[House Report 107-379]
[From the U.S. Government Publishing Office]



107th Congress                                            Rept. 107-379
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================



 
                     DIGITAL TECH CORPS ACT OF 2002

                                _______
                                

 April 9, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3925]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3925) to establish an exchange program between the 
Federal Government and the private sector in order to promote 
the development of expertise in information technology 
management, and for other purposes, having considered the same, 
reports favorably thereon with amendments and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Vote of the Committee............................................     3
Committee Oversight Findings.....................................     3
Performance Goals and Objectives.................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Constitutional Authority Statement...............................     5
Section-by-Section Analysis and Discussion.......................     6
Changes in Existing Law Made by the Bill, as Reported............     9
Markup Transcript................................................    11
Dissenting Views.................................................    37

    The amendments (stated in terms of the page and line 
numbers to the committee print document containing the text of 
the amendment as reported by the Committee on Government 
Reform) are as follows:

    Page 8, lines 12-13, strike ``, notwithstanding section 209 
of title 18,''.

    Page 14, strike lines 4 through 6 and insert the following:

                    ``(v) assigned from a private sector 
                organization to an agency under chapter 37 of 
                title 5.''.

    Page 14, line 10, strike the comma after ``is''.

    Page 14, line 10, strike ``within the past three years,''.

    Page 17, after line 7, insert the following:

    (b) Amendment to Title 18, United States Code.--Section 209 
of title 18, United States Code, is amended by adding at the 
end the following:
    ``(g)(1) This section does not prohibit an employee of a 
private sector organization, while assigned to an agency under 
chapter 37 of title 5, from continuing to receive pay and 
benefits from such organization in accordance with such 
chapter.
    ``(2) For purposes of this subsection, the term `agency' 
means an agency (as defined by section 3701 of title 5) and the 
Office of the Chief Technology Officer of the District of 
Columbia.''.

    Page 17, line 8, strike ``(b)'' and insert ``(c)''.

                          Purpose and Summary

    H.R. 3925, the ``Digital Tech Corps Act of 2002,'' 
establishes an employee exchange program for information 
technology management personnel between the Federal Government 
and the private sector. H.R. 3925 provides Federal employees 
throughout the Federal Government with additional on-the-job 
training and education. Additionally, the bill will enhance the 
ability of Federal agencies to attract and retain quality 
information technology experts.

                Background and Need for the Legislation

    H.R. 3925 was introduced by Representatives Burton and 
Davis on March 12, 2002. The Committee on Government Reform 
reported the bill, as amended, favorably on March 14, 2002. The 
legislation was then referred to the Committees on the 
Judiciary and Ways and Means for a 1-day referral on March 18, 
2002 and that referral was extended to April 9, 2002.
    H.R. 3925, the ``Digital Tech Corps Act of 2002'', is in 
response to a growing concern that the Federal Government is 
unable to attract and retain quality information technology 
experts. This problem is magnified with the increased use of 
technology throughout the Federal Government.
    The Government Accounting Office (GAO) has found that the 
Federal Government is facing a substantial human capital 
shortage and the shortage will intensify because 34 percent of 
the Federal workforce will be eligible to retire in the next 5 
years. This shortfall is even worse for the information 
technology fields. When a GAO official testified before the 
Government Reform Committee last summer on the earlier version 
of the bill, GAO explained that ``estimated that fifty percent 
of the government's technology workforce will be eligible to 
retire by 2006.'' \1\
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    \1\ H.R. Rep. No. 107-379, pt. 1, at 6.
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    Information technology is one of the top priorities for the 
Nation in all respects including national security, law 
enforcement and economic growth. As the Congress continues to 
provide more technology resources to the Executive branch, it 
must also address the human resource issues. This bill is 
designed to assist the government to attract mid-level 
information technology (IT) managers and retain its current 
workforce. The goal of the legislation is to create an exchange 
program to ``help Federal agencies retain quality IT managers 
by offering them exposure to new management concepts and 
leading-edge organizations. This exchange program should make 
Federal service more attractive, and at the same time, improve 
the skills of Federal IT managers.'' \2\
---------------------------------------------------------------------------
    \2\ H.R. Rep. No. 107-379, pt. 1, at 7.
---------------------------------------------------------------------------
    The Committee on Government Reform explained that: ``The 
Digital Tech Corps enables an exchange program that can begin 
as soon as an agency negotiates an exchange agreement with a 
private sector entity. Private sector IT volunteers for the 
Tech Corps will come into government at the GS-11 through 15 
levels for a period of 6 months to 2 years, but they will 
continue to receive pay and benefits from their private sector 
employer. Federal agency IT volunteers will have the 
opportunity to go to work for leading-edge private sector 
companies for a similar period and will retain their government 
pay and benefits. This type of public-private exchange program 
will allow for greater knowledge transfer and cross-pollination 
of ideas, cultures, and processes between the public and 
private sectors.'' \3\
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    \3\ H.R. Rep. No. 107-379, pt. 1, at 7.
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                                Hearings

    The Committee on the Judiciary did not hold hearings on 
H.R. 3925, the ``Digital Tech Corps Act of 2002.''

                        Committee Consideration

    On March 20, 2002, the Committee met in open session and 
ordered favorably reported the bill H.R. 3925, as amended, by a 
voice vote, a quorum being present.

                         Vote of the Committee

    No recorded votes were taken on the bill H.R. 3925 during 
Committee consideration.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    The bill is intended to improve the ability of Federal 
agencies to attract and retain information technology personnel 
by providing them an opportunity to work at leading-edge 
private sector companies and gain greater knowledge and an 
exchange of ideas with the private sector while they retain 
their Federal pay and benefits. At the same time, the bill will 
offer private sector employees, in return, an opportunity to 
exchange ideas and cultures in the Federal work force will 
continuing to receive their private sector pay and benefits.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3925, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 29, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3925, the Digital 
Tech Corps Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford (for Federal costs), who can be reached at 226-2860, 
and Susan Sieg Tompkins (for the State and local impact), who 
can be reached at 225-3220.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 3925--Digital Tech Corps Act of 2002.
    CBO estimates that enacting H.R. 3925 would cost less than 
$500,000, subject to the appropriation of the necessary funds. 
These amounts include administrative and reporting costs for 
the Office of Personnel Management (OPM) and the General 
Accounting Office (GAO). Enacting the bill could also increase 
the collections of civil and criminal fines, but CBO estimates 
that any increase would not be significant. Because the bill 
could affect direct spending and receipts (civil and criminal 
fines), pay-as-you-go procedures would apply.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on State, local, or tribal governments. 
The District of Columbia could benefit from provisions of the 
bill that would authorize employees in the Office of the Chief 
Technology Officer to be assigned to a private-sector 
organization or an employee of such organization to be assigned 
to the Office.
    H.R. 3925 would establish an exchange program between the 
Federal Government and the private sector to promote 
information technology management. The bill would allow the 
exchange of employees for up to 2 years between the public and 
private sectors to share information management talent and 
expertise. Private-sector employers could be reimbursed for all 
or part of the cost of their employees' assignment with the 
Federal Government. Alternatively, H.R. 3925 would allow for 
Federal agencies to accept voluntary employment services from 
the private sector.
    A recent report by the GAO indicates that the demand for 
qualified information technology workers will exceed the 
supply, hence it is unlikely that private-sector employers will 
be willing to part with many such employees for extended 
periods. Any exchange of employees that involves reimbursement 
to the private sector would be subject to the availability of 
appropriated funds for salary, training, and educational 
expenses.
    Violations of the provisions of H.R. 3925 could be subject 
to civil and criminal fines, so the Federal Government might 
collect additional fines if the bill is enacted. Collections of 
civil fines are recorded as receipts and deposited into the 
general fund of the Treasury. Criminal fines are recorded in 
the budget as governmental receipts (revenues), which are 
deposited in the Crime Victims Fund and spent in subsequent 
years. CBO expects that any additional receipts or direct 
spending would be less than $500,000 each year.
    On March 18, 2002, CBO prepared a cost estimate for H.R. 
3925 as ordered reported by the House Committee on Government 
Reform on March 14, 2002. The two estimates differ because the 
Judiciary Committee's version of H.R. 3925 would place 
additional reporting requirements on OPM and GAO, and because 
it would impose new civil and criminal penalities.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for Federal costs), who can be reached at 226-2860, 
and Susan Sieg Tompkins (for the State and local impact), who 
can be reached at 225-3220. The estimate was approved by Peter 
H. Fontaine, Deputy Assistant Director for Budget Analysis 
Division.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, of the Constitution.

               Section-by-Section Analysis and Discussion

               Section 1. Short Title; Table of Contents

    This section provides that the short title of the bill is 
the ``Digital Tech Corps Act of 2002.''

                          Section 2. Findings

    This section of the bill provides the following 
congressional findings--

        (1) Lunless action is taken soon, there will be a 
        crisis in the government's ability to deliver essential 
        services to the American people;

        (2) Lby 2006, over 50 percent of the Federal 
        Government's information technology workforce will be 
        eligible to retire, creating a huge demand in the 
        Federal Government for high-skill workers;

        (3) Ldespite a 44 percent decrease in the demand for 
        information technology workers in the private sector, 
        the Information Technology Association of America 
        reported in 2001 that employers will need to fill over 
        900,000 new information technology jobs and will be 
        unable to find qualified workers for 425,000 of those 
        jobs;

        (4) Lto highlight the urgency of this situation, in 
        January 2001, the General Accounting Office added the 
        Federal Government's human capital management to its 
        list of high-risk problems for which an effective 
        solution must be found;

        (5) Ldespite efforts to increase flexibility in Federal 
        agencies' employment practices, compensation issues 
        continue to severely restrain recruitment for Federal 
        agencies; and

        (6) Lan effective, efficient, and economical response 
        to this crisis would be to create a vibrant, on-going 
        exchange effort designed to share talent, expertise, 
        and advances in management between leading-edge 
        businesses and Federal agencies engaged in best 
        practices.

          Section 3. Information Technology Exchange Program.

    This section of the bill provides that in general Subpart B 
of part III of title 5, of the United States Code is amended by 
adding Chapter 37--Information Technology Exchange Program at 
the end.
``Chapter 37--Information Technology Exchange Program''
Section 3701. Definitions.
    This new section of title 5 defines ``agency'' and 
``detail.''
Section 3702. General Provisions.
    This new section of title 5 authorizes the head of any 
agency to arrange for the assignment of an employee of the 
agency to a private sector organization or an employee of a 
private sector organization to the agency.
    Additionally, this section requires that each agency 
exercising this authority provide for a written agreement 
between the agency and the employee concerned regarding the 
terms and conditions of the employee's assignment. These 
assignments may be terminated for any reason at any time. The 
assignments may be for 6 months to 1 year. The duration may be 
extended in 3-month increments for an additional year. The 
Chief Information Officers Council may assist in the 
administration of this chapter.
    Additionally, this section includes a sunset provision that 
requires this Act to sunset after 5 years.
Section 3703. Assignment of employees to private sector organizations.
    This new section of title 5 governs the assignments of 
Federal employees to private sector organizations. Under this 
section a Federal employee detailed to a private sector 
organization retains his government pay, credits for step 
increases, retention, worker's compensation, sick and leave 
accrual, insurance and retirement benefits. Additionally, 
subparagraph (d) of this section provides that Federal 
employees detailed under this program will continue to be 
covered by the Federal Tort Claims Act and any other applicable 
tort liability statutes.
Section 3704. Assignment of employees from private sector 
        organizations.
    This new section of title 5 governs the assignment of 
private sector employees to Federal Government agencies. This 
section requires that private sector employees adhere to 
Federal employee ethics, revolving door prohibitions (prohibits 
lobbying for a period of time after leaving government 
employment), and accountability provisions during and after 
their assignments in the Digital Tech Corps. Much of these 
requirements are within title 18 of the United States Code. The 
Committee believes any exceptions to these requirements must be 
included under title 18 and amended the bill accordingly.
    Specifically, a private sector employee under Sec. 3704 is 
deemed a Federal Government employee for purposes of:

        (1) LThe Hatch Act (Chapter 73). This puts a Tech Corps 
        private sector volunteer that is detailed to a Federal 
        agency under the provisions of the Hatch Act.

        (2) L18 U.S.C. Sec. Sec. 201, 203, 205, 207, 208, 209, 
        603, 603, 607, 643, 654, 1905, and 1913. These criminal 
        law provisions apply to Digital Tech Corps participants 
        and include: (1) acting as a lobbyist (for 1 year after 
        the exchange); (2) accepting bribes for official work; 
        (3) aiding in the obtaining of contracts (1 year 
        after); (4) suing the government (other than in the 
        proper discharge of official duties); (5) revolving 
        door activities; (6) financial conflicts of interest; 
        (7) making political contributions; (8) intimidation to 
        secure political contributions; (9) receipt of 
        political contributions; (10) embezzlement; (11) 
        disclosure of confidential information/trade secrets 
        (for 3 years after detail); and (12) lobbying with 
        appropriated moneys.

        (3) L31 U.S.C. Sec. Sec. 1343, 1344, and 1349(b): These 
        provisions set out that Tech Corps detailees are 
        forbidden to have government funded transportation 
        furnished for their use.

        (4) LEthics in Government Act of 1978.

        (5) LSection 1043 of the Internal Revenue Code of 1986: 
        This provision affects sale of property to resolve 
        financial conflicts of interest and specifies how the 
        IRS treats these sales.

        (6) L41 U.S.C. 423 (Section 27 of the Office of Federal 
        Procurement Policy Act). This provision prohibits Tech 
        Corps detailees from disclosing procurement 
        information, during and for 3 years after the detail. 
        \4\
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    \4\ H.R. Rep. No. 107-379, pt. 1, at 11.

Sec. 3705. Application to Office of Chief Technology Officer of the 
        District of Columbia.
    This new section of title 5 provides that the Digital Tech 
Corps program would apply to IT workers and agencies in the 
District of Columbia Government.
Sec. 3706. Reporting Requirements.
    This section requires the GAO and the Office of Personnel 
Management (OPM) to report to the House and Senate Committees 
on Government Reform.
Sec. 3707. Regulations.
    This section requires that the Office of Personnel 
Management (OPM) set forth regulations regarding this act.
Sec. 4. Ethics Provisions.
    Subparagraph (a) of this section of the bill would amend 
title 18 U.S.C. Sec. 207(c)(2)(A) to cover the private sector 
employee assigned to a Federal agency. Section 207 restricts a 
Federal employee from lobbying the Federal Government for 
specific duration after the termination of that employee's 
Federal job. This section would extend the prohibition to the 
private sector employees who are detailed to a Federal agency 
under the Digital Tech Corps Program.
    Subparagraph (b) of this section of the bill would amend 
title 18 U.S.C. Sec. 1905 to cover the private sector employee 
assigned to a Federal agency. Section 1905 prohibits Federal 
employees from disclosing confidential information. This 
section would extend that prohibition to the private sector 
employees who are detailed to a Federal agency under the 
Digital Tech Corps Program and extend that prohibition for 3 
years after the detail has ended.
    Subparagraph (c) of this section would amend title 18 
U.S.C. 207 by adding a new section. That section would prohibit 
a former private detailee, for 1 year after the end of the 
detail, from knowingly representing or aiding, counseling, or 
assisting in representing any other person in connection with 
any contract with the agency to which the private employee was 
detailed.
    Subparagraph (d) of this section would amend section 27 of 
the Office of Federal Procurement Policy Act (41 U.S.C. 423) by 
adding a new sentence that would restrict an employee of a 
private sector organization assigned to an agency from 
knowingly disclosing contractor bid or proposal information or 
source selection information during the 3-year period after the 
end of the detail.
    The Committee believes that it is important to apply these 
prohibitions and restrictions consistently throughout the 
Federal Government to ensure the integrity of the Federal 
workforce as well as this exchange program.
Sec. 5. Report on Existing Exchange Programs.
    This section of the bill would require that OPM prepare and 
submit within a year of enactment to the Senate and House 
Government Reform Committees a report identifying all existing 
exchange programs.
Sec. 6. Technical and Conforming Amendments.
    This section of the bill would provide technical and 
conforming amendments.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported by the Committee on Government Reform, 
are shown in Report 107-379 part 1, filed on March 18, 2002.

    The Committee on the Judiciary adopted amendments (shown at 
the beginning of this report) to the bill as reported by the 
Committee on Government Reform. Changes in provisions of 
existing law that would result from those amendments and differ 
from the changes that would result from the bill as reported by 
the Committee on Government Reform are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italics, and existing law in 
which no change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
                          PART III--EMPLOYEES

           *       *       *       *       *       *       *


          CHAPTER 37--INFORMATION TECHNOLOGY EXCHANGE PROGRAM

           *       *       *       *       *       *       *


Sec. 3704. Assignment of employees from private sector organizations

    (a) In General.--An employee of a private sector 
organization assigned to an agency under this chapter is 
deemed, during the period of the assignment, to be on detail to 
such agency.
    (b) Terms and Conditions.--An employee of a private sector 
organization assigned to an agency under this chapter--
            (1) may continue to receive pay and benefits from 
        the private sector organization from which he is 
        assigned;

           *       *       *       *       *       *       *

                              ----------                              


                      TITLE 18, UNITED STATES CODE

                           PART I--CRIMES

           *       *       *       *       *       *       *


        CHAPTER 11--BRIBERY, GRAFT, AND CONFLICTS OF INTEREST

           *       *       *       *       *       *       *


Sec. 207. Restrictions on former officers, employees, and elected 
                    officials of the executive and legislative branches

    (a) * * *

           *       *       *       *       *       *       *

    (c) One-Year Restrictions on Certain Senior Personnel of 
the Executive Branch and Independent Agencies.--
            (1) * * *
            (2) Persons to whom restrictions apply.--(A) 
        Paragraph (1) shall apply to a person (other than a 
        person subject to the restrictions of subsection (d))--
                    (i) * * *
                    (iii) appointed by the President to a 
                position under section 105(a)(2)(B) of title 3 
                or by the Vice President to a position under 
                section 106(a)(1)(B) of title 3, [or]
                    (iv) employed in a position which is held 
                by an active duty commissioned officer of the 
                uniformed services who is serving in a grade or 
                rank for which the pay grade (as specified in 
                section 201 of title 37) is pay grade O-7 or 
                above[.]; or

           *       *       *       *       *       *       *

                    (v) assigned from a private sector 
                organization to an agency under chapter 37 of 
                title 5.

           *       *       *       *       *       *       *


Sec. 209. Salary of Government officials and employees payable only by 
                    United States

    (a) * * *

           *       *       *       *       *       *       *

    (g)(1) This section does not prohibit an employee of a 
private sector organization, while assigned to an agency under 
chapter 37 of title 5, from continuing to receive pay and 
benefits from such organization in accordance with such 
chapter.
    (2) For purposes of this subsection, the term ``agency'' 
means an agency (as defined by section 3701 of title 5) and the 
Office of the Chief Technology Officer of the District of 
Columbia.

           *       *       *       *       *       *       *


               CHAPTER 93--PUBLIC OFFICERS AND EMPLOYEES

           *       *       *       *       *       *       *


Sec. 1905. Disclosure of confidential information generally

    Whoever, being an officer or employee of the United States 
or of any department or agency thereof, any person acting on 
behalf of the Office of Federal Housing Enterprise Oversight, 
or agent of the Department of Justice as defined in the 
Antitrust Civil Process Act (15 U.S.C. 1311-1314), or being an 
employee of a private sector organization who is or was 
assigned to an agency under chapter 37 of title 5, publishes, 
divulges, discloses, or makes known in any manner or to any 
extent not authorized by law any information coming to him in 
the course of his employment or official duties or by reason of 
any examination or investigation made by, or return, report or 
record made to or filed with, such department or agency or 
officer or employee thereof, which information concerns or 
relates to the trade secrets, processes, operations, style of 
work, or apparatus, or to the identity, confidential 
statistical data, amount or source of any income, profits, 
losses, or expenditures of any person, firm, partnership, 
corporation, or association; or permits any income return or 
copy thereof or any book containing any abstract or particulars 
thereof to be seen or examined by any person except as provided 
by law; shall be fined under this title, or imprisoned not more 
than one year, or both; and shall be removed from office or 
employment.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, MARCH 20, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:50 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    First up is a proposed change in the name of the 
Subcommittee on Crime to the Subcommittee on Crime, Terrorism, 
and Homeland Security.
    This is in keeping with the true style of other Committees 
in the Capitol who fancy names in expanded jurisdiction.
    And without objection, the name change is approved, and all 
Members may insert statements in the record.
    Now, second on the agenda is H.R. 3925, which establishes 
an exchange program between the Federal Government and the 
private sector to promote the development of expertise in 
information technology management and for other purposes.
    [The bill, H.R. 3925, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. Let me say that I would hope that 
the Committee will deal with this bill expeditiously. It was 
scheduled to be on the floor today. I had a heated conversation 
with the majority leader, asserting the Committee's 
jurisdiction, so we got it pulled off the floor. And we have a 
sequential that expires like tonight.
    So in order to make sure that we have jurisdiction and we 
keep jurisdiction on other bills of this nature that will come 
up in the future, we need to report the bill out today 
favorably, adversely, or whatever.
    And with that, I yield to the gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    H.R. 3925, the ``Digital Tech Corps Act of 2002'' was 
referred to this Committee because of the criminal provisions 
related to ethics requirements for Federal employees. The 
Committee was given 1 day to report the bill, as you just 
mentioned. Although this referral time is short, I hope my 
colleagues will support the bill.
    And I will have one amendment, in a few minutes, to offer 
to it.
    This bill provides a creative solution to a looming problem 
within the Federal Government. As Chairman of the Subcommittee 
on Crime, I'm particularly interested in high-tech issues 
related to law enforcement and homeland security.
    Just recently, the Subcommittee reported out the Cyber 
Security Enhancement Act of 2002. This bill, as well as several 
other bills under the Committee's jurisdiction, are designed to 
improve the Federal Government's efforts to become more 
technologically advanced.
    The Digital Tech Corps Act of 2002, which we are now 
considering, will go even further to address this effort. It 
will allow private sector employees detailed to Federal 
agencies to be deemed Federal employees for certain purposes. 
As such, they must adhere to the same ethics, revolving-door 
prohibitions, and accountability provisions covering Federal 
employees.
    We have provided the resources for law enforcement and 
other Government entities to improve their technology. We have 
also updated the criminal laws to account for new technology. 
This bill provides an incentive to promote the development of 
expertise and information technology management among the 
Federal workforce.
    The General Accounting Office has found that the Federal 
Government is facing a substantial shortage of high-tech 
workers and that the shortage will worsen because 34 percent of 
the Federal workforce will be eligible to retire in the next 5 
years.
    Expected retirements are even worse for the information 
technology fields, where the GAO estimates that 50 percent of 
the Government's technological workforce are eligible to retire 
by 2006.
    Information technology is essential to our national 
security, law enforcement efforts, and the economy. This 
program will expose Federal employees to more leading-edge 
information technology and should also make Federal service 
more attractive to the private sector employees.
    I support the bill and hope my colleagues will do the same.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott, do you have an opening statement?
    Mr. Scott. Which bill is this?
    Chairman Sensenbrenner. This is the Digital Information 
Corps. Act of 2002.
    Okay, all Members will be allowed to put opening statements 
in the record.
    For what purpose does the gentlewoman from California seek 
recognition?
    Ms. Lofgren. Mr. Chairman, I wanted to clarify for the 
record an ambiguity that might exist in H.R. 3925.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. At page 8, lines 15 through 18, the bill 
states that an employee of a private sector organization 
assigned to an agency is deemed an employee of the agency for 
purposes of section 208 of title 18.
    Section 208 makes it a crime for a Federal employee to take 
any action in their official capacity if they have a personal 
financial interest in the matter or if an organization in which 
they are serving as an employee has a financial interest in the 
matter.
    I have no doubt that the authors of H.R. 3925 intended to 
make detailees fully subject to this requirement. However, 
because the bill considers detailees employees of the agency, 
there is some ambiguity over whether they will be permitted to 
work on matters that have a financial impact on their private 
organizations.
    I was planning to introduce an amendment to clarify this 
ambiguity, but legislative counsel has assured my staff that a 
fair reading of the bill and section 208 already prohibits 
detailees from working on such matters. I wanted to be clear, 
for the record, though, that while detailees are considered 
employees of the agency, subject to section 208, they are also 
employees of their private organization that are prohibited 
from working on matters that affect the financial interests of 
their company.
    I think we all agree that section 208 provides strong 
ethical protections that prevent public acts taken for private 
gain.
    Thank you, Mr. Chairman, for allowing me to clarify that 
these provisions fully apply to detailees. And I yield back the 
balance of my time.
    Chairman Sensenbrenner. Are there amendments?
    The gentleman from Texas, Mr. Smith.
    Mr. Smith. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 3925, as reported, offered by 
Mr. Smith of Texas.
    Mr. Smith. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. And the gentleman is recognized for 
5 minutes.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, section 3 of H.R. 3925 provides for an 
information technology exchange program. Section 3704 of title 
5 permits the assignment of private sector employees to Federal 
Government agencies as part of this program.
    Title 18 U.S.C., paragraph 209, currently prohibits a 
Federal employee from receiving salary or any compensation for 
his or her services as a Federal employee from any source other 
than the U.S. Government.
    The bill permits a private sector employer to continue to 
compensate its employee while that employee is detailed to the 
Federal Government. Accordingly, my amendment simply moves the 
exception from title 5 to title 18 U.S.C. 209 and permits the 
private sector employer participating in the program to 
continue to pay the private sector detailee's salary and 
benefits.
    This amendment also includes a grammatical correction to 
section 4 of the bill, at the recommendation of legislative 
counsel.
    And, Mr. Chairman, I urge my colleagues to support the 
amendment and yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment by 
the gentleman from Texas.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments?
    If not, the Chair notes the presence of a----
    Mr. Nadler. Mr. Chairman, I have an amendment.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Nadler. Mr. Chairman, I am offering Mr. Conyers' 
amendment.
    Chairman Sensenbrenner. The clerk will report the Conyers 
amendment, which is not the Conyers amendment anymore. 
[Laughter.]
    The Conyers amendment has arrived. Now the clerk will 
report the amendment.
    The Clerk. Amendment to H.R. 3925, as reported, offered by 
Mr. Conyers of Michigan--Mr. Nadler of Michigan--Mr. Nadler of 
New York. [Laughter.]
    Page 14, line----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the gentleman from New York is 
recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    I just want to clarify that I am offering Mr. Conyers' 
amendment not his district. [Laughter.]
    Mr. Chairman, this bill gives people in the private sector 
short-term contracts to supervise information technology 
programs and departments in the Government. This raises an 
issue as to how we can assure that their loyalty to their 
private firms and industry will not come before their 
commitment to the public duties of the agency that is serving 
the taxpayers. These detailees, who have all kinds of access to 
private information that exists in the Government databases--
confidential information involving individuals, private 
companies, even their private industry competitors.
    That is why I am offering an amendment that will protect 
this information. There is no reason for trade secrets, private 
information, and unpublished information that is valuable to a 
company in a competitive market, to be given away by the 
Government through this program.
    Post-employment ethics laws are not enough to prevent 
people from cashing in on information when they can. This 
amendment will ensure that any private sector employee who 
learns a trade secret in the course of Government detail will 
be prohibited from disclosing such secrets.
    I still have concerns about private sector employees having 
any access whatsoever to a competitor's proprietary 
information, and wanted to offer a broader amendment. However, 
I appreciate the Chairman working with us on this narrower 
attempt to fix this aspect of the bill.
    There's no reason to allow such individuals to profit from 
confidential information and trade secrets 1 or 2 or 3 years 
after their employment has terminated. If the information is a 
trade secret or a nonpublic disclosure of value, someone 
seeking to steal that information and gain from it should be 
prevented from doing so at any time.
    As a result, this amendment removes the provision that 
would allow sharing confidential information after 3 years. 
This is not in any way a partisan issue, and I hope all or 
colleagues on both sides of the aisle will support this common-
sense amendment.
    Thank you, Mr. Chairman. I yield back.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Mr. Chairman, I don't know whether to recommend 
supporting or opposing this amendment. I do have a couple 
questions for the gentleman from New York.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Thank you.
    Mr. Chairman, let me direct my first question to Mr. 
Nadler, and it is this, if I could get his attention for a 
minute?
    I was wondering why the gentleman from New York thought it 
was necessary to go beyond the 3-year limit we already have in 
the bill and make it, in effect, permanent. It seems to me that 
under normal procedure and under normal statutes, where usually 
you cannot share privileged information for 1 year, we already 
have----
    Mr. Nadler. I can't hear you. Usually what?
    Mr. Smith. I'm asking you why it's necessary to make----
    Mr. Nadler. I heard that. I didn't hear what you said after 
the word ``usually.''
    Mr. Smith. Permanent instead of just allowing the 3-year 
term we have in the bill. It seems to me that we might well 
argue that the amendment is too broad and unnecessarily long 
and in its application, where most statutes just prohibit the 
sharing of information for 1 year, you have a 3-year protection 
in the bill. And you're making it permanent forever.
    Mr. Nadler. Will the gentleman yield?
    Mr. Smith. I'd be happy to yield.
    Mr. Nadler. Thank you.
    The reason for the necessity of a longer period here is 
that it's the use--it's that the power of Government is used to 
obtain--could be used to spread or obtain this information.
    In other words, normally, you work for company A, you 
leave, you go to company B. There's a statute.
    Mr. Smith. Right.
    Mr. Nadler. But if you work for the Federal Government, 
you're detailed to work company A, you go back to the Federal 
Government. While you're at the Federal Government maybe later 
you go to company B or maybe while you're at the Federal 
Government you give that information. The fact is the Federal 
Government is intruding here, and that should be prohibited 
without a time limit.
    In other words, if it weren't for the action of Government, 
you wouldn't have that information in the first place.
    Mr. Smith. Right. But as you just pointed out, in normal 
statutes, you say 1-year prohibition. You've got a permanent; 
we have a 3-year in the bill. It just seems to me that 3-year 
would be adequate.
    Let me also ask the gentleman to consider section----
    Mr. Nadler. Let me just answer that for a second?
    Mr. Smith. Okay.
    Mr. Nadler. The principle is that since you learned this 
information in this company because of the Government action, 
you should never be able to disclose it to the detriment of 
that company. This isn't simply a private employment contract.
    Mr. Smith. Okay. But the situation that the gentleman 
just--reclaiming my time, the situation that the gentleman just 
described, which might also be called a conflict of interest or 
taking some action for financial gain, is covered by section 
208 within the bill already. So I don't know why, if that's 
your concern, we wouldn't have already covered it?
    Mr. Nadler. But for the fact--will the gentleman yield?
    Mr. Smith. Yes.
    Mr. Nadler. But the for the fact that you worked in the 
Government agency, you would never have learned the trade 
secret of the competitor. It isn't the situation where you're 
going from one company to another.
    Because you work in a Government agency, you learn this 
trade secret. You should never be able to take advantage of 
that, because you learned it because of the Government action, 
because you're a Government employee.
    In other words, the company is compelled to give this 
information to the Government. In a normal situation, you work 
for company A; in the course of that, company A willingly lets 
you learn information, knowing that at some point you're going 
to leave----
    Mr. Smith. Let me reclaim my time. Let me reclaim my time.
    Mr. Chairman, I know that the gentleman amendment is well-
motivated, and I'll take him at his word, and I'll go on and 
support it. But I do think it's unnecessary, both unnecessarily 
broad and unnecessary because of section 208.
    But I'd recommend that we go on and approve it.
    Mr. Nadler. I appreciate that.
    Chairman Sensenbrenner. The question is on the amendment by 
the gentleman from New York, Mr. Nadler, a derivative of the 
gentleman from Michigan, Mr. Conyers.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to.
    Are there further amendments?
    If not, the Chair notes the presence of a reporting quorum.
    Those in favor of reporting the bill favorably will say 
aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the bill 
as amended is reported favorably.
    Without objection, the bill be reported--without objection, 
all Members will have 2 days in which to submit additional 
supplemental, dissenting, or minority views. And without 
objection, the Chair will be authorized to go to conference 
pursuant to House rules.
                            Dissenting Views

    I dissent from the Committee Report on H.R. 3925. While 
improvements were made in the bill during the Committee's 
markup of the legislation, troubling aspects of the bill remain 
that fall outside of the Judiciary Committee's jurisdiction and 
were, therefore, unaddressed at markup. Primary among these 
concerns is the concern that, while the bill purports to 
enhance training for high tech and Government workers, no 
training component is required by the bill. Additional concerns 
are discussed herein.
    The ``Digital Tech Corps Act'' would create an exchange 
program for mid-level information technology workers in the 
Government and private sector. The central goal of the bill is 
to create ``cross-pollenization'' between the public and 
private sector information technology workforce so that 
employees of each will receive specialized training unavailable 
with their current employers. The bill is also designed to 
address purported shortage of information technology workers in 
the Federal Government, where half of that workforce may retire 
by 2006.

                               Background

    On March 20, 2002, the full Judiciary Committee marked up 
the bill and voted to report it favorably out of Committee by 
voice vote after adopting two amendments. Rep. Jerrold Nadler 
(D-NY) offered an amendment on my behalf which would prevent 
private workers on loan to the Government from revealing 
confidential information and trade secrets acquired during 
their Federal Government assignments. Previously, the bill 
allowed private sector workers to disclose such information 
only 3 years after leaving their Federal assignment. The 
Committee also adopted an amendment by Rep. Lamar Smith (R-TX) 
which protects private sector employee's private pay and 
benefits during their Federal Government assignment.
    Specifically, the bill allows, but does not require, that 
upon the request of a private sector organization, an agency 
can ``detail'' one of its employees to a private sector 
organization or accept the assignment of a private sector 
employee to the agency. An employee who is eligible to 
participate in this program must work in IT management, be an 
exceptional employee and someone who is expected to assume an 
increased managerial role in the future. For Government 
employees to participate, they must be career appointees, as 
opposed to political appointees, as serve under a GS-11 level 
or above.
    Any employee of a Federal agency must agree that they will 
serve in civil service after being detailed to a private sector 
organization for at least the length of the detail. 
Additionally, the bill specifies that Federal employees will 
continue to receive Federal employment benefits to the extent 
such benefits are not duplicative of those provided by the 
private entity and Federal employees are covered by the Federal 
Tort Claims Act while on detail to the private sector.
    Any employee of a private sector organization detailed to a 
Government agency may be paid by the private entity and is 
covered by a number of the same laws as Federal employees.
    Both Government and private sector employees are limited to 
6 month to 1 year assignments, and thereafter may receive 
additional 3 month extensions up to one additional year.
    Private sector employees who participate in this program 
are subject to a number of ethics rules. First, such employees 
may not lobby the agency to which they were detailed for 1 year 
after the detail expires. Second, such employees are barred 
from disclosing trade secrets discovered during the course of a 
detail. Third, such employees are prohibited for 1 year from 
assisting an employer in getting a contract from the agency to 
which they were detailed. Fourth, such employees may not 
disclose bidding information discovered during the course of a 
detail.

                      Concerns Raised by H.R. 3925

    I am concerned that the bill fails to require that 
employees participate in any training program that will assure 
that the central goal of the program is met. There is no 
requirement that the assignment accomplish any defined training 
objectives. Federal employees will simply be sent upon request 
from the private sector, regardless of whether that assignment 
meets the Government's needs. During the markup of this bill in 
the Government Reform Committee, Rep. Henry A. Waxman (D-CA) 
offered an amendment that would have established a 
comprehensive training program for information technology 
workers, run by the Office of Personnel Management. This 
amendment was defeated. If the goal of this program is to train 
Government workers, then it should be run by people with 
expertise in training who can keep the overall training needs 
of the Government's information technology workforce in mind. 
Rep. Waxman's amendment would have ensured this.
    My second concern involves employees access to trade 
secrets. While--because of the enactment of the Conyers 
amendment--the bill does restrict the disclosure of trade 
secrets and other proprietary information uncovered by a 
private sector employee on detail, I remain concerned about 
whether private sector employees should have access to this 
information at all. It appears manifestly unfair to give a 
private sector employee detailed to the Federal Government 
access to a competitor's most confidential information, 
information the competitor gave to the Government upon 
assurances it would remain confidential.
    A related issue is the degree to which private sector 
employees detailed to the Government should be permitted to 
personally participate in a decision, approval, recommendation 
or advisory process involving or affecting the financial 
interests of his or her private company. The Office of 
Legislative Counsel has suggested that this is not a valid 
concern because these detailed employees would be covered by 
existing Federal laws which prohibit involvement in matters in 
which an employee has a personal financial interest. I believe, 
however, that this should be made explicit in the bill.
    My third concern is that the bill does not require that the 
number of employees detailed to the private sector be matched 
by private sector employees detailed to the agency. As such, 
there are concerns that Government employees may be used to 
assist ailing private sector companies. Furthermore, there are 
no limits on the number of Federal employees who can be sent 
out to work in these companies at taxpayer expense. The bill 
would also require taxpayers to pay for both private sector 
employees who are detailed to the Government and Government 
employees who are detailed to the private sector. The costs of 
private sector employee's salary and benefits while on 
assignment to the Government could be billed back to the 
Federal Government as overhead on certain contracts.
    The lack of safeguards in these areas raises several 
important questions. At a time when the Federal Government 
expects to face a shortage in the Government's information 
technology workforce, this program will allow even more of 
these Federal workers to leave their current positions by 
sending some of them into the private sector and it is, 
therefore, unclear how that achieves the goal of meeting 
Federal information technology needs. Some have suggested that 
it does not because the actual purpose of the bill is to create 
a holding place of temporary jobs for under employed tech 
workers whose companies have been hit by the economic downturn. 
It also sends Federal employees, paid with Federal taxpayer 
money, to private corporations to help those companies advance 
their information technology work and profits.
    Finally, I am concerned about the cost of this new program. 
The Congressional Budget Office has estimated that the costs of 
this program will be approximately $500,000. I believe this 
estimate is very low because there is no limit on the number of 
Federal employees who may be on assignment to the private 
sector at a time, those employees may need to be replaced by 
contract employees or new hires outside of this program, and 
the Federal Government may get charged for some of the private 
employees salaries and benefits under Government contracts. 
Nonetheless, this bill does not provide for any new 
authorizations, budgeting authority or tax expenditures.

                               Conclusion

    While I am pleased that this bill was improved in the 
Judiciary Committee markup, I remain concerned that in a number 
of critical ways, most notably a lack of training requirements, 
the bill is not narrowly tailored to its stated purpose. 
Because the bill could further efforts of corporate espionage, 
expand corporate welfare, excessively burden the Federal 
budget, and fail to accomplish its core goal of training 
Federal and private sector workers, I dissent from this 
legislation.

                                   John Conyers, Jr.

                                  
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