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: 

‘‘§ 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. 
S. 1691—2 

‘‘(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 
S. 1691—3 

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, 
S. 1691—4 

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); 
S. 1691—5 

‘‘(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)— 
S. 1691—6 

‘‘(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 
S. 1691—7 

‘‘(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 
S. 1691—8 

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. 
S. 1691—9 

‘‘(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— 
S. 1691—10 

(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 
S. 1691—11 

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. 
S. 1691—12 

‘‘(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 ALLOW- ANCES.— ‘‘(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 
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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 
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‘‘(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 POSI- TIONS.— ‘‘(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 
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(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 
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(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.