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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Engrossed in Senate (ES)]

113th CONGRESS
  2d Session
                                S. 1691

_______________________________________________________________________

                                 AN ACT

 
 To amend title 5, United States Code, to improve the security of the 
 United States border and to provide for reforms and rates of pay for 
                         border patrol agents.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Border Patrol Agent Pay Reform Act 
of 2014''.

SEC. 2. BORDER PATROL RATE OF PAY.

    (a) Purpose.--The purposes of this Act are--
            (1) to strengthen U.S. Customs and Border Protection and 
        ensure that border patrol agents are sufficiently ready to 
        conduct necessary work and will perform overtime hours in 
        excess of a 40-hour workweek based on the needs of U.S. Customs 
        and Border Protection; and
            (2) to ensure U.S. Customs and Border Protection has the 
        flexibility to cover shift changes and retains the right to 
        assign scheduled and unscheduled work for mission requirements 
        and planning based on operational need.
    (b) Rates of Pay.--Subchapter V of chapter 55 of title 5, United 
States Code, is amended by inserting after section 5549 the following:
``Sec. 5550. Border patrol rate of pay
    ``(a) Definitions.--In this section--
            ``(1) the term `basic border patrol rate of pay' means the 
        hourly rate of basic pay of the applicable border patrol, as 
        determined without regard to this section;
            ``(2) the term `border patrol agent' means an individual 
        who is appointed to a position assigned to the Border Patrol 
        Enforcement classification series 1896 or any successor series, 
        consistent with classification standards established by the 
        Office of Personnel Management;
            ``(3) the term `level 1 border patrol rate of pay' means 
        the hourly rate of pay equal to 1.25 times the otherwise 
        applicable hourly rate of basic pay of the applicable border 
        patrol agent;
            ``(4) the term `level 2 border patrol rate of pay' means 
        the hourly rate of pay equal to 1.125 times the otherwise 
        applicable hourly rate of basic pay of the applicable border 
        patrol agent; and
            ``(5) the term `work period' means a 14-day biweekly pay 
        period.
    ``(b) Receipt of Border Patrol Rate of Pay.--
            ``(1) Voluntary election.--
                    ``(A) In general.--Not later than 30 days before 
                the first day of each year beginning after the date of 
                enactment of this section, a border patrol agent shall 
                make an election whether the border patrol agent shall, 
                for that year, be assigned to--
                            ``(i) the level 1 border patrol rate of 
                        pay;
                            ``(ii) the level 2 border patrol rate of 
                        pay; or
                            ``(iii) the basic border patrol rate of 
                        pay, with additional overtime assigned as 
                        needed by U.S. Customs and Border Protection.
                    ``(B) Regulations.--The Director of the Office of 
                Personnel Management shall promulgate regulations 
                establishing procedures for elections under 
                subparagraph (A).
                    ``(C) Information regarding election.--Not later 
                than 60 days before the first day of each year 
                beginning after the date of enactment of this section, 
                U.S. Customs and Border Protection shall provide each 
                border patrol agent with information regarding each 
                type of election available under subparagraph (A) and 
                how to make such an election.
                    ``(D) Assignment in lieu of election.--
                Notwithstanding subparagraph (A)--
                            ``(i) a border patrol agent who fails to 
                        make a timely election under subparagraph (A) 
                        shall be assigned to the level 1 border patrol 
                        rate of pay;
                            ``(ii) a border patrol agent who is 
                        assigned a canine shall be assigned to the 
                        level 1 border patrol rate of pay;
                            ``(iii) if at any time U.S. Customs and 
                        Border Protection concludes that a border 
                        patrol agent is unable to perform overtime on a 
                        daily basis in accordance with this section, 
                        U.S. Customs and Border Protection shall assign 
                        the border patrol agent to the basic border 
                        patrol rate of pay until such time as U.S. 
                        Customs and Border Protection determines that 
                        the border patrol agent is able to perform 
                        scheduled overtime on a daily basis;
                            ``(iv) unless the analysis conducted under 
                        section 2(e) of the Border Patrol Agent Pay 
                        Reform Act of 2014 indicates that, in order to 
                        more adequately fulfill the operational 
                        requirements of U.S. Customs and Border 
                        Protection, such border patrol agents should be 
                        allowed to elect or be assigned to the level 1 
                        border patrol rate of pay or the level 2 border 
                        patrol rate of pay, a border patrol agent shall 
                        be assigned to the basic border patrol rate of 
                        pay if the agent works--
                                    ``(I) at U.S. Customs and Border 
                                Protection headquarters;
                                    ``(II) as a training instructor at 
                                a U.S. Customs and Border Protection 
                                training facility;
                                    ``(III) in an administrative 
                                position; or
                                    ``(IV) as a fitness instructor; and
                            ``(v) a border patrol agent may be assigned 
                        to the level 1 border patrol rate of pay or the 
                        level 2 border patrol rate of pay in accordance 
                        with subparagraph (E).
                    ``(E) Flexibility.--
                            ``(i) In general.--Except as provided in 
                        clauses (ii) and (iii), and notwithstanding any 
                        other provision of law, U.S. Customs and Border 
                        Protection shall take such action as is 
                        necessary, including the unilateral assignment 
                        of border patrol agents to the level 1 border 
                        patrol rate of pay or the level 2 border patrol 
                        rate of pay, to ensure that not more than 10 
                        percent of the border patrol agents stationed 
                        at a location are assigned to the level 2 
                        border patrol rate of pay or the basic border 
                        patrol rate of pay.
                            ``(ii) Waiver.--U.S. Customs and Border 
                        Protection may waive the limitation under 
                        clause (i) on the percent of border patrol 
                        agents stationed at a location who are assigned 
                        to the level 2 border patrol rate of pay or the 
                        basic border patrol rate of pay if, based on 
                        the analysis conducted under section 2(e) of 
                        the Border Patrol Agent Pay Reform Act of 2014, 
                        U.S. Customs and Border Protection determines 
                        it may do so and adequately fulfill its 
                        operational requirements.
                            ``(iii) Certain locations.--Clause (i) 
                        shall not apply to border patrol agents working 
                        at the headquarters of U.S. Customs and Border 
                        Protection or a training location of U.S. 
                        Customs and Border Protection.
                    ``(F) Canine care.--For a border patrol agent 
                assigned to provide care for a canine and assigned to 
                the level 1 border patrol rate of pay in accordance 
                with subparagraph (D)(ii)--
                            ``(i) that rate of pay covers all such 
                        care;
                            ``(ii) for the purposes of scheduled 
                        overtime under paragraph (2)(A)(ii), such care 
                        shall be counted as 1 hour of scheduled 
                        overtime on each regular workday without regard 
                        to the actual duration of such care or whether 
                        such care occurs on the regular workday; and
                            ``(iii) no other pay shall be paid to the 
                        border patrol agent for such care.
                    ``(G) Pay assignment continuity.--
                            ``(i) In general.--Not later than 1 year 
                        after the date of enactment of the Border 
                        Patrol Agent Pay Reform Act of 2014, and in 
                        consultation with the Office of Personnel 
                        Management, U.S. Customs and Border Protection 
                        shall develop and implement a plan to ensure, 
                        to the greatest extent practicable, that the 
                        assignment of a border patrol agent under this 
                        section during the 3 years of service before 
                        the border patrol agent becomes eligible for 
                        immediate retirement are consistent with the 
                        average border patrol rate of pay level to 
                        which the border patrol agent has been assigned 
                        during the course of the career of the border 
                        patrol agent.
                            ``(ii) Implementation.--Notwithstanding any 
                        other provision of law, U.S. Customs and Border 
                        Protection may take such action as is 
                        necessary, including the unilateral assignment 
                        of border patrol agents to the level 1 border 
                        patrol rate of pay, the level 2 border patrol 
                        rate of pay, or the basic border patrol rate of 
                        pay, to implement the plan developed under this 
                        subparagraph.
                            ``(iii) Reporting.--U.S. Customs and Border 
                        Protection shall submit the plan developed 
                        under clause (i) to the appropriate committees 
                        of Congress.
                            ``(iv) GAO review.--Not later than 6 months 
                        after U.S. Customs and Border Protection issues 
                        the plan required under clause (i), the 
                        Comptroller General of the United States shall 
                        submit to the appropriate committees of 
                        Congress a report on the effectiveness of the 
                        plan in ensuring that border patrol agents are 
                        not able to artificially enhance their 
                        retirement annuities.
                            ``(v) Definition.--In this subparagraph, 
                        the term `appropriate committees of Congress' 
                        means--
                                    ``(I) the Committee on Homeland 
                                Security and Governmental Affairs and 
                                the Committee on Appropriations of the 
                                Senate; and
                                    ``(II) the Committee on Homeland 
                                Security, the Committee on Oversight 
                                and Government Reform, and the 
                                Committee on Appropriations of the 
                                House of Representatives.
                            ``(vi) Rule of construction.--Nothing in 
                        this subparagraph shall be construed to limit 
                        the ability of U.S. Customs and Border 
                        Protection to assign border patrol agents to 
                        border patrol rates of pay as necessary to meet 
                        operational requirements.
            ``(2) Level 1 border patrol rate of pay.--For a border 
        patrol agent who is assigned to the level 1 border patrol rate 
        of pay--
                    ``(A) the border patrol agent shall have a regular 
                tour of duty consisting of 5 workdays per week with--
                            ``(i) 8 hours of regular time per workday, 
                        which may be interrupted by an unpaid off-duty 
                        meal break; and
                            ``(ii) 2 additional hours of scheduled 
                        overtime during each day the agent performs 
                        work under clause (i);
                    ``(B) for paid hours of regular time described in 
                subparagraph (A)(i), the border patrol agent shall 
                receive pay at the level 1 border patrol rate of pay;
                    ``(C) compensation for the hours of regularly 
                scheduled overtime work described in subparagraph 
                (A)(ii) is provided indirectly through the 25 percent 
                supplement within the level 1 border patrol rate of 
                pay, and the border patrol agent may not receive for 
                such hours--
                            ``(i) any compensation in addition to the 
                        compensation under subparagraph (B) under this 
                        section or any other provision of law; or
                            ``(ii) any compensatory time off;
                    ``(D) the border patrol agent shall receive 
                compensatory time off or pay at the overtime hourly 
                rate of pay for hours of work in excess of 100 hours 
                during a work period, as determined in accordance with 
                section 5542(g);
                    ``(E) the border patrol agent shall be charged 
                corresponding amounts of paid leave, compensatory time 
                off, or other paid time off for each hour (or part 
                thereof) the agent is absent from work during regular 
                time (except that full days off for military leave 
                shall be charged when required);
                    ``(F) if the border patrol agent is absent during 
                scheduled overtime described in subparagraph (A)(ii)--
                            ``(i) the border patrol agent shall accrue 
                        an obligation to perform other overtime work 
                        for each hour (or part thereof) the border 
                        patrol agent is absent; and
                            ``(ii) any overtime work applied toward the 
                        obligation under clause (i) shall not be 
                        credited as overtime work under any other 
                        provision of law; and
                    ``(G) for the purposes of advanced training, the 
                border patrol agent--
                            ``(i) shall be paid at the level 1 border 
                        patrol rate of pay for the first 60 days of 
                        advanced training in a calendar year; and
                            ``(ii) for any advanced training in 
                        addition to the advanced training described in 
                        clause (i), shall be paid at the basic border 
                        patrol rate of pay.
            ``(3) Level 2 border patrol rate of pay.--For a border 
        patrol agent who is assigned to the level 2 border patrol rate 
        of pay--
                    ``(A) the border patrol agent shall have a regular 
                tour of duty consisting of 5 workdays per week with--
                            ``(i) 8 hours of regular time per workday, 
                        which may be interrupted by an unpaid off-duty 
                        meal break; and
                            ``(ii) 1 additional hour of scheduled 
                        overtime during each day the agent performs 
                        work under clause (i);
                    ``(B) for paid hours of regular time described in 
                subparagraph (A)(i), the border patrol agent shall 
                receive pay at the level 2 border patrol rate of pay;
                    ``(C) compensation for the hours of regularly 
                scheduled overtime work described in subparagraph 
                (A)(ii) is provided indirectly through the 12.5 percent 
                supplement within the level 2 border patrol rate of 
                pay, and the border patrol agent may not receive for 
                such hours--
                            ``(i) any compensation in addition to the 
                        compensation under subparagraph (B) under this 
                        section or any other provision of law; or
                            ``(ii) any compensatory time off;
                    ``(D) the border patrol agent shall receive 
                compensatory time off or pay at the overtime hourly 
                rate of pay for hours of work in excess of 90 hours 
                during a work period, as determined in accordance with 
                section 5542(g);
                    ``(E) the border patrol agent shall be charged 
                corresponding amounts of paid leave, compensatory time 
                off, or other paid time off for each hour (or part 
                thereof) the agent is excused from work during regular 
                time (except that full days off for military leave 
                shall be charged when required);
                    ``(F) if the border patrol agent is absent during 
                scheduled overtime described in subparagraph (A)(ii)--
                            ``(i) the border patrol agent shall accrue 
                        an obligation to perform other overtime work 
                        for each hour (or part thereof) the border 
                        patrol agent is absent; and
                            ``(ii) any overtime work applied toward the 
                        obligation under clause (i) shall not be 
                        credited as overtime work under any other 
                        provision of law; and
                    ``(G) for the purposes of advanced training, the 
                border patrol agent--
                            ``(i) shall be paid at the level 2 border 
                        patrol rate of pay for the first 60 days of 
                        advanced training in a calendar year; and
                            ``(ii) for any advanced training in 
                        addition to the advanced training described in 
                        clause (i), shall be paid at the basic border 
                        patrol rate of pay.
            ``(4) Basic border patrol rate of pay.--For a border patrol 
        agent who is assigned to the basic border patrol rate of pay--
                    ``(A) the border patrol agent shall have a regular 
                tour of duty consisting of 5 workdays per week with 8 
                hours of regular time per workday; and
                    ``(B) the border patrol agent shall receive 
                compensatory time off or pay at the overtime hourly 
                rate of pay for hours of work in excess of 80 hours 
                during a work period, as determined in accordance with 
                section 5542(g).
    ``(c) Eligibility for Other Premium Pay.--A border patrol agent--
            ``(1) shall receive premium pay for nightwork in accordance 
        with subsections (a) and (b) of section 5545 and Sunday and 
        holiday pay in accordance with section 5546, without regard to 
        the rate of pay to which the border patrol agent is assigned 
        under this section, except that--
                    ``(A) no premium pay for night, Sunday, or holiday 
                work shall be provided for hours of regularly scheduled 
                overtime work described in paragraph (2)(A)(ii) or 
                (3)(A)(ii) of subsection (b), consistent with the 
                requirements of paragraph (2)(C) or (3)(C) of 
                subsection (b); and
                    ``(B) section 5546(d) shall not apply and instead 
                eligibility for pay for, and the rate of pay for, any 
                overtime work on a Sunday or a designated holiday shall 
                be determined in accordance with this section and 
                section 5542(g);
            ``(2) except as provided in paragraph (3) or section 
        5542(g), shall not be eligible for any other form of premium 
        pay under this title; and
            ``(3) shall be eligible for hazardous duty pay in 
        accordance with section 5545(d).
    ``(d) Treatment as Basic Pay.--Any pay in addition to the basic 
border patrol rate of pay for a border patrol agent resulting from 
application of the level 1 border patrol rate of pay or the level 2 
border patrol rate of pay--
            ``(1) subject to paragraph (2), shall be treated as part of 
        basic pay solely for--
                    ``(A) purposes of sections 5595(c), 8114(e), 
                8331(3)(I), and 8704(c);
                    ``(B) any other purpose that the Director of the 
                Office of Personnel Management may by regulation 
                prescribe; and
                    ``(C) any other purpose expressly provided for by 
                law; and
            ``(2) shall not be treated as part of basic pay for the 
        purposes of calculating overtime pay, night pay, Sunday pay, or 
        holiday pay under section 5542, 5545, or 5546.
    ``(e) Travel Time.--Travel time to and from home and duty station 
by a border patrol agent shall not be considered hours of work under 
any provision of law.
    ``(f) Leave Without Pay and Substitution of Hours.--
            ``(1) Regular time.--
                    ``(A) In general.--For a period of leave without 
                pay during the regular time of a border patrol agent 
                (as described in paragraph (2)(A)(i), (3)(A)(i), or 
                (4)(A) of subsection (b)) within a work period, an 
                equal period of work outside the regular time of the 
                border patrol agent, but in the same work period--
                            ``(i) shall be substituted and paid for at 
                        the rate applicable for the regular time; and
                            ``(ii) shall not be credited as overtime 
                        hours for any purpose.
                    ``(B) Priority for same day work.--In substituting 
                hours of work under subparagraph (A), work performed on 
                the same day as the period of leave without pay shall 
                be substituted first.
                    ``(C) Priority for regular time substitution.--
                Hours of work shall be substituted for regular time 
                work under this paragraph before being substituted for 
                scheduled overtime under paragraphs (2), (3), and (4).
            ``(2) Overtime work.--
                    ``(A) In general.--For a period of absence during 
                scheduled overtime (as described in paragraph (2)(F) or 
                (3)(F) of subsection (b)) within a work period, an 
                equal period of additional work in the same work 
                period--
                            ``(i) shall be substituted and credited as 
                        scheduled overtime; and
                            ``(ii) shall not be credited as overtime 
                        hours under any other provision of law.
                    ``(B) Priority for same day work.--In substituting 
                hours of work under subparagraph (A), work performed on 
                the same day as the period of absence shall be 
                substituted first.
            ``(3) Application of compensatory time.--If a border patrol 
        agent does not have sufficient additional work in a work period 
        to substitute for all periods of absence during scheduled 
        overtime (as described in paragraph (2)(F) or (3)(F) of 
        subsection (b)) within that work period, any accrued 
        compensatory time off under section 5542(g) shall be applied to 
        satisfy the hours obligation.
            ``(4) Insufficient hours.--If a border patrol agent has a 
        remaining hours obligation of scheduled overtime after applying 
        paragraphs (2) and (3), any additional work in subsequent work 
        periods that would otherwise be credited under section 5542(g) 
        shall be applied towards the hours obligation until that 
        obligation is satisfied.
    ``(g) Authority To Require Overtime Work.--Nothing in this section 
shall be construed to limit the authority of U.S. Customs and Border 
Protection to require a border patrol agent to perform hours of 
overtime work in accordance with the needs of U.S. Customs and Border 
Protection, including if needed in the event of a local or national 
emergency.''.
    (c) Overtime Work.--
            (1) In general.--Section 5542 of title 5, United States 
        Code, is amended by adding at the end the following:
    ``(g) In applying subsection (a) with respect to a border patrol 
agent covered by section 5550, the following rules apply:
            ``(1) Notwithstanding the matter preceding paragraph (1) in 
        subsection (a), for a border patrol agent who is assigned to 
        the level 1 border patrol rate of pay under section 5550--
                    ``(A) hours of work in excess of 100 hours during a 
                14-day biweekly pay period shall be overtime work; and
                    ``(B) the border patrol agent--
                            ``(i) shall receive pay at the overtime 
                        hourly rate of pay (as determined in accordance 
                        with paragraphs (1) and (2) of subsection (a)) 
                        for hours of overtime work that are officially 
                        ordered or approved in advance of the workweek; 
                        and
                            ``(ii) except as provided in paragraphs (4) 
                        and (5), shall receive compensatory time off 
                        for an equal amount of time spent performing 
                        overtime work that is not overtime work 
                        described in clause (i).
            ``(2) Notwithstanding the matter preceding paragraph (1) in 
        subsection (a), for a border patrol agent who is assigned to 
        the level 2 border patrol rate of pay under section 5550--
                    ``(A) hours of work in excess of 90 hours during a 
                14-day biweekly pay period shall be overtime work; and
                    ``(B) the border patrol agent--
                            ``(i) shall receive pay at the overtime 
                        hourly rate of pay (as determined in accordance 
                        with paragraphs (1) and (2) of subsection (a)) 
                        for hours of overtime work that are officially 
                        ordered or approved in advance of the workweek; 
                        and
                            ``(ii) except as provided in paragraphs (4) 
                        and (5), shall receive compensatory time off 
                        for an equal amount of time spent performing 
                        overtime work that is not overtime work 
                        described in clause (i).
            ``(3) Notwithstanding the matter preceding paragraph (1) in 
        subsection (a), for a border patrol agent who is assigned to 
        the basic border patrol rate of pay under section 5550--
                    ``(A) hours of work in excess of 80 hours during a 
                14-day biweekly pay period shall be overtime work; and
                    ``(B) the border patrol agent--
                            ``(i) shall receive pay at the overtime 
                        hourly rate of pay (as determined in accordance 
                        with paragraphs (1) and (2) of subsection (a)) 
                        for hours of overtime work that are officially 
                        ordered or approved in advance of the workweek; 
                        and
                            ``(ii) except as provided in paragraphs (4) 
                        and (5), shall receive compensatory time off 
                        for an equal amount of time spent performing 
                        overtime work that is not overtime work 
                        described in clause (i).
            ``(4)(A) Except as provided in subparagraph (B), during a 
        14-day biweekly pay period, a border patrol agent may not earn 
        compensatory time off for more than 10 hours of overtime work.
            ``(B) U.S. Customs and Border Protection may, as it 
        determines appropriate, waive the limitation under subparagraph 
        (A) for an individual border patrol agent for hours of 
        irregular or occasional overtime work, but such waiver must be 
        approved in writing in advance of the performance of any such 
        work for which compensatory time off is earned under paragraph 
        (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a waiver request by a 
        border patrol agent is denied, the border patrol agent may not 
        be ordered to perform the associated overtime work.
            ``(5) A border patrol agent--
                    ``(A) may not earn more than 240 hours of 
                compensatory time off during a leave year;
                    ``(B) shall use any hours of compensatory time off 
                not later than the end of the 26th pay period after the 
                pay period during which the compensatory time off was 
                earned;
                    ``(C) shall be required to use 1 hour of 
                compensatory time off for each hour of regular time not 
                worked for which the border patrol agent is not on paid 
                leave or other paid time off or does not substitute 
                time in accordance with section 5550(f);
                    ``(D) shall forfeit any compensatory time off not 
                used in accordance with this paragraph and, regardless 
                of circumstances, shall not be entitled to any cash 
                value for compensatory time earned under section 5550;
                    ``(E) shall not receive credit towards the 
                computation of the annuity of the border patrol agent 
                for compensatory time, whether used or not; and
                    ``(F) shall not be credited with compensatory time 
                off if the value of such time off would cause the 
                aggregate premium pay of the border patrol agent to 
                exceed the limitation established under section 5547 in 
                the period in which it was earned.''.
            (2) Minimization of overtime.--U.S. Customs and Border 
        Protection shall, to the maximum extent practicable, avoid the 
        use of scheduled overtime work by border patrol agents.
    (d) Retirement.--Section 8331(3) of title 5, United States Code, is 
amended--
            (1) in subparagraph (G), by striking ``and'';
            (2) in subparagraph (H), by inserting ``and'' after the 
        semicolon;
            (3) by inserting a new subparagraph after subparagraph (H) 
        as follows:
                                    ``(I) with respect to a border 
                                patrol agent, the amount of 
                                supplemental pay received through 
                                application of the level 1 border 
                                patrol rate of pay or the level 2 
                                border patrol rate of pay for scheduled 
                                overtime within the regular tour of 
                                duty of the border patrol agent as 
                                provided in section 5550;''; and
            (4) in the undesignated matter following subparagraph (H), 
        by striking ``subparagraphs (B) through (H)'' and inserting 
        ``subparagraphs (B) through (I)''.
    (e) Comprehensive Staffing Analysis.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, U.S. Customs and Border Protection shall 
        conduct a comprehensive analysis, and submit to the Comptroller 
        General of the United States a report, that--
                    (A) examines the staffing requirements for U.S. 
                Border Patrol to most effectively meet its operational 
                requirements at each Border Patrol duty station;
                    (B) estimates the cost of the staffing requirements 
                at each Border Patrol duty station; and
                    (C) includes--
                            (i) a position-by-position review at each 
                        Border Patrol station to determine--
                                    (I) the duties assigned to each 
                                position;
                                    (II) how the duties relate to the 
                                operational requirements of U.S. Border 
                                Patrol; and
                                    (III) the number of hours border 
                                patrol agents in that position would 
                                need to work each pay period to meet 
                                the operational requirements of U.S. 
                                Border Patrol;
                            (ii) the metrics used to determine the 
                        number of hours of work performed at each 
                        Border Patrol station, broken down by the type 
                        of hours worked;
                            (iii) a cost analysis of the most recent 
                        full fiscal year by the type of full-time 
                        equivalent hours worked;
                            (iv) a cost estimate by the type of full-
                        time equivalent hours expected to be worked 
                        during the first full fiscal year after the 
                        date of enactment of this Act; and
                            (v) an analysis that compares the cost of 
                        assigning the full-time equivalent hours needed 
                        to meet the operational requirements of U.S. 
                        Border Patrol to existing border patrol agents 
                        through higher rates of pay versus recruiting, 
                        hiring, training, and deploying additional 
                        border patrol agents.
            (2) Independent validator.--Not later than 90 days after 
        the date on which the Comptroller General receives the report 
        under paragraph (1), the Comptroller General shall submit to 
        the appropriate committees of Congress a report that--
                    (A) examines the methodology used by U.S. Customs 
                and Border Protection to carry out the analysis; and
                    (B) indicates whether the Comptroller General 
                concurs with the findings in the report under paragraph 
                (1).
            (3) Definition.--In this subsection, the term ``appropriate 
        committees of Congress'' means--
                    (A) the Committee on Homeland Security and 
                Governmental Affairs and the Committee on 
                Appropriations of the Senate; and
                    (B) the Committee on Oversight and Government 
                Reform and the Committee on Appropriations of the House 
                of Representatives.
    (f) Rules of Construction.--Nothing in this section or the 
amendments made by this section shall be construed to--
            (1) limit the right of U.S. Customs and Border Protection 
        to assign both scheduled and unscheduled work to a border 
        patrol agent based on the needs of U.S. Customs and Border 
        Protection in excess of the hours of work normally applicable 
        under the election of the border patrol agent, regardless of 
        what the border patrol agent might otherwise have elected;
            (2) require compensation of a border patrol agent other 
        than for hours during which the border patrol agent is actually 
        performing work or using approved paid leave or other paid time 
        off; or
            (3) exempt a border patrol agent from any limitations on 
        pay, earnings, or compensation, including the limitations under 
        section 5547 of title 5, United States Code.
    (g) Technical and Conforming Amendments.--
            (1) Section 5547 of title 5, United States Code is amended 
        by--
                    (A) in subsection (a), in the matter preceding 
                paragraph (1)--
                            (i) by striking, ``and'' before ``5546''; 
                        and
                            (ii) by inserting ``, and 5550'' after 
                        ``5546 (a) and (b)''; and
                    (B) by adding at the end the following:
    ``(e) Any supplemental pay resulting from receipt of the level 1 
border patrol rate of pay or the level 2 border patrol rate of pay 
under section 5550 shall be considered premium pay in applying this 
section.''.
            (2) Section 13(a) of the Fair Labor Standards Act of 1938 
        (29 U.S.C. 213(a)) is amended--
                    (A) in paragraph (16), by striking ``or'' after the 
                semicolon;
                    (B) in paragraph (17), by striking the period at 
                the end and inserting ``; or''; and
                    (C) by adding at the end the following:
            ``(18) any employee who is a border patrol agent, as 
        defined in section 5550(a) of title 5, United States Code.''.
            (3) The table of sections for chapter 55 of title 5, United 
        States Code, is amended by inserting after the item relating to 
        section 5549 the following:

``5550. Border patrol rate of pay.''.
    (h) Regulations.--The Director of the Office of Personnel 
Management shall promulgate regulations to carry out this Act and the 
amendments made by this Act.

SEC. 3. CYBERSECURITY RECRUITMENT AND RETENTION.

    (a) In General.--At the end of subtitle C of title II of the 
Homeland Security Act of 2002 (6 U.S.C. 141 et seq.), add the 
following:

``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.
    ``(f) Study and Report.--Not later than 120 days after the date of 
enactment of this section, the National Protection and Programs 
Directorate shall submit a report regarding the availability of, and 
benefits (including cost savings and security) of using, cybersecurity 
personnel and facilities outside of the National Capital Region (as 
defined in section 2674 of title 10, United States Code) to serve the 
Federal and national need to--
            ``(1) the Subcommittee on Homeland Security of the 
        Committee on Appropriations and the Committee on Homeland 
        Security and Governmental Affairs of the Senate; and
            ``(2) the Subcommittee on Homeland Security of the 
        Committee on Appropriations and the Committee on Homeland 
        Security of the House of Representatives.''.
    (b) Conforming Amendment.--Section 3132(a)(2) of title 5, United 
States Code, is amended in the matter following subparagraph (E)--
            (1) in clause (i), by striking ``or'' at the end;
            (2) in clause (ii), by inserting ``or'' after the 
        semicolon; and
            (3) by inserting after clause (ii) the following:
            ``(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;''.
    (c) Table of Contents Amendment.--The table of contents in section 
1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is 
amended by inserting after the item relating to section 225 the 
following:

``Sec. 226. Cybersecurity recruitment and retention.''.

SEC. 4. HOMELAND SECURITY CYBERSECURITY WORKFORCE ASSESSMENT.

    (a) Short Title.--This section may be cited as the ``Homeland 
Security Cybersecurity Workforce Assessment Act''.
    (b) Definitions.--In this section:
            (1) Appropriate congressional committees.--The term 
        ``appropriate congressional committees'' means--
                    (A) the Committee on Homeland Security and 
                Governmental Affairs of the Senate;
                    (B) the Committee on Homeland Security of the House 
                of Representatives; and
                    (C) the Committee on House Administration of the 
                House of Representatives.
            (2) Cybersecurity work category; data element code; 
        specialty area.--The terms ``Cybersecurity Work Category'', 
        ``Data Element Code'', and ``Specialty Area'' have the meanings 
        given such terms in the Office of Personnel Management's Guide 
        to Data Standards.
            (3) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (4) Director.--The term ``Director'' means the Director of 
        the Office of Personnel Management.
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
    (c) National Cybersecurity Workforce Measurement Initiative.--
            (1) In general.--The Secretary shall--
                    (A) identify all cybersecurity workforce positions 
                within the Department;
                    (B) determine the primary Cybersecurity Work 
                Category and Specialty Area of such positions; and
                    (C) assign the corresponding Data Element Code, as 
                set forth in the Office of Personnel Management's Guide 
                to Data Standards which is aligned with the National 
                Initiative for Cybersecurity Education's National 
                Cybersecurity Workforce Framework report, in accordance 
                with paragraph (2).
            (2) Employment codes.--
                    (A) Procedures.--Not later than 90 days after the 
                date of the enactment of this Act, the Secretary shall 
                establish procedures--
                            (i) to identify open positions that include 
                        cybersecurity functions (as defined in the OPM 
                        Guide to Data Standards); and
                            (ii) to assign the appropriate employment 
                        code to each such position, using agreed 
                        standards and definitions.
                    (B) Code assignments.--Not later than 9 months 
                after the date of the enactment of this Act, the 
                Secretary shall assign the appropriate employment code 
                to--
                            (i) each employee within the Department who 
                        carries out cybersecurity functions; and
                            (ii) each open position within the 
                        Department that have been identified as having 
                        cybersecurity functions.
            (3) Progress report.--Not later than 1 year after the date 
        of the enactment of this Act, the Director shall submit a 
        progress report on the implementation of this subsection to the 
        appropriate congressional committees.
    (d) Identification of Cybersecurity Specialty Areas of Critical 
Need.--
            (1) In general.--Beginning not later than 1 year after the 
        date on which the employment codes are assigned to employees 
        pursuant to subsection (c)(2)(B), and annually through 2021, 
        the Secretary, in consultation with the Director, shall--
                    (A) identify Cybersecurity Work Categories and 
                Specialty Areas of critical need in the Department's 
                cybersecurity workforce; and
                    (B) submit a report to the Director that--
                            (i) describes the Cybersecurity Work 
                        Categories and Specialty Areas identified under 
                        subparagraph (A); and
                            (ii) substantiates the critical need 
                        designations.
            (2) Guidance.--The Director shall provide the Secretary 
        with timely guidance for identifying Cybersecurity Work 
        Categories and Specialty Areas of critical need, including--
                    (A) current Cybersecurity Work Categories and 
                Specialty Areas with acute skill shortages; and
                    (B) Cybersecurity Work Categories and Specialty 
                Areas with emerging skill shortages.
            (3) Cybersecurity critical needs report.--Not later than 18 
        months after the date of the enactment of this Act, the 
        Secretary, in consultation with the Director, shall--
                    (A) identify Specialty Areas of critical need for 
                cybersecurity workforce across the Department; and
                    (B) submit a progress report on the implementation 
                of this subsection to the appropriate congressional 
                committees.
    (e) Government Accountability Office Status Reports.--The 
Comptroller General of the United States shall--
            (1) analyze and monitor the implementation of subsections 
        (c) and (d); and
            (2) not later than 3 years after the date of the enactment 
        of this Act, submit a report to the appropriate congressional 
        committees that describes the status of such implementation.

            Passed the Senate September 18, 2014.

            Attest:

                                                             Secretary.
113th CONGRESS

  2d Session

                                S. 1691

_______________________________________________________________________

                                 AN ACT

 To amend title 5, United States Code, to improve the security of the 
 United States border and to provide for reforms and rates of pay for 
                         border patrol agents.
```