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[House Report 110-672]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-672

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

 
            SENIOR EXECUTIVE SERVICE DIVERSITY ASSURANCE ACT

                                _______
                                

  May 22, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Waxman, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 3774]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Oversight and Government Reform, to whom was 
referred the bill (H.R. 3774) to provide for greater diversity 
within, and to improve policy direction and oversight of, the 
Senior Executive Service, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

Purpose and Summary..............................................     6
Background and Need for Legislation..............................     6
Legislative History..............................................     8
Section-By-Section...............................................     8
Explanation of Amendments........................................    11
Committee Consideration..........................................    11
Roll Call Votes..................................................    12
Application of Law to the Legislative Branch.....................    12
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    12
Statement of General Performance Goals and Objectives............    12
Constitutional Authority Statement...............................    12
Federal Advisory Committee Act...................................    12
Unfunded Mandates Statement......................................    12
Earmark Identification...........................................    12
Committee Estimate...............................................    13
Budget Authority and Congressional Budget Office Cost Estimate...    13
Changes in Existing Law Made by the Bill, as Reported............    14
Additional Views.................................................    16

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Senior Executive Service 
Diversity Assurance Act''.

SEC. 2. FINDINGS.

  Congress finds that--
          (1) according to the Government Accountability 
        Office--
                  (A) minorities made up 22.5 percent of the 
                individuals serving at the GS-15 and GS-14 
                levels and 15.8 percent of the Senior Executive 
                Service in 2007;
                  (B) women made up 34.3 percent of the 
                individuals serving at the GS-15 and GS-14 
                levels and 29.1 percent of the Senior Executive 
                Service in 2007; and
                  (C) although the number of career Senior 
                Executive Service members increased from 6,110 
                in 2,000 to 6,555 in 2007, the representation 
                of African American men in the career Senior 
                Executive Service declined during that same 
                period from 5.5 percent to 5.0 percent; and
          (2) according to the Office of Personnel Management--
                  (A) black employees represented 6.1 percent 
                of employees at the Senior Pay levels and 17.8 
                percent of the permanent Federal workforce 
                compared to 10.1 percent in the civilian labor 
                force in 2007;
                  (B) Hispanic employees represented 4.0 
                percent of employees at the Senior Pay levels 
                and 7.8 percent of the permanent Federal 
                workforce compared to 13.3 percent of the 
                civilian labor force in 2007; and
                  (C) women represented 28.2 percent of 
                employees at the Senior Pay levels and 43.9 
                percent of the permanent Federal workforce 
                compared to 45.7 percent of the civilian labor 
                force in 2007.

SEC. 3. DEFINITIONS.

  For purposes of this Act--
          (1) the term ``Director'' means the Director of the 
        Office of Personnel Management;
          (2) the term ``Senior Executive Service'' has the 
        meaning given such term by section 2101a of title 5, 
        United States Code;
          (3) the terms ``agency'', ``career appointee'', and 
        ``career reserved position'' have the meanings given 
        them by section 3132 of title 5, United States Code; 
        and
          (4) the term ``SES Resource Office'' means the Senior 
        Executive Service Resource Office, established under 
        section 4.

SEC. 4. SENIOR EXECUTIVE SERVICE RESOURCE OFFICE.

  (a) Establishment.--Not later than 180 days after the date of 
the enactment of this Act, the Director shall establish within 
the Office of Personnel Management an office to be known as the 
Senior Executive Service Resource Office. The mission of the 
SES Resource Office shall be--
          (1) to improve the efficiency, effectiveness, and 
        productivity of the Senior Executive Service through 
        policy formulation and oversight;
          (2) to advance the professionalism of the Senior 
        Executive Service; and
          (3) to ensure that, in seeking to achieve a Senior 
        Executive Service reflective of the Nation's diversity, 
        recruitment is from qualified individuals from 
        appropriate sources.
  (b) Functions.--It shall be the function of the SES Resource 
Office to make recommendations to the Director with respect to 
regulations, and to provide guidance to agencies, concerning 
the structure, management, and diverse composition of the 
Senior Executive Service. In order to carry out the purposes of 
this section, the SES Resource Office shall--
          (1) take such actions as the SES Resource Office 
        considers necessary to manage and promote an efficient, 
        elite, and diverse corps of senior executives by--
                  (A) creating policies for the management and 
                improvement of the Senior Executive Service;
                  (B) providing oversight of the performance, 
                structure, and composition of the Senior 
                Executive Service; and
                  (C) providing guidance and oversight to 
                agencies in the management of senior executives 
                and candidates for the Senior Executive 
                Service;
          (2) be responsible for the policy development, 
        management, and oversight of the Senior Executive 
        Service pay system;
          (3) develop standards for certification of each 
        agency's Senior Executive Service performance 
        management system and evaluate all agency applications 
        for certification;
          (4) be responsible for developing and monitoring 
        programs for the advancement and training of senior 
        executives, including the Senior Executive Service 
        Federal Candidate Development Program;
          (5) provide oversight of, and guidance to, agency 
        executive resources boards;
          (6) be responsible for the administration of the 
        qualifications review board;
          (7) establish and maintain annual statistics (in a 
        form that renders them useful to appointing authorities 
        and candidates) on--
                  (A) the total number of career reserved 
                positions at each agency;
                  (B) the total number of vacant career 
                reserved positions at each agency;
                  (C) of the positions under subparagraph (B), 
                the number for which candidates are being 
                sought;
                  (D) the number of individuals who have been 
                certified in accordance with section 3393(c) of 
                title 5, United States Code, and the 
                composition of that group of individuals with 
                regard to race, ethnicity, sex, age, and 
                individuals with disabilities;
                  (E) the composition of the Senior Executive 
                Service with regard to race, ethnicity, sex, 
                age, and individuals with disabilities;
                  (F) the composition of executive resources 
                boards with regard to race, ethnicity, sex, and 
                individuals with disabilities; and
                  (G) the composition of qualifications review 
                boards with regard to race, ethnicity, sex, and 
                individuals with disabilities;
          (8) make available to the public through the official 
        public internet site of the Office of Personnel 
        Management, the data collected under paragraph (7);
          (9) establish mentoring programs for potential 
        candidates for the Senior Executive Service, including 
        candidates who have been certified as having the 
        executive qualifications necessary for initial 
        appointment as a career appointee under a program 
        established pursuant to section 3396(a) of title 5, 
        United States Code;
          (10) conduct a continuing program for the recruitment 
        of women, members of racial and ethnic minority groups, 
        and individuals with disabilities for Senior Executive 
        Service positions, with special efforts directed at 
        recruiting from educational institutions, professional 
        associations, and other sources;
          (11) advise agencies on the best practices for an 
        agency in utilizing or consulting with an agency's 
        equal employment or diversity office or official (if 
        the agency has such an office or official) with regard 
        to the agency's Senior Executive Service appointments 
        process; and
          (12) evaluate and implement strategies to ensure that 
        agencies conduct appropriate outreach to other agencies 
        to identify candidates for Senior Executive Service 
        positions.
  (c) Protection of Individually Identifiable Information.--For 
purposes of subsection (b)(8), the SES Resource Office may 
combine data for any agency that is not named in section 901(b) 
of chapter 31, United States Code, to protect individually 
identifiable information.
  (d) Cooperation of Agencies.--The head of each agency shall 
provide the Office of Personnel Management with such 
information as the SES Resource Office may require in order to 
carry out subsection (b)(7).

SEC. 5. CAREER APPOINTMENTS.

  (a) Promoting Diversity in the Career Appointments Process.--
Section 3393 of title 5, United States Code, is amended--
          (1) in subsection (b), by inserting after the first 
        sentence the following: ``In establishing an executive 
        resources board, the head of the agency shall, to the 
        extent practicable, ensure diversity of the board and 
        of any subgroup thereof or other evaluation panel 
        related to the merit staffing process for career 
        appointees, by including members of racial and ethnic 
        minority groups, women, and individuals with 
        disabilities.''; and
          (2) in subsection (c)(1), by adding after the last 
        sentence the following: ``Consideration should also be 
        given to improving diversity by including members of 
        racial and ethnic minority groups, women, and 
        individuals with disabilities on qualifications review 
        boards.''.
  (b) Regulations.--Within 1 year after the date of the 
enactment of this Act, the Director shall promulgate 
regulations to implement subsection (a) and to improve 
diversity in executive resources boards and qualifications 
review boards.
  (c) Report.--Within 1 year after the date of the enactment of 
this Act, the Director shall submit 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 a report evaluating agency efforts to improve 
diversity in executive resources boards and of the members 
designated by agencies to serve on qualifications review 
boards, based on the information collected by the SES Resource 
Office under subparagraphs (F) and (G) of section 4(b)(7).

SEC. 6. ENCOURAGING A MORE DIVERSE SENIOR EXECUTIVE SERVICE.

  (a) Senior Executive Service Diversity Plans.--Within 1 year 
after the date of the enactment of this Act, each agency, in 
consultation with the Office of Personnel Management, shall 
submit to the Office of Personnel Management a plan to enhance 
and maximize opportunities for the advancement and appointment 
of minorities, women, and individuals with disabilities in the 
agency to the Senior Executive Service. Agency plans shall 
address how the agency is identifying and eliminating barriers 
that impair the ability of minorities, women, and individuals 
with disabilities to obtain appointments to the Senior 
Executive Service and any actions the agency is taking to 
provide advancement opportunities, including--
          (1) conducting outreach to minorities, women, and 
        individuals within the agency and outside the agency;
          (2) establishing and maintaining training and 
        education programs to foster leadership development;
          (3) identifying career enhancing opportunities for 
        agency employees;
          (4) assessing internal availability of candidates for 
        Senior Executive Service positions; and
          (5) conducting an inventory of employee skills and 
        addressing current and potential gaps in skills and the 
        distribution of skills.
Agency plans shall be updated at least every 2 years during the 
10 years following enactment of this Act. An agency plan shall 
be reviewed by the Office of Personnel Management and, if 
determined to provide sufficient assurances, procedures, and 
commitments to provide adequate opportunities for the 
advancement and appointment of minorities, women, and 
individuals with disabilities to the Senior Executive Service, 
shall be approved by such Office. An agency may, in updating 
its plan, submit to the Office of Personnel Management an 
assessment of the impacts of the plan.
  (b) Summary and Evaluation.--Within 180 days after the 
deadline for the submission of any report or update under 
subsection (a), the Director shall transmit 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 a report summarizing and evaluating the agency 
plans or updates (as the case may be) so submitted.
  (c) Coordination.--The Office of Personnel Management shall, 
in carrying out subsection (a), evaluate existing requirements 
under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-16) and section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791) and determine how agency reporting can be performed 
so as to be consistent with, but not duplicative of, such 
sections and any other similar requirements.

                          Purpose and Summary

    H.R. 3774, the Senior Executive Service Diversity Assurance 
Act, was introduced by Rep. Danny K. Davis on October 9, 2007. 
The purpose of H.R. 3774 is to promote diversity in the Senior 
Executive Service (SES).
    H.R. 3774 requires the Office of Personnel Management (OPM) 
to establish an office to oversee the SES, requires agencies 
and OPM to consider diversity when designating members of SES 
candidate evaluation panels, and requires each agency to submit 
a plan to OPM on how the agency will enhance and maximize 
opportunities for the advancement and appointment of 
minorities, women, and individuals with disabilities to the 
SES. OPM must review the agency plans and report to Congress 
with a summary and an evaluation of the agency plans.

                  Background and Need for Legislation

    The SES was established by Title IV of the Civil Service 
Reform Act of 1978, P.L. 95-454, and encompasses managerial, 
supervisory, and policy positions above the GS-15 level that 
are not filled by presidential appointment with Senate 
confirmation. The SES includes nearly 7,000 federal 
employees.\1\ Of those, approximately 6,000 are career 
appointed executives.\2\ SES career appointments do not have 
time limitations and provide certain job protections and 
benefits.
---------------------------------------------------------------------------
    \1\U.S. Office of Personnel Management, Senior Executive Service 
Survey Results (May 2008).
    \2\House Committee on Oversight and Government Reform, Subcommittee 
on Federal Workforce, Postal Service, and the District of Columbia, 
Testimony of Katherine Siggerud and George H. Stalcup, Managing 
Diversity of Senior Leadership in the Federal Workforce and Postal 
Service, 110th Cong. (Apr. 3, 2008) (GAO-08-609T).
---------------------------------------------------------------------------
    Career appointees are selected for the SES on the basis of 
leadership qualifications. Candidates are initially evaluated 
by an internal agency executive resources board (ERB) made up 
of senior executives. The candidates are ranked by the ERB and 
written recommendations are made to OPM. OPM is required to 
establish qualifications review boards (QRBs) to certify 
candidate qualifications. The appointing authority in an agency 
makes the final determination of which candidate will be hired. 
Noncareer appointees do not have to meet the same competitive 
selection requirements as career SES candidates and do not 
receive the same entitlements as career senior executives.
    The percentage of minorities and women at senior pay levels 
in the federal government, including the SES, is lower than in 
the civilian workforce and the federal workforce as a whole. 
The senior leadership of the federal government should serve as 
a model and should be as strong and effective as possible. 
Improving the diversity of the SES is an essential part of 
achieving that goal. As the Government Accountability Office 
(GAO) testified at an April 3, 2008, hearing of the 
Subcommittee on Federal Workforce, Postal Service and the 
District of Columbia, ``[h]aving a diverse SES corps, which 
generally represents the most experienced segment of the 
federal workforce, can be an organizational strength that can 
bring a wider variety of perspectives and approaches to bear on 
policy development and implementation, strategic planning, 
problem solving, and decision making.''\3\
---------------------------------------------------------------------------
    \3\Id.
---------------------------------------------------------------------------
    Effective oversight of the SES is essential to ensuring 
that SES recruitment efforts adequately address diversity. H.R. 
3774 requires OPM to re-establish the Senior Executive Service 
Resource Office (SESRO) at OPM. The SESRO will serve as a 
central resource for agencies and will provide oversight of 
agency recruitment and candidate development efforts. OPM 
previously had such an office but dissolved the office when the 
agency was reorganized in 2003. Concerns have been raised that 
OPM's management of the SES is less effective without a central 
office to handle SES-related policy development and 
implementation. According to the Senior Executives Association:

          We are especially delighted that the bills require 
        effective oversight of the Senior Executive Service by 
        the Office of Personnel Management. In the past OPM has 
        had such an office and it worked effectively to monitor 
        and manage the SES, government-wide. Currently, 
        different offices within OPM share the responsibility 
        for managing the SES with policy in one office and 
        implementation of that policy in another office. In our 
        opinion, the effect has been a diminishment in the 
        effectiveness of the management of the government-wide 
        SES corps. With respect to diversity, this means that 
        agencies use different systems and standards for 
        recruiting into the SES with varying outcomes on 
        diversity resulting in different agencies. With one 
        office to manage the SES greater diversity is more 
        likely to become a reality sooner than later.\4\
---------------------------------------------------------------------------
    \4\House Committee on Oversight and Government Reform, Subcommittee 
on Federal Workforce, Postal Service, and the District of Columbia, 
Testimony of William Bransford, Managing Diversity of Senior Leadership 
in the Federal Workforce and Postal Service, 110th Cong. (Apr. 3, 
2008).

    One problem that has been identified is that there are 
lower numbers of minorities and women in the SES compared to 
the numbers of minorities and women employed in the GS-15 and 
GS-14 levels, the feeder pools for the SES. GAO reports that, 
in 2007, minorities made up 22.5% of the employees in the SES 
development pool but only made up 16% of career employees in 
the SES. GAO reports that women made up 34% of the employees 
serving at the GS-15 and GS-14 levels but only 29% of the 
career SES in 2007.
    H.R. 3774 requires the new SESRO to develop and monitor 
programs for the advancement and training of senior executives, 
including the Senior Executive Service Federal Candidate 
Development Program. The bill also requires each agency to 
submit a plan to OPM on how the agency is identifying and 
eliminating barriers to minorities, women, and individuals with 
disabilities to obtain appointments to the SES.
    Involving individuals with a variety of experiences and 
perspectives in the consideration of SES candidates helps 
ensure the selection of a strong and diverse SES workforce. 
H.R. 3774 requires agencies, to the extent possible, to include 
minorities, women, and individuals with disabilities on their 
ERBs as well as any other panels that evaluate SES candidates 
and provides that agencies should consider diversity in 
selecting members to serve on OPM's QRBs.

                          Legislative History

    H.R. 3774, the Senior Executive Service Diversity Assurance 
Act, was introduced by Rep. Danny K. Davis on October 9, 2007, 
and referred to the Committee on Oversight and Government 
Reform. Senator Daniel K. Akaka introduced a companion bill, S. 
2148, on October 4, 2007.
    On April 3, 2008, the Subcommittee on Federal Workforce, 
Postal Service and the District of Columbia held a hearing on 
the Senior Executive Service Diversity Assurance Act. The 
witnesses were Nancy Kichak, Associate Director, OPM; George 
Stalcup, Director, Strategic Issues, GAO; Katherine Siggerud, 
Director, Physical Infrastructure Issues, GAO; William 
Bransford, General Counsel, Senior Executives Association; 
William Brown, President African American Federal Executives 
Association; Rhonda Trent, President, Federally Employed Women; 
Carson Eoyang, Executive Director, Asian American Government 
Executives Network; Jose Osegueda, President, National 
Association of Hispanic Federal Executives; and Darlene Young, 
President, Blacks in Government.
    On April 15, 2008, the Subcommittee held a business meeting 
to consider H.R. 3774 and forwarded the bill to the full 
Committee by a voice vote.
    The full Committee held a business meeting to consider H.R. 
3774 on May 1, 2008, and ordered the bill to be favorably 
reported, as amended, by a voice vote.

                           Section-by-Section

Section 1. Short Title

    This section provides that the short title of the bill is 
the ``Senior Executive Service Diversity Assurance Act.''

Section 2. Findings

    This section provides findings, including statistics from 
GAO and OPM that demonstrate the need for this legislation. 
According to GAO, minorities made up 22.5% of the individuals 
serving at the GS-15 and GS-14 levels and 15.8% of the career 
SES in 2007; women made up 34.3% of the individuals at the GS-
15 and GS-14 levels and 29.1% of the career SES in 2007; and 
despite an increase in the number of SES members from 6,110 in 
2000 to 6,555 in 2007, the representation of African-American 
men in the career SES declined from 5.5% to 5%. According to 
OPM, in 2007: black employees represented 6.1% of employees at 
senior pay levels and 17.8% of the federal workforce compared 
to 10.1% in the civilian workforce; Hispanic employees 
represented 4% of employees at the senior pay levels and 7.8% 
of the permanent federal workforce compared to 13.3% of the 
civilian labor force; and women represented 28.2% of employees 
at the senior pay levels and 43.9% of the permanent federal 
workforce compared to 45.7% of the civilian labor force.

Section 3. Definitions

    This section includes the following definitions:
    The term ``director'' means the Director of OPM.
    The term ``Senior Executive Service'' means Senior 
Executive Service positions, which include any position in an 
agency which is classified above GS-15 or in level IV or V of 
the Executive Schedule, or an equivalent position which fits 
certain criteria and does not require a Senate confirmed 
presidential appointment.
    The term ``agency'' has the meaning provided in 5 U.S.C. 
Sec. 3132 which is an executive agency, except a government 
corporation and GAO, and excluding some agencies identified in 
section 3132 such as the Federal Bureau of Investigation, the 
Drug Enforcement Agency, and the Central Intelligence Agency.
    The term ``career appointee'' means an individual in an SES 
position whose appointment to the position or previous 
appointment to another SES position was based on approval by 
OPM of the individual's executive qualifications.
    The term ``career reserved position'' means a position 
which is required to be filled by a career appointee and which 
is designated as a career reserved position by the head of the 
agency.
    The term ``SES Resource Office'' refers to the Senior 
Executive Service Resource Office established by section four 
of the bill.

Section 4. Senior Executive Service Resource Office

    This section reestablishes the Senior Executive Service 
Resource Office (SESRO), within OPM.
    Subsection (a) requires the director of OPM to establish 
the SESRO within six months of enactment. This subsection 
provides the mission of the new office is to improve the 
efficiency, effectiveness, and productivity of the SES; to 
advance the professionalism of the SES; and to ensure that in 
seeking to achieve an SES that is reflective of the nation's 
diversity, recruitment is from qualified individuals.
    Subsection (b) describes the functions of the SESRO, 
including recommending regulations to the director of OPM and 
providing guidance to agencies on the structure, management, 
and diverse composition of the SES. This subsection provides a 
number of ways that the SESRO must carry out its 
responsibilities, including: creating policies for the 
management and improvement of the SES; providing oversight of 
the performance, structure, and composition of the SES; 
managing the SES pay system; developing standards 
forcertification of each agency's SES performance management system; 
and developing programs for the advancement and training of senior 
executives. OPM is currently required by 5 U.S.C. Sec. 3393(c) to 
establish qualifications review boards (QRBs) to certify the 
qualifications of SES candidates. Under subsection (b), the SESRO will 
be responsible for administering QRBs.
    This subsection requires the SESRO to compile and maintain 
annual statistics related to the composition of the SES and 
requires OPM to make those statistics publicly available on its 
website. The SESRO must collect information such as the number 
of career reserve positions at each agency; the number of 
vacant career reserve positions at each agency; the number of 
individuals who have been certified as having the 
qualifications necessary to be appointed to the SES and the 
make-up of that group with regard to race, ethnicity, sex, age, 
and individuals with disabilities; and the make-up of the SES 
with regard to race, ethnicity, sex, age, and individuals with 
disabilities. The SESRO must also collect data on the make-up 
of executive resources boards (ERBs) and QRBs with regard to 
race, ethnicity, sex, and individuals with disabilities. OPM 
does not currently collect data on the composition of these 
boards.
    Subsection (b) also requires the SESRO to establish 
mentoring programs for potential SES candidates, conduct a 
continuing program to recruit women, minorities, and 
individuals with disabilities for SES positions, advise 
agencies on how an agency's equal employment or diversity 
office could be helpful in the SES appointments process, and 
evaluate and implement strategies to ensure that agencies 
conduct outreach to identify SES candidates in other agencies.
    Subsection (c) provides that, in making the annual 
statistics publicly available, the SESRO may combine data for 
smaller agencies to protect individually identifiable 
information.
    Subsection (d) requires the head of each agency to provide 
OPM with the information needed for the SESRO to compile its 
annual statistics.

Section 5. Career Appointments

    Subsection (a) requires the head of an agency, where 
possible, to ensure diversity of the agency's ERBs by including 
minorities, women, and individuals with disabilities on these 
boards. This subsection provides that consideration should also 
be given, in appointing members to a QRB, to improving 
diversity by including minorities, women, and individuals with 
disabilities. OPM is responsible for establishing QRBs but OPM 
relies on agencies to designate agency employees to serve on 
QRBs. This subsection is intended to encourage OPM and agencies 
to consider diversity when identifying potential panel members 
who have professional knowledge of public management and 
knowledge of the appropriate occupational fields of the 
appointee.
    Subsection (b) requires OPM to issue regulations to 
implement subsection (a).
    Subsection (c) requires OPM to report to the House 
Committee on Oversight and Government Reform and the Senate 
Committee on Homeland Security and Governmental Affairs within 
one year of enactment with an evaluation of agency efforts to 
improve the diversity of ERBs and QRBs based on the annual 
statistics maintained by the SESRO.

Section 6. Encouraging a More Diverse Senior Executive Service

    Subsection (a) requires each agency, in consultation with 
OPM, to submit to OPM a plan to improve opportunities for the 
advancement and appointment of minorities, women, and 
individuals with disabilities to the SES. Each agency plan must 
address how the agency will identify and eliminate barriers 
that impair the ability of minorities, women, and individuals 
with disabilities to obtain SES appointments and any actions 
the agency is taking to provide opportunities for advancement. 
Subsection (a) provides examples of ways agencies can help 
employees advance, including conducting outreach, providing 
training programs to foster leadership development, identifying 
opportunities for employees to enhance their careers, assessing 
internal availability of candidates for SES positions, and 
taking inventory of employee skills and addressing any gaps in 
skills identified.
    Under subsection (a), agency plans are required to be 
updated at least every two years during the ten years following 
enactment. OPM is required to evaluate whether each agency plan 
sufficiently demonstrates the agency's commitment to providing 
opportunities for SES appointments of minorities, women, and 
individuals with disabilities and determine whether to approve 
the plan.
    Subsection (b) requires OPM, within six months after the 
deadline for agencies to submit a report or update, to submit a 
summary and evaluation of agency plans to the House Committee 
on Oversight and Government Reform and the Senate Committee on 
Homeland Security and Governmental Affairs.
    Subsection (c) requires OPM to evaluate existing reporting 
requirements such as section 717 of the Civil Rights Act of 
1964 and determine how agency reporting can be done in a way 
that is consistent with similar reporting requirements but does 
not duplicate those requirements. The intent of this section is 
for agencies and OPM to carefully evaluate how diversity in the 
SES can be improved through new actions aimed at eliminating 
barriers to advancement. The intent is not for the reports 
required by this section to become rote exercises that 
duplicate existing agency reports.

                       Explanation of Amendments

    At the full Committee business meeting on May 1, 2008, Rep. 
Waxman offered an amendment in the nature of a substitute, 
which passed by voice vote. The Waxman amendment maintains the 
requirement in the bill as introduced that OPM reestablish the 
SESRO, but adds new requirements for the office. The new 
requirements include collecting diversity data on the makeup of 
ERBs and QRBs. The bill as introduced requires each agency to 
establish a three-person SES evaluation panel within each 
agency that must include at least one woman and one member of a 
racial or ethnic group. The Waxman amendment replaces this 
section with several provisions aimed at promoting diversity in 
the SES. The amendment requires agencies, to the extent 
practicable, to include minorities, women, and individuals with 
disabilities in ERBs and any subgroups of those panels and to 
consider diversity in designating members for QRBs. The 
amendment requires OPM to issue regulations and report to 
Congress on agency efforts to improve diversity of ERBs and 
QRBs. Under the Waxman amendment, agencies must submit plans to 
OPM on efforts to improve opportunities for advancement to the 
SES for minorities, women, and individuals with disabilities. 
The amendment requires OPM to summarize andevaluate agency 
plans and report to the House Committee on Oversight and Government 
Reform and the Senate Committee on Homeland Security and Governmental 
Affairs.

                        Committee Consideration

    On Thursday, May 1, 2008, the Committee met in open session 
and ordered H.R. 3774, as amended, to be reported to the House 
by a voice vote.

                            Roll Call Votes

    No roll call votes were held.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to terms and conditions of 
employment or access to public services and accommodations. 
H.R. 3774 creates an office in OPM and requires executive 
branch agencies to take actions aimed at improving diversity in 
the Senior Executive Service and therefore does not apply to 
the legislative branch.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of Rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report, including the need for a more diverse Senior 
Executive Service.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report, including encouraging the appointment and 
advancement of minorities, women, and individuals with 
disabilities to the Senior Executive Service.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 3774. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                      Unfunded Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement on 
whether the provisions of the report include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office included herein.

                         Earmark Identification

    H.R. 3774 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 3774. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 3774 from the Director of 
the Congressional Budget Office:

                                                      May 22, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3774, the Senior 
Executive Service Diversity Assurance Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 3774--Senior Executive Service Diversity Assurance Act

    Summary: H.R. 3774 would establish a Senior Executive 
Service Resource Office within the Office of Personnel 
Management (OPM) to oversee executive agencies' efforts to 
improve the management of the Senior Executive Service (SES). 
The bill also would require agencies to prepare plans to 
increase diversity within the SES.
    CBO estimates that implementing H.R. 3774 would cost $2 
million in 2009 and $22 million over the 2009-2013 period, 
assuming appropriation of the necessary amounts. Enacting the 
legislation would not affect direct spending or revenues. H.R. 
3774 contains no intergovernmental or private-sector mandates 
as defined in Unfunded Mandates Reform Act (UMRA) and would not 
affect the budgets of state, local, or tribal governments.
    Estimated Cost to the Federal Government: The estimated 
budgetary impact of H.R. 3774 is shown in the following table. 
The costs of this legislation fall primarily within budget 
function 800 (general government).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                                                                          2009-
                                                              2009     2010     2011     2012     2013     2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.............................        2        5        5        5        5       22
Estimated Outlays.........................................        2        5        5        5        5       22
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the start of fiscal year 2009 and 
that spending would follow historical patterns for similar 
programs.
    The SES was created in 1979 to provide a systematic program 
to recruit, retain, develop, and manage senior executives in 
the federal government. They generally represent the most 
experienced segment of the federal workforce and operate and 
oversee approximately 75 federal agencies. OPM manages the 
overall program and assists agencies as they select, develop, 
and manage federal executives. According to the Government 
Accountability Office (GAO), there are currently about 6,500 
SES employees.
    According to OPM, GAO, and selected agencies with SES 
employees, most of the provisions of H.R. 3774 would expand the 
current SES-related duties of OPM and affected agencies. The 
legislation would establish a new office within OPM to provide 
additional oversight of executive agencies' efforts to recruit 
and develop candidates for SES positions. In addition, the 
legislation would require individual agencies to develop and 
implement plans to enhance the diversity of their SES employees 
and to report on those efforts.
    Based on information from OPM and other affected agencies, 
CBO estimates that implementing H.R. 3774 would cost $2 million 
in 2009 and $22 million over the 2009-2013 period, assuming 
appropriation of the necessary amounts. Those costs would cover 
additional staff and expenses related to the new office in OPM, 
which CBO expects would be fully operational in 2010. Our 
estimate also includes increased costs for other agencies to 
comply with new reporting requirements.
    Intergovernmental and private-sector impact: H.R. 3774 
contains no intergovernmental or private-sector impact as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove; 
and Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *
PART III--EMPLOYEES

           *       *       *       *       *       *       *

SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *

CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

           *       *       *       *       *       *       *

 SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT 
IN THE SENIOR EXECUTIVE SERVICE

           *       *       *       *       *       *       *

Sec. 3393. Career appointments

  (a) * * *
  (b) Each agency shall establish one or more executive 
resources boards, as appropriate, the members of which shall be 
appointed by the head of the agency from among employees of the 
agency or commissioned officers of the uniformed services 
serving on active duty in such agency. In establishing an 
executive resources board, the head of the agency shall, to the 
extent practicable, ensure diversity of the board and of any 
subgroup thereof or other evaluation panel related to the merit 
staffing process for career appointees, by including members of 
racial and ethnic minority groups, women, and individuals with 
disabilities. The boards shall, in accordance with merit 
staffing requirements established by the Office, conduct the 
merit staffing process for career appointees, including--
          (1) * * *

           *       *       *       *       *       *       *

  (c)(1) The Office shall establish one or more qualifications 
review boards, as appropriate. It is the function of the boards 
to certify the executive qualifications of candidates for 
initial appointment as career appointees in accordance with 
regulations prescribed by the Office. Of the members of each 
board more than one-half shall be appointed from among career 
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the 
professional knowledge of public management and knowledge of 
the appropriate occupational fields of the intended appointee. 
Consideration should also be given to improving diversity by 
including members of racial and ethnic minority groups, women, 
and individuals with disabilities on qualifications review 
boards.

           *       *       *       *       *       *       *

              ADDITIONAL VIEWS OF RANKING MEMBER TOM DAVIS

    The purpose of this legislation is to promote diversity 
within the ranks of the Senior Executive Service (SES). This 
proposal would establish within the Office of Personnel 
Management a Senior Executive Service Resource Office to 
identify ways to improve the professionalism and diversity of 
the SES. It would also require each agency to ensure, to the 
extent practicable, the diversity of any new Executive Resource 
Board or any subgroup of an Executive Resource Board. In 
addition, this legislation would require each agency to create 
a plan to enhance and maximize opportunities for the 
advancement and appointment of minorities, women, and 
individuals with disabilities in the agency to the Senior 
Executive Service.
    Promoting diversity within the Senior Executive Service is 
a laudable goal and it is clear that agencies--working hand in 
hand with the Office of Personnel Management--are taking steps 
to improve diversity in the SES. However, although the GAO 
recently found that percentages of women and minorities in the 
SES have increased since 2000, the overall number of women and 
minorities in the SES remains low.
    The reforms listed above will likely have some effect on 
improving diverse hiring practices within the SES. But creating 
a large, talented, purposefully trained pool of applicants 
would have a much greater and more positive effect on diversity 
within the SES. This bill does very little to actually ensure 
that candidates from every sector of American society are 
appropriately trained with the high level leadership and 
executive skills the SES was designed to harness.
    Furthermore, the reforms in H.R. 3774 only address one area 
of weakness in the SES system The Senior Executive Service was 
created to be an elite cadre of federal employees and managers 
specially equipped with skills and experience in the areas of 
leadership, management, vision, and creativity. SES employees 
must demonstrate a unique understanding of the challenges 
agencies face and be equipped to respond with excellent 
executive leadership.
    Congress should be trying to create an environment within 
SES which fosters excellence. Congress should look at the pay 
compression issues facing the Senior Executive Service, expand 
SES employees' access to training, and take steps to make the 
SES a more coveted career path for young federal employees. 
Congress must identify other ways to improve the SES while 
promote diversity at the same time.

                                                         Tom Davis.

                                  
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