Posted: 3:04 pm PT

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On September 28, House Permanent Select Committee on Intelligence Chairman Devin Nunes introduced the “Foreign Service Optimization Act of 2016” in the House of Representatives to amend the Foreign Service Act of 1980 to require a period of service at an overseas post of at least four years, and to amend title 10, United States Code, to require a tour of duty at defense attache offices of at least four years.

Section 2(3)(A) of the bill extends the tour of duty of Foreign Service employees overseas from the current 2-3 years to a period of “not fewer than four consecutive years and not more than six consecutive years.” For those not in the Foreign Service, entry level employees typically serve 2-year tours. While the regular tour of duty is 3 years, there are some exception of 1-year tours, and regular tours can have 1-year extensions.

Section 2(3)(B) of the bill provides for a reduction of the period of assignment through a waiver by the Secretary of State in the case of unhealthful posts, or in posts where there is war, armed conflict, civil strife, or similar hardship or other extreme conditions. The bill requires the Secretary to annually submit to Congress a report on any such reductions/waivers including an explanation of the reasons for the waivers.

Section 2(4) this bill says that the Secretary of State “shall assure that members of the Service who have demonstrated a useful knowledge of the principal languages or dialects of the countries in which the posts are located to which such members are assigned, such members are assigned to two consecutive tours of duty.’’

H.R.6271 also includes Section 3 which is a mirror provisions that also lengthens the tours of duty for members of the armed forces serving as defense attachés, and civilian employees of the Defense Intelligence Agency (DIA) assigned to a Defense Attaché Office outside the United States.

We wondered after reading this if the language of Section 2(4) on “two consecutive tours of duty” for those with language skills is mandatory.

The FAA guru on Plan Language Program notes “nearly every jurisdiction has held that the word “shall” is confusing because it can also mean “may, will or must.” Legal reference books like the Federal Rules of Civil Procedure no longer use the word “shall.” Even the Supreme Court ruled that when the word “shall” appears in statutes, it means “may.” The Federal Register Document Drafting Handbook (Section 3) even states that drafters “use ‘must’ instead of ‘shall’ to impose a legal obligation on your reader.” But he further notes that though “must” has come to be the only clear, valid way to express “mandatory,” most parts of the Code of Federal Regulations (CFRs) that govern federal departments still use the word “shall” for that purpose.

With that in mind, we look at this bill’s provision for two consecutive tours of duty as a new congressional requirement.

Here is what Chairman Nunes said about this bill:

“This is a simple but important corrective measure to ensure foreign service officers and defense attachés develop the local expertise and language skills needed to fulfill their mission,” said Chairman Nunes. “It’s also a crucial money-saving measure that enables the U.S. government to get the best return on its investments in foreign language training, and it will reduce the ever increasing costs of moving embassy employees every two years.”

Chairman Devin Nunes has served in the U.S. House of Representatives since 2003. He currently represents California’s 22nd congressional district, which is located in the San Joaquin Valley and includes portions of Tulare and Fresno Counties. Nunes is Chairman of the House Permanent Select Committee on Intelligence and a member of the Ways and Means Committee.

According to congress.gov, his top policy area based on his congressional record is taxation, followed by health, armed forces and national security, then international affairs. He has sponsored 102 bills and introduced 1226 bills, 3 of which became law.

One angle that Foreign Service watchers might find interesting? In August 2015, Gregory Hicks of the Benghazi controversy was reportedly assigned as senior policy advisor and State Department fellow in the office of Rep. Nunes. We do not know if Mr. Hicks was involved in the drafting of this bill but we note that the date on Mr. Nunes’ draft bill is August 5, 2016. Mr. Hicks retired from the Foreign Service in August 2016.

We’re working on a separate post reviewing the provisions of this bill. For now, go ahead and read the draft bill. Click on the lower right hand corner arrow in the box below to maximize view.



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