NASA Workforce Flexibilities: H.R. 1085 and S. 610, 108th Congress
Released: 2004-01-16T00:00:00

Introduction and Background

Legislation is pending in both the House of Representatives and the Senate to provide variouspersonnel flexibilities to the National Aeronautics and Space Administration (NASA).

Two bills were introduced in March 2003. In the House, Representative Sherwood Boehlert introduced H.R. 1085 , the NASA Flexibility Act of 2003, on March 5, 2003, and it wasreferred to the House Committees on Government Reform and Science. The Science Committeeconducted a hearing on H.R. 1085 on March 12, 2003, and its Subcommittee on Space andAeronautics marked up the bill on June 26, 2003. The subcommittee forwarded H.R.1085, as amended, to the full committee, by voice vote the same day. Representative BartGordon, Ranking Democrat on the subcommittee, opposed the bill. According to a ScienceCommittee Democratic Membership news release, Representative Gordon said that he is"disappointed that we didn't wait for the Columbia Accident Investigation Board to report beforemarking up NASA workforce legislation." He explained his opposition as follows:

On May 13th of this year, all of the members of the Democratic caucus of the Science Committee sent a joint letter to Chairman Boehlert (1) .... In thatletter, we asked him to delay the markup of any NASA workforce legislation until the ColumbiaAccident Investigation Board has reported and the Committee has had a chance to review its findingsand recommendations. Admiral Gehman has said on several occasions that the accidentinvestigation board is examining issues related to NASA's personnel, contractors, and culture as itattempts to ascertain the root causes of the accident. Indeed, Admiral Gehman was quoted inyesterday's Washington Post as saying a "goodly portion of the report, perhaps half," will deal withissues of management at NASA. We should wait to hear what the board concludes before we adoptlegislative provisions that might prove either counterproductive or insufficient to address theunderlying problems identified by the board. (2)

Among Representative Gordon's other concerns are these: that issues affecting all NASA employees be considered, questions why the demonstration project authority is being requested byNASA and how it will be used, and wants to protect the rights of NASA's workers. (3)

On July 22, 2003, the House Committee on Science marked up the bill and ordered it to be reported, as amended, on a 21-14 vote. During mark up, the committee, by a 22-16 roll call vote,agreed to a manager's amendment offered by Representative Boehlert which removed the provisionon voluntary separation incentives (commonly referred to as buyouts), would require NASA'sworkforce plan to address reforms recommended by the Columbia Accident Investigation Board(CAIB), and would require NASA to report any modifications to its workforce plan to Congress andemployees 60 days before implementation. Other amendments agreed to by the committee by voicevote would establish eligibility requirements for the science and technology scholarship program,would require that NASA's workforce plan include safeguards for not compromising the safety orsurvival of any spacecraft or crew, would provide that certain workforce authorities authorized inthe bill would not apply to political appointees, and would express the sense of Congress that NASAconduct a continuing program to recruit members of minority groups for positions in the agency.

Among other amendments considered by the committee were the following.

To remove the provision which would have increased the number of employees that could be covered by a demonstration project. The amendment was defeated on a 20-20 roll callvote.

To enhance NASA's independent safety office directing NASA to address Space Shuttle crew escape; put a moratorium on buyouts until the NASA Administrator certifies thatcritical safety skills will not be lost; and put a moratorium on additional contracting out until NASAhas responded to Congress on the CAIB recommendations. The amendment was ruled non-germaneto the bill and the motion to table the appeal of the ruling of the chair was adopted on a 22-19 rollcall vote.

To establish a requirement for a new strategic resource review for the human spaceflight program. The amendment was withdrawn after assurances from the committee chairmanthat the issue would be addressed in the committee report on the bill. (4)

To establish goals for NASA's human spaceflight program. The amendment was defeated on a 12-18 roll call vote.

To require the National Academy of Public Administration to conduct an independent assessment of NASA's use of existing workforce flexibilities. The amendment wasdefeated on a 9-13 roll call vote.

To reinstate the Minority University and Research Education programs as a Division after it was demoted to program status by NASA. The amendment was defeated on a 12-18roll call vote.

To add a new section to the bill on crew safety. The amendment was ruled non-germane to the bill. (5)

H.R. 1085 was reported ( H.Rept. 108-244 , Part 1) on August 4, 2003. The House Committee on Government Reform was discharged from considering the bill the same day.

According to the Congressional Budget Office (CBO), H.R. 1085 would cost an estimated $70 million dollars over the period FY2004 through FY2008. Specifically, CBO estimatesthe cost at $5 million (FY2004), $11 million (FY2005), $16 million (FY2006), $19 million(FY2007), and $19 million (FY2008). (6)

Commenting on the bill approved by the committee, the chairman, Representative Boehlert said:

H.R. 1085 is a moderate, targeted, careful approach to enable NASA to overcome one of its fundamental, pressing problems. In the next fewmonths, this Committee is going to spend a lot of time figuring out how to address a range of issuesat NASA. Here's something we know how to do right now. It's time toact. (7)

A House Science Committee Democratic Caucus news release stated that the Democrats opposed committee passage of H.R. 1085 . The Ranking Democratic Member,Representative Ralph Hall said:

The process by which we rushed to move this bill, and to defeat a series of amendments that any fair observer would say could only enhance the bill,disappointed and surprised me. I think we are doing too little, compared to what the CAIB mayrecommend, too soon, since we could wait five weeks and come back and do this with the Boardreport in hand. In any event, I am convinced that we will have to revisit all of these issues to builda safer NASA. (8)

In the Senate, Senator George Voinovich introduced S. 610 , the NASA Workforce Flexibility Act of 2003, on March 13, 2003, and it was referred to the Senate Committee onGovernmental Affairs. The committee's Subcommittee on Oversight of Government Management,the Federal Workforce, and the District of Columbia conducted a hearing on human capital at NASAon March 6, 2003. The bill was marked-up by the full committee and ordered to be reported withan amendment in the nature of a substitute on June 17, 2003. The amendment in the nature of asubstitute to the bill, offered by Senators Voinovich and Thomas Carper and further modified by anamendment by Senator Richard Durbin, and agreed to by the committee, included changes whichwould require NASA's workforce plan to discuss the CAIB's workforce recommendations; wouldremove the provision which would have lifted the cap on the number of employees who couldparticipate in a demonstration project at NASA; would provide that no more than 25% of the totalnumber of recruitment, redesignation, relocation, and retention bonuses awarded in any year couldbe awarded to supervisors or management officials; and would add language to restrict exchangeassignments to individuals in scientific and technical positions. S. 610 was reported( S.Rept. 108-113 ) on July 28, 2003. (9)

The CBO estimates that S. 610 would cost $80 million dollars over the period FY2004 through FY2008. Specifically, CBO estimates the cost at $6 million (FY2004), $13 million(FY2005), $18 million (FY2006), $21 million (FY2007), and $22 million (FY2008). (10) The estimatefor S. 610 is higher than that for H.R. 1085 because the Senate bill, asreported, but not as passed, would have authorized an exchange program between NASA and theprivate sector that is not included in the House bill.

In the committee report accompanying S. 610 , Senator Durbin expressed his view that the provision in the bill which would authorize exchange assignments between NASA andprivate sector employees "raises serious concerns about the potential for conflicts of interest." (11) Henoted Senator Voinovich's commitment to address such concerns and said that he was confident ofmaking further progress on the provision prior to consideration of the legislation by the Senate. Senator Daniel Akaka also presented his views in the committee report, stating that, "As Congressprepares to grant new personnel flexibilities to NASA, Congress must provide strong oversight overthe agency's operational, managerial, and safety challenges." (12) Specifically, with regard to theprovision on the exchange assignments, Mr. Akaka believes that

For the [exchange] program to be effective, there must be in place an adequate internal management structure that is transparent andaccountable.

For the proposed exchange program to work there needs to be sufficient safeguards to make certain that the program does not result in workforce shortfalls. NASA should not lose more employees and talent than it gains from the private sector. As such,there should be controls over the proportion and number of private sector and NASA employees whoparticipate in the program.

The provision would benefit from additional safeguards to ensure that contractors do not use the program to gain a competitive advantage in future contractswith NASA. One way to address that concern is to institute a cooling off period whereby contractorsparticipating in the program would be restricted from contracting with NASA for an appropriateperiod of time. Moreover, there need to be assurances that minority owned and small businesseshave the access to participate in the exchange program.

Although S. 610 does not specifically address contract management, I believe that with such heavy reliance on contract personnel, it iscritical that there is effective and strong contract management atNASA. (13)

When the Senate proceeded to the consideration of S. 610 on November 24, 2003, Senator Voinovich, for himself and Senator Carper, offered a substitute amendment (No. 2214) thatwas agreed to by voice vote. The same day, the Senate agreed to the committee amendment, asamended, and passed the bill, as amended by voice vote and without debate. The substituteamendment dropped provisions in S. 610, as reported, that would have authorizedexchange assignments for scientific and technical personnel between private-sector entities andNASA. It also reconciled differences between the H.R. 1085 and S. 610provisions on distinguished scholar appointment authority, annual leave enhancements, andqualifications pay; and added reporting requirements that are similar to those in H.R. 1085.

On April 29, 2003, Representative Tom Davis introduced H.R. 1836 , the Civil Service and National Security Personnel Improvement Act, and it was referred to the HouseCommittees on Armed Services, Government Reform, Science, and Ways and Means. (14) Title III,Subtitle B of the bill includes provisions on personnel flexibilities for NASA which are similar tothose in S. 610 , as introduced. (15) TheGovernment Reform Committee conducted ahearing on H.R. 1836 on May 6, 2003. The committee marked-up the bill and ordered itto be reported, amended, by voice vote on May 7, 2003. H.R. 1836 was reported to theHouse ( H.Rept. 108-116 , part 1) on May 19, 2003. (16)

This report compares H.R. 1085 , (17) as reported to the House, and S. 610 , as passed by the Senate, with current law. Both bills would create a new Chapter 98 in Title5 (Government Organization and Management) of the United States Code to provide enhancedflexibilities for human resources management at NASA. (18) The side-by-side comparison follows theorganization of H.R. 1085.

H.R. 1085 and S. 610 would, among other provisions, provide more remunerative amounts of, and greater flexibility in administering, recruitment, relocation, andretention bonuses; permit term appointments up to six years; and authorize pay up to the VicePresident's salary (currently, $201,600 in January 2004 until enactment of the omnibusappropriations bill, then expected to be $203,000) for critically needed scientific, technical,professional, or administrative personnel. Unlike S. 610, H.R. 1085 would allowa personnel management demonstration project at NASA to cover up to 8,000 employees, rather thanthe up to 5,000 employees permitted under current law.

Both bills ( H.R. 1085 , Section 9814; S. 610 , Section 9813) also would allow the Administrator of NASA to place limited term and limited emergency appointees incareer-reserved positions in the Senior Executive Service (SES). Career-reserved positions arerequired by statute to be filled by career appointees and are designated as such if placing a careerappointee in the position is necessary to ensure impartiality. As of June 30, 2002, NASA had 505SES allocations; 330 of these were career-reserved positions and the remaining were generalpositions which may be filled by a career, noncareer, or limited term appointees. (19)

If enacted, this provision would give the Administrator some additional flexibility in filling career reserved positions, but might also be seen as an encroachment upon the ranks of careerappointments. On the one hand, it is likely that the head of NASA could fill a career-reservedposition more quickly through the appointment of a limited appointee than through the hiring of acareer appointee. However, the exercise of this authority would reduce the number of career-reservedpositions within NASA available to career appointees. Finally, while this provision applies only toNASA, it is possible that, should this section be enacted, other agencies would view it as a precedentand request the same flexibility in filling career- reserved positions.

H.R. 1085 also would permit the Administrator to appoint individuals who are not career appointees in the SES to career-reserved positions. This provision, however, does not use theterms "limited term appointee" or "limited emergency appointee" to refer to an individual whowould receive a temporary appointment. Apparently, H.R. 1085 would establish anothercategory of SES appointee, one that is as yet unnamed and only for NASA. H.R. 1085would be more restrictive than S. 610. Under the House bill, a career-reserved positionwould be vacant for someone other than a career appointee to be appointed to it, and it would belikely that the position would be eliminated within two years. A temporary appointment would beallowed for only two years, with possibility of a one-year extension. The Senate bill would providethe Administrator with broader authority, while H.R. 1085 perhaps would address a veryspecific need (i.e., filling career- reserved positions that might be eliminated within two years).

Other issues that may arise during consideration of the legislation include the following.

With regard to the enhanced IPA authority extending assignments by four years instead of two years ( H.R. 1085 and S. 610 , 5 U.S.C. 9808): Shouldextensions of assignments continue to be reviewed in two-year increments if the proposed four yearextension is adopted?

With regard to the enhanced recruitment, relocation, and retention bonuses ( H.R. 1085 and S. 610 , 5 U.S.C. 9804, 9805) and the annual leaveprovisions (H.R. 1085, 5 U.S.C. 9813; S. 610, 5 U.S.C. 9812): what is uniqueabout NASA that would require these more generous policies for NASA employees? According tothe Office of Personnel Management, the existing recruitment, relocation, and retention bonusauthorities are not being fully utilized by federal agencies. How fully has NASA usedthese?

During the March 6, 2003 Senate subcommittee hearing, Sean O'Keefe, Administrator of NASA, testified as to the reasons NASA is seeking the enhanced human resources managementflexibilities. With regard to the various provisions of the legislation, he said that

[t]he NASA Industry Exchange Program ... introduces a means for NASA to engage in mutually beneficial, collaborate ventures with industry to infuse newideas and perspectives into the Agency, develop new skills within the workforce, and strengthenmission capabilities. Without such authority, talented individuals from industry remain an untappedresource for the Agency since the salaries and benefits of the Federal sector are not competitive withthe compensation packages offered to industry's most talentedworkers.

Enhancing the Intergovernmental Personnel Act authority [which allows for exchanges between the federal government and state and localgovernments, universities, and non-profits] ... will allow individuals from academia or otherinstitutions to continue working in support of long-term projects or programs when the need forcontinuity is critical.

Enhanced recruitment, relocation, and retention bonuses [authority] .... would base bonuses on the higher locality pay salaries, allow greater amounts whencoupled with longer service agreements, and make more flexible payment options available ...[which] could be tailored to the situation at hand, and tie payment of the incentive to actualperformance.

The enhanced annual leave provisions are targeted particularly to mid-career hires, who likely would give up attractive vacation packages to becomefirst-time Federal employees .... These flexibilities help NASA to compete with the compensationpackages available to private sector employers.

The bill's provision to allow a limited number of term appointments to be extended up to six years, rather than four, will enhance its usefulness byaccommodating the length of some NASA programs and projects. In addition, the bill provides thata term employee may be converted to a permanent position in the same line of work without furthercompetition [provided requirements are met] .... Ultimately, it may make the concept of termappointments more attractive to potential applicants and thereby provide a more robust labor poolfor NASA management to consider.

In order to attract world-class talent into NASA's most essential positions [enhanced critical pay authority up to the Vice President's salary is sought which].... will help us to compete in an enormously competitive jobmarket.

Separation incentives (buyouts) are a valuable tool to encourage voluntary attrition ... NASA needs the tools to encourage targeted attrition in areas inwhich the need for certain skills has diminished so that it can recruit and reshape a workforce thatis aligned to current and future mission needs. [The authority to pay a higher amount as a buyout isrequested because the current amount] is not always enough to entice highly paid NASAprofessionals to leave.

The [demonstration project] authority we are seeking would remove the coverage limit [of 5,000 employees] to allow widespread testing of newideas. (20)

The International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE) represents more than 8,000 NASA employees nationwide. In a June 25, 2003 letter toRepresentative Sherwood Boehlert, Chairman of the House Committee on Science, IFPTEannounced that the union was endorsing H.R. 1085 as amended by the Subcommitteeon Space and Aeronautics at its June 26, 2003 mark-up. Union President Gregory J. Junemann wrotethat

IFPTE is especially pleased with the rigorous notification, planning, and monitoring portions of the bill, with the inclusion of financial incentivesreserved almost exclusively for the recruitment and retention of rank and file technical staff. Inaddition, IFPTE applauds you for ensuring that the proposed Industry Exchange Program not beincluded in your bill ... IFPTE believes that such a program, in any form, would seriouslycompromise the agency's independence from the very contractors it mustoversee.

The letter stated that the union "will be looking for acknowledgment of those recommendations that come out of the final report of the Columbia Accident Investigation Board, especially thosepertaining to rectifying management problems at NASA." (21)

The American Federation of Government Employees (AFGE) represents workers at NASA. At a March 12, 2003 House Science Committee hearing, Bobby Harnage, National President ofAFGE, testified about the union's opposition to "most of the human resources proposals containedin this legislation." According to Mr. Harnage:

Many of the proposals contemplated in this legislation have been presented elsewhere as governmentwide changes or earlier in the form of legislationprepared by NASA's political leadership, and have been rejected largely on the grounds that theyundermine merit system principles, that they would exacerbate the federal government's "humancapital" crisis, and that they would create serious conflicts of interests between private sectorinterests and the public good. In addition, they fail to address the root causes of NASA's (and theother executive branch agencies') workforce problems: inadequate salaries, and mindlesscontracting out, privatization, and downsizing. (22)

He stated that "AFGE strongly opposes the implied policy of seeking changes to civil service laws on an agency-by-agency basis." (23)

[author name scrubbed] contributed information on the Senior Executive Service to the report.

Table 1. H.R. 1085 and S. 610 Compared with Current Law

Contributing Policy Analysts