[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.''.
                                 ______