[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1085 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 1085

    To make certain workforce authorities available to the National 
     Aeronautics and Space Administration, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 5, 2003

 Mr. Boehlert introduced the following bill; which was referred to the 
 Committee on Science, and in addition to the Committee on Government 
 Reform, for a period to be subsequently determined by the Speaker, in 
   each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
    To make certain workforce authorities available to the National 
     Aeronautics and Space Administration, 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 ``NASA Flexibility Act of 2003''.

SEC. 2. COMPENSATION FOR CERTAIN EXCEPTED PERSONNEL.

    (a) In General.--Subparagraph (A) of section 203(c)(2) of the 
National Aeronautics and Space Act of 1958 (42 U.S.C. 2473(c)(2)(A)) is 
amended by striking ``the highest rate of grade 18 of the General 
Schedule of the Classification Act of 1949, as amended,'' and inserting 
``the rate of basic pay payable for level III of the Executive 
Schedule,''.
    (b) Effective Date.--The amendment made by this section shall take 
effect on the first day of the first pay period beginning on or after 
the date of enactment of this Act.

SEC. 3. WORKFORCE AUTHORITIES.

    The National Aeronautics and Space Act of 1958 (42 U.S.C. 2451 and 
following) is amended by adding at the end the following:

                    ``TITLE V--WORKFORCE AUTHORITIES

                             ``definitions

    ``Sec. 501. For purposes of this title--
            ``(1) the term `employee' means an individual employed in 
        or under the Administration;
            ``(2) the term `appropriate committees of Congress' means--
                    ``(A) the Committee on Science and the Committee on 
                Appropriations of the House of Representatives; and
                    ``(B) the Committee on Commerce, Science, and 
                Transportation and the Committee on Appropriations of 
                the Senate;
            ``(3) the term `critical need' means a specific and 
        important requirement of the Administration's mission that the 
        Administration is unable to fulfill because the Administration 
        lacks the appropriate employees either because of the inability 
        to fill positions or because employees do not possess the 
        requisite skills;
            ``(4) the term `Workforce Plan' means the plan required 
        under section 502(a); and
            ``(5) the term `redesignation bonus' means a bonus under 
        section 504 paid to an individual described in subsection 
        (a)(2) thereof.

          ``planning, notification, and reporting requirements

    ``Sec. 502. (a) Not later than 90 days before first exercising any 
of the workforce authorities made available by this title, the 
Administrator shall submit to the appropriate committees of Congress a 
written plan, which shall include a description of--
            ``(1) each critical need of the Administration and the 
        criteria used in its identification;
            ``(2) the functions, approximate number, and classes or 
        other categories of positions or employees that address 
        critical needs and that would be eligible for each authority 
        proposed to be exercised under section 503, and how the 
        exercise of those authorities with respect to the eligible 
        positions or employees involved would address each critical 
        need identified under paragraph (1);
            ``(3) any critical need identified under paragraph (1) 
        which would not be addressed by the authorities made available 
        by section 503, and the reasons why those needs would not be so 
        addressed;
            ``(4) the specific criteria to be used in determining which 
        individuals may receive the benefits described in sections 504, 
        505, and 506 (including, in the case of sections 504 and 505, 
        the criteria for granting bonuses in the absence of a critical 
        need), and how the level of those benefits will be determined;
            ``(5) the safeguards or other measures that will be applied 
        to ensure that this title is carried out in a manner consistent 
        with merit system principles;
            ``(6) the means by which employees will be afforded the 
        notification required under subsection (b) and the third 
        sentence of subsection (c)(1), respectively; and
            ``(7) the methods that will be used to determine if the 
        authorities exercised under section 503 have successfully 
        addressed each critical need identified under paragraph (1).
    ``(b) Not later than 60 days before first exercising any of the 
workforce authorities made available by this title, the Administrator 
shall provide to all employees the Workforce Plan, along with any 
additional information which the Administrator considers appropriate.
    ``(c)(1) The Administrator may from time to time modify the 
Workforce Plan. Not later than 90 days before implementing any such 
modifications, the Administrator shall submit a description of the 
proposed modifications to the appropriate committees of Congress. Not 
later than 60 days before implementing any such modifications, the 
Administrator shall provide an appropriately modified plan to all 
employees of the Administration.
    ``(2) Any reference in this title or any other provision of law to 
the Workforce Plan shall be considered to include any modification made 
in accordance with this subsection.
    ``(d) None of the workforce authorities made available by section 
503 may be exercised in a manner inconsistent with the Workforce Plan.
    ``(e) Not later than 6 years after the date of enactment of this 
title, the Administrator shall submit to the appropriate committees of 
Congress an evaluation and analysis of the actions taken by the 
Administration under this title, including--
            ``(1) an evaluation, using the methods described in 
        subsection (a)(7), of whether the authorities exercised under 
        section 503 successfully addressed each critical need 
        identified under subsection (a)(1);
            ``(2) to the extent that they did not, an explanation of 
        the reasons why any critical need (apart from the ones under 
        subsection (a)(3)) was not successfully addressed; and
            ``(3) recommendations for how the Administration could 
        address any remaining critical need and could prevent those 
        that have been addressed from recurring.
    ``(f) Whenever the Administration submits its performance plan 
under section 1115 of title 31, United States Code, to the Office of 
Management and Budget for any year, the Administration shall at the 
same time submit a copy of such plan to the appropriate committees of 
Congress.

                        ``workforce authorities

    ``Sec. 503. (a) The workforce authorities made available by this 
title are as follows:
            ``(1) The authority to pay recruitment, redesignation, and 
        relocation bonuses, as provided by section 504.
            ``(2) The authority to pay retention bonuses, as provided 
        by section 505.
            ``(3) The authority to apply subchapter II of chapter 35 of 
        title 5, United States Code (relating to voluntary separation 
        incentive payments), as added by section 1313(a)(1)(A) of the 
        Homeland Security Act of 2002 (Public Law 107-296), in 
        accordance with section 506.
            ``(4) The authority to make term appointments and to take 
        related personnel actions, as provided by section 507.
            ``(5) The authority to fix rates of basic pay for critical 
        positions, as provided by section 508.
            ``(6) The authority to extend intergovernmental personnel 
        act assignments, as provided by section 509.
    ``(b) No authority under this title may be exercised with respect 
to any officer who is appointed by the President, by and with the 
advice and consent of the Senate.
    ``(c) Unless specifically stated otherwise, all authorities 
provided under this title are subject to section 5307 of title 5, 
United States Code. For purposes of applying such section 5307, cash 
payments made under authority of this title shall be treated in the 
same way as if they had instead been made under the corresponding 
provisions of such title 5 (if any).

          ``recruitment, redesignation, and relocation bonuses

    ``Sec. 504. (a) Notwithstanding section 5753 of title 5, United 
States Code, the Administrator may pay a bonus to an individual, in 
accordance with the Workforce Plan and subject to the limitations in 
this section, if the Administrator determines that the Administration 
would be likely, in the absence of a bonus, to encounter difficulty in 
filling a position, and if the individual--
            ``(1) is newly appointed as an employee of the Federal 
        Government;
            ``(2) is currently employed by the Federal Government and 
        is newly appointed to another position in the same geographic 
        area; or
            ``(3) is currently employed by the Federal Government and 
        must relocate to a different geographic area to accept a 
        position with the Administration.
    ``(b) If the position is described as addressing a critical need in 
the Workforce Plan pursuant to section 502(a)(2), the amount of a bonus 
may not exceed--
            ``(1) 50 percent of the employee's annual rate of basic pay 
        (including comparability payments under sections 5304-5304a of 
        title 5, United States Code) as of the beginning of the service 
        period multiplied by the service period specified pursuant to 
        subsection (d)(1)(A); or
            ``(2) 100 percent of the employee's annual rate of basic 
        pay (including comparability payments under sections 5304-5304a 
        of title 5, United States Code) as of the beginning of the 
        service period.
    ``(c) If the position is not described as addressing a critical 
need in the Workforce Plan pursuant to section 502(a)(2), the amount of 
a bonus may not exceed--
            ``(1) 25 percent of the employee's annual rate of basic pay 
        (including comparability payments under sections 5304-5304a of 
        title 5, United States Code) as of the beginning of the service 
        period multiplied by the service period specified pursuant to 
        subsection (d)(1)(A); or
            ``(2) 100 percent of the employee's annual rate of basic 
        pay (including comparability payments under sections 5304-5304a 
        of title 5, United States Code) as of the beginning of the 
        service period.
    ``(d)(1) Payment of a bonus under this section shall be contingent 
upon the individual entering into a service agreement with the 
Administration. The service agreement shall, at a minimum, set forth--
            ``(A) the required service period;
            ``(B) the method of payment, including a payment schedule; 
        the method of payment may include a lump-sum payment, 
        installment payments, or a combination thereof;
            ``(C) the amount of the bonus and the basis for calculating 
        such amount; and
            ``(D) the conditions under which the agreement may be 
        terminated before the agreed-upon service period has been 
        completed, and the effect of the termination.
    ``(2) For purposes of determinations under subsections (b)(1) and 
(c)(1), the employee's service period shall be expressed as the number 
equal to the full years and twelfth parts thereof, rounding the 
fractional part of a month to the nearest twelfth part of a year. The 
service period may not be less than 6 months and may not exceed 4 
years.
    ``(3) A bonus under this section may not be considered to be part 
of the basic pay of an employee.
    ``(e) Before paying a bonus under this section, the Administration 
shall establish a plan for paying recruitment, redesignation, and 
relocation bonuses, subject to approval by the Office of Personnel 
Management.
    ``(f) The Administrator shall submit to the appropriate committees 
of Congress, not later than February 28 of each year, a summary of all 
bonuses paid under subsections (b) and (c) during the previous calendar 
year. Such summary shall include the number of bonuses paid, the total 
amount of bonuses paid, and the average percentage used in calculating 
the total average bonus amount, under each such subsection.

                          ``retention bonuses

    ``Sec. 505. (a) Notwithstanding section 5754 of title 5, United 
States Code, the Administrator may pay a bonus to an employee, in 
accordance with the Workforce Plan and subject to the limitations in 
this section, if the Administrator determines that--
            ``(1) the unusually high or unique qualifications of the 
        employee or a special need of the Administration for the 
        employee's services makes it essential to retain the employee; 
        and
            ``(2) the employee would be likely to leave in the absence 
        of a retention bonus.
    ``(b) If the position is described as addressing a critical need in 
the Workforce Plan pursuant to section 502(a)(2), the amount of a bonus 
may not exceed 50 percent of the employee's annual rate of basic pay 
(including comparability payments under sections 5304-5304a of title 5, 
United States Code).
    ``(c) If the position is not described as addressing a critical 
need in the Workforce Plan pursuant to section 502(a)(2), the amount of 
a bonus may not exceed 25 percent of the employee's annual rate of 
basic pay (including comparability payments under sections 5304-5304a 
of title 5, United States Code).
    ``(d)(1) Payment of a bonus under this section shall be contingent 
upon the employee entering into a service agreement with the 
Administration. The service agreement shall, at a minimum, set forth--
            ``(A) the required service period;
            ``(B) the method of payment, including a payment schedule; 
        the method of payment may include a lump-sum payment, 
        installment payments, or a combination thereof;
            ``(C) the amount of the bonus and the basis for calculating 
        such amount; and
            ``(D) the conditions under which the agreement may be 
        terminated before the agreed-upon service period has been 
        completed, and the effect of the termination.
    ``(2) The employee's service period shall be expressed as the 
number equal to the full years and twelfth parts thereof, rounding the 
fractional part of a month to the nearest twelfth part of a year. The 
service period may not be less than 6 months and may not exceed 4 
years.
    ``(3) Notwithstanding paragraph (1), a service agreement is not 
required if the Administration pays a bonus in biweekly installments 
and sets the installment payment at the full bonus percentage rate 
established for the employee with no portion of the bonus deferred. In 
this case, the Administration shall inform the employee in writing of 
any decision to change the retention bonus payments. The employee shall 
continue to accrue entitlement to the retention bonus through the end 
of the pay period in which such written notice is provided.
    ``(e) A bonus under this section may not be considered to be part 
of the basic pay of an employee.
    ``(f) An employee is not entitled to a retention bonus under this 
section during a service period previously established for that 
employee under section 5753 of title 5, United States Code, or under 
section 504.
    ``(g) Before paying a bonus under this section, the Administration 
shall establish a plan for paying retention bonuses, subject to 
approval by the Office of Personnel Management.
    ``(h) The Administrator shall submit to the appropriate committees 
of Congress, not later than February 28 of each year, a summary of all 
bonuses paid under subsections (b) and (c) during the previous calendar 
year. Such summary shall include the number of bonuses paid, the total 
amount of bonuses paid, and the average percentage used in calculating 
the total average bonus amount, under each such subsection.

               ``voluntary separation incentive payments

    ``Sec. 506. (a) In applying subchapter II of chapter 35 of title 5, 
United States Code, the Administrator may provide for voluntary 
separation incentive payments in excess of the dollar-amount limitation 
that would otherwise apply under section 3523(b)(3)(B) of such title, 
subject to subsection (b).
    ``(b) Voluntary separation incentive payments described in 
subsection (a)--
            ``(1) may not exceed 50 percent of the annual rate of basic 
        pay of the employee receiving such payments (computed 
        disregarding any comparability payments under sections 5304-
        5304a of title 5, United States Code);
            ``(2) may not, in any calendar year, be made to more than--
                    ``(A) 10 employees; or
                    ``(B) such greater number of employees as the 
                Administrator may, with the approval of the Office of 
                Management and Budget, establish in lieu of the number 
                specified in subparagraph (A) following notification to 
                the appropriate committees of Congress;
            ``(3) may not be made to an employee if the employee has 
        within the last 12 months received, or if the employee is then 
        receiving, a bonus or allowance under section 5753 or 5754 of 
        title 5, United States Code, or under section 504 or 505; and
            ``(4) may be made only if the position in which the 
        employee is serving addresses a critical need identified in the 
        Workforce Plan pursuant to section 502(a)(2).
    ``(c)(1) The proposed use of workforce authorities in this section 
shall be included in the plan required by section 3522 of title 5, 
United States Code.
    ``(2) Whenever the Office of Personnel Management approves the 
Administration's plan required in such section 3522, the Administration 
shall submit a copy of the approved plan to the appropriate committees 
of Congress within 15 days after the date on which it is so approved.

                          ``term appointments

    ``Sec. 507. (a) The Administrator may authorize term appointments 
within the Administration made under authority of subchapter I of 
chapter 33 of title 5, United States Code, for a period of not less 
than 1 year and not more than 6 years.
    ``(b) Notwithstanding chapter 33 of title 5, United States Code, or 
any other provision of law relating to the examination, certification, 
and appointment of individuals in the competitive service, the 
Administrator may convert an employee serving under a term appointment 
to a permanent appointment in the competitive service within the 
Administration without further competition if--
            ``(1) such individual was appointed under open, competitive 
        examination pursuant to provisions of subchapter I of chapter 
        33 of title 5, United States Code, to the term position;
            ``(2) the announcement for the term appointment from which 
        the conversion is made stated that there was potential for 
        subsequent conversion to a career-conditional or career 
        appointment;
            ``(3) the employee has completed at least 2 years of 
        current continuous service under a term appointment in the 
        competitive service;
            ``(4) the employee's performance under such term 
        appointment was at least fully successful or equivalent; and
            ``(5) the position to which such employee is being 
        converted under this section is in the same occupational 
        series, is in the same geographic location, and provides no 
        greater promotion potential than the term position for which 
        the competitive examination was conducted.
    ``(c) Notwithstanding chapter 33 of title 5, United States Code, or 
any other provision of law relating to the examination, certification, 
and appointment of individuals in the competitive service, the 
Administrator may convert an employee serving under a term appointment 
to a permanent appointment in the competitive service within the 
Administration through internal competitive promotion procedures if the 
conditions under paragraphs (1) through (4) of subsection (b) are met.
    ``(d) An employee converted under this section becomes a career-
conditional employee, unless the employee has otherwise completed the 
service requirements for career tenure.
    ``(e) An employee converted to career or career-conditional 
employment under this section acquires competitive status upon 
conversion.
    ``(f) Not later than February 28 of each year, the Administrator 
shall submit to the appropriate committees of Congress--
            ``(1) the total number of term appointments converted 
        during the previous calendar year; and
            ``(2) of that total number, the number of conversions that 
        were made to address a critical need described in the Workforce 
        Plan pursuant to section 502(a)(2).

                 ``pay authority for critical positions

    ``Sec. 508. (a) For the purpose of this section, the term 
`position' means--
            ``(1) a position to which chapter 51 of title 5, United 
        States Code, applies, including a position in the Senior 
        Executive Service;
            ``(2) a position under the Executive Schedule under 
        sections 5312-5317 of title 5, United States Code;
            ``(3) a position established under section 3104 of title 5, 
        United States Code; or
            ``(4) a senior-level position to which section 5376(a)(1) 
        of title 5, United States Code, applies.
    ``(b) Authority under this section--
            ``(1) may be exercised only with respect to a position 
        which is described as addressing a critical need in the 
        Workforce Plan pursuant to section 502(a)(2), and which 
        requires expertise of an extremely high level in a scientific, 
        technical, professional, or administrative field;
            ``(2) may be exercised only to the extent necessary to 
        recruit or retain an individual exceptionally well qualified 
        for the position; and
            ``(3) may be exercised only in retaining employees of the 
        Administration or in appointing individuals who were not 
        employees of another Federal agency as defined by section 
        5102(a)(1) of title 5, United States Code.
    ``(c)(1) Notwithstanding section 5377 of title 5, United States 
Code, the Administrator may fix the rate of basic pay for a position in 
the Administration in accordance with this section. The Administrator 
may not delegate this authority.
    ``(2) The number of positions with pay fixed under this section may 
not exceed 10 at any time.
    ``(d)(1) The rate of basic pay fixed under this section may not be 
less than the rate of basic pay (including any comparability payments) 
which would otherwise be payable for the position involved if this 
section had never been enacted.
    ``(2) The annual rate of basic pay fixed under this section may not 
exceed the per annum rate of salary payable under section 104 of title 
3, United States Code.
    ``(3) Notwithstanding any provision of section 5307 of title 5, 
United States Code, in the case of an employee who, during any calendar 
year, is receiving pay at a rate fixed under this section, no 
allowance, differential, bonus, award, or similar cash payment may be 
paid to such employee if, or to the extent that, when added to basic 
pay paid or payable to such employee (for service performed in such 
calendar year as an employee in the executive branch or as an employee 
outside the executive branch to whom chapter 51 of such title 5 
applies), such payment would cause the total to exceed the per annum 
rate of salary which, as of the end of such calendar year, is payable 
under section 104 of title 3, United States Code.
    ``(e) The Administrator shall submit to the appropriate committees 
of Congress, not later than February 28 of each year, the number of 
critical pay positions that were established and the number of critical 
pay positions that were disestablished during the previous calendar 
year.

   ``assignments under the intergovernmental personnel act mobility 
                                program

    ``Sec. 509. For purposes of applying the third sentence of section 
3372(a) of title 5, United States Code (relating to the authority of 
the head of a Federal agency to extend the period of an employee's 
assignment to or from a State or local government, institution of 
higher education, or other organization), the Administrator may, with 
the concurrence of the employee and the government or organization 
concerned, take any action which would be allowable if such sentence 
had been amended by striking `two' and inserting `four'.

               ``enhanced demonstration project authority

    ``Sec. 510. When conducting a demonstration project at the 
Administration, section 4703(d)(1)(A) of title 5, United States Code, 
may be applied by substituting `such numbers of individuals as 
determined by the Administrator' for `not more than 5,000 individuals'.

                             ``termination

    ``Sec. 511. The workforce authorities under section 503 shall 
terminate as of October 1, 2009, except that nothing in this section 
shall--
            ``(1) affect any bonus payment under sections 504 or 505 
        agreed to by the employee and the Administration before the 
        termination date;
            ``(2) prevent an employee from being allowed to complete a 
        term appointment made under section 507(a) if the appointment 
        was made before the termination date;
            ``(3) prevent the Administrator from converting any term 
        employees to career or career-conditional status under section 
        507 if the term appointment was made before the termination 
        date;
            ``(4) prevent an employee from continuing to receive a rate 
        of basic pay fixed under section 508 before the termination 
        date; or
            ``(5) prevent an employee assigned under section 3372 of 
        title 5, United States Code, from completing the extended term 
        made under section 509 if the extension was made before the 
        termination date.''.
                                 <all>