[Congressional Record Volume 157, Number 82 (Wednesday, June 8, 2011)]
[Senate]
[Pages S3615-S3617]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. BINGAMAN (for himself and Ms. Murkowski):
S. 1160. A bill to improve the administration of the Department of
Energy, and for other purposes; to the Committee on Energy and Natural
Resources.
Mr. BINGAMAN. Mr. President, today I am introducing the Department of
Energy Administrative Improvement Act of 2011. The bill makes several
improvements to the way the Department of Energy, DOE, conducts its
business and in doing so is designed to give taxpayers a better return
on their investments in DOE programs. Senator Murkowski, who is the
ranking member of the Energy and Natural Resources Committee, is a
cosponsor of this bill. These provisions were taken from the energy
bill, S. 1462, reported out of the Energy and Natural Resources
Committee last Congress. The provisions in this bill were adopted
unanimously in the last Congress by members of the Committee as part of
our work on S. 1462. Let me briefly highlight the sections of this
bill.
Section 3 was taken from the recommendations of a 2009 report by the
National Academy of Public Administration, which reviewed the business
practices of the Department. Similar to the Department of Defense, it
requires DOE to submit a 5-year budget profile for its programs with
the DOE's annual budget submission to Congress. A 5-year estimate will
encourage the Department to think about long-term budget implications
of programs rather than on a year-to-year basis.
Section 4 replaces a provision enacted into law in the section 1007
of the Energy Policy Act of 2005, 42 U.S.C. 7256(g), relating to Other
Transactions Authority. Section 1007 was based on
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the similar authority applying to the Department of Defense. Section 4
is a fresh re-write of the authority so it is organic within the
Department of Energy Organization Act and not the Department of
Defense's authorities. The language is largely the same in content as
that in section 1007 of the Energy Policy Act of 2005. The DOE went
through an extensive comment period in developing rules for the use of
this authority after it was enacted into law in 2005 to ensure
transparency in its development and use. This section still contains
reporting requirements to Congress on the use of this authority to
ensure effective oversight. The Advanced Research Projects Agency--
Energy has used this authority to initiate projects with energy
companies that were not traditional government contractors and I
believe this is a sound addition to the contracting authorities
available to the Department.
Section 5 permits the DOE to designate and protect proprietary data
for a period of 5 years for transactions entered into by the
Department. Section 3001 of Energy Policy Act of 1992, 42 U.S.C. 13541,
contained various provisions to protect results from industry
partnerships with the Department of Energy. The 1992 data protection
provision was carried forward implicitly in section 1005 of the Energy
Policy Act of 2005, 42 U.S.C. 16395. This section gives the Secretary
of Energy explicit authority to protect proprietary data in order to
promote commercialization of new technology arising from the public-
private partnerships in such areas as energy storage, smart grid and
advanced nuclear technologies.
Section 6 gives the Department direct hire authority for a period of
two years consistent with merit principles and public notice. Similar
authority, known as excepted personnel authority, originally was
available to the DOE's predecessor agency, the Atomic Energy
Commission. That authority transferred to the Nuclear Regulatory
Commission, NRC, but not the DOE. Interestingly, the NRC with its large
scientific and engineering workforce has been rated as one of the best
places to work in the federal government. While flexible personnel
authorities are not singularly determinative of agency performance, I
believe this pilot program will be an important tool for the Department
to attract the best and brightest engineers, scientists and specialized
technical personnel to work on its wide array of missions.
Section 7 gives the DOE critical pay authority to hire up to 40
highly skilled individuals for key or critical mission positions at the
Department, for a period of up to 4 years. This will enable DOE to
attract highly qualified individuals from industry and academia for
positions within the Department typical of its complicated science and
engineering missions.
Section 8 gives the DOE the authority to rehire retired DOE employees
for mission-critical positions without impacting their retirement
annuity. Many Department employees served in excess of 20 or 30 years
in programmatic positions managing large, technically complicated
projects. This authority will enable continuity of knowledge transfer
as newer employees are hired.
Section 9 updates the list of DOE National Laboratories in section 2
of the Energy Policy Act of 2005, 42 U.S.C. 15801(3) to reflect the
name change of the Stanford Linear Accelerator Center to ``SLAC
National Accelerator Laboratory''.
The Department of Energy has one of the most technical and
complicated missions in the Federal Government, which includes managing
our Nation's nuclear stockpile, basic and applied energy research,
environmental cleanup of former cold war nuclear weapons production
sites, and finally the management of large contracts spanning decades.
I hope that these provisions will be helpful to the Department to
efficiently conduct its missions.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1160
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 ``Department of Energy
Administrative Improvement Act of 2011''.
SEC. 2. DEFINITION OF SECRETARY.
In this Act, the term ``Secretary'' means the Secretary of
Energy.
SEC. 3. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.
(a) In General.--Part C of title VI of the Department of
Energy Organization Act (42 U.S.C. 7251 et seq.) is amended
by adding at the end the following:
``SEC. 664. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.
``(a) In General.--At or about the time the budget of the
President is submitted to Congress for each year under
section 1105(a) of title 31, United States Code, the
Secretary shall submit to Congress a future-years Department
of Energy program (including associated annexes) reflecting
the estimated expenditures and proposed appropriations
included in the budget.
``(b) Fiscal Year.--Any future-years Department of Energy
program submitted under subsection (a) shall cover--
``(1) the fiscal year with respect to which the budget is
submitted; and
``(2) at least the 4 succeeding fiscal years.
``(c) Consistent Amounts.--
``(1) In general.--The Secretary shall ensure that amounts
described in paragraph (2)(A) for any fiscal year are
consistent with amounts described in paragraph (2)(B) for
that fiscal year.
``(2) Amounts.--Amounts referred to in paragraph (1) are
the following:
``(A) The amounts specified in program and budget
information submitted to Congress by the Secretary in support
of expenditure estimates and proposed appropriations in the
budget submitted to Congress by the President under section
1105(a) of title 31, United States Code, for any fiscal year,
as indicated in the future-years Department of Energy program
submitted pursuant to subsection (a).
``(B) The total amounts of estimated expenditures and
proposed appropriations necessary to support the programs,
projects, and activities of the Department of Energy included
pursuant to section 1105(a)(5) of title 31, United States
Code, in the budget submitted to Congress under that section
for any fiscal year.
``(d) Management Contingencies.--Subject to subsection (c),
nothing in this section prohibit the inclusion in the future-
years Department of Energy programs of amounts for management
contingencies.''.
(b) Conforming Amendment.--The table of contents in the
first section of the Department of Energy Organization Act
(42 U.S.C. 7101) is amended by adding at the end of the items
relating to part C of title VI the following:
``Sec. 664. Future-years Department of Energy program.''.
SEC. 4. OTHER TRANSACTIONS AUTHORITY.
(a) In General.--Section 646 of the Department of Energy
Organization Act (42 U.S.C. 7256) is amended by striking
subsection (g) and inserting the following:
``(g) Authority to Enter Into Other Transactions.--
``(1) In general.--In addition to any other authority
granted to the Secretary to enter into procurement contracts,
leases, cooperative agreements, grants, and certain
arrangements, the Secretary may enter into other transactions
with public agencies, private organizations, or other persons
on such terms as the Secretary considers appropriate to
further functions vested in the Secretary, including
research, development, or demonstration projects.
``(2) Advance payments.--Notwithstanding any other
provision of law, the Secretary may exercise authority
provided under paragraph (1) without regard to section 3324
of title 31, United States Code.
``(3) Relationship to other law.--The authority of the
Secretary under paragraph (1) shall not be subject to--
``(A) section 9 of the Federal Nonnuclear Energy Research
and Development Act of 1974 (42 U.S.C. 5908); or
``(B) section 152 of the Atomic Energy Act of 1954 (42
U.S.C. 2182).
``(4) Protection of certain information from disclosure.--
``(A) In general.--Notwithstanding any other provision of
law, disclosure of information described in subparagraph (B)
is not required, and may not be compelled, under section 552
of title 5, United States Code, during the 5-year period
beginning on the date on which the information is received by
the Department.
``(B) Award information.--The information described in this
subparagraph is information in the records of the Department
that--
``(i) was submitted--
``(I) to the Department as part of a competitive or
noncompetitive process with the potential to result in an
award to the person submitting the information; and
``(II) in conjunction with a transaction entered into by
the Secretary pursuant to paragraph (1); and
``(ii) is--
``(I) a proposal, proposal abstract, and supporting
documents;
``(II) a business plan submitted on a confidential basis;
or
``(III) technical information submitted on a confidential
basis.
``(5) Requirements.--
``(A) Selection procedures.--In entering into transactions
under paragraph (1), the
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Secretary shall use such competitive, merit-based selection
procedures as the Secretary determines in writing to be
practicable.
``(B) Determination.--Before entering into a transaction
under paragraph (1), the Secretary shall determine in writing
that the use of a standard contract, grant, or cooperative
agreement for the project is not feasible or appropriate.
``(C) Cost sharing.--A transaction under paragraph (1)
shall be subject to cost sharing in accordance with section
988 of the Energy Policy Act of 2005 (42 U.S.C. 16352).
``(D) Limitation on delegation.--The authority of the
Secretary under this subsection may be delegated only to an
officer of the Department who is appointed by the President
by and with the advice and consent of the Senate and may not
be redelegated to any other person.
``(6) Annual reports.--Not later than 1 year after the date
of enactment of the Department of Energy Administrative
Improvement Act of 2011 and annually thereafter, the
Secretary shall submit to Congress an annual report on the
transactions entered into by the Secretary pursuant to the
authorities provided under this subsection.
``(7) Report.--
``(A) Definition of nontraditional government contractor.--
In this paragraph, the term `nontraditional Government
contractor' has the meaning given the term `nontraditional
defense contractor' in section 845(f) of the National Defense
Authorization Act for Fiscal Year 1994 (Public Law 103-160;
10 U.S.C. 2371 note).
``(B) Report.--Not later than 2 years after the date of
enactment of this subparagraph, and 2 years thereafter, the
Comptroller General of the United States shall submit to
Congress a report describing--
``(i) the use by the Department of authorities under this
section, including the ability to attract nontraditional
Government contractors; and
``(ii) whether additional safeguards are necessary to carry
out the authorities.''.
(b) Implementation.--
(1) In general.--The final rule of the Department of Energy
entitled ``Assistance Regulations'' (71 Fed. Reg. 27158 (May
9, 2006)) shall be applicable to transactions under section
646 of the Department of Energy Organization Act (42 U.S.C.
7256) (as amended by subsection (a)).
(2) Regulations.--The Secretary may revise, supplement, or
replace such regulations as the Secretary determines
necessary to implement the amendment made by subsection (a).
SEC. 5. PROTECTION OF RESULTS.
(a) In General.--Subject to subsection (b) and
notwithstanding any other provision of law, during a period
of not more than 5 years after the development of information
in any transaction authorized to be entered into by the
Department of Energy, the Secretary may provide appropriate
protections against the dissemination of the information,
including exemption from subchapter II of chapter 5 of title
5, United States Code.
(b) Applicable Information.--This section applies to
information that--
(1) results from a transaction entered into by the
Secretary pursuant to this title or an amendment made by this
title; and
(2) is of a character that would be protected from
disclosure under section 552(b)(4) of title 5, United States
Code, if the information had been obtained from a person
other than an agent or employee of the Federal Government.
SEC. 6. DIRECT HIRE AUTHORITY.
(a) In General.--Notwithstanding sections 3304 and 3309
through 3318 of title 5, United States Code, the Secretary
may, upon a determination that there is a severe shortage of
candidates or a critical hiring need for particular
positions, recruit and directly appoint highly qualified
scientists, engineers, or critical technical personnel into
the competitive service.
(b) Exception.--The authority granted under subsection (a)
shall not apply to positions in the excepted service or the
Senior Executive Service.
(c) Requirements.--In exercising the authority granted
under subsection (a), the Secretary shall ensure that any
action taken by the Secretary--
(1) is consistent with the merit principles of section 2301
of title 5, United States Code; and
(2) complies with the public notice requirements of section
3327 of title 5, United States Code.
(d) Termination of Effectiveness.--The authority provided
by this section terminates effective on the date that is 2
years after the date of enactment of this Act.
SEC. 7. CRITICAL PAY AUTHORITY.
(a) In General.--Notwithstanding section 5377 of title 5,
United States Code, and without regard to the provisions of
that title governing appointments in the competitive service
or the Senior Executive Service and chapters 51 and 53 of
that title (relating to classification and pay rates), the
Secretary may establish, fix the compensation of, and appoint
individuals to critical positions needed to carry out the
functions of the Department of Energy, if the Secretary
certifies that--
(1) the positions--
(A) require expertise of an extremely high level in a
scientific or technical field; and
(B) the Department of Energy would not successfully
accomplish an important mission without such an individual;
and
(2) exercise of the authority is necessary to recruit an
individual exceptionally well qualified for the position.
(b) Limitations.--The authority granted under subsection
(a) shall be subject to the following conditions:
(1) The number of critical positions authorized by
subsection (a) may not exceed 40 at any 1 time in the
Department of Energy.
(2) The term of an appointment under subsection (a) may not
exceed 4 years.
(3) An individual appointed under subsection (a) may not
have been a Department of Energy employee within the 2 years
prior to the date of appointment.
(4) Total annual compensation for any individual appointed
under subsection (a) may not exceed the highest total annual
compensation payable at the rate determined under section 104
of title 3, United States Code.
(5) An individual appointed under subsection (a) may not be
considered to be an employee for purposes of subchapter II of
chapter 75 of title 5, United States Code.
(c) Notification.--Each year, the Secretary shall submit to
Congress a notification that lists each individual appointed
under this section.
SEC. 8. REEMPLOYMENT OF CIVILIAN RETIREES.
(a) In General.--Notwithstanding part 553 of title 5, Code
of Federal Regulations (relating to reemployment of civilian
retirees to meet exceptional employment needs), or successor
regulations, the Secretary may approve the reemployment of an
individual to a particular position without reduction or
termination of annuity if the hiring of the individual is
necessary to carry out a critical function of the Department
of Energy for which the Department has encountered
exceptional difficulty in recruiting or retaining suitably
qualified candidates.
(b) Limitations.--An annuitant hired with full salary and
annuities under the authority granted by subsection (a)--
(1) shall not be considered an employee for purposes of
subchapter III of chapter 83 and chapter 84 of title 5,
United States Code;
(2) may not elect to have retirement contributions withheld
from the pay of the annuitant;
(3) may not use any employment under this section as a
basis for a supplemental or recomputed annuity; and
(4) may not participate in the Thrift Savings Plan under
subchapter III of chapter 84 of title 5, United States Code.
(c) Limitation on Term.--The term of employment of any
individual hired under subsection (a) may not exceed an
initial term of 2 years, with an additional 2-year
appointment under exceptional circumstances.
SEC. 9. DEFINITION OF NATIONAL LABORATORY.
Section 2(3) of the Energy Policy Act of 2005 (42 U.S.C.
15801(3)) is amended by striking subparagraph (P) and
inserting the following:
``(P) SLAC National Accelerator Laboratory.''.
______