109 HR 5112 RH: Executive Branch Reform Act of 2006 U.S. House of Representatives 2006-04-27 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

IB Union Calendar No. 249 109th CONGRESS 2d Session H. R. 5112 [Report No. 109-445] IN THE HOUSE OF REPRESENTATIVES April 6, 2006 Mr. Tom Davis of Virginia (for himself, Mr. Waxman, Mr. Shays, Mr. Lantos, Mr. Gutknecht, Mr. Owens, Mr. Platts, Mr. Towns, Mrs. Miller of Michigan, Mrs. Maloney, Mr. Issa, Mr. Cummings, Mr. Dent, Mr. Kucinich, Ms. Foxx, Mr. Clay, Ms. Watson, Mr. Lynch, Mr. Van Hollen, Mr. Higgins, Ms. Norton, Mr. Kanjorski, and Mr. Davis of Illinois) introduced the following bill; which was referred to the Committee on Government Reform April 27, 2006 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed A BILL To provide for reform in the operations of the executive branch.

1.

Short title

This Act may be cited as the Executive Branch Reform Act of 2006.

2.

Requirements relating to significant contacts

(a)

In general

The Ethics in Government Act of 1978 (5 U.S.C. App. 4) is amended by adding at the end the following new title: . (b)

Effective date

(1)

In general

Title VI of the Ethics in Government Act of 1978, as added by this section, takes effect 1 year after the date of the enactment of this Act, except as provided in paragraph (2). (2)

Initial regulations

The initial regulations required by section 602 of that Act shall be promulgated— (A)in draft form, not later than 270 days after the date of the enactment of this Act; and (B)in final form, not later than 1 year after the date of the enactment of this Act.

3.

Requirements relating to stopping the revolving door

The Ethics in Government Act of 1978 (5 U.S.C. App. 4) is amended by adding at the end the following new title: .

4.

Additional provisions relating to procurement officials

(a)

Elimination of loopholes that allow former Federal officials to accept compensation from contractors or related entities

Section 27(d) of the Office of Federal Procurement Policy Act (41 U.S.C. 423(d)) is amended— (1)in paragraph (1)— (A)by striking or consultant and inserting consultant, lawyer, or lobbyist; (B)by striking one year and inserting two years; and (C)in subparagraph (C), by striking personally made for the Federal agency— and inserting participated personally and substantially in—; and (2)by amending paragraph (2) to read as follows: (2)Paragraph (1) shall not prohibit a former official of a Federal agency from accepting compensation from any division or affiliate of a contractor that does not produce the same or similar products or services as the entity of the contractor that is responsible for the contract referred to in subparagraph (A), (B), or (C) of such paragraph if the agency’s designated ethics officer determines that— (A)the offer of compensation is not a reward for any action described in paragraph (1); and (B)acceptance of the compensation is appropriate and will not affect the integrity of the procurement process.. (b)

Requirement for Federal Procurement Officers to Disclose Job Offers Made to Relatives

Section 27(c)(1) of such Act (41 U.S.C. 423(c)(1)) is amended by inserting after that official the following: or for a relative of that official (as defined in section 3110 of title 5, United States Code),. (c)

Requirement on award of government contracts to former employers

Section 27 of such Act (41 U.S.C. 423) is amended by adding at the end the following new subsection: (i)

Prohibition on involvement by certain former contractor employees in procurements

An employee of the Federal Government who is a former employee of a contractor with the Federal Government shall not be personally and substantially involved with any award of a contract to the employee’s former employer, or the administration of such a contract, for the two-year period beginning on the date on which the employee leaves the employment of the contractor.. (d)

Regulations

Section 27 of such Act (41 U.S.C. 423) is further amended by adding at the end of the following new subsection: (j)

Regulations

The Administrator, in consultation with the Director of the Office of Government Ethics, shall— (1)promulgate regulations to carry out and ensure the enforcement of this section; and (2)monitor and investigate individual and agency compliance with this section..

5.

Prohibition on unauthorized expenditure of funds for publicity or propaganda purposes

(a)

Prohibition

Chapter 13 of title 31, United States Code, is amended by adding at the end the following new section:

1355.

Prohibition on unauthorized expenditure of funds for publicity or propaganda purposes

An officer or employee of the United States Government may not make or authorize an expenditure or obligation of funds for publicity or propaganda purposes within the United States unless authorized by law.

. (b)

Clerical amendment

The table of sections for chapter 13 of such title is amended by adding at the end the following new item: 1355. Prohibition on unauthorized expenditure of funds for publicity or propaganda purposes..

6.

Requirement for disclosure of Federal sponsorship of all Federal advertising or other communication materials

(a)

Requirement

Each advertisement or other communication paid for by an Executive agency, either directly or through a contract awarded by the Executive agency, shall include a prominent notice informing the target audience that the advertisement or other communication is paid for by that Executive agency. (b)

Advertisement or other communication

In this section, the term advertisement or other communication includes— (1)an advertisement disseminated in any form, including print or by any electronic means; and (2)a communication by an individual in any form, including speech, print, or by any electronic means. (c)

Executive agency

In this section, the term Executive agency has the meaning provided in section 105 of title 5, United States Code.

7.

Elimination of pseudo classification

(a)

Reports on the proliferating use of pseudo classification designations

(1)

Report by Federal agencies

Not later than six months after the date of the enactment of this Act, each federal agency shall submit to the Archivist of the United States and the congressional committees described in subsection (d) a report describing the use of pseudo classification designations. (2)

Matters covered

Each such agency shall report on, at a minimum, the following: (A)The number of pseudoclassification designation policies used by the agency. (B)Any existing guidance, instruction, directive, or regulations regarding the agency's use of pseudo classification designations. (C)The number and level of experience and training of Federal agency, office, and contractor personnel authorized to make pseudo classification designations. (D)The cost of placing and maintaining information under each pseudo classification designation. (E)The extent to which information placed under pseudo classification designations has subsequently been released under section 552 of title 5, United States Code (popularly known as the Freedom of Information Act). (F)The extent to which pseudo classification designations have been used to withhold from the public information that is not authorized to be withheld by Federal statute, or by an Executive order relating to the classification of national security information. (G)The statutory provisions described in subsection (c). (3)

Report by the Archivist of the United States

Not later than 9 months after the date of the enactment of this Act, the Archivist of the United States shall issue to the congressional committees described in subsection (d) a report on the use of pseudo classification designations across the executive branch that is based on the information provided by agencies, as well as input from the Director of National Intelligence, Federal agencies, offices, and contractors. All federal agencies, offices, and contractors shall cooperate fully and promptly with all requests by the Archivist in the fulfillment of this paragraph. (4)

Notice and comment

The Archivist shall provide notice and an opportunity for public comment on the report. (b)

Elimination of pseudo classification designations

(1)

Regulations

Not later than 15 months after the date of the enactment of this Act, the Archivist of the United States shall promulgate regulations banning the use of pseudo classification designations. (2)

Standards for information control designations

If the Archivist determines that there is a need for some agencies to use information control designations to safeguard information prior to review for disclosure, beyond those designations established by statute or by an Executive Order relating to the classification of national security information, the regulations under paragraph (1) shall establish standards for the use of those designations by agencies. Such standards shall address, at a minimum, the following issues: (A)Standards for utilizing the information control designations in a manner that is narrowly tailored to maximize public access to information. (B)Procedures for providing specified Federal officials with authority to utilize the information control designations, including training and certification requirements. (C)Categories of information that may be assigned the information control designations. (D)The duration of the information control designations and the process by which they will be removed. (E)Procedures for identifying, marking, dating, and tracking information assigned the information control designations, including the identity of officials making the designations. (F)Specific limitations and prohibitions against using the information control designations. (G)Procedures for members of the public to challenge the use of the information control designations. (H)The manner in which the use of the information control designations relates to the procedures of each agency or office under section 552 of title 5, United States Code. (3)

Regulation to constitute sole authority

A regulation promulgated pursuant to this subsection shall constitute the sole authority by which Federal agencies, offices, or contractors are permitted to control information for the purposes of safeguarding information prior to review for disclosure, other than authority granted by Federal statute or by an Executive order relating to the classification of national security information. (c)

Review of statutory barriers to public access information

(1)

Review of statutes

As part of the report required under subsection (a)(3), the Archivist shall examine existing Federal statutes that allow Federal agencies, offices, or contractors to control, protect, or otherwise withhold information based on security concerns. (2)

Recommendations

The report shall make recommendations on potential changes to the Federal statutes examined under paragraph (1) that would improve public access to information governed by such statutes. (d)

Definitions

In this section: (1)The term congressional committees means the Committees on Government Reform, Judiciary, Homeland Security, and Appropriations of the House of Representatives and the Committees on Homeland Security and Governmental Affairs, Judiciary, and Appropriations of the Senate. (2)The term pseudo classification designations means information control designations, including sensitive but unclassified and for official use only, that are not defined by Federal statute, or by an Executive order relating to the classification of national security information, but that are used to manage, direct, or route Government information, or control the accessibility of Government information, regardless of its form or format.

8.

National security whistleblower rights

Chapter 23 of title 5, United States Code, is amended by adding after section 2303 the following new section:

2303a.

National security whistleblower rights

(a)

Prohibition of reprisals

In addition to any rights provided in Title VII of Public Law 105–272, section 2303 of title 5, United States Code, or any other law, an employee or applicant for employment of a covered agency may not be discharged, demoted, or otherwise discriminated against, including denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information, as a reprisal for disclosing covered information to an authorized Member of Congress or to an authorized official of an executive agency, the Department of Justice, or the Inspector General of the employee’s employing covered agency. (b)

Investigation of complaints

An employee or applicant for employment of a covered agency who believes he has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the Inspector General and head of the covered agency. The Inspector General shall investigate the complaint and, unless the Inspector General determines that the complaint is frivolous, submit a report of the findings of the investigation within 180 days to the employee or applicant for employment and the head of the covered agency. (c)

Remedy

(1)Within 210 days of the filing of the complaint, the head of the covered agency shall issue an order accepting or rejecting the complaint, or portions thereof, taking into consideration the report issued by the Inspector General under subsection (b), if any. If the head of the covered agency accepts the complaint, he shall implement corrective action to return the complainant, as nearly as possible, to the position he would have held had the reprisal not occurred, including voiding any directive or order denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information that constituted a reprisal, as well as providing back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages including attorney’s fees and costs. If the head of the covered agency rejects the complaint, he shall issue a report to the employee or applicant for employment detailing the reasons for the rejection. (2) (A)If the head of the covered agency, in the process of implementing corrective action under (c)(1), voids a directive or order denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information that constituted a reprisal, the head of the covered agency may re-initiate procedures to issue a directive or order denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information only if those re-initiated procedures are based exclusively on national security concerns and are unrelated to the actions constituting the original reprisal. (B)In any case in which the head of a covered agency re-initiates procedures under (2)(A), the head of the covered agency shall issue an unclassified report to its IG and authorized members of Congress (with a classified annex if necessary), detailing the circumstances of the agency’s re-initiated procedures and describing the manner in which those procedures are based exclusively on national security concerns and are unrelated to the actions constituting the original reprisal. The head of the covered agency shall also provide periodic updates to the IG and authorized members of Congress detailing any significant actions taken as a result of those procedures, and shall respond promptly to inquiries from authorized Members of Congress regarding the status of those procedures. (3)If the head of the covered agency has not accepted or rejected the complaint within 210 days of the filing of the complaint, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted his or her administrative remedies with respect to the complaint, and the complainant may bring an action at law or equity for de novo review to seek any relief described in (c)(1) in the appropriate district court of the United States, which shall have jurisdiction over such action without regard to the amount in controversy. A petition to review a final decision under this subsection shall be filed in the United States Court of Appeals for the Federal Circuit. (4)The complainant may obtain review of any order issued under this section in the appropriate district court of the United States or the United States Court of Appeals for the Federal Circuit. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5. A petition to review a final decision of a district court under this subsection shall be filed in the United States Court of Appeals for the Federal Circuit. (5) (A)If, in any action for damages or relief under subsections (c)(3) or (c)(4), an executive branch agency moves to withhold information from discovery based on a claim that disclosure would be inimical to national security by asserting the privilege commonly referred to as the “state secrets privilege,” and if the assertion of such privilege prevents the plaintiff from establishing an element in support of the plaintiff’s claim, the court shall resolve the disputed issue of fact or law in favor of the plaintiff, provided that an inspector general investigation under subsection (b) has resulted in substantial confirmation of that element, or those elements, of the plaintiff’s claim. (B)In any case in which an executive branch agency asserts the privilege commonly referred to as the “state secrets privilege,” whether or not an inspector general has conducted an investigation under subsection (b), the head of that agency shall, at the same time it asserts the privilege, issue a report to authorized Members of Congress, accompanied by a classified annex if necessary, describing the reasons for the assertion, explaining why the court hearing the matter does not have the ability to maintain the protection of classified information related to the assertion, detailing the steps the agency has taken to arrive at a mutually agreeable settlement with the employee or applicant for employment, setting forth the date on which the classified information at issue will be declassified, and providing all relevant information about the underlying substantive matter. (d)

Construction

Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) of this section or to modify or derogate from a right or remedy otherwise available to the employee or applicant for employment. (e)

Definitions

In this section: (1)The term “covered information,” including classified information, is information that an employee reasonably believes to provide direct and specific evidence of— (A)a violation of any law, rule, or regulation, or (B)gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. (2)The term “covered agency” means one of the following: (A)The Central Intelligence Agency. (B)The Defense Intelligence Agency. (C)The National Imagery and Mapping Agency. (D)The National Security Agency. (E)The Federal Bureau of Investigation. (F)The National Reconnaissance Office. (G)Any other Executive agency, or element or unit thereof, determined by the President under section 2302(a)(2)(C)(ii) of title 5, United States Code, to have as its principal function the conduct of foreign intelligence or counterintelligence activities. (3)The term “authorized member of Congress” means a member of the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the committees of the House of Representatives or the Senate that have oversight over the program about which the covered information is disclosed.

.

April 27, 2006 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed