[Senate Report 115-189]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 271
115th Congress     }                                   {       Report
                                 SENATE
 1st Session       }                                   {      115-189
_______________________________________________________________________

                                     


                    TEMPORARY AND TERM APPOINTMENTS

                              ACT OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1886

TO AMEND SUBCHAPTER 1 OF CHAPTER 31 OF TITLE 5, UNITED STATES CODE, TO 
     AUTHORIZE AGENCIES TO MAKE NONCOMPETITIVE TEMPORARY AND TERM 
                APPOINTMENTS IN THE COMPETITIVE SERVICE







[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








                December 1, 2017.--Ordered to be printed
                
                
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                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2017                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                       Courtney J. Allen, Counsel
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk




























                                                     Calendar No. 271
115th Congress     }                                   {       Report
                                 SENATE
 1st Session       }                                   {      115-189
======================================================================



 
              TEMPORARY AND TERM APPOINTMENTS ACT OF 2017

                                _______
                                

                December 1, 2017.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1886]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1886) to amend 
subchapter I of chapter 31 of title 5, United States Code, to 
authorize agencies to make noncompetitive temporary and term 
appointments in the competitive service, having considered the 
same, reports favorably thereon with an amendment in the nature 
of a substitute and recommends that the bill, as amended, do 
pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............5

                         I. Purpose and Summary

    The purpose of S. 1886, the Temporary and Term Appointments 
Act of 2017, is to provide flexibility for Federal agencies to 
hire employees to temporary or term appointments when a 
permanent employee for the position is not needed. This bill 
would also allow Federal agencies to extend these appointments 
if needed, as well as to make noncompetitive temporary or term 
appointments if there is a critical hiring need for the 
position.

              II. Background and the Need for Legislation

    When a Federal agency is seeking to hire an employee for a 
certain position, unless there is an exception in statute, the 
agency must hire the employee through the competitive service 
process.\1\ The competitive service process is open to all 
individuals who apply for a Federal employment position, and to 
be hired, an individual must pass an examination that is 
``practical in character and as far as possible relate[s] to 
matters that fairly test the relative capacity and fitness of 
the applicants for the [position] sought.''\2\ If an individual 
is hired to a competitive service position, unless otherwise 
notified, the position is for a permanent career appointment 
after the employee has completed three years of continuous 
service.\3\
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec.  2102.
    \2\5 U.S.C. Sec.  3304(a)(1). See also 5 C.F.R. Sec.  332.
    \3\5 U.S.C. Sec.  3304a. See also 5 C.F.R. Sec.  315.201.
---------------------------------------------------------------------------
    While Federal employees are, generally, intended to be 
hired in the competitive service to career appointments, 
Federal law and regulations allow Federal agencies to make 
exceptions to competitive service hiring.\4\ One such exception 
allows agencies to make a noncompetitive appointment when there 
is a critical hiring need or severe shortage of highly 
qualified candidates.\5\ Another exception is for temporary or 
term appointments.\6\ Agencies can make temporary or term 
appointments on a competitive or noncompetitive basis.\7\ 
Federal regulation allows an agency to make a temporary 
appointment to fill a short-term position that is not expected 
to last longer than one year, to meet an employment need that 
is scheduled to end within two years, or to fill positions on a 
temporary basis when the positions are expected to be needed 
for placement of permanent employees who would otherwise be 
displaced from other parts of the agency.\8\
---------------------------------------------------------------------------
    \4\5 U.S.C. Sec.  3302.
    \5\5 U.S.C. Sec.  3304(a)(3).
    \6\See 5 C.F.R. Sec.  316.
    \7\5 C.F.R. Sec.  316.302; 5 C.F.R. Sec.  316.402.
    \8\5 C.F.R. Sec.  316.401.
---------------------------------------------------------------------------
    Agencies can also make and extend temporary appointments 
for intermittent or seasonal work.\9\ If a position was 
previously filled by a temporary appointment for an aggregate 
of two years within the previous three-year period, then the 
agency cannot use a temporary appointment to fill that 
position.\10\ In fiscal year 2014, 8,344 individuals were 
serving under temporary appointments based on prior temporary 
service, and 1,688 individuals were serving under 
noncompetitive temporary appointments in positions with a 
critical hiring need, with a time limitation of 30 days with 
one 30-day extension permitted.\11\
---------------------------------------------------------------------------
    \9\5 C.F.R. Sec.  316.401(d)(1).
    \10\5 C.F.R. Sec.  316.401(c)(2).
    \11\U.S. Gov't Accountability Office, Federal Hiring: OPM Needs to 
Improve Management and Oversight of Hiring Authorities, GAO-16-521, 9, 
11 (Aug. 2016), available at http://www.gao.gov/assets/680/678814.pdf.
---------------------------------------------------------------------------
    Federal regulation also allows agencies to make term 
appointments when the need for the position is not 
permanent.\12\ Agencies can use term appointments when a 
position is for work on a specific project or to assist with an 
extraordinary workload; when the position is scheduled to be 
subject to termination, reorganization, or contracted out; when 
there is uncertainty regarding future funding for the position; 
or there is a need to maintain permanent positions for the 
placement of employees who would otherwise be displaced from 
other parts of the agency.\13\ Term appointments must be for a 
period of more than one year but not more than four years.\14\ 
The Office of Personnel Management may authorize an agency to 
extend a term appointment past the four-year time limit.\15\
---------------------------------------------------------------------------
    \12\5 C.F.R. Sec.  316.301(a).
    \13\Id.
    \14\Id.
    \15\Id. at Sec.  301(b).
---------------------------------------------------------------------------
    Department of Defense (DOD) personnel were granted 
statutory authority to make temporary and term appointments in 
2016.\16\ Congress provided this authority ``to allow the [DOD] 
to develop more strategic outreach efforts to recruit the 
talent needed to address a critical hiring need.''\17\ This 
authority allows DOD to make a temporary appointment for up to 
one year and a term appointment for at least one year and no 
more than five years, unless a longer time period is authorized 
by the Secretary of DOD.\18\ DOD is also authorized to make 
noncompetitive temporary and term appointments for no more than 
18 months when there is a critical hiring need.\19\
---------------------------------------------------------------------------
    \16\National Defense Authorization Act of 2017, Pub. L. No. 114-
328, Sec.  1105, 130 Stat. 2000, 2447 (2016).
    \17\S. Rep. 114-255, at 293 (2016).
    \18\National Defense Authorization Act of 2017, Pub. L. No. 114-
328, Sec.  1105, 130 Stat. 2000, 2447 (2016).
    \19\Id. at Sec.  1105(b).
---------------------------------------------------------------------------
    This bill would codify the Federal regulations that allow 
agencies Government-wide to hire individuals for temporary or 
term appointments when there is no permanent need for the job 
position, putting the rest of the Government on par with the 
DOD. This bill would also extend the time periods currently 
permitted under regulation for temporary appointments up to 
three years total and up to five years total for term 
appointments. Agencies would be able to make these appointments 
on a noncompetitive basis when there is critical hiring need 
for a non-permanent position.

                        III. Legislative History

    S. 1886, the Temporary and Term Appointments Act of 2017, 
was introduced on September 28, 2017, by Senator James 
Lankford. The bill was referred to the Committee on Homeland 
Security and Governmental Affairs. The Committee considered S. 
1886 at a business meeting on October 4, 2017.
    During the business meeting, Senator Lankford offered a 
modified substitute amendment that increased the time period 
limits for extensions to appointments made under this 
authority. The Committee adopted the amendment by voice vote 
and ordered the bill, as amended, reported favorably by voice 
vote en bloc with Senators Johnson, Lankford, Daines, 
McCaskill, Tester, Heitkamp, Hassan, and Harris present. 
Senators Harris and Hassan were recorded as voting ``no'' for 
the record.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section establishes the short title of the bill as the 
``Temporary and Term Appointments Act of 2017''.

Section 2. Noncompetitive temporary and term appointments in the 
        competitive service

    This section allows agencies to make temporary or term 
appointments when there is no permanent need for the position. 
A temporary appointment is defined as an appointment in the 
competitive service for a period of not more than one year. A 
term appointment is defined as an appointment in the 
competitive service for a period of more than one year and not 
more than five years.
    Under this section, a temporary appointment may be extended 
in increments of not more than one year, up to a total of three 
years of service. A term appointment may be extended in 
increments determined by the agency up to a total of six years 
of service. This section also permits agencies to make 
noncompetitive temporary or term appointments for a period of 
not more than 18 months to positions with a critical hiring 
need.
    The Director of the Office of Personnel Management may 
prescribe regulations for making these temporary and term 
appointments.
    This section also clarifies that the authority provided by 
this bill does not affect any authority previously given to DOD 
to make temporary and term appointments.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill 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.

             VI. Congressional Budget Office Cost Estimate

                                                  October 27, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1886, the Temporary 
and Term Appointments Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 1886--Temporary and Term Appointments Act of 2017

    S. 1886 would provide agencies with flexible hiring 
authorities for non permanent positions including time-limited 
employees (those who work for less than a year) and term 
appointments (employees who would work between one and five 
years). Agencies could use those authorities to staff projects 
and assignments with limited durations. Because those 
authorities are already available to agencies under the Code of 
Federal Regulations and guidance from the Office of Personnel 
Management, CBO estimates there would be no budgetary effect 
from implementing S. 1886.
    Enacting S. 1886 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 1886 would not increase 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 1886 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    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 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

           *       *       *       *       *       *       *


Table of Sections
Sec.
3101. General authority to employ
3102. Employment of personal assistants for handicapped employees, 
          including blind and deaf employees
3103. Employment at seat of Government only for services rendered
3104. Employment of specially qualified scientific and professional 
          personnel
3105. Appointment of administrative law judges
3106. Employment of attorneys; restrictions
3107. Employment of publicity experts; restrictions
3108. Employment of detective agencies; restrictions
3109. Employment of experts and consultants; temporary or intermittent
3110. Employment of relatives; restrictions
3111. Acceptance of volunteer service
3111a. Federal internship programs.
3112. Disabled veterans; noncompetitive appointment
3113. Restriction on reemployment after conviction of certain crimes
3114. Appointment of candidates to certain positions in the competitive 
          service by the Securities and Exchange Commission
3115. Temporary and term appointments

           *       *       *       *       *       *       *


SEC. 3115. TEMPORARY AND TERM APPOINTMENTS.

    (a) Definitions.--In this section:
          (1) Director.--The term ``Director'' means the 
        Director of the Office of Personnel Management.
          (2) Temporary appointment.--The term ``temporary 
        appointment'' means an appointment in the competitive 
        service for a period of not more than 1 year.
          (3) Term appointment.--The term ``term appointment'' 
        means an appointment in the competitive service for a 
        period of more than 1 year and not more than 5 years.
    (b) Appointment.--
          (1) In general.--The head of an agency may make a 
        temporary appointment or term appointment to a position 
        in the competitive service when the need for the 
        services of the employee services is not permanent.
          (2) Extension.--Under conditions prescribed by the 
        Director, the head of an agency may--
                  (A) extend a temporary appointment made under 
                paragraph (1) in increments of not more than 1 
                year; up to a maximum of 3 total years of 
                service; and
                  (B) extend a term appointment made under 
                paragraph (1) in increments determined 
                appropriate by the head of the agency, up to a 
                maximum of 6 total years of service.
    (c) Appointments for Critical Hiring Needs.--Under 
conditions prescribed by the Director, the head of an agency 
may make a noncompetitive temporary appointment, or a 
noncompetitive term appointment for a period of not more than 
18 months, to a position in the competitive services for which 
a critical hiring need exists, without regard to the 
requirements of sections 3327 and 3330. An appointment made 
under this subsection may not be extended.
    (d) Regulations.--The Director may prescribe regulations to 
carry out this section, but is not required to promulgate 
regulations prior to implementation of this section.
    (e) Special Provision Regarding the Department of 
Defense.--Nothing in this section shall preclude the Secretary 
of Defense from making temporary and term appointments in the 
competitive service pursuant to section 1105 of the National 
Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note 
prec. 1580; Public Law 114-328; 130 Stat. 2447), and any 
regulations prescribed by the Director for the administration 
of this section shall not apply to the Secretary of Defense for 
the administration in the exercise of the authorities granted 
under such section 1105.

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