[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2687-S2689]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 559. Mr. SCHATZ 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 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:

       After subtitle G of title X, insert the following:

                       Subtitle H--TSA Workforce

     SEC. 1091. SHORT TITLE.

       This subtitle may be cited as the ``Rights for the 
     Transportation Security Administration Workforce Act of 
     2023'' or the ``Rights for the TSA Workforce Act of 2023''.

     SEC. 1092. DEFINITIONS.

       In this subtitle--
       (1) the term ``2022 Determination'' means the publication, 
     entitled ``Determination on Transportation Security Officers 
     and Collective Bargaining'', issued on December 30, 2022, by 
     Administrator David P. Pekoske, as modified, or any 
     superseding subsequent determination.
       (2) the term ``adjusted basic pay'' means--
       (A) the rate of pay fixed by law or administrative action 
     for a position occupied by a covered employee before any 
     deductions; and
       (B) any regular, fixed supplemental payment for non-
     overtime hours of work creditable as basic pay for retirement 
     purposes, including any applicable locality payment and any 
     special rate supplement;
       (3) the term ``Administration'' means the Transportation 
     Security Administration;
       (4) the term ``Administrator'' means the Administrator of 
     the Administration;
       (5) the term ``appropriate congressional committees'' 
     means--
       (A) the Committee on Commerce, Science, and Transportation 
     of the Senate;
       (B) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       (C) the Committee on Homeland Security of the House of 
     Representatives; and
       (D) the Committee on Oversight and Accountability of the 
     House of Representatives;
       (6) the term ``conversion date'' means the date on of which 
     subparagraphs (A) through (F) of section 1093(c)(1) take 
     effect;
       (7) the term ``covered employee'' means an employee who 
     occupies a covered position;
       (8) the term ``covered position'' means a position within 
     the Administration;
       (9) the term ``employee'' has the meaning given the term in 
     section 2105 of title 5, United States Code;
       (10) the term ``screening agent'' means a full- or part-
     time non-supervisory covered employee carrying out screening 
     functions under section 44901 of title 49, United States 
     Code;
       (11) the term ``Secretary'' means the Secretary of Homeland 
     Security; and
       (12) the term ``TSA personnel management system'' means any 
     personnel management system established or modified under--
       (A) section 111(d) of the Aviation and Transportation 
     Security Act (49 U.S.C. 44935 note); or
       (B) section 114(n) of title 49, United States Code.

     SEC. 1093. CONVERSION OF TSA PERSONNEL.

       (a) Restrictions on Certain Personnel Authorities.--
       (1) In general.--Notwithstanding any other provision of 
     law, effective as of the date of enactment of this Act--
       (A) any TSA personnel management system in use for covered 
     employees and covered positions on the day before that date 
     of enactment, and any personnel management policy, letter, 
     guideline, or directive of the Administration in effect on 
     that day, may not be modified;
       (B) no personnel management policy, letter, guideline, or 
     directive of the Administration that was not established 
     before that date issued pursuant to section 111(d) of the 
     Aviation and Transportation Security Act (49 U.S.C. 44935 
     note) or section 114(n) of title 49, United States Code, may 
     be established; and
       (C) any authority to establish or adjust a human resources 
     management system under chapter 97 of title 5, United States 
     Code, shall terminate with respect to covered employees and 
     covered positions.
       (2) Exceptions.--
       (A) Pay.--Notwithstanding paragraph (1)(A), the limitation 
     in that paragraph shall not apply to any personnel management 
     policy, letter, guideline, or directive of the Administration 
     relating to annual adjustments to pay schedules and locality-
     based comparability payments in order to maintain parity with 
     those adjustments authorized under sections 5303, 5304, 
     5304a, and 5318 of title 5, United States Code; and
       (B) Additional policy.--Notwithstanding paragraph (1)(B), 
     new personnel management policy of the Administration may be 
     issued if--
       (i) that policy is needed to resolve a matter not 
     specifically addressed in policy in effect on that date of 
     enactment; and
       (ii) the Secretary provides that policy, with an 
     explanation of the necessity of that policy, to the 
     appropriate congressional committees not later than 7 days 
     after the date on which the policy is issued.
       (C) Emerging threats to transportation security during 
     transition period.--
       (i) In general.--Notwithstanding paragraph (1), any 
     personnel management policy, letter, guideline, or directive 
     of the Administration relating to an emerging threat to 
     transportation security, including national emergencies or 
     disasters and public health threats to transportation 
     security, may be modified or established until the conversion 
     date.
       (ii) Submission to congress.--Not later than 7 days after 
     the date on which any personnel management policy, letter, 
     guideline, or directive of the Administration is modified or 
     established under clause (i), the Secretary shall provide to 
     the appropriate congressional committees that established or 
     modified policy, letter, guideline, or directive, as 
     applicable, which shall contain an explanation of the 
     necessity of that establishment or modification.
       (b) Personnel Authorities During Transition Period.--Any 
     TSA personnel management system in use for covered employees 
     and covered positions on the day before the date of enactment 
     of this Act, and any personnel management policy, letter, 
     guideline, or directive of the Administration in effect on 
     the day before the date of enactment of this Act, shall 
     remain in effect until the conversion date.
       (c) Transition to Title 5.--
       (1) In general.--Except as provided in paragraph (2), 
     effective beginning on a date determined by the Secretary, 
     but in no event later than December 31, 2023--
       (A) all TSA personnel management systems shall cease to be 
     in effect;
       (B) section 114(n) of title 49, United States Code, is 
     repealed;
       (C) section 111(d) of the Aviation and Transportation 
     Security Act (Public Law 107-71; 49 U.S.C. 44935 note) is 
     repealed;
       (D) any personnel management policy, letter, guideline, or 
     directive of the Administration, including the 2022 
     Determination, shall cease to be effective;

[[Page S2688]]

       (E) any human resources management system established or 
     adjusted under chapter 97 of title 5, United States Code, 
     with respect to covered employees or covered positions shall 
     cease to be effective; and
       (F) covered employees and covered positions shall be 
     subject to the provisions of title 5, United States Code.
       (2) Chapters 71 and 77 of title 5.--Not later than 90 days 
     after the date of enactment of this Act--
       (A) chapters 71 and 77 of title 5, United States Code, 
     shall apply to covered employees carrying out screening 
     functions pursuant to section 44901 of title 49, United 
     States Code; and
       (B) any policy, letter, guideline, or directive issued 
     under section 111(d) of the Aviation and Transportation 
     Security Act (49 U.S.C. 44935 note) relating to matters 
     otherwise covered by chapter 71 or 77 of title 5, United 
     States Code, shall cease to be in effect.
       (3) Assistance of other agencies.--Not later than 180 days 
     after the date of enactment of this Act, or December 31, 
     2023, whichever is earlier--
       (A) the Director of the Office of Personnel Management 
     shall establish a position series and classification standard 
     for the positions of Transportation Security Officer, Federal 
     air marshal, Transportation Security Inspector, and other 
     positions requested by the Administrator; and
       (B) the National Finance Center of the Department of 
     Agriculture shall make necessary changes to Financial 
     Management Services and Human Resources Management Services 
     to ensure payroll, leave, and other personnel processing 
     systems for covered employees are consistent with chapter 53 
     of title 5, United States Code, and provide functions as 
     needed to implement this subtitle.
       (d) Safeguards on Grievances and Appeals.--
       (1) In general.--Each covered employee with a grievance or 
     appeal pending within the Administration on the date of 
     enactment of this Act or initiated during the transition 
     period described in subsection (c) may have that grievance or 
     appeal removed to proceedings pursuant to title 5, United 
     States Code, or continued within TSA.
       (2) Authority.--With respect to any grievance or appeal 
     continued within the Administration under paragraph (1), the 
     Administrator may consider and finally adjudicate that 
     grievance or appeal notwithstanding any other provision of 
     this subtitle.
       (3) Preservation of rights.--Notwithstanding any other 
     provision of law, any appeal or grievance continued under 
     this section that is not finally adjudicated under paragraph 
     (2) shall be preserved and all timelines tolled until the 
     rights afforded by application of chapters 71 and 77 of title 
     5, United States Code, are made available under subsection 
     (c)(2).

     SEC. 1094. TRANSITION RULES.

       (a) Nonreduction in Pay and Compensation.--Under such pay 
     conversion rules as the Secretary may prescribe to carry out 
     this subtitle, a covered employee converted from a TSA 
     personnel management system to the provisions of title 5, 
     United States Code, under section 1093(c)(1)(F)--
       (1) may not be subject to any reduction in either the rate 
     of adjusted basic pay payable or law enforcement availability 
     pay payable to that covered employee; and
       (2) shall be credited for years of service in a specific 
     pay band under a TSA personnel management system as if the 
     covered employee had served in an equivalent General Schedule 
     position at the same grade, for purposes of determining the 
     appropriate step within a grade at which to establish the 
     converted rate of pay of the covered employee.
       (b) Retirement Pay.--
       (1) In general.--Not later than 90 days after the date of 
     enactment of this Act, the Secretary shall submit to the 
     appropriate congressional committees a proposal, including 
     proposed legislative changes if needed, for determining the 
     average pay of any covered employee who retires not later 
     than 3 years after the conversion date for purposes of 
     calculating the retirement annuity of the covered employee.
       (2) Requirements.--The proposal required under paragraph 
     (1) shall be structured in a manner that--
       (A) is consistent with title 5, United States Code; and
       (B) appropriately accounts for the service of a covered 
     employee to which the proposal applies, and the annual rate 
     of basic pay of such a covered employee, following the 
     conversion date.
       (c) Limitation on Premium Pay.--
       (1) In general.--Notwithstanding section 5547 of title 5, 
     United States Code, or any other provision of law, a Federal 
     air marshal or criminal investigator who is appointed to that 
     position before the date of enactment of this Act may be 
     eligible for premium pay up to the maximum level allowed by 
     the Administrator before the date of enactment of this Act.
       (2) OPM recognition.--The Director of the Office of 
     Personnel Management shall recognize premium pay paid 
     pursuant to paragraph (1) as fully creditable for the 
     purposes of calculating pay and retirement benefits.
       (d) Preservation of Law Enforcement Availability Pay and 
     Overtime Pay Rates for Federal Air Marshals.--
       (1) LEAP.--Section 5545a of title 5, United States Code, is 
     amended--
       (A) in subsection (a)(2), in the matter preceding 
     subparagraph (A), by striking ``subsection (k)'' and 
     inserting ``subsection (l)'';
       (B) by redesignating subsection (k) as subsection (l); and
       (C) by inserting after subsection (j) the following:
       ``(k) The provisions of subsections (a) through (h) 
     providing for availability pay shall apply to any Federal air 
     marshal who is an employee of the Transportation Security 
     Administration.''.
       (2) Overtime.--Section 5542 of title 5, United States Code, 
     is amended by adding at the end the following:
       ``(i) Notwithstanding any other provision of law, a Federal 
     air marshal who is an employee of the Transportation Security 
     Administration shall receive overtime pay under this section, 
     at such a rate and in such a manner so that such Federal air 
     marshal does not receive less overtime pay than such Federal 
     air marshal would receive were that Federal air marshal 
     subject to the overtime pay provisions of section 7 of the 
     Fair Labor Standards Act of 1938 (29 U.S.C. 207).''.
       (3) Effective date.--The amendments made by paragraphs (1) 
     and (2) shall apply beginning on the conversion date.
       (e) Collective Bargaining Unit.--Notwithstanding section 
     7112 of title 5, United States Code, following the 
     application of chapter 71 of that title pursuant to section 
     1093(c)(2) of this subtitle, screening agents shall remain 
     eligible to form a collective bargaining unit.
       (f) Preservation of Other Rights.--The Secretary shall take 
     any actions necessary to ensure that the following rights are 
     preserved and available for each covered employee beginning 
     on the conversion date, and for any covered employee 
     appointed after the conversion date, and continue to remain 
     available to covered employees after the conversion date:
       (1) Any annual leave, sick leave, or other paid leave 
     accrued, accumulated, or otherwise available to a covered 
     employee immediately before the conversion date shall remain 
     available to the covered employee until used, subject to any 
     limitation on accumulated leave under chapter 63 of title 5, 
     United States Code.
       (2) Part-time screening agents pay premiums under chapter 
     89 of title 5, United States Code, on the same basis as full-
     time covered employees.
       (3) Notwithstanding section 6329a of title 5, United States 
     Code, covered employees are provided appropriate leave during 
     national emergencies to assist the covered employees and 
     ensure the Administration meets mission requirements.
       (4) Eligible screening agents receive a split-shift 
     differential for regularly scheduled split-shift work as well 
     as regularly scheduled overtime and irregular and occasional 
     split-shift work.
       (5) Notwithstanding sections subsections (c), (e), and (f) 
     of section 5754 of title 5, United States Code, eligible 
     covered employees receive group retention incentives, as 
     appropriate.

     SEC. 1095. CONSULTATION REQUIREMENT.

       (a) Exclusive Representative.--
       (1) In general.--
       (A) Application.--Beginning on the date that chapter 71 of 
     title 5, United States Code (referred to in this subsection 
     as ``chapter 71''), begins to apply to covered employees 
     under section 1093(c)(2), the labor organization certified by 
     the Federal Labor Relations Authority on June 29, 2011, or 
     any successor labor organization, shall be treated as the 
     exclusive representative of screening agents and shall be the 
     exclusive representative for screening agents under chapter 
     71, with full rights under chapter 71.
       (B) Rule of construction.--Nothing in this subsection may 
     be construed to prevent covered employees from selecting an 
     exclusive representative other than the labor organization 
     described in paragraph (1) for purposes of collective 
     bargaining under chapter 71.
       (2) National level.--
       (A) In general.--Notwithstanding any provision of chapter 
     71, collective bargaining for any unit of covered employees 
     shall occur at the national level, but may be supplemented by 
     local level bargaining and local level agreements in 
     furtherance of elements of a national agreement or on issues 
     of any local unit of covered employees not otherwise covered 
     by a national agreement.
       (B) Mutual consent required.--Local-level bargaining and 
     local-level agreements described in subparagraph (A) shall 
     occur only by mutual consent of the exclusive representative 
     of screening agents and the Federal Security Director (or a 
     designee of such an official) of those screening agents.
       (3) Current agreement.--Any collective bargaining agreement 
     covering such personnel in effect on the date of enactment of 
     this Act shall remain in effect until a collective bargaining 
     agreement is entered into under chapter 71, unless the 
     Administrator and exclusive representative mutually agree to 
     revisions to such an agreement.
       (b) Consultation Process.--
       (1) In general.--Not later than 7 days after the date of 
     enactment of this Act, the Secretary shall consult with the 
     exclusive representative for the screening agents described 
     in subsection (a)(1) under chapter 71 of title 5, United 
     States Code, on the formulation of plans and deadlines to 
     carry out the conversion, under this subtitle, of those 
     screening agents.
       (2) Written plans.--Before the date that chapter 71 of 
     title 5, United States Code, begins to apply under section 
     1093(c)(2), the Secretary shall provide (in writing) to the

[[Page S2689]]

     exclusive representative described in paragraph (1) the plans 
     for how the Secretary intends to carry out the conversion of 
     covered employees under this subtitle, including with respect 
     to such matters as--
       (A) the anticipated conversion date; and
       (B) measures to ensure compliance with sections 1093 and 
     1094.
       (c) Required Agency Response.--If any views or 
     recommendations are presented under subsection (b) by the 
     exclusive representative described in that subsection, the 
     Secretary shall--
       (1) consider the views or recommendations before taking 
     final action on any matter with respect to which the views or 
     recommendations are presented; and
       (2) provide the exclusive representative a written 
     statement of the reasons for the final actions to be taken.

     SEC. 1096. NO RIGHT TO STRIKE.

        Nothing in this subtitle may be considered--
       (1) to repeal or otherwise affect--
       (A) section 1918 of title 18, United States Code (relating 
     to disloyalty and asserting the right to strike against the 
     Government); or
       (B) section 7311 of title 5, United States Code (relating 
     to loyalty and striking); or
       (2) to otherwise authorize any activity that is not 
     permitted under a provision of law described in subparagraph 
     (A) or (B) of paragraph (1).

     SEC. 1097. PROPOSAL ON HIRING AND CONTRACTING BACKGROUND 
                   CHECK REQUIREMENTS.

       Not later than 1 year after the date of enactment of this 
     Act, the Secretary shall submit to the appropriate 
     congressional committees a plan to harmonize and update, for 
     the purposes of making appointments and for authorizing or 
     entering into any contract for service, the restrictions 
     under section 70105(c) of title 46, United States Code, 
     (relating to the issuance of transportation security cards) 
     and section 44936 of title 49, United States Code, (relating 
     to employment investigations and restrictions).

     SEC. 1098. COMPTROLLER GENERAL REVIEWS.

       (a) Review of Recruitment.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall submit to Congress a report on the efforts of 
     the Administration regarding recruitment, including 
     recruitment efforts relating to veterans, the dependents of 
     veterans, members of the Armed Forces, and the dependents of 
     such members.
       (2) Recruitment.--The report required under paragraph (1) 
     shall include recommendations regarding how the 
     Administration may improve the recruitment efforts described 
     in that paragraph.
       (b) Review of Implementation.--The Comptroller General of 
     the United States shall--
       (1) not later than 60 days after the conversion date, 
     commence a review of the implementation of this subtitle; and
       (2) not later than 1 year after the conversion date, submit 
     to Congress a report on the review conducted under paragraph 
     (1).
       (c) Review of Promotion Policies and Leadership 
     Diversity.--Not later than 1 year after the date of enactment 
     of this Act, the Comptroller General of the United States 
     shall submit to Congress a report--
       (1) on the efforts of the Administration to ensure that 
     recruitment, appointment, promotion, and advancement 
     opportunities within the Administration are equitable and 
     provide for demographics among senior leadership that are 
     reflective of the workforce demographics of the United 
     States; and
       (2) that, to the extent possible, includes--
       (A) an overview and analysis of the current (as of the date 
     on which the report is submitted) demographics of the 
     leadership of the Administration; and
       (B) as appropriate, recommendations to improve appointment 
     and promotion procedures and diversity in leadership roles, 
     which may include recommendations for how the Administration 
     can better promote from within the Administration and retain 
     and advance covered employees.
       (d) Review of Harassment and Assault Policies and 
     Protections.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall submit to Congress a report on the efforts of 
     the Administration to ensure the safety of the staff of the 
     Administration with respect to harassment and assault in the 
     workplace, such as incidents--
       (A) of sexual harassment and violence and harassment and 
     violence motivated by the perceived race, ethnicity, 
     religion, gender identity, or sexuality of an individual; and
       (B) in which the alleged perpetrator is a member of the 
     general public.
       (2) Inclusions.--The report required under paragraph (1) 
     shall include--
       (A) an overview and analysis of the current (as of the date 
     on which the report is submitted) policies and response 
     procedures of the Administration;
       (B) a detailed description of if, when, and how the 
     policies described in subparagraph (A) fail to adequately 
     protect covered employees; and
       (C) as appropriate, recommendations for steps the 
     Administration can take to better protect covered employees 
     from harassment and violence in the workplace.
       (3) Opportunity for comment.--In conducting the review 
     required under this subsection, the Comptroller General of 
     the United States shall provide opportunities for covered 
     employees of all levels and positions, and labor 
     organizations and associations representing those covered 
     employees, to submit comments, including in an anonymous 
     form, and take those comments into account in the final 
     recommendations of the Comptroller General.

     SEC. 1099. SENSE OF CONGRESS.

       It is the sense of Congress that--
       (1) TSA personnel management systems provide insufficient 
     benefits and workplace protections to the workforce that 
     secures the transportation systems of the United States;
       (2) covered employees should be provided protections and 
     benefits under title 5, United States Code; and
       (3) the provision of the protections and benefits described 
     in paragraph (2) should not result in a reduction of pay or 
     benefits to current covered employees.

     SEC. 1099A. ASSISTANCE FOR FEDERAL AIR MARSHAL SERVICE.

       The Administrator shall communicate with organizations 
     representing a significant number of Federal air marshals, to 
     the extent provided by law, to address concerns regarding 
     Federal Air Marshals related to the following:
       (1) Mental health.
       (2) Suicide rates.
       (3) Morale and recruitment.
       (4) Equipment and training.
       (5) Work schedules and shifts, including mandated periods 
     of rest.
       (6) Any other personnel issues the Administrator determines 
     appropriate.

     SEC. 1099B. STUDY ON FEASIBILITY OF COMMUTING BENEFITS.

       (a) In General.--Not later than 270 days after the date of 
     enactment of this Act, the Administrator shall submit to the 
     appropriate congressional committees a feasibility study on 
     allowing covered employees carrying out screening functions 
     under section 44901 of title 49, United States Code, to treat 
     as hours of employment time spent by those covered employees 
     regularly traveling between parking lots and bus and transit 
     stops of airports and screening checkpoints before and after 
     the regular work day.
       (b) Considerations.--In conducting the study required under 
     subsection (a), the Administrator shall consider--
       (1) the amount of time needed to travel to and from parking 
     lots and bus and transit stops of airports at small hub 
     airports, medium hub airports, and large hub airports, as 
     those terms are defined in section 40102 of title 49, United 
     States Code;
       (2) the feasibility of using mobile phones and location 
     data to allow covered employees to report their arrival to 
     and departure from parking lots and bus and transit stops of 
     airports; and
       (3) the estimated costs of treating the amount of time 
     described in paragraph (1) as hours of employment time spent.

     SEC. 1099C. BRIEFING ON ASSAULTS AND THREATS ON TSA 
                   EMPLOYEES.

       Not later than 90 days after the date of enactment of this 
     Act, the Administrator shall brief the appropriate 
     congressional committees regarding the following:
       (1) Reports to the Administrator of instances of physical 
     or verbal assaults or threats made by members of the general 
     public against screening agents since January 1, 2019.
       (2) Procedures for reporting the assaults and threats 
     described in paragraph (1), including information on how the 
     Administrator communicates the availability of those 
     procedures.
       (3) Any steps taken by the Administration to prevent and 
     respond to the assaults and threats described in paragraph 
     (1).
       (4) Any related civil actions and criminal referrals made 
     annually since January 1, 2019.
       (5) Any additional authorities needed by the Administrator 
     to better prevent or respond to the assaults and threats 
     described in paragraph (1).

     SEC. 1099D. ANNUAL REPORTS ON TSA WORKFORCE.

       Not later than 1 year after the date of enactment of this 
     Act and annually thereafter, the Administrator shall submit 
     to the appropriate congressional committees a report that 
     contains the following:
       (1) An analysis of the Federal Employee Viewpoint Survey of 
     the Office of Personnel Management to determine job 
     satisfaction rates of covered employees.
       (2) Information relating to retention rates of covered 
     employees at each airport, including transfers, in addition 
     to aggregate retention rates of covered employees across the 
     workforce of the Administration.
       (3) Information relating to actions taken by the 
     Administration intended to improve workforce morale and 
     retention.

     SEC. 1099E. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated such sums as may be 
     necessary, to remain available until expended, to carry out 
     this subtitle and the amendments made by this subtitle.
                                 ______