[Senate Report 113-207]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 463

113th Congress  }                                          {     Report
                                 SENATE
 2d Session     }                                          {    113-207
_______________________________________________________________________




                      DHS CYBERSECURITY WORKFORCE

                 RECRUITMENT AND RETENTION ACT OF 2014

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2354

           TO IMPROVE CYBERSECURITY RECRUITMENT AND RETENTION

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 July 14, 2014.--Ordered to be printed




                                   ______

                         U.S. GOVERNMENT PRINTING OFFICE 

 39-010                        WASHINGTON : 2014 


















        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                  THOMAS R. CARPER, Delaware Chairman

CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota

                  Gabrielle A. Batkin, Staff Director
               John P. Kilvington, Deputy Staff Director
                    Mary Beth Schultz, Chief Counsel
          Stephen R. Vina, Chief Counsel for Homeland Security
           Matthew R. Grote, Senior Professional Staff Member
               Keith B. Ashdown, Minority Staff Director
         Christopher J. Barkley, Minority Deputy Staff Director
               Andrew C. Dockham, Minority Chief Counsel
         Daniel P. Lips, Minority Director of Homeland Security
                     Laura W. Kilbride, Chief Clerk





                                                       Calendar No. 463

113th Congress   }                                       {     Report
                                 SENATE
 2d Session      }                                       {    113-207  

======================================================================



 
   DHS CYBERSECURITY WORKFORCE RECRUITMENT AND RETENTION ACT OF 2014

                                _______
                                

                 July 14, 2014.--Ordered to be printed

                                _______
                                

 Mr. Carper, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2354]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2354) to improve 
cybersecurity recruitment and retention, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. Purpose and Summary

    S. 2354, the DHS Cybersecurity Workforce Recruitment and 
Retention Act, seeks to strengthen the Department of Homeland 
Security's (DHS's) cybersecurity workforce. It would enable DHS 
to better compete for cybersecurity talent by giving the 
Secretary of Homeland Security greater discretion than 
currently possessed when hiring and setting the pay and 
benefits of DHS cybersecurity employees.

                II. Background and Need for Legislation

    Hiring and retaining top cybersecurity talent presents 
great challenges to the Federal Government. There simply aren't 
enough specially trained experts to fill all of the vacant 
positions in government--a problem that is compounded by the 
fact that the private sector is also seeking critically needed 
cybersecurity professionals and can often pay more than the 
government for that talent.\1\
---------------------------------------------------------------------------
    \1\See report from the Government Accountability Office, 
``Cybersecurity Human Capital: Initiatives Need Better Planning and 
Coordination'' at pages 21-22. (November 29, 2011) http://www.http://
gao.gov/products/GAO-12-8 (last viewed June 16, 2014).
---------------------------------------------------------------------------
    These personnel challenges occur against the backdrop of an 
ever increasing and urgent need for cybersecurity experts. 
Every day, sophisticated criminals and nation states are 
probing the networks of our government agencies, universities, 
major retailers, and critical infrastructure, looking for weak 
spots in our defenses. They seek to exploit these weaknesses to 
cause disruptions, steal our personal information and trade 
secrets, or even worse, cause us physical harm. To combat these 
threats, the Department of Homeland Security has an important 
cybersecurity mission, including protecting federal networks, 
working to improve the security and resiliency of critical 
infrastructure, whether in public or private hands, and 
investigating and prosecuting cyber criminals.
    The Department of Defense is authorized to use a variety of 
flexible hiring tools to bring on intelligence personnel, 
including cyber experts, more quickly, as well as provide more 
competitive compensation, benefits, and incentives.\2\ This 
makes federal service in the area of cybersecurity more 
attractive. Specifically, the Secretary of Defense may create 
new positions for cyber personnel, and may hire employees to 
fill those jobs without using the traditional competitive 
hiring procedures. In addition, the Secretary has significant 
latitude in setting the pay and benefits for these new 
positions, adding on regional and other adjustments to pay, and 
offering further specific financial incentives. Essentially, 
these authorities allow the Defense Department and its 
component agency, the National Security Agency, to hire faster, 
pay more, and offer retention bonuses. These authorities have 
enabled the Department of Defense and the National Security 
Agency to build and maintain a strong cybersecurity workforce.
---------------------------------------------------------------------------
    \2\Codified at 10 U.S.C. Sec. Sec.  1601-1603.
---------------------------------------------------------------------------
    Recognizing the challenges of hiring and retaining a top-
tier cyber workforce, then-Secretary of Homeland Security 
Napolitano in 2009 asked the Homeland Security Advisory 
Council, comprised of leaders from state and local government, 
first responder communities, the private sector, and academia, 
to study the issue. The group observed in its 2012 report, 
Cyberskills Task Force Report, that ``the numbers of 
professionals with these mission-critical skills are so limited 
that government contractors and federal agencies compete with 
one another and the private sector to hire them.''\3\
---------------------------------------------------------------------------
    \3\See report from the Homeland Security Advisory Council, 
``CyberSkills Task Force Report,'' page 2 (November 2012) http://
www.dhs.gov/sites/default/files/publications/HSAC%20Cyber 
Skills%20Report%20-%20Final.pdf (last viewed June 16, 2014).
---------------------------------------------------------------------------
    The Council made a number of recommendations to DHS 
regarding management and policies for cybersecurity personnel, 
which the Department is well underway to implementing. The 
Council also made a recommendation to Congress: ``Congress 
should grant the Department [of Homeland Security] human 
capital flexibilities in making salary, hiring, promotion and 
separation decisions identical to those used by the National 
Security Agency for hiring and managing its cybersecurity 
workforce and other technical experts.''\4\
---------------------------------------------------------------------------
    \4\Id. at page 14.
---------------------------------------------------------------------------
    This bill seeks to do just that: it gives the Secretary of 
Homeland Security similar recruitment and retention authorities 
for cybersecurity professionals as currently possessed by the 
Secretary of Defense. With these tools, DHS will be able to 
hire at speed and salaries comparable to the Department of 
Defense. These authorities are needed by DHS to address the 
ever-growing cyber threat to our national and economic 
security. The bill would also require the Secretary to report 
annually on the progress of the program and to ensure adequate 
transparency and oversight of the recruitment and retention 
program.

                        III. Legislative History

    Chairman Carper introduced S. 2354 on May 20, 2014. The 
bill was referred to the Committee on Homeland Security and 
Governmental Affairs. The Committee considered S. 2354 at a 
business meeting on May 21, 2014.
    Senator Portman offered one amendment, requiring DHS to 
categorize its cybersecurity workforce and identify its 
critical cybersecurity needs and surpluses, and requiring the 
Government Accountability Office to report on DHS' progress 
toward implementing these measures. The amendment was adopted, 
as modified for technical edits, by voice vote on May 21, 2014.
    The Committee ordered the bill, as amended, reported 
favorably by voice vote on May 21, 2014. Senators present for 
both the vote on the amendment and the vote on the bill were 
Senators Carper, Pryor, Landrieu, McCaskill, Tester, Begich, 
Coburn, Johnson, Portman, and Enzi. Senator Landrieu asked to 
be recorded as voting present on the bill.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section provides the bill's short title, the ``DHS 
Cybersecurity Workforce Recruitment and Retention Act of 
2014.''

Section 2. Cybersecurity recruitment and retention

    This section adds a new section to the Homeland Security 
Act regarding cybersecurity recruitment and retention.
    Subsection (a) of the new section of the Homeland Security 
Act would provide several definitions including for the 
following terms: ``appropriate committees of Congress''; 
``collective bargaining agreement'', ``excepted service'', 
``preference eligible'', ``qualified position'', and ``senior 
executive service''.
    Subsection (b) of the new section of the Homeland Security 
Act would grant the Secretary of Homeland Security the 
authority to establish positions in the excepted service as the 
Secretary determines necessary to carry out the 
responsibilities of the Department relating to cybersecurity, 
to appoint individuals to these positions, and fix rates of pay 
of individuals appointed to these positions. The subsection 
provides that the Secretary shall fix the rates for pay for 
positions established under this section in relation to the 
rates of pay provided for comparable positions in the 
Department of Defense. Under the subsection the Secretary could 
also grant additional compensation, incentives, and allowances 
consistent with comparable positions authorized by Title 5, 
United States Code.\5\ The subsection provides that within 120 
days of enactment of this section, the Secretary shall submit a 
report to appropriate committees of Congress outlining a plan 
for the use of the authorities provided under this section.
---------------------------------------------------------------------------
    \5\See, generally, 5 U.S.C. part III.
---------------------------------------------------------------------------
    Subsection (c) of the new section of the Homeland Security 
Act would require the Secretary to submit an annual report in 
each of the next four years: (1) regarding the process used for 
selecting individuals for positions established under the 
section; (2) describing how the Secretary plans to fulfill the 
critical need of the Department to recruit and retain employees 
in qualified positions; (3) providing various metrics on the 
employees hired in these positions; and (4) describing training 
provided to supervisors of employees hired in these positions.
    Subsection (d) of the new section of the Homeland Security 
Act would establish a three-year probationary period for all 
employees hired under this section.
    Subsection (e) of the new section of the Homeland Security 
Act would grant to an individual serving in a position on the 
date of enactment of this section that is chosen to be 
converted to a position in the excepted service under this 
section the right to refuse such conversion.

Section 3. Homeland security cybersecurity workforce assessment

    Subsection (a) provides a title for this section, the 
``Homeland Security Cybersecurity Workforce Assessment Act.''
    Subsection (b) provides definitions including for the 
following terms: ``appropriate Congressional committees'', 
``cybersecurity workforce category'', ``data element code'', 
``specialty area'', ``Department'', ``Director'', and 
``Secretary''.
    Subsection (c) requires the Secretary to identify and 
categorize all cybersecurity positions (both open and filled) 
across the Department, and report to Congress not one year 
later.
    Subsection (d) requires the Secretary to identify areas of 
critical need for cybersecurity personnel based on the work 
under subsection (c). The subsection requires the Director of 
the Office of Personnel Management to provide the Secretary 
with timely guidance for identifying cybersecurity positions 
with current and upcoming shortages. The subsection requires 
the Secretary, in consultation with the Director, to identify 
specialty areas of critical need for cybersecurity workforce 
across the Department and submit a progress report.
    Subsection (e) requires the Comptroller General of the 
United States to monitor the implementation of this section and 
report to Congress not more than three years after enactment of 
the legislation.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                      July 3, 2014.
Hon. Tom Carper,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2354, the DHS 
Cybersecurity Workforce Recruitment and Retention Act of 2014.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 2354--DHS Cybersecurity Workforce Recruitment and Retention Act of 
        2014

    Summary: S. 2354 would provide the Department of Homeland 
Security (DHS) with enhanced authorities to hire and compensate 
DHS employees who perform roles that are necessary for the 
department to complete its cybersecurity mission. The bill also 
would require DHS to identify critical cybersecurity positions 
within the department that are vacant, and to report annually 
over the next five years on its efforts to fill those 
positions. Assuming appropriation of the necessary amounts, CBO 
estimates that implementing the bill would cost $104 million 
over the 2015-2019 period.
    Pay-as-you-go procedures do not apply to this legislation 
because it would not affect direct spending or revenues.
    S. 2354 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 2354 is shown in the following table. 
The costs of this legislation fall within budget function 050 
(national defense).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                                                                          2015-
                                                              2015     2016     2017     2018     2019     2019
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.............................        0       24       25       26       30      106
Estimated Outlays.........................................        0       23       25       26       30     104
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not sum to totals because of rounding.

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the beginning of fiscal year 2015 and 
that spending will follow historical patterns for similar 
activities.

DHS Cybersecurity Personnel Authorities

    Section 2 would provide DHS with enhanced authority to hire 
and compensate DHS employees who perform cybersecurity 
functions for the department. Under such authority DHS could 
convert eligible positions into the excepted service and would 
have expanded flexibility to determine pay and bonuses for 
employees in those positions. (Excepted service authorities 
allow for expedited hiring of individuals into federal service 
by allowing agencies to fill positions without following the 
procedures, rules, and classifications required for hiring 
employees into the competitive service.)
    The Transportation Security Administration (TSA) has hiring 
and pay authorities similar to those that would be provided by 
S. 2354. CBO analyzed data provided by the Office of Personnel 
Management for TSA employees in the field of information 
technology management and found that, after accounting for 
years of service and education, employees in that category 
earned about 15 percent more at TSA than elsewhere at DHS. On 
that basis, CBO anticipates that pay for positions established 
in the excepted service under this proposal would increase by 
about 15 percent above current levels.
    According to DHS, approximately 1,500 employees, mostly in 
the general schedule grades GS-13, GS-14, and GS-15, would move 
into a new pay plan for cybersecurity specialists under this 
provision. However, CBO estimates that 100 of those individuals 
are in TSA, and would not see a pay increase. For the remaining 
1,400 employees, based on the difference in pay and the number 
and grades of the affected employees, CBO estimates that 
implementing this provision would cost $104 million over the 
2016-2019 period, assuming appropriation of the necessary 
amounts.

Homeland Security Cybersecurity Workforce Assessment

    S. 2354 also would require DHS to identify critical 
cybersecurity positions within the department that are 
currently unfilled, and to report annually over the next five 
years on its efforts to fill such positions. In conducting the 
analysis and preparing those reports, CBO expects that DHS 
would be able to draw on its current efforts and utilize 
several previous reports--such as the National Cybersecurity 
Workforce Framework, the Information Technology Workforce 
Assessment for Cybersecurity, and DHS's Coordinated Recruiting 
and Outreach Strategy; therefore, we estimate that implementing 
the new requirements would not have a significant cost.
    Pay-As-You-Go Considerations: None.
    Intergovernmental and private-sector impact: S. 2354 
contains no intergovernmental or private-sector mandates as 
defined in UMRA.
    Estimate prepared by: Federal costs: Jason Wheelock; Impact 
on state, local, and tribal governments: Melissa Merrell; 
Impact on the private sector: Elizabeth Bass.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2354 as reported are shown as follows (existing law proposed 
to be omitted is enclosed in brackets, new matter is printed in 
italic, and existing law in which no change is proposed is 
shown in roman):

                     HOMELAND SECURITY ACT OF 2002


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) * * *
    (b) Table of Contents.--The table of contents for this Act 
is as follows:

           *       *       *       *       *       *       *


      TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

     * * * * * * *

                    Subtitle C--Information Security

Sec. 221. Procedures for information sharing.
     * * * * * * *
Sec. 226. Cybersecurity recruitment and retention
     * * * * * * *

TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

           *       *       *       *       *       *       *


Subtitle C--Information Security

           *       *       *       *       *       *       *


SEC. 226. CYBERSECURITY RECRUITMENT AND RETENTION.

    (a) Definitions.--In this section:
          (1) Appropriate committees of congress.--The term 
        ``appropriate committees of Congress'' means the 
        Committee on Homeland Security and Governmental Affairs 
        and the Committee on Appropriations of the Senate and 
        the Committee on Homeland Security and the Committee on 
        Appropriations of the House of Representatives.
          (2) Collective bargaining agreement.--The term 
        ``collective bargaining agreement'' has the meaning 
        given that term in section 7103(a)(8) of title 5, 
        United States Code.
          (3) Excepted service.--The term ``excepted service'' 
        has the meaning given that term in section 2103 of 
        title 5, United States Code.
          (4) Preference eligible.--The term ``preference 
        eligible'' has the meaning given that term in section 
        2108 of title 5, United States Code.
          (5) Qualified position.--The term ``qualified 
        position'' means a position, designated by the 
        Secretary for the purpose of this section, in which the 
        incumbent performs, manages, or supervises functions 
        that execute the responsibilities of the Department 
        relating to cybersecurity.
          (6) Senior executive service.--The term ``Senior 
        Executive Service'' has the meaning given that term in 
        section 2101a of title 5, United States Code.
    (b) General Authority.--
          (1) Establish positions, appoint personnel, and fix 
        rates of pay.--
                  (A) General authority.--The Secretary may--
                          (i) establish, as positions in the 
                        excepted service, such qualified 
                        positions in the Department as the 
                        Secretary determines necessary to carry 
                        out the responsibilities of the 
                        Department relating to cybersecurity, 
                        including positions formerly identified 
                        as--
                                  (I) senior level positions 
                                designated under section 5376 
                                of title 5, United States Code; 
                                and
                                  (II) positions in the Senior 
                                Executive Service;
                          (ii) appoint an individual to a 
                        qualified position (after taking into 
                        consideration the availability of 
                        preference eligibles for appointment to 
                        the position); and
                          (iii) subject to the requirements of 
                        paragraphs (2) and (3), fix the 
                        compensation of an individual for 
                        service in a qualified position.
                  (B) Construction with other laws.--The 
                authority of the Secretary under this 
                subsection applies without regard to the 
                provisions of any other law relating to the 
                appointment, number, classification, or 
                compensation of employees.
          (2) Basic pay.--
                  (A) Authority to fix rates of basic pay.--In 
                accordance with this section, the Secretary 
                shall fix the rates of basic pay for any 
                qualified position established under paragraph 
                (1) in relation to the rates of pay provided 
                for employees in comparable positions in the 
                Department of Defense and subject to the same 
                limitations on maximum rates of pay established 
                for such employees by law or regulation.
                  (B) Prevailing rate systems.--The Secretary 
                may, consistent with section 5341 of title 5, 
                United States Code, adopt such provisions of 
                that title as provide for prevailing rate 
                systems of basic pay and may apply those 
                provisions to qualified positions for employees 
                in or under which the Department may employ 
                individuals described by section 5342(a)(2)(A) 
                of that title.
          (3) Additional compensation, incentives, and 
        allowances.--
                  (A) Additional compensation based on title 5 
                authorities.--The Secretary may provide 
                employees in qualified positions compensation 
                (in addition to basic pay), including benefits, 
                incentives, and allowances, consistent with, 
                and not in excess of the level authorized for, 
                comparable positions authorized by title 5, 
                United States Code.
                  (B) Allowances in nonforeign areas.--An 
                employee in a qualified position whose rate of 
                basic pay is fixed under paragraph (2)(A) shall 
                be eligible for an allowance under section 5941 
                of title 5, United States Code, on the same 
                basis and to the same extent as if the employee 
                was an employee covered by such section 5941, 
                including eligibility conditions, allowance 
                rates, and all other terms and conditions in 
                law or regulation.
          (4) Plan for execution of authorities.--Not later 
        than 120 days after the date of enactment of this 
        section, the Secretary shall submit a report to the 
        appropriate committees of Congress with a plan for the 
        use of the authorities provided under this subsection.
          (5) Collective bargaining agreements.--Nothing in 
        paragraph (1) may be construed to impair the continued 
        effectiveness of a collective bargaining agreement with 
        respect to an office, component, subcomponent, or 
        equivalent of the Department that is a successor to an 
        office, component, subcomponent, or equivalent of the 
        Department covered by the agreement before the 
        succession.
          (6) Required regulations.--The Secretary, in 
        coordination with the Director of the Office of 
        Personnel Management, shall prescribe regulations for 
        the administration of this section.
    (c) Annual Report.--Not later than 1 year after the date of 
enactment of this section, and every year thereafter for 4 
years, the Secretary shall submit to the appropriate committees 
of Congress a detailed report that--
          (1) discusses the process used by the Secretary in 
        accepting applications, assessing candidates, ensuring 
        adherence to veterans' preference, and selecting 
        applicants for vacancies to be filled by an individual 
        for a qualified position;
          (2) describes--
                  (A) how the Secretary plans to fulfill the 
                critical need of the Department to recruit and 
                retain employees in qualified positions;
                  (B) the measures that will be used to measure 
                progress; and
                  (C) any actions taken during the reporting 
                period to fulfill such critical need;
          (3) discusses how the planning and actions taken 
        under paragraph (2) are integrated into the strategic 
        workforce planning of the Department;
          (4) provides metrics on actions occurring during the 
        reporting period, including--
                  (A) the number of employees in qualified 
                positions hired by occupation and grade and 
                level or pay band;
                  (B) the placement of employees in qualified 
                positions by directorate and office within the 
                Department;
                  (C) the total number of veterans hired;
                  (D) the number of separations of employees in 
                qualified positions by occupation and grade and 
                level or pay band;
                  (E) the number of retirements of employees in 
                qualified positions by occupation and grade and 
                level or pay band; and
                  (F) the number and amounts of recruitment, 
                relocation, and retention incentives paid to 
                employees in qualified positions by occupation 
                and grade and level or pay band; and
          (5) describes the training provided to supervisors of 
        employees in qualified positions at the Department on 
        the use of the new authorities.
    (d) Three-Year Probationary Period.--The probationary 
period for all employees hired under the authority established 
in this section shall be 3 years.
    (e) Incumbents of Existing Competitive Service Positions.--
          (1) In general.--An individual serving in a position 
        on the date of enactment of this section that is 
        selected to be converted to a position in the excepted 
        service under this section shall have the right to 
        refuse such conversion.
          (2) Subsequent conversion.--After the date on which 
        an individual who refuses a conversion under paragraph 
        (1) stops serving in the position selected to be 
        converted, the position may be converted to a position 
        in the excepted service.

           *       *       *       *       *       *       *


TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *


Subpart B--Employment and Retention

           *       *       *       *       *       *       *


CHAPTER 31--AUTHORITY FOR EMPLOYMENT

           *       *       *       *       *       *       *



Subchapter II--The Senior Executive Service

           *       *       *       *       *       *       *



Sec. 3132. Definitions and exclusions

    (a) For the Purpose of This Subchapter.--
          (1) * * *

           *       *       *       *       *       *       *

          (2) ``Senior Executive Service position'' means any 
        position in an agency which is classified above GS-15 
        pursuant to section 5108 or in level IV or V of the 
        Executive Schedule, or an equivalent position, which is 
        not required to be filled by an appointment by the 
        President by and with the advice and consent of the 
        Senate, and in which an employee--
                  (A) * * *

           *       *       *       *       *       *       *

        but does not include--
                          (i) any position in the Foreign 
                        Service of the United States; [or]
                          (ii) an administrative law judge 
                        position under section 3105 of this 
                        title; or
                          (iii) any position established as a 
                        qualified position in the excepted 
                        service by the Secretary of Homeland 
                        Security under section 226 of the 
                        Homeland Security Act of 2002;

           *       *       *       *       *       *       *


                                  [all]
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