II 118th CONGRESS 1st Session S. 3488 IN THE SENATE OF THE UNITED STATES December 13, 2023 Mr. Brown (for himself and Mr. Rubio ) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend title 51, United States Code, to provide for a NASA public-private talent program, and for other purposes.

1. Short title This Act may be cited as the NASA Talent Exchange Program Act . 2. NASA public-private talent program Section 20113 of title 51, United States Code, is amended by adding at the end the following new subsection: (n) Public-Private talent program (1) Assignment authority Under policies and procedures prescribed by the Administration, the Administrator may, with the agreement of a private sector entity and the consent of an employee of the Administration or of such entity, arrange for the temporary assignment of such employee of the Administration to such private sector entity, or of such employee of such entity to the Administration, as the case may be. (2) Agreements (A) In general The Administrator shall provide for a written agreement among the Administration, the private sector entity, and the employee concerned regarding the terms and conditions of the employee’s assignment under this subsection. The agreement shall— (i) require that the employee of the Administration, upon completion of the assignment, will serve in the Administration, or elsewhere in the civil service if approved by the Administrator, for a period equal to twice the length of the assignment; (ii) provide that if the employee of the Administration or of the private sector entity (as the case may be) fails to carry out the agreement, such employee shall be liable to the United States for payment of all expenses of the assignment, unless such failure was for good and sufficient reason, as determined by the Administrator; and (iii) contain language ensuring that such employee of the Administration or of the private sector entity (as the case may be) does not improperly use predecisional or draft deliberative information that such employee may be privy to or aware of related to Administration programing, budgeting, resourcing, acquisition, or procurement for the benefit or advantage of the private sector entity. (B) Treatment An amount for which an employee is liable under subparagraph (A) shall be treated as a debt due the United States. (C) Waiver The Administrator may waive, in whole or in part, collection of a debt described in subparagraph (B) based on a determination that the collection would be against equity and good conscience and not in the best interests of the United States, after taking into account any indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee concerned. (3) Termination An assignment under this section may, at any time and for any reason, be terminated by the Administration or the private-sector entity concerned, as the case may be. (4) Duration (A) In general An assignment under this subsection shall be for a period of not less than three months and not more than two years, renewable up to a total of three years. An employee of the Administration may not be assigned under this subsection for more than a total of three years inclusive of all such assignments. (B) Extension An assignment under this subsection may be for a period in excess of two years, but not more than three years, if the Administrator determines that such assignment is necessary to meet critical mission or program requirements. (5) Policies and procedures (A) In general The Administrator shall establish policies and procedures relating to assignments under this subsection. (B) Elements Policies and procedures established pursuant to subparagraph (A) shall address the following: (i) The nature and elements of written agreements with participants in assignments under this subsection. (ii) Criteria for making such assignments, including the needs of the Administration relating thereto. (iii) How the Administration will oversee such assignments, in particular with respect to paragraphs (2)(A)(iii), (7)(C), and (7)(D). (iv) Criteria for issuing waivers. (v) How expenses under paragraph (2)(A)(ii) would be determined. (vi) Guidance for participants in such assignments. (vii) Mission Directorate, Office, and organizational structure to implement and manage such assignments. (viii) Any other necessary policies, procedures, or guidelines to ensure such assignments comply with all relevant statutory authorities and ethics rules, and effectively contribute to one or more of the Administration’s missions. (C) Inherently governmental activities Assignments made under this subsection shall not have responsibilities or perform duties or decision making regarding Administration activities that are inherently governmental, pursuant to subpart 7.500 of title 48, Code of Federal Regulations, and Office of Management and Budget review. (6) Status of Federal employees assigned to private sector entities (A) In general An employee of the Administration who is assigned to a private sector entity under this subsection shall be considered, during the period of such assignment, to be on detail to a regular work assignment in the Administration for all purposes. The written agreement established under paragraph (2)(A) shall address the specific terms and conditions related to such employee’s continued status as a Federal employee. (B) Certification In establishing a temporary assignment of an employee of the Administration to a private sector entity, the Administrator shall certify that such temporary assignment shall not have an adverse or negative impact on the mission of the Administration or organizational capabilities associated with such assignment. (7) Terms and conditions for private sector employees An employee of a private sector entity who is assigned to the Administration under this subsection— (A) shall continue to receive pay and benefits from the private sector entity from which such employee is assigned and shall not receive pay or benefits from the Administration, except as provided in subparagraph (B); (B) is deemed to be an employee of the Administration for the purposes of— (i) chapters 73 and 81 of title 5; (ii) sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18, except that such section 209 does not apply to any salary, or contribution or supplementation of salary made pursuant to subparagraph (A) of this paragraph; (iii) sections 1343, 1344, and 1349(b) of title 31; (iv) the Federal Tort Claims Act and any other Federal tort liability statute; (v) the Ethics in Government Act of 1978; and (vi) chapter 21 of title 41; (C) shall not have access to any trade secrets or any other nonpublic information which is of commercial value to the private sector entity from which such employee is assigned; (D) may not perform work that is considered inherently governmental in nature, in accordance with paragraph (5)(C); and (E) may not be used to circumvent— (i) section 1710 of title 41, United States Code; or (ii) any limitation or restriction on the size of the Administration’s civil servant workforce. (8) Additional requirements The Administrator shall ensure that— (A) the normal duties and functions of an employee of the Administration who is assigned to a private sector entity under this subsection can be reasonably performed by other employees of the Administration without the permanent transfer or reassignment of other personnel of the Administration; (B) normal duties and functions of such other employees of the Administration are not, as a result of and during the course of such temporary assignment, performed or augmented by contractor personnel in violation of section 1710 of title 41; and (C) not more than two percent of the Administration’s civil servant workforce may participate in an assignment under this subsection at the same time. (9) Conflicts of interest The Administrator shall implement a system to identify, mitigate, and manage any conflicts of interests that may arise as a result of an employee’s assignment under this subsection. (10) Prohibition against charging certain costs to the Federal Government A private-sector entity may not charge the Administration or any other agency of the Federal Government, as direct or indirect costs under a Federal contract, the costs of pay or benefits paid by the entity to an employee assigned to the Administration under this subsection for the period of the assignment concerned. (11) Considerations In carrying out this subsection, the Administrator shall take into consideration— (A) the question of how assignments under this subsection might best be used to help meet the needs of the Administration with respect to the training of employees; and (B) where applicable, areas of particular private sector expertise, such as cybersecurity. (12) NASA reporting (A) In general Not later than April 30 of each year, the Administrator shall submit to the Committee on Science, Space, and Technology of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report summarizing the implementation of this subsection. (B) Contents Each report under subparagraph (A) shall include, with respect to the annual period to which such report relates, the following: (i) Information relating to the total number of employees of private sector entities assigned to the Administration, and the total number of employees of the Administration assigned to private sector entities. (ii) A brief description and assessment of the talent management benefits evidenced from such assignments, as well as any identified strategic human capital and operational challenges, including the following: (I) An identification of the names of the private sector entities to and from which employees were assigned. (II) A complete listing of positions such employees were assigned to and from. (III) An identification of assigned roles and objectives of such assignments. (IV) Information relating to the durations of such assignments. (V) Information relating to associated pay grades and levels. (iii) An assessment of impacts of such assignments on the Administration workforce and workforce culture. (iv) An identification of the number of Administration staff and budgetary resources required to implement this subsection. (13) Federal ethics Nothing in this subsection shall affect existing Federal ethics rules applicable to Federal personnel. (14) GAO reporting (A) In general Not later than three years after the date of the enactment of this subsection, the Comptroller General of the United States shall submit to the Committee on Science, Space, and Technology of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report summarizing the implementation of this subsection. (B) Contents The report under subparagraph (A) shall include the following: (i) A review of the implementation of this subsection, according to law and the Administration policies and procedures established for assignments under this subsection. (ii) Information relating to the extent to which such assignments adhere to best practices relating to public-private talent exchange programs. (iii) A determination as to whether there should be limitations on the number of individuals participating in such assignments. (iv) Information relating to the extent to which the Administration complies with statutory requirements and ethics rules, and appropriately handles potential conflicts of interest and access to nonpublic information with respect to such assignments. (v) Information relating to the extent to which such assignments effectively contribute to one or more of the Administration’s missions. (vi) Information relating to Administration resources, including employee time, dedicated to administering such assignments, and whether such resources are sufficient for such administration. .