[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2572-S2575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 389. Mr. LANKFORD submitted an amendment intended to be proposed 
by him to the bill S. 2226, to authorize appropriations for fiscal year 
2024 for military activities of the Department

[[Page S2573]]

of Defense, for military construction, and for defense activities of 
the Department of Energy, to prescribe military personnel strengths for 
such fiscal year, and for other purposes; which was ordered to lie on 
the table; as follows:

       At the appropriate place, insert the following:

     SEC. ___. USE OF OFFICIAL TIME.

       (a) Definitions.--In this section:
       (1) Agency.--
       (A) In general.--Except as provided in subparagraph (B), 
     the term ``agency'' means an agency, as that term is defined 
     in section 7103(a) of title 5, United States Code, that is in 
     the executive branch of the Federal Government.
       (B) Exception.--For the purposes of subsection (c), the 
     term ``agency''--
       (i) has the meaning given the term ``Executive agency'' in 
     section 105 of title 5, United States Code; and
       (ii) does not include the Government Accountability Office.
       (2) Agency business.--The term ``agency business''--
       (A) means work performed by an employee on behalf of an 
     agency; and
       (B) does not include work performed during official time.
       (3) Bargaining unit.--The term ``bargaining unit'' means a 
     group of employees represented by an exclusive representative 
     in an appropriate unit for collective bargaining under 
     subchapter II of chapter 71 of title 5, United States Code.
       (4) Director.--The term ``Director'' means the Director of 
     the Office of Personnel Management.
       (5) Discounted use of government property.--The term 
     ``discounted use of Government property'' means a lesser 
     charge to use Federal Government property (as compared with 
     the value of the use of that property), as determined by--
       (A) the Administrator of General Services, where 
     applicable; or
       (B) comparing the charged use with the generally prevailing 
     commercial cost of using that property.
       (6) Employee.--The term ``employee'' has the meaning given 
     the term in section 7103(a) of title 5, United States Code, 
     with respect to an agency.
       (7) Grievance; labor organization.--The terms ``grievance'' 
     and ``labor organization'' have the meanings given the terms 
     in section 7103(a) of title 5, United States Code.
       (8) Official time.--The term ``official time'' means 
     official time authorized for an employee under section 7131 
     of title 5, United States Code.
       (9) Paid time.--The term ``paid time'', with respect to an 
     employee--
       (A) means time for which the employee is paid by the 
     employing agency of the employee;
       (B) includes--
       (i) duty time during which the employee performs agency 
     business; and
       (ii) official time; and
       (C) does not include--
       (i) time spent on paid or unpaid leave; or
       (ii) off-duty hours of the employee.
       (10) Union time rate.--The term ``union time rate'' means, 
     with respect to a bargaining unit and a fiscal year, the 
     quotient obtained by dividing--
       (A) the total number of hours in that fiscal year during 
     which employees in the bargaining unit performed duties under 
     official time while in a duty status; by
       (B) the total number of employees in the bargaining unit.
       (b) Standards.--
       (1) In general.--
       (A) Requirement for authorization.--No agency may agree to 
     authorize any amount of official time under section 7131(d) 
     of title 5, United States Code, unless that time is 
     reasonable, necessary, and in the public interest.
       (B) Consideration.--For the purposes of subparagraph (A), 
     an agreement authorizing official time under section 7131(d) 
     of title 5, United States Code, that would cause the union 
     time rate in a bargaining unit to exceed 1 hour per employee 
     shall, taking into account the size of the bargaining unit, 
     and the amount of official time anticipated to be authorized 
     in the applicable fiscal year under subsections (a) and (c) 
     of such section 7131, ordinarily not be considered to--
       (i) be reasonable, necessary, and in the public interest; 
     or
       (ii) satisfy the goal described in section 7101(b) of title 
     5, United States Code.
       (C) Agency requirement.--The head of each agency shall--
       (i) commit the time and resources necessary to strive for a 
     negotiated union time rate of not greater than 1; and
       (ii) fulfill the obligation of the agency to bargain in 
     good faith.
       (2) Report required.--
       (A) In general.--If the head of an agency agrees to 
     authorize official time under section 7131(d) of title 5, 
     United States Code, in an amount such that the authorization 
     would cause the union time rate in a bargaining unit to 
     exceed 1 hour per employee (or proposes to the Federal 
     Service Impasses Panel or an arbitrator engaging in interest 
     arbitration an amount that would cause the union time rate in 
     a bargaining unit to exceed 1 hour per employee), the agency 
     head shall, not later than 15 days after the date on which 
     that agreement or proposal is authorized or proposed, as 
     applicable, submit to the President, through the Director, a 
     report regarding the agreement or proposal.
       (B) Contents.--A report submitted by the head of an agency 
     under subparagraph (A) shall--
       (i) explain why the authorized or proposed expenditures to 
     which the report relates are reasonable, necessary, and in 
     the public interest;
       (ii) describe the benefit, if any, that the public will 
     receive from the activities conducted by employees during the 
     official time to which the report relates; and
       (iii) identify the total cost to the agency of the official 
     time to which the report relates.
       (C) Non-delegation.--The head of an agency may not delegate 
     to any other employee or officer the requirement to submit a 
     report under subparagraph (A).
       (D) Notification.--The head of each agency shall require 
     relevant subordinate officials in the agency to inform the 
     agency head 5 business days before the date on which the 
     agency presents or accepts a proposal that would result in a 
     union time rate of greater than 1 for any bargaining unit if 
     those subordinate officials anticipate that the officials 
     will present or agree to such a provision.
       (E) Applicability.--This paragraph shall not apply to a 
     union time rate established under an order of the Federal 
     Service Impasses Panel or an arbitrator engaging in interest 
     arbitration if the applicable agency had proposed that the 
     Panel or arbitrator, as applicable, establish a union time 
     rate of not greater than 1.
       (3) Rule of construction.--Nothing in this subsection may 
     be construed to--
       (A) prohibit an agency from authorizing official time as 
     required under subsections (a) and (c) of section 7131 of 
     title 5, United States Code; or
       (B) direct an agency to negotiate to include in a 
     collective bargaining agreement a term that precludes the 
     agency from granting official time under subsections (a) and 
     (c) of section 7131 of title 5, United States Code.
       (c) Employee Conduct.--
       (1) In general.--To ensure that Federal resources are used 
     effectively and efficiently, and in a manner consistent with 
     the public interest and subsection (g), each employee shall 
     comply with the following requirements:
       (A) An employee may not engage in lobbying activities 
     during paid time, except in the official capacity of the 
     employee.
       (B)(i) Except as provided in clause (ii), an employee shall 
     spend not less than \3/4\ of the paid time of the employee 
     each fiscal year performing agency business or attending 
     necessary training (as required by the head of the employing 
     agency) to ensure that the employee develops and maintains 
     the skills necessary to perform the duties of the employee 
     efficiently and effectively.
       (ii) An employee who has spent \1/4\ of the paid time of 
     the employee in a fiscal year performing duties that are not 
     agency business may continue to use official time during that 
     fiscal year for a purpose described in subsection (a) or (c) 
     of section 7131 of title 5, United States Code.
       (iii) Any time in excess of \1/4\ of the paid time of an 
     employee that is used to perform duties that are not agency 
     business in a fiscal year shall count toward the limitation 
     under clause (i) in the subsequent fiscal year.
       (C)(i) An employee, when acting on behalf of a Federal 
     labor organization, may not be permitted the free or 
     discounted use of Government property, or any other agency 
     resource, if that use is not generally available for business 
     other than agency business by employees when acting on behalf 
     of non-Federal organizations.
       (ii) For the purposes of clause (i), Government property 
     and other agency resources includes office or meeting space, 
     reserved parking spaces, telephones, computers, and computer 
     systems.
       (D) An employee who incurs expenses while performing duties 
     other than agency business may not be reimbursed for those 
     expenses, unless reimbursement is required by law or 
     regulation.
       (E)(i) An employee may not use official time to prepare or 
     pursue a grievance, including arbitration with respect to a 
     grievance, brought against an agency under procedures 
     negotiated under section 7121 of title 5, United States Code, 
     except where that use is otherwise authorized by law or 
     regulation.
       (ii) Clause (i) shall not apply to a situation in which an 
     employee uses official time to--
       (I) prepare for, confer with an exclusive representative 
     regarding, or present a grievance brought on behalf of the 
     employee;
       (II) appear as a witness in a grievance proceeding; or
       (III) challenge an adverse personnel action taken against 
     the employee in retaliation for engaging in federally 
     protected whistleblower activity, including for engaging in 
     an activity that is protected under--

       (aa) section 2302(b)(8) of title 5, United States Code;
       (bb) section 21F(h)(1) of the Securities Exchange Act of 
     1934 (15 U.S.C. 78u-6(h)(1));
       (cc) section 3730(h) of title 31, United States Code; or
       (dd) any other similar provision of law.

       (2) Authorization.--
       (A) In general.--An employee may not use official time 
     without advance written authorization from the head of the 
     employing agency, unless prior approval is impracticable 
     under rules or guidance issued under paragraph (3).
       (B) Review.--Any use of official time without written 
     advance authorization from the

[[Page S2574]]

     head of the employing agency because of impracticality, as 
     described in subparagraph (A), shall be reviewed by the head 
     of the employing agency, who, not later than 15 days after 
     the date on which the official time is first used, shall make 
     a determination regarding whether to certify that providing 
     the advance written authorization was impracticable.
       (C) Restriction.--If an employee uses official time without 
     advance written authorization from the head of the employing 
     agency because of impracticality, as described in 
     subparagraph (A), and the head of the employing agency does 
     not make a certification described in subparagraph (B) within 
     the time frame established under that subparagraph, the 
     employee may not use official time for the remainder of the 
     fiscal year in which the official time was used or for 90 
     days, whichever is longer.
       (3) OPM responsibilities.--
       (A) In general.--Not later than 45 days after the date of 
     enactment of this Act, the Director shall examine whether 
     rules that are in existence, as of the date on which the 
     Director performs the examination, are consistent with the 
     requirements of this subsection.
       (B) Additional rules.--If, after performing the examination 
     required under subparagraph (1), the Director determines that 
     existing rules, as described in that subparagraph, are not 
     consistent with the requirements of this subsection, the 
     Director, as soon as is practicable, shall propose for notice 
     and comment appropriate rules to clarify and assist agencies 
     in implementing this subsection, consistent with applicable 
     law.
       (4) Agency responsibilities.--
       (A) In general.--The head of each agency shall ensure 
     compliance by employees of the agency with the requirements 
     of this subsection, to the extent consistent with applicable 
     law and collective bargaining agreements.
       (B) Reviews.--The head of each agency shall--
       (i) examine whether rules, policies, and practices that are 
     in existence, as of the effective date of this subsection, 
     are consistent with the requirements of this subsection; and
       (ii) if, after performing the review required under clause 
     (i), the agency head determines that existing rules, 
     policies, and procedures, as described in that clause, are 
     not consistent with the requirements of this subsection, as 
     soon as is practicable, take all appropriate actions 
     consistent with applicable law to bring those rules, 
     policies, and procedures into compliance with this 
     subsection.
       (5) Rule of construction.--Nothing in this subsection may 
     be construed to prohibit the head of an agency from 
     permitting an employee to perform representational activities 
     under chapter 71 of title 5, United States Code, including 
     for activities described in section 7121(b)(1)(C) of that 
     title.
       (6) Effective date.--This subsection shall take effect on 
     the date that is 45 days after the date of enactment of this 
     Act, except with respect to paragraph (3), which shall take 
     effect on that date of enactment.
       (d) Preventing Unlawful or Unauthorized Expenditures.--
       (1) In general.--An employee who uses official time without 
     the advance written authorization required under subsection 
     (c)(2), or for purposes not specifically authorized by the 
     head of the employing agency, shall be--
       (A) considered absent without leave;
       (B) in cases of repeated such misuses, considered to have 
     engaged in serious misconduct that impairs the efficiency of 
     the Federal service; and
       (C) subject to appropriate disciplinary action to address 
     the misconduct described in subparagraph (A) or (B), as 
     applicable.
       (2) Procedures.--
       (A) In general.--As soon as is practicable, and not later 
     than 180 days after the date of enactment of this Act, and to 
     the extent permitted by law, the head of each agency shall 
     develop and implement a procedure governing the authorization 
     of official time under subsection (c)(2).
       (B) Contents.--A procedure developed under subparagraph (A) 
     shall, at a minimum--
       (i) require an employee requesting official time to specify 
     the number of hours of official time to be used and the 
     specific purposes for which that time will be used, providing 
     sufficient detail to identify the tasks that the employee 
     will undertake;
       (ii) allow the authorizing official to assess whether it is 
     reasonable and necessary to grant the amount of time 
     requested to accomplish the tasks described in clause (i); 
     and
       (iii) with respect to a continuing or ongoing request, 
     require--

       (I) the renewal of the request to be submitted not less 
     frequently than once per pay period; and
       (II) separate advance authorization for any use of official 
     time that is in excess of previously authorized hours or 
     purposes for which the time was not previously authorized.

       (3) Monitoring.--
       (A) In general.--As soon as is practicable, and not later 
     than 180 days after the date of enactment of this Act, the 
     head of each agency shall develop and implement a system to 
     monitor the use of official time to ensure that such time--
       (i) is used only for authorized purposes; and
       (ii) is not used contrary to law or regulation.
       (B) Requirements.--In developing a system under 
     subparagraph (A), the head of an agency shall give special 
     attention to ensuring that official time is not used for--
       (i) internal labor organization business in violation of 
     section 7131(b) of title 5, United States Code;
       (ii) lobbying activities in violation of section 1913 of 
     title 18, United States Code, or subsection (c)(1) of this 
     section; or
       (iii) political activities in violation of subchapter III 
     of chapter 73 of title 5, United States Code.
       (e) Agency Reporting Requirements.--
       (1) In general.--To the extent permitted by law, the head 
     of each agency shall submit to the Director an annual report 
     that addresses each of the following for the fiscal year 
     covered by the report:
       (A) The purposes for which the agency head has authorized 
     the use of official time, including the amounts of time used 
     for each such purpose.
       (B) The job title and total compensation of each employee 
     who has used official time, including the total number of 
     hours each such employee spent on those activities and the 
     proportion of the total paid hours of each such employee that 
     number of hours represents.
       (C) If the agency has allowed labor organizations or 
     individuals, during official time, the free or discounted use 
     of Government property, the total value of that use.
       (D) Any expenses that the agency paid for activities 
     conducted during official time.
       (E) The amount of any reimbursement paid by labor 
     organizations for the use of property described in 
     subparagraph (C).
       (F) Whether the aggregate union rate time of the agency has 
     increased, as compared with the most recent report submitted 
     under this paragraph and, if that aggregate rate has so 
     increased, an explanation for the increase.
       (2) Notification.--If the union time rate with respect to a 
     bargaining unit exceeds 1 hour per employee, the head of the 
     applicable agency shall submit a notification regarding that 
     fact to the Interagency Labor Relations Working Group 
     established under section 3 of Executive Order 13836 (83 Fed. 
     Reg. 25329; relating to developing efficient, effective, and 
     cost-reducing approaches to Federal sector collective 
     bargaining).
       (3) Deadline.--The Director shall establish the date on 
     which the reports required under this subsection shall be 
     submitted.
       (f) Public Disclosure and Transparency.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Director shall publish a 
     standardized form that the head of each agency shall use in 
     preparing the reports required under subsection (e).
       (2) Analysis of reports.--The Director shall analyze each 
     report submitted under subsection (e) and produce an annual 
     report that details each of the following for the fiscal year 
     covered by the report:
       (A) For each agency, and for all agencies in the 
     aggregate--
       (i) the number of employees using official time;
       (ii) the number of employees using official time, 
     separately listed by intervals of the proportion of paid time 
     spent on those activities;
       (iii) the number of hours spent on official time;
       (iv) the cost of official time, as measured by the 
     compensation of the employees involved;
       (v) the aggregate union time rate;
       (vi) the number of bargaining unit employees; and
       (vii) the percentage change in each of the values described 
     in clauses (i) through (vi), as compared with the previous 
     year.
       (B) For each agency, and for all agencies in the 
     aggregate--
       (i) the value of the free or discounted use of Government 
     property the agency has provided to labor organizations;
       (ii) any expenses, such as travel expenses, paid for 
     activities conducted during official time;
       (iii) the amount of any reimbursement paid for the use 
     described in clause (ii); and
       (iv) the percentage change in each of the values described 
     in clauses (i), (ii), and (iii), as compared with the 
     previous year.
       (C) The purposes for which official time was granted.
       (D) The information required under subsection (e)(1)(B) 
     with respect to employees using official time, which shall be 
     sufficiently aggregated to ensure that the disclosure would 
     not unduly risk disclosing information protected under law, 
     including personally identifiable information.
       (3) Publication.--
       (A) In general.--Not later than June 30 of each year, the 
     Director shall publish on the website of the Office of 
     Personnel Management the report required under this 
     subsection.
       (B) First report.--The first report required under this 
     subsection shall--
       (i) apply with respect to the first fiscal year that begins 
     after the date of enactment of this Act; and
       (ii) be published not later than 240 days after the end of 
     the fiscal year described in clause (i).
       (4) Guidance.--The Director, after consulting with the 
     Chief Human Capital Officers appointed or designated under 
     chapter

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     14 of title 5, United States Code, shall promulgate any 
     additional guidance that may be necessary or appropriate to 
     assist the heads of agencies in complying with the 
     requirements of this subsection.
       (g) Implementation and Renegotiation of Collective 
     Bargaining Agreements.--
       (1) Implementation.--
       (A) In general.--Not later than 90 days after the date of 
     enactment of this Act, and subject to subparagraph (B), the 
     head of each agency shall implement the requirements of this 
     section, except with respect to subsection (c)(2), which 
     shall be effective for employees in a particular agency when 
     the head of that agency implements the procedure required 
     under subsection (d)(2), to the extent permitted by law and 
     consistent with obligations under collective bargaining 
     agreements that are in effect, as of the date of enactment of 
     this Act.
       (B) Designation.--The head of each agency shall--
       (i) designate an official within the agency to implement 
     this section; and
       (ii) not later than 30 days after the date of enactment of 
     this Act, notify the Director regarding the identity of the 
     official designated under clause (i).
       (2) Consultation with labor representatives.--
       (A) In general.--The head of each agency shall consult with 
     employee labor representatives regarding the implementation 
     of this section.
       (B) Alterations to collective bargaining agreements.--On 
     the earliest date permitted under law, and to effectuate the 
     terms of this section, the head of any agency that is party 
     to a collective bargaining agreement that has not less than 1 
     provision that is inconsistent with any provision of this 
     section shall give any contractually required notice of the 
     intent of the agency to alter the terms of that agreement 
     and--
       (i) reopen negotiations to obtain provisions consistent 
     with this section; or
       (ii) terminate any such inconsistent provision and 
     implement the requirements of this section.
       (h) General Provisions.--
       (1) Rules of construction.--Nothing in this section may be 
     construed to--
       (A) abrogate any collective bargaining agreement that is in 
     effect, as of the date of enactment of this Act;
       (B) interfere with, restrain, or coerce any employee in the 
     exercise by the employee of any right under chapter 71 of 
     title 5, United States Code;
       (C) encourage or discourage membership in any labor 
     organization by discrimination in connection with 
     appointment, tenure, promotion, or other conditions of 
     employment;
       (D) impair or otherwise affect the authority granted by law 
     to an agency or the head of an agency; or
       (E) create any right or benefit, substantive or procedural, 
     enforceable at law or in equity by any party against--
       (i) the United States;
       (ii) a department, agency, entity, officer, employee, or 
     agent of the United States; or
       (iii) any other person.
       (2) Implementation.--This section shall be implemented 
     consistent with applicable law and subject to the 
     availability of appropriations.
       (3) Severability.--If any provision of this section, 
     including any application of this section, is held to be 
     invalid, the remainder of this section, and all other 
     applications of this section, shall not be affected by that 
     holding.
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