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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Enrolled Bill (ENR)]

        S.1691

                     One Hundred Thirteenth Congress

                                 of the

                        United States of America

                          AT THE SECOND SESSION

           Begun and held at the City of Washington on Friday,
           the third day of January, two thousand and fourteen

                                 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.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.
```