COMPREHENSIVE ANALYSIS AND DEVELOPMENT OF SINGLE GOVERNMENT-WIDE DEFINITION OF INHERENTLY GOVERNMENTAL FUNCTION AND CRITERIA FOR CRITICAL FUNCTIONS.

SEC. 321. COMPREHENSIVE ANALYSIS AND DEVELOPMENT OF SINGLE GOVERNMENT-WIDE DEFINITION OF INHERENTLY GOVERNMENTAL FUNCTION AND CRITERIA FOR CRITICAL FUNCTIONS.(a) Development and Implementation.—The Director of the Office of Management and Budget, in consultation with appropriate representatives of the Chief Acquisition Officers Council under section 16A of the Office of Federal Procurement Policy Act (41 U.S.C. 414b) and the Chief Human Capital Officers Council under section 1401 of title 5, United States Code, shall—(1) review the definitions of the term “inherently governmental function” described in subsection (b) to determine whether such definitions are sufficiently focused to ensure that only officers or employees of the Federal Government or members of the Armed Forces perform inherently governmental functions or other critical functions necessary for the mission of a Federal department or agency;(2) develop a single consistent definition for such term that would—(A) address any deficiencies in the existing definitions, as determined pursuant to paragraph (1);(B) reasonably apply to all Federal departments and agencies; and(C) ensure that the head of each such department or agency is able to identify each position within that department or agency that exercises an inherently governmental function and should only be performed by officers or employees of the Federal Government or members of the Armed Forces;(3) develop criteria to be used by the head of each such department or agency to—(A) identify critical functions with respect to the unique missions and structure of that department or agency; and(B) identify each position within that department or agency that, while the position may not exercise an inherently governmental function, nevertheless should only be performed by officers or employees of the Federal Government or members of the Armed Forces to ensure the department or agency maintains control of its mission and operations;(4) in addition to the actions described under paragraphs (1), (2), and (3), provide criteria that would identify positions within Federal departments and agencies that are to be performed by officers or employees of the Federal Government or members of the Armed Forces to ensure that the head of each Federal department or agency—(A) develops and maintains sufficient organic expertise and technical capability;(B) develops guidance to implement the definition of inherently governmental as described in paragraph (2) and the criteria for critical functions as described in paragraph (3) in a manner that is consistent with agency missions and operational goals; and122 STAT. 4412(C) develops guidance to manage internal decisions regarding staffing in an integrated manner to ensure officers or employees of the Federal Government or members of the Armed Forces are filling critical management roles by identifying—(i) functions, activities, or positions, or some combination thereof, or(ii) additional mechanisms and factors, including the management or oversight of awarded contracts, statutory mandates, and international obligations; and(5) solicit the views of the public regarding the matters identified in this section.(b) Definitions of Inherently Governmental Function.—The definitions of inherently governmental function described in this subsection are the definitions of such term that are contained in—(1) the Federal Activities Inventory Reform Act of 1998 (Public Law 105–270; 31 U.S.C. 501 note);(2) section 2383 of title 10, United States Code;(3) Office of Management and Budget Circular A–76;(4) the Federal Acquisition Regulation; and(5) any other relevant Federal law or regulation, as determined by the Director of the Office of Management and Budget in consultation with the Chief Acquisition Officers Council and the Chief Human Capital Officers Council.(c) Report to Congress.—Not later than one year after the date of the enactment of this Act, the Director of the Office of Management and Budget, in consultation with the Chief Acquisition Officers Council and the Chief Human Capital Officers Council, shall submit to the Committees on Armed Services of the Senate and House of Representatives, the Committee on Homeland Security and Governmental Affairs in the Senate, and the Committee on Oversight and Government Reform of the House of Representatives a report on the actions taken by the Director under this section. Such report shall contain each of the following:(1) A description of the actions taken by the Director under this section to develop a single definition of inherently governmental function and criteria for critical functions.(2) Such legislative recommendations as the Director determines are necessary to further the purposes of this section.(3) A description of such steps as may be necessary—(A) to ensure that the single definition and criteria developed under this section are consistently applied through all Federal regulations, circulars, policy letters, agency guidance, and other documents;(B) to repeal any existing Federal regulations, circular, policy letters, agency guidance and other documents determined to be superseded by the definition and criteria developed under this section; and(C) to develop any necessary implementing guidance under this section for agency staffing and contracting decisions, along with appropriate milestones.(d) Regulations.—Not later than 180 days after submission of the report required by subsection (c), the Director of the Office of Management and Budget shall issue regulations to implement actions taken under this section to develop a single definition of inherently governmental function and criteria for critical functions.122 STAT. 4413