Senate Report 116-129 - TO AMEND SECTION 3116 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE APPLICABILITY OF THE APPOINTMENT LIMITATIONS FOR STUDENTS APPOINTED UNDER THE EXPEDITED HIRING AUTHORITY FOR POST-SECONDARY STUDENTS

[Senate Report 116-129]
[From the U.S. Government Publishing Office]

Calendar No. 241
116th Congress } { Report
SENATE
1st Session } { 116-129
_______________________________________________________________________

TO AMEND SECTION 3116 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE
APPLICABILITY OF THE APPOINTMENT LIMITATIONS FOR STUDENTS APPOINTED
UNDER THE EXPEDITED HIRING AUTHORITY FOR POST-SECONDARY STUDENTS

__________

R E P O R T

of the

COMMITTEE ON HOMELAND SECURITY AND

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

to accompany

S. 2169

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

October 15, 2019.--Ordered to be printed

__________

U.S. GOVERNMENT PUBLISHING OFFICE

99-010 WASHINGTON : 2019

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Clark A. Hedrick, Counsel
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Anne E. Nelson, Minority Brookings Fellow
Marie E. Talarico, Minority Staff Assistant
Laura W. Kilbride, Chief Clerk

Calendar No. 241
116th Congress } { Report
SENATE
1st Session } { 116-129

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

_______

October 15, 2019.--Ordered to be printed

_______

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

R E P O R T

[To accompany S. 2169]

[Including cost estimate of the Congressional Budget Office]

The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2169), to amend
section 3116 of title 5, United States Code, to clarify the
applicability of the appointment limitations for students
appointed under the expedited hiring authority for post-
secondary students, 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..................................3
VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............5

I. Purpose and Summary

The purpose of S. 2169 is to allow Federal agencies the
flexibility to directly hire qualified post-secondary students
and recent graduates outside the Federal competitive
examination process.

II. Background and the Need for Legislation

Over the past several decades, the concern over an
impending Federal employee ``retirement wave'' has increased as
agencies have struggled to hire young adults.\1\ The Federal
Government authorized a number of programs since 1965
specifically targeted at reducing the barriers for students and
recent graduates in the Federal hiring process.\2\ Most
recently, the Fiscal Year 2019 John S. McCain National Defense
Authorization Act (FY19 NDAA) authorized Federal agencies to
directly recruit and hire post-secondary students and recent
graduates to civilian professional and administration positions
in the competitive service.\3\ However, the FY19 NDAA included
legislative text that limits the application of this direct
hire authority. The FY19 NDAA limited the number of direct
hires permitted under this authority each year to a percentage
of direct hires made for college students and recent graduates
to the competitive service positions in the previous fiscal
year.\4\
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\1\S. Rep. No. 115-205, at 1 (2018).
\2\See, e.g., Exec. Order No. 11202, 30 Fed. Reg. 3185 (Mar. 9,
1965); Exec. Order No. 11813, 39 Fed. Reg. 36,317 (Oct. 9, 1974); Exec.
Order. No. 12008, 42 Fed. Reg. 43,373 (Aug. 25, 1977) (amended by Exec.
Order No. 12107, 44 Fed. Reg. 1055 (Jan. 3, 1979)); Exec. Order No.
12015, 42 Fed. Reg. 56,947 (Oct. 31, 1977) (amended by Exec. Order No.
12107, 44 Fed. Reg. 1055 (Jan. 3, 1979) and Exec. Order No. 13024, 61
Fed. Reg. 58,125 (Nov. 12, 1996)); Exec. Order No. 12364, 47 Fed. Reg.
22,931 (May 26, 1982) (amended by Exec. Order No. 12645, 53 Fed. Reg.
26,570 (July 12, 1988)); Exec. Order No. 12596, 52 Fed. Reg. 17,357
(May 11, 1987); Exec. Order No. 13162, 65 Fed. Reg. 43,211 (July 12,
2000); Exec. Order No. 13318, 68 Fed. Reg. 56,515 (Sept. 30, 2003);
Exec. Order 13562, 75 Fed. Reg. 82,585 (Dec. 27, 2010).
\3\Fiscal Year 2019 John S. McCain National Defense Authorization
Act, Pub. L. 115-232, 1108, 132 Stat. 2005 (Aug. 13, 2018). See also S.
1887, 115th Cong. (2017).
\4\Id.
---------------------------------------------------------------------------
The Office of Personnel Management (OPM) notified the
Committee that the direct hire authority granted in the FY19
NDAA does not allow Federal agencies to make these hires as
intended:\5\
---------------------------------------------------------------------------
\5\Letter from Margaret M. Weichert, Acting Director, Office of
Personnel Mgmt., to Sens. James Lankford and Heidi Heitkamp, Chairman
and Ranking Member, S. Comm. on Homeland Sec. and Governmental
Affairs., Subcomm. on Regulatory Affairs and Fed. Mgmt. at 1-2 (Oct.
26, 2018) (on file with subcommittee).

Students currently come into the Federal service by
appointment to internships in the excepted service.
This poses a problem for the formula in the [FY19
NDAA], which instructs the number of students an agency
may appoint should be based on the number of
competitive service student appointments by the agency
in the previous fiscal year. Under the [FY19 NDAA]
formula, there may be no base for students appointed to
the competitive service in the previous fiscal year by
an agency, and zero students may be hired using the new
---------------------------------------------------------------------------
authority.

Without a correction to the FY19 NDAA language, agencies
``would not be able to count the number of students appointed
to the excepted service positions for application of the new
law's formula in addressing their expedited hiring needs.''\6\
---------------------------------------------------------------------------
\6\Id. at 2.
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This bill would make the necessary correction to allow
agencies to directly hire, for time-limited appointments,
students enrolled in or accepted for enrollment in an
institution of higher education and pursuing a baccalaureate or
graduate degree. Agencies would be able to make these direct
hires for professional or administrative positions at the GS-11
level or below and would be subject to a 15 percent limit of
students appointed to positions at this level in the previous
fiscal year. If an agency considers using this authority to
hire a student or recent graduate to an available position, it
must be publicly noticed. Agencies using this authority are
also required to report to Congress and to OPM on the use of
this authority and its impact on the workforce.

III. Legislative History

S. 2169 was introduced on July 18, 2019, by Senators James
Lankford, Gary Peters, and Kyrsten Sinema. The bill was
referred to the Committee on Homeland Security and Governmental
Affairs.
The Committee considered S. 2169 at a business meeting on
July 24, 2019. During the business meeting, Senator Thomas
Carper offered an amendment creating the personnel leave
categories of rest and recuperation leave for Federal employees
serving in combat or other high risk, high threat posts, and of
foreign holiday leave for Federal employees serving in a
foreign area. The Committee adopted the amendment by voice vote
and ordered the bill, as amended, reported favorably by voice
vote en bloc with Senators Johnson, Portman, Paul, Lankford,
Romney, Scott, Enzi, Hawley, Peters, Carper, Hassan, Sinema,
and Rosen present.

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

Section 1. Clarification of limitation on expedited hiring authority
for post-secondary students

This section limits the number of students that can be
directly hired into a competitive service position to 15
percent of the number of students that the agency head
appointed during the previous fiscal year to a position at the
GS-11 level, or an equivalent level, or below.

Section 2. Rest and recuperation leave and foreign holiday leave

Section 2 establishes two new categories of leave for
eligible Federal employees. Agencies may allow up to 20 days of
paid rest or recuperation leave, per year, to a civilian
employee serving in a combat zone or other high risk, high
threat post. Agencies may also grant up to five days of paid
foreign holiday leave each year for a civilian employee serving
in a foreign area to observe local holidays in that area. This
leave is granted if an agency head determines that observing
the local holiday is consistent with the practice of the host-
country or is in the best interest of the United States.
Subsection (b) amends the table of sections for subchapter
II of chapter 63 of title 5, United States Code, to include new
sections for rest and recuperation leave and for foreign
holiday leave.

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

U.S. Congress,
Congressional Budget Office,
Washington, DC, October 8, 2019.
Hon. Ron Johnson,
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. 2169, a bill to
amend section 3116 of title 5, United States Code, to clarify
the applicability of the appointment limitations for students
appointed under the expedited hiring authority for post-
secondary students.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dan Ready.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

S. 2169 would permit federal agencies to provide additional
leave for federal employees working in specified foreign areas.
Agencies could grant up to 5 days of leave to those employees
to recognize local holidays or to advance the diplomatic
interests of the United States. Under the bill, agencies could
also grant up to 20 days of leave for rest and recuperation to
federal employees in combat zones or other areas with high
levels of political violence or terrorism. Currently, agencies
may provide administrative leave for those purposes, but the
Administrative Leave Act of 2016 generally limits the amount to
10 days. Because final regulations implementing that law have
not been issued, those limitations have not yet gone into
effect.
The costs of the legislation, detailed in Table 1, largely
fall within budget functions 050 (national defense) and 150
(international affairs).
For this estimate, CBO assumes that the leave provisions
would take effect halfway through fiscal year 2020 and that the
costs would increase each year because of anticipated
inflation.

TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 2169
----------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
--------------------------------------------------------------
2020 2021 2022 2023 2024 2020-2024
----------------------------------------------------------------------------------------------------------------
Leave for Overseas Holidays
Estimated Authorization..................... 7 15 16 16 17 71
Estimated Outlays........................... 7 15 16 16 17 71
Leave for Rest and Recuperation
Estimated Authorization..................... 4 8 8 8 8 36
Estimated Outlays........................... 4 8 8 8 8 36
Total Changes
Estimated Authorization..................... 11 23 24 24 25 107
Estimated Outlays........................... 11 23 24 24 25 107
----------------------------------------------------------------------------------------------------------------

CBO estimates that the additional leave provided under the
bill would cost a total of $214 million between 2020 and 2024.
Of that amount, $142 million stems from the additional holiday
leave provided to employees working abroad, with annual costs
growing from $14 million in 2020 to $34 million in 2024.
According to the Department of Defense (DoD), the Department of
State, and the Office of Personnel Management (OPM),
approximately 50,000 federal employees are working abroad at a
daily cost of $450 per employee, on average. Using information
from those agencies, CBO estimates that roughly 25 percent of
those employees would receive the additional leave. If agencies
provided that leave to a larger proportion of employees, the
costs associated with providing holiday leave would be greater.
CBO also estimates that the additional leave for rest and
recuperation would cost $72 million over the next five years,
with annual costs rising from $8 million in 2020 to $16 million
in 2024. Using information from DoD and OPM, CBO estimates that
about 1,500 employees in combat zones would be granted on
average an additional 15 days of leave each year. According to
the Department of State, about 400 of its employees would
receive an additional 20 days of leave each year.
The costs included in this estimate equal 50 percent of the
total costs of implementing the bill's policies because on July
13, 2017, OPM published a notice of proposed rulemaking to
limit the amount of administrative leave agencies may use as
stipulated in the Administrative Leave Act of 2016.
CBO estimates that the other provisions of S. 2169 would
not significantly affect the budget.
The CBO staff contact for this estimate is Dan Ready. The
estimate was reviewed by H. Samuel Papenfuss, 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
the bill, 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):

UNITED STATES CODE

* * * * * * *

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

* * * * * * *

PART III--EMPLOYEES

* * * * * * *

Subpart B--Employment and Retention

* * * * * * *

CHAPTER 31--AUTHORITY FOR EMPLOYMENT

Subchapter I--Employment Authorities

* * * * * * *

SEC. 3116. EXPEDITED HIRING AUTHORITY FOR POST-SECONDARY STUDENTS;
COMPETITIVE SERVICE

(a) * * *

* * * * * * *

(d) Limitation on Appointments.--
(1) In general.--Except as provided in paragraph
(2), the total number of students that the head of an
agency may appoint under this section during a fiscal
year may not exceed the number equal to 15 percent of
the number of students that the agency head appointed
during the previous fiscal year to a position [in the
competitive service] at the GS-11 level, or an
equivalent level, or below.

* * * * * * *

Subpart E--Attendance and Leave

* * * * * * *

CHAPTER 63--LEAVE

* * * * * * *

Subchapter II--Other Paid Leave

* * * * * * *

Table of Sections
Sec.
6321. * * *
* * * * * * *
6329d. Rest and recuperation leave
6329e. Foreign holiday leave
* * * * * * *

SEC. 6329D. REST AND RECUPERATION LEAVE.

(a) Definitions.--In this section--
(1) the term ``agency''--
(A) means an Executive agency; and
(B) does not include the Government
Accountability Office;
(2) the term ``combat zone'' means--
(A) a geographic area designated by an
Executive Order of the President as an area in
which the Armed Forces are engaging or have
engaged in combat;
(B) an area designated by law to be treated
as a combat zone; or
(C) a location the Secretary of Defense has
certified for combat zone tax benefits due to
its direct support of military operations;
(3) the term ``employee'' has the meaning given the
term in section 6301;
(4) the term ``high risk, high threat post'' has the
meaning given the term in section 104 of the Omnibus
Diplomatic Security and Antiterrorism Act of 1986 (22
U.S.C. 4803); and
(5) the term ``leave year'' means the period
beginning on the first day of the first complete pay
period in a calendar year and ending on the day
immediately before the first day of the first complete
pay period in the following calendar year.
(b) Leave for Rest and Recuperation.--
(1) In general.--During a leave year, the head of an
agency may grant not more than 20 days of leave without
loss of or reduction in pay, leave to which an employee
is otherwise entitled under law, or credit for time or
service to a civilian employee of the agency serving in
a combat zone or other high risk, high threat post for
the purposes of rest and recuperation.
(2) Conversion of leave period into hours.--The 20
days of leave referred to in paragraph (1) shall be
converted to 160 hours of leave for full-time employees
and proportionally adjusted for employees with a part-
time tour of duty or an uncommon tour of duty in which
the hours for which leave may be charged are in excess
of 80 hours in a biweekly pay period.
(c) Discretionary Authority of Agency Head.--
(1) In general.--Use of the authority under
subsection (b) shall be at the sole and exclusive
discretion of the head of the agency concerned.
(2) Policies.--The head of an agency may prescribe
agency-wide policies to govern the use of the authority
under subsection (b) within the agency.
(d) Records.--An agency shall record leave provided
under this section separately from leave authorized
under any other provision of law.

SEC. 6329E. FOREIGN HOLIDAY LEAVE.

(a) Definitions.--In this section--
(1) the term ``agency''--
(A) means an Executive agency; and
(B) does not include the Government
Accountability Office;
(2) the term ``employee'' has the meaning given that
term in section 6301; and
(3) the term ``leave year'' means the period
beginning on the first day of the first complete pay
period in a calendar year and ending on the day
immediately before the first day of the first complete
pay period in the following calendar year.
(b) Leave for Local Holidays Observed in Foreign Areas.--
During a leave year, the head of an agency may grant not more
than 5 days of leave without loss of or reduction in pay, leave
to which an employee is otherwise entitled under law, or credit
for time or service to a civilian employee of the agency
serving in a foreign area for local holidays observed in the
foreign area--
(1) if the head of the agency determines that the
conduct of business during the local holidays would be
inconsistent with host-country practice or otherwise
not in the best interest of the United States; or
(2) for such other reasons as the head of the agency
determines necessary to advance the diplomatic
interests of the United States.
(c) Discretionary Authority of Agency Head.--
(1) In general.--Use of the authority under
subsection (b) shall be at the sole and exclusive
discretion of the head of the agency concerned.
(2) Policies.--The head of an agency may prescribe
agency-wide policies to govern the use of the authority
under subsection (b) within the agency.
(d) Records.--An agency shall record leave provided
under this section separately from leave authorized
under any other provision of law.

* * * * * * *

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