[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

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

 
 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

                                _______
                                

                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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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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