USC Subchapter III

in effect

5 U.S.C. § 1 SHORT TITLE.

“This Act may be cited as the ‘Federal Rotational Cyber Workforce Program Act of 2021’.

“In this Act: “(1) Agency.—The term ‘agency’ has the meaning given the term ‘Executive agency’ in section 105 of title 5, United States Code, except that the term does not include the Government Accountability Office. “(2) Competitive service.—The term ‘competitive service’ has the meaning given that term in section 2102 of title 5, United States Code. “(3) Councils.—The term ‘Councils’ means—“(A) the Chief Human Capital Officers Council established under section 1303 of the Chief Human Capital Officers Act of 2002 [Pub. L. 107–296, title XIII] (5 U.S.C. 1401 note); and “(B) the Chief Information Officers Council established under section 3603 of title 44, United States Code. “(4) Cyber workforce position.—The term ‘cyber workforce position’ means a position identified as having information technology, cybersecurity, or other cyber-related functions under section 303 of the Federal Cybersecurity Workforce Assessment Act of 2015 [Pub. L. 114–113, div. N, title III] (5 U.S.C. 301 note). “(5) Director.—The term ‘Director’ means the Director of the Office of Personnel Management. “(6) Employee.—The term ‘employee’ has the meaning given the term in section 2105 of title 5, United States Code. “(7) Employing agency.—The term ‘employing agency’ means the agency from which an employee is detailed to a rotational cyber workforce position. “(8) Excepted service.—The term ‘excepted service’ has the meaning given that term in section 2103 of title 5, United States Code. “(9) Rotational cyber workforce position.—The term ‘rotational cyber workforce position’ means a cyber workforce position with respect to which a determination has been made under section 3(a)(1). “(10) Rotational cyber workforce program.—The term ‘rotational cyber workforce program’ means the program for the detail of employees among rotational cyber workforce positions at agencies. “(11) Secretary.—The term ‘Secretary’ means the Secretary of Homeland Security.

5 U.S.C. § 3 ROTATIONAL CYBER WORKFORCE POSITIONS.

“(a) Determination With Respect to Rotational Service.—“(1) In general.—The head of each agency may determine that a cyber workforce position in that agency is eligible for the rotational cyber workforce program, which shall not be construed to modify the requirement under section 4(b)(3) that participation in the rotational cyber workforce program by an employee shall be voluntary. “(2) Notice provided.—The head of an agency shall submit to the Director—“(A) notice regarding any determination made by the head of the agency under paragraph (1); and “(B) for each position with respect to which the head of the agency makes a determination under paragraph (1), the information required under subsection (b)(1). “(b) Preparation of List.—The Director, with assistance from the Councils and the Secretary, shall develop a list of rotational cyber workforce positions that—“(1) with respect to each such position, to the extent that the information does not disclose sensitive national security information, includes—“(A) the title of the position; “(B) the occupational series with respect to the position; “(C) the grade level or work level with respect to the position; “(D) the agency in which the position is located; “(E) the duty location with respect to the position; and “(F) the major duties and functions of the position; and “(2) shall be used to support the rotational cyber workforce program. “(c) Distribution of List.—Not less frequently than annually, the Director shall distribute an updated list developed under subsection (b) to the head of each agency and other appropriate entities.

5 U.S.C. § 4 ROTATIONAL CYBER WORKFORCE PROGRAM.

“(a) Operation Plan.—“(1) In general.—Not later than 270 days after the date of enactment of this Act [June 21, 2022], and in consultation with the Councils, the Secretary, representatives of other agencies, and any other entity as the Director determines appropriate, the Director shall develop and issue a Federal Rotational Cyber Workforce Program operation plan providing policies, processes, and procedures for a program for the detailing of employees among rotational cyber workforce positions at agencies, which may be incorporated into and implemented through mechanisms in existence on the date of enactment of this Act. “(2) Updating.—The Director may, in consultation with the Councils, the Secretary, and other entities as the Director determines appropriate, periodically update the operation plan developed and issued under paragraph (1). “(b) Requirements.—The operation plan developed and issued under subsection (a) shall, at a minimum—“(1) identify agencies for participation in the rotational cyber workforce program; “(2) establish procedures for the rotational cyber workforce program, including—“(A) any training, education, or career development requirements associated with participation in the rotational cyber workforce program; “(B) any prerequisites or requirements for participation in the rotational cyber workforce program; and “(C) appropriate rotational cyber workforce program performance measures, reporting requirements, employee exit surveys, and other accountability devices for the evaluation of the program; “(3) provide that participation in the rotational cyber workforce program by an employee shall be voluntary; “(4) provide that an employee shall be eligible to participate in the rotational cyber workforce program if the head of the employing agency of the employee, or a designee of the head of the employing agency of the employee, approves of the participation of the employee; “(5) provide that the detail of an employee to a rotational cyber workforce position under the rotational cyber workforce program shall be on a nonreimbursable basis; “(6) provide that agencies may agree to partner to ensure that the employing agency of an employee that participates in the rotational cyber workforce program is able to fill the position vacated by the employee; “(7) require that an employee detailed to a rotational cyber workforce position under the rotational cyber workforce program, upon the end of the period of service with respect to the detail, shall be entitled to return to the position held by the employee, or an equivalent position, in the employing agency of the employee without loss of pay, seniority, or other rights or benefits to which the employee would have been entitled had the employee not been detailed; “(8) provide that discretion with respect to the assignment of an employee under the rotational cyber workforce program shall remain with the employing agency of the employee; “(9) require that an employee detailed to a rotational cyber workforce position under the rotational cyber workforce program in an agency that is not the employing agency of the employee shall have all the rights that would be available to the employee if the employee were detailed under a provision of law other than this Act from the employing agency to the agency in which the rotational cyber workforce position is located; “(10) provide that participation by an employee in the rotational cyber workforce program shall not constitute a change in the conditions of the employment of the employee; and “(11) provide that an employee participating in the rotational cyber workforce program shall receive performance evaluations relating to service in the rotational cyber workforce program in a participating agency that are—“(A) prepared by an appropriate officer, supervisor, or management official of the employing agency, acting in coordination with the supervisor at the agency in which the employee is performing service in the rotational cyber workforce position; “(B) based on objectives identified in the operation plan with respect to the employee; and “(C) based in whole or in part on the contribution of the employee to the agency in which the employee performed such service, as communicated from that agency to the employing agency of the employee. “(c) Program Requirements for Rotational Service.—“(1) In general.—An employee serving in a cyber workforce position in an agency may, with the approval of the head of the agency, submit an application for detail to a rotational cyber workforce position that appears on the list developed under section 3(b). “(2) OPM approval for certain positions.—An employee serving in a position in the excepted service may only be selected for a rotational cyber workforce position that is in the competitive service with the prior approval of the Office of Personnel Management, in accordance with section 300.301 of title 5, Code of Federal Regulations, or any successor thereto. “(3) Selection and term.—“(A) Selection.—The head of an agency shall select an employee for a rotational cyber workforce position under the rotational cyber workforce program in a manner that is consistent with the merit system principles under section 2301(b) of title 5, United States Code. “(B) Term.—Except as provided in subparagraph (C), and notwithstanding section 3341(b) of title 5, United States Code, a detail to a rotational cyber workforce position shall be for a period of not less than 180 days and not more than 1 year. “(C) Extension.—The Chief Human Capital Officer of the agency to which an employee is detailed under the rotational cyber workforce program may extend the period of a detail described in subparagraph (B) for a period of 60 days unless the Chief Human Capital Officer of the employing agency of the employee objects to that extension. “(4) Written service agreements.—“(A) In general.—The detail of an employee to a rotational cyber workforce position shall be contingent upon the employee entering into a written service agreement with the employing agency under which the employee is required to complete a period of employment with the employing agency following the conclusion of the detail that is equal in length to the period of the detail. “(B) Other agreements and obligations.—A written service agreement under subparagraph (A) shall not supersede or modify the terms or conditions of any other service agreement entered into by the employee under any other authority or relieve the obligations between the employee and the employing agency under such a service agreement. Nothing in this subparagraph prevents an employing agency from terminating a service agreement entered into under any other authority under the terms of such agreement or as required by law or regulation.

5 U.S.C. § 5 REPORTING BY GAO.

“Not later than the end of the third fiscal year after the fiscal year in which the operation plan under section 4(a) is issued, the Comptroller General of the United States shall submit to Congress a report assessing the operation and effectiveness of the rotational cyber workforce program, which shall address, at a minimum— “(1) the extent to which agencies have participated in the rotational cyber workforce program, including whether the head of each such participating agency has—“(A) identified positions within the agency that are rotational cyber workforce positions; “(B) had employees from other participating agencies serve in positions described in subparagraph (A); and “(C) had employees of the agency request to serve in rotational cyber workforce positions under the rotational cyber workforce program in participating agencies, including a description of how many such requests were approved; and “(2) the experiences of employees serving in rotational cyber workforce positions under the rotational cyber workforce program, including an assessment of—“(A) the period of service; “(B) the positions (including grade level and occupational series or work level) held by employees before completing service in a rotational cyber workforce position under the rotational cyber workforce program; “(C) the extent to which each employee who completed service in a rotational cyber workforce position under the rotational cyber workforce program achieved a higher skill level, or attained a skill level in a different area, with respect to information technology, cybersecurity, or other cyber-related functions; and “(D) the extent to which service in rotational cyber workforce positions has affected intra-agency and interagency integration and coordination of cyber practices, functions, and personnel management.

5 U.S.C. § 6 SUNSET.

“Effective 5 years after the date of enactment of this Act [June 21, 2022], this Act is repealed.”

5 U.S.C. § 3341 Details; within Executive or military departments

(a) The head of an Executive department or military department may detail employees among the bureaus and offices of his department, except employees who are required by law to be exclusively engaged on some specific work. (b)(1) Details under subsection (a) of this section may be made only by written order of the head of the department, and may be for not more than 120 days. These details may be renewed by written order of the head of the department, in each particular case, for periods not exceeding 120 days. (2) The 120-day limitation in paragraph (1) for details and renewals of details does not apply to the Department of Defense in the case of a detail—(A) made in connection with the closure or realignment of a military installation pursuant to a base closure law or an organizational restructuring of the Department as part of a reduction in the size of the armed forces or the civilian workforce of the Department; and (B) in which the position to which the employee is detailed is eliminated on or before the date of the closure, realignment, or restructuring. (c) For purposes of this section, the term “base closure law” has the meaning given such term in section 101(a)(17) of title 10.

5 U.S.C. § 3343 Details; to international organizations

(a) For the purpose of this section—(1) “agency”, “employee”, and “international organization” have the meanings given them by section 3581 of this title; and (2) “detail” means the assignment or loan of an employee to an international organization without a change of position from the agency by which he is employed to an international organization. (b) The head of an agency may detail, for a period of not more than 5 years, an employee of his agency to an international organization which requests services, except that under special circumstances, where the President determines it to be in the national interest, he may extend the 5-year period for up to an additional 3 years. (c) An employee detailed under subsection (b) of this section is deemed, for the purpose of preserving his allowances, privileges, rights, seniority, and other benefits, an employee of the agency from which detailed, and he is entitled to pay, allowances, and benefits from funds available to that agency. The authorization and payment of these allowances and other benefits from appropriations available therefor is deemed to comply with section 5536 of this title. (d) Details may be made under subsection (b) of this section—(1) without reimbursement to the United States by the international organization; or (2) with agreement by the international organization to reimburse the United States for all or part of the pay, travel expenses, and allowances payable during the detail, and the reimbursement shall be credited to the appropriation, fund, or account used for paying the amounts reimbursed. (e) An employee detailed under subsection (b) of this section may be paid or reimbursed by an international organization for allowances or expenses incurred in the performance of duties required by the detail, without regard to section 209 of title 18.

5 U.S.C. § 3344 Details; administrative law judges

An agency as defined by section 551 of this title which occasionally or temporarily is insufficiently staffed with administrative law judges appointed under section 3105 of this title may use administrative law judges selected by the Office of Personnel Management from and with the consent of other agencies.

5 U.S.C. § 3345 Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346; (2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or (3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule. (b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—(i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position of first assistant to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office. (2) Paragraph (1) shall not apply to any person if—(A) such person is serving as the first assistant to the office of an officer described under subsection (a); (B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and (C) the Senate has approved the appointment of such person to such office. (c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die. (2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.

5 U.S.C. § 3346 Time limitation

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate. (b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return. (2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve—(A) until the second nomination is confirmed; or (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned. (c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

5 U.S.C. § 3347 Exclusivity

(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless—(1) a statutory provision expressly—(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (2) the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution. (b) Any statutory provision providing general authority to the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(1) applies.

5 U.S.C. § 3348 Vacant office

(a) In this section—(1) the term “action” includes any agency action as defined under section 551(13); and (2) the term “function or duty” means any function or duty of the applicable office that—(A)(i) is established by statute; and (ii) is required by statute to be performed by the applicable officer (and only that officer); or (B)(i)(I) is established by regulation; and (II) is required by such regulation to be performed by the applicable officer (and only that officer); and (ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs. (b) Unless an officer or employee is performing the functions and duties in accordance with sections 3345, 3346, and 3347, if an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—(1) the office shall remain vacant; and (2) in the case of an office other than the office of the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office), only the head of such Executive agency may perform any function or duty of such office. (c) If the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period. (d)(1) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect. (2) An action that has no force or effect under paragraph (1) may not be ratified. (e) This section shall not apply to—(1) the General Counsel of the National Labor Relations Board; (2) the General Counsel of the Federal Labor Relations Authority; (3) any Inspector General appointed by the President, by and with the advice and consent of the Senate; (4) any Chief Financial Officer appointed by the President, by and with the advice and consent of the Senate; or (5) an office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) if a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.

5 U.S.C. § 3349 Reporting of vacancies

(a) The head of each Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) shall submit to the Comptroller General of the United States and to each House of Congress—(1) notification of a vacancy in an office to which this section and sections 3345, 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d apply and the date such vacancy occurred immediately upon the occurrence of the vacancy; (2) the name of any person serving in an acting capacity and the date such service began immediately upon the designation; (3) the name of any person nominated to the Senate to fill the vacancy and the date such nomination is submitted immediately upon the submission of the nomination; and (4) the date of a rejection, withdrawal, or return of any nomination immediately upon such rejection, withdrawal, or return. (b) If the Comptroller General of the United States makes a determination that an officer is serving longer than the 210-day period including the applicable exceptions to such period under section 3346 or section 3349a, the Comptroller General shall report such determination immediately to—(1) the Committee on Governmental Affairs of the Senate; (2) the Committee on Government Reform and Oversight of the House of Representatives; (3) the Committees on Appropriations of the Senate and House of Representatives; (4) the appropriate committees of jurisdiction of the Senate and House of Representatives; (5) the President; and (6) the Office of Personnel Management.

5 U.S.C. § 3349a Presidential inaugural transitions

(a) In this section, the term “transitional inauguration day” means the date on which any person swears or affirms the oath of office as President, if such person is not the President on the date preceding the date of swearing or affirming such oath of office. (b) With respect to any vacancy that exists during the 60-day period beginning on a transitional inauguration day, the 210-day period under section 3346 or 3348 shall be deemed to begin on the later of the date occurring—(1) 90 days after such transitional inauguration day; or (2) 90 days after the date on which the vacancy occurs.

5 U.S.C. § 3349b Holdover provisions

Sections 3345 through 3349a shall not be construed to affect any statute that authorizes a person to continue to serve in any office— (1) after the expiration of the term for which such person is appointed; and (2) until a successor is appointed or a specified period of time has expired.

5 U.S.C. § 3349c Exclusion of certain officers

Sections 3345 through 3349b shall not apply to— (1) any member who is appointed by the President, by and with the advice and consent of the Senate to any board, commission, or similar entity that—(A) is composed of multiple members; and (B) governs an independent establishment or Government corporation; (2) any commissioner of the Federal Energy Regulatory Commission; (3) any member of the Surface Transportation Board; or (4) any judge appointed by the President, by and with the advice and consent of the Senate, to a court constituted under article I of the United States Constitution.

5 U.S.C. § 3349d Notification of intent to nominate during certain recesses or adjournments

(a) The submission to the Senate, during a recess or adjournment of the Senate in excess of 15 days, of a written notification by the President of the President’s intention to submit a nomination after the recess or adjournment shall be considered a nomination for purposes of sections 3345 through 3349c if such notification contains the name of the proposed nominee and the office for which the person is nominated. (b) If the President does not submit a nomination of the person named under subsection (a) within 2 days after the end of such recess or adjournment, effective after such second day the notification considered a nomination under subsection (a) shall be treated as a withdrawn nomination for purposes of sections 3345 through 3349c.

5 U.S.C. § 3349e Presidential explanation of failure to nominate an inspector general

If the President fails to make a formal nomination for a vacant inspector general position that requires a formal nomination by the President to be filled within the period beginning on the later of the date on which the vacancy occurred or on which a nomination is rejected, withdrawn, or returned, and ending on the day that is 210 days after that date, the President shall communicate, within 30 days after the end of such period and not later than June 1 of each year thereafter, to the appropriate congressional committees, as defined in section 12 of the Inspector General Act of 1978 (5 U.S.C. App.) 11 See References in Text note below.— (1) the reasons why the President has not yet made a formal nomination; and (2) a target date for making a formal nomination.