S.Amdt. 389

SA 389. Mr. LANKFORD submitted an amendment intended to be proposed
by him to the bill S. 2226, to authorize appropriations for fiscal year
2024 for military activities of the Department

[[Page S2573]]

of Defense, for military construction, and for defense activities of
the Department of Energy, to prescribe military personnel strengths for
such fiscal year, and for other purposes; which was ordered to lie on
the table; as follows:

At the appropriate place, insert the following:

SEC. ___. USE OF OFFICIAL TIME.

(a) Definitions.--In this section:
(1) Agency.--
(A) In general.--Except as provided in subparagraph (B),
the term ``agency'' means an agency, as that term is defined
in section 7103(a) of title 5, United States Code, that is in
the executive branch of the Federal Government.
(B) Exception.--For the purposes of subsection (c), the
term ``agency''--
(i) has the meaning given the term ``Executive agency'' in
section 105 of title 5, United States Code; and
(ii) does not include the Government Accountability Office.
(2) Agency business.--The term ``agency business''--
(A) means work performed by an employee on behalf of an
agency; and
(B) does not include work performed during official time.
(3) Bargaining unit.--The term ``bargaining unit'' means a
group of employees represented by an exclusive representative
in an appropriate unit for collective bargaining under
subchapter II of chapter 71 of title 5, United States Code.
(4) Director.--The term ``Director'' means the Director of
the Office of Personnel Management.
(5) Discounted use of government property.--The term
``discounted use of Government property'' means a lesser
charge to use Federal Government property (as compared with
the value of the use of that property), as determined by--
(A) the Administrator of General Services, where
applicable; or
(B) comparing the charged use with the generally prevailing
commercial cost of using that property.
(6) Employee.--The term ``employee'' has the meaning given
the term in section 7103(a) of title 5, United States Code,
with respect to an agency.
(7) Grievance; labor organization.--The terms ``grievance''
and ``labor organization'' have the meanings given the terms
in section 7103(a) of title 5, United States Code.
(8) Official time.--The term ``official time'' means
official time authorized for an employee under section 7131
of title 5, United States Code.
(9) Paid time.--The term ``paid time'', with respect to an
employee--
(A) means time for which the employee is paid by the
employing agency of the employee;
(B) includes--
(i) duty time during which the employee performs agency
business; and
(ii) official time; and
(C) does not include--
(i) time spent on paid or unpaid leave; or
(ii) off-duty hours of the employee.
(10) Union time rate.--The term ``union time rate'' means,
with respect to a bargaining unit and a fiscal year, the
quotient obtained by dividing--
(A) the total number of hours in that fiscal year during
which employees in the bargaining unit performed duties under
official time while in a duty status; by
(B) the total number of employees in the bargaining unit.
(b) Standards.--
(1) In general.--
(A) Requirement for authorization.--No agency may agree to
authorize any amount of official time under section 7131(d)
of title 5, United States Code, unless that time is
reasonable, necessary, and in the public interest.
(B) Consideration.--For the purposes of subparagraph (A),
an agreement authorizing official time under section 7131(d)
of title 5, United States Code, that would cause the union
time rate in a bargaining unit to exceed 1 hour per employee
shall, taking into account the size of the bargaining unit,
and the amount of official time anticipated to be authorized
in the applicable fiscal year under subsections (a) and (c)
of such section 7131, ordinarily not be considered to--
(i) be reasonable, necessary, and in the public interest;
or
(ii) satisfy the goal described in section 7101(b) of title
5, United States Code.
(C) Agency requirement.--The head of each agency shall--
(i) commit the time and resources necessary to strive for a
negotiated union time rate of not greater than 1; and
(ii) fulfill the obligation of the agency to bargain in
good faith.
(2) Report required.--
(A) In general.--If the head of an agency agrees to
authorize official time under section 7131(d) of title 5,
United States Code, in an amount such that the authorization
would cause the union time rate in a bargaining unit to
exceed 1 hour per employee (or proposes to the Federal
Service Impasses Panel or an arbitrator engaging in interest
arbitration an amount that would cause the union time rate in
a bargaining unit to exceed 1 hour per employee), the agency
head shall, not later than 15 days after the date on which
that agreement or proposal is authorized or proposed, as
applicable, submit to the President, through the Director, a
report regarding the agreement or proposal.
(B) Contents.--A report submitted by the head of an agency
under subparagraph (A) shall--
(i) explain why the authorized or proposed expenditures to
which the report relates are reasonable, necessary, and in
the public interest;
(ii) describe the benefit, if any, that the public will
receive from the activities conducted by employees during the
official time to which the report relates; and
(iii) identify the total cost to the agency of the official
time to which the report relates.
(C) Non-delegation.--The head of an agency may not delegate
to any other employee or officer the requirement to submit a
report under subparagraph (A).
(D) Notification.--The head of each agency shall require
relevant subordinate officials in the agency to inform the
agency head 5 business days before the date on which the
agency presents or accepts a proposal that would result in a
union time rate of greater than 1 for any bargaining unit if
those subordinate officials anticipate that the officials
will present or agree to such a provision.
(E) Applicability.--This paragraph shall not apply to a
union time rate established under an order of the Federal
Service Impasses Panel or an arbitrator engaging in interest
arbitration if the applicable agency had proposed that the
Panel or arbitrator, as applicable, establish a union time
rate of not greater than 1.
(3) Rule of construction.--Nothing in this subsection may
be construed to--
(A) prohibit an agency from authorizing official time as
required under subsections (a) and (c) of section 7131 of
title 5, United States Code; or
(B) direct an agency to negotiate to include in a
collective bargaining agreement a term that precludes the
agency from granting official time under subsections (a) and
(c) of section 7131 of title 5, United States Code.
(c) Employee Conduct.--
(1) In general.--To ensure that Federal resources are used
effectively and efficiently, and in a manner consistent with
the public interest and subsection (g), each employee shall
comply with the following requirements:
(A) An employee may not engage in lobbying activities
during paid time, except in the official capacity of the
employee.
(B)(i) Except as provided in clause (ii), an employee shall
spend not less than \3/4\ of the paid time of the employee
each fiscal year performing agency business or attending
necessary training (as required by the head of the employing
agency) to ensure that the employee develops and maintains
the skills necessary to perform the duties of the employee
efficiently and effectively.
(ii) An employee who has spent \1/4\ of the paid time of
the employee in a fiscal year performing duties that are not
agency business may continue to use official time during that
fiscal year for a purpose described in subsection (a) or (c)
of section 7131 of title 5, United States Code.
(iii) Any time in excess of \1/4\ of the paid time of an
employee that is used to perform duties that are not agency
business in a fiscal year shall count toward the limitation
under clause (i) in the subsequent fiscal year.
(C)(i) An employee, when acting on behalf of a Federal
labor organization, may not be permitted the free or
discounted use of Government property, or any other agency
resource, if that use is not generally available for business
other than agency business by employees when acting on behalf
of non-Federal organizations.
(ii) For the purposes of clause (i), Government property
and other agency resources includes office or meeting space,
reserved parking spaces, telephones, computers, and computer
systems.
(D) An employee who incurs expenses while performing duties
other than agency business may not be reimbursed for those
expenses, unless reimbursement is required by law or
regulation.
(E)(i) An employee may not use official time to prepare or
pursue a grievance, including arbitration with respect to a
grievance, brought against an agency under procedures
negotiated under section 7121 of title 5, United States Code,
except where that use is otherwise authorized by law or
regulation.
(ii) Clause (i) shall not apply to a situation in which an
employee uses official time to--
(I) prepare for, confer with an exclusive representative
regarding, or present a grievance brought on behalf of the
employee;
(II) appear as a witness in a grievance proceeding; or
(III) challenge an adverse personnel action taken against
the employee in retaliation for engaging in federally
protected whistleblower activity, including for engaging in
an activity that is protected under--

(aa) section 2302(b)(8) of title 5, United States Code;
(bb) section 21F(h)(1) of the Securities Exchange Act of
1934 (15 U.S.C. 78u-6(h)(1));
(cc) section 3730(h) of title 31, United States Code; or
(dd) any other similar provision of law.

(2) Authorization.--
(A) In general.--An employee may not use official time
without advance written authorization from the head of the
employing agency, unless prior approval is impracticable
under rules or guidance issued under paragraph (3).
(B) Review.--Any use of official time without written
advance authorization from the

[[Page S2574]]

head of the employing agency because of impracticality, as
described in subparagraph (A), shall be reviewed by the head
of the employing agency, who, not later than 15 days after
the date on which the official time is first used, shall make
a determination regarding whether to certify that providing
the advance written authorization was impracticable.
(C) Restriction.--If an employee uses official time without
advance written authorization from the head of the employing
agency because of impracticality, as described in
subparagraph (A), and the head of the employing agency does
not make a certification described in subparagraph (B) within
the time frame established under that subparagraph, the
employee may not use official time for the remainder of the
fiscal year in which the official time was used or for 90
days, whichever is longer.
(3) OPM responsibilities.--
(A) In general.--Not later than 45 days after the date of
enactment of this Act, the Director shall examine whether
rules that are in existence, as of the date on which the
Director performs the examination, are consistent with the
requirements of this subsection.
(B) Additional rules.--If, after performing the examination
required under subparagraph (1), the Director determines that
existing rules, as described in that subparagraph, are not
consistent with the requirements of this subsection, the
Director, as soon as is practicable, shall propose for notice
and comment appropriate rules to clarify and assist agencies
in implementing this subsection, consistent with applicable
law.
(4) Agency responsibilities.--
(A) In general.--The head of each agency shall ensure
compliance by employees of the agency with the requirements
of this subsection, to the extent consistent with applicable
law and collective bargaining agreements.
(B) Reviews.--The head of each agency shall--
(i) examine whether rules, policies, and practices that are
in existence, as of the effective date of this subsection,
are consistent with the requirements of this subsection; and
(ii) if, after performing the review required under clause
(i), the agency head determines that existing rules,
policies, and procedures, as described in that clause, are
not consistent with the requirements of this subsection, as
soon as is practicable, take all appropriate actions
consistent with applicable law to bring those rules,
policies, and procedures into compliance with this
subsection.
(5) Rule of construction.--Nothing in this subsection may
be construed to prohibit the head of an agency from
permitting an employee to perform representational activities
under chapter 71 of title 5, United States Code, including
for activities described in section 7121(b)(1)(C) of that
title.
(6) Effective date.--This subsection shall take effect on
the date that is 45 days after the date of enactment of this
Act, except with respect to paragraph (3), which shall take
effect on that date of enactment.
(d) Preventing Unlawful or Unauthorized Expenditures.--
(1) In general.--An employee who uses official time without
the advance written authorization required under subsection
(c)(2), or for purposes not specifically authorized by the
head of the employing agency, shall be--
(A) considered absent without leave;
(B) in cases of repeated such misuses, considered to have
engaged in serious misconduct that impairs the efficiency of
the Federal service; and
(C) subject to appropriate disciplinary action to address
the misconduct described in subparagraph (A) or (B), as
applicable.
(2) Procedures.--
(A) In general.--As soon as is practicable, and not later
than 180 days after the date of enactment of this Act, and to
the extent permitted by law, the head of each agency shall
develop and implement a procedure governing the authorization
of official time under subsection (c)(2).
(B) Contents.--A procedure developed under subparagraph (A)
shall, at a minimum--
(i) require an employee requesting official time to specify
the number of hours of official time to be used and the
specific purposes for which that time will be used, providing
sufficient detail to identify the tasks that the employee
will undertake;
(ii) allow the authorizing official to assess whether it is
reasonable and necessary to grant the amount of time
requested to accomplish the tasks described in clause (i);
and
(iii) with respect to a continuing or ongoing request,
require--

(I) the renewal of the request to be submitted not less
frequently than once per pay period; and
(II) separate advance authorization for any use of official
time that is in excess of previously authorized hours or
purposes for which the time was not previously authorized.

(3) Monitoring.--
(A) In general.--As soon as is practicable, and not later
than 180 days after the date of enactment of this Act, the
head of each agency shall develop and implement a system to
monitor the use of official time to ensure that such time--
(i) is used only for authorized purposes; and
(ii) is not used contrary to law or regulation.
(B) Requirements.--In developing a system under
subparagraph (A), the head of an agency shall give special
attention to ensuring that official time is not used for--
(i) internal labor organization business in violation of
section 7131(b) of title 5, United States Code;
(ii) lobbying activities in violation of section 1913 of
title 18, United States Code, or subsection (c)(1) of this
section; or
(iii) political activities in violation of subchapter III
of chapter 73 of title 5, United States Code.
(e) Agency Reporting Requirements.--
(1) In general.--To the extent permitted by law, the head
of each agency shall submit to the Director an annual report
that addresses each of the following for the fiscal year
covered by the report:
(A) The purposes for which the agency head has authorized
the use of official time, including the amounts of time used
for each such purpose.
(B) The job title and total compensation of each employee
who has used official time, including the total number of
hours each such employee spent on those activities and the
proportion of the total paid hours of each such employee that
number of hours represents.
(C) If the agency has allowed labor organizations or
individuals, during official time, the free or discounted use
of Government property, the total value of that use.
(D) Any expenses that the agency paid for activities
conducted during official time.
(E) The amount of any reimbursement paid by labor
organizations for the use of property described in
subparagraph (C).
(F) Whether the aggregate union rate time of the agency has
increased, as compared with the most recent report submitted
under this paragraph and, if that aggregate rate has so
increased, an explanation for the increase.
(2) Notification.--If the union time rate with respect to a
bargaining unit exceeds 1 hour per employee, the head of the
applicable agency shall submit a notification regarding that
fact to the Interagency Labor Relations Working Group
established under section 3 of Executive Order 13836 (83 Fed.
Reg. 25329; relating to developing efficient, effective, and
cost-reducing approaches to Federal sector collective
bargaining).
(3) Deadline.--The Director shall establish the date on
which the reports required under this subsection shall be
submitted.
(f) Public Disclosure and Transparency.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Director shall publish a
standardized form that the head of each agency shall use in
preparing the reports required under subsection (e).
(2) Analysis of reports.--The Director shall analyze each
report submitted under subsection (e) and produce an annual
report that details each of the following for the fiscal year
covered by the report:
(A) For each agency, and for all agencies in the
aggregate--
(i) the number of employees using official time;
(ii) the number of employees using official time,
separately listed by intervals of the proportion of paid time
spent on those activities;
(iii) the number of hours spent on official time;
(iv) the cost of official time, as measured by the
compensation of the employees involved;
(v) the aggregate union time rate;
(vi) the number of bargaining unit employees; and
(vii) the percentage change in each of the values described
in clauses (i) through (vi), as compared with the previous
year.
(B) For each agency, and for all agencies in the
aggregate--
(i) the value of the free or discounted use of Government
property the agency has provided to labor organizations;
(ii) any expenses, such as travel expenses, paid for
activities conducted during official time;
(iii) the amount of any reimbursement paid for the use
described in clause (ii); and
(iv) the percentage change in each of the values described
in clauses (i), (ii), and (iii), as compared with the
previous year.
(C) The purposes for which official time was granted.
(D) The information required under subsection (e)(1)(B)
with respect to employees using official time, which shall be
sufficiently aggregated to ensure that the disclosure would
not unduly risk disclosing information protected under law,
including personally identifiable information.
(3) Publication.--
(A) In general.--Not later than June 30 of each year, the
Director shall publish on the website of the Office of
Personnel Management the report required under this
subsection.
(B) First report.--The first report required under this
subsection shall--
(i) apply with respect to the first fiscal year that begins
after the date of enactment of this Act; and
(ii) be published not later than 240 days after the end of
the fiscal year described in clause (i).
(4) Guidance.--The Director, after consulting with the
Chief Human Capital Officers appointed or designated under
chapter

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14 of title 5, United States Code, shall promulgate any
additional guidance that may be necessary or appropriate to
assist the heads of agencies in complying with the
requirements of this subsection.
(g) Implementation and Renegotiation of Collective
Bargaining Agreements.--
(1) Implementation.--
(A) In general.--Not later than 90 days after the date of
enactment of this Act, and subject to subparagraph (B), the
head of each agency shall implement the requirements of this
section, except with respect to subsection (c)(2), which
shall be effective for employees in a particular agency when
the head of that agency implements the procedure required
under subsection (d)(2), to the extent permitted by law and
consistent with obligations under collective bargaining
agreements that are in effect, as of the date of enactment of
this Act.
(B) Designation.--The head of each agency shall--
(i) designate an official within the agency to implement
this section; and
(ii) not later than 30 days after the date of enactment of
this Act, notify the Director regarding the identity of the
official designated under clause (i).
(2) Consultation with labor representatives.--
(A) In general.--The head of each agency shall consult with
employee labor representatives regarding the implementation
of this section.
(B) Alterations to collective bargaining agreements.--On
the earliest date permitted under law, and to effectuate the
terms of this section, the head of any agency that is party
to a collective bargaining agreement that has not less than 1
provision that is inconsistent with any provision of this
section shall give any contractually required notice of the
intent of the agency to alter the terms of that agreement
and--
(i) reopen negotiations to obtain provisions consistent
with this section; or
(ii) terminate any such inconsistent provision and
implement the requirements of this section.
(h) General Provisions.--
(1) Rules of construction.--Nothing in this section may be
construed to--
(A) abrogate any collective bargaining agreement that is in
effect, as of the date of enactment of this Act;
(B) interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under chapter 71 of
title 5, United States Code;
(C) encourage or discourage membership in any labor
organization by discrimination in connection with
appointment, tenure, promotion, or other conditions of
employment;
(D) impair or otherwise affect the authority granted by law
to an agency or the head of an agency; or
(E) create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against--
(i) the United States;
(ii) a department, agency, entity, officer, employee, or
agent of the United States; or
(iii) any other person.
(2) Implementation.--This section shall be implemented
consistent with applicable law and subject to the
availability of appropriations.
(3) Severability.--If any provision of this section,
including any application of this section, is held to be
invalid, the remainder of this section, and all other
applications of this section, shall not be affected by that
holding.
______