[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
______
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
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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\
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\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.
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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\
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\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.
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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\
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\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.
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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\
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\12\5 C.F.R. Sec. 316.301(a).
\13\Id.
\14\Id.
\15\Id. at Sec. 301(b).
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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\
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\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).
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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.
* * * * * * *
[all]