For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31916 ------------------------------------------------------------------------------ Order Code RL31916 Report for Congress Received through the CRS Web Defense Department Original Transformation Proposal: Compared to Existing Law Updated May 19, 2003 Robert L. Goldich and Gary J. Pagliano Specialists in National Defense Foreign Affairs, Defense, and Trade Division Barbara L. Schwemle Analyst in American National Government Government and Finance Division Thomas J. Nicola Legislative Attorney American Law Division Congressional Research Service ~ The Library of Congress Defense Department Original Transformation Proposal: Compared To Existing Law Summary The Department of Defense (DOD) has sent the Congress a major proposal entitled "Defense Transformation for the 21st Century Act of 2003"on April 10, 2003. The complex proposal would have made many changes, and in some cases, major changes, in the military personnel and acquisition systems, and in the statutory basis for much of DOD's civilian personnel system. The changes would have affected in a number of titles in the United States Code but primarily in Title 5 (Government Organization and Employees), and Title 10 (Armed Forces). A number of congressional committees have begun action on various parts of this proposal. The Senate Armed Services Committee reported S. 1050 on May 9 (S.Rept. 108-46), and the House Armed Services Committee reported H.R. 1588 on May 16 (H.Rept. 108- 106); the House Committee on Government Reform reported H.R. 1836 on May 8 (ordered to be reported (amended) by voice vote). This report briefly summarizes and presents all of the sections of the original DOD proposal in a side by side with the relevant provisions in current law, if they exist, that would have been affected by the proposal. The idea is to provide a "road map" that relates each section of the proposal to existing law. Provisions from the Homeland Security Act (HSA) of 2002 specific to the Department of Homeland Security are separately listed from the rest of the existing law, and are the most recently enacted changes to Title 5. The Homeland Security Act represents the broadest changes in the Title in a number of years. HSA provisions that applied government-wide are covered under "Current Law" (Column 2) of the report. The DOD proposal, if it had been enacted in its entirety, would have resulted in significantly greater changes in Title 5 than the HSA changes. The DOD proposal covered a wide spectrum of current law. As a result, a number of Congressional Research Service (CRS) analysts and attorneys contributed to this report. Most are listed in a "Key Policy Staff" table at the end of this report. This report will be updated if additional clarification of DOD's proposal or relevant current law is warranted. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title I -- Personnel Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Subtitle A -- Transformation of Civilian Personnel (Sections 101-104) . . . 2 Subtitle B -- Transformation of Management of Senior Military Leadership (Sections 111-123) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Subtitle C -- Transformation of Military Personnel (Sections 131-137) . . 33 Title II- Acquisition Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Subtitle A -- Transformation of Acquisition Process (Sections 201-206) . 35 Subtitle B-Transformation of Contracting Process (Sections 211-214) . . . 40 Title III -- Installation Management Transformation (Section 301) . . . . . . . . 42 Title IV -- Administrative Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Subtitle A -- Transformation of DOD Organization (Sections 401-405) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Subtitle B -- Transformation of Appropriations and Budget Process (Sections 411-414) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Subtitle C -- Transformation of Information Gathering for Congress (Sections 421-422) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Subtitle D -- Transformation of Management of Naval Vessels (Sections 431-432) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Subtitle E -- Miscellaneous Provisions (Section 441) . . . . . . . . . . . . . . . . 56 List of Tables Defense Department Original Transformation Proposal: Compared to Existing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Key Policy Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Defense Department Original Transformation Proposal: Compared To Existing Law Introduction In April 2003, the Department of Defense (DOD) sent Congress a proposal entitled, "Defense Transformation for the 21st Century Act of 2003."1 The 207-page proposal would have made many changes, in some cases major changes, in the military personnel and acquisition systems, and in the statutory basis for much of DOD's civilian personnel system. The changes would have occurred in a number of titles in the U.S. Code; but, primarily in Title 5 (Government Organization and Employees) and Title 10 (Armed Forces). A number of congressional committees have begun action on various parts of this proposal. The Senate Armed Services Committee reported S. 1050 on May 9 (S.Rept. 108-46), and the House Armed Services Committee reported H.R. 1588 on May 16 (H.Rept. 108-106); the House Committee on Government Reform reported H.R. 1836 on May 8 (ordered to reported (amended) by voice vote). This report summarizes and lists all of the proposal's sections along side the relevant provisions in current law, if they exist, that would have been impacted by the proposal. The idea is to provide the reader with a type of roadmap that would help relate each aspect of the proposal to existing law. Provisions from the Homeland Security Act (HSA) of 2002 specific to personnel management in the Department of Homeland Security are listed separately from the rest of the current law primarily because they are the most recent legislative actions impacting Title 5. HSA provisions that applied government-wide are covered under "Current Law" (column 2) of the report. HSA provisions also represent the broadest changes in Title 5 in a number of years. The DOD proposal, if it had been enacted in its entirety, would have resulted in significantly greater changes in Title 5 than the HSA changes. Because the DOD proposal covered such a wide spectrum of current law, a number of Congressional Research Service (CRS) analysts and attorneys contributed to this report. Most are listed with their subject coverage in a separate table in this report. CRS made every effort to be comprehensive in identifying statutes currently in effect which would relate to the proposed change in the law. However, there may be some provision in law which has been inadvertently omitted. This report will not be updated unless additional clarification of DOD's proposal or relevant current law is warranted. 1 The DOD proposal can be viewed at: [http://www.defenselink.mil/dodgc/irs/docs/transformation.pdf] CRS-2 Defense Department Original Transformation Proposal: Compared to Existing Law The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Title I -- Personnel Transformation Subtitle A -- Transformation of Civilian Personnel (Sections 101-104) Sec. 101(a). Department of Defense (DOD) No similar provision Sec. 841 of Homeland Security Act of National Security Personnel System. 2002, P.L. 107-296, Establishment of (a) In General. Would amend 5 U.S.C. Part III, Human Resources Management Subpart I by adding a new Chapter 99- System. Department of Defense National Security Amended 5 U.S.C. Part III, Subpart I Personnel System by adding a new Chapter 97- Department of Homeland Security (DHS) New 5 U.S.C. 9901 - Definitions. No similar provision No similar provision The term "director" means the Director of the Office of Personnel Management (OPM); the term "secretary" means the Secretary of Defense. New 5 U.S.C. 9902. Establishment of human No similar provision 5 U.S.C. 9701 - Establishment of resources management system human resources management system. New 5 U.S.C. 9902(a) - In General. No similar provision 5 U.S.C. 9701(a) - In General. The (1) Notwithstanding any other provision of Title DHS Secretary and OPM Director 5, the secretary could, in regulations prescribed have the same authority to establish jointly with the director, establish, and from and adjust a new system. time to time adjust, a human resources CRS-3 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions management system for some or all of the organizational or functional units of DOD. If the secretary certifies that issuance or adjustment of a regulation, or the inclusion, exclusion, or modification of a particular provision therein, is essential to the national No similar waiver provision security, the secretary could, subject to the President's direction, waive the requirement in the preceding sentence that the regulation or adjustment be issued jointly with the director. (2) Any regulations established pursuant to Chapter 99 would be established as internal rules of departmental procedure, consistent with 5 U.S.C. 553. 5 U.S.C. 553 - Rule making exempts rules of Same, except that internal rules of agency or departmental procedure from departmental procedure "shall not be Federal Register notice and comment subject to review" rather than requirements. "consistent with 5 U.S.C. 553." New 5 U.S.C. 9902(b) - System Requirements. 5 U.S.C. 9701(b) - System Any system under (a) would (1) be flexible; Requirements. Same, except as (2) be contemporary; noted. (3) not waive, modify, or otherwise affect -- The provisions of Title 5 that could not be (A) the public employment principles of merit waived, modified, or otherwise affected are and fitness set forth in 5 U.S.C. 2301, including 5 U.S.C. 2301 -- Merit system principles the principles of hiring based on merit, fair 5 U.S.C. 2302 -- Prohibited personnel treatment without regard to political affiliation practices or other non-merit considerations, equal pay for CRS-4 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions equal work, and protection of employees against reprisal for whistleblowing; (B) any provision of 5 U.S.C. 2302 relating to prohibited personnel practices; (C)(i) any provision of law referred to in 5 U.S.C. 2302(b)(1), (8), and (9); or (ii) any provision of law implementing any provision of law referred to in 5 U.S.C. 2302(b)(1), (8), and (9) by (I) providing for equal employment opportunity through affirmative action; or (II) providing any right or remedy available to any employee or applicant for employment in the public service; (D) any other provision of 5 U.S.C. Part III (as described in subsection (c)); or (E) any rule or regulation prescribed under any provision of law referred to in this paragraph; uses "civil service" instead of "public (4) ensure that employees could organize, service" bargain collectively as provided for in Chapter 99, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of Chapter 99 and any exclusion from coverage or limitation does not include "subject to the on negotiability established pursuant to law; and provisions of Chapter 99" (5) not be limited by any specific law or authority under Title 5 that is waivable under Chapter 99 or by any provision of Chapter 99 or any rule or regulation prescribed under Title 5 that is waivable under Chapter 99, except as specifically provided for in this section. CRS-5 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions (5) not included; (5) in the DHS Act permits category rating system (c) Other Nonwaivable Provisions. The other Other protected Title 5 provisions would be: 5 U.S.C. 9701(c) Other provisions of this part referred to in (b)(3)(D) (1) Part III -- Employees (table of contents of Nonwaivable Provisions. are (to the extent not otherwise specified in this Part III precedes 5 U.S.C. 2101 (1) Part III - Employees title) -- (1) Subparts A, E, G, and H of 5 U.S.C. Subpart A -- General Provisions Subparts A, B - Employment and Part III; It adopts current law. Subpart E -- Attendance and Leave Retention, E, G, and H Subpart G -- Insurance and Annuities Subpart H - Access to Criminal History Information (2) 5 U.S.C. Chapters 34 -- Part-Time Career Employment (2) 5 U.S.C. Chapters 34, 45, 47, 57, 72, 73, and Opportunities (in Subpart B- Employment and (2) 5 U.S.C. Chapters 41 - Training, 79; It adopts current law and Retention) 45, 47, 55 - Pay Administration, 57, 45 -- Awards for Superior Accomplishments 59 -Allowances, 72, 73, and 79 47 -- Personnel Research Programs and Demonstration Projects 57 -- Travel, Transportation, and Subsistence 72 -- Anti-discrimination; Right to Petition Congress 73 -- Employees' Right to Petition Congress 79 -- Services to Employees (3) Selected sections of Subpart B - Employment and Retention of Part III - Employees: 5 U.S.C. 3131 -- The Senior Executive CRS-6 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions (3) 5 U.S.C. 3131, 3132(a), 3305(b), 3309, Service; 3132(a) -- [SES] Definitions and (3) All of Subpart B of 5 U.S.C. Part 3310, 3311, 3312, 3313, 3314, 3315, 3316, exclusions; 3305(b) - Competitive service; III is nonwaivable 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, examinations; when held (3305(b) requires 3502(b), and 3504. It adopts current law. OPM to hold an examination for a qualifying competitive service position upon application of certain preference eligibles during the quarter following the application); 3309 - Preference eligibles; examinations; additional points for; 3310 - Preference eligibles; examinations; guards, elevator operators, messengers, and custodians; 3311 - Preference eligibles; examinations; crediting experience; 3312 - Preference eligibles; physical qualifications; waiver; 3313 - Competitive service; registers of eligibles; 3314 - Registers; preference eligibles who resigned; 3315 - Registers; preference eligibles furloughed or separated; 3316 - Preference eligibles; reinstatement; and 3317(b) -- Competitive service; certification from registers (the Rule of Three, which requires OPM to certify enough names from the top of a register to permit a nominating or appointing authority to consider at least three names for each competitive service vacancy, is 3317(a) and not listed as nonwaivable); 3317(b) allows an appointing authority, with OPM approval, to discontinue certifying for appointment a preference eligible who three times has been considered and passed over, CRS-7 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions but the preference eligible is entitled to notice of discontinuance of certification); 3318 - Competitive service; selection from certificates; 3320 -- Excepted service; government of the District of Columbia; selection; 3351 - Preference eligibles; transfer; physical qualifications; waiver; 3352 -- Preference in transfers for employees making certain disclosures; 3363 -- Preference eligibles; promotion; physical qualifications; waiver; 3501 -- Definitions and application for the purpose of retention preferences; 3502(b) -- Preference eligibles in the order of retention preference (3502(b) entitles a qualifying preference eligible with a service- connected disability of 30 percent or more to retention over other preference eligibles); 3504 -- Preference eligibles; retention; physical qualifications; waiver New 5 U.S.C. 9902(d) -- Limitations Relating 5 U.S.C. 9701(d) Limitations to Pay Relating to Pay. Nothing in this (1) Nothing in this section would constitute Title 5, Chapter 53 (Pay Rates and Systems), section constitutes authority authority to modify the pay of any employee Subchapter II (Executive Schedule Pay Rates) (1) Same, except that it adds "or a who serves in an Executive Schedule position position for which the rate of basic under 5 U.S.C. Chapter 53, Subchapter II. pay is fixed in statute by reference to a section or level under 5 U.S.C. Chapter 53, Subchapter II;" 2) Except as provided for in (1), the total Same, except for "under title 10;" 5 U.S.C. (2) to fix pay for any employee or amount in a calendar year of allowances, 5307 - Limitation on certain payments caps position at an annual rate greater than CRS-8 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions differentials, bonuses, awards, or other similar total pay, including all cash payments such as the maximum amount of cash cash payments paid under Title 5 to any allowances and awards, to the annual rate of compensation allowable under 5 employee who is paid under 5 U.S.C. 5376 or basic pay for level I of the Executive Schedule U.S.C. 5307 - Limitations on certain 5383 or under Title 10 or under other ($171,900 in 2003); however, for those paid payments in a year; or comparable pay authority established for under 5 U.S.C. 5376 -- Pay for certain senior payment of Department of Defense senior level positions (including those classified (3) to exempt any employee from the executive or equivalent employees could not above GS-15, scientific and professional application of 5 U.S.C. 5307. exceed the total annual compensation payable to positions under 5 U.S.C. 3104, and SES); or the Vice President. 5 U.S.C. 5383 -- Setting individual senior The cap for positions under 5 U.S.C. executive pay, the cap is the total 5376 and 5383 was raised from level compensation payable to the Vice President I of the Executive Schedule to the under 3 U.S.C. 104 - Salary of the Vice total compensation of the Vice President ($198,600) President, under specific conditions, by sec. 1322 of P.L. 107-296. 10 U.S.C. 1603 Basic pay (Defense Intelligence Senior Executive Service and Intelligence Senior Level positions) New 5 U.S.C. 9902(e) -- Provisions to Ensure No similar provision concerning collaboration 5 U.S.C. 9701(e) Same, except that Collaboration with Employee Representatives and development of a new human resources the DHS Secretary is not granted management system, but labor organizations authority to engage in collaborative The secretary and OPM Director would be having national consultation rights in activities at a national organizational required to provide a written description of the connection with any agency must be informed level above the level of exclusive proposed human resources management system of any substantive change in conditions of recognition. Moreover, DHS or adjustments to such system to employee employment proposed by an agency, and must collaboration procedures must ensure CRS-9 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions representatives. The representatives would be be permitted reasonable time to present their -- (1) in the case of individuals in a given at least 30 calendar days (unless views and recommendations regarding labor organization that has been extraordinary circumstances require earlier changes. See 5 U.S.C. 7113 -National accorded exclusive recognition, action) to review and make recommendations consultation rights. representation by individuals with respect to the proposal. These designated by or from such recommendations would have to be given full organization; (2) in the case of and fair consideration. The secretary and individuals not within a bargaining director would notify Congress of those parts of unit, representation by an the proposal for which recommendations were organization which represents a made but not accepted. They also would be substantial number; (3) fair and required to meet and confer with employee expeditious handling of the representatives for not less than 30 calendar consultation and mediation process, days to attempt to reach agreement on whether including procedures by which, if the and how to proceed with those parts of the number of employee representatives proposal for which recommendations were not exceeds 5, for representatives to accepted. The secretary or a majority of the select a committee to meet and confer employees' representatives participating in the with the secretary and Director of consultation could use the services of the OPM; and (4) selection of Federal Mediation and Conciliation Service to representatives in a manner consistent assist with the discussions. After 30 calendar with the relative number of days following notification and consultation, the employees represented by secretary could implement any or all of the organizations or other representatives disputed parts if it was determined that further involved. consultation and mediation would be unlikely to produce agreement. The secretary and director Title 5, Chapter 71 - Labor- would develop a method for employee Management and Employee Relations representatives to participate in any further is subject to waiver or adjustment in planning or development if a proposal was developing a new human resources implemented. Any procedures necessary to management system. facilitate collaboration would be established as CRS-10 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions internal rules of department procedure not See also 5 U.S.C. 9701(g) - subject to review. Establishment of Human Resources 5 U.S.C. 553 - Rule making waives Federal Management System - Provisions Register notice and comment procedures for Relating to Labor-Management internal agency rules of procedure. Relations, which provides that nothing in the new section shall be 5 U.S.C. 7103(b) - Definitions; application construed as conferring authority on authorizes the president to issue an order the DHS to modify any provisions of excluding an agency or subdivision thereof if section 842 - Labor- Management the president determines that either has as a Relations of P.L. 107-296. Sec. 642 primary function intelligence, grants some measure of protection to counterintelligence, or national security work agencies, bargaining units, and and that Chapter 71 procedures cannot be individuals from exclusion from applied consistent with national security. The coverage of Title 5 Chapter 71- Labor president may issue an order with respect to Management and Employee Relations any agency, installation, or activity located unless missions change to outside the 50 states and D.C. if the president intelligence, counterintelligence, or determines the suspension necessary in the investigating terrorism; and sec. 1512 interest of national security. of P.L. 107-296 - Savings Provisions states that completed administrative actions, including contracts, of an agency affected by the DHS Act shall not be affected by enactment of the Act, and, except as otherwise provided in the Act, transfer of personnel does not alter the terms and conditions of employment, including compensation, of any transferred employee. CRS-11 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions New 5 U.S.C. 9902(f) -- Provisions Regarding No similar provision with respect to national No similar provision, but Title 5, National Level Bargaining level bargaining, but see 5 U.S.C. 7111 - Chapter 71 - Labor-Management and Exclusive recognition of labor organizations, Employee Relations is subject to Any human resources management system and 5 U.S.C. 7114 - Representation rights and waiver or adjustment in developing a implemented or modified under the new title 5, duties. human resources management chapter 99 could include DOD employees from system. any bargaining unit with respect to which a labor organization was accorded exclusive recognition. For any such bargaining unit, the secretary could bargain at a level above the level of exclusive recognition Such bargaining would be binding on all subordinate bargaining units and DOD and its subcomponents; it would supersede all other collective bargaining agreements, except as otherwise determined by the secretary; would not be subject to further negotiations for any purpose, except as provided for by the secretary; and would not be subject to review or statutory third-party dispute resolution procedures outside DOD, except as 5 U.S.C. 7105 - Powers and duties of the otherwise provided in the new chapter 99. [Federal Labor Relations] Authority New 5 U.S.C. 9902(g) -- Provisions Relating to Title 5, Chapter 77 - "Appellate procedures" 5 U.S.C. 9701(f) Provisions Relating Appellate Procedures. (1) The sense of grants right to appeal agency disciplinary to Appellate Procedures. Nearly Congress would be expressed that -- (A) DOD actions to the Merit System Protection Board. identical substantive language that employees would be entitled to fair treatment in substitutes "Department," referring to any appeals; and (B) in prescribing appellate DHS, in place of DOD. procedure regulations the secretary should ensure that these employees should be afforded Title 5, Chapter 77 - "Appellate the protections of due process; and (ii) toward procedures" is subject to waiver or CRS-12 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions that end, the secretary should be required to adjustment in developing a human consult with the Merit Systems Protection resources management system. Board before issuing any such regulations. (2) Any appellate procedure regulations that relate to any matters within the purview of Chapter 77 of Title 5 should -- (A) be issued only after consulting with MSPB; (B) ensure availability of procedures that (i) are consistent with due process requirements; and (ii) provide, to the maximum extent practicable, for expeditious handling of any matters involving DOD; and (C) modify procedures under Chapter 77 only insofar as such modifications are designed to further the fair, efficient, and expeditious resolution of matters involving DOD employees. New 5 U.S.C. 9902(h) -- Provisions Related to Sec. 472. Similar voluntary Separation and Retirement Incentives separation incentives authorized for the Immigration and Naturalization The secretary is authorized to offer (1) early Service and Border Patrol retirement to an employee who is at least 50 5 U.S.C. 8336 - Immediate Retirement years of age and has completed 20 years of (CSRS) and 5 U.S.C. 8414 - Early retirement service or to an employee of any age who has (FERS) Same as current law; sec. 1313(b) of completed 25 years of service; and (2) P.L. 107-296 - Permanent Extension, separation incentive pay of up to $25,000 for a Revision, and Expansion of qualifying DOD employee who retires or Authorities for Use of Voluntary CRS-13 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions resigns pursuant to DOD regulations. Any Title 5, Chapter 35 -Retention Preference, Separation Incentive Pay and Early recipient of separation pay may not be Voluntary Separation Incentive Payments, Retirement amended 5 U.S.C. 8336 reemployed with DOD for 12 months following Restoration, and Reemployment, Subchapter and 8414 to expand the conditions receipt unless the secretary waives this II - Voluntary Separation Incentive Payments occurring in an agency such as prohibition on a case-by-case basis. Generally, (5 U.S.C. 3521-3525) authorizes agencies, downsizing or restructuring to permit any such recipient who is reemployed by the with O.M.'s approval to make voluntary exercise of early retirement authority. federal government within 5 years must repay separation incentive payments of up to DOD the full amount of a separation payment. $25,000 to eligible employees who retire or Same as current law; sec. 1313 (a) of No O.M. approval would be needed to offer resign. P.L. 107-296 authorized this early retirement or separation pay. governmentwide authority with OPM approval at 5 U.S.C. 3521-3525. New 5 U.S.C. 9902(i) -- Provisions Relating to 5 U.S.C. 8344 - Annuities and pay on No similar provision Reemployment. An annuitant who becomes reemployment (CSRS) and 5 U.S.C. 8468 - employed in a position within DOD would Annuities and pay on redeployment (FERS) continue to receive an annuity, but would not be generally require that the amount of an considered an employee for purposes of annuity be deducted from pay received by a Chapters 83 ( CSRS) or 84 (FERS) of Title 5. reemployed annuitant, but an annuitant who is The reemployed annuitant would not accrue reemployed for more than one year is eligible additional CSRS or FERS retirement credit for a supplemental annuity for the period of during this period of reemployment. reemployment at retirement. No sunset provision No similar provision 5 U.S.C. 9701 - Sunset Provisions provides that all authority of the DHS Secretary and OPM Director jointly to issue regulations to establish and adjust the DHS human resources management system ceases to be available. CRS-14 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions New 5 U.S.C. 9903. Contracting for personal No similar provision services. New 5 U.S.C. 9903(a) - Outside the United See, for example, Title 41, Chapter 6 - Service Sec. 835 of P.L. 107-296 - States. Funds available to the Department of Contract Labor Standards. Prohibition on Contracts with Defense would be available to contract with Corporate Expatriates individuals for services to be performed outside the United States as determined by the secretary to be necessary and appropriate. These contractors would not be considered employees of the United States government for purposes of any law administered by OPM or under any human resources management system established pursuant to the new chapter 99 of title 5. These contracts could be negotiated, their terms prescribed, and the work could be performed where necessary, without regard to statutory provisions that relate to negotiating, making, and performing contracts and performing work in the United States. New 5 U.S.C. 9903(b) - National Security See, for example, 10 U.S.C. 2393 - Prohibition No similar provision Missions. Notwithstanding any other provision against doing business with certain offerors or of law, sums made available to the DOD by contractors, 10 U.S.C. 2408 - Prohibition on appropriation or otherwise could be expended as persons convicted of defense contract related determined by the secretary to be necessary to felonies and related criminal penalty on carry out the national security mission of DOD, defense contractors, and 50 U.S.C. 403j- for personal services contracts, including Central Intelligence Agency; appropriations; personal service without regard to limitations on expenditures. types of persons to be employed. See also 50 U.S.C. 403j - Central Intelligence Agency; appropriations; expenditures, which CRS-15 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions authorizes sums made available to the CIA by appropriation or otherwise to be expended, among other things, for personal services, including personal services without regard to limitations on types of persons to be employed. New 5 U.S.C. 9903(c) - Experts and 5 U.S.C. 3109 - Employment of experts and Sec. 831(c) of P.L. 107-296 - Consultants. - Subject to paragraphs (2) and (3) consultants generally limits temporary Procurement of Temporary and and notwithstanding provisions of 10 U.S.C. contract services to one year and pay for Intermittent Services (in research and 129b, the secretary would be authorized to (A) temporary and intermittent contract services to development projects) authorizes procure by contract the services of experts and the daily equivalent rate of pay to the highest procurement of temporary and consultants (or organizations of them), who may allowed in 5 U.S.C. 5332 (the General intermittent services of experts and provide such services with or without Schedule). consultants in accordance with 5 compensation as determined by the secretary, U.S.C. 3109, without regard to pay and may perform such duties as the secretary 10 U.S.C. 129b - Experts and Consultants; limitation in section 3109. may prescribe without being deemed to be authority to procure services of generally employees of DOD except, at the discretion of provides that authority should be exercised in Sec. 832 - Personal services. the secretary, for the purposes of (i) the Ethics accordance with 5 U.S.C. 3109. Authorizes procurement of temporary in Government Act of 1978; (ii) Chapter 73 of or intermittent services of experts or title 5 (Suitability, Security, and Conduct); and consultants in accordance with 5 (iii) section 27 of the Office of Federal U.S.C. 3109, but, when necessary to Procurement Policy Act; and (B) pay travel meet an urgent homeland security expenses of individuals, including needs, without regard to the pay transportation and per diem in lieu of limitations in section 3109. subsistence while such individuals travel from their homes of places of business to official duty stations and return, as may be authorized by law. (2) To procure the services of experts or consultants (or an organization of them), the CRS-16 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions secretary would be required to determine that (A) such procurement is advantageous to the United States; and (B) these services cannot be provided adequately by DOD; 3 [the proposal copy we have been given does not have a paragraph 3 of 9903(c), only paragraphs 1 and 2]. New 5 U.S.C. 9903(d) - Implementation. No similar provision No similar provision Implementation of this section would be at the secretary's sole, exclusive, and unreviewable discretion. New 5 U.S.C. 9904. Attracting highly qualified No similar provision experts. New 5 U.S.C. 9904(a) In General. The P.L. 105-261, sec. 1101 (1998) (5 U.S.C. No similar provision Secretary could carry out a program using the 3104(a) note) - Defense Advanced Research authority provided in (b) in order to attract Projects Agency Experimental Personnel highly qualified experts in needed occupations, Management Program for Technical Personnel as determined by the secretary. granted the Secretary of Defense for five years experimental special management authority to facilitate recruitment of eminent experts in science and engineering for the Defense Advanced Research Projects Agency. New 5 U.S.C. 9904(b) - Authority. Under the 5 U.S.C. 3104 - Employment of specially No similar provision program, the secretary could -- (1) appoint qualified scientific and professional personnel personnel from outside the civil service and uniformed services (as such terms are defined in 5 U.S.C. 3104(b) note. Similar, but special CRS-17 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions 5 U.S.C. 2101) to positions in DOD without appointment authority is limited to "scientists regard to any provision of this title governing and engineers" and "not more than 20 the appointment of employees to positions in scientific and engineering positions in the DOD; Defense Advanced Research Projects (2) prescribe the rates of basic pay for positions Agency." Same authority to prescribe basic to which employees are appointed under (1) at rate of pay, but no authority to increase basic rates not in excess of the maximum rate of basic pay by locality-based comparability payments. pay authorized for senior-level positions under 5 U.S.C. 5376, as increased by locality-based 5 U.S.C. 3324 - Appointments to positions comparability payments, notwithstanding any classified above GS-15 (generally requires provision of this title governing the rates of pay OPM approval) or classification of employees in the executive branch; and 5 U.S.C. 3325 - Appointments to scientific (3) pay any employee appointed under (1) and professional positions (generally requires payments in addition to basic pay within the OPM approval of qualifications) limit applicable to the employee under (d)(1) below. 5 U.S.C. 3326 - Appointments of retired members of the armed services in the Department of Defense (imposes certain requirements on appointments of a retired armed services member in the period within 180 days immediately following retirement from the armed services) (proposed for repeal, see sec. 404) 5 U.S.C. 5376 - "Pay for certain senior- level positions" generally limits pay to not less than 120 percent of the minimum basic pay rate for GS-15 and not greater than basic pay rate for level IV of the Executive Schedule. CRS-18 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions 5 U.S.C. 5377- "Pay authority for critical positions"generally limits the maximum basic rate to level I of the Executive Schedule. See 5 U.S.C. 9502 - Pay authority for critical positions and 5 U.S.C. 9503 Streamlined critical pay authority [in the Internal Revenue Service] which allows pay for up to the salary of the Vice President. New 5 U.S.C. 9904(c) - Limitation on Term of 5 U.S.C. 3104(c) note. Term of initial No similar provision Appointment. (1) Except as provided in (2), the appointment limited to 4 years with up to a 2 service of an employee under an appointment year extension made pursuant to this section may not exceed 5 years. (2) The secretary could, in the case of a particular employee, extend the period to which service is limited under (1) by up to one additional year if the secretary determines that such action is necessary to promote DOD's national security missions. New 5 U.S.C. 9904(d) - Limitations on 5 U.S.C. 3104 note. Similar, but additional Sec. 841(a) (creating 5 U.S.C. Additional Payments. (1) The total amount of payments may not exceed the least of (A) 9701(d)) Limitations Relating to Pay the additional payments paid to an employee $25,000; (B) the amount equal to 25 percent of P.L. 107-296 generally prohibits under this section for any 12-month period of the employee's annual rate of basic pay; paying any employee at a rate greater could not exceed the least of the following (C) the amount of the limitation applicable for than the maximum amount allowable amounts: (A) $50,000 in FY 2004, which could a calendar year under 5 U.S.C. 5307(a). Same under 5 U.S.C. 5307 or exempting be adjusted annually thereafter by the secretary, with respect to ineligibility for any bonus, any employee from 5 U.S.C. 5307, with a percentage increase equal to one-half of monetary award, or other monetary incentive. which generally limits total pay, one percentage points less than the percentage including awards and other cash CRS-19 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions by which the Employment Cost Index 5 U.S.C. 5307 - Limitation on certain payments, to level I of the Executive (published quarterly by the Bureau of Labor payments limits the amount to cash payments Schedule, except for some high level Statistics) for the base quarter of the year before such as allowances and awards plus salary to positions which are limited to the the preceding calendar year exceeds the level I of the Executive Schedule ($171,900 in salary of the Vice President. Employment Cost Index for the base quarter of 2003), except for some high level positions the second year before the preceding calendar which are limited to the salary of the Vice year. (B) The amount equal to 50 percent of the President ($198,600). employee's annual rate of basic pay. (2) An employee appointed under this section Title 5, Chapter 45 - Incentive Awards would not be eligible for any bonus, monetary award, or other monetary incentive for service except for payments authorized under this section. New 5 U.S.C. 9904(e) - Savings Provisions. In Same the event that the secretary terminates this program, in the case of an employee who, on the day before the termination of the program, is serving in a position pursuant to an appointment under this section -- (1) the termination of the program does not terminate the employee's Sec. 841(b) of P.L. 107-296 - employment in that position before the Nonseparation or Nonreduction in expiration of the lesser of -- (A) the period for Grade or Compensation of Full-Time which the employee was appointed; or (B) the and Part-Time Personnel Holding period to which the employee's service is Permanent Positions generally limited under (c), including any extension made prevents separation or reduction in under this section before the termination of the pay or grade for one year following program; and transfer to DHS. (2) the rate of basic pay prescribed for the position under this section could not be reduced CRS-20 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions as long as the employee continues to serve in 5 U.S.C. 5363 - Pay retention the position without a break in service. New 5 U.S.C. 9905. Employment of older No similar provision Americans. New 5 U.S.C. 9905(a) - In general. 5 U.S.C. 3104 - Employment of specially No similar provision Notwithstanding any other provision of law, the qualified scientific and professional personnel secretary, at his sole, exclusive, and unreviewable discretion, would be authorized to 5 U.S.C. 3320 - Excepted service; government appoint older Americans into positions in the of the District of Columbia; selection excepted service for not to exceed two years, provided that (1) any such appointment would 5 U.S.C. 3323 - Automatic separation; not result in (A) the displacement of individuals reappointment; redeployment of annuitants currently employed by DOD (including partial displacement through reduction of nonovertime hours, wages, or employment benefits); or (B) the employment of any individual when any other person is in a reduction-in- force status from the same or substantially equivalent job within DOD; and (2) the individual to be appointed is otherwise qualified for the position as determined by the secretary. New 5 U.S.C. 9905(b) - Effect on Existing 5 U.S.C. 8344 - Annuities and pay on No similar provision Retirement Benefits. Notwithstanding any other redeployment (Civil Service Retirement provision of law, employment pursuant to this System) and 5 U.S.C. 8468 - Annuities and authority would not have the effect of reducing pay on redeployment (Federal Employees any annuity, pension, social security payment, Retirement System) generally require a retired pay, or other similar payment as a result deduction from the pay of a reemployed of such employment that the appointee may be annuitant equal to the amount of an annuity; receiving. 42 U.S.C. 403 - Reduction of insurance CRS-21 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions benefits (section 203 of the Social Security Act) requires a reduction of social security benefits for an individual under age 65. In 2003, the social security benefit of such an individual is reduced by $1 for each $2 of earnings in excess of $11,520. 5 U.S..C. 5532, which formerly required an offset for the amount of military retired pay, has been repealed. New 5 U.S.C. 9905(c) - Extension of No similar provision No similar provision Appointment. Notwithstanding subsection (a) which authorizes initial appointment for not more than two years, the secretary would be authorized to extend an appointment of an older American for up to an additional two years if the employee possesses unique knowledge or abilities that are not otherwise available to DOD. New 5 U.S.C. 9905(d) - Definition. The term No similar provision No similar provision "older American" in the section would be defined as any citizen of the United States who is at least 55 years of age. New 5 U.S.C. 9906. Special pay and benefits 22 U.S.C. 3963 establishes the Foreign No similar provision for certain employees outside the United States. Service (FS) pay schedule. 22 U.S.C. 3965, The secretary could provide to certain civilian the Senior FS schedule. 5 U.S.C. 5925 employees of DOD assigned to activities authorizes a pay differential of up to 25% over CRS-22 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions outside the United States and designated by the basic pay where living conditions are secretary for the purposes of this subsection -- substantially below standards in the (1) allowances and benefits -- (A) comparable Continental US, and an additional 15% for to those provided by the Secretary of State to personnel who agree to serve at any of 40 members of the Foreign Service under chapter 9 designated hardship posts for an additional 3 of title I of the Foreign Service Act of 1980 or years. 5 U.S.C. 5928 authorizes a differential any other provision of law; or (B) comparable to up to 25% of base pay where personnel safety those provided by the Director of Central is "threatened by civil insurrection, civil war, Intelligence to personnel of the Central terrorism, or wartime conditions." Intelligence Agency (CIA); and (2) special retirement accrual benefits and 50 U.S.C. 403e et seq., the CIA Act, provides disability in the same manner provided for by the Director of Central Intelligence (DCI) with the CIA Retirement Act and in section 18 of the authority to pay transportation and moving CIA Act of 1949. expenses, including those of dependents, to CIA personnel stationed outside of the continental United States, including expenses of authorized home leave. New 5 U.S.C. 9906(a). Special pay and benefits 10 U.S.C. 1605 - Benefits for certain No similar provision for certain employees outside the United States. employees assigned outside the United States The secretary could provide to certain civilian are similar, but authorizes providing employees of DOD assigned to activities allowances and benefits from more statutory outside the United States and designated by the sources and makes this authority effective secretary for the purposes of this subsection -- only to the extent appropriations are available (1) allowances and benefits -- (A) comparable for this purpose. to those provided by the Secretary of State to members of the Foreign Service under chapter 9 22 U.S.C. 3963 establishes the Foreign of title I of the Foreign Service Act of 1980 or Service (FS) pay schedule. 22 U.S.C. 3965, any other provision of law; or (B) comparable to the Senior FS schedule. 5 U.S.C. 5925 those provided by the Director of Central authorizes a pay differential of up to 25% over CRS-23 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Intelligence to personnel of the Central basic pay where living conditions are Intelligence Agency (CIA); and substantially below standards in the (2) special retirement accrual benefits and Continental US, and an additional 15% for disability in the same manner provided for by personnel who agree to serve at any of 40 the CIA Retirement Act and in section 18 of the designated hardship posts for an additional 3 CIA Act of 1949. Authority to pay these years. 5 U.S.C. 5928 authorizes a differential benefits is not limited to extent appropriations of up to 25% of base pay where personnel have been provided. safety is "threatened by civil insurrection, civil war, terrorism, or wartime conditions." 50 U.S.C. 403e et seq., the CIA Act, provides the Director of Central Intelligence (DCI) with authority to pay transportation and moving expenses, including those of dependents, to CIA personnel stationed outside of the continental United States, including expenses of authorized home leave. 50 U.S.C. 403r - Special annuity computation rules for certain employees' service abroad generally allow higher annuity rates for overseas service. Sec. 101(b). Impact on Department of Defense No similar provision Sec. 841(b)(3) of P.L. 107-296 - Civilian Personnel. - (1) Any exercise of Coordination Rule is identical to the authority under the new Chapter 99 of Title 5, proposed 101(b)(1) of DOD proposal, including under any system established under except it refers to Chapter 97 of 5 such chapter, would have to be in conformance U.S.C. rather than Chapter 99; but with the requirements of this subsection. (2) No there is no counterpart to 101(b)(2) of other provision of the act, or any provision the DOD proposal. made by it, should be construed or applied in a CRS-24 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions manner so as to limit, supersede, or otherwise affect provisions of section 9906, except to the extent that it does so by specific reference to section 9906. Sec. 101(c) of the DOD Proposal "Conforming Sec. 6 of P.L. 98-224 "Authority to Continue Amendments" -- would repeal: Demonstration Project" authorized the Dept. of the Navy to continue operation of the (1) sec. 6 of the Civil Service Miscellaneous demonstration project authorized by 5 U.S.C. Amendments Act of 1983 (P.L. 98-224, 98 Stat. 4703, at the Naval Weapons Center, China 49), as amended; Lake, Calif., and at the Naval Ocean Systems Center, San Diego, Calif., until Sept. 30, 1990, without regard to 5 U.S.C. 4703(d)(1), which limits each demonstration project to not more than 5,000 individuals and terminates it before the end of the 5 year period after the project takes effect. Sec. 342 of P.L.103-337 "Extension and (2) sec. 342 of the National Defense Expansion of Authority to Conduct Personnel Authorization Act for Fiscal Year 1995 (P.L. Demonstration Projects" extended the time 103-337, 108 Stat. 2721), as amended; period for operating demonstration projects referred to in sec. 6 of P.L. 98-224, and granted personnel demonstration authority to the Secretary of Defense, with approval of the OPM Director, to expand this authority to DOD laboratories that the DOD Secretary has designated as science and technology reinvention laboratories. Limitations on the number of personnel, the duration, and number of projects set out in 5 U.S.C. sec. CRS-25 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions 4703(d) were waived and made sec. 342 rather than 5 U.S.C. 4703 appropriate authority to extend and expand these projects. (3) sec. 1101 of the Strom Thurmond National Sec. 1101 of P.L. 105-261 "Defense Defense Authorization Act for Fiscal Year 1999 Advanced Research Projects Agency (P.L. 105-261; 112 Stat. 2139), as amended; and Experimental Personnel Management Program for Technical Personnel" (5 U.S.C. 3104 note) authorizes the Secretary of Defense, during the five year period beginning on the date of enactment (Oct. 17, 1998) on an experimental basis to (1) appoint scientists and engineers from outside the civil service and uniformed services to not more than 20 scientific and engineering positions in the Defense Advanced Research Projects Agency without regard to any provision of title 5, U.S. Code, governing the appointment of employees in the civil service, (2) pay rates of basic pay for positions to which these employees are appointed at rates not in excess of the maximum rate of basic pay authorized for senior level positions under 5 U.S.C. 5376, notwithstanding any provision of title 5 governing rates of pay or classification of employees in the executive branch; and (3) pay any employee so appointed payments in addition to basic pay of the least of (A) $25,000; (B) the amount equal to 25 percent of the employee's rate of basic pay; or (C) the amount of the limitation applicable for a CRS-26 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions calendar year under 5 U.S.C. 5307(a)(1). An employee appointed under this authority is not eligible for any bonus, monetary award, or monetary incentive for service except for these additional payments. Such an appointment may not exceed 4 years, but the secretary may extend the period of service by up to 2 years. Authority to make these appointments terminates 5 years after the date of enactment and after termination (1) no appointment may be made under it; (2) a rate of basic pay for such appointment may not take effect; and (3) no period of service may be extended. In the case of an employee who is appointed pursuant to this authority, (1) terminating the program does not terminate the employee's employment before the lesser of -- (A) the period for which the employee was appointed; (B) the period to which the employee's service is limited, including any extension; and (2) the rate of basic pay may not be reduced for so long as the employee continues to serve in the position. Sec. 4308 of P.L. 104-106 "Demonstration (4) sec. 4308 of the National Defense Project Relating to Certain Personnel Authorization Act for Fiscal Year 1996 (P.L. Management Policies and Procedures" 104-106; 110 Stat. 669) as amended. encouraged the DOD Secretary to commence personnel demonstration projects for acquisition workforce at DOD, under CRS-27 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions authority of 5 U.S.C. 4703, with some modifications. Sec. 102. Defense Acquisition Workforce Title 10, U.S.C., Chapter 87, Sections 1701- No similar provision Improvement Act (DAWIA) streamlining. 1764 Would amend Title 10, U.S.C. to create a new DAWIA is the basis for nearly all of DOD's chapter 87A entitled "Defense Acquisition education, training and career development Workforce Streamlining." This new section programs for the acquisition workforce. would implement statutory changes in the Congress enacted DAWIA in the FY1991 management of the training, career accession, Defense Authorization Act. It is codified in and career education for the "acquisition, Chapter 87, Title 10, U.S.C., and has been technology, and logistics workforce,"and codify amended several times since enactment. such changes in the U.S. Code. Sec. 103. Priority placement of displaced No such program or similar statutes currently No similar provision civilian employees. exist in Title 10, but Title 5, U.S.C., Would add, to Title 10, U.S.C., a new section particularly the subchapters of chapter 35, 1599e, entitled "Defense priority placement U.S.C., Retention Preference, Restoration, and system." Reemployment, are relevant. Subchapter I, Retention Preference, 5 U.S.C. 3501 et seq.; Gives Secretary of Defense authority to and Subchapter V, Removal, Reinstatement, establish one or more programs to provide and Guaranteed Placement in the Senior displaced DOD civilian employees with priority Executive Service, 5 U.S.C. 3591 et seq., consideration for other DOD civilian employee contains numerous provisions related to positions. Prohibits appeals of any personnel placement of employees after they lose their actions undertaken pursuant to such programs positions. outside of DOD. Sec. 104. Establishment of auxiliaries within No directly-related existing statutes. Ch. 909, No similar provision the military departments to coordinate volunteer title 10, U.S.C., 10 U.S.C. 9441 et. seq., Civil efforts. Air Patrol; and ch. 23, title 14, U.S.C., 14 CRS-28 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Would add, to Title 10, U.S.C., a new chapter U.S.C. 821 et seq., Coast Guard Auxiliary, are 1015, entitled "Auxiliaries." the statutory bases for the two existing Auxiliaries would be volunteers who would auxiliary components of the armed forces. assist military departments in performing non- combat functions. Systematizes DOD management of volunteers. Subtitle B -- Transformation of Management of Senior Military Leadership (Sections 111-123) Sec. 111. Equivalency of pay for service chiefs No specific provision comparable. 37 U.S.C. No similar provision of staff and combatant commanders. 203 prescribes rates of basic pay in Specifies an identical rate of basic pay for accordance with 37 U.S.C. 1009; JCS certain senior officers (Chairman of the Joint Chairman's and service chiefs' pay first Chiefs of Staff, Vice Chairman of the Joint specified in Subsection 1(1), PL 85-422. Vice Chiefs of Staff, Chief of Staff of the Army, Chairman's pay included by Subsection Chief of Naval Operations, Chief of Staff of the 1314(d)(3), PL 100-180, 101 Stat. 1019 at Air Force, Commandant of the Marine Corps, 1176. 10 U.S.C. 1406 (1) contains special rule Commandant of the Coast Guard, and for computation of retired pay for former Combatant Commanders). Rate of basic pay Chairman and Vice-Chairman of the Joint would be 110% of the basic pay for an officer in Chiefs of Staff, service Chiefs, and Services' the O-10 grade with more than 26 years of Senior enlisted people. service. Adds Combatant Commanders to the list of people eligible for special rule for computation of retired pay. Sec. 112. Length of service for senior leaders of 10 U.S.C. 3033(a), 5033(a), 5043(a), and No similar provision the military departments. 8033(a) specify a four-year term for service Specifies a four-year term for Service Chiefs, chiefs, with one four-year extension allowed which the President may extend as he deems in time of war or natl emergency declared by necessary. Congress. CRS-29 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 113. Length of service for the Chairman 10 U.S.C. 152 prescribes a two-year term for No similar provision and Vice Chairman of the Joint Chiefs of Staff. JCS Chairman, beginning October 1, of odd- Specifies a two year term for the Chairman and numbered years; may be reappointed twice in Vice-Chairman of the Joint Chiefs of Staff; peace time and may be reappointed without allows the President to reappoint for additional limit in time of war. 10 U.S.C. 154 prescribes two year terms as he deems necessary. same for Vice Chairman except for October 1, provision. Sec. 115. Eliminate mandatory terms of service Numerous sections of title 10 U.S.C. No similar provision for certain general and flag staff officers. identified in draft bill prescribe mandatory Eliminates statutorily specified terms of office, terms for each service's legal, chaplain, and including maximum terms of service (usually health professional career branches, and some four years), for certain general and flag officers. others. These officers would instead serve at the pleasure of the President or the Secretary of the relevant military department. Sec. 116. Lateral reassignment of certain 10 U.S.C. 601 requires officers in grades O-9 No similar provision generals and admirals. and O-10 who are renominated to another Generally, would allow the President or position in the same grade to be confirmed by Secretary of Defense to reassign officers already the Senate in the new position. confirmed by the Senate in the grade of O-9 or O-10 to a position of the same grade without the need for a subsequent Senate confirmation. Reassignments to positions established in law (e.g. the Chairman of the Joint Chiefs of Staff and Service Chiefs) would continue to require Senate approval. CRS-30 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 117. Eliminate distribution quotas for 10 U.S.C. 525(a) requires at least, 50% of all No similar provision general and flag officers serving in grades of O- general/flag officers to be O-7s and no more 7 and O-8. than 15.7% - 17.5% to be O-9s and O-10s, Eliminates requirement that at least 50% of thus requiring the remainder to be O-8s by general and flag officers serve in grades O-7 and default. O-8. Does not affect caps on officers in O-9 and O-10 grades. Sec. 118. Extending age limits for active duty With minor exceptions, 10 U.S.C. 125 No similar provision general and flag officers. requires active duty general/flag officers to Sets normal mandatory retirement age for all retire at 62, with some extensions to 64. regular general and flag officers at 68, but allows the Secretary of Defense to defer such retirement to age 72. Does not affect current mandatory retirement age for officers in grades O-6 and below. Sec. 119. Extending age limits for Reserve and Sections 14510-512 of title 10 U.S.C. require No similar provision national Guard general and flag officers. reserve general/flag officers in grade O-7 to Sets normal mandatory retirement age for all retire at 60; O-8, 62; others holding particular reserve general and flag officers at 68, but positions at 64. 10 U.S.C. 10502 and 10505 allows the Secretary of Defense to defer such require age 64 retirement for senior officers in retirement to age 72. Does not affect current the National Guard Bureau. 10 U.S.C. 14508 mandatory retirement age for officers in grades generally requires the removal of reserve O-6 and below. Eliminates requirement that officers in paygrades O-7 and O-8 after reserve officers in grades O-7 and O-8 be reaching 30 or 35 years of service, removed after a specified number of years of respectively, or five years in grade, although a service or time in grade. Eliminates limitations small number of waivers are authorized. on term of office for the chiefs of the Army 10 U.S.C. 3038, 5143, 5144, and 8038 require Reserve, Naval Reserve, Marine Corps Reserve, four-year terms with one reappointment and Air Force Reserve. allowed for the Army, Naval, Marine Corps, and Air Force Reserve chiefs respectively. CRS-31 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 120. Eliminate mandatory retirement of 10 U.S.C. 635 requires active duty No similar provision active duty general and flag officers after 30 general/flag officers in grade O-7 to retire at years of service. 30 years of service; 10 U.S.C. 636 requires retirement at 35 years for O-8s, 38 years for O-9s, and 40 years for O-10s. Sec. 121. More flexible retirement rules for 10 U.S.C. 1370 requires, with minor No similar provision military officers. exceptions, officers to serve at least 3 years in Specifies that, in order to be eligible to retire at grade; requires that Secretary of Defense to a given grade, regular and reserve officers in certify in writing to Congress and the grades O-5 and O-6 must serve in that grade for President that officers in grades O-9 and O-10 three years; although the Secretary of Defense have "served on active duty satisfactorily" in may authorize the military departments to those grades before being allowed to retire in reduce this period to two years. Allows officers them; and prescribes detailed criteria for in grades O-7 to O-10 to be retired in the meeting the time-in-grade requirements highest grade in which the officer served specified. "satisfactorily" without a time in grade requirement. Retirements of officers in the O-9 and O-10 grades must be approved by the Secretary of the military department concerned, and concurred with by the Secretary of Defense or a presidentially designated and Senate confirmed civilian official in the Office of the Secretary of Defense. Eliminates the requirement that the Secretary of Defense certify the satisfactory service of these officers in writing to Congress and the President CRS-32 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 122. More flexible computation of retired Chapter 71 of title 10 U.S.C., 10 U.S.C. 1401 No similar provision pay for officers and senior enlisted members. et seq., limits retired pay to 75% of the retired Allows officers in grades O-7 and above, who pay computation base. have more than 30 years of service, to exceed the 75% limit on the retired pay multiplier specified in 10 U.S.C. 1409, for service performed after October 1, 2003. Allows the Secretary of Defense to establish conditions under which enlisted personnel in grades E-8 and E-9 with more than 30 years of service can receive similar additional credit. Sec. 123. Eliminated retired pay limit No existing law imposes the limit directly. No similar provision applicable to general and flag officers. Limit derives from 37 U.S.C. 203(a)(2), which limits active duty basic pay to that specified for Level III of the federal civilian Executive Schedule. CRS-33 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Subtitle C -- Transformation of Military Personnel (Sections 131-137) Sec. 131. Measuring personnel strengths. 10 U.S.C. 115 requires active duty, full-time No similar provision Would change the way Congress authorizes National Guard duty, and Selected Reserve military personnel strength levels from "end personnel strength at the end of each fiscal strength" -- that is, the personnel strength year to be authorized by Congress. which exists on September 30th, the end of the fiscal year -- to "average strength" -- that is, the average personnel strength level maintained over the course of the fiscal year. Sec. 132. Access to secondary schools by 10 U.S.C. 503(c) requires secondary schools No similar provision military recruiters. to provide military recruiters with the same Modifies 10 U.S.C. 503(c) so that only private access to its students as provided to post- secondary schools which a verifiable religious secondary institutions or employers, and to objection to service in the Armed Forces are provide access to student information such as exempt from the sections requirements on names, addresses, and phone numbers. granting recruiter access to secondary school Exceptions to this policy are made for schools students and student information. with verifiable religious objections to service in the Armed Forces and schools whose governing body has formally adopted a policy to deny recruiters access to their students and student information. 20 U.S.C. 7908 contains a similar policy, but only provides an exception for religious objections. Sec. 133. Waiver of military education All officers selected for promotion to No similar provision eligibility and post-education placement brigadier general/rear admiral (lower half) requirements. [grade O-7], are required by 10 U.S.C. 663 to Changes the Secretary of Defense's authority to attend a "Capstone" professional military CRS-34 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions waive Capstone requirements for certain education (PME) course to prepare them for officers. Allows him to waive the requirement joint military operations as general/flag for officers whose proposed selection for officers. Waivers are allowed for a variety of promotion is based primarily on "career field reasons, including for officers whose proposed specialty for which joint requirements do not selection for promotion is based primarily on exist." Eliminates the statutory requirements "scientific and technical qualifications for specifying the proportion of officers who must which joint requirements do not exist." go to a joint assignment immediately after Subsection 663(d) requires a certain graduation from a joint PME school. proportion of joint specialty officers who graduate from a joint PME course to go to a joint assignment immediately after graduation. Sec. 134. Length of joint duty assignments. 10 U.S.C. 664 prescribes the length of joint No similar provision Specifies that the length of a joint duty duty assignments, generally not less than two assignment will mirror the standard tour length or three years, and specifies the conditions the Secretary of Defense establishes for each under which the Secretary of Defense can installation or location. Specifies that duty at modify the length of these assignments. qualified Joint Task Force Headquarters Requires the Secretary of Defense to ensure requires one year of total service. No that average tour length meets specified requirements for controlling average tour duration. length. Sec. 135. Ordering reserve component 10 U.S.C. 12304 authorizes up to 200,000 No similar provision members to active duty to respond to disasters, reservists to be on active duty at any one time accidents, or catastrophes. if called other than in time of war or national Expands reasons under which 10 U.S.C. 12304 emergency under its provisions, with a limit can be used to activate reservists to include of 270 days for any reservist so activated. providing assistance to an emergency involving Domestic uses are not allowed except for serious disasters, accidents, or catastrophes. matters attendant to the use or threatened use of a weapon of mass destruction, or a serious terrorist attack or threatened attack CRS-35 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 136. Improved involuntary access to None. 10 U.S.C. 10147 specifies, in effect, No similar provision reserve component members for enhanced longstanding equivalents of one weekend per training. month and not less than 14 days of annual Allows the military departments to involuntarily training per year, or 30 days of annual training order reservists to active duty for up to 90 days only. -- with the consent of the governor in the case of National Guard units and personnel -- to perform additional training related to meeting deployment standards. Sec. 137. Medical and dental screening for Existing law 10 U.S.C. 1074a(d) provides, for No similar provision members of selected reserve units alerted for the Army reserve components only, medical mobilization. and dental screening for those units scheduled Allows DOD to provide medical and dental for deployment within 75 days after screening and care to members of the Selected mobilization. Reserve assigned to a unit that has been alerted for possible mobilization. Title II- Acquisition Transformation Subtitle A -- Transformation of Acquisition Process (Sections 201-206) Sec. 201. Repeal requirements for major 10 U.S.C. 2430 - Defines what is a "major No similar provision defense acquisition programs. defense acquisition program. This section would repeal the six statutory 10 U.S.C. 2431 - Weapons development and requirements for manpower estimates related to procurement schedules. major defense acquisition programs, and is part 10 U.S.C. 2432 - Selected Acquisition reports of DOD's desire for greater flexibility, 10 U.S.C. 2433 - Procurement Unit Costs CRS-36 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions efficiency, and "freedom to manage." 10 U.S.C. 2435 - Baseline descriptions. 10 U.S.C. 2440 - Technology and Industrial Base Plans 10 U.S.C. 2434 - Independent Cost Estimates; Operation Manpower Requirements. Sec. 202. Applicability of Clinger-Cohen Act Existing provisions of Clinger-Cohen Act: In No similar provision to equipment integral to a weapon or weapon accordance with 40 U.S.C. 11103, which system and DOD information technology defines "national security" information management. technology (IT) systems, 40 U.S.C. 11302-03 Permits Secretary of Defense to exempt this requires detailed oversight of national equipment from oversight and management security-related information technology controls of Clinger-Cohen Act contained in 40 acquisition by OMB. 40 U.S.C. 11312-13 U.S.C. 11302, 11303, 11312, 11313, and 11316. specifies various guidelines for maximizing efficiency and transparency in the IT acquisition and utilization process; 40 U.S.C. 11316 requires senior federal managers to carefully monitor agency IT management. 10 U.S.C. 2223(a) requires DOD Chief Reassigns DOD CIO system duplication Information Officer (CIO) to eliminate elimination responsibility contained in 10 duplicate IT systems in DOD and to maintain U.S.C. 22239(a) to Secretary of Defense and detailed inventory of DOD IT systems. eliminates inventory requirement. Sec. 811, PL 106-398, requires DOD CIO to closely monitor, and approve in stages, major DOD IT acquisition efforts; requires, through Repeals all provisions of Sec. 811, PL 106-398. FY2003, DOD to notify congressional defense committee when the CIO redesignates a "major" IT system as something else; and requires annual reports on DOD CRS-37 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions implementation of these statutes to those congressional defense committees. Repeals annual report requirement of Sec. 351, Sec. 351, PL 107-314, requires an annual PL 107-314. report to Congress on "high" and "low"- threshold IT programs. Sec. 203. Inflation adjustment of acquisition- 41 U.S.C. 421 established the Federal No similar provision related dollar thresholds. Acquisition Regulatory Council (FARC) as This section increases the FARC's authority by composed of the Federal Procurement Policy granting it the authority to adjust statutory Administrator, Secretary of Defense, NASA dollar thresholds for acquisition of goods or Administrator, and GSA Administrator, or services in consultation with, or using escalation their designated representatives. The FARC rates determined by Director, OMB, dating from publishes the Government-wide Federal the original enactment of the threshold to the Acquisition Regulation (FAR) and ensures date of the adjustment. Agency heads are that agency procurement regulations conform granted similar authority in statutes exclusive of to the FAR. their agencies. 40 U.S.C. 276(a) (Davis-Bacon Act) states that provisions of law dealing with wages paid 40 U.S.C. 276(a) is exempted from the authority on federal work shall apply to all contracts on to adjust thresholds. public buildings and works generally, whether advertised for bid or cost-plus. 41 U.S.C. 351 et seq. (Services Contract Act), Service Contract Labor Standards, specifies provisions to be included in each federal 41 U.S.C. 351 et seq. is exempted from the service contract in excess of $2,500 that uses authority to adjust thresholds. non-federal employees. CRS-38 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 204. Security interest exception to 10 U.S.C. 2533a. Requirement to buy certain No similar provision domestic source or content requirements. articles from American sources with some Amends Subtitle A, Part IV, Subchapter V, exceptions. Also known as the Berry Chapter 148 of Title 10 by adding Section Amendment. 2539(c), Waiver of domestic source or content requirements. Sec. 205. Clarification of Buy American 10 U.S.C. 2533a (see above) and 41 U.S.C. No similar provision requirements. 10a through 10d (known as the Buy American Amends 10 U.S.C. 2533a to allow DOD to Act). expedite the procurement of items needed to support contingency operations, and in situations of "unusual and compelling urgency." Sec. 206. Amendment of cataloging and 10 U.S.C. 2451(b) requires that each DOD No similar provision standardization provisions. item recurrently used be identified by a single 10 U.S.C. 2451(b) item identification unique catalog identification from purchase requirement is eliminated. through disposal. Eliminates 10 U.S.C. 2541(c) DOD 10 U.S.C. 2541(c) requires that DOD, to the standardization requirement. Permits DOD to highest extent practicable, standardize the adopt international or domestic voluntary specification, packaging, and preserving, and standards, to develop DOD standards only when efficiently inspect, test, and accept supply necessary, and to reduce number of sizes and items. kinds of similar items. 10 U.S.C. 2452 (2), (3), and (4) require the Secretary of Defense to direct the use of the Strikes 10 U.S.C. 2452(2),(3), and (4). Directs supply catalog for all supply functions from Secretary to participate with industry to develop determination of requirements to final voluntary standards and use them in lieu of disposal, direct the screening and description government specifications and standards to the of all items and the publication of the catalog, maximum extent. and to liaise with industry advisory groups on catalog and standardization program development. CRS-39 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions 10 U.S.C. 2452 (6) directs the Secretary to Renames "bureau and services" as "defense assign responsibility for parts of the catalog to agencies" in 10 U.S.C. 2452(6). military services and DOD bureaus and services. 10 U.S.C. 2452 (7) directs the Secretary to Deletes 10 U.S.C. 2452(7). establish time schedules for the assignments under (6), above. 10 U.S.C. 2453 and 2454 direct the Secretary Repeals 10 U.S.C. 2453 and 2454. of Defense to distribute parts of the supply catalog as they are produced and authorizes him/her to add new items and delete old items as necessary. Only items listed in the catalog may be routinely purchased, and new items, once purchased, must be added to the catalog. 10 U.S.C. 2457(d) requires a biennial report to Congress on progress in standardizing Eliminates 10 U.S.C. 2457(d). equipment with NATO members, including efforts undertaken and procurements made. 10 U.S.C. 2458 requires the Secretary of Defense to issue a single, uniform policy on Repeals 10 U.S.C. 2458 the management of DOD inventory items, and to consider efforts to eliminate waste and achieve cost savings in the performance evaluations of procurement and inventory managers. CRS-40 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Subtitle B-Transformation of Contracting Process (Sections 211-214) Sec. 211. Contracting for Security Guards and 10 U.S.C. 2465 - Prohibition on contracts for No similar provision Firefighting Services. Section 2465 of title 10, performance of firefighting or security-guard United States Code, would be repealed. functions generally denies obligation or Repeals current law by allowing DOD to expenditure of DOD appropriated funds for conduct competitions for security guard and firefighting and security guard functions at firefighting functions at military installations in any military installation or facility. the continental United States. Sec. 212. Contracts with small business. 10 U.S.C. 2381. Contracts: regulations for No similar provision Amends current law to establish annual goals bids. for DOD small business contracts, and creates a new section, 10 U.S.C. 2323. Contract goal for small (10 U.S.C. 2382. Contracts with small disadvantaged business and certain businesses.) institutions of higher education. 15 U.S.C. 544. Awards or contracts. Public Law 105-135, Small Business Reauthorization Act of 1997, Sections 411 through 414. Sec. 213. Performance based logistics: special 10 U.S.C. 2464. Core logistics capabilities. No similar provision procurement and funding authority. 10 U.S.C. 2466. Limitations on the Grants the Secretary of defense the authority to performance of depot-level maintenance of enter into long-term performance based logistics material. contracts, to improve the weapons procurement 10 U.S.C. 2469. Contracts to perform process, efficiency, and costs. workloads previously performed by depot- level maintenance and repair workloads formerly performed at certain military installations. 31 U.S.C. 1301. Application. CRS-41 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 214. Depot-related legislative reform. 10 U.S.C. 2460. Definition of depot-level No similar provision Amends 10 U.S.C. 2466 which allows no more maintenance and repair. than half (50%) of the funds made available in a given fiscal year, to a military department, for 10 U.S.C. 2466. Limitations on the depot-maintenance and repair work to be performance of depot-level maintenance of contracted out for performance by the private material. sector. The amendment would set a minimum of half (50%) of the depot maintenance and 10 U.S.C. 2469. Contracts to perform repair workloads to be performed by federal workloads previously performed by depot- government personnel or at government-owned level maintenance and repair workloads facilities. formerly performed at certain military installations. 10 U.S.C. 2469a. Use of competitive procedures in contracting for performance of depot-level maintenance and repair workloads formerly performed at certain military installations. 10 U.S.C. 2470. Depot-level activities of the Department of Defense: authority to compete for maintenance and repair workloads of other federal agencies. 10 U.S.C. 2472. Management of depot employees. 10 U.S. C. 2474. Centers of Industrial and Technical Excellence. CRS-42 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Title III -- Installation Management Transformation (Section 301) Sec. 301(a) would create a new chapter (§2015- While there is no exact comparable provision No similar provision §2019) in Part III of Subtitle A of Title 10 in the in current law, national security exemptions U.S. Code ("Training Generally"). This new may be obtained on a case-by-case basis under chapter would modify existing statutes the Endangered Species Act [16 U.S.C. indirectly for certain military and related 1536(j)]; Clean Air Act [42 U.S.C. 7418(b)]; activities, provisions that are sometimes referred Solid Waste Disposal Act [42 U.S.C. to as "waivers," for military readiness activities 6961(a)]; and CERCLA [42 U.S.C. 9620(j)]. from certain requirements under four federal environmental statutes that are codified under other titles: Endangered Species Act (16 U.S.C. 1531 et seq.); Clean Air Act (42 U.S.C. 7401 et seq.); Solid Waste Disposal Act (42 U.S.C. 6901 et seq.); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.). Consequently, the language of these four statutes would not be amended directly. This new chapter would apply to the Department of Defense and the U.S. Coast Guard. §2015. Purpose of this chapter. Explains the No comparable provision in current law. No similar provision Administration's justification for the need to modify certain environmental requirements to preserve the use of lands, marine areas, and airspace withdrawn or designated for military use, in order to ensure military readiness. CRS-43 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions §2016. Definitions. Would create statutory 10 U.S.C. 101 (Armed Forces) does not No similar provision definitions for (1) "military readiness include a comparable definition for "military activities," (2) "combat" or "combat use," and readiness activities" or "combat" or "combat (3) "Department" (as used in 10 U.S.C. use." 101(a)(6) to mean the Department of Defense and the U.S. Coast Guard). §2017. Military readiness and the conservation 16 U.S.C. 670a (Sikes Act Improvement Act) No similar provision of protected species. (a) would determine that requires the Secretary of each military an Integrated Natural Resource Management department to cooperate with the U.S. Fish Plan (INRMP) for military lands which and Wildlife Service and state fish and "addresses endangered or threatened species and wildlife agencies in order to prepare and their habitat" provides "special management implement an INRMP for each military considerations or protection" and would installation in the United States with therefore preclude designation of such lands as "significant" natural resources. Each plan is critical habitat under the Endangered Species to reflect a mutual agreement on integrating Act. an installation's mission with requirements to conserve, protect, and manage natural resources. 16 U.S.C. 1532(5)(A) (Endangered Species Act) defines "critical habitat" as geographical areas that are (i) "essential to the conservation" of an endangered or threatened species, and (ii) which "may require special management considerations or protection." Can include areas that are currently unoccupied by an endangered or threatened species if such areas include habitat that is essential to the conservation of the species. CRS-44 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions 16 U.S.C. 1533 specifies the criteria that the Secretary of the Interior or the Secretary of Commerce must use to determine whether a species is endangered or threatened. (b) would specify that precluding the 16 U.S.C. 1536(a)(2) requires each federal No similar provision designation of critical habitat for an endangered agency to consult with the Secretary of the or threatened species does not remove the Interior or the Secretary of Commerce to requirement for agency consultations under insure that any action carried out by that Section 7(a)(2) of the Endangered Species Act. agency "is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification" of critical habitat for such species, unless an exemption for the action has been granted by an "Endangered Species Committee," composed of the Secretary of the Army and the heads of several federal environmental and natural resource agencies. §2018. Conformity with State Implementation 42 U.S.C. 7506 (Clean Air Act) prohibits No similar provision Plans for air quality. Would provide that the federal departments or agencies from Department shall not be prohibited from engaging in or supporting activities that do not conducting military readiness activities under conform to a State Implementation Plan (SIP) the Clean Air Act's conformity requirement, but approved under the Clean Air Act. SIPs requires that the Department estimate the inventory emissions and identify the measures quantity of emissions caused by the readiness that will be taken to control them in order to activities, notify the state air quality agency attain six national air quality standards in before engaging in such activities, and ensure areas identified as nonattainment. conformity within 3 years of the date new activities begin. In assessing non-attainment of several standards, the Environmental Protection CRS-45 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Agency will consider whether an area would attain or maintain required air quality, "but for" DOD military readiness activities. §2019. Range management and restoration. 42 U.S.C. 6901(Solid Waste Disposal Act) No similar provision (a)(1)(A) would create a new statutory defines solid waste in general terms, but does definition of solid waste that would alter the not explicitly address military munitions. A definition provided in the Solid Waste Disposal more specific definition is provided in federal Act. The new definition would categorize regulation (40 CFR 266.202). These military munitions as solid waste if they have regulations identify the conditions under been deposited on an "operational range" and which military munitions are considered solid they (i) are removed for reclamation, treatment, waste, and are therefore subject to waste or disposal; (ii) are recovered, collected, and management and disposal requirements under disposed of by burial or land filling; (iii) the Solid Waste Disposal Act. There is migrate off an operational range and are not disagreement as to the extent to which the addressed under CERCLA; or (iv) are deposited current regulations differ from the off an operational range and are not "promptly Administration's proposed statutory language. rendered safe or retrieved." 42 U.S.C. 9601 et seq. (CERCLA) specifies requirements for response to contamination from the release of hazardous substances into the environment, as well as the liability for such response. (a)(1)(B)would specify that military munitions 42 U.S.C. 6971 (Section 7002) prohibits an No similar provision defined as solid waste shall be subject to employer from firing or discriminating against provisions in the Solid Waste Disposal Act, an employee who reveals a solid or hazardous "including but not limited to" provisions waste violation that an employer has regarding employee protection (Section 7002) committed. Also specifies reporting and citizen suits (Section 7003). requirements regarding information needed to protect the occupational safety and health of workers at solid and hazardous waste CRS-46 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions management and disposal facilities. 42 U.S.C. 6972 (Section 7003) permits citizen suits against any person who violates requirements under the Solid Waste Disposal Act. (a)(2) would establish statutory language to As noted above, 42 U.S.C. 6901 defines solid No similar provision exclude military munitions from the definition waste in general terms, but does not explicitly of solid waste if they (i) are used in training address military munitions. Rather, the activities, or research, development, testing and conditions when military munitions are evaluation of military munitions, weapons, or considered solid waste are specified in federal weapons systems and remain on an operational regulation (40 CFR 266.202). range; or (ii) are "promptly rendered safe or retrieved" when deposited off of an operational range; or (iii) are "recovered, collected, and destroyed on-range" in the process of clearing a range, "but not including the on-range burial of unexploded ordnance and contaminants when the burial is not a result of product use." (a)(3) would specify that military munitions on No comparable provision in current law. No similar provision an operational range would be subject to applicable legal requirements once the range ceases to be operational. b)(1) would create a new statutory definition of 42 U.S.C. 9601(22) (CERCLA) defines No similar provision "release" that would alter the definition of this "release" for the purposes of determining term under CERCLA for the activities covered. when the emission of a hazardous substance Military munitions would be defined as a into the environment is covered under "release" if they are deposited off an operational CERCLA. Military munitions are not range, or if they migrate off an operational explicitly addressed in the definition of release range. under current law. CRS-47 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions (b)(2) would establish statutory language to No comparable provision in current law. No similar provision exclude from the definition of "release" military munitions on an operational range that have been deposited "incident to their normal and expected use and remain thereon" from the definition of release under CERCLA. (b)(3) would retain the President's authority 42 U.S.C. 9606(a) (CERCLA) authorizes the No similar provision under CERCLA to take action in the event that President to take action that would abate an there is an "imminent and substantial imminent and substantial danger or threat to endangerment to the public health or welfare or public health or welfare, or the environment, the environment because of an actual or from an actual or threatened release of a threatened release of a hazardous substance," hazardous substance. resulting from the deposit or presence of military munitions on an operational range. Also would specify that the Department of Defense would retain its authority "to protect the environment, safety, and health on operational ranges." Sec. 301 (b) would amend the Marine Mammal 16 U.S.C. 1361 et seq. No similar provision Protection Act to preserve the use of marine areas for combat training purposes in order to ensure military readiness. This subsection would apply to the Department of Defense and the U.S. Coast Guard. §301(b)(1)(A) would provide a separate 16 U.S.C. 1362 (18) defines two levels of No similar provision definition of harassment applicable to military harassment that are applicable to all activities readiness activities. wherein marine mammals are pursued, tormented, or annoyed. Harassment is defined as anything having the CRS-48 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Harassment, applicable to military readiness "potential" to injure. activities, is defined as any action that injures or has "significant potential" to injure; or Harassment is defined as anything with the that disturbs or is "likely" to disturb; or "potential" to disturb. Harassment is defined as anything that such that "behavioral patterns are abandoned or "causes] disruption of behavioral patterns." significantly altered;" or is "directed toward a specific individual, group No comparable provision in current law. or stock of marine mammals in the wild," that is likely to disturb by disrupting behavior. §301(b)(1)(B) would add new definitions of These terms are not defined in current law. No similar provision "military readiness activities," "combat or combat use," and "Department of Defense." §301(b)(2)(A) would create a new category of 16 U.S.C. 1371 provides for a blanket No similar provision exemption for the Department of Defense, moratorium on the taking and import of providing for five-year authorizations for marine mammals, with specific exemptions, incidental taking of marine mammals, including for scientific research, public specifically for military readiness activities. display, photography, enhancement of This exemption is almost exactly the same as survival or recovery, import of polar bear that provided for the commercial fishing trophies from Canada, during commercial industry in 16 U.S.C. 1371(a)(5), with the fishing, deterring a marine mammal from addition that nothing "shall require disclosure of damaging private property or endangering information classified in the interests of national personal safety, and by certain Alaskan defense." Natives §301(b)(2)(B) would reletter subsections of 16 Technical amendment. No similar provision U.S.C. 1371. CRS-49 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions §301(b)(2)(C) would add, near the end of 16 No similar provision is provided by current No similar provision U.S.C. 1371, a blanket exemption for "actions law. necessary for national defense." Title IV -- Administrative Transformation Subtitle A -- Transformation of DOD Organization (Sections 401-405) Sec. 401 - Reorganization Within the 10 U.S.C. 125 - Functions, powers, and Sec. 872 - Reorganization of P.L. Department of Defense. Subsections (b) and (c) duties; transfer, reassignment, consolidation, 107- 296 authorizes the DHS of 10 U.S.C. 125 would be redesignated as or abolition restricts the power of the Secretary to allocate or reallocate subsections (c) and (d) and a new section (b) secretary, except when determined by the functions among officers and would be added, providing that, president to be necessary because of hostilities establish, consolidate, alter, or "Notwithstanding any provision of this title, or an imminent threat thereof, to transfer, discontinue organizational units but after the expiration of 60 days after providing reassign, consolidate, or abolish a function, only pursuant to the president's notice of such action to Congress, the Secretary power, or duty vested in DOD by law. reorganization plan in sec. 1502(b) of of Defense, subject to direction of the President, P.L. 107-296 or after expiration of 60 would be authorized substantially to transfer, days after notifying appropriate reassign, consolidate, reorganize, or abolish a congressional committees. This function, power, organization, position, or duty authority does not extend to vested in the Office of the Secretary of Defense, abolishing any agency, entity, or an officer, official, or agency thereof." organizational unit, program, or function established or required to be maintained by the P.L. 107-108 or other statute. Sec. 402 - Reassignment of Personnel Serving 10 U.S.C. 143 - Office of the Secretary of No similar provision in the Office of the Secretary of Defense. Defense (OSD) personnel establishes a Section 143 of title 10, United States Code, permanent limitation on OSD military and would be repealed. civilian personnel, defines personnel, and CRS-50 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions limits reassignment of functions to evade the personnel limitation Sec. 403 - Appointments of Retired Members of 5 U.S.C. 3326 - Appointments of retired No similar provision the Armed Forces to Positions in the members of the armed forces to positions in Department of Defense Section 3326 of title 5, the Department of Defense. A retired armed United States Code, would be repealed. forces member may not be appointed to a civil service position in DOD within 180 days immediately following retirement unless the secretary concerned authorizes it, the minimum rate of basic pay for the position has been increased under 5 U.S.C. 5305, or a state of national emergency exists. Sec. 404 - Transfer of Department of Defense No similar provision with respect to Personnel Security Investigative Functions and transferring security investigative Defense Personnel Performing Those Functions functions, but see below. grants the secretary discretion to transfer to OPM and OPM discretion to accept personnel Sec. 841(b) of P.L. 107-296 - Effect security investigation functions currently on Personnel, provides that (1) performed by DOD's Defense Security Service generally the transfer to the and, if OPM accepts those functions, it must Department of Homeland Security of accept the employees performing those full-time and part-time employees functions and their supervisors and may accept holding permanent positions shall not support staff and higher level supervisors. cause them to be separated or reduced Transferred personnel would be protected from in pay for 1 year after transfer; (2) separation or reduction in grade of any person who, on the day preceding compensation for one year after transfer date. transfer to the Department, held an Any transfer for this purpose would be Executive Level position and who, considered a transfer of function under 5 U.S.C. without a break in service, is 3503. appointed to a DHS position with 5 U.S.C. 3503 - Transfer of functions provides comparable duties continues to be that when a function is transferred from one compensated in the new position at CRS-51 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions agency to another or when one agency is not less than the rate provided for replaced by another, each competing such position for the duration of employee must be transferred before the service in the new position; and (3) receiving agency may make an appointment that any exercise of authority under from another source. chapter 97 of title 5 must conform with the requirements of section 841(b). Sec. 405 - Conversions of Commercial No similar provision Activities. (a) Section 2461(b)(3)(A) of title 10, United 10 U.S.C. 2461 - Commercial or industrial States Code, would be amended by (1) striking type functions; required studies and reports of "of the cost;" (2) striking "savings" and savings to be achieved before converting to inserting "best value;" (3) redesignating clause contractor performance (iii) as (iv); and (4) inserting after (ii) the following new clause (iii): "Benefits in addition Section 2461(b)(3)(A) states that: to price that warrant performance of the function by a source at a cost higher than that of (3) An analysis of commercial or industrial performance by Department of Defense civilian typ function for possible change to employees." performance by the private sector shall include the following: (A) An examination of the cost of performance of the function by Department of Defense civilian employees and by one or more private contractors to demonstrate whether change to performance by the private CRS-52 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions sector will result in savings to the government over the life of the contract, including in the examination the following: (i) The cost to the government, estimated by the Secretary of Defense (based on offers received), for performance of the function by the private sector. (ii) The estimated cost to the government of Department of Defense civilian employees performing the function. (iii) In addition to the costs referred to in clause (i), an estimate of all other costs and expenditures that would incur because of the award of such a contract. (b) Contracting if Best Value. - Section 2462(a) 10 U.S.C. 2462 - Contracting for certain No similar provision of title 10, United States Code, would be supplies and services required when cost is amended by striking "such a source can provide lower such supply or service to the Department at a cost that is lower (after including any cost Section 2462(a) states that: differential required by law, executive order, or regulation) than the cost at which the (a) In General. -- Except as otherwise Department can provide the same supply or provided by law, the Secretary of Defense service" and inserting "performance by that shall procure each supply or service necessary source represents the best value to the for or beneficial to the accomplishment of the government, determined in accordance with the authorized functions of the Department of competition requirements of OMB Circular A- Defense (other than functions which the 76." Secretary of Defense determines must be performed by military or government CRS-53 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions personnel) from a source in the private sector if such source can provide such supply or service to the Department at a cost that is lower (after including any cost differential required by law, executive order, or regulation) than the cost at which the Department can provide the same supply or service. Subtitle B -- Transformation of Appropriations and Budget Process (Sections 411-414) Sec. 411. Enhanced general transfer authority. 10 U.S.C. 2214 stipulates that funds No similar provision Relaxes 10 U.S.C. 2214. authorized in an appropriation Act for transfer Permits Secretary of Defense to transfer 2.5% of in a working capital fund or between funds annual working capital or military function (not appropriated for military functions of the military construction) appropriations between Department of Defense (other than military funds with 15-day prior notification to construction), the transferred funds are to be Congress. The percentage able to be transferred merged with and be used for the same purpose is doubled during war or national emergency. and for the same period as the existing The prohibition on presenting requests for appropriation. Amounts can be transferred for transfers to lower-priority items to Congress is use only on a higher priority item (based on an eliminated. unforseen military requirement) than for which originally appropriated and cannot be used for any item already denied by Congress. DOD and the military departments are forbidden to request transfer to a lower priority item. The Secretary is to promptly notify Congress of such transfer. CRS-54 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Sec. 412. Transfer of funds to correct specific No similar provision acquisition funding problems. This creates new authority within 10 U.S.C. 2214 to supplement development funds with transfers of up to $20 million (per program) or $250 million (per FY) from appropriated procurement accounts. Unused funds may be returned to procurement accounts. Sec. 413. Ballistic missile defense system. 10 U.S.C. 223 enacted as Section 233 of the Repeals 10 U.S.C. 223 which provides National Defense Authorization Act for Congress authority to require DOD to submit to Fy1998, P.L. 105-85. FY02 appropriations Congress budget justification material for conferees anticipated and supported creation individual programs of the ballistic missile of the MDA, but cautioned DOD against system. creating a management and decision-making structure that would limit oversight by operational test and evaluation and program review agencies (see H. Rpt 107-350). This was repeated for FY03 (H.Rept. 107-732). Sec. 414. Funding for the Missile Defense No existing statutes. No similar provision Agency (MDA). Directs that all funding for Missile Defense Agency activities be appropriated into a "Missile Defense Agency" account and maybe obligated for three years. This could reduce the separation between development and procurement funds. CRS-55 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions Subtitle C -- Transformation of Information Gathering for Congress (Sections 421-422) Sec. 421. Sunset on recurring reports, No similar provision (Cf. 109 Stat. 707 and Sec. 311(h), (j). Reports of the termination five years after the date of the 112 Stat. 3280). Homeland Security Science and enactment of the statute requiring the report, the Technology Advisory Committee are annual report of the Secretary of Defense (10 eliminated with the committee three U.S.C. 113) excepted. years after the effective date of the act. Sec. 312(f)-(g). Annual report of the Homeland Security Institute is eliminated with the Institute three years after the effective date of the act. Sec. 422. Repeal of 180 Department of Defense No Similar provision (Cf. 109 Stat. 707 and Sec. 889(b). Repeal of duplicative reporting requirements; modification of three 112 Stat. 3280). reports mandated by Sec. 1051 of other reporting requirements. P.L. 105-85 and Sec. 1403 of P.L. 105-261. Subtitle D -- Transformation of Management of Naval Vessels (Sections 431-432) Sec. 431. Repeal of notice and wait period prior 10 U.S.C. 7296 requires that, before the No similar provision to reducing the inventory of combatant surface number of Navy surface combatants (i.e., vessels. cruisers, destroyers, and frigates) can be 10 U.S.C. 7296 is repealed. reduced from 116 or higher to less than 116, or from some number less than 116 to a lesser number, the Secretary of the Navy must notify the House and Senate Armed Services Committees in writing, and a period of 90 days following the date on which the notification is received must expire. 10 U.S.C. 7296 also requires that, whenever the CRS-56 The Defense Transformation For the 21st Current Law Homeland Security Act of 2002 Century Act -- Proposed (Except DHS Citations) DHS-Specific Provisions number of active Navy surface combatants is less than 116, the Secretary of the Navy must maintain a sufficient number of inactive surface combatants on the Naval Vessel Register to enable the Navy to return to a force of not less than 116 surface combatants within 120 days after the date of any decision by the President to increase the number of surface combatants. Sec. 432. Overhaul and repair of ships on 10 U.S.C. 7310 prohibits the Navy from using No similar provision extended deployments. Adds provision to 10 shipyards outside the United States or Guam U.S.C. 7310 to permit a US-homeported vessel to overhaul, repair or maintain Navy ships that deployed overseas for more than 12 months to are homeported in the United States, except be overhauled, repaired, or maintained by a for the purpose of making voyage repairs (i.e., shipyard outside the US or Guam. repairing equipment that breaks while the ship is on an overseas voyage.). Subtitle E -- Miscellaneous Provisions (Section 441) Sec. 441. Support of foreign nations committed to No similar provision. No similar provision combating global terrorism. Would authorize $200 million. Permits Secretary of Defense with concurrence of Secretary of State, to provide up to $200 million annually in additional military assistance or support to foreign nations that assist the US in combatting global terrorism. CRS-57 Key Policy Staff Area of Expertise Name Phone E-Mail Acquisition and Contracting Valerie Grasso 7-7617 vgrasso@crs.loc.gov Budget Daniel Else 7-4996 delse@crs.loc.gov Central Intelligence Agency Richard Best 7-7607 rbest@crs.loc.gov Collective Bargaining Jon Shimabukuro 7-7990 jshimabukuro@crs.loc.gov Environmental Issues David Bearden 7-2390 dbearden@crs.loc.gov Foreign Service Susan Epstein 7-6678 sepstein@crs.loc.gov General Civil Service Policy Sharon Gressle 7-8677 sgressle@crs.loc.gov General Personnel Statutes Thomas J. Nicola 7-5004 tnicola@crs.loc.gov Military Personnel Robert L. Goldich 7-7633 rgoldich@crs.loc.gov Management Lawrence Kapp 7-7609 lkapp@crs.loc.gov Missile Defense Steven A. Hildreth 7-7635 shildreth@crs.loc.gov Naval Issues Ronald O'Rourke 7-7610 rorourke@crs.loc.gov Overall Civil Service Policy Barbara L. Schwemle 7-8655 bschwemle@crs.loc.gov and Compensation Reorganization and Reporting Harold Relyea 7-8679 hrelyea@crs.loc.gov Requirements Retirement and Re-employment Patrick Purcell 7-7571 ppurcell@crs.loc.gov Security Assistance Richard F. Grimmett 7-7675 rgrimmett@crs.loc.gov Senior Executive Service L. Elaine Halchin 7-0646 ehalchin@crs.loc.gov ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31916