[Congressional Record Volume 162, Number 108 (Wednesday, July 6, 2016)]
[House]
[Pages H4334-H4346]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL INFORMATION SYSTEMS SAFEGUARDS ACT OF 2016
General Leave
Mr. CHAFFETZ. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous materials on H.R. 4361.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Utah?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 803 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 4361.
The Chair appoints the gentleman from Illinois (Mr. Hultgren) to
preside over the Committee of the Whole.
{time} 1621
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 4361) to amend section 3554 of title 44, United States Code, to
provide for enhanced security of Federal information systems, and for
other purposes, with Mr. Hultgren in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Utah (Mr. Chaffetz) and the gentleman from
Maryland (Mr. Cummings) each will control 30 minutes.
[[Page H4335]]
The Chair recognizes the gentleman from Utah.
Mr. CHAFFETZ. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, we are here to consider H.R. 4361, the Government
Reform and Improvement Act of 2016.
As amended, the bill combines seven good-government bills, each of
which have been reported by the Committee on Oversight and Government
Reform, and I look forward to hearing from some of the bill's sponsors
as we move this package today.
Broadly speaking, these bills address three key issues: enhancing
Federal information technology security, modernizing the Federal
workforce, and addressing Federal regulatory burdens.
The first topic, enhancing IT security, is addressed through the
first title of the bill and is a cause championed by Representative
Gary Palmer, also the sponsor of the underlying bill that is under
consideration now.
Specifically, title I of the bill addresses a Federal Labor Relations
Authority determination that was based on an incorrect interpretation
of the Federal Information Security Management Act, or what is widely
referred to as FISMA.
The ruling permits Federal employee unions to delay agencies from
implementing timely and necessary cybersecurity protections, like
blocking access to potentially dangerous Web sites, until the agencies
first negotiate with the unions over the changes.
The second topic, Federal workforce modernization, is covered by
titles II, III, IV, and V of the legislation.
Title II includes the text of H.R. 901, a bill introduced by
Representative Mark Meadows of North Carolina, and requires the Office
of Management and Budget to issue guidelines to prohibit access to
explicit Web sites from Federal Government computers, unless such
access is necessary for investigative purposes.
It is kind of ridiculous that we have to legislate this, but it is
such a pervasive problem in our work on the Oversight and Government
Reform Committee, this is a vital bill that is in that package. We have
heard numerous examples of this problem. One individual, for instance,
Mr. Chairman, was at the EPA, the Environmental Protection Agency, and
was identified by the inspector general there. This person was watching
2 to 6 hours per day of explicit material--otherwise known as
pornography--on the clock and paid for by the American taxpayer.
Title III includes the text of H.R. 3032, a bill introduced by
Representative Ken Buck to lengthen the probationary period for Federal
employees to 2 years after training is completed. Currently, Federal
employees have a probationary period of just 1 year, which often does
not give managers sufficient time to evaluate on-the-job performance.
Title IV includes the text of H.R. 4358, a bill introduced by
Representative Tim Walberg. It will modernize the Senior Executive
Service, also known as the SES, the elite administrators within the
Federal Government.
Specifically, the bill will increase the probationary period for SES
members to 2 years and make SES members subject to the same suspension
authorities for misconduct that are already applied to other civil
service employees.
Additionally, agencies will be able to remove SES employees for
``such cause as would promote the efficiency of the service.'' So what
we are trying to do is provide more efficiency, and this is an
appropriate bill.
Title V includes the text of H.R. 3023, a bill introduced by
Representative Dennis Ross of Florida to require the Office of
Personnel Management to release an annual report on the use of official
time by agencies. Official time is when Federal employees perform
representational work for a union in lieu of normally assigned work. I
think it is appropriate that we have some more specificity for Congress
to understand what is happening here.
The third topic, addressing regulatory burdens is covered by the
final two titles of the bill, title VI and title VII. Title VI includes
the text of H.R. 4612, a bill introduced by Representative Tim Walberg
of Michigan to prohibit agencies from proposing or finalizing rules in
the period between the day of a Presidential election and the
inauguration day of a new President.
This provision will address a recurring problem where sitting
Presidents of both parties will rush through the regulations at the end
of the term which have been come to be known as midnight regulations.
To counter the problem of midnight regulations, every President since
Ronald Reagan who has taken over from the opposite party has issued an
immediate regulatory moratorium to pause the regulatory process until
it can be reviewed. Rather than forcing incoming Presidents to handle a
torrent of new regulations advanced by an outgoing President, the bill
would allow new Presidents to move forward on regulations they deem
appropriate.
Mr. Chairman, title VII includes the text of H.R. 4921, a bill
introduced by Representative Mark Walker, also of North Carolina, to
require the Internal Revenue Service to mirror what the agency requires
of taxpayers in its own recordkeeping requirements.
Imagine that--the IRS has to live under the same standards that they
make the American people live under.
Specifically, the IRS requires taxpayers to keep their tax year
information for 3 years after filing. This bill does the same.
A lot of good bills are wrapped into this package. I urge our Members
to support it.
Mr. Chairman, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Chairman, I yield myself such time as I may
consume.
I rise in strong opposition to this legislation, which is yet another
Republican assault on Federal employees and the Obama administration.
Some Members claim this is a good-government bill. That is simply not
true. This legislation is a mishmash of several bills that would damage
employee rights, weaken public health and safety, and do little, if
anything, to advance government reform.
Although there are many troublesome provisions, I will focus on the
more harmful parts of the legislation.
First, this bill would allow agency heads to fire senior executives
with little notice. A senior executive would be allowed to appeal an
agency decision only after removal. The agency decision would be deemed
final if an administrative law judge failed to issue a decision within
21 days. This could bind an executive to an agency's decision by
default rather than by judgment on the merits of his or her case. That
is simply unfair.
Almost identical provisions were included in a law enacted in 2014
affecting the Department of Veterans Affairs. Not surprisingly, they
are being challenged on constitutional grounds in the Federal circuit
court of appeals. The Department of Justice has acknowledged some of
the constitutional infirmities by choosing not to defend some of these
provisions.
This bill also would lengthen the probationary period for new
employees from 1 year to 2 years. By this extended probationary period,
these workers essentially would be at-will employees. They would have
minimal due process rights if they are unfairly fired, and they would
have minimal appeal rights if unwarranted disciplinary action is taken
against them.
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I understand that this legislation is intended to provide agencies
with more authority to root out so-called bad apples from the Federal
workforce. However, I do not believe the solution to getting rid of a
few bad apples is to attack the due process rights of millions of
hardworking, dedicated Federal employees who serve the American people
honorably every single day.
These provisions would also endanger whistleblowers and make
employees more vulnerable to retaliation for reporting waste, fraud,
and abuse. History has shown why these due process protections are so
necessary.
I would like to read from a report issued by the Merit Systems
Protection Board in 2015:
``Due process is there for the whistleblower, the employee who
belongs to the `wrong' political party, the reservist whose periods of
military service are inconvenient to the boss, the scapegoat, and the
person who has been misjudged based on faulty information. Due process
is a constitutional requirement and a small price to pay to ensure the
American people receive a merit-based civil service rather than a
corrupt spoils system.''
[[Page H4336]]
We must remember that Congress put in place these due process
protections to eliminate this spoils system. Now by trying to move
Federal employees back to being at-will employees, our Republican
colleagues would be returning us to that broken and dangerous system.
Another misguided provision in this bill would block the President
from finalizing significant regulations during the last months of his
term, even if those regulations have been in the works for an extended
period of time. Blocking agencies from finalizing rules they had been
working on for years just because it is the end of a President's term
is not good policy and it is certainly not good governing.
I include in the Record a letter from the American Association for
Justice, dated February 29, 2016, and a letter from the Coalition for
Sensible Safeguards, dated March 1, 2016.
American Association for Justice,
February 29, 2016.
Re The Midnight Rule Relief Act of 2016 (H.R. 4612).
Hon. Elijah Cummings,
Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Ranking Member Cummings: AAJ urges members of the
committee to oppose the Midnight Rule Relief Act of 2016
(H.R. 4612) which would impose a moratorium on any new
proposed or final major regulations during the final months
of this and future presidential administrations.
This misguided bill would jeopardize crucial public
protections by blocking regulations based on timing alone. It
presumes the regulations which are proposed or finalized
during the so-called ``midnight'' rulemaking period are
rushed and inadequately vetted. Yet many of the regulations
which this moratorium would apply to have been in the
regulatory process for years. These regulations were
delegated by Congress to agencies in order to protect
children from toxic toys, families from tainted food, and
consumers from financial exploitation.
Furthermore, the need to ban such regulations has not been
demonstrated. The Administrative Conference of the United
States (ACUS) conducted an extensive study of regulations
finalized near the end of previous presidential terms and
found that found that the majority of the rules are either
routine matters or tasks that were initiated before the
Presidential transition period or the result of deadlines
outside the agency's control (such as year-end statutory or
court-ordered deadlines).
It is also important to consider the varied regulations
which could be impacted by this moratorium. One example is
the pending Centers for Medicare and Medicaid (CMS)
regulation on long term care that contains important
protections for nursing home residents. This regulation could
also offer nursing home residents protection from forced
arbitration clauses. This rulemaking is scheduled to be
finalized in the fall and has been on the CMS' regulatory
agenda for three years. There is no reasonable basis to
prevent CMS from implementing important protections for
nursing home residents.
This moratorium could impact a number of meaningful
regulations aimed at improving the health, safety and welfare
of the American people. Yet the need for such a drastic
action is not supported. Under the guise of attacking the
regulatory actions of the Obama Administration, this bill
guts effective public health and safety measures and should
not be tolerated.
AAJ urges members of the committee to vote no on H.R. 4612,
the Midnight Rule Relief Act of 2016.
Sincerely,
Linda A. Lipsen,
Chief Executive Officer,
American Association for Justice.
____
Coalition for
Sensible Safeguards,
March 1, 2016.
Re Midnight Rule Relief Act of 2016 (H.R. 4612).
Hon. Jason Chaffetz,
Chairman, House of Representatives, Oversight & Government
Reform Committee, Washington, DC.
Hon. Elijah Cummings,
Ranking Member, House of Representatives, Oversight &
Government Reform Committee, Washington, DC.
The Coalition for Sensible Safeguards (CSS), which includes
more than 150 diverse labor, consumer, public health, food
safety, financial reform, faith, environmental and scientific
integrity groups representing millions of Americans, urges
members of the committee to oppose the Midnight Rule Relief
Act of 2016 (H.R. 4612) which would impose a blanket
moratorium on any new proposed or final major regulations
during the final months of this and future presidential
administrations.
This bill would jeopardize public protections affecting
public health and safety and the environment that often are
years, if not decades, in the making. Worse, it would exempt
attempts in the final days of an administration, through
rulemaking, to ``undo'' or weaken existing regulations.
The proposed legislation is based on a fatally flawed
premise: that regulations proposed or finalized during the
so-called ``midnight'' rulemaking period--the period
following the election and before the inauguration of the new
president--are rushed and inadequately vetted.
In fact, the very opposite is true. There are currently
dozens of public health and safety regulations that have been
in the regulatory process for years or decades, including
many that date from the Obama Administration's first term or
implement laws passed in the first term. Indeed many
regulations predate this Administration entirely. Many of
these regulations were mandated by Congress and have missed
rulemaking deadlines prescribed by Congress. Referring to
regulations that have been under consideration by federal
agencies for years, and in some instances decades, as
``rushed'' simply is not true.
A small sampling of long-delayed regulations that could be
blocked by this moratorium illustrates the harmful impact of
the bill.
The pending Occupational Safety and Health Administration
regulation protecting workers from exposure to the toxic
carcinogen silica has been in the regulatory process for
nearly twenty years and the current silica standard dates
from 1971.
Critical pipeline safety regulations have yet to be
completed under the 2011 Pipeline Safety Act, an issue of
urgent bipartisan concern given recent pipeline ruptures and
leaks.
The Food and Drug Administration has yet to implement
regulations under the 2009 Tobacco Control Act to safeguard
the public and particularly young people, from new and
potentially dangerous tobacco products such as electronic
cigarettes.
Approximately a quarter of required rulemakings under the
Dodd-Frank Wall Street Reform Act have yet to be implemented
over five and a half years after the law was enacted and
nearly eight years since the financial crash. Among those
rules are important measures to bring transparency to bank
executive compensation and limits on excessive speculation
that drive up energy prices for consumers.
The Interior Department has yet to finalize the ``blowout
preventer'' rule that was a primary factor in leading to the
massive British Petroleum oil spill in the Gulf almost six
years ago.
Prominent administrative law experts have concluded that
the concerns regarding these regulations are not borne out by
the evidence. For example, in 2012 the Administrative
Conference of the United States (ACUS) conducted an extensive
study of regulations finalized near the end of previous
presidential terms and found that many ``midnight
regulations'' either were ``relatively routine matters not
implicating new policy initiatives by incumbent
administrations,'' or ``the result of finishing tasks that
were initiated before the Presidential transition period or
the result of deadlines outside the agency's control (such as
year-end statutory or court-ordered deadlines).'' In the end,
ACUS concluded, ``the perception of midnight rulemaking as an
unseemly practice is worse than the reality.''
As the ACUS study points out, there is little to no
empirical evidence supporting claims that regulations
finalized near the end of presidential terms were rushed or
did not involve diligent compliance with mandated rulemaking
procedures. In fact, it is likely that compliance with the
current and too lengthy regulatory process prevents agencies
from finalizing new regulations efficiently, and thus earlier
in presidential terms.
This is because many of the regulations that Congress
intended to provide the greatest benefits to the public's
health, safety, financial security, and the environment
currently take several years, decades in some instances, for
agencies to implement due to the extensive and, in many
cases, redundant procedural and analytical requirements that
comprise the rulemaking process. Indeed, CSS maintains that
the inherent inefficiency of the current regulatory process,
leading to a broken system of regulatory delays and paralysis
across agencies, is the primary area in most of need of
urgent attention and reform by this Committee.
Making matters worse, H.R. 4612 establishes a flagrant and
unjustifiable double-standard in the regulatory process by
exempting deregulatory rules from the moratorium, thereby
prioritizing deregulation over pro-protection measures. The
practical effect of this exemption is to ensure that the
legislation will only apply to administrations that favor
pro-regulatory measures and thus creating a permanent
loophole for administrations that favor deregulatory
measures. This one-sided application betrays foundational
administrative law principles that require regulatory
procedural mandates to apply to both deregulatory and pro-
regulatory actions in a neutral and fair fashion.
Taking the claims of ``midnight regulation'' critics at
face value, there is simply no principled basis for allowing
deregulatory measures to be ``rushed'' through the process
without ``adequate vetting'' while at the same time
preventing agencies finalizing and implementing public
protections by falsely claiming that they did not receive
adequate consideration.
This Administration ends on January 20, 2017. It is
incumbent on them to do their constitutional duty to
implement the laws of Congress until that date.
CSS urges members of the committee to reject both the
Midnight Rule Relief Act of 2016 (H.R. 4612) and false and
misleading rhetoric that bears no reality to the real
[[Page H4337]]
problems of excessive and systemic delay in the regulatory
process.
Sincerely,
Robert Weissman,
President, Public Citizen, Chair,
Coalition for Sensible Safeguards.
Mr. CUMMINGS. The letter from the American Association from Justice
states:
``This misguided bill would jeopardize crucial public protections by
blocking regulations based on timing alone. It presumes the regulations
which are proposed or finalized during the so-called `midnight'
rulemaking period are rushed and inadequately vetted. Yet many of the
regulations which this moratorium would apply to have been in the
regulatory process for years.''
Contrary to what our Republican colleagues may believe, the President
is a President until January 20, 2017, according to the Constitution.
Just as the Republicans are wrong for blocking the President's Supreme
Court nominee in his last year of his term, this provision is also
wrong, it is awfully wrong, for attempting to curtail the authority of
a President of the United States to protect the interests of the
American people.
I urge my colleagues to join me in opposing H.R. 4361.
I reserve the balance of my time.
Mr. CHAFFETZ. Mr. Chairman, I yield 5 minutes to the gentleman from
Alabama (Mr. Palmer), the sponsor of the bill under consideration
today.
Mr. PALMER. Mr. Chairman, the Federal Government's most important
responsibility is to protect this Nation and our citizens, particularly
when it comes to defending against cyber attacks.
In June and July of last year, 2015, the Office of Personnel
Management announced the largest government data breach in history. The
personally identifiable information of over 22 million Americans was
compromised, including background investigation and fingerprint data.
The national security impact of the OPM data breach will resonate for
decades.
Under the Federal Information Security Management Act, or FISMA, the
head of each agency is responsible for securing its information systems
from unauthorized access and other threats posed to our Nation's
security and economic vitality.
But under a mistaken interpretation of FISMA, the Federal Labor
Relations Authority determined Federal employee unions can block
agencies from taking action to implement cybersecurity protections
against direct risks until the agencies first negotiate on them.
Mr. Chairman, the security of Americans' data is nonnegotiable and
should not be eligible for bargaining. Securing hundreds of millions of
Americans' data and millions of Federal employees' data is more
important than the convenience of a few Federal employees in using
government computer systems for personal use.
This bill ensures that the head of a Federal agency does not just
have the responsibility to swiftly secure the agency's networks, but
also has the authority to do so, and without having to go through
collective bargaining.
The next time a Federal agency acts in the interest of securing
Americans' data, the head of the agency should be confident the action
will not be challenged because the agency did not engage in bargaining
over cybersecurity.
I believe this is an important step that we can take to empower
Federal agencies to act quickly to secure agency networks and protect
Americans from cyber attacks.
I urge my colleagues to support this bill.
Mr. CUMMINGS. Mr. Chairman, I yield 3 minutes to the gentleman from
Pennsylvania (Mr. Cartwright).
Mr. CARTWRIGHT. Mr. Chairman, I thank the ranking member from
Maryland.
Mr. Chairman, I rise today in opposition to another attempt by
Republicans to undermine due process protections, prevent the President
from finalizing rules during his last months in office, and override
collective bargaining rights for Federal employees.
In fact, this bill, H.R. 4361, eliminates the ability of agencies to
issue rules toward the end of a President's term, assuming some kind of
shoddy rulemaking to finalize a rule before a President's term is up.
This kind of assumption is wrong. There is nothing shoddy going on. The
Administrative Conference of the United States found most end-of-term
rules related to routine matters or were issued in response to
deadlines outside of the agency's control.
This is nothing more than another effort to reverse the will of the
American people when they reelected President Obama in 2012 by
impairing the ability of our government to function in the last months
of his term.
Additionally, H.R. 4361 is like Christmas in July for those opposed
to the labor rights of our fellow Americans, including anti-family
provisions and provisions of dubious constitutionality.
Specifically, this bill exempts from collective bargaining
requirements any action taken by an agency head to limit, restrict, or
prohibit access to a Web site that the agency head determines presents
a security risk to the agency's IT systems.
In practice, this would erode collective bargaining rights by
excluding ``any impact or implementation'' of such an action from
collective bargaining requirements, such as reasonable accommodations
to allow an employee to communicate with family members or schools.
H.R. 4361 also subjects the members of our Senior Executive Service
to the political whims of Presidents by stripping them of their ability
to appeal their termination after a decision by an administrative law
judge.
The Department of Justice has declined to defend the
constitutionality of similar provisions before the court of appeals for
the Federal circuit.
H.R. 4361 should have no place in our American laws. I strongly urge
my colleagues to keep it that way.
Mr. CHAFFETZ. Mr. Chairman, I yield 3 minutes to the gentleman from
Michigan (Mr. Walberg), who has been integral in making this bill a
reality. I thank him for his hard work in championing these efforts.
Mr. WALBERG. Mr. Chairman, I thank the chairman.
Mr. Chairman, I am not sure what bill my friends on the other side
are talking about, but I am glad to be talking about a great bill that
my friend, the gentleman from Alabama (Mr. Palmer), has introduced. I
appreciate his work on the Oversight and Government Reform Committee to
craft H.R. 4361, the Government Reform and Improvement Act of 2016. It
includes a series of good government reforms that will provide more
accountability and transparency to Federal bureaucracy that is sorely
lacking each.
I am proud the legislation includes two of my bills: the Senior
Executive Service Accountability Act and the Midnight Rule Relief Act.
The Senior Executive Service Accountability Act brings much-needed
reform and gives agencies commonsense tools to hold senior leaders more
accountable for their taxpayer-funded work.
Specifically, the bill ensures employee performance is measured,
eliminates loopholes that allow reprimanded officials from keeping
perks like executive pay, and expedites the removal process for
individuals who have been found to have engaged in misconduct.
To be clear, there are many in the Federal workforce, including
senior executives, who are hardworking public servants. We thank them
for their hard work. However, as we have seen repeatedly in hearings
before our committee, there are also bad actors who have grossly abused
their position, and the Senior Executive Service Accountability Act is
an important step towards holding these bad actors accountable and
restoring public trust.
The underlying bill also contains the Midnight Rule Relief Act. It
establishes a moratorium period between the Presidential election and
the inauguration on regulations that result in major costs or price
increases for consumers and small businesses.
Pushing costly regulations at the last minute has been an issue with
previous administrations of both political parties. The Midnight Rule
Relief Act will hold the current and future outgoing administrations in
check to ensure small businesses in Michigan and across the country
aren't faced with a surprise onslaught of excessive regulations that
stifle wages, job creation, and economic growth.
I want to, again, commend the work of Mr. Palmer and the Oversight
and Government Reform Committee for
[[Page H4338]]
their great work to ensure a more accountable and transparent Federal
Government.
I urge my colleagues to support H.R. 4361.
Mr. CUMMINGS. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Michigan (Mrs. Lawrence).
Mrs. LAWRENCE. Mr. Chairman, I thank Ranking Member Cummings.
Mr. Chairman, I rise today in strong opposition to H.R. 4361.
Clearly, my colleagues on the other side have good intentions, but
they need to be informed and corrected and understanding. I served 30
years as a Federal employee. During that time, I served as an EEO
investigator. I looked at actions that were made against Federal
employees that were not in compliance. I understand the undue burden
that this legislation will put on Federal workers and labor
organizations. H.R. 4361 combines proposals attacking Federal employees
with regulatory measures, many of which hinder the performance of one
of our Nation's largest workforces.
When we considered this legislation in committee, I offered an
amendment to strike the provisions in title III of H.R. 3023, and
require each employing agency to make an affirmative decision in
writing near the end of an employee's probationary period stating that
the individual's performance is acceptable, which the Office of
Personnel Management considers a best practice in managing the
performance of employees.
Mr. Chairman, instead of debating legislation that would undermine
due process provisions, we should be looking at how we can protect our
citizens through commonsense gun control legislation and maintain
access to affordable health care for all Americans.
Mr. CHAFFETZ. Mr. Chairman, I yield 3 minutes to the gentleman from
North Carolina (Mr. Walker), who has poured his heart and soul into
this. I am glad that he is participating and joining us here today.
{time} 1645
Mr. WALKER. I thank the chairman, and I thank my distinguished
colleague from Alabama for working so diligently on this piece of
legislation.
Mr. Chair, I rise in support of my bill, H.R. 4921, the Ditto Act.
The Ditto Act is not just about ensuring that the Internal Revenue
Service properly maintains its records; it is also about holding the
government and the powerful to the same standards to which they hold
American citizens.
This bill states that, if the IRS requires American citizens to
maintain their tax records, then the IRS also has to maintain any
record for at least 3 years.
Currently, the IRS requests or recommends American citizens maintain
certain records or tax information for the ``just in case.''
Essentially, the IRS says that American citizens have to hold on to
their information for years at a time in the event that the IRS may
request information to audit us, to investigate us, or to take some
similar action. However, current investigations and congressional
hearings show that the IRS does not hold itself to the same standards,
and it does not properly maintain its own records.
This unequal enforcement of the law is part of a bigger problem.
Continued and recent events, as we have seen recently, point to the
fact that government agencies, such as the IRS, attempt to play by
different rules than the rest of us.
The Ditto Act is another step in ensuring that government bureaucrats
are held to the same standards as all Americans. If the IRS insists
that we maintain our records, then the IRS should have to play by the
same rules and be held similarly accountable for the same information.
That is why I have introduced this simple piece of legislation. This
bill provides a level playing field. It tells American citizens that
their government is operating under the same set of rules that it
requires all of us to operate under. I hope my colleagues will join me
in supporting this effort.
Mr. CUMMINGS. Mr. Chair, I yield 3 minutes to the gentlewoman from
the Virgin Islands (Ms. Plaskett).
Ms. PLASKETT. Mr. Chair, I rise in opposition to H.R. 4361, which is
yet another Republican attack on the Federal workforce and labor
organizations.
This bill is, essentially, an attempt to micromanage the government.
The bill is a collection of measures that undermine due process
protections, that prevent the Obama administration from finalizing
rules during its last 2 months in office, and that override collective
bargaining rights for Federal employees.
The bill would bar most regulations from being finalized by,
virtually, every Federal department or agency during the last 2 months
of the Obama administration, regardless of when they were proposed or
how long they have been in the rulemaking process. Additionally, H.R.
4361 exempts from civil service collective bargaining requirements any
agency action limiting access to any Web site the agency determines
presents a current or a possible future security weakness to its
information systems.
The bill's language is unnecessary because current law already
authorizes Federal agencies to ``ensure that all personnel are held
accountable for complying with the agency-wide information security
program.''
In practice, this provision could allow agencies to cut off Federal
employees' ability to communicate with childcare providers or to get
information on a weather emergency in the event of their children's
schools closing early, with there being no opportunity to negotiate
alternative arrangements. The provision could also be selectively
invoked to block access to the official Web sites of Federal unions.
Under current law, there is no right to bargain over the substance of
agency information systems decisions, only over appropriate
arrangements in the event that those decisions create an adverse impact
on employees. In addition, agencies can take any action without
bargaining in advance if there is an emergency. Agencies currently have
broad authority in this area, making any additional limitation on
employees' ability to have a voice in their working environments
unnecessary.
Further burdening Federal workers, H.R. 4361 would extend the
probationary period for newly hired General Schedule employees from 1
year to 2 years. For positions requiring formal training, the 2-year
time period would only commence after the required formal training.
This is unnecessary as the current 1-year probationary period allows
sufficient time for agency management to assess and determine whether
an employee is suitable for most positions and is capable of performing
his duties.
In the Statement of Administration Policy, the President's senior
advisers stated that they would recommend he veto this bill.
As I said before, this bill is, essentially, an attempt to
micromanage the government, which is not this body's purpose, and we
should get on with the business of what Congress is supposed to do.
Mr. CHAFFETZ. Mr. Chair, I yield 3 minutes to the gentleman from
Colorado (Mr. Buck).
Mr. BUCK. I thank the gentleman for the opportunity to speak on this
important legislation.
Mr. Chair, our Federal Government relies on the contributions of
civil servants to run Federal agencies and to faithfully execute our
laws. We place significant responsibility into the hands of these
executive branch employees. Others still are placed in senior
management roles where the impacts of their performance and competency
are felt throughout the agencies and by those citizens who interact
with them. We expect Federal employees to run the government
efficiently and fairly; so we should treat them the same way. That is
what this bill does.
When a typical employee is hired for the civil service, he begins in
a probationary period, during which time the employee can be relieved
of his duties if he fails to perform well. After the probationary
period, the employee receives greater protection from being fired, even
if he is underperforming. This bill extends the probationary period of
employees in both the competitive civil service and the Senior
Executive Service from 1 year to 2 years. If the employee requires
training or licensing, the probationary period begins when training and
licensing are complete.
This extended probationary period gives us time to assess the skills
of government employees. If an employee
[[Page H4339]]
isn't up to the task he or she has been assigned, it is unfair to
everyone else who is working hard or competently in that agency to
retain the underperforming individual. Moreover, the morale of Federal
agencies depends on their having strong teams with strong employees.
Anyone who has run an office knows that one bad apple can drag the
whole team down.
That is why this bill is so important. We need strong teams working
in the Federal Government, and our current Federal employees deserve
competent team members. Only then will our bureaucracy be more
efficient and better able to serve the American taxpayer, because,
ultimately, taxpayers pay the salaries of our Federal employees. For
the sake of the taxpayer, we must create a culture of accountability
and fairness in our Federal hiring practices.
I urge my colleagues to support this commonsense legislation.
Mr. CUMMINGS. Mr. Chair, I reserve the balance of my time.
Mr. PALMER. Mr. Chair, I yield 3 minutes to the gentleman from
Georgia (Mr. Jody B. Hice).
Mr. JODY B. HICE of Georgia. I commend my colleague from Alabama for
introducing this legislation, which contains a number of bills from the
Oversight and Government Reform Committee.
Mr. Chair, H.R. 4361 contains several excellent provisions to
increase transparency, to enhance oversight, and to restore good
governance.
One of the areas of particular importance to me is the language that
requires the Office of Personnel Management to submit to Congress
reports on the use of ``official time'' by Federal employees.
For those who are unfamiliar with official time, it is the practice
by which Federal employees are paid by taxpayers to conduct union
business, while on the clock, instead of performing the normal
activities and duties of the agencies for which they work. Official
time allows Federal employees who are with the unions to collectively
bargain with their agencies, to arbitrate grievances, and to even
organize or carry out internal union activities, all while being paid
by the taxpayer.
It is staggering to me how much official time is used. Over 3 million
man-hours each year are spent on activities that have nothing to do
with government business. From 1998 to 2012, which is the last period
of time that we have of reliable data, the use of official time has
grown by over a million man-hours per year while the number of Federal
employees who are represented by unions has actually decreased during
that period of time.
In fact, there are several Federal agencies that have many employees
who do nothing but union activity business in spite of the fact that
they were hired for something else. For example, the VA and the IRS
have over 200 employees each who operate exclusively on official time.
Many of these employees are extremely well paid. The Department of
Transportation, for example, has 35 employees with an average salary of
$138,000 who give 100 percent of their time to union activity rather
than to that for which they were hired.
For a point of reference, Mr. Chair, the mean household income in my
district is, approximately, $62,000 a year. Official time, essentially,
means that American taxpayers are being forced to subsidize the union
activities of Federal employees. Federal employee union members pay
union dues, and the taxpayers should not be required to foot the bill.
There is an unfortunate lack of reporting on this issue, and it is,
ultimately, unclear exactly how much official time is being used by
Federal employees. Here in Congress, we are sometimes forced to rely
upon year-old GAO reports and existing FOIA requests.
That is why the OPM reporting that is required under this legislation
is critical. Personally, I am opposed to official time altogether, but
at least we can agree that reporting is necessary for all of us.
I urge the support of H.R. 4361.
Mr. CUMMINGS. Mr. Chair, I reserve the balance of my time.
Mr. PALMER. Mr. Chair, I yield 2 minutes to the gentleman from
Florida (Mr. Ross).
Mr. ROSS. I thank my colleague from Alabama for this legislation and
for this opportunity.
Mr. Chair, I rise in support of H.R. 4361, the Government Reform and
Improvement Act of 2016, and in support of my legislation that is
included in this package, which requires the Office of Personnel
Management to submit an annual report to Congress that details the use
of official time by Federal employees.
``Official time'' is defined as any period of time that is used by a
Federal employee to perform representational or consultative functions
and during which the employee would otherwise be in a duty status.
Essentially, this allows Federal employees to perform union activities
during their official workdays.
As the former chair of the Oversight and Government Reform
Subcommittee on the Federal Workforce, U.S. Postal Service and Labor
Policy, I learned firsthand that OPM has very little accountability for
the use of official time. In fact, the OPM last reported about the use
of official time in the year 2012, which was 4 years ago.
My bill would require the OPM to submit a detailed report annually to
Congress on the use of official time by Federal employees, outlining
specific types of activities or purposes for which this time was
granted. For example, in 2012, Federal employees spent, roughly, 3.4
million hours conducting union business while on duty. This came at a
cost of $157 million to the taxpayer. The taxpayers have a vested right
to know.
At a time when our country is more than $19 trillion in debt, we need
to ensure that we are better accounting for the use of taxpayer
dollars. This legislation will bring greater transparency to the
activities union officials are conducting while being paid by the
American taxpayer.
I thank Chairman Chaffetz and my colleague from Georgia (Mr. Jody B.
Hice) for their support on the Oversight and Government Reform
Committee.
Mr. CUMMINGS. Mr. Chair, I yield 3 minutes to the gentlewoman from
Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. I thank the chairman so very much.
To the manager of the bill on the floor, my good friend who is
representing the majority, I think not one of us can cite an example in
which a Federal employee is not engaged in serving this Nation.
Mr. Chair, over the last couple of months, our focus has been on the
Transportation Security Officers. As I traveled back to Washington and
as I interacted with my constituents, many were concerned about airport
travel and the enhancement of security. I saw TSO officers--government
workers--on the front lines. We see them all the time as they serve
this Nation--from homeland security to, certainly, those who are
working in the health areas now as we face the epidemic of Zika.
In many places, Federal employees stand in the gap by serving us. We
look forward to bright young people who are graduating from college and
who are seeking service in the Federal army, if you will, of civilian
workers who serve their Nation.
I can only say that this legislation, H.R. 4361, disappoints me,
because, first of all, title III would double the probationary period
for Federal employees, unlike in the private sector, from 1 to 2 years.
Federal employees would be at will. They wouldn't have benefits, and
they wouldn't be protected. That is not, certainly, an enticing
recruitment for young, bright college graduates.
Another form of the lack of due process is in title IV, which would
allow senior agency executives to be removed, almost immediately, with
their having only minimal appeal rights. Executives would have only 7
days to file appeals.
{time} 1700
Mr. Chairman, what are we saying to those who we call upon for the
front lines of serving in America--our EPA employees, our Forest
Rangers, they are all over--we are saying that that kind of experience
is to be discarded. It sadly disturbs me.
Lastly, I have never heard of this. I sit on the Judiciary Committee,
and I wonder how title VI would reduce, in the end of a President's
term, his or her right to be able to argue for regulations that would
enhance the American people.
[[Page H4340]]
Let me say to you that we are facing another uphill battle because
right now we are trying to pass no fly, no buy and to close the
loophole to save lives. It is interesting how we are dealing with a
bill that takes away due process rights, but yet we cannot find a
compromise, whose opposition is based upon we are denying an individual
due process.
Well, I tell you I am looking forward to us being able to vote on the
gun legislation of no fly, no buy. I know it very well because I had a
no fly for foreign terrorists. We work on these issues in Homeland
Security.
So if I look at an employment bill that is taking away due process
rights, I am asking for us to come back, give them their rights by not
supporting this legislation and, as well, giving our rights to the
minority to vote on legitimate bills that will save lives; no fly, no
buy, and closing the gun show loophole. I have seen the blood, the
death that has come about from gun violence. It is time to vote to save
lives.
Mr. PALMER. Mr. Chairman, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Chairman, I yield 2 minutes to the distinguished
lady from the District of Columbia (Ms. Norton).
Ms. NORTON. Mr. Chairman, it is a mystery to me why we would want to
move forward with this bill. I will have amendments to strike portions
of this bill later. I just want to speak to a couple of the reasons.
The extension of the probationary period, for example, may not raise
constitutional issues. A GAO report was done and indicated that the
problem was not with length of the probationary period, but with the
use of the probationary period; that supervisors simply weren't using
it, and that many of them didn't even know when the probationary period
ends.
So why would we want to lengthen the probationary period?
I am not sure who that helps. Does it help the employee or does it
help the agency?
In any case, depending, as I do, on an objective source, this section
is unnecessary.
To cite another section, the termination of an employee in the SES is
an absolutely bad way to deal with somebody who is not making it as a
manager, but was good enough to be promoted to the SES. We have
invested millions of dollars in an employee by the time that employee
gets to be a top SES employee and gets promoted to manager. It won't be
the first time that somebody has been an excellent employee, but when
he got to managing whole divisions, he was not good.
Why get rid of that employee instead of demoting that employee, as is
now done?
Finally, this bill is replete with due process problems. For example,
it expedites the removal and appeals process and takes it away entirely
in some instances. This bill reeks of constitutional infirmities. It
should not be passed.
You will find Members on our side who want to sit down and improve
the process and are ready to do so.
Mr. PALMER. Mr. Chairman, I would like to make the gentleman from
Maryland (Mr. Cummings) aware that I have no further speakers and I am
prepared to close.
I reserve the balance of my time.
Mr. CUMMINGS. Mr. Chairman, how much time do I have remaining?
The CHAIR. The gentleman from Maryland has 11\1/2\ minutes remaining.
Mr. CUMMINGS. Mr. Chairman, I yield myself such time as I may
consume.
In closing, I cannot emphasize strongly enough how unnecessary,
damaging, and constitutionally defective this legislation is.
You know, as Ms. Jackson Lee was speaking, Mr. Chairman, I could not
help but think about a young lady that I met at NIH a few years ago
when the government was shut down. I was talking to her, and I was
asking her about her job. And one of the things she said was that she
was very, very upset.
And I said: ``Well, are you upset that you are going to possibly lose
money? Or are you upset that you are going to have problems?''
She said: ``No, I am not so upset about losing my job because I can
always find a job.'' She said: ``The thing I am upset about is that if
the government shuts down, that means that there are all kinds of
research that is going to be stopped and we won't be able to see the
breakthroughs that I thought we would be able to see.''
My point is that there are so many Federal employees, just like the
ones who work for us, who come to work every day and they have
dedicated their lives to giving to the public. In other words, it is
about the business of feeding their souls.
So often what happens, I have noticed, is we have a way of not
treating them right all the time. And I have been a fierce defender of
the public employee and the Federal employee because I realize that
they are the backbone of this Nation.
Yet, when we look at the negative consequences of this legislation,
they are truly terrible. The bill would reduce due process protections
for new Federal employees and senior executives, enable whistleblower
retaliation. And whistleblower retaliation is something that our
committee has fought and tried to make clear that we would not tolerate
under any circumstances, and I am pleased to say that that has always
been something that both sides of the aisle has been adamant about, and
we should be.
This legislation would bar the President from issuing rules to
protect health and safety during his last months in office. Whether it
was President Obama or any other President, I want our President to
serve out every second of his term and I want him or her to be able to
accomplish the things that the American people elected them to do right
down to the very last second.
Another thing that it does, it erodes collective bargaining rights.
It requires duplicative and burdensome reporting by the Office of
Personnel Management and agencies. It imposes unnecessary guidelines
regarding computer usage. And it requires the IRS to establish an
arbitrary recordkeeping system.
I would like to remind our colleagues that the Federal circuit court
of appeals is reviewing the constitutionality of nearly identical
provisions in the Veterans Access, Choice, and Accountability Act
enacted in 2014. And the Department of Justice has decided not to
defend the constitutionality of some of these provisions before the
Federal circuit court.
Before I conclude, I want to underscore my disapproval of this bill's
unjustified interference with President Obama's authority to issue
regulations that are critical to ensuring the safety of the American
people.
I would like to quote from a March 1, 2016, letter sent to the
Oversight and Government Reform Committee in opposition to title 6, and
it says:
``Taking the claims of `midnight regulation' critics at face value,
there is simply no principled basis for allowing deregulatory measures
to be rushed through the process without `adequate vetting' while at
the same time preventing agencies finalizing and implementing public
protections by falsely claiming that they did not receive adequate
consideration. This Administration ends on January 20, 2017. It is
incumbent upon them to do their constitutional duty to implement the
laws of the Congress until that date.''
Mr. Chairman, I yield back the balance of my time.
Mr. PALMER. Mr. Chairman, I yield myself the balance of my time.
First of all, I thank my colleagues who have spoken in support of this
legislation and say that this is sensible and responsible legislation
to increase Federal agencies' ability to protect their data systems
and, thus, increase the protections offered every Federal employee.
This bill also increases accountability for Federal employees, and it
requires the IRS to adhere to the same recordkeeping requirements that
it imposes on every taxpayer.
Finally, Mr. Chairman, this bill would end the practice of subjecting
Americans to a barrage of regulations imposed by an outgoing
administration that can no longer be held accountable.
I urge adoption of the bill.
I yield back the balance of my time.
The CHAIR. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
In lieu of the amendment in the nature of a substitute recommended by
the Committee on Oversight and Government Reform, printed in the bill,
it shall be in order to consider as an
[[Page H4341]]
original bill for the purpose of amendment under the 5-minute rule, an
amendment in the nature of a substitute consisting of the text of Rules
Committee Print 114-59. That amendment in the nature of a substitute
shall be considered as read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 4361
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SEC. 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Government
Reform and Improvement Act of 2016''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FEDERAL INFORMATION SYSTEMS SAFEGUARDS
Sec. 101. Agency discretion to secure information technology and
information systems.
TITLE II--ELIMINATING PORNOGRAPHY FROM AGENCIES
Sec. 201. Prohibition on accessing pornographic web sites from federal
computers.
TITLE III--EXTENSION OF PROBATIONARY PERIOD FOR CAREER EMPLOYEES
Sec. 301. Extension of probationary period for positions within the
competitive service.
Sec. 302. Appeals from adverse actions.
TITLE IV--SENIOR EXECUTIVE SERVICE ACCOUNTABILITY
Sec. 401. Biennial justification of Senior Executive Service positions.
Sec. 402. Extension of probationary period for career appointees.
Sec. 403. Modification of pay retention for career appointees removed
for under performance.
Sec. 404. Advanced establishment of performance requirements under
Senior Executive Service performance appraisal systems.
Sec. 405. Amendments with respect to adverse actions against career
appointees.
Sec. 406. Mandatory leave for career appointees subject to removal.
Sec. 407. Expedited removal of career appointees for performance or
misconduct.
Sec. 408. Mandatory reassignment of career appointees.
TITLE V--OPM REPORT ON OFFICIAL TIME
Sec. 501. Reporting requirement.
TITLE VI--MIDNIGHT RULE RELIEF
Sec. 601. Moratorium on midnight rules.
Sec. 602. Special rule on statutory, regulatory, and judicial
deadlines.
Sec. 603. Exception.
Sec. 604. Judicial review.
Sec. 605. Definitions.
TITLE VII--REQUIREMENT TO MAINTAIN RECORDS
Sec. 701. Requirement to maintain records.
TITLE I--FEDERAL INFORMATION SYSTEMS SAFEGUARDS
SEC. 101. AGENCY DISCRETION TO SECURE INFORMATION TECHNOLOGY
AND INFORMATION SYSTEMS.
(a) In General.--In carrying out section 3554 of title 44,
United States Code, any action taken by the head of an agency
that is necessary to limit, restrict, or prohibit access to
any website the head of the agency determines to present a
current or future security weakness or risk to the
information technology or information system under the
control of the agency, and any impact or implementation of
such action, shall not be subject to chapter 71 of title 5,
United States Code.
(b) Definitions.--In this section--
(1) the terms ``agency'' and ``information system'' have
the meanings given the terms in section 3502 of title 44,
United States Code; and
(2) the term ``information technology'' has the meaning
given the term in section 3552 of title 44, United States
Code.
TITLE II--ELIMINATING PORNOGRAPHY FROM AGENCIES
SEC. 201. PROHIBITION ON ACCESSING PORNOGRAPHIC WEB SITES
FROM FEDERAL COMPUTERS.
(a) Prohibition.--Except as provided in subsection (b), not
later than 90 days after the date of the enactment of this
Act, the Director of the Office of Management and Budget
shall issue guidelines that prohibit the access of a
pornographic or other explicit web site from a Federal
computer.
(b) Exception.--The prohibition described in subsection (a)
shall not apply to any Federal computer that is used for an
investigative purpose that requires accessing a pornographic
web site.
TITLE III--EXTENSION OF PROBATIONARY PERIOD FOR CAREER EMPLOYEES
SEC. 301. EXTENSION OF PROBATIONARY PERIOD FOR POSITIONS
WITHIN THE COMPETITIVE SERVICE.
(a) In General.--Section 3321 of title 5, United States
Code, is amended--
(1) in subsection (a), by striking ``The President'' and
inserting ``Subject to subsections (c) and (d), the
President'';
(2) by redesignating subsection (c) as subsection (e); and
(3) by inserting after subsection (b) the following:
``(c)(1) Except as provided in paragraph (2), the length of
a probationary period established under paragraph (1) or (2)
of subsection (a) shall be--
``(A) with respect to any position that requires formal
training, a period of 2 years beginning on the date that such
formal training is completed;
``(B) with respect to any position that requires a license,
a period of 2 years beginning on the date that such license
is granted; and
``(C) with respect to any position not covered by
subparagraph (A) or (B), not less than 2 years.
``(2) The length of a probationary period established under
paragraph (1) or (2) of subsection (a) in the case of a
preference eligible shall be not longer than--
``(A) if the appointment (as referred to in subsection
(a)(1)) or the initial appointment (as referred to in
subsection (a)(2)) is to a position that exists on the
effective date of this subsection, the length of the
probationary period which applies to such position as of such
effective date; or
``(B) if the appointment (as referred to in subsection
(a)(1)) or the initial appointment (as referred to in
subsection (a)(2)) is to a position that does not exist on
the effective date of this subsection, such length of time as
the President may establish, consistent with the purposes of
this subparagraph.
``(3) In paragraph (1)--
``(A) the term `formal training' means, with respect to any
position, a training program required by law, rule, or
regulation, or otherwise required by the employing agency, to
be completed by the employee before the employee is able to
successfully execute the duties of the applicable position;
and
``(B) the term `license' means a license, certification, or
other grant of permission to engage in a particular activity.
``(d) The head of each agency shall, in the administration
of this section, take appropriate measures to ensure that--
``(1) any announcement of a vacant position within such
agency and any offer of appointment made to any individual
with respect to any such position shall clearly state the
terms and conditions of the probationary period applicable to
such position;
``(2) any individual who is required to complete a
probationary period under this section shall receive timely
notice of the performance and other requirements which must
be met in order to successfully complete the probationary
period; and
``(3) upon successful completion of a probationary period
under this section, certification to that effect shall be
made, supported by a brief statement of the basis for that
certification, in such form and manner as the President may
by regulation prescribe.''.
(b) Technical Amendment.--Section 3321(e) of title 5,
United States Code (as so redesignated by subsection (a)(2))
is amended by striking ``Subsections (a) and (b)'' and
inserting ``Subsections (a) through (d)''.
(c) Effective Date.--This section and the amendments made
by this section--
(1) shall take effect 180 days after the date of enactment
of this Act; and
(2) shall apply in the case of any appointment (as referred
to in section 3321(a)(1) of title 5, United States Code) and
any initial appointment (as referred to in section 3321(a)(2)
of such title) taking effect on or after the date on which
this section takes effect.
SEC. 302. APPEALS FROM ADVERSE ACTIONS.
(a) Subchapter I of Chapter 75 of Title 5.--Section 7501(1)
of title 5, United States Code, is amended--
(1) by striking ``1 year'' the first place it appears and
inserting ``not less than 2 years''; and
(2) by striking ``1 year'' the second place it appears and
inserting ``2 years''.
(b) Subchapter II of Chapter 75 of Title 5.--Section
7511(a)(1) of title 5, United States Code, is amended--
(1) in subparagraph (A)(ii), by striking ``1 year'' the
first place it appears and inserting ``not less than 2
years''; and
(2) in subparagraph (C)(ii), by striking ``2 years'' the
first place it appears and inserting ``not less than 2
years''.
(c) Effective Date.--The amendments made by subsections (a)
and (b)--
(1) shall take effect 180 days after the date of enactment
of this Act; and
(2) shall apply in the case of any individual whose period
of continuous service (as referred to in the provision of law
amended by paragraph (1) or (2) of subsection (b), as the
case may be) commences on or after the date on which this
section takes effect.
TITLE IV--SENIOR EXECUTIVE SERVICE ACCOUNTABILITY
SEC. 401. BIENNIAL JUSTIFICATION OF SENIOR EXECUTIVE SERVICE
POSITIONS.
Section 3133(a)(2) of title 5, United States Code, is
amended by inserting after ``positions'' the following: ``,
with a justification for each position (by title and
organizational location) and the specific result expected
from each position, including the impact of such result on
the agency mission,''.
SEC. 402. EXTENSION OF PROBATIONARY PERIOD FOR CAREER
APPOINTEES.
(a) In General.--Section 3393(d) of title 5, United States
Code, is amended by striking ``1-year'' and inserting ``2-
year''.
(b) Conforming Amendment.--Section 3592(a)(1) of such title
is amended by striking ``1-year'' and inserting ``2-year''.
SEC. 403. MODIFICATION OF PAY RETENTION FOR CAREER APPOINTEES
REMOVED FOR UNDER PERFORMANCE.
Section 3594(c)(1)(B) of title 5, United States Code, is
amended to read as follows:
``(B)(i) any career appointee placed under subsection (a)
or (b)(2) of this section shall be entitled to receive basic
pay at the highest of--
[[Page H4342]]
``(I) the rate of basic pay in effect for the position in
which placed;
``(II) the rate of basic pay in effect at the time of the
placement for the position the career appointee held in the
civil service immediately before being appointed to the
Senior Executive Service; or
``(III) the rate of basic pay in effect for the career
appointee immediately before being placed under subsection
(a) or (b) of this section; and
``(ii) any career appointee placed under subsection (b)(1)
of this section shall be entitled to receive basic pay at the
rate of basic pay in effect for the position in which placed;
and''.
SEC. 404. ADVANCED ESTABLISHMENT OF PERFORMANCE REQUIREMENTS
UNDER SENIOR EXECUTIVE SERVICE PERFORMANCE
APPRAISAL SYSTEMS.
Section 4312(b)(1) of title 5, United States Code, is
amended--
(1) by striking ``on or'' and inserting ``not later than 30
calendar days''; and
(2) by inserting ``in writing'' after ``communicated''.
SEC. 405. AMENDMENTS WITH RESPECT TO ADVERSE ACTIONS AGAINST
CAREER APPOINTEES.
(a) Suspension for 14 Days or Less for Senior Executive
Service Employee.--Paragraph (1) of Section 7501 of title 5,
United States Code, is amended to read as follows:
``(1) `employee' means--
``(A) an individual in the competitive service who is not
serving a probationary period or trial period under an
initial appointment or who has completed 1 year of current
continuous employment in the same or similar positions under
other than a temporary appointment limited to 1 year or less;
or
``(B) a career appointee in the Senior Executive Service
who--
``(i) has completed the probationary period prescribed
under section 3393(d); or
``(ii) was covered by the provisions of subchapter II of
this chapter immediately before appointment to the Senior
Executive Service; and''.
(b) Modification of Cause and Procedure for Suspension and
Termination.--
(1) In general.--Section 7543 of title 5, United States
Code, is amended--
(A) in subsection (a), by striking ``misconduct,'' and
inserting ``such cause as would promote the efficiency of the
service, misconduct,''; and
(B) in subsection (b)(1), by striking ``30'' and inserting
``15''.
(2) Conforming amendments.--Subchapter V of chapter 35 of
title 5, United States Code, is amended--
(A) in section 3593--
(i) in subsection (a)(2), by striking ``misconduct,'' and
inserting ``such cause as would promote the efficiency of the
service, misconduct,''; and
(ii) in subsection (b), by striking ``misconduct,'' and
inserting ``such cause as would promote the efficiency of the
service, misconduct,''; and
(B) in section 3594(a), by striking ``misconduct,'' and
inserting ``such cause as would promote the efficiency of the
service, misconduct,''.
SEC. 406. MANDATORY LEAVE FOR CAREER APPOINTEES SUBJECT TO
REMOVAL.
(a) In General.--Subchapter II of chapter 63 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 6330. Mandatory leave for Senior Executive Service
career appointees subject to removal
``(a) In this section--
``(1) the term `employee' means an employee (as that term
is defined in section 7541(1)) who has received written
notice of removal from the civil service under subchapter V
of chapter 75; and
``(2) the term `mandatory leave' means, with respect to an
employee, an absence with pay but without duty during which
such employee--
``(A) shall be charged accrued annual leave for the period
of such absence; and
``(B) may not accrue any annual leave under section 6303
for the period of such absence.
``(b) Under regulations prescribed by the Office of
Personnel Management, an agency may place an employee on
mandatory leave for misconduct, neglect of duty, malfeasance,
or such cause as would promote the efficiency of the service.
``(c) If an agency determines that an employee should be
placed on mandatory leave under subsection (b), such leave
shall begin no earlier than the date on which the employee
received written notice of a removal under subchapter V of
chapter 75.
``(d) If a final order or decision is issued in favor of
such employee with respect to removal under subchapter V of
chapter 75 by the agency, the Merit Systems Protection Board,
or the United States Court of Appeals for the Federal
Circuit, any annual leave that is charged to an employee by
operation of this section shall be restored to the applicable
leave account of such employee.''.
(b) Clerical Amendment.--The table of sections of chapter
63 of title 5, United States Code, is amended by adding after
the item relating to section 6328 the following new item:
``6330. Mandatory leave for Senior Executive Service career appointees
subject to removal.''.
(c) Regulations.--Not later than 6 months after the date of
enactment of this Act, the Director of the Office of
Personnel Management shall prescribe regulations with respect
to the leave provided by the amendment in subsection (a).
SEC. 407. EXPEDITED REMOVAL OF CAREER APPOINTEES FOR
PERFORMANCE OR MISCONDUCT.
(a) In General.--Chapter 75 of title 5, United States Code,
is amended by adding at the end the following:
``SUBCHAPTER VI--SENIOR EXECUTIVE SERVICE: EXPEDITED REMOVAL
``Sec. 7551. Definitions
``In this subchapter--
``(1) the term `employee' has the meaning given such term
in section 7541(1), but does not include any career appointee
in the Senior Executive Service within the Department of
Veterans Affairs; and
``(2) the term `misconduct' includes neglect of duty,
malfeasance, or failure to accept a directed reassignment or
to accompany a position in a transfer of function.
``Sec. 7552. Actions covered
``This subchapter applies to a removal from the civil
service or a transfer from the Senior Executive Service, but
does not apply to an action initiated under section 1215, to
a removal under section 3592 or 3595, to a suspension under
section 7503, to a suspension or removal under section 7532,
to a suspension or removal under section 7542, or to a
suspension or removal under section 713 of title 38.
``Sec. 7553. Cause and procedure
``(a)(1) Under regulations prescribed by the Office of
Personnel Management, the head of an agency may remove an
employee of the agency from the Senior Executive Service if
the head determines that the performance or misconduct of the
individual warrants such removal. If the head so removes such
an individual, the head may--
``(A) remove the individual from the civil service; or
``(B) in the case of an employee described in paragraph
(2), transfer the employee from the Senior Executive Service
to a General Schedule position at any grade of the General
Schedule for which the employee is qualified and that the
head determines is appropriate.
``(2) An employee described in this paragraph is an
individual who--
``(A) previously occupied a permanent position within the
competitive service;
``(B) previously occupied a permanent position within the
excepted service; or
``(C) prior to employment as a career appointee at the
agency, did not occupy any position within the Federal
Government.
``(3) An employee against whom an action is proposed under
paragraph (1) is entitled to 5 days' advance written notice.
``(b)(1) Notwithstanding any other provision of law,
including section 3594, any employee transferred to a General
Schedule position under subsection (a)(1)(B) shall, beginning
on the date of such transfer, receive the annual rate of pay
applicable to such position.
``(2) An employee so transferred may not be placed on
administrative leave or any other category of paid leave
during the period during which an appeal (if any) under this
section is ongoing, and may only receive pay if the
individual reports for duty. If an employee so transferred
does not report for duty, such employee shall not receive pay
or other benefits pursuant to section 7554(e).
``(c) Not later than 30 days after removing or transferring
an employee under subsection (a), the applicable head of the
agency shall submit to Congress notice in writing of such
removal or transfer and the reason for such removal or
transfer.
``(d) Section 3592(b)(1) does not apply to an action to
remove or transfer an employee under this section.
``(e) Subject to the requirements of section 7554, an
employee may appeal a removal or transfer under subsection
(a) to the Merit Systems Protection Board under section 7701,
but only if such appeal is made not later than seven days
after the date of such removal or transfer.
``Sec. 7554. Expedited review of appeal
``(a) Upon receipt of an appeal under section 7553(d), the
Merit Systems Protection Board shall refer such appeal to an
administrative judge pursuant to section 7701(b)(1). The
administrative judge shall--
``(1) expedite any such appeal under such section; and
``(2) in any such case, issue a decision not later than 21
days after the date of the appeal.
``(b) Notwithstanding any other provision of law, including
section 7703, the decision of an administrative judge under
subsection (a) shall be final and shall not be subject to any
further appeal.
``(c) In any case in which the administrative judge cannot
issue a decision in accordance with the 21-day requirement
under subsection (a)(2), the removal or transfer is final. In
such a case, the Merit Systems Protection Board shall, within
14 days after the date that such removal or transfer is
final, submit to Congress a report that explains the reasons
why a decision was not issued in accordance with such
requirement.
``(d) The Merit Systems Protection Board or administrative
judge may not stay any removal or transfer under this
section.
``(e) During the period beginning on the date on which an
employee appeals a removal from the civil service under
section 7553(d) and ending on the date that the
administrative judge issues a final decision on such appeal,
such employee may not receive any pay, awards, bonuses,
incentives, allowances, differentials, student loan
repayments, special payments, or benefits.''.
(b) Application.--
(1) In general.--Subchapter VI of chapter 75 of title 5,
United States Code, as added by subsection (a), shall not
apply to any personnel action against a career appointee (as
that term is defined in section 3132(a)(4) of title 5, United
[[Page H4343]]
States Code) that was commenced before the date of enactment
of this Act.
(2) Relation to other authorities.--The authority provided
by such subchapter is in addition to the authority provided
under section 3592 or subchapter V of chapter 75 of title 5,
United States Code.
(c) Technical Amendments.--
(1) Title 5.--Title 5, United States Code, is amended--
(A) in section 3592(b)(2)--
(i) by striking ``or'' at the end of subparagraph (A);
(ii) by striking the period at the end of subparagraph (B)
and inserting ``; or''; and
(iii) by adding at the end the following:
``(C) any removal under subchapter VI of this title or
section 713 of title 38.'';
(B) in section 3393(g), by striking ``1215,, 3592, 3595,
7532, or 7543 of this title'' and inserting ``1215, 3592,
3595, 7532, 7543, or 7553 of this title or section 713 of
title 38''; and
(C) in section 7542, by striking ``or to a removal under
section 3592 or 3595 of this title'' and inserting ``to a
removal under section 3592 or 3595 of this title, to a
suspension under section 7503, to a removal or transfer under
section 7553, or a removal or transfer under section 713 of
title 38''.
(2) Title 38.--Section 713(f)(1) of title 38, United States
Code, is amended by striking ``or subchapter V'' and
inserting ``, chapter 43, or subchapters V and VI''.
(d) Clerical Amendment.--The table of sections at the
beginning of chapter 75 of title 5, United States Code, is
amended by adding after the item relating to section 7543 the
following:
``subchapter vi--senior executive service: expedited removal
``7551. Definitions.
``7552. Actions covered.
``7553. Cause and procedure.
``7554. Expedited review of appeal.''.
SEC. 408. MANDATORY REASSIGNMENT OF CAREER APPOINTEES.
(a) In General.--Section 3395(a) of title 5, United States
Code, is amended by adding at the end the following:
``(3)(A) Consistent with the requirements of paragraphs (1)
and (2), at least once every five years beginning on the date
that a career appointee is initially appointed to the Senior
Executive Service, each career appointee at an agency shall
be reassigned to another Senior Executive Service position at
the agency at a different geographic location that does not
include the supervision of the same agency personnel or
programs.
``(B) The head of an agency may waive the requirement under
subparagraph (A) for any career appointee if the head submits
notice of the waiver and an explanation of the reasons for
the waiver to the Committee on Oversight and Government
Reform of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate.''.
(b) Conforming Amendment.--Section 3395(a)(1)(A) of title
5, United States Code, is amended by striking ``paragraph
(2)'' and inserting ``paragraphs (2) and (3)''.
(c) Effective Date.--The amendments made by this section
shall take effect 90 days after the date of enactment of this
Act.
TITLE V--OPM REPORT ON OFFICIAL TIME
SEC. 501. REPORTING REQUIREMENT.
(a) In General.--Section 7131 of title 5, United States
Code, is amended by adding at the end the following:
``(e)(1)(A) Not later than March 31 of each calendar year,
the Office of Personnel Management, in consultation with the
Office of Management and Budget, shall submit to each House
of Congress a report on the operation of this section during
the fiscal year last ending before the start of such calendar
year.
``(B) Not later than December 31 of each calendar year,
each agency (as defined by section 7103(a)(3)) shall furnish
to the Office of Personnel Management the information which
such Office requires, with respect to such agency, for
purposes of the report which is next due under subparagraph
(A).
``(2) Each report by the Office of Personnel Management
under this subsection shall include, with respect to the
fiscal year described in paragraph (1)(A), at least the
following information:
``(A) The total amount of official time granted to
employees.
``(B) The average amount of official time expended per
bargaining unit employee.
``(C) The specific types of activities or purposes for
which official time was granted, and the impact which the
granting of such official time for such activities or
purposes had on agency operations.
``(D) The total number of employees to whom official time
was granted, and, of that total, the number who were not
engaged in any activities or purposes except activities or
purposes involving the use of official time.
``(E) The total amount of compensation (including fringe
benefits) afforded to employees in connection with activities
or purposes for which they were granted official time.
``(F) A description of any room or space designated at the
agency (or its subcomponent) where official time activities
will be conducted, including the square footage of any such
room or space.
``(3) All information included in a report by the Office of
Personnel Management under this subsection with respect to a
fiscal year--
``(A) shall be shown both agency-by-agency and for all
agencies; and
``(B) shall be accompanied by the corresponding information
(submitted by the Office in its report under this subsection)
for the fiscal year before the fiscal year to which such
report pertains, together with appropriate comparisons and
analyses.
``(4) For purposes of this subsection, the term `official
time' means any period of time, regardless of agency
nomenclature--
``(A) which may be granted to an employee under this
chapter (including a collective bargaining agreement entered
into under this chapter) to perform representational or
consultative functions; and
``(B) during which the employee would otherwise be in a
duty status.''.
(b) Applicability.--The amendment made by subsection (a)
shall be effective beginning with the report which, under the
provisions of such amendment, is first required to be
submitted by the Office of Personnel Management to each House
of Congress by a date which occurs at least 6 months after
the date of the enactment of this Act.
TITLE VI--MIDNIGHT RULE RELIEF
SEC. 601. MORATORIUM ON MIDNIGHT RULES.
Except as provided under sections 603 and 604, during the
moratorium period, an agency may not propose or adopt any
midnight rule unless the Administrator finds the midnight
rule will not result in any of the following:
(1) An annual effect on the economy of $100,000,000 or
more.
(2) A major increase in costs or prices for consumers,
individual industries, Federal, State, or local government
agencies, or geographic regions.
(3) Significant adverse effects on competition, employment,
wages, investment, productivity, innovation, or on the
ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets.
(4) A significant economic impact on a substantial number
of small entities.
SEC. 602. SPECIAL RULE ON STATUTORY, REGULATORY, AND JUDICIAL
DEADLINES.
(a) In General.--Section 602 shall not apply with respect
to any midnight rule required by statute, other regulation,
or judicial order to be proposed or adopted by a deadline
that--
(1) was established before the beginning of the moratorium
period; and
(2) occurs during the moratorium period.
(b) Publication of Deadlines.--Not later than 30 days after
the beginning of a moratorium period, the Administrator shall
identify and publish in the Federal Register a list of
midnight rules covered by subsection (a).
SEC. 603. EXCEPTION.
(a) Emergency Exception.--Section 602 shall not apply to a
midnight rule if the President determines by Executive order
that the midnight rule is--
(1) necessary because of an emergency;
(2) necessary for the enforcement of criminal laws;
(3) necessary for the national security of the United
States; or
(4) issued pursuant to any statute implementing an
international trade agreement.
(b) Deregulatory Exception.--Section 602 shall not apply to
a midnight rule that the Administrator finds is limited to
repealing an existing rule and certifies such finding in
writing. The certification shall be published in the Federal
Register.
SEC. 604. JUDICIAL REVIEW.
Any person or entity subject to the any midnight rule
promulgated in violation of this title is entitled to
judicial review.
SEC. 605. DEFINITIONS.
In this title:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Information and Regulatory
Affairs within the Office of Management and Budget.
(2) Agency.--The term ``agency'' has the meaning given that
term under section 551 of title 5, United States Code, except
such term does not include--
(A) the Federal Election Commission;
(B) the Board of Governors of the Federal Reserve System;
(C) the Federal Deposit Insurance Corporation; or
(D) the United States Postal Service.
(3) Deadline.--The term ``deadline'' means any date certain
for fulfilling any obligation or exercising any authority
established by or under any Federal statute or rule, or by or
under any court order implementing any Federal statute,
regulation, or rule.
(4) Emergency.--The term ``emergency'' means a declaration
by the President of a state of emergency.
(5) Midnight rule.--The term ``midnight rule'' means a rule
proposed or adopted during the moratorium period.
(6) Moratorium period.--The term ``moratorium period''
means the day after the day referred to in section 1 of title
3, United States Code, through January 20 of the following
year, in which a President is not serving a consecutive term.
(7) Rule.--The term ``rule'' has the meaning given that
term under section 551 of title 5, United States Code.
(8) Small entity.--The term ``small entity'' has the
meaning given the term ``small business'' under section 601
of title 5, United States Code.
TITLE VII--REQUIREMENT TO MAINTAIN RECORDS
SEC. 701. REQUIREMENT TO MAINTAIN RECORDS.
(a) Amendment.--Chapter 31 of title 44, United States Code,
is amended by adding at the end the following new section:
``Sec. 3108. Requirement to maintain records
``(a) In General.--If the Internal Revenue Service obtains
a preserved record, the Internal Revenue Service shall
preserve for not less than 3 years from the date on which the
record was obtained--
``(1) the preserved record or a copy of the preserved
record; and
``(2) all records related to the preserved record.
[[Page H4344]]
``(b) Preserved Record Defined.--In this section, the term
`preserved record' means any record that is maintained by a
person other than the Federal Government pursuant to a rule,
guidance, or other directive from the Internal Revenue
Service that requires or recommends the person maintain
records for a particular period of time on a particular
matter.
``(c) Rule of Construction.--Nothing in this section shall
be construed as--
``(1) limiting the preservation of a preserved record for a
longer period of time than is required by this section; or
``(2) shortening the period of time a preserved record is
otherwise required to be maintained.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 31 of title 44, United States Code, is
amended by adding at the end the following new item:
``3108. Requirement to maintain records.''.
(c) Effective Date; Applicability.--The amendments made by
this section shall take effect as of the date of the
enactment of this Act and shall apply with respect to any
preserved record (as such term is defined in section 3108(b)
of title 44, United States Code, as added by subsection (a))
obtained on or after the effective date.
The CHAIR. No amendment to that amendment in the nature of a
substitute shall be in order except those printed in the House Report
114-666. Each such amendment may be offered only in the order printed
in the report, by a Member designated in the report, shall be
considered as read, shall be debatable for the time specified in the
report equally divided and controlled by the proponent and an opponent,
shall not be subject to amendment, and shall not be subject to a demand
for division of the question.
Amendment No. 1 Offered by Mr. Palmer
The CHAIR. It is now in order to consider amendment No. 1 printed in
House Report 114-666.
Mr. PALMER. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 25, line 4, strike ``sections 603 and 604'' and insert
``sections 602 and 603''.
Page 25, line 22, strike ``Section 602'' and insert
``Section 601''.
Page 26, line 9, strike ``Section 602'' and insert
``Section 601''.
Page 26, line 19, strike ``Section 602'' and insert
``Section 601''.
The CHAIR. Pursuant to House Resolution 803, the gentleman from
Alabama (Mr. Palmer) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Alabama.
Mr. PALMER. Mr. Chairman, this amendment makes technical changes to
the bill to reflect the text of H.R. 4612, the Midnight Rule Relief Act
of 2016, as it was reported out of committee.
Mr. Chairman, my manager's amendment simply makes a few technical and
conforming changes to this important legislation. The amendment
corrects a technical error in the language of title VI, and it also
fixes references to several other sections within the bill, to reflect
the obvious intent of the bill text.
Mr. Chairman, I support this amendment and I urge my colleagues to
vote in favor of it.
I reserve the balance of my time.
Mr. CUMMINGS. Mr. Chairman, I claim the time in opposition to the
amendment.
The CHAIR. The gentleman from Maryland is recognized for 5 minutes.
Mr. CUMMINGS. Mr. Chairman, we have reviewed the Palmer amendment and
find that it only makes technical changes to the bill, so I will not
oppose it. However, it does nothing to improve the bill, which I will
continue to oppose.
I yield back the balance of my time.
Mr. PALMER. Mr. Chairman, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Alabama (Mr. Palmer).
The amendment was agreed to.
AMENDMENT NO. 2 OFFERED BY MR. POSEY
The CHAIR. It is now in order to consider amendment No. 2 printed in
House Report 114-666.
Mr. POSEY. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 2, after line 13, insert the following new subsection:
(b) Information Security Protocol.--An agency employee
acting in the official capacity of the employee (other than
the head of the agency) may not establish, operate, maintain,
or otherwise permit the use of information technology that is
not certified by the appropriate Federal entity responsible
for information security within the agency (either the
Director of the Office of Management and Budget, the head of
the agency, the Secretary of Homeland Security, or the Chief
Information Officer of the agency, as applicable) as in
compliance with the established information security
policies, procedures, and programs.
Page 2, line 14, strike ``(b)'' and insert ``(c)''.
The CHAIR. Pursuant to House Resolution 803, the gentleman from
Florida (Mr. Posey) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Florida.
Modification to Amendment Offered by Mr. Posey
Mr. POSEY. Mr. Chairman, I ask unanimous consent that amendment No. 2
in House Report 114-666 be modified by the form I have placed at the
desk.
The CHAIR. The Clerk will report the modification.
The Clerk read as follows:
Modification to amendment offered by Mr. Posey:
Page 1, line 3, strike ``(other than the head of the
agency)''.
Page 1, beginning on line 6, strike ``within the agency''.
The CHAIR. Is there objection to the request of the gentleman from
Florida?
There was no objection.
The CHAIR. The amendment is modified.
Mr. POSEY. Mr. Chairman, I rise in support of a genuine opportunity
for us to learn from the failures of former executive officials.
This amendment will codify a practice of security, accountability,
and good government, which is already a policy at many of our Federal
agencies today.
Quite simply, it will prohibit Federal employees from using private,
unsecure email servers to conduct official government business in the
future. This would ensure that the time and taxpayer money invested in
the security of sensitive information will not be undermined by
carelessness or misunderstandings.
By passing this amendment, we will significantly improve the security
of our government IT.
It only takes one individual, one click of the mouse, on an insecure
or unsecure system, to open the door to bad actors who seek to harm our
Nation. By restricting the use of unsecure IT systems, we will empower
Federal employees to hold each other accountable and take special care
to conduct official business responsibly.
I urge support of the amendment.
I reserve the balance of my time.
{time} 1715
Mr. CUMMINGS. Mr. Chairman, I claim the time in opposition to the
amendment but do not oppose it, as modified by Representative Posey.
The CHAIR. Without objection, the gentleman from Maryland is
recognized for 5 minutes.
There was no objection.
Mr. CUMMINGS. Mr. Chair, it is not clear what this amendment does or
what it is intended to do. I agree that there should be accountability
for IT security, but we have had no hearings or other discussion on
this issue. The Federal Information Security Management Act already
ensures that senior agency personnel take responsibility for ensuring
the agency systems are secure.
Unfortunately, the amendment does nothing to address the larger
underlying problem with the bill, which would simply trample on Federal
employees' due process protections and block the President from issuing
critical regulatory protections at the end of his term.
Mr. Chairman, I yield back the balance of my time.
Mr. POSEY. Mr. Chairman, it is vital that the former Secretary of
State's use of an unsecure email server does not send a message to
other Federal employees that this is acceptable, that this manner of
handling sensitive information and conducting government business is
appropriate. We cannot let another top executive completely trample the
trust of the American people and potentially endanger American lives by
mishandling sensitive intelligence.
This amendment is really simple. It is a responsible step towards
protecting
[[Page H4345]]
Federal IT systems and ensuring Americans of the transparency and
security that they want and that they deserve.
Mr. Chairman, I urge passage of the amendment.
I yield back the balance of my time.
The CHAIR. The question is on the amendment, as modified, offered by
the gentleman from Florida (Mr. Posey).
The amendment, as modified, was agreed to.
Amendment No. 3 Offered by Ms. Norton
The CHAIR. It is now in order to consider amendment No. 3 printed in
House Report 114-666.
Ms. NORTON. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Strike sections 402, 405(b), 406, 407, and 408.
The CHAIR. Pursuant to House Resolution 803, the gentlewoman from the
District of Columbia (Ms. Norton) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentlewoman from the District of Columbia.
Ms. NORTON. Mr. Chairman, I yield myself such time as I may consume.
My amendment would strike sections 402, 405(b), 406, 407, and 408.
While some reforms to the Senior Executive Service may well be
necessary, these sections go too far because they roll back significant
due process rights for Federal employees and raise potential
constitutional issues.
Section 402, which lengthens the probationary period for SES
employees from 1 year to 2 years, is unnecessary. There is no evidence
to indicate that such a provision will help agencies deal with poor
performers in the workplace. In fact, a Federal 2015 GAO report found
that agencies are already using probationary periods but could be using
them more effectively. Of the 3,500 Federal employees who were
dismissed in 2013, the majority were dismissed during the probationary
period. Instead of extending this period, we should be looking at ways
to improve its use by agencies and increasing congressional oversight
to ensure that the Federal workforce is operating at its best.
Section 405(b) is similarly problematic. This section would allow an
agency to remove an SES employee from civil service entirely for poor
performance. Under current law, poor-performing employees, instead, are
initially downgraded to a GS position, a level at which they could
perform very well. Even if they were poor performers at the SES level,
they would not have been promoted in the first place if they had not
achieved good records, but may not be good managers. This section also
shortens the notice period from 30 days to 15, making it extremely
difficult for affected employees to exercise their due process rights.
Section 406 represents a serious constitutional issue by giving
agencies the authority to place an SES employee on mandatory leave,
forcing these employees to use their own accrued leave. This violates
basic constitutional principles, as it is likely a taking of a vested
property right or it is a suspension that triggers due process rights.
This mandatory leave provision has little chance of withstanding
constitutional scrutiny and should be struck.
Section 407 further represents an attack on Federal employees' due
process rights. This provision expedites the removal and appeals
process and adopts provisions of other Federal law that is currently
being challenged in the Federal circuit.
In a Statement of Administration Policy in opposition to this bill,
the White House has said that the President will veto it if it comes
across his desk, at least in part because this section ``would raise
significant constitutional concerns under the Appointments Clause and
the Due Process Clause.'' It is unlikely that this section could
withstand constitutional scrutiny and also should be struck now.
Section 408 requires reassignment of SES employees to different
geographical locations, which is arbitrary, inflexible, and ignores the
needs of individual agencies. This provision is unnecessary, given that
the President signed an executive order in November 2015 that would
strengthen the Senior Executive Service by requiring agency heads to
develop a 2-year plan for increasing the mobility of SES employees.
We may need reform legislation to deal with poor performers, Mr.
Chairman, but we cannot do so by rolling back due process rights and
protections for Federal employees who, unlike private employees, are
protected by the Constitution of the United States. I urge my
colleagues to vote in favor of my amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. PALMER. Mr. Chairman, I claim the time in opposition to the
amendment.
The CHAIR. The gentleman from Alabama is recognized for 5 minutes.
Mr. PALMER. Mr. Chairman, I rise in opposition to the proposed
amendment of the gentlewoman from the District of Columbia.
Her amendment would eliminate provisions in the Government Reform and
Improvement Act that deal with holding members of the Senior Executive
Service, or SES, accountable.
For example, the amendment would strike section 402 of the bill,
which extends the probationary period for individuals appointed to the
SES from 1 to 2 years. Extending the probationary period allows Federal
agencies to ensure that senior executives they hire are suitable for
the job they hold. After the probationary period ends, it becomes much
harder to remove an SES employee not suited for the position. It is in
the best interests of the American people that the members of the SES
be fully vetted before their appointments become final.
I should also note that section 1105 of the FY 2016 National Defense
Authorization Act established a 2-year probationary period for new
civilian hires at the Department of Defense. This good government
reform is already in place at one of the largest Federal agencies, and
we should extend it to the rest of the Federal Government as well.
The amendment in question would also strip provisions that allow SES
appointees to be removed for such cause as would promote the efficiency
of the service and to be suspended without pay for less than 2 weeks
for misconduct. These rules already apply to the vast majority of the
Federal civil service, and they should apply to SES appointees as well.
In addition, the gentlewoman's amendment would eliminate a portion of
the bill that gives agency heads authority to place on mandatory annual
leave SES appointees facing removal for misconduct and prohibits the
accumulation of additional leave during this period. It would also
eliminate a provision that gives agency heads the authority to seek
removal or transfer of senior executives based on poor performance or
misconduct, and that would provide an expedited appeal process for the
aggrieved employee.
The American people deserve an accountable Senior Executive Service
that plays by the same rules as other Federal civil service workers.
They also deserve an SES staffed with highly qualified employees who
can be efficient and effective in their jobs.
Mr. Chairman, I urge my colleagues to reject the gentlewoman's
amendment.
I reserve the balance of my time.
Ms. NORTON. Mr. Chairman, I remind the gentleman that SES employees
already have fewer rights than other employees because they are
management and that we have invested millions of dollars in them. We
have gotten them into the SES, a very competitive service, in the first
place, so this off-with-your-head approach punishes the American people
who may have perfectly fine employees at the SES level. But, for
example, to indicate one of my amendments might downgrade them rather
than getting rid of them, there are other provisions here that would
doubtlessly not survive constitutional scrutiny.
Mr. Chairman, I urge the adoption of my amendment.
I yield back the balance of my time.
Mr. PALMER. Mr. Chairman, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the
gentlewoman from the District of Columbia (Ms. Norton).
The question was taken; and the Chair announced that the noes
appeared to have it.
Ms. NORTON. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the
[[Page H4346]]
amendment offered by the gentlewoman from the District of Columbia will
be postponed.
The Chair understands that amendment No. 4 will not be offered.
Amendment No. 5 Offered by Mrs. Watson Coleman
The CHAIR. It is now in order to consider amendment No. 5 printed in
House Report 114-666.
Mrs. WATSON COLEMAN. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 26, after line 23, insert the following new
subsection:
(c) Regulatory Flexibility Agenda Exception.--Section 601
shall not apply to a midnight rule that is published in the
regulatory flexibility agenda pursuant to section 602 of
title 5, United States Code, and that has been included in
the Unified Regulatory Agenda submitted pursuant to Executive
Order 12886 (5 U.S.C. 601 note; relating to regulatory
planning and review) for at least one year.
The CHAIR. Pursuant to House Resolution 803, the gentlewoman from New
Jersey (Mrs. Watson Coleman) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentlewoman from New Jersey.
Mrs. WATSON COLEMAN. Mr. Chairman, I yield myself such time as I may
consume.
I rise to offer an amendment that would exempt from the bill's
moratorium any rule that an agency has included in its regulatory plan
for at least a year.
Some proponents have said that the moratorium on rulemaking is
intended to address rules that have been rushed through the process. My
amendment would address that concern by keeping in place the proposed
moratorium on the rules that have truly been rushed. However, it would
allow rules that have been under consideration for at least a year to
move forward.
During the time between election day and Inauguration Day, the
executive branch cannot take a break from fulfilling its constitutional
and statutory responsibilities. Just as this Congress will meet to pass
legislation in November and December of this year, the executive branch
must be allowed to continue doing its job of implementing crucial
regulations to protect the environment and our constituents' health and
safety.
For example, the Pipeline and Hazardous Materials Safety
Administration has been working to implement crucial pipeline safety
regulations since 2011, with extensive input from numerous groups. Just
last month, this Congress passed the PIPES Act, which included
provisions reflecting our bipartisan concern that these pipeline safety
rules need to be implemented soon to protect our constituents from the
dangers of pipeline leaks.
Without my amendment, certain pipeline safety rules could have to be
delayed until a new administration, even though these rules have been
under consideration for years, leaving the public safety at risk. In
order to ensure important rules like these can be finalized, I urge my
colleagues to adopt my amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. PALMER. Mr. Chairman, I claim the time in opposition to the
gentlewoman's amendment.
The CHAIR. The gentleman from Alabama is recognized for 5 minutes.
Mr. PALMER. Mr. Chairman, the amendment fundamentally misunderstands
the purpose of this bill. It creates a loophole in the moratorium
period for midnight regulations. The bill establishes a regulation
moratorium period between election day and the start of a new
President's term to allow a new administration to start with a clean
slate.
This amendment would undermine that principle by allowing outgoing
Presidents to simply put a marker down a year before the end of the
term to circumvent the moratorium entirely. Further, pushing
regulations out the door at the last minute reduces the effectiveness
of regulatory review at the Office of Information and Regulatory
Affairs regardless of whether the public is aware that an agency is
working on the regulation.
The unified regulatory agenda, while very important for notice and
transparency, does not provide details on the regulation or the
expected impact on the economy and small businesses. Simply notifying
the public that an agency is considering regulating in a particular
area is insufficient to ensure that regulatory analysis at the agency
and at OIRA has been thoroughly evaluated. Agencies can simply wait
until the start of the next President's term to issue regulations,
giving everyone more time to make sure they have gotten it right.
Mr. Chairman, I oppose this amendment, and I urge my colleagues to
vote against it.
I reserve the balance of my time.
{time} 1730
Mrs. WATSON COLEMAN. Mr. Chairman, I yield 1 minute to the gentleman
from Maryland (Mr. Cummings).
Mr. CUMMINGS. Mr. Chair, may I inquire how much time is remaining?
The CHAIR. The gentlewoman from New Jersey has 3 minutes remaining.
Mr. CUMMINGS. Mr. Chairman, I support this amendment offered by one
of the freshman stars of the Oversight and Government Reform Committee,
Representative Bonnie Watson Coleman.
This amendment would exempt from the bill rulemakings that agencies
have included in their regulatory plans for a year or more. Agencies
are required to submit to OMB twice a year a plan for rulemakings they
plan to pursue. OMB publishes those plans twice a year as part of what
is called the Unified Agenda.
This amendment would still block any rule an agency tries to rush
through the process. This amendment would not, however, block rules
that have been through the proper procedures just because they happen
to be finalized during the last months of the administration.
This amendment allows the focus to be on true so-called midnight
regulations. If those rules are truly the target of this bill, then the
House should adopt this amendment.
Mr. PALMER. Mr. Chairman, I reserve the balance of my time.
Mrs. WATSON COLEMAN. Mr. Chairman, how much time is remaining?
The CHAIR. The gentlewoman from New Jersey has 2 minutes remaining.
Mrs. WATSON COLEMAN. Mr. Chairman, it is unfortunate that, yet again,
some in this Congress refuse to accept that a President's term is a
full 4 years long.
Passing this legislation would unnecessarily impose new restrictions
on the ability of Presidents to finish the work of their
administration.
Adopting my amendment would help ensure that well-vetted, necessary
regulations to protect health and safety are not blocked, while not
undermining the stated purpose of this bill.
Accordingly, I urge my colleagues to adopt it.
Mr. Chair, I yield back the balance of my time.
Mr. PALMER. Mr. Chairman, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the
gentlewoman from New Jersey (Mrs. Watson Coleman).
The question was taken; and the Chair announced that the noes
appeared to have it.
Mrs. WATSON COLEMAN. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentlewoman from New Jersey will be
postponed.
Mr. PALMER. Mr. Chair, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mrs.
Lummis) having assumed the chair, Mr. Hultgren, Chair of the Committee
of the Whole House on the state of the Union, reported that that
Committee, having had under consideration the bill (H.R. 4361) to amend
section 3554 of title 44, United States Code, to provide for enhanced
security of Federal information systems, and for other purposes, had
come to no resolution thereon.
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