S 517 IS
To authorize funding the Department of Energy to enhance its mission areas through technology transfer and partnerships for fiscal years 2002 through 2006, and for other purposes.
IN THE SENATE OF THE UNITED STATES
March 12, 2001
March 12, 2001
Mr. BINGAMAN (for himself, Mr. DOMENICI, and Mrs. MURRAY) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources
To authorize funding the Department of Energy to enhance its mission areas through technology transfer and partnerships for fiscal years 2002 through 2006, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘National Laboratories Partnership Improvement Act of 2001’.
SEC. 2. DEFINITIONS.
For purposes of this Act--
(1) the term ‘Department’ means the Department of Energy;
(2) the term ‘departmental mission’ means any of the functions vested in the Secretary of Energy by the Department of Energy Organization Act (42 U.S.C. 7101 et seq.) or other law;
(3) the term ‘institution of higher education’ has the meaning given such term in section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a));
(4) the term ‘National Laboratory’ means any of the following institutions owned by the Department of Energy--
(A) Argonne National Laboratory;
(B) Brookhaven National Laboratory;
(C) Idaho National Engineering and Environmental Laboratory;
(D) Lawrence Berkeley National Laboratory;
(E) Lawrence Livermore National Laboratory;
(F) Los Alamos National Laboratory;
(G) National Renewable Energy Laboratory;
(H) Oak Ridge National Laboratory;
(I) Pacific Northwest National Laboratory; or
(J) Sandia National Laboratory;
(5) the term ‘facility’ means any of the following institutions owned by the Department of Energy--
(A) Ames Laboratory;
(B) East Tennessee Technology Park;
(C) Environmental Measurement Laboratory;
(D) Fermi National Accelerator Laboratory;
(E) Kansas City Plant;
(F) National Energy Technology Laboratory;
(G) Nevada Test Site;
(H) Princeton Plasma Physics Laboratory;
(I) Savannah River Technology Center;
(J) Stanford Linear Accelerator Center;
(K) Thomas Jefferson National Accelerator Facility;
(L) Waste Isolation Pilot Plant;
(M) Y-12 facility at Oak Ridge National Laboratory; or
(N) other similar organization of the Department designated by the Secretary that engages in technology transfer, partnering, or licensing activities;
(6) the term ‘nonprofit institution’ has the meaning given such term in section 4 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3703(5));
(7) the term ‘Secretary’ means the Secretary of Energy;
(8) the term ‘small business concern’ has the meaning given such term in section 3 of the Small Business Act (15 U.S.C. 632);
(9) the term ‘technology-related business concern’ means a for-profit corporation, company, association, firm, partnership, or small business concern that--
(A) conducts scientific or engineering research,
(B) develops new technologies,
(C) manufacturers products based on new technologies, or
(D) performs technological services;
(10) the term ‘technology cluster’ means a concentration of--
(A) technology-related business concerns;
(B) institutions of higher education; or
(C) other nonprofit institutions,
that reinforce each other’s performance through formal or informal relationships;
(11) the term ‘socially and economically disadvantaged small business concerns’ has the meaning given such term in section 8(a)(4) of the Small Business Act (15 U.S.C. 637(a)(4)); and
(12) the term ‘NNSA’ means the National Nuclear Security Administration established by title XXXII of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65).
SEC. 3. TECHNOLOGY INFRASTRUCTURE PILOT PROGRAM.
(a) ESTABLISHMENT- The Secretary, through the appropriate officials of the Department, shall establish a Technology Infrastructure Pilot Program in accordance with this section.
(b) PURPOSE- The purpose of the program shall be to improve the ability of National Laboratories or facilities to support departmental missions by--
(1) stimulating the development of technology clusters that can support the missions of the National Laboratories or facilities;
(2) improving the ability of National Laboratories or facilities to leverage and benefit from commercial research, technology, products, processes, and services; and
(3) encouraging the exchange of scientific and technological expertise between National Laboratories or facilities and--
(A) institutions of higher education,
(B) technology-related business concerns,
(C) nonprofit institutions, and
(D) agencies of State, tribal, or local governments,
that can support the missions of the National Laboratories and facilities.
(c) PILOT PROGRAM- In each of the first three fiscal years after the date of enactment of this section, the Secretary may provide no more than $10,000,000, divided equally, among no more than ten National Laboratories or facilities selected by the Secretary to conduct Technology Infrastructure Program Pilot Programs.
(d) PROJECTS- The Secretary shall authorize the Director of each National Laboratory or facility designated under subsection (c) to implement the Technology Infrastructure Pilot Program at such National Laboratory or facility through projects that meet the requirements of subsections (e) and (f).
(e) PROGRAM REQUIREMENTS- Each project funded under this section shall meet the following requirements:
(1) MINIMUM PARTICIPANTS- Each project shall at a minimum include--
(A) a National Laboratory or facility; and
(B) one of the following entities--
(i) a business,
(ii) an institution of higher education,
(iii) a nonprofit institution, or
(iv) an agency of a State, local, or tribal government.
(2) COST SHARING-
(A) MINIMUM AMOUNT- Not less than 50 percent of the costs of each project funded under this section shall be provided from non-Federal sources.
(B) QUALIFIED FUNDING AND RESOURCES-
(i) The calculation of costs paid by the non-Federal sources to a project shall include cash, personnel, services, equipment, and other resources expended on the project.
(ii) Independent research and development expenses of government contractors that qualify for reimbursement under section 31-205-18(e) of the Federal Acquisition Regulations issued pursuant to section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1)) may be credited towards costs paid by non-Federal sources to a project, if the expenses meet the other requirements of this section.
(iii) No funds or other resources expended either before the start of a project under this section or outside the project’s scope of work shall be credited toward the costs paid by the non-Federal sources to the project.
(3) COMPETITIVE SELECTION- All projects where a party other than the Department or a National Laboratory or facility receives funding under this section shall, to the extent practicable, be competitively selected by the National Laboratory or facility using procedures determined to be appropriate by the Secretary or his designee.
(4) ACCOUNTING STANDARDS- Any participant receiving funding under this section, other than a National Laboratory or facility, may use generally accepted accounting principles for maintaining accounts, books, and records relating to the project.
(5) LIMITATIONS- No Federal funds shall be made available under this section for--
(A) construction; or
(B) any project for more than five years.
(f) SELECTION CRITERIA-
(1) THRESHOLD FUNDING CRITERIA- The Secretary shall authorize the provision of Federal funds for projects under this section only when the Director of the National Laboratory or facility managing such a project determines that the project is likely to improve the participating National Laboratory or facility’s ability to achieve technical success in meeting departmental missions.
(2) ADDITIONAL CRITERIA- The Secretary shall also require the Director of the National Laboratory or facility managing a project under this section to consider the following criteria in selecting a project to receive Federal funds--
(A) the potential of the project to succeed, based on its technical merit, team members, management approach, resources, and project plan;
(B) the potential of the project to promote the development of a commercially sustainable technology cluster, one that will derive most of the demand for its products or services from the private sector, that can support the missions of the participating National Laboratory or facility;
(C) the potential of the project to promote the use of commercial research, technology, products, processes, and services by the participating National Laboratory or facility to achieve its departmental mission or the commercial development of technological innovations made at the participating National Laboratory or facility;
(D) the commitment shown by non-Federal organizations to the project, based primarily on the nature and amount of the financial and other resources they will risk on the project;
(E) the extent to which the project involves a wide variety and number of institutions of higher education, nonprofit institutions, and technology-related business concerns that can support the missions of the participating National Laboratory or facility and that will make substantive contributions to achieving the goals of the project;
(F) the extent of participation in the project by agencies of State, tribal, or local governments that will make substantive contributions to achieving the goals of the project; and
(G) the extent to which the project focuses on promoting the development of technology-related business concerns that are small business concerns or involves such small business concerns substantively in the project.
(3) SAVINGS CLAUSE- Nothing in this subsection shall limit the Secretary from requiring the consideration of other criteria, as appropriate, in determining whether projects should be funded under this section.
(g) REPORT TO CONGRESS ON FULL IMPLEMENTATION- Not later than 120 days after the start of the third fiscal year after the date of enactment of this section, the Secretary shall report to Congress on whether the Technology Infrastructure Program should be continued beyond the pilot stage, and, if so, how the fully implemented program should be managed. This report shall take into consideration the results of the pilot program to date and the views of the relevant Directors of the National laboratories and facilities. The report shall include any proposals for legislation considered necessary by the Secretary to fully implement the program.
SEC. 4. SMALL BUSINESS ADVOCACY AND ASSISTANCE.
(a) ADVOCACY FUNCTION- The Secretary shall direct the Director of each National Laboratory, and may direct the Director of each facility the Secretary determines to be appropriate, to establish a small business advocacy function that is organizationally independent of the procurement function at the National Laboratory or facility. The person or office vested with the small business advocacy function shall--
(1) work to increase the participation of small business concerns, including socially and economically disadvantaged small business concerns, in procurements, collaborative research, technology licensing, and technology transfer activities conducted by the National Laboratory or facility;
(2) report to the Director of the National Laboratory or facility on the actual participation of small business concerns in procurements and collaborative research along with recommendations, if appropriate, on how to improve participation;
(3) make available to small business concerns training, mentoring, and clear, up-to-date information on how to participate in the procurements and collaborative research, including how to submit effective proposals;
(4) increase the awareness inside the National Laboratory or facility of the capabilities and opportunities presented by small business concerns; and
(5) establish guidelines for the program under subsection (b) and report on the effectiveness of such program to the Director of the National Laboratory or facility.
(b) ESTABLISHMENT OF SMALL BUSINESS ASSISTANCE PROGRAM- The Secretary shall direct the Director of each National Laboratory, and may direct the Director of each facility the Secretary determines to be appropriate, to establish a program to provide small business concerns--
(1) assistance directed at making them more effective and efficient subcontractors or suppliers to the National Laboratory or facility; or
(2) general technical assistance, the cost of which shall not exceed $10,000 per instance of assistance, to improve the small business concern’s products or services.
(c) USE OF FUNDS- None of the funds expended under subsection (b) may be used for direct grants to the small business concerns.
SEC. 5. TECHNOLOGY PARTNERSHIPS OMBUDSMAN.
(a) APPOINTMENT OF OMBUDSMAN- The Secretary shall direct the Director of each National Laboratory, and may direct the Director of each facility the Secretary determines to be appropriate, to appoint a technology partnership ombudsman to hear and help resolve complaints from outside organizations regarding each laboratory’s policies and actions with respect to technology partnerships (including cooperative research and development agreements), patents, and technology licensing. Each ombudsman shall--
(1) be a senior official of the National Laboratory or facility who is not involved in day-to-day technology partnerships, patents, or technology licensing, or, if appointed from outside the laboratory, function as such a senior official; and
(2) have direct access to the Director of the National Laboratory or facility.
(b) DUTIES- Each ombudsman shall--
(1) serve as the focal point for assisting the public and industry in resolving complaints and disputes with the laboratory regarding technology partnerships, patents, and technology licensing;
(2) promote the use of collaborative alternative dispute resolution techniques such as mediation to facilitate the speedy and low-cost resolution of complaints and disputes, when appropriate; and
(3) report, through the Director of the National Laboratory or facility, to the Department annually on the number and nature of complaints and disputes raised, along with the ombudsman’s assessment of their resolution, consistent with the protection of confidential and sensitive information.
(c) DUAL APPOINTMENT- A person vested with the small business advocacy function of section 4 may also serve as the technology partnership ombudsman.
SEC. 6. STUDIES RELATED TO IMPROVING MISSION EFFECTIVENESS, PARTNERSHIPS, AND TECHNOLOGY TRANSFER AT NATIONAL LABORATORIES.
(a) STUDIES- The Secretary shall direct the Laboratory Operations Board to study and report to him, not later than one year after the date of enactment of this section, on the following topics--
(1) the possible benefits from and need for policies and procedures to facilitate the transfer of scientific, technical, and professional personnel among National Laboratories and facilities; and
(2) the possible benefits from and need for changes in--
(A) the indemnification requirements for patents or other intellectual property licensed from a National Laboratory or facility;
(B) the royalty and fee schedules and types of compensation that may be used for patents or other intellectual property licensed to a small business concern from a National Laboratory or facility;
(C) the licensing procedures and requirements for patents and other intellectual property;
(D) the rights given to a small business concern that has licensed a patent or other intellectual property from a National Laboratory or facility to bring suit against third parties infringing such intellectual property;
(E) the advance funding requirements for a small business concern funding a project at a National Laboratory or facility through a Funds-In-Agreement;
(F) the intellectual property rights allocated to a business when it is funding a project at a National Laboratory or facility through a Funds-In-Agreement; and
(G) policies on royalty payments to inventors employed by a contractor-operated National Laboratory or facility, including those for inventions made under a Funds-In-Agreement.
(b) DEFINITION- For the purposes of this section, the term ‘Funds-In-Agreement’ means a contract between the Department and a non-Federal organization where that organization pays the Department to provide a service or material not otherwise available in the domestic private sector.
(c) REPORT TO CONGRESS- Not later than one month after receiving the report under subsection (a), the Secretary shall transmit the report, along with his recommendations for action and proposals for legislation to implement the recommendations, to Congress.
SEC. 7. OTHER TRANSACTIONS AUTHORITY.
(a) NEW AUTHORITY- Section 646 of the Department of Energy Organization Act (42 U.S.C. 7256) is amended by adding at the end the following new subsection:
‘(g) OTHER TRANSACTIONS AUTHORITY- (1) In addition to other authorities granted to the Secretary to enter into procurement contracts, leases, cooperative agreements, grants, and other similar arrangements, the Secretary may enter into other transactions with public agencies, private organizations, or persons on such terms as the Secretary may deem appropriate in furtherance of basic, applied, and advanced research functions now or hereafter vested in the Secretary. Such other transactions shall not be subject to the provisions of section 9 of the Federal Nonnuclear Energy Research and Development Act of 1974 (42 U.S.C. 5908).
‘(2)(A) The Secretary of Energy shall ensure that--
‘(i) to the maximum extent practicable, no transaction entered into under paragraph (1) provides for research that duplicates research being conducted under existing programs carried out by the Department of Energy; and
‘(ii) to the extent that the Secretary determines practicable, the funds provided by the Government under a transaction authorized by paragraph (1) do not exceed the total amount provided by other parties to the transaction.
‘(B) A transaction authorized by paragraph (1) may be used for a research project when the use of a standard contract, grant, or cooperative agreement for such project is not feasible or appropriate.
‘(3)(A) The Secretary shall not disclose any trade secret or commercial or financial information submitted by a non-Federal entity under paragraph (1) that is privileged and confidential.
‘(B) The Secretary shall not disclose, for five years after the date the information is received, any other information submitted by a non-Federal entity under paragraph (1), including any proposal, proposal abstract, document supporting a proposal, business plan, or technical information that is privileged and confidential.
‘(C) The Secretary may protect from disclosure, for up to five years, any information developed pursuant to a transaction under paragraph (1) that would be protected from disclosure under section 552(b)(4) of title 5, United States Code, if obtained from a person other than a Federal agency.’.
(b) IMPLEMENTATION- Not later than six months after the date of enactment of this section, the Department shall establish guidelines for the use of other transactions. Other transactions shall be made available, if needed, in order to implement projects funded under section 3.
SEC. 8. CONFORMANCE WITH NNSA ORGANIZATIONAL STRUCTURE.
All actions taken by the Secretary in carrying out this Act with respect to National Laboratories and facilities that are part of the NNSA shall be through the Administrator for Nuclear Security in accordance with the requirements of title XXXII of the National Defense Authorization Act for Fiscal Year 2000.
SEC. 9. COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENTS FOR GOVERNMENT-OWNED, CONTRACTOR-OPERATED LABORATORIES.
(a) STRATEGIC PLANS- Subsection (a) of section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a) is amended by striking ‘joint work statement,’ and inserting ‘joint work statement or, if permitted by the agency, in an agency-approved annual strategic plan,’.
(b) EXPERIMENTAL FEDERAL WAIVERS- Subsection (b) of that section is amended by adding at the end the following new paragraph:
‘(6)(A) In the case of a Department of Energy laboratory, a designated official of the Department of Energy may waive any license retained by the Government under paragraph (1)(A), (2), or (3)(D), in whole or in part and according to negotiated terms and conditions, if the designated official finds that the retention of the license by the Department of Energy would substantially inhibit the commercialization of an invention that would otherwise serve an important Federal mission.
‘(B) The authority to grant a waiver under subparagraph (A) shall expire on the date that is 5 years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2001.
‘(C) The expiration under subparagraph (B) of authority to grant a waiver under subparagraph (A) shall not effect any waiver granted under subparagraph (A) before the expiration of such authority.’.
(c) TIME REQUIRED FOR APPROVAL- Subsection (c)(5) of that section is amended--
(1) by striking subparagraph (C);
(2) by redesignating subparagraph (D) as subparagraph (C); and
(3) in subparagraph (C) as so redesignated--
(A) in clause (i)--
(i) by striking ‘with a small business firm’; and
(ii) by inserting ‘if’ after ‘statement’; and
(B) by adding at the end the following new clauses:
‘(iv) Any agency that has contracted with a non-Federal entity to operate a laboratory may develop and provide to such laboratory one or more model cooperative research and development agreements, for the purposes of standardizing practices and procedures, resolving common legal issues, and enabling review of cooperative research and development agreements to be carried out in a routine and prompt manner.
‘(v) A Federal agency may waive the requirements of clause (i) or (ii) under such circumstances as the agency considers appropriate. However, the agency may not take longer than 30 days to review and approve, request modifications to, or disapprove any proposed agreement or joint work statement that it elects to receive.’.
SEC. 10. COOPERATIVE RESEARCH AND DEVELOPMENT OF THE NATIONAL NUCLEAR SECURITY ADMINISTRATION.
(a) OBJECTIVE FOR OBLIGATION OF FUNDS- It shall be an objective of the Administrator of the National Nuclear Security Administration to obligate funds for cooperative research and development agreements (as that term is defined in section 12(d)(1) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a(d)(1))), or similar cooperative, cost-shared research partnerships with non-Federal organizations, in a fiscal year covered by subsection (b) in an amount at least equal to the percentage of the total amount appropriated for the Administration for such fiscal year that is specified for such fiscal year under subsection (b).
(b) FISCAL YEAR PERCENTAGES- The percentages of funds appropriated for the National Nuclear Security Administration that are obligated in accordance with the objective under subsection (a) are as follows:
(1) In each of fiscal years 2001 and 2002, 0.5 percent.
(2) In any fiscal year after fiscal year 2002, the percentage recommended by the Administrator for each such fiscal year in the report under subsection (c).
(c) RECOMMENDTIONS FOR PERCENTAGES IN LATER FISCAL YEARS- Not later than one year after the date of the enactment of this Act, the Administrator shall submit to the congressional defense committees a report setting forth the Administrator’s recommendations for appropriate percentages of funds appropriated for the National Nuclear Security Administration to be obligated for agreements described in subsection (a) during each fiscal year covered by the report.
(d) CONSISTENCY OF AGREEMENTS- Any agreement entered into under this section shall be consistent with and in support of the mission of the National Nuclear Security Administration.
(e) REPORTS ON ACHIEVEMENT OF OBJECTIVE- (1) Not later than March 30, 2002, and each year thereafter, the Administrator shall submit to the congressional defense committees a report on whether funds of the National Nuclear Security Administration were obligated in the fiscal year ending in the preceding year in accordance with the objective for such fiscal year under this section.
(2) If funds were not obligated in a fiscal year in accordance with the objective under this section for such fiscal year, the report under paragraph (1) shall--
(A) describe the actions the Administrator proposes to take to ensure that the objective under this section for the current fiscal year and future fiscal years will be met; and
(B) include any recommendations for legislation required to achieve such actions.