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[Senate Report 114-123]
[From the U.S. Government Publishing Office]

114th Congress  }                                          {    Report
                                  SENATE
 1st Session    }                                          {   114-123
                                                          
_______________________________________________________________________

                                     

                                                                       

               LAND MANAGEMENT WORKFORCE FLEXIBILITY ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 1531

           TO AMEND TITLE 5, UNITED STATES CODE, TO PROVIDE A
          PATHWAY FOR TEMPORARY SEASONAL EMPLOYEES IN FEDERAL
             LAND MANAGEMENT AGENCIES TO COMPETE FOR VACANT
PERMANENT POSITIONS UNDER INTERNAL MERIT PROMOTION PROCEDURES, AND FOR 
                             OTHER PURPOSES
                             
                             

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                August 28, 2015.--Ordered to be printed
                

                          _______________                
                
                U.S. GOVERNMENT PUBLISHING OFFICE
                
 49-010                 WASHINGTON : 2015
 
 
                       
                       
                
                
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                    Keith B. Ashdown, Staff Director
                  Christopher R. Hixon, Chief Counsel
       Patrick J. Bailey, Chief Counsel for Governmental Affairs
Gabrielle D'Adamo Singer, Deputy Chief Counsel for Governmental Affairs
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
             Katherine C. Sybenga, Minority Senior Counsel
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     
                     
                     
                     
                                                                       
114th Congress      }                                    {    Report
                                 SENATE
 1st Session        }                                    {    114-123

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

 
               LAND MANAGEMENT WORKFORCE FLEXIBILITY ACT

                                _______
                                

                August 28, 2015.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 1531]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 1531) to amend 
title 5, United States Code, to provide a pathway for temporary 
seasonal employees in Federal land management agencies to 
compete for vacant permanent positions under internal merit 
promotion procedures, and for other purposes, having considered 
the same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Act, as Reported.............5

                         I. Purpose and Summary

    The purpose of H.R. 1531, the Land Management Workforce 
Flexibility Act, is to remove unnecessary regulations that 
prevent long-term temporary seasonal employees from competing 
for vacant permanent positions under the procedures that other 
federal employees enjoy. The Act authorizes qualifying 
employees serving in temporary seasonal appointments to compete 
for vacant permanent positions under internal merit promotion 
procedures. H.R. 1531 does not affect the number of federal 
jobs or the salaries paid to federal employees; it simply 
allows greater and more common-sense competition for vacant 
permanent positions.

              II. Background and the Need for Legislation

    Federal agencies are authorized to make temporary 
appointments to fill positions that do not require an employe's 
services on a permanent basis, such as those that are not 
expected to last more than one year.\1\ Some of these positions 
are seasonal positions and are repeatedly extended on an annual 
basis for no more than six months at a time.\2\ Many of the 
individuals who fill these positions have done so year after 
year, in some cases racking up decades of experience.\3\ 
Temporary seasonal employees at land management agencies (the 
Forest Service, Land Management Bureau, National Park Service, 
Fish and Wilflife Service, Indian Affairs Bureau and 
Reclamation Bureau) can work no more than six months per year, 
and receive few benefits.\4\
---------------------------------------------------------------------------
    \1\5 C.F.R. Sec. 316.401(a), (d) (1994).
    \2\5 C.F.R. Sec. 316.401(d) (1994).
    \3\Information provided by the National Federation of Federal 
Employees to Committee staff (June, 2015), available at http://
www.nffe-fsc.org/documents3/20150406-temp-reform-brief-150406.pdf.
    \4\5 C.F.R. Sec. 316.401(d) (1994); U.S. Gov't Accountability 
Office, GAO-02-296, Data Do Not Identify if Temporary Employees Work 
for Extended Periods, 7 (2002), available at http://www.gao.gov/
new.items/d02296.pdf.
---------------------------------------------------------------------------
    Regardless of how long temporary employees have performed 
the exact same job, year after year, they are ineligible to 
compete for vacant permanent positions under internal merit 
promotion procedures. According to the United States Merit 
Systems Protection Board (MSPB), such procedures ``are 
generally open to current or former Federal employees who have 
or had permanent appointments.''\5\ Because many agencies fill 
non-entry level jobs using these merit promotion procedures 
that favor current permanent employees, qualified temporary 
employees may never be considered for these jobs.\6\
---------------------------------------------------------------------------
    \5\U.S. Merit Systems Protection Board, Help Wanted: A Review of 
Federal Vacancy Announcements, 5 (Apr. 2003), available at http://
www.mspb.gov/netsearch/
viewdocs.aspx?docnumber=253634&version=253921&application=ACROBAT.
    \6\Id. at 5, Figure 1.
---------------------------------------------------------------------------
    Americans benefit from the contributions of long-serving 
temporary seasonal wildland firefighters and other long-term 
temporary employees. These individuals should be provided the 
same opportunity to compete for career advancement 
opportunities available to other federal employees. 
Accordingly, H.R. 1531 would extend eligibility to compete for 
a permanent seasonal job to a land management agency employee 
who: serves under a temporary or term appointment that he or 
she was initially appointed to under open, competitive 
examination; has served with that land management agency under 
one or more time-limited appointments for a period or periods 
totaling more than 24 months of service, without an intervening 
break in service of two or more years; and achieved an 
acceptable level of performance for the duration of his or her 
service under the time-limited appointment or appointments. A 
qualified employee would then be eligible to compete if 
applying for a vacant, permanent position within two years of 
their date of separation from the land management agency, and 
only if the separation was for reasons other than misconduct or 
performance.
    Additionally, H.R. 1531 would require an examining agency 
to waive age requirements to determine an employe's eligibility 
to compete, unless the age requirement is essential to the 
performance of the position in question. This ensures that an 
experienced temporary seasonal firefighter is eligible to 
compete for a permanent position for which he or she may be 
well qualified. H.R. 1531 would increase competition for these 
important jobs.
    Bipartisan concerns have been raised for years over the 
prohibition on temporary employees competing for permanent 
positions.\7\ The Act has broad bipartisan support and support 
from numerous agencies and federal employee union groups.\8\
---------------------------------------------------------------------------
    \7\See, e.g., Use of Temporary Employees in the Federal Government: 
Hearing Before the Subcommittee on Civil Service, 103rd Cong. (June 22, 
1993); Temporary Employment Reform, National Federation of Federal 
Employees Forest Service Council, http://www.nffe-fsc.org/committees/
legislative/temp-hire.php (last visited July 31, 2015).
    \8\See, e.g., Letter from Thomas L. Tidwell, Chief of the United 
States Forest Service (May 17, 2011), available at http://nffe-fsc.org/
committees/legislative/FS_110517_Chief_TempLtr.pdf; information 
provided by the National Federation of Federal Employees to Committee 
staff (June, 2015), available at http://www.nffe-fsc.org/documents3/
20150406-temp-reform-brief-150406.pdf.
---------------------------------------------------------------------------

                        III. Legislative History

    Rep. Gerald E. Connolly (D-VA-11) introduced H.R. 1531 on 
March 23, 2015, with Reps. Don Young (R-AK) and Rob Bishop (R-
UT-1). On March 25, 2015, the Committee on Oversight and 
Government Reform reported the bill favorably, without 
amendment, by voice vote. H.R. 1531 was passed by the House on 
July 7, 2015, and referred to the Committee on Homeland 
Security and Governmental Affairs.
    There are two companion bills to H.R. 1531 in the Senate: 
S. 1522, filed by Senator Ron Johnson (R-WI), and S. 1591, 
filed by Senator Jon Tester (D-MT) with Senators Claire 
McCaskill (D-MO) and Gary Peters (D-MI) as cosponsors.
    The Committee considered H.R. 1531 at a business meeting on 
July 29, 2015, and ordered the Act reported favorably en bloc 
by voice vote. Senators present for the vote on the Act were 
Johnson, Portman, Lankford, Ernst, Sasse, Carper, Baldwin, 
Heitkamp and Peters.

        IV. Section-by-Section Analysis of the Act, as Reported

Section 1. Short title

    Section 1 designates the short title of the Act as the 
``Land Management Workforce Flexibility Act.''

Section 2. Personnel flexibilities relating to land management agencies

    Amends Subpart I of part III of title 5, United States 
Code, by inserting a new chapter addressing personnel 
flexibilities for land management agencies. The new chapter 96 
contains two sections.
    Section 9601 defines the term ``land management agency'' to 
mean the Forest Service of the United States Department of 
Agriculture, and the following component agencies of the United 
States Department of the Interior: Bureau of Land Management, 
National Park Service, Fish and Wildlife Service, Bureau of 
Indian Affairs, and Bureau of Reclamation. Section 9601 also 
defines the term ``time-limited appointment'' to include 
temporary appointments and term appointments, as defined by the 
Office of Personnel Management (OPM).
    Section 9602 establishes that an employee of a land 
management agency serving under a time-limited appointment in 
the competitive service is eligible to compete for a permanent 
appointment in the competitive service at any land management 
agency or any other agency (as defined in section 101 of title 
31) under the internal merit promotion procedures of the 
applicable agency if the employee meets the following three 
criteria:
    1. Was appointed initially under open, competitive 
examination under subchapter I of chapter 33 to the time-
limited appointment.
    2. Has served under one or more time-limited appointments 
by a land management agency for a period or periods totaling 
more than 24 months without a break of 2 or more years.
    3. His or her performance was at an acceptable level 
throughout the period or periods of service.
    Section 9602 also directs OPM or another examining agency 
to waive requirements as to age when determining the 
eligibility of a time-limited employee for appointment to 
competitive service, unless the requirement is essential to the 
performance of the duties of the vacant position.
    Section 9602 also establishes that an individual appointed 
under the section becomes a career-conditional employee, unless 
the employee has otherwise completed the service requirements 
for career tenure; and acquires competitive status upon 
appointment.
    Section 9602 also requires that a former employee of a land 
management agency who served under a time-limited appointment 
and who otherwise meets the requirements of Section 9602 shall 
be deemed a time-limited employee for purposes of the section 
if such employee applies for a position covered by this section 
within 2 years after the most recent date of separation; and if 
such employee's separation was for reasons other than 
misconduct or performance.
    Finally, Section 9602 authorizes OPM to prescribe such 
regulations as may be necessary to carry out the Act.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                    August 4, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1531, the Land 
Management Workforce Flexibility Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 1531--Land Management Workforce Flexibility Act

    H.R. 1531 would make individuals serving as temporary 
employees of federal land management agencies eligible to 
compete for permanent positions with those agencies under 
internal procedures for merit promotions. CBO estimates that 
implementing the legislation would have no significant effect 
on the federal budget. Enacting H.R. 1531 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    Information from the Office of Personnel Management 
indicates that while the legislation would expand the pool of 
people eligible to be hired for federal land management 
positions, it would not change the total number of jobs 
available or the salaries paid to employees.
    H.R. 1531 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On April 27, 2015, CBO transmitted a cost estimate for H.R. 
1531 as ordered reported by the House Committee on Oversight 
and Government Reform on March 25, 2015. The two versions of 
the legislation are identical, and the CBO cost estimates are 
the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Assistant 
Director for Budget Analysis.

       VII. Changes in Existing Law Made By The Act, As Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
H.R. 1531 as reported are shown as follows (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

    CHAPTER 96--PERSONNEL FLEXIBILITIES RELATING TO LAND MANAGEMENT 
                                AGENCIES

SEC. 9601. DEFINITIONS.

    For purposes of this chapter--
          (1) the term land management agency' means--
                  (A) the Forest Service of the Department of 
                Agriculture;
                  (B) the Bureau of Land Managemnt of the 
                Department of the Interior;
                  (C) the National Park Service of the 
                Department of the Interior;
                  (D) the Fish and Wildlife Service of the 
                Department of the Interior;
                  (E) the Bureau of Indian Affairs of the 
                Department of the Interior; and
                  (F) the Bureau of Reclamation of the 
                Department of the Interior; and
          (2) the term time-limited appointment includes a 
        temporary appointment and a term appointment, as 
        defined by the Office of Personnel Management.

SEC. 9602. COMPETITIVE SERVICE; TIME-LIMITED APPOINTMENTS.

    (a) Notwithstanding chapter 33 or any other provision of 
law relating to the examination, certification, and appointment 
of individuals in the competitive service, an employee of a 
land management agency serving under a time-limited appointment 
in the competitive service is eilgibile to compete for a 
permanent appointment in the competitive service at any land 
management agency or any other agency (as defined in section 
101 of title 31) under the internal merit promotion procedures 
of the applicable agency if--
          (1) the employee was appointed initially under open, 
        competitive examination under subchapter I of chapter 
        33 to the time-limited appointment;
          (2) the employee has served under 1 or more time-
        limited appointments by a land management agency for a 
        period or periods totaling more than 24 months without 
        a break of 2 or more years; and
          (3) the employe's performance has been at an 
        acceptable level of performance throughout the period 
        or periods (as the case may be) referred to in 
        paragraph (2).
    (b) In determining the eligibility of a time-limited 
employee under this section to be examined for or appointed in 
the competitive service, the Office of Personnel Management or 
other examining agency shall waive requirements as to age, 
unless the requirement is essential to the performance of the 
duties of the position.
    (c) An individual appointed under this section--
          (1) becomes a career-conditional employee, unless the 
        employee has otherwise completed the service 
        requirements for career tenure; and
          (2) acquires competitive status upon appointment.
    (d) A former employee of a land management agency who 
served under a time-limited appointment and who otherwise meets 
the requirements of this section shall be deemed a time-limited 
employee for purposes of this section if--
          (1) such employee applies for a position covered by 
        this section within the period of 2 years after the 
        most recent date of separation; and
          (2) such employe's most recent separation was for 
        reasons other than misconduct or performance.
    (e) The Office of Personnel Management shall prescribe such 
regulations as may be necessary to carry out this section.

           *       *       *       *       *       *       *
```