Senate Report 108-113 - NASA WORKFORCE FLEXIBILITY ACT OF 2003

[Senate Report 108-113]
[From the U.S. Government Publishing Office]

108th Congress
1st Session SENATE Report
108-113
_______________________________________________________________________
Calendar No. 236

NASA WORKFORCE FLEXIBILITY ACT OF 2003

__________

R E P O R T

of the

COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE

to accompany

S. 610

together with

ADDITIONAL VIEWS

TO AMEND THE PROVISIONS OF TITLE 5, UNITED STATES CODE, TO PROVIDE FOR
WORKFORCE FLEXIBILITIES AND CERTAIN FEDERAL PERSONNEL PROVISIONS
RELATING TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, AND FOR
OTHER PURPOSES

July 28 (legislative day, July 21), 2003.--Ordered to be printed

________

U.S. GOVERNMENT PRINTING OFFICE

*(Star Print) WASHINGTON : 2003

COMMITTEE ON GOVERNMENTAL AFFAIRS

SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas

Michael D. Bopp, Staff Director and Chief Counsel
Ann C. Fisher, Deputy Staff Director
Theresa Prych, Legislative Aide, Oversight of Government Management,
the Federal Workforce, and the District of Columbia Subcommittee
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Lawrence B. Novey, Minority Counsel
Emily J. Kirk, Minority Council, Oversight of Government Management,
the Federal Workforce, and the District of Columbia Subcommittee
Amy B. Newhouse, Chief Clerk
Calendar No. 236
108th Congress Report
SENATE
1st Session 108-113

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

NASA WORKFORCE FLEXIBILITY ACT OF 2003

_______

July 28 (legislative day, July 21), 2003.--Ordered to be printed

_______

Ms. Collins, from the Committee on Governmental Affairs, submitted the
following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany S. 610]

The Committee on Governmental Affairs, to which was
referred the bill (S. 610) to amend the provisions of title 5,
United States Code, to provide for workforce flexibilities and
certain Federal personnel provisions relating to the National
Aeronautics and Space Administration, and for other purposes,
reports favorably thereon with amendments and recommends that
the bill do pass.

I. Purpose and Summary

The purpose of S. 610, the NASA Workforce Flexibility Act
of 2003, is to enhance existing workforce flexibilities and
establish new flexibilities for the National Aeronautics and
Space Administration. NASA is directed to establish, in
consultation with employees, a workforce plan to identify the
agency's workforce needs and describe how the flexibilities
contained in S. 610 will address those needs. The flexibilities
contained within this Act may not be used in a manner
inconsistent with the workforce plan. The workforce plan must
be approved by the Office of Personnel Management and presented
to Congress for review before implementation.

II. Background

On March 6, 2003, House Science Committee Chairman Sherwood
Boechlert and NASA Administrator Sean O'Keefe testified before
the Governmental Affairs Subcommittee on Oversight of
Government Management, the Federal Workforce and the District
of Columbia. In his testimony, Administrator O'Keefe outlined
the human capital challenges facing his agency and recommended
personnel flexibilities for Congress to consider that would
assist NASA in addressing those challenges.\1\
---------------------------------------------------------------------------
\1\ See Senate Hearing Report 108-28, Evaluating Human Capital at
the National Aeronautics and Space Administration.
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During the 1990s, NASA underwent a period of significant
downsizing, a process that left the agency with skill
imbalances. The agency finds itself with an abundance of a
particular skill set but facing a declining number of
experienced employees due to impending retirements.\2\
Additionally, NASA's workforce differs significantly from other
federal agencies in that more than 60 percent are scientists
and engineers.\3\ This places NASA in a difficult position as
nationally, the number of graduates in the physical sciences,
both under- and post-graduate, continues to decrease.\4\ NASA
increasingly finds itself unable to compete with both academia
and the private sector in terms of competitive pay and
benefits.
---------------------------------------------------------------------------
\2\ Currently, 15 percent of NASA's workforce is eligible to retire
and 25 percent of the workforce will be eligible for retirement in five
years.
\3\ In NASA's existing science and engineering workforce,
scientists and engineers over age 60 outnumber those under age 30 by
nearly three to one.
\4\ See National Science Board report Science and Engineering
Indicators--2002.
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NASA has used existing personnel flexibilities \5\ and has
taken steps to identify internal barriers to most effectively
using existing personnel flexibilities, including its 2002
``Freedom to Manage'' initiative.\6\ However, due to its unique
mission. NASA has concluded that current law has not provided
NASA the necessary flexibility to address its workforce
challenges.
---------------------------------------------------------------------------
\5\ NASA has used of existing workforce flexibilities. For example,
NASA was one of the first agencies to hire individuals under the
Federal Career Intern Program, a program established by Executive Order
in 2000 to streamline recruitment for trainee positions in a variety of
positions. NASA has implemented an Automated Staffing and Recruitment
System and widely used the Student Loan Repayment Program. In addition,
NASA has made extensive use of the existing Intergovernmental Personnel
Act (IPA) and term appointment authority.
\6\ In 2002, NASA implemented ``Freedom to Manage'' to ensure the
effective use of existing workforce flexibilities. The intiative
identified internal processes and rules that impeded effective human
capital management. The initiative resulted in delegation of
authorities, reduced levels of review on some actions, streamlined
processes, and more effective use of automated tools to improve
operations.
---------------------------------------------------------------------------
After the introduction of S. 610, discussions continued
with interested parties. Before the bill was considered,
changes were agreed to by the sponsor of the bill, and he
incorporated those changes into an amendment in the nature of a
substitute that he offered and that the Committee agreed to at
its business meeting. For example, NASA would be required to
discuss workforce recommendations made by the Columbia Accident
Investigation Board in its workforce plan. In response to
employee concerns, the provision to remove the cap on the
number of employees who may participate in a demonstration
project at NASA was removed. Concerns that large bonuses would
be paid to managers and supervisors at the expense of other
employees led to inclusion of language limiting the amount of
total dollars that may be paid to managers and supervisors.
Additionally, due to valid concerns that the workforce exchange
program would encompass individuals in a position to influence
contracting decisions, language was added to restrict the
program to individuals in scientific and technical positions.
NASA is engaged in fierce competition with the private
sector for the most qualified candidates. Enhancing
flexibilities NASA has found to be beneficial and implementing
new flexibilities would assist this important federal agency in
being more competitive in recruiting and retaining the kind of
workforce it will need in the 21st Century.

III. Legislative History

On March 6, 2003, the Subcommittee chaired by Senator
George V. Voinovich held a hearing at which Administrator
O'Keefe outlined for Committee Members the human capital needs
of NASA.
S. 610 was introduced on March 13, 2003, by Senator
Voinovich and was referred to the Senate Committee on
Governmental Affairs. The bill was referred to the Subcommittee
on Oversight of Government Management, the Federal Workforce
and the District of Columbia on April 30, 2003. It was
favorably polled from the Subcommittee on June 11, 2003.
S. 610 was considered, amended, and ordered favorably
reported by the Governmental Affairs Committee at its business
meeting on June 17, 2003. Senator Voinovich offered the
amendment in the nature of a substitute described above, on
behalf of himself and Senator Carper, and agreed to modify the
amendment (so as to cap the amount of bonuses that may be
granted to managers and supervisors), as proposed by Senator
Durbin. The Committee agreed to the modified amendment in the
nature of a substitute and ordered S. 610, as amended, reported
favorably by voice vote, with no Members present dissenting.
Senators present were as follows: Collins, Lieberman,
Voinovich, Coleman, Sununu, Levin, Akaka, Carper, Lautenberg,
and Pryor.

IV. Section-by-Section Analysis

Section 9801. Definitions.

This section establishes the definitions of terms to be
used throughout Subchapter I (Sections 9801-9808).

Section 9802. Planning, notification, and reporting requirements

This section provides that, before exercising any of the
workforce authorities under this subchapter, the Administrator
of NASA must submit to OPM for approval a written plan
detailing the workforce needs of NASA, how NASA will use
increased workforce flexibilities to meet those needs, and how
the agency has utilized existing flexibilities and discussion
of workforce recommendations made by the Columbia Accident
Investigation Board. NASA is also required to submit a
workforce plan to Congress and provide it to all employees at
least 60 days before exercising any of the flexibilities in the
plan. Moreover, before submitting a plan to Congress, NASA must
have provided a proposed plan to employee representatives and
must have given their recommendations full and fair
consideration. Modifications of the workforce plan must be
noticed to employoees and their organizations representing NASA
employees for comment, are subject to OPM approval and, must be
submitted to Congress and all employees at least 60 days in
advance of implementation.

Section 9803. Workforce authorities.

This section outlines the workforce authorities that NASA
may propose to exercise in the workforce plan.

Section 9804. Recruitment, redesignation, and relocation bonuses

This section would permit NASA to pay a bonus to an
individual in accordance with its workforce plan if the
Administrator determines that NASA would be likely, in the
absence of a bonus, to encounter difficulty in filling a
position and the individual is newly appointed to the federal
government, currently employed by the federal government and
newly appointed to another position in the same geographic
area, or currently employed by the federal government and is
required to relocate to a different geographic area to accept a
position with NASA.
This section would grant NASA authority to pay the
following bonuses: (1) for positions of critical need, a
maximum of 50 percent of an employee's annual rate of basic pay
at the beginning of the service period, multiplied by the
service period, and not to exceed 100 percent of the employee's
annual rate of basic pay at the beginning of the designated
service period; and (2) for non-critical need positions, a
maximum of 25 percent of an employee's annual rate of basic pay
at the beginning of the service period, multiplied by the
service period, and not to exceed 100 percent of the employee's
annual rate of basic pay at the beginning of the designated
service period. Service agreements under this section must
include the required service period, the method of payment
(including a schedule, which may include a lump-sum payment,
installment payments, or a combination), the amount of the
bonus, the basis for calculating that amount, the conditions
under which the agreement may be terminated before the agreed-
upon service period has been completed, and the effect of the
termination. A service period under this section may not be
less than six months and may not exceed four years. No more
than 25% of the total dollar amount used for bonuses may be
offered for supervisory or managerial positions.

Section 9805. Retention bonuses.

This section would permit NASA to pay a bonus to an
employee in accordance with its workforce plan if the
Administrator determines that the unusually high or unique
qualifications of the employee or a special need of NASA makes
it essential to retain the employee and the employee would be
likely to leave in the absence of a retention bonus. This
section would grant NASA authority to pay bonuses for positions
of critical need to a maximum of 50 percent of an employee's
annual rate of basic pay; for non-critical need positions, NASA
may pay bonuses not to exceed 25 percent of an employee's
annual rate of basic pay. Service agreements under this section
must include the required service period, the method of payment
(including a schedule, which may include a lump-sum payment,
installment payments, or a combination), the amount of the
bonus, the basis for calculating that amount, the conditions
under which the agreement may be terminated before the agreed-
upon service period has been completed, and the effect of the
termination. A service period under this section may not be
less than six months and may not exceed four years. No more
than 25 percent of the total dollar amount used for bonuses may
be offered for supervisory or managerial positions.

Section 9806. Term appointments.

This section would amend title 5 to permit NASA to make a
term appointment for a maximum of six years or extend existing
term appointments to six years. Current statute permits term
appointments for four years, to be extended by a waiver from
OPM. NASA hires individuals for specific scientific and
technical programs; however, as technology does not always
develop rapidly, a term appointment may expire before the
project is complete. This section would provide NASA the
authority to convert a term appointment to a career-conditional
appointment under certain conditions. An appointment may be
converted if (1) the individual was hired under the competitive
examining procedures in title 5, (2) the original announcement
stated the appointment may be converted from term to career-
conditional, (3) the position is in the same occupational
series and geographic location and provides no greater
promotional potential than the term appointment, (4) the
individual has completed at least two years of the term
appointment having served successfully, and (5) the individual
has performed successfully in the position.

Section 9807. Pay authority for critical positions.

This section would allow the NASA Administrator to appoint
up to 10 individuals possessing expertise of an extremely high
level to specific administrative, technical, scientific, and
professional positions needed to carry out critical agency
functions and aid in the accomplishment of the agency's
mission. Individuals hired for these critical positions would
earn a salary not to exceed that of the Vice President. This
authority, which has been granted to other agencies, such as
the Internal Revenue Service, and which exists governmentwide
for 800 such appointments, subject to OMB and OPM approval, is
designed to attract talented individuals to critical positions
in the federal government for short periods of time.

Section 9808. Assignments of intergovernmental personnel.

This section would allow NASA to extend an
intergovernmental personnel assignment for no more than four
years. Current statute provides for a two-year term with the
option of a two year extension. Extensions are to be made with
the concurrence of the employee and the employee's originating
agency or organization. NASA has achieved success using the
provisions of the Intergovernmental Personnel Act (IPA).
However, some scientific and technical projects run more than
four years. NASA finds the need to retain the critical
expertise to support the program to avoid the unnecessary
disruption caused by ending the assignment.

Section 9831. Definitions.

This section establishes the definitions of terms to be
used throughout Subchapter II (Sections 9831-9838).

Section 9832. Administration and private sector exchange assignments.

This section would authorize the Administrator to detail
permanent employees in a scientific or technical position to
private sector entities and accept the detail of private sector
employees to NASA with the concurrence of the employees
involved. Assignments would be made for two years with the
possibility for a two year extension; employees participating
in the exchange must agree to work for the agency for a period
of time equivalent to the assignment. Private sector employees
detailed to NASA are subject to all conflict of interest and
ethics statutes applicable to federal employees. Private sector
organizations are prohibited from including the cost of
salaries and benefits of an employee detailed to NASA in their
direct or indirect costs for a federal contract. Following the
success of Intergovernmental Personnel Assignments and similar
to the Digital Tech Corps Act passed last year by Congress,
this section would offer NASA a tool to exchange talent between
NASA and the private sector for work of mutual concern that the
Administrator determines will be beneficial to both. The
exchange program should also make service at NASA more
attractive and should provide an opportunity for NASA employees
to improve their skills.

Section 9833. Science and technology scholarship program.

This section would require NASA to establish a program for
providing scholarships to students enrolled in academic
programs at accredited colleges and universities appropriate
for professions at NASA. In exchange, students would be
required to complete year-for-year service with NASA. Students
must be U.S. citizens and must not be federal employees.
Scholarships may not exceed the costs associated with attending
the college or university. Students who fail to maintain a high
level of academic standing, as defined by regulation, are
dismissed from their college or university for disciplinary
reasons, or do not complete their program of study would be
required to repay funds received under the scholarship program.
In the event a scholarship recipient fails to complete the
service obligation to the agency, the individual will be
responsible to repay the amount of scholarship received with
penalties. The Administrator shall, by regulation, provide for
the waiver or suspension of a service obligation if completion
of service by an individual would be impossible or would
involve extreme hardship to the individual, or if enforcement
would be contrary to the best interests of the government. The
bill authorizes $10 million per year to be made available for
two years. NASA anticipates the program will support 300
students. This section attempts to assist NASA in addressing
the problem of a declining graduate pool of scientists,
engineers, and technology professionals.

Section 9834. Distinguished scholar appointment authority.

This section would permit NASA to appoint directly to the
General Schedule individuals in professional and research
positions in grades GS-7 through GS-12 who meet specified
education requirements. Veterans' preference applies and public
notice of vacancies is required. This provision is necessary
considering the makeup of NASA's workforce, in which 60 percent
of employees are scientists and engineers. NASA needs a process
to properly recognize academic excellence for professional
positions and eliminate barriers to quickly offering employment
to top graduates.

Section 9835. Travel and transportation expenses of certain new
appointees.

This section would authorize NASA to offer employees
reimbursement for house-hunting trips and limited reimbursement
for home sale and purchase expenses, temporary quarters
allowance, and relocation services. Such benefits are available
to current federal employees who accept a new position within
the federal government. Such reimbursements would help NASA
compete with private sector organizations that are able to
offer generous relocation packages to attract a highly
qualified candidate.

Section 9836. Annual leave enhancements.

This section would change the rules that govern the accrual
of annual leave for new mid-career NASA employees. Currently,
new mid-career hires with significant professional experience
and considerable private sector vacation benefits earn annual
leave at a rate of four hours per biweekly pay period for the
first three years of employment with the federal government.
This section would allow the head of NASA to deem a period of
qualified non-federal career experience for an individual an
equal period of service performed as a federal employee. For
example, 10 years of career experience prior to the
commencement of service with NASA could be treated as 10 years
of federal service, resulting in the new employee being placed
in the 6 hour leave accrual category. This change would assist
NASA in hiring mid-career individuals with significant
professional experience by enabling NASA to allow such
individuals to accrue annual leave at a higher rate than entry-
level employees ordinarily receive.
This section would also provide that all senior executives
and other senior level employees at NASA accrue annual leave at
the maximum rate: one day (eight hours) for each bi-weekly pay
period.

Section 9837. Limited appointments to Senior Executive Service
positions.

This section would combine the limited term and limited
emergency appointments into one limited appointment authority
designed to meet NASA's short-term staffing needs.
Specifically, this section would permit limited SES appointees
to be appointed to career reserved positions, provided that the
limited appointee, immediately before the career reserved
appointment, was serving under a career or career-conditional
appointment outside of the SES (or an appointment of equivalent
tenure). These changes are designed to provide more flexibility
for NASA to address short-term staffing needs at the senior
executive level.

Section 9838. Superior qualifications pay.

This section would allow NASA, after review by OPM, to
adjust the base pay for employees and those redesignated for
positions at NASA at any rate within the GS salary range for
the position. The determination is to be made on the superior
qualifications of the individual and the need of the agency.
Current statute permits pay to be set under the General
Schedule at any step of the pay range for superior
qualifications or agency need for new hires only. NASA has
little ability to set base pay for current employees to
recognize their superior contributions to the agency.
This Act shall be effective 180 days after enactment.

V. Estimated Cost of Legislation

U.S. Congress,
Congressional Budget Office,
Washington, DC, June 25, 2003.
Hon. Susan M. Collins,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 610, a bill to amend
the provisions of title 5, United States Code, to provide for
workforce flexibilities and certain federal personnel
provisions relating to the National Aeronautics and Space
Administration, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.

S. 610--A bill to amend the provisions of title 5, United States Code,
to provide for workforce flexibilities and certain federal
personnel provisions relating to the National Aeronautics and
Space Administration, and for other purposes

Summary: S. 610 would allow the National Aeronautics and
Space Administration (NASA) to modify its personnel and
workforce practices under the bill. NASA would be allowed to
pay higher bonuses to attract and retain individuals with
special expertise, exchange personnel with industrial firms,
and increase compensation or benefits for certain positions. In
addition, the bill would authorize the appropriation of $10
million a year for a new science and technology scholarship
program.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing S. 610 would cost $80 million over
the 2004-2008 period. In 2003, about $2 billion was
appropriated for NASA's personnel costs. Enacting S. 610 would
not affect direct spending or revenues.
S. 610 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 610 is shown in the following table. The
costs of this legislation fall within budget functions 250
(general science, space, and technology) and 400
(transportation).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated authorization level...................................... 15 17 19 22 22
Estimated outlays.................................................. 6 13 18 21 22
----------------------------------------------------------------------------------------------------------------

Basis of estimate: For this estimate, CBO assumes that S.
610 will be enacted by the end of fiscal year 2003. We assume
that the necessary amounts will be appropriated for each year
and that outlays will occur at historical rates for NASA's
personnel costs.
This bill would authorize the appropriation of $10 million
a year for a science and technology scholarship program.
Recipients would be required to work for NASA for a period of
time corresponding to the duration of the scholarship.
Based on information from NASA, CBO estimates that
expenditures for the new personnel benefits authorized by the
bill would cost $5 million to $10 million a year (in 2003
dollars) in most or all of the next five years, depending on
how extensively the agency used some of the new authorities.
CBO estimates that spending for higher bonuses would account
for most of the additional cost. According to NASA, over 5,000
of its roughly 18,000 employees will be eligible to retire by
2008, half of who are in scientific and engineering fields.
Under S. 610, new employees could receive bonuses
equivalent to 100 percent of their salary under certain
conditions (compared to 25 percent under current law), while
current employees with critical skills could be given a one-
time bonus equivalent to 50 percent of their salary (compared
to 25 percent under current law). CBO estimates such bonuses
would cost a total of about $25 million over the next five
years, based on the assumption that such payments would likely
increase over time in response to recruitment needs and payment
schedules. The estimated cost is equivalent to giving the
maximum bonus to an average of 90 individuals a year over the
2004-2008 period.
Intergovernmental and private-sector impact: S. 610
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Previous CBO estimate: On May 15, 2003, CBO transmitted a
cost estimate for H.R. 1836, the Civil Service and National
Security Personnel Improvement Act, as ordered reported by the
House Committee on Government Reform on May 8, 2003. Subtitle B
of that bill and S. 610 are nearly identical, as are the CBO
estimates.
Estimate prepared by: Federal costs: Kathleen Gramp; impact
on state, local, and tribal governments: Gregory Waring; impact
on the private sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.

VI. Evaluation of Regulatory Impact

Paragraph 11(b)(1) of the Standing Rules of the Senate
requires that each report accompanying a bill evaluate ``the
regulatory impact which would be incurred in carrying out this
bill.''
The enactment of this legislation will not have significant
regulatory impact.

VII. Additional Views

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ADDITIONAL VIEWS OF SENATOR DURBIN

I am pleased to support this legislation, as amended, which
will provide a variety of workforce flexibilities to the
National Aeronautics and Space Administration (NASA). This
legislation is very important because it will assist NASA in
its efforts to recruit and retain a workforce that is ready to
meet the scientific and technical challenges necessary to
fulfill its missions. I applaud the efforts of Subcommittee
Chairman Voinovich to evaluate a variety of options, seek input
from interested and affected parties, and carefully consider
alternative approaches in crafting the compromise proposal
approved by the Committee.
I would specifically like to draw attention to Senator
Voinovich's willingness to include provisions to address
Federal employee concerns. The amended legislation, as approved
by the Committee, contains language that will require NASA
workforce plans to be submitted to Congress before the
flexibilities specified in the plans can be implemented. By
including this language, Congress can remain fully engaged in
the process as NASA develops and implements flexibilities for
its workforce. The legislation also contains a provision that
requires NASA officials to describe any reforms to workforce
management practices as recommended by the Columbia Accident
Investigation Board when developing workforce plans. This will
ensure that personnel recommendations resulting from the
Columbia investigation will be addressed.
The original version of the legislation contained language
that would have removed the cap on the number of employees
permitted to participate in Federal demonstration projects at
NASA. Eliminating the cap would have allowed NASA to include
all employees in demonstration projects, subject to any
existing collective bargaining agreements. This language was
removed from the legislation before it was approved by the
Committee. Therefore, the current cap on employees permitted to
participate in Federal demonstration projects remains in place.
Maintaining the cap ensures that new workforce flexibilities
can be appropriately and adequately tested through
demonstration projects without affecting the entire workforce.
During the full committee markup, Senator Voinovich
accepted an amendment I was prepared to offer relating to the
new bonus authorities contained in the legislation. This
amendment required that no more than 25 percent of the total
dollar amount allotted for bonuses in any year may be used for
individuals serving in management and supervisory positions.
This ensures that an adequate amount of bonus funding will be
reserved and available for rank and file scientific and
technical employees. I am pleased that this amendment was
incorporated in the legislation as approved by the Committee.
While I appreciate Senator Voinovich's willingness to
incorporate each of the provisions that I have discussed, I
remain concerned about a provision retained in the amended bill
to establish an exchange program between NASA employees and
private sector employees. This type of program raises serious
concerns about the potential for conflicts of interest. The
bill includes language that would limit participation in the
program to those in scientific and technical positions.
However, I do not believe that making such a change
sufficiently addresses the concern. Senator Voinovich has
indicated his commitment to continue to work with me to address
my remaining concerns about the potential for conflicts of
interest that might arise in this type of exchange program and
to incorporate additional safeguards that may be necessary. I
am confident that we will be able to make further progress on
this section of the legislation prior to Senate floor
consideration.

Richard J. Durbin.

ADDITIONAL VIEWS OF SENATOR AKAKA

S. 610, the National Aeronautics and Space Administration
(NASA) Workforce Flexibility Act of 2003, would provide NASA
added tools to manage its workforce, including an exchange
program whereby NASA could detail its employees to private
companies and rotate private sector employees into NASA. While
I support this legislation, I am concerned that the exchange
program lacks sufficient safeguards to ensure that the program
will benefit NASA. For the program to be effective, there must
be in place an adequate internal management structure that is
transparent and accountable. According to a new General
Accounting Office (GAO) review on the effective use of
workforce flexibilities, the inefficient and ineffective use of
flexibilities can significantly hinder the ability of federal
agencies to recruit, hire, retain, and manage their employees.
For the proposed exchange program to work there needs to be
sufficient safeguards to make certain that the program does not
result in workforce shortfalls. NASA should not lose more
employees and talent than it gains from the private sector. As
such, there should be controls over the proportion and number
of private sector and NASA employees who participate in the
program. The concept of a private sector exchange program is
new in government and untested at NASA. Moreover, the first
exchange program established for the IT industry has not been
in effect long enough for the Office of Personnel Management
(OPM) to report on the administration of the program.
The exchange program also raises concerns over possible
conflicts of interest, since the same private sector employees
who are detailed to NASA under the program may return at a
later date as NASA contractors. Ninety percent of NASA's
workforce are contract or grant workers. The provision would
benefit from additional safeguards to ensure that contractors
do not use the program to gain a competitive advantage in
future contracts with NASA. One way to address that concern is
to institute a cooling off period whereby contractors
participating in the program would be restricted from
contracting with NASA for an appropriate period of time.
Moreover, there need to be assurances that minority owned
and small businesses have the access to participate in the
exchange program. The exchange program should be a genuine
exchange, not an access point for new contracting opportunities
with NASA. I look forward to working with my colleague from
Ohio, Senator Voinovich, to ensure that these concerns are
addressed and that adequate safeguards are included in the
final version of this bill.
Although S. 610 does not specifically address contract
management, I believe that with such heavy reliance on contract
personnel, it is critical that there is effective and strong
contract management at NASA. GAO first identified NASA contract
management as a high risk area in 1990 when GAO's high risk
list was first established. Unfortunately, GAO continues to
find that NASA lacks the systems and processes needed to
oversee contractor activities and control costs effectively.
Last year, the Office of Inspector General at NASA concluded
that the lack of proper contract oversight threatened the
safety of the space shuttle operations. An internal study of
NASA operations questioned the decision to privatize much of
its shuttle operations in light of the reduction of staff
responsible for overseeing NASA contractors. Admiral Harold W.
Gehman (Ret.), Chairman of the Columbia Accident Investigation
Board, has identified management failure as a contributing
factor in the space shuttle disaster. A 2002 RAND study affirms
the importance of NASA oversight of contractors and concludes
that safety is often best served by stability of management.
As an early member of the House of Representatives Space
Caucus, I view NASA's mission of space exploration unique
within the federal government. NASA employees are modern day
pioneers who help uncover the mysteries of the universe and
promote technological advancements. For example, NASA has
developed the wind-shear warning equipment used in commercial
airliners and NASA space scientists have harnessed microgravity
conditions to make advancements in medicine. Yet, despite the
headway made through space exploration, NASA faces many of the
same workforce management challenges faced by other federal
agencies. As Congress prepares to grant new personnel
flexibilities to NASA, Congress must provide strong oversight
over the agency's operational, managerial, and safety
challenges.

Daniel K. Akaka.

VIII. Changes in Existing Law

In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic and existing law, in which no
change is proposed, is shown in roman):

UNITED STATES CODE

TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III. EMPLOYEES

* * * * * * *

Subpart B. Employment and Retention

CHAPTER 31. AUTHORITY FOR EMPLOYMENT

Subchapter I. Employment Authorities

Sec. 3111. Acceptance of volunteer service

* * * * * * *

(d) Notwithstanding section 1342 of title 31, the head of
an agency may accept voluntary service for the United States
under chapter 37 or section 9832 of this title and regulations
of the Office of Personnel Management.

* * * * * * *

Subpart F. Labor-Management and Employee Relations

CHAPTER 73. SUITABILITY, SECURITY, AND CONDUCT

Subchapter V. Misconduct

Sec. 7353. Gifts to Federal employees

* * * * * * *

(b)(1) Each supervising ethics office is authorized to
issue rules or regulations implementing the provisions of this
section and providing for such reasonable exceptions as may be
appropriate.
(2)(A) Subject to subparagraph (B), a Member, officer, or
employee may accept a gift pursuant to rules or regulations
established by such individual's supervising ethics office
pursuant to paragraph (1).
(B) No gift may be accepted pursuant to subparagraph (A) in
return for being influenced in the performance of any official
act.
(3) Nothing in this section precludes a Member, officer, or
employee from accepting gifts on behalf of the United States
Government or any of its agencies in accordance with statutory
authority.
(4) Nothing in this section precludes an employee of a
private sector organization, while assigned to an agency under
chapter 37 or section 9832, from continuing to receive pay and
benefits from such organization in accordance with such
chapter.
Section 125 of Pub. L. 100-238, as amended, Pub. L. 107-347, Title II,
Sec. 209(g)(3), Dec. 17, 2002, 116 Stat. 2932 (5 U.S.C. 8432
note)
(a) Definitions.--For purposes of this section--
(1) the term ``Executive Director'' means the
Executive Director under section 8474 of title 5,
United States Code; and
(2) the term ``Thrift Savings Plan'' refers to the
program under subchapter III of chapter 84 of title 5,
United States Code.
(b) Regulations.--
(1) In general.--The Executive Director shall
prescribe regulations relating to participation in the
Thrift Savings Plan by an individual described in
subsection (c).
(2) Specific matters to be included.--Under the
regulations--
(A) in computing a percentage of basic pay to
determine an amount to be contributed to the
Thrift Savings Fund, the rate of basic pay to
be used shall be the same as that used in
computing any amount which the individual
involved is otherwise required, as a condition
for participating in the Civil Service
Retirement System or the Federal Employees'
Retirement System (as the case may be), to
contribute to the Civil Service Retirement and
Disability Fund; and
(B) an employing authority which would not
otherwise make contributions to the Thrift
Savings Fund shall be allowed, with respect to
any individual under subsection (c) who is
serving under such authority, and at the sole
discretion of such authority, to make any
contributions on behalf of such individual
which would be permitted or required under the
provisions of section 8432(c) of title 5,
United States Code, if such authority were the
individual's employing agency under such
provisions.
(c) Applicability.--This section applies with respect to--
(1) any individual participating in the Civil Service
Retirement System or the Federal Employees' Retirement
System as--
(A) an individual who has entered on approved
leave without pay to serve as a full-time
officer or employee of an organization composed
primarily of employees (as defined by section
8331(1) or 8401(11) of title 5, United States
Code);
(B) an individual assigned from a Federal
agency to a State or local government under
subchapter VI of chapter 33 of title 5, United
States Code;
(C) an individual appointed or otherwise
assigned to one of the cooperative extension
services, as defined by section 1404(5) of the
National Agricultural Research, Extension, and
Teaching Policy Act of 1977 (7 U.S.C. 3103(5));
[or]
(D) an individual assigned from a Federal
agency to a private sector organization under
chapter 37 of title 5, United States Code;
[and] or
(E) an individual assigned from the National
Aeronautics and Space Administration to a
private sector organization under section 8932
of title 5, United States Code; and
(2) any individual who is participating in the Civil
Service Retirement System as a result of a provision of
law described in section 8347(o).
(d) Effective Date.--
(1) In general.--Except as provided in paragraph (2),
the regulations prescribed under this section shall
become effective in accordance with the provisions of
such regulations.
(2) Exception.--The regulations prescribed under this
section shall, with respect to individuals under
subsection (c)(1)(C), be effective as of January 1,
1987.

* * * * * * *

Subpart I. Miscellaneous

CHAPTER 98_NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[Insert legislative text of S. 610: page 46, line 9 through
p. 89, line 24.]

* * * * * * *

TITLE 18. CRIMES AND CRIMINAL PROCEDURE

PART I. CRIMES

CHAPTER 11. BRIBERY, GRAFT, AND CONFLICTS OF INTEREST

* * * * * * *

Sec. 207. Restrictions on former officers, employees, and elected
officials of the executive and legislative branches

* * * * * * *

(2) Persons to whom restrictions apply.
(A) Paragraph (1) shall apply to a person
(other than a person subject to the
restrictions of subsection (d))--
(i) employed at a rate of pay
specified in or fixed according to
subchapter II of chapter 53 of title 5,
(ii) employed in a position which is
not referred to in clause (i) and for
which the basic rate of pay, exclusive
of any locality-based pay adjustment
under section 5302 of title 5 (or any
comparable adjustment pursuant to
interim authority of the President), is
equal to or greater than the rate of
basic pay payable for level 5 of the
Senior Executive Service,
(iii) appointed by the President to a
position under section 105(a)(2)(B) of
title 3 or by the Vice President to a
position under section 106(a)(1)(B) of
title 3,
(iv) employed in a position which is
held by an active duty commissioned
officer of the uniformed services who
is serving in a grade or rank for which
the pay grade (as specified in section
201 of title 37) is pay grade 0-7 or
above; or
(v) assigned from a private sector
organization to an agency under chapter
37 or section 9832 of title 5.

* * * * * * *

(l) Contract advice by former details. Whoever, being an
employee of a private sector organization assigned to an agency
under chapter 37 or section 9832 of title 5, within one year
after the end of that assignment, knowingly represents or aids,
counsels, or assists in representing any other person (except
the United States) in connection with any contract with that
agency shall be punished as provided in section 216 of this
title.

* * * * * * *

Sec. 209. Salary of Government officials and employees payable only by
United States

* * * * * * *

(h) This section does not prohibit an employee of a private
sector organization, while assigned to the National Aeronautics
and Space Administration under section 9832 of title 5, from
continuing to receive pay and benefits from that organization
in accordance with section 9832 of that title.

* * * * * * *

CHAPTER 93. PUBLIC OFFICERS AND EMPLOYEES

Sec. 1905. Disclosure of confidential information

Whoever, being an officer or employee of the United States
or of any department or agency thereof, any person acting on
behalf of the Office of Federal Housing Enterprise Oversight,
or agent of the Department of Justice as defined in the
Antitrust Civil Process Act, or being an employee of a private
sector organization who is or was assigned to an agency under
chapter 37 or section 9832 of title 5, publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any information coming to him in the course
of his employment or official duties or by reason of any
examination or investigation made by, or return, report or
record made to or filed with, such department or agency or
officer or employee thereof, which information concerns or
relates to the trade secrets, processes, operations, style of
work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits,
losses, or expenditures of any person, firm, partnership,
corporation, or association; or permits any income return or
copy thereof or any book containing any abstract or particulars
thereof to be seen or examined by any person except as provided
by law; shall be fined under this title, or imprisoned not more
than one year, or both; and shall be removed from office or
employment.

* * * * * * *

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 26. NATIONAL SPACE PROGRAM

COORDINATION OF AERONAUTICAL AND SPACE ACTIVITIES

Sec. 2473. Functions of the Administration

* * * * * * *

(c) In the performance of its functions the Administration
is authorized--
(1) to make, promulgate, issue, rescind, and amend
rules and regulations governing the manner of its
operations and the exercise of the powers vested in it
by law;
(2) to appoint and fix the compensation of such
officers and employees as may be necessary to carry out
such functions. Such officers and employees shall be
appointed in accordance with the civil-service laws and
their compensation fixed in accordance with the
Classification Act of 1949, except that (A) to the
extent the Administrator deems such action necessary to
the discharge of his responsibilities, he may appoint
not more than four hundred and twenty-five of the
scientific, engineering, and administrative personnel
of the Administration without regard to such laws, and
may fix the compensation of such personnel not in
excess of [the highest rate of grade 18 of the General
Schedule of the Classification Act of 1949, as amended]
the rate of basic pay payable for level III of the
Executive Schedule, and (B) to the extent the
Administrator deems such action necessary to recruit
specially qualified scientific and engineering talent,
he may establish the entrance grade for scientific and
engineering personnel without previous service in the
Federal Government at a level up to two grades higher
than the grade provided for such personnel under the
General Schedule established by the Classification Act
of 1949, and fix their compensation accordingly;

* * * * * * *