[Senate Report 112-147]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 316
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-147

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



 
          DEPARTMENT OF ENERGY ADMINISTRATIVE IMPROVEMENT ACT

                                _______
                                

                February 7, 2012.--Ordered to be printed

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1160]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 1160) to improve the administration of 
the Department of Energy, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Department of Energy Administrative 
Improvement Act of 2011''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Department.--The term ``Department'' means the Department 
        of Energy.
          (2) Secretary.--The term ``Secretary'' means the Secretary of 
        Energy.

SEC. 3. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.

  (a) In General.--Part C of title VI of the Department of Energy 
Organization Act (42 U.S.C. 7251 et seq.) is amended by adding at the 
end the following:

``SEC. 664. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.

  ``(a) In General.--At or about the time the budget of the President 
is submitted to Congress for each year under section 1105(a) of title 
31, United States Code, the Secretary shall submit to Congress a 
future-years Department of Energy program (including associated 
annexes) reflecting the estimated expenditures and proposed 
appropriations included in the budget.
  ``(b) Fiscal Year.--Any future-years Department of Energy program 
submitted under subsection (a) shall cover--
          ``(1) the fiscal year with respect to which the budget is 
        submitted; and
          ``(2) at least the 4 succeeding fiscal years.
  ``(c) Consistent Amounts.--
          ``(1) In general.--The Secretary shall ensure that amounts 
        described in paragraph (2)(A) for any fiscal year are 
        consistent with amounts described in paragraph (2)(B) for that 
        fiscal year.
          ``(2) Amounts.--Amounts referred to in paragraph (1) are the 
        following:
                  ``(A) The amounts specified in program and budget 
                information submitted to Congress by the Secretary in 
                support of expenditure estimates and proposed 
                appropriations in the budget submitted to Congress by 
                the President under section 1105(a) of title 31, United 
                States Code, for any fiscal year, as indicated in the 
                future-years Department of Energy program submitted 
                pursuant to subsection (a).
                  ``(B) The total amounts of estimated expenditures and 
                proposed appropriations necessary to support the 
                programs, projects, and activities of the Department of 
                Energy included pursuant to section 1105(a)(5) of title 
                31, United States Code, in the budget submitted to 
                Congress under that section for any fiscal year.
  ``(d) Management Contingencies.--Subject to subsection (c), nothing 
in this section prohibits the inclusion in the future-years Department 
of Energy programs of amounts for management contingencies.''.
  (b) Conforming Amendment.--The table of contents in the first section 
of the Department of Energy Organization Act (42 U.S.C. 7101) is 
amended by adding at the end of the items relating to part C of title 
VI the following:

``Sec. 664. Future-Years Department of Energy program.''.

SEC. 4. OTHER TRANSACTIONS AUTHORITY.

  (a) In General.--Section 646 of the Department of Energy Organization 
Act (42 U.S.C. 7256) is amended by striking subsection (g) and 
inserting the following:
  ``(g) Authority To Enter Into Other Transactions.--
          ``(1) In general.--In addition to any other authority granted 
        to the Secretary to enter into procurement contracts, leases, 
        cooperative agreements, grants, and certain arrangements, the 
        Secretary may enter into other transactions with public 
        agencies, private organizations, or other persons on such terms 
        as the Secretary considers appropriate to further functions 
        vested in the Secretary, including research, development, or 
        demonstration projects.
          ``(2) Advance payments.--Notwithstanding any other provision 
        of law, the Secretary may exercise authority provided under 
        paragraph (1) without regard to section 3324 of title 31, 
        United States Code.
          ``(3) Relationship to other law.--The authority of the 
        Secretary under paragraph (1) shall not be subject to--
                  ``(A) section 9 of the Federal Nonnuclear Energy 
                Research and Development Act of 1974 (42 U.S.C. 5908); 
                or
                  ``(B) section 152 of the Atomic Energy Act of 1954 
                (42 U.S.C. 2182).
          ``(4) Protection of certain information from disclosure.--
                  ``(A) In general.--Notwithstanding any other 
                provision of law, disclosure of information described 
                in subparagraph (B) is not required, and may not be 
                compelled, under section 552 of title 5, United States 
                Code, during the 5-year period beginning on the date on 
                which the information is received by the Department.
                  ``(B) Award information.--The information described 
                in this subparagraph is information in the records of 
                the Department that--
                          ``(i) was submitted--
                                  ``(I) to the Department as part of a 
                                competitive or noncompetitive process 
                                with the potential to result in an 
                                award to the person submitting the 
                                information; and
                                  ``(II) in conjunction with a 
                                transaction entered into by the 
                                Secretary pursuant to paragraph (1); 
                                and
                          ``(ii) is--
                                  ``(I) a proposal, proposal abstract, 
                                and supporting documents;
                                  ``(II) a business plan submitted on a 
                                confidential basis; or
                                  ``(III) technical information 
                                submitted on a confidential basis.
          ``(5) Requirements.--
                  ``(A) Selection procedures.--In entering into 
                transactions under paragraph (1), the Secretary shall 
                use such competitive, merit-based selection procedures 
                as the Secretary determines in writing to be 
                practicable.
                  ``(B) Determination.--Before entering into a 
                transaction under paragraph (1), the Secretary shall 
                determine in writing that the use of a standard 
                contract, grant, or cooperative agreement for the 
                project is not feasible or appropriate.
                  ``(C) Cost sharing.--A transaction under paragraph 
                (1) shall be subject to cost sharing in accordance with 
                section 988 of the Energy Policy Act of 2005 (42 U.S.C. 
                16352).
                  ``(D) Limitation on delegation.--The authority of the 
                Secretary under this subsection may be delegated only 
                to an officer of the Department who is appointed by the 
                President by and with the advice and consent of the 
                Senate and may not be redelegated to any other person.
          ``(6) Annual reports.--Not later than 1 year after the date 
        of enactment of the Department of Energy Administrative 
        Improvement Act of 2011 and annually thereafter, the Secretary 
        shall submit to Congress an annual report on the transactions 
        entered into by the Secretary pursuant to the authorities 
        provided under this subsection.
          ``(7) Report.--
                  ``(A) Definition of nontraditional government 
                contractor.--In this paragraph, the term 
                `nontraditional Government contractor' has the meaning 
                given the term `nontraditional defense contractor' in 
                section 845(f) of the National Defense Authorization 
                Act for Fiscal Year 1994 (Public Law 103-160; 10 U.S.C. 
                2371 note).
                  ``(B) Report.--Not later than 2 years after the date 
                of enactment of this subparagraph, and 2 years 
                thereafter, the Comptroller General of the United 
                States shall submit to Congress a report describing--
                          ``(i) the use by the Department of 
                        authorities under this section, including the 
                        ability to attract nontraditional Government 
                        contractors; and
                          ``(ii) whether additional safeguards are 
                        necessary to carry out the authorities.''.
  (b) Implementation.--
          (1) In general.--The final rule of the Department entitled 
        ``Assistance Regulations'' (71 Fed. Reg. 27158 (May 9, 2006)) 
        shall be applicable to transactions under section 646 of the 
        Department of Energy Organization Act (42 U.S.C. 7256) (as 
        amended by subsection (a)).
          (2) Regulations.--The Secretary may revise, supplement, or 
        replace such regulations as the Secretary determines necessary 
        to implement the amendment made by subsection (a).

SEC. 5. PROTECTION OF RESULTS.

  (a) In General.--Subject to subsection (b) and notwithstanding any 
other provision of law, during a period of not more than 5 years after 
the development of information in any transaction authorized to be 
entered into by the Department, the Secretary may provide appropriate 
protections against the dissemination of the information, including 
exemption from subchapter II of chapter 5 of title 5, United States 
Code.
  (b) Applicable Information.--This section applies to information 
that--
          (1) results from a transaction entered into by the Secretary 
        relating to research, development, demonstration, or commercial 
        application; and
          (2) is of a character that would be protected from disclosure 
        under section 552(b)(4) of title 5, United States Code.

SEC. 6. EMPLOYMENT OF PERSONNEL.

  (a) In General.--Subject to subsections (b) through (d), the 
Secretary may appoint, without regard to the provisions of chapter 33 
of title 5, United States Code, governing appointments in the 
competitive service, exceptionally well qualified individuals to 
scientific, engineering, or other critical technical positions.
  (b) Limitations.--
          (1) Number of positions.--The number of critical positions 
        authorized by subsection (a) may not exceed 120 at any 1 time 
        in the Department.
          (2) Term.--The term of an appointment under subsection (a) 
        may not exceed 4 years.
          (3) Prior employment.--An individual appointed under 
        subsection (a) shall not have been a Department employee during 
        the 2-year period ending on the date of appointment.
          (4) Pay.--
                  (A) In general.--The Secretary shall have the 
                authority to fix the basic pay of an individual 
                appointed under subsection (a) at a rate to be 
                determined by the Secretary up to level I of the 
                Executive Schedule without regard to the civil service 
                laws.
                  (B) Total annual compensation.--The total annual 
                compensation for any individual appointed under 
                subsection (a) may not exceed the highest total annual 
                compensation payable at the rate determined under 
                section 104 of title 3, United States Code.
          (5) Adverse actions.--An individual appointed under 
        subsection (a) may not be considered to be an employee for 
        purposes of subchapter II of chapter 75 of title 5, United 
        States Code.
  (c) Requirements.--
          (1) In general.--The Secretary shall ensure that--
                  (A) the exercise of the authority granted under 
                subsection (a) is consistent with the merit principles 
                of section 2301 of title 5, United States Code; and
                  (B) the Department notifies diverse professional 
                associations and institutions of higher education, 
                including those serving the interests of women and 
                racial or ethnic minorities that are underrepresented 
                in scientific, engineering, and mathematical fields, of 
                position openings as appropriate.
          (2) Report.--Not later than 2 years after the date of 
        enactment of this Act, the Secretary and the Director of the 
        Office of Personnel Management shall submit to Congress a 
        report on the use of the authority provided under this section 
        that includes, at a minimum, a description or analysis of--
                  (A) the ability to attract exceptionally well 
                qualified scientists, engineers, and technical 
                personnel;
                  (B) the amount of total compensation paid each 
                employee hired under the authority each calendar year; 
                and
                  (C) whether additional safeguards or measures are 
                necessary to carry out the authority and, if so, what 
                action, if any, has been taken to implement the 
                safeguards or measures.
  (d) Termination of Effectiveness.--The authority provided by this 
section terminates effective on the date that is 4 years after the date 
of enactment of this Act.

SEC. 7. REEMPLOYMENT OF CIVILIAN RETIREES.

  (a) In General.--The Secretary may waive the application of section 
8344 or 8468 of title 5, United States Code, on a case-by-case basis, 
for the employment of an annuitant in a position if the employment of 
the individual is necessary to carry out a critical function of the 
Department for which the Department has encountered exceptional 
difficulty in recruiting or retaining suitably qualified candidates.
  (b) Limitation.--An annuitant employed under the authority granted by 
subsection (a) shall not be considered an employee for purposes of 
subchapter III of chapter 83 and chapter 84 of title 5, United States 
Code.
  (c) Limitation on Term.--The term of employment of any individual 
hired under subsection (a) may not exceed an initial term of 2 years, 
with an additional 2-year appointment under exceptional circumstances.
  (d) Termination of Effectiveness.--The authority provided by this 
section terminates effective on the date that is 4 years after the date 
of enactment of this Act.

SEC. 8. DEFINITION OF NATIONAL LABORATORY.

  Section 2(3) of the Energy Policy Act of 2005 (42 U.S.C. 15801(3)) is 
amended by striking subparagraph (P) and inserting the following:
                  ``(P) SLAC National Accelerator Laboratory.''.

                                Purpose

    The purpose of S. 1160 is to improve the administration of 
the Department of Energy through a variety of measures intended 
to improve the Department's long-term budget planning, expand 
its authority to enter into non-traditional transactions, and 
enhance its ability to hire qualified scientists and engineers 
to perform critical functions.

                      Summary of Major Provisions

    Section 3 of S. 1160 improves the Department of Energy's 
long-term budget planning by requiring the Secretary of Energy 
to submit to Congress each year, in conjunction with the 
Department's annual budget request, a ``future years Department 
of Energy program,'' consisting of estimated expenditures and 
proposed appropriations for both the fiscal year covered by the 
annual budget request and for four or more succeeding fiscal 
years.
    Section 4 makes permanent the Department's temporary 
authority to enter into so-called ``other transactions,'' 
outside of traditional Federal procurement requirements, and 
expands that authority from research, development, and 
demonstration projects to any function vested in the Secretary 
of Energy.
    Section 5 affirms that the Department may protect from 
public disclosure certain commercial and financial information 
it obtains from private entities conducting research and 
development activities for the Department.
    Sections 6 enhances the Secretary's ability to hire 
exceptionally well qualified individuals to fill up to 120 
critical positions outside of the competitive service and to 
pay them at Executive Schedule rates of pay.
    Section 7 further enhances the Secretary's hiring authority 
by authorizing him to waive the federal annuity offset, on a 
case-by-case basis, to enable the Department to reemploy 
federal retirees to fill critical positions the Department has 
had exceptional difficulty filling.

                          Background and Need

    The Department of Energy was established in 1977 to ensure 
the coordinated and effective administration of Federal energy 
policy and programs. As the President's Council of Advisors on 
Science and Technology has recently affirmed, ensuring a 
``clean, secure, safe and affordable energy future'' remains 
one of the ``preeminent challenges facing the United States. . 
. .''\1\ To meet this challenge, the Department needs the 
proper tools to effectively and efficiently plan, implement, 
and staff its energy programs.
---------------------------------------------------------------------------
    \1\President's Council on Advisors on Science and Technology, 
Accelerating the Pace of Change in Energy Technologies Through an 
Integrated Federal Energy Policy at vii (Nov. 2010).
---------------------------------------------------------------------------

                          FUTURE-YEARS PROGRAM

    Like other executive departments, the Department of Energy 
is funded through annual appropriations acts. Its programs, 
however, necessarily span many years. Better tools are needed 
to help both the Department and Congress assess future funding 
needs and establish priorities among competing programs over 
the long term.
    The Department of Defense has used long-term capital 
planning to assist its policy makers in managing defense 
spending since 1962. The military services and other Defense 
Department components must annually develop budget projections 
for their programs for both the budget year for which funds are 
being requested and for at least four succeeding years, and 
submit them to the Office of the Secretary of Defense. In 1987, 
Congress statutorily directed the Secretary of Defense to 
submit these projections, known as the ``future-years defense 
program,'' to Congress in conjunction with the President's 
budget. 10 U.S.C. Sec. 221. In addition, in 2002, Congress 
directed the Department of Homeland Security to develop a 
``Future Years Homeland Security Program'' modeled after the 
future-years defense program. 6 U.S.C. Sec. 454. The Government 
Accountability Office has also recommended executive 
departments use long-term capital plans to help establish long-
term budget priorities.\2\
---------------------------------------------------------------------------
    \2\GAO, Executive Guide: Leading Practices in Capital Decision-
Making, GAO/AIMD-99-32 at 46-47 (Dec. 1998).
---------------------------------------------------------------------------

                      OTHER TRANSACTIONS AUTHORITY

    The Department of Energy carries out energy research and 
development through contracts, grants, or cooperative 
agreements with universities and other educational 
institutions, nonprofit organizations, and other private 
companies. Section 646(a) of the Department of Energy 
Organization Act generally authorizes the Department of Energy 
to enter into and perform contracts, cooperative agreements, 
and similar transactions to carry out its functions. 42 U.S.C. 
Sec. 7256(a). But the use of these traditional instruments are 
subject to the Federal Acquisition Regulation and numerous 
other statutory and regulatory procurement requirements, which 
deter many non-government entities from working with the 
Department.
    To address this situation, section 1007 of the Energy 
Policy Act of 2005 added a new subsection (g) to section 646 of 
the Department of Energy Organization Act, which gives the 
Secretary of Energy authority to enter into ``other 
transactions,'' that is, transactions other than traditional 
contracts, grants, and cooperative agreements, to perform 
energy research, development, and demonstration projects. 42 
U.S.C. Sec. 7256(g).
    Although Congress has never defined ``other transactions 
authority,'' the authority has a long history. It was first 
given to the National Aeronautics and Space Administration in 
1958,\3\ and has since been given to the Department of 
Defense,\4\ the Federal Aviation Administration,\5\ the 
Department of Transportation,\6\ the Department of Homeland 
Security,\7\ the Transportation Security Administration,\8\ the 
National Institutes of Health,\9\ the Advanced Research 
Projects Agency-Energy,\10\ and the head of any executive 
agency that engages in research and development projects that 
have the potential to facilitate defense against or recovery 
from terrorism or nuclear, biological, chemical, or 
radiological attack.\11\
---------------------------------------------------------------------------
    \3\NASA's other transactions authority, which was conferred by 
section 203(b)(5) of the National Aeronautics and Space Act of 1958, 
was subsequently repealed by Public Law 111-314 in 2010. 42 U.S.C. 
Sec. 2473 note.
    \4\10 U.S.C. Sec. 2371.
    \5\49 U.S.C. Sec. 106(l)(6).
    \6\The Department of Transportation's other transactions authority, 
which was conferred by section 5102 of Public Law 105-178 in 1998, was 
subsequently repealed by Public Law 109-59 in 2005. 23 U.S.C. Sec. 502 
note.
    \7\6 U.S.C. Sec. 391(a)(1).
    \8\49 U.S.C. Sec. 114(m)(1).
    \9\Department of Health and Human Services Appropriations Act, 
2004, Public Law 108-199 Sec. 221(a).
    \10\42 U.S.C. Sec. 16538(f).
    \11\41 U.S.C. Sec. 1904(a)(1).
---------------------------------------------------------------------------
    Congress originally granted the Secretary of Energy other 
transactions authority only until September 30, 2010. The 
National Defense Authorization Act for Fiscal Year 2011 
extended the Secretary's authority until September 30, 2015, at 
which time it will expire unless Congress extends it again.\12\
---------------------------------------------------------------------------
    \12\42 U.S.C. Sec. 7256(g).
---------------------------------------------------------------------------

                   PROTECTION OF CERTAIN INFORMATION

    As already noted, the Department of Energy relies heavily 
upon educational institutions, nonprofit organizations, and 
private companies to conduct the research, development, and 
demonstration projects needed to develop new energy 
technologies. In awarding and administering contracts, grants, 
cooperative agreements, and other transactions with these 
entities, the Department must collect various classes of 
commercial and financial information from those entities, which 
could, if released by the Department, result in commercial or 
financial harm to the entity providing it.
    Congress recognized the tension between the interests of 
the Government in collecting commercial and financial 
information from private entities and the interests of those 
entities in keeping their information confidential when it 
enacted the Freedom of Information Act. Although the Act adopts 
a policy of broad disclosure, it establishes nine specific 
exemptions, including one that shields from disclosure ``trade 
secrets and commercial or financial information obtained from a 
person and privileged or confidential.'' 5 U.S.C. 
Sec. 552(b)(4). Applying this exemption, the courts have noted 
that it serves the dual purpose of encouraging cooperation with 
the Government by persons having information useful to 
officials, and protecting ``persons who submit financial or 
commercial data to government agencies from the competitive 
disadvantages which would result from its publication.''\13\
---------------------------------------------------------------------------
    \13\National Parks and Conservation Association v. Morton, 498 F.2d 
765, 768 (D.C. Cir. 1974).
---------------------------------------------------------------------------
    In spite of the commercial information exemption afforded 
by the Freedom of Information Act, some entities that must 
provide information to the Department are still uneasy, and it 
may bear repeating that the Secretary is authorized to protect 
commercial or financial information from disclosure.

                       CRITICAL HIRING AUTHORITY

    The Department of Energy must be able to recruit and retain 
the best and brightest scientists and engineers if it is to 
develop the innovative energy technologies needed to secure 
America's future. Recognizing this, in 1977, Congress gave the 
Secretary authority to appoint up to 511 scientific, 
engineering, profession, and administrative personnel without 
regard to the civil service laws, and to pay them up to the 
maximum amount then provided under the general pay 
schedule.\14\ 42 U.S.C. Sec. 7231(b) and (d). The Secretary's 
authority with respect to 311 of these positions (under 42 
U.S.C. Sec. 7231(b)) expired in 1981. His authority with 
respect to the remaining 200 positions (under 42 U.S.C. 
Sec. 7231(d)) is still in effect.
---------------------------------------------------------------------------
    \14\The Department of Energy Organization Act refers to ``the 
maximum rate payable for GS-18 of the General Schedule under section 
5332 of title 5, United States Code.'' 42 U.S.C. 7231 (b) and (d). 
Section 101(c)(1) of the Federal Employees Pay Comparability Act of 
1990 (section 529 of Public Law 101-509), however, provides that any 
reference to the rate of pay for grade GS-18 ``shall be considered a 
reference to the maximum rate payable under section 5376'' of title 5. 
Section 5376, in turn, provides that the maximum rate of pay shall not 
be greater than the rate of basic pay payable for level III of the 
Executive Schedule. 5 U.S.C. 5376(b)(1)(B). The rate of basic pay for 
Level III of the Executive Schedule for 2011 and 2012 is $165,300.
---------------------------------------------------------------------------
    In addition, in 2007, Congress gave the Director of the 
Advanced Research Projects Agency-Energy authority to appoint 
up to 120 scientific, engineering, and professional personnel 
without regard to the civil service laws and to pay them up to 
Level II of the Executive Schedule. 42 U.S.C. Sec. 16538(g)(3).
    Except as provided in these two provisions, the 
Department's ability to recruit exceptionally well qualified 
individuals to fill critical scientific, engineering, and 
technical positions is restricted by the civil service laws.

                       REHIRING CIVILIAN RETIREES

    The civil service laws generally discourage retired federal 
employees receiving a federal retirement annuity from returning 
to work with a federal agency by requiring the agency to deduct 
from the employee's pay a sum equal to the amount of the 
employee's annuity payment. 5 U.S.C. 8344 and 8468. The Federal 
Employees Pay Comparability Act of 1990 authorized the Office 
of Personnel Management to waive the annuity offset 
requirement, ``on a case-by-case basis[,] for employees in 
positions for which there is exceptional difficulty in 
recruiting or retaining a qualified employee.'' 5 U.S.C. 
Sec. 8344(i)(1)(A) and Sec. 8468(f)(1)(A). In addition, it 
authorized the Office of Personnel Management to delegate 
authority to agency heads to grant waivers, ``on a case-by-case 
basis, for an employee serving on a temporary basis, but only 
if, and for so long as, the authority is necessary due to an 
emergency involving a direct threat to life or property or 
other unusual circumstances.'' 5 U.S.C. Sec. 8344(i)(1)(B) and 
Sec. 8468(f)(1)(B). The Office of Personnel Management has 
adopted regulations that provide for the possibility of 
granting waivers on the grounds of ``other unusual 
circumstances'' that do not rise to the level of a true 
emergency, but the requesting agency must provide justification 
describing the unusual circumstances. 5 C.F.R. 553.201(f).

                          NEED FOR LEGISLATION

    S. 1160 is needed to improve the Department's long-term 
budget planning, to extend its other transactions authority, to 
affirm its authority to protect certain commercial and 
financial information from public disclosure, and to give the 
Department additional flexibility to recruit exceptionally well 
qualified individuals for critical scientific, engineering, or 
technical positions and rehire civilian retirees.

                          Legislative History

    S. 1160 was introduced by Senator Bingaman, for himself and 
Senator Murkowski, on June 8, 2011. The Committee on Energy and 
Natural Resources held a hearing on the bill on July 12, 2011. 
The Committee ordered the bill favorably reported with an 
amendment in the nature of a substitute at its business meeting 
on December 15, 2011.
    Similar legislation was contained within the American Clean 
Energy Leadership Act of 2009 (S. 1462), an original bill 
reported by the Committee on Energy and Natural Resources 
during the 111th Congress. S. Rept. 111-48. Sections 436 
(direct hire authority), 437 (critical pay authority), 438 
(reemployment of civilian retirees), 471 (other transactions 
authority), 472 (definition of national laboratory), and 473 
(protection of results) of S. 1462 were incorporated in S. 
1160, as sections 6, 7, 8, 4, 9, and 5, respectively, as the 
bill was originally introduced. The Senate took no further 
action on S. 1462 after it was reported.
    Legislation calling for the Secretary of Energy to submit 
``future-years energy programs,'' similar to those required by 
section 3 of S. 1160 was also reported by the Committee on 
Appropriations as section 304 of Energy and Water Development 
and Related Agencies Appropriations Act, 2012 (H.R. 2354; S. 
Rept. 112-75), which was enacted as part of the Consolidated 
Appropriations Act, 2012, Public Law 112-74.

                        Committee Recommendation

    The Senate Committee on Energy and Natural Resources, in 
open business session on December 15, 2011, by a voice vote of 
a quorum present, recommends that the Senate pass S. 1160, if 
amended as described herein.

                          Committee Amendment

    The Committee adopted an amendment in the nature of a 
substitute during its consideration of S. 1160. The substitute 
eliminates the two sections on direct hiring and critical pay 
authorities (sections 6 and 7 in the bill as introduced) and 
replaces them with a single new section authorizing the 
Secretary to appoint exceptionally well qualified individuals 
to scientific, engineering, or other critical technical 
positions (section 6 of the committee amendment). As 
introduced, the bill would have authorized the Secretary to 
appoint an unspecified number of highly qualified personnel 
into the competitive service without regard to the competitive 
hiring provisions of the civil service laws and, in addition, 
to appoint up to 40 employees to ``critical positions'' and to 
pay them up to the amount payable to the Vice President 
(currently $230,700 per year). The amendment eliminates the 
direct hiring authority and authorizes the Secretary to appoint 
up to 120 exceptionally well qualified individuals in the 
excepted service,\15\ and to pay them up to the amount payable 
to the Vice President. The substitute limits to four years both 
the duration of any appointment made under the new authority 
and the Secretary's authority to appoint and compensate 
employees under the new authority. The substitute also adds 
provisions requiring that the Secretary exercise the authority 
consistent with the merit principles of the civil service laws, 
seek a diverse personnel pool, and report to Congress on his 
use of the authority. In addition, the substitute clarifies 
section 5 to remove any implication that the provision extended 
to information obtained from Federal agents or employees, 
renumbers and clarifies the section on the reemployment of 
civilian retirees, and renumbers the final section.
---------------------------------------------------------------------------
    \15\As used in the civil service laws, the term ``competitive 
service'' refers to positions filled the Office of Personnel 
Management's competitive hiring process; the term ``excepted service'' 
refers to positions filled outside the competitive service.
---------------------------------------------------------------------------

                      Section-by-Section Analysis

    Section 1 provides a short title.
    Section 2 defines key terms.
    Section 3 adds a new section 664 to the Department of 
Energy Organization Act. The new section 664 requires the 
Secretary of Energy to submit to Congress, annually, in 
connection with the President's annual budget, a ``future-years 
Department of Energy program'' covering both the fiscal year 
for which the budget is submitted and at least the next 4 
years.
    Section 4(a) amends the Secretary of Energy's ``other 
transactions authority'' in section 646(g) of the Department of 
Energy Organization Act by striking the current provision and 
replacing it with new text. Under current law, the Secretary 
may enter into other transactions ``subject to the same terms 
and conditions as the Secretary of Defense under section 2371 
of title 10, United States Code,'' except as otherwise 
provided. The new provision prescribes the terms and conditions 
governing the Secretary's use of the other transactions 
authority directly, rather than by reference to the Secretary 
of Defense's authority.
    Paragraph (1) of the new text expands the Secretary's 
authority to enter into other transactions. Under current law, 
the Secretary may use the authority only to carry out research, 
development, and demonstration projects. The new provision 
authorizes the Secretary to enter into other transactions to 
further any function vested in the Secretary.
    Paragraph (2) expressly authorizes the Secretary to enter 
into other transactions without regard to the Advance Payments 
Act, which otherwise prohibits payment for goods or services 
before they are received. Current law waives the Advance 
Payments Act indirectly: section 2371(c) of title 10 of the 
United States Code permits the Secretary of Defense to enter 
into other transactions without regard to the Advance Payments 
Act, and section 646(g)(1) authorizes the Secretary of Energy 
to enter into other transactions subject to the same terms and 
conditions as the Secretary of Defense under section 2371. 
Paragraph (2) waives the Advance Payments Act directly.
    Paragraph (3) reenacts section 646(g)(3) of current law, 
which waives certain provisions of law vesting title to 
inventions, patents, and discoveries resulting from research 
sponsored by the Department in the United States.
    Paragraph (4) affirms that the Secretary may protect from 
disclosure certain confidential business information submitted 
in conjunction with a transaction authorized under subsection 
(1). Paragraph (4) confers directly authority the Secretary 
already may exercise indirectly by way of section 2371(i) of 
title 10.
    Paragraph (5)(A) requires the Secretary to use such 
competitive, merit-based selection procedures as he determines 
to be practicable, and reenacts section 646(g)(4)(A) of current 
law.
    Paragraph (5)(B) requires the Secretary to determine that 
the use of a standard contract, grant, or cooperative agreement 
is neither feasible nor appropriate before entering into a 
transaction under paragraph (1), and generally reenacts section 
646(g)(4)(B) of current law.
    Paragraph (5)(C) subjects transactions under paragraph (1) 
to the cost sharing requirements of section 988 of the Energy 
Policy Act of 2005, which requires 20 percent of the cost of 
research and development projects and 50 percent of the cost of 
demonstration and commercial application projects to come from 
non-federal sources.
    Paragraph (5)(D) reenacts section 646(g)(9) of current law, 
which permits the Secretary to delegate the authority to enter 
into transactions under paragraph (1) only to officers 
appointed by the President and confirmed by the Senate. 
Paragraph 5(D) adds the further restriction that this authority 
may not be redelegated to others.
    Paragraph (6) requires the Secretary to report to Congress 
annually on his use of the other transactions authority. The 
Secretary must currently submit annual reports to Congress by 
way of section 646(g)(7) and 10 U.S.C. 2371(h).
    Paragraph (7) requires the Comptroller General to submit 
biennial reports to Congress on the Secretary's use of the 
other transactions authority.
    Finally, section 4(a) makes the Secretary's other 
transactions authority permanent by repealing, and not 
reenacting, section 646(g)(10), which would otherwise terminate 
the Secretary's current authority on September 30, 2015.
    Section 4(b) provides that the policies and procedures 
adopted the Department to implement the other transactions 
authority under current law remain applicable to other 
transactions entered into under the law as amended.\16\
---------------------------------------------------------------------------
    \16\The Department's implementing regulations were published at 71 
Fed. Reg. 27158 (May 9, 2006), and are codified at 10 C.F.R. Part 603.
---------------------------------------------------------------------------
    Section 5 affirms the Secretary's authority to withhold 
from public disclosure for up to five years information of the 
kind protected from disclosure under exemption 4 of the Freedom 
of Information Act that the Department receives from a non-
federal source in connection with a transaction relating to 
research, development, demonstration, or commercial 
application. Exemption 4 protects ``trade secrets and 
commercial or financial information obtain from a person [that 
is] privileged or confidential.'' 5 U.S.C. 552(b)(4). Section 
5, which applies to information received in connection with any 
transaction entered into by the Secretary relating to research, 
development, demonstration, or commercial application, 
supplements section 646(g)(4), as amended by section 4(a) of S. 
1160, which only protects information submitted to the 
Department in connection with a transaction entered into by the 
Secretary under the other transactions authority in section 
646(g).
    Section 6(a) authorizes the Secretary to appoint 
exceptionally well qualified individuals to scientific, 
engineering, or other critical technical positions in the 
excepted service, without regard to the competitive service 
requirements of the civil service laws.
    Subsection (b)(1) limits the number of critical positions 
that may be filled under section 6 to 120 at any one time.
    Subsection (b)(2) limits the term of an appointment under 
section 6 to not more than four years.
    Subsection (b)(3) provides that no one employed by the 
Department within the precedingtwo years may be appointed under 
section 6.
    Subsection (b)(4)(A) authorizes the Secretary to fix the 
basic pay of employees appointed under section 6 at a rate up 
to level I of the Executive Schedule (currently $199,700).
    Subsection (b)(4)(B) caps the total annual compensation for 
employees appointed under section 6 at the highest total annual 
compensation payable to the Vice President (currently 
$230,700).
    Subsection (b)(5) makes employees appointed under section 6 
ineligible for civil service protections against removal, 
suspension, reduction in pay or grade, and furloughs.
    Subsection (c) requires the Secretary to exercise the 
authority under section 6 consistent with civil service merit 
principles, to seek a diverse personnel pool, and to report to 
Congress on the use of the authority under section 6 within two 
years of the date of enactment.
    Subsection (d) terminates the Secretary's authority under 
the section four years after the date of enactment.
    Section 7(a) authorizes the Secretary to waive the 
requirement that the salary of any civilian retiree reemployed 
by the Department be offset by the amount of the retiree's 
retirement annuity if the employment of the retiree is 
necessary to carry out a critical function of the Department 
for which the Department has encountered exceptional difficulty 
in recruiting or retaining suitably qualified candidates.
    Subsection (b) makes retirees employed under section 7(a) 
ineligible for retirement coverage under the Civil Service 
Retirement and Federal Employees Retirement Systems.
    Subsection (c) limits the term of employment for any 
retiree rehired under section 7(a) to an initial term of two 
years, with an additional two-year appointment under 
exceptional circumstances.
    Subsection (d) terminates the Secretary's authority to 
waive the annuity offset requirement four years after the date 
of enactment.
    Section 8 amends the definition of ``national laboratory'' 
in section 2(3) of the Energy Policy Act of 2005, 42 U.S.C. 
Sec. 15801(3), to reflect the fact that the Stanford Linear 
Accelerator Center was renamed the SLAC National Accelrator 
Laboratory in 2008.

                   Cost and Budgetary Considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

S. 1160--Department of Energy Administrative Improvement Act of 2011

    Summary: S. 1160 would make several changes related to 
administrative functions of the Department of Energy (DOE). 
Assuming appropriation of necessary funds, CBO estimates that 
implementing S. 1160 would cost $30 million over the 2012-2017 
period. The bill would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    S. 1160 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1160 is shown in the following table. 
The costs of this legislation fall within budget function 270 
(energy).

----------------------------------------------------------------------------------------------------------------
                                                             By fiscal year, in millions of dollars--
                                                ----------------------------------------------------------------
                                                   2012     2013     2014     2015     2016     2017   2012-2017
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level..................        2        4        6        6        6        6        30
Estimated Outlays..............................        2        4        6        6        6        6        30
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: CBO estimates that increased costs under 
S. 1160 would stem primarily from a provision that would 
authorize the Secretary of Energy to hire up to 120 highly 
skilled individuals and to pay them higher salaries than the 
Secretary otherwise could offer under current law. According to 
DOE, that provision would permit the agency to spend an average 
of about $50,000 more for compensation and benefits for such 
individuals. Based on information from DOE about the 
anticipated use of that authority, CBO estimates that increased 
costs under this provision would total $2 million in 2012 and 
$30 million over the 2012-2017 period.
    S. 1160 also would require DOE to prepare annual reports to 
the Congress detailing long-term funding needs, expand and make 
permanent the agency's authority to enter into certain types of 
transactions, specify procedures related to the disclosure of 
certain information, and waive a requirement to reduce certain 
employees' salaries by the amount of any income they receive 
from federal annuities. Based on information from DOE, CBO 
estimates that any increased costs under those provisions, 
which would be subject to appropriation, would total less than 
$500,000 annually.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 1160 
contains no intergovernmental mandates as defined in UMRA and 
would impose no costs on state, local, or tribal governments.
    Estimate prepared by: Federal Costs: Megan Carroll; Impact 
on State, Local, and Tribal Governments: Ryan Miller; Impact on 
the Private Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1160.
    The bill is not a regulatory measure in the sense of 
imposing Government established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1160.

                   Congressionally Directed Spending

    S. 1160, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        Executive Communications

    The testimony provided by the Department of Energy at the 
Committee's July 12, 2011, hearing is set forth below:

Statement of Steven G. Chalk, Deputy Assistant Secretary for Renewable 
Energy, Office of Energy Efficiency and Renewable Energy, Department of 
                                 Energy

    Chairman Bingaman, Ranking Member Murkowski and Members of 
the Committee, thank you for the opportunity to discuss the 
Department of Energy's (DOE's) solar and geothermal energy 
programs. Today, I am pleased to discuss the Department's 
perspective and answer questions related to the Department of 
Energy Administrative Improvement Act (S. 1160), the 10 Million 
Solar Roofs Act of 2011 (S. 1108) and the Geothermal 
Exploration and Technology Act of 2011 (S. 1142). However, the 
Administration is still reviewing these bills and we do not 
have a position on any of them at this time.


                            solar technology


    We thank the committee and the sponsors of this legislation 
for your strong leadership on solar technologies over the 
years. The Department has set an ambitious goal for solar 
energy with the SunShot Initiative (SunShot)--to reduce the 
total costs of solar energy systems by about 75 percent so that 
they are cost competitive with other forms of energy without 
subsidies before the end of the decade. In 2012, under SunShot, 
the Department will support solar research across the 
development pipeline, from basic photovoltaic (PV) cell 
technologies to manufacturing scale-up to total system 
development.
    Reducing the total installed cost for utility-scale solar 
electricity to roughly 6 cents per kilowatt hour without 
subsidies will result in rapid, large-scale adoption of solar 
electricity across the United States. Reaching this goal will 
help re-establish American technological leadership, improve 
the nation's energy security, and strengthen U.S. economic 
competitiveness in the global clean energy race.
    SunShot takes a unique approach to developing solar energy. 
Historically, solar investments focused on achieving 
incremental efficiency improvements to solar cells and arrays. 
SunShot focuses on reducing the installed cost of the system as 
a whole, including non-technical barriers. In addition to 
investing in improvements in cell technologies and 
manufacturing, the SunShot Initiative also focuses on steps to 
reduce installation and permitting costs, which account for 40 
percent of the total installed system price of solar 
electricity.\1\ This includes efforts to streamline and 
digitize local permitting processes and to develop codes and 
standards that ensure high performance over the approximately 
20-year lifetime of residential solar products. Decreasing the 
installed cost of solar is one of the key goals of SunShot.
---------------------------------------------------------------------------
    \1\http://www1.eere.energy.gov/solar/sunshot/pdfs/
dpw_white_paper.pdf.
---------------------------------------------------------------------------
    As the United States is the world's largest consumer of 
electricity and, at the same time, has the largest solar 
resource of any industrialized country, SunShot is well 
positioned to help the Nation realize the significant benefits 
from the wide-scale use of solar energy. SunShot underscores 
solar energy's benefits to the United States and will have 
multiple positive impacts for the country, including:
     LAchieving solar energy cost parity with baseload 
energy rates. Attaining a total installed system cost of 
utility solar equivalent to the wholesale cost of electricity 
from fossil fuels ($0.06 per kWh) would likely result in rapid 
and large-scale adoption of solar electricity across the United 
States
     LIncreasing solar photovoltaic market share. As 
recently as 1995, the United States manufactured 43 percent of 
the world's PV materials, whereas today our manufacturers are 
only responsible for 6 percent.\2\ Expanding the use of solar 
will help boost the U.S. solar manufacturing industry while 
driving innovation and providing long lasting, domestic jobs to 
support global PV demand that will represent a multibillion 
dollar industry.
---------------------------------------------------------------------------
    \2\PV News (2/1993, 3/2001, 3/2006) and Navigant Consulting (2/
2011).
---------------------------------------------------------------------------
     LReducing greenhouse gas emissions--Solar 
technologies have the potential to significantly reduce the 
amount of conventional fossil-based electricity generation 
necessary, which in turn would reduce the amount of greenhouse 
gases emitted into the atmosphere.
    Recently, as part of ongoing Market Transformation 
activities, DOE announced a Funding Opportunity Announcement 
(FOA) which we are calling the ``Race to the Rooftop'' to help 
standardize, streamline and digitize the permitting process, 
while improving interconnection and net metering standards, 
increasing access to financing, and updating planning and 
zoning codes. This national competition engaging teams of local 
and state governments along with utilities, installers, and 
nongovernment organizations, will help standardize processes, 
cut upfront fees and paperwork, and reduce the overall costs 
associated with permitting and installation, making it easier 
and cheaper for homeowners, businesses, and their local 
communities to deploy solar energy. The standardization and 
uniformity of local permitting efforts under the ``Race to the 
Rooftop'' are similar to the challenge grant provision in the 
10 Million Solar Roofs Act, which calls for applicants to 
develop best practices for solar permitting.
    The proposed legislation, S. 1108, employs a bottom-up 
approach so that local teams can identify approaches best-
suited for them. A bottom-up approach, coupled with a 
preference for applicants that have partnered with states, 
public utility commissions, or other stakeholders, could allow 
for local and regional variability while still increasing the 
speed and scale of installation across large geographic areas. 
This approach could also allow states to expand existing state 
programs that have been effective in promoting rooftop solar 
installations.


                         geothermal technology


    The Department is committed to developing and deploying a 
portfolio of innovative technologies for clean, domestic 
geothermal power generation. Geothermal energy is a baseload 
energy resource with a small environmental footprint and emits 
little to no greenhouse gases.
    Despite geothermal's enormous potential, in 2010, only 15 
MW of new geothermal power generation was added to the grid in 
the United States. There are two principal barriers facing the 
geothermal industry: the high cost and risk of exploration and 
most of the identified hydrothermal resources have already been 
developed.
    Drilling costs represent approximately 42 percent of 
geothermal project development costs, and financing costs are 
significantly higher for exploratory drilling than for plant 
construction.\3\ Removing the obstacles to exploratory drilling 
is vitally important to increasing our geothermal power 
generation capacity. In many cases, geothermal resources have 
no surface expression, leaving our nation's hydrothermal 
potential--estimated at 30 GWe by the U.S. Geological Survey--
untapped and inaccessible. Exploratory drilling could also 
identify resources for enhanced geothermal systems (EGS), which 
have the potential to produce 16,000 GWe of power in a wide 
range of geographic areas throughout the U.S.\4\
---------------------------------------------------------------------------
    \3\http://www.nrel.gov/applying_technologies/pdfs/46022.pdf.
    \4\Augustine, Young, and Anderson, Updated U.S. Geothermal Supply 
Curve, National Renewable Energy Laboratory and U.S. Department of 
Energy, February, 2010, http://www.nrel.gov/docs/fy10osti/47458.pdf.
---------------------------------------------------------------------------
    Under the American Recovery and Reinvestment Act of 2009 
(Recovery Act), DOE invested $97.3 million in 24 hydrothermal 
exploration projects, at which 34 exploration wells are 
planned. It is expected that from these wells, 400 MW of new 
resources will be confirmed by 2014.
    DOE is also funding seven EGS demonstrations. At Desert 
Peak, Nevada, the initial stages of reservoir stimulation were 
successfully completed--a critical milestone in creating an 
enhanced geothermal reservoir.
    DOE supports projects in low temperature geothermal 
resources as well. For example, DOE is working with industry to 
develop and field test a variable phase turbine which has the 
potential to generate 30 percent more power from low 
temperature geothermal resources than current power conversion 
technologies, at a lower cost.
    DOE's National Geothermal Data System (NGDS) effort is a 
distributed information system for data sharing in its second 
year of development, which will enable the availability of 
comprehensive and accurate data to facilitate geothermal 
development. The NGDS is scheduled to be fully operational in 
August 2014, at which time it will make geothermal data from 
major geothermal centers, DOE-funded geothermal projects and 
state geological surveys or universities publicly available.\5\
---------------------------------------------------------------------------
    \5\NGDS data sources include: DOE Geothermal Data Repository (Boise 
State University); Energy & Geoscience Institute (University of Utah); 
Geo-Heat Center (Oregon Institute of Technology); Stanford Geothermal 
Program (Stanford University); Great Basin Science Sample and Records 
Library y (University of Nevada, Reno); SMU Geothermal Laboratory 
(Southern Methodist University); and state geological surveys 
represented by Arizona Geological Survey and the American Association 
of State Geologists (AASG).
---------------------------------------------------------------------------
    Geothermal heat pumps (GHPs) for building applications also 
face barriers impeding greater marketplace adoption: high 
initial cost associated with the installation of the ground 
loop heat-exchanger, lack of consumer knowledge in GHP 
benefits, and limitations in GHP design and business planning 
infrastructure. DOE is developing a roadmap that will serve to 
strategically direct activities in geothermal heat pumps.
    Through the Recovery Act, DOE currently funds 26 projects 
deploying geothermal heat pumps. $24M of the $58M Recovery Act 
funds allocated to GHPs have been spent in 15 states in both 
new and retrofit applications. Two projects are completed and 
several more are already providing data for performance 
analysis. The Recovery Act projects incorporate innovative 
business and financial strategies and/or GHP technologies and 
applications designed to overcome the initial cost premium that 
has prevented GHPs from being directly cost-competitive with 
other HVAC technologies, and from gaining wider marketplace 
acceptance.
    DOE currently has projects in many of the areas identified 
for further RD&D and commercial application in S. 1142, 
including district heating and cooling at large institutions, 
use of hot water in shaft mines, combined GHP-solar PV and 
desiccant projects, and use of carbon dioxide as a refrigerant 
fluid for heat exchange.
    The Department is also addressing other obstacles to 
geothermal development such as delays in the siting and 
permitting process which increase overall project costs and 
could further strain economics. Currently, it takes 
approximately seven years for a new geothermal project to move 
from exploration to power generation.
    While the Administration is still reviewing the bill, there 
are serious technical concerns that would need to be addressed. 
Any new program should be consistent with applicable laws, and 
structured to mitigate risks and costs to the taxpayer.


      s. 1160--department of energy administrative improvement act


    S. 1160 proposes a variety of changes intended to improve 
the administration of the Department of Energy. The Department 
is still reviewing this bill and does not have a position on it 
at this time. However, I will address Sections 4, 6, and 7 as 
they relate to the Department's current authority.
Section 4
    Section 4 of S. 1160 concerns the administration of the 
Department's ``Other Transactions'' (OT) Authority. Section 4 
is similar in many respects to DOE's current OT Authority, 
which is codified at Section 646(g) of the DOE Organization Act 
(42 U.S.C. 7256(g)). However, there are some important 
differences.
    Currently, the Department has two kinds of OT Authority: 
Research OT Authority and Prototype OT Authority. Research OT 
Authority is used to carry out a public purpose of support or 
stimulation (e.g., RD&D projects). By contrast, Prototype OT 
Authority is used for the pre-acquisition development of 
technology prototypes. Such prototypes are used to evaluate the 
technical or manufacturing feasibility or utility to DOE's 
mission of a particular technology, process, concept, end item, 
or system.
    Section 4 provides DOE with permanent and independent OT 
Authority similar to the authority Congress provided the 
Defense Department in 1991. However, the precise scope of DOE's 
OT Authority is left undefined in S. 1160.
    Additionally, Section 4 of S. 1160 requires the Secretary 
to determine that ``the use of a standard contract, grant, or 
cooperative agreement for the project is not feasible or 
appropriate'' before the Department's OT Authority can be used. 
Section 4 restricts the delegation of this authority to 
officials ``appointed by the President and confirmed by the 
Senate.''
Section 6 and 7
    Section 6 of S. 1160 provides the Secretary with direct 
hire authority for ``highly qualified scientists, engineers, or 
critical technical personnel'' for two years following the 
enactment of the Act. Similarly, Section 7 provides the 
Secretary with special hiring and pay authority for persons 
with ``expertise in an extremely high level in a scientific or 
technical field.'' The Secretary's authority under Section 7 is 
permanent, but not more than 40 persons may be hired under this 
authority at any time.
    Sections 6 and 7 are analogous to Sections 621(b) and (d) 
of the DOE Organization Act (42 U.S.C. Sec. 7231(b)-(d)). 
Section 621(b), which expired after four years, allowed the 
Secretary to appoint 311 scientific, engineering, and 
administrative personnel without regard to civil service laws 
and to fix their compensation at ``super grades'' (formerly GS-
18, now Executive Level IV). Section 621(d), which is still in 
effect, authorizes the Secretary to appoint 200 scientific, 
engineering, professional, and administrative staff without 
regard to civil service laws, but subject to a GS-18 pay cap 
(now Executive Level IV).
    Additionally, Congress granted the Department's ARPA-E 
program special hiring authority. The Director of ARPA-E has 
the authority to make appointments of scientific, engineering, 
and professional personnel ``without regard to the civil 
service laws,'' ``fix the basic pay of such personnel'' up to 
Level II of the Executive Schedule, and provide ``additional 
payments'' up to a certain cap.


                               conclusion


    In conclusion, I would like to again thank this Committee 
for its leadership in supporting both solar and geothermal 
energy technologies.
    It is important to tap valuable assets like solar and 
geothermal energy to continue growing our economy to expand the 
Nation's clean energy portfolio and energy security.
    I would be pleased to address any questions the Committee 
might have.

                        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 S. 1160, as ordered 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):

                 DEPARTMENT OF ENERGY ORGANIZATION ACT


                    Public Law 95-91--August 4, 1977


 An Act To establish a Department of Energy in the executive branch by 
 the reorganization of energy functions with the Federal Government in 
 order to secure effective management to assure a coordinated national 
energy policy, and for other purposes.

           *       *       *       *       *       *       *


TABLE OF CONTENTS

           *       *       *       *       *       *       *



                  TITLE VI--ADMINISTRATIVE PROVISIONS

          * * * * * * *

               PART C--GENERAL ADMINISTRATIVE PROVISIONS

          * * * * * * *

SEC. 663. ANNUAL ASSESSMENT AND REPORT ON VULNERABILITY OF FACILITIES 
                    TO TERRORIST ATTACK.

SEC. 664. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.

          * * * * * * *

TITLE VI--ADMINISTRATIVE PROVISIONS

           *       *       *       *       *       *       *


PART C--GENERAL ADMINISTRATIVE PROVISIONS

           *       *       *       *       *       *       *



                               CONTRACTS

    Sec. 646. (a) The Secretary is authorized to enter into and 
perform such contracts, leases, cooperative agreements, or 
other similar transactions with public agencies and private 
organizations and persons, and to make such payments (in lump 
sum or installments, and by way of advance or reimbursement) as 
he may deem to be necessary or appropriate to carry out 
functions now or hereafter vested in the Secretary.

           *       *       *       *       *       *       *

    [(g)(1) In addition to authority granted to the Secretary 
under any other provision of law, the Secretary may exercise 
the same authority to enter into transactions (other than 
contracts, cooperative agreements, and grants), subject to the 
same terms and conditions as the Secretary of Defense under 
section 2371 of title 10, United States Code (other than 
subsections (b) and (f) of that section).
    [(2) In applying section 2371 of title 10, United States 
Code, to the Secretary under paragraph (1)--
          [(A) the term ``basic'' shall be replaced by the term 
        ``research'';
          [(B) the term ``applied'' shall be replaced by the 
        term ``development''; and
          [(C) the terms ``advanced research projects'' and 
        ``advanced research'' shall be replaced by the term 
        ``demonstration projects''.
    [(3) The authority of the Secretary under paragraph (1) 
shall not be subject to--
          [(A) section 9 of the Federal Nonnuclear Energy 
        Research and Development Act of 1974 (42 U.S.C. 5908); 
        or
          [(B) section 152 of the Atomic Energy Act of 1954 (42 
        U.S.C. 2182).
    [(4)(A) The Secretary shall use such competitive, merit-
based selection procedures in entering into transactions under 
paragraph (1), as the Secretary determines in writing to be 
practicable.
    [(B) A transaction under paragraph (1) shall relate to a 
research, development, or demonstration project only if the 
Secretary determines in writing that the use of a standard 
contract, grant, or cooperative agreement for the project is 
not feasible or appropriate.
    [(5) The Secretary may protect from disclosure, for up to 5 
years after the date on which the information is developed, any 
information developed pursuant to a transaction under paragraph 
(1) that would be protected from disclosure under section 
552(b)(4) of title 5, United States Code, if obtained from a 
person other than a Federal agency.
    [(6)(A) Not later than 90 days after the date of enactment 
of this subsection, the Secretary shall issue guidelines for 
transactions under paragraph (1).
    [(B) The guidelines shall be published in the Federal 
Register for public comment in accordance with rulemaking 
procedures of the Department.
    [(C) The Secretary shall not have authority to carry out 
transactions under paragraph (1) until the guidelines for 
transaction required under subparagraph (a) are final.
    [(7) The annual report of the head of an executive agency 
under section 2371(h) of title 10, United States Code, shall be 
submitted to Congress.
    [(8)(A) In this paragraph, the term ``nontraditional 
Government contractor'' has the meaning given the term 
``nontraditional defense contractor'' in section 845(f) of the 
National Defense Authorization Act for Fiscal Year 1994 (Public 
Law 103-160; 10 U.S.C. 2371 note).
    [(B) Not later than 1 year after the date on which the 
final guidelines are published under paragraph (6), the 
Comptroller General of the United States shall submit to 
Congress a report describing--
          [(i) the use by the Department of authorities under 
        this section, including the ability to attract 
        nontraditional Government contractors; and
          [(ii) whether additional safeguards are necessary to 
        carry out the authorities.
    [(9) The authority of the Secretary under this subsection 
may be delegated only to an officer of the Department who is 
appointed by the President by and with the advice and consent 
of the Senate.
    [(10) Notwithstanding any other provision of law, the 
authority to enter into transactions under paragraph (1) shall 
terminate on September 20, 2015.]
    (g) Authority To Enter Into Other Transactions.--
          (1) In general.--In addition to any other authority 
        granted to the Secretary to enter into procurement 
        contracts, leases, cooperative agreeements, grants, and 
        certain arrangements, the Secretary may enter into 
        other transactions with public agencies, private 
        organizations, or other persons on such terms as the 
        Secretary considers appropriate to further functions 
        vested in the Secretary, including research, 
        development, or demonstration projects.
          (2) Advance payments.--Notwithstanding any provision 
        of law, the Secretary may exercise authority provided 
        under paragraph (1) without regard to section 3324 of 
        title 31, United States Code.
          (3) Relationship to other law.--The authority of the 
        Secretary under paragraph (1) shall not be subject to--
                  (A) section 9 of the Federal Nonnuclear 
                Energy Research and Development Act of 1974 (42 
                U.S.C. 5908); or
                  (B) section 152 of the Atomic Energy Act of 
                1954 (42 U.S.C. 2182).
          (4) Protection of certain information from 
        disclosure.--
                  (A) In general.--Notwithstanding any other 
                provision of law, disclosure of information 
                described in subparagraph (B) is not required, 
                and may not be compelled, under section 552 of 
                title 5, United States Code, during the 5-year 
                period beginning on the date on which the 
                information is received by the Department.
                  (B) Award information.--The information 
                described in this subparagraph is information 
                in the records of the Department that--
                          (i) was submitted--
                                  (I) to the Department as part 
                                of a competitive or 
                                noncompetitive process with the 
                                potential to result in an award 
                                to the person submitting the 
                                information; and
                                  (II) in conjunction with a 
                                transaction entered into by the 
                                Secretary pursuant to paragraph 
                                (1); and
                          (ii) is--
                                  (I) a proposal, proposal 
                                abstract, and supporting 
                                documents;
                                  (II) a business plan 
                                submitted on a confidential 
                                basis; or
                                  (III) technical information 
                                submitted on a confidential 
                                basis.
          (5) Requirements.--
                  (A) Selection procedures.--In entering into 
                transactions under paragraph (1), the Secretary 
                shall use such competitive, merit-based 
                selection procedures as the Secretary 
                determines in writing to be practicable.
                  (B) Determination.--Before entering into a 
                transaction under paragraph (1), the Secretary 
                shall determine in writing that the use of a 
                standard contract, grant, or cooperative 
                agreement for the project is not feasible or 
                appropriate.
                  (C) Cost sharing.--A transaction under 
                paragraph (1) shall be subject to cost sharing 
                in accordance with section 988 of the Energy 
                Policy Act of 2005 (42 U.S.C. 16532).
                  (D) Limitation on delegation.--The authority 
                of the Secretary under this subsection may be 
                delegated only to an officer of the Department 
                who is appointed by the President by and with 
                the advice and consent of the Senate and may 
                not be redelegated to any other person.
          (6) Annual reports.--Not later than 1 year after the 
        date of enactment of the Department of Energy 
        Administrative Improvement Act of 2011 and annually 
        thereafter, the Secretary shall submit to Congress an 
        annual report on the transactions entered into by the 
        Secretary pursuant to the authority provided under this 
        subsection.
          (7) Report.--
                  (A) Definition of nontraditional government 
                contractor.--In this paragraph, the term 
                ``nontraditional Government contractor'' has 
                the meaning given the term ``nontraditional 
                defense contractor'' in section 845(f) of the 
                National Defense Authorization Act for Fiscal 
                Year 1994 (Public Law 103-160; 10 U.S.C. 2371 
                note).
                  (B) Report.--Not later than 2 years after the 
                date of enactment of this subparagraph, and 2 
                years thereafter, the Comptroller General of 
                the United States shall submit to Congress a 
                report describing--
                          (i) the use by the Department of 
                        authorities under this section, 
                        including the ability to attract 
                        nontraditional Government contractors; 
                        and
                          (ii) whether additional safeguards 
                        are necessary to carry out the 
                        authorities.

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SEC. 664. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.

    (a) In General.--At or about the time the budget of the 
President is submitted to Congress for each year under section 
1105(a) of title 31, United States Code, the Secretary shall 
submit to Congress a future-years Department of Energy program 
(including associated annexes) reflecting the estimated 
expenditures and proposed appropriations included in the 
budget.
    (b) Fiscal Year.--Any future-years Department of Energy 
program submitted under subsection (a) shall cover--
          (1) the fiscal year with respect to which the budget 
        is submitted; and
          (2) at least the 4 succeeding fiscal years.
    (c) Consistent Amounts.--
          (1) In general.--The Secretary shall ensure that 
        amounts described in paragraph (2)(A) for any fiscal 
        year are consistent with amounts described in paragraph 
        (2)(B) for that fiscal year.
          (2) Amounts.--Amounts referred to in paragraph (1) 
        are the following:
                  (A) The amounts specified in program and 
                budget information submitted to Congress by the 
                Secretary in support of expenditure estimates 
                and proposed appropriations in the budget 
                submitted to Congress by the President under 
                section 1105(a) of title 31, United States 
                Code, for any fiscal year, as indicated in the 
                future-years Department of Energy program 
                submitted pursuant to subsection (a).
                  (B) The total amounts of estimated 
                expenditures and proposed appropriations 
                necessary to support the programs, projects, 
                and activities of the Department of Energy 
                included pursuant to section 1105(a)(5) of 
                title 31, United States Code, in the budget 
                submitted to Congress under that section for 
                any fiscal year.
    (d) Management Contingencies.--Subject to subsection (c), 
nothing in this section prohibits the inclusion in the future-
years Department of Energy programs of amounts for management 
contingencies.

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                     THE ENERGY POLICY ACT OF 2005


                   Public Law 109-58--August 8, 2005


   AN ACT To ensure jobs for our future with secure, affordable, and 
reliable energy.

           *       *       *       *       *       *       *


SEC. 2. DEFINITIONS.

    Except as otherwise provided, in this Act:

           *       *       *       *       *       *       *

          (3) National Laboratory.--The term ``National 
        Laboratory'' means any of the following laboratories 
        owned by the Department:

           *       *       *       *       *       *       *

                  [(P) Stanford Linear Accelerator Center.]
                  (P) SLAC National Accelerator Laboratory.

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