and
may enter into memoranda of agreement with the
operators of these vessels to carry out this require-
ment.
134
(5) TRANSFER OF EXCESS VESSELS.—The Ad-
ministrator of Science, Oceans, and the Atmosphere
shall transfer any vessels over 1,500 gross tons that
are excess to the needs of the National Scientific,
Oceanic, and Atmospheric Administration to the Na-
tional Defense Reserve Fleet. Notwithstanding any
other provision of law, these vessels may be scrapped
in accordance with section 510(i) of the Merchant
Marine Act, 1936 (46 App. U.S.C. 1160(i)).
(i) NATIONAL MARINE FISHERIES SERVICE.—(1)
There are transferred to the National Scientific, Oceanic,
and Atmospheric Administration all functions that on the
day before the effective date of this section were author-
ized by law to be performed by the National Marine Fish-
eries Service.
(2) Notwithstanding any other provision of law, the
National Marine Fisheries Service may not affect on-land
activities under the Endangered Species Act of 1973 for
salmon recovery in the State of Idaho (16 U.S.C. 1531
et seq.).
(j) NATIONAL OCEAN SERVICE.—Except as otherwise
provided in this title, there are transferred to the National
Scientific, Oceanic, and Atmospheric Administration all
functions and assets of the National Oceanic and Atmos-
pheric Administration that on the date immediately before
135
the effective date of this section were authorized to be per-
formed by the National Ocean Service (including the
Coastal Ocean Program).
(k) TRANSFER OF COASTAL NONPOINT POLLUTION
CONTROL FUNCTIONS.—There are transferred to the Ad-
ministrator of the Environmental Protection Agency the
functions under section 6217 of the Omnibus Budget Rec-
onciliation Act of 1990 (16 U.S.C. 1455b) that on the day
before the effective date of this section were vested in the
Secretary of Commerce.
SEC. 2206. NATIONAL SCIENTIFIC, OCEANIC, AND ATMOS-
PHERIC ADMINISTRATION.
(a) ESTABLISHMENT.—There is established as an
independent agency in the Executive Branch the National
Scientific, Oceanic, and Atmospheric Administration (in
this section referred to as the ‘‘NSOAA’’). The NSOAA,
and all functions and offices transferred to it under this
title, shall be administered under the supervision and di-
rection of an Administrator of Science, Oceans, and the
Atmosphere. The Administrator of Science, Oceans, and
the Atmosphere shall be appointed by the President, by
and with the advice and consent of the Senate, and shall
receive basic pay at the rate payable for level II of the
Executive Schedule under section 5313 of title 5, United
States Code. The Administrator of Science, Oceans, and
136
the Atmosphere shall additionally perform the functions
previously performed by the Administrator of the National
Oceanic and Atmospheric Administration.
(b) PRINCIPAL OFFICER.—There shall be in the
NSOAA, on the transfer of functions and offices under
this title, a Director of the National Bureau of Standards,
who shall be appointed by the President, by and with the
advice and consent of the Senate, and who shall receive
basic pay at the rate payable for level IV of the Executive
Schedule under section 5315 of title 5, United States
Code.
(c) ADDITIONAL OFFICERS.—There shall be in the
NSOAA—
(1) a Chief Financial Officer of the NSOAA, to
be appointed by the President, by and with the ad-
vice and consent of the Senate;
(2) a Chief of External Affairs, to be appointed
by the President, by and with the advice and consent
of the Senate;
(3) a General Counsel, to be appointed by the
President, by and with the advice and consent of the
Senate; and
(4) an Inspector General, to be appointed in ac-
cordance with the Inspector General Act of 1978.
137
Each Officer appointed under this subsection shall receive
basic pay at the rate payable for level IV of the Executive
Schedule under section 5315 of title 5, United States
Code.
(d) TRANSFER OF FUNCTIONS AND OFFICES.—Ex-
cept as otherwise provided in this title, there are trans-
ferred to the NSOAA—
(1) the functions and offices of the National
Oceanic and Atmospheric Administration, as pro-
vided in section 2205;
(2) the National Bureau of Standards, along
with its functions and offices, as provided in section
2202; and
(3) the Office of Space Commerce, along with
its functions and offices.
(e) ELIMINATION
OF POSITIONS.—The Adminis-
trator of Science, Oceans, and the Atmosphere may elimi-
nate positions that are no longer necessary because of the
termination of functions under this section, section 2202,
and section 2205.
(f) AGENCY TERMINATIONS.—
(1) TERMINATIONS.—On the date specified in
section 2208(a), the following shall terminate:
138
(A) The Office of the Deputy Adminis-
trator and Assistant Secretary of the National
Oceanic and Atmospheric Administration.
(B) The Office of the Deputy Under Sec-
retary of the National Oceanic and Atmospheric
Administration.
(C) The Office of the Chief Scientist of the
National Oceanic and Atmospheric Administra-
tion.
(D) The position of Deputy Assistant Sec-
retary for Oceans and Atmosphere.
(E) The position of Deputy Assistant Sec-
retary for International Affairs.
(F) Any office of the National Oceanic and
Atmospheric Administration or the National
Bureau of Standards whose primary purpose is
to perform high performance computing com-
munications, legislative, personnel, public rela-
tions, budget, constituent, intergovernmental,
international, policy and strategic planning,
sustainable development, administrative, finan-
cial, educational, legal and coordination func-
tions. These functions shall, as necessary, be
performed only by officers described in sub-
section (c).
139
(G) The position of Associate Director of
the National Institute of Standards and Tech-
nology.
(2) TERMINATION
OF
EXECUTIVE
SCHEDULE
POSITIONS.—Each position which was expressly au-
thorized by law, or the incumbent of which was au-
thorized to receive compensation at the rate pre-
scribed for levels I through V of the Executive
Schedule under sections 5312 through 5315 of title
5, United States Code, in an office terminated pur-
suant to this section, section 2202, and section 2205
shall also terminate.
(g) FUNDING REDUCTIONS RESULTING FROM REOR-
GANIZATION.—
(1) FUNDING
REDUCTIONS.—Notwithstanding
the transfer of functions under this subtitle, the
total amount obligated or expended by the United
States in performing all functions vested in the Na-
tional Scientific, Oceanic, and Atmospheric Adminis-
tration pursuant to this subtitle shall not exceed—
(A) for the first fiscal year that begins
after the abolishment date specified in section
2101(c), 75 percent of the total amount appro-
priated for fiscal year 1995 for the performance
of all functions vested in the National Oceanic
140
and Atmospheric Administration, the National
Institute of Standards and Technology, and the
Office of Space Commerce, except for those
functions transferred under section 2205 to
agencies or departments other than the Na-
tional Scientific, Oceanic, and Atmospheric Ad-
ministration; and
(B) for the second fiscal year that begins
after the abolishment date specified in section
2101(c) and for each fiscal year thereafter, 65
percent of the total amount appropriated for
fiscal year 1995 for the performance of all func-
tions vested in the National Oceanic and At-
mospheric Administration, the National Insti-
tute of Standards and Technology, and the Of-
fice of Space Commerce, except for those func-
tions transferred under section 22045 to agen-
cies or departments other than the National
Scientific, Oceanic, and Atmospheric Adminis-
tration.
(2) EXCEPTION.—Paragraph (1) shall not
apply to obligations or expenditures incurred as a di-
rect consequence of the termination, transfer, or
other disposition of functions described in paragraph
(1) pursuant to this subtitle.
141
(3) RULE OF CONSTRUCTION.—This subsection
shall take precedence over any other provision of law
unless such provision explicitly refers to this section
and makes an exception to it.
(4) RESPONSIBILITY OF NATIONAL SCIENTIFIC,
OCEANIC, AND
ATMOSPHERIC
ADMINISTRATION.—
The National Scientific, Oceanic, and Atmospheric
Administration, in consultation with the Director of
the Office of Management and Budget, shall make
such modifications in programs as are necessary to
carry out the reductions in appropriations set forth
in subparagraphs (A) and (B) of paragraph (1).
(5) RESPONSIBILITIES OF THE DIRECTOR OF
THE OFFICE OF MANAGEMENT AND BUDGET.—The
Director of the Office of Management and Budget
shall include in each report under sections 2105(a)
and (b) a description of actions taken to comply with
the requirements of this subsection.
SEC. 2207. MISCELLANEOUS TERMINATIONS; MORATORIUM
ON PROGRAM ACTIVITIES.
(a) TERMINATIONS.—The following agencies and pro-
grams of the Department of Commerce are terminated:
(1) The Minority Business Development Admin-
istration.
142
(2) The United States Travel and Tourism Ad-
ministration.
(3) The programs and activities of the National
Telecommunications and Information Administration
referred to in section 2204(a).
(4) The Advanced Technology Program under
section 28 of the National Institute of Standards
and Technology Act (15 U.S.C. 278n).
(5) The Manufacturing Extension Programs
under sections 25 and 26 of the National Institute
of Standards and Technology Act (15 U.S.C. 278k
and 278l).
(6) The National Institute of Standards and
Technology METRIC Program.
(b) MORATORIUM ON PROGRAM ACTIVITIES.—The
authority to make grants, enter into contracts, provide as-
sistance, incur obligations, or provide commitments (in-
cluding any enlargement of existing obligations or commit-
ments, except if required by law) with respect to the agen-
cies and programs described in subsection (a) is termi-
nated effective on the date of the enactment of this title.
SEC. 2208. EFFECTIVE DATE.
(a) IN GENERAL.—Except as provided in subsection
(b), this subtitle shall take effect on the abolishment date
specified in section 2101(c).
143
(b) PROVISIONS EFFECTIVE ON DATE OF ENACT-
MENT.—The following provisions of this subtitle shall take
effect on the date of the enactment of this Act:
(1) Section 2201.
(2) Section 2205(g), except as otherwise pro-
vided in that section.
(3) Section 2207(b).
(4) This section.
Subtitle C—Office of United States
Trade Representative
CHAPTER 1—GENERAL PROVISIONS
SEC. 2301. DEFINITIONS.
For purposes of this subtitle—
(1) the term ‘‘Office’’ means the Office of the
United States Trade Representative;
(2) the term ‘‘Federal agency’’ has the meaning
given to the term ‘‘agency’’ by section 551(1) of title
5, United States Code; and
(3) the term ‘‘USTR’’ means the United States
Trade Representative as provided for under section
2311.
144
CHAPTER 2—OFFICE OF UNITED STATES
TRADE REPRESENTATIVE
Subchapter A—Establishment
SEC. 2311. ESTABLISHMENT OF THE OFFICE.
(a) IN GENERAL.—The Office of the United States
Trade Representative is established as an independent es-
tablishment in the executive branch of Government as de-
fined under section 104 of title 5, United States Code.
The United States Trade Representative shall be the head
of the Office and shall be appointed by the President, by
and with the advice and consent of the Senate.
(b) AMBASSADOR STATUS.—The USTR shall have
the rank and status of Ambassador and shall represent
the United States in all trade negotiations conducted by
the Office.
(c) CONTINUED SERVICE OF CURRENT USTR.—The
individual serving as United States Trade Representative
on the date immediately preceding the effective date of
this subtitle may continue to serve as USTR under sub-
section (a).
(d) SUCCESSOR
TO
THE DEPARTMENT
OF COM-
MERCE.—The Office shall be the successor to the Depart-
ment of Commerce for purposes of protocol.
145
SEC. 2312. FUNCTIONS OF THE USTR.
(a) IN GENERAL.—In addition to the functions trans-
ferred to the USTR by this subtitle, such other functions
as the President may assign or delegate to the USTR, and
such other functions as the USTR may, after the effective
date of this subtitle, be required to carry out by law, the
USTR shall—
(1) serve as the principal advisor to the Presi-
dent on international trade policy and advise the
President on the impact of other policies of the
United States Government on international trade;
(2) exercise primary responsibility, with the ad-
vice of the interagency organization established
under section 242 of the Trade Expansion Act of
1962, for developing and implementing international
trade policy, including commodity matters and, to
the extent related to international trade policy, di-
rect investment matters and, in exercising such re-
sponsibility, advance and implement, as the primary
mandate of the Office, the goals of the United
States to—
(A) maintain United States leadership in
international trade liberalization and expansion
efforts;
(B) reinvigorate the ability of the United
States economy to compete in international
146
markets and to respond flexibly to changes in
international competition; and
(C) expand United States participation in
international trade through aggressive pro-
motion and marketing of goods and services
that are products of the United States;
(3) exercise lead responsibility for the conduct
of international trade negotiations, including nego-
tiations relating to commodity matters and, to the
extent that such negotiations are related to inter-
national trade, direct investment negotiations;
(4) exercise lead responsibility for the establish-
ment of a national export strategy, including policies
designed to implement such strategy;
(5) with the advice of the interagency organiza-
tion established under section 242 of the Trade Ex-
pansion Act of 1962, issue policy guidance to other
Federal agencies on international trade, commodity,
and direct investment functions to the extent nec-
essary to assure the coordination of international
trade policy;
(6) seek and promote new opportunities for
United States products and services to compete in
the world marketplace;
147
(7) assist small businesses in developing export
markets;
(8) enforce the laws of the United States relat-
ing to trade;
(9) analyze economic trends and developments;
(10) report directly to the Congress—
(A) on the administration of, and matters
pertaining to, the trade agreements program
under the Omnibus Trade and Competitiveness
Act of 1988, the Trade Act of 1974, the Trade
Expansion Act of 1962, section 350 of the Tar-
iff Act of 1930, and any other provision of law
enacted after this Act; and
(B) with respect to other important issues
pertaining to international trade;
(11) keep each official adviser to the United
States delegations to international conferences,
meetings, and negotiation sessions relating to trade
agreements who is appointed from the Committee on
Finance of the Senate or the Committee on Ways
and Means of the House of Representatives under
section 161 of the Trade Act of 1974 currently in-
formed on United States negotiating objectives with
respect to trade agreements, the status of negotia-
tions in progress with respect to such agreements,
148
and the nature of any changes in domestic law or
the administration thereof which the USTR may
recommend to the Congress to carry out any trade
agreement;
(12) consult and cooperate with State and local
governments and other interested parties on inter-
national trade matters of interest to such govern-
ments and parties, and to the extent related to inter-
national trade matters, on investment matters, and,
when appropriate, hold informal public hearings;
(13) serve as the principal advisor to the Presi-
dent on Government policies designed to contribute
to enhancing the ability of United States industry
and services to compete in international markets;
(14) develop recommendations for national
strategies and specific policies intended to enhance
the productivity and international competitiveness of
United States industries;
(15) serve as the principal advisor to the Presi-
dent in identifying and assessing the consequences
of any Government policies that adversely affect, or
have the potential to adversely affect, the inter-
national competitiveness of United States industries
and services;
149
(16) promote cooperation between business,
labor, and Government to improve industrial per-
formance and the ability of United States industries
to compete in international markets and to facilitate
consultation and communication between the Gov-
ernment and the private sector about domestic in-
dustrial performance and prospects and the perform-
ance and prospects of foreign competitors; and
(17) monitor and enforce foreign government
compliance with international trade agreements to
protect United States interests.
(b) INTERAGENCY ORGANIZATION.—The USTR shall
be the chairperson of the interagency organization estab-
lished under section 242 of the Trade Expansion Act of
1962.
(c) NATIONAL SECURITY COUNCIL.—The USTR
shall be a member of the National Security Council.
(d) ADVISORY COUNCIL.—The USTR shall be Dep-
uty Chairman of the National Advisory Council on Inter-
national Monetary and Financial Policies established
under Executive Order 11269, issued February 14, 1966.
(e) AGRICULTURE.—(1) The USTR shall consult
with the Secretary of Agriculture or the designee of the
Secretary of Agriculture on all matters that potentially in-
volve international trade in agricultural products.
150
(2) If an international meeting for negotiation or con-
sultation includes discussion of international trade in agri-
cultural products, the USTR or the designee of the USTR
shall be Chairman of the United States delegation to such
meeting and the Secretary of Agriculture or the designee
of such Secretary shall be Vice Chairman. The provisions
of this paragraph shall not limit the authority of the
USTR under subsection (h) to assign to the Secretary of
Agriculture responsibility for the conduct of, or participa-
tion in, any trade negotiation or meeting.
(f) TRADE PROMOTION.—The USTR shall be the
chairperson of the Trade Promotion Coordinating Com-
mittee.
(g) NATIONAL ECONOMIC COUNCIL.—The USTR
shall be a member of the National Economic Council es-
tablished under Executive Order No. 12835, issued Janu-
ary 25, 1993.
(h) INTERNATIONAL TRADE NEGOTIATIONS.—Ex-
cept where expressly prohibited by law, the USTR, at the
request or with the concurrence of the head of any other
Federal agency, may assign the responsibility for conduct-
ing or participating in any specific international trade ne-
gotiation or meeting to the head of such agency whenever
the USTR determines that the subject matter of such
151
international trade negotiation is related to the functions
carried out by such agency.
Subchapter B—Officers
SEC. 2321. DEPUTY ADMINISTRATOR OF THE OFFICE.
(a) ESTABLISHMENT.—There shall be in the Office
the Deputy Administrator of the Office of the United
States Trade Representative, who shall be appointed by
the President, by and with the advice and consent of the
Senate.
(b) 
ABSENCE, 
DISABILITY, 
OR
VACANCY
OF
USTR.—The Deputy Administrator of the Office of the
United States Trade Representative shall act for and exer-
cise the functions of the USTR during the absence or dis-
ability of the USTR or in the event the office of the USTR
becomes vacant. The Deputy Administrator shall act for
and exercise the functions of the USTR until the absence
or disability of the USTR no longer exists or a successor
to the USTR has been appointed by the President and
confirmed by the Senate.
(c) FUNCTIONS OF DEPUTY ADMINISTRATOR.—The
Deputy Administrator of the Office of the United States
Trade Representative shall exercise all functions, under
the direction of the USTR, transferred to or established
in the Office, except those functions exercised by the Dep-
uty United States Trade Representatives, the Director
152
General for Export Promotion, the Inspector General, and
the General Counsel of the Office, as provided by this sub-
title.
SEC. 2322. DEPUTY UNITED STATES TRADE REPRESENTA-
TIVES.
(a) ESTABLISHMENT.—There shall be in the Office
2 Deputy United States Trade Representatives, who shall
be appointed by the President, by and with the advice and
consent of the Senate. The Deputy United States Trade
Representatives shall exercise all functions under the di-
rection of the USTR, and shall include—
(1) the Deputy United States Trade Represent-
ative for Negotiations; and
(2) the Deputy United States Trade Represent-
ative to the World Trade Organization.
(b) FUNCTIONS OF DEPUTY UNITED STATES TRADE
REPRESENTATIVES.—(1) The Deputy United States
Trade Representative for Negotiations shall exercise all
functions transferred under section 2331 and shall have
the rank and status of Ambassador.
(2) The Deputy United States Trade Representative
to the World Trade Organization shall exercise all func-
tions relating to representation to the World Trade Orga-
nization and shall have the rank and status of Ambas-
sador.
153
SEC. 2323. ASSISTANT ADMINISTRATORS.
(a) ESTABLISHMENT.—There shall be in the Office
3 Assistant Administrators, who shall be appointed by the
President, by and with the advice and consent of the Sen-
ate. The Assistant Administrators shall exercise all func-
tions under the direction of the Deputy Administrator of
the Office of the United States Trade Representative and
include—
(1) the Assistant Administrator for Export Ad-
ministration;
(2) the Assistant Administrator for Import Ad-
ministration; and
(3) the Assistant Administrator for Trade and
Policy Analysis.
(b) FUNCTIONS OF ASSISTANT ADMINISTRATORS.—
(1) The Assistant Administrator for Export Administra-
tion shall exercise all functions transferred under section
2332(1)(C).
(2) The Assistant Administrator for Import Adminis-
tration shall exercise all functions transferred under sec-
tion 2332(1)(D).
(3) The Assistant Administrator for Trade and Policy
Analysis shall exercise all functions transferred under sec-
tion 2332(1)(B) and all functions transferred under sec-
tion 2332(2).
154
SEC. 2324. DIRECTOR GENERAL FOR EXPORT PROMOTION.
(a) ESTABLISHMENT.—There shall be a Director
General for Export Promotion, who shall be appointed by
the President, by and with the advice and consent of the
Senate.
(b) FUNCTIONS.—The Director General for Export
Promotion shall exercise, under the direction of the
USTR, 
all 
functions 
transferred 
under 
sections
2332(1)(A) (relating to functions of the United States and
Foreign Commercial Service) and 2333 and shall have the
rank and status of Ambassador.
SEC. 2325. GENERAL COUNSEL.
There shall be in the Office a General Counsel, who
shall be appointed by the President, by and with the advice
and consent of the Senate. The General Counsel shall pro-
vide legal assistance to the USTR concerning the activi-
ties, programs, and policies of the Office.
SEC. 2326. INSPECTOR GENERAL.
There shall be in the Office an Inspector General who
shall be appointed in accordance with the Inspector Gen-
eral Act of 1978, as amended by section 2371(b) of this
Act.
SEC. 2327. CHIEF FINANCIAL OFFICER.
There shall be in the Office a Chief Financial Officer
who shall be appointed in accordance with section 901 of
title 31, United States Code, as amended by section
155
2371(e) of this Act. The Chief Financial Officer shall per-
form all functions prescribed by the Deputy Administrator
of the Office of the United States Trade Representative,
under the direction of the Deputy Administrator.
Subchapter C—Transfers to the Office
SEC. 2331. OFFICE OF THE UNITED STATES TRADE REP-
RESENTATIVE.
There are transferred to the USTR all functions of
the United States Trade Representative and the Office of
the United States Trade Representative in the Executive
Office of the President and all functions of any officer or
employee of such Office.
SEC. 2332. TRANSFERS FROM THE DEPARTMENT OF COM-
MERCE.
There are transferred to the USTR the following
functions:
(1) All functions of, and all functions performed
under the direction of, the following officers and em-
ployees of the Department of Commerce:
(A) The Under Secretary of Commerce for
International Trade, and the Director General
of the United States and Foreign Commercial
Service, relating to all functions exercised by
the Service.
156
(B) The Assistant Secretary of Commerce
for International Economic Policy and the As-
sistant Secretary of Commerce for Trade Devel-
opment.
(C) The Under Secretary of Commerce for
Export Administration.
(D) The Assistant Secretary of Commerce
for Import Administration.
(2) All functions of the Secretary of Commerce
relating to the National Trade Data Bank.
(3) All functions of the Secretary of Commerce
under the Tariff Act of 1930, the Uruguay Round
Agreements Act, the Trade Act of 1974, and other
trade-related Acts for which responsibility is not oth-
erwise assigned under this subtitle.
SEC. 2333. TRADE AND DEVELOPMENT AGENCY.
There are transferred to the Director General for Ex-
port Promotion all functions of the Director of the Trade
and Development Agency. There are transferred to the Of-
fice of the Director General for Export Promotion all func-
tions of the Trade and Development Agency.
SEC. 2334. EXPORT-IMPORT BANK.
(a) IN GENERAL.—(1) There are transferred to the
USTR all functions of the Secretary of Commerce relating
to the Export-Import Bank of the United States.
157
(2) Section 3(c)(1) of the Export-Import Bank Act
of 1945 (12 U.S.C. 635a(c)(1)) is amended to read as fol-
lows:
‘‘(c)(1) There shall be a Board of Directors of the
Bank consisting of the United States Trade Representa-
tive (who shall serve as Chairman), the President of the
Export-Import Bank of the United States (who shall serve
as Vice Chairman), the first Vice President, and 2 addi-
tional persons appointed by the President of the United
States, by and with the advice and consent of the Sen-
ate.’’.
(b) EX OFFICIO MEMBER OF EXPORT-IMPORT BANK
BOARD OF DIRECTORS.—The Director General for Export
Promotion shall serve as an ex officio nonvoting member
of the Board of Directors of the Export-Import Bank.
(c) AMENDMENTS
TO
RELATED
BANKING
AND
TRADE ACTS.—Section 2301(h) of the Omnibus Trade
and Competitiveness Act of 1988 (15 U.S.C. 4721(h)) is
amended to read as follows:
‘‘(h) ASSISTANCE TO EXPORT-IMPORT BANK.—The
Commercial Service shall provide such services as the Di-
rector General for Export Promotion of the Office of the
United States Trade Representative determines necessary
to assist the Export-Import Bank of the United States to
158
carry out the lending, loan guarantee, insurance, and
other activities of the Bank.’’.
SEC. 2335. OVERSEAS PRIVATE INVESTMENT CORPORA-
TION.
(a) BOARD OF DIRECTORS.—The second and third
sentences of section 233(b) of the Foreign Assistance Act
of 1961 (22 U.S.C. 2193(b)) are amended to read as fol-
lows: ‘‘The United States Trade Representative shall be
the Chairman of the Board. The Administrator of the
Agency for International Development (who shall serve as
Vice Chairman) shall serve on the Board.’’.
(b) EX OFFICIO MEMBER OF OVERSEAS PRIVATE IN-
VESTMENT CORPORATION BOARD OF DIRECTORS.—The
Director General for Export Promotion shall serve as an
ex officio nonvoting member of the Board of Directors of
the Overseas Private Investment Corporation.
SEC. 2336. CONSOLIDATION OF EXPORT PROMOTION AND
FINANCING ACTIVITIES.
(a) SUBMISSION OF PLAN.—Within 180 days after
the date of the enactment of this Act, the President shall
transmit to the Congress a comprehensive plan to consoli-
date Federal nonagricultural export promotion activities
and export financing activities and to transfer those func-
tions to the Office. The plan shall provide for—
159
(1) the elimination of the overlap and duplica-
tion among all Federal nonagricultural export pro-
motion activities and export financing activities;
(2) a unified budget for Federal nonagricultural
export promotion activities which eliminates funding
for the areas of overlap and duplication identified
under paragraph (1); and
(3) a long-term agenda for developing better co-
operation between local, State and Federal programs
and activities designed to stimulate or assist United
States businesses in exporting nonagricultural goods
or services that are products of the United States,
including sharing of facilities, costs, and export mar-
ket research data.
(b) PLAN ELEMENTS.—The plan under subsection
(a) shall—
(1) place all Federal nonagricultural export pro-
motion activities and export financing activities with-
in the Office;
(2) provide clear authority for the USTR to use
the expertise and assistance of other United States
Government agencies;
(3) achieve an overall 25 percent reduction in
the amount of funding for all Federal non-
160
agricultural export promotion activities within 2
years after the enactment of this Act;
(4) include any functions of the Department of
Commerce not transferred by this subtitle, or of
other Federal departments the transfer of which to
the Office would be necessary to the competitiveness
of the United States in international trade; and
(5) assess the feasibility and potential savings
resulting from—
(A) the consolidation of the Export-Import
Bank of the United States and the Overseas
Private Investment Corporation;
(B) the consolidation of the Boards of Di-
rectors of the Export-Import Bank and the
Overseas Private Investment Corporation; and
(C) the consolidation of the Trade and De-
velopment Agency with the consolidations under
subparagraphs (A) and (B).
(c) DEFINITION.—As used in this section, the term
‘‘Federal nonagricultural export promotion activities’’
means all programs or activities of any department or
agency of the Federal Government (including, but not lim-
ited to, departments and agencies with representatives on
the Trade Promotion Coordinating Committee established
under section 2312 of the Export Enhancement Act of
161
1988 (15 U.S.C. 4727)) that are designed to stimulate
or assist United States businesses in exporting non-
agricultural goods or services that are products of the
United States, including trade missions.
SEC. 2337. ADDITIONAL TRADE FUNCTIONS.
(a) TERMINATION OF AUTHORIZATIONS OF APPRO-
PRIATIONS.—
(1) NAFTA SECRETARIAT.—Section 105(b) of
the North American Free Trade Agreement Imple-
mentation Act (19 U.S.C. 3315(b)) is amended by
striking ‘‘each fiscal year after fiscal year 1993’’ and
inserting ‘‘each of fiscal years 1994 and 1995’’.
(2) BORDER ENVIRONMENT COOPERATION COM-
MISSION.—Section 533(a)(2) of the North American
Free Trade Agreement Implementation Act (19
U.S.C. 3473(a)(2)) is amended by striking ‘‘and
each fiscal year thereafter’’ and inserting ‘‘fiscal
year 1995’’.
(b) FUNCTIONS RELATED
TO TEXTILE AGREE-
MENTS.—
(1) FUNCTIONS OF CITA.—(A) Subject to sub-
paragraph (B), those functions delegated to the
Committee for the Implementation of Textile Agree-
ments established under Executive Order 11651 (7
162
U.S.C. 1854 note) (hereafter in this subsection re-
ferred to as ‘‘CITA’’) are transferred to the USTR.
(B) Those functions delegated to CITA that re-
late to the assessment of the impact of textile im-
ports on domestic industry are transferred to the
International Trade Commission. The International
Trade Commission shall make a determination pur-
suant to the preceding sentence within 60 days after
receiving a complaint or request for an investigation.
(2) ABOLITION OF CITA.—CITA is abolished.
Subchapter D—Administrative Provisions
SEC. 2341. PERSONNEL PROVISIONS.
(a) APPOINTMENTS.—The USTR may appoint and
fix the compensation of such officers and employees, in-
cluding investigators, attorneys, and administrative law
judges, as may be necessary to carry out the functions
of the USTR and the Office. Except as otherwise provided
by law, such officers and employees shall be appointed in
accordance with the civil service laws and their compensa-
tion fixed in accordance with title 5, United States Code.
(b) POSITIONS ABOVE GS–15.—(1) At the request
of the USTR, the Director of the Office of Personnel Man-
agement shall, under section 5108 of title 5, United States
Code, provide for the establishment in a grade level above
GS–15 of the General Service, and in the Senior Executive
163
Service, of a number of positions in the Office equal to
the number of positions in that grade level which were
used primarily for the performance of functions and of-
fices transferred by this subtitle and which were assigned
and filled on the day before the effective date of this sub-
title.
(2) Appointments to positions provided for under this
subsection may be made without regard to the provisions
of section 3324 of title 5, United States Code, if the indi-
vidual appointed in such position is an individual who is
transferred in connection with the transfer of functions
and offices under this subtitle and, on the day before the
effective date of this subtitle, holds a position and has du-
ties comparable to those of the position to which appointed
under this subsection.
(3) The authority under this subsection with respect
to any position established at a grade level above GS–15
shall terminate when the person first appointed to fill such
position ceases to hold such position.
(4) For purposes of section 414(a)(3)(A) of the Civil
Service Reform Act of 1978, an individual appointed
under this subsection shall be deemed to occupy the same
position as the individual occupied on the day before the
effective date of this subtitle.
164
(c) EXPERTS AND CONSULTANTS.—The USTR may
obtain the services of experts and consultants in accord-
ance with section 3109 of title 5, United States Code, and
compensate such experts and consultants for each day (in-
cluding traveltime) at rates not in excess of the maximum
rate of pay for a position above GS–15 of the General
Schedule under section 5332 of such title. The USTR may
pay experts and consultants who are serving away from
their homes or regular place of business travel expenses
and per diem in lieu of subsistence at rates authorized
by sections 5702 and 5703 of such title for persons in
Government service employed intermittently.
(d) VOLUNTARY SERVICES.—(1)(A) The USTR is
authorized to accept voluntary and uncompensated serv-
ices without regard to the provisions of section 1342 of
title 31, United States Code, if such services will not be
used to displace Federal employees employed on a full-
time, part-time, or seasonal basis.
(B) The USTR is authorized to accept volunteer serv-
ice in accordance with the provisions of section 3111 of
title 5, United States Code.
(2) The USTR is authorized to provide for incidental
expenses, including but not limited to transportation, lodg-
ing, and subsistence for individuals who provide voluntary
services under subparagraph (A) or (B) of paragraph (1).
165
(3) An individual who provides voluntary services
under paragraph (1)(A) shall not be considered a Federal
employee for any purpose other than for purposes of chap-
ter 81 of title 5, United States Code, relating to com-
pensation for work injuries, and chapter 171 of title 28,
United States Code, relating to tort claims.
(e) FOREIGN SERVICE POSITIONS.—In order to as-
sure United States representation in trade matters at a
level commensurate with the level of representation main-
tained by industrial nations which are major trade com-
petitors of the United States, the Secretary of State shall
classify certain positions at Foreign Service posts as com-
mercial minister positions and shall assign members of the
Foreign Service performing functions of the Office, with
the concurrence of the USTR, to such positions in nations
which are major trade competitors of the United States.
The Secretary of State shall obtain and use the rec-
ommendations of the USTR with respect to the number
of positions to be so classified under this subsection.
SEC. 2342. DELEGATION AND ASSIGNMENT.
Except where otherwise expressly prohibited by law
or otherwise provided by this subtitle, the USTR may dele-
gate any of the functions transferred to the USTR by this
subtitle and any function transferred or granted to the
USTR after the effective date of this subtitle to such offi-
166
cers and employees of the Office as the USTR may des-
ignate, and may authorize successive redelegations of such
functions as may be necessary or appropriate. No delega-
tion of functions by the USTR under this section or under
any other provision of this subtitle shall relieve the USTR
of responsibility for the administration of such functions.
SEC. 2343. SUCCESSION.
(a) ORDER OF SUCCESSION.—Subject to the author-
ity of the President, and except as provided in section
2321(b), the USTR shall prescribe the order by which offi-
cers of the Office who are appointed by the President, by
and with the advice and consent of the Senate, shall act
for, and perform the functions of, the USTR or any other
officer of the Office appointed by the President, by and
with the advice and consent of the Senate, during the ab-
sence or disability of the USTR or such other officer, or
in the event of a vacancy in the office of the USTR or
such other officer.
(b) CONTINUATION.—Notwithstanding any other pro-
vision of law, and unless the President directs otherwise,
an individual acting for the USTR or another officer of
the Office pursuant to subsection (a) shall continue to
serve in that capacity until the absence or disability of
the USTR or such other officer no longer exists or a suc-
167
cessor to the USTR or such other officer has been ap-
pointed by the President and confirmed by the Senate.
SEC. 2344. REORGANIZATION.
(a) IN GENERAL.—Subject to subsection (b), the
USTR is authorized to allocate or reallocate functions
among the officers of the Office, and to establish, consoli-
date, alter, or discontinue such organizational entities in
the Office as may be necessary or appropriate.
(b) EXCEPTION.—The USTR may not exercise the
authority under subsection (a) to establish, consolidate,
alter, or discontinue any organizational entity in the Office
or allocate or reallocate any function of an officer or em-
ployee of the Office that is inconsistent with any specific
provision of this subtitle.
SEC. 2345. RULES.
The USTR is authorized to prescribe, in accordance
with the provisions of chapters 5 and 6 of title 5, United
States Code, such rules and regulations as the USTR de-
termines necessary or appropriate to administer and man-
age the functions of the USTR or the Office.
SEC. 2346. FUNDS TRANSFER.
The USTR may, when authorized in an appropriation
Act in any fiscal year, transfer funds from one appropria-
tion to another within the Office, except that no appro-
priation for any fiscal year shall be either increased or
168
decreased by more than 10 percent and no such transfer
shall result in increasing any such appropriation above the
amount authorized to be appropriated therefor.
SEC. 
2347. 
CONTRACTS, 
GRANTS, 
AND 
COOPERATIVE
AGREEMENTS.
(a) IN GENERAL.—Subject to the provisions of the
Federal Property and Administrative Services Act of
1949, the USTR may make, enter into, and perform such
contracts, leases, cooperative agreements, grants, or other
similar transactions with public agencies, private organiza-
tions, and persons, and make payments (in lump sum or
installments, and by way of advance or reimbursement,
and, in the case of any grant, with necessary adjustments
on account of overpayments and underpayments) as the
USTR considers necessary or appropriate to carry out the
functions of the USTR or the Office.
(b) EXCEPTION.—Notwithstanding any other provi-
sion of this subtitle, the authority to enter into contracts
or to make payments under this subchapter shall be effec-
tive only to such extent or in such amounts as are provided
in advance in appropriation Acts. This subsection does not
apply with respect to the authority granted under section
2349.
169
SEC. 2348. USE OF FACILITIES.
(a) USE BY USTR.—With their consent, the USTR,
with or without reimbursement, may use the research,
services, equipment, and facilities of—
(1) an individual,
(2) any public or private nonprofit agency or
organization, including any agency or instrumental-
ity of the United States or of any State, the District
of Columbia, the Commonwealth of Puerto Rico, or
any territory or possession of the United States,
(3) any political subdivision of any State, the
District of Columbia, the Commonwealth of Puerto
Rico, or any territory or possession of the United
States, or
(4) any foreign government,
in carrying out any function of the USTR or the Office.
(b) USE OF USTR FACILITIES.—The USTR, under
terms, at rates, and for periods that the USTR considers
to be in the public interest, may permit the use by public
and private agencies, corporations, associations or other
organizations, or individuals, of any real property, or any
facility, structure or other improvement thereon, under the
custody of the USTR. The USTR may require permittees
under this section to maintain or recondition, at their own
expense, the real property, facilities, structures, and im-
provements used by such permittees.
170
SEC. 2349. GIFTS AND BEQUESTS.
(a) IN GENERAL.—The USTR is authorized to ac-
cept, hold, administer, and utilize gifts and bequests of
property, both real and personal, for the purpose of aiding
or facilitating the work of the Office. Gifts and bequests
of money and the proceeds from sales of other property
received as gifts or bequests shall be deposited in the Unit-
ed States Treasury in a separate fund and shall be dis-
bursed on order of the USTR. Property accepted pursuant
to this subsection, and the proceeds thereof, shall be used
as nearly as possible in accordance with the terms of the
gift or bequest.
(b) TAX TREATMENT.—For the purpose of Federal
income, estate, and gift taxes, and State taxes, property
accepted under subsection (a) shall be considered a gift
or bequest to or for the use of the United States.
(c) INVESTMENT.—Upon the request of the USTR,
the Secretary of the Treasury may invest and reinvest in
securities of the United States or in securities guaranteed
as to principal and interest by the United States any mon-
eys contained in the fund provided for in subsection (a).
Income accruing from such securities, and from any other
property held by the USTR pursuant to subsection (a),
shall be deposited to the credit of the fund, and shall be
disbursed upon order of the USTR.
171
SEC. 2350. WORKING CAPITAL FUND.
(a) ESTABLISHMENT.—The USTR is authorized to
establish for the Office a working capital fund, to be avail-
able without fiscal year limitation, for expenses necessary
for the maintenance and operation of such common ad-
ministrative services as the USTR shall find to be desir-
able in the interest of economy and efficiency, including—
(1) a central supply service for stationery and
other supplies and equipment for which adequate
stocks may be maintained to meet in whole or in
part the requirements of the Office and its compo-
nents;
(2) central messenger, mail, and telephone serv-
ice and other communications services;
(3) office space and central services for docu-
ment reproduction and for graphics and visual aids;
(4) a central library service; and
(5) such other services as may be approved by
the Director of the Office of Management and Budg-
et.
(b) OPERATION OF FUND.—The capital of the fund
shall consist of any appropriations made for the purpose
of providing working capital and the fair and reasonable
value of such stocks of supplies, equipment, and other as-
sets and inventories on order as the USTR may transfer
to the fund, less the related liabilities and unpaid obliga-
172
tions. The fund shall be reimbursed in advance from avail-
able funds of agencies and offices in the Office, or from
other sources, for supplies and services at rates which will
approximate the expense of operation, including the ac-
crual of annual leave and the depreciation of equipment.
The fund shall also be credited with receipts from sale or
exchange of property and receipts in payment for loss or
damage to property owned by the fund. There shall be cov-
ered into the United States Treasury as miscellaneous re-
ceipts any surplus of the fund (all assets, liabilities, and
prior losses considered) above the amounts transferred or
appropriated to establish and maintain the fund. There
shall be transferred to the fund the stocks of supplies,
equipment, other assets, liabilities, and unpaid obligations
relating to those services which the USTR determines will
be performed.
SEC. 2351. SERVICE CHARGES.
(a) AUTHORITY.—Notwithstanding any other provi-
sion of law, the USTR may establish reasonable fees and
commissions with respect to applications, documents,
awards, loans, grants, research data, services, and assist-
ance administered by the Office, and the USTR may
change and abolish such fees and commissions. Before es-
tablishing, changing, or abolishing any schedule of fees or
173
commissions under this section, the USTR may submit
such schedule to the Congress.
(b) DEPOSITS.—The USTR is authorized to require
a deposit before the USTR provides any item, information,
service, or assistance for which a fee or commission is re-
quired under this section.
(c) DEPOSIT OF MONEYS.—Moneys received under
this section shall be deposited in the Treasury in a special
account for use by the USTR and are authorized to be
appropriated and made available until expended.
(d) FACTORS IN ESTABLISHING FEES AND COMMIS-
SIONS.—In establishing reasonable fees or commissions
under this section, the USTR may take into account—
(1) the actual costs which will be incurred in
providing the items, information, services, or assist-
ance concerned;
(2) the efficiency of the Government in provid-
ing such items, information, services, or assistance;
(3) the portion of the cost that will be incurred
in providing such items, information, services, or as-
sistance which may be attributed to benefits for the
general public rather than exclusively for the person
to whom the items, information, services, or assist-
ance is provided;
174
(4) any public service which occurs through the
provision of such items, information, services, or as-
sistance; and
(5) such other factors as the USTR considers
appropriate.
(e) REFUNDS OF EXCESS PAYMENTS.—In any case
in which the USTR determines that any person has made
a payment which is not required under this section or has
made a payment which is in excess of the amount required
under this section, the USTR, upon application or other-
wise, may cause a refund to be made from applicable
funds.
SEC. 2352. SEAL OF OFFICE.
The USTR shall cause a seal of office to be made
for the Office of such design as the USTR shall approve.
Judicial notice shall be taken of such seal.
Subchapter E—Related Agencies
SEC. 2361. INTERAGENCY TRADE ORGANIZATION.
Section 242(a)(3) of the Trade Expansion Act of
1962 (19 U.S.C. 1872(a)(3)) is amended to read as fol-
lows:
‘‘(3)(A) The interagency organization estab-
lished under subsection (a) shall be composed of—
‘‘(i) the United States Trade Representa-
tive, who shall be the chairperson,
175
‘‘(ii) the Secretary of Agriculture,
‘‘(iii) the Secretary of the Treasury,
‘‘(iv) the Secretary of Labor,
‘‘(v) the Secretary of State, and
‘‘(vi) the representatives of such other de-
partments and agencies as the United States
Trade Representative shall designate.
‘‘(B) The United States Trade Representative
may invite representatives from other agencies, as
appropriate, to attend particular meetings if subject
matters of specific functional interest to such agen-
cies are under consideration. It shall meet at such
times and with respect to such matters as the Presi-
dent or the chairperson shall direct.’’.
SEC. 2362. NATIONAL SECURITY COUNCIL.
The fourth paragraph of section 101(a) of the Na-
tional Security Act of 1947 (50 U.S.C. 402(a)) is amend-
ed—
(1) by redesignating clauses (5), (6), and (7) as
clauses (6), (7), and (8), respectively; and
(2) by inserting after clause (4) the following
new clause:
‘‘(5) the United States Trade Representative;’’.
176
SEC. 2363. INTERNATIONAL MONETARY FUND.
Section 3 of the Bretton Woods Agreement Act is
amended by adding at the end the following new sub-
section:
‘‘(e) The United States executive director of the Fund
shall consult with the United States Trade Representative
with respect to matters under consideration by the Fund
which relate to trade.’’.
Subchapter F—Conforming Amendments
SEC. 2371. AMENDMENTS TO GENERAL PROVISIONS.
(a) INSPECTOR GENERAL.—The Inspector General
Act of 1978 is amended—
(1) in subsection 9(a)(1) by inserting after sub-
paragraph (W) the following:
‘‘(X) of the United States Trade Rep-
resentative, all functions of the Inspector Gen-
eral of the Department of Commerce and the
Office of the Inspector General of the Depart-
ment of Commerce relating to the functions
transferred to the United States Trade Rep-
resentative by section 2332 of the Department
of Commerce Dismantling Act; and’’; and
(2) in section 11—
(A) in paragraph (1) by inserting ‘‘the
United States Trade Representative;’’ after
‘‘the Attorney General;’’; and
177
(B) in paragraph (2) by inserting ‘‘the Of-
fice of the United States Trade Representa-
tive,’’ after ‘‘Treasury;’’.
(b) AMENDMENT TO THE TRADE ACT OF 1974.—(1)
Chapter 4 of title I of the Trade Act of 1974 is amended
to read as follows:
‘‘CHAPTER 4—REPRESENTATION IN
TRADE NEGOTIATIONS
‘‘SEC. 141. FUNCTIONS OF THE UNITED STATES TRADE REP-
RESENTATIVE.
‘‘The United States Trade Representative established
under section 2311 of the Department of Commerce Dis-
mantling Act shall—
‘‘(1) be the chief representative of the United
States for each trade negotiation under this title or
chapter 1 of title III of this Act, or subtitle A of
title I of the Omnibus Trade and Competitiveness
Act of 1988, or any other provision of law enacted
after the Department of Commerce Dismantling Act;
‘‘(2) report directly to the President and the
Congress, and be responsible to the President and
the Congress for the administration of trade agree-
ments programs under this Act, the Omnibus Trade
and Competitiveness Act of 1988, the Trade Expan-
sion Act of 1962, section 350 of the Tariff Act of
178
1930, and any other provision of law enacted after
the Department of Commerce Dismantling Act;
‘‘(3) advise the President and the Congress
with respect to nontariff barriers to international
trade, international commodity agreements, and
other matters which are related to the trade agree-
ments programs; and
‘‘(4) be responsible for making reports to Con-
gress with respect to the matters set forth in para-
graphs (1) and (2).’’.
(2) The table of contents in the first section of the
Trade Act of 1974 is amended by striking the items relat-
ing to chapter 4 and section 141 and inserting the follow-
ing:
‘‘CHAPTER 4—REPRESENTATION IN TRADE NEGOTIATIONS
‘‘Sec. 141. Functions of the United States Trade Representative.’’.
(d) FOREIGN SERVICE PERSONNEL.—The Foreign
Service Act of 1980 is amended by striking paragraph (3)
of section 202(a) (22 U.S.C. 3922(a)) and inserting the
following:
‘‘(3) The United States Trade Representative
may utilize the Foreign Service personnel system in
accordance with this Act—
‘‘(A) with respect to the personnel per-
forming functions—
179
‘‘(i) which were transferred to the De-
partment of Commerce from the Depart-
ment of State by Reorganization Plan No.
3 of 1979; and
‘‘(ii) which were subsequently trans-
ferred to the United States Trade Rep-
resentative by section 2332 of the Depart-
ment of Commerce Dismantling Act; and
‘‘(B) with respect to other personnel of the
Office of United States Trade Representative to
the extent the President determines to be nec-
essary in order to enable the Office of the Unit-
ed States Trade Representative to carry out
functions which require service abroad.’’.
(e) CHIEF FINANCIAL OFFICERS.—Section 901(b)(1)
of title 31, United States Code, is amended by adding at
the end the following:
‘‘(Q) The Office of the United States
Trade Representative.’’.
SEC. 2372. REPEALS.
Sections 1 and 2 of the Act of June 5, 1939 (15
U.S.C. 1502 and 1503; 53 Stat. 808), relating to the
Under Secretary of Commerce, are repealed.
180
SEC. 2373. CONFORMING AMENDMENTS RELATING TO EX-
ECUTIVE SCHEDULE POSITIONS.
(a) POSITIONS AT LEVEL I.—Section 5312 of title
5, United States Code, is amended by amending the item
relating to the United States Trade Representative to read
as follows:
‘‘United States Trade Representative, Office of
the United States Trade Representative.’’.
(b) POSITIONS AT LEVEL II.—Section 5313 of title
5, United States Code, is amended by adding at the end
the following:
‘‘Deputy Administrator of the Office of the
United States Trade Representative.
‘‘Deputy United States Trade Representatives,
Office of the United States Trade Representative
(2).’’.
(c) POSITIONS AT LEVEL III.—Section 5314 of title
5, United States Code, is amended by adding at the end
the following:
‘‘Assistant Administrators, Office of the United
States Trade Representative (3).
‘‘Director General for Export Promotion, Office
of the United States Trade Representative.’’.
(d) POSITIONS AT LEVEL IV.—Section 5315 of title
5, United States Code, is amended—
181
(1) by striking the item relating to the Assist-
ant Secretary of Commerce and Director General of
the United States and Foreign Commercial Service;
and
(2) by adding at the end the following:
‘‘General Counsel, Office of the United States
Trade Representative.
‘‘Inspector General, Office of the United States
Trade Representative.
‘‘Chief Financial Officer, Office of the United
States Trade Representative.’’.
Subchapter G—Miscellaneous
SEC. 2381. EFFECTIVE DATE.
(a) IN GENERAL.—This subtitle shall take effect on
the effective date specified in section 2208(a), except
that—
(1) section 2336 shall take effect on the date of
the enactment of this Act; and
(2) at any time after the date of the enactment
of this Act the officers provided for in subchapter B
may be nominated and appointed, as provided in
such subchapter.
(b) INTERIM
COMPENSATION
AND
EXPENSES.—
Funds available to the Department of Commerce or the
Office of the United States Trade Representative (or any
182
official or component thereof), with respect to the func-
tions transferred by this subtitle, may be used, with ap-
proval of the Director of the Office of Management and
Budget, to pay the compensation and expenses of an offi-
cer appointed under subsection (a) who will carry out such
functions until funds for that purpose are otherwise avail-
able.
SEC. 2382. INTERIM APPOINTMENTS.
(a) IN GENERAL.—If one or more officers required
by this subtitle to be appointed by and with the advice
and consent of the Senate have not entered upon office
on the effective date of this subtitle and notwithstanding
any other provision of law, the President may designate
any officer who was appointed by and with the advice and
consent of the Senate, and who was such an officer on
the day before the effective date of this subtitle, to act
in the office until it is filled as provided by this subtitle.
(b) COMPENSATION.—Any officer acting in an office
pursuant to subsection (a) shall receive compensation at
the rate prescribed by this subtitle for such office.
SEC. 2383. FUNDING REDUCTIONS RESULTING FROM REOR-
GANIZATION.
(a) FUNDING REDUCTIONS.—Notwithstanding the
transfer of functions under this subtitle, and except as
provided in subsection (b), the total amount appropriated
183
by the United States in performing all functions vested
in the USTR and the Office pursuant to this subtitle shall
not exceed—
(1) for the first fiscal year that begins after the
abolishment date specified in section 2101(c), 75
percent of the total amount appropriated in fiscal
year 1995 for the performance of all such functions;
and
(2) for the second fiscal year that begins after
the abolishment date specified in section 2101(c)
and for each fiscal year thereafter, 65 percent of the
total amount appropriated in fiscal year 1995 for
the performance of all such functions.
(b) EXCEPTION.—Subsection (a) shall not apply to
obligations or expenditures incurred as a direct con-
sequence of the termination, transfer, or other disposition
of functions described in subsection (a) pursuant to this
title.
(c) RULE
OF CONSTRUCTION.—This section shall
take precedence over any other provision of law unless
such provision explicitly refers to this section and makes
an exception to it.
(d) RESPONSIBILITY OF USTR.—The USTR, in con-
sultation with the Director of the Office of Management
and Budget, shall make such modifications in programs
184
as are necessary to carry out the reductions in appropria-
tions set forth in paragraph (1) and (2) of subsection (a).
(e) RESPONSIBILITIES OF THE DIRECTOR OF THE
OFFICE OF MANAGEMENT AND BUDGET.—The Director
of the Office of Management and Budget shall include in
each report under sections 2105(a) and (b) a description
of actions taken to comply with the requirements of this
section.
Subtitle D—Patent and Trademark
Office Corporation
SEC. 2401. SHORT TITLE.
This subtitle may be cited as the ‘‘Patent and Trade-
mark Office Corporation Act of 1995’’.
CHAPTER 1—PATENT AND TRADEMARK
OFFICE
SEC. 2411. ESTABLISHMENT OF PATENT AND TRADEMARK
OFFICE AS A CORPORATION.
Section 1 of title 35, United States Code, is amended
to read as follows:
‘‘§ 1. Establishment
‘‘(a) ESTABLISHMENT.—The Patent and Trademark
Office is established as a wholly owned Government cor-
poration subject to chapter 91 of title 31, except as other-
wise provided in this title.
185
‘‘(b) OFFICES.—The Patent and Trademark Office
shall maintain an office in the District of Columbia, or
the metropolitan area thereof, for the service of process
and papers and shall be deemed, for purposes of venue
in civil actions, to be a resident of the district in which
its principal office is located. The Patent and Trademark
Office may establish offices in such other places as it con-
siders necessary or appropriate in the conduct of its busi-
ness.
‘‘(c) REFERENCE.—For purposes of this title, the
Patent and Trademark Office shall also be referred to as
the ‘Office’.’’.
SEC. 2412. POWERS AND DUTIES.
Section 2 of title 35, United States Code, is amended
to read as follows:
‘‘§ 2. Powers and Duties
‘‘(a) IN GENERAL.—The Patent and Trademark Of-
fice shall be responsible for—
‘‘(1) the granting and issuing of patents and
the registration of trademarks;
‘‘(2) conducting studies, programs, or ex-
changes of items or services regarding domestic and
international patent and trademark law or the ad-
ministration of the Office, including programs to
recognize, identify, assess, and forecast the tech-
186
nology of patented inventions and their utility to in-
dustry;
‘‘(3) authorizing or conducting studies and pro-
grams cooperatively with foreign patent and trade-
mark offices and international organizations, in con-
nection with the granting and issuing of patents and
the registration of trademarks; and
‘‘(4) disseminating to the public information
with respect to patents and trademarks.
‘‘(b) SPECIFIC POWERS.—The Office—
‘‘(1) shall have perpetual succession;
‘‘(2) shall adopt and use a corporate seal, which
shall be judicially noticed and with which letters pat-
ent, certificates of trademark registrations, and pa-
pers issued by the Office shall be authenticated;
‘‘(3) may sue and be sued in its corporate name
and be represented by its own attorneys in all judi-
cial and administrative proceedings, subject to the
provisions of section 8 of this title;
‘‘(4) may indemnify the Commissioner of Pat-
ents and Trademarks, and other officers, attorneys,
agents, and employees (including members of the
Management Advisory Board established in section
5) of the Office for liabilities and expenses incurred
within the scope of their employment;
187
‘‘(5) may adopt, amend, and repeal bylaws,
rules, and regulations, governing the manner in
which its business will be conducted and the powers
granted to it by law will be exercised;
‘‘(6) may acquire, construct, purchase, lease,
hold, manage, operate, improve, alter, and renovate
any real, personal, or mixed property, or any interest
therein, as it considers necessary to carry out its
functions;
‘‘(7)(A) may make such purchases, contracts
for the construction, maintenance, or management
and operation of facilities, and contracts for supplies
or services, without regard to section 111 of the
Federal Property and Administrative Services Act of
1949 (40 U.S.C. 759); and
‘‘(B) may enter into and perform such pur-
chases and contracts for printing services, including
the process of composition, platemaking, presswork,
silk screen processes, binding, microform, and the
products of such processes, as it considers necessary
to carry out the functions of the Office, without re-
gard to sections 501 through 517 and 1101 through
1123 of title 44;
‘‘(8) may use, with their consent, services,
equipment, personnel, and facilities of other depart-
188
ments, agencies, and instrumentalities of the Fed-
eral Government, on a reimbursable basis, and co-
operate with such other departments, agencies, and
instrumentalities in the establishment and use of
services, equipment, and facilities of the Office;
‘‘(9) may obtain from the Administrator of
General Services such services as the Administrator
is authorized to provide to other agencies of the
United States, on the same basis as those services
are provided to other agencies of the United States;
‘‘(10) may use, with the consent of the United
States and the agency, government, or international
organization concerned, the services, records, facili-
ties, or personnel of any State or local government
agency or instrumentality or foreign government or
international organization to perform functions on
its behalf;
‘‘(11) may determine the character of and the
necessity for its obligations and expenditures and
the manner in which they shall be incurred, allowed,
and paid, subject to the provisions of this title and
the Act of July 5, 1946 (commonly referred to as
the ‘Trademark Act of 1946’);
‘‘(12) may retain and use all of its revenues
and receipts, including revenues from the sale, lease,
189
or disposal of any real, personal, or mixed property,
or any interest therein, of the Office, in carrying out
the functions of the Office, including for research
and development and capital investment, subject to
the provisions of section 10101 of the Omnibus
Budget Reconciliation Act of 1990 (35 U.S.C. 41
note);
‘‘(13) shall have the priority of the United
States with respect to the payment of debts from
bankrupt, insolvent, and decedents’ estates;
‘‘(14) may accept monetary gifts or donations
of services, or of real, personal, or mixed property,
in order to carry out the functions of the Office;
‘‘(15) may execute, in accordance with its by-
laws, rules, and regulations, all instruments nec-
essary and appropriate in the exercise of any of its
powers;
‘‘(16) may provide for liability insurance and
insurance against any loss in connection with its
property, other assets, or operations either by con-
tract or by self-insurance; and
‘‘(17) shall pay any settlement or judgment en-
tered against it from the funds of the Office and not
from amounts available under section 1304 of title
31.’’.
190
SEC. 2413. ORGANIZATION AND MANAGEMENT.
Section 3 of title 35, United States Code, is amended
to read as follows:
‘‘§ 3. Officers and employees
‘‘(a) COMMISSIONER.—
‘‘(1) IN
GENERAL.—The management of the
Patent and Trademark Office shall be vested in a
Commissioner of Patents and Trademarks (hereafter
in this title referred to as the ‘Commissioner’), who
shall be a citizen of the United States and who shall
be appointed by the President, by and with the ad-
vice and consent of the Senate. The Commissioner
shall be a person who, by reason of professional
background and experience in patent and trademark
law, is especially qualified to manage the Office.
‘‘(2) DUTIES.—
‘‘(A) IN
GENERAL.—The Commissioner
shall be responsible for the management and di-
rection of the Office, including the issuance of
patents and the registration of trademarks.
‘‘(B) ADVISING
THE
PRESIDENT.—The
Commissioner shall advise the President of all
activities of the Patent and Trademark Office
undertaken in response to obligations of the
United States under treaties and executive
agreements, or which relate to cooperative pro-
191
grams with those authorities of foreign govern-
ments that are responsible for granting patents
or registering trademarks. The Commissioner
shall also recommend to the President changes
in law or policy which may improve the ability
of United States citizens to secure and enforce
patent rights or trademark rights in the United
States or in foreign countries.
‘‘(C) CONSULTING
WITH
THE
MANAGE-
MENT
ADVISORY
BOARD.—The Commissioner
shall consult with the Management Advisory
Board established in section 5 on a regular
basis on matters relating to the operation of the
Patent and Trademark Office, and shall consult
with the Board before submitting budgetary
proposals to the Office of Management and
Budget or changing or proposing to change pat-
ent or trademark user fees or patent or trade-
mark regulations.
‘‘(D) SECURITY CLEARANCES.—The Com-
missioner, in consultation with the Director of
the Office of Personnel Management, shall
maintain a program for identifying national se-
curity positions and providing for appropriate
security clearances.
192
‘‘(3) TERM.—The Commissioner shall serve a
term of 5 years, and may continue to serve after the
expiration of the Commissioner’s term until a suc-
cessor is appointed and assumes office. The Com-
missioner may be reappointed to subsequent terms.
‘‘(4) OATH.—The Commissioner shall, before
taking office, take an oath to discharge faithfully the
duties of the Office.
‘‘(5) COMPENSATION.—The Commissioner shall
receive compensation at the rate of pay in effect for
Level III of the Executive Schedule under section
5314 of title 5.
‘‘(6) REMOVAL.—The Commissioner may be re-
moved from office by the President only for cause.
‘‘(7) DESIGNEE OF COMMISSIONER.—The Com-
missioner shall designate an officer of the Office who
shall be vested with the authority to act in the ca-
pacity of the Commissioner in the event of the ab-
sence or incapacity of the Commissioner.
‘‘(b) OFFICERS AND EMPLOYEES OF THE OFFICE.—
‘‘(1) DEPUTY COMMISSIONERS.—The Commis-
sioner shall appoint a Deputy Commissioner for Pat-
ents and a Deputy Commissioner for Trademarks
for terms that shall expire on the date on which the
Commissioner’s term expires. The Deputy Commis-
193
sioner for Patents shall be a person with dem-
onstrated experience in patent law and the Deputy
Commissioner for Trademarks shall be a person with
demonstrated experience in trademark law. The
Deputy Commissioner for Patents and the Deputy
Commissioner for Trademarks shall be the principal
policy advisors to the Commissioner on all aspects of
the activities of the Office that affect the adminis-
tration of patent and trademark operations, respec-
tively.
‘‘(2) OTHER OFFICERS AND EMPLOYEES.—The
Commissioner shall—
‘‘(A) appoint an Inspector General and
such other officers, employees (including attor-
neys), and agents of the Office as the Commis-
sioner considers necessary to carry out its func-
tions;
‘‘(B) fix the compensation of such officers
and employees; and
‘‘(C) define the authority and duties of
such officers and employees and delegate to
them such of the powers vested in the Office as
the Commissioner may determine.
The Office shall not be subject to any administra-
tively or statutorily imposed limitation on positions
194
or personnel, and no positions or personnel of the
Office shall be taken into account for purposes of
applying any such limitation, except to the extent
otherwise specifically provided by statute with re-
spect to the Office.
‘‘(c) LIMITS ON COMPENSATION.—Except as other-
wise provided in this title or any other provision of law,
the basic pay of an officer or employee of the Office for
any calendar year may not exceed the annual rate of basic
pay in effect for level IV of the Executive Schedule under
section 5315 of title 5. The Commissioner shall by regula-
tion establish a limitation on the total compensation pay-
able to officers or employees of the Office, which may not
exceed the annual rate of basic pay in effect for level I
of the Executive Schedule under section 5312 of title 5.
‘‘(d) INAPPLICABILITY OF TITLE 5 GENERALLY.—
Except as otherwise provided in this section, officers and
employees of the Office shall not be subject to the provi-
sions of title 5 relating to Federal employees.
‘‘(e) CONTINUED APPLICABILITY OF CERTAIN PRO-
VISION OF TITLE 5.—The following provisions of title 5
shall apply to the Office and its officers and employees:
‘‘(1) Section 3110 (relating to employment of
relatives; restrictions).
195
‘‘(2) Subchapter II of chapter 55 (relating to
withholding pay).
‘‘(3) Subchapter II of chapter 73 (relating to
employment limitations).
‘‘(f) PROVISIONS OF TITLE 5 RELATING TO CERTAIN
BENEFITS.—
‘‘(1) RETIREMENT.—(A)(i) Any individual who
becomes an officer or employee of the Office pursu-
ant to subsection (h) shall, if such individual has at
least 3 years of creditable service (within the mean-
ing of section 8332 or 8411 of title 5) as of the ef-
fective date of the Patent and Trademark Office
Corporation Act of 1995, remain subject to sub-
chapter III of chapter 83 or chapter 84 of such title,
as the case may be, so long as such individual con-
tinues to hold an office or position in or under the
Office without a break in service.
‘‘(ii)(I) Except as provided in subclause (II),
with respect to an individual described in clause (i),
the Office shall make the appropriate withholding
from pay and shall pay the contributions required of
an employing agency into the Civil Service Retire-
ment and Disability Fund and, if applicable, the
Thrift Savings Fund in accordance with applicable
196
provisions of subchapter III of chapter 83 or chapter
84 of title 5, as the case may be.
‘‘(II) In the case of an officer or employee who
remains subject to subchapter III of chapter 83 of
such title by virtue of this subparagraph, the Office
shall, instead of the amount which would otherwise
be required under the second sentence of section
8334(a)(1) of title 5, contribute an amount equal to
the normal-cost percentage (determined with respect
to officers and employees of the Office using dy-
namic assumptions, as defined by section 8401(9) of
such title) of the individual’s basic pay, minus the
amount required to be withheld from such pay under
such section 8334(a)(1).
‘‘(B)(i) Notwithstanding subsection (d), the
provisions of subchapter III of chapter 83 or chapter
84 of title 5 (as applicable) which relate to disability
shall be considered to remain in effect, with respect
to an individual who becomes an officer or employee
of the Office pursuant to subsection (h), until the
end of the 2-year period beginning on the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995 or, if earlier, until such individual
satisfies the prerequisites for coverage under any
program offered by the Office to replace the disabil-
197
ity retirement program under chapter 83 or 84 of
title 5.
‘‘(ii) This clause applies with respect to any of-
ficer or employee of the Office who is receiving dis-
ability coverage under this subparagraph and has
completed the service requirement specified in the
first sentence of section 8337(a) or 8451(a)(1)(A) of
title 5 (as applicable), but who is not described in
subparagraph (A)(i). In the case of any individual to
whom this clause applies, the Office shall pay into
the Civil Service Retirement and Disability Fund an
amount equal to that portion of the normal-cost per-
centage (determined in the same manner as under
subparagraph (A)(ii)(II)) of the basic pay of such
individual (for service performed during the period
during which such individual is receiving such cov-
erage) allocable to such coverage. Any amounts pay-
able under this clause shall be paid at such time and
in such manner as mutually agreed to by the Office
and the Office of Personnel Management, and shall
be in lieu of any individual or agency contributions
otherwise required.
‘‘(2) HEALTH BENEFITS.—(A) Officers and em-
ployees of the Office shall not become ineligible to
participate in the health benefits program under
198
chapter 89 of title 5 by reason of subsection (d)
until the effective date of elections made during the
first election period (under section 8905(f) of title 5)
beginning after the end of the 2-year period begin-
ning on the effective date of the Patent and Trade-
mark Office Corporation Act of 1995.
‘‘(B)(i) With respect to any individual who be-
comes an officer or employee of the Office pursuant
to subsection (h), the eligibility of such individual to
participate in such program as an annuitant (or of
any other person to participate in such program as
an annuitant based on the death of such individual)
shall be determined disregarding the requirements of
section 8905(b) of title 5. The preceding sentence
shall not apply if the individual ceases to be an offi-
cer or employee of the Office for any period of time
after becoming an officer or employee of the Office
pursuant to subsection (h) and before separation.
‘‘(ii) The Government contributions authorized
by section 8906 for health benefits for anyone par-
ticipating in the health benefits program pursuant to
this subparagraph shall be made by the Office in the
same manner as provided under section 8906(g)(2)
of title 5 with respect to the United States Postal
Service for individuals associated therewith.
199
‘‘(iii) For purposes of this subparagraph, the
term ‘annuitant’ has the meaning given such term
by section 8901(3) of title 5.
‘‘(3) LIFE INSURANCE.—(A) Officers and em-
ployees of the Office shall not become ineligible to
participate in the life insurance program under
chapter 87 of title 5 by reason of subsection (d)
until the first day after the end of the 2-year period
beginning on the effective date of the Patent and
Trademark Office Corporation Act of 1995.
‘‘(B)(i) Eligibility for life insurance coverage
after retirement or while in receipt of compensation
under subchapter I of chapter 81 of title 5 shall be
determined, in the case of any individual who be-
comes an officer or employee of the Office pursuant
to subsection (h), without regard to the require-
ments of section 8706(b) (1) or (2), but subject to
the condition specified in the last sentence of para-
graph (2)(B)(i) of this subsection.
‘‘(ii) Government contributions under section
8708(d) on behalf of any such individual shall be
made by the Office in the same manner as provided
under paragraph (3) thereof with respect to the
United States Postal Service for individuals associ-
ated therewith.
200
‘‘(4) EMPLOYEES’ COMPENSATION FUND.—The
Office shall remain responsible for reimbursing the
Employees’ Compensation Fund, pursuant to section
8147 of title 5, for compensation paid or payable
after the effective date of the Patent and Trademark
Office Corporation Act of 1995 in accordance with
chapter 81 of title 5 with regard to any injury, dis-
ability, or death due to events arising before such
date, whether or not a claim has been filed or is
final on such date.
‘‘(5) REQUIREMENT THAT THE OFFICE OFFER
CERTAIN MINIMUM NUMBER OF LIFE AND HEALTH
INSURANCE
POLICIES.—The Office shall offer at
least 1 life insurance policy and at least 3 health in-
surance policies to its officers and employees, com-
parable to existing Federal benefits, beginning on
the first day after the end of the 2-year period be-
ginning on the effective date of the Patent and
Trademark Office Corporation Act of 1995.
‘‘(g) LABOR-MANAGEMENT RELATIONS.—
‘‘(1) LABOR RELATIONS AND EMPLOYEE RELA-
TIONS PROGRAMS.—The Office shall develop labor
relations and employee relations programs with the
objective of improving productivity and efficiency, in-
corporating the following principles:
201
‘‘(A) Such programs shall be consistent
with the merit principles in section 2301(b) of
title 5.
‘‘(B) Such programs shall provide veterans
preference protections equivalent to those estab-
lished by sections 2801, 3308–3318, and 3320
of title 5.
‘‘(C)(i) In order to maximize individual
freedom of choice in the pursuit of employment
and to encourage an economic climate condu-
cive to economic growth, the right to work shall
not be subject to undue restraint or coercion.
The right to work shall not be infringed or re-
stricted in any way based on membership in, af-
filiation with, or financial support of a labor or-
ganization.
‘‘(ii) No person shall be required, as a con-
dition of employment or continuation of employ-
ment:
‘‘(I) To resign or refrain from vol-
untary membership in, voluntary affiliation
with, or voluntary financial support of a
labor organization.
‘‘(II) To become or remain a member
of a labor organization.
202
‘‘(III) To pay any dues, fees, assess-
ments, or other charges of any kind or
amount to a labor organization.
‘‘(IV) To pay to any charity or other
third party, in lieu of such payments, any
amount equivalent to or a pro-rata portion
of dues, fees, assessments, or other charges
regularly required of members of a labor
organization.
‘‘(V) To be recommended, approved,
referred, or cleared by or through a labor
organization.
‘‘(iii) This subparagraph shall not apply to
a person described in section 7103(a)(2)(v) of
title 5 or a ‘supervisor’, ‘management official’,
or ‘confidential employee’ as those terms are
defined in 7103(a)(10), (11), and (13) of such
title.
‘‘(iv) Any labor organization recognized by
the Office as the exclusive representative of a
unit of employees of the Office shall represent
the interests of all employees in that unit with-
out discrimination and without regard to labor
organization membership.
203
‘‘(2) ADOPTION
OF
EXISTING
LABOR
AGREE-
MENTS.—The Office shall adopt all labor agreements
which are in effect, as of the day before the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995, with respect to such Office (as
then in effect). Each such agreement shall remain in
effect for the 2-year period commencing on such
date, unless the agreement provides for a shorter du-
ration or the parties agree otherwise before such pe-
riod ends.
‘‘(h) CARRYOVER OF PERSONNEL.—
‘‘(1) FROM PTO.—Effective as of the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995, all officers and employees of the
Patent and Trademark Office on the day before
such effective date shall become officers and employ-
ees of the Office, without a break in service.
‘‘(2) OTHER PERSONNEL.—Any individual who,
on the day before the effective date of the Patent
and Trademark Office Corporation Act of 1995, is
an officer or employee of the Department of Com-
merce (other than an officer or employee under
paragraph (1)) shall be transferred to the Office if—
‘‘(A) such individual serves in a position
for which a major function is the performance
204
of work reimbursed by the Patent and Trade-
mark Office, as determined by the Secretary of
Commerce;
‘‘(B) such individual serves in a position
that performed work in support of the Patent
and Trademark Office during at least half of
the incumbent’s work time, as determined by
the Secretary of Commerce; or
‘‘(C) such transfer would be in the interest
of the Office, as determined by the Secretary of
Commerce in consultation with the Commis-
sioner of Patents and Trademarks.
Any transfer under this paragraph shall be effective
as of the same effective date as referred to in para-
graph (1), and shall be made without a break in
service.
‘‘(3) ACCUMULATED
LEAVE.—The amount of
sick and annual leave and compensatory time accu-
mulated under title 5 before the effective date de-
scribed in paragraph (1), by officers or employees of
the Patent and Trademark Office who so become of-
ficers or employees of the Office, are obligations of
the Office.
‘‘(4) TERMINATION RIGHTS.—Any employee re-
ferred to in paragraph (1) or (2) of this subsection
205
whose employment with the Office is terminated
during the 2-year period beginning on the effective
date of the Patent and Trademark Office Corpora-
tion Act of 1995 shall be entitled to rights and bene-
fits, to be afforded by the Office, similar to those
such employee would have had under Federal law if
termination had occurred immediately before such
date. An employee who would have been entitled to
appeal any such termination to the Merit Systems
Protection Board, if such termination had occurred
immediately before such effective date, may appeal
any such termination occurring within this 2-year
period to the Board under such procedures as it may
prescribe.
‘‘(5) CONTINUATION
IN
OFFICE
OF
CERTAIN
OFFICERS.—(A) The individual serving as the Com-
missioner of Patents and Trademarks on the day be-
fore the effective date of the Patent and Trademark
Office Corporation Act of 1995 may serve as the
Commissioner until the earlier of 1 year after the ef-
fective date of that Act or the date on which a Com-
missioner is appointed under subsection (a).
‘‘(B) The individual serving as the Assistant
Commissioner for Patents on the day before the ef-
fective date of the Patent and Trademark Office
206
Corporation Act of 1995 may serve as the Deputy
Commissioner for Patents until the earlier of 1 year
after the effective date of that Act or the date on
which a Deputy Commissioner for Patents is ap-
pointed under subsection (b).
‘‘(C) The individual serving as the Assistant
Commissioner for Trademarks on the day before the
effective date of the Patent and Trademark Office
Corporation Act of 1995 may serve as the Deputy
Commissioner for Trademarks until the earlier of 1
year after the effective date of that Act or the date
on which a Deputy Commissioner for Trademarks is
appointed under subsection (b).
‘‘(i) COMPETITIVE STATUS.—For purposes of ap-
pointment to a position in the competitive service for
which an officer or employee of the Office is qualified,
such officer or employee shall not forfeit any competitive
status, acquired by such officer or employee before the ef-
fective date of the Patent and Trademark Office Corpora-
tion Act of 1995, by reason of becoming an officer or em-
ployee of the Office pursuant to subsection (h).
‘‘(j) SAVINGS PROVISIONS.—All orders, determina-
tions, rules, and regulations regarding compensation and
benefits and other terms and conditions of employment,
in effect for the Office and its officers and employees im-
207
mediately before the effective date of the Patent and
Trademark Office Corporation Act of 1995, shall continue
in effect with respect to the Office and its officers and
employees until modified, superseded, or set aside by the
Office or a court of appropriate jurisdiction or by oper-
ation of law.’’.
SEC. 2414. MANAGEMENT ADVISORY BOARD.
Chapter 1 of part I of title 35, United States Code,
is amended by inserting after section 4 the following:
‘‘§ 5. Patent and Trademark Office Management Advi-
sory Board
‘‘(a) ESTABLISHMENT OF MANAGEMENT ADVISORY
BOARD.—
‘‘(1) APPOINTMENT.—The Patent and Trade-
mark Office shall have a Management Advisory
Board (hereafter in this title referred to as the
‘Board’) of 12 members, 4 of whom shall be ap-
pointed by the President, 4 of whom shall be ap-
pointed by the Speaker of the House of Representa-
tives, and 4 of whom shall be appointed by the
President pro tempore of the Senate. Not more than
3 of the 4 members appointed by each appointing
authority shall be members of the same political
party.
208
‘‘(2) TERMS.—Members of the Board shall be
appointed for a term of 4 years each, except that of
the members first appointed by each appointing au-
thority, 1 shall be for a term of 1 year, 1 shall be
for a term of 2 years, and 1 shall be for a term of
3 years. No member may serve more than 1 term.
‘‘(3) CHAIR.—The President shall designate the
chair of the Board, whose term as chair shall be for
3 years.
‘‘(4) TIMING
OF
APPOINTMENTS.—Initial ap-
pointments to the Board shall be made within 3
months after the effective date of the Patent and
Trademark Office Corporation Act of 1995, and va-
cancies shall be filled within 3 months after they
occur.
‘‘(5) VACANCIES.—Vacancies shall be filled in
the manner in which the original appointment was
made under this subsection. Members appointed to
fill a vacancy occurring before the expiration of the
term for which the member’s predecessor was ap-
pointed shall be appointed only for the remainder of
that term. A member may serve after the expiration
of that member’s term until a successor is ap-
pointed.
209
‘‘(b) BASIS FOR APPOINTMENTS.—Members of the
Board shall be citizens of the United States who shall be
chosen so as to represent the interests of diverse users
of the Patent and Trademark Office, and shall include in-
dividuals with substantial background and achievement in
corporate finance and management.
‘‘(c) APPLICABILITY OF CERTAIN ETHICS LAWS.—
Members of the Board shall be special Government em-
ployees within the meaning of section 202 of title 18.
‘‘(d) MEETINGS.—The Board shall meet at the call
of the chair to consider an agenda set by the chair.
‘‘(e) DUTIES.—The Board shall—
‘‘(1) review the policies, goals, performance,
budget, and user fees of the Patent and Trademark
Office, and advise the Commissioner on these mat-
ters; and
‘‘(2) within 60 days after the end of each fiscal
year, prepare an annual report on the matters re-
ferred to in paragraph (1), transmit the report to
the President and the Committees on the Judiciary
of the Senate and the House of Representatives, and
publish the report in the Patent and Trademark Of-
fice Official Gazette.
‘‘(f) STAFF.—The Board shall employ a staff of not
more than 10 members and shall procure support services
210
for the staff adequate to enable the Board to carry out
its functions, using funds available to the Commissioner
under section 42 of this title. The Board shall ensure that
members of the staff, other than clerical staff, are espe-
cially qualified in the areas of patents, trademarks, or
management of public agencies. Persons employed by the
Board shall receive compensation as determined by the
Board, which may not exceed the limitations set forth in
section 3(c) of this title, shall serve in accordance with
terms and conditions of employment established by the
Board, and shall be subject solely to the direction of the
Board, notwithstanding any other provision of law.
‘‘(g) COMPENSATION.—Members of the Board shall
be compensated for each day (including travel time) dur-
ing which they are attending meetings or conferences of
the Board or otherwise engaged in the business of the
Board, at the rate which is the daily equivalent of the an-
nual rate of basic pay in effect for level III of the Execu-
tive Schedule under section 5314 of title 5, and while away
from their homes or regular places of business they may
be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by section 5703 of title 5.
‘‘(h) ACCESS
TO INFORMATION.—Members of the
Board shall be provided access to records and information
in the Patent and Trademark Office, except for personnel
211
or other privileged information and information concern-
ing patent applications required to be kept in confidence
by section 122 of this title.’’.
SEC. 2415. INDEPENDENCE FROM DEPARTMENT OF COM-
MERCE.
(a) DUTIES OF COMMISSIONER.—Section 6 of title
35, United States Code, is amended—
(1) by striking ‘‘, under the direction of the
Secretary of Commerce,’’ each place it appears; and
(2) by striking ‘‘, subject to the approval of the
Secretary of Commerce,’’.
(b) REGULATIONS FOR AGENTS AND ATTORNEYS.—
Section 31 of title 35, United States Code, is amended
by striking ‘‘, subject to the approval of the Secretary of
Commerce,’’.
SEC. 2416. TRADEMARK TRIAL AND APPEAL BOARD.
Section 17 of the Act of July 5, 1946 (commonly re-
ferred to as the ‘‘Trademark Act of 1946’’) (15 U.S.C.
1067) is amended to read as follows:
‘‘SEC. 17. (a) In every case of interference, opposition
to registration, application to register as a lawful concur-
rent user, or application to cancel the registration of a
mark, the Commissioner shall give notice to all parties and
shall direct a Trademark Trial and Appeal Board to deter-
mine and decide the respective rights of registration.
212
‘‘(b) The Trademark Trial and Appeal Board shall
include the Commissioner, the Deputy Commissioner for
Patents, the Deputy Commissioner for Trademarks, and
members competent in trademark law who are appointed
by the Commissioner.’’.
SEC. 2417. BOARD OF PATENT APPEALS AND INTER-
FERENCES.
Section 7 of title 35, United States Code, is amended
to read as follows:
‘‘§ 7. Board of Patent Appeals and Interferences
‘‘(a) ESTABLISHMENT
AND COMPOSITION.—There
shall be in the Patent and Trademark Office a Board of
Patent Appeals and Interferences. The Commissioner, the
Deputy Commissioner for Patents, the Deputy Commis-
sioner for Trademarks, and the examiners-in-chief shall
constitute the Board. The examiners-in-chief shall be per-
sons of competent legal knowledge and scientific ability.
‘‘(b) DUTIES.—The Board of Patent Appeals and
Interferences shall, on written appeal of an applicant, re-
view adverse decisions of examiners upon applications for
patents and shall determine priority and patentability of
invention in interferences declared under section 135(a)
of this title. Each appeal and interference shall be heard
by at least 3 members of the Board, who shall be des-
213
ignated by the Commissioner. Only the Board of Patent
Appeals and Interferences may grant rehearings.’’.
SEC. 2418. SUITS BY AND AGAINST THE CORPORATION.
Chapter 1 of part I of title 35, United States Code,
is amended—
(1) by redesignating sections 8 through 14 as
sections 9 through 15; and
(2) by inserting after section 7 the following
new section:
‘‘§ 8. Suits by and against the Corporation
‘‘(a) IN GENERAL.—
‘‘(1) ACTIONS UNDER UNITED STATES LAW.—
Any civil action or proceeding to which the Patent
and Trademark Office is a party is deemed to arise
under the laws of the United States. The Federal
courts shall have exclusive jurisdiction over all civil
actions by or against the Office.
‘‘(2) CONTRACT CLAIMS.—Any action or pro-
ceeding against the Office in which any claim is cog-
nizable under the Contract Disputes Act of 1978 (41
U.S.C. 601 and following) shall be subject to that
Act. For purposes of that Act, the Commissioner
shall be deemed to be the agency head with respect
to contract claims arising with respect to the Office.
Any other action or proceeding against the Office
214
founded upon contract may be brought in an appro-
priate district court, notwithstanding any provision
of title 28.
‘‘(3) TORT CLAIMS.—(A) Any action or pro-
ceeding against the Office in which any claim is cog-
nizable under the provisions of section 1346(b) and
chapter 171 of title 28, shall be governed by those
provisions.
‘‘(B) Any other action or proceeding against the
Office founded upon tort may be brought in an ap-
propriate district court without regard to the provi-
sions of section 1346(b) and chapter 171 of title 28.
‘‘(4) PROHIBITION
ON
ATTACHMENT, LIENS,
ETC.—No attachment, garnishment, lien, or similar
process, intermediate or final, in law or equity, may
be issued against property of the Office.
‘‘(5) SUBSTITUTION
OF
OFFICE
AS
PARTY.—
The Office shall be substituted as defendant in any
civil action or proceeding against an officer or em-
ployee of the Office, if the Office determines that the
officer or employee was acting within the scope of
his or her employment with the Office. If the Office
refuses to certify scope of employment, the officer or
employee may at any time before trial petition the
court to find and certify that the officer or employee
215
was acting within the scope of his or her employ-
ment. Upon certification by the court, the Office
shall be substituted as the party defendant. A copy
of the petition shall be served upon the Office. In
any such civil action or proceeding to which para-
graph (3)(A) applies, the provisions of section
1346(b) and chapter 171 of title 28 shall apply in
lieu of this paragraph.
‘‘(b) RELATIONSHIP WITH JUSTICE DEPARTMENT.—
‘‘(1) EXERCISE BY OFFICE OF ATTORNEY GEN-
ERAL’S AUTHORITIES.—Except as provided in this
section, with respect to any action or proceeding in
which the Office is a party or an officer or employee
thereof is a party in his or her official capacity, the
Office, officer, or employee may exercise, without
prior authorization from the Attorney General, the
authorities and duties that otherwise would be exer-
cised by the Attorney General on behalf of the Of-
fice, officer, or employee under title 28 and other
laws.
‘‘(2) APPEARANCES BY ATTORNEY GENERAL.—
Notwithstanding paragraph (1), at any time the At-
torney General may, in any action or proceeding de-
scribed in paragraph (1), file an appearance on be-
half of the Office or the officer or employee involved,
216
without the consent of the Office or the officer or
employee. Upon such filing, the Attorney General
shall represent the Office or such officer or employee
with exclusive authority in the conduct, settlement,
or compromise of that action or proceeding.
‘‘(3) CONSULTATIONS
WITH
AND
ASSISTANCE
BY ATTORNEY GENERAL.—The Office may consult
with the Attorney General concerning any legal mat-
ter, and the Attorney General shall provide advice
and assistance to the Office, including representing
the Office in litigation, if requested by the Office.
‘‘(4) 
REPRESENTATION
BEFORE
SUPREME
COURT.—The Attorney General shall represent the
Office in all cases before the United States Supreme
Court.
‘‘(5) QUALIFICATIONS OF ATTORNEYS.—An at-
torney admitted to practice to the bar of the highest
court of at least one State in the United States or
the District of Columbia and employed by the Office
may represent the Office in any legal proceeding in
which the Office or an officer or employee of the Of-
fice is a party or interested, regardless of whether
the attorney is a resident of the jurisdiction in which
the proceeding is held and notwithstanding any
other prerequisites of qualification or appearance re-
217
quired by the court or administrative body before
which the proceeding is conducted.’’.
SEC. 2419. ANNUAL REPORT OF COMMISSIONER.
Section 15 of title 35, United States Code, as redesig-
nated by section 2418 of this Act, is amended to read as
follows:
‘‘§ 15. Annual report to Congress
‘‘The Commissioner shall report to the Congress, not
later than 180 days after the end of each fiscal year, the
moneys received and expended by the Office, the purposes
for which the moneys were spent, the quality and quantity
of the work of the Office, and other information relating
to the Office. The report under this section shall also meet
the requirements of section 9106 of title 31, to the extent
that such requirements are not inconsistent with the pre-
ceding sentence. The report required under this section
shall be deemed to be the report of the Patent and Trade-
mark Office under section 9106 of title 31, and the Com-
missioner shall not file a separate report under such sec-
tion.’’.
SEC. 2420. SUSPENSION OR EXCLUSION FROM PRACTICE.
Section 32 of title 35, United States Code, is amend-
ed by inserting before the last sentence the following: ‘‘The
Commissioner shall have the discretion to designate any
attorney who is an officer or employee of the Patent and
218
Trademark Office to conduct the hearing required by this
section.’’.
SEC. 2421. FUNDING.
Section 42 of title 35, United States Code, is amend-
ed to read as follows:
‘‘§ 42. Patent and Trademark Office funding
‘‘(a) FEES PAYABLE TO THE OFFICE.—All fees for
services performed by or materials furnished by the Patent
and Trademark Office shall be payable to the Office.
‘‘(b) USE OF MONEYS.—Moneys of the Patent and
Trademark Office not otherwise used to carry out the
functions of the Office shall be kept in cash on hand or
on deposit, or invested in obligations of the United States
or guaranteed by the United States, or in obligations or
other instruments which are lawful investments for fidu-
ciary, trust, or public funds. Fees available to the Commis-
sioner under this title shall be used exclusively for the
processing of patent applications and for other services
and materials relating to patents. Fees available to the
Commissioner under section 31 of the Act of July 5, 1946
(commonly referred to as the ‘Trademark Act of 1946’;
15 U.S.C. 1113), shall be used exclusively for the process-
ing of trademark registrations and for other services and
materials relating to trademarks.
219
‘‘(c) BORROWING
AUTHORITY.—The Patent and
Trademark Office is authorized to issue from time to time
for purchase by the Secretary of the Treasury its deben-
tures, bonds, notes, and other evidences of indebtedness
(hereafter in this subsection referred to as ‘obligations’)
to assist in financing its activities. Borrowing under this
subsection shall be subject to prior approval in appropria-
tion Acts. Such borrowing shall not exceed amounts ap-
proved in appropriation Acts. Any such borrowing shall
be repaid only from fees paid to the Office and surcharges
appropriated by the Congress. Such obligations shall be
redeemable at the option of the Office before maturity in
the manner stipulated in such obligations and shall have
such maturity as is determined by the Office with the ap-
proval of the Secretary of the Treasury. Each such obliga-
tion issued to the Treasury shall bear interest at a rate
not less than the current yield on outstanding marketable
obligations of the United States of comparable maturity
during the month preceding the issuance of the obligation
as determined by the Secretary of the Treasury. The Sec-
retary of the Treasury shall purchase any obligations of
the Office issued under this subsection and for such pur-
pose the Secretary of the Treasury is authorized to use
as a public-debt transaction the proceeds of any securities
issued under chapter 31 of title 31, and the purposes for
220
which securities may be issued under that chapter are ex-
tended to include such purpose. Payment under this sub-
section of the purchase price of such obligations of the
Patent and Trademark Office shall be treated as public
debt transactions of the United States.’’.
SEC. 2422. AUDITS.
Chapter 4 of part I of title 35, United States Code,
is amended by adding at the end the following new section:
‘‘§ 43. Audits
‘‘(a) IN GENERAL.—Financial statements of the Pat-
ent and Trademark Office shall be prepared on an annual
basis in accordance with generally accepted accounting
principles. Such statements shall be audited by an inde-
pendent certified public accountant chosen by the Com-
missioner. The audit shall be conducted in accordance with
standards that are consistent with generally accepted Gov-
ernment auditing standards and other standards estab-
lished by the Comptroller General, and with the generally
accepted auditing standards of the private sector, to the
extent feasible. The Commissioner shall transmit to the
Committees on the Judiciary of the House of Representa-
tives and the Senate the results of each audit under this
subsection.
‘‘(b) REVIEW
BY COMPTROLLER GENERAL.—The
Comptroller General may review any audit of the financial
221
statement of the Patent and Trademark Office that is con-
ducted under subsection (a). The Comptroller General
shall report to the Congress and the Office the results of
any such review and shall include in such report appro-
priate recommendations.
‘‘(c) AUDIT
BY
COMPTROLLER
GENERAL.—The
Comptroller General may audit the financial statements
of the Office and such audit shall be in lieu of the audit
required by subsection (a). The Office shall reimburse the
Comptroller General for the cost of any audit conducted
under this subsection.
‘‘(d) ACCESS TO OFFICE RECORDS.—All books, fi-
nancial records, report files, memoranda, and other prop-
erty that the Comptroller General deems necessary for the
performance of any audit shall be made available to the
Comptroller General.
‘‘(e) APPLICABILITY IN LIEU OF TITLE 31 PROVI-
SIONS.—This section applies to the Office in lieu of the
provisions of section 9105 of title 31.’’.
SEC. 2423. TRANSFERS.
(a) TRANSFER OF FUNCTIONS.—Except as otherwise
provided in this Act, there are transferred to, and vested
in, the Patent and Trademark Office all functions, powers,
and duties vested by law in the Secretary of Commerce
or the Department of Commerce or in the officers or com-
222
ponents in the Department of Commerce with respect to
the authority to grant patents and register trademarks,
and in the Patent and Trademark Office, as in effect on
the day before the effective date of this subtitle, and in
the officers and components of such Office.
(b) TRANSFER
OF FUNDS
AND PROPERTY.—The
Secretary of Commerce shall transfer to the Patent and
Trademark Office, on the effective date of this subtitle,
so much of the assets, liabilities, contracts, property,
records, and unexpended and unobligated balances of ap-
propriations, authorizations, allocations, and other funds
employed, held, used, arising from, available to, or to be
made available to the Department of Commerce, including
funds set aside for accounts receivable which are related
to functions, powers, and duties which are vested in the
Patent and Trademark Office by this subtitle.
CHAPTER 2—EFFECTIVE DATE;
TECHNICAL AMENDMENTS
SEC. 2431. EFFECTIVE DATE.
This subtitle shall take effect 6 months after the date
of the enactment of this Act.
SEC. 2432. TECHNICAL AND CONFORMING AMENDMENTS.
(a) AMENDMENTS TO TITLE 35.—
223
(1) The table of contents for part I of title 35,
United States Code, is amended by amending the
item relating to chapter 1 to read as follows:
‘‘1. Establishment, Officers and Employees, Functions ...........................
1.’’
(2) The table of sections for chapter 1 of title
35, United States Code, is amended to read as fol-
lows:
‘‘CHAPTER 1—ESTABLISHMENT, OFFICERS
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 and Trademark Office Management Advisory Board.
‘‘6. Duties of Commissioner.
‘‘7. Board of Patent Appeals and Interferences.
‘‘8. Suits by and against the Corporation.
‘‘9. Library.
‘‘10. Classification of patents.
‘‘11. Certified copies of records.
‘‘12. Publications.
‘‘13. Exchange of copies of patents with foreign countries.
‘‘14. Copies of patents for public libraries.
‘‘15. Annual report to Congress.’’.
(3) The table of contents for chapter 4 of part
I of title 35, United States Code, is amended by
adding at the end the following new item:
‘‘43. Audits.’’.
(b) OTHER PROVISIONS OF LAW.—
(1) Section 9101(3) of title 31, United States
Code, is amended by adding at the end the follow-
ing:
224
‘‘(O) the Patent and Trademark Office.’’.
(2) Section 500(e) of title 5, United States
Code, is amended by striking ‘‘Patent Office’’ and
inserting ‘‘Patent and Trademark Office’’.
(3) Section 5102(c)(23) of title 5, United
States Code, is amended by striking ‘‘, Department
of Commerce’’.
(4) Section 5316 of title 5, United States Code,
is amended by striking ‘‘Commissioner of Patents,
Department of Commerce.’’, ‘‘Deputy Commissioner
of Patents and Trademarks.’’, ‘‘Assistant Commis-
sioner for Patents.’’, and ‘‘Assistant Commissioner
for Trademarks.’’.
(5) Section 12 of the Act of February 14, 1903
(15 U.S.C. 1511) is amended by striking ‘‘(d) Pat-
ent and Trademark Office;’’ and redesignating sub-
sections (a) through (g) as paragraphs (1) through
(6), respectively.
(6) The Act of April 12, 1892 (27 Stat. 395;
20 U.S.C. 91) is amended by striking ‘‘Patent Of-
fice’’ and inserting ‘‘Patent and Trademark Office’’.
(7) Sections 505(m) and 512(o) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 355(m)
and 360b(o)) are each amended by striking ‘‘of the
Department of Commerce’’.
225
(8) Section 105(e) of the Federal Alcohol Ad-
ministration Act (27 U.S.C. 205(e)) is amended by
striking ‘‘Patent Office’’ and inserting ‘‘Patent and
Trademark Office’’.
(9) Section 1744 of title 28, United States
Code is amended—
(A) by striking ‘‘Patent Office’’ each place
it appears and inserting ‘‘Patent and Trade-
mark Office’’; and
(B) by striking ‘‘Commissioner of Patents’’
and inserting ‘‘Commissioner of Patents and
Trademarks’’.
(10) Section 1745 of title 28, United States
Code, is amended by striking ‘‘United States Patent
Office’’ and inserting ‘‘Patent and Trademark Of-
fice’’.
(11) Section 1928 of title 28, United States
Code, is amended by striking ‘‘Patent Office’’ and
inserting ‘‘Patent and Trademark Office’’.
(12) Section 160 of the Atomic Energy Act of
1954 (42 U.S.C. 2190) is amended—
(A) by striking ‘‘United States Patent Of-
fice’’ and inserting ‘‘Patent and Trademark Of-
fice’’; and
226
(B) by striking ‘‘Commissioner of Patents’’
and inserting ‘‘Commissioner of Patents and
Trademarks’’.
(13) Section 305(c) of the National Aeronautics
and Space Act of 1958 (42 U.S.C. 2457(c)) is
amended by striking ‘‘Commissioner of Patents’’ and
inserting ‘‘Commissioner of Patents and Trade-
marks’’.
(14) Section 12(a) of the Solar Heating and
Cooling Demonstration Act of 1974 (42 U.S.C.
5510(a)) is amended by striking ‘‘Commissioner of
the Patent Office’’ and inserting ‘‘Commissioner of
Patents and Trademarks’’.
(15) Section 1111 of title 44, United States
Code, is amended by striking ‘‘the Commissioner of
Patents,’’.
(16) Section 1114 of title 44, United States
Code, is amended by striking ‘‘the Commissioner of
Patents,’’.
(17) Section 1123 of title 44, United States
Code, is amended by striking ‘‘the Patent Office,’’.
(18) Sections 1337 and 1338 of title 44, United
States Code, and the items relating to those sections
in the table of contents for chapter 13 of such title,
are repealed.
227
(19) Section 10(i) of the Trading With the
Enemy Act (50 U.S.C. App. 10(i)) is amended by
striking ‘‘Commissioner of Patents’’ and inserting
‘‘Commissioner of Patents and Trademarks’’.
(20) Section 8G(a)(2) of the Inspector General
Act of 1978 (5 U.S.C. App.) is amended by inserting
‘‘the Patent and Trademark Office,’’, after ‘‘the
Panama Canal Commission,’’.
Subtitle E—Miscellaneous
Provisions
SEC. 2501. REFERENCES.
Any reference in any other Federal law, Executive
order, rule, regulation, or delegation of authority, or any
document of or pertaining to a department or office from
which a function is transferred by this title—
(1) to the head of such department or office is
deemed to refer to the head of the department or of-
fice to which such function is transferred; or
(2) to such department or office is deemed to
refer to the department or office to which such func-
tion is transferred.
SEC. 2502. EXERCISE OF AUTHORITIES.
Except as otherwise provided by law, a Federal offi-
cial to whom a function is transferred by this title may,
for purposes of performing the function, exercise all au-
228
thorities under any other provision of law that were avail-
able with respect to the performance of that function to
the official responsible for the performance of the function
immediately before the effective date of the transfer of the
function under this title.
SEC. 2503. SAVINGS PROVISIONS.
(a) LEGAL DOCUMENTS.—All orders, determinations,
rules, regulations, permits, grants, loans, contracts, agree-
ments, certificates, licenses, and privileges—
(1) that have been issued, made, granted, or al-
lowed to become effective by the President, the Sec-
retary of Commerce, the United States Trade Rep-
resentative, any officer or employee of any office
transferred by this title, or any other Government
official, or by a court of competent jurisdiction, in
the performance of any function that is transferred
by this title, and
(2) that are in effect on the effective date of
such transfer (or become effective after such date
pursuant to their terms as in effect on such effective
date),
shall continue in effect according to their terms until
modified, terminated, superseded, set aside, or revoked in
accordance with law by the President, any other author-
229
ized official, a court of competent jurisdiction, or operation
of law.
(b) PROCEEDINGS.—This title shall not affect any
proceedings or any application for any benefits, service,
license, permit, certificate, or financial assistance pending
on the date of the enactment of this Act before an office
transferred by this title, but such proceedings and applica-
tions shall be continued. Orders shall be issued in such
proceedings, appeals shall be taken therefrom, and pay-
ments shall be made pursuant to such orders, as if this
Act had not been enacted, and orders issued in any such
proceeding shall continue in effect until modified, termi-
nated, superseded, or revoked by a duly authorized official,
by a court of competent jurisdiction, or by operation of
law. Nothing in this subsection shall be considered to pro-
hibit the discontinuance or modification of any such pro-
ceeding under the same terms and conditions and to the
same extent that such proceeding could have been discon-
tinued or modified if this title had not been enacted.
(c) SUITS.—This title shall not affect suits com-
menced before the date of the enactment of this Act, and
in all such suits, proceeding shall be had, appeals taken,
and judgments rendered in the same manner and with the
same effect as if this title had not been enacted.
230
(d) NONABATEMENT OF ACTIONS.—No suit, action,
or other proceeding commenced by or against the Depart-
ment of Commerce or the Secretary of Commerce, or by
or against any individual in the official capacity of such
individual as an officer or employee of an office trans-
ferred by this title, shall abate by reason of the enactment
of this title.
(e) CONTINUANCE OF SUITS.—If any Government of-
ficer in the official capacity of such officer is party to a
suit with respect to a function of the officer, and under
this title such function is transferred to any other officer
or office, then such suit shall be continued with the other
officer or the head of such other office, as applicable, sub-
stituted or added as a party.
(f) ADMINISTRATIVE PROCEDURE AND JUDICIAL RE-
VIEW.—Except as otherwise provided by this title, any
statutory requirements relating to notice, hearings, action
upon the record, or administrative or judicial review that
apply to any function transferred by this title shall apply
to the exercise of such function by the head of the Federal
agency, and other officers of the agency, to which such
function is transferred by this title.
SEC. 2504. TRANSFER OF ASSETS.
Except as otherwise provided in this title, so much
of the personnel, property, records, and unexpended bal-
231
ances of appropriations, allocations, and other funds em-
ployed, used, held, available, or to be made available in
connection with a function transferred to an official or
agency by this title shall be available to the official or the
head of that agency, respectively, at such time or times
as the Director of the Office of Management and Budget
directs for use in connection with the functions trans-
ferred.
SEC. 2505. DELEGATION AND ASSIGNMENT.
Except as otherwise expressly prohibited by law or
otherwise provided in this title, an official to whom func-
tions are transferred under this title (including the head
of any office to which functions are transferred under this
title) may delegate any of the functions so transferred to
such officers and employees of the office of the official as
the official may designate, and may authorize successive
redelegations of such functions as may be necessary or ap-
propriate. No delegation of functions under this section
or under any other provision of this title shall relieve the
official to whom a function is transferred under this title
of responsibility for the administration of the function.
232
SEC. 2506. AUTHORITY OF DIRECTOR OF THE OFFICE OF
MANAGEMENT AND BUDGET WITH RESPECT
TO FUNCTIONS TRANSFERRED.
(a) DETERMINATIONS.—If necessary, the Director
shall make any determination of the functions that are
transferred under this title.
(b) INCIDENTAL TRANSFERS.—The Director, at such
time or times as the Director shall provide, may make
such determinations as may be necessary with regard to
the functions transferred by this title, and to make such
additional incidental dispositions of personnel, assets, li-
abilities, grants, contracts, property, records, and unex-
pended balances of appropriations, authorizations, alloca-
tions, and other funds held, used, arising from, available
to, or to be made available in connection with such func-
tions, as may be necessary to carry out the provisions of
this title. The Director shall provide for the termination
of the affairs of all entities terminated by this title and
for such further measures and dispositions as may be nec-
essary to effectuate the purposes of this title.
SEC. 2507. CERTAIN VESTING OF FUNCTIONS CONSIDERED
TRANSFERS.
For purposes of this title, the vesting of a function
in a department or office pursuant to reestablishment of
an office shall be considered to be the transfer of the
function.
233
SEC. 2508. AVAILABILITY OF EXISTING FUNDS.
Existing appropriations and funds available for the
performance of functions, programs, and activities termi-
nated pursuant to this title shall remain available, for the
duration of their period of availability, for necessary ex-
penses in connection with the termination and resolution
of such functions, programs, and activities.
SEC. 2509. DEFINITIONS.
For purposes of this title—
(1) the term ‘‘function’’ includes any duty, obli-
gation, power, authority, responsibility, right, privi-
lege, activity, or program; and
(2) the term ‘office’ includes any office, admin-
istration, agency, bureau, institute, council, unit, or-
ganizational entity, or component thereof.
Subtitle F—Citizens Commission
on 21st Century Government
SEC. 2601. SHORT TITLE AND PURPOSE.
(a) SHORT TITLE.—This subtitle may be cited as the
‘‘21st Century Government Act’’.
(b) PURPOSE.—The purpose of this subtitle is to es-
tablish a bipartisan commission to—
(1) identify and analyze the current functions
and missions of the Federal Government; and
234
(2) based on that analysis, develop rec-
ommendations to restructure the executive branch of
the Federal Government, in order to—
(A) focus Federal efforts on those core
functions and missions that the Federal Gov-
ernment must perform in the 21st Century;
(B) ensure that the Federal Government
performs those functions as effectively and effi-
ciently as possible;
(C) consolidate executive organizations
around clear, specific missions reflecting cur-
rent national priorities;
(D) eliminate functions that do not ad-
vance current national priorities;
(E) eliminate duplication of functions and
activities within and among departments and
agencies;
(F) streamline organizational hierarchy so
as to reduce costs and increase accountability
for performance; and
(G) provide a basis for—
(i) the subsequent implementation of
operational reforms for Federal agencies,
including administrative consolidation and
235
the provision of 1-stop services for citizens;
and
(ii) more detailed structural improve-
ments within each agency.
SEC. 2602. CITIZENS COMMISSION ON 21ST CENTURY GOV-
ERNMENT.
(a) ESTABLISHMENT.—There is established in the
legislative branch an independent commission to be known
as the Citizens Commission on 21st Century Government
(in this subtitle referred to as the ‘‘Commission’’).
(b) APPOINTMENT OF COMMISSIONERS.—
(1) COMPOSITION.—The Commission shall be a
bipartisan body composed of 11 members, who shall
be appointed as follows:
(A) Three members shall be appointed by
the Speaker of the House of Representatives.
(B) Three members shall be appointed by
the majority leader of the Senate.
(C) Two members shall be appointed by
the minority leader of the House of Representa-
tives.
(D) Two members shall be appointed by
the minority leader of the Senate.
(E) One member appointed jointly by the
Speaker of the House of Representatives and
236
the majority leader of the Senate, in consulta-
tion with the minority leaders of the House of
Representatives and the Senate, who shall be
the Chairman of the Commission.
(2) MEMBERSHIP QUALIFICATIONS.—Any citi-
zen of the United States is eligible to be appointed
as a member of the Commission, except an individ-
ual serving as a Member of Congress or an elected
or appointed official of the executive branch of the
Federal Government.
(3) CONFLICT OF INTERESTS.—For purposes of
chapter 11 of title 18, United States Code, a mem-
ber of the Commission shall be a special Government
employee.
(4) DATE OF APPOINTMENTS.—All members of
the Commission shall be appointed no later than 30
days after the date of the enactment of this Act.
(c) TERMS.—Each member of the Commission shall
serve until the termination of the Commission.
(d) VACANCIES.—A vacancy on the Commission shall
be filled in the same manner as was the original appoint-
ment.
(e) MEETINGS.—The Commission shall meet as nec-
essary to carry out its responsibilities.
237
(f) TRAVEL EXPENSES.—Members of the Commis-
sion shall receive travel expenses, including per diem in
lieu of subsistence, in accordance with sections 5702 and
5703 of title 5, United States Code.
(g) DIRECTOR.—
(1) APPOINTMENT.—The Chairman, in con-
sultation with the other members of the Commission,
shall appoint a Director of the Commission.
(2) PAY.—The Director shall be paid at the
rate of basic pay payable for level IV of the Execu-
tive Schedule under section 5315 of title 5, United
States Code.
(h) STAFF.—
(1) APPOINTMENT.—The Director may, with
the approval of the Chairman, appoint and fix the
pay of employees of the Commission without regard
to the provisions of title 5, United States Code, gov-
erning appointment in the competitive service, and
any Commission employee may be paid without re-
gard to the provisions of chapter 51 and subchapter
III of chapter 53 of that title relating to classifica-
tion and General Schedule pay rates, except that a
Commission employee may not receive pay in excess
of the annual rate of basic pay payable for level V
238
of the Executive Schedule under section 5316 of title
5, United States Code.
(2) DETAIL.—(A) Upon request of the Direc-
tor, the head of any Federal department or agency
may detail any of the personnel of the department
or agency to the Commission to assist the Commis-
sion in carrying out its duties under this subtitle.
Such details may be made with or without reim-
bursement, and shall be without interruption or loss
of civil service status or privilege.
(B) Upon request of the Director, a Member of
Congress or an officer who is the head of an office
or committee of the Senate or House of Representa-
tives or of an agency within the legislative branch
may detail an employee of the office or committee of
which such Member or officer is the head to the
Commission to assist the Commission in carrying
out its duties under this subtitle.
(i) SUPPORT SERVICES.—The Comptroller General of
the United States shall provide support services to the
Commission in accordance with an agreement entered into
with the Commission.
(j) OTHER AUTHORITIES.—The Commission may
procure by contract, to the extent funds are available, the
temporary or intermittent services of experts or consult-
239
ants pursuant to section 3109 of title 5, United States
Code. The Commission shall give public notice of any such
contract before entering into such contract.
(k) AUTHORIZATION
OF APPROPRIATIONS.—There
are authorized to be appropriated to the Commission
$1,250,000 for fiscal year 1996 to carry out its respon-
sibilities under this subtitle, to remain available until De-
cember 31, 1996.
(l) TERMINATION.—The Commission shall terminate
December 31, 1996.
SEC. 2603. DEPARTMENT AND AGENCY COOPERATION.
All Federal agencies and employees of all Federal
agencies shall cooperate fully with all requests for infor-
mation from the Commission and shall respond to any
such request for information within 30 days or such other
time as is agreed upon by the requesting and requested
persons.
SEC. 2604. HEARINGS.
The Commission shall hold such hearings as it con-
siders appropriate. The Chairman of the Commission shall
designate a member of the Commission to preside at any
hearing in the absence of the Chairman.
240
SEC. 2605. COMMISSION PROCEDURES.
(a) STARTUP.—The Commission may conduct busi-
ness at any time after at least 6 of its members have been
appointed in accordance with section 2602.
(b) VOTING.—A majority of those members of the
Commission who have been appointed in accordance with
section 2602 shall constitute a quorum for purposes of
conducting Commission business. Any recommendation of
the Commission shall require an affirmative vote of a ma-
jority of Commission members who have been appointed
in accordance with section 2602. Members of the Commis-
sion may not vote by proxy.
SEC. 2606. FRAMEWORK FOR THE FEDERAL GOVERNMENT
IN THE 21ST CENTURY.
(a) ANALYSIS OF CURRENT FEDERAL FUNCTIONS.—
The Commission shall conduct a comprehensive review of
the functions currently performed by the Federal Govern-
ment, and shall analyze each such function under the fol-
lowing criteria:
(1) Does the function have clearly defined mis-
sions and objectives.
(2) Do those missions and objectives serve a
currently valid and important Federal role, including
analysis of whether—
(A) there is a need for governmental ac-
tion;
241
(B) the Federal Government has exclusive
constitutional authority to perform the function;
(C) the Federal Government is otherwise
uniquely positioned to perform the function;
and
(D) there is a clear need for or advantage
to performing the function at the Federal level
versus at the State or local level.
(3) Does the current Federal role constitute the
most effective and efficient means of achieving the
objectives of the function.
(4) Does the current Federal role constitute the
least intrusive means of achieving the objectives with
respect to individual liberty and principles of Fed-
eralism.
(5) Is there a need to enhance Federal perform-
ance of the function, including analysis of whether—
(A) the Federal Government requires
greater resources or authority to perform that
function;
(B) there are other ways of consolidating
Federal resources and activities directed to the
function; and
242
(C) there are opportunities for participa-
tion by the private sector or other levels of gov-
ernment.
(b) COMMISSION
REPORTS
AND
RECOMMENDA-
TIONS.—
(1) IN GENERAL.—The Commission shall pre-
pare and submit to the Congress a report or reports
on the results of its analysis. Each report shall be
made public and shall include—
(A) the Commission’s findings and conclu-
sions;
(B) the Commission’s recommendations for
the restructuring or termination of current
functions;
(C) the reasons for such findings, conclu-
sions, and recommendations; and
(D) a complete description of the Commis-
sion’s deliberations, including a discussion of
any major points on which the members had
significant disagreements.
(2) REPORT ON MATTERS OF HIGHEST PRIOR-
ITY.—Not later than July 31, 1996, the Commission
shall submit a report containing those findings, con-
clusions, and recommendations that the Commission
considers to be of highest priority.
243
(3) ADDITIONAL
REPORTS.—The Commission
may submit such additional reports under this sec-
tion as it considers appropriate, and at such times
on or before December 31, 1996, as it considers ap-
propriate.
SEC. 2607. PROPOSAL FOR REORGANIZING THE EXECUTIVE
BRANCH.
(a) IN GENERAL.—The Commission shall—
(1) examine all significant issues related to the
organization of the executive branch of the Federal
Government; and
(2) develop organizational recommendations to
eliminate duplication, reduce costs, streamline oper-
ations, and improve performance and accountability
in Federal departments and agencies.
(b) LEGISLATIVE PROPOSAL.—The recommendations
of the Commission under this section shall be encompassed
in a single legislative proposal under section 2608 which
implements a comprehensive reorganization and restruc-
turing plan for the executive branch and which addresses,
among other issues, the following:
(1) Whether the Federal Government should in-
clude fewer departments, each with clear, specific
missions and goals, and if so, what those depart-
ments should be.
244
(2) Whether and how to ensure that similar
functions of Government, such as statistical, science,
or trade functions, are consolidated within a single
department or agency.
(3) Whether and how significant common ad-
ministrative functions should be consolidated within
one executive organization.
(4) Whether a single department-level office
should be designated with responsibility for rep-
resentation and oversight within the White House of
all independent agencies of the executive branch.
(5) Whether and how a streamlined hierarchical
structure can be provided within each department
and agency.
(c) OTHER RECOMMENDATIONS.—The Commission
may also make additional recommendations which it deter-
mines will enhance the operational effectiveness of the or-
ganizational recommendations. Such recommendations
shall not be included in any draft implementation bill to
be considered under section 2609, but may be submitted
separately to the Congress.
SEC. 2608. PROCEDURES FOR MAKING RECOMMENDA-
TIONS.
(a) COMMISSION REPORT.—No later than December
31, 1996, the Commission shall prepare and submit to the
245
Congress a single report, which shall be made public, and
which shall include—
(1) a description of the Commission’s findings
and recommendations pursuant to section 2607;
(2) the reasons for such recommendations; and
(3) a single proposal consisting of draft legisla-
tion to implement those recommendations for which
legislation is appropriate.
(b) REVIEW AND COMMENT BY THE PRESIDENT.—
No later than March 31, 1997, the President shall submit
to the Congress an evaluation of the Commission’s report
under this section, together with any recommendations
that the President considers appropriate.
SEC. 2609. CONGRESSIONAL CONSIDERATION OF REFORM
PROPOSALS.
(a) DEFINITIONS.—For purposes of this section—
(1) the term ‘‘implementation bill’’ means only
a bill which is introduced as provided under sub-
section (b), and consists of the draft legislation con-
tained in the report submitted to Congress under
section 2608; and
(2) the term ‘‘calendar day of session’’ means
a calendar day other than one on which either
House is not in session because of an adjournment
of more than 3 days to a date certain.
246
(b) INTRODUCTION, REFERRAL, AND REPORT
OR
DISCHARGE.—
(1) INTRODUCTION.—On the first calendar day
of session on which both Houses are in session im-
mediately following April 15, 1997, a bill consisting
of the draft legislation contained in the report sub-
mitted to Congress under section 2608 shall be in-
troduced (by request)—
(A) in the Senate by the majority leader or
by any Member designated by the majority
leader; and
(B) in the House of Representatives by the
majority leader or by any Member designated
by the majority.
If such a bill is not introduced in either House as
provided in the preceding session within 3 calendar
days of session after such first calendar day of ses-
sion, then any Member of that House may introduce
such a bill.
(2) REFERRAL.—The implementation bill intro-
duced in the Senate under paragraph (1) shall be re-
ferred concurrently to the Committee on Govern-
mental Affairs of the Senate and other committees
with jurisdiction.
247
(3) REPORT OR DISCHARGE.—If any committee
to which an implementation bill is referred has not
reported such bill by the end of the 15th calendar
day of session after the date of introduction of such
bill, such committee shall be immediately discharged
from further consideration of such bill, and upon
being reported or discharged from all committees,
such bill shall be placed on the appropriate calendar
of the House involved.
(c) PROCEDURES FOR CONSIDERATION BY THE SEN-
ATE.—
(1) IN GENERAL.—On or after the second cal-
endar day of session after the date on which an im-
plementation bill is placed on the Senate calendar,
it is in order (even though a previous motion to the
same effect has been disagreed to) for any Senator
to move to proceed to the consideration of the imple-
mentation bill (but only on the day after the cal-
endar day of session on which such Senator an-
nounces on the floor of the Senate the Senator’s in-
tention to do so). All points of order against the im-
plementation bill (and against consideration of the
implementation bill) are waived. The motion is privi-
leged and is not debatable. The motion is not subject
to amendment, or to a motion to postpone, or to a
248
motion to proceed to the consideration of other busi-
ness. A motion to reconsider the vote by which the
motion is agreed to or disagreed to shall not be in
order. If a motion to proceed to the consideration of
the implementation bill is agreed to, the Senate shall
immediately proceed to consideration of the imple-
mentation bill without intervening motion, order, or
other business, and the implementation bill shall re-
main the unfinished business of the Senate until dis-
posed of.
(2) DEBATE.—Debate on the implementation
bill, and on all debatable motions and appeals in
connection therewith, shall be limited to not more
than 10 hours, which shall be divided equally be-
tween the majority leader and the minority leader or
their designees. An amendment to the implementa-
tion bill is not in order. A motion further to limit
debate is in order and not debatable. A motion to
postpone, or a motion to proceed to the consider-
ation of other business, or a motion to recommit the
implementation bill is not in order. A motion to re-
consider the vote by which the implementation bill is
agreed to or disagreed to is not in order.
(3) MOTION TO SUSPEND OR WAIVE APPLICA-
TION.—No motion to suspend or waive the applica-
249
tion of this subsection shall be in order, except by
unanimous consent.
(4) APPEALS FROM CHAIR.—Appeals from the
decisions of the Chair relating to the application of
the rules of the Senate to the procedure relating to
an implementation bill shall be decided without de-
bate.
(5) FINAL
PASSAGE.—Immediately following
the conclusion of the debate on an implementation
bill and a single quorum call at the conclusion of the
debate if requested in accordance with the rules of
the Senate, the vote on final passage of the imple-
mentation bill shall occur.
(d) CONSIDERATION BY OTHER HOUSE.—
(1) IN GENERAL.—If, before the passage by the
Senate of an implementation bill, the Senate receives
from the House of Representatives an implementa-
tion bill, then the following procedures shall apply:
(A) The implementation bill of the House
of Representatives shall not be referred to a
committee and may not be considered in the
Senate except in the case of final passage as
provided in subparagraph (B)(ii).
(B) With respect to an implementation bill
of the Senate—
250
(i) the procedure in the Senate shall
be the same as if no implementation bill
had been received from the House of Rep-
resentatives; but
(ii) the vote on final passage shall be
on the implementation bill of the House of
Representatives.
(2) FINAL DISPOSITION.—Upon disposition of
the implementation bill received from the House of
Representatives, it shall no longer be in order to
consider the implementation bill that originated in
the Senate.
(f) RULES OF THE SENATE AND HOUSE.—This sec-
tion is enacted by Congress—
(1) as an exercise of the rulemaking power of
the Senate and House of Representatives, respec-
tively, and as such it is deemed a part of the rules
of each House, respectively, but applicable only with
respect to the procedure to be followed in that
House in the case of an implementation bill, and it
supersedes other rules only to the extent that it is
inconsistent with such rules; and
(2) with full recognition of the constitutional
right of either House to change its rules (so far as
relating to the procedure of that House) at any time,
251
in the same manner, and to the same extent as in
the case of any other rule of that House.
SEC. 2610. DISTRIBUTION OF ASSETS.
Any proceeds from the sale of assets of any depart-
ment or agency resulting from the enactment of an imple-
mentation bill under section 2609 shall be—
(1) applied to reduce the Federal deficit; and
(2) deposited in the Treasury and treated as
general receipts.
SEC. 2611. AGENCY DEFINED.
For purposes of this subtitle, the term ‘‘agency’’
means each authority of the Federal Government, includ-
ing all departments, independent agencies, government-
sponsored enterprises, and Government corporations, ex-
cept the legislative branch, judicial branch, the govern-
ments of the territories or possessions of the United
States, or the District of Columbia.
252
TITLE III-REGULATORY REFORM
SEC. 3001. SHORT TITLE.
This title may be cited as the ‘‘Comprehensive Regu-
latory Reform Act of 1995’’.
SEC. 3002. ANALYSIS OF AGENCY RULES.
(a) IN GENERAL.—(1) Section 551 of title 5, United
States Code, is amended by striking ‘‘and’’ at the end of
paragraph (13), by striking the period at the end of para-
graph (14) and inserting a semicolon, and by adding at
the end the following:
‘‘(15) ‘major rule’ means any rule subject to
section 553(c) that is likely to result in—
‘‘(A) an annual effect on the economy of
$100,000,000 or more;
‘‘(B) a major increase in costs or prices for
consumers, 
individual 
industries, 
Federal,
State, or local government agencies, or geo-
graphic regions, or
‘‘(C) significant adverse effects on competi-
tion, employment, investment, productivity, in-
253
novation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises
in domestic and export markets;
‘‘(16) ‘Director’ means the Director of the Of-
fice of Management and Budget;
‘‘(17) ‘cost’ means the reasonably identifiable
significant 
adverse 
effects, 
quantifiable 
and
nonquantifiable, including social, environmental,
health, and economic effects that are expected to re-
sult directly or indirectly from implementation of a
rule or other agency action;
‘‘(18) ‘cost-benefit analysis’ means an evalua-
tion of the costs and benefits of a rule, quantified
to the extent feasible and appropriate and otherwise
qualitatively described, that is prepared in accord-
ance with the requirements of this subchapter at the
level of detail appropriate and practicable for rea-
soned decision making on the matter involved, tak-
ing into consideration the significance and complex-
ity of the decision and any need for expedition; and
‘‘(19) ‘reasonable alternatives’ means the range
of reasonable regulatory options that the agency has
authority to consider under the statute granting
rulemaking authority, including flexible regulatory
254
options, unless precluded by the statute granting the
rulemaking authority.’’.
(2) Section 553 of title 5, United States Code, is
amended by adding at the end the following:
‘‘(f)(1) Each agency shall for a proposed major rule
publish in the Federal Register, at least 90 days before
the date of publication of the general notice required
under subsection (b), a notice of intent to engage in rule-
making.
‘‘(2) A notice under paragraph (1) for a proposed
major rule shall include, to the extent possible, the infor-
mation required to be included in a regulatory impact
analysis for the rule under subsection (i)(4)(B) and (D).
‘‘(3) For a major rule proposed by an agency, the
head of the agency shall include in a general notice under
subsection (b), a preliminary regulatory impact analysis
for the rule prepared in accordance with subsection (i).
‘‘(4) For a final major rule, the agency shall include
with the statement of basis and purpose—
‘‘(A) a summary of a final regulatory impact
analysis of the rule in accordance with subsection
(i); and
‘‘(B) a clear delineation of all changes in the in-
formation included in the final regulatory impact
analysis under subsection (i) from any such informa-
255
tion that was included in the notice for the rule
under subsection (b).
The agency shall provide the complete text of a final regu-
latory impact analysis upon request.
‘‘(5) The issuance of a notice of intent to engage in
rulemaking under paragraph (1) and the issuance of a
preliminary regulatory impact analysis under paragraph
(3) shall not be considered final agency action for pur-
poses of section 704.
‘‘(6) In a rulemaking involving a major rule, the
agency conducting the rulemaking shall make a written
record describing the subject of all contacts the agency
made with persons outside the agency relating to such
rulemaking. If the contact was made with a non-govern-
mental person, the written record of such contact shall be
made available, upon request to the public.’’.
(3)(A) HEARING REQUIREMENT.—Section 553 of
title 5, United States Code, is further amended by adding
after subsection (f) the following:
‘‘(g) If more than 100 interested persons acting indi-
vidually submit requests for a hearing to an agency re-
garding any major rule proposed by the agency, the agen-
cy shall hold such a hearing on the proposed rule.’’.
256
(B) EXTENSION
OF COMMENT PERIOD.—Section
553 of title 5, United States Code is further amended by
adding after subsection (g) the following:
‘‘(h) If during the 90-day period beginning on the
date of publication of a notice under subsection (f) for a
proposed major rule, or if during the period beginning on
the date of publication or service of notice required by sub-
section (b) for a proposed major rule, more than 100 per-
sons individually contact the agency to request an exten-
sion of the period for making submissions under sub-
section (c) pursuant to the notice, the agency—
‘‘(1) shall provide an additional 30-day period
for making those submissions; and
‘‘(2) may not adopt the rule until after the ad-
ditional period.’’.
(C) RESPONSE TO COMMENTS.—Section 553(c) of
title 5, United States Code, is amended—
(i) by inserting ‘‘(1)’’ after ‘‘(c)’’; and
(ii) by adding at the end the following:
‘‘(2) Each agency shall publish in the Federal Reg-
ister, with each rule published under section 552(a)(1)(D),
responses to the substance of the comments received by
the agency regarding the rule.’’.
(4) Section 553 of title 5, United States Code, is fur-
ther amended by adding after subsection (h) the following:
257
‘‘(i)(1) Each agency shall, in connection with every
major rule, prepare, and, to the extent permitted by law,
consider, a regulatory impact analysis. Such analysis may
be combined with any regulatory flexibility analysis per-
formed under sections 603 and 604.
‘‘(2) Each agency shall initially determine whether a
rule it intends to propose or issue is a major rule. The
Director shall have authority to order a rule to be treated
as a major rule and to require any set of related rules
to be considered together as a major rule.
‘‘(3) Except as provided in subsection (j), agencies
shall prepare—
‘‘(A) a preliminary regulatory impact analysis,
which shall be transmitted, along with a notice of
proposed rulemaking, to the Director at least 60
days prior to the publication of notice of proposed
rulemaking, and
‘‘(B) a final regulatory impact analysis, which
shall be transmitted along with the final rule at least
30 days prior to the publication of a major rule.
‘‘(4) Each preliminary and final regulatory impact
analysis shall contain the following information:
‘‘(A) A description of the potential benefits of
the rule, including any beneficial effects that cannot
258
be quantified in monetary terms and the identifica-
tion of those likely to receive the benefits.
‘‘(B) An explanation of the necessity, legal au-
thority, and reasonableness of the rule and a de-
scription of the condition that the rule is to address.
‘‘(C) A description of the potential costs of the
rule, including any adverse effects that cannot be
quantified in monetary terms, and the identification
of those likely to bear the costs.
‘‘(D) An analysis of alternative approaches, in-
cluding market based mechanisms or other flexible
regulatory options that could substantially achieve
the same regulatory goal at a lower cost and an ex-
planation of the reasons why such alternative ap-
proaches were not adopted, together with a dem-
onstration that the rule provides for the least costly
approach.
‘‘(E) A statement that the rule does not conflict
with, or duplicate, any other rule or a statement of
the reasons why such a conflict or duplication exists.
‘‘(F) A statement of whether the rule will re-
quire on-site inspections or whether persons will be
required by the rule to maintain any records which
will be subject to inspection, and a statement of
whether the rule will require persons to obtain li-
259
censes, permits, or other certifications, including
specification of any associated fees or fines.
‘‘(G) An estimate of the costs to the agency for
implementation and enforcement of the rule and of
whether the agency can be reasonably expected to
implement the rule with the current level of appro-
priations.
‘‘(5)(A) the Director is authorized to review and pre-
pare comments on any preliminary or final regulatory im-
pact analysis, notice of proposed rulemaking, or final rule
based on the requirements of this subsection.
‘‘(B) Upon the request of the Director, an agency
shall consult with the Director concerning the review of
a preliminary impact analysis or notice of proposed rule-
making and shall refrain from publishing its preliminary
regulatory impact analysis or notice of proposed rule-
making until such review is concluded. The Director’s re-
view may not take longer than 90 days after the date of
the request of the Director.
‘‘(6)(A) An agency may not adopt a major rule unless
the final regulatory impact analysis for the rule is ap-
proved or commented upon in writing by the Director or
by an individual designated by the Director for that pur-
pose.
260
‘‘(B) Upon receiving notice that the Director intends
to comment in writing with respect to any final regulatory
impact analysis or final rule, the agency shall refrain from
publishing its final regulatory impact analysis or final rule
until the agency has responded to the Director’s comments
and incorporated those comments in the agency’s response
in the rulemaking file.
‘‘(7)(A) Except as provided in subparagrph (B), no
final major rule subject to this section shall be promul-
gated unless the agency head publishes in the Federal
Register a finding that—
’’(i) the benefits of the rule justify the costs of
the rule; and
‘‘(ii) the rule employs to the extent practicable
flexible alternatives as set forth in paragraph (4)(D)
and adopts the reasonable alternative which has the
greater net benefits and achieves the objectives of
the statute.
‘‘(B) If, applying the statutory requirements upon
which the rule is based, a rule cannot satisfy the criteria
of subparagraph (A), the agency head may promulgate the
rule if the agency head finds that—
‘‘(i) the rule employs to the extent practicable
flexible reasonable alternatives of the type described
in paragraph (4)(D); and
261
‘‘(ii) the rule adopts the alternative with the
least net cost of the reasonable alternatives that
achieve the objectives of the statute.
‘‘(8) Notwithstanding section 551(16), for purposes
of this subsection with regard to any rule proposed or is-
sued by an appropriate Federal banking agency (as that
term is defined in section 3(q) of the Federal Deposit In-
surance Act (12 U.S.C. 1813(q)), the National Credit
Union Administration, or the Office of Federal Housing
Enterprise Oversight, the term ‘Director’ means the head
of such agency, Administration, or Office.’’.
(5) Section 553 of title 5, United States Code, is fur-
ther amended by adding after subsection (i) the following:
‘‘(j) To the extent practicable, the head of an agency
shall seek to ensure that any proposed major rule or regu-
latory impact analysis of such a rule is written in a reason-
ably simple and understandable manner and provides ade-
quate notice of the content of the rule to affected per-
sons.’’.
(6) Section 553 of title 5, United States Code, is fur-
ther amended by adding after subsection (j) the following:
‘‘(k)(1) The provisions of this section regarding
major rules shall not apply if—
‘‘(A) the agency for good cause finds that con-
ducting cost-benefit analysis is impracticable due to
262
an emergency, or health or safety threat, or a food
safety threat that is likely to result in significant
harm to the public or natural resources; and
‘‘(B) the agency publishes in the Federal Reg-
ister, together with such finding, a succinct state-
ment of the basis for the finding.
‘‘(2) Not later than one year after the promulgation
of a final major rule to which paragraph (1) applies, the
agency shall comply with the provisions of this subchapter
and, as thereafter necessary, revise the rule.
(7) Section 553 of title 5, United States Code, is fur-
ther amended by adding after subsection (k) the following:
‘‘(l) The provisions of this section regarding major
rules shall not apply to—
‘‘(1) any regulation proposed or issued in con-
nection with the implementation of monetary policy
or to ensure the safety and soundness of federally
insured depository institutions, any affiliate of such
institution, credit unions, or government sponsored
housing enterprises regulated by the Office of Fed-
eral Housing Enterprise Oversight;
‘‘(2) any agency action that the head of the
agency certifies is limited to interpreting, implement-
ing, or administering the internal revenue laws of
the United States, including any regulation proposed
263
or issued in connection with ensuring the collection
of taxes from a subsidiary of a foreign company
doing business in the United States; and
‘‘(3) any regulation proposed or issued pursu-
ant to section 553 of title 5, United States Code, in
connection with imposing trade sanctions against
any country that engages in illegal trade activities
against the United States that are injurious to
American technology, jobs, pensions, or general eco-
nomic well-being.’’.
(8) The Director of the Office of Management and
Budget shall submit a report to the Congress no later than
24 months after the date of the enactment of this Act con-
taining an analysis of rulemaking procedures of Federal
agencies and an analysis of the impact of those rule-
making procedures on the regulated public and regulatory
process.
(9) The amendments made by this subsection shall
apply only to final agency rules issued after rulemaking
begun after the date of enactment of this Act.
SEC. 3003. RISK ASSESSMENT.
(a) IN GENERAL.—Chapter 6 of title 5, United
States Code, is amended by adding at the end the follow-
ing:
264
‘‘SUBCHAPTER III—RISK ASSESSMENTS
‘‘§ 631. Short title
‘‘This subchapter may be cited as the ‘Risk Assess-
ment and Communication Act of 1995’.
‘‘§ 632. Purposes
‘‘The purposes of this subchapter are—
‘‘(1) to present the public and executive branch
with the most scientifically objective and unbiased
information concerning the nature and magnitude of
health, safety, and environmental risks in order to
provide for sound regulatory decisions and public
education;
‘‘(2) to provide for full consideration and dis-
cussion of relevant data and potential methodologies;
‘‘(3) to require explanation of significant
choices in the risk assessment process which will
allow for better peer review and public understand-
ing; and
‘‘(4) to improve consistency within the executive
branch in preparing risk assessments and risk char-
acterizations.
‘‘§ 633. Effective date; applicability; savings provi-
sions
‘‘(a) EFFECTIVE DATE.—Except as otherwise specifi-
cally provided in this subchapter, the provisions of this
265
subchapter shall take effect 18 months after the date of
enactment of this subchapter.
‘‘(b) APPLICABILITY.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (3), this subchapter applies to all significant
risk assessment documents and significant risk char-
acterization documents, as defined in paragraph (2).
‘‘(2) SIGNIFICANT
RISK
ASSESSMENT
DOCU-
MENT
OR
SIGNIFICANT
RISK
CHARACTERIZATION
DOCUMENT.—(A) As used in this subchapter, the
terms ‘significant risk assessment document’ and
‘significant risk characterization document’ include,
at a minimum, risk assessment documents or risk
characterization documents prepared by or on behalf
of a covered Federal agency in the implementation
of a regulatory program designed to protect human
health, safety, or the environment, used as a basis
for one of the items referred to in subparagraph (B),
and—
‘‘(i) included by the agency in that item; or
‘‘(ii) inserted by the agency in the adminis-
trative record for that item.
‘‘(B) The items referred to in subparagraph (A)
are the following:
266
‘‘(i) Any proposed or final major rule, in-
cluding any analysis or certification under sub-
chapter II, promulgated as part of any Federal
regulatory program designed to protect human
health, safety, or the environment.
‘‘(ii) Any proposed or final environmental
clean-up plan for a facility or Federal guidelines
for the issuance of any such plan. As used in
this clause, the term ‘environmental clean-up’
means a corrective action under the Solid
Waste Disposal Act, a removal or remedial ac-
tion under the Comprehensive Environmental
Response, Compensation, and Liability Act of
1980, and any other environmental restoration
and waste management carried out by or on be-
half of a covered Federal agency with respect to
any substance other than municipal waste.
‘‘(iii) Any proposed or final permit condi-
tion placing a restriction on facility siting or
operation under Federal laws administered by
the Environmental Protection Agency or the
Department of the Interior. Nothing in this sec-
tion (iii) shall apply to the requirements of sec-
tion 404 of the Clean Water Act.
‘‘(iv) Any report to Congress.
267
‘‘(v) Any regulatory action to place a sub-
stance on any official list of carcinogens or
toxic or hazardous substances or to place a new
health effects value on such list, including the
Integrated Risk Information System Database
maintained by the Environmental Protection
Agency.
‘‘(vi) Any guidance, including protocols of
general applicability, establishing policy regard-
ing risk assessment or risk characterization.
‘‘(C) The terms ‘significant risk assessment
document’ and ‘significant risk characterization doc-
ument’ shall also include the following:
‘‘(i) Any such risk assessment and risk
characterization documents provided by a cov-
ered Federal agency to the public and which are
likely to result in an annual effect on the econ-
omy of $75,000,000 or more.
‘‘(ii) Environmental restoration and waste
management carried out by or on behalf of the
Department of Defense with respect to any sub-
stance other than municipal waste.
‘‘(D) Within 15 months after the date of the
enactment of this subchapter, each covered Federal
agency administering a regulatory program designed
268
to protect human health, safety, or the environment
shall promulgate a rule establishing those additional
categories, if any, of risk assessment and risk char-
acterization documents prepared by or on behalf of
the covered Federal agency that the agency will con-
sider significant risk assessment documents or sig-
nificant risk characterization documents for pur-
poses of this subchapter. In establishing such cat-
egories, the head of the agency shall consider each
of the following:
‘‘(i) The benefits of consistent compliance
by documents of the covered Federal agency in
the categories.
‘‘(ii) The administrative burdens of includ-
ing documents in the categories.
‘‘(iii) The need to make expeditious admin-
istrative decisions regarding documents in the
categories.
‘‘(iv) The possible use of a risk assessment
or risk characterization in any compilation of
risk hazards or health or environmental effects
prepared by an agency and commonly made
available to, or used by, any Federal, State, or
local government agency.
269
‘‘(v) Such other factors as may be appro-
priate.
‘‘(E)(i) Not later than 18 months after the date
of the enactment of this subchapter, the President,
acting through the Director of the Office of Manage-
ment and Budget, shall determine whether any other
Federal agencies should be considered covered Fed-
eral agencies for purposes of this subchapter. Such
determination, with respect to a particular Federal
agency, shall be based on the impact of risk assess-
ment documents and risk characterization docu-
ments on—
‘‘(I) regulatory programs administered by
that agency; and
‘‘(II) the communication of risk informa-
tion by that agency to the public.
The effective date of such a determination shall be
no later than 6 months after the date of the deter-
mination.
‘‘(ii) Not later than 15 months after the Presi-
dent, acting through the Director of the Office of
Management and Budget, determines pursuant to
clause (i) that a Federal agency should be consid-
ered a covered Federal agency for purposes of this
subchapter, the head of that agency shall promul-
270
gate a rule pursuant to subparagraph (D) to estab-
lish additional categories of risk assessment and risk
characterization documents described in that sub-
paragraph.
‘‘(3) EXCEPTIONS.—(A) This subchapter does
not apply to risk assessment or risk characterization
documents containing risk assessments or risk char-
acterizations performed with respect to the follow-
ing:
‘‘(i) A screening analysis, where appro-
priately labeled as such, including a screening
analysis for purposes of product regulation or
premanufacturing notices.
‘‘(ii) Any health, safety, or environmental
inspections.
‘‘(iii) The sale or lease of Federal re-
sources or regulatory activities that directly re-
sult in the collection of Federal receipts.
‘‘(B) No analysis shall be treated as a screening
analysis for purposes of subparagraph (A) if the re-
sults of such analysis are used as the basis for im-
posing restrictions on substances or activities.
‘‘(C) The risk assessment principle set forth in
this 634(b)(1) need not apply to any risk assessment
or risk characterization document described in
271
clause (iii) of paragraph (2)(B). The risk character-
ization and communication principle set forth in sec-
tion 635(4) need not apply to any risk assessment
or risk characterization document described in
clause (v) or (vi) of paragraph (2)(B).
‘‘(c) SAVINGS PROVISIONS.—The provisions of this
subchapter shall be supplemental to any other provisions
of law relating to risk assessments and risk characteriza-
tions, except that nothing in this subchapter shall be con-
strued to modify any statutory standard or statutory re-
quirement designed to protect health, safety, or the envi-
ronment. Nothing in this subchapter shall be interpreted
to preclude the consideration of any data or the calculation
of any estimate to more fully describe risk or provide ex-
amples of scientific uncertainty or variability. Nothing in
this subchapter shall be construed to require the disclosure
of any trade secret or other confidential information.
‘‘§ 634. Principles for risk assessment
‘‘(a) IN GENERAL.—The head of each covered Fed-
eral agency shall apply the principles set forth in sub-
section (b) in order to assure that significant risk assess-
ment documents and all of their components distinguish
scientific findings from other considerations and are, to
the extent feasible, scientifically objective, unbiased, and
inclusive of all relevant data and rely, to the extent avail-
272
able and practicable, on scientific findings. Discussions or
explanations required under this section need not be re-
peated in each risk assessment document as long as there
is a reference to the relevant discussion or explanation in
another agency document which is available to the public.
‘‘(b) PRINCIPLES.—The principles to be applied are
as follows:
‘‘(1) When discussing human health risks, a
significant risk assessment document shall contain a
discussion of both relevant laboratory and relevant
epidemiological data of sufficient quality which finds,
or fails to find, a correlation between health risks
and a potential toxin or activity. Where conflicts
among such data appear to exist, or where animal
data is used as a basis to assess human health, the
significant risk assessment document shall, to the
extent feasible and appropriate, include discussion of
possible reconciliation of conflicting information, and
as relevant, differences in study designs, compara-
tive physiology, routes of exposure, bioavailability,
pharmacokinetics, and any other relevant factor, in-
cluding the sufficiency of basic data for review. The
discussion of possible reconciliation should indicate
whether there is a biological basis to assume a re-
273
sulting harm in humans. Animal data shall be re-
viewed with regard to its relevancy to humans.
‘‘(2) Where a significant risk assessment docu-
ment involves selection of any significant assump-
tion, inference, or model, the document shall, to the
extent feasible—
‘‘(A) present a representative list and ex-
planation of plausible and alternative assump-
tions, inferences, or models;
‘‘(B) explain the basis for any choices;
‘‘(C) identify any policy or value judg-
ments;
‘‘(D) fully describe any model used in the
risk assessment and make explicit the assump-
tions incorporated in the model; and
‘‘(E) indicate the extent to which any sig-
nificant model has been validated by, or con-
flicts with, empirical data.
‘‘§ 635. Principles for risk characterization and com-
munication
‘‘Each significant risk characterization document
shall meet each of the following requirements:
‘‘(1) ESTIMATES OF RISK.—The risk character-
ization shall describe the populations or natural re-
sources which are the subject of the risk character-
274
ization. If a numerical estimate of risk is provided,
the agency shall, to the extent feasible, provide—
‘‘(A) the best estimate or estimates for the
specific populations or natural resources which
are the subject of the characterization (based
on the information available to the Federal
agency); and
‘‘(B) a statement of the reasonable range
of scientific uncertainties.
In addition to such best estimate or estimates, the
risk characterization document may present plau-
sible upper-bound or conservative estimates in con-
junction with plausible lower bound estimates.
Where appropriate, the risk characterization docu-
ment may present, in lieu of a single best estimate,
multiple best estimates based on assumptions, infer-
ences, or models which are equally plausible, given
current scientific understanding. To the extent prac-
tical and appropriate, the document shall provide de-
scriptions of the distribution and probability of risk
estimates to reflect differences in exposure varia-
bility or sensitivity in populations and attendant un-
certainties. Sensitive subpopulations or highly ex-
posed subpopulations include, where relevant and
275
appropriate, children, the elderly, pregnant women,
and disabled persons.
‘‘(2) EXPOSURE SCENARIOS.—The risk charac-
terization document shall explain the exposure sce-
narios used in any risk assessment, and, to the ex-
tent feasible, provide a statement of the size of the
corresponding population at risk and the likelihood
of such exposure scenarios.
‘‘(3) COMPARISONS.—The document shall con-
tain a statement that places the nature and mag-
nitude of risks to human health, safety, or the envi-
ronment in context. Such statement shall, to the ex-
tent feasible, provide comparisons with estimates of
greater, lesser, and substantially equivalent risks
that are familiar to and routinely encountered by the
general public as well as other risks, and, where ap-
propriate and meaningful, comparisons of those risks
with other similar risks regulated by the Federal
agency resulting from comparable activities and ex-
posure pathways. Such comparisons should consider
relevant distinctions among risks, such as the vol-
untary or involuntary nature of risks and the pre-
ventability or nonpreventability of risks.
‘‘(4) SUBSTITUTION
RISKS.—Each significant
risk assessment or risk characterization document
276
shall include a statement of any significant substi-
tution risks to human health, where information on
such risks has been provided to the agency.
‘‘(5) 
SUMMARIES
OF
OTHER
RISK
ESTI-
MATES.—If—
‘‘(A) a commenter provides a covered Fed-
eral agency with a relevant risk assessment doc-
ument or a risk characterization document, and
a summary thereof, during a public comment
provided by the agency for a significant risk as-
sessment document or a significant risk charac-
terization document, or, where no comment pe-
riod is provided but a commenter provides the
covered Federal agency with the relevant risk
assessment document or risk characterization
document, and a summary thereof, in a timely
fashion, and
‘‘(B) the risk assessment document or risk
characterization document is consistent with the
principles and the guidance provided under this
subchapter,
the agency shall, to the extent feasible, present such
summary in connection with the presentation of the
agency’s significant risk assessment document or
significant risk characterization document. Nothing
277
in this paragraph shall be construed to limit the in-
clusion of any comments or material supplied by any
person to the administrative record of any proceed-
ing.
A document may satisfy the requirements of paragraph
(3), (4) or (5) by reference to information or material oth-
erwise available to the public if the document provides a
brief summary of such information or material.
‘‘§ 636. Recommendations or classifications by a non-
United States-based entity
‘‘No covered Federal agency shall automatically in-
corporate or adopt any recommendation or classification
made by a non-United States-based entity concerning the
health effects value of a substance without an opportunity
for notice and comment, and any risk assessment docu-
ment or risk characterization document adopted by a cov-
ered Federal agency on the basis of such a recommenda-
tion or classification shall comply with the provisions of
this subchapter. For the purposes of this section, the term
‘non-United States-based entity’ means—
‘‘(1) any foreign government and its agencies;
‘‘(2) the United Nations or any of its subsidiary
organizations;
‘‘(3) any other international governmental body
or international standards-making organization; or
278
‘‘(4) any other organization or private entity
without a place of business located in the United
States or its territories.
‘‘§ 637. Guidelines and report
‘‘(a) GUIDELINES.—Within 15 months after the date
of enactment of this subchapter, the President shall issue
guidelines for Federal agencies consistent with the risk as-
sessment and characterization principles set forth in sec-
tions 634 and 635 and shall provide a format for summa-
rizing risk assessment results. In addition, such guidelines
shall include guidance on at least the following subjects:
criteria for scaling animal studies to assess risks to human
health; use of different types of dose-response models;
thresholds; definitions, use, and interpretations of the
maximum tolerated dose; weighting of evidence with re-
spect to extrapolating human health risks from sensitive
species; evaluation of benign tumors, and evaluation of dif-
ferent human health endpoints.
‘‘(b) REPORT.—Within 3 years after the date of the
enactment of this subchapter, each covered Federal agency
shall provide a report to the Congress evaluating the cat-
egories of policy and value judgments identified under sub-
paragraph (C) of section 634(b)(2).
‘‘(c) PUBLIC COMMENT AND CONSULTATION.—The
guidelines and report under this section, shall be developed
279
after notice and opportunity for public comment, and after
consultation with representatives of appropriate State,
local, and tribal governments, and such other departments
and agencies, offices, organizations, or persons as may be
advisable.
‘‘(d) REVIEW.—The President shall review and,
where appropriate, revise the guidelines published under
this section at least every 4 years.
‘‘§ 638. Research and training in risk assessment
‘‘(a) EVALUATION.—The head of each covered agency
shall regularly and systematically evaluate risk assessment
research and training needs of the agency, including,
where relevant and appropriate, the following:
‘‘(1) Research to reduce generic data gaps, to
address modelling needs (including improved model
sensitivity), and to validate default options, particu-
larly those common to multiple risk assessments.
‘‘(2) Research leading to improvement of meth-
ods to quantify and communicate uncertainty and
variability among individuals, species, populations,
and, in the case of ecological risk assessment, eco-
logical communities.
‘‘(3) Emerging and future areas of research, in-
cluding research on comparative risk analysis, expo-
sure to multiple chemicals and other stressors,
280
noncancer endpoints, biological markers of exposure
and effect, mechanisms of action in both mammalian
and nonmammalian species, dynamics and prob-
abilities of physiological and ecosystem exposures,
and prediction of ecosystem-level responses.
‘‘(4) Long-term needs to adequately train indi-
viduals in risk assessment and risk assessment appli-
cation. Evaluations under this paragraph shall in-
clude an estimate of the resources needed to provide
necessary training.
‘‘(b) STRATEGY AND ACTIONS TO MEET IDENTIFIED
NEEDS.—The head of each covered agency shall develop
a strategy and schedule for carrying out research and
training to meet the needs identified in subsection (a).
‘‘(c) REPORT.—Not later than 6 months after the
date of the enactment of this subchapter, the head of each
covered agency shall submit to the Congress a report on
the evaluations conducted under subsection ‘‘(a) and the
strategy and schedule developed under subsection ‘‘(b).
The head of each covered agency shall report to the Con-
gress periodically on the evaluations, strategy, and sched-
ule.
‘‘§ 639. Study of comparative risk analysis
‘‘(a) IN GENERAL.—(1) The Director of the Office
of Management and Budget, in consultation with the Of-
281
fice of Science and Technology Policy, shall conduct, or
provide for the conduct of, a study using comparative risk
analysis to rank health, safety, and environmental risks
and to provide a common basis for evaluating strategies
for reducing or preventing those risks. The goal of the
study shall be to improve methods of comparative risk
analysis.
‘‘(2) Not later than 90 days after the date of the en-
actment of this subchapter, the Director, in collaboration
with the heads of appropriate Federal agencies, shall enter
into a contract with the National Research Council to pro-
vide technical guidance on approaches to using compara-
tive risk analysis and other considerations in setting
health, safety, and environmental risk reduction priorities.
‘‘(b) SCOPE OF STUDY.—The study shall have suffi-
cient scope and breadth to evaluate comparative risk anal-
ysis and to test approaches for improving comparative risk
analysis and its use in setting priorities for health, safety,
and environmental risk reduction. The study shall com-
pare and evaluate a range of diverse health, safety, and
environmental risks.
‘‘(c) STUDY
PARTICIPANTS.—In conducting the
study, the Director shall provide for the participation of
a range of individuals with varying backgrounds and ex-
282
pertise, both technical and nontechnical, comprising broad
representation of the public and private sectors.
‘‘(d) DURATION.—The study shall begin within 180
days after the date of the enactment of this subchapter
and terminate within 2 years after the date on which it
began.
‘‘(e) RECOMMENDATIONS FOR IMPROVING COMPARA-
TIVE RISK ANALYSIS AND ITS USE.—Not later than 90
days after the termination of the study, the Director shall
submit to the Congress the report of the National Re-
search Council with recommendations regarding the use
of comparative risk analysis and ways to improve the use
of comparative risk analysis for decision-making in appro-
priate Federal agencies.
‘‘§ 639a. Definitions
‘‘For purposes of this subchapter:
‘‘(1) RISK ASSESSMENT DOCUMENT.—The term
‘risk assessment document’ means a document con-
taining the explanation of how hazards associated
with a substance, activity, or condition have been
identified, quantified, and assessed. The term also
includes a written statement accepting the findings
of any such document.
‘‘(2) RISK
CHARACTERIZATION
DOCUMENT.—
The term ‘risk characterization document’ means a
283
document quantifying or describing the degree of
toxicity, exposure, or other risk posed by hazards as-
sociated with a substance, activity, or condition to
which individuals, populations, or resources are ex-
posed. The term also includes a written statement
accepting the findings of any such document.
‘‘(3) BEST
ESTIMATE.—The term ‘best esti-
mate’ means a scientifically appropriate estimate
which is based, to the extent feasible, on one of the
following:
‘‘(A) Central estimates of risk using the
most plausible assumptions.
‘‘(B) An approach which combines multiple
estimates based on different scenarios and
weighs the probability of each scenario.
‘‘(C) Any other methodology designed to
provide the most unbiased representation of the
most plausible level of risk, given the current
scientific information available to the Federal
agency concerned.
‘‘(4) SUBSTITUTION RISK.—The term ‘substi-
tution risk’ means a potential risk to human health,
safety, or the environment from a regulatory alter-
native designed to decrease other risks.
284
‘‘(5) COVERED FEDERAL AGENCY.—The term
‘covered Federal agency’ means each of the follow-
ing:
‘‘(A) The Environmental Protection Agen-
cy.
‘‘(B) The Occupational Safety and Health
Administration.
‘‘(C) The Department of Transportation
(including the National Highway Transpor-
tation Safety Administration).
‘‘(D) The Food and Drug Administration.
‘‘(E) The Department of Energy.
‘‘(F) The Department of the Interior.
‘‘(G) The Department of Agriculture.
‘‘(H) The Consumer Product Safety Com-
mission.
‘‘(I) The National Oceanic and Atmos-
pheric Administration.
‘‘(J) The United States Army Corps of
Engineers.
‘‘(K) The Mine Safety and Health Admin-
istration.
‘‘(L) The Nuclear Regulatory Commission.
285
‘‘(M) Any other Federal agency considered
a covered Federal agency pursuant to section
413(b)(2)(E).
‘‘(6) FEDERAL
AGENCY.—The term ‘Federal
agency’ means an executive department, military de-
partment, or independent establishment as defined
in part I of title 5 of the United States Code, except
that such term also includes the Office of Tech-
nology Assessment.
‘‘(7) DOCUMENT.—The term ‘document’ in-
cludes material stored in electronic or digital form.
‘‘§ 639b. Peer review program
‘‘(a) ESTABLISHMENT.—For regulatory programs de-
signed to protect human health, safety, or the environ-
ment, the head of each Federal agency shall develop a sys-
tematic program for independent and external peer review
required by subsection (b). Such program shall be applica-
ble across the agency and—
‘‘(1) shall provide for the creation of peer re-
view panels consisting of experts and shall be broad-
ly representative and balanced and to the extent rel-
evant and appropriate, may include representatives
of State, local, and tribal governments, small busi-
nesses, other representatives of industry, univer-
sities, agriculture, labor, consumers, conservation or-
286
ganizations, or other public interest groups and or-
ganizations;
‘‘(2) may provide for differing levels of peer re-
view and differing numbers of experts on peer review
panels, depending on the significance or the com-
plexity of the problems or the need for expeditious-
ness;
‘‘(3) shall not exclude peer reviewers with sub-
stantial and relevant expertise merely because they
represent entities that may have a potential interest
in the outcome, provided that interest is fully dis-
closed to the agency and in the case of a regulatory
decision affecting a single entity, no peer reviewer
representing such entity may be included on the
panel;
‘‘(4) may provide specific and reasonable dead-
lines for peer review panels to submit reports under
subsection (c); and
‘‘(5) shall provide adequate protections for con-
fidential business information and trade secrets, in-
cluding requiring peer reviewers to enter into con-
fidentiality agreements.
‘‘(b) REQUIREMENT FOR PEER REVIEW.—In connec-
tion with any rule that is likely to result in an annual
increase in costs of $100,000,000 or more (other than any
287
rule or other action taken by an agency to authorize or
approve any individual substance or product), each Fed-
eral agency shall provide for peer review in accordance
with this section of any risk assessment or cost analysis
which forms the basis for such rule or of any analysis
under section 431(a). In addition, the Director of the Of-
fice of Management and Budget may order that peer re-
view be provided for any major risk assessment or cost
assessment that is likely to have a significant impact on
public policy decisions.
‘‘(c) CONTENTS.—Each peer review under this sec-
tion shall include a report to the Federal agency concerned
with respect to the scientific and economic merit of data
and methods used for the assessments and analyses.
‘‘(d) RESPONSE TO PEER REVIEW.—The head of the
Federal agency shall provide a written response to all sig-
nificant peer review comments.
‘‘(e) AVAILABILITY
TO PUBLIC.—All peer review
comments or conclusions and the agency’s responses shall
be made available to the public and shall be made part
of the administrative record.
‘‘(f) PREVIOUSLY REVIEWED DATA
AND ANALY-
SIS.—No peer review shall be required under this section
for any data or method which has been previously sub-
288
jected to peer review or for any component of any analysis
or assessment previously subjected to peer review.
‘‘(g) NATIONAL PANELS.—The President shall ap-
point National Peer Review Panels to annually review the
risk assessment and cost assessment practices of each
Federal agency for programs designed to protect human
health, safety, or the environment. The Panel shall submit
a report to the Congress no less frequently than annually
containing the results of such review.
‘‘§ 639c. Petition for review of a major free-standing
risk assessment
‘‘(a) Any interested person may petition an agency
to conduct a scientific review of a risk assessment con-
ducted or adopted by the agency, except for a risk assess-
ment used as the basis for a major rule or a site-specific
risk assessment.
‘‘(b) The agency shall utilize external peer review, as
appropriate, to evaluate the claims and analyses in the pe-
tition, and shall consider such review in making its deter-
mination of whether to grant the petition.
‘‘(c) The agency shall grant the petition if the peti-
tion establishes that there is a reasonable likelihood that—
‘‘(1)(A) the risk assessment that is the subject
of the petition was carried out in a manner substan-
290
‘‘§ 639d. Risk-based priorities
‘‘(a) PURPOSES.—The purposes of this section are
to—
‘‘(1) encourage Federal agencies engaged in
regulating risks to human health, safety, and the en-
vironment to achieve the greatest risk reduction at
the least cost practical;
‘‘(2) promote the coordination of policies and
programs to reduce risks to human health, safety,
and the environment; and
‘‘(3) promote open communication among Fed-
eral agencies, the public, the President, and Con-
gress regarding environmental, health, and safety
risks, and the prevention and management of those
risks.
‘‘(b) DEFINITIONS.—For the purposes of this section:
‘‘(1) COMPARATIVE RISK ANALYSIS.—The term
‘comparative risk analysis’ means a process to sys-
tematically estimate, compare, and rank the size and
severity of risks to provide a common basis for eval-
uating strategies for reducing or preventing those
risks.
‘‘(2) COVERED
AGENCY.—The term ‘covered
agency’ means each of the following:
‘‘(A) The Environmental Protection Agen-
cy.
291
‘‘(B) The Department of Labor.
‘‘(C) The Department of Transportation.
‘‘(D) The Food and Drug Administration.
‘‘(E) The Department of Energy.
‘‘(F) The Department of the Interior.
‘‘(G) The Department of Agriculture.
‘‘(H) The Consumer Product Safety Com-
mission.
‘‘(I) The National Oceanic and Atmos-
pheric Administration.
‘‘(J) The United States Army Corps of
Engineers.
‘‘(K) The Nuclear Regulatory Commission.
‘‘(3) EFFECT.—The term ‘effect’ means a dele-
terious change in the condition of—
‘‘(A) a human or other living thing (includ-
ing death, cancer, or other chronic illness, de-
creased reproductive capacity, or disfigure-
ment); or
‘‘(B) an inanimate thing important to
human welfare (including destruction, degenera-
tion, the loss of intended function, and in-
creased costs for maintenance).
‘‘(4) 
IRREVERSIBILITY.—The 
term
‘irreversibility’ means the extent to which a return
292
to conditions before the occurrence of an effect are
either very slow or will never occur.
‘‘(5) 
LIKELIHOOD.—The 
term 
‘likelihood’
means the estimated probability that an effect will
occur.
‘‘(6) 
MAGNITUDE.—The 
term 
‘magnitude’
means the number of individuals or the quantity of
ecological resources or other resources that contrib-
ute to human welfare that are affected by exposure
to a stressor.
‘‘(7) SERIOUSNESS.—The term ‘seriousness’
means the intensity of effect, the likelihood, the
irreversibility, and the magnitude.
‘‘(c) DEPARTMENT AND AGENCY PROGRAM GOALS.—
‘‘(1) SETTING PRIORITIES.—In exercising au-
thority under applicable laws protecting human
health, safety, or the environment, the head of each
covered agency shall set priorities for the use of re-
sources available under those laws to address those
risks to human health, safety, and the environment
that—
‘‘(A) the covered agency determines to be
most serious; and
‘‘(B) can be addressed in a cost-effective
manner, with the goal of achieving the greatest