S 1160

112th CONGRESS
1st Session

S. 1160

To improve the administration of the Department of Energy, and for other purposes.

IN THE SENATE OF THE UNITED STATES

June 8, 2011

Mr. BINGAMAN (for himself and Ms. MURKOWSKI) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources


A BILL

To improve the administration of the Department of Energy, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Department of Energy Administrative Improvement Act of 2011'.

SEC. 2. DEFINITION OF SECRETARY.

    In this Act, the term `Secretary' means the Secretary of Energy.

SEC. 3. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.

    (a) In General- Part C of title VI of the Department of Energy Organization Act (42 U.S.C. 7251 et seq.) is amended by adding at the end the following:

`SEC. 664. FUTURE-YEARS DEPARTMENT OF ENERGY PROGRAM.

    `(a) In General- At or about the time the budget of the President is submitted to Congress for each year under section 1105(a) of title 31, United States Code, the Secretary shall submit to Congress a future-years Department of Energy program (including associated annexes) reflecting the estimated expenditures and proposed appropriations included in the budget.

    `(b) Fiscal Year- Any future-years Department of Energy program submitted under subsection (a) shall cover--

      `(1) the fiscal year with respect to which the budget is submitted; and

      `(2) at least the 4 succeeding fiscal years.

    `(c) Consistent Amounts-

      `(1) IN GENERAL- The Secretary shall ensure that amounts described in paragraph (2)(A) for any fiscal year are consistent with amounts described in paragraph (2)(B) for that fiscal year.

      `(2) AMOUNTS- Amounts referred to in paragraph (1) are the following:

        `(A) The amounts specified in program and budget information submitted to Congress by the Secretary in support of expenditure estimates and proposed appropriations in the budget submitted to Congress by the President under section 1105(a) of title 31, United States Code, for any fiscal year, as indicated in the future-years Department of Energy program submitted pursuant to subsection (a).

        `(B) The total amounts of estimated expenditures and proposed appropriations necessary to support the programs, projects, and activities of the Department of Energy included pursuant to section 1105(a)(5) of title 31, United States Code, in the budget submitted to Congress under that section for any fiscal year.

    `(d) Management Contingencies- Subject to subsection (c), nothing in this section prohibit the inclusion in the future-years Department of Energy programs of amounts for management contingencies.'.

    (b) Conforming Amendment- The table of contents in the first section of the Department of Energy Organization Act (42 U.S.C. 7101) is amended by adding at the end of the items relating to part C of title VI the following:

      `Sec. 664. Future-Years Department of Energy program.'.

SEC. 4. OTHER TRANSACTIONS AUTHORITY.

    (a) In General- Section 646 of the Department of Energy Organization Act (42 U.S.C. 7256) is amended by striking subsection (g) and inserting the following:

    `(g) Authority To Enter Into Other Transactions-

      `(1) IN GENERAL- In addition to any other authority granted to the Secretary to enter into procurement contracts, leases, cooperative agreements, grants, and certain arrangements, the Secretary may enter into other transactions with public agencies, private organizations, or other persons on such terms as the Secretary considers appropriate to further functions vested in the Secretary, including research, development, or demonstration projects.

      `(2) ADVANCE PAYMENTS- Notwithstanding any other provision of law, the Secretary may exercise authority provided under paragraph (1) without regard to section 3324 of title 31, United States Code.

      `(3) RELATIONSHIP TO OTHER LAW- The authority of the Secretary under paragraph (1) shall not be subject to--

        `(A) section 9 of the Federal Nonnuclear Energy Research and Development Act of 1974 (42 U.S.C. 5908); or

        `(B) section 152 of the Atomic Energy Act of 1954 (42 U.S.C. 2182).

      `(4) PROTECTION OF CERTAIN INFORMATION FROM DISCLOSURE-

        `(A) IN GENERAL- Notwithstanding any other provision of law, disclosure of information described in subparagraph (B) is not required, and may not be compelled, under section 552 of title 5, United States Code, during the 5-year period beginning on the date on which the information is received by the Department.

        `(B) AWARD INFORMATION- The information described in this subparagraph is information in the records of the Department that--

          `(i) was submitted--

            `(I) to the Department as part of a competitive or noncompetitive process with the potential to result in an award to the person submitting the information; and

            `(II) in conjunction with a transaction entered into by the Secretary pursuant to paragraph (1); and

          `(ii) is--

            `(I) a proposal, proposal abstract, and supporting documents;

            `(II) a business plan submitted on a confidential basis; or

            `(III) technical information submitted on a confidential basis.

      `(5) REQUIREMENTS-

        `(A) SELECTION PROCEDURES- In entering into transactions under paragraph (1), the Secretary shall use such competitive, merit-based selection procedures as the Secretary determines in writing to be practicable.

        `(B) DETERMINATION- Before entering into a transaction under paragraph (1), the Secretary shall determine in writing that the use of a standard contract, grant, or cooperative agreement for the project is not feasible or appropriate.

        `(C) COST SHARING- A transaction under paragraph (1) shall be subject to cost sharing in accordance with section 988 of the Energy Policy Act of 2005 (42 U.S.C. 16352).

        `(D) LIMITATION ON DELEGATION- The authority of the Secretary under this subsection may be delegated only to an officer of the Department who is appointed by the President by and with the advice and consent of the Senate and may not be redelegated to any other person.

      `(6) ANNUAL REPORTS- Not later than 1 year after the date of enactment of the Department of Energy Administrative Improvement Act of 2011 and annually thereafter, the Secretary shall submit to Congress an annual report on the transactions entered into by the Secretary pursuant to the authorities provided under this subsection.

      `(7) REPORT-

        `(A) DEFINITION OF NONTRADITIONAL GOVERNMENT CONTRACTOR- In this paragraph, the term `nontraditional Government contractor' has the meaning given the term `nontraditional defense contractor' in section 845(f) of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160; 10 U.S.C. 2371 note).

        `(B) REPORT- Not later than 2 years after the date of enactment of this subparagraph, and 2 years thereafter, the Comptroller General of the United States shall submit to Congress a report describing--

          `(i) the use by the Department of authorities under this section, including the ability to attract nontraditional Government contractors; and

          `(ii) whether additional safeguards are necessary to carry out the authorities.'.

    (b) Implementation-

      (1) IN GENERAL- The final rule of the Department of Energy entitled `Assistance Regulations' (71 Fed. Reg. 27158 (May 9, 2006)) shall be applicable to transactions under section 646 of the Department of Energy Organization Act (42 U.S.C. 7256) (as amended by subsection (a)).

      (2) REGULATIONS- The Secretary may revise, supplement, or replace such regulations as the Secretary determines necessary to implement the amendment made by subsection (a).

SEC. 5. PROTECTION OF RESULTS.

    (a) In General- Subject to subsection (b) and notwithstanding any other provision of law, during a period of not more than 5 years after the development of information in any transaction authorized to be entered into by the Department of Energy, the Secretary may provide appropriate protections against the dissemination of the information, including exemption from subchapter II of chapter 5 of title 5, United States Code.

    (b) Applicable Information- This section applies to information that--

      (1) results from a transaction entered into by the Secretary pursuant to this title or an amendment made by this title; and

      (2) is of a character that would be protected from disclosure under section 552(b)(4) of title 5, United States Code, if the information had been obtained from a person other than an agent or employee of the Federal Government.

SEC. 6. DIRECT HIRE AUTHORITY.

    (a) In General- Notwithstanding sections 3304 and 3309 through 3318 of title 5, United States Code, the Secretary may, upon a determination that there is a severe shortage of candidates or a critical hiring need for particular positions, recruit and directly appoint highly qualified scientists, engineers, or critical technical personnel into the competitive service.

    (b) Exception- The authority granted under subsection (a) shall not apply to positions in the excepted service or the Senior Executive Service.

    (c) Requirements- In exercising the authority granted under subsection (a), the Secretary shall ensure that any action taken by the Secretary--

      (1) is consistent with the merit principles of section 2301 of title 5, United States Code; and

      (2) complies with the public notice requirements of section 3327 of title 5, United States Code.

    (d) Termination of Effectiveness- The authority provided by this section terminates effective on the date that is 2 years after the date of enactment of this Act.

SEC. 7. CRITICAL PAY AUTHORITY.

    (a) In General- Notwithstanding section 5377 of title 5, United States Code, and without regard to the provisions of that title governing appointments in the competitive service or the Senior Executive Service and chapters 51 and 53 of that title (relating to classification and pay rates), the Secretary may establish, fix the compensation of, and appoint individuals to critical positions needed to carry out the functions of the Department of Energy, if the Secretary certifies that--

      (1) the positions--

        (A) require expertise of an extremely high level in a scientific or technical field; and

        (B) the Department of Energy would not successfully accomplish an important mission without such an individual; and

      (2) exercise of the authority is necessary to recruit an individual exceptionally well qualified for the position.

    (b) Limitations- The authority granted under subsection (a) shall be subject to the following conditions:

      (1) The number of critical positions authorized by subsection (a) may not exceed 40 at any 1 time in the Department of Energy.

      (2) The term of an appointment under subsection (a) may not exceed 4 years.

      (3) An individual appointed under subsection (a) may not have been a Department of Energy employee within the 2 years prior to the date of appointment.

      (4) Total annual compensation for any individual appointed under subsection (a) may not exceed the highest total annual compensation payable at the rate determined under section 104 of title 3, United States Code.

      (5) An individual appointed under subsection (a) may not be considered to be an employee for purposes of subchapter II of chapter 75 of title 5, United States Code.

    (c) Notification- Each year, the Secretary shall submit to Congress a notification that lists each individual appointed under this section.

SEC. 8. REEMPLOYMENT OF CIVILIAN RETIREES.

    (a) In General- Notwithstanding part 553 of title 5, Code of Federal Regulations (relating to reemployment of civilian retirees to meet exceptional employment needs), or successor regulations, the Secretary may approve the reemployment of an individual to a particular position without reduction or termination of annuity if the hiring of the individual is necessary to carry out a critical function of the Department of Energy for which the Department has encountered exceptional difficulty in recruiting or retaining suitably qualified candidates.

    (b) Limitations- An annuitant hired with full salary and annuities under the authority granted by subsection (a)--

      (1) shall not be considered an employee for purposes of subchapter III of chapter 83 and chapter 84 of title 5, United States Code;

      (2) may not elect to have retirement contributions withheld from the pay of the annuitant;

      (3) may not use any employment under this section as a basis for a supplemental or recomputed annuity; and

      (4) may not participate in the Thrift Savings Plan under subchapter III of chapter 84 of title 5, United States Code.

    (c) Limitation on Term- The term of employment of any individual hired under subsection (a) may not exceed an initial term of 2 years, with an additional 2-year appointment under exceptional circumstances.

SEC. 9. DEFINITION OF NATIONAL LABORATORY.

    Section 2(3) of the Energy Policy Act of 2005 (42 U.S.C. 15801(3)) is amended by striking subparagraph (P) and inserting the following:

        `(P) SLAC National Accelerator Laboratory.'.

END