H.R. 4361, Government Reform and Improvement Act of 2016

H.R. 4361

Government Reform and Improvement Act of 2016

Date
January 1, 1970 (114th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Wednesday, July 6, 2016, the House will begin consideration of H.R. 4361, the Government Reform and Improvement Act of 2016, under a structured rule. The bill was introduced on January 11, 2016, by Rep. Gary Palmer (R-AL) and was referred to the Committee on Oversight and Government Reform, which ordered the bill to be reported, as amended, on March 1, 2016 by a vote of 21-16.

Bill Summary

H.R. 4361 incorporates the text of seven bills focused on various good government reforms. Specifically, the bill includes:

  • H.R. 4361, the Federal Information Systems Safeguards Act of 2016 (Palmer), as ordered reported by the Committee on March 1, 2016;
  • H.R. 901, the Eliminating Pornography from Agencies Act (Meadows), as ordered reported by the Committee on March 25, 2015;
  • H.R. 3023, to amend title 5, United States Code, to modify probationary periods with respect to positions within the competitive service and the Senior Executive Service (Buck), as reported by the Committee on January 12, 2016;
  • H.R. 4358, the Senior Executive Service Accountability Act (Walberg), as reported by the Committee on April 12, 2016;
  • H.R. 4392, to amend title 5, United States Code, to require that the Office of Personnel Management submit an annual report to Congress relating to the use of official time by Federal employees (Ross), as reported by the Committee on March 1, 2016;
  • H.R 4612, the Midnight Rule Relief Act of 2016 (Walberg), as reported by the Committee on March 1, 2016, with modifications; and
  • H.R. 4921, the Ditto Act of 2016 (Walker), as reported by the Committee on April 14, 2016.

Title I: Includes the text of H.R. 4361 as considered by the Committee to provide that any action taken by the head of an agency to block access to a website for various cybersecurity-related purposes shall not be subject to collective bargaining.

Title II: Includes the text of H.R. 901 to require the Director of the Office of Management and Budget to create guidelines that prohibit access to pornographic or explicit websites from a Federal computer.

Title III: Includes the text of H.R. 3023 to establish a probationary period for positions within the Competitive Service to not be less than two years, and when appropriate, begins on the date that required formal training is completed or a license is granted. In addition, H.R. 3023 ensures that agencies include in vacancy announcements and offers of appointment the terms and conditions of a probationary period.

Title IV: Includes the text of H.R. 4358 to bring accountability to the Senior Executive Service (SES) by: requiring agencies to justify each Senior Executive Services position; extending the probationary period for individuals appointed to the SES from one to two years; eliminating the ability for individuals removed from the SES to retain their pay if appointed to a civil service position; requiring that SES employees receive performance requirements in writing within 30 days before the start of an appraisal period; allowing SES employees to be subject to suspensions (without pay) of less than two weeks in the same manner as other civil service workers and providing agencies with the authority to remove SES employees for cause; giving agency heads the authority to place SES employees facing removal for misconduct on mandatory annual leave; providing heads of agencies with the authority to seek removal or transfer of senior executives based on poor performance or misconduct; and requiring that once every five years, an SES will be reassigned to another SES position.

Title V: Includes the text of H.R. 4392 to require the Office of Personnel Management to annually report on the use of “official time” by Federal employees. Official time is time spent by Federal employees performing representational work for a bargaining unit in lieu of their regularly assigned work.

Title VI: Includes the text of H.R. 4612 to prohibit any agency from proposing or finalizing any midnight rule during a moratorium period unless the rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, or government agencies; or will have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of US-based enterprises to compete with foreign competitors; and have a significant economic impact on a substantial number of small entities. The moratorium period is the day after Election Day through January 20th, and a midnight rule is any agency statement of general applicability and future effect issued during the moratorium period that is intended to have the force and effect of law.

Title VII: Includes the text of H.R. 4921 to require the IRS to maintain any preserved record it obtains for at least three years.

Background

Title I: In a July 8, 2014 decision, the Federal Labor Relations Authority (FLRA) held that agencies’ ability to take action to fulfill their responsibilities under the Federal Information Security Management Act (FISMA) could be subject to collective bargaining rules. In the case, the Department of Homeland Security’s Immigration and Customs Enforcement identified an increase in network infections and privacy compromises due to employees accessing their personnel email from work computers. In response, the agency notified the union and terminated webmail access for the employees.  The union objected, arguing that such action was subject to collective bargaining.  In its decision, the FLRA agreed, holding that the agency could not block webmail access through the agency’s network without providing the union an opportunity to bargain.[1]

The FLRA’s majority analysis found that imprecise wording in FISMA on agencies’ IT security responsibility failed to “demonstrate congressional intent to vest the Agency with sole and exclusive discretion over information security matters.”[2]  H.R. 4361 clarifies that Congress did not intend for cybersecurity to be subject to collective bargaining when it enacted FISMA, by exempting an agency head’s decision to block certain websites for cybersecurity purposes from the FLRA.

After the Office of Personnel Management (OPM) breach in July 2015 that compromised the personally-identifiable information of over 22 million individuals, OPM tightened defenses against future cyberattacks by restricting access to Facebook, Gmail, and other sites on the OPM federal network. This effort to improve security was hindered by union representatives citing a 2014 ruling by the Federal Labor Relations Authority.[3]

According to the bill’s sponsor, “Agencies should not be required to collectively bargain in order to take steps to secure data protecting federal agencies information systems and the personal information of federal employees. The directors of federal agencies have a responsibility to protect their IT systems and they should be able to carry out that responsibility without unnecessary interference. This bill will enhance security of Federal information systems, and help prevent cyberattacks.”[4]

Title II: In September 2013, the Environment Protect Agency (EPA) Office of Environment Information informed the EPA Office of the Inspector General (IG) that an EPA employee had been viewing pornography at work. While investigating, the EPA IG found the employee viewed pornography for an average of 2-6 hours a day while at work, and had 20,000 adult pornographic images on a government-issued laptop. In 2010, the Securities and Exchange Commission OIG provided a summary of investigations between 2005 and 2010 identifying 33 cases of employees, including senior staff, of using work computers to view pornography. Additional cases have been reported at the Department of Housing and Urban Development, the Department of Commerce, the Federal Communications Commission, the General Services Administration, and the National Science Foundation.[5]

According to the bill’s sponsor, “Over the last several months it has become far too obvious that the type of behavior that was first highlighted at the EPA has been discovered over and over again, across a host of agencies. To ignore this issue would not only condone an abuse of taxpayers’ dollars, but also embrace an unhealthy workplace. Today’s action should send a clear message that it is time for zero tolerance of this kind of behavior.”[6]

Title III: An appointment to the competitive service is not considered final until completion of a one-year probationary period while the government evaluates an employee’s job performance to determine in an appointment to the civil service should become final. Before an appointment becomes final, an employee has limited job protections and may not appeal a removal action. After an appointment, an employee receives considerable job protections under the federal merit system.[7]

In addition, the government has a number of positions that are unique and extremely complex, requiring months or years of training or specific licensing or certification requirements. According to the Committee, the one year probationary period does not provide adequate time for supervisors to properly asses the performance of an employee and to make informed conclusions about performance.[8]

Title IV: The Committee on Oversight and Government Reform held several hearings where misconduct by members of the Senior Executive Service was highlighted. As a result, H.R. 4358 enacts reforms to the SES to hold these employees accountable.[9]  Similar legislation, H.R. 5169, passed the House last Congress.

According to the bill’s sponsor, “From the IRS to the VA, the American people have lost trust in the federal government to do the right thing. In many cases, these scandals have been spearheaded or continued by senior executive employees. My bill raises the level of accountability when misconduct occurs and provide greater assurances to the American taxpayer that Washington is being good stewards of their hard-earned dollars.”[10]

Title V: Official time is paid time off from assigned government duties to represent a union or its bargaining unit employees. Federal employees on official time are treated as if they are in duty status when they are engaging in representational activities.  While Federal law permits the use of official time for union representational activities, there are no requirements for agencies to report use of official time by federal employees. The Office of Personnel Management has provided limited reporting on this topic, and usually only when pressured by the Committee. The most up to date information was released in 2014 and only includes data for FY2012.[11]

According to the bill’s sponsor, “I introduced H.R. 4392 so Congress may better account for federal employees’ use of working hours and eliminate wasteful spending. This bill will require the Office of Personnel Management (OPM) to submit an annual, detailed report to Congress on the use of ‘Official Time’ by federal employees, outlining specific types of activities or purposes for which this time was granted. […]The amount of time federal employees spend conducting union business while on duty costs taxpayers around $157 million each year. At a time when our country is more than $18 trillion in debt, we need to ensure that we are better accounting for the use of taxpayer dollars.”[12]

Title VI: Research has shown that since 1948 when control of the White House switched to the opposite party, an average of 17 percent more rules were promulgated between Election Day and Inauguration Day compared to non-presidential election years. This trend in ‘‘midnight rulemaking’’ has been more dramatic in more recent years, with the highest spikes occurring around the 1980, 1992, and 2000 elections. According to the Committee, the surge in midnight rules can overwhelm the Office of Information and Regulatory Affairs (OIRA), the entity charged with reviewing the quality of proposed agency rules. This can result in rushed and flawed oversight, further undermining the quality of review for proposed rules. Economists have found that as the length of OIRA review time decreases, the quality of the economic analysis to which rules are subject also decreases.[13]

According to the bill’s sponsor, “Cutting corners and rushing through regulations leads to carelessly crafted rules that harm small businesses and their ability to thrive and create good-paying jobs. The Midnight Rule Relief Act will hold outgoing administrations accountable and ensure President Obama, and any future president, cannot slip through more costly red tape during his final days in office.”[14]

Title VII: The IRS recommends or requires that taxpayers maintain certain tax-related documents for several years depending on ‘‘the action, expense, or event which the document records.’’ Specifically, IRS policy states that taxpayers ‘‘must keep [ ] records that support an item of income, deduction or credit shown on [a] tax return until the period of limitations for that tax return runs out.’’ The IRS defines ‘‘period of limitations’’ as ‘‘the period of time in which you can amend your tax return to claim a credit or refund, or the IRS can assess additional tax.’’ Under these guidelines, the IRS requires taxpayers to maintain records from three to seven years, and indefinitely ‘‘if you do not file a return.’’ However, the IRS’s current internal policy controls concerning record maintenance are far less stringent than those required of the American taxpayer.[15]

According to the Committee, the IRS’s struggle in appropriately retaining documents was also highlighted by its erasing of 422 backup tapes containing as many as 24,000 emails from Lois Lerner, the now former Director of the Exempt Organizations Division, on March 4, 2014.[16]

According to the bill’s sponsor, “The bridge of distrust between government and the American people is growing longer each day. Our government, especially the IRS, seems to operate under a different set of rules than what they expect from the American people. The IRS expects citizens to maintain tax records ‘just in case’ they ever need it, yet the department isn’t required to uphold the same standard. The Ditto Act makes the IRS operate under the same set of rules that it requires of taxpayers.”[17]

[1] See House Report 114-599 at 2.
[2] U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enf’t (Agency), and Am. Fed’n of Gov’t Emps., Nat’l Immigration and Customs Enf’t Council, 67 F.L.R.A 501 (2014).
[3] See Rep. Palmer’s Press Release, “Palmer: FISS Act Enhances Security of Agencies’ Networks” March 1, 2016.
[4] Id.
[5] See House Report 114-415 at 2.
[6] See Rep. Meadow’s Press Release, “Bill Barring Pornography from Federal Agencies Advances through Committee” March 25, 2016.
[7] See House Report 114-472 at 2.
[8] Id.
[9] See House Report 114-485 at 2.
[10] See Rep. Walberg’s Press Release, “House Passes Walberg Legislation to Bring Great Accountability & Transparency to Government” September 16, 2014.
[11] See House Report 114-484 at 2-3.
[12] See Rep. Ross’ Press Release, “Ross Introduces Legislation to Account for Federal Employees’ Use of Official Time” January 21, 2016.
[13] See House Report 114-618 Part 1 at 3.
[14] See The Hill’s, “GOP bill to block ‘midnight regulations’ advances in House” March 1, 2016.
[15] See House Report 114-636 at 2.
[16] Id.
[17] See Rep. Walker’s Press Release, “Walker Bill to Hold IRS Accountable Passes Committee” April 14, 2016.

Cost

A Congressional Budget Office (CBO) estimate of the Rules Committee Print of H.R. 4361 is not currently available, However, previous cost estimates for the individual bills can be found here: H.R. 4361, H.R. 901, H.R. 3023, H.R. 4358, H.R. 4392, H.R. 4612, and H.R. 4921.

Amendments

  1. Gary Palmer (R-AL) – MANAGER’S AMENDMENT – This amendment makes technical and conforming changes to the bill.
  2. Bill Posey (R-FL) – This amendment establishes that no agency employee when actin in their official capacity shall be permitted to establish, operate, maintain, or otherwise permit the use of information technology not certified by the Agency’s Chief Information Officer as in compliance with the established information security protocols.
  3. Eleanor Holmes Norton (D-DC) – This amendment strikes sections that extend probationary periods, modifies suspension and termination procedures, forced mandatory leave provisions, and others.
  4. Bonnie Watson Coleman (D-NJ) – This amendment strikes the requirement that agencies include a description and square footage of rooms used for official time.
  5. Bonnie Watson Coleman (D-NJ) – This amendment exempts from the midnight rules moratorium any rule that has been included in the Unified Regulatory Agenda for at least one year.

Additional Information

For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 5-0190.