[House Report 108-116]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-116
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
CIVIL SERVICE AND NATIONAL SECURITY PERSONNEL IMPROVEMENT ACT
_______
May 19, 2003.--Ordered to be printed
_______
Mr. Tom Davis of Virginia, from the Committee on Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1836]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform, to whom was referred the
bill (H.R. 1836) to make changes to certain areas of the
Federal civil service in order to improve the flexibility and
competitiveness of Federal human resources management, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 30
Section-by-Section Analysis...................................... 32
Explanation of Amendments........................................ 41
Committee Consideration.......................................... 42
Rollcall Votes................................................... 42
Application of Law to the Legislative Branch..................... 50
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 50
Statement of General Performance Goals and Objectives............ 50
Constitutional Authority Statement............................... 50
Unfunded Mandate Statement....................................... 50
Committee Estimate............................................... 50
Budget Authority and Congressional Budget Office Cost Estimate... 51
Changes in Existing Law Made by the Bill, as Reported............ 58
Minority Views................................................... 104
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Civil Service and
National Security Personnel Improvement Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM
Sec. 101. Short title.
Sec. 102. Department of Defense national security personnel system.
TITLE II--DEPARTMENT OF DEFENSE CIVILIAN PERSONNEL
Sec. 201. Modification of the overtime pay cap.
Sec. 202. Civil Service Retirement System computation for part-time
service.
Sec. 203. Military leave for mobilized Federal civilian employees.
Sec. 204. Common occupational and health standards for differential
payments as a consequence of exposure to asbestos.
Sec. 205. Increase in annual student loan repayment authority.
Sec. 206. Authorization for cabinet secretaries, secretaries of
military departments, and heads of executive agencies to be paid on a
biweekly basis.
Sec. 207. Additional classes of individuals eligible to participate in
the Federal long-term care insurance program.
Sec. 208. Clarification to Hatch Act; limitation on disclosure of
certain records.
Sec. 209. Senior Executive Service and performance.
Sec. 210. Design elements of pay-for-performance systems in
demonstration projects.
Sec. 211. Federal flexible benefits plan administrative costs.
Sec. 212. Nonreduction in pay while Federal employee is serving on
active duty in a reserve component of the uniformed services.
Sec. 213. Employee surveys.
TITLE III--PROVISIONS RELATING TO THE SECURITIES AND EXCHANGE
COMMISSION AND THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Subtitle A--Securities and Exchange Commission
Sec. 301. Securities and Exchange Commission.
Subtitle B--National Aeronautics and Space Administration
Sec. 311. Workforce authorities and personnel provisions.
TITLE IV--HUMAN CAPITAL PERFORMANCE FUND
Sec. 401. Human Capital Performance Fund.
TITLE V--MISCELLANEOUS
Sec. 501. Prohibition on use of quotas.
TITLE I--DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM
SEC. 101. SHORT TITLE.
This title may be cited as the ``National Security Personnel System
Act''.
SEC. 102. DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM.
(a) In General.--(1) Subpart I of part III of title 5, United States
Code, is amended by adding at the end the following new chapter:
``CHAPTER 99--DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM
``Sec.
``9901. Definitions.
``9902. Establishment of human resources management system.
``9903. Attracting highly qualified experts.
``9904. Employment of older Americans.
``9905. Special pay and benefits for certain employees outside the
United States.
``Sec. 9901. Definitions
``For purposes of this chapter--
``(1) the term `Director' means the Director of the Office of
Personnel Management; and
``(2) the term `Secretary' means the Secretary of Defense.
``Sec. 9902. Establishment of human resources management system
``(a) In General.--Notwithstanding any other provision of this part,
the Secretary may, in regulations prescribed jointly with the Director,
establish, and from time to time adjust, a human resources management
system for some or all of the organizational or functional units of the
Department of Defense. If the Secretary certifies that issuance or
adjustment of a regulation, or the inclusion, exclusion, or
modification of a particular provision therein, is essential to the
national security, the Secretary may, subject to the decision of the
President, waive the requirement in the preceding sentence that the
regulation or adjustment be issued jointly with the Director.
``(b) System Requirements.--Any system established under subsection
(a) shall--
``(1) be flexible;
``(2) be contemporary;
``(3) not waive, modify, or otherwise affect--
``(A) the public employment principles of merit and
fitness set forth in section 2301, including the
principles of hiring based on merit, fair treatment
without regard to political affiliation or other
nonmerit considerations, equal pay for equal work, and
protection of employees against reprisal for
whistleblowing;
``(B) any provision of section 2302, relating to
prohibited personnel practices;
``(C)(i) any provision of law referred to in section
2302(b)(1), (8), and (9); or
``(ii) any provision of law implementing any
provision of law referred to in section 2302(b)(1),
(8), and (9) by--
``(I) providing for equal employment
opportunity through affirmative action; or
``(II) providing any right or remedy
available to any employee or applicant for
employment in the public service;
``(D) any other provision of this part (as described
in subsection (c)); or
``(E) any rule or regulation prescribed under any
provision of law referred to in this paragraph;
``(4) ensure that employees may organize, bargain
collectively as provided for in this chapter, and participate
through labor organizations of their own choosing in decisions
which affect them, subject to the provisions of this chapter
and any exclusion from coverage or limitation on negotiability
established pursuant to law;
``(5) not be limited by any specific law or authority under
this title that is waivable under this chapter or by any
provision of this chapter or any rule or regulation prescribed
under this title that is waivable under this chapter, except as
specifically provided for in this section; and
``(6) include a performance management system that
incorporates the following elements:
``(A) adherence to merit principles set forth in
section 2301;
``(B) a fair, credible, and transparent employee
performance appraisal system;
``(C) a link between the performance management
system and the agency's strategic plan;
``(D) a means for ensuring employee involvement in
the design and implementation of the system;
``(E) adequate training and retraining for
supervisors, managers, and employees in the
implementation and operation of the performance
management system;
``(F) a process for ensuring ongoing performance
feedback and dialogue between supervisors, managers,
and employees throughout the appraisal period, and
setting timetables for review;
``(G) effective safeguards to ensure that the
management of the system is fair and equitable and
based on employee performance; and
``(H) a means for ensuring that adequate agency
resources are allocated for the design, implementation,
and administration of the performance management
system.
``(c) Other Nonwaivable Provisions.--The other provisions of this
part referred to in subsection (b)(3)(D) are (to the extent not
otherwise specified in this title)--
``(1) subparts A, B, E, G, and H of this part; and
``(2) chapters 41, 45, 47, 55 (except subchapter V thereof),
57, 59, 72, 73, and 79, and this chapter.
``(d) Limitations Relating to Pay.--(1) Nothing in this section shall
constitute authority to modify the pay of any employee who serves in an
Executive Schedule position under subchapter II of chapter 53 of this
title.
``(2) Except as provided for in paragraph (1), the total amount in a
calendar year of allowances, differentials, bonuses, awards, or other
similar cash payments paid under this title to any employee who is paid
under section 5376 or 5383 of this title or under title 10 or under
other comparable pay authority established for payment of Department of
Defense senior executive or equivalent employees may not exceed the
total annual compensation payable to the Vice President under section
104 of title 3.
``(3) To the maximum extent practicable, the rates of compensation
for civilian employees at the Department of Defense shall be adjusted
at the same rate, and in the same proportion, as are rates of
compensation for members of the uniformed services.
``(e) Provisions To Ensure Collaboration With Employee
Representatives.--(1) In order to ensure that the authority of this
section is exercised in collaboration with, and in a manner that
ensures the participation of, employee representatives in the planning,
development, and implementation of any human resources management
system or adjustments to such system under this section, the Secretary
and the Director shall provide for the following:
``(A) The Secretary and the Director shall, with respect to
any proposed system or adjustment--
``(i) provide to the employee representatives
representing any employees who might be affected a
written description of the proposed system or
adjustment (including the reasons why it is considered
necessary);
``(ii) give such representatives at least 30 calendar
days (unless extraordinary circumstances require
earlier action) to review and make recommendations with
respect to the proposal; and
``(iii) give any recommendations received from such
representatives under clause (ii) full and fair
consideration in deciding whether or how to proceed
with the proposal.
``(B) Following receipt of recommendations, if any, from such
employee representatives with respect to a proposal described
in subparagraph (A), the Secretary and the Director shall
accept such modifications to the proposal in response to the
recommendations as they determine advisable and shall, with
respect to any parts of the proposal as to which they have not
accepted the recommendations--
``(i) notify Congress of those parts of the proposal,
together with the recommendations of the employee
representatives;
``(ii) meet and confer for not less than 30 calendar
days with the employee representatives, in order to
attempt to reach agreement on whether or how to proceed
with those parts of the proposal; and
``(iii) at the Secretary's option, or if requested by
a majority of the employee representatives
participating, use the services of the Federal
Mediation and Conciliation Service during such meet and
confer period to facilitate the process of attempting
to reach agreement.
``(C)(i) Any part of the proposal as to which the
representatives do not make a recommendation, or as to which
the recommendations are accepted by the Secretary and the
Director, may be implemented immediately.
``(ii) With respect to any parts of the proposal as to which
recommendations have been made but not accepted by the
Secretary and the Director, at any time after 30 calendar days
have elapsed since the initiation of the congressional
notification, consultation, and mediation procedures set forth
in subparagraph (B), if the Secretary, in his discretion,
determines that further consultation and mediation is unlikely
to produce agreement, the Secretary may implement any or all of
such parts (including any modifications made in response to the
recommendations as the Secretary determines advisable), but
only after 30 days have elapsed after notifying Congress of the
decision to implement the part or parts involved (as so
modified, if applicable).
``(iii) The Secretary shall notify Congress promptly of the
implementation of any part of the proposal and shall furnish
with such notice an explanation of the proposal, any changes
made to the proposal as a result of recommendations from the
employee representatives, and of the reasons why implementation
is appropriate under this subparagraph.
``(D) If a proposal described in subparagraph (A) is
implemented, the Secretary and the Director shall--
``(i) develop a method for the employee
representatives to participate in any further planning
or development which might become necessary; and
``(ii) give the employee representatives adequate
access to information to make that participation
productive.
``(2) The Secretary may, at the Secretary's discretion, engage in any
and all collaboration activities described in this subsection at an
organizational level above the level of exclusive recognition.
``(3) In the case of any employees who are not within a unit with
respect to which a labor organization is accorded exclusive
recognition, the Secretary and the Director may develop procedures for
representation by any appropriate organization which represents a
substantial percentage of those employees or, if none, in such other
manner as may be appropriate, consistent with the purposes of this
subsection.
``(f) Provisions Regarding National Level Bargaining.--(1) Any human
resources management system implemented or modified under this chapter
may include employees of the Department of Defense from any bargaining
unit with respect to which a labor organization has been accorded
exclusive recognition under chapter 71 of this title.
``(2) For any bargaining unit so included under paragraph (1), the
Secretary may bargain at an organizational level above the level of
exclusive recognition. Any such bargaining shall--
``(A) be binding on all subordinate bargaining units at the
level of recognition and their exclusive representatives, and
the Department of Defense and its subcomponents, without regard
to levels of recognition;
``(B) supersede all other collective bargaining agreements,
including collective bargaining agreements negotiated with an
exclusive representative at the level of recognition, except as
otherwise determined by the Secretary;
``(C) not be subject to further negotiations for any purpose,
including bargaining at the level of recognition, except as
provided for by the Secretary; and
``(D) except as otherwise specified in this chapter, not be
subject to review or to statutory third-party dispute
resolution procedures outside the Department of Defense.
``(3) The National Guard Bureau and the Army and Air Force National
Guard are excluded from coverage under this subsection.
``(4) Any bargaining completed pursuant to this subsection with a
labor organization not otherwise having national consultation rights
with the Department of Defense or its subcomponents shall not create
any obligation on the Department of Defense or its subcomponents to
confer national consultation rights on such a labor organization.
``(g) Provisions Relating to Appellate Procedures.--(1) The Secretary
shall--
``(A) establish an appeals process that provides that
employees of the Department of Defense are entitled to fair
treatment in any appeals that they bring in decisions relating
to their employment; and
``(B) in prescribing regulations for any such appeals
process--
``(i) ensure that employees of the Department of
Defense are afforded the protections of due process;
and
``(ii) toward that end, be required to consult with
the Merit Systems Protection Board before issuing any
such regulations.
``(2) Any regulations establishing the appeals process required by
paragraph (1) that relate to any matters within the purview of chapter
77 shall--
``(A) provide for an independent review panel, appointed by
the President, which shall not include the Secretary or the
Deputy Secretary of Defense or any of their subordinates;
``(B) be issued only after--
``(i) notification to the appropriate committees of
Congress; and
``(ii) consultation with the Merit Systems Protection
Board and the Equal Employment Opportunity Commission;
``(C) ensure the availability of procedures that--
``(i) are consistent with requirements of due
process; and
``(ii) provide, to the maximum extent practicable,
for the expeditious handling of any matters involving
the Department of Defense; and
``(D) modify procedures under chapter 77 only insofar as such
modifications are designed to further the fair, efficient, and
expeditious resolution of matters involving the employees of
the Department of Defense.
``(h) Provisions Related to Separation and Retirement Incentives.--
(1) The Secretary may establish a program within the Department of
Defense under which employees may be eligible for early retirement,
offered separation incentive pay to separate from service voluntarily,
or both. This authority may be used to reduce the number of personnel
employed by the Department of Defense or to restructure the workforce
to meet mission objectives without reducing the overall number of
personnel. This authority is in addition to, and notwithstanding, any
other authorities established by law or regulation for such programs.
``(2) For purposes of this section, the term `employee' means an
employee of the Department of Defense, serving under an appointment
without time limitation, except that such term does not include--
``(A) a reemployed annuitant under subchapter III of chapter
83 or chapter 84 of this title, or another retirement system
for employees of the Federal Government;
``(B) an employee having a disability on the basis of which
such employee is or would be eligible for disability retirement
under any of the retirement systems referred to in paragraph
(1); or
``(C) for purposes of eligibility for separation incentives
under this section, an employee who is in receipt of a decision
notice of involuntary separation for misconduct or unacceptable
performance.
``(3) An employee who is at least 50 years of age and has completed
20 years of service, or has at least 25 years of service, may, pursuant
to regulations promulgated under this section, apply and be retired
from the Department of Defense and receive benefits in accordance with
chapter 83 or 84 if the employee has been employed continuously within
the Department of Defense for more than 30 days before the date on
which the determination to conduct a reduction or restructuring within
1 or more Department of Defense components is approved pursuant to the
program established under subsection (a).
``(4)(A) Separation pay shall be paid in a lump sum or in
installments and shall be equal to the lesser of--
``(i) an amount equal to the amount the employee would be
entitled to receive under section 5595(c) of this title, if the
employee were entitled to payment under such section; or
``(ii) $25,000.
``(B) Separation pay shall not be a basis for payment, and shall not
be included in the computation, of any other type of Government
benefit. Separation pay shall not be taken into account for the purpose
of determining the amount of any severance pay to which an individual
may be entitled under section 5595 of this title, based on any other
separation.
``(C) Separation pay, if paid in installments, shall cease to be paid
upon the recipient's acceptance of employment by the Federal
Government, or commencement of work under a personal services contract
as described in paragraph (5).
``(5)(A) An employee who receives separation pay under such program
may not be reemployed by the Department of Defense for a 12-month
period beginning on the effective date of the employee's separation,
unless this prohibition is waived by the Secretary on a case-by-case
basis.
``(B) An employee who receives separation pay under this section on
the basis of a separation occurring on or after the date of the
enactment of the Federal Workforce Restructuring Act of 1994 (Public
Law 103-236; 108 Stat. 111) and accepts employment with the Government
of the United States, or who commences work through a personal services
contract with the United States within 5 years after the date of the
separation on which payment of the separation pay is based, shall be
required to repay the entire amount of the separation pay to the
Department of Defense. If the employment is with an Executive agency
(as defined by section 105 of this title) other than the Department of
Defense, the Director may, at the request of the head of that agency,
waive the repayment if the individual involved possesses unique
abilities and is the only qualified applicant available for the
position. If the employment is within the Department of Defense, the
Secretary may waive the repayment if the individual involved is the
only qualified applicant available for the position. If the employment
is with an entity in the legislative branch, the head of the entity or
the appointing official may waive the repayment if the individual
involved possesses unique abilities and is the only qualified applicant
available for the position. If the employment is with the judicial
branch, the Director of the Administrative Office of the United States
Courts may waive the repayment if the individual involved possesses
unique abilities and is the only qualified applicant available for the
position.
``(6) Under this program, early retirement and separation pay may be
offered only pursuant to regulations established by the Secretary,
subject to such limitations or conditions as the Secretary may require.
``(i) Provisions Relating to Reemployment.--If annuitant receiving an
annuity from the Civil Service Retirement and Disability Fund becomes
employed in a position within the Department of Defense, his annuity
shall continue. An annuitant so reemployed shall not be considered an
employee for purposes of chapter 83 or 84.
``(j) Provisions Relating to Hiring.--Notwithstanding subsection (c),
the Secretary may exercise any hiring flexibilities that would
otherwise be available to the Secretary under section 4703.
``Sec. 9903. Attracting highly qualified experts
``(a) In General.--The Secretary may carry out a program using the
authority provided in subsection (b) in order to attract highly
qualified experts in needed occupations, as determined by the
Secretary.
``(b) Authority.--Under the program, the Secretary may--
``(1) appoint personnel from outside the civil service and
uniformed services (as such terms are defined in section 2101
of this title) to positions in the Department of Defense
without regard to any provision of this title governing the
appointment of employees to positions in the Department of
Defense;
``(2) prescribe the rates of basic pay for positions to which
employees are appointed under paragraph (1) at rates not in
excess of the maximum rate of basic pay authorized for senior-
level positions under section 5376 of this title, as increased
by locality-based comparability payments under section 5304 of
this title, notwithstanding any provision of this title
governing the rates of pay or classification of employees in
the executive branch; and
``(3) pay any employee appointed under paragraph (1) payments
in addition to basic pay within the limits applicable to the
employee under subsection (d).
``(c) Limitation on Term of Appointment.--(1) Except as provided in
paragraph (2), the service of an employee under an appointment made
pursuant to this section may not exceed 5 years.
``(2) The Secretary may, in the case of a particular employee, extend
the period to which service is limited under paragraph (1) by up to 1
additional year if the Secretary determines that such action is
necessary to promote the Department of Defense's national security
missions.
``(d) Limitations on Additional Payments.--(1) The total amount of
the additional payments paid to an employee under this section for any
12-month period may not exceed the lesser of the following amounts:
``(A) $50,000 in fiscal year 2004, which may be adjusted
annually thereafter by the Secretary, with a percentage
increase equal to one-half of 1 percentage point less than the
percentage by which the Employment Cost Index, published
quarterly by the Bureau of Labor Statistics, for the base
quarter of the year before the preceding calendar year exceeds
the Employment Cost Index for the base quarter of the second
year before the preceding calendar year.
``(B) The amount equal to 50 percent of the employee's annual
rate of basic pay.
For purposes of this paragraph, the term `base quarter' has the meaning
given such term by section 5302(3).
``(2) An employee appointed under this section is not eligible for
any bonus, monetary award, or other monetary incentive for service
except for payments authorized under this section.
``(3) Notwithstanding any other provision of this subsection or of
section 5307, no additional payments may be paid to an employee under
this section in any calendar year if, or to the extent that, the
employee's total annual compensation will exceed the maximum amount of
total annual compensation payable at the salary set in accordance with
section 104 of title 3.
``(e) Savings Provisions.--In the event that the Secretary terminates
this program, in the case of an employee who, on the day before the
termination of the program, is serving in a position pursuant to an
appointment under this section--
``(1) the termination of the program does not terminate the
employee's employment in that position before the expiration of
the lesser of--
``(A) the period for which the employee was
appointed; or
``(B) the period to which the employee's service is
limited under subsection (c), including any extension
made under this section before the termination of the
program; and
``(2) the rate of basic pay prescribed for the position under
this section may not be reduced as long as the employee
continues to serve in the position without a break in service.
``Sec. 9904. Employment of older Americans
``(a) In General.--Notwithstanding any other provision of law, the
Secretary may appoint older Americans into positions in the excepted
service for a period not to exceed 2 years, provided that--
``(1) any such appointment shall not result in--
``(A) the displacement of individuals currently
employed by the Department of Defense (including
partial displacement through reduction of nonovertime
hours, wages, or employment benefits); or
``(B) the employment of any individual when any other
person is in a reduction-in-force status from the same
or substantially equivalent job within the Department
of Defense; and
``(2) the individual to be appointed is otherwise qualified
for the position, as determined by the Secretary.
``(b) Effect on Existing Retirement Benefits.--Notwithstanding any
other provision of law, an individual appointed pursuant to subsection
(a) who otherwise is receiving an annuity, pension, social security
payment, retired pay, or other similar payment shall not have the
amount of said annuity, pension, social security, or other similar
payment reduced as a result of such employment.
``(c) Extension of Appointment.--Notwithstanding subsection (a), the
Secretary may extend an appointment made pursuant to this section for
up to an additional 2 years if the individual employee possesses unique
knowledge or abilities that are not otherwise available to the
Department of Defense.
``(d) Definition.--For purposes of this section, the term `older
American' means any citizen of the United States who is at least 55
years of age.
``Sec. 9905. Special pay and benefits for certain employees outside the
United States
``The Secretary may provide to certain civilian employees of the
Department of Defense assigned to activities outside the United States
as determined by the Secretary to be in support of Department of
Defense activities abroad hazardous to life or health or so specialized
because of security requirements as to be clearly distinguishable from
normal Government employment--
``(1) allowances and benefits--
``(A) comparable to those provided by the Secretary
of State to members of the Foreign Service under
chapter 9 of title I of the Foreign Service Act of 1980
(Public Law 96-465, 22 U.S.C. 4081 et seq.) or any
other provision of law; or
``(B) comparable to those provided by the Director of
Central Intelligence to personnel of the Central
Intelligence Agency; and
``(2) special retirement accrual benefits and disability in
the same manner provided for by the Central Intelligence Agency
Retirement Act (50 U.S.C. 2001 et seq.) and in section 18 of
the Central Intelligence Agency Act of 1949 (50 U.S.C.
403r).''.
(2) The table of chapters for part III of such title is amended by
adding at the end of subpart I the following new item:
``99. Department of Defense National Security Personnel System9901''.
(b) Impact on Department of Defense Civilian Personnel.--(1) Any
exercise of authority under chapter 99 of such title (as added by
subsection (a)), including under any system established under such
chapter, shall be in conformance with the requirements of this
subsection.
(2) No other provision of this Act or of any amendment made by this
Act may be construed or applied in a manner so as to limit, supersede,
or otherwise affect the provisions of this section, except to the
extent that it does so by specific reference to this section.
TITLE II--DEPARTMENT OF DEFENSE CIVILIAN PERSONNEL
SEC. 201. MODIFICATION OF THE OVERTIME PAY CAP.
Section 5542(a)(2) of title 5, United States Code, is amended--
(1) by inserting ``the greater of'' before ``one and one-
half''; and
(2) by inserting ``or the hourly rate of basic pay of the
employee'' after ``law)'' the second place it appears.
SEC. 202. CIVIL SERVICE RETIREMENT SYSTEM COMPUTATION FOR PART-TIME
SERVICE.
Section 8339(p) of title 5, United States Code, is amended by adding
at the end the following new paragraphs:
``(3) In the administration of paragraph (1)--
``(A) subparagraph (A) of such paragraph shall apply with
respect to pay for service performed before, on, or after April
7, 1986; and
``(B) subparagraph (B) of such paragraph--
``(i) shall apply with respect to that portion of any
annuity which is attributable to service performed on
or after April 7, 1986; and
``(ii) shall not apply with respect to that portion
of any annuity which is attributable to service
performed before April 7, 1986.
``(4) Paragraph (3) shall be effective with respect to any annuity
entitlement to which is based on a separation from service occurring on
or after the date of the enactment of this paragraph.''.
SEC. 203. MILITARY LEAVE FOR MOBILIZED FEDERAL CIVILIAN EMPLOYEES.
(a) In General.--Subsection (b) of section 6323 of title 5, United
States Code, is amended--
(1) in paragraph (2)--
(A) by redesignating subparagraphs (A) and (B) as
clauses (i) and (ii), respectively, and at the end of
clause (ii), as so redesignated, by inserting ``or'';
and
(B) by inserting ``(A)'' after ``(2)''; and
(2) by inserting the following before the text beginning with
``is entitled'':
``(B) performs full-time military service as a result of a
call or order to active duty in support of a contingency
operation as defined in section 101(a)(13) of title 10;''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to military service performed on or after the date of the
enactment of this Act.
SEC. 204. COMMON OCCUPATIONAL AND HEALTH STANDARDS FOR DIFFERENTIAL
PAYMENTS AS A CONSEQUENCE OF EXPOSURE TO ASBESTOS.
(a) Prevailing Rate Systems.--Section 5343(c)(4) of title 5, United
States Code, is amended by inserting before the semicolon at the end
the following: ``, and for any hardship or hazard related to asbestos,
such differentials shall be determined by applying occupational safety
and health standards consistent with the permissible exposure limit
promulgated by the Secretary of Labor under the Occupational Safety and
Health Act of 1970''.
(b) General Schedule Pay Rates.--Section 5545(d) of such title is
amended by inserting before the period at the end of the first sentence
the following: ``, and for any hardship or hazard related to asbestos,
such differentials shall be determined by applying occupational safety
and health standards consistent with the permissible exposure limit
promulgated by the Secretary of Labor under the Occupational Safety and
Health Act of 1970''.
(c) Applicability.--Subject to any vested constitutional property
rights, any administrative or judicial determination after the date of
enactment of this Act concerning backpay for a differential established
under section 5343(c)(4) or 5545(d) of such title shall be based on
occupational safety and health standards described in the amendments
made by subsections (a) and (b).
SEC. 205. INCREASE IN ANNUAL STUDENT LOAN REPAYMENT AUTHORITY.
Section 5379(b)(2)(A) of title 5, United States Code, is amended by
striking ``$6,000'' and inserting ``$10,000''.
SEC. 206. AUTHORIZATION FOR CABINET SECRETARIES, SECRETARIES OF
MILITARY DEPARTMENTS, AND HEADS OF EXECUTIVE
AGENCIES TO BE PAID ON A BIWEEKLY BASIS.
(a) Authorization.--Section 5504 of title 5, United States Code, is
amended--
(1) by redesignating subsection (c) as subsection (d);
(2) by striking the last sentence of both subsection (a) and
subsection (b); and
(3) by inserting after subsection (b) the following:
``(c) For the purposes of this section:
``(1) The term `employee' means--
``(A) an employee in or under an Executive agency;
``(B) an employee in or under the Office of the
Architect of the Capitol, the Botanic Garden, and the
Library of Congress, for whom a basic administrative
workweek is established under section 6101(a)(5) of
this title; and
``(C) an individual employed by the government of the
District of Columbia.
``(2) The term `employee' does not include--
``(A) an employee on the Isthmus of Panama in the
service of the Panama Canal Commission; or
``(B) an employee or individual excluded from the
definition of employee in section 5541(2) of this title
other than an employee or individual excluded by
clauses (ii), (iii), and (xiv) through (xvii) of such
section.
``(3) Notwithstanding paragraph (2), an individual who
otherwise would be excluded from the definition of employee
shall be deemed to be an employee for purposes of this section
if the individual's employing agency so elects, under
guidelines in regulations promulgated by the Office of
Personnel Management under subsection (d)(2).''.
(b) Guidelines.--Subsection (d) of section 5504 of such title, as
redesignated by subsection (a), is amended--
(1) by inserting ``(1)'' after ``(d)''; and
(2) by adding at the end the following new paragraph:
``(2) The Office of Personnel Management shall provide guidelines by
regulation for exemptions to be made by the heads of agencies under
subsection (c)(3). Such guidelines shall provide for such exemptions
only under exceptional circumstances.''.
SEC. 207. ADDITIONAL CLASSES OF INDIVIDUALS ELIGIBLE TO PARTICIPATE IN
THE FEDERAL LONG-TERM CARE INSURANCE PROGRAM.
(a) Certain Employees of the District of Columbia Government.--
Section 9001(1) of title 5, United States Code, is amended by striking
``2105(c),'' and all that follows and inserting ``2105(c).''.
(b) Former Federal Employees Who Would Be Eligible To Begin Receiving
an Annuity Upon Attaining the Requisite Minimum Age.--Section 9001(2)
of title 5, United States Code, is amended--
(1) in subparagraph (A), by striking ``and'' at the end;
(2) in subparagraph (B), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(C) any former employee who, on the basis of his or
her service, would meet all requirements for being
considered an `annuitant' within the meaning of
subchapter III of chapter 83, chapter 84, or any other
retirement system for employees of the Government, but
for the fact that such former employee has not attained
the minimum age for title to annuity.''.
(c) Reservists Transferred to the Retired Reserve Who Are Under Age
60.--Section 9001(4) of title 5, United States Code, is amended by
striking ``including'' and all that follows through ``who has'' and
inserting ``and a member who has been transferred to the Retired
Reserve and who would be entitled to retired pay under chapter 1223 of
title 10 but for not having''.
SEC. 208. CLARIFICATION TO HATCH ACT; LIMITATION ON DISCLOSURE OF
CERTAIN RECORDS.
(a) Clarification to Hatch Act.--No Federal employee or individual
who voluntarily separates from the civil service (including by
transferring to an international organization in the circumstances
described in section 3582(a) of title 5, United States Code) shall be
subject to enforcement of the provisions of section 7326 of such title
(including any loss of rights under subchapter IV of chapter 35 of such
title resulting from any proceeding under such section 7326), except
that this subsection shall not apply in the event that such employee or
individual subsequently becomes reemployed in the civil service. The
preceding sentence shall apply to any complaint which is filed with or
pending before the Merit Systems Protection Board after the date of the
enactment of this Act.
(b) Limitation on Disclosure of Certain Records.--Notwithstanding any
other provision of law, rule, or regulation, nothing described in
paragraph (2) or (3) of use ``q'' of the proposed revisions published
in the Federal Register on July 12, 2001 (66 Fed. Reg. 36613) shall be
considered to constitute a routine use of records maintained by the
Office of Special Counsel.
(c) Definitions.--For purposes of this section--
(1) the term ``Federal employee or individual'' means any
employee or individual, as referred to in section 7326 of title
5, United States Code;
(2) the term ``civil service'' has the meaning given such
term by section 2101 of title 5, United States Code;
(3) the term ``international organization'' has the meaning
given such term by section 3581 of title 5, United States Code;
and
(4) the terms ``routine use'' and ``record'' have the
respective meanings given such terms under section 552a(a) of
title 5, United States Code.
SEC. 209. SENIOR EXECUTIVE SERVICE AND PERFORMANCE.
(a) Senior Executive Pay.--Chapter 53 of title 5, United States Code,
is amended--
(1) in section 5304--
(A) in subsection (g)(2)--
(i) in subparagraph (A) by striking
``subparagraphs (A)-(E)'' and inserting
``subparagraphs (A)-(D)''; and
(ii) in subparagraph (B) by striking
``subsection (h)(1)(F)'' and inserting
``subsection (h)(1)(D)'';
(B) in subsection (h)(1)--
(i) by striking subparagraphs (B) and (C);
(ii) by redesignating subparagraphs (D), (E),
and (F) as subparagraphs (B), (C), and (D),
respectively;
(iii) in clause (ii) by striking ``or'' at
the end;
(iv) in clause (iii) by striking the period
and inserting a semicolon; and
(v) by adding at the end the following new
clauses:
``(iv) a Senior Executive Service position under section
3132;
``(v) a position in the Federal Bureau of Investigation and
Drug Enforcement Administration Senior Executive Service under
section 3151; or
``(vi) a position in a system equivalent to the system in
clause (iv), as determined by the President's Pay Agent
designated under subsection (d).''; and
(C) in subsection (h)(2)(B)--
(i) in clause (i)--
(I) by striking ``subparagraphs (A)
through (E)'' and inserting
``subparagraphs (A) through (C)''; and
(II) by striking ``clause (i) or
(ii)'' and inserting ``clause (i),
(ii), (iii), (iv), (v), or (vii)''; and
(ii) in clause (ii)--
(I) by striking ``paragraph (1)(F)''
and inserting ``paragraph (1)(D)''; and
(II) by striking ``clause (i) or
(ii)'' and inserting ``clause (i),
(ii), (iii), (iv), (v), or (vi)'';
(2) by amending section 5382 to read as follows:
``Sec. 5382. Establishment of rates of pay for the Senior Executive
Service
``(a) Subject to regulations prescribed by the Office of Personnel
Management, there shall be established a range of rates of basic pay
for the Senior Executive Service, and each senior executive shall be
paid at one of the rates within the range, based on individual
performance, contribution to the agency's performance, or both, as
determined under a rigorous performance management system. The lowest
rate of the range shall not be less than the minimum rate of basic pay
payable under section 5376, and the highest rate, for any position
under this system or an equivalent system as determined by the
President's Pay Agent designated under section 5304(d), shall not
exceed the rate for level III of the Executive Schedule. The payment of
the rates shall not be subject to the pay limitation of section 5306(e)
or 5373.
``(b) Notwithstanding the provisions of subsection (a), the
applicable maximum shall be level II of the Executive Schedule for any
agency that is certified under section 5307 as having a performance
appraisal system which, as designed and applied, makes meaningful
distinctions based on relative performance.
``(c) No employee may suffer a reduction in pay by reason of transfer
from an agency with an applicable maximum rate of pay prescribed under
subsection (b) to an agency with an applicable maximum rate of pay
prescribed under subsection (a).''; and
(3) in section 5383--
(A) in subsection (a) by striking ``which of the
rates established under section 5382 of this title''
and inserting ``which of the rates within a range
established under section 5382''; and
(B) in subsection (c) by striking ``for any pay
adjustment under section 5382 of this title'' and
inserting ``as provided in regulations prescribed by
the Office under section 5385''.
(b) Post-Employment Restrictions.--(1) Clause (ii) of section
207(c)(2)(A) of title 18, United States Code is amended to read as
follows:
``(ii) employed in a position which is not referred
to in clause (i) and for which that person is paid at a
rate of basic pay which is equal to or greater than 96
percent of the rate of basic pay for level II of the
Executive Schedule, or, for a period of 2 years
following the enactment of the Federal Employees Pay
for Performance Act of 2003, a person who, on the day
prior to the enactment of that Act, was employed in a
position which is not referred to in clause (i) and for
which the rate of basic pay, exclusive of any locality-
based pay adjustment under section 5304 or section
5304a of title 5, was equal to or greater than the rate
of basic pay payable for level 5 of the Senior
Executive Service on the day prior to the enactment of
that Act,''.
(2) Subchapter I of chapter 73 of title 5, United States Code, is
amended by inserting at the end the following new section:
``Sec. 7302. Post-employment notification
``(a) Not later than the effective date of the amendments made by
sections 3 and 4 of the Federal Employees Pay for Performance Act of
2003, or 180 days after the date of enactment of that Act, whichever is
later, the Office of Personnel Management shall, in consultation with
the Attorney General and the Office of Government Ethics, promulgate
regulations requiring that each Executive branch agency notify any
employee of that agency who is subject to the provisions of section
207(c)(1) of title 18, as a result of the amendment to section
207(c)(2)(A)(ii) of that title by that Act.
``(b) The regulations shall require that notice be given before, or
as part of, the action that affects the employee's coverage under
section 207(c)(1) of title 18, by virtue of the provisions of section
207(c)(2)(A)(ii) of that title, and again when employment or service in
the covered position is terminated.''.
(c) Clerical Amendments.--(1) The table of sections for chapter 53 of
title 5, United States Code, is amended by striking the item relating
to section 5382 and inserting the following:
``5382. Establishment of rates of pay for the Senior Executive
Service.''.
(2) The table of sections for chapter 73 of title 5, United States
Code, is amended by adding after the item relating to section 7301 the
following:
``7302. Post-employment notification.''.
(d) Effective Date and Applicability.--(1) The amendments made by
this section shall take effect on the first day of the first pay period
beginning on or after the first January 1 following the date of
enactment of this section.
(2) The amendments made by subsection (a) may not result in a
reduction in the rate of basic pay for any senior executive during the
first year after the effective date of those amendments.
(3) For the purposes of paragraph (2), the rate of basic pay for a
senior executive shall be deemed to be the rate of basic pay set for
the senior executive under section 5383 of title 5, United States Code,
plus applicable locality pay paid to that senior executive, as of the
date of enactment of this Act.
SEC. 210. DESIGN ELEMENTS OF PAY-FOR-PERFORMANCE SYSTEMS IN
DEMONSTRATION PROJECTS.
A pay-for-performance system may not be initiated under chapter 47 of
title 5, United States Code, after the date of enactment of this Act,
unless it incorporates the following elements:
(1) adherence to merit principles set forth in section 2301
of such title;
(2) a fair, credible, and transparent employee performance
appraisal system;
(3) a link between elements of the pay-for-performance
system, the employee performance appraisal system, and the
agency's strategic plan;
(4) a means for ensuring employee involvement in the design
and implementation of the system;
(5) adequate training and retraining for supervisors,
managers, and employees in the implementation and operation of
the pay-for-performance system;
(6) a process for ensuring ongoing performance feedback and
dialogue between supervisors, managers, and employees
throughout the appraisal period, and setting timetables for
review;
(7) effective safeguards to ensure that the management of the
system is fair and equitable and based on employee performance;
and
(8) a means for ensuring that adequate agency resources are
allocated for the design, implementation, and administration of
the pay-for-performance system.
SEC. 211. FEDERAL FLEXIBLE BENEFITS PLAN ADMINISTRATIVE COSTS.
(a) In General.--Notwithstanding any other provision of law, an
agency or other employing entity of the Government which provides or
plans to provide a flexible spending account option for its employees
shall not impose any fee with respect to any of its employees in order
to defray the administrative costs associated therewith.
(b) Offset of Administrative Costs.--Each such agency or employing
entity that offers a flexible spending account option under a program
established or administered by the Office of Personnel Management shall
periodically forward to such Office, or entity designated by such
Office, the amount necessary to offset the administrative costs of such
program which are attributable to such agency.
(c) Reports.--(1) The Office shall submit a report to the Committee
on Government Reform of the House of Representatives and the Committee
on Governmental Affairs of the Senate no later than March 31, 2004,
specifying the administrative costs associated with the Governmentwide
program (referred to in subsection (b)) for fiscal year 2003, as well
as the projected administrative costs of such program for each of the 5
fiscal years thereafter.
(2) At the end of each of the first 3 calendar years in which an
agency or other employing entity offers a flexible spending account
option under this section, such agency or entity shall submit a report
to the Office of Management and Budget showing the amount of its
employment tax savings in such year which are attributable to such
option, net of administrative fees paid under section (b).
SEC. 212. NONREDUCTION IN PAY WHILE FEDERAL EMPLOYEE IS SERVING ON
ACTIVE DUTY IN A RESERVE COMPONENT OF THE UNIFORMED
SERVICES.
(a) In General.--Subchapter IV of chapter 55 of title 5, United
States Code, is amended by adding at the end the following new section:
``Sec. 5538. Nonreduction in pay while serving on active duty in a
reserve component
``(a) An employee who is also a member of a reserve component and is
absent from a position of employment with the Federal Government under
a call or order to serve on active duty for a period of more than 30
days shall be entitled to receive, for each pay period described in
subsection (b), an amount equal to the difference (if any) between--
``(1) the amount of civilian basic pay that would otherwise
have been payable to the employee for such pay period if the
employee's civilian employment with the Government had not been
interrupted by the service on active duty; and
``(2) the amount of military compensation that is payable to
the employee for the service on active duty and is allocable to
such pay period.
``(b)(1) Amounts under this section shall be payable with respect to
each pay period (which would otherwise apply if the employee's civilian
employment had not been interrupted) that occurs--
``(A) while the employee serves on active duty for a period
of more than 30 days;
``(B) while the employee is hospitalized for, or convalescing
from, an illness or injury incurred in, or aggravated during,
the performance of such active duty; or
``(C) during the 14-day period beginning at the end of such
active duty or the end of the period referred to in
subparagraph (B).
``(2) Paragraph (1) shall not apply with respect to a pay period for
which the employee receives civilian basic pay (including by taking any
annual, military, or other paid leave) to which the employee is
entitled by virtue of the employee's civilian employment with the
Government.
``(c) Any amount payable under this section to an employee shall be
paid--
``(1) by employing agency of the employee;
``(2) from the appropriations or fund that would be used to
pay the employee if the employee were in a pay status; and
``(3) to the extent practicable, at the same time and in the
same manner as would civilian basic pay if the employee's
civilian employment had not been interrupted.
``(d) In consultation with the Secretary of Defense, the Office of
Personnel Management shall prescribe such regulations as may be
necessary to carry out this section.
``(e) In consultation with the Office of Personnel Management, the
head of each employing agency shall prescribe procedures to ensure that
the rights under this section apply to the employees of such agency.
``(f) In this section:
``(1) The terms `active duty for a period of more than 30
days', `member', and `reserve component' have the meanings
given such terms in section 101 of title 37.
``(2) The term `civilian basic pay' includes any amount
payable under section 5304 of this title.
``(3) The term `employing agency', as used with respect to an
employee entitled to any payments under this section, means the
agency with respect to which the employee has reemployment
rights under chapter 43 of title 38. The term `agency' has the
meaning given such term in subparagraph (C) of section
2302(a)(2) of this title, except that the term includes
Government corporations and agencies excluded by clause (i) or
(ii) of such subparagraph.
``(4) The term `military compensation' has the meaning given
the term `pay' in section 101(21) of title 37, except that the
term includes allowances provided under chapter 7 of such
title.''.
(b) Clerical Amendment.--The table of sections for chapter 55 of
title 5, United States Code, is amended by inserting after the item
relating to section 5537 the following:
``5538. Nonreduction in pay while serving on active duty in a reserve
component.''.
(c) Application of Amendment.--Section 5538 of title 5, United States
Code, as added by subsection (a), shall apply with respect to pay
periods (as described in subsection (b) of such section) beginning on
or after the date of the enactment of this Act.
SEC. 213. EMPLOYEE SURVEYS.
(a) In General.--Each agency shall conduct an annual survey of its
employees (including survey questions unique to the agency and
questions prescribed under subsection (b)) to assess--
(1) leadership and management practices that contribute to
agency performance; and
(2) employee satisfaction with--
(A) leadership policies and practices;
(B) work environment;
(C) rewards and recognition for professional
accomplishment and personal contributions to achieving
organizational mission;
(D) opportunity for professional development and
growth; and
(E) opportunity to contribute to achieving
organizational mission.
(b) Regulations.--The Office of Personnel Management shall issue
regulations prescribing survey questions that should appear on all
agency surveys under subsection (a) in order to allow a comparison
across agencies.
(c) Availability of Results.--The results of the agency surveys under
subsection (a) shall be made available to the public and posted on the
website of the agency involved, unless the head of such agency
determines that doing so would jeopardize or negatively impact national
security.
(d) Agency defined.--For purposes of this section, the term
``agency'' means an Executive agency (as defined by section 105 of
title 5, United States Code).
TITLE III--PROVISIONS RELATING TO THE SECURITIES AND EXCHANGE
COMMISSION AND THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Subtitle A--Securities and Exchange Commission
SEC. 301. SECURITIES AND EXCHANGE COMMISSION.
(a) In General.--Subchapter I of chapter 31 of title 5, United States
Code, is amended by adding at the end the following:
``Sec. 3114. Appointment of accountants, economists, and examiners by
the Securities and Exchange Commission
``(a) Applicability.--This section applies with respect to any
position of accountant, economist, and securities compliance examiner
at the Commission that is in the competitive service.
``(b) Appointment Authority.--
``(1) In general.--The Commission may appoint candidates to
any position described in subsection (a)--
``(A) in accordance with the statutes, rules, and
regulations governing appointments in the excepted
service; and
``(B) notwithstanding any statutes, rules, and
regulations governing appointments in the competitive
service.
``(2) Rule of construction.--The appointment of a candidate
to a position under authority of this subsection shall not be
considered to cause such position to be converted from the
competitive service to the excepted service.
``(c) Reports.--No later than 90 days after the end of fiscal year
2003 (for fiscal year 2003) and 90 days after the end of fiscal year
2005 (for fiscal years 2004 and 2005), the Commission shall submit a
report with respect to its exercise of the authority granted by
subsection (b) during such fiscal years to the Committee on Government
Reform and the Committee on Financial Services of the House of
Representatives and the Committee on Governmental Affairs and the
Committee on Banking, Housing, and Urban Affairs of the Senate. Such
reports shall describe the changes in the hiring process authorized by
such subsection, including relevant information related to--
``(1) the quality of candidates;
``(2) the procedures used by the Commission to select
candidates through the streamlined hiring process;
``(3) the numbers, types, and grades of employees hired under
the authority;
``(4) any benefits or shortcomings associated with the use of
the authority;
``(5) the effect of the exercise of the authority on the
hiring of veterans and other demographic groups; and
``(6) the way in which managers were trained in the
administration of the streamlined hiring system.
``(d) Commission Defined.--For purposes of this section, the term
`Commission' means the Security and Exchange Commission.''.
(b) Clerical Amendment.--The table of sections for chapter 31 of
title 5, United States Code, is amended by inserting after the item
relating to section 3113 the following:
``3114. Appointment of accountants, economists, and examiners by the
Securities and Exchange Commission.''.
Subtitle B--National Aeronautics and Space Administration
SEC. 311. WORKFORCE AUTHORITIES AND PERSONNEL PROVISIONS.
(a) In General.--Subpart I of part III of title 5, United States
Code, is amended by inserting after chapter 97, as added by section
841(a)(2) of the Homeland Security Act of 2002 (Public Law 107-296; 116
Stat. 2229), the following:
``CHAPTER 98--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
``SUBCHAPTER I--WORKFORCE AUTHORITIES
``Sec.
``9801. Definitions.
``9802. Planning, notification, and reporting requirements.
``9803. Workforce authorities.
``9804. Recruitment, redesignation, and relocation bonuses.
``9805. Retention bonuses.
``9806. Term appointments.
``9807. Pay authority for critical positions.
``9808. Assignments of intergovernmental personnel.
``9809. Enhanced demonstration project authority.
``9810. Voluntary separation incentive payments.
``9811. Limitations relating to bonuses.
``SUBCHAPTER II--PERSONNEL PROVISIONS
``9831. Definitions.
``9832. NASA-Industry exchange program.
``9833. Science and technology scholarship program.
``9834. Distinguished scholar appointment authority.
``9835. Travel and transportation expenses of certain new appointees.
``9836. Annual leave enhancements.
``9837. Limited appointments to Senior Executive Service positions.
``9838. Superior qualifications pay.
``SUBCHAPTER I--WORKFORCE AUTHORITIES
``Sec. 9801. Definitions
``For purposes of this subchapter--
``(1) the term `Administration' means the National
Aeronautics and Space Administration;
``(2) the term `Administrator' means the Administrator of the
National Aeronautics and Space Administration;
``(3) the term `critical need' means a specific and important
requirement of the Administration's mission that the
Administration is unable to fulfill because the Administration
lacks the appropriate employees because--
``(A) of the inability to fill positions; or
``(B) employees do not possess the requisite skills;
``(4) the term `employee' means an individual employed in or
under the Administration;
``(5) the term `workforce plan' means the plan required under
section 9802(a);
``(6) the term `appropriate committees of Congress' means--
``(A) the Committees on Government Reform, Science,
and Appropriations of the House of Representatives; and
``(B) the Committees on Governmental Affairs,
Commerce, Science, and Transportation, and
Appropriations of the Senate; and
``(7) the term `redesignation bonus' means a bonus under
section 9804 paid to an individual described in subsection
(a)(2) thereof.
``Sec. 9802. Planning, notification, and reporting requirements
``(a) Not later than 90 days before exercising any of the workforce
authorities under this subchapter, the Administrator shall submit a
written plan to the appropriate committees of Congress. A plan under
this subchapter may not be implemented without the approval of the
Office of Personnel Management.
``(b) A workforce plan shall include a description of--
``(1) each critical need of the Administration and the
criteria used in the identification of that need;
``(2)(A) the functions, approximate number, and classes or
other categories of positions or employees that--
``(i) address critical needs; and
``(ii) would be eligible for each authority proposed
to be exercised under section 9803; and
``(B) how the exercise of those authorities with respect to
the eligible positions or employees involved would address each
critical need identified under paragraph (1);
``(3)(A) any critical need identified under paragraph (1)
which would not be addressed by the authorities made available
under this subchapter; and
``(B) the reasons why those needs would not be so addressed;
``(4) the specific criteria to be used in determining which
individuals may receive the benefits described under sections
9804, 9805 (including the criteria for granting bonuses in the
absence of a critical need), and 9810, and how the level of
those benefits will be determined;
``(5) the safeguards or other measures that will be applied
to ensure that this subchapter is carried out in a manner
consistent with merit system principles;
``(6) the means by which employees will be afforded the
notification required under subsections (c) and (d)(1)(B);
``(7) the methods that will be used to determine if the
authorities exercised under this subchapter have successfully
addressed each critical need identified under paragraph (1);
and
``(8)(A) the recruitment methods used by the Administration
before the enactment of this chapter to recruit highly
qualified individuals; and
``(B) the changes the Administration will implement after the
enactment of this chapter in order to improve its recruitment
of highly qualified individuals, including how it intends to
use--
``(i) nongovernmental recruitment or placement
agencies; and
``(ii) Internet technologies.
``(c) Not later than 60 days before first exercising any of the
workforce authorities made available under this subchapter, the
Administrator shall provide to all employees the workforce plan and any
additional information which the Administrator considers appropriate.
``(d)(1)(A) The Administrator may submit any modifications to the
workforce plan to the Office of Personnel Management. Modifications to
the workforce plan may not be implemented without the approval of the
Office of Personnel Management.
``(B) Not later than 60 days before implementing any such
modifications, the Administrator shall provide an appropriately
modified plan to all employees of the Administration and to the
appropriate committees of Congress.
``(2) Any reference in this subchapter or any other provision of law
to the workforce plan shall be considered to include any modification
made in accordance with this subsection.
``(e) Before submitting any written plan under subsection (a) (or
modification under subsection (d)) to the Office of Personnel
Management, the Administrator shall--
``(1) provide to each employee representative representing
any employees who might be affected by such plan (or
modification) a copy of the proposed plan (or modification);
``(2) give each representative 30 calendar days (unless
extraordinary circumstances require earlier action) to review
and make recommendations with respect to the proposed plan (or
modification); and
``(3) give any recommendations received from any such
representatives under paragraph (2) full and fair consideration
in deciding whether or how to proceed with respect to the
proposed plan (or modification).
``(f) None of the workforce authorities made available under this
subchapter may be exercised in a manner inconsistent with the workforce
plan.
``(g) Whenever the Administration submits its performance plan under
section 1115 of title 31 to the Office of Management and Budget for any
year, the Administration shall at the same time submit a copy of such
plan to the appropriate committees of Congress.
``(h) Not later than 6 years after date of enactment of this
subchapter, the Administrator shall submit to the appropriate
committees of Congress an evaluation and analysis of the actions taken
by the Administration under this subchapter, including--
``(1) an evaluation, using the methods described in
subsection (b)(7), of whether the authorities exercised under
this subchapter successfully addressed each critical need
identified under subsection (b)(1);
``(2) to the extent that they did not, an explanation of the
reasons why any critical need (apart from the ones under
subsection (b)(3)) was not successfully addressed; and
``(3) recommendations for how the Administration could
address any remaining critical need and could prevent those
that have been addressed from recurring.
``Sec. 9803. Workforce authorities
``(a) The workforce authorities under this subchapter are the
following:
``(1) The authority to pay recruitment, redesignation, and
relocation bonuses under section 9804.
``(2) The authority to pay retention bonuses under section
9805.
``(3) The authority to make term appointments and to take
related personnel actions under section 9806.
``(4) The authority to fix rates of basic pay for critical
positions under section 9807.
``(5) The authority to extend intergovernmental personnel act
assignments under section 9808.
``(6) The authority to apply subchapter II of chapter 35 in
accordance with section 9810.
``(b) No authority under this subchapter may be exercised with
respect to any officer who is appointed by the President, by and with
the advice and consent of the Senate.
``(c) Unless specifically stated otherwise, all authorities provided
under this subchapter are subject to section 5307.
``Sec. 9804. Recruitment, redesignation, and relocation bonuses
``(a) Notwithstanding section 5753, the Administrator may pay a bonus
to an individual, in accordance with the workforce plan and subject to
the limitations in this section, if--
``(1) the Administrator determines that the Administration
would be likely, in the absence of a bonus, to encounter
difficulty in filling a position; and
``(2) the individual--
``(A) is newly appointed as an employee of the
Federal Government;
``(B) is currently employed by the Federal Government
and is newly appointed to another position in the same
geographic area; or
``(C) is currently employed by the Federal Government
and is required to relocate to a different geographic
area to accept a position with the Administration.
``(b) If the position is described as addressing a critical need in
the workforce plan under section 9802(b)(2)(A), the amount of a bonus
may not exceed--
``(1) 50 percent of the employee's annual rate of basic pay
(including comparability payments under sections 5304 and
5304a) as of the beginning of the service period multiplied by
the service period specified under subsection (d)(1)(B)(i); or
``(2) 100 percent of the employee's annual rate of basic pay
(including comparability payments under sections 5304 and
5304a) as of the beginning of the service period.
``(c) If the position is not described as addressing a critical need
in the workforce plan under section 9802(b)(2)(A), the amount of a
bonus may not exceed--
``(1) 25 percent of the employee's annual rate of basic pay
(including comparability payments under sections 5304 and
5304a) as of the beginning of the service period multiplied by
the service period specified under subsection (d)(1)(B)(i); or
``(2) 100 percent of the employee's annual rate of basic pay
(including comparability payments under sections 5304 and
5304a) as of the beginning of the service period.
``(d)(1)(A) Payment of a bonus under this section shall be contingent
upon the individual entering into a service agreement with the
Administration.
``(B) At a minimum, the service agreement shall include--
``(i) the required service period;
``(ii) the method of payment, including a payment schedule,
which may include a lump-sum payment, installment payments, or
a combination thereof;
``(iii) the amount of the bonus and the basis for calculating
that amount; and
``(iv) the conditions under which the agreement may be
terminated before the agreed-upon service period has been
completed, and the effect of the termination.
``(2) For purposes of determinations under subsections (b)(1) and
(c)(1), the employee's service period shall be expressed as the number
equal to the full years and twelfth parts thereof, rounding the
fractional part of a month to the nearest twelfth part of a year. The
service period may not be less than 6 months and may not exceed 4
years.
``(3) A bonus under this section may not be considered to be part of
the basic pay of an employee.
``(e) Before paying a bonus under this section, the Administration
shall establish a plan for paying recruitment, redesignation, and
relocation bonuses, subject to approval by the Office of Personnel
Management.
``(f) The Administrator shall submit to the appropriate committees of
Congress, not later than February 28 of each of the next 10 years
beginning after the date of enactment of this subchapter, a summary of
all bonuses paid under subsections (b) and (c) during the preceding
year. Such summary shall include the number of bonuses paid, the total
amount of bonuses paid, and the average percentage used in calculating
the total average bonus amount, under each such subsection.
``Sec. 9805. Retention bonuses
``(a) Notwithstanding section 5754, the Administrator may pay a bonus
to an employee, in accordance with the workforce plan and subject to
the limitations in this section, if the Administrator determines that--
``(1) the unusually high or unique qualifications of the
employee or a special need of the Administration for the
employee's services makes it essential to retain the employee;
and
``(2) the employee would be likely to leave in the absence of
a retention bonus.
``(b) If the position is described as addressing a critical need in
the workforce plan under section 9802(b)(2)(A), the amount of a bonus
may not exceed 50 percent of the employee's annual rate of basic pay
(including comparability payments under sections 5304 and 5304a).
``(c) If the position is not described as addressing a critical need
in the workforce plan under section 9802(b)(2)(A), the amount of a
bonus may not exceed 25 percent of the employee's annual rate of basic
pay (including comparability payments under sections 5304 and 5304a).
``(d)(1)(A) Payment of a bonus under this section shall be contingent
upon the employee entering into a service agreement with the
Administration.
``(B) At a minimum, the service agreement shall include--
``(i) the required service period;
``(ii) the method of payment, including a payment schedule,
which may include a lump-sum payment, installment payments, or
a combination thereof;
``(iii) the amount of the bonus and the basis for calculating
the amount; and
``(iv) the conditions under which the agreement may be
terminated before the agreed-upon service period has been
completed, and the effect of the termination.
``(2) The employee's service period shall be expressed as the number
equal to the full years and twelfth parts thereof, rounding the
fractional part of a month to the nearest twelfth part of a year. The
service period may not be less than 6 months and may not exceed 4
years.
``(3) Notwithstanding paragraph (1), a service agreement is not
required if the Administration pays a bonus in biweekly installments
and sets the installment payment at the full bonus percentage rate
established for the employee, with no portion of the bonus deferred. In
this case, the Administration shall inform the employee in writing of
any decision to change the retention bonus payments. The employee shall
continue to accrue entitlement to the retention bonus through the end
of the pay period in which such written notice is provided.
``(e) A bonus under this section may not be considered to be part of
the basic pay of an employee.
``(f) An employee is not entitled to a retention bonus under this
section during a service period previously established for that
employee under section 5753 or under section 9804.
``(g) The Administrator shall submit to the appropriate committees of
Congress, not later than February 28 of each of the next 10 years
beginning after the date of enactment of this subchapter, a summary of
all bonuses paid under subsections (b) and (c) during the preceding
year. Such summary shall include the number of bonuses paid, the total
amount of bonuses paid, and the average percentage used in calculating
the total average bonus amount, under each such subsection.
``Sec. 9806. Term appointments
``(a) The Administrator may authorize term appointments within the
Administration under subchapter I of chapter 33, for a period of not
less than 1 year and not more than 6 years.
``(b) Notwithstanding chapter 33 or any other provision of law
relating to the examination, certification, and appointment of
individuals in the competitive service, the Administrator may convert
an employee serving under a term appointment to a permanent appointment
in the competitive service within the Administration without further
competition if--
``(1) such individual was appointed under open, competitive
examination under subchapter I of chapter 33 to the term
position;
``(2) the announcement for the term appointment from which
the conversion is made stated that there was potential for
subsequent conversion to a career-conditional or career
appointment;
``(3) the employee has completed at least 2 years of current
continuous service under a term appointment in the competitive
service;
``(4) the employee's performance under such term appointment
was at least fully successful or equivalent; and
``(5) the position to which such employee is being converted
under this section is in the same occupational series, is in
the same geographic location, and provides no greater promotion
potential than the term position for which the competitive
examination was conducted.
``(c) Notwithstanding chapter 33 or any other provision of law
relating to the examination, certification, and appointment of
individuals in the competitive service, the Administrator may convert
an employee serving under a term appointment to a permanent appointment
in the competitive service within the Administration through internal
competitive promotion procedures if the conditions under paragraphs (1)
through (4) of subsection (b) are met.
``(d) An employee converted under this section becomes a career-
conditional employee, unless the employee has otherwise completed the
service requirements for career tenure.
``(e) An employee converted to career or career-conditional
employment under this section acquires competitive status upon
conversion.
``(f) The Administrator shall submit to the appropriate committees of
Congress, not later than February 28 of each of the next 10 years
beginning after the date of enactment of this subchapter--
``(1) the total number of term appointments converted during
the previous calendar year; and
``(2) of that total number, the number of conversions that
were made to address a critical need described in the Workforce
Plan pursuant to section 9802(b)(2).
``Sec. 9807. Pay authority for critical positions
``(a) In this section, the term `position' means--
``(1) a position to which chapter 51 applies, including a
position in the Senior Executive Service;
``(2) a position under the Executive Schedule under sections
5312 through 5317;
``(3) a position established under section 3104; or
``(4) a senior-level position to which section 5376(a)(1)
applies.
``(b) Authority under this section--
``(1) may be exercised only with respect to a position that--
``(A) is described as addressing a critical need in
the workforce plan under section 9802(b)(2)(A); and
``(B) requires expertise of an extremely high level
in a scientific, technical, professional, or
administrative field;
``(2) may be exercised only to the extent necessary to
recruit or retain an individual exceptionally well qualified
for the position; and
``(3) may be exercised only in retaining employees of the
Administration or in appointing individuals who were not
employees of another Federal agency as defined under section
5102(a)(1).
``(c)(1) Notwithstanding section 5377, the Administrator may fix the
rate of basic pay for a position in the Administration in accordance
with this section. The Administrator may not delegate this authority.
``(2) The number of positions with pay fixed under this section may
not exceed 10 at any time.
``(d)(1) The rate of basic pay fixed under this section may not be
less than the rate of basic pay (including any comparability payments)
which would otherwise be payable for the position involved if this
section had never been enacted.
``(2) The annual rate of basic pay fixed under this section may not
exceed the per annum rate of salary payable under section 104 of title
3.
``(3) Notwithstanding any provision of section 5307, in the case of
an employee who, during any calendar year, is receiving pay at a rate
fixed under this section, no allowance, differential, bonus, award, or
similar cash payment may be paid to such employee if, or to the extent
that, when added to basic pay paid or payable to such employee (for
service performed in such calendar year as an employee in the executive
branch or as an employee outside the executive branch to whom chapter
51 applies), such payment would cause the total to exceed the per annum
rate of salary which, as of the end of such calendar year, is payable
under section 104 of title 3.
``(e) The Administrator shall submit to the appropriate committees of
Congress, not later than February 28 of each of the next 10 years
beginning after the date of enactment of this subchapter--
``(1) the number of positions for which the rate of basic pay
was fixed under this section during the preceding year; and
``(2) the number of positions for which a rate of basic pay
under this section was terminated during the preceding year.
``Sec. 9808. Assignments of intergovernmental personnel
``For purposes of applying the third sentence of section 3372(a)
(relating to the authority of the head of a Federal agency to extend
the period of an employee's assignment to or from a State or local
government, institution of higher education, or other organization),
the Administrator may, with the concurrence of the employee and the
government or organization concerned, take any action which would be
allowable if such sentence had been amended by striking `two' and
inserting `four'.
``Sec. 9809. Enhanced demonstration project authority
``When conducting a demonstration project at the Administration,
section 4703(d)(1)(A) may be applied by substituting `such numbers of
individuals as determined by the Administrator' for `not more than
5,000 individuals'.
``Sec. 9810. Voluntary separation incentive payments
``(a) In applying subchapter II of chapter 35, the Administrator may
provide for voluntary separation incentive payments in excess of the
dollar-amount limitation that would otherwise apply under section
3523(b)(3)(B), subject to subsection (b).
``(b) Voluntary separation incentive payments described in subsection
(a)--
``(1) may not exceed 50 percent of the annual rate of basic
pay of the employee receiving such payments (computed
disregarding any comparability payments under sections 5304-
5304a);
``(2) may not, in any calendar year, be made to more than--
``(A) 10 employees; or
``(B) such greater number of employees as the
Administrator may, with the approval of the Office of
Management and Budget, establish in lieu of the number
specified in subparagraph (A) following notification to
the appropriate committees of Congress;
``(3) may not be made to an employee if the employee has
within the last 12 months received, or if the employee is then
receiving, a bonus or allowance under section 5753 or 5754 or
under section 9804 or 9805; and
``(4) may be made only if the position in which the employee
is serving addresses a critical need identified in the
workforce plan pursuant to section 9802(b)(2).
``(c)(1) The proposed use of workforce authorities in this section
shall be included in the plan required by section 3522.
``(2) Whenever the Office of Personnel Management approves the
Administration's plan required in such section 3522, the Administration
shall submit a copy of the approved plan to the appropriate committees
of Congress within 15 days after the date on which it is so approved.
``Sec. 9811. Limitations relating to bonuses
``(a) Of the total amount in bonuses awarded under sections 9804 and
9805, respectively, in any year, not to exceed 15 percent of any such
total amount may be awarded to supervisors (within the meaning of
section 7103(a)(10)).
``(b) A separate appropriations account shall be maintained for such
bonuses.
``SUBCHAPTER II--PERSONNEL PROVISIONS
``Sec. 9831. Definitions
``For purposes of this subchapter, the terms `Administration' and
`Administrator' have the meanings set forth in section 9801.
``Sec. 9832. NASA-Industry exchange program
``(a) For purposes of this section, the term `detail' means--
``(1) the assignment or loan of an employee of the
Administration to a private sector organization without a
change of position from the Administration, or
``(2) the assignment or loan of an employee of a private
sector organization to the Administration without a change of
position from the private sector organization that employs the
individual,
whichever is appropriate in the context in which such term is used.
``(b)(1) On request from or with the agreement of a private sector
organization, and with the consent of the employee concerned, the
Administrator may arrange for the assignment of an employee of the
Administration to a private sector organization or an employee of a
private sector organization to the Administration. An employee of the
Administration shall be eligible to participate in this program only if
the employee is employed at the GS-11 level or above (or equivalent)
and is serving under a career or career-conditional appointment or an
appointment of equivalent tenure in the excepted service.
``(2) The Administrator shall provide for a written agreement between
the Administration and the employee concerned regarding the terms and
conditions of the employee's assignment. The agreement shall--
``(A) require the employee to serve in the Administration,
upon completion of the assignment, for a period equal to the
length of the assignment; and
``(B) provide that, in the event the employee fails to carry
out the agreement (except for good and sufficient reason, as
determined by the Administrator), the employee shall be liable
to the United States for payment of all expenses of the
assignment.
An amount under subparagraph (B) shall be treated as a debt due the
United States.
``(3) Assignments may be terminated by the Administration or the
private sector organization concerned for any reason at any time.
``(4) Assignments under this section shall be for a period of between
6 months and 1 year, and may be extended in 3-month increments for a
total of not more than 1 additional year, except that no assignment
under this section may commence after the end of the 5-year period
beginning on the date of the enactment of this section.
``(c)(1) An employee of the Administration who is assigned to a
private sector organization under this section is deemed, during the
period of the assignment, to be on detail to a regular work assignment
in the Administration.
``(2) Notwithstanding any other provision of law, an employee of the
Administration who is assigned to a private sector organization under
this section is entitled to retain coverage, rights, and benefits under
subchapter I of chapter 81, and employment during the assignment is
deemed employment by the United States, except that, if the employee or
the employee's dependents receive from the private sector organization
any payment under an insurance policy for which the premium is wholly
paid by the private sector organization, or other benefit of any kind
on account of the same injury or death, then, the amount of such
payment or benefit shall be credited against any compensation otherwise
payable under subchapter I of chapter 81.
``(3) The assignment of an employee to a private sector organization
under this section may be made with or without reimbursement by the
private sector organization for the travel and transportation expenses
to or from the place of assignment, subject to the same terms and
conditions as apply with respect to an employee of a Federal agency or
a State or local government under section 3375, and for the pay, or a
part thereof, of the employee during assignment. Any reimbursements
shall be credited to the appropriation of the Administration used for
paying the travel and transportation expenses or pay.
``(4) The Federal Tort Claims Act and any other Federal tort
liability statute apply to an employee of the Administration assigned
to a private sector organization under this section. The supervision of
the duties of an employee of the Administration who is so assigned to a
private sector organization may be governed by an agreement between the
Administration and the organization.
``(d)(1) An employee of a private sector organization assigned to the
Administration under this section is deemed, during the period of the
assignment, to be on detail to the Administration.
``(2) An employee of a private sector organization assigned to the
Administration under this section--
``(A) may continue to receive pay and benefits from the
private sector organization from which he is assigned;
``(B) is deemed, notwithstanding paragraph (1), to be an
employee of the Administration for the purposes of--
``(i) chapter 73;
``(ii) sections 201, 203, 205, 207, 208, 209, 603,
606, 607, 643, 654, 1905, and 1913 of title 18;
``(iii) sections 1343, 1344, and 1349(b) of title 31;
``(iv) the Federal Tort Claims Act and any other
Federal tort liability statute;
``(v) the Ethics in Government Act of 1978; and
``(vi) section 1043 of the Internal Revenue Code of
1986;
``(C) may not have access to any trade secrets or to any
other nonpublic information which is of commercial value to the
private sector organization from which he is assigned; and
``(D) is subject to such regulations as the President may
prescribe.
The supervision of an employee of a private sector organization
assigned to the Administration under this section may be governed by
agreement between the Administration and the private sector
organization concerned. Such an assignment may be made with or without
reimbursement by the Administration for the pay, or a part thereof, of
the employee during the period of assignment, or for any contribution
of the private sector organization to employee benefit systems.
``(3) An employee of a private sector organization assigned to the
Administration under this section who suffers disability or dies as a
result of personal injury sustained while performing duties during the
assignment shall be treated, for the purpose of subchapter I of chapter
81, as an employee as defined by section 8101 who had sustained the
injury in the performance of duty, except that, if the employee or the
employee's dependents receive from the private sector organization any
payment under an insurance policy for which the premium is wholly paid
by the private sector organization, or other benefit of any kind on
account of the same injury or death, then, the amount of such payment
or benefit shall be credited against any compensation otherwise payable
under subchapter I of chapter 81.
``(4) A private sector organization may not charge the Federal
Government, as direct or indirect costs under a Federal contract, the
costs of pay or benefits paid by the organization to an employee
assigned to the Administration under this section for the period of the
assignment.
``(e)(1) The Administration shall, not later than February 28 of each
year, prepare and submit to the appropriate committees of Congress a
report summarizing the operation of this section during the preceding
year.
``(2) Each report shall include, with respect to the period to which
such report relates--
``(A) the total number of individuals assigned to, and the
total number of individuals assigned from, the Administration
during such period;
``(B) a brief description of each assignment included under
subparagraph (A), including--
``(i) the name of the assigned individual, as well as
the private sector organization, to or from which such
individual was assigned;
``(ii) the respective positions to and from which the
individual was assigned, including the duties and
responsibilities and the pay grade or level associated
with each; and
``(iii) the duration and objectives of the
individual's assignment; and
``(C) such other information as the Administration considers
appropriate.
``(3) A copy of each report submitted under paragraph (1)--
``(A) shall be published in the Federal Register; and
``(B) shall be made publicly available on the Internet.
``(f) The Administrator, in consultation with the Director of the
Office of Personnel Management, shall prescribe regulations for the
administration of this section.
``(g) Not later than 4 years after the date of the enactment of this
section, the General Accounting Office shall prepare and submit to the
appropriate committees of Congress a report on the operation of this
section. Such report shall include--
``(1) an evaluation of the effectiveness of the program
established by this section; and
``(2) a recommendation as to whether such program should be
continued (with or without modification) or allowed to lapse.
``Sec. 9833. Science and technology scholarship program
``(a)(1) The Administrator shall establish a National Aeronautics and
Space Administration Science and Technology Scholarship Program to
award scholarships to individuals that is designed to recruit and
prepare students for careers in the Administration.
``(2) Individuals shall be selected to receive scholarships under
this section through a competitive process primarily on the basis of
academic merit, with consideration given to financial need and the goal
of promoting the participation of individuals identified in section 33
or 34 of the Science and Engineering Equal Opportunities Act.
``(3) To carry out the Program the Administrator shall enter into
contractual agreements with individuals selected under paragraph (2)
under which the individuals agree to serve as full-time employees of
the Administration, for the period described in subsection (f)(1), in
positions needed by the Administration and for which the individuals
are qualified, in exchange for receiving a scholarship.
``(b) In order to be eligible to participate in the Program, an
individual must--
``(1) be enrolled or accepted for enrollment as a full-time
student at an institution of higher education in an academic
field or discipline described in the list made available under
subsection (d);
``(2) be a United States citizen; and
``(3) at the time of the initial scholarship award, not be an
employee (as defined in section 2105).
``(c) An individual seeking a scholarship under this section shall
submit an application to the Administrator at such time, in such
manner, and containing such information, agreements, or assurances as
the Administrator may require.
``(d) The Administrator shall make publicly available a list of
academic programs and fields of study for which scholarships under the
Program may be utilized and shall update the list as necessary.
``(e)(1) The Administrator may provide a scholarship under the
Program for an academic year if the individual applying for the
scholarship has submitted to the Administrator, as part of the
application required under subsection (c), a proposed academic program
leading to a degree in a program or field of study on the list made
available under subsection (d).
``(2) An individual may not receive a scholarship under this section
for more than 4 academic years, unless the Administrator grants a
waiver.
``(3) The dollar amount of a scholarship under this section for an
academic year shall be determined under regulations issued by the
Administrator, but shall in no case exceed the cost of attendance.
``(4) A scholarship provided under this section may be expended for
tuition, fees, and other authorized expenses as established by the
Administrator by regulation.
``(5) The Administrator may enter into a contractual agreement with
an institution of higher education under which the amounts provided for
a scholarship under this section for tuition, fees, and other
authorized expenses are paid directly to the institution with respect
to which the scholarship is provided.
``(f)(1) The period of service for which an individual shall be
obligated to serve as an employee of the Administration is, except as
provided in subsection (h)(2), 24 months for each academic year for
which a scholarship under this section is provided.
``(2)(A) Except as provided in subparagraph (B), obligated service
under paragraph (1) shall begin not later than 60 days after the
individual obtains the educational degree for which the scholarship was
provided.
``(B) The Administrator may defer the obligation of an individual to
provide a period of service under paragraph (1) if the Administrator
determines that such a deferral is appropriate. The Administrator shall
prescribe the terms and conditions under which a service obligation may
be deferred through regulation.
``(g)(1) Scholarship recipients who fail to maintain a high level of
academic standing, as defined by the Administrator by regulation, who
are dismissed from their educational institutions for disciplinary
reasons, or who voluntarily terminate academic training before
graduation from the educational program for which the scholarship was
awarded, shall be in breach of their contractual agreement and, in lieu
of any service obligation arising under such agreement, shall be liable
to the United States for repayment within 1 year after the date of
default of all scholarship funds paid to them and to the institution of
higher education on their behalf under the agreement, except as
provided in subsection (h)(2). The repayment period may be extended by
the Administrator when determined to be necessary, as established by
regulation.
``(2) Scholarship recipients who, for any reason, fail to begin or
complete their service obligation after completion of academic
training, or fail to comply with the terms and conditions of deferment
established by the Administrator pursuant to subsection (f)(2)(B),
shall be in breach of their contractual agreement. When recipients
breach their agreements for the reasons stated in the preceding
sentence, the recipient shall be liable to the United States for an
amount equal to--
``(A) the total amount of scholarships received by such
individual under this section; plus
``(B) the interest on the amounts of such awards which would
be payable if at the time the awards were received they were
loans bearing interest at the maximum legal prevailing rate, as
determined by the Treasurer of the United States,
multiplied by 3.
``(h)(1) Any obligation of an individual incurred under the Program
(or a contractual agreement thereunder) for service or payment shall be
canceled upon the death of the individual.
``(2) The Administrator shall by regulation provide for the partial
or total waiver or suspension of any obligation of service or payment
incurred by an individual under the Program (or a contractual agreement
thereunder) whenever compliance by the individual is impossible or
would involve extreme hardship to the individual, or if enforcement of
such obligation with respect to the individual would be contrary to the
best interests of the Government.
``(i) For purposes of this section--
``(1) the term `cost of attendance' has the meaning given
that term in section 472 of the Higher Education Act of 1965;
``(2) the term `institution of higher education' has the
meaning given that term in section 101(a) of the Higher
Education Act of 1965; and
``(3) the term `Program' means the National Aeronautics and
Space Administration Science and Technology Scholarship Program
established under this section.
``(j)(1) There is authorized to be appropriated to the Administration
for the Program $10,000,000 for each fiscal year.
``(2) Amounts appropriated under this section shall remain available
for 2 fiscal years.
``Sec. 9834. Distinguished scholar appointment authority
``(a) In this section--
``(1) the term `professional position' means a position that
is classified to an occupational series identified by the
Office of Personnel Management as a position that--
``(A) requires education and training in the
principles, concepts, and theories of the occupation
that typically can be gained only through completion of
a specified curriculum at a recognized college or
university; and
``(B) is covered by the Group Coverage Qualification
Standard for Professional and Scientific Positions; and
``(2) the term `research position' means a position in a
professional series that primarily involves scientific inquiry
or investigation, or research-type exploratory development of a
creative or scientific nature, where the knowledge required to
perform the work successfully is acquired typically and
primarily through graduate study.
``(b) The Administration may appoint, without regard to the
provisions of sections 3304(b) and 3309 through 3318, candidates
directly to General Schedule professional positions in the
Administration for which public notice has been given, if--
``(1) with respect to a position at the GS-7 level, the
individual--
``(A) received, from an accredited institution
authorized to grant baccalaureate degrees, a
baccalaureate degree in a field of study for which
possession of that degree in conjunction with academic
achievements meets the qualification standards as
prescribed by the Office of Personnel Management for
the position to which the individual is being
appointed; and
``(B) achieved a cumulative grade point average of
3.0 or higher on a 4.0 scale and a grade point average
of 3.5 or higher for courses in the field of study
required to qualify for the position;
``(2) with respect to a position at the GS-9 level, the
individual--
``(A) received, from an accredited institution
authorized to grant graduate degrees, a graduate degree
in a field of study for which possession of that degree
meets the qualification standards at this grade level
as prescribed by the Office of Personnel Management for
the position to which the individual is being
appointed; and
``(B) achieved a cumulative grade point average of
3.5 or higher on a 4.0 scale in graduate coursework in
the field of study required for the position;
``(3) with respect to a position at the GS-11 level, the
individual--
``(A) received, from an accredited institution
authorized to grant graduate degrees, a graduate degree
in a field of study for which possession of that degree
meets the qualification standards at this grade level
as prescribed by the Office of Personnel Management for
the position to which the individual is being
appointed; and
``(B) achieved a cumulative grade point average of
3.5 or higher on a 4.0 scale in graduate coursework in
the field of study required for the position; or
``(4) with respect to a research position at the GS-12 level,
the individual--
``(A) received, from an accredited institution
authorized to grant graduate degrees, a graduate degree
in a field of study for which possession of that degree
meets the qualification standards at this grade level
as prescribed by the Office of Personnel Management for
the position to which the individual is being
appointed; and
``(B) achieved a cumulative grade point average of
3.5 or higher on a 4.0 scale in graduate coursework in
the field of study required for the position.
``(c) Veterans' preference procedures shall apply when selecting
candidates under this section. Preference eligibles who meet the
criteria for distinguished scholar appointments shall be considered
ahead of nonpreference eligibles.
``(d) An appointment made under this authority shall be a career-
conditional appointment in the competitive civil service.
``Sec. 9835. Travel and transportation expenses of certain new
appointees
``(a) In this section, the term `new appointee' means--
``(1) a person newly appointed or reinstated to Federal
service to the Administration to--
``(A) a career or career-conditional appointment;
``(B) a term appointment;
``(C) an excepted service appointment that provides
for noncompetitive conversion to a career or career-
conditional appointment;
``(D) a career or limited term Senior Executive
Service appointment;
``(E) an appointment made under section 203(c)(2)(A)
of the National Aeronautics and Space Act of 1958 (42
U.S.C. 2473(c)(2)(A));
``(F) an appointment to a position established under
section 3104; or
``(G) an appointment to a position established under
section 5108; or
``(2) a student trainee who, upon completion of academic
work, is converted to an appointment in the Administration that
is identified in paragraph (1) in accordance with an
appropriate authority.
``(b) The Administrator may pay the travel, transportation, and
relocation expenses of a new appointee to the same extent, in the same
manner, and subject to the same conditions as the payment of such
expenses under sections 5724, 5724a, 5724b, and 5724c to an employee
transferred in the interests of the United States Government.
``(c) The Administrator shall submit to the appropriate committees of
Congress, not later than February 28 of each of the next 10 years
beginning after the date of enactment of this subchapter--
``(1) the average payment for travel and transportation
expenses of certain new appointees provided under this section
during the preceding year; and
``(2) the highest payment for travel and transportation
expenses to an individual appointee provided under this section
during the preceding year.
``Sec. 9836. Annual leave enhancements
``(a)(1) In this subsection--
``(A) the term `newly appointed employee' means an individual
who is first appointed--
``(i) regardless of tenure, as an employee of the
Federal Government; or
``(ii) as an employee of the Federal Government
following a break in service of at least 90 days after
that individual's last period of Federal employment,
other than--
``(I) employment under the Student
Educational Employment Program administered by
the Office of Personnel Management;
``(II) employment as a law clerk trainee;
``(III) employment under a short-term
temporary appointing authority while a student
during periods of vacation from the educational
institution at which the student is enrolled;
``(IV) employment under a provisional
appointment if the new appointment is permanent
and immediately follows the provisional
appointment; or
``(V) employment under a temporary
appointment that is neither full-time nor the
principal employment of the individual;
``(B) the term `period of qualified non-Federal service'
means any period of service performed by an individual that--
``(i) was performed in a position the duties of which
were directly related to the duties of the position in
the Administration to which that individual will fill
as a newly appointed employee; and
``(ii) except for this section, would not otherwise
be service performed by an employee for purposes of
section 6303; and
``(C) the term `directly related to the duties of the
position' means duties and responsibilities in the same line of
work which require similar qualifications.
``(2)(A) For purposes of section 6303, the Administrator may deem a
period of qualified non-Federal service performed by a newly appointed
employee to be a period of service of equal length performed as an
employee.
``(B) A period deemed by the Administrator under subparagraph (A)
shall continue to apply to the employee during--
``(i) the period of Federal service in which the deeming is
made; and
``(ii) any subsequent period of Federal service.
``(3)(A) Notwithstanding section 6303(a), the annual leave accrual
rate for an employee of the Administration in a position paid under
section 5376 or 5383, or for an employee in an equivalent category
whose rate of basic pay is greater than the rate payable at GS-15, step
10, shall be 1 day for each full biweekly pay period.
``(B) The accrual rate established under this paragraph shall
continue to apply to the employee during--
``(i) the period of Federal service in which such accrual
rate first applies; and
``(ii) any subsequent period of Federal service.
``Sec. 9837. Limited appointments to Senior Executive Service positions
``(a) In this section--
``(1) the term `career reserved position' means a position in
the Administration designated under section 3132(b) which may
be filled only by--
``(A) a career appointee; or
``(B) a limited emergency appointee or a limited term
appointee--
``(i) who, immediately before entering the
career reserved position, was serving under a
career or career-conditional appointment
outside the Senior Executive Service; or
``(ii) whose limited emergency or limited
term appointment is approved in advance by the
Office of Personnel Management;
``(2) the term `limited emergency appointee' has the meaning
given under section 3132; and
``(3) the term `limited term appointee' means an individual
appointed to a Senior Executive Service position in the
Administration to meet a bona fide temporary need, as
determined by the Administrator.
``(b) The number of career reserved positions which are filled by an
appointee as described under subsection (a)(1)(B) may not exceed 10
percent of the total number of Senior Executive Service positions
allocated to the Administration.
``(c) Notwithstanding sections 3132 and 3394(b)--
``(1) the Administrator may appoint an individual to any
Senior Executive Service position in the Administration as a
limited term appointee under this section for a period of--
``(A) 4 years or less to a position the duties of
which will expire at the end of such term; or
``(B) 1 year or less to a position the duties of
which are continuing; and
``(2) in rare circumstances, the Administrator may authorize
an extension of a limited appointment under--
``(A) paragraph (1)(A) for a period not to exceed 2
years; and
``(B) paragraph (1)(B) for a period not to exceed 1
year.
``(d) A limited term appointee who has been appointed in the
Administration from a career or career-conditional appointment outside
the Senior Executive Service shall have reemployment rights in the
agency from which appointed, or in another agency, under requirements
and conditions established by the Office of Personnel Management. The
Office shall have the authority to direct such placement in any agency.
``(e) Notwithstanding section 3394(b) and section 3395--
``(1) a limited term appointee serving under a term
prescribed under this section may be reassigned to another
Senior Executive Service position in the Administration, the
duties of which will expire at the end of a term of 4 years or
less; and
``(2) a limited term appointee serving under a term
prescribed under this section may be reassigned to another
continuing Senior Executive Service position in the
Administration, except that the appointee may not serve in 1 or
more positions in the Administration under such appointment in
excess of 1 year, except that in rare circumstances, the
Administrator may approve an extension up to an additional 1
year.
``(f) A limited term appointee may not serve more than 7 consecutive
years under any combination of limited appointments.
``(g) Notwithstanding section 5384, the Administrator may authorize
performance awards to limited term appointees in the Administration in
the same amounts and in the same manner as career appointees.
``Sec. 9838. Superior qualifications pay
``(a) In this section the term `employee' means an employee as
defined under section 2105 who is employed by the Administration.
``(b) Notwithstanding section 5334, the Administrator may set the pay
of an employee paid under the General Schedule at any step within the
pay range for the grade of the position, based on the superior
qualifications of the employee, or the special need of the
Administration.
``(c) If an exercise of the authority under this section relates to a
current employee selected for another position within the
Administration, a determination shall be made that the employee's
contribution in the new position will exceed that in the former
position, before setting pay under this section.
``(d) Pay as set under this section is basic pay for such purposes as
pay set under section 5334.
``(e) If the employee serves for at least 1 year in the position for
which the pay determination under this section was made, or a successor
position, the pay earned under such position may be used in succeeding
actions to set pay under chapter 53.
``(f) The Administrator may waive the restrictions in subsection (e),
based on criteria established in the plan required under subsection
(g).
``(g) Before setting any employee's pay under this section, the
Administrator shall submit a plan to the Office of Personnel
Management, that includes--
``(1) criteria for approval of actions to set pay under this
section;
``(2) the level of approval required to set pay under this
section;
``(3) all types of actions and positions to be covered;
``(4) the relationship between the exercise of authority
under this section and the use of other pay incentives; and
``(5) a process to evaluate the effectiveness of this
section.''.
(b) Technical and Conforming Amendments.--
(1) Table of chapters.--The table of chapters for subchapter
I of part III of title 5, United States Code, is amended by
adding after the item relating to chapter 97 the following:
``98. National Aeronautics and Space Administration 9801''.
(2) Compensation for certain excepted personnel.--
Subparagraph (A) of section 203(c)(2) of the National
Aeronautics and Space Act of 1958 (42 U.S.C. 2473(c)(2)(A)) is
amended by striking ``the highest rate of grade 18 of the
General Schedule of the Classification Act of 1949, as
amended,'' and inserting ``the rate of basic pay payable for
level III of the Executive Schedule,''.
(3) Compensation clarification.--Section 209 of title 18,
United States Code, as amended by section 209(g)(2) of the E-
Government Act of 2002 (Public Law 107-347; 116 Stat. 2932), is
amended by adding at the end the following:
``(h) This section does not prohibit an employee of a private sector
organization, while assigned to the National Aeronautics and Space
Administration under section 9832 of title 5, from continuing to
receive pay and benefits from that organization in accordance with
section 9832 of that title.''.
(4) Continued tsp eligibility.--Section 125(c)(1) of Public
Law 100-238 (5 U.S.C. 8432 note), as amended by section
209(g)(3) of the E-Government Act of 2002 (Public Law 107-347;
116 Stat. 2932), is amended--
(A) in subparagraph (C), by striking ``or'' at the
end;
(B) in subparagraph (D), by striking ``and'' at the
end and inserting ``or''; and
(C) by adding at the end the following:
``(E) an individual assigned from the National
Aeronautics and Space Administration to a private
sector organization under section 9832 of title 5,
United States Code; and''.
(5) Ethics provisions.--
(A) One-year restriction on certain communications.--
Section 207(c)(2)(A)(v) of title 18, United States
Code, is amended by inserting ``or section 9832'' after
``chapter 37''.
(B) Disclosure of confidential information.--Section
1905 of title 18, United States Code, is amended by
inserting ``or section 9832'' after ``chapter 37''.
(6) Contract advice.--Section 207(l) of title 18, United
States Code, is amended by inserting ``or section 9832'' after
``chapter 37''.
(7) Amendments to title 5, united states code.--Title 5,
United States Code, is amended--
(A) in section 3111(d), by inserting ``or section
9832'' after ``chapter 37''; and
(B) in section 7353(b)(4), by inserting ``or section
9832'' after ``chapter 37''.
TITLE IV--HUMAN CAPITAL PERFORMANCE FUND
SEC. 401. HUMAN CAPITAL PERFORMANCE FUND.
(a) In General.--Subpart D of part III of title 5, United States
Code, is amended by inserting after chapter 53 the following:
``CHAPTER 54--HUMAN CAPITAL PERFORMANCE FUND
``Sec.
``5401. Purpose.
``5402. Definitions.
``5403. Human Capital Performance Fund.
``5404. Human capital performance payments.
``5405. Regulations.
``5406. Agency plan.
``5407. Nature of payment.
``5408. Appropriations.
``Sec. 5401. Purpose
``The purpose of this chapter is to promote, through the creation of
a Human Capital Performance Fund, greater performance in the Federal
Government. Monies from the Fund will be used to reward agencies'
highest performing and most valuable employees. This Fund will offer
Federal managers a new tool to recognize employee performance that is
critical to the achievement of agency missions.
``Sec. 5402. Definitions
``For the purpose of this chapter--
``(1) `agency' means an Executive agency under section 105,
but does not include the General Accounting Office;
``(2) `employee' includes--
``(A) an individual paid under a statutory pay system
defined in section 5302(1);
``(B) a prevailing rate employee, as defined in
section 5342(a)(2); and
``(C) a category of employees included by the Office
of Personnel Management following the review of an
agency plan under section 5403(b)(1);
but does not include--
``(i) an individual paid at an annual rate of basic
pay for a level of the Executive Schedule, under
subchapter II of chapter 53, or at a rate provided for
one of those levels under another provision of law;
``(ii) a member of the Senior Executive Service paid
under subchapter VIII of chapter 53, or an equivalent
system;
``(iii) an administrative law judge paid under
section 5372;
``(iv) a contract appeals board member paid under
section 5372a;
``(v) an administrative appeals judge paid under
section 5372b; and
``(vi) an individual in a position which is excepted
from the competitive service because of its
confidential, policy-determining, policy-making, or
policy-advocating character; and
``(3) `Office' means the Office of Personnel Management.
``Sec. 5403. Human Capital Performance Fund
``(a) There is hereby established the Human Capital Performance Fund,
to be administered by the Office for the purpose of this chapter.
``(b)(1)(A) An agency shall submit a plan as described in section
5406 to be eligible for consideration by the Office for an allocation
under this section. An allocation shall be made only upon approval by
the Office of an agency's plan.
``(B)(i) After the reduction for training required under section
5408, ninety percent of the remaining amount appropriated to the Fund
may be allocated by the Office to the agencies. Of the amount to be
allocated, an agency's pro rata distribution may not exceed its pro
rata share of Executive branch payroll.
``(ii) If the Office does not allocate an agency's full pro rata
share, the undistributed amount remaining from that share will become
available for distribution to other agencies, as provided in
subparagraph (C).
``(C)(i) After the reduction for training under section 5408, ten
percent of the remaining amount appropriated to the Fund, as well as
the amount of the pro rata share not distributed because of an agency's
failure to submit a satisfactory plan, shall be allocated among
agencies with exceptionally high-quality plans.
``(ii) An agency with an exceptionally high-quality plan is eligible
to receive an additional distribution in addition to its full pro rata
distribution.
``(2) Each agency is required to provide to the Office such payroll
information as the Office specifies necessary to determine the
Executive branch payroll.
``Sec. 5404. Human capital performance payments
``(a)(1) Notwithstanding any other provision of law, the Office may
authorize an agency to provide human capital performance payments to
individual employees based on exceptional performance contributing to
the achievement of the agency mission.
``(2) The number of employees in an agency receiving payments from
the Fund, in any year, shall not be more than the number equal to 15
percent of the agency's average total civilian full- and part-time
permanent employment for the previous fiscal year.
``(b)(1) A human capital performance payment provided to an
individual employee from the Fund, in any year, shall not exceed 10
percent of the employee's rate of basic pay.
``(2) The aggregate of an employee's rate of basic pay, adjusted by
any locality-based comparability payments, and human capital
performance pay, as defined by regulation, may not exceed the rate of
basic pay for Executive Level IV in any year.
``(3) Any human capital performance payment provided to an employee
from the Fund is in addition to any annual pay adjustment (under
section 5303 or any similar provision of law) and any locality-based
comparability payment that may apply.
``(c) No monies from the Human Capital Performance Fund may be used
to pay for a new position, for other performance-related payments, or
for recruitment or retention incentives paid under sections 5753 and
5754.
``(d)(1) An agency may finance initial human capital performance
payments using monies from the Human Capital Performance Fund, as
available.
``(2) In subsequent years, continuation of previously awarded human
capital performance payments shall be financed from other agency funds
available for salaries and expenses.
``Sec. 5405. Regulations
``The Office shall issue such regulations as it determines to be
necessary for the administration of this chapter, including the
administration of the Fund. The Office's regulations shall include
criteria governing--
``(1) an agency plan under section 5406;
``(2) the allocation of monies from the Fund to agencies;
``(3) the nature, extent, duration, and adjustment of, and
approval processes for, payments to individual employees under
this chapter;
``(4) the relationship to this chapter of agency performance
management systems;
``(5) training of supervisors, managers, and other
individuals involved in the process of making performance
distinctions; and
``(6) the circumstances under which funds may be allocated by
the Office to an agency in amounts below or in excess of the
agency's pro rata share.
``Sec. 5406. Agency plan
``(a) To be eligible for consideration by the Office for an
allocation under this section, an agency shall--
``(1) develop a plan that incorporates the following
elements:
``(A) adherence to merit principles set forth in
section 2301;
``(B) a fair, credible, and transparent employee
performance appraisal system;
``(C) a link between the pay-for-performance system,
the employee performance appraisal system, and the
agency's strategic plan;
``(D) a means for ensuring employee involvement in
the design and implementation of the system;
``(E) adequate training and retraining for
supervisors, managers, and employees in the
implementation and operation of the pay-for-performance
system;
``(F) a process for ensuring ongoing performance
feedback and dialogue between supervisors, managers,
and employees throughout the appraisal period, and
setting timetables for review;
``(G) effective safeguards to ensure that the
management of the system is fair and equitable and
based on employee performance; and
``(H) a means for ensuring that adequate agency
resources are allocated for the design, implementation,
and administration of the pay-for-performance system;
``(2) upon approval, receive an allocation of funding from
the Office;
``(3) make payments to individual employees in accordance
with the agency's approved plan; and
``(4) provide such information to the Office regarding
payments made and use of funds received under this section as
the Office may specify.
``(b) The Office, in consultation with the Chief Human Capital
Officers Council, shall review and approve an agency's plan before the
agency is eligible to receive an allocation of funding from the Office.
``(c) The Chief Human Capital Officers Council shall include in its
annual report to Congress under section 1303(d) of the Homeland
Security Act of 2002 an evaluation of the formulation and
implementation of agency performance management systems.
``Sec. 5407. Nature of payment
``Any payment to an employee under this section shall be part of the
employee's basic pay for the purposes of subchapter III of chapter 83,
and chapters 84 and 87, and for such other purposes (other than chapter
75) as the Office shall determine by regulation.
``Sec. 5408. Appropriations
``There is authorized to be appropriated $500,000,000 for fiscal year
2004, and, for each subsequent fiscal year, such sums as may be
necessary to carry out the provisions of this chapter. In the first
year of implementation, up to 10 percent of the amount appropriated to
the Fund shall be available to participating agencies to train
supervisors, managers, and other individuals involved in the appraisal
process on using performance management systems to make meaningful
distinctions in employee performance and on the use of the Fund.''.
(b) Clerical Amendment.--The table of chapters for part III of title
5, United States Code, is amended by inserting after the item relating
to chapter 53 the following:
``54. Human Capital Performance Fund 5401''.
TITLE V--MISCELLANEOUS
SEC. 501. PROHIBITION ON USE OF QUOTAS.
(a) In General.--After the date of enactment of this Act, the Office
of Management and Budget may not establish, apply, or enforce any
numerical goal, target, or quota for subjecting the employees of a
department or agency of the Government to public-private competitions
or converting such employees or the work performed by such employees to
contractor performance under Office of Management and Budget Circular
A-76 or any other administrative regulation, directive, or policy,
unless the goal, target, or quota is based on considered research and
sound analysis of past activities and is consistent with the stated
mission of the department or agency.
(b) Limitations.--Subsection (a) shall not--
(1) otherwise affect the implementation or enforcement of the
Government Performance and Results Act of 1993 (107 Stat. 285);
or
(2) prevent any agency of the Executive branch from
subjecting work performed by Federal employees or private
contractors to public-private competition or conversions.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 1836, as amended, would make changes to certain areas
of federal civil service, such as the Department of Defense
(DOD) civilian workforce, the National Aeronautics and Space
Administration (NASA), the Securities and Exchange Commission
(SEC), and government-wide improvements, in order to improve
the flexibility and competitiveness of federal human resources
management.
BACKGROUND AND NEED FOR THE LEGISLATION
One of the top priorities for the Government Reform
Committee in the 108th Congress is to advance comprehensive
civil service reform for the federal government. The current
system, put in place more than fifty years ago, does not
adequately address the priorities of a 21st century federal
workforce. Although comprehensive reform is still the
Committee's top priority, this legislation seeks to address
some critical needs that face certain federal agencies and
could be used as a model for other agencies while we continue
to work on government-wide civil service reforms.
The primary focus of this legislation is to address the
human capital management challenges facing three key federal
agencies: the Department of Defense, the Securities and
Exchange Commission and the National Aeronautics and Space
Administration. In addition, the legislation includes a number
of government-wide improvements to the civil service system,
including a modification of the overtime pay cap, an increase
in the annual student loan repayment authority and an increase
in the pay cap for the Senior Executive Service. Finally, H.R.
1836 includes language authorizing the creation of a human
capital performance fund.
HEARINGS
In addition to a year-long debate in Congress over granting
almost identical human resources management flexibility to the
Department of Homeland Security, followed by a months-long
discussion within the Administration on what flexibilities to
request for DOD, Congress has held a number of hearings to
discuss the proposal since it was submitted to Congress last
month.
On April 29, 2003, the Subcommittee on Civil Service and
Agency Organization of the House Committee on Government Reform
held a hearing entitled ``Transforming the Defense Department:
Exploring the Merits of the Proposed National Security
Personnel System.'' The purpose of the hearing was to discuss
the merits of the proposal to create a National Security
Personnel System and to provide DOD the opportunity to discuss
the individual elements of the proposal with Members of the
Subcommittee. Witnesses at the hearing included: the Honorable
David S. Chu, Under Secretary of Defense for Personnel and
Readiness, Department of Defense; the Honorable Dan G. Blair,
Deputy Director, Office of Personnel Management; the Honorable
David M. Walker, Comptroller General, General Accounting
Office; Mr. Bobby Harnage, National President, American
Federation of Government Employees, AFL-CIO; and Mr. G. Jerry
Shaw, General Counsel, Senior Executives Association.
On May 1, 2003, the House Committee on Armed Services held
a hearing on the ``Defense Transformation for the 21st Century
Act'' that was submitted to the Congress by the Administration.
The hearing addressed the provisions in the proposal that
related to civilian personnel and acquisition policy,
provisions that were being considered in preparation for the
fiscal year 2004 defense authorization act. Witnesses at the
hearing included: the Honorable David S. Chu, Under Secretary
of Defense for Personnel and Readiness, Department of Defense;
the Honorable E.C. ``Pete'' Aldridge, Under Secretary of
Defense for Acquisition, Technology and Logistics, Department
of Defense; the Honorable David M. Walker, Comptroller General,
General Accounting Office; and Mr. Bobby Harnage, National
President, American Federation of Government Employees, AFL-
CIO.
On May 6, 2003, the House Committee on Government Reform
held a hearing entitled ``Instilling Agility, Flexibility and a
Culture of Achievement in Critical Federal Agencies: A Review
of H.R. 1836, the Civil Service and National Security Personnel
Improvement Act of 2003.'' The primary focus of this hearing
was to discuss the Defense Department's National Security
Personnel System proposal. The hearing also focused on the
civil service flexibility proposals for NASA, the SEC, the
government-wide personnel provisions, and the proposal to
create a human capital performance fund. All of these elements
were included in H.R. 1836, which was introduced by Government
Reform Committee Chairman Tom Davis (R-VA) and Armed Services
Committee Chairman Duncan Hunter (R-CA) on April 29, 2003.
Witnesses at the hearing included: the Honorable Paul
Wolfowitz, Deputy Secretary, Department of Defense (accompanied
by General Peter Pace, Vice Chairman of the Joint Chiefs of
Staff and Admiral Vern Clark, Chief of Naval Operations); the
Honorable Kay Coles James, Director, Office ofPersonnel
Management; the Honorable Sean O'Keefe, Administration, National
Aeronautics and Space Administration; the Honorable William Donaldson,
Chairman, Securities and Exchange Commission; Dr. Paul Light, Director,
Center for Public Service, the Brookings Institution; Mr. Bobby
Harnage, National President, American Federation of Government
Employees, AFL-CIO; Ms. Colleen Kelley, President, National Treasury
Employees Union; and Ms. Mildred Turner, Member of the Department of
Agriculture Conference of the Federal Managers Association.
Section-by-Section Analysis
Section 1. Short title; table of contents
This Act may be cited as the ``Civil Service and National
Security Personnel Improvement Act.''
TITLE I--DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM
Section 101. Short title
This section may be cited as the ``National Security
Personnel System Act.''
Section 102. Department of Defense National Security Personnel System
This title would amend title 5 of the United States Code by
adding a new chapter 99 at the end of subpart I of part III.
The new chapter would contain the following sections:
Section 9901: This section would provide definitions of
various terms used throughout the new chapter.
Section 9902: This section would authorize the Secretary of
Defense, along with the Director of the Office of Personnel
Management (OPM), to establish a civilian human resources
management system through regulations for some or all of the
organizational or functional units of the Department of Defense
(DOD), which would enable the Department to fulfill its
national security mission. In developing this system, the
Director of OPM would serve as a strategic and collaborative
partner. If the Secretary certified that an issuance or
adjustment of a regulation, or the inclusion, exclusion, or
modification or a particular provision therein, would be
essential to the national security, the Secretary would be able
to, subject to the decision of the President, waive the
requirement that the provision(s) be issued jointly with OPM.
This system would have to be consistent with the merit system
principles as set forth in title 5. It also would protect
veterans' preference, ensure that employees may organize and
bargain collectively, and allow the Secretary to engage in
bargaining at the national level, in addition to local
collective bargaining. The section would further:
(1) provide for a collaborative process, based on the
model established in the Homeland Security Act, Public
Law 107-296, for ensuring inclusion of employee
representatives in the planning, development, and
implementation of the human resources management
system, while allowing the Secretary to conduct such
collaboration at the national level;
(2) require the establishment of an appeals process
that provides that employees of the Department of
Defense are entitled to fair treatment in any appeals
that they bring in decisions relating to their
employment, which would include an independent review
panel;
(3) establish a program under which employees would
be eligible for early retirement, offered separation
pay to separate from the service voluntarily, or both
for purposes of reducing or restructuring the
workforce;
(4) require the system developed under this chapter
to comply with provisions in current law relating to
political activity, oath of office, access to criminal
history records for national security and other
purposes, the Ethics in Government Act, and Inspector
General Act;
(5) allow annuitants who become employed in the
Department to retain their annuities;
(6) cap DOD Senior Executive Service pay, allowances,
differentials, bonuses, awards and other payments at no
more than the Vice President's total annual
compensation;
(7) authorize the Secretary of Defense to waive those
provisions of title 5, U.S. Code including chapters 71,
75, and 77, not specifically listed in the section as
unwaivable; and
(8) allow the Secretary of Defense to include in the
regulations issued jointly with OPM the hiring
flexibilities that are currently available to the
Secretary under section 4703 of title 5, which governs
personnel demonstration projects.
Section 9903: This section would authorize DOD to hire
highly qualified experts for up to five years, with the
possibility of a one-year extension, and to prescribe the
appropriate pay rates. It is consistent with the authority now
available to the Defense Advanced Research Projects Agency and
Military Departments for hiring scientists and engineers.
Section 9904: This section would authorize the Secretary of
Defense to hire American citizens 55 years of age and older to
work for the Department of Defense for up to two years, without
a reduction in any annuity, pension, retirement pay, of similar
payment, to fill needs that are not otherwise met by civilian
employees.
Section 9905: This section would authorize DOD to align the
allowances and benefits of certain employees outside the United
States with those of the Foreign Service and the Central
Intelligence Agency.
TITLE II--DEPARTMENT OF DEFENSE CIVILIAN PERSONNEL
This title includes a number of government-wide civil
service provisions.
Section 201. Modification of the overtime pay cap
Under current law, overtime pay is capped at 150% of GS-10,
step 1. Employees whose regular pay exceeds this overtime cap
are paid at a rate lesser than their regular hourly rate for
their overtime work. This section would authorize the Secretary
toprovide overtime pay at a rate of either 150% of GS-10, step
1, or the employee's hourly rate of pay, whichever is greater.
Section 202. Civil Service Retirement System computation for part-time
service
This section would amend 5 U.S.C. 8339(p) to provide a
special annuity computation formula for employees who performed
part-time service after April 6, 1986. For these employees, the
section would extend application of the full-time rates of pay
in computing average salary to all service, regardless of when
it was performed. This would correct the anomaly in the current
computation scheme; eliminate a disincentive for employees
nearing the end of their careers who would like to phase into
retirement by working part-time schedules; and allow agencies
to keep senior staff on board as part of a succession planning
effort.
Section 203. Military leave for mobilized Federal civilian employees
This section would help Federal civilian employees whose
military pay is less than their Federal civilian salary
``transition'' to military service by allowing them to receive
22 additional workdays of military leave when mobilized. Such
leave would help alleviate the difference in pay for the first
month of service by enabling them to receive the difference
between their Federal civilian pay and their military pay.
Current law only entitles Reserve component members to the
additional military leave.
Section 204. Common occupational and health standards for differential
payments as a consequence of exposure to asbestos
This section would standardize the current law that allows
employees to be paid differentials for duty involving severe
working conditions or hazards. This provision specifies that
for ``any hardship or hazard related to asbestos, such
differentials shall be determined by applying occupational
safety and health standards consistent with the permissible
exposure limit promulgated by the Secretary of Labor under the
Occupational Safety and Health Act of 1970.''
Section 205. Increase in annual student loan repayment authority
Current law authorizes the head of an agency to repay
student loans for highly qualified personnel. The current
repayment amount for an employee is limited to $6,000 per year
and $40,000 total. This provision would raise the $6,000 amount
to $10,000 per year, responding to the increases in annual
college tuition costs since the enactment of the original
statute. The $40,000 total cap would remain.
Section 206. Authorization for Cabinet secretaries, secretaries of
military departments, and heads of executive agencies to be
paid on a biweekly basis
This section would allow cabinet secretaries, secretaries
of military departments and heads of executive agencies to be
paid bi-weekly like most Federal employees. This proposal would
save time and cost resources by relieving civilian pay and
disbursing operations from having to utilize special manual
procedures to accommodate these personnel.
Section 207. Additional classes of individuals eligible to participate
in the Federal Long-Term Care Insurance Program
This section would amend title 5, United States Code, by
enabling certain additional eligible classes of individuals to
participate in the Federal Long-Term Care Insurance Program
(FLTCIP). These classes are: (1) individuals who were employed
by the District of Columbia Government before October 1, 1987,
and who are covered by the Civil Service Retirement System; (2)
former Federal employees who have met the service requirements
for a deferred annuity but do not meet the age requirement to
receive retirement annuity; (3) reservists who are now in the
retired reserves, having completed the service requirements of
retirement, but have not reached the age to receive retirement
annuity.
Section 208. Clarification to Hatch Act; limitation on disclosure of
certain records
This section includes legislation introduced by Chairman
Davis (H.R. 1509) that would clarify that a Federal employee
who voluntarily separates from the civil service shall not be
subject to the enforcement provisions of the Hatch Act unless
he or she re-enters the civil service.
Section 209. Senior Executive Service and performance
This section would amend provisions of chapter 53 of title
5, United States Code, relating to pay of senior executives.
First, this section would add positions in the Senior Executive
Service, and in any equivalent system determined by the
President's Pay Agent, to the list of positions for which
locality pay is unavailable. This section would also provide
that there will be a range of rates of basic pay for the Senior
Executive Service, established according to OPM regulations.
Each senior executive's pay would be set by the employing
agency at one of the rates of the range on the basis of
individual performance, contribution to agency performance, or
both, as determined under a rigorous performance management
system. The provision in current law that sets the minimum rate
of the range at the minimum rate for senior-level positions
would be retained. However, the maximum rate for such positions
would be raised from level IV to level III of the Executive
Schedule. This section would also provide for the adjustment of
the applicable maximum to level II of the Executive Schedule
for any agency that is certified as having a performance
appraisal system that makes meaningful distinctions among
senior executives, based on their relative performance, as that
system is both designed and applied. No employee would suffer a
reduction in pay by reason of transfer from an agency with the
higher, level II maximum, to an agency with the lower level III
maximum. This section would also provide a new standard for
determining the applicability of one of the post-employment
restrictions to those who are in the Senior Executive Service
or equivalent positions in other pay systems. In this regard,
that restriction would apply to those individuals whose rate of
basic pay exceeds 96 percent of the rate for level II of the
Executive Schedule. Employees in positions currently described
by section 207(c)(2)(A)(ii) of title 18, U.S. Code, would
continue to be subject to the one-year post-employment
restriction upon leaving that senior position at any time
during the two years following enactment of this Act. When that
two-year period is complete, any such individual who is still
an officer or employee in the executive branch in a position
other than that described in clauses (i), (iii), and (iv) of
section 207(c)(2)(A), will be a senior employee only if he or
she meets the new salary threshold in clause (ii) of that
section. Finally, this section would specify that the
amendments concerning pay for senior executives could not
result in a reduction in basic pay for any senior
executiveduring the first year after enactment. The rate of basic pay
which could not be reduced would be deemed to be the rate of basic pay
for the senior executive.
Section 210. Design elements of pay-for-performance systems in
demonstration projects
This section would provide specific elements to be
incorporated into any pay-for-performance system established in
a demonstration project under chapter 47, such as, among other
things, adherence to merit principles, a fair, credible and
transparent employee appraisal system, a link between the pay-
for-performance system and the agency's strategic plan,
adequate training, a means for ensuring employee feedback, and
effective safeguards.
Section 211. Federal flexible benefits plan administrative costs
This section would prohibit agencies that provide or plan
to provide flexible benefits plans for its employees from
imposing any fees related to the program on its employees in
order to defray the administrative costs associated with such
option. This section would also require a number of reporting
requirements associated with the benefits plans.
Section 212. Non-reduction in pay while Federal employee is serving on
active duty in a Reserve Component of the uniformed services
This section would entitle a Federal employee who is also a
member of the reserves and who is absent from his or her
civilian employment position under a call or order for active
duty service of more than 30 days, to receive an amount equal
to the difference in pay between the military compensation
received and the civilian compensation that otherwise would
have been received during such period, to be paid by the
individual's employing agency. This section would also make
such amounts also payable during: (1) any period of
hospitalization or convalescence required as a result of such
service; and (2) the 14-day period following such service.
Section 213. Employee surveys
This section would authorize executive agencies to conduct
annual surveys of their employees in order to assess: the
leadership and management practices that contribute to agency
performance; employee satisfaction with leadership policies and
practices, work environment and rewards and recognition for
professional accomplishment and personal contributions to
achieving organization mission; opportunity for professional
development and growth; and opportunity to contribute to
achieving organizational mission. OPM would issue regulations
prescribing survey questions to address these issues. Results
of such surveys would be available to the public and posted on
agency Web sites, unless the head of an agency determines that
doing so would jeopardize or negatively impact national
security.
TITLE III--PROVISIONS RELATING TO THE SECURITIES AND EXCHANGE
COMMISSION AND THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
This title includes human resources management
flexibilities for the Securities and Exchange Commission and
the National Aeronautics and Space Administration.
Subtitle A--Securities and Exchange Commission
This section would add a new section 3114 to subchapter I
of chapter 31 of title 5, United States Code.
Section 301. Securities and Exchange Commission
Section 3114: This subtitle would include a provision that
would grant the Securities and Exchange Commission the
flexibility to circumvent federal hiring procedures in hiring
accountants, economists and compliance examiners at the
Commission.
Subtitle B--National Aeronautics and Space Administration
This section would add a new chapter 98 to subpart I of
part III of title 5, United States Code.
Section 311. Workforce authorities and personnel provisions
Subchapter I--Workforce Authorities
Section 9801: The section would provide definitions of
various terms used throughout the new chapter.
Section 9802: This section would require that ninety days
prior to exercising any of the workforce authorities under this
subchapter, the NASA Administrator is required to submit to
Congress a written plan for approval, and OPM must approve this
workforce plan. The plan, and any subsequent modifications,
must be circulated to employees 60 days prior to submission to
OPM, and employee representatives must be given 30 calendar
days to review and make recommendations to the plan or
modifications.
Section 9803: Workforce authorities under this subchapter
would include: authority to pay recruitment, redesignation and
relocation bonuses; authority to pay retention bonuses;
authority to make term appointments; authority to extend
intergovernmental personnel assignments; term appointments; and
critical pay.
Section 9804: Under this section, bonuses would be
available for new employees, redesignated employees and
relocated employees. Different bonus authorities would be
authorized based on whether such position is determined to be
critical or non-critical. A service agreement (which factors in
length of service, form of payment, amount of the bonus, and
termination conditions) would be required before a bonus could
be granted.
Section 9805: This section would authorize retention
bonuses to be given to employees whose qualifications are
unique and essential and who might potentially leave NASA
without the bonus. Again, different bonus authorities would be
authorized based on whether such position is determined to be
critical or non-critical, and a service agreement would be
required for the bonus (unless it is paid on a biweekly basis
along with the employee's salary).
Section 9806: This section would authorize NASA to offer
term appointments for 1-6 years. The NASA Administrator would
be able to convert appointees into the civil service without
competing the position, provided that (1) the appointment was
made in compliance with chapter 33 of title 5, (2) the
potential for conversion was clearly stated in the original
announcement, (3) the individual has been there for more than
two yearsand has demonstrated good performance, and (4) the
civil service position is at the same level as the appointed position.
Section 9807: Under this section, the NASA Administrator
would be authorized to offer enhanced pay for positions at an
``extremely high level'' in a scientific, technical,
professional, or administrative field. Such authority would
only be utilized to retain existing NASA personnel or to bring
in someone from outside the federal government, and only 10
employees would be able to receive such pay under this section.
The total pay received by such individuals would not be able to
exceed the rate of pay of the Vice President.
Section 9808: This section would allow NASA to retain
inter-governmental personnel up to six years.
Section 9809: This section would authorize NASA to
establish personnel demonstration projects that encompass such
numbers of employees as determined by the Administration (as
opposed to the current government-wide limit of 5,000 employees
in any demo project).
Section 9810: This section would authorize ``voluntary
separation incentive payments'' for NASA of up to 50% of salary
(subject to the availability of funds), allowing NASA to
streamline its workforce.
Section 9811: This section would limit bonuses awarded to
supervisors under sections 9804 and 9805 to 15% of total
bonuses, and it would require the Administration to maintain a
separate account for bonuses.
Subchapter II--Personnel Provisions
Section 9831: This section would include necessary
definitions for the subchapter.
Section 9832: This section would provide a new exchange
program that would limit the length of employee exchanges to
one year, with authority for extensions of up to an additional
year. This section sets forth ethical standard requirements for
employees involved in the assignments. Employees would only be
able to serve in the exchange program if they commit to return
to NASA after the assignment. This language closely resembles
the exchange programs that Chairman Davis included in the
Digital Tech Corps Act and the Services Acquisition Reform Act.
Section 9833: This section would provide a new science and
technology scholarship program, added at the request of the
Science Committee. The new language would require employees to
serve as an employee of NASA for 2 years for each year of the
scholarship.
Section 9834: This section would authorize the
Administrator to appoint qualified individuals to professional
or research positions within NASA without employing competitive
service hiring procedures, provided that the individual
graduated from an accredited university with a GPA of 3.5 or
higher. Appointments would be career-conditional appointments
in the competitive service. The terms ``professional'' position
and ``research'' position would subsequently be defined.
Section 9835: This section would authorize the
Administrator to pay the travel, transportation and relocation
expenses of certain new appointees. Such benefits are available
to current federal employees who accept a new position within
the Federal government.
Section 9836: Under this section, NASA would be able to
deem a period of qualified non-federal career experience for an
individual an equal period of service performed as a federal
employee for purposes of calculating leave accrual. It would
also provide that all senior executives and other senior level
employees at NASA accrue annual leave at the maximum rate: one
day for each bi-weekly pay period.
Section 9837: This provision would permit limited SES
appointees to be appointed to career reserved positions,
provided that the limited appointee, immediately before the
limited appointment, was serving under a career or career-
conditional appointment outside of the SES. The limited
appointment authority would be expanded to include any bona
fide temporary need as determined by the Administrator. It
would also authorize payment of performance bonuses for NASA
limited term employees in the same amounts and in the same
manner as career SES appointees.
Section 9838: Under this section, NASA would be able to set
a GS employee at any step within the pay range based on the
superior qualifications of the employee or special need of NASA
(this authority exists for new hires, but not for current
employees).
TITLE IV--HUMAN CAPITAL PERFORMANCE FUND
This title would insert a new chapter 54 in subpart D of
part III, United States Code, authorizing the establishment of
a Human Capital Performance Fund.
Section 401. Human Capital Performance Fund
This section would add a new chapter 54 to title 5, United
States Code that would authorize $500 million annually for a
human capital performance fund.
Section 5401: This section would explain the purpose of the
new chapter, which would be to promote, through the creation of
a Human Capital Performance Fund, greater performance in the
federal government. Monies from the fund would be used to
reward agencies' highest performance and most valuable
employees. This fund would offer federal managers a new tool to
recognize employee performance that is critical to the
achievement of agency missions.
Section 5402: This section would provide definitions
necessary for the chapter.
Section 5403: This section would establish, and require OPM
to administer, the new Human Capital Performance Fund, which
would be used to make human capital performance payments. An
agency would have to submit a plan for OPM's approval before it
could receive allocations from the Fund. In FY 2004, up to 10
percent of the Fund would be set aside for agency training on
the operation of the Fund plan, as well as on performance
evaluation in general. Thereafter, the remainder of the Fund
would be allocated by OPM to agencies, with up to 90 percent of
that amount allocated on the basis of an agency's pro rata
share of Executive branch payroll; OPM would have discretion
over the distribution of the remaining 10 percent, and an
agency with an exceptionally high-quality plan would be
eligible to receive an additional distribution. In FY 2005
andbeyond, OPM would allocate 90 percent of the amounts appropriated
for the Fund to agencies on a pro rata basis, and would have discretion
over allocation of the remainder. Each agency would be required to
provide payroll information to OPM to facilitate the determination of
the Executive branch payroll and the pro rata shares.
Section 5404: This section would permit OPM to allow an
agency to provide human capital performance payments to
employees, based on exceptional performance or contributions to
the agency's mission, in a manner specified in the agency's
approved plan.
Human Capital Performance Fund payments would not affect
the operation of current basic pay systems such as the General
Schedule. No more than 15 percent of an agency's eligible
employees would be permitted to receive a Fund payment in any
given year. Individual payments would be limited to no more
than 10 percent of an employee's basic rate of pay in any given
year, and in the aggregate, when combined with an employee's
rate of basic pay as adjusted by any locality-based
comparability payments, would not be permitted to exceed
Executive Level IV. This section would also bar the use of the
Fund to pay for a new position or for other types of
performance-related payments or for any other payment not
otherwise authorized by the new chapter, including recruitment
and retention authorized under sections 5753 and 5754 of Title
5. Further, this section would provide that initial human
capital performance payments could be made to individual
employees using monies from the Human Capital Performance Fund,
but, in subsequent years, agencies would be required to budget
for and fund the continuation of those previously granted
individual payments as part of their overall salaries and
expenses budget.
Section 5405: This section would require OPM to prescribe
regulations to administer the provisions of the new chapter 54
and the Fund. The regulations would have to include criteria
governing agency plans, allocations to agencies from the Fund,
payments to individual employees, and the various circumstances
permitting allocations that are either less than or greater
than the agency's pro rata share of the Fund. These criteria
could include limits on the aggregate annualized value of human
capital performance payments authorized by each agency. In
addition, the relationship of agency performance management
systems to this chapter and the parameters of training for
supervisors, managers, and other individuals involved in the
process of making performance distinctions would be specified
in the regulations.
Section 5406: This section would require an agency to
submit to OPM a plan for making payments to employees under
chapter 54. The plan would have to be approved by OPM before
the agency could receive an allocation from the Fund. Each
agency with an approved plan would have to give OPM whatever
information OPM requires concerning how the agency has used its
allocation from the Fund. Each agency would also be required to
demonstrate that its performance management system supports its
strategic goals and objectives, and is used to make meaningful
distinctions in performance. This section would also require
appropriate training.
Section 5407: This section would provide that any payment
to an employee under chapter 54 is part of the employee's basic
pay for retirement and life insurance purposes, and for any
other purposes OPM determines by regulation. However, a payment
under chapter 54 could not be part of basic pay for purposes of
chapter 75 of title 5 (regarding adverse actions).
Section 5408: This section would authorize appropriations
to implement chapter 54 in the amount of $500 million for FY
2004, and, for each subsequent fiscal year, such sums as may be
necessary to carry out the provisions of that chapter.
TITLE V--MISCELLANEOUS
This title would prohibit the use of quotas in public-
private competitions unless it is based on considered research
and sound analysis of past activities and is consistent with
the stated mission of the department or agency.
Section 501. Prohibition on use of quotas
This section would prohibit the Office of Management and
Budget from establishing, applying or enforcing any numerical
goal, target, or quota for subjecting the employees of a
department or agency of the Government to public-private
competitions or converting such employees to contractor
performance under OMB Circular A-76 or any other administrative
regulation, directive or policy, unless the goal, target or
quota is based on considered research and sound analysis of
past analysis and is consistent with the stated mission of the
department or agency. Such prohibition would not limit the
implementation or enforcement of the Government Performance and
Results Act or prevent any agency of the executive branch from
subjecting work performed by federal employees or private
contractors to public-private competitions or conversions.
Explanation of Amendments
The provisions of the substitute are explained in this
report.
Committee Consideration
On May 8, 2003, the Committee met in open session and
ordered reported favorably the bill, H.R. 1836, as amended, by
roll call vote, a quorum being present.
Rollcall Votes
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of this bill to the legislative branch. This bill
would make changes to certain areas of Federal civil service,
such as the Department of Defense civilian workforce, the
National Aeronautics and Space Administration, the Securities
and Exchange Commission, and government-wide improvements, in
order to improve the flexibility and competitiveness of Federal
human resources management. The government wide provisions
would apply to civil service positions within the legislative
branch.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(2) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
Clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives requires a statement of the Committee's general
performance goals and objectives for reported measures that
authorize funding. This bill does not authorize funding.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 1836. The constitutional authority to regulate
the civil service of the Federal government lies within the
Necessary and Proper clause of Article I, Section Eight of the
United States Constitution.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported include unfunded mandates. In
compliance with this requirement the Committee has received a
letter from the Congressional Budget Office included herein.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1836. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 1836 from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 15, 2003.
Hon. Tom Davis,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1836, the Civil
Service and National Security Personnel Improvement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 1836--Civil Service and National Security Personnel Improvement
Act
Summary: H.R. 1836 would make governmentwide and agency-
specific amendments to civil service law. Major provisions of
the bill with budgetary impacts would:
Establish a Human Capital Performance Fund
across executive agencies to award high-performing
employees;
Apply Occupation Safety and Health
Administration (OSHA) standards concerning asbestos
exposure when determining the eligibility of certain
Federal employees for hazardous pay;
Prohibit fees from being charged to Federal
employees to administer flexible spending accounts;
Raise the current limit on overtime pay for
certain Federal employees;
Raise the pay cap for Senior Executive
Service employees;
Authorize funds to pay any difference
between civilian and military compensation for Federal
employees called to active military duty; and
Grant broad new personnel authorities to the
National Aeronautics and Space Administration (NASA)
and the Department of Defense (DoD).
Most of the costs of implementing the bill would be funded
through appropriations. Assuming appropriation of the necessary
amounts, CBO estimates that such costs would total about $300
million in 2004 and about $7.6 billion over the 2004-2008
period. Thoseamounts assume a savings of $1.5 billion over the
2004-2008 period from applying OSHA regulations on asbestos exposure to
cases involving back pay for DoD workers. This estimate does not
include costs for implementing section 102, which would provide DoD
with additional flexibility to operate its human resources management
system. CBO does not have sufficient information about how DoD might
implement those authorities to estimate their cost.
We also estimate the enacting H.R. 1836 would increase
direct spending by about $200 million over the 2004-2013 period
because the bill would increase retirement benefits for certain
workers with part-time service.
H.R. 1836 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA). However, CBO
estimates that any costs to state, local, or tribal governments
from that mandate would be insignificant and would not,
therefore, exceed the threshold established in UMRA ($59
million in 2003, adjusted annually for inflation). The bill
contains no new private-sector mandates as defined in UMRA.
Estimated costs to the Federal Government: The estimated
budgetary impact of H.R. 1836 is shown in the following table.
The costs of this legislation fall within many budget
functions.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------
2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Human Capital Performance Fund:
Estimated Authorization Level............................. 500 509 520 531 545
Estimated Outlays......................................... 400 507 518 529 542
Continue Human Capital Performance Fund Raises:
Estimated Authorized Level................................ 0 473 1,035 1,640 2,291
Estimated Outlays......................................... 0 454 1,012 1,616 2,265
Asbestos Differential Pay Savings:
Estimated Authorization Level............................. -290 -290 -290 -290 -290
Estimated Outlays......................................... -290 -290 -290 -290 -290
Modification of Overtime Pay Cap:
Estimated Authorization Level............................. 107 147 151 156 161
Estimated Outlays......................................... 103 145 151 156 161
Administration of Flexible Spending Accounts:
Estimated Authorization Level............................. 22 28 33 39 44
Estimated Outlays......................................... 20 27 33 38 44
Senior Executive Service and Performance:
Estimated Authorization Level............................. 23 31 31 31 31
Estimated Outlays......................................... 21 31 31 31 31
Reservists Pay:
Estimated Authorization Level............................. 40 18 14 10 7
Estimated Outlays......................................... 37 21 14 10 7
NASA Personnel and Workforce Practices:
Estimated Authorization Level............................. 15 17 19 22 22
Estimated Outlays......................................... 6 13 18 21 22
Total:
Estimated Authorization Level............................. 417 933 1,513 2,139 2,811
Estimated Outlays......................................... 297 908 1,487 2,111 2,782
CHANGES IN DIRECT SPENDINIG
CSRS computation for part-time service:
Estimated Authorization Level............................. 4 10 14 18 21
Estimated Outlays......................................... 4 10 14 18 21
----------------------------------------------------------------------------------------------------------------
Note.--NASA = National Aeronautics and Space Administration; CSRS = Civil Service Retirement System.
This estimate excludes any costs for implementing section
102, which would create a new human resources management system
for DoD; allow DoD to give certain employees outside the United
States the same pay and benefits as the Foreign Service or
Central Intelligence Agency; require DoD, to the maximum extend
practicable, to adjust rates of compensation for civilian
employees at the same rate as military personnel; and allow DoD
to provide additional pay to attract highly qualified experts.
All of these authorities could potentially affect federal
spending.
CBO cannot estimate the budgetary impact of implementing
these provisions because DoD has not indicated how it would
supplant--or improve upon--the personnel system currently
governing the department; how many employees would benefit from
receiving the same pay and benefits as the Foreign Service or
Central Intelligence Agency (the number is classified); whether
or how it might institute pay parity between its civilian
employees and militarymembers; or how many people it might hire
under the authority to provide additional pay to attract highly
qualified experts.
Basis of estimate: For the estimate, CBO assumes that H.R.
1836 will be enacted by the end of fiscal year 2003. We assume
that the necessary amounts will be appropriated for each year
and that outlays will occur at historical rates for similar
programs.
Spending subject to appropriation
CBO estimates that seven sections of the bill would have
significant impacts on spending subject to appropriation. The
following paragraphs discuss those costs.
Human Capital Performance Fund. Section 401 of the bill
would authorize the appropriation of $500 million in 2004 and
such sums as necessary for each subsequent year for the Office
of Personnel Management (OPM) to establish a Human Capital
Performance Fund. The fund would be available for agencies to
give pay raises to employees based on superior performance or
the possession of skills critical to an agency's mission. Those
increases in pay would be in addition to regular cost-of-living
pay raises given to civilian federal employees and would
represent permanent increases in an employee's base pay.
Federal civilian pay and benefits currently cost about $140
billion governmentwide.
H.R. 1836 would allow only the initial pay raise to be made
from the Human Capital Performance Fund. For this estimate, CBO
assumes that the Human Capital Performance Fund would be
continued at $500 million a year, adjusted for anticipated
inflation, for the next five years. We estimate that the
program would cost $2.5 billion over the 2004-2008 period.
In subsequent years, after pay raises made through the
Human Capital Performance Fund are in place, each federal
agency would have to cover the cost of continuing the pay raise
from its regular appropriation. CBO estimates that maintaining
the resulting higher pay levels and adjusting them for
anticipated cost-of-living increases would cost participating
agencies $5.2 billion over the 2005-2008 period. Thus, in
total, we estimate that implementing this provision would cost
$7.7 billion over the next five years.
Asbestos Differential Pay. Under Section 204, federal wage-
grade employees would be subject to the same standards as
general schedule employees when determining eligibility for
environmental differential pay (EDP) due to exposure to
asbestos. Under current law,general schedule employees are
entitled to 8 percent hazard differential pay if they are exposed to
asbestos that exceeds the permissible exposure limits established by
OSHA. The current EDP standard for wage-grade employees entitles them
to the same 8 percent of pay but does not set an objective measure for
determining the level of asbestos exposure necessary to qualify for
EDP. In several instances when wage-grade employees have sought back
pay for EDP, arbitrators have found in favor of the employees when
asbestos levels were below those consistent with OSHA standards. Based
on information from DoD on prior and pending arbitration rulings, CBO
expects that implementing section 204 would reduce the amount of back
pay federal agencies would be required to pay for EDP due to asbestos
exposure. Assuming those cases would be handled administratively, CBO
estimates that establishing OSHA standards for asbestos EDP would save
$290 million in 2004 and $1.5 billion over the 2004-2008 period,
assuming appropriations to DoD and other affected agencies are reduced
by the estimated amounts.
Modification of the Overtime Pay Cap. Under current law,
overtime pay for work in excess of 40 hours per week for
federal managers, supervisors, and other employees exempted
under the Fair Labor Standards Act (FLSA) is limited to a set
rate of roughly $32 an hour (one and a half times the normal
rate for a general schedule (GS) grade 10 (GS-10), step 1,
employee). Employees who earn salaries above GS-12, step 5,
receive overtime pay at a rate that is, on an hourly basis,
less than their regular pay.
Section 201 would raise the overtime pay rate to either one
and one-half times the hourly rate of a GS-10, step 1, or the
hourly rate of the basic pay of the employee, whichever is
greater. Although this change would not affect employees at GS-
12, step 5, and lower, those above this pay rate would earn
their hourly rate of pay for overtime work. Based on
information from the Office of Personnel Management (OPM) on
the number of FLSA-exempted employees at each grade and
information on overtime worked, CBO estimates that implementing
the proposal would cost approximately $100 million in 2004 and
$0.7 billion over the 2004-2008 period.
About 680,000 federal employees at GS-10 and above are
exempt from the FLSA, which is about 36.7 percent of the
general schedule (and related) workforce. For this estimate,
CBO assumes that this employee group worked 37 percent of all
overtime performed by FLSA-exempt employees. We also assume
that those overtime hours are distributed proportionately
across GS-10 through GS-13 employees, with GS-14 and GS-15
employees working one-third of the hours. CBO estimated the
cost of the proposal by calculating the cost of those overtime
hours at the set rate under current law and then calculating
the cost of that same amount of overtime at the set rate or the
employee's hourly rate, whichever is greater.
Federal Flexible Benefits Plan Administrative Costs. Under
current law, federal employees will be allowed to enroll in a
flexible spending account (FSA) program offeredthrough the
Office of Personnel Management (OPM) beginning in May 2003. A FSA is an
employee benefit that allows employees to set aside money, on a pre-tax
basis, for health care and dependent care expenses. The administrative
costs to the program will be paid by participating employees based on a
formula to collect $48 annually for each health care account and 1.5
percent of the total dependent care account.
Section 211 would prevent any fees from being charged to
Federal employees for the administrative costs to operate the
FSAs. Based on information from the Federal judiciary's FSA
program and the operation of private FSAs, CBO estimates that
about 10 percent of Federal employees will initially enroll in
the plan, and we expect participation to grow to about 20
percent of Federal employees over the next five years. Under
the bill, administrative costs of operating the plans would be
subject to appropriation of the necessary amounts. Based on the
fees OPM plans to charge participants and expected employee
participation rates, we estimate that implementing this
provision of the bill would cost about $160 million over the
2004-2008 period.
Senior Executive Service (SES) Performance Provisions.
Under current law, SES employees are paid at six different pay
levels. Base pay is capped at Level IV of the Executive
Schedule ($134,000) and the maximum pay with the locality-based
comparability adjustment is set at Level III of the Executive
Schedule ($142,500). SES employees receive the same annual
across-the board pay raises and locality-based comparability
adjustments that GS employees receive.
Effective January 1, 2004, section 209 would eliminate the
six SES pay levels and raise the cap on base pay to $142,500.
Locality adjustment to SES pay would be eliminated. The
proposal would affect roughly 7,900 employees.
The legislation specifies that no SES employee would
experience a reduction in the rate of basic pay in the first
year after this legislation is enacted, and CBO assumes that
this would continue to be true after the first year. Because
the salaries of many SES employees are at the current caps (or
are expected to reach such caps over the next few years),
raising the cap on base pay would allow those employees to get
pay raises. Assuming that executive level salaries (and thus
the caps) are raised by the full amount authorized under
current law by the Ethics Reform Act, CBO estimates that the
legislation would cost $145 million over the 2004-2008 period.
Federal Employee Reservists Pay. Section 212 would
authorize an increase in Federal salaries to pay for any
difference between civilian and military compensation for
Federal employees called to active duty in the uniformed
service or National Guard following enactment of the bill. CBO
estimates that implementing this provision would cost$37
million in 2004 and $89 million over the 2004-2008 period. Those
payments would be subject to the availability of appropriated funds.
Based on information from DoD, CBO estimates that Federal
employees account for approximately 120,000 positions or almost
15 percent of the total Ready Reserve (which includes the
Selected Reserve and the Individual Ready Reserve/Inactive
National Guard). For this estimate, we assume that 15 percent
of those reserves called to active service at any time are
Federal employees.
In a 2000 DoD survey of 35,000 reserve personnel, 59
percent of all reservists (including Federal employees)
reported either no difference in their income while on active-
duty military status, or an increase in their income while on
active duty. Forty-one percent reported a loss of income during
mobilization and deployment. For this estimate, CBO assumes
that these self-reported survey data are accurate and
applicable to the current call-up of reservists and National
Guard forces.
Of the 41 percent of survey respondents who reported a loss
of income during military reserve service, most (about 70
percent) said their income was reduced by $3,750 or less while
on active duty. One the other hand, some reported much larger
losses. For example, approximately 7 percent of those reporting
an income loss indicated a loss of $37,000 to $50,000 annually.
Considering the loss in income reported by all survey
respondents and the number who reported no loss or an increase
in salary, CBO estimates that the average annual reduction in
salary while serving in the active-duty military is about
$3,000.
The cost of implementing the legislation following
enactment depends on the size of the future reserve force,
which in turn depends on the duration of the military operation
in Iraq and the force size required for it, as well as the size
and duration of any future military conflicts, all of which are
very uncertain. For this estimate, CBO assumes that the total
number of reservists on active duty will decline to 88,000
person-years in fiscal year 2004 and to about 15,000 person-
years by 2008. If the number of reservists called to active
duty were to remain at current levels over the 2004-2008
period, the cost of implementing section 208 would be
significantly greater. Based on the above assumptions about the
future size of the reserve force, CBO estimates that an average
of about 13,000 federal employees will be on active-duty
military service in fiscal year 2004, diminishing to
approximately 2,000 by 2008.
NASA Personnel and Workforce Practices. Subtitle B would
allow NASA to modify its personnel and workforce practices in
several ways. NASA would be allowed to pay higher amounts to
attract and retain individuals with special expertise, exchange
personnel with industrial firms, and expand the use of limited
term appointments. In addition, the bill would authorize the
appropriation of $10 million a year for a new science and
technologyscholarship program. Based on information from NASA,
CBO estimates that implementing this subtitle would cost $15 million a
year, depending on how extensively the agency uses some of the new
authorities.
Direct spending
CBO estimates that one section of H.R. 1836 would increase
direct spending by $206 million over the 2004-2013 period. That
cost is displayed in the following table and described below.
ESTIMATED DIRECT SPENDING EFFECT OF H.R. 1836
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------------------------------
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
Change in Civil Service Retirement
Benefits:
Estimated Budget Authority.............. 4 10 14 18 21 24 26 28 30 31
Estimated Outlays....................... 4 0 14 18 21 24 26 28 30 31
----------------------------------------------------------------------------------------------------------------
Civil Service Retirement Benefits for Part-Time Service.
Section 202 would alter the way retirement benefits under the
Civil Service Retirement System (CSRS) are calculated for
workers with part-time service. The bill would apply to workers
who performed work prior to April 7, 1986, have some part-time
service, and retire after the bill is enacted. Based on
information from OPM, CBO estimates that this provision would
cost $4 million in 2004, $67 million over the 2004-2008 period,
and $206 million over the 2004-2013 period.
Under current law, benefits for CSRS workers with part-time
service are calculated using a two-step process. For workers
with service prior to April 7, 1986, the current formula uses
the highest salary the worker actually earned to reflect the
part-time employment. For work on or after April 7, 1986, the
formula uses a deemed salary (what the worker would have been
earning if the worker had been working full time) to determine
benefits and applies a pro-rata factor to adjust for part-time
service. In effect the current formula tends to treat new
retirees with part-time service early in their careers more
favorably than those whose part-time service comes at the end
of their careers.
Section 202 would calculate CSRS benefits for all part-time
service according to the formula currently used to determine
benefits for service performed on or after April 7, 1986. To
ensure that benefits under the new formula would not be smaller
than benefits calculatedunder the current formula, part-time
service performed prior to April 7, 1986, would be credited as full
time. CBO estimates this provision would affect benefits for several
thousand new CSRS retirees each year. Depending on an individual
employee's work history, benefits for those retirees could be more than
30 percent higher than they would be if calculated under the current
formula.
Federal Long-Term Care Insurance Program. Section 207 would
expand eligibility for the federal long-term care insurance
program to former employees of the District of Columbia, former
employees who have not attained the minimum age to qualify as
annuitants, and retired reservists who have not reached the age
of 60. CBO estimates that this provision would have no
significant net cost.
The federal government does not contribute to enrollees'
premiums for this program, and the private insurers are
required to reimburse OPM for its expenses in administering the
plan. Therefore, net federal spending for the long-term care
insurance program is insignificant. Under the bill, the federal
government would incur some new costs to inform additional
people of their eligibility (primarily consisting of postage
and printing more brochures about plan choices) and to register
new participants. Those additional costs would be charged to
the insurance carriers and OPM would be reimbursed for its
expenses.
Estimated impact on state, local, and tribal governments:
H.R. 1836 would authorize the Secretary to appoint older
Americans to positions in the excepted service, and--
notwithstanding any other provision of law--protect any
retirement benefits they may be receiving from being reduced as
a result of that appointment. To the extent that under current
law retirement benefits provided by state, local, or tribal
governments might be reduced for a beneficiary hired by the
Secretary, enacting this provisions would prohibit such
reductions and thereby impose an intergovernmental mandate as
defined in UMRA. However, according to the National Association
of State Retirement Administrators, few, if any, jurisdictions
require such benefit reductions under current law. Therefore,
CBO estimates that any costs to state, local, or tribal
governments from the mandate would be insignificant and would
not exceed the threshold established in UMRA ($59 million in
2003, adjusted for inflation).
Estimated impact on the private sector: H.R. 1836 contains
no new private-sector mandates as defined in UMRA.
Previous CBO estimate: On May 1, 2003, CBO transmitted a
cost estimate for S. 593, the Reservists Pay Secretary Act of
2003, as introduced by Senator Richard J. Durbin on March 11,
2003, which is similar to section 212 of H.R. 1836. However, S.
593 would authorize a retroactive pay differential for federal
employees who, as members of the uniformed services or National
Guard, were called to active duty military service since
September 11, 2001: H.R. 1836 would not. Therefore, the
estimated costs of section 212 are lower than those for S. 593.
Estimate prepared by: Federal Costs: Matthew Pickford and
Kathleen Gramp, Ellen Hays, Michelle S. Patterson and Sunita
D'Monte, Geoffrey Gerhardt, and Alexis K. Ahlstrom. Impact on
State, Local, and Tribal Governments: Victoria Heid Hall.
Impact on the Private Sector. Paige Piper/Bach.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
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, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart D--Pay and Allowances
Classification................................................5101
* * * * * * *
Human Capital Performance Fund................................5401
* * * * * * *
Subpart I--Miscellaneous
* * * * * * *
National Aeronautics and Space Administration.................9801
Department of Defense National Security Personnel System......9901
* * * * * * *
Subpart B--Employment and Retention
CHAPTER 31--AUTHORITY FOR EMPLOYMENT
SUBCHAPTER I--EMPLOYMENT AUTHORITIES
Sec.
3101. General authority to employ.
* * * * * * *
3114. Appointment of accountants, economists, and examiners by the
Securities and Exchange Commission.
* * * * * * *
SUBCHAPTER I--EMPLOYMENT AUTHORITIES
* * * * * * *
Sec. 3111. Acceptance of volunteer service
(a) * * *
* * * * * * *
(d) Notwithstanding section 1342 of title 31, the head of an
agency may accept voluntary service for the United States under
chapter 37 or section 9832 of this title and regulations of the
Office of Personnel Management.
* * * * * * *
Sec. 3114. Appointment of accountants, economists, and examiners by the
Securities and Exchange Commission
(a) Applicability.--This section applies with respect to any
position of accountant, economist, and securities compliance
examiner at the Commission that is in the competitive service.
(b) Appointment Authority.--
(1) In general.--The Commission may appoint
candidates to any position described in subsection
(a)--
(A) in accordance with the statutes, rules,
and regulations governing appointments in the
excepted service; and
(B) notwithstanding any statutes, rules, and
regulations governing appointments in the
competitive service.
(2) Rule of construction.--The appointment of a
candidate to a position under authority of this
subsection shall not be considered to cause such
position to be converted from the competitive service
to the excepted service.
(c) Reports.--No later than 90 days after the end of fiscal
year 2003 (for fiscal year 2003) and 90 days after the end of
fiscal year 2005 (for fiscal years 2004 and 2005), the
Commission shall submit a report with respect to its exercise
of the authority granted by subsection (b) during such fiscal
years to the Committee on Government Reform and the Committee
on Financial Services of the House of Representatives and the
Committee on Governmental Affairs and the Committee on Banking,
Housing, and Urban Affairs of the Senate. Such reports shall
describe the changes in the hiring process authorized by such
subsection, including relevant information related to--
(1) the quality of candidates;
(2) the procedures used by the Commission to select
candidates through the streamlined hiring process;
(3) the numbers, types, and grades of employees hired
under the authority;
(4) any benefits or shortcomings associated with the
use of the authority;
(5) the effect of the exercise of the authority on
the hiring of veterans and other demographic groups;
and
(6) the way in which managers were trained in the
administration of the streamlined hiring system.
(d) Commission Defined.--For purposes of this section, the
term ``Commission'' means the Security and Exchange Commission.
* * * * * * *
Subpart D--Pay and Allowances
* * * * * * *
CHAPTER 53--PAY RATES AND SYSTEMS
* * * * * * *
SUBCHAPTER VIII--PAY FOR THE SENIOR EXECUTIVE SERVICE.
5381. Definitions.
[5382. Establishment and adjustment of rates of pay for the Senior
Executive Service.]
5382. Establishment of rates of pay for the Senior Executive Service
* * * * * * *
SUBCHAPTER I--PAY COMPARABILITY SYSTEM
* * * * * * *
Sec. 5304. Locality-based comparability payments
(a) * * *
* * * * * * *
(g)(1) * * *
(2) The applicable maximum under this subsection shall be
level III of the Executive Schedule for--
(A) positions under [subparagraphs (A)-(E)]
subparagraphs (A)-(D) of subsection (h)(1); and
(B) any positions under [subsection (h)(1)(F)]
subsection (h)(1)(D) which the President may determine.
(h)(1) For the purpose of this subsection, the term
``position'' means--
(A) * * *
[(B) a Senior Executive Service position under
section 3132;
[(C) a position in the Federal Bureau of
Investigation and Drug Enforcement Administration
Senior Executive Service under section 3151;]
[(D)] (B) a position to which section 5372 applies
(relating to administrative law judges appointed under
section 3105);
[(E)] (C) a position to which section 5372a applies
(relating to contract appeals board members); and
[(F)] (D) a position within an Executive agency not
covered under the General Schedule or any of the
preceding subparagraphs, the rate of basic pay for
which is (or, but for this section, would be) no more
than the rate payable for level IV of the Executive
Schedule;
but does not include--
(i) * * *
(ii) a position as to which a rate of pay is
authorized under section 5377 (relating to critical
positions); [or]
(iii) a position to which subchapter II applies
(relating to the Executive Schedule)[.];
(iv) a Senior Executive Service position under
section 3132;
(v) a position in the Federal Bureau of Investigation
and Drug Enforcement Administration Senior Executive
Service under section 3151; or
(vi) a position in a system equivalent to the system
in clause (iv), as determined by the President's Pay
Agent designated under subsection (d).
(2)(A) * * *
(B) A request by an agency head or exercise of authority by
the President under subparagraph (A) shall cover--
(i) with respect to the positions under
[subparagraphs (A) through (E)] subparagraphs (A)
through (C) of paragraph (1), all positions described
in the subparagraph or subparagraphs involved
(excluding any under [clause (i) or (ii)] clause (i),
(ii), (iii), (iv), (v), or (vii) of such paragraph);
and
(ii) with respect to the positions under [paragraph
(1)(F)] paragraph (1)(D), such positions as may be
considered appropriate (excluding any under [clause (i)
or (ii)] clause (i), (ii), (iii), (iv), (v), or (vi) of
paragraph (1)).
* * * * * * *
SUBCHAPTER IV--PREVAILING RATE SYSTEMS
* * * * * * *
Sec. 5343. Prevailing rate determinations; wage schedules; night
differentials
(a) * * *
* * * * * * *
(c) The Office of Personnel Management, by regulation, shall
prescribe practices and procedures for conducting wage surveys,
analyzing wage survey data, developing and establishing wage
schedules and rates, and administering the prevailing rate
system. The regulations shall provide--
(1) * * *
* * * * * * *
(4) for proper differentials, as determined by the
Office, for duty involving unusually severe working
conditions or unusually severe hazards, and for any
hardship or hazard related to asbestos, such
differentials shall be determined by applying
occupational safety and health standards consistent
with the permissible exposure limit promulgated by the
Secretary of Labor under the Occupational Safety and
Health Act of 1970;
* * * * * * *
SUBCHAPTER VII--MISCELLANEOUS PROVISIONS
* * * * * * *
Sec. 5379. Student loan repayments
(a) * * *
(b)(1) * * *
(2) Payments under this section shall be made subject to such
terms, limitations, or conditions as may be mutually agreed to
by the agency and employee concerned, except that the amount
paid by an agency under this section may not exceed--
(A) [$6,000] $10,000 for any employee in any calendar
year; or
* * * * * * *
SUBCHAPTER VIII--PAY FOR THE SENIOR EXECUTIVE SERVICE
* * * * * * *
[Sec. 5382. Establishment and adjustment of rates of pay for the Senior
Executive Service
[(a) There shall be 5 or more rates of basic pay for the
Senior Executive Service, and each senior executive shall be
paid at one of the rates. The rates of basic pay shall be
initially established and thereafter adjusted by the President
subject to subsection (b) of this section.
[(b) In setting rates of basic pay, the lowest rate for the
Senior Executive Service shall not be less than the minimum
rate of basic pay payable under section 5376 and the highest
rate shall not exceed the rate for level IV of the Executive
Schedule. The payment of the rates shall not be subject to the
pay limitation of section 5306(e) or 5373 of this title.
[(c) Subject to subsection (b) of this section, effective at
the beginning of the first applicable pay period commencing on
or after the first day of the month in which an adjustment
takes effect under section 5303 of this title in the rates of
pay under the General Schedule, each rate of basic pay for the
Senior Executive Service shall be adjusted by an amount
determined by the President to be appropriate.
[(d) The rates of basic pay that are established and adjusted
under this section shall be printed in the Federal Register and
shall supersede any prior rates of basic pay for the Senior
Executive Service.]
Sec. 5382. Establishment of rates of pay for the Senior Executive
Service
(a) Subject to regulations prescribed by the Office of
Personnel Management, there shall be established a range of
rates of basic pay for the Senior Executive Service, and each
senior executive shall be paid at one of the rates within the
range, based on individual performance, contribution to the
agency's performance, or both, as determined under a rigorous
performance management system. The lowest rate of the range
shall not be less than the minimum rate of basic pay payable
under section 5376, and the highest rate, for any position
under this system or an equivalent system as determined by the
President's Pay Agent designated under section 5304(d), shall
not exceed the rate for level III of the Executive Schedule.
The payment of the rates shall not be subject to the pay
limitation of section 5306(e) or 5373.
(b) Notwithstanding the provisions of subsection (a), the
applicable maximum shall be level II of the Executive Schedule
for any agency that is certified under section 5307 as having a
performance appraisal system which, as designed and applied,
makes meaningful distinctions based on relative performance.
(c) No employee may suffer a reduction in pay by reason of
transfer from an agency with an applicable maximum rate of pay
prescribed under subsection (b) to an agency with an applicable
maximum rate of pay prescribed under subsection (a).
Sec. 5383. Setting individual senior executive pay
(a) Each appointing authority shall determine, in accordance
with criteria established by the Office of Personnel
Management, [which of the rates established under section 5382
of this title] which of the rates within a range established
under section 5382 shall be paid to each senior executive under
such appointing authority.
* * * * * * *
(c) Except [for any pay adjustment under section 5382 of this
title] as provided in regulations prescribed by the Office
under section 5385, the rate of basic pay for any senior
executive may not be adjusted more than once during any 12-
month period.
* * * * * * *
CHAPTER 54--HUMAN CAPITAL PERFORMANCE FUND
Sec.
5401. Purpose.
5402. Definitions.
5403. Human Capital Performance Fund.
5404. Human capital performance payments.
5405. Regulations.
5406. Agency plan.
5407. Nature of payment.
5408. Appropriations.
Sec. 5401. Purpose
The purpose of this chapter is to promote, through the
creation of a Human Capital Performance Fund, greater
performance in the Federal Government. Monies from the Fund
will be used to reward agencies' highest performing and most
valuable employees. This Fund will offer Federal managers a new
tool to recognize employee performance that is critical to the
achievement of agency missions.
Sec. 5402. Definitions
For the purpose of this chapter--
(1) ``agency'' means an Executive agency under
section 105, but does not include the General
Accounting Office;
(2) ``employee'' includes--
(A) an individual paid under a statutory pay
system defined in section 5302(1);
(B) a prevailing rate employee, as defined in
section 5342(a)(2); and
(C) a category of employees included by the
Office of Personnel Management following the
review of an agency plan under section
5403(b)(1);
but does not include--
(i) an individual paid at an annual rate of
basic pay for a level of the Executive
Schedule, under subchapter II of chapter 53, or
at a rate provided for one of those levels
under another provision of law;
(ii) a member of the Senior Executive Service
paid under subchapter VIII of chapter 53, or an
equivalent system;
(iii) an administrative law judge paid under
section 5372;
(iv) a contract appeals board member paid
under section 5372a;
(v) an administrative appeals judge paid
under section 5372b; and
(vi) an individual in a position which is
excepted from the competitive service because
of its confidential, policy-determining,
policy-making, or policy-advocating character;
and
(3) ``Office'' means the Office of Personnel
Management.
Sec. 5403. Human Capital Performance Fund
(a) There is hereby established the Human Capital Performance
Fund, to be administered by the Office for the purpose of this
chapter.
(b)(1)(A) An agency shall submit a plan as described in
section 5406 to be eligible for consideration by the Office for
an allocation under this section. An allocation shall be made
only upon approval by the Office of an agency's plan.
(B)(i) After the reduction for training required under
section 5408, ninety percent of the remaining amount
appropriated to the Fund may be allocated by the Office to the
agencies. Of the amount to be allocated, an agency's pro rata
distribution may not exceed its pro rata share of Executive
branch payroll.
(ii) If the Office does not allocate an agency's full pro
rata share, the undistributed amount remaining from that share
will become available for distribution to other agencies, as
provided in subparagraph (C).
(C)(i) After the reduction for training under section 5408,
ten percent of the remaining amount appropriated to the Fund,
as well as the amount of the pro rata share not distributed
because of an agency's failure to submit a satisfactory plan,
shall be allocated among agencies with exceptionally high-
quality plans.
(ii) An agency with an exceptionally high-quality plan is
eligible to receive an additional distribution in addition to
its full pro rata distribution.
(2) Each agency is required to provide to the Office such
payroll information as the Office specifies necessary to
determine the Executive branch payroll.
Sec. 5404. Human capital performance payments
(a)(1) Notwithstanding any other provision of law, the Office
may authorize an agency to provide human capital performance
payments to individual employees based on exceptional
performance contributing to the achievement of the agency
mission.
(2) The number of employees in an agency receiving payments
from the Fund, in any year, shall not be more than the number
equal to 15 percent of the agency's average total civilian
full- and part-time permanent employment for the previous
fiscal year.
(b)(1) A human capital performance payment provided to an
individual employee from the Fund, in any year, shall not
exceed 10 percent of the employee's rate of basic pay.
(2) The aggregate of an employee's rate of basic pay,
adjusted by any locality-based comparability payments, and
human capital performance pay, as defined by regulation, may
not exceed the rate of basic pay for Executive Level IV in any
year.
(3) Any human capital performance payment provided to an
employee from the Fund is in addition to any annual pay
adjustment (under section 5303 or any similar provision of law)
and any locality-based comparability payment that may apply.
(c) No monies from the Human Capital Performance Fund may be
used to pay for a new position, for other performance-related
payments, or for recruitment or retention incentives paid under
sections 5753 and 5754.
(d)(1) An agency may finance initial human capital
performance payments using monies from the Human Capital
Performance Fund, as available.
(2) In subsequent years, continuation of previously awarded
human capital performance payments shall be financed from other
agency funds available for salaries and expenses.
Sec. 5405. Regulations
The Office shall issue such regulations as it determines to
be necessary for the administration of this chapter, including
the administration of the Fund. The Office's regulations shall
include criteria governing--
(1) an agency plan under section 5406;
(2) the allocation of monies from the Fund to
agencies;
(3) the nature, extent, duration, and adjustment of,
and approval processes for, payments to individual
employees under this chapter;
(4) the relationship to this chapter of agency
performance management systems;
(5) training of supervisors, managers, and other
individuals involved in the process of making
performance distinctions; and
(6) the circumstances under which funds may be
allocated by the Office to an agency in amounts below
or in excess of the agency's pro rata share.
Sec. 5406. Agency plan
(a) To be eligible for consideration by the Office for an
allocation under this section, an agency shall--
(1) develop a plan that incorporates the following
elements:
(A) adherence to merit principles set forth
in section 2301;
(B) a fair, credible, and transparent
employee performance appraisal system;
(C) a link between the pay-for-performance
system, the employee performance appraisal
system, and the agency's strategic plan;
(D) a means for ensuring employee involvement
in the design and implementation of the system;
(E) adequate training and retraining for
supervisors, managers, and employees in the
implementation and operation of the pay-for-
performance system;
(F) a process for ensuring ongoing
performance feedback and dialogue between
supervisors, managers, and employees throughout
the appraisal period, and setting timetables
for review;
(G) effective safeguards to ensure that the
management of the system is fair and equitable
and based on employee performance; and
(H) a means for ensuring that adequate agency
resources are allocated for the design,
implementation, and administration of the pay-
for-performance system;
(2) upon approval, receive an allocation of funding
from the Office;
(3) make payments to individual employees in
accordance with the agency's approved plan; and
(4) provide such information to the Office regarding
payments made and use of funds received under this
section as the Office may specify.
(b) The Office, in consultation with the Chief Human Capital
Officers Council, shall review and approve an agency's plan
before the agency is eligible to receive an allocation of
funding from the Office.
(c) The Chief Human Capital Officers Council shall include in
its annual report to Congress under section 1303(d) of the
Homeland Security Act of 2002 an evaluation of the formulation
and implementation of agency performance management systems.
Sec. 5407. Nature of payment
Any payment to an employee under this section shall be part
of the employee's basic pay for the purposes of subchapter III
of chapter 83, and chapters 84 and 87, and for such other
purposes (other than chapter 75) as the Office shall determine
by regulation.
Sec. 5408. Appropriations
There is authorized to be appropriated $500,000,000 for
fiscal year 2004, and, for each subsequent fiscal year, such
sums as may be necessary to carry out the provisions of this
chapter. In the first year of implementation, up to 10 percent
of the amount appropriated to the Fund shall be available to
participating agencies to train supervisors, managers, and
other individuals involved in the appraisal process on using
performance management systems to make meaningful distinctions
in employee performance and on the use of the Fund.
CHAPTER 55--PAY ADMINISTRATION
* * * * * * *
SUBCHAPTER IV--DUAL PAY AND DUAL EMPLOYMENT
5531. Definitions.
* * * * * * *
5538. Nonreduction in pay while serving on active duty in a reserve
component.
* * * * * * *
SUBCHAPTER I--GENERAL PROVISIONS
* * * * * * *
Sec. 5504. Biweekly pay periods; computation of pay
(a) The pay period for an employee covers two administrative
workweeks. [For the purpose of this subsection, ``employee''
means--
[(1) an employee in or under an Executive agency;
[(2) an employee in or under the Office of the
Architect of the Capitol, the Botanic Garden, and the
Library of Congress, for whom a basic administrative
workweek is established under section 6101(a)(5) of
this title; and
[(3) an individual employed by the government of the
District of Columbia;
but does not include--
[(A) an employee on the Isthmus of Panama in the
service of the Panama Canal Commission; or
[(B) an employee or individual excluded from the
definition of employee in section 5541(2) of this title
other than an employee or individual excluded by
section 5541(2)(xvi) of this title.]
(b) When, in the case of an employee, it is necessary for
computation of pay under this subsection to convert an annual
rate of basic pay to a basic hourly, daily, weekly, or biweekly
rate, the following rules govern:
(1) To derive an hourly rate, divide the annual rate
by 2,087.
(2) To derive a daily rate, multiply the hourly rate
by the number of daily hours of service required.
(3) To derive a weekly or biweekly rate, multiply the
hourly rate by 40 or 80, as the case may be.
Rates are computed to the nearest cent, counting one-half and
over as a whole cent. [For the purpose of this subsection,
``employee'' means--
[(A) an employee in or under an Executive agency;
[(B) an employee in or under the judicial branch;
[(C) an employee in or under the Office of the
Architect of the Capitol, the Botanic Garden, and the
Library of Congress, for whom a basic administrative
workweek is established under section 6101(a)(5) of
this title; and
[(D) an individual employed by the government of the
District of Columbia;
but does not include an employee or individual excluded from
the definition of employee in section 5541(2) of this title
other than an employee or individual excluded by section
5541(2)(xvi) of this title.]
(c) For the purposes of this section:
(1) The term ``employee'' means--
(A) an employee in or under an Executive
agency;
(B) an employee in or under the Office of the
Architect of the Capitol, the Botanic Garden,
and the Library of Congress, for whom a basic
administrative workweek is established under
section 6101(a)(5) of this title; and
(C) an individual employed by the government
of the District of Columbia.
(2) The term ``employee'' does not include--
(A) an employee on the Isthmus of Panama in
the service of the Panama Canal Commission; or
(B) an employee or individual excluded from
the definition of employee in section 5541(2)
of this title other than an employee or
individual excluded by clauses (ii), (iii), and
(xiv) through (xvii) of such section.
(3) Notwithstanding paragraph (2), an individual who
otherwise would be excluded from the definition of
employee shall be deemed to be an employee for purposes
of this section if the individual's employing agency so
elects, under guidelines in regulations promulgated by
the Office of Personnel Management under subsection
(d)(2).
[(c)] (d)(1) The Office of Personnel Management may prescribe
regulations, subject to the approval of the President,
necessary for the administration of this section insofar as
this section affects employees in or under an Executive agency.
(2) The Office of Personnel Management shall provide
guidelines by regulation for exemptions to be made by the heads
of agencies under subsection (c)(3). Such guidelines shall
provide for such exemptions only under exceptional
circumstances.
* * * * * * *
SUBCHAPTER IV--DUAL PAY AND DUAL EMPLOYMENT
* * * * * * *
Sec. 5538. Nonreduction in pay while serving on active duty in a
reserve component
(a) An employee who is also a member of a reserve component
and is absent from a position of employment with the Federal
Government under a call or order to serve on active duty for a
period of more than 30 days shall be entitled to receive, for
each pay period described in subsection (b), an amount equal to
the difference (if any) between--
(1) the amount of civilian basic pay that would
otherwise have been payable to the employee for such
pay period if the employee's civilian employment with
the Government had not been interrupted by the service
on active duty; and
(2) the amount of military compensation that is
payable to the employee for the service on active duty
and is allocable to such pay period.
(b)(1) Amounts under this section shall be payable with
respect to each pay period (which would otherwise apply if the
employee's civilian employment had not been interrupted) that
occurs--
(A) while the employee serves on active duty for a
period of more than 30 days;
(B) while the employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, the performance of such active duty;
or
(C) during the 14-day period beginning at the end of
such active duty or the end of the period referred to
in subparagraph (B).
(2) Paragraph (1) shall not apply with respect to a pay
period for which the employee receives civilian basic pay
(including by taking any annual, military, or other paid leave)
to which the employee is entitled by virtue of the employee's
civilian employment with the Government.
(c) Any amount payable under this section to an employee
shall be paid--
(1) by employing agency of the employee;
(2) from the appropriations or fund that would be
used to pay the employee if the employee were in a pay
status; and
(3) to the extent practicable, at the same time and
in the same manner as would civilian basic pay if the
employee's civilian employment had not been
interrupted.
(d) In consultation with the Secretary of Defense, the Office
of Personnel Management shall prescribe such regulations as may
be necessary to carry out this section.
(e) In consultation with the Office of Personnel Management,
the head of each employing agency shall prescribe procedures to
ensure that the rights under this section apply to the
employees of such agency.
(f) In this section:
(1) The terms ``active duty for a period of more than
30 days'', ``member'', and ``reserve component'' have
the meanings given such terms in section 101 of title
37.
(2) The term ``civilian basic pay'' includes any
amount payable under section 5304 of this title.
(3) The term ``employing agency'', as used with
respect to an employee entitled to any payments under
this section, means the agency with respect to which
the employee has reemployment rights under chapter 43
of title 38. The term ``agency'' has the meaning given
such term in subparagraph (C) of section 2302(a)(2) of
this title, except that the term includes Government
corporations and agencies excluded by clause (i) or
(ii) of such subparagraph.
(4) The term ``military compensation'' has the
meaning given the term ``pay'' in section 101(21) of
title 37, except that the term includes allowances
provided under chapter 7 of such title.
SUBCHAPTER V--PREMIUM PAY
* * * * * * *
Sec. 5542. Overtime rates; computation
(a) For full-time, part-time and intermittent tours of duty,
hours of work officially ordered or approved in excess of 40
hours in an administrative workweek, or (with the exception of
an employee engaged in professional or technical engineering or
scientific activities for whom the first 40 hours of duty in an
administrative workweek is the basic workweek and an employee
whose basic pay exceeds the minimum rate for GS-10 (including
any applicable locality-based comparability payment under
section 5304 or similar provision of law and any applicable
special rate of pay under section 5305 or similar provision of
law) for whom the first 40 hours of duty in an administrative
workweek is the basic workweek) in excess of 8 hours in a day,
performed by an employee are overtime work and shall be paid
for, except as otherwise provided by this subchapter, at the
following rates:
(1) * * *
(2) For an employee whose basic pay is at a rate
which exceeds the minimum rate of basic pay for GS-10
(including any applicable locality-based comparability
payment under section 5304 or similar provision of law
and any applicable special rate of pay under section
5305 or similar provision of law), the overtime hourly
rate of pay is an amount equal to the greater of one
and one-half times the hourly rate of the minimum rate
of basic pay for GS-10 (including any applicable
locality-based comparability payment under section 5304
or similar provision of law and any applicable special
rate of pay under section 5305 or similar provision of
law) or the hourly rate of basic pay of the employee,
and all that amount is premium pay.
* * * * * * *
Sec. 5545. Night, standby, irregular, and hazardous duty differential
(a) * * *
* * * * * * *
(d) The Office shall establish a schedule or schedules of pay
differentials for duty involving unusual physical hardship or
hazard, and for any hardship or hazard related to asbestos,
such differentials shall be determined by applying occupational
safety and health standards consistent with the permissible
exposure limit promulgated by the Secretary of Labor under the
Occupational Safety and Health Act of 1970. Under such
regulations as the Office may prescribe, and for such minimum
periods as it determines appropriate, an employee to whom
chapter 51 and subchapter III of chapter 53 of this title
applies is entitled to be paid the appropriate differential for
any period in which he is subjected to physical hardship or
hazard not usually involved in carrying out the duties of his
position. However, the pay differential--
(1) * * *
* * * * * * *
Subpart E--Attendance and Leave
* * * * * * *
CHAPTER 63--LEAVE
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
Sec. 6323. Military leave; Reserves and National Guardsmen
(a) * * *
(b) Except as provided by section 5519 of this title, an
employee as defined by section 2105 of this title or an
individual employed by the government of the District of
Columbia, permanent or temporary indefinite, who--
(1) * * *
(2)(A) performs, for the purpose of providing
military aid to enforce the law or for the purpose of
providing assistance to civil authorities in the
protection or saving of life or property or the
prevention of injury--
[(A)] (i) Federal service under section 331,
332, 333, or 12406 of title 10, or other
provision of law, as applicable, or
[(B)] (ii) full-time military service for his
State, the District of Columbia, the
Commonwealth of Puerto Rico, or a territory of
the United States; or
(B) performs full-time military service as a result
of a call or order to active duty in support of a
contingency operation as defined in section 101(a)(13)
of title 10;
* * * * * * *
Subpart F--Labor-Management and Employee Relations
* * * * * * *
CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT
SUBCHAPTER I--REGULATION OF CONDUCT
Sec.
7301. Presidential regulations.
7302. Post-employment notification.
* * * * * * *
SUBCHAPTER I--REGULATION OF CONDUCT
* * * * * * *
Sec. 7302. Post-employment notification
(a) Not later than the effective date of the amendments made
by sections 3 and 4 of the Federal Employees Pay for
Performance Act of 2003, or 180 days after the date of
enactment of that Act, whichever is later, the Office of
Personnel Management shall, in consultation with the Attorney
General and the Office of Government Ethics, promulgate
regulations requiring that each Executive branch agency notify
any employee of that agency who is subject to the provisions of
section 207(c)(1) of title 18, as a result of the amendment to
section 207(c)(2)(A)(ii) of that title by that Act.
(b) The regulations shall require that notice be given
before, or as part of, the action that affects the employee's
coverage under section 207(c)(1) of title 18, by virtue of the
provisions of section 207(c)(2)(A)(ii) of that title, and again
when employment or service in the covered position is
terminated.
* * * * * * *
SUBCHAPTER V--MISCONDUCT
* * * * * * *
Sec. 7353. Gifts to Federal employees
(a) * * *
(b)(1) * * *
* * * * * * *
(4) Nothing in this section precludes an employee of a
private sector organization, while assigned to an agency under
chapter 37 or section 9832, from continuing to receive pay and
benefits from such organization in accordance with such
chapter.
* * * * * * *
Subpart G--Insurance and Annuities
* * * * * * *
CHAPTER 83--RETIREMENT
* * * * * * *
SUBCHAPTER III--CIVIL SERVICE RETIREMENT
* * * * * * *
Sec. 8339. Computation of annuity
(a) * * *
* * * * * * *
(p)(1) * * *
* * * * * * *
(3) In the administration of paragraph (1)--
(A) subparagraph (A) of such paragraph shall apply
with respect to pay for service performed before, on,
or after April 7, 1986; and
(B) subparagraph (B) of such paragraph--
(i) shall apply with respect to that portion
of any annuity which is attributable to service
performed on or after April 7, 1986; and
(ii) shall not apply with respect to that
portion of any annuity which is attributable to
service performed before April 7, 1986.
(4) Paragraph (3) shall be effective with respect to any
annuity entitlement to which is based on a separation from
service occurring on or after the date of the enactment of this
paragraph.
* * * * * * *
CHAPTER 90--LONG-TERM CARE INSURANCE
* * * * * * *
Sec. 9001. Definitions
For purposes of this chapter:
(1) Employee.--The term ``employee'' means--
(A) * * *
* * * * * * *
(D) an employee of a nonappropriated fund
instrumentality of the Department of Defense
described in section [2105(c),
but does not include an individual employed by the
government of the District of Columbia (other than an
employee of the District of Columbia Courts).] 2105(c).
(2) Annuitant.--The term ``annuitant'' means--
(A) any individual who would satisfy the
requirements of paragraph (3) of section 8901
if, for purposes of such paragraph, the term
``employee'' were considered to have the
meaning given to it under paragraph (1) of this
subsection; [and]
(B) any individual who--
(i) * * *
* * * * * * *
(iii) would not (but for this
subparagraph) otherwise satisfy the
requirements of this paragraph[.]; and
(C) any former employee who, on the basis of
his or her service, would meet all requirements
for being considered an ``annuitant'' within
the meaning of subchapter III of chapter 83,
chapter 84, or any other retirement system for
employees of the Government, but for the fact
that such former employee has not attained the
minimum age for title to annuity.
* * * * * * *
(4) Retired member of the uniformed services.--The
term ``retired member of the uniformed services'' means
a member or former member of the uniformed services
entitled to retired or retainer pay, [including a
member or former member retired under chapter 1223 of
title 10 who has] and a member who has been transferred
to the Retired Reserve and who would be entitled to
retired pay under chapter 1223 of title 10 but for not
having attained the age of 60 and who satisfies such
eligibility requirements as the Office of Personnel
Management prescribes under section 9008.
* * * * * * *
Subpart I--Miscellaneous
* * * * * * *
CHAPTER 98--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
SUBCHAPTER I--WORKFORCE AUTHORITIES
Sec.
9801. Definitions.
9802. Planning, notification, and reporting requirements.
9803. Workforce authorities.
9804. Recruitment, redesignation, and relocation bonuses.
9805. Retention bonuses.
9806. Term appointments.
9807. Pay authority for critical positions.
9808. Assignments of intergovernmental personnel.
9809. Enhanced demonstration project authority.
9810. Voluntary separation incentive payments.
9811. Limitations relating to bonuses.
SUBCHAPTER II--PERSONNEL PROVISIONS
9831. Definitions.
9832. NASA-Industry exchange program.
9833. Science and technology scholarship program.
9834. Distinguished scholar appointment authority.
9835. Travel and transportation expenses of certain new appointees.
9836. Annual leave enhancements.
9837. Limited appointments to Senior Executive Service positions.
9838. Superior qualifications pay.
SUBCHAPTER I--WORKFORCE AUTHORITIES
Sec. 9801. Definitions
For purposes of this subchapter--
(1) the term ``Administration'' means the National
Aeronautics and Space Administration;
(2) the term ``Administrator'' means the
Administrator of the National Aeronautics and Space
Administration;
(3) the term ``critical need'' means a specific and
important requirement of the Administration's mission
that the Administration is unable to fulfill because
the Administration lacks the appropriate employees
because--
(A) of the inability to fill positions; or
(B) employees do not possess the requisite
skills;
(4) the term ``employee'' means an individual
employed in or under the Administration;
(5) the term ``workforce plan'' means the plan
required under section 9802(a);
(6) the term ``appropriate committees of Congress''
means--
(A) the Committees on Government Reform,
Science, and Appropriations of the House of
Representatives; and
(B) the Committees on Governmental Affairs,
Commerce, Science, and Transportation, and
Appropriations of the Senate; and
(7) the term ``redesignation bonus'' means a bonus
under section 9804 paid to an individual described in
subsection (a)(2) thereof.
Sec. 9802. Planning, notification, and reporting requirements
(a) Not later than 90 days before exercising any of the
workforce authorities under this subchapter, the Administrator
shall submit a written plan to the appropriate committees of
Congress. A plan under this subchapter may not be implemented
without the approval of the Office of Personnel Management.
(b) A workforce plan shall include a description of--
(1) each critical need of the Administration and the
criteria used in the identification of that need;
(2)(A) the functions, approximate number, and classes
or other categories of positions or employees that--
(i) address critical needs; and
(ii) would be eligible for each authority
proposed to be exercised under section 9803;
and
(B) how the exercise of those authorities with
respect to the eligible positions or employees involved
would address each critical need identified under
paragraph (1);
(3)(A) any critical need identified under paragraph
(1) which would not be addressed by the authorities
made available under this subchapter; and
(B) the reasons why those needs would not be so
addressed;
(4) the specific criteria to be used in determining
which individuals may receive the benefits described
under sections 9804, 9805 (including the criteria for
granting bonuses in the absence of a critical need),
and 9810, and how the level of those benefits will be
determined;
(5) the safeguards or other measures that will be
applied to ensure that this subchapter is carried out
in a manner consistent with merit system principles;
(6) the means by which employees will be afforded the
notification required under subsections (c) and
(d)(1)(B);
(7) the methods that will be used to determine if the
authorities exercised under this subchapter have
successfully addressed each critical need identified
under paragraph (1); and
(8)(A) the recruitment methods used by the
Administration before the enactment of this chapter to
recruit highly qualified individuals; and
(B) the changes the Administration will implement
after the enactment of this chapter in order to improve
its recruitment of highly qualified individuals,
including how it intends to use--
(i) nongovernmental recruitment or placement
agencies; and
(ii) Internet technologies.
(c) Not later than 60 days before first exercising any of the
workforce authorities made available under this subchapter, the
Administrator shall provide to all employees the workforce plan
and any additional information which the Administrator
considers appropriate.
(d)(1)(A) The Administrator may submit any modifications to
the workforce plan to the Office of Personnel Management.
Modifications to the workforce plan may not be implemented
without the approval of the Office of Personnel Management.
(B) Not later than 60 days before implementing any such
modifications, the Administrator shall provide an appropriately
modified plan to all employees of the Administration and to the
appropriate committees of Congress.
(2) Any reference in this subchapter or any other provision
of law to the workforce plan shall be considered to include any
modification made in accordance with this subsection.
(e) Before submitting any written plan under subsection (a)
(or modification under subsection (d)) to the Office of
Personnel Management, the Administrator shall--
(1) provide to each employee representative
representing any employees who might be affected by
such plan (or modification) a copy of the proposed plan
(or modification);
(2) give each representative 30 calendar days (unless
extraordinary circumstances require earlier action) to
review and make recommendations with respect to the
proposed plan (or modification); and
(3) give any recommendations received from any such
representatives under paragraph (2) full and fair
consideration in deciding whether or how to proceed
with respect to the proposed plan (or modification).
(f) None of the workforce authorities made available under
this subchapter may be exercised in a manner inconsistent with
the workforce plan.
(g) Whenever the Administration submits its performance plan
under section 1115 of title 31 to the Office of Management and
Budget for any year, the Administration shall at the same time
submit a copy of such plan to the appropriate committees of
Congress.
(h) Not later than 6 years after date of enactment of this
subchapter, the Administrator shall submit to the appropriate
committees of Congress an evaluation and analysis of the
actions taken by the Administration under this subchapter,
including--
(1) an evaluation, using the methods described in
subsection (b)(7), of whether the authorities exercised
under this subchapter successfully addressed each
critical need identified under subsection (b)(1);
(2) to the extent that they did not, an explanation
of the reasons why any critical need (apart from the
ones under subsection (b)(3)) was not successfully
addressed; and
(3) recommendations for how the Administration could
address any remaining critical need and could prevent
those that have been addressed from recurring.
Sec. 9803. Workforce authorities
(a) The workforce authorities under this subchapter are the
following:
(1) The authority to pay recruitment, redesignation,
and relocation bonuses under section 9804.
(2) The authority to pay retention bonuses under
section 9805.
(3) The authority to make term appointments and to
take related personnel actions under section 9806.
(4) The authority to fix rates of basic pay for
critical positions under section 9807.
(5) The authority to extend intergovernmental
personnel act assignments under section 9808.
(6) The authority to apply subchapter II of chapter
35 in accordance with section 9810.
(b) No authority under this subchapter may be exercised with
respect to any officer who is appointed by the President, by
and with the advice and consent of the Senate.
(c) Unless specifically stated otherwise, all authorities
provided under this subchapter are subject to section 5307.
Sec. 9804. Recruitment, redesignation, and relocation bonuses
(a) Notwithstanding section 5753, the Administrator may pay a
bonus to an individual, in accordance with the workforce plan
and subject to the limitations in this section, if--
(1) the Administrator determines that the
Administration would be likely, in the absence of a
bonus, to encounter difficulty in filling a position;
and
(2) the individual--
(A) is newly appointed as an employee of the
Federal Government;
(B) is currently employed by the Federal
Government and is newly appointed to another
position in the same geographic area; or
(C) is currently employed by the Federal
Government and is required to relocate to a
different geographic area to accept a position
with the Administration.
(b) If the position is described as addressing a critical
need in the workforce plan under section 9802(b)(2)(A), the
amount of a bonus may not exceed--
(1) 50 percent of the employee's annual rate of basic
pay (including comparability payments under sections
5304 and 5304a) as of the beginning of the service
period multiplied by the service period specified under
subsection (d)(1)(B)(i); or
(2) 100 percent of the employee's annual rate of
basic pay (including comparability payments under
sections 5304 and 5304a) as of the beginning of the
service period.
(c) If the position is not described as addressing a critical
need in the workforce plan under section 9802(b)(2)(A), the
amount of a bonus may not exceed--
(1) 25 percent of the employee's annual rate of basic
pay (including comparability payments under sections
5304 and 5304a) as of the beginning of the service
period multiplied by the service period specified under
subsection (d)(1)(B)(i); or
(2) 100 percent of the employee's annual rate of
basic pay (including comparability payments under
sections 5304 and 5304a) as of the beginning of the
service period.
(d)(1)(A) Payment of a bonus under this section shall be
contingent upon the individual entering into a service
agreement with the Administration.
(B) At a minimum, the service agreement shall include--
(i) the required service period;
(ii) the method of payment, including a payment
schedule, which may include a lump-sum payment,
installment payments, or a combination thereof;
(iii) the amount of the bonus and the basis for
calculating that amount; and
(iv) the conditions under which the agreement may be
terminated before the agreed-upon service period has
been completed, and the effect of the termination.
(2) For purposes of determinations under subsections (b)(1)
and (c)(1), the employee's service period shall be expressed as
the number equal to the full years and twelfth parts thereof,
rounding the fractional part of a month to the nearest twelfth
part of a year. The service period may not be less than 6
months and may not exceed 4 years.
(3) A bonus under this section may not be considered to be
part of the basic pay of an employee.
(e) Before paying a bonus under this section, the
Administration shall establish a plan for paying recruitment,
redesignation, and relocation bonuses, subject to approval by
the Office of Personnel Management.
(f) The Administrator shall submit to the appropriate
committees of Congress, not later than February 28 of each of
the next 10 years beginning after the date of enactment of this
subchapter, a summary of all bonuses paid under subsections (b)
and (c) during the preceding year. Such summary shall include
the number of bonuses paid, the total amount of bonuses paid,
and the average percentage used in calculating the total
average bonus amount, under each such subsection.
Sec. 9805. Retention bonuses
(a) Notwithstanding section 5754, the Administrator may pay a
bonus to an employee, in accordance with the workforce plan and
subject to the limitations in this section, if the
Administrator determines that--
(1) the unusually high or unique qualifications of
the employee or a special need of the Administration
for the employee's services makes it essential to
retain the employee; and
(2) the employee would be likely to leave in the
absence of a retention bonus.
(b) If the position is described as addressing a critical
need in the workforce plan under section 9802(b)(2)(A), the
amount of a bonus may not exceed 50 percent of the employee's
annual rate of basic pay (including comparability payments
under sections 5304 and 5304a).
(c) If the position is not described as addressing a critical
need in the workforce plan under section 9802(b)(2)(A), the
amount of a bonus may not exceed 25 percent of the employee's
annual rate of basic pay (including comparability payments
under sections 5304 and 5304a).
(d)(1)(A) Payment of a bonus under this section shall be
contingent upon the employee entering into a service agreement
with the Administration.
(B) At a minimum, the service agreement shall include--
(i) the required service period;
(ii) the method of payment, including a payment
schedule, which may include a lump-sum payment,
installment payments, or a combination thereof;
(iii) the amount of the bonus and the basis for
calculating the amount; and
(iv) the conditions under which the agreement may be
terminated before the agreed-upon service period has
been completed, and the effect of the termination.
(2) The employee's service period shall be expressed as the
number equal to the full years and twelfth parts thereof,
rounding the fractional part of a month to the nearest twelfth
part of a year. The service period may not be less than 6
months and may not exceed 4 years.
(3) Notwithstanding paragraph (1), a service agreement is not
required if the Administration pays a bonus in biweekly
installments and sets the installment payment at the full bonus
percentage rate established for the employee, with no portion
of the bonus deferred. In this case, the Administration shall
inform the employee in writing of any decision to change the
retention bonus payments. The employee shall continue to accrue
entitlement to the retention bonus through the end of the pay
period in which such written notice is provided.
(e) A bonus under this section may not be considered to be
part of the basic pay of an employee.
(f) An employee is not entitled to a retention bonus under
this section during a service period previously established for
that employee under section 5753 or under section 9804.
(g) The Administrator shall submit to the appropriate
committees of Congress, not later than February 28 of each of
the next 10 years beginning after the date of enactment of this
subchapter, a summary of all bonuses paid under subsections (b)
and (c) during the preceding year. Such summary shall include
the number of bonuses paid, the total amount of bonuses paid,
and the average percentage used in calculating the total
average bonus amount, under each such subsection.
Sec. 9806. Term appointments
(a) The Administrator may authorize term appointments within
the Administration under subchapter I of chapter 33, for a
period of not less than 1 year and not more than 6 years.
(b) Notwithstanding chapter 33 or any other provision of law
relating to the examination, certification, and appointment of
individuals in the competitive service, the Administrator may
convert an employee serving under a term appointment to a
permanent appointment in the competitive service within the
Administration without further competition if--
(1) such individual was appointed under open,
competitive examination under subchapter I of chapter
33 to the term position;
(2) the announcement for the term appointment from
which the conversion is made stated that there was
potential for subsequent conversion to a career-
conditional or career appointment;
(3) the employee has completed at least 2 years of
current continuous service under a term appointment in
the competitive service;
(4) the employee's performance under such term
appointment was at least fully successful or
equivalent; and
(5) the position to which such employee is being
converted under this section is in the same
occupational series, is in the same geographic
location, and provides no greater promotion potential
than the term position for which the competitive
examination was conducted.
(c) Notwithstanding chapter 33 or any other provision of law
relating to the examination, certification, and appointment of
individuals in the competitive service, the Administrator may
convert an employee serving under a term appointment to a
permanent appointment in the competitive service within the
Administration through internal competitive promotion
procedures if the conditions under paragraphs (1) through (4)
of subsection (b) are met.
(d) An employee converted under this section becomes a
career-conditional employee, unless the employee has otherwise
completed the service requirements for career tenure.
(e) An employee converted to career or career-conditional
employment under this section acquires competitive status upon
conversion.
(f) The Administrator shall submit to the appropriate
committees of Congress, not later than February 28 of each of
the next 10 years beginning after the date of enactment of this
subchapter--
(1) the total number of term appointments converted
during the previous calendar year; and
(2) of that total number, the number of conversions
that were made to address a critical need described in
the Workforce Plan pursuant to section 9802(b)(2).
Sec. 9807. Pay authority for critical positions
(a) In this section, the term ``position'' means--
(1) a position to which chapter 51 applies, including
a position in the Senior Executive Service;
(2) a position under the Executive Schedule under
sections 5312 through 5317;
(3) a position established under section 3104; or
(4) a senior-level position to which section
5376(a)(1) applies.
(b) Authority under this section--
(1) may be exercised only with respect to a position
that--
(A) is described as addressing a critical
need in the workforce plan under section
9802(b)(2)(A); and
(B) requires expertise of an extremely high
level in a scientific, technical, professional,
or administrative field;
(2) may be exercised only to the extent necessary to
recruit or retain an individual exceptionally well
qualified for the position; and
(3) may be exercised only in retaining employees of
the Administration or in appointing individuals who
were not employees of another Federal agency as defined
under section 5102(a)(1).
(c)(1) Notwithstanding section 5377, the Administrator may
fix the rate of basic pay for a position in the Administration
in accordance with this section. The Administrator may not
delegate this authority.
(2) The number of positions with pay fixed under this section
may not exceed 10 at any time.
(d)(1) The rate of basic pay fixed under this section may not
be less than the rate of basic pay (including any comparability
payments) which would otherwise be payable for the position
involved if this section had never been enacted.
(2) The annual rate of basic pay fixed under this section may
not exceed the per annum rate of salary payable under section
104 of title 3.
(3) Notwithstanding any provision of section 5307, in the
case of an employee who, during any calendar year, is receiving
pay at a rate fixed under this section, no allowance,
differential, bonus, award, or similar cash payment may be paid
to such employee if, or to the extent that, when added to basic
pay paid or payable to such employee (for service performed in
such calendar year as an employee in the executive branch or as
an employee outside the executive branch to whom chapter 51
applies), such payment would cause the total to exceed the per
annum rate of salary which, as of the end of such calendar
year, is payable under section 104 of title 3.
(e) The Administrator shall submit to the appropriate
committees of Congress, not later than February 28 of each of
the next 10 years beginning after the date of enactment of this
subchapter--
(1) the number of positions for which the rate of
basic pay was fixed under this section during the
preceding year; and
(2) the number of positions for which a rate of basic
pay under this section was terminated during the
preceding year.
Sec. 9808. Assignments of intergovernmental personnel
For purposes of applying the third sentence of section
3372(a) (relating to the authority of the head of a Federal
agency to extend the period of an employee's assignment to or
from a State or local government, institution of higher
education, or other organization), the Administrator may, with
the concurrence of the employee and the government or
organization concerned, take any action which would be
allowable if such sentence had been amended by striking ``two''
and inserting ``four''.
Sec. 9809. Enhanced demonstration project authority
When conducting a demonstration project at the
Administration, section 4703(d)(1)(A) may be applied by
substituting ``such numbers of individuals as determined by the
Administrator'' for ``not more than 5,000 individuals''.
Sec. 9810. Voluntary separation incentive payments
(a) In applying subchapter II of chapter 35, the
Administrator may provide for voluntary separation incentive
payments in excess of the dollar-amount limitation that would
otherwise apply under section 3523(b)(3)(B), subject to
subsection (b).
(b) Voluntary separation incentive payments described in
subsection (a)--
(1) may not exceed 50 percent of the annual rate of
basic pay of the employee receiving such payments
(computed disregarding any comparability payments under
sections 5304-5304a);
(2) may not, in any calendar year, be made to more
than--
(A) 10 employees; or
(B) such greater number of employees as the
Administrator may, with the approval of the
Office of Management and Budget, establish in
lieu of the number specified in subparagraph
(A) following notification to the appropriate
committees of Congress;
(3) may not be made to an employee if the employee
has within the last 12 months received, or if the
employee is then receiving, a bonus or allowance under
section 5753 or 5754 or under section 9804 or 9805; and
(4) may be made only if the position in which the
employee is serving addresses a critical need
identified in the workforce plan pursuant to section
9802(b)(2).
(c)(1) The proposed use of workforce authorities in this
section shall be included in the plan required by section 3522.
(2) Whenever the Office of Personnel Management approves the
Administration's plan required in such section 3522, the
Administration shall submit a copy of the approved plan to the
appropriate committees of Congress within 15 days after the
date on which it is so approved.
Sec. 9811. Limitations relating to bonuses
(a) Of the total amount in bonuses awarded under sections
9804 and 9805, respectively, in any year, not to exceed 15
percent of any such total amount may be awarded to supervisors
(within the meaning of section 7103(a)(10)).
(b) A separate appropriations account shall be maintained for
such bonuses.
SUBCHAPTER II--PERSONNEL PROVISIONS
Sec. 9831. Definitions
For purposes of this subchapter, the terms ``Administration''
and ``Administrator'' have the meanings set forth in section
9801.
Sec. 9832. NASA-Industry exchange program
(a) For purposes of this section, the term ``detail'' means--
(1) the assignment or loan of an employee of the
Administration to a private sector organization without
a change of position from the Administration, or
(2) the assignment or loan of an employee of a
private sector organization to the Administration
without a change of position from the private sector
organization that employs the individual,
whichever is appropriate in the context in which such term is
used.
(b)(1) On request from or with the agreement of a private
sector organization, and with the consent of the employee
concerned, the Administrator may arrange for the assignment of
an employee of the Administration to a private sector
organization or an employee of a private sector organization to
the Administration. An employee of the Administration shall be
eligible to participate in this program only if the employee is
employed at the GS-11 level or above (or equivalent) and is
serving under a career or career-conditional appointment or an
appointment of equivalent tenure in the excepted service.
(2) The Administrator shall provide for a written agreement
between the Administration and the employee concerned regarding
the terms and conditions of the employee's assignment. The
agreement shall--
(A) require the employee to serve in the
Administration, upon completion of the assignment, for
a period equal to the length of the assignment; and
(B) provide that, in the event the employee fails to
carry out the agreement (except for good and sufficient
reason, as determined by the Administrator), the
employee shall be liable to the United States for
payment of all expenses of the assignment.
An amount under subparagraph (B) shall be treated as a debt due
the United States.
(3) Assignments may be terminated by the Administration or
the private sector organization concerned for any reason at any
time.
(4) Assignments under this section shall be for a period of
between 6 months and 1 year, and may be extended in 3-month
increments for a total of not more than 1 additional year,
except that no assignment under this section may commence after
the end of the 5-year period beginning on the date of the
enactment of this section.
(c)(1) An employee of the Administration who is assigned to a
private sector organization under this section is deemed,
during the period of the assignment, to be on detail to a
regular work assignment in the Administration.
(2) Notwithstanding any other provision of law, an employee
of the Administration who is assigned to a private sector
organization under this section is entitled to retain coverage,
rights, and benefits under subchapter I of chapter 81, and
employment during the assignment is deemed employment by the
United States, except that, if the employee or the employee's
dependents receive from the private sector organization any
payment under an insurance policy for which the premium is
wholly paid by the private sector organization, or other
benefit of any kind on account of the same injury or death,
then, the amount of such payment or benefit shall be credited
against any compensation otherwise payable under subchapter I
of chapter 81.
(3) The assignment of an employee to a private sector
organization under this section may be made with or without
reimbursement by the private sector organization for the travel
and transportation expenses to or from the place of assignment,
subject to the same terms and conditions as apply with respect
to an employee of a Federal agency or a State or local
government under section 3375, and for the pay, or a part
thereof, of the employee during assignment. Any reimbursements
shall be credited to the appropriation of the Administration
used for paying the travel and transportation expenses or pay.
(4) The Federal Tort Claims Act and any other Federal tort
liability statute apply to an employee of the Administration
assigned to a private sector organization under this section.
The supervision of the duties of an employee of the
Administration who is so assigned to a private sector
organization may be governed by an agreement between the
Administration and the organization.
(d)(1) An employee of a private sector organization assigned
to the Administration under this section is deemed, during the
period of the assignment, to be on detail to the
Administration.
(2) An employee of a private sector organization assigned to
the Administration under this section--
(A) may continue to receive pay and benefits from the
private sector organization from which he is assigned;
(B) is deemed, notwithstanding paragraph (1), to be
an employee of the Administration for the purposes of--
(i) chapter 73;
(ii) sections 201, 203, 205, 207, 208, 209,
603, 606, 607, 643, 654, 1905, and 1913 of
title 18;
(iii) sections 1343, 1344, and 1349(b) of
title 31;
(iv) the Federal Tort Claims Act and any
other Federal tort liability statute;
(v) the Ethics in Government Act of 1978; and
(vi) section 1043 of the Internal Revenue
Code of 1986;
(C) may not have access to any trade secrets or to
any other nonpublic information which is of commercial
value to the private sector organization from which he
is assigned; and
(D) is subject to such regulations as the President
may prescribe.
The supervision of an employee of a private sector organization
assigned to the Administration under this section may be
governed by agreement between the Administration and the
private sector organization concerned. Such an assignment may
be made with or without reimbursement by the Administration for
the pay, or a part thereof, of the employee during the period
of assignment, or for any contribution of the private sector
organization to employee benefit systems.
(3) An employee of a private sector organization assigned to
the Administration under this section who suffers disability or
dies as a result of personal injury sustained while performing
duties during the assignment shall be treated, for the purpose
of subchapter I of chapter 81, as an employee as defined by
section 8101 who had sustained the injury in the performance of
duty, except that, if the employee or the employee's dependents
receive from the private sector organization any payment under
an insurance policy for which the premium is wholly paid by the
private sector organization, or other benefit of any kind on
account of the same injury or death, then, the amount of such
payment or benefit shall be credited against any compensation
otherwise payable under subchapter I of chapter 81.
(4) A private sector organization may not charge the Federal
Government, as direct or indirect costs under a Federal
contract, the costs of pay or benefits paid by the organization
to an employee assigned to the Administration under this
section for the period of the assignment.
(e)(1) The Administration shall, not later than February 28
of each year, prepare and submit to the appropriate committees
of Congress a report summarizing the operation of this section
during the preceding year.
(2) Each report shall include, with respect to the period to
which such report relates--
(A) the total number of individuals assigned to, and
the total number of individuals assigned from, the
Administration during such period;
(B) a brief description of each assignment included
under subparagraph (A), including--
(i) the name of the assigned individual, as
well as the private sector organization, to or
from which such individual was assigned;
(ii) the respective positions to and from
which the individual was assigned, including
the duties and responsibilities and the pay
grade or level associated with each; and
(iii) the duration and objectives of the
individual's assignment; and
(C) such other information as the Administration
considers appropriate.
(3) A copy of each report submitted under paragraph (1)--
(A) shall be published in the Federal Register; and
(B) shall be made publicly available on the Internet.
(f) The Administrator, in consultation with the Director of
the Office of Personnel Management, shall prescribe regulations
for the administration of this section.
(g) Not later than 4 years after the date of the enactment of
this section, the General Accounting Office shall prepare and
submit to the appropriate committees of Congress a report on
the operation of this section. Such report shall include--
(1) an evaluation of the effectiveness of the program
established by this section; and
(2) a recommendation as to whether such program
should be continued (with or without modification) or
allowed to lapse.
Sec. 9833. Science and technology scholarship program
(a)(1) The Administrator shall establish a National
Aeronautics and Space Administration Science and Technology
Scholarship Program to award scholarships to individuals that
is designed to recruit and prepare students for careers in the
Administration.
(2) Individuals shall be selected to receive scholarships
under this section through a competitive process primarily on
the basis of academic merit, with consideration given to
financial need and the goal of promoting the participation of
individuals identified in section 33 or 34 of the Science and
Engineering Equal Opportunities Act.
(3) To carry out the Program the Administrator shall enter
into contractual agreements with individuals selected under
paragraph (2) under which the individuals agree to serve as
full-time employees of the Administration, for the period
described in subsection (f)(1), in positions needed by the
Administration and for which the individuals are qualified, in
exchange for receiving a scholarship.
(b) In order to be eligible to participate in the Program, an
individual must--
(1) be enrolled or accepted for enrollment as a full-
time student at an institution of higher education in
an academic field or discipline described in the list
made available under subsection (d);
(2) be a United States citizen; and
(3) at the time of the initial scholarship award, not
be an employee (as defined in section 2105).
(c) An individual seeking a scholarship under this section
shall submit an application to the Administrator at such time,
in such manner, and containing such information, agreements, or
assurances as the Administrator may require.
(d) The Administrator shall make publicly available a list of
academic programs and fields of study for which scholarships
under the Program may be utilized and shall update the list as
necessary.
(e)(1) The Administrator may provide a scholarship under the
Program for an academic year if the individual applying for the
scholarship has submitted to the Administrator, as part of the
application required under subsection (c), a proposed academic
program leading to a degree in a program or field of study on
the list made available under subsection (d).
(2) An individual may not receive a scholarship under this
section for more than 4 academic years, unless the
Administrator grants a waiver.
(3) The dollar amount of a scholarship under this section for
an academic year shall be determined under regulations issued
by the Administrator, but shall in no case exceed the cost of
attendance.
(4) A scholarship provided under this section may be expended
for tuition, fees, and other authorized expenses as established
by the Administrator by regulation.
(5) The Administrator may enter into a contractual agreement
with an institution of higher education under which the amounts
provided for a scholarship under this section for tuition,
fees, and other authorized expenses are paid directly to the
institution with respect to which the scholarship is provided.
(f)(1) The period of service for which an individual shall be
obligated to serve as an employee of the Administration is,
except as provided in subsection (h)(2), 24 months for each
academic year for which a scholarship under this section is
provided.
(2)(A) Except as provided in subparagraph (B), obligated
service under paragraph (1) shall begin not later than 60 days
after the individual obtains the educational degree for which
the scholarship was provided.
(B) The Administrator may defer the obligation of an
individual to provide a period of service under paragraph (1)
if the Administrator determines that such a deferral is
appropriate. The Administrator shall prescribe the terms and
conditions under which a service obligation may be deferred
through regulation.
(g)(1) Scholarship recipients who fail to maintain a high
level of academic standing, as defined by the Administrator by
regulation, who are dismissed from their educational
institutions for disciplinary reasons, or who voluntarily
terminate academic training before graduation from the
educational program for which the scholarship was awarded,
shall be in breach of their contractual agreement and, in lieu
of any service obligation arising under such agreement, shall
be liable to the United States for repayment within 1 year
after the date of default of all scholarship funds paid to them
and to the institution of higher education on their behalf
under the agreement, except as provided in subsection (h)(2).
The repayment period may be extended by the Administrator when
determined to be necessary, as established by regulation.
(2) Scholarship recipients who, for any reason, fail to begin
or complete their service obligation after completion of
academic training, or fail to comply with the terms and
conditions of deferment established by the Administrator
pursuant to subsection (f)(2)(B), shall be in breach of their
contractual agreement. When recipients breach their agreements
for the reasons stated in the preceding sentence, the recipient
shall be liable to the United States for an amount equal to--
(A) the total amount of scholarships received by such
individual under this section; plus
(B) the interest on the amounts of such awards which
would be payable if at the time the awards were
received they were loans bearing interest at the
maximum legal prevailing rate, as determined by the
Treasurer of the United States,
multiplied by 3.
(h)(1) Any obligation of an individual incurred under the
Program (or a contractual agreement thereunder) for service or
payment shall be canceled upon the death of the individual.
(2) The Administrator shall by regulation provide for the
partial or total waiver or suspension of any obligation of
service or payment incurred by an individual under the Program
(or a contractual agreement thereunder) whenever compliance by
the individual is impossible or would involve extreme hardship
to the individual, or if enforcement of such obligation with
respect to the individual would be contrary to the best
interests of the Government.
(i) For purposes of this section--
(1) the term ``cost of attendance'' has the meaning
given that term in section 472 of the Higher Education
Act of 1965;
(2) the term ``institution of higher education'' has
the meaning given that term in section 101(a) of the
Higher Education Act of 1965; and
(3) the term ``Program'' means the National
Aeronautics and Space Administration Science and
Technology Scholarship Program established under this
section.
(j)(1) There is authorized to be appropriated to the
Administration for the Program $10,000,000 for each fiscal
year.
(2) Amounts appropriated under this section shall remain
available for 2 fiscal years.
Sec. 9834. Distinguished scholar appointment authority
(a) In this section--
(1) the term ``professional position'' means a
position that is classified to an occupational series
identified by the Office of Personnel Management as a
position that--
(A) requires education and training in the
principles, concepts, and theories of the
occupation that typically can be gained only
through completion of a specified curriculum at
a recognized college or university; and
(B) is covered by the Group Coverage
Qualification Standard for Professional and
Scientific Positions; and
(2) the term ``research position'' means a position
in a professional series that primarily involves
scientific inquiry or investigation, or research-type
exploratory development of a creative or scientific
nature, where the knowledge required to perform the
work successfully is acquired typically and primarily
through graduate study.
(b) The Administration may appoint, without regard to the
provisions of sections 3304(b) and 3309 through 3318,
candidates directly to General Schedule professional positions
in the Administration for which public notice has been given,
if--
(1) with respect to a position at the GS-7 level, the
individual--
(A) received, from an accredited institution
authorized to grant baccalaureate degrees, a
baccalaureate degree in a field of study for
which possession of that degree in conjunction
with academic achievements meets the
qualification standards as prescribed by the
Office of Personnel Management for the position
to which the individual is being appointed; and
(B) achieved a cumulative grade point average
of 3.0 or higher on a 4.0 scale and a grade
point average of 3.5 or higher for courses in
the field of study required to qualify for the
position;
(2) with respect to a position at the GS-9 level, the
individual--
(A) received, from an accredited institution
authorized to grant graduate degrees, a
graduate degree in a field of study for which
possession of that degree meets the
qualification standards at this grade level as
prescribed by the Office of Personnel
Management for the position to which the
individual is being appointed; and
(B) achieved a cumulative grade point average
of 3.5 or higher on a 4.0 scale in graduate
coursework in the field of study required for
the position;
(3) with respect to a position at the GS-11 level,
the individual--
(A) received, from an accredited institution
authorized to grant graduate degrees, a
graduate degree in a field of study for which
possession of that degree meets the
qualification standards at this grade level as
prescribed by the Office of Personnel
Management for the position to which the
individual is being appointed; and
(B) achieved a cumulative grade point average
of 3.5 or higher on a 4.0 scale in graduate
coursework in the field of study required for
the position; or
(4) with respect to a research position at the GS-12
level, the individual--
(A) received, from an accredited institution
authorized to grant graduate degrees, a
graduate degree in a field of study for which
possession of that degree meets the
qualification standards at this grade level as
prescribed by the Office of Personnel
Management for the position to which the
individual is being appointed; and
(B) achieved a cumulative grade point average
of 3.5 or higher on a 4.0 scale in graduate
coursework in the field of study required for
the position.
(c) Veterans' preference procedures shall apply when
selecting candidates under this section. Preference eligibles
who meet the criteria for distinguished scholar appointments
shall be considered ahead of nonpreference eligibles.
(d) An appointment made under this authority shall be a
career-conditional appointment in the competitive civil
service.
Sec. 9835. Travel and transportation expenses of certain new appointees
(a) In this section, the term ``new appointee'' means--
(1) a person newly appointed or reinstated to Federal
service to the Administration to--
(A) a career or career-conditional
appointment;
(B) a term appointment;
(C) an excepted service appointment that
provides for noncompetitive conversion to a
career or career-conditional appointment;
(D) a career or limited term Senior Executive
Service appointment;
(E) an appointment made under section
203(c)(2)(A) of the National Aeronautics and
Space Act of 1958 (42 U.S.C. 2473(c)(2)(A));
(F) an appointment to a position established
under section 3104; or
(G) an appointment to a position established
under section 5108; or
(2) a student trainee who, upon completion of
academic work, is converted to an appointment in the
Administration that is identified in paragraph (1) in
accordance with an appropriate authority.
(b) The Administrator may pay the travel, transportation, and
relocation expenses of a new appointee to the same extent, in
the same manner, and subject to the same conditions as the
payment of such expenses under sections 5724, 5724a, 5724b, and
5724c to an employee transferred in the interests of the United
States Government.
(c) The Administrator shall submit to the appropriate
committees of Congress, not later than February 28 of each of
the next 10 years beginning after the date of enactment of this
subchapter--
(1) the average payment for travel and transportation
expenses of certain new appointees provided under this
section during the preceding year; and
(2) the highest payment for travel and transportation
expenses to an individual appointee provided under this
section during the preceding year.
Sec. 9836. Annual leave enhancements
(a)(1) In this subsection--
(A) the term ``newly appointed employee'' means an
individual who is first appointed--
(i) regardless of tenure, as an employee of
the Federal Government; or
(ii) as an employee of the Federal Government
following a break in service of at least 90
days after that individual's last period of
Federal employment, other than--
(I) employment under the Student
Educational Employment Program
administered by the Office of Personnel
Management;
(II) employment as a law clerk
trainee;
(III) employment under a short-term
temporary appointing authority while a
student during periods of vacation from
the educational institution at which
the student is enrolled;
(IV) employment under a provisional
appointment if the new appointment is
permanent and immediately follows the
provisional appointment; or
(V) employment under a temporary
appointment that is neither full-time
nor the principal employment of the
individual;
(B) the term ``period of qualified non-Federal
service'' means any period of service performed by an
individual that--
(i) was performed in a position the duties of
which were directly related to the duties of
the position in the Administration to which
that individual will fill as a newly appointed
employee; and
(ii) except for this section, would not
otherwise be service performed by an employee
for purposes of section 6303; and
(C) the term ``directly related to the duties of the
position'' means duties and responsibilities in the
same line of work which require similar qualifications.
(2)(A) For purposes of section 6303, the Administrator may
deem a period of qualified non-Federal service performed by a
newly appointed employee to be a period of service of equal
length performed as an employee.
(B) A period deemed by the Administrator under subparagraph
(A) shall continue to apply to the employee during--
(i) the period of Federal service in which the
deeming is made; and
(ii) any subsequent period of Federal service.
(3)(A) Notwithstanding section 6303(a), the annual leave
accrual rate for an employee of the Administration in a
position paid under section 5376 or 5383, or for an employee in
an equivalent category whose rate of basic pay is greater than
the rate payable at GS-15, step 10, shall be 1 day for each
full biweekly pay period.
(B) The accrual rate established under this paragraph shall
continue to apply to the employee during--
(i) the period of Federal service in which such
accrual rate first applies; and
(ii) any subsequent period of Federal service.
Sec. 9837. Limited appointments to Senior Executive Service positions
(a) In this section--
(1) the term ``career reserved position'' means a
position in the Administration designated under section
3132(b) which may be filled only by--
(A) a career appointee; or
(B) a limited emergency appointee or a
limited term appointee--
(i) who, immediately before entering
the career reserved position, was
serving under a career or career-
conditional appointment outside the
Senior Executive Service; or
(ii) whose limited emergency or
limited term appointment is approved in
advance by the Office of Personnel
Management;
(2) the term ``limited emergency appointee'' has the
meaning given under section 3132; and
(3) the term ``limited term appointee'' means an
individual appointed to a Senior Executive Service
position in the Administration to meet a bona fide
temporary need, as determined by the Administrator.
(b) The number of career reserved positions which are filled
by an appointee as described under subsection (a)(1)(B) may not
exceed 10 percent of the total number of Senior Executive
Service positions allocated to the Administration.
(c) Notwithstanding sections 3132 and 3394(b)--
(1) the Administrator may appoint an individual to
any Senior Executive Service position in the
Administration as a limited term appointee under this
section for a period of--
(A) 4 years or less to a position the duties
of which will expire at the end of such term;
or
(B) 1 year or less to a position the duties
of which are continuing; and
(2) in rare circumstances, the Administrator may
authorize an extension of a limited appointment under--
(A) paragraph (1)(A) for a period not to
exceed 2 years; and
(B) paragraph (1)(B) for a period not to
exceed 1 year.
(d) A limited term appointee who has been appointed in the
Administration from a career or career-conditional appointment
outside the Senior Executive Service shall have reemployment
rights in the agency from which appointed, or in another
agency, under requirements and conditions established by the
Office of Personnel Management. The Office shall have the
authority to direct such placement in any agency.
(e) Notwithstanding section 3394(b) and section 3395--
(1) a limited term appointee serving under a term
prescribed under this section may be reassigned to
another Senior Executive Service position in the
Administration, the duties of which will expire at the
end of a term of 4 years or less; and
(2) a limited term appointee serving under a term
prescribed under this section may be reassigned to
another continuing Senior Executive Service position in
the Administration, except that the appointee may not
serve in 1 or more positions in the Administration
under such appointment in excess of 1 year, except that
in rare circumstances, the Administrator may approve an
extension up to an additional 1 year.
(f) A limited term appointee may not serve more than 7
consecutive years under any combination of limited
appointments.
(g) Notwithstanding section 5384, the Administrator may
authorize performance awards to limited term appointees in the
Administration in the same amounts and in the same manner as
career appointees.
Sec. 9838. Superior qualifications pay
(a) In this section the term ``employee'' means an employee
as defined under section 2105 who is employed by the
Administration.
(b) Notwithstanding section 5334, the Administrator may set
the pay of an employee paid under the General Schedule at any
step within the pay range for the grade of the position, based
on the superior qualifications of the employee, or the special
need of the Administration.
(c) If an exercise of the authority under this section
relates to a current employee selected for another position
within the Administration, a determination shall be made that
the employee's contribution in the new position will exceed
that in the former position, before setting pay under this
section.
(d) Pay as set under this section is basic pay for such
purposes as pay set under section 5334.
(e) If the employee serves for at least 1 year in the
position for which the pay determination under this section was
made, or a successor position, the pay earned under such
position may be used in succeeding actions to set pay under
chapter 53.
(f) The Administrator may waive the restrictions in
subsection (e), based on criteria established in the plan
required under subsection (g).
(g) Before setting any employee's pay under this section, the
Administrator shall submit a plan to the Office of Personnel
Management, that includes--
(1) criteria for approval of actions to set pay under
this section;
(2) the level of approval required to set pay under
this section;
(3) all types of actions and positions to be covered;
(4) the relationship between the exercise of
authority under this section and the use of other pay
incentives; and
(5) a process to evaluate the effectiveness of this
section.
CHAPTER 99--DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM
Sec.
9901. Definitions.
9902. Establishment of human resources management system.
9903. Attracting highly qualified experts.
9904. Employment of older Americans.
9905. Special pay and benefits for certain employees outside the United
States.
Sec. 9901. Definitions
For purposes of this chapter--
(1) the term ``Director'' means the Director of the
Office of Personnel Management; and
(2) the term ``Secretary'' means the Secretary of
Defense.
Sec. 9902. Establishment of human resources management system
(a) In General.--Notwithstanding any other provision of this
part, the Secretary may, in regulations prescribed jointly with
the Director, establish, and from time to time adjust, a human
resources management system for some or all of the
organizational or functional units of the Department of
Defense. If the Secretary certifies that issuance or adjustment
of a regulation, or the inclusion, exclusion, or modification
of a particular provision therein, is essential to the national
security, the Secretary may, subject to the decision of the
President, waive the requirement in the preceding sentence that
the regulation or adjustment be issued jointly with the
Director.
(b) System Requirements.--Any system established under
subsection (a) shall--
(1) be flexible;
(2) be contemporary;
(3) not waive, modify, or otherwise affect--
(A) the public employment principles of merit
and fitness set forth in section 2301,
including the principles of hiring based on
merit, fair treatment without regard to
political affiliation or other nonmerit
considerations, equal pay for equal work, and
protection of employees against reprisal for
whistleblowing;
(B) any provision of section 2302, relating
to prohibited personnel practices;
(C)(i) any provision of law referred to in
section 2302(b)(1), (8), and (9); or
(ii) any provision of law implementing any
provision of law referred to in section
2302(b)(1), (8), and (9) by--
(I) providing for equal employment
opportunity through affirmative action;
or
(II) providing any right or remedy
available to any employee or applicant
for employment in the public service;
(D) any other provision of this part (as
described in subsection (c)); or
(E) any rule or regulation prescribed under
any provision of law referred to in this
paragraph;
(4) ensure that employees may organize, bargain
collectively as provided for in this chapter, and
participate through labor organizations of their own
choosing in decisions which affect them, subject to the
provisions of this chapter and any exclusion from
coverage or limitation on negotiability established
pursuant to law;
(5) not be limited by any specific law or authority
under this title that is waivable under this chapter or
by any provision of this chapter or any rule or
regulation prescribed under this title that is waivable
under this chapter, except as specifically provided for
in this section; and
(6) include a performance management system that
incorporates the following elements:
(A) adherence to merit principles set forth
in section 2301;
(B) a fair, credible, and transparent
employee performance appraisal system;
(C) a link between the performance management
system and the agency's strategic plan;
(D) a means for ensuring employee involvement
in the design and implementation of the system;
(E) adequate training and retraining for
supervisors, managers, and employees in the
implementation and operation of the performance
management system;
(F) a process for ensuring ongoing
performance feedback and dialogue between
supervisors, managers, and employees throughout
the appraisal period, and setting timetables
for review;
(G) effective safeguards to ensure that the
management of the system is fair and equitable
and based on employee performance; and
(H) a means for ensuring that adequate agency
resources are allocated for the design,
implementation, and administration of the
performance management system.
(c) Other Nonwaivable Provisions.--The other provisions of
this part referred to in subsection (b)(3)(D) are (to the
extent not otherwise specified in this title)--
(1) subparts A, B, E, G, and H of this part; and
(2) chapters 41, 45, 47, 55 (except subchapter V
thereof), 57, 59, 72, 73, and 79, and this chapter.
(d) Limitations Relating to Pay.--(1) Nothing in this section
shall constitute authority to modify the pay of any employee
who serves in an Executive Schedule position under subchapter
II of chapter 53 of this title.
(2) Except as provided for in paragraph (1), the total amount
in a calendar year of allowances, differentials, bonuses,
awards, or other similar cash payments paid under this title to
any employee who is paid under section 5376 or 5383 of this
title or under title 10 or under other comparable pay authority
established for payment of Department of Defense senior
executive or equivalent employees may not exceed the total
annual compensation payable to the Vice President under section
104 of title 3.
(3) To the maximum extent practicable, the rates of
compensation for civilian employees at the Department of
Defense shall be adjusted at the same rate, and in the same
proportion, as are rates of compensation for members of the
uniformed services.
(e) Provisions To Ensure Collaboration With Employee
Representatives.--(1) In order to ensure that the authority of
this section is exercised in collaboration with, and in a
manner that ensures the participation of, employee
representatives in the planning, development, and
implementation of any human resources management system or
adjustments to such system under this section, the Secretary
and the Director shall provide for the following:
(A) The Secretary and the Director shall, with
respect to any proposed system or adjustment--
(i) provide to the employee representatives
representing any employees who might be
affected a written description of the proposed
system or adjustment (including the reasons why
it is considered necessary);
(ii) give such representatives at least 30
calendar days (unless extraordinary
circumstances require earlier action) to review
and make recommendations with respect to the
proposal; and
(iii) give any recommendations received from
such representatives under clause (ii) full and
fair consideration in deciding whether or how
to proceed with the proposal.
(B) Following receipt of recommendations, if any,
from such employee representatives with respect to a
proposal described in subparagraph (A), the Secretary
and the Director shall accept such modifications to the
proposal in response to the recommendations as they
determine advisable and shall, with respect to any
parts of the proposal as to which they have not
accepted the recommendations--
(i) notify Congress of those parts of the
proposal, together with the recommendations of
the employee representatives;
(ii) meet and confer for not less than 30
calendar days with the employee
representatives, in order to attempt to reach
agreement on whether or how to proceed with
those parts of the proposal; and
(iii) at the Secretary's option, or if
requested by a majority of the employee
representatives participating, use the services
of the Federal Mediation and Conciliation
Service during such meet and confer period to
facilitate the process of attempting to reach
agreement.
(C)(i) Any part of the proposal as to which the
representatives do not make a recommendation, or as to
which the recommendations are accepted by the Secretary
and the Director, may be implemented immediately.
(ii) With respect to any parts of the proposal as to
which recommendations have been made but not accepted
by the Secretary and the Director, at any time after 30
calendar days have elapsed since the initiation of the
congressional notification, consultation, and mediation
procedures set forth in subparagraph (B), if the
Secretary, in his discretion, determines that further
consultation and mediation is unlikely to produce
agreement, the Secretary may implement any or all of
such parts (including any modifications made in
response to the recommendations as the Secretary
determines advisable), but only after 30 days have
elapsed after notifying Congress of the decision to
implement the part or parts involved (as so modified,
if applicable).
(iii) The Secretary shall notify Congress promptly of
the implementation of any part of the proposal and
shall furnish with such notice an explanation of the
proposal, any changes made to the proposal as a result
of recommendations from the employee representatives,
and of the reasons why implementation is appropriate
under this subparagraph.
(D) If a proposal described in subparagraph (A) is
implemented, the Secretary and the Director shall--
(i) develop a method for the employee
representatives to participate in any further
planning or development which might become
necessary; and
(ii) give the employee representatives
adequate access to information to make that
participation productive.
(2) The Secretary may, at the Secretary's discretion, engage
in any and all collaboration activities described in this
subsection at an organizational level above the level of
exclusive recognition.
(3) In the case of any employees who are not within a unit
with respect to which a labor organization is accorded
exclusive recognition, the Secretary and the Director may
develop procedures for representation by any appropriate
organization which represents a substantial percentage of those
employees or, if none, in such other manner as may be
appropriate, consistent with the purposes of this subsection.
(f) Provisions Regarding National Level Bargaining.--(1) Any
human resources management system implemented or modified under
this chapter may include employees of the Department of Defense
from any bargaining unit with respect to which a labor
organization has been accorded exclusive recognition under
chapter 71 of this title.
(2) For any bargaining unit so included under paragraph (1),
the Secretary may bargain at an organizational level above the
level of exclusive recognition. Any such bargaining shall--
(A) be binding on all subordinate bargaining units at
the level of recognition and their exclusive
representatives, and the Department of Defense and its
subcomponents, without regard to levels of recognition;
(B) supersede all other collective bargaining
agreements, including collective bargaining agreements
negotiated with an exclusive representative at the
level of recognition, except as otherwise determined by
the Secretary;
(C) not be subject to further negotiations for any
purpose, including bargaining at the level of
recognition, except as provided for by the Secretary;
and
(D) except as otherwise specified in this chapter,
not be subject to review or to statutory third-party
dispute resolution procedures outside the Department of
Defense.
(3) The National Guard Bureau and the Army and Air Force
National Guard are excluded from coverage under this
subsection.
(4) Any bargaining completed pursuant to this subsection with
a labor organization not otherwise having national consultation
rights with the Department of Defense or its subcomponents
shall not create any obligation on the Department of Defense or
its subcomponents to confer national consultation rights on
such a labor organization.
(g) Provisions Relating to Appellate Procedures.--(1) The
Secretary shall--
(A) establish an appeals process that provides that
employees of the Department of Defense are entitled to
fair treatment in any appeals that they bring in
decisions relating to their employment; and
(B) in prescribing regulations for any such appeals
process--
(i) ensure that employees of the Department
of Defense are afforded the protections of due
process; and
(ii) toward that end, be required to consult
with the Merit Systems Protection Board before
issuing any such regulations.
(2) Any regulations establishing the appeals process required
by paragraph (1) that relate to any matters within the purview
of chapter 77 shall--
(A) provide for an independent review panel,
appointed by the President, which shall not include the
Secretary or the Deputy Secretary of Defense or any of
their subordinates;
(B) be issued only after--
(i) notification to the appropriate
committees of Congress; and
(ii) consultation with the Merit Systems
Protection Board and the Equal Employment
Opportunity Commission;
(C) ensure the availability of procedures that--
(i) are consistent with requirements of due
process; and
(ii) provide, to the maximum extent
practicable, for the expeditious handling of
any matters involving the Department of
Defense; and
(D) modify procedures under chapter 77 only insofar
as such modifications are designed to further the fair,
efficient, and expeditious resolution of matters
involving the employees of the Department of Defense.
(h) Provisions Related to Separation and Retirement
Incentives.--(1) The Secretary may establish a program within
the Department of Defense under which employees may be eligible
for early retirement, offered separation incentive pay to
separate from service voluntarily, or both. This authority may
be used to reduce the number of personnel employed by the
Department of Defense or to restructure the workforce to meet
mission objectives without reducing the overall number of
personnel. This authority is in addition to, and
notwithstanding, any other authorities established by law or
regulation for such programs.
(2) For purposes of this section, the term ``employee'' means
an employee of the Department of Defense, serving under an
appointment without time limitation, except that such term does
not include--
(A) a reemployed annuitant under subchapter III of
chapter 83 or chapter 84 of this title, or another
retirement system for employees of the Federal
Government;
(B) an employee having a disability on the basis of
which such employee is or would be eligible for
disability retirement under any of the retirement
systems referred to in paragraph (1); or
(C) for purposes of eligibility for separation
incentives under this section, an employee who is in
receipt of a decision notice of involuntary separation
for misconduct or unacceptable performance.
(3) An employee who is at least 50 years of age and has
completed 20 years of service, or has at least 25 years of
service, may, pursuant to regulations promulgated under this
section, apply and be retired from the Department of Defense
and receive benefits in accordance with chapter 83 or 84 if the
employee has been employed continuously within the Department
of Defense for more than 30 days before the date on which the
determination to conduct a reduction or restructuring within 1
or more Department of Defense components is approved pursuant
to the program established under subsection (a).
(4)(A) Separation pay shall be paid in a lump sum or in
installments and shall be equal to the lesser of--
(i) an amount equal to the amount the employee would
be entitled to receive under section 5595(c) of this
title, if the employee were entitled to payment under
such section; or
(ii) $25,000.
(B) Separation pay shall not be a basis for payment, and
shall not be included in the computation, of any other type of
Government benefit. Separation pay shall not be taken into
account for the purpose of determining the amount of any
severance pay to which an individual may be entitled under
section 5595 of this title, based on any other separation.
(C) Separation pay, if paid in installments, shall cease to
be paid upon the recipient's acceptance of employment by the
Federal Government, or commencement of work under a personal
services contract as described in paragraph (5).
(5)(A) An employee who receives separation pay under such
program may not be reemployed by the Department of Defense for
a 12-month period beginning on the effective date of the
employee's separation, unless this prohibition is waived by the
Secretary on a case-by-case basis.
(B) An employee who receives separation pay under this
section on the basis of a separation occurring on or after the
date of the enactment of the Federal Workforce Restructuring
Act of 1994 (Public Law 103-236; 108 Stat. 111) and accepts
employment with the Government of the United States, or who
commences work through a personal services contract with the
United States within 5 years after the date of the separation
on which payment of the separation pay is based, shall be
required to repay the entire amount of the separation pay to
the Department of Defense. If the employment is with an
Executive agency (as defined by section 105 of this title)
other than the Department of Defense, the Director may, at the
request of the head of that agency, waive the repayment if the
individual involved possesses unique abilities and is the only
qualified applicant available for the position. If the
employment is within the Department of Defense, the Secretary
may waive the repayment if the individual involved is the only
qualified applicant available for the position. If the
employment is with an entity in the legislative branch, the
head of the entity or the appointing official may waive the
repayment if the individual involved possesses unique abilities
and is the only qualified applicant available for the position.
If the employment is with the judicial branch, the Director of
the Administrative Office of the United States Courts may waive
the repayment if the individual involved possesses unique
abilities and is the only qualified applicant available for the
position.
(6) Under this program, early retirement and separation pay
may be offered only pursuant to regulations established by the
Secretary, subject to such limitations or conditions as the
Secretary may require.
(i) Provisions Relating to Reemployment.--If annuitant
receiving an annuity from the Civil Service Retirement and
Disability Fund becomes employed in a position within the
Department of Defense, his annuity shall continue. An annuitant
so reemployed shall not be considered an employee for purposes
of chapter 83 or 84.
(j) Provisions Relating to Hiring.--Notwithstanding
subsection (c), the Secretary may exercise any hiring
flexibilities that would otherwise be available to the
Secretary under section 4703.
Sec. 9903. Attracting highly qualified experts
(a) In General.--The Secretary may carry out a program using
the authority provided in subsection (b) in order to attract
highly qualified experts in needed occupations, as determined
by the Secretary.
(b) Authority.--Under the program, the Secretary may--
(1) appoint personnel from outside the civil service
and uniformed services (as such terms are defined in
section 2101 of this title) to positions in the
Department of Defense without regard to any provision
of this title governing the appointment of employees to
positions in the Department of Defense;
(2) prescribe the rates of basic pay for positions to
which employees are appointed under paragraph (1) at
rates not in excess of the maximum rate of basic pay
authorized for senior-level positions under section
5376 of this title, as increased by locality-based
comparability payments under section 5304 of this
title, notwithstanding any provision of this title
governing the rates of pay or classification of
employees in the executive branch; and
(3) pay any employee appointed under paragraph (1)
payments in addition to basic pay within the limits
applicable to the employee under subsection (d).
(c) Limitation on Term of Appointment.--(1) Except as
provided in paragraph (2), the service of an employee under an
appointment made pursuant to this section may not exceed 5
years.
(2) The Secretary may, in the case of a particular employee,
extend the period to which service is limited under paragraph
(1) by up to 1 additional year if the Secretary determines that
such action is necessary to promote the Department of Defense's
national security missions.
(d) Limitations on Additional Payments.--(1) The total amount
of the additional payments paid to an employee under this
section for any 12-month period may not exceed the lesser of
the following amounts:
(A) $50,000 in fiscal year 2004, which may be
adjusted annually thereafter by the Secretary, with a
percentage increase equal to one-half of 1 percentage
point less than the percentage by which the Employment
Cost Index, published quarterly by the Bureau of Labor
Statistics, for the base quarter of the year before the
preceding calendar year exceeds the Employment Cost
Index for the base quarter of the second year before
the preceding calendar year.
(B) The amount equal to 50 percent of the employee's
annual rate of basic pay.
For purposes of this paragraph, the term ``base quarter'' has
the meaning given such term by section 5302(3).
(2) An employee appointed under this section is not eligible
for any bonus, monetary award, or other monetary incentive for
service except for payments authorized under this section.
(3) Notwithstanding any other provision of this subsection or
of section 5307, no additional payments may be paid to an
employee under this section in any calendar year if, or to the
extent that, the employee's total annual compensation will
exceed the maximum amount of total annual compensation payable
at the salary set in accordance with section 104 of title 3.
(e) Savings Provisions.--In the event that the Secretary
terminates this program, in the case of an employee who, on the
day before the termination of the program, is serving in a
position pursuant to an appointment under this section--
(1) the termination of the program does not terminate
the employee's employment in that position before the
expiration of the lesser of--
(A) the period for which the employee was
appointed; or
(B) the period to which the employee's
service is limited under subsection (c),
including any extension made under this section
before the termination of the program; and
(2) the rate of basic pay prescribed for the position
under this section may not be reduced as long as the
employee continues to serve in the position without a
break in service.
Sec. 9904. Employment of older Americans
(a) In General.--Notwithstanding any other provision of law,
the Secretary may appoint older Americans into positions in the
excepted service for a period not to exceed 2 years, provided
that--
(1) any such appointment shall not result in--
(A) the displacement of individuals currently
employed by the Department of Defense
(including partial displacement through
reduction of nonovertime hours, wages, or
employment benefits); or
(B) the employment of any individual when any
other person is in a reduction-in-force status
from the same or substantially equivalent job
within the Department of Defense; and
(2) the individual to be appointed is otherwise
qualified for the position, as determined by the
Secretary.
(b) Effect on Existing Retirement Benefits.--Notwithstanding
any other provision of law, an individual appointed pursuant to
subsection (a) who otherwise is receiving an annuity, pension,
social security payment, retired pay, or other similar payment
shall not have the amount of said annuity, pension, social
security, or other similar payment reduced as a result of such
employment.
(c) Extension of Appointment.--Notwithstanding subsection
(a), the Secretary may extend an appointment made pursuant to
this section for up to an additional 2 years if the individual
employee possesses unique knowledge or abilities that are not
otherwise available to the Department of Defense.
(d) Definition.--For purposes of this section, the term
``older American'' means any citizen of the United States who
is at least 55 years of age.
Sec. 9905. Special pay and benefits for certain employees outside the
United States
The Secretary may provide to certain civilian employees of
the Department of Defense assigned to activities outside the
United States as determined by the Secretary to be in support
of Department of Defense activities abroad hazardous to life or
health or so specialized because of security requirements as to
be clearly distinguishable from normal Government employment--
(1) allowances and benefits--
(A) comparable to those provided by the
Secretary of State to members of the Foreign
Service under chapter 9 of title I of the
Foreign Service Act of 1980 (Public Law 96-465,
22 U.S.C. 4081 et seq.) or any other provision
of law; or
(B) comparable to those provided by the
Director of Central Intelligence to personnel
of the Central Intelligence Agency; and
(2) special retirement accrual benefits and
disability in the same manner provided for by the
Central Intelligence Agency Retirement Act (50 U.S.C.
2001 et seq.) and in section 18 of the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403r).
----------
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) * * *
[(ii) employed in a position which is not
referred to in clause (i) and for which the
basic rate of pay, exclusive of any locality-
based pay adjustment under section 5302 of
title 5 (or any comparable adjustment pursuant
to interim authority of the President), is
equal to or greater than the rate of basic pay
payable for level 5 of the Senior Executive
Service,]
(ii) employed in a position which is not
referred to in clause (i) and for which that
person is paid at a rate of basic pay which is
equal to or greater than 96 percent of the rate
of basic pay for level II of the Executive
Schedule, or, for a period of 2 years following
the enactment of the Federal Employees Pay for
Performance Act of 2003, a person who, on the
day prior to the enactment of that Act, was
employed in a position which is not referred to
in clause (i) and for which the rate of basic
pay, exclusive of any locality-based pay
adjustment under section 5304 or section 5304a
of title 5, was equal to or greater than the
rate of basic pay payable for level 5 of the
Senior Executive Service on the day prior to
the enactment of that Act,
* * * * * * *
(v) assigned from a private sector
organization to an agency under chapter 37 or
section 9832 of title 5.
* * * * * * *
(l) Contract Advice by Former Details.--Whoever, being an
employee of a private sector organization assigned to an agency
under chapter 37 or section 9832 of title 5, within one year
after the end of that assignment, knowingly represents or aids,
counsels, or assists in representing any other person (except
the United States) in connection with any contract with that
agency shall be punished as provided in section 216 of this
title.
* * * * * * *
Sec. 209. Salary of Government officials and employees payable only by
United States
(a) * * *
* * * * * * *
(h) This section does not prohibit an employee of a private
sector organization, while assigned to the National Aeronautics
and Space Administration under section 9832 of title 5, from
continuing to receive pay and benefits from that organization
in accordance with section 9832 of that title.
* * * * * * *
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 or section 9832 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.
* * * * * * *
----------
SECTION 203 OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958
FUNCTIONS OF THE ADMINISTRATION
Sec. 203. (a) * * *
* * * * * * *
(c) In the performance of its functions the Administration is
authorized--
(1) * * *
(2) to appoint and fix the compensation of such
officers and employees as may be necessary to carry out
such functions. Such officers and employees shall be
appointed in accordance with the civil-service laws and
their compensation fixed in accordance with the
Classification Act of 1949, except that (A) to the
extent the Administrator deems such action necessary to
the discharge of his responsibilities, he may appoint
not more than four hundred and twenty-five of the
scientific, engineering, and administrative personnel
of the Administration without regard to such laws, and
may fix the compensation of such personnel not in
excess of [the highest rate of grade 18 of the General
Schedule of the Classification Act of 1949, as
amended,] the rate of basic pay payable for level III
of the Executive Schedule, and (B) to the extent the
Administrator deems such action necessary to recruit
specially qualified scientific and engineering talent,
he may establish the entrance grade for scientific and
engineering personnel without previous service in the
Federal Government at a level up to two grades higher
than the grade provided for such personnel under the
General Schedule established by the Classification Act
of 1949, and fix their compensation accordingly;
* * * * * * *
----------
SECTION 125 OF THE ACT OF JANUARY 8, 1988
AN ACT Making technical corrections relating to the Federal Employees'
Retirement System, and for other purposes.
SEC. 125. ELIGIBILITY OF CERTAIN INDIVIDUALS TO PARTICIPATE IN THE
THRIFT SAVINGS PLAN.
(a) * * *
* * * * * * *
(c) Applicability.--This section applies with respect to--
(1) any individual participating in the Civil Service
Retirement System or the Federal Employees' Retirement
System as--
(A) * * *
* * * * * * *
(C) an individual appointed or otherwise
assigned to one of the cooperative extension
services, as defined by section 1404(5) of the
National Agricultural Research, Extension, and
Teaching Policy Act of 1977 (7 U.S.C. 3103(5));
[or]
(D) an individual assigned from a Federal
agency to a private sector organization under
chapter 37 of title 5, United States Code;
[and] or
(E) an individual assigned from the National
Aeronautics and Space Administration to a
private sector organization under section 9832
of title 5, United States Code; and
* * * * * * *
MINORITY VIEWS
Over the past century, Congress has developed a
comprehensive set of laws to prevent the patronage system that
ruled the federal government during the first 100 years of the
country's existence. Until the Civil Service Act of 1883,
federal jobs were often awarded through the spoils system.
Civil service jobs went to supporters of elected officials and
loyal party members, which often led to incompetence and
corruption.
With the passage of H.R. 1836, this Committee has embarked
on the path of reversing many of the legislative reforms of the
past century. The bill strips away fundamental rights from
almost 700,000 civilian employees at the Department of Defense
(DoD)--approximately one-third of all federal civilian
employees. The bill also opens the door for the rest of the
federal workforce to have their rights taken away as well.
We agree that DoD needs certain flexibilities to allow it
to operate more effectively and more efficiently. We want the
strongest possible national defense and are willing to give DoD
the tools it needs to modernize its workforce. However, H.R.
1836 goes well beyond those flexibilities by giving DoD a
blanket waiver from large parts of the civil service laws.
In two hearings before the Committee, DoD witnesses
provided virtually no details about how it would exercise these
flexibilities and no rationale for why statutory protections of
employee rights should be waived. Often, the only rationale DoD
provided for such waivers was that the Department of Homeland
Security received the same waivers last year. However, the
creation of the Homeland Security Department was a unique
situation involving the combination of more than 20 different
agencies from different parts of the federal government.
Congress reasoned that the new Secretary of Homeland Security
needed flexibilities to quickly organize the different
components and functions. The Homeland Security Department was
an experiment, not a precedent.
The bill approved by the Committee on a party-line vote is
an improvement over the proposal initially submitted by DoD. On
balance, however, H.R. 1836 still gives far too little
direction to DoD without providing any meaningful safeguards to
employees.
Our views on specific provisions in H.R. 1836 and the
Committee's process for considering the bill are set forth
below.
I. EXPEDITED CONSIDERATION OF BILL
Members of the Committee on both sides of the aisle argued
that a bill of this magnitude deserves careful and thoughtful
consideration by Congress. However, DoD did not send its
personnel proposal to Congress until April 10, 2003, and the
bill was not introduced until April 29, 2003.
Prior to marking up the bill, the Committee held only one
subcommittee hearing and one full committee hearing--both in
the eight days prior to the markup. Eight days was not enough
time to consider a bill that will affect one-third of federal
civilianemployees and will likely become the de factor
personnel system for the entire federal government. At the subcommittee
hearing, Chairwoman Jo Ann Davis stated: ``We're doing this so quickly
and so fast that I can't say I'm very comfortable. I'm not anxious to
run forward and vote for something when I just don't know what it's
going to do to 700,000 people. * * * I think we're all concerned with
the sweeping power that would be given.''
DoD also failed to consult with interested parties about
its legislative proposal. DoD never formally consulted with
unions representing DoD employees during the development of the
proposal. We also were not briefed on the proposal until after
it was submitted to Congress.
Finally, we believe this bill is premature because the
personnel provisions of the Homeland Security Act--the
precedent for many of the changes sought by DoD--have not been
implemented. Congress should wait until the Department of
Homeland Security has implemented its new personnel system,
before deciding that this novel approach should be extended to
other agencies.
II. PERSONNEL PROVISIONS
We believe that H.R. 1836 provides a blank check to DoD to
create a new personnel system for its almost 700,000 civilian
employees without providing any details about what it would do.
DoD has stated only that the new personnel system would be
based on: (1) existing demonstration projects within the
Department; and (2) DoD's civilian human resources strategic
plan.
Existing DoD demonstration projects cover approximately
30,000 employees, many of whom are scientists and engineers, at
research labs. It is an open question as to whether these
limited demonstration projects can be extrapolated to a more
diverse workforce that is over 20 times larger the
demonstration projects. At a minimum, more research is needed
before DoD is granted such broad pay and hiring flexibilities.
DoD's reliance on its human resources strategic plan is
also problematic. In a report issued in March 2003 GAO found
DoD's strategic plan to be wholly inadequate:
The human capital strategic plans GAO reviewed for
the most part lacked key elements found in fully
developed plans. Most of the civilian human capital
goals, objectives, and initiatives were not explicitly
aligned with the overreaching missions of the
organizations. Consequently, DoD and the components
cannot be sure that strategic goals are properly
focused on mission achievement. Also, none of the plans
contained results--oriented performance measure to
assess the impact of their civilian human capital
initiatives (i.e., programs, policies, and processes).
Thus, DoD and the components cannot gauge the extent to
which their human capital initiatives contribute to
achieving their organizations' mission. Finally, the
plans did not contain data on the skills and
competencies needed to successfully accomplish future
mission; therefore, DoD and thecomponents risk not
being able to put the right people, in the right place, and at the
right time, which can result in diminished accomplishments of the
overall defense mission. * * * Moreover, the civilian strategic plans
did not address how the civilian workforce will be integrated with
their military counterparts or sourcing initiatives.\1\
---------------------------------------------------------------------------
\1\ General Accounting Office, DOD Actions Needed to Strengthen
Civilian Human Capital Strategic Planning and Integration with Military
Personnel and Sourcing Decisions (Mar. 2003) (GAO-03-475).
At the Civil Service Subcommittee hearing, Comptroller
General David Walker underscored these points, testifying that
he had ``serious concerns'' about the proposal and that the
Pentagon needs to improve its management systems to demonstrate
that adequate safeguards would be in place to minimize the
chance of abuse. Mr. Walker testified: ``Unfortunately, based
on GAO's past work most existing federal performance appraisal
systems, including a vast majority of DoD's system, are not
currently designed to support systems, including a vast
majority of DoD's system, are not currently designed to support
a meaningful performance-based pay system.''
Despite GAO's criticisms of DoD's human resources strategic
plan--and DoD's failure to adequately address these
criticisms--H.R. 1836 essentially allows the Department to
implement a new personnel system modeled after the strategic
plan.
Of equal concern is DoD's inability to justify the need for
these sweeping flexibilities. At the subcommittee hearing,
Undersecretary of Defense David Chu testified that the new
personnel system would make DoD into a more ``agile'' force but
was unable to explain how the current personnel system had in
any way hindered DoD's efforts to wage war in Iraq.
Based on pre-markup negotiations and amendments passed
during the markup, several changes were made to the initial
proposal submitted by DoD in April. Some of these changes
improved the bill. Most significantly, the number of waivable
chapters under Title 5 of the U.S. Code was scaled back from 12
provisions in the original DoD proposal to the six chapters
that were waived in the homeland security bill. A provision
exempting the DoD personnel regulations from notice and comment
requirements was dropped. A provision allowing the Defense
Secretary to invoke national security and trump the Office of
Personnel Management was modified to require that the national
security exception be the President's decision. And standards
were added to the bill to require that a performance-based pay
system incorporate elements of accountability and transparency.
Nevertheless, efforts by minority members to improve the
bill during the markup were rejected on party-line votes.
Minority amendments were defeated that would have: required DoD
to submit a legislative proposal detailing its new personnel
system prior to any authorities being granted; limited any new
flexibilities only to DoD managers; and required DoD to receive
an unqualified audit opinion before it could exercise any
authorities.
III. LACK OF PROTECTION FOR EMPLOYEE RIGHTS
In its proposal, DoD sought a complete waiver from four
chapters of the Title 5 of U.S. Code that protect fundamental
rights of federal employees.
DoD sought waivers from Chapters 43, 75, and 77, which
relate to due process and appeal rights. These chapters set
forth basic employee protections, such as the right to have
advance notice of suspension or removal, the right to respond
in writing, the right to be represented by an attorney, and the
right to a written decision explaining the action. In addition,
these chapters set forth a procedure for employees to challenge
personnel actions to the Merit Systems Protection Board (MSPB)
and the Equal Employment Opportunity Commission (EEOC) and
receive backpay for wrongful termination actions.
DoD also sought a waiver from Chapter 71, which relates to
employees collective bargaining rights. Chapter 71 protects the
rights of employees to join unions, requires that agencies and
unions bargain in good faith, and prohibits discrimination
based on union membership.
Even as DoD argued for a complete waiver from these
chapters of Title 5, DoD witnesses continued to maintain that
they were not revoking the rights contained in these chapters.
Deputy Defense Secretary Paul Wolfowitz explained:
[W] are not talking about stripping all of those basic
protections of civil service. In fact, we are very much
keeping the basic prohibitions on prohibitive personnel
practices. We are keeping appeals process in place. We
are simply making it easier to hire people that ought
to be hired, easier to reward people that ought to be
rewarded.
When Mr. Wolfowitz was asked about employee protections
against race and sex discrimination, he explained: ``We are
certainly not trying to change anything in the way that people
are protected against that kind of discrimination.''
Notwithstanding DoD's reassurance, the Department's new
ability to waive Chapters 43, 75, and 77 effectively precludes
employees from having a statutory remedy to redress employment
discrimination or wrongful termination actions. DoD has not
stated what due process and appeals provisions will be adopted
in place of the current system. The amendment offered by
Representative McHugh that was adopted by the Committee is an
improvement upon DoD's initial proposal but still gives the
Department too much discretion to determine what kind of due
process and appeal rights will be given to their employees.
Two amendments by Representative Norton to strengthen the
due process and appeals provisions were defeated on party-line
votes. However, the Committee did adopt an amendment by
Representative Norton to prohibit any DoD employee from serving
on the new employee appeals panel, thus ensuring the panel's
independence. Representative Norton's amendment also required
that the Department consult with EEOC in designing its
personnel regulations.
With regard to collective bargaining rights, DoD was unable
to justify its request for a complete waiver from Chapter 71.
In only one area--the ability of DoD to bargain with unions at
the national level, instead of the local level--was the
Department able to identify a potential problem that needed to
be addressed. Under Secretary of Defense David Chu explained:
``[T]here's no proposal here for anyone to lose his or her
collective bargaining rights. * * * The proposal is designed to
facilitate bargaining at the national level. That is the
proposal.'' Mr. Wolfowitz stated: ``I read [the bill] as
consolidating collective bargaining at the national level.
Collective bargaining will still be very much a part of the
process.''
On the issue of national-level bargaining, we are
sympathetic to DoD's arguments and are willing to give DoD the
requested flexibility. However, there was great skepticism
about DoD waiving all collective bargaining obligations. No
explanation was given for the need to waive the obligations in
5 U.S.C. Sec. 7116 that DoD not ``encourage or discourage
membership in any labor organization by discrimination in
connection with hiring'' and that DoD ``negotiate in good faith
with a labor organization.''
Notwithstanding DoD's statement that it welcomes national-
level bargaining, H.R. 1836 provides no guarantees that DoD
will engage in collective bargaining at all. The bill requires
only that the Department engage in ``collaboration'' with
unions in the development of the new personnel system. If the
Defense Secretary decides to implement any part of the proposal
over the objections of labor organizations, the bill gives the
Secretary the discretion to do so after notifying Congress.
In those instances in which DoD chooses to engage in
collective bargaining, the bill specifically removes the
current requirement that any agency-union impasses be mediated
by the Federal Services Impasse Panel, whose members are all
appointed by the President. Without any impasse resolution
procedure--and without any legal duty to bargain in good
faith--the Defense Department could always bargain to impasse
and then unilaterally impose its will on employees.
Rep. Lynch offered two amendments that would have restored
Chapter 71 and several key collective bargaining rights. Both
amendments were defeated on party-line votes.
IV. OTHER BILL PROVISIONS
A. SEC provisions
The Securities and Exchange Commission (SEC) has sought
flexibilities to hire accountants, economists, and compliance
examiners to improve oversight of U.S. corporations. We support
this flexibility but contend that these flexibilities should be
temporary to meet current hiring needs caused by the passage of
the Sarbanes-Oxley Act. An amendment by Representative
Kanjorski to sunset these flexibilities at the end of FY 2008
was defeated.
B. NASA provisions
The National Aeronautics and Space Administration (NASA)
also sought a variety of workforce flexibilities relating to
greater pay and hiring authority. We believe, however, that it
is premature to expand NASA's authorities at this time. An
outside board headed by Admiral Harold Gehman is currently
investigating the Columbia space shuttle accident and has
indicated that it is examining whether workforce issues played
a role in the accident. Until the board issues its report,
Congress should not grant far-reaching waivers to NASA.
On the merits of NASA's request, we are most concerned
about NASA's request to remove the current restriction that
demonstration projects be limited to no more than 5,000
employees. This provision would allow NASA to exempt the entire
agency from most federal civil service laws. We also are
concerned about a provision in the bill that would allow
employee exchanges between NASA and outside contractors. This
provision could give contractors undue influence over NASA's
operations and might create potential conflict of interest
problems by allowing private sector detailees to NASA to review
contract proposals from their competitors.
The NASA provisions of H.R. 1836 were improved during the
markup. The Committee accepted an amendment by Representative
Jo Ann Davis to require NASA to consider employee input into
any workforce flexibilities employed by the agency. The
Committee also accepted an amendment by Representative Kucinich
to prohibit NASA supervisors from receiving more than 15% of
the relocation, retention, and recruitment bonuses authorized
under the bill.
C. Hatch Act provision
The manager's substitute amendment contained a provision
relating to the Hatch Act that was never discussed with us
prior to the Committee markup. This provision is intended to
help one person, Alan White, who is currently being prosecuted
by the Office of Special Counsel (OSC) for an alleged Hatch Act
violation. The provision would prevent OSC from prosecuting Mr.
White, while also prohibiting OSC from publicly discussing the
case.
We believe this is a private relief measure that has no
place in this legislation. The provision also has implications
beyond Mr. White by creating a loophole for federal employees
to avoid Hatch Act prosecution. Moreover, the provision imposes
a ``gag order'' on OSC that will prevent the OSC from
disclosing information about its cases to the media and public.
According to OSC, disclosure of enforcement actions and
accomplishments is important to deter violations and ensure
accountability.
On May 13, 2003, Elaine Kaplan, the head of OSC, sent a
letter to the chairman and ranking minority member of the House
Armed Services Committee about this provision of H.R. 1836. In
this letter, Ms. Kaplan states the provision ``would
significantly undermine OSC's ability to effectively enforce
compliance with the Hatch Act.'' A copy of this letter is
attached to these views.
D. Other provisions
During the markup, the Committee accepted other amendments
offered by minority members:
An amendment by Representatives Bell and Lantos
was passed giving federal employees called up for duty in the
military reserves the difference between their reserves salary
and their civilian salary.
An amendment by Representative Van Hollen was
passed prohibiting agencies from charging fees to employees for
setting up flexible spending accounts.
An amendment by Representative Ruppersberger was
passed requiring agencies to conduct annual employee surveys.
In addition, an amendment by Representative Van Hollen was
defeated which would have provided all federal civilian
employees with the same pay increases as the military.
V. CONCLUSION
Although we support giving DoD the tools it needs to
modernize its workforce, we cannot support H.R. 1836 in its
current form. As reported by the Committee, the bill is a blank
check to DoD to develop a new personnel system for its almost
700,000 civilian employees, without providing meaningful
safeguards for those employees.
Henry A. Waxman.
Tom Lantos.
Major R. Owens.
Edolphus Towns.
Paul E. Kanjorski.
Bernard Sanders.
Carolyn B. Maloney.
Elijah E. Cummings.
Dennis J. Kucinich.
Danny K. Davis.
John F. Tierney.
Wm. Lacy Clay.
Diane E. Watson.
Stephen F. Lynch.
Chris Van Hollen.
Linda T. Sanchez.
C.A. Dutch Ruppersberger.
Eleanor Holmes Norton.
Jim Cooper.
Chris Bell.