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WikiLeaks Document Releasehttp://wikileaks.org/wiki/CRS-RL31916

February 2, 2009

Congressional Research Service

Report RL31916

Defense Department Original Transformation Proposal:

Compared to Existing Law

Robert L. Goldich and Gary J. Pagliano, Foreign Affairs, Defense, and Trade Division; Barbara L.Schwemle, Government and Finance Division; and Thomas J. Nicola, American Law Division

Updated May 19, 2003

Abstract. In April 2003, the Department of Defense (DOD) sent Congress a proposal entitled DefenseTransformation for the 21st Century Act of 2003. This report summarizes and lists all of the proposals sectionsalong side the relevant provisions in current law, if they exist, that would have been impacted by the proposal.
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Congressional Research ServiceThe Library of Congress

Report for CongressReceived through the CRS Web

Order Code RL31916

Defense Department OriginalTransformation Proposal:

Compared to Existing Law

Updated May 19, 2003

Robert L. Goldich and Gary J. PaglianoSpecialists in National Defense

Foreign Affairs, Defense, and Trade Division

Barbara L. SchwemleAnalyst in American National Government

Government and Finance Division

Thomas J. NicolaLegislative Attorney

American Law Division


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Defense Department Original Transformation Proposal:Compared To Existing Law

Summary

The Department of Defense (DOD) has sent the Congress a major proposal

entitled Defense Transformation for the 21st

Century Act of 2003on April 10, 2003.The complex proposal would have made many changes, and in some cases, majorchanges, in the military personnel and acquisition systems, and in the statutory basisfor much of DODs civilian personnel system. The changes would have affected ina number of titles in the United States Code but primarily in Title 5 (GovernmentOrganization and Employees), and Title 10 (Armed Forces). A number ofcongressional committees have begun action on various parts of this proposal. TheSenate Armed Services Committee reported S. 1050 on May 9 (S.Rept. 108-46), andthe House Armed Services Committee reported H.R. 1588 on May 16 (H.Rept. 108-106); the House Committee on Government Reform reported H.R. 1836 on May 8(ordered to be reported (amended) by voice vote).

This report briefly summarizes and presents all of the sections of the originalDOD proposal in a side by side with the relevant provisions in current law, if theyexist, that would have been affected by the proposal. The idea is to provide a roadmap that relates each section of the proposal to existing law. Provisions from theHomeland Security Act (HSA) of 2002 specific to the Department of HomelandSecurity are separately listed from the rest of the existing law, and are the mostrecently enacted changes to Title 5. The Homeland Security Act represents thebroadest changes in the Title in a number of years. HSA provisions that appliedgovernment-wide are covered under Current Law (Column 2) of the report. TheDOD proposal, if it had been enacted in its entirety, would have resulted insignificantly greater changes in Title 5 than the HSA changes.

The DOD proposal covered a wide spectrum of current law. As a result, anumber of Congressional Research Service (CRS) analysts and attorneys contributedto this report. Most are listed in a Key Policy Staff table at the end of this report.This report will be updated if additional clarification of DODs proposal or relevantcurrent law is warranted.


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Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Title I Personnel Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Subtitle A Transformation of Civilian Personnel (Sections 101-104) . . . 2Subtitle B Transformation of Management of Senior Military

Leadership (Sections 111-123) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Subtitle C Transformation of Military Personnel (Sections 131-137) . . 33

Title II- Acquisition Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Subtitle A Transformation of Acquisition Process (Sections 201-206) . 35Subtitle B-Transformation of Contracting Process (Sections 211-214) . . . 40

Title III Installation Management Transformation (Section 301) . . . . . . . . 42

Title IV Administrative Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Subtitle A Transformation of DOD Organization (Sections 401-405). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Subtitle B Transformation of Appropriations and Budget Process(Sections 411-414) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Subtitle C Transformation of Information Gathering for Congress(Sections 421-422) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Subtitle D Transformation of Management of Naval Vessels(Sections 431-432) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Subtitle E Miscellaneous Provisions (Section 441) . . . . . . . . . . . . . . . . 56

List of Tables

Defense Department Original Transformation Proposal: Compared toExisting Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Key Policy Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57


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1 The DOD proposal can be viewed at:[http://www.defenselink.mil/dodgc/irs/docs/transformation.pdf]

Defense Department

Original Transformation Proposal:Compared To Existing Law

Introduction

In April 2003, the Department of Defense (DOD) sent Congress a proposalentitled, Defense Transformation for the 21st Century Act of 2003.1 The 207-pageproposal would have made many changes, in some cases major changes, in themilitary personnel and acquisition systems, and in the statutory basis for much ofDODs civilian personnel system. The changes would have occurred in a number oftitles in the U.S. Code; but, primarily in Title 5 (Government Organization andEmployees) and Title 10 (Armed Forces). A number of congressional committeeshave begun action on various parts of this proposal. The Senate Armed ServicesCommittee reported S. 1050 on May 9 (S.Rept. 108-46), and the House ArmedServices Committee reported H.R. 1588 on May 16 (H.Rept. 108-106); the HouseCommittee on Government Reform reported H.R. 1836 on May 8 (ordered toreported (amended) by voice vote).

This report summarizes and lists all of the proposals sections along side therelevant provisions in current law, if they exist, that would have been impacted bythe proposal. The idea is to provide the reader with a type of roadmap that would

help relate each aspect of the proposal to existing law. Provisions from theHomeland Security Act (HSA) of 2002 specific to personnel management in theDepartment of Homeland Security are listed separately from the rest of the currentlaw primarily because they are the most recent legislative actions impacting Title 5.HSA provisions that applied government-wide are covered under Current Law(column 2) of the report. HSA provisions also represent the broadest changes in Title5 in a number of years. The DOD proposal, if it had been enacted in its entirety,would have resulted in significantly greater changes in Title 5 than the HSA changes.

Because the DOD proposal covered such a wide spectrum of current law, anumber of Congressional Research Service (CRS) analysts and attorneys contributed

to this report. Most are listed with their subject coverage in a separate table in thisreport. CRS made every effort to be comprehensive in identifying statutes currentlyin effect which would relate to the proposed change in the law. However, there maybe some provision in law which has been inadvertently omitted. This report will notbe updated unless additional clarification of DODs proposal or relevant current lawis warranted.


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Defense Department Original Transformation Proposal: Compared t

The Defense Transformation For the 21st

Century Act Proposed

Current Law

(Except DHS Citations)

H

Title I Personnel Transformation

Subtitle A Transformation of CivilianPersonnel (Sections 101-104)

Sec. 101(a). Department of Defense (DOD)National Security Personnel System.(a) In General. Would amend 5 U.S.C. Part III,Subpart I by adding a new Chapter 99-Department of Defense National SecurityPersonnel System

No similar provision Sec200HuSysAmby De(DH

New 5 U.S.C. 9901 - Definitions.The term director means the Director of theOffice of Personnel Management (OPM); theterm secretary means the Secretary ofDefense.

No similar provision No

New 5 U.S.C. 9902. Establishment of humanresources management system

No similar provision 5 Uhumsys

New 5 U.S.C. 9902(a) - In General.(1) Notwithstanding any other provision of Title5, the secretary could, in regulations prescribedjointly with the director, establish, and fromtime to time adjust, a human resources

No similar provision 5 UDHhavand


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Century Act ProposedCurrent Law

(Except DHS Citations)H

management system for some or all of theorganizational or functional units of DOD.

If the secretary certifies that issuance oradjustment of a regulation, or the inclusion,exclusion, or modification of a particularprovision therein, is essential to the nationalsecurity, the secretary could, subject to thePresidents direction, waive the requirement inthe preceding sentence that the regulation oradjustment be issued jointly with the director.(2) Any regulations established pursuant toChapter 99 would be established as internalrules of departmental procedure, consistent with

5 U.S.C. 553. 5 U.S.C. 553 - Rule making exempts rules of agency or departmental procedure fromFederal Register notice and commentrequirements.

No

Samdepsubco

New 5 U.S.C. 9902(b) - System Requirements.Any system under (a) would (1) be flexible;(2) be contemporary;(3) not waive, modify, or otherwise affect (A) the public employment principles of meritand fitness set forth in 5 U.S.C. 2301, includingthe principles of hiring based on merit, fairtreatment without regard to political affiliationor other non-merit considerations, equal pay for

The provisions of Title 5 that could not bewaived, modified, or otherwise affected are5 U.S.C. 2301 Merit system principles5 U.S.C. 2302 Prohibited personnelpractices

5 URenot


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equal work, and protection of employees againstreprisal for whistleblowing; (B) any provision

of 5 U.S.C. 2302 relating to prohibitedpersonnel practices; (C)(i) any provision of lawreferred to in 5 U.S.C. 2302(b)(1), (8), and (9);or (ii) any provision of law implementing anyprovision of law referred to in 5 U.S.C.2302(b)(1), (8), and (9) by (I) providing forequal employment opportunity throughaffirmative action; or (II) providing any right orremedy available to any employee or applicantfor employment in the public service; (D) anyother provision of 5 U.S.C. Part III (as

described in subsection (c)); or (E) any rule orregulation prescribed under any provision oflaw referred to in this paragraph;(4) ensure that employees could organize,bargain collectively as provided for in Chapter99, and participate through labor organizationsof their own choosing in decisions which affectthem, subject to the provisions of Chapter 99and any exclusion from coverage or limitationon negotiability established pursuant to law; and(5) not be limited by any specific law or

authority under Title 5 that is waivable underChapter 99 or by any provision of Chapter 99 orany rule or regulation prescribed under Title 5that is waivable under Chapter 99, except asspecifically provided for in this section.

useser

doepro


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(5)per

(c) Other Nonwaivable Provisions. The otherprovisions of this part referred to in (b)(3)(D)are (to the extent not otherwise specified in thistitle) (1) Subparts A, E, G, and H of 5 U.S.C.Part III; It adopts current law.

(2) 5 U.S.C. Chapters 34, 45, 47, 57, 72, 73, and79; It adopts current law and

Other protected Title 5 provisions would be:(1) Part III Employees (table of contents ofPart III precedes 5 U.S.C. 2101Subpart A General ProvisionsSubpart E Attendance and LeaveSubpart G Insurance and AnnuitiesSubpart H - Access to Criminal HistoryInformation

(2) 5 U.S.C. Chapters

34 Part-Time Career EmploymentOpportunities (in Subpart B- Employment andRetention)45 Awards for Superior Accomplishments47 Personnel Research Programs andDemonstration Projects57 Travel, Transportation, and Subsistence72 Anti-discrimination; Right to PetitionCongress73 Employees Right to Petition Congress79 Services to Employees

(3) Selected sections of Subpart B -Employment and Retention of Part III -Employees:

5 U.S.C. 3131 The Senior Executive

5No(1)SubRe

(2)45,59


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(3) 5 U.S.C. 3131, 3132(a), 3305(b), 3309,3310, 3311, 3312, 3313, 3314, 3315, 3316,

3317(b), 3318, 3320, 3351, 3352, 3363, 3501,3502(b), and 3504. It adopts current law.

Service; 3132(a) [SES] Definitions andexclusions; 3305(b) - Competitive service;

examinations; when held (3305(b) requiresOPM to hold an examination for a qualifyingcompetitive service position upon applicationof certain preference eligibles during thequarter following the application); 3309 -Preference eligibles; examinations; additionalpoints for; 3310 - Preference eligibles;examinations; guards, elevator operators,messengers, and custodians; 3311 - Preferenceeligibles; examinations; crediting experience;3312 - Preference eligibles; physical

qualifications; waiver; 3313 - Competitiveservice; registers of eligibles; 3314 -Registers; preference eligibles who resigned;3315 - Registers; preference eligiblesfurloughed or separated; 3316 - Preferenceeligibles; reinstatement; and 3317(b) Competitive service; certification fromregisters (the Rule of Three, which requiresOPM to certify enough names from the top ofa register to permit a nominating or appointingauthority to consider at least three names for

each competitive service vacancy, is 3317(a)and not listed as nonwaivable); 3317(b)allows an appointing authority, with OPMapproval, to discontinue certifying forappointment a preference eligible who threetimes has been considered and passed over,

(3)III


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but the preference eligible is entitled to noticeof discontinuance of certification); 3318 -

Competitive service; selection fromcertificates; 3320 Excepted service;government of the District of Columbia;selection; 3351 - Preference eligibles; transfer;physical qualifications; waiver; 3352 Preference in transfers for employees makingcertain disclosures; 3363 Preferenceeligibles; promotion; physical qualifications;waiver; 3501 Definitions and applicationfor the purpose of retention preferences;3502(b) Preference eligibles in the order of

retention preference (3502(b) entitles aqualifying preference eligible with a service-connected disability of 30 percent or more toretention over other preference eligibles);3504 Preference eligibles; retention;physical qualifications; waiver

New 5 U.S.C. 9902(d) Limitations Relatingto Pay(1) Nothing in this section would constituteauthority to modify the pay of any employeewho serves in an Executive Schedule positionunder 5 U.S.C. Chapter 53, Subchapter II.

2) Except as provided for in (1), the totalamount in a calendar year of allowances,

Title 5, Chapter 53 (Pay Rates and Systems),Subchapter II (Executive Schedule Pay Rates)

Same, except for under title 10; 5 U.S.C.5307 - Limitation on certain payments caps

5 UResec(1)pospaya seCh(2)pos


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differentials, bonuses, awards, or other similarcash payments paid under Title 5 to any

employee who is paid under 5 U.S.C. 5376 or5383 or under Title 10 or under othercomparable pay authority established forpayment of Department of Defense seniorexecutive or equivalent employees could notexceed the total annual compensation payable tothe Vice President.

total pay, including all cash payments such asallowances and awards, to the annual rate of

basic pay for level I of the Executive Schedule($171,900 in 2003); however, for those paidunder 5 U.S.C. 5376 Pay for certain seniorlevel positions (including those classifiedabove GS-15, scientific and professionalpositions under 5 U.S.C. 3104, and SES); or5 U.S.C. 5383 Setting individual seniorexecutive pay, the cap is the totalcompensation payable to the Vice Presidentunder 3 U.S.C. 104 - Salary of the VicePresident ($198,600)

10 U.S.C. 1603 Basic pay (DefenseIntelligence Senior Executive Service andIntelligence Senior Level positions)

thecom

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New 5 U.S.C. 9902(e) Provisions to EnsureCollaboration with Employee Representatives

The secretary and OPM Director would berequired to provide a written description of theproposed human resources management systemor adjustments to such system to employee

No similar provision concerning collaborationand development of a new human resourcesmanagement system, but labor organizationshaving national consultation rights inconnection with any agency must be informedof any substantive change in conditions ofemployment proposed by an agency, and must

5 Utheautactlevreccol


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internal rules of department procedure notsubject to review.

5 U.S.C. 553 - Rule making waives FederalRegister notice and comment procedures forinternal agency rules of procedure.

5 U.S.C. 7103(b) - Definitions; applicationauthorizes the president to issue an orderexcluding an agency or subdivision thereof ifthe president determines that either has as aprimary function intelligence,counterintelligence, or national security workand that Chapter 71 procedures cannot be

applied consistent with national security. Thepresident may issue an order with respect toany agency, installation, or activity locatedoutside the 50 states and D.C. if the presidentdetermines the suspension necessary in theinterest of national security.

See

Est

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New 5 U.S.C. 9902(f) Provisions RegardingNational Level Bargaining

Any human resources management systemimplemented or modified under the new title 5,chapter 99 could include DOD employees fromany bargaining unit with respect to which alabor organization was accorded exclusiverecognition. For any such bargaining unit, thesecretary could bargain at a level above thelevel of exclusive recognition Such bargainingwould be binding on all subordinate bargainingunits and DOD and its subcomponents; it would

supersede all other collective bargainingagreements, except as otherwise determined bythe secretary; would not be subject to furthernegotiations for any purpose, except as providedfor by the secretary; and would not be subject toreview or statutory third-party disputeresolution procedures outside DOD, except asotherwise provided in the new chapter 99.

No similar provision with respect to nationallevel bargaining, butsee 5 U.S.C. 7111 -

Exclusive recognition of labor organizations,and 5 U.S.C. 7114 - Representation rights andduties.

5 U.S.C. 7105 - Powers and duties of the[Federal Labor Relations] Authority

NoCh

Emwahumsys

New 5 U.S.C. 9902(g) Provisions Relating toAppellate Procedures. (1) The sense ofCongress would be expressed that (A) DODemployees would be entitled to fair treatment inany appeals; and (B) in prescribing appellateprocedure regulations the secretary shouldensure that these employees should be affordedthe protections of due process; and (ii) toward

Title 5, Chapter 77 - Appellate proceduresgrants right to appeal agency disciplinaryactions to the Merit System Protection Board.

5 Uto AidesubDH

Titpro


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that end, the secretary should be required toconsult with the Merit Systems Protection

Board before issuing any such regulations. (2)Any appellate procedure regulations that relateto any matters within the purview of Chapter 77of Title 5 should (A) be issued only afterconsulting with MSPB; (B) ensure availabilityof procedures that (i) are consistent with dueprocess requirements; and (ii) provide, to themaximum extent practicable, for expeditioushandling of any matters involving DOD; and(C) modify procedures under Chapter 77 onlyinsofar as such modifications are designed to

further the fair, efficient, and expeditiousresolution of matters involving DODemployees.

adjres

New 5 U.S.C. 9902(h) Provisions Related toSeparation and Retirement Incentives

The secretary is authorized to offer (1) earlyretirement to an employee who is at least 50years of age and has completed 20 years ofservice or to an employee of any age who hascompleted 25 years of service; and (2)separation incentive pay of up to $25,000 for aqualifying DOD employee who retires or

5 U.S.C. 8336 - Immediate Retirement(CSRS) and 5 U.S.C. 8414 - Early retirement(FERS)

SecseptheSer

SamP.LReAu


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resigns pursuant to DOD regulations. Anyrecipient of separation pay may not be

reemployed with DOD for 12 months followingreceipt unless the secretary waives thisprohibition on a case-by-case basis. Generally,any such recipient who is reemployed by thefederal government within 5 years must repayDOD the full amount of a separation payment.No O.M. approval would be needed to offerearly retirement or separation pay.

Title 5, Chapter 35 -Retention Preference,Voluntary Separation Incentive Payments,

Restoration, and Reemployment, SubchapterII - Voluntary Separation Incentive Payments(5 U.S.C. 3521-3525) authorizes agencies,with O.M.s approval to make voluntaryseparation incentive payments of up to$25,000 to eligible employees who retire orresign.

SepRe

andoccdowexe

SamP.Lgovapp

New 5 U.S.C. 9902(i) Provisions Relating to

Reemployment. An annuitant who becomesemployed in a position within DOD wouldcontinue to receive an annuity, but would not beconsidered an employee for purposes ofChapters 83 ( CSRS) or 84 (FERS) of Title 5.The reemployed annuitant would not accrueadditional CSRS or FERS retirement creditduring this period of reemployment.

5 U.S.C. 8344 - Annuities and pay on

reemployment (CSRS) and 5 U.S.C. 8468 -Annuities and pay on redeployment (FERS)generally require that the amount of anannuity be deducted from pay received by areemployed annuitant, but an annuitant who isreemployed for more than one year is eligiblefor a supplemental annuity for the period ofreemployment at retirement.

No

No sunset provision No similar provision 5proSec

to iadjmaava


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New 5 U.S.C. 9903. Contracting for personalservices.

No

New 5 U.S.C. 9903(a) - Outside the UnitedStates. Funds available to the Department ofDefense would be available to contract withindividuals for services to be performed outsidethe United States as determined by the secretaryto be necessary and appropriate. Thesecontractors would not be considered employeesof the United States government for purposes ofany law administered by OPM or under anyhuman resources management system

established pursuant to the new chapter 99 oftitle 5. These contracts could be negotiated,their terms prescribed, and the work could beperformed where necessary, without regard tostatutory provisions that relate to negotiating,making, and performing contracts andperforming work in the United States.

See, for example, Title 41, Chapter 6 - ServiceContract Labor Standards.

SecProCo

New 5 U.S.C. 9903(b) - National SecurityMissions. Notwithstanding any other provisionof law, sums made available to the DOD byappropriation or otherwise could be expended as

determined by the secretary to be necessary tocarry out the national security mission of DOD,for personal services contracts, includingpersonal service without regard to limitations ontypes of persons to be employed.

See, for example, 10 U.S.C. 2393 - Prohibitionagainst doing business with certain offerors orcontractors, 10 U.S.C. 2408 - Prohibition onpersons convicted of defense contract related

felonies and related criminal penalty ondefense contractors, and 50 U.S.C. 403j-Central Intelligence Agency; appropriations;expenditures.See also 50 U.S.C. 403j - Central IntelligenceAgency; appropriations; expenditures, which

No


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authorizes sums made available to the CIA byappropriation or otherwise to be expended,

among other things, for personal services,including personal services without regard tolimitations on types of persons to beemployed.

New 5 U.S.C. 9903(c) - Experts andConsultants. - Subject to paragraphs (2) and (3)and notwithstanding provisions of 10 U.S.C.129b, the secretary would be authorized to (A)procure by contract the services of experts andconsultants (or organizations of them), who may

provide such services with or withoutcompensation as determined by the secretary,and may perform such duties as the secretarymay prescribe without being deemed to beemployees of DOD except, at the discretion ofthe secretary, for the purposes of (i) the Ethicsin Government Act of 1978; (ii) Chapter 73 oftitle 5 (Suitability, Security, and Conduct); and(iii) section 27 of the Office of FederalProcurement Policy Act; and (B) pay travelexpenses of individuals, includingtransportation and per diem in lieu ofsubsistence while such individuals travel fromtheir homes of places of business to official dutystations and return, as may be authorized bylaw. (2) To procure the services of experts orconsultants (or an organization of them), the

5 U.S.C. 3109 - Employment of experts andconsultants generally limits temporarycontract services to one year and pay fortemporary and intermittent contract services tothe daily equivalent rate of pay to the highestallowed in 5 U.S.C. 5332 (the General

Schedule).

10 U.S.C. 129b - Experts and Consultants;authority to procure services of generallyprovides that authority should be exercised inaccordance with 5 U.S.C. 3109.

SecProIntdevprointe

conU.Slim

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secretary would be required to determine that(A) such procurement is advantageous to the

United States; and (B) these services cannot beprovided adequately by DOD; 3 [the proposalcopy we have been given does not have aparagraph 3 of 9903(c), only paragraphs 1 and2].

New 5 U.S.C. 9903(d) - Implementation.Implementation of this section would be at thesecretarys sole, exclusive, and unreviewablediscretion.


New 5 U.S.C. 9904. Attracting highly qualifiedexperts.

No

New 5 U.S.C. 9904(a) In General. TheSecretary could carry out a program using theauthority provided in (b) in order to attracthighly qualified experts in needed occupations,as determined by the secretary.

P.L. 105-261, sec. 1101 (1998) (5 U.S.C.3104(a) note) - Defense Advanced ResearchProjects Agency Experimental PersonnelManagement Program for Technical Personnelgranted the Secretary of Defense for five yearsexperimental special management authority tofacilitate recruitment of eminent experts inscience and engineering for the Defense

Advanced Research Projects Agency.

No

New 5 U.S.C. 9904(b) - Authority. Under theprogram, the secretary could (1) appointpersonnel from outside the civil service anduniformed services (as such terms are defined in

5 U.S.C. 3104 - Employment of speciallyqualified scientific and professional personnel

5 U.S.C. 3104(b) note. Similar, but special

No


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5 U.S.C. 2101) to positions in DOD withoutregard to any provision of this title governing

the appointment of employees to positions inDOD;(2) prescribe the rates of basic pay for positionsto which employees are appointed under (1) atrates not in excess of the maximum rate of basicpay authorized for senior-level positions under 5U.S.C. 5376, as increased by locality-basedcomparability payments, notwithstanding anyprovision of this title governing the rates of payor classification of employees in the executivebranch; and

(3) pay any employee appointed under (1)payments in addition to basic pay within thelimit applicable to the employee under (d)(1)below.

appointment authority is limited to scientistsand engineers and not more than 20

scientific and engineering positions in theDefense Advanced Research ProjectsAgency. Same authority to prescribe basicrate of pay, but no authority to increase basicpay by locality-based comparability payments.

5 U.S.C. 3324 - Appointments to positionsclassified above GS-15 (generally requiresOPM approval)

5 U.S.C. 3325 - Appointments to scientific

and professional positions (generally requiresOPM approval of qualifications)

5 U.S.C. 3326 - Appointments of retiredmembers of the armed services in theDepartment of Defense (imposes certainrequirements on appointments of a retiredarmed services member in the period within180 days immediately following retirementfrom the armed services) (proposed for repeal,see sec. 404)

5 U.S.C. 5376 - Pay for certain senior- levelpositions generally limits pay to not less than120 percent of the minimum basic pay rate forGS-15 and not greater than basic pay rate forlevel IV of the Executive Schedule.


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5 U.S.C. 5377- Pay authority for criticalpositionsgenerally limits the maximum basic

rate to level I of the Executive Schedule.

See 5 U.S.C. 9502 - Pay authority for criticalpositions and 5 U.S.C. 9503 Streamlinedcritical pay authority [in the Internal RevenueService] which allows pay for up to the salaryof the Vice President.

New 5 U.S.C. 9904(c) - Limitation on Term ofAppointment. (1) Except as provided in (2), theservice of an employee under an appointment

made pursuant to this section may not exceed 5years.(2) The secretary could, in the case of aparticular employee, extend the period to whichservice is limited under (1) by up to oneadditional year if the secretary determines thatsuch action is necessary to promote DODsnational security missions.

5 U.S.C. 3104(c) note. Term of initialappointment limited to 4 years with up to a 2year extension

No

New 5 U.S.C. 9904(d) - Limitations onAdditional Payments. (1) The total amount ofthe additional payments paid to an employee

under this section for any 12-month periodcould not exceed the least of the followingamounts: (A) $50,000 in FY 2004, which couldbe adjusted annually thereafter by the secretary,with a percentage increase equal to one-half ofone percentage points less than the percentage

5 U.S.C. 3104 note. Similar, but additionalpayments may not exceed the least of (A)$25,000; (B) the amount equal to 25 percent

of the employees annual rate of basic pay;(C) the amount of the limitation applicable fora calendar year under 5 U.S.C. 5307(a). Samewith respect to ineligibility for any bonus,monetary award, or other monetary incentive.

Sec970of P

paythaundanywhinc


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by which the Employment Cost Index(published quarterly by the Bureau of Labor

Statistics) for the base quarter of the year beforethe preceding calendar year exceeds theEmployment Cost Index for the base quarter ofthe second year before the preceding calendaryear. (B) The amount equal to 50 percent of theemployees annual rate of basic pay.(2) An employee appointed under this sectionwould not be eligible for any bonus, monetaryaward, or other monetary incentive for serviceexcept for payments authorized under thissection.

5 U.S.C. 5307 - Limitation on certainpayments limits the amount to cash payments

such as allowances and awards plus salary tolevel I of the Executive Schedule ($171,900 in2003), except for some high level positionswhich are limited to the salary of the VicePresident ($198,600).

Title 5, Chapter 45 - Incentive Awards

paySch

possal

New 5 U.S.C. 9904(e) - Savings Provisions. Inthe event that the secretary terminates thisprogram, in the case of an employee who, on theday before the termination of the program, isserving in a position pursuant to an appointmentunder this section (1) the termination of theprogram does not terminate the employeesemployment in that position before theexpiration of the lesser of (A) the period forwhich the employee was appointed; or (B) theperiod to which the employees service islimited under (c), including any extension madeunder this section before the termination of theprogram; and(2) the rate of basic pay prescribed for theposition under this section could not be reduced

Same

SecNoGraandPerprepaytran


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as long as the employee continues to serve inthe position without a break in service.

5 U.S.C. 5363 - Pay retention

New 5 U.S.C. 9905. Employment of olderAmericans.

No

New 5 U.S.C. 9905(a) - In general.Notwithstanding any other provision of law, thesecretary, at his sole, exclusive, andunreviewable discretion, would be authorized toappoint older Americans into positions in theexcepted service for not to exceed two years,provided that (1) any such appointment wouldnot result in (A) the displacement of individualscurrently employed by DOD (including partialdisplacement through reduction of nonovertimehours, wages, or employment benefits); or (B)the employment of any individual when anyother person is in a reduction-in- force statusfrom the same or substantially equivalent jobwithin DOD; and (2) the individual to beappointed is otherwise qualified for the positionas determined by the secretary.

5 U.S.C. 3104 - Employment of speciallyqualified scientific and professional personnel

5 U.S.C. 3320 - Excepted service; governmentof the District of Columbia; selection

5 U.S.C. 3323 - Automatic separation;reappointment; redeployment of annuitants

No

New 5 U.S.C. 9905(b) - Effect on Existing

Retirement Benefits. Notwithstanding any otherprovision of law, employment pursuant to thisauthority would not have the effect of reducingany annuity, pension, social security payment,retired pay, or other similar payment as a resultof such employment that the appointee may bereceiving.

5 U.S.C. 8344 - Annuities and pay on

redeployment (Civil Service RetirementSystem) and 5 U.S.C. 8468 - Annuities andpay on redeployment (Federal EmployeesRetirement System) generally require adeduction from the pay of a reemployedannuitant equal to the amount of an annuity;42 U.S.C. 403 - Reduction of insurance

No


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benefits (section 203 of the Social SecurityAct) requires a reduction of social security

benefits for an individual under age 65. In2003, the social security benefit of such anindividual is reduced by $1 for each $2 ofearnings in excess of $11,520.

5 U.S..C. 5532, which formerly required anoffset for the amount of military retired pay,has been repealed.

New 5 U.S.C. 9905(c) - Extension ofAppointment. Notwithstanding subsection (a)which authorizes initial appointment for notmore than two years, the secretary would beauthorized to extend an appointment of an olderAmerican for up to an additional two years ifthe employee possesses unique knowledge orabilities that are not otherwise available toDOD.


New 5 U.S.C. 9905(d) - Definition. The termolder American in the section would be

defined as any citizen of the United States whois at least 55 years of age.


New 5 U.S.C. 9906. Special pay and benefitsfor certain employees outside the United States.The secretary could provide to certain civilianemployees of DOD assigned to activities

22 U.S.C. 3963 establishes the ForeignService (FS) pay schedule. 22 U.S.C. 3965,the Senior FS schedule. 5 U.S.C. 5925authorizes a pay differential of up to 25% over

No


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outside the United States and designated by thesecretary for the purposes of this subsection

(1) allowances and benefits (A) comparableto those provided by the Secretary of State tomembers of the Foreign Service under chapter 9of title I of the Foreign Service Act of 1980 orany other provision of law; or (B) comparable tothose provided by the Director of CentralIntelligence to personnel of the CentralIntelligence Agency (CIA); and(2) special retirement accrual benefits anddisability in the same manner provided for bythe CIA Retirement Act and in section 18 of the

CIA Act of 1949.

basic pay where living conditions aresubstantially below standards in the

Continental US, and an additional 15% forpersonnel who agree to serve at any of 40designated hardship posts for an additional 3years. 5 U.S.C. 5928 authorizes a differentialup to 25% of base pay where personnel safetyis threatened by civil insurrection, civil war,terrorism, or wartime conditions.

50 U.S.C. 403e et seq., the CIA Act, providesthe Director of Central Intelligence (DCI) withauthority to pay transportation and moving

expenses, including those of dependents, toCIA personnel stationed outside of thecontinental United States, including expensesof authorized home leave.

New 5 U.S.C. 9906(a). Special pay and benefitsfor certain employees outside the United States.The secretary could provide to certain civilianemployees of DOD assigned to activitiesoutside the United States and designated by thesecretary for the purposes of this subsection (1) allowances and benefits (A) comparableto those provided by the Secretary of State tomembers of the Foreign Service under chapter 9of title I of the Foreign Service Act of 1980 orany other provision of law; or (B) comparable tothose provided by the Director of Central

10 U.S.C. 1605 - Benefits for certainemployees assigned outside the United Statesare similar, but authorizes providingallowances and benefits from more statutorysources and makes this authority effectiveonly to the extent appropriations are availablefor this purpose.

22 U.S.C. 3963 establishes the ForeignService (FS) pay schedule. 22 U.S.C. 3965,the Senior FS schedule. 5 U.S.C. 5925authorizes a pay differential of up to 25% over

No


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Intelligence to personnel of the CentralIntelligence Agency (CIA); and

(2) special retirement accrual benefits anddisability in the same manner provided for bythe CIA Retirement Act and in section 18 of theCIA Act of 1949. Authority to pay thesebenefits is not limited to extent appropriationshave been provided.

basic pay where living conditions aresubstantially below standards in the

Continental US, and an additional 15% forpersonnel who agree to serve at any of 40designated hardship posts for an additional 3years. 5 U.S.C. 5928 authorizes a differentialof up to 25% of base pay where personnelsafety is threatened by civil insurrection,civil war, terrorism, or wartime conditions.

50 U.S.C. 403e et seq., the CIA Act, providesthe Director of Central Intelligence (DCI) withauthority to pay transportation and moving

expenses, including those of dependents, toCIA personnel stationed outside of thecontinental United States, including expensesof authorized home leave.

50 U.S.C. 403r - Special annuity computationrules for certain employees service abroadgenerally allow higher annuity rates foroverseas service.

Sec. 101(b). Impact on Department of DefenseCivilian Personnel. - (1) Any exercise ofauthority under the new Chapter 99 of Title 5,including under any system established undersuch chapter, would have to be in conformancewith the requirements of this subsection. (2) Noother provision of the act, or any provisionmade by it, should be construed or applied in a

No similar provision SecCoproexcU.Sthethe


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manner so as to limit, supersede, or otherwiseaffect provisions of section 9906, except to the

extent that it does so by specific reference tosection 9906.

Sec. 101(c) of the DOD Proposal ConformingAmendments would repeal:

(1) sec. 6 of the Civil Service MiscellaneousAmendments Act of 1983 (P.L. 98-224, 98 Stat.49), as amended;

(2) sec. 342 of the National DefenseAuthorization Act for Fiscal Year 1995 (P.L.103-337, 108 Stat. 2721), as amended;

Sec. 6 of P.L. 98-224 Authority to ContinueDemonstration Project authorized the Dept.of the Navy to continue operation of thedemonstration project authorized by 5 U.S.C.4703, at the Naval Weapons Center, ChinaLake, Calif., and at the Naval Ocean SystemsCenter, San Diego, Calif., until Sept. 30,1990, without regard to 5 U.S.C. 4703(d)(1),which limits each demonstration project to notmore than 5,000 individuals and terminates itbefore the end of the 5 year period after theproject takes effect.

Sec. 342 of P.L.103-337 Extension andExpansion of Authority to Conduct PersonnelDemonstration Projects extended the timeperiod for operating demonstration projectsreferred to in sec. 6 of P.L. 98-224, andgranted personnel demonstration authority tothe Secretary of Defense, with approval of the

OPM Director, to expand this authority toDOD laboratories that the DOD Secretary hasdesignated as science and technologyreinvention laboratories. Limitations on thenumber of personnel, the duration, andnumber of projects set out in 5 U.S.C. sec.


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(3) sec. 1101 of the Strom Thurmond NationalDefense Authorization Act for Fiscal Year 1999(P.L. 105-261; 112 Stat. 2139), as amended; and

4703(d) were waived and made sec. 342 ratherthan 5 U.S.C. 4703 appropriate authority to

extend and expand these projects.

Sec. 1101 of P.L. 105-261 DefenseAdvanced Research Projects AgencyExperimental Personnel ManagementProgram for Technical Personnel (5 U.S.C.3104 note) authorizes the Secretary ofDefense, during the five year period beginningon the date of enactment (Oct. 17, 1998) on anexperimental basis to (1) appoint scientistsand engineers from outside the civil service

and uniformed services to not more than 20scientific and engineering positions in theDefense Advanced Research Projects Agencywithout regard to any provision of title 5, U.S.Code, governing the appointment ofemployees in the civil service, (2) pay rates ofbasic pay for positions to which theseemployees are appointed at rates not in excessof the maximum rate of basic pay authorizedfor senior level positions under 5 U.S.C. 5376,notwithstanding any provision of title 5

governing rates of pay or classification ofemployees in the executive branch; and (3)pay any employee so appointed payments inaddition to basic pay of the least of (A)$25,000; (B) the amount equal to 25 percentof the employees rate of basic pay; or (C) theamount of the limitation applicable for a


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(4) sec. 4308 of the National DefenseAuthorization Act for Fiscal Year 1996 (P.L.104-106; 110 Stat. 669) as amended.

calendar year under 5 U.S.C. 5307(a)(1). Anemployee appointed under this authority is not

eligible for any bonus, monetary award, ormonetary incentive for service except forthese additional payments.

Such an appointment may not exceed 4years, but the secretary may extend the periodof service by up to 2 years. Authority to makethese appointments terminates 5 years afterthe date of enactment and after termination (1)no appointment may be made under it; (2) arate of basic pay for such appointment maynot take effect; and (3) no period of service

may be extended.In the case of an employee who isappointed pursuant to this authority, (1)terminating the program does not terminatethe employees employment before the lesserof (A) the period for which the employeewas appointed; (B) the period to which theemployees service is limited, including anyextension; and (2) the rate of basic pay maynot be reduced for so long as the employeecontinues to serve in the position.

Sec. 4308 of P.L. 104-106 DemonstrationProject Relating to Certain PersonnelManagement Policies and Proceduresencouraged the DOD Secretary to commencepersonnel demonstration projects foracquisition workforce at DOD, under


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authority of 5 U.S.C. 4703, with somemodifications.

Sec. 102. Defense Acquisition WorkforceImprovement Act (DAWIA) streamlining.Would amend Title 10, U.S.C. to create a newchapter 87A entitled Defense AcquisitionWorkforce Streamlining. This new sectionwould implement statutory changes in themanagement of the training, career accession,and career education for the acquisition,technology, and logistics workforce,and codifysuch changes in the U.S. Code.

Title 10, U.S.C., Chapter 87, Sections 1701-1764DAWIA is the basis for nearly all of DODseducation, training and career developmentprograms for the acquisition workforce.Congress enacted DAWIA in the FY1991Defense Authorization Act. It is codified inChapter 87, Title 10, U.S.C., and has beenamended several times since enactment.

No

Sec. 103. Priority placement of displacedcivilian employees.Would add, to Title 10, U.S.C., a new section1599e, entitled Defense priority placementsystem.

Gives Secretary of Defense authority toestablish one or more programs to providedisplaced DOD civilian employees with priorityconsideration for other DOD civilian employeepositions. Prohibits appeals of any personnel

actions undertaken pursuant to such programsoutside of DOD.

No such program or similar statutes currentlyexist in Title 10, but Title 5, U.S.C.,particularly the subchapters of chapter 35,U.S.C., Retention Preference, Restoration, andReemployment, are relevant. Subchapter I,Retention Preference, 5 U.S.C. 3501 et seq.;and Subchapter V, Removal, Reinstatement,and Guaranteed Placement in the SeniorExecutive Service, 5 U.S.C. 3591 et seq.,contains numerous provisions related toplacement of employees after they lose their

positions.

No

Sec. 104. Establishment of auxiliaries withinthe military departments to coordinate volunteerefforts.

No directly-related existing statutes. Ch. 909,title 10, U.S.C., 10 U.S.C. 9441 et. seq., CivilAir Patrol; and ch. 23, title 14, U.S.C., 14

No


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Would add, to Title 10, U.S.C., a new chapter1015, entitled Auxiliaries.

Auxiliaries would be volunteers who wouldassist military departments in performing non-combat functions. Systematizes DODmanagement of volunteers.

U.S.C. 821 et seq., Coast Guard Auxiliary, arethe statutory bases for the two existing

auxiliary components of the armed forces.

Subtitle B Transformation ofManagement of Senior Military Leadership(Sections 111-123)

Sec. 111. Equivalency of pay for service chiefsof staff and combatant commanders.Specifies an identical rate of basic pay for

certain senior officers (Chairman of the JointChiefs of Staff, Vice Chairman of the JointChiefs of Staff, Chief of Staff of the Army,Chief of Naval Operations, Chief of Staff of theAir Force, Commandant of the Marine Corps,Commandant of the Coast Guard, andCombatant Commanders). Rate of basic paywould be 110% of the basic pay for an officer inthe O-10 grade with more than 26 years ofservice. Adds Combatant Commanders to thelist of people eligible for special rule for

computation of retired pay.

No specific provision comparable. 37 U.S.C.203 prescribes rates of basic pay inaccordance with 37 U.S.C. 1009; JCS

Chairmans and service chiefs pay firstspecified in Subsection 1(1), PL 85-422. ViceChairmans pay included by Subsection1314(d)(3), PL 100-180, 101 Stat. 1019 at1176. 10 U.S.C. 1406 (1) contains special rulefor computation of retired pay for formerChairman and Vice-Chairman of the JointChiefs of Staff, service Chiefs, and ServicesSenior enlisted people.

No

Sec. 112. Length of service for senior leaders ofthe military departments.Specifies a four-year term for Service Chiefs,which the President may extend as he deemsnecessary.

10 U.S.C. 3033(a), 5033(a), 5043(a), and8033(a) specify a four-year term for servicechiefs, with one four-year extension allowedin time of war or natl emergency declared byCongress.

No


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Sec. 113. Length of service for the Chairmanand Vice Chairman of the Joint Chiefs of Staff.Specifies a two year term for the Chairman andVice-Chairman of the Joint Chiefs of Staff;allows the President to reappoint for additionaltwo year terms as he deems necessary.

10 U.S.C. 152 prescribes a two-year term forJCS Chairman, beginning October 1, of odd-numbered years; may be reappointed twice inpeace time and may be reappointed withoutlimit in time of war. 10 U.S.C. 154 prescribessame for Vice Chairman except for October 1,provision.

No

Sec. 115. Eliminate mandatory terms of servicefor certain general and flag staff officers.Eliminates statutorily specified terms of office,including maximum terms of service (usuallyfour years), for certain general and flag officers.These officers would instead serve at thepleasure of the President or the Secretary of therelevant military department.

Numerous sections of title 10 U.S.C.identified in draft bill prescribe mandatoryterms for each services legal, chaplain, andhealth professional career branches, and someothers.

No

Sec. 116. Lateral reassignment of certaingenerals and admirals.Generally, would allow the President orSecretary of Defense to reassign officers alreadyconfirmed by the Senate in the grade of O-9 or

O-10 to a position of the same grade without theneed for a subsequent Senate confirmation.Reassignments to positions established in law(e.g. the Chairman of the Joint Chiefs of Staffand Service Chiefs) would continue to requireSenate approval.

10 U.S.C. 601 requires officers in grades O-9and O-10 who are renominated to anotherposition in the same grade to be confirmed bythe Senate in the new position.

No


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Sec. 117. Eliminate distribution quotas forgeneral and flag officers serving in grades of O-

7 and O-8.Eliminates requirement that at least 50% ofgeneral and flag officers serve in grades O-7 andO-8. Does not affect caps on officers in O-9and O-10 grades.

10 U.S.C. 525(a) requires at least, 50% of allgeneral/flag officers to be O-7s and no more

than 15.7% - 17.5% to be O-9s and O-10s,thus requiring the remainder to be O-8s bydefault.

No

Sec. 118. Extending age limits for active dutygeneral and flag officers.Sets normal mandatory retirement age for allregular general and flag officers at 68, butallows the Secretary of Defense to defer such

retirement to age 72. Does not affect currentmandatory retirement age for officers in gradesO-6 and below.

With minor exceptions, 10 U.S.C. 125requires active duty general/flag officers toretire at 62, with some extensions to 64.

No

Sec. 119. Extending age limits for Reserve andnational Guard general and flag officers.Sets normal mandatory retirement age for allreserve general and flag officers at 68, butallows the Secretary of Defense to defer suchretirement to age 72. Does not affect currentmandatory retirement age for officers in gradesO-6 and below. Eliminates requirement that

reserve officers in grades O-7 and O-8 beremoved after a specified number of years ofservice or time in grade. Eliminates limitationson term of office for the chiefs of the ArmyReserve, Naval Reserve, Marine Corps Reserve,and Air Force Reserve.

Sections 14510-512 of title 10 U.S.C. requirereserve general/flag officers in grade O-7 toretire at 60; O-8, 62; others holding particularpositions at 64. 10 U.S.C. 10502 and 10505require age 64 retirement for senior officers inthe National Guard Bureau. 10 U.S.C. 14508generally requires the removal of reserveofficers in paygrades O-7 and O-8 after

reaching 30 or 35 years of service,respectively, or five years in grade, although asmall number of waivers are authorized.10 U.S.C. 3038, 5143, 5144, and 8038 requirefour-year terms with one reappointmentallowed for the Army, Naval, Marine Corps,and Air Force Reserve chiefs respectively.

No


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Sec. 120. Eliminate mandatory retirement ofactive duty general and flag officers after 30

years of service.

10 U.S.C. 635 requires active dutygeneral/flag officers in grade O-7 to retire at

30 years of service; 10 U.S.C. 636 requiresretirement at 35 years for O-8s, 38 years forO-9s, and 40 years for O-10s.

No

Sec. 121. More flexible retirement rules formilitary officers.Specifies that, in order to be eligible to retire ata given grade, regular and reserve officers ingrades O-5 and O-6 must serve in that grade forthree years; although the Secretary of Defense

may authorize the military departments toreduce this period to two years. Allows officersin grades O-7 to O-10 to be retired in thehighest grade in which the officer servedsatisfactorily without a time in graderequirement. Retirements of officers in the O-9and O-10 grades must be approved by theSecretary of the military department concerned,and concurred with by the Secretary of Defenseor a presidentially designated and Senateconfirmed civilian official in the Office of theSecretary of Defense. Eliminates therequirement that the Secretary of Defensecertify the satisfactory service of these officersin writing to Congress and the President

10 U.S.C. 1370 requires, with minorexceptions, officers to serve at least 3 years ingrade; requires that Secretary of Defense tocertify in writing to Congress and thePresident that officers in grades O-9 and O-10have served on active duty satisfactorily in

those grades before being allowed to retire inthem; and prescribes detailed criteria formeeting the time-in-grade requirementsspecified.

No


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Sec. 122. More flexible computation of retiredpay for officers and senior enlisted members.

Allows officers in grades O-7 and above, whohave more than 30 years of service, to exceedthe 75% limit on the retired pay multiplierspecified in 10 U.S.C. 1409, for serviceperformed after October 1, 2003. Allows theSecretary of Defense to establish conditionsunder which enlisted personnel in grades E-8and E-9 with more than 30 years of service canreceive similar additional credit.

Chapter 71 of title 10 U.S.C., 10 U.S.C. 1401et seq., limits retired pay to 75% of the retired

pay computation base.

No

Sec. 123. Eliminated retired pay limit

applicable to general and flag officers.

No existing law imposes the limit directly.

Limit derives from 37 U.S.C. 203(a)(2),which limits active duty basic pay to thatspecified for Level III of the federal civilianExecutive Schedule.

No


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Subtitle C Transformation of MilitaryPersonnel (Sections 131-137)

Sec. 131. Measuring personnel strengths.Would change the way Congress authorizesmilitary personnel strength levels from endstrength that is, the personnel strengthwhich exists on September 30th, the end of thefiscal year to average strength that is,the average personnel strength level maintainedover the course of the fiscal year.

10 U.S.C. 115 requires active duty, full-timeNational Guard duty, and Selected Reservepersonnel strength at the end of each fiscalyear to be authorized by Congress.

No

Sec. 132. Access to secondary schools bymilitary recruiters.

Modifies 10 U.S.C. 503(c) so that only privatesecondary schools which a verifiable religiousobjection to service in the Armed Forces areexempt from the sections requirements ongranting recruiter access to secondary schoolstudents and student information.

10 U.S.C. 503(c) requires secondary schoolsto provide military recruiters with the same

access to its students as provided to post-secondary institutions or employers, and toprovide access to student information such asnames, addresses, and phone numbers.Exceptions to this policy are made for schoolswith verifiable religious objections to servicein the Armed Forces and schools whosegoverning body has formally adopted a policyto deny recruiters access to their students andstudent information. 20 U.S.C. 7908 containsa similar policy, but only provides an

exception for religious objections.

No

Sec. 133. Waiver of military educationeligibility and post-education placementrequirements.Changes the Secretary of Defenses authority to

All officers selected for promotion tobrigadier general/rear admiral (lower half)[grade O-7], are required by 10 U.S.C. 663 toattend a Capstone professional military

No


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waive Capstone requirements for certainofficers. Allows him to waive the requirement

for officers whose proposed selection forpromotion is based primarily on career fieldspecialty for which joint requirements do notexist. Eliminates the statutory requirementsspecifying the proportion of officers who mustgo to a joint assignment immediately aftergraduation from a joint PME school.

education (PME) course to prepare them forjoint military operations as general/flag

officers. Waivers are allowed for a variety ofreasons, including for officers whose proposedselection for promotion is based primarily onscientific and technical qualifications forwhich joint requirements do not exist.Subsection 663(d) requires a certainproportion of joint specialty officers whograduate from a joint PME course to go to ajoint assignment immediately after graduation.

Sec. 134. Length of joint duty assignments.

Specifies that the length of a joint dutyassignment will mirror the standard tour lengththe Secretary of Defense establishes for eachinstallation or location. Specifies that duty atqualified Joint Task Force Headquartersrequires one year of total service. Norequirements for controlling average tourlength.

10 U.S.C. 664 prescribes the length of joint

duty assignments, generally not less than twoor three years, and specifies the conditionsunder which the Secretary of Defense canmodify the length of these assignments.Requires the Secretary of Defense to ensurethat average tour length meets specifiedduration.

No

Sec. 135. Ordering reserve componentmembers to active duty to respond to disasters,accidents, or catastrophes.

Expands reasons under which 10 U.S.C. 12304can be used to activate reservists to includeproviding assistance to an emergency involvingserious disasters, accidents, or catastrophes.

10 U.S.C. 12304 authorizes up to 200,000reservists to be on active duty at any one timeif called other than in time of war or national

emergency under its provisions, with a limitof 270 days for any reservist so activated.Domestic uses are not allowed except formatters attendant to the use or threatened useof a weapon of mass destruction, or a seriousterrorist attack or threatened attack

No


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Sec. 136. Improved involuntary access toreserve component members for enhanced

training.Allows the military departments to involuntarilyorder reservists to active duty for up to 90 days with the consent of the governor in the caseof National Guard units and personnel toperform additional training related to meetingdeployment standards.

None. 10 U.S.C. 10147 specifies, in effect,longstanding equivalents of one weekend per

month and not less than 14 days of annualtraining per year, or 30 days of annual trainingonly.

No

Sec. 137. Medical and dental screening formembers of selected reserve units alerted formobilization.

Allows DOD to provide medical and dentalscreening and care to members of the SelectedReserve assigned to a unit that has been alertedfor possible mobilization.

Existing law 10 U.S.C. 1074a(d) provides, forthe Army reserve components only, medicaland dental screening for those units scheduled

for deployment within 75 days aftermobilization.

No

Title II- Acquisition Transformation

Subtitle A Transformation of AcquisitionProcess (Sections 201-206)

Sec. 201. Repeal requirements for majordefense acquisition programs.This section would repeal the six statutoryrequirements for manpower estimates related tomajor defense acquisition programs, and is partof DODs desire for greater flexibility,

10 U.S.C. 2430 - Defines what is a majordefense acquisition program.10 U.S.C. 2431 - Weapons development andprocurement schedules.10 U.S.C. 2432 - Selected Acquisition reports10 U.S.C. 2433 - Procurement Unit Costs

No


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efficiency, and freedom to manage. 10 U.S.C. 2435 - Baseline descriptions.10 U.S.C. 2440 - Technology and Industrial

Base Plans10 U.S.C. 2434 - Independent Cost Estimates;Operation Manpower Requirements.

Sec. 202. Applicability of Clinger-Cohen Actto equipment integral to a weapon or weaponsystem and DOD information technologymanagement.Permits Secretary of Defense to exempt thisequipment from oversight and managementcontrols of Clinger-Cohen Act contained in 40

U.S.C. 11302, 11303, 11312, 11313, and 11316.

Reassigns DOD CIO system duplicationelimination responsibility contained in 10U.S.C. 22239(a) to Secretary of Defense andeliminates inventory requirement.

Repeals all provisions of Sec. 811, PL 106-398.

Existing provisions of Clinger-Cohen Act: Inaccordance with 40 U.S.C. 11103, whichdefines national security informationtechnology (IT) systems, 40 U.S.C. 11302-03requires detailed oversight of nationalsecurity-related information technologyacquisition by OMB. 40 U.S.C. 11312-13

specifies various guidelines for maximizingefficiency and transparency in the ITacquisition and utilization process; 40 U.S.C.11316 requires senior federal managers tocarefully monitor agency IT management.

10 U.S.C. 2223(a) requires DOD ChiefInformation Officer (CIO) to eliminateduplicate IT systems in DOD and to maintaindetailed inventory of DOD IT systems.

Sec. 811, PL 106-398, requires DOD CIO toclosely monitor, and approve in stages, majorDOD IT acquisition efforts; requires, throughFY2003, DOD to notify congressional defensecommittee when the CIO redesignates amajor IT system as something else; andrequires annual reports on DOD

No


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Repeals annual report requirement of Sec. 351,PL 107-314.

implementation of these statutes to thosecongressional defense committees.

Sec. 351, PL 107-314, requires an annualreport to Congress on high and low-threshold IT programs.

Sec. 203. Inflation adjustment of acquisition-related dollar thresholds.This section increases the FARCs authority bygranting it the authority to adjust statutorydollar thresholds for acquisition of goods or

services in consultation with, or using escalationrates determined by Director, OMB, dating fromthe original enactment of the threshold to thedate of the adjustment. Agency heads aregranted similar authority in statutes exclusive oftheir agencies.

40 U.S.C. 276(a) is exempted from the authorityto adjust thresholds.

41 U.S.C. 351 et seq. is exempted from theauthority to adjust thresholds.

41 U.S.C. 421 established the FederalAcquisition Regulatory Council (FARC) ascomposed of the Federal Procurement PolicyAdministrator, Secretary of Defense, NASAAdministrator, and GSA Administrator, or

their designated representatives. The FARCpublishes the Government-wide FederalAcquisition Regulation (FAR) and ensuresthat agency procurement regulations conformto the FAR.

40 U.S.C. 276(a) (Davis-Bacon Act) statesthat provisions of law dealing with wages paidon federal work shall apply to all contracts onpublic buildings and works generally, whetheradvertised for bid or cost-plus.

41 U.S.C. 351 et seq. (Services Contract Act),Service Contract Labor Standards, specifiesprovisions to be included in each federalservice contract in excess of $2,500 that usesnon-federal employees.

No


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Sec. 204. Security interest exception todomestic source or content requirements.

Amends Subtitle A, Part IV, Subchapter V,Chapter 148 of Title 10 by adding Section2539(c), Waiver of domestic source or contentrequirements.

10 U.S.C. 2533a. Requirement to buy certainarticles from American sources with some

exceptions. Also known as the BerryAmendment.

No

Sec. 205. Clarification of Buy Americanrequirements.Amends 10 U.S.C. 2533a to allow DOD toexpedite the procurement of items needed tosupport contingency operations, and insituations of unusual and compelling urgency.

10 U.S.C. 2533a (see above) and 41 U.S.C.10a through 10d (known as the Buy AmericanAct).

No

Sec. 206. Amendment of cataloging andstandardization provisions.10 U.S.C. 2451(b) item identificationrequirement is eliminated.

Eliminates 10 U.S.C. 2541(c) DODstandardization requirement. Permits DOD toadopt international or domestic voluntarystandards, to develop DOD standards only whennecessary, and to reduce number of sizes andkinds of similar items.

Strikes 10 U.S.C. 2452(2),(3), and (4). DirectsSecretary to participate with industry to developvoluntary standards and use them in lieu ofgovernment specifications and standards to themaximum extent.

10 U.S.C. 2451(b) requires that each DODitem recurrently used be identified by a singleunique catalog identification from purchasethrough disposal.

10 U.S.C. 2541(c) requires that DOD, to thehighest extent practicable, standardize thespecification, packaging, and preserving, andefficiently inspect, test, and accept supplyitems.10 U.S.C. 2452 (2), (3), and (4) require the

Secretary of Defense to direct the use of thesupply catalog for all supply functions fromdetermination of requirements to finaldisposal, direct the screening and descriptionof all items and the publication of the catalog,and to liaise with industry advisory groups oncatalog and standardization programdevelopment.

No


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Renames bureau and services as defense

agencies in 10 U.S.C. 2452(6).

Deletes 10 U.S.C. 2452(7).

Repeals 10 U.S.C. 2453 and 2454.

Eliminates 10 U.S.C. 2457(d).

Repeals 10 U.S.C. 2458

10 U.S.C. 2452 (6) directs the Secretary toassign responsibility for parts of the catalog to

military services and DOD bureaus andservices.

10 U.S.C. 2452 (7) directs the Secretary toestablish time schedules for the assignmentsunder (6), above.

10 U.S.C. 2453 and 2454 direct the Secretaryof Defense to distribute parts of the supplycatalog as they are produced and authorizeshim/her to add new items and delete old items

as necessary. Only items listed in the catalogmay be routinely purchased, and new items,once purchased, must be added to the catalog.

10 U.S.C. 2457(d) requires a biennial report toCongress on progress in standardizingequipment with NATO members, includingefforts undertaken and procurements made.

10 U.S.C. 2458 requires the Secretary ofDefense to issue a single, uniform policy on

the management of DOD inventory items, andto consider efforts to eliminate waste andachieve cost savings in the performanceevaluations of procurement and inventorymanagers.


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Subtitle B-Transformation of ContractingProcess (Sections 211-214)

Sec. 211. Contracting for Security Guards andFirefighting Services. Section 2465 of title 10,United States Code, would be repealed.Repeals current law by allowing DOD toconduct competitions for security guard andfirefighting functions at military installations inthe continental United States.

10 U.S.C. 2465 - Prohibition on contracts forperformance of firefighting or security-guardfunctions generally denies obligation orexpenditure of DOD appropriated funds forfirefighting and security guard functions atany military installation or facility.

No

Sec. 212. Contracts with small business.Amends current law to establish annual goalsfor DOD small business contracts, and creates a

new section,(10 U.S.C. 2382. Contracts with smallbusinesses.)

10 U.S.C. 2381. Contracts: regulations forbids.

10 U.S.C. 2323. Contract goal for smalldisadvantaged business and certaininstitutions of higher education.

15 U.S.C. 544. Awards or contracts.Public Law 105-135, Small BusinessReauthorization Act of 1997, Sections 411through 414.

No

Sec. 213. Performance based logistics: specialprocurement and funding authority.

Grants the Secretary of defense the authority toenter into long-term performance based logisticscontracts, to improve the weapons procurementprocess, efficiency, and costs.

10 U.S.C. 2464. Core logistics capabilities.10 U.S.C. 2466. Limitations on the

performance of depot-level maintenance ofmaterial.10 U.S.C. 2469. Contracts to performworkloads previously performed by depot-level maintenance and repair workloadsformerly performed at certain militaryinstallations.31 U.S.C. 1301. Application.

No


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Sec. 214. Depot-related legislative reform.Amends 10 U.S.C. 2466 which allows no more

than half (50%) of the funds made available in agiven fiscal year, to a military department, fordepot-maintenance and repair work to becontracted out for performance by the privatesector. The amendment would set a minimumof half (50%) of the depot maintenance andrepair workloads to be performed by federalgovernment personnel or at government-ownedfacilities.

10 U.S.C. 2460. Definition of depot-levelmaintenance and repair.

10 U.S.C. 2466. Limitations on theperformance of depot-level maintenance ofmaterial.

10 U.S.C. 2469. Contracts to performworkloads previously performed by depot-level maintenance and repair workloadsformerly performed at certain militaryinstallations.

10 U.S.C. 2469a. Use of competitiveprocedures in contracting for performance ofdepot-level maintenance and repair workloadsformerly performed at certain militaryinstallations.

10 U.S.C. 2470. Depot-level activities of theDepartment of Defense: authority to competefor maintenance and repair workloads of otherfederal agencies.

10 U.S.C. 2472. Management of depotemployees.

10 U.S. C. 2474. Centers of Industrial andTechnical Excellence.

No


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Title III Installation ManagementTransformation (Section 301)

Sec. 301(a) would create a new chapter (2015-2019) in Part III of Subtitle A of Title 10 in theU.S. Code (Training Generally). This newchapter would modify existing statutesindirectly for certain military and relatedactivities, provisions that are sometimes referredto as waivers, for military readiness activitiesfrom certain requirements under four federal

environmental statutes that are codified underother titles: Endangered Species Act (16 U.S.C.1531 et seq.); Clean Air Act (42 U.S.C. 7401 etseq.); Solid Waste Disposal Act (42 U.S.C.6901 et seq.); Comprehensive EnvironmentalResponse, Compensation, and Liability Act(CERCLA, 42 U.S.C. 9601 et seq.).Consequently, the language of these fourstatutes would not be amended directly. Thisnew chapter would apply to the Department ofDefense and the U.S. Coast Guard.

While there is no exact comparable provisionin current law, national security exemptionsmay be obtained on a case-by-case basis underthe Endangered Species Act [16 U.S.C.1536(j)]; Clean Air Act [42 U.S.C. 7418(b)];Solid Waste Disposal Act [42 U.S.C.6961(a)]; and CERCLA [42 U.S.C. 9620(j)].

No

2015. Purpose of this chapter. Explains theAdministrations justification for the need tomodify certain environmental requirements topreserve the use of lands, marine areas, andairspace withdrawn or designated for militaryuse, in order to ensure military readiness.

No comparable provision in current law. No


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2016. Definitions. Would create statutorydefinitions for (1) military readinessactivities, (2) combat or combat use, and(3) Department (as used in 10 U.S.C.101(a)(6) to mean the Department of Defenseand the U.S. Coast Guard).

10 U.S.C. 101 (Armed Forces) does notinclude a comparable definition for militaryreadiness activities or combat or combatuse.

No

2017. Military readiness and the conservation

of protected species. (a) would determine thatan Integrated Natural Resource ManagementPlan (INRMP) for military lands whichaddresses endangered or threatened species andtheir habitat provides special managementconsiderations or protection and wouldtherefore preclude designation of such lands ascritical habitat under the Endangered SpeciesAct.

16 U.S.C. 670a (Sikes Act Improvement Act)requires the Secretary of each militarydepartment to cooperate with the U.S. Fishand Wildlife Service and state fish andwildlife agencies in order to prepare andimplement an INRMP for each militaryinstallation in the United States withsignificant natural resources. Each plan isto reflect a mutual agreement on integratingan installations mission with requirements toconserve, protect, and manage naturalresources.

16 U.S.C. 1532(5)(A) (Endangered SpeciesAct) defines critical habitat as geographicalareas that are (i) essential to the

conservation of an endangered or threatenedspecies, and (ii) which may require specialmanagement considerations or protection.Can include areas that are currentlyunoccupied by an endangered or threatenedspecies if such areas include habitat that isessential to the conservation of the species.

No


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16 U.S.C. 1533 specifies the criteria that theSecretary of the Interior or the Secretary of

Commerce must use to determine whether aspecies is endangered or threatened.

(b) would specify that precluding thedesignation of critical habitat for an endangeredor threatened species does not remove therequirement for agency consultations underSection 7(a)(2) of the Endangered Species Act.

16 U.S.C. 1536(a)(2) requires each federalagency to consult with the Secretary of theInterior or the Secretary of Commerce toinsure that any action carried out by thatagency is not likely to jeopardize thecontinued existence of any endangered orthreatened species or result in the destructionor adverse modification of critical habitat for

such species, unless an exemption for theaction has been granted by an EndangeredSpecies Committee, composed of theSecretary of the Army and the heads ofseveral federal environmental and naturalresource agencies.

No

2018. Conformity with State Implementation

Plans for air quality. Would provide that theDepartment shall not be prohibited fromconducting military readiness activities underthe Clean Air Acts conformity requirement, but

requires that the Department estimate thequantity of emissions caused by the readinessactivities, notify the state air quality agencybefore engaging in such activities, and ensureconformity within 3 years of the date newactivities begin. In assessing non-attainment ofseveral standards, the Environmental Protection

42 U.S.C. 7506 (Clean Air Act) prohibitsfederal departments or agencies fromengaging in or supporting activities that do notconform to a State Implementation Plan (SIP)approved under the Clean Air Act. SIPs

inventory emissions and identify the measuresthat will be taken to control them in order toattain six national air quality standards inareas identified as nonattainment.

No


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Agency will consider whether an area wouldattain or maintain required air quality, but for

DOD military readiness activities.

2019. Range management and restoration.(a)(1)(A) would create a new statutorydefinition of solid waste that would alter thedefinition provided in the Solid Waste DisposalAct. The new definition would categorizemilitary munitions as solid waste if they havebeen deposited on an operational range andthey (i) are removed for reclamation, treatment,or disposal; (ii) are recovered, collected, and

disposed of by burial or land filling; (iii)migrate off an operational range and are notaddressed under CERCLA; or (iv) are depositedoff an operational range and are not promptlyrendered safe or retrieved.

42 U.S.C. 6901(Solid Waste Disposal Act)defines solid waste in general terms, but doesnot explicitly address military munitions. Amore specific definition is provided in federalregulation (40 CFR 266.202). Theseregulations identify the conditions underwhich military munitions are considered solidwaste, and are therefore subject to wastemanagement and disposal requirements under

the Solid Waste Disposal Act. There isdisagreement as to the extent to which thecurrent regulations differ from theAdministrations proposed statutory language.

42 U.S.C. 9601 et seq. (CERCLA) specifiesrequirements for response to contaminationfrom the release of hazardous substances intothe environment, as well as the liability forsuch response.

No

(a)(1)(B)would specify that military munitions

defined as solid waste shall be subject toprovisions in the Solid Waste Disposal Act,including but not limited to provisionsregarding employee protection (Section 7002)and citizen suits (Section 7003).

42 U.S.C. 6971 (Section 7002) prohibits an

employer from firing or discriminating againstan employee who reveals a solid or hazardouswaste violation that an employer hascommitted. Also specifies reportingrequirements regarding information needed toprotect the occupational safety and health ofworkers at solid and hazardous waste

No


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management and disposal facilities.

42 U.S.C. 6972 (Section 7003) permits citizensuits against any person who violatesrequirements under the Solid Waste DisposalAct.

(a)(2) would establish statutory language toexclude military munitions from the definitionof solid waste if they (i) are used in trainingactivities, or research, development, testing andevaluation of military munitions, weapons, orweapons systems and remain on an operational

range; or (ii) are promptly rendered safe orretrieved when deposited off of an operationalrange; or (iii) are recovered, collected, anddestroyed on-range in the process of clearing arange, but not including the on-range burial ofunexploded ordnance and contaminants whenthe burial is not a result of product use.

As noted above, 42 U.S.C. 6901 defines solidwaste in general terms, but does not explicitlyaddress military munitions. Rather, theconditions when military munitions areconsidered solid waste are specified in federalregulation (40 CFR 266.202).

No

(a)(3) would specify that military munitions onan operational range would be subject toapplicable legal requirements once the rangeceases to be operational.

No compara

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