IIB 114th CONGRESS 2d Session H. R. 4361 IN THE SENATE OF THE UNITED STATES July 7, 2016 Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs AN ACT To amend section 3554 of title 44, United States Code, to provide for enhanced security of Federal information systems, and for other purposes.

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. I Federal Information Systems Safeguards 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) Information security protocol An agency employee acting in the official capacity of the employee 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 (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. (c) 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. II Eliminating pornography from agencies 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. III Extension of probationary period for career employees 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. 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. IV Senior Executive Service accountability 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, . 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 . 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— (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 . 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 . 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, . 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: 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). 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: VI Senior Executive Service: Expedited Removal 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. 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. 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. 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 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. . 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. V OPM Report on Official Time 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. VI Midnight rule relief 601. Moratorium on midnight rules Except as provided under sections 602 and 603, 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. 602. Special rule on statutory, regulatory, and judicial deadlines (a) In general Section 601 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). 603. Exception (a) Emergency exception Section 601 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 601 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. 604. Judicial review Any person or entity subject to the any midnight rule promulgated in violation of this title is entitled to judicial review. 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. VII Requirement to maintain records 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: 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. (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.

Passed the House of Representatives July 7 (legislative day July 6), 2016. Karen L. Haas, Clerk