[Senate Report 108-113]
[From the U.S. Government Publishing Office]



108th Congress 
 1st Session                     SENATE                          Report
                                                                108-113
_______________________________________________________________________
                                                       Calendar No. 236
 
                 NASA WORKFORCE FLEXIBILITY ACT OF 2003

                               __________

                              R E P O R T

                                 of the

         COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE

                              to accompany

                                 S. 610

                             together with

                            ADDITIONAL VIEWS

TO AMEND THE PROVISIONS OF TITLE 5, UNITED STATES CODE, TO PROVIDE FOR 
   WORKFORCE FLEXIBILITIES AND CERTAIN FEDERAL PERSONNEL PROVISIONS 
RELATING TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, AND FOR 
                             OTHER PURPOSES




    July 28 (legislative day, July 21), 2003.--Ordered to be printed

                              ________

                     U.S. GOVERNMENT PRINTING OFFICE
    
 *(Star Print)              WASHINGTON : 2003


                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas

           Michael D. Bopp, Staff Director and Chief Counsel
                  Ann C. Fisher, Deputy Staff Director
 Theresa Prych, Legislative Aide, Oversight of Government Management, 
    the Federal Workforce, and the District of Columbia Subcommittee
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
                  Lawrence B. Novey, Minority Counsel
 Emily J. Kirk, Minority Council, Oversight of Government Management, 
    the Federal Workforce, and the District of Columbia Subcommittee
                      Amy B. Newhouse, Chief Clerk
                                                       Calendar No. 236
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-113

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




                 NASA WORKFORCE FLEXIBILITY ACT OF 2003

                                _______
                                

    July 28 (legislative day, July 21), 2003.--Ordered to be printed

                                _______
                                

Ms. Collins, from the Committee on Governmental Affairs, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 610]

    The Committee on Governmental Affairs, to which was 
referred the bill (S. 610) to amend the provisions of title 5, 
United States Code, to provide for workforce flexibilities and 
certain Federal personnel provisions relating to the National 
Aeronautics and Space Administration, and for other purposes, 
reports favorably thereon with amendments and recommends that 
the bill do pass.

                         I. Purpose and Summary

    The purpose of S. 610, the NASA Workforce Flexibility Act 
of 2003, is to enhance existing workforce flexibilities and 
establish new flexibilities for the National Aeronautics and 
Space Administration. NASA is directed to establish, in 
consultation with employees, a workforce plan to identify the 
agency's workforce needs and describe how the flexibilities 
contained in S. 610 will address those needs. The flexibilities 
contained within this Act may not be used in a manner 
inconsistent with the workforce plan. The workforce plan must 
be approved by the Office of Personnel Management and presented 
to Congress for review before implementation.

                             II. Background

    On March 6, 2003, House Science Committee Chairman Sherwood 
Boechlert and NASA Administrator Sean O'Keefe testified before 
the Governmental Affairs Subcommittee on Oversight of 
Government Management, the Federal Workforce and the District 
of Columbia. In his testimony, Administrator O'Keefe outlined 
the human capital challenges facing his agency and recommended 
personnel flexibilities for Congress to consider that would 
assist NASA in addressing those challenges.\1\
---------------------------------------------------------------------------
    \1\ See Senate Hearing Report 108-28, Evaluating Human Capital at 
the National Aeronautics and Space Administration.
---------------------------------------------------------------------------
    During the 1990s, NASA underwent a period of significant 
downsizing, a process that left the agency with skill 
imbalances. The agency finds itself with an abundance of a 
particular skill set but facing a declining number of 
experienced employees due to impending retirements.\2\ 
Additionally, NASA's workforce differs significantly from other 
federal agencies in that more than 60 percent are scientists 
and engineers.\3\ This places NASA in a difficult position as 
nationally, the number of graduates in the physical sciences, 
both under- and post-graduate, continues to decrease.\4\ NASA 
increasingly finds itself unable to compete with both academia 
and the private sector in terms of competitive pay and 
benefits.
---------------------------------------------------------------------------
    \2\ Currently, 15 percent of NASA's workforce is eligible to retire 
and 25 percent of the workforce will be eligible for retirement in five 
years.
    \3\ In NASA's existing science and engineering workforce, 
scientists and engineers over age 60 outnumber those under age 30 by 
nearly three to one.
    \4\ See National Science Board report Science and Engineering 
Indicators--2002.
---------------------------------------------------------------------------
    NASA has used existing personnel flexibilities \5\ and has 
taken steps to identify internal barriers to most effectively 
using existing personnel flexibilities, including its 2002 
``Freedom to Manage'' initiative.\6\ However, due to its unique 
mission. NASA has concluded that current law has not provided 
NASA the necessary flexibility to address its workforce 
challenges.
---------------------------------------------------------------------------
    \5\ NASA has used of existing workforce flexibilities. For example, 
NASA was one of the first agencies to hire individuals under the 
Federal Career Intern Program, a program established by Executive Order 
in 2000 to streamline recruitment for trainee positions in a variety of 
positions. NASA has implemented an Automated Staffing and Recruitment 
System and widely used the Student Loan Repayment Program. In addition, 
NASA has made extensive use of the existing Intergovernmental Personnel 
Act (IPA) and term appointment authority.
    \6\ In 2002, NASA implemented ``Freedom to Manage'' to ensure the 
effective use of existing workforce flexibilities. The intiative 
identified internal processes and rules that impeded effective human 
capital management. The initiative resulted in delegation of 
authorities, reduced levels of review on some actions, streamlined 
processes, and more effective use of automated tools to improve 
operations.
---------------------------------------------------------------------------
    After the introduction of S. 610, discussions continued 
with interested parties. Before the bill was considered, 
changes were agreed to by the sponsor of the bill, and he 
incorporated those changes into an amendment in the nature of a 
substitute that he offered and that the Committee agreed to at 
its business meeting. For example, NASA would be required to 
discuss workforce recommendations made by the Columbia Accident 
Investigation Board in its workforce plan. In response to 
employee concerns, the provision to remove the cap on the 
number of employees who may participate in a demonstration 
project at NASA was removed. Concerns that large bonuses would 
be paid to managers and supervisors at the expense of other 
employees led to inclusion of language limiting the amount of 
total dollars that may be paid to managers and supervisors. 
Additionally, due to valid concerns that the workforce exchange 
program would encompass individuals in a position to influence 
contracting decisions, language was added to restrict the 
program to individuals in scientific and technical positions.
    NASA is engaged in fierce competition with the private 
sector for the most qualified candidates. Enhancing 
flexibilities NASA has found to be beneficial and implementing 
new flexibilities would assist this important federal agency in 
being more competitive in recruiting and retaining the kind of 
workforce it will need in the 21st Century.

                        III. Legislative History

    On March 6, 2003, the Subcommittee chaired by Senator 
George V. Voinovich held a hearing at which Administrator 
O'Keefe outlined for Committee Members the human capital needs 
of NASA.
    S. 610 was introduced on March 13, 2003, by Senator 
Voinovich and was referred to the Senate Committee on 
Governmental Affairs. The bill was referred to the Subcommittee 
on Oversight of Government Management, the Federal Workforce 
and the District of Columbia on April 30, 2003. It was 
favorably polled from the Subcommittee on June 11, 2003.
    S. 610 was considered, amended, and ordered favorably 
reported by the Governmental Affairs Committee at its business 
meeting on June 17, 2003. Senator Voinovich offered the 
amendment in the nature of a substitute described above, on 
behalf of himself and Senator Carper, and agreed to modify the 
amendment (so as to cap the amount of bonuses that may be 
granted to managers and supervisors), as proposed by Senator 
Durbin. The Committee agreed to the modified amendment in the 
nature of a substitute and ordered S. 610, as amended, reported 
favorably by voice vote, with no Members present dissenting. 
Senators present were as follows: Collins, Lieberman, 
Voinovich, Coleman, Sununu, Levin, Akaka, Carper, Lautenberg, 
and Pryor.

                    IV. Section-by-Section Analysis


Section 9801. Definitions.

    This section establishes the definitions of terms to be 
used throughout Subchapter I (Sections 9801-9808).

Section 9802. Planning, notification, and reporting requirements

    This section provides that, before exercising any of the 
workforce authorities under this subchapter, the Administrator 
of NASA must submit to OPM for approval a written plan 
detailing the workforce needs of NASA, how NASA will use 
increased workforce flexibilities to meet those needs, and how 
the agency has utilized existing flexibilities and discussion 
of workforce recommendations made by the Columbia Accident 
Investigation Board. NASA is also required to submit a 
workforce plan to Congress and provide it to all employees at 
least 60 days before exercising any of the flexibilities in the 
plan. Moreover, before submitting a plan to Congress, NASA must 
have provided a proposed plan to employee representatives and 
must have given their recommendations full and fair 
consideration. Modifications of the workforce plan must be 
noticed to employoees and their organizations representing NASA 
employees for comment, are subject to OPM approval and, must be 
submitted to Congress and all employees at least 60 days in 
advance of implementation.

Section 9803. Workforce authorities.

    This section outlines the workforce authorities that NASA 
may propose to exercise in the workforce plan.

Section 9804. Recruitment, redesignation, and relocation bonuses

    This section would permit NASA to pay a bonus to an 
individual in accordance with its workforce plan if the 
Administrator determines that NASA would be likely, in the 
absence of a bonus, to encounter difficulty in filling a 
position and the individual is newly appointed to the federal 
government, currently employed by the federal government and 
newly appointed to another position in the same geographic 
area, or currently employed by the federal government and is 
required to relocate to a different geographic area to accept a 
position with NASA.
    This section would grant NASA authority to pay the 
following bonuses: (1) for positions of critical need, a 
maximum of 50 percent of an employee's annual rate of basic pay 
at the beginning of the service period, multiplied by the 
service period, and not to exceed 100 percent of the employee's 
annual rate of basic pay at the beginning of the designated 
service period; and (2) for non-critical need positions, a 
maximum of 25 percent of an employee's annual rate of basic pay 
at the beginning of the service period, multiplied by the 
service period, and not to exceed 100 percent of the employee's 
annual rate of basic pay at the beginning of the designated 
service period. Service agreements under this section must 
include the required service period, the method of payment 
(including a schedule, which may include a lump-sum payment, 
installment payments, or a combination), the amount of the 
bonus, the basis for calculating that amount, the conditions 
under which the agreement may be terminated before the agreed-
upon service period has been completed, and the effect of the 
termination. A service period under this section may not be 
less than six months and may not exceed four years. No more 
than 25% of the total dollar amount used for bonuses may be 
offered for supervisory or managerial positions.

Section 9805. Retention bonuses.

    This section would permit NASA to pay a bonus to an 
employee in accordance with its workforce plan if the 
Administrator determines that the unusually high or unique 
qualifications of the employee or a special need of NASA makes 
it essential to retain the employee and the employee would be 
likely to leave in the absence of a retention bonus. This 
section would grant NASA authority to pay bonuses for positions 
of critical need to a maximum of 50 percent of an employee's 
annual rate of basic pay; for non-critical need positions, NASA 
may pay bonuses not to exceed 25 percent of an employee's 
annual rate of basic pay. Service agreements under this section 
must include the required service period, the method of payment 
(including a schedule, which may include a lump-sum payment, 
installment payments, or a combination), the amount of the 
bonus, the basis for calculating that amount, the conditions 
under which the agreement may be terminated before the agreed-
upon service period has been completed, and the effect of the 
termination. A service period under this section may not be 
less than six months and may not exceed four years. No more 
than 25 percent of the total dollar amount used for bonuses may 
be offered for supervisory or managerial positions.

Section 9806. Term appointments.

    This section would amend title 5 to permit NASA to make a 
term appointment for a maximum of six years or extend existing 
term appointments to six years. Current statute permits term 
appointments for four years, to be extended by a waiver from 
OPM. NASA hires individuals for specific scientific and 
technical programs; however, as technology does not always 
develop rapidly, a term appointment may expire before the 
project is complete. This section would provide NASA the 
authority to convert a term appointment to a career-conditional 
appointment under certain conditions. An appointment may be 
converted if (1) the individual was hired under the competitive 
examining procedures in title 5, (2) the original announcement 
stated the appointment may be converted from term to career-
conditional, (3) the position is in the same occupational 
series and geographic location and provides no greater 
promotional potential than the term appointment, (4) the 
individual has completed at least two years of the term 
appointment having served successfully, and (5) the individual 
has performed successfully in the position.

Section 9807. Pay authority for critical positions.

    This section would allow the NASA Administrator to appoint 
up to 10 individuals possessing expertise of an extremely high 
level to specific administrative, technical, scientific, and 
professional positions needed to carry out critical agency 
functions and aid in the accomplishment of the agency's 
mission. Individuals hired for these critical positions would 
earn a salary not to exceed that of the Vice President. This 
authority, which has been granted to other agencies, such as 
the Internal Revenue Service, and which exists governmentwide 
for 800 such appointments, subject to OMB and OPM approval, is 
designed to attract talented individuals to critical positions 
in the federal government for short periods of time.

Section 9808. Assignments of intergovernmental personnel.

    This section would allow NASA to extend an 
intergovernmental personnel assignment for no more than four 
years. Current statute provides for a two-year term with the 
option of a two year extension. Extensions are to be made with 
the concurrence of the employee and the employee's originating 
agency or organization. NASA has achieved success using the 
provisions of the Intergovernmental Personnel Act (IPA). 
However, some scientific and technical projects run more than 
four years. NASA finds the need to retain the critical 
expertise to support the program to avoid the unnecessary 
disruption caused by ending the assignment.

Section 9831. Definitions.

    This section establishes the definitions of terms to be 
used throughout Subchapter II (Sections 9831-9838).

Section 9832. Administration and private sector exchange assignments.

    This section would authorize the Administrator to detail 
permanent employees in a scientific or technical position to 
private sector entities and accept the detail of private sector 
employees to NASA with the concurrence of the employees 
involved. Assignments would be made for two years with the 
possibility for a two year extension; employees participating 
in the exchange must agree to work for the agency for a period 
of time equivalent to the assignment. Private sector employees 
detailed to NASA are subject to all conflict of interest and 
ethics statutes applicable to federal employees. Private sector 
organizations are prohibited from including the cost of 
salaries and benefits of an employee detailed to NASA in their 
direct or indirect costs for a federal contract. Following the 
success of Intergovernmental Personnel Assignments and similar 
to the Digital Tech Corps Act passed last year by Congress, 
this section would offer NASA a tool to exchange talent between 
NASA and the private sector for work of mutual concern that the 
Administrator determines will be beneficial to both. The 
exchange program should also make service at NASA more 
attractive and should provide an opportunity for NASA employees 
to improve their skills.

Section 9833. Science and technology scholarship program.

    This section would require NASA to establish a program for 
providing scholarships to students enrolled in academic 
programs at accredited colleges and universities appropriate 
for professions at NASA. In exchange, students would be 
required to complete year-for-year service with NASA. Students 
must be U.S. citizens and must not be federal employees. 
Scholarships may not exceed the costs associated with attending 
the college or university. Students who fail to maintain a high 
level of academic standing, as defined by regulation, are 
dismissed from their college or university for disciplinary 
reasons, or do not complete their program of study would be 
required to repay funds received under the scholarship program. 
In the event a scholarship recipient fails to complete the 
service obligation to the agency, the individual will be 
responsible to repay the amount of scholarship received with 
penalties. The Administrator shall, by regulation, provide for 
the waiver or suspension of a service obligation if completion 
of service by an individual would be impossible or would 
involve extreme hardship to the individual, or if enforcement 
would be contrary to the best interests of the government. The 
bill authorizes $10 million per year to be made available for 
two years. NASA anticipates the program will support 300 
students. This section attempts to assist NASA in addressing 
the problem of a declining graduate pool of scientists, 
engineers, and technology professionals.

Section 9834. Distinguished scholar appointment authority.

    This section would permit NASA to appoint directly to the 
General Schedule individuals in professional and research 
positions in grades GS-7 through GS-12 who meet specified 
education requirements. Veterans' preference applies and public 
notice of vacancies is required. This provision is necessary 
considering the makeup of NASA's workforce, in which 60 percent 
of employees are scientists and engineers. NASA needs a process 
to properly recognize academic excellence for professional 
positions and eliminate barriers to quickly offering employment 
to top graduates.

Section 9835. Travel and transportation expenses of certain new 
        appointees.

    This section would authorize NASA to offer employees 
reimbursement for house-hunting trips and limited reimbursement 
for home sale and purchase expenses, temporary quarters 
allowance, and relocation services. Such benefits are available 
to current federal employees who accept a new position within 
the federal government. Such reimbursements would help NASA 
compete with private sector organizations that are able to 
offer generous relocation packages to attract a highly 
qualified candidate.

Section 9836. Annual leave enhancements.

    This section would change the rules that govern the accrual 
of annual leave for new mid-career NASA employees. Currently, 
new mid-career hires with significant professional experience 
and considerable private sector vacation benefits earn annual 
leave at a rate of four hours per biweekly pay period for the 
first three years of employment with the federal government. 
This section would allow the head of NASA to deem a period of 
qualified non-federal career experience for an individual an 
equal period of service performed as a federal employee. For 
example, 10 years of career experience prior to the 
commencement of service with NASA could be treated as 10 years 
of federal service, resulting in the new employee being placed 
in the 6 hour leave accrual category. This change would assist 
NASA in hiring mid-career individuals with significant 
professional experience by enabling NASA to allow such 
individuals to accrue annual leave at a higher rate than entry-
level employees ordinarily receive.
    This section would also provide that all senior executives 
and other senior level employees at NASA accrue annual leave at 
the maximum rate: one day (eight hours) for each bi-weekly pay 
period.

Section 9837. Limited appointments to Senior Executive Service 
        positions.

    This section would combine the limited term and limited 
emergency appointments into one limited appointment authority 
designed to meet NASA's short-term staffing needs. 
Specifically, this section would permit limited SES appointees 
to be appointed to career reserved positions, provided that the 
limited appointee, immediately before the career reserved 
appointment, was serving under a career or career-conditional 
appointment outside of the SES (or an appointment of equivalent 
tenure). These changes are designed to provide more flexibility 
for NASA to address short-term staffing needs at the senior 
executive level.

Section 9838. Superior qualifications pay.

    This section would allow NASA, after review by OPM, to 
adjust the base pay for employees and those redesignated for 
positions at NASA at any rate within the GS salary range for 
the position. The determination is to be made on the superior 
qualifications of the individual and the need of the agency. 
Current statute permits pay to be set under the General 
Schedule at any step of the pay range for superior 
qualifications or agency need for new hires only. NASA has 
little ability to set base pay for current employees to 
recognize their superior contributions to the agency.
    This Act shall be effective 180 days after enactment.

                    V. Estimated Cost of Legislation

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 25, 2003.
Hon. Susan M. Collins,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 610, a bill to amend 
the provisions of title 5, United States Code, to provide for 
workforce flexibilities and certain federal personnel 
provisions relating to the National Aeronautics and Space 
Administration, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Kathleen 
Gramp.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 610--A bill to amend the provisions of title 5, United States Code, 
        to provide for workforce flexibilities and certain federal 
        personnel provisions relating to the National Aeronautics and 
        Space Administration, and for other purposes

    Summary: S. 610 would allow the National Aeronautics and 
Space Administration (NASA) to modify its personnel and 
workforce practices under the bill. NASA would be allowed to 
pay higher bonuses to attract and retain individuals with 
special expertise, exchange personnel with industrial firms, 
and increase compensation or benefits for certain positions. In 
addition, the bill would authorize the appropriation of $10 
million a year for a new science and technology scholarship 
program.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing S. 610 would cost $80 million over 
the 2004-2008 period. In 2003, about $2 billion was 
appropriated for NASA's personnel costs. Enacting S. 610 would 
not affect direct spending or revenues.
    S. 610 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 610 is shown in the following table. The 
costs of this legislation fall within budget functions 250 
(general science, space, and technology) and 400 
(transportation).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2004     2005     2006     2007     2008
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated authorization level......................................       15       17       19       22       22
Estimated outlays..................................................        6       13       18       21       22
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
610 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 NASA's 
personnel costs.
    This bill would authorize the appropriation of $10 million 
a year for a science and technology scholarship program. 
Recipients would be required to work for NASA for a period of 
time corresponding to the duration of the scholarship.
    Based on information from NASA, CBO estimates that 
expenditures for the new personnel benefits authorized by the 
bill would cost $5 million to $10 million a year (in 2003 
dollars) in most or all of the next five years, depending on 
how extensively the agency used some of the new authorities. 
CBO estimates that spending for higher bonuses would account 
for most of the additional cost. According to NASA, over 5,000 
of its roughly 18,000 employees will be eligible to retire by 
2008, half of who are in scientific and engineering fields.
    Under S. 610, new employees could receive bonuses 
equivalent to 100 percent of their salary under certain 
conditions (compared to 25 percent under current law), while 
current employees with critical skills could be given a one-
time bonus equivalent to 50 percent of their salary (compared 
to 25 percent under current law). CBO estimates such bonuses 
would cost a total of about $25 million over the next five 
years, based on the assumption that such payments would likely 
increase over time in response to recruitment needs and payment 
schedules. The estimated cost is equivalent to giving the 
maximum bonus to an average of 90 individuals a year over the 
2004-2008 period.
    Intergovernmental and private-sector impact: S. 610 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Previous CBO estimate: On May 15, 2003, CBO transmitted a 
cost estimate for H.R. 1836, the Civil Service and National 
Security Personnel Improvement Act, as ordered reported by the 
House Committee on Government Reform on May 8, 2003. Subtitle B 
of that bill and S. 610 are nearly identical, as are the CBO 
estimates.
    Estimate prepared by: Federal costs: Kathleen Gramp; impact 
on state, local, and tribal governments: Gregory Waring; impact 
on the private sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                  VI. Evaluation of Regulatory Impact

    Paragraph 11(b)(1) of the Standing Rules of the Senate 
requires that each report accompanying a bill evaluate ``the 
regulatory impact which would be incurred in carrying out this 
bill.''
    The enactment of this legislation will not have significant 
regulatory impact.

                         VII. Additional Views

                              ----------                              


                   ADDITIONAL VIEWS OF SENATOR DURBIN

    I am pleased to support this legislation, as amended, which 
will provide a variety of workforce flexibilities to the 
National Aeronautics and Space Administration (NASA). This 
legislation is very important because it will assist NASA in 
its efforts to recruit and retain a workforce that is ready to 
meet the scientific and technical challenges necessary to 
fulfill its missions. I applaud the efforts of Subcommittee 
Chairman Voinovich to evaluate a variety of options, seek input 
from interested and affected parties, and carefully consider 
alternative approaches in crafting the compromise proposal 
approved by the Committee.
    I would specifically like to draw attention to Senator 
Voinovich's willingness to include provisions to address 
Federal employee concerns. The amended legislation, as approved 
by the Committee, contains language that will require NASA 
workforce plans to be submitted to Congress before the 
flexibilities specified in the plans can be implemented. By 
including this language, Congress can remain fully engaged in 
the process as NASA develops and implements flexibilities for 
its workforce. The legislation also contains a provision that 
requires NASA officials to describe any reforms to workforce 
management practices as recommended by the Columbia Accident 
Investigation Board when developing workforce plans. This will 
ensure that personnel recommendations resulting from the 
Columbia investigation will be addressed.
    The original version of the legislation contained language 
that would have removed the cap on the number of employees 
permitted to participate in Federal demonstration projects at 
NASA. Eliminating the cap would have allowed NASA to include 
all employees in demonstration projects, subject to any 
existing collective bargaining agreements. This language was 
removed from the legislation before it was approved by the 
Committee. Therefore, the current cap on employees permitted to 
participate in Federal demonstration projects remains in place. 
Maintaining the cap ensures that new workforce flexibilities 
can be appropriately and adequately tested through 
demonstration projects without affecting the entire workforce.
    During the full committee markup, Senator Voinovich 
accepted an amendment I was prepared to offer relating to the 
new bonus authorities contained in the legislation. This 
amendment required that no more than 25 percent of the total 
dollar amount allotted for bonuses in any year may be used for 
individuals serving in management and supervisory positions. 
This ensures that an adequate amount of bonus funding will be 
reserved and available for rank and file scientific and 
technical employees. I am pleased that this amendment was 
incorporated in the legislation as approved by the Committee.
    While I appreciate Senator Voinovich's willingness to 
incorporate each of the provisions that I have discussed, I 
remain concerned about a provision retained in the amended bill 
to establish an exchange program between NASA employees and 
private sector employees. This type of program raises serious 
concerns about the potential for conflicts of interest. The 
bill includes language that would limit participation in the 
program to those in scientific and technical positions. 
However, I do not believe that making such a change 
sufficiently addresses the concern. Senator Voinovich has 
indicated his commitment to continue to work with me to address 
my remaining concerns about the potential for conflicts of 
interest that might arise in this type of exchange program and 
to incorporate additional safeguards that may be necessary. I 
am confident that we will be able to make further progress on 
this section of the legislation prior to Senate floor 
consideration.

                                                 Richard J. Durbin.

                   ADDITIONAL VIEWS OF SENATOR AKAKA

    S. 610, the National Aeronautics and Space Administration 
(NASA) Workforce Flexibility Act of 2003, would provide NASA 
added tools to manage its workforce, including an exchange 
program whereby NASA could detail its employees to private 
companies and rotate private sector employees into NASA. While 
I support this legislation, I am concerned that the exchange 
program lacks sufficient safeguards to ensure that the program 
will benefit NASA. For the program to be effective, there must 
be in place an adequate internal management structure that is 
transparent and accountable. According to a new General 
Accounting Office (GAO) review on the effective use of 
workforce flexibilities, the inefficient and ineffective use of 
flexibilities can significantly hinder the ability of federal 
agencies to recruit, hire, retain, and manage their employees.
    For the proposed exchange program to work there needs to be 
sufficient safeguards to make certain that the program does not 
result in workforce shortfalls. NASA should not lose more 
employees and talent than it gains from the private sector. As 
such, there should be controls over the proportion and number 
of private sector and NASA employees who participate in the 
program. The concept of a private sector exchange program is 
new in government and untested at NASA. Moreover, the first 
exchange program established for the IT industry has not been 
in effect long enough for the Office of Personnel Management 
(OPM) to report on the administration of the program.
    The exchange program also raises concerns over possible 
conflicts of interest, since the same private sector employees 
who are detailed to NASA under the program may return at a 
later date as NASA contractors. Ninety percent of NASA's 
workforce are contract or grant workers. The provision would 
benefit from additional safeguards to ensure that contractors 
do not use the program to gain a competitive advantage in 
future contracts with NASA. One way to address that concern is 
to institute a cooling off period whereby contractors 
participating in the program would be restricted from 
contracting with NASA for an appropriate period of time.
    Moreover, there need to be assurances that minority owned 
and small businesses have the access to participate in the 
exchange program. The exchange program should be a genuine 
exchange, not an access point for new contracting opportunities 
with NASA. I look forward to working with my colleague from 
Ohio, Senator Voinovich, to ensure that these concerns are 
addressed and that adequate safeguards are included in the 
final version of this bill.
    Although S. 610 does not specifically address contract 
management, I believe that with such heavy reliance on contract 
personnel, it is critical that there is effective and strong 
contract management at NASA. GAO first identified NASA contract 
management as a high risk area in 1990 when GAO's high risk 
list was first established. Unfortunately, GAO continues to 
find that NASA lacks the systems and processes needed to 
oversee contractor activities and control costs effectively. 
Last year, the Office of Inspector General at NASA concluded 
that the lack of proper contract oversight threatened the 
safety of the space shuttle operations. An internal study of 
NASA operations questioned the decision to privatize much of 
its shuttle operations in light of the reduction of staff 
responsible for overseeing NASA contractors. Admiral Harold W. 
Gehman (Ret.), Chairman of the Columbia Accident Investigation 
Board, has identified management failure as a contributing 
factor in the space shuttle disaster. A 2002 RAND study affirms 
the importance of NASA oversight of contractors and concludes 
that safety is often best served by stability of management.
    As an early member of the House of Representatives Space 
Caucus, I view NASA's mission of space exploration unique 
within the federal government. NASA employees are modern day 
pioneers who help uncover the mysteries of the universe and 
promote technological advancements. For example, NASA has 
developed the wind-shear warning equipment used in commercial 
airliners and NASA space scientists have harnessed microgravity 
conditions to make advancements in medicine. Yet, despite the 
headway made through space exploration, NASA faces many of the 
same workforce management challenges faced by other federal 
agencies. As Congress prepares to grant new personnel 
flexibilities to NASA, Congress must provide strong oversight 
over the agency's operational, managerial, and safety 
challenges.

                                                   Daniel K. Akaka.

                     VIII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, 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 and existing law, in which no 
change is proposed, is shown in roman):

                           UNITED STATES CODE

             TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III. EMPLOYEES

           *       *       *       *       *       *       *


                  Subpart B. Employment and Retention

                  CHAPTER 31. AUTHORITY FOR EMPLOYMENT

                  Subchapter I. Employment Authorities

Sec. 3111. Acceptance of volunteer service

           *       *       *       *       *       *       *


    (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.

           *       *       *       *       *       *       *


           Subpart F. Labor-Management and Employee Relations

             CHAPTER 73. SUITABILITY, SECURITY, AND CONDUCT

                        Subchapter V. Misconduct

Sec. 7353. Gifts to Federal employees

           *       *       *       *       *       *       *


    (b)(1) Each supervising ethics office is authorized to 
issue rules or regulations implementing the provisions of this 
section and providing for such reasonable exceptions as may be 
appropriate.
    (2)(A) Subject to subparagraph (B), a Member, officer, or 
employee may accept a gift pursuant to rules or regulations 
established by such individual's supervising ethics office 
pursuant to paragraph (1).
    (B) No gift may be accepted pursuant to subparagraph (A) in 
return for being influenced in the performance of any official 
act.
    (3) Nothing in this section precludes a Member, officer, or 
employee from accepting gifts on behalf of the United States 
Government or any of its agencies in accordance with statutory 
authority.
    (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.
Section 125 of Pub. L. 100-238, as amended, Pub. L. 107-347, Title II, 
        Sec. 209(g)(3), Dec. 17, 2002, 116 Stat. 2932 (5 U.S.C. 8432 
        note)
    (a) Definitions.--For purposes of this section--
          (1) the term ``Executive Director'' means the 
        Executive Director under section 8474 of title 5, 
        United States Code; and
          (2) the term ``Thrift Savings Plan'' refers to the 
        program under subchapter III of chapter 84 of title 5, 
        United States Code.
    (b) Regulations.--
          (1) In general.--The Executive Director shall 
        prescribe regulations relating to participation in the 
        Thrift Savings Plan by an individual described in 
        subsection (c).
          (2) Specific matters to be included.--Under the 
        regulations--
                  (A) in computing a percentage of basic pay to 
                determine an amount to be contributed to the 
                Thrift Savings Fund, the rate of basic pay to 
                be used shall be the same as that used in 
                computing any amount which the individual 
                involved is otherwise required, as a condition 
                for participating in the Civil Service 
                Retirement System or the Federal Employees' 
                Retirement System (as the case may be), to 
                contribute to the Civil Service Retirement and 
                Disability Fund; and
                  (B) an employing authority which would not 
                otherwise make contributions to the Thrift 
                Savings Fund shall be allowed, with respect to 
                any individual under subsection (c) who is 
                serving under such authority, and at the sole 
                discretion of such authority, to make any 
                contributions on behalf of such individual 
                which would be permitted or required under the 
                provisions of section 8432(c) of title 5, 
                United States Code, if such authority were the 
                individual's employing agency under such 
                provisions.
    (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) an individual who has entered on approved 
                leave without pay to serve as a full-time 
                officer or employee of an organization composed 
                primarily of employees (as defined by section 
                8331(1) or 8401(11) of title 5, United States 
                Code);
                  (B) an individual assigned from a Federal 
                agency to a State or local government under 
                subchapter VI of chapter 33 of title 5, United 
                States Code;
                  (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 8932 
                of title 5, United States Code; and 
          (2) any individual who is participating in the Civil 
        Service Retirement System as a result of a provision of 
        law described in section 8347(o).
    (d) Effective Date.--
          (1) In general.--Except as provided in paragraph (2), 
        the regulations prescribed under this section shall 
        become effective in accordance with the provisions of 
        such regulations.
          (2) Exception.--The regulations prescribed under this 
        section shall, with respect to individuals under 
        subsection (c)(1)(C), be effective as of January 1, 
        1987.

           *       *       *       *       *       *       *


                        Subpart I. Miscellaneous

        CHAPTER 98_NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

    [Insert legislative text of S. 610: page 46, line 9 through 
p. 89, line 24.]

           *       *       *       *       *       *       *


                TITLE 18. CRIMES AND CRIMINAL PROCEDURE

                             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

           *       *       *       *       *       *       *


    (c) One-year restrictions on certain senior personnel of 
the executive branch and independent agencies.

           *       *       *       *       *       *       *

          (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) employed at a rate of pay 
                        specified in or fixed according to 
                        subchapter II of chapter 53 of title 5,
                          (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,
                          (iii) appointed by the President to a 
                        position under section 105(a)(2)(B) of 
                        title 3 or by the Vice President to a 
                        position under section 106(a)(1)(B) of 
                        title 3,
                          (iv) employed in a position which is 
                        held by an active duty commissioned 
                        officer of the uniformed services who 
                        is serving in a grade or rank for which 
                        the pay grade (as specified in section 
                        201 of title 37) is pay grade 0-7 or 
                        above; or
                          (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

           *       *       *       *       *       *       *


    (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

    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, 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.

           *       *       *       *       *       *       *


                TITLE 42. THE PUBLIC HEALTH AND WELFARE

                   CHAPTER 26. NATIONAL SPACE PROGRAM


           COORDINATION OF AERONAUTICAL AND SPACE ACTIVITIES

Sec. 2473. Functions of the Administration

           *       *       *       *       *       *       *


    (c) In the performance of its functions the Administration 
is authorized--
          (1) to make, promulgate, issue, rescind, and amend 
        rules and regulations governing the manner of its 
        operations and the exercise of the powers vested in it 
        by law;
          (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;

           *       *       *       *       *       *       *


                                  
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