For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31924 ------------------------------------------------------------------------------ Order Code RL31924 Report for Congress Received through the CRS Web Civil Service Reform: H.R. 1836, Homeland Security Act, and Current Law May 30, 2003 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 Civil Service Reform: H.R. 1836, Homeland Security Act, and Current Law Summary On May 8, 2003, the House Government Reform Committee ordered a bill to be reported that would significantly change the system for managing civilian personnel within the Department of Defense (DOD) and the National Aeronautics and Space Administration (NASA). If passed, H.R. 1836 would also change the compensation system for Senior Executive Service members throughout the government and make other general systemic changes with regard to human resources management. In April 2003, DOD General Counsel William Haynes sent Congress a significant reform proposal packaged as the "Defense Transformation for the 21st Century Act." Among the changes proposed would be establishing a chapter within Title 5 of the U.S. Code that would govern personnel management provisions unique to DOD. H.R. 1836 incorporates most of these provisions. Some of the provisions have been included in the House or Senate versions of FY2004 Defense authorizations (H.R. 1588, S. 1050). In particular, H.R. 1588, as passed by the House, incorporates Title I, most of Title II, and Title IV of H.R. 1836, as reported. Representative Tom Davis, Chairman of the House Committee on Government Reform, introduced H.R. 1836, known as the Civil Service and National Security Personnel Improvement Act. By making changes in selected federal personnel management statutory provisions, the bill is intended to improve the flexibility and competitiveness of federal human resources management. Defense authorization measures S. 297, as introduced, S. 1050, as reported, and H.R. 1588, as passed, echo many of the government-wide provisions of Title II of H.R. 1836. Provisions similar to those affecting NASA and the Securities and Exchange Commission (SEC) are also in H.R. 1085, S. 610, and H.R. 658. Overall, these proposals would grant agency heads more flexibility with respect to hiring, disciplining, and compensating civilian personnel. Some would argue that the most significant of these changes would relate to compensation. In each case, it is presumed that some form of pay banding would result. The Homeland Security Act of 2002 (P.L. 107-296, H.R. 5005) provides that the Secretary of Homeland Security and the Director of the Office of Personnel Management will work together to develop a system of personnel management unique to the Department of Homeland Security (DHS). It also provides for some government-wide changes in workforce management. The system is under development. The purpose of this report is to present, in tabular format, the alignment of H.R. 1836 with current statutory provisions and with those sections of the Homeland Security Act of 2002 related to personnel management and unique to the Department of Homeland Security. Since H.R. 1588 incorporates a significant portion of H.R. 1836, where appropriate, attention is called to the differences. If there are no notes, the provisions of H.R. 1836 were passed by the House in H.R. 1588. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 H.R. 1836, as Ordered to Be Reported, Compared to Current Law and Homeland Security Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Title I -- Department of Defense National Security Personnel System . . . . . . . . 4 New Title 5, Chapter 99 -- Department of Defense National Security Personnel System . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Title II - Department of Defense Civilian Personnel (Includes Government-wide Provisions) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Title III -- Provisions Relating to the Securities and Exchange Commission and the National Aeronautics and Space Administration . . . . . . . . . . . . . . 32 Subtitle A -- Securities and Exchange Commission . . . . . . . . . . . . . . . . . . 32 Subtitle B - National Aeronautics and Space Administration . . . . . . . . . . . 34 New Title 5, Chapter 98 -- National Aeronautics and Space Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 New Subchapter I -- Workforce Authorities . . . . . . . . . . . . . . . . . . . 34 New Subchapter II -- Personnel Provisions . . . . . . . . . . . . . . . . . . . . 47 Title IV -- Human Capital Performance Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 58 New Title 5, Chapter 54 - Human Capital Performance Fund . . . . . . . . . . . 58 Title V -- Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Personnel Provisions Unique to Proposed Defense Transformation for the 21st Century Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Contracting for Personal Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Contracting for Security Guards and Firefighting Services . . . . . . . . . . . . . 67 Administrative Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Civil Service Reform: H.R. 1836, Homeland Security Act, and Current Law Introduction In April 2003, the Department of Defense (DOD) sent Congress a proposal entitled the "Defense Transformation for the 21st Century Act."1 The proposal is principally directed to changes in the uniformed military personnel and acquisition systems. However, it also would change the statutory bases for much of the civilian personnel system. Policies related to general employment rules, compensation, and post retirement re-employment would be affected. H.R. 1588 was reported from the House Committee on Armed Services2 incorporating most of the transformation proposal provisions.3 As passed by the House on May 22, 2003, H.R. 1588 incorporates, with few changes, Title I, most of Title II, and Title IV of H.R. 1836, as ordered reported. DOD employs approximately 25% of the total federal civilian workforce.4 The Homeland Security Act of 20025 provides that the Secretary of Homeland Security and the Director of the Office of Personnel Management will jointly develop a system of personnel management unique to the Department of Homeland Security (DHS). It also provides for some government-wide changes in workforce 1 The text of the DOD proposal can be accessed at [http://www.defenselink.mil/dodgc/ lrs/docs/Transformation.pdf], visited May 6, 2003. 2 U.S. Congress, House, Committee on Armed Services, H.Rept. 108-106 (other publication data unavailable). See also CRS Report RL31916, Defense Department Original Transformation Proposal: Compared to Existing Law, by Robert L. Goldich, Gary J. Pagliano, Barbara L. Schwemle, and Thomas J. Nicola. 3 For further discussion of the provisions of the FY2004 Defense authorization legislation (H.R. 1588), see CRS Report RL31805, Authorization and Appropriations for FY2004: Defense, by Amy Belasco and Stephen Daggett. Also, the personnel provisions as proposed by the Department of Defense compared with current law are set out in CRS Report RL31916, Defense Department Original Transformation Proposal: Compared to Existing Law, by Robert L. Goldich, Gary J. Pagliano, Barbara L. Schwemle, and Thomas J. Nicola. 4 U.S. Office of Personnel Management, Federal Civilian Workforce Statistics -- Employment and Trends as of March 2002. Available at [http://www.opm.gov/feddata/ index.asp], visited May 19, 2003. 5 P.L. 107-296, H.R. 5005; Nov. 25, 2002; 116 Stat. 2135-2321. CRS-2 management. The system is under development.6 DHS employs approximately 6.3% of the total federal civilian workforce.7 Representative Tom Davis, Chairman of the House Committee on Government Reform, has introduced legislation (H.R. 1836) titled "Civil Service and National Security Personnel Improvement Act." The bill, by making changes in selected federal personnel management statutory provisions, is intended to improve the flexibility and competitiveness of federal human resources management. In addition to the civilian personnel provisions from the DOD proposal, it would make significant changes in the personnel management system at the National Aeronautics and Space Administration (NASA), with limited amendments to the system at the Securities and Exchange Commission (SEC). H.R. 1836 was ordered to be reported by the House Government Reform Committee on May 8, 2003. H.R. 1588, as passed, would incorporate Title I of H.R. 1836 with very few differences. One difference is that at the proposed new 5 U.S.C. 9902(j) in H.R. 1588, Section 1121, would specify that the hiring flexibility authorities the secretary could exercise would be those under 5 U.S.C. 4703(a)(1), (3), and (8). H.R. 1836, as reported, identified the authorities as hiring flexibilities under Chapter 47 as a whole. H.R. 1588, Title XI (Department of Defense Civilian Personnel), Subtitle A (Department of Defense Civilian Personnel Generally), contains two sections that were not part of H.R. 1836, as reported. Those sections related to military leave for mobilized federal civilian employees (Sec. 1102) and common occupational and health standards for differential payments as a consequence of exposure to asbestos (Sec. 1103). Two sections included in Title II of H.R. 1836, as reported, were not incorporated. Those are H.R. 1836, Section 202, "Civil Service Retirement System computation for part-time service" and H.R. 1836, Section 212, "Nonreduction in pay while Federal employee is serving on active duty in a reserve component of the uniformed services." Two proposals entitled "Federal Workforce Flexibility Act of 2003" have also been introduced in the 108th Congress by Senator George Voinovich (S. 129) and Representative JoAnn Davis (H.R. 1601). They contain several of the government- wide provisions of the proposed Federal Workforce Improvement Act of 2002 (S. 2651, 107th Congress) that were not enacted as part of the Homeland Security Act of 2002. These bills would amend current law provisions on personnel management demonstration projects; recruitment, relocation, and retention bonuses; critical pay; civil service retirement system computation for part-time service; pay administration; agency training; and annual leave. Although some provisions correspond to 6 For further narrative analysis of the Department of Homeland Security personnel provisions, see CRS Report 31500, Homeland Security: Human Resources Management, by Barbara L. Schwemle. 7 Employment and Trends, March 2002 does not provide DHS numbers. It is estimated that DHS will be staffed by 170,000 federal civilian employees. CRS-3 provisions in the newer proposals, for example, part-time service computation for retirement, there has been no effort to incorporate these provisions into this report.8 The purpose of this report is to present, in tabular format, the alignment of the provisions of H.R. 1836 with current statutory provisions and with those sections of the Homeland Security Act of 2002 related to personnel management and unique to the Department of Homeland Security. If H.R. 1836 or similar personnel management legislation were enacted, there would be four chapters in Title 5 of the U.S. Code that established personnel provisions and flexibilities unique to specific agencies (the Internal Revenue Service, DHS, NASA, and DOD). Contributors to this report are L. Elaine Halchin, Jon Shimabukuro, Patrick Purcell, Jack Maskell, Bob Lyke, and Sharon Gressle. The report is keyed off H.R. 1836. The other columns are "Current Law," which is Title 5 of the U.S. Code, unless otherwise noted, and related personnel provisions unique to DHS under P.L. 107-296. Because H.R. 1588, as passed by the House on May 22, 2003, incorporates significant sections of H.R. 1836, the H.R. 1588 (as passed by the House) sections are denoted in bold where appropriate. The provisions are similar, if not identical. Differences are noted. It is expected this report will be revised in the near future to key off the personnel provisions of Title XI of H.R. 1588. H.R. 1588 is, presumably, the vehicle against which the Senate will work in making amendments. Although there has been some discussion about incorporating into other bills the provisions of Title III of H.R. 1836 as they relate to the personnel systems in the SEC and NASA, no such bills have been reported to date. Given the scope of the proposed legislation, the authors and other contributors have, in this first look, set out the basic provisions, hoping to provide the readers with a type of roadmap to the bill. The reader should understand that every effort has been made to be comprehensive in identifying statutes currently in effect which would relate to the proposed changes in policy. However, there may be related statutory provisions that we have not identified. 8 For a comparison of the proposals in S. 129 and H.R. 1601, see CRS Report RL31516, Civil Service Reform Proposals: A Side-by-Side Comparison of S. 129 and H.R. 1601 (108th Congress) with Current Law, by Barbara L. Schwemle and L. Elaine Halchin. CRS-4 H.R. 1836, as Ordered to Be Reported, Compared to Current Law and Homeland Security Act H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Sec. 1. Short title: "Civil Service and National Security Personnel Improvement Act." Title I -- Department of Defense National Security Personnel System Sec. 101. Short title: "National Security Personnel System Act." Sec. 102 - Department of Defense (DOD) National No similar provision Sec. 841 of P.L. 107-296 - Establishment Security Personnel System. of Human Resources Management [H.R. 1588, Sec. 1111] System. (a) In General. Would amend 5 U.S.C. Part III, Subpart Amended 5 U.S.C. Part III, Subpart I by I by adding New Title 5, Chapter 99 -- adding a new Chapter 97- Department of Department of Defense National Homeland Security Security Personnel System 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; 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 human resources management system resources management system. CRS-5 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 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 5, the DHS Secretary and OPM Director have secretary could, in regulations prescribed jointly with the same authority to establish and adjust the director, establish, and from time to time adjust, a a new system, as that proposed for DOD. human resources 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 No similar provision essential to the national 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 5 U.S.C. 553 - Rule making exempts rules of Same, except that internal rules of would be established as internal rules of departmental agency or departmental procedure from departmental procedure "shall not be procedure not subject to review, consistent with 5 Federal Register notice and requirements. subject to review" rather than "consistent U.S.C. 553. with 5 U.S.C. 553." New 5 U.S.C. 9902(b) - System Requirements. Any 5 U.S.C. 9701(b). System system under (a) would (1) be flexible; Requirements. Same, except as noted (2) be contemporary; (3) not waive, modify, or otherwise affect -- (A) the The provisions of Title 5 which could not be public employment principles of merit and fitness set waived, modified, or otherwise affected are forth in 5 U.S.C. 2301, including the principles of 5 U.S.C. 2301 -- Merit System Principles hiring based on merit, fair treatment without regard to 5 U.S.C. 2302 -- Prohibited Personnel political affiliation or other non-merit considerations, Practices equal pay for equal work, and protection of employees against reprisal for whistleblowing; (B) any provision CRS-6 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 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 uses "civil service" instead of "public III (as described in subsection (c)); or (E) any rule or service" regulation prescribed under any provision of law referred to in this paragraph; (4) ensure that employees could organize, 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 does not include "subject to the provisions provisions of Chapter 99 and any exclusion from of Chapter 99" coverage or limitation on negotiability established pursuant to law; (5) not be limited by any specific law or authority (5) not included; (5) in the DHS Act under Title 5 that is waivable under Chapter 99 or by permits category rating system 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; and (6) include a performance management system that incorporates the following elements: (A) adherence to merit principles set forth in 5 U.S.C. 2301; (B) a fair, credible, and transparent employee performance appraisal system; (C) a link between the performance CRS-7 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 management system and the agency's strategic plan; (D) a means for ensuring employee involvement in the design and implementation of the system; (E) adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the performance management system; (F) a process for ensuring ongoing performance feedback and dialogue between managers, supervisors, and employees throughout the appraisal period, and setting timetables for review; (G) effective safeguards to ensure that the management of the system is fair and equitable and based on employee performance; and (H) a means for ensuring that adequate agency resources are allocated for the design, implementation, and administration of the performance management system. New 5 U.S.C. 9902(c) Other Nonwaivable Provisions. Other protected Title 5 provisions would be: 5 U.S.C. 9701(c) - Other Nonwaivable The other provisions of this part referred to in (1) Part III -- Employees (table of contents Provisions. Same, except that Chapter 55 subsection (b)(3)(D) are (to the extent not otherwise of Part III precedes 5 U.S.C. 2101) Subchapter V - Premium Pay also is specified in this title) -- (1) Subparts A, B, E, G, and H Subpart A -- General Provisions nonwaivable at DHS, as is Chapter 97 - of 5 U.S.C. Part III; and Chapters 41, 45, 47, 55 Subpart B -- Employment and Retention Department of Homeland Security. (except Subchapter V thereof), 57, 59, 72, 73, and 79, Subpart E -- Attendance and Leave and this chapter [Chapter 99]. Subpart G -- Insurance and Annuities Subpart H - Access to Criminal History Information (2) 5 U.S.C. Chapters 41 -- Training 45 -- Awards for Superior Accomplishments CRS-8 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 47 -- Personnel Research Programs and Demonstration Projects 55 -- Pay Administration (Subchapter V is Premium Pay) 57 -- Travel, Transportation, and Subsistence 59 -- Allowances 72 -- Anti-discrimination; Right to Petition Congress 73 -- Employees' Right to Petition Congress 79 -- Services to Employees waiver New 5 U.S.C. 9902(d) -- Limitations Relating to Pay Title 5, Chapter 53 (Pay Rates and Systems), 5 U.S.C. 9701(d) Limitations Relating to (1) Nothing in this section would constitute authority to Subchapter II (Executive Schedule Pay Pay. Nothing in this section constitutes modify the pay of any employee who serves in an Rates) authority (1) Same, except that it adds "or Executive Schedule position under 5 U.S.C. Chapter a position for which the rate of basic pay 53, Subchapter II. 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 amount in a Same, except for "under title 10"; 5 U.S.C. (2) to fix pay for any employee or position calendar year of allowances, differentials, bonuses, 5307 - Limitation on certain payments caps at an annual rate greater than the awards, or other similar cash payments paid under Title total pay, including all cash payments such maximum amount of cash compensation 5 to any employee who is paid under 5 U.S.C. 5376 or as allowances and awards to the annual rate allowable under 5 U.S.C. 5307 - 5383 or under Title 10 or under other comparable pay of basic pay for level I of the Executive Limitations on certain payments in a year; authority established for payment of Department of Schedule ($171,900 in 2003); however, for or Defense senior executive or equivalent employees those paid under 5 U.S.C. 5376 -- Pay for could not exceed the total annual compensation certain senior level positions (including those (3) to exempt any employee from the payable to the Vice President. classified above GS-15, scientific and application of 5 U.S.C. 5307. CRS-9 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 professional positions under 5 U.S.C. 3104, The cap for positions under 5 U.S.C. 5376 and SES); or 5 U.S.C. 5383 -- Setting and 5383 was raised from level I of the individual senior executive pay, the cap is Executive Schedule to the total the total compensation payable to the Vice compensation of the Vice President by President under 3 U.S.C. 104 - Salary of the Sec. 1322 of P.L. 107-296. Vice President ($198,600) 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 5 U.S.C. 9701(e) Same as DOD proposal, Collaboration with Employee Representatives collaboration and development of a new except that the DHS Secretary is not human resources management system, but granted authority to engage in The secretary and OPM director would be required to labor organizations having national collaborative activities at a national provide a written description of the proposed human consultation rights in connection with any organizational level above the level of resources management system or adjustments to such agency must be informed of any substantive exclusive recognition. Moreover, DHS system to employee representatives. The change in conditions of employment collaboration procedures must ensure -- representatives would be given at least 30 calendar proposed by an agency, and must be (1) in the case of individuals in a labor days (unless extraordinary circumstances require earlier permitted reasonable time to present their organization that has been accorded action) to review and make recommendations with views and recommendations regarding exclusive recognition, representation by respect to the proposal. These recommendations would changes. See 5 U.S.C. 7113 -National individuals designated by or from such have to be given full and fair consideration. The consultation rights. organization; (2) in the case of individuals secretary and director would notify Congress of those not within a bargaining unit, parts of the proposal for which recommendations were representation by an organization which made but not accepted. They also would be required to represents a substantial number; (3) fair meet and confer with employee representatives for not and expeditious handling of the less than 30 calendar days to attempt to reach consultation and mediation process, agreement on whether and how to proceed with those including procedures by which, if the CRS-10 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 parts of the proposal for which recommendations were number of employee representatives not accepted. The secretary or a majority of the exceeds 5, for representatives to select a employees representatives participating in the committee to meet and confer with the consultation could use the services of the Federal secretary and Director of OPM; and (4) Mediation and Conciliation Service to assist with the selection of representatives in a manner discussions. After 30 calendar days following consistent with the relative number of notification and consultation, the secretary could employees represented by organizations or implement any or all of the disputed parts if it was other representatives involved. determined that further consultation and mediation would be unlikely to produce agreement. The secretary Title 5, chapter 71 - Labor-Management and director would develop a method for employee and Employee Relations is subject to representatives to participate in any further planning or waiver or adjustment in developing a new development if a proposal was implemented. Any human resources management system. procedures necessary to facilitate collaboration would be established as internal rules of department procedure See also 5 U.S.C. 9701(g) - Establishment not subject to review. of Human Resources Management System - Provisions Relating to Labor- 5 U.S.C. 553 - Rule making -- waives Management Relations, which provides Federal Register notice and comment that nothing in the new section shall be procedures for internal agency rules of construed as conferring authority on the procedure. Secretary to modify any provisions of section 842 - Labor- Management 5 U.S.C. 7103(b) - Definitions; application Relations of P.L. 107-296. Sec. 642 grants authorizes the President to issue an order some measure of protection to agencies, excluding an agency or subdivision thereof if bargaining units, and individuals from the President determines that either has as a exclusion from coverage of Title 5 primary function intelligence, counter- Chapter 71- Labor Management and intelligence, or national security work and Employee Relations unless missions that Chapter 71 procedures cannot be applied change to intelligence, CRS-11 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 consistent with national security. The counterintelligence, or investigating President may issue an order with respect to terrorism; and Sec. 1512 of P.L. 107-296 - any agency, installation, or activity located Savings Provisions, which states that outside the 50 states and D.C. if the President completed administrative actions, determines the suspension necessary in the including contracts, of an agency affected interest of national security. 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. New 5 U.S.C. 9902(f) -- Provisions Regarding No similar provision with respect to national No similar provision, but Title 5, Chapter National Level Bargaining level bargaining, but see 5 U.S.C. 7111 - 71 - Labor-Management and Employee Any human resources management system Exclusive recognition of labor organizations, Relations is subject to waiver or implemented or modified under the new Ttitle 5, and 5 U.S.C. 7114 - Representation rights adjustment in developing a human Chapter 99 could include DOD employees from any and duties resources management system. 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 CRS-12 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 statutory third-party dispute resolution procedures outside DOD, except as otherwise provided in the new Chapter 99. 5 U.S.C. 7105 - Powers and duties of the [Federal Labor Relations] Authority New 5 U.S.C. 9902(g) - Provisions Relating to Title 5, Chapter 77 - "Appellate procedures" Sec. 841(a) created 5 U.S.C. 9701(f) Appellate Procedures. (1) Directs the secretary to (A) grants right to appeal agency disciplinary Provisions Relating to Appellate establish an appeals process which provides that DOD actions to the Merit Systems Protection Procedures. employees are entitled to fair treatment in any appeals Board. Same with the following differences: that they bring in decisions relating to their -- Expression as sense of the Congress employment; and (B) in prescribing regulations for any rather than directive to the DHS Secretary such appeals process the secretary would be required to -- authority to issue appellate procedure (i) ensure that DOD employees are afforded the regulations is granted jointly to the DHS protections of due process; and (ii) toward that end, Secretary and the OPM Director, not only would have to consult with the Merit Systems to the Secretary as in DOD Protection Board before issuing any such regulations. (2) Any regulations establishing the appeals process (1) that relate to any matters within the purview of Chapter -- no requirement for independent review 77 - Appellate Procedures would have to (A) provide panel for an independent review panel, appointed by the President, not including the secretary or assistant secretary or their subordinates; (B) be issued only after (i) notifying the appropriate congressional committees; and consulting with the Merit Systems Protection -- no notification to appropriate Board and the Equal Employment Opportunity congressional committees Commission; (C) ensure the availability of procedures -- consultation with Merit Systems that (i) are consistent with the requirements of due Protection Board only not MSPB and the process; and (ii) provide, to the maximum extent Equal Employment Opportunity CRS-13 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 practicable, for the expeditious handling of any matters Commission involving DOD; and (iii) modify Chapter 77 procedures only insofar as those modifications are Title 5, Chapter 77 - "Appellate designed to further the fair, efficient, and expeditious procedures" resolution of matters involving DOD employees. is subject to waiver or adjustment in developing a human resources management system. New 5 U.S.C. 9902(h) Provisions Related to With the approval of the Office of Personnel Sec. 472. Similar voluntary separation Separation and Retirement Incentives Management (OPM), a federal agency incentives authorized for the Immigration Authorizes the Secretary of Defense to offer (1) early undergoing restructuring or downsizing can and Naturalization Service and Border retirement to employees who are age 50 or older with offer voluntary early retirement to employees Patrol. 20 years of service or any age with 25 years of service in specific occupational groups, Sec. 1313(b) Made the changes that are and (2) separation incentive pay of up to $25,000 to organizational units, or geographic locations now law. DOD employees who retire or resign. Prohibits re- who are age 50 or older and have at least 20 employment within DOD for 12 months after receipt of years of service, or are any age and have at separation pay unless prohibition is waived by the least 25 years of service. Also with the Secretary case-by-case. Requires anyone who is re- approval of OPM, a federal agency may offer employed by the federal government within 5 years of voluntary separation incentive payments of receiving separation pay to repay the full amount to the up to $25,000 to employees who retire or DOD. No OPM review is required. resign. The full amount must be repaid if individual is re-employed by the federal government within five years. 5 U.S.C. 8336 - Immediate Retirement (Civil Service Retirement System) and 5 U.S.C. 8414 - Early retirement (Federal Employees' Retirement System) Title 5, Chapter 35 -Retention Preference, Voluntary Separation Incentive Payments, CRS-14 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Restoration, and Reemployment, Subchapter II - Voluntary Separation Incentive Payments (5 U.S.C. 3521-3525) New 5 U.S.C. 9902(i) Provisions Relating to Generally, a retired federal employee who is No similar provision Reemployment: Provides that if a retired federal re-employed by the federal government may employee who is receiving an annuity from the Civil not receive a federal retirement annuity and a Service Retirement and Disability Fund becomes federal salary simultaneously. Sections 8344 employed by the Department of Defense, his or her (CSRS) and 8468 (FERS) of Title 5, U.S.C. annuity will continue. The employee will not accrue provide that a retired federal employee who additional credit under either CSRS or FERS during is receiving an annuity from the Civil this period of re-employment. Service Retirement and Disability Fund who is re-employed by a federal agency, will have an amount equal to the annuity deducted from his or her pay. If re-employment lasts more than one year, the individual will be eligible for a supplemental annuity for the period of re-employment when he or she retires. New 5 U.S.C. 9902(j) Provisions relating to hiring -- 5 U.S.C. 4703 - Authorizes OPM to conduct No similar provision; law stated that 5 Notwithstanding section 9902(c), the secretary could demonstration projects. Subject to 4703, U.S.C. Chapter 47 could not be waived or exercise hiring flexibilities that would otherwise be demonstration projects are not limited by any modified. available to the secretary under 5 U.S.C. 4703. lack of specific Title 5 authority or by any Title 5 provision or regulation which is inconsistent with the action, including any law or regulation relating to the methods of establishing qualification requirements for, recruitment for, and appointment to CRS-15 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 positions. No sunset provision No similar provision 5 U.S.C. 9701 - Sunset Provisions. Provides that all authority of the Secretary and OPM Director jointly to issue regulations to establish and adjust the DHS human resources management system ceases to be available. New 5 U.S.C. 9903. Attracting highly qualified See counterpart for 9904(b) below. No similar provision experts. New 5 U.S.C. 9903(a) In General. The secretary could P.L. 105-261, Sec. 1101 (1998) (5 U.S.C. No similar provision carry out a program using the authority provided in (b) 3104(a) note) - Defense Advanced Research in order to attract highly qualified experts in needed Projects Agency Experimental Personnel occupations, as determined by the secretary. Management Program for Technical Personnel 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. CRS-16 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 New 5 U.S.C. 9903(b) - Authority 5 U.S.C. 3104 - Employment of specially No similar provision Under the program, the secretary could -- qualified scientific and professional (1) appoint personnel from outside the civil service and personnel uniformed services (as such terms are defined in 5 5 U.S.C. 3104 note. Similar, but special U.S.C. 2101) to positions in DOD without regard to appointment authority is limited to any provision of this title governing the appointment of "scientists and engineers" and "not more employees to positions in DOD; than 20 scientific and engineering positions (2) prescribe the rates of basic pay for positions to in the Defense Advanced Research Projects which employees are appointed under (1) at rates not in Agency." Same authority to prescribe basic excess of the maximum rate of basic pay authorized for rate of pay, but no authority to increase basic senior-level positions under 5 U.S.C. 5376, as pay by locality-based comparability increased by locality-based comparability payments, payments. notwithstanding any provision of this title governing the rates of pay or classification of employees in the 5 U.S.C. 3324 - Appointments to positions executive branch; and classified above GS-15 (generally requires (3) pay any employee appointed under (1) payments in OPM approval) addition to basic pay within the limit applicable to the employee under (d)(1) below. 5 U.S.C. 3325 - Appointments to scientific and professional positions (generally requires OPM approval of qualifications) 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) CRS-17 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 5 U.S.C. 5376 - "Pay for certain senior- level positions" generally limits pay to not less than 120 percent of the maximum basic pay rate for GS-15 and not greater than basic pay rate for level IV of the Executive Schedule. 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. 9903(c) - Limitation on Term of 5 U.S.C. 3104(c) note. Term of initial No similar provision Appointment appointment limited to 4 years with up to a 2 (1) Except as provided in (2), the service of an year extension employee under an appointment 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. CRS-18 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 New 5 U.S.C. 9903(d) - Limitations on Additional 5 U.S.C. 3104 note. Similar, but additional Sec. 841(a) (5 U.S.C. 9701(d)) Payments payments may not exceed the least of (A) Limitations Relating to Pay of P.L. 107- (1) The total amount of the additional payments paid to $25,000; (B) the amount equal to 25 percent 296 generally prohibits paying any an employee under this section for any 12-month of the employee's annual rate of basic pay; employee at a rate greater than the period could not exceed the least of the following (C) the amount of the limitation applicable maximum amount allowable under 5 amounts: (A) $50,000 in FY 2004, which could be for a calendar year under 5 U.S.C. 5307(a). U.S.C. 5307 or exempting any employee adjusted annually thereafter by the secretary, with a Same with respect to ineligibility for any from 5 U.S.C. 5307, which generally percentage increase equal to one-half of one percentage bonus, monetary award, or other monetary limits total pay, including awards and points less than the percentage by which the incentive. other cash payments, to level I of the Employment Cost Index, published quarterly by the Executive Schedule, except for some high Bureau of Labor Statistics, for the base quarter of the 5 U.S.C. 5307 - Limitation on certain level positions which are limited to the year before the preceding calendar year exceeds the payments limits the amount to cash salary of the Vice President. Employment Cost Index for the base quarter of the payments such as allowances and awards second year before the preceding calendar year. (B) plus salary to level I of the Executive The amount equal to 50 percent of the employee's Schedule ($171,900 in 2003), except for annual rate of basic pay. some high level positions which are limited (2) An employee appointed under this section would to the salary of the Vice President not be eligible for any bonus, monetary award, or other ($198,600). monetary incentive for service except for payments authorized under this section. Title 5, Chapter 45 - Incentive Awards New 5 U.S.C. 9903(e) - Savings Provisions In 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 employment in that position before the expiration of the lesser of -- (A) the period for which CRS-19 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 the employee was appointed; or (B) the period to which the employee's service is limited under (c), including any extension made under this section before the termination of the program; and (2) the rate of basic pay prescribed for the position under this section could not be reduced as long as the employee continues to serve in the position without a 5 U.S.C. 5363 - Pay retention Sec. 841(b) of P.L. 107-296 - break in service. Nonseparation or Nonreduction in Grade or Compensation of Full-Time and Part- Time Personnel Holding Permanent Positions generally prevents separation or reduction in pay or grade for one year following transfer to DHS New 5 U.S.C. 9904. Employment of older Americans. Generally, under 5 U.S.C. 8344 (CSRS) and No similar provision Would allow the Secretary of Defense to appoint 8468 (FERS) a retired federal employee who American citizens age 55 or older to positions in the is re-employed by the federal government excepted service (i.e., not part of the competitive civil may not receive a federal retirement annuity service) for a period not to exceed two years (plus a and a federal salary simultaneously. Under possible additional two-year reappointment).The section 203 of the Social Security Act (42 appointed individual could not displace another DOD U.S.C. 403), an individual under age 65 who employee or be in reduction-in-force status from an receives Social Security benefits and who equivalent job in DOD, and must be qualified for the also is employed is subject to an "earnings job, "as determined by the Secretary." An individual test." In 2003, a Social Security recipient appointed to such a position who was receiving an under age 65 has his or her Social Security annuity, pension, Social Security, retired pay or similar benefit reduced by $1 for each $2 of earnings payment could not have such payment reduced as a in excess of $11,520. result of the appointment. CRS-20 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 New 5 U.S.C. 9905. Special pay and benefits for 10 U.S.C. 1605 - Benefits for certain No similar provision certain employees outside the United States [No (a) employees assigned outside the United designation appears in the text.] The secretary could States. (Provisions is similar, but authorizes provide to certain civilian employees of DOD assigned providing allowances and benefits from more to activities outside the United States and designated statutory sources and makes this authority by the secretary for the purposes of this subsection -- effective only to the extent appropriations are (1) allowances and benefits -- (A) comparable to those available for this purpose. provided by the Secretary of State to members of the Foreign Service under Chapter 9 of Title I of the Foreign Service Act of 1980 or any other provision of law; or (B) comparable to those provided by the Director of Central Intelligence to personnel of the Central Intelligence Agency (CIA); and (2) special retirement accrual benefits and disability in the same manner provided for by the CIA Retirement Act and in 50 U.S.C. 403r - Special annuity Section 18 of the CIA Act of 1949. Authority to pay computation rules for certain employees' these benefits is not limited to extent appropriations service abroad generally allows higher have been provided. annuity rates for overseas service. Sec. 102(b) Impact on Department of Defense Civilian No similar provision Sec. 841(b)(3) of P.L. 107-296 - Personnel Coordination Rule is identical to the (1) Any exercise of authority under the new Chapter 99 proposed 5 U.S.C. 9905(b)(1), but there is of Title 5, including under any system established no counterpart to 5 U.S.C. 9905(b)(2). under such chapter, would have to be in conformance with the requirements of this subsection. (2) No other provision of the act, or any provision made by it, should be construed or applied in a manner so as to limit, supersede, or otherwise affect provisions of Sec. 9905, except to the extent that it does so by specific reference to Sec. 9905. CRS-21 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Title II - Department of Defense Civilian Personnel (Includes Government-wide Provisions) Sec. 201. Modification of the overtime pay cap 5 U.S.C. 5542 - Overtime rates; computation No similar provision [H.R. 1588, Sec. 1101] (a)(2) For an employee whose basic pay is at Would amend 5 U.S.C. 5542(a)(2) by (1) inserting "the a rate which exceeds the minimum rate of greater of" before "one and one-half"; and (2) by basic pay for GS-10 (including any inserting "or the hourly rate of basic pay of the applicable locality-based comparability employee" after "law)" the second place it appears. payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law), the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of the minimum rate or basic pay for GS-10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law), and all that amount is premium pay. Sec. 202. Civil Service Retirement System 5 U.S.C. 8339 - Computation of annuity. No similar provision computation for part-time service Employees covered by CSRS who work Would amend 5 U.S.C. 8339 to clarify that CSRS part-time before retiring experience retirement annuities based in whole or in part on part- disproportionately large cuts in their time service are to be prorated only for the period of retirement annuities as the result of a CRS-22 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 service that was performed on a part-time basis. regulation adopted in response to the Comprehensive Omnibus Budget Reconciliation Act of 1986 (P.L. 99-272). Sec. 203. Military leave for mobilized federal civilian 5. U.S.C. 6323 - Military leave; Reserves No similar provision employees and National Guardsmen [H.R. 1588, Sec. 1102] (a) In General. Would amend 5 U.S.C. 6323 by redesignating subparagraphs; and by inserting the following before the text beginning with "is entitled": (B) performs full-time military service as a result of a call or order to active duty in support of a contingency operation as defined in 10 U.S.C. 101(a)(13). Effective Date. The amendments made by (a) would apply to military service performed on or after the act's enactment. Sec. 204. Common occupational and health standards 5 U.S.C. 5343 - Prevailing rate No similar provision for differential payments as a consequence of exposure determinations; wage schedule; night to asbestos differentials [H.R. 1588, Sec. 1103] (c)(4) for proper differentials, as determined (a) Prevailing Rate Systems. Would amend 5 U.S.C. by OPM, for duty involving unusually severe 5343(c)(4) by inserting before the semicolon at the end: working conditions or unusually severe ", and for any hardship or hazard related to asbestos, hazards; such differentials would be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970." CRS-23 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 (b) General Schedule Pay Rates. 5 U.S.C. 5545(d) 5 U.S.C. 5545(d) - Night, standby, irregular, would be amended by inserting before the period at the and hazardous duty differential end of the first sentence: "and for any hardship or (d) The Office shall establish a schedule or hazard related to asbestos, such differentials would be schedules of pay differentials for duty determined by applying occupational safety and health involving unusual physical hardship or standards consistent with the permissible exposure hazard. limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970." (c) Applicability. Subject to any vested constitutional property rights, any administrative or judicial determination after the act's enactment date concerning backpay for a differential established under 5 U.S.C. 5343(c)(4) or 5545(d) would be based on occupational safety and health standards described in the amendments made by (a) and (b). Sec. 205. Increase in annual student loan repayment 5 U.S.C. 5379 - Student loan repayments No similar provision authority (b)(2)(A) repayments may not exceed $6,000 [H.R. 1588, Sec. 1104] for any employee in any calendar year Would amend 5 U.S.C. 5379(b)(2)(A) by striking $6,000 and inserting $10,000. Sec. 206. Authorization for cabinet secretaries of 5 U.S.C. 5504 - Biweekly pay periods; No similar provision military departments, and heads of executive agencies computation of pay to be paid on a biweekly basis [H.R. 1588, Sec. 1105] Would amend 5 U.S.C. 5504 by redesignating subsections and by adding at the end: "(2) OPM would provide guidelines by regulation for exemptions to be CRS-24 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 made by the heads of agencies under (c)(3). Such guidelines would provide for such exemptions only under exceptional circumstances." Sec. 207 - Additional classes of individuals eligible to Eligibility is restricted for the most part to No similar provision participate in the federal long-term care insurance federal employees and annuitants, members program. of the uniformed services (including those [H.R. 1588, Sec. 551] entitled to retirement or retainer pay), retired Would amend 5 U.S.C. 9001 by extending eligibility to military reservists at the time they qualify for certain employees of the District of Columbia, to an annuity, and the spouse, surviving spouse, former federal employees who have met the service but and (in some cases) family members. not the minimum age requirement for title for an 5 U.S.C. 9001 - Definitions (Long-Term annuity, and reservists transferred to the retired reserve Care Insurance) who are under age 60 and so do not yet qualify for an annuity. Sec. 208. Clarification to Hatch Act; Limitation on 5 U.S.C. Chapter 73 - Suitability, Security, No similar provision disclosure of certain records and Conduct, Subchapter III - Political [H.R. 1588, Sec. 1109, see below] Activities (a) Clarification to Hatch Act No federal employee or individual who voluntarily separates from the civil service (including by transferring to an international organization in the circumstances described in 5 U.S.C. 3582(a)) would be subject to enforcement of the provisions of 5 U.S.C. 7326 (including any loss of rights under 5 U.S.C. Chapter 35, Subchapter IV resulting from any proceeding under 5 U.S.C. 7326), except that this subsection would not apply in the event that such CRS-25 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 employee or individual subsequently becomes reemployed in the civil service. The preceding sentence would apply to any complaint which is filed with or pending before the Merit Systems Protection Board after the act's enactment date. (b) Limitation on disclosure of certain records Notwithstanding any other provision of law, rule, or regulation, nothing described in paragraph (2) or (3) of use "q" of the proposed revisions published in the Federal Register on July 12, 2001 would be considered to constitute a routine use of records maintained by the Office of Special Counsel. (c) Definitions (1) "Federal employee or individual" would mean any employee or individual as referred to in 5 U.S.C. 7326; (2) "civil service" would have the meaning given such term by 5 U.S.C. 2101; (3) "international organization" would have the meaning given such term under 5 U.S.C. 3581; (4) "routine use" and "record" would have the meanings given under 5 U.S.C. 552a(a). H.R. 1588, Sec. 1109 -- Would substitute the following language for that found in Sec. 208 as described above: No federal employee or individual who, before the act's enactment date, was employed in the office of the Department of Defense Inspector General and transferred to a Special Court sponsored by the United Nations pursuant to the authority in 5 U.S.C. 3582(a), would be subject to enforcement of the provisions of 5 CRS-26 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 U.S.C. 7326, except that this section would not apply in the event that such employee or individual subsequently becomes reemployed in the civil service. Sec. 209. Senior Executive Service and performance 5 U.S.C. 5304. Locality-based comparability No similar language [H.R. 1588, Sec. 1106] payments Sec. 209(a)Senior Executive Pay (g)(2) - Level III of the Executive Schedule (1) would amend 5 U.S.C. 5304(g)(2) and (h)(2)(B). is the cap for locality pay for positions in the Positions in the SES; positions in the FBI and DEA Senior Executive Service (SES); positions in SES; and positions in a system equivalent to the SES, the Federal Bureau of Investigation (FBI) as determined by the President's pay agent, would not and Drug Enforcement Administration receive locality pay. (DEA) SES; administrative law judges; contract appeals board members; and positions not included in the general schedule whose basic rates of pay do not exceed level IV of the Executive Schedule. Sec. 209(a)(2) would replace 5 U.S.C. 5382. 5 U.S.C. 5382. Pay for the Senior Executive (a) Would require the establishment of a range of rates Service of basic pay for the SES, subject to regulations (a) Requires the establishment of five or prescribed by the Office of Personnel Management more rates of basic pay for the SES; each (OPM). Each senior executive would be paid at one of member of the SES shall be paid at one of the rates within the range, based on individual the rates. performance, contribution to the agency's performance, (b) The cap on basic pay is level IV of the or both. Determination would be made under a Executive Schedule. No similar language "rigorous performance management system." The cap on basic pay would be level III of the Executive Schedule. (b) For any agency whose performance appraisal CRS-27 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 system is certified as making meaningful distinctions based on relative performance, the cap on basic pay would be level II of the Executive Schedule. (c) The pay of a senior executive who transfers from a certified agency to a noncertified agency would not be reduced. Sec. 209(b) Post-employment restrictions 18 U.S.C. 207(c)(2)(A)(ii). Applies post- No similar provisions Would apply post-employment conflict of interest employment conflict of interest provision provision commonly known as the one-year "cooling commonly known as the one-year "cooling off" period (18 U.S.C. 207(c)(1)) to (in addition to off" period (18 U.S.C. 207(c)(1)) to (in those paid on the Executive Schedule) those not paid addition to those paid on the Executive on the Executive Schedule but who are compensated at Schedule) those not paid on the Executive a rate of pay equal to or greater than 96% of the rate of Schedule but who are compensated at a base basic pay for level II of the Executive Schedule rate of pay equal to or greater than the basic ($148,512 in 2003), or, for two years after the pay for a level 5 enactment of this Act, those persons who would have on the Senior Executive Service. ($134,000 been covered by the restriction the day before the Act for 2003) was passed (those compensated at a base rate of pay equal to or greater than a level 5 for the Senior Executive Service, $134,000 for 2003). Would amend 18 U.S.C. 207(c)(2)(A)(ii). H.R. 1588, Sec. 1106 -- Substitutes the phrase, "the National Defense Authorization Act for FY2004" for a reference to "the Federal Employees Pay for Performance Act of 2003." Sec. 210. Design elements of pay-for-performance 5 U.S.C. Chapter 47 - Personnel research No similar provision systems in demonstration projects programs and demonstration projects CRS-28 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 [H.R. 1588, Sec. 1107] A pay-for-performance system could not be initiated under 5 U.S.C. Chapter 47 after this act's enactment date, unless it incorporates the following elements: (1) adherence to merit principles set forth in 5 U.S.C. 2301; (2) a fair, credible, and transparent employee performance appraisal system; (3) a link between elements of the pay-for-performance system, the employee performance appraisal system, and the agency's strategic plan; (4) a means for ensuring employee involvement in the design and implementation of the system; (5) adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the pay-for-performance system; (6) a process for ensuring ongoing performance feedback and dialogue between managers, supervisors, and employees throughout the appraisal period, and setting timetables for review; (7) effective safeguards to ensure that the management of the system is fair and equitable and based on employee performance; and (8) a means for ensuring that adequate agency resources are allocated for the design, implementation, and administration of the pay-for- performance system. Sec. 211. Federal flexible benefits plan administrative There is no explicit authority for federal No similar provision costs agencies to offer FSAs or for OPM to [H.R. 1588, Sec. 1108] administer them. However, agency heads Would prohibit federal agencies offering a flexible may make allotments from employee pay as CRS-29 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 spending account option from imposing fees on they think appropriate (5 USC 5525) and employees to defray administrative costs. Would OPM has general authority to advise the require agencies to forward to the Office of Personnel President regarding the civil service (5 USC Management (or an entity it designates) amounts to 1103(a)(7). offset the costs. Would require the Office of Personnel Management to submit reports to congressional committees on the administrative costs. Would require agencies to submit reports to the Office of Management and Budget on the employment tax savings from the option, net of administrative fees paid. Sec. 212. Nonreduction in pay while federal employee 5 U.S.C. Chapter 55 - Pay Administration; No similar provision is serving on active duty in a reserve component of the Subchapter IV - Dual Pay and Dual uniformed services Employment (a) In General. Would amend 5 U.S.C. Chapter 55, Subchapter IV by adding: Sec. 5538. Nonreduction in pay while serving on active duty in a reserve component (a) An employee who is also a member of a reserve component and is absent from a position of employment with the federal government under a call or order to serve on active duty for a period of more than 30 days would be entitled to receive, for each pay period described in (b), an amount equal to the difference (if any) between (1) the amount of civilian basic pay that would otherwise have been payable to the employee for such pay period if the employee's civilian employment with the government had not been CRS-30 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 interrupted by the service on active duty; and (2) the amount of military compensation that is payable to the employee for the service on active duty and is allocable to such pay period. (b) and (c) States the requirements for payment; (d) Directs that OPM, in consultation with the DOD secretary, prescribe regulations; (e) Directs that procedures on applying the provisions be prescribed by agency heads in consultation with OPM; (f) Defines terms. Application of amendment. Provisions would apply with respect to pay periods beginning on or after the act's enactment date. CRS-31 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Sec. 213. Employee surveys No similar provision No similar provision [H.R. 1588, Sec. 1110] (a) In General. Each agency would conduct an annual survey of its employees (including survey questions unique to the agency and questions prescribed under (b) to assess -- (1) leadership and management practices that contribute to agency performance; and (2) employee satisfaction with (A) leadership policies and practices; (B) work environment; (C) rewards and recognition for professional accomplishment and personal contributions to achieving organizational mission; (D) opportunity for professional development and growth; and (E) opportunity to contribute to achieving organizational mission. (b) Regulations. OPM would issue regulations prescribing survey questions that would appear on all agency surveys in order to allow a comparison across agencies. (c) Availability of results. The results of the agency surveys would be made available to the public and posted on the Web site of the agency involved, unless the agency head determines it will jeopardize or negatively impact on national security. (d) Agency defined. "Agency" would mean an executive agency as defined by 5 U.S.C. 105. CRS-32 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Title III -- Provisions Relating to the Securities and Exchange Commission and the National Aeronautics and Space Administration Subtitle A -- Securities and Exchange Commission Sec. 301. Securities and Exchange Commission 5 U.S.C. Chapter 31 - Authority for No similar provision Would amend 5 U.S.C. Chapter 31, Subchapter I by employment adding a new Sec. 3114. Sec. 3114, Appointment of Accountants, economists, and examiners by the Securities and Exchange Commission (SEC) (a) Applicability. This section would apply to any position of accountant, economist, and securities compliance examiner at the SEC that is in the competitive service. (b) Appointment Authority. (1) In General. The SEC could appoint candidates to any position described in (a) -- (A) in accordance with the statutes, rules, and regulations governing appointments in the excepted service; and (B) notwithstanding any statutes, rules, and regulations governing appointments in the competitive service. (2) Rule of Construction. The appointment of a candidate to a position under this subsection's authority would not be considered to cause such position to be converted from the competitive service to the excepted service. (c) Reports. No later than 90 days after the end of FY CRS-33 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 2003 (for FY 2003) and 90 days after the end of FY 2005 (for FY 2004 and 2005), the SEC would submit a report with respect to its exercise of the authority granted by (b) during such fiscal years to the House Committees on Government Reform and Financial Services and the Senate Committees on Governmental Affairs and Banking, Housing, and Urban Affairs. Such reports would describe the changes in the hiring process authorized by such subsection, including relevant information related to (1) the quality of candidates; (2) the procedures used by the SEC to select candidates through the streamlined hiring process; (3) the numbers, types, and grades of employees hired under the authority; (4) any benefits or shortcomings associated with the use of the authority; (5) the effect of the exercise of the authority on the hiring of veterans and other demographic groups; and (6) the way in which managers were trained in the administration of the streamlined hiring system. Commission Defined. "Commission" would mean the Securities and Exchange Commission. CRS-34 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Subtitle B - National Aeronautics and Space Administration Sec. 311. Workforce authorities and personnel No similar provision; related Title 5 sections Law added a new Chapter 97 - provisions are identified in the specific sections below Department of Homeland Security to Title (a) In General. Would amend 5 U.S.C. Part III, 5 Subpart I: adding New Title 5, Chapter 98 -- National Aeronautics and Space Administration New Subchapter I -- Workforce 42 U.S.C. 2472 - National Aeronautics and No similar provision Authorities. Space Administration (defined) New 5 U.S.C. 9801. Definitions 42 U.S.C. 2466b - Administrator (defined) (1) "Administration" means the National Aeronautics and Space Administration (NASA); (2) "Administrator" means the Administrator of NASA; (3) "Critical need" means a specific and important requirement of the Administration's mission that it is unable to fulfill because it lacks the appropriate employees because of the inability to fill positions or because employees do not possess the requisite skills; (4) "Employee" means an individual employed in or under the Administration; and (5) "Workforce plan" means the plan required under the proposed section 9802(a). (6) Defines "appropriate committees of Congress" and "redesignation bonus." New 5 U.S.C. 9802. Planning, notification, and 5 U.S.C. Chapter 31 - Authority for No similar provision; law stated that 5 reporting requirements employment U.S.C. Chapter 31 could not be waived or (a) Not later than 90 days before exercising any of the 5 U.S.C. 3104 - Employment of specially modified. CRS-35 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 workforce authorities under this subchapter, the qualified scientific and professional administrator would submit a written plan to the personnel appropriate committees of Congress. A plan could not Authorizes OPM director to establish be implemented without OPM's approval. scientific or professional positions which (b) The plan would include a description of (1) each require services of specially qualified critical need of the administration and the criteria used personnel and which may be established in its identification; (2) the functions, approximate outside the General Schedule. number, and classes or other categories of positions or employees that address critical needs and that would be eligible for each authority proposed to be exercised under the proposed Sec. 9803, and how the exercise of those authorities with respect to the eligible positions or employees involved would address each critical need identified under (1); (3) any critical need identified under (1) which would not be addressed by the authorities made available under this subchapter, and the reasons why those needs would not be so addressed; (4) the specific criteria to be used in determining which individuals may receive the benefits described in the proposed Secs. 9804 and 9805 (including the criteria for granting bonuses in the absence of a critical need, and 9810, and how the level of those benefits will be determined; (5) the safeguards or other measures that will be applied to ensure that this subchapter is carried out in a manner consistent with merit system principles; (6) the means by which employees will be afforded the notification required under subsections (c) and (d)(1)(B); (7) the methods that will be used to determine if the authorities CRS-36 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 exercised under this subchapter have successfully addressed each critical need identified under (1); and (8) the recruitment methods used by NASA before the enactment of this chapter to recruit highly qualified individuals, including how it intends to use nongovernmental recruitment or placement agencies; and Internet technologies. (c) Not later than 60 days before first exercising any of the workforce authorities made available under this subchapter, the administrator would provide to all employees, the workforce plan and any additional information which the administrator considers appropriate. (d)(1) The administrator could submit any modifications to the workforce plan to OPM. Modifications could not be implemented without OPM's approval. Not later than 60 days before implementing any such modifications, the administrator would provide an appropriately modified plan to all NASA employees and to the appropriate committees of Congress. Any reference in this subchapter or any other provision of law to the workforce plan would be considered to include any modification made in accordance with this subsection. (e) Provides for employee representatives to review and make recommendations on the plan before the administrator submits it to OPM. (f) None of the workforce authorities made available under this subchapter could be exercised in a manner CRS-37 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 inconsistent with the workforce plan. (g) Whenever the administration submits its performance plan under 31 U.S.C. 1115 to the Office of Management and Budget for any year, the administration would at the same time submit a copy of the plan to the Senate Committees on Governmental Affairs, Appropriations, and commerce, Science, and Transportation and the House Committees on Government Reform, Science and Appropriations. (h) Provides for an evaluation of the plan not later than six years after the enactment of Sec. 9802 and states what the evaluation must include. Note: Title I provisions would permit changes to certain sections of 5 U.S.C. Chapter 31 for Defense personnel. New 5 U.S.C. 9803. Workforce authorities. Relevant Title 5 sections are noted in the Relevant sections of the law are noted in (a) The workforce authorities under this subchapter are specific sections below. the specific sections below. the authority (1) to pay recruitment, redesignation, and relocation bonuses under the proposed section 9804; (2) to pay retention bonuses under the proposed Sec. 9805; (3) to make term appointments and to take related personnel actions under the proposed Sec. 9806; (4) to fix rates of basic pay for critical positions under the proposed Sec. 9807; (5) to extend intergovernmental personnel act assignments under Sec. 9808; (6) to apply 5 U.S.C. Chapter 35, Subchapter II in accordance with Sec. 9810. (b) No authority could be exercised with respect to any CRS-38 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 officer who is appointed by the President, by and with the advice and consent of the Senate. (c) Unless specifically stated otherwise, all authorities provided under this subchapter are subject to 5 U.S.C. 5307 (limitation on certain payments). New 5 U.S.C. 9804. Recruitment, redesignation, and 5 U.S.C. 5753 - Recruitment and relocation No similar provision; law states that 5 relocation bonuses bonuses U.S.C. Chapter 57 provisions cannot be (a) Notwithstanding 5 U.S.C. 5753, the administrator Authorizes bonuses of up to 25% of basic waived or modified. could pay a bonus to an individual, in accordance with pay and requires service agreement. the workforce plan and subject to the limitations in this 5 U.S.C. 9504 - Recruitment, retention, section, if the administrator determines that NASA relocation incentives, and relocation would be likely, in the absence of a bonus, to encounter expenses (Internal Revenue Service) difficulty in filling a position; and the individual is Allows for IRS variations from the Title 5 newly appointed as a federal employee; currently authority for a 10-year period. employed by the federal government and newly appointed to another position in the same geographic area; or currently employed by the federal government and required to relocate to a different geographic area to accept a position with NASA. (b) If the position is described as addressing a critical need in the workforce plan, the bonus could not exceed (1) 50% of the employee's annual rate of basic pay (including locality-based comparability payments) as of the beginning of the service period multiplied by the service period specified under (d)(1)(B)(i) below; or (2) 100% of the employee's annual rate of basic pay (including locality-based comparability payments) as of the beginning of the service period. CRS-39 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 (c) If the position is not described as addressing a critical need in the workforce plan, the bonus could not exceed (1) 25% of the employee's annual rate of basic pay (including locality-based comparability payments) as of the beginning of the service period multiplied by the service period specified under (d)(1)(B)(i) below; or (2) 100% of the employee's annual rate of basic pay (including locality-based comparability payments) as of the beginning of the service period. (d)(1)(A) Payment of a bonus would be contingent upon the individual entering into a service agreement with the administration. (B) The service agreement would, at a minimum, include (i) the required service period; (ii) the method of payment, including a payment schedule, which could include a lump-sum payment, installment payments, or a combination thereof; (iii) the amount of the bonus and the basis for calculating such amount; and (iv) the conditions under which the agreement could be terminated before the agreed-upon service period has been completed, and the effect of the termination. (d)(2) For purposes of determinations under (b)(1) and (c)(1), the employee's service period would be expressed as the number equal to the full years and twelfth parts thereof, rounding the fractional part of a month to the nearest twelfth part of a year. The service period could not be less than 6 months and could not exceed 4 years. (d)(3) A bonus under this section could not be CRS-40 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 considered to be part of an employee's basic pay. (e) Before paying a bonus, the administration would establish a plan for paying recruitment, redesignation, and relocation bonuses, subject to OPM approval. (f) Requires the administrator to submit a summary of all bonuses paid under (b) and (c) to the appropriate committees of Congress not later than February 28 of each of the next 10 years and states what the summary must include. Note: Title I would prohibit waiver or modification of 5 U.S.C. Chapter 57 for Defense personnel. New 5 U.S.C. 9805. Retention bonuses 5 U.S.C. 5754 - Retention allowances No similar provision; law stated that 5 (a) Notwithstanding 5 U.S.C. 5754, the administrator Authorizes allowances of up to 25% of basic U.S.C. Chapter 57 provisions could not be could pay a bonus to an employee, in accordance with pay. waived or modified. the workforce plan and subject to the limitations in this 5 U.S.C. 9504 - Recruitment, retention, section, if the administrator determines that (1) the relocation incentives, and relocation employee's unusually high or unique qualifications or a expenses (Internal Revenue Service) special need of the administration for the employee's Allows for IRS variations from the Title 5 services makes it essential to retain the employee; and authority for a 10-year period. (2) the employee would be likely to leave in the absence of a retention bonus. (b) If the position is described as addressing a critical need in the workforce plan, the bonus could not exceed 50% of the employee's annual rate of basic pay (including locality-based comparability payments). (c) If the position is not described as addressing a critical need in the workforce plan, the bonus could not exceed 25% of the employee's annual rate of basic pay CRS-41 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 (including locality-based comparability payments). (d)(1)(A) Payment of a bonus would be contingent upon the employee entering into a service agreement with NASA. (B) The service agreement would, at a minimum, include (i) the required service period; (ii) the method of payment, including a payment schedule; which could include a lump-sum payment, installment payments, or a combination thereof; (iii) the amount of the bonus and the basis for calculating the amount; and (iv) the conditions under which the agreement could be terminated before the agreed-upon service period has been completed, and the effect of the termination. (d)(2) The employee's service period would be expressed as the number equal to the full years and twelfth parts thereof, rounding the fractional part of a month to the nearest twelfth part of a year. The service period could not be less than 6 months and could not exceed 4 years. (d)(3) Notwithstanding (1), a service agreement is not required if NASA pays a bonus in biweekly installments and sets the installment payment at the full bonus percentage rate established for the employee, with no portion of the bonus deferred. In this case, NASA would inform the employee in writing of any decision to change the retention bonus payments. The employee would continue to accrue entitlement to the retention bonus through the end of the pay period in which such written notice is provided. (e) A bonus under this section could not be considered CRS-42 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 to be part of an employee's basic pay. (f) An employee would not be entitled to a retention bonus under this section during a service period previously established for that employee under 5 U.S.C. 5753, or the proposed Sec. 9804. (g) Requires the administrator to submit a summary of all bonuses paid under (b) and (c) to the appropriate committees of Congress not later than February 28 of each of the next 10 years and states what the summary must include. Note: Title I would prohibit waiver or modification of 5 U.S.C. Chapter 57 for Defense personnel. New 5 U.S.C. 9806. Term Appointments 5 U.S.C. 3301 - Civil Service; generally No similar provision; law stated that 5 (a) The administrator could authorize term 5 U.S.C. 3302 - Competitive service; rules U.S.C. Chapter 33 could not be waived or appointments within NASA under 5 U.S.C. Chapter 5 CFR Part 316 - Temporary and Term modified. 33, Subchapter I, for a period of not less than one year Employment and not more than six years. Authorizes term appointments for more than (b) Notwithstanding 5 U.S.C. Chapter 33, or any other one year, but not more than four years provision of law relating to the examination, (beyond four years could be authorized with certification, and appointment of individuals in the justification) where the need for an competitive service, the administrator could convert an employee's services is not permanent. employee serving under a term appointment to a permanent appointment in the competitive service within the administration without further competition. These conditions would apply: (1) the individual was appointed under open, competitive examination under 5 U.S.C. Chapter 33, Subchapter I; (2) the announcement for the term appointment from which CRS-43 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 the conversion is made stated that there was potential for subsequent conversion to a career-conditional or career appointment; (3) the employee has completed at least two years of current continuous service under a term appointment in the competitive service; (4) the employee's performance under the term appointment was at least fully successful or equivalent; and (5) the position to which such employee is being converted under this section is in the same occupational series, the same geographic location, and provides no greater promotion potential than the term position for which the competitive examination was conducted. (c) Notwithstanding 5 U.S.C. Chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, the administrator could convert an employee serving under a term appointment to a permanent appointment in the competitive service within the administration through internal competitive promotion procedures if the conditions under (b)(1) through (4) are met. (d) An employee converted under this section becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure. (e) An employee converted to career or career- conditional employment under this section acquires competitive status upon conversion. (f) Requires the administrator to submit to the CRS-44 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 appropriate committees of Congress, not later than February 28 of each of the next 10 years, the total number of term appointments and conversions. Note: For Defense, see proposed new section 9904. New 5 U.S.C. 9807. Pay authority for critical positions 5 U.S.C. 5377 - Pay authority for critical No similar provision; law permits the new (a) "Position" means (1) a position to which 5 U.S.C. positions personnel system to make changes to 5 Chapter 51 applies, including a Senior Executive Authorizes OMB to establish critical pay U.S.C. Chapter 53. Service position; (2) an Executive Schedule position; positions for positions at an extremely high (3) a position established under 5 U.S.C. 3104; or (4) a level and critical to agency missions; up to senior-level position to which 5 U.S.C. 5376(a)(1) 800 may be established at any time. applies. Compensation cannot exceed Executive (b) Authority under this section (1) could be exercised Schedule level I without the President's only with respect to a position that is described as approval. addressing a critical need in the workforce plan, and 5 U.S.C. 9502 - Pay authority for critical requires expertise of an extremely high level in a positions (Internal Revenue Service) scientific, technical, professional, or administrative Authorizes critical pay positions. field; (2) could be exercised only to the extent Compensation cannot exceed the Vice necessary to recruit or retain an individual President's salary. exceptionally well qualified for the position; and (3) 5 U.S.C. 9503 - Streamlined critical pay could be exercised only in retaining employees of the authority (Internal Revenue Service) administration or in appointing individuals who were Secretary of the Treasury may establish not employees of another federal agency as defined by critical pay positions for positions at an 5 U.S.C. 5102(a)(1). extremely high level and critical to the IRS (c)(1) Notwithstanding 5 U.S.C. 5377, the mission for a 10-year period. Appointments administrator could fix the rate of basic pay for a are limited to four years. Total position in NASA in accordance with this section. The compensation cannot exceed the Vice administrator could not delegate this authority. President's salary. (c)(2) The number of positions with pay fixed under CRS-45 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 this section could not exceed 10 at any time. (d)(1) The rate of basic pay fixed under this section could not be less than the rate of basic pay (including locality-based comparability payments) which would otherwise be payable for the position involved if this section had never been enacted. (d)(2) The annual rate of basic pay fixed under this section could not exceed the per annum rate of salary payable for the Vice President. (d)(3) Notwithstanding any provision of 5 U.S.C. 5307, in the case of an employee who, during any calendar year, is receiving pay at a rate fixed under this section, no allowance, differential, bonus, award, or similar cash payment could be paid to such employee if, or to the extent that, when added to basic pay paid or payable to such employee (for service performed in such calendar year as an employee in the executive branch or as an employee outside the executive branch to whom 5 U.S.C. Chapter 51 applies), such payment would cause the total to exceed the Vice President's salary. (e) Requires the administrator to submit to the appropriate committees of Congress, not later than February 28 of each of the next 10 years, the number of positions for which the rate of basic pay was either fixed or terminated under this section. Note: Title I would permit the new personnel system to make changes to 5 U.S.C. Chapter 53 for Defense personnel. CRS-46 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 New 5 U.S.C. 9808. Assignments of 5 U.S.C. Chapter 33, Subchapter VI - No similar provision; law stated that 5 intergovernmental personnel Assignments to and from States (5 U.S.C. U.S.C. Chapter 33 could not be waived or For purposes of applying the third sentence of 5 U.S.C. 3371-3376) modified. 3372(a) (relating to the authority of the head of a 5 U.S.C. 3372 - General provisions federal agency to extend the period of an employee's assignment to or from a State or local government, institution of higher education, or other organization), the administrator could, with the concurrence of the employee and the government or organization concerned, take any action which would be allowable if such sentence had been amended by striking "two" and inserting "four." Note: Title I would permit the new personnel system to make changes to 5 certain sections of 5 U.S.C. Chapter 33 for Defense personnel. New 5 U.S.C. 9809. Enhanced demonstration project 5 U.S.C. Chapter 47 - Personnel research No similar provision; law states that 5 authority programs and demonstration projects U.S.C. Chapter 47 cannot be waived or When conducting a demonstration project at NASA, 5 5 U.S.C. 4703(d)(1)(A) limits size of modified. U.S.C. 4703(d)(1)(A), could be applied by substituting demonstration projects to not more than "such number of individuals as determined by the 5,000 individuals. administrator" for "not more than 5,000 individuals." 5 U.S.C. 9507 - Streamlined demonstration Note: Title I would prohibit waiver or modification of project authority (Internal Revenue Service) 5 U.S.C. Chapter 47 for Defense personnel. 5 U.S.C. 4703(d) does not apply to IRS demonstration projects. New 5 U.S.C. 9810. Voluntary separation incentive With the approval of the Office of Personnel No similar provisions payments Management, a federal agency may offer Would allow the Administrator to offer voluntary voluntary separation incentive payments of CRS-47 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 separation payments of up to 50% of annual basic pay up to $25,000 to employees who retire or to no more than 10 employees each year (unless resign. The full amount must be repaid if payments to a larger number are approved by the individual is re-employed by the federal Office of Management & Budget.) government within five years. New 5 U.S.C. 9811. Limitations relating to bonuses No similar provision No similar provision; law states that 5 (a) Of the total amount in bonuses awarded under the 5 U.S.C. 5753 - Recruitment and relocation U.S.C. Chapter 57 provisions cannot be proposed new sections 9804 and 9805, respectively, in bonuses waived or modified. any year, not to exceed 15 percent of any such total 5 U.S.C. 5754 - Retention allowances amount could be awarded to supervisors (within the 5 U.S.C. 9504 - Recruitment, retention, meaning of 5 U.S.C. 7103(a)(10)). relocation incentives, and relocation (b) A separate appropriations account would be expenses (Internal Revenue Service) maintained for such bonuses. New Subchapter II -- Personnel 42 U.S.C. 2472 - National Aeronautics and No similar provision Provisions. Space Administration (defined) New 5 U.S.C. 9831. Definitions 42 U.S.C. 2466b - Administrator (defined) (1) "Administration" means the National Aeronautics and Space Administration (NASA); (2) "Administrator" means the administrator of NASA. New 5 U.S.C. 9832. Defines "detail" and states P.L. 107-347, 12/17/02, 116 Stat. 2923, Sec. No similar provision employees eligible. Assignments would be for a period 209(c) - Federal information technology of between six months and one year, and could be workforce development extended in three-month increments for up to one Authorizes exchanges of employees from additional year. A NASA employee generally would private sector to government and from have to agree to serve in NASA after completion of an government to private sector in information exchange for the same amount of time as the exchange. technology management. Individuals A NASA employee would be deemed to be on detail to eligible to participate must be at pay grade CRS-48 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 a regular work assignment in NASA. Reimbursements GS-11 (or equivalent) or above. Exchanges by the private sector entity could be made to NASA. may be for a period between three months A private sector employee assigned to NASA is and one year and may be extended in deemed to be on detail to NASA. Laws and increments of three months for one regulations which cover the private sector employee additional year. while on detail are stated. Policies in the case of a private sector employee's disability or death while 5 U.S.C. Chapter 33, Subchapter VI - assigned to NASA are detailed. Requires the Assignments to and from States (5 U.S.C. administrator, not later than February 28 of each year, 3371-3376) to report to the appropriate committees of Congress on the operation of the section. New 5 U.S.C. 9833. Science and technology No similar provision No similar provision scholarship program Would authorize the NASA administrator to provide scholarships to individuals at accredited institutions of higher education who are pursuing academic programs appropriate for careers in professions needed by NASA. New 5 U.S.C. 9834. Distinguished scholar 5 U.S.C. 3104 - Employment of specially No similar provision; law states that 5 appointment authority qualified scientific and professional U.S.C. Chapter 31 cannot be waived or (1) "Professional position" means a position that is personnel modified. classified to an occupational series identified by OPM Authorizes OPM director to establish as a position that (A) requires education and training in scientific or professional positions which the principles, concepts, and theories of the occupation require services of specially qualified that typically can be gained only through completion of personnel and which may be established a specified curriculum at a recognized college or outside the General Schedule. university; and (B) is covered by the Group Coverage CRS-49 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Qualification Standard for Professional and Scientific Positions; and (2) "research position" means a position in a professional series that primarily involves scientific inquiry or investigation, or research-type exploratory development of a creative or scientific nature, where the knowledge required to perform the work successfully is acquired typically and primarily through graduate study. (b) NASA could appoint, without regard to 5 U.S.C. 3304(b) and 3309 through 3318, candidates directly to General Schedule professional positions in NASA for which public notice has been given, if (1) with respect to a GS-7 position, the individual (A) received, from an accredited institution authorized to grant baccalaureate degrees (BAs), a BA in a filed of study for which possession of that degree in conjunction with academic achievements meets the qualification standards as prescribed by OPM for the position to which the individual is being appointed; and (B) achieved a cumulative grade point average (GPA) of 3.0 or higher on a 4.0 scale and a GPA of 3.5 or higher for courses in the field of study required to qualify for the position; (2)-(4) with respect to a GS-9, GS-11, GS-12 position, the individual (A) received, from an accredited institution authorized to grant graduate degrees, a graduate degree in a field of study for which possession of that degree meets the qualification standards at this grade level as prescribed by OPM for the position to which the individual is being appointed; and (B) achieved a cumulative GPA CRS-50 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position. Veterans preference procedures would apply when selecting candidates. Preference eligibles who meet the criteria for distinguished scholar appointments would be considered ahead of nonpreference eligibles. (d) An appointment made under this authority would be a career-conditional appointment in the competitive civil service. New 5 U.S.C. 9835. Travel and transportation 5 U.S.C. Chapter 57, Subchapter II - Travel No similar provision; law stated that 5 expenses of certain new appointees and transportation expenses; new appointees, U.S.C. Chapter 57 could not be waived or (a) "Appointee" means (1) a person newly appointed or student trainees, and transferred employees modified. reinstated to federal service to NASA to (A) a career or career-conditional appointment; (B) a term 5 U.S.C. 5724 - Travel and transportation appointment; (C) an excepted service appointment that expenses of employees transferred; provides for noncompetitive conversion to a career or advancement of funds; reimbursement on career-conditional appointment; (D) a career or limited commuted basis; 5 U.S.C. 5724a - term Senior Executive Service appointment; (E) an Relocation expenses of employees appointment made under section 203(c)(2)(A) of the transferred or reemployed; 5 U.S.C. 5724b - National Aeronautics and Space Act of 1958; (F) an Taxes on reimbursements for travel, appointment to a position established under 5 U.S.C. transportation, and relocation expenses of 3104; or (G) an appointment to a position established employees transferred; 5 U.S.C. 5724c - under 5 U.S.C. 5108; or (2) a student trainee who, upon Relocation services completion of academic work, is converted to an appointment in NASA that is identified in (1) in accordance with an appropriate authority. (b) The administrator could pay the travel, transportation, and relocation expenses of a new appointee to the same CRS-51 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 extent, in the same manner, and subject to the same conditions as the payment of such expenses under 5 U.S.C. 5724, 5724a, 5724b, and 5724c to an employee transferred in the interests of the U.S. Government. (c) Requires the administrator to submit to the appropriate committees of Congress, not later than February 28 of each of the next 10 years, the average and highest payments made under this section. Note: Title I would permit changes to certain sections of 5 U.S.C. Chapter 31 for Defense civilian personnel. New 5 U.S.C. 9836. Annual leave enhancements 5 U.S.C. 6303 - Annual leave accrual No similar provision; law stated that 5 (a)(1) "Newly appointed employee" means an 5 U.S.C. 6304 - Annual leave accumulation U.S.C. Chapter 63 could not be waived or individual who is first appointed (i) regardless of Only employees who have at least 15 years modified. tenure, as an employee of the federal government; or of service accrue one day of annual leave for (ii) as an employee of the federal government each full biweekly pay period. following a break in service of at least 90 days after that individual's last period of federal employment, other than (I) employment under the Student Educational Employment Program administered by OPM; (II) employment as a law clerk trainee; (III) employment under a short-term temporary appointing authority while a student during periods of vacation from the educational institution at which the student is enrolled; (IV) employment under a provisional appointment if the new appointment is permanent and immediately follows the provisional appointment; or (V) employment under a temporary appointment that is CRS-52 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 neither full-time nor the individual's principal employment. (B) "period of qualified non-federal service" means any period of service performed by an individual that (i) was performed in a position the duties of which were directly related to the duties of the position in NASA to which that individual will fill as a newly appointed employee; and (ii) except for this section would not otherwise be service performed by an employee for purposes of 5 U.S.C. 6303; and (C) "directly related to the duties of the position" means duties and responsibilities in the same line of work which require similar qualifications. (2)(A) For purposes of 5 U.S.C. 6303, the administrator could deem a period of qualified non-federal service performed by a newly appointed employee to be a period of service of equal length performed as an employee. (B) A period deemed by the administrator under (A) would continue to apply to the employee during (i) the period of federal service in which the deeming is made; and (ii) any subsequent period of federal service. 3(A) Notwithstanding 5 U.S.C. 6303(a), the annual leave accrual rate for a NASA employee in a position paid under 5 U.S.C. 5376 or 5383, or for an employee in an equivalent category whose rate of basic pay is greater than the rate payable at GS-15, step 10, would be one day for each full biweekly pay period. (B) The accrual rate established under this paragraph would continue to apply to the employee during (i) the period of federal service in CRS-53 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 which such accrual rate first applies; and (ii) any subsequent period of federal service. Note: Title I would prohibit waiver or modification of 5 U.S.C. Chapter 63 for Defense civilian personnel. New 5 U.S.C. 9837. Limited appointment to Senior 5 U.S.C. 3132.(a)(8). Only Senior Executive No similar provision Executive Service positions. Service (SES) career appointees may fill (a)(1)(A)-(B). A career reserved position may be filled career reserved positions. by a career appointee, a limited emergency appointee, or a limited term appointee. Either type of limited appointee would have to meet certain conditions and the appointment would have to be approved in advance by the Office of Personnel Management (OPM). New 5 U.S.C. 9837(a)(3) A limited term appointee is 5 U.S.C. 3132(a)(5) A limited term No similar provision an individual appointed to an SES position to meet a appointee is an individual appointed under a bona fide temporary need, as determined by the nonrenewable appointment to an SES Administrator. position the duties of which will expire at the end of the term. The appointment may not exceed three years. New 5 U.S.C. 9837(a)(2) No change from current law. 5 U.S.C. 3132(a)(8) A limited emergency No similar provision appointee is an individual appointed under a nonrenewable appointment to an SES position established to meet a bona fide, unanticipated, urgent need. The appointment may not exceed 18 months. New 5 U.S.C. 9837(b) No comparable language because limited No similar provision The number of career reserved positions which are appointees are prohibited from filling career CRS-54 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 filled by limited emergency appointees and limited reserved positions. term appointees may not exceed 10% of the total number of SES positions allocated to NASA. New 5 U.S.C. 9837(c) The administrator may appoint Sec. 3394. Noncareer and limited No similar provision individuals as limited term appointees for four years or appointments. less to a position the duties of which will expire at the (b) Agencies may appoint limited term end of the term, or one year or less to a position that appointees and limited emergency appointees has continuing duties. The administrator may only with prior approval of the exercise of authorize extensions of up to two years (for positions such authority by OPM. whose duties will expire) and one year (for positions whose duties are continuing). New 5 U.S.C. 9837(d) Limited term appointees, who 5 U.S.C. 3594. Guaranteed placement in No similar provision previously were employed in career or career- other personnel systems. This section, which conditional appointments outside the SES, shall have guarantees, under certain circumstances, reemployment rights. OPM shall establish the placement in other personnel systems applies conditions and requirements for reemployment and only to SES career appointees. shall have the authority to direct placement in any agency. New 5 U.S.C. 9837(e)-(f) 5 U.S.C. 3395. Reassignment and transfer No similar provision A limited term appointee may be reassigned to another within the Senior Executive Service SES position in NASA, the duties of which will expire (b)(2)-(c) A limited term appointee may be at the end of a term of four years or less. A limited reassigned to another SES position in the term appointee may be reassigned to another same agency the duties of which will expire continuing SES position in NASA, but the appointee at the end of a term of three years or less. An may not serve in one or more positions in NASA under appointee may not serve in one or more such appointment in excess of one year. In rare positions under this appointment for more CRS-55 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 circumstances, the Administrator may approve an than three years. A limited term appointee extension of no more than one year. A limited term may not be appointed to, or continue to hold, appointee may not serve more than seven years in any a position under such an appointment if, combination of limited appointments. within the preceding 48 months, the individual has served more than 36 months, in the aggregate, under any combination of such types of appointment. New 5 U.S.C. 9837(g) 5 U.S.C. 5384. Performance awards in the No similar provision The administrator may authorize performance awards senior executive service to limited term appointees in the same amounts and in A career appointee may receive performance the same manner as career appointees. awards. The amount shall not be less than 5% nor more than 20% of the career appointee's basic rate of pay. The agency head shall determine the amount of performance awards. New 5 U.S.C. 9838, Superior qualifications pay 5 U.S.C. 5377 - Pay authority for critical No similar provision; law permits the new (a) "Employee" means an employee as defined under 5 positions personnel system to make changes to 5 U.S.C. 2105 who is employed by NASA. (b) Authorizes OMB to establish critical pay U.S.C. Chapter 53. Notwithstanding 5 U.S.C. 5334, the administrator positions for positions at an extremely high could set the pay of an employee paid under the level and critical to agency missions; up to General Schedule at any step within the pay range for 800 may be established at any time. the grade of the position, based on the superior Compensation cannot exceed Executive qualifications of the employee, or the special need of Schedule level I without the President's NASA. (c) If an exercise of the authority under this approval. section relates to a current employee selected for 5 U.S.C. 9502 - Pay authority for critical another position within NASA, a determination would positions (Internal Revenue Service) be made that the employee's contribution in the new Authorizes critical pay positions. CRS-56 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 position will exceed that in the former position, before Compensation cannot exceed the Vice setting pay under this section. (d) Pay as set under this President's salary. section is basic pay for such purposes as pay set under 5 U.S.C. 9503 - Streamlined critical pay 5 U.S.C. 5334. (e) If the employee serves for at least authority (Internal Revenue Service) one year in the position for which the pay Secretary of the Treasury may establish determination under this section was made, or a critical pay positions for positions at an successor position, the pay earned under such position extremely high level and critical to the IRS could be used in succeeding actions to set pay under 5 mission for a 10-year period. Appointments U.S.C. Chapter 53. (f) The administrator could waive are limited to four years. Total the restrictions in (e), based on criteria established in compensation cannot exceed the Vice the plan required under (g). (g) Before setting any President's salary. employee's pay under this section, the administrator would submit a plan to OPM, that includes (1) criteria for approval of actions to set pay under this section; (2) the level of approval required to set pay under this section; (3) all types of actions and positions to be covered; (4) the relationship between the exercise of authority under this section and the use of other pay incentives; and (5) a process to evaluate the effectiveness of this section. Note: Title I would permit changes to 5 U.S.C. Chapter 53 for Defense civilian personnel. Sec. 311(b) Technical and Conforming Amendments Sec. 311(b)(1) Notes new Title 5 Chapter 98. CRS-57 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Sec. 311(b)(2) Compensation for certain excepted 42 U.S.C. 2473 - Functions of administration No similar provision personnel 42 U.S.C. 2473(c)(2)(A) would be amended by striking GS-18 and inserting Executive Schedule (EX) level III. Sec. 311(b)(3) Compensation clarification 18 U.S.C. 209 - Salary of government No similar provision 18 U.S.C. 209, as amended, would be amended by officials and employees payable only by adding at the end: (h) This section would not prohibit United States an employee of a private sector entity, while assigned to NASA under the proposed Sec. 9832, from continuing to receive pay and benefits from that entity in accordance with Sec. 9832. Sec. 311(b)(4) through (b)(7). No similar provision Continued TSP eligibility; 5 U.S.C. 8432 - Contributions (Thrift Savings Plan) Ethics provisions; 18 U.S.C. 207(c)(A)(v) and 18 U.S.C 1905 18 U.S.C. 207(l) Contract advice; and 5 U.S.C. 3111(D), 7353(B)(4) Title 5 conforming amendments. CRS-58 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Title IV -- Human Capital Performance Fund H.R. 1588, Sec. 1111. Incorporated with no substantive changes Sec. 401. Human Capital Performance Fund 5 U.S.C. Chapter 54 which had provided for No similar provision; law stated that 5 (a) Would amend 5 U.S.C. Part III, Subpart D by an earlier system of merit pay was repealed U.S.C. Chapter 45 could not be waived or adding a New Title 5, Chapter 54 - Human by P.L. 103-89, Sec. 3(a)(1), Sept. 30, 1993 modified Capital Performance Fund (107 Stat. 981). Termination of the merit Note: Title I would prohibit modifications or changes pay system was effective Nov. 1, 1993. to 5 U.S.C. Chapter 45 for Defense civilian personnel. 5 U.S.C. Chapter 45 - Incentive awards (includes 5 U.S.C.4505a - Performance- based cash awards) New 5 U.S.C. 5401. Purpose No similar provision No similar provision The purpose of the chapter would be to promote, through the creation of a Human Capital Performance Fund, greater performance in the federal government. Monies from the Fund would be used to reward agencies' highest performing and most valuable employees. This Fund would offer federal managers a new tool to recognize employee performance that is critical to the achievement of agency missions. New 5 U.S.C. 5402. Definitions No similar provision No similar provision (1) "Agency" would mean an executive agency under 5 U.S.C. 105, but does not include the General Accounting Office; (2) "Employee" would include (A) an individual paid under a statutory pay system defined in 5 U.S.C. 5302(1); (B) a prevailing rate employee, as defined in 5 U.S.C. 5342(a)(2); and (C) a category of CRS-59 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 employees included by the Office of Personnel Management (OPM) following the review of an agency plan under 5 U.S.C. 5403(b)(1). It would not include (i) an individual paid at an annual rate of basic pay for a level of the Executive Schedule, or at a rate provided for one of those levels under another provision of law; (ii) a member of the Senior Executive Service (SES); (iii) an administrative law judge; (iv) a contract appeals board member; (v) an administrative appeals judge; and (vi) an individual in a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; and (3) "Office" would mean the Office of Personnel Management. New 5 U.S.C. 5403. Human Capital Performance No similar provision No similar provision Fund (a) There is hereby established the Human Capital Performance Fund, to be administered by OPM. (b)(1)(A) An agency would submit a plan as described in Sec. 5406 to be eligible for consideration by OPM for an allocation. An allocation would be made only upon approval by OPM of an agency's plan. (B)(i) After the reduction for training required under Sec. 5408, 90 percent of the remaining amount appropriated to the Fund could be allocated by OPM to the agencies. Of the amount to be allocated, an agency's pro rata distribution could not exceed its pro rata share of executive branch payroll. (ii) If OPM does not allocate CRS-60 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 an agency's full pro rata share, the undistributed amount remaining from that share would become available for distribution to other agencies as provided in (C). (C)(i) After the reduction for training under Sec. 5408, 10 percent of the remaining amount appropriated to the Fund, as well as the amount of the pro rata share not distributed because of an agency's failure to submit a satisfactory plan, would be allocated among agencies with exceptionally high-quality plans. (ii) An agency with an exceptionally high-quality plan would be eligible to receive an additional distribution in addition to its full pro rata distribution. (2) Each agency is required to provide to OPM such payroll information as OPM specifies necessary to determine the executive branch payroll. New 5 U.S.C. 5404. Human capital performance No similar provision No similar provision payments (a)(1) Notwithstanding any other provision of law, OPM could authorize an agency to provide human capital performance payments to individual employees based on exceptional performance contributing to the achievement of the agency mission. (2) The number of employees in an agency receiving payments from the Fund, in any year, would not be more than the number equal to 15 percent of the agency's average total civilian full- and part-time permanent employment for the previous fiscal year. (b)(1) A human capital performance payment provided to an individual CRS-61 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 employee from the Fund, in any year, would not exceed 10 percent of the employee's rate of basic pay. (2) The aggregate of an employee's rate of basic pay, adjusted by any locality-based comparability payments, and human capital performance pay, as defined by regulation, could not exceed the rate of basic pay for Executive Schedule level IV in any year. (3) Any human capital performance payment provided to an employee from the Fund is in addition to any annual pay adjustment and any locality-based comparability payment that may apply. (c) No monies from the Human Capital Performance Fund could be used to pay for a new position, for other performance-related payments, or for recruitment or retention incentives paid under 5 U.S.C. 5753 and 5754. (d)(1) An agency could finance initial human capital performance payments using monies from the Human Capital Performance Fund, as available. (2) In subsequent years, continuation of previously awarded human capital performance payments would be financed from other agency funds available for salaries and expenses New 5 U.S.C. 5405. Regulations No similar provision No similar provision OPM would issue such regulations as it determines to be necessary to administer the chapter, including the administration of the Fund. OPM's regulations would include criteria governing (1) an agency plan under 5 U.S.C. 5406; (2) the allocation of monies from the Fund to agencies; (3) the nature, extent, duration, and CRS-62 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 adjustment of, and approval processes for, payments to individual employees under this chapter; (4) the relationship to this chapter of agency performance management systems; (5) training of supervisors, managers, and other individuals involved in the process of making performance distinctions; and (6) the circumstances under which funds could be allocated by OPM to an agency in amounts below or in excess of the agency's pro rata share. Sec. 5406. Agency plan No similar provision No similar provision To be eligible for consideration by OPM for an allocation under this section, an agency would be required to develop a plan. States the requirements for the plan. (b) OPM, in consultation with the Chief Human Capital Officers Council, would review and approve an agency's plan. (c) Requires Chief Human Capital Officers Council evaluation. New 5 U.S.C. 5407. Nature of payment No similar provision No similar provision Any payment to an employee under this section would be part of the employee's basic pay for the purposes of Subchapter III of 5 U.S.C. Chapter 83 and 5 U.S.C. Chapters 84 and 87, and for such other purposes (other than Chapter 75) as OPM would determine by regulation. CRS-63 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 New 5 U.S.C. 5408. Appropriations No similar provision No similar provision There is authorized to be appropriated $500 million for FY 2004, and, for each subsequent fiscal year, such sums as may be necessary to carry out the provisions of the proposed Chapter 54. In the first year of implementation, up to 10 percent of the amount appropriated to the Fund would be available to participating agencies to train supervisors, managers, and other individuals involved in the appraisal process on using performance management systems to make meaningful distinctions in employee performance and on the use of the Fund. CRS-64 H.R. 1836, the Civil Service and National Security Current Law Homeland Security Act of 2002 Personnel Improvement Act P.L. 107-296 Title V -- Miscellaneous Sec. 501. Prohibition of use of quotas No similar language in permanent statute. No similar language (a) This provision would prohibit the Office of Sec. 647 of P.L. 108-7, the Consolidated Management and Budget (OMB) from establishing, Appropriations Act, FY2003, states: "[N]one applying, or enforcing any numerical goal, target, or of the funds made available in this Act may quota for competing or converting, under OMB be used by an agency of the executive branch Circular A-76, the work of federal employees, unless to establish, apply, or enforce any numerical the goal, target, or quota is based upon considered goal, target, or quota for subjecting the research and sound analysis. employees of the executive agency to public- (b) The prohibition shall not affect the implementation private competitions or for converting such of the Government Performance and Results Act employees or the work performed by such (GPRA) of 1993 or prevent any agency from employees to private contractor performance conducting public-private competitions or carrying out under the Office of Management and Budget direct conversions. Circular A-76 or any other administrative regulation, directive, or policy unless the goal, target, or quota is based on considered research and sound analysis of past activities and is consistent with the stated mission of the executive agency." CRS-65 Personnel Provisions Unique to Proposed Defense Transformation for the 21st Century Act Although Title I of H.R. 1836, as introduced, contains most of the provisions of Sec. 101 of the proposed Defense Transformation for the 21st Century, there are some personnel-related provisions in the transformation proposal which were included.9 Contracting for Personal Services The transformation proposal would create a new section in Title 5, U.S. Code (proposed 5 U.S.C. 9903) relating to contracting for personal services -- ! New 5 U.S.C. 9903(a) -- Outside the United States. Funds available to the Department of Defense would be available to contract with 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. Current law -- See, for example, U.S. Code Title 41, Chapter 6 -- Service Contract Labor Standards. Homeland -- Sec. 835 of P.L. 107-296 is related in that it addresses the issue of prohibiting contracts with corporate expatriates. ! New 5 U.S.C. 9903(b) - National Security Missions. Notwithstanding any other provision of law, sums made available to DOD by appropriation or otherwise could be expended as determined by the secretary to be necessary to carry out the national security mission of DOD for personal services contracts, including personal service without regard to limitations on types of persons to be employed. Current law -- See, for example, 10 U.S.C. 2393 - Prohibition against doing business with certain offerors or contractors, 10 U.S.C. 2408 - Prohibition on persons convicted of defense contract related felonies and related criminal penalty on defense contractors, and 50 U.S.C. 403j - Central Intelligence 9 The reader is encouraged to check CRS Report RL31805, Authorization and Appropriations for FY2004: Defense, by Amy Belasco and Stephen Daggett, for a more complete discussion of H.R. 1588. Also, the personnel provisions as proposed by the Department of Defense compared with current law are set out in CRS Report RL31916, Defense Department Original Transformation Proposal: Compared to Existing Law, by Robert L. Goldich, Gary J. Pagliano, Barbara L. Schwemle, and Thomas J. Nicola. CRS-66 Agency; appropriations; expenditures. See also 50 U.S.C. 403j - Central Intelligence Agency; appropriations; expenditures, which 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. Homeland -- There are no similar provisions. ! New 5 U.S.C. 9903(c) - Experts and Consultants. - Subject to paragraphs (2) and (3) and notwithstanding provisions of 10 U.S.C. 129b, the secretary would be authorized to (A) procure by contract the services of experts and consultants (or organizations of them), who may provide such services with or without compensation as determined by the secretary, and may perform such duties as the secretary may prescribe without being deemed to be employees of DOD except, at the discretion of the secretary, for the purposes of (i) the Ethics in Government Act of 1978; (ii) Chapter 73 of Title 5 (Suitability, Security, and Conduct); and (iii) section 27 of the Office of Federal Procurement Policy Act; and (B) pay travel expenses of individuals, including transportation and per diem in lieu of subsistence while such individuals travel from their homes or 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 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) [Note: The text on which this report is based did not have a subsection (3) of 9903(c), only subsections (1) and (2).] Current law -- 5 U.S.C. 3109 - Employment of experts and consultants generally limits temporary contract services to one year and pay for temporary and intermittent contract services to the daily equivalent rate of pay to the highest allowed in 5 U.S.C. 5332 (the General Schedule).10 U.S.C. 129b - Experts and Consultants; authority to procure such services generally provides that authority should be exercised in accordance with 5 U.S.C. 3109. Homeland -- Sec. 831(c) of P.L. 107-296 - Procurement of Temporary and Intermittent Services (in research and development projects) authorizes procurement of temporary and intermittent services of experts and consultants in accordance with 5 U.S.C. 3109, without regard to pay limitation in section 3109. Sec. 832 - Personal services. Authorizes procurement of temporary or intermittent services of experts or consultants in accordance with 5 U.S.C. 3109, but, when necessary to meet an urgent homeland security needs, without regard to the pay limitations in section 3109. ! New 5 U.S.C. 9903(d) - Implementation. Implementation of this section would be at the secretary's sole, exclusive, and unreviewable discretion. There are no similar provisions in law. CRS-67 Contracting for Security Guards and Firefighting Services Title II of the DOD transformation proposal would relate to acquisition policy. Subtitle B would affect the contracting process. Specifically, Sec. 211, Contracting of security guards and firefighting services, would repeal the provisions of 10 U.S.C. 2465. Currently, 10 U.S.C. 2465 places a prohibition on contracts for performance of firefighting or security-guard functions and generally denies obligation or expenditure of DOD appropriated funds for firefighting and security guard functions at any military installation or facility. There were no similar provisions in the Homeland Security Act of 2002. Administrative Transformation The DOD transformation proposal contains some provisions which are directed to the issue of organization within the department and administrative management. However, as the comparison below shows, the proposal could have significant effects on personnel management policy. CRS-68 DOD Transformation Current Law Homeland Security Act for the 21st Century Act of 2002 -- P.L. 107-296 Title IV -- ADMINISTRATIVE TRANSFORMATION Subtitle A -- Transformation of DOD Organization Sec. 401. Reorganization 10 U.S.C. 125 - Sec. 872 - Within the Department of Functions, powers, and Reorganization of P.L. Defense. Subsections (b) duties; transfer, 107- 296 authorizes the and (c) of 10 U.S.C. 125 reassignment, Secretary to allocate or would redesignated as consolidation, or reallocate functions subsections (c) and (d) abolition restricts the among officers and and a new section (b) power of the secretary, establish, consolidate, would be added, except when determined alter, or discontinue providing that, by the president to be organizational units but "Notwithstanding any necessary because of only pursuant to the provision of this title, hostilities or an President's after the expiration of 60 imminent threat thereof, reorganization plan in days after providing to transfer, reassign, Sec. 1502(b) of P.L. notice of such action to consolidate, or abolish a 107-296 or after Congress, the Secretary function, power, or duty expiration of 60 days of Defense, subject to vested in DOD by law. after notifying direction of the President, appropriate would be authorized congressional substantially to transfer, committees. This reassign, consolidate, authority does not reorganize, or abolish a extend to abolishing any function, power, agency, entity, organization, position, or organizational unit, duty vested in the Office program, or function of the Secretary of established or required Defense, or an officer, to be maintained by the official, or agency P.L. 107-108 or other thereof." statute. Sec. 402. Reassignment 10 U.S.C. 143 - Office No similar provision of Personnel Serving in of the Secretary of the Office of the Defense (OSD) Secretary of Defense. personnel establishes a Section 143 of Title 10, permanent limitation on U.S.C., would be OSD military and repealed. civilian personnel, defines personnel, and limits reassignment of functions to evade the personnel limitation CRS-69 DOD Transformation Current Law Homeland Security Act for the 21st Century Act of 2002 -- P.L. 107-296 Sec. 403. Appointments 5 U.S.C. 3326 - No similar provision of Retired Members of Appointments of retired the Armed Forces to members of the armed Positions in the forces to positions in the Department of Defense. Department of Defense. Section 3326 of title 5, A retired armed forces U.S.C., would be member may not be repealed. 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 No similar provision Department of Defense with respect to Personnel Security transferring security Investigative Functions investigative functions, and Defense Personnel but see below. Performing Those Functions grants the Sec. 841(b) of P.L. 107- secretary discretion to 296 - Effect on transfer to OPM Personnel, provides that discretion to accept (1) generally the transfer personnel security to the Department of investigation functions Homeland Security of currently performed by full-time and part-time DOD's Defense Security employees holding Service and, if OPM permanent positions accepts those functions, it shall not cause them to must accept the 5 U.S.C. 3503 - Transfer be separated or reduced employees performing of function provides that in pay for 1 year after those functions and their when a function is transfer; (2) any person supervisors and may transferred from one who, on the day accept support staff and agency to another or preceding transfer to the higher level supervisors. when one agency is Department, held an Transferred personnel replaced by another, Executive Level position would be protected from each competing and who, without a separation or reduction in employee must be break in service, is grade of compensation transferred before the appointed to a DHS CRS-70 DOD Transformation Current Law Homeland Security Act for the 21st Century Act of 2002 -- P.L. 107-296 for one year after transfer receiving agency may position with date. Any transfer for make an appointment comparable duties this purpose would be from another source. continues to be considered a transfer of compensated in the new function under 5 U.S.C. position at not less than 3503. the rate provided for such position for the duration of service in the new position; and (3) that any exercise of authority under chapter 97 of title 5 must conform with the requirements of Sec. 841(b). Sec. 405. Conversions of No similar provision Commercial Activities. (a) Section 2461(b)(3)(A) 10 U.S.C. 2461 - of Title 10, U.S.C., Commercial or would be amended by (1) industrial type striking "of the cost"; (2) functions; required striking "savings" and studies and reports of inserting "best value"; (3) savings to be achieved redesignating clause (iii) before converting to as (iv); and (4) inserting contractor performance after (ii) the following new clause (iii) "Benefits Section 2461(b)(3)(A) in addition to price that states that: warrant performance of (3) An analysis of the function by a source commercial or industrial at a cost higher than that type function for of performance by possible change to Department of Defense performance by the civilian employees." 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 sector will CRS-71 DOD Transformation Current Law Homeland Security Act for the 21st Century Act of 2002 -- P.L. 107-296 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 10 U.S.C. 2462 - No similar provision Value. - Section 2462(a) Contracting for certain of Title 10, U.S.C., supplies and services would be amended by required when cost is striking "such a source lower can provide such supply or service to the Section 2462(a) states Department at a cost that that: is lower (after including (a) In General. -- any cost differential Except as otherwise required by law, provided by law, the executive order, or Secretary of Defense regulation) than the cost shall procure each at which the Department supply or service can provide the same necessary for or supply or service" and beneficial to the inserting "performance accomplishment of the by that source represents authorized functions of CRS-72 DOD Transformation Current Law Homeland Security Act for the 21st Century Act of 2002 -- P.L. 107-296 the best value to the the Department of government, determined Defense (other than in accordance with the functions which the competition requirements Secretary of Defense of OMB Circular A-76." determines must be performed by military or government 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. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31924