IC 

113TH CONGRESS 

2D SESSION S. 1691 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 19, 2014 

Referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Border Patrol Agent 

3 Pay Reform Act of 2014’’. 

4 SEC. 2. BORDER PATROL RATE OF PAY. 

5 (a) PURPOSE.—The purposes of this Act are— 

6 (1) to strengthen U.S. Customs and Border 

7 Protection and ensure that border patrol agents are 

8 sufficiently ready to conduct necessary work and will 

9 perform overtime hours in excess of a 40-hour work10 week based on the needs of U.S. Customs and Bor11 der Protection; and 

12 (2) to ensure U.S. Customs and Border Protec13 tion has the flexibility to cover shift changes and re14 tains the right to assign scheduled and unscheduled 

15 work for mission requirements and planning based 

16 on operational need. 

17 (b) RATES OF PAY.—Subchapter V of chapter 55 of 

18 title 5, United States Code, is amended by inserting after 

19 section 5549 the following: 

20 ‘‘§ 5550. Border patrol rate of pay 

21 ‘‘(a) DEFINITIONS.—In this section— 

22 ‘‘(1) the term ‘basic border patrol rate of pay’ 

23 means the hourly rate of basic pay of the applicable 

24 border patrol, as determined without regard to this 

25 section; 


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1 ‘‘(2) the term ‘border patrol agent’ means an 

2 individual who is appointed to a position assigned to 

3 the Border Patrol Enforcement classification series 

4 1896 or any successor series, consistent with classi5 fication standards established by the Office of Per6 sonnel Management; 

7 ‘‘(3) the term ‘level 1 border patrol rate of pay’ 

8 means the hourly rate of pay equal to 1.25 times the 

9 otherwise applicable hourly rate of basic pay of the 

10 applicable border patrol agent; 

11 ‘‘(4) the term ‘level 2 border patrol rate of pay’ 

12 means the hourly rate of pay equal to 1.125 times 

13 the otherwise applicable hourly rate of basic pay of 

14 the applicable border patrol agent; and 

15 ‘‘(5) the term ‘work period’ means a 14-day bi16 weekly pay period. 

17 ‘‘(b) RECEIPT OF BORDER PATROL RATE OF PAY.— 

18 ‘‘(1) VOLUNTARY ELECTION.— 

19 ‘‘(A) IN GENERAL.—Not later than 30 

20 days before the first day of each year beginning 

21 after the date of enactment of this section, a 

22 border patrol agent shall make an election 

23 whether the border patrol agent shall, for that 

24 year, be assigned to— 


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1 ‘‘(i) the level 1 border patrol rate of 

2 pay; 

3 ‘‘(ii) the level 2 border patrol rate of 

4 pay; or 

5 ‘‘(iii) the basic border patrol rate of 

6 pay, with additional overtime assigned as 

7 needed by U.S. Customs and Border Pro8 tection. 

9 ‘‘(B) REGULATIONS.—The Director of the 

10 Office of Personnel Management shall promul11 gate regulations establishing procedures for 

12 elections under subparagraph (A). 

13 ‘‘(C) INFORMATION REGARDING ELEC14 TION.—Not later than 60 days before the first 

15 day of each year beginning after the date of en16 actment of this section, U.S. Customs and Bor17 der Protection shall provide each border patrol 

18 agent with information regarding each type of 

19 election available under subparagraph (A) and 

20 how to make such an election. 

21 ‘‘(D) ASSIGNMENT IN LIEU OF ELEC22 TION.—Notwithstanding subparagraph (A)— 

23 ‘‘(i) a border patrol agent who fails to 

24 make a timely election under subparagraph 


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1 (A) shall be assigned to the level 1 border 

2 patrol rate of pay; 

3 ‘‘(ii) a border patrol agent who is as4 signed a canine shall be assigned to the 

5 level 1 border patrol rate of pay; 

6 ‘‘(iii) if at any time U.S. Customs and 

7 Border Protection concludes that a border 

8 patrol agent is unable to perform overtime 

9 on a daily basis in accordance with this 

10 section, U.S. Customs and Border Protec11 tion shall assign the border patrol agent to 

12 the basic border patrol rate of pay until 

13 such time as U.S. Customs and Border 

14 Protection determines that the border pa15 trol agent is able to perform scheduled 

16 overtime on a daily basis; 

17 ‘‘(iv) unless the analysis conducted 

18 under section 2(e) of the Border Patrol 

19 Agent Pay Reform Act of 2014 indicates 

20 that, in order to more adequately fulfill the 

21 operational requirements of U.S. Customs 

22 and Border Protection, such border patrol 

23 agents should be allowed to elect or be as24 signed to the level 1 border patrol rate of 

25 pay or the level 2 border patrol rate of 


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1 pay, a border patrol agent shall be as2 signed to the basic border patrol rate of 

3 pay if the agent works— 

4 ‘‘(I) at U.S. Customs and Border 

5 Protection headquarters; 

6 ‘‘(II) as a training instructor at a 

7 U.S. Customs and Border Protection 

8 training facility; 

9 ‘‘(III) in an administrative posi10 tion; or 

11 ‘‘(IV) as a fitness instructor; and 

12 ‘‘(v) a border patrol agent may be as13 signed to the level 1 border patrol rate of 

14 pay or the level 2 border patrol rate of pay 

15 in accordance with subparagraph (E). 

16 ‘‘(E) FLEXIBILITY.— 

17 ‘‘(i) IN GENERAL.—Except as pro18 vided in clauses (ii) and (iii), and notwith19 standing any other provision of law, U.S. 

20 Customs and Border Protection shall take 

21 such action as is necessary, including the 

22 unilateral assignment of border patrol 

23 agents to the level 1 border patrol rate of 

24 pay or the level 2 border patrol rate of 

25 pay, to ensure that not more than 10 perVerDate Sep 11 2014 00:59 Sep 20, 2014 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.RFH S1691

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1 cent of the border patrol agents stationed 

2 at a location are assigned to the level 2 

3 border patrol rate of pay or the basic bor4 der patrol rate of pay. 

5 ‘‘(ii) WAIVER.—U.S. Customs and 

6 Border Protection may waive the limitation 

7 under clause (i) on the percent of border 

8 patrol agents stationed at a location who 

9 are assigned to the level 2 border patrol 

10 rate of pay or the basic border patrol rate 

11 of pay if, based on the analysis conducted 

12 under section 2(e) of the Border Patrol 

13 Agent Pay Reform Act of 2014, U.S. Cus14 toms and Border Protection determines it 

15 may do so and adequately fulfill its oper16 ational requirements. 

17 ‘‘(iii) CERTAIN LOCATIONS.—Clause 

18 (i) shall not apply to border patrol agents 

19 working at the headquarters of U.S. Cus20 toms and Border Protection or a training 

21 location of U.S. Customs and Border Pro22 tection. 

23 ‘‘(F) CANINE CARE.—For a border patrol 

24 agent assigned to provide care for a canine and 


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1 assigned to the level 1 border patrol rate of pay 

2 in accordance with subparagraph (D)(ii)— 

3 ‘‘(i) that rate of pay covers all such 

4 care; 

5 ‘‘(ii) for the purposes of scheduled 

6 overtime under paragraph (2)(A)(ii), such 

7 care shall be counted as 1 hour of sched8 uled overtime on each regular workday 

9 without regard to the actual duration of 

10 such care or whether such care occurs on 

11 the regular workday; and 

12 ‘‘(iii) no other pay shall be paid to the 

13 border patrol agent for such care. 

14 ‘‘(G) PAY ASSIGNMENT CONTINUITY.— 

15 ‘‘(i) IN GENERAL.—Not later than 1 

16 year after the date of enactment of the 

17 Border Patrol Agent Pay Reform Act of 

18 2014, and in consultation with the Office 

19 of Personnel Management, U.S. Customs 

20 and Border Protection shall develop and 

21 implement a plan to ensure, to the greatest 

22 extent practicable, that the assignment of 

23 a border patrol agent under this section 

24 during the 3 years of service before the 

25 border patrol agent becomes eligible for 


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1 immediate retirement are consistent with 

2 the average border patrol rate of pay level 

3 to which the border patrol agent has been 

4 assigned during the course of the career of 

5 the border patrol agent. 

6 ‘‘(ii) IMPLEMENTATION.—Notwith7 standing any other provision of law, U.S. 

8 Customs and Border Protection may take 

9 such action as is necessary, including the 

10 unilateral assignment of border patrol 

11 agents to the level 1 border patrol rate of 

12 pay, the level 2 border patrol rate of pay, 

13 or the basic border patrol rate of pay, to 

14 implement the plan developed under this 

15 subparagraph. 

16 ‘‘(iii) REPORTING.—U.S. Customs 

17 and Border Protection shall submit the 

18 plan developed under clause (i) to the ap19 propriate committees of Congress. 

20 ‘‘(iv) GAO REVIEW.—Not later than 6 

21 months after U.S. Customs and Border 

22 Protection issues the plan required under 

23 clause (i), the Comptroller General of the 

24 United States shall submit to the appro25 priate committees of Congress a report on 


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1 the effectiveness of the plan in ensuring 

2 that border patrol agents are not able to 

3 artificially enhance their retirement annu4 ities. 

5 ‘‘(v) DEFINITION.—In this subpara6 graph, the term ‘appropriate committees of 

7 Congress’ means— 

8 ‘‘(I) the Committee on Homeland 

9 Security and Governmental Affairs 

10 and the Committee on Appropriations 

11 of the Senate; and 

12 ‘‘(II) the Committee on Home13 land Security, the Committee on 

14 Oversight and Government Reform, 

15 and the Committee on Appropriations 

16 of the House of Representatives. 

17 ‘‘(vi) RULE OF CONSTRUCTION.— 

18 Nothing in this subparagraph shall be con19 strued to limit the ability of U.S. Customs 

20 and Border Protection to assign border pa21 trol agents to border patrol rates of pay as 

22 necessary to meet operational require23 ments. 


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1 ‘‘(2) LEVEL 1 BORDER PATROL RATE OF PAY.— 

2 For a border patrol agent who is assigned to the 

3 level 1 border patrol rate of pay— 

4 ‘‘(A) the border patrol agent shall have a 

5 regular tour of duty consisting of 5 workdays 

6 per week with— 

7 ‘‘(i) 8 hours of regular time per work8 day, which may be interrupted by an un9 paid off-duty meal break; and 

10 ‘‘(ii) 2 additional hours of scheduled 

11 overtime during each day the agent per12 forms work under clause (i); 

13 ‘‘(B) for paid hours of regular time de14 scribed in subparagraph (A)(i), the border pa15 trol agent shall receive pay at the level 1 border 

16 patrol rate of pay; 

17 ‘‘(C) compensation for the hours of regu18 larly scheduled overtime work described in sub19 paragraph (A)(ii) is provided indirectly through 

20 the 25 percent supplement within the level 1 

21 border patrol rate of pay, and the border patrol 

22 agent may not receive for such hours— 

23 ‘‘(i) any compensation in addition to 

24 the compensation under subparagraph (B) 


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1 under this section or any other provision of 

2 law; or 

3 ‘‘(ii) any compensatory time off; 

4 ‘‘(D) the border patrol agent shall receive 

5 compensatory time off or pay at the overtime 

6 hourly rate of pay for hours of work in excess 

7 of 100 hours during a work period, as deter8 mined in accordance with section 5542(g); 

9 ‘‘(E) the border patrol agent shall be 

10 charged corresponding amounts of paid leave, 

11 compensatory time off, or other paid time off 

12 for each hour (or part thereof) the agent is ab13 sent from work during regular time (except that 

14 full days off for military leave shall be charged 

15 when required); 

16 ‘‘(F) if the border patrol agent is absent 

17 during scheduled overtime described in subpara18 graph (A)(ii)— 

19 ‘‘(i) the border patrol agent shall ac20 crue an obligation to perform other over21 time work for each hour (or part thereof) 

22 the border patrol agent is absent; and 

23 ‘‘(ii) any overtime work applied to24 ward the obligation under clause (i) shall 


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1 not be credited as overtime work under 

2 any other provision of law; and 

3 ‘‘(G) for the purposes of advanced train4 ing, the border patrol agent— 

5 ‘‘(i) shall be paid at the level 1 border 

6 patrol rate of pay for the first 60 days of 

7 advanced training in a calendar year; and 

8 ‘‘(ii) for any advanced training in ad9 dition to the advanced training described 

10 in clause (i), shall be paid at the basic bor11 der patrol rate of pay. 

12 ‘‘(3) LEVEL 2 BORDER PATROL RATE OF PAY.— 

13 For a border patrol agent who is assigned to the 

14 level 2 border patrol rate of pay— 

15 ‘‘(A) the border patrol agent shall have a 

16 regular tour of duty consisting of 5 workdays 

17 per week with— 

18 ‘‘(i) 8 hours of regular time per work19 day, which may be interrupted by an un20 paid off-duty meal break; and 

21 ‘‘(ii) 1 additional hour of scheduled 

22 overtime during each day the agent per23 forms work under clause (i); 

24 ‘‘(B) for paid hours of regular time de25 scribed in subparagraph (A)(i), the border paVerDate Sep 11 2014 00:59 Sep 20, 2014 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.RFH S1691

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1 trol agent shall receive pay at the level 2 border 

2 patrol rate of pay; 

3 ‘‘(C) compensation for the hours of regu4 larly scheduled overtime work described in sub5 paragraph (A)(ii) is provided indirectly through 

6 the 12.5 percent supplement within the level 2 

7 border patrol rate of pay, and the border patrol 

8 agent may not receive for such hours— 

9 ‘‘(i) any compensation in addition to 

10 the compensation under subparagraph (B) 

11 under this section or any other provision of 

12 law; or 

13 ‘‘(ii) any compensatory time off; 

14 ‘‘(D) the border patrol agent shall receive 

15 compensatory time off or pay at the overtime 

16 hourly rate of pay for hours of work in excess 

17 of 90 hours during a work period, as deter18 mined in accordance with section 5542(g); 

19 ‘‘(E) the border patrol agent shall be 

20 charged corresponding amounts of paid leave, 

21 compensatory time off, or other paid time off 

22 for each hour (or part thereof) the agent is ex23 cused from work during regular time (except 

24 that full days off for military leave shall be 

25 charged when required); 


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1 ‘‘(F) if the border patrol agent is absent 

2 during scheduled overtime described in subpara3 graph (A)(ii)— 

4 ‘‘(i) the border patrol agent shall ac5 crue an obligation to perform other over6 time work for each hour (or part thereof) 

7 the border patrol agent is absent; and 

8 ‘‘(ii) any overtime work applied to9 ward the obligation under clause (i) shall 

10 not be credited as overtime work under 

11 any other provision of law; and 

12 ‘‘(G) for the purposes of advanced train13 ing, the border patrol agent— 

14 ‘‘(i) shall be paid at the level 2 border 

15 patrol rate of pay for the first 60 days of 

16 advanced training in a calendar year; and 

17 ‘‘(ii) for any advanced training in ad18 dition to the advanced training described 

19 in clause (i), shall be paid at the basic bor20 der patrol rate of pay. 

21 ‘‘(4) BASIC BORDER PATROL RATE OF PAY.— 

22 For a border patrol agent who is assigned to the 

23 basic border patrol rate of pay— 

24 ‘‘(A) the border patrol agent shall have a 

25 regular tour of duty consisting of 5 workdays 


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1 per week with 8 hours of regular time per work2 day; and 

3 ‘‘(B) the border patrol agent shall receive 

4 compensatory time off or pay at the overtime 

5 hourly rate of pay for hours of work in excess 

6 of 80 hours during a work period, as deter7 mined in accordance with section 5542(g). 

8 ‘‘(c) ELIGIBILITY FOR OTHER PREMIUM PAY.—A 

9 border patrol agent— 

10 ‘‘(1) shall receive premium pay for nightwork in 

11 accordance with subsections (a) and (b) of section 

12 5545 and Sunday and holiday pay in accordance 

13 with section 5546, without regard to the rate of pay 

14 to which the border patrol agent is assigned under 

15 this section, except that— 

16 ‘‘(A) no premium pay for night, Sunday, 

17 or holiday work shall be provided for hours of 

18 regularly scheduled overtime work described in 

19 paragraph (2)(A)(ii) or (3)(A)(ii) of subsection 

20 (b), consistent with the requirements of para21 graph (2)(C) or (3)(C) of subsection (b); and 

22 ‘‘(B) section 5546(d) shall not apply and 

23 instead eligibility for pay for, and the rate of 

24 pay for, any overtime work on a Sunday or a 


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1 designated holiday shall be determined in ac2 cordance with this section and section 5542(g); 

3 ‘‘(2) except as provided in paragraph (3) or sec4 tion 5542(g), shall not be eligible for any other form 

5 of premium pay under this title; and 

6 ‘‘(3) shall be eligible for hazardous duty pay in 

7 accordance with section 5545(d). 

8 ‘‘(d) TREATMENT AS BASIC PAY.—Any pay in addi9 tion to the basic border patrol rate of pay for a border 

10 patrol agent resulting from application of the level 1 bor11 der patrol rate of pay or the level 2 border patrol rate 

12 of pay— 

13 ‘‘(1) subject to paragraph (2), shall be treated 

14 as part of basic pay solely for— 

15 ‘‘(A) purposes of sections 5595(c), 

16 8114(e), 8331(3)(I), and 8704(c); 

17 ‘‘(B) any other purpose that the Director 

18 of the Office of Personnel Management may by 

19 regulation prescribe; and 

20 ‘‘(C) any other purpose expressly provided 

21 for by law; and 

22 ‘‘(2) shall not be treated as part of basic pay 

23 for the purposes of calculating overtime pay, night 

24 pay, Sunday pay, or holiday pay under section 5542, 

25 5545, or 5546. 


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1 ‘‘(e) TRAVEL TIME.—Travel time to and from home 

2 and duty station by a border patrol agent shall not be con3 sidered hours of work under any provision of law. 

4 ‘‘(f) LEAVE WITHOUT PAY AND SUBSTITUTION OF

5 HOURS.— 

6 ‘‘(1) REGULAR TIME.— 

7 ‘‘(A) IN GENERAL.—For a period of leave 

8 without pay during the regular time of a border 

9 patrol agent (as described in paragraph 

10 (2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b)) 

11 within a work period, an equal period of work 

12 outside the regular time of the border patrol 

13 agent, but in the same work period— 

14 ‘‘(i) shall be substituted and paid for 

15 at the rate applicable for the regular time; 

16 and 

17 ‘‘(ii) shall not be credited as overtime 

18 hours for any purpose. 

19 ‘‘(B) PRIORITY FOR SAME DAY WORK.—In 

20 substituting hours of work under subparagraph 

21 (A), work performed on the same day as the pe22 riod of leave without pay shall be substituted 

23 first. 

24 ‘‘(C) PRIORITY FOR REGULAR TIME SUB25 STITUTION.—Hours of work shall be subVerDate Sep 11 2014 00:59 Sep 20, 2014 Jkt 039200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.RFH S1691

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1 stituted for regular time work under this para2 graph before being substituted for scheduled 

3 overtime under paragraphs (2), (3), and (4). 

4 ‘‘(2) OVERTIME WORK.— 

5 ‘‘(A) IN GENERAL.—For a period of ab6 sence during scheduled overtime (as described 

7 in paragraph (2)(F) or (3)(F) of subsection 

8 (b)) within a work period, an equal period of 

9 additional work in the same work period— 

10 ‘‘(i) shall be substituted and credited 

11 as scheduled overtime; and 

12 ‘‘(ii) shall not be credited as overtime 

13 hours under any other provision of law. 

14 ‘‘(B) PRIORITY FOR SAME DAY WORK.—In 

15 substituting hours of work under subparagraph 

16 (A), work performed on the same day as the pe17 riod of absence shall be substituted first. 

18 ‘‘(3) APPLICATION OF COMPENSATORY TIME.— 

19 If a border patrol agent does not have sufficient ad20 ditional work in a work period to substitute for all 

21 periods of absence during scheduled overtime (as de22 scribed in paragraph (2)(F) or (3)(F) of subsection 

23 (b)) within that work period, any accrued compen24 satory time off under section 5542(g) shall be ap25 plied to satisfy the hours obligation. 


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1 ‘‘(4) INSUFFICIENT HOURS.—If a border patrol 

2 agent has a remaining hours obligation of scheduled 

3 overtime after applying paragraphs (2) and (3), any 

4 additional work in subsequent work periods that 

5 would otherwise be credited under section 5542(g) 

6 shall be applied towards the hours obligation until 

7 that obligation is satisfied. 

8 ‘‘(g) AUTHORITY TO REQUIRE OVERTIME WORK.— 

9 Nothing in this section shall be construed to limit the au10 thority of U.S. Customs and Border Protection to require 

11 a border patrol agent to perform hours of overtime work 

12 in accordance with the needs of U.S. Customs and Border 

13 Protection, including if needed in the event of a local or 

14 national emergency.’’. 

15 (c) OVERTIME WORK.— 

16 (1) IN GENERAL.—Section 5542 of title 5, 

17 United States Code, is amended by adding at the 

18 end the following: 

19 ‘‘(g) In applying subsection (a) with respect to a bor20 der patrol agent covered by section 5550, the following 

21 rules apply: 

22 ‘‘(1) Notwithstanding the matter preceding 

23 paragraph (1) in subsection (a), for a border patrol 

24 agent who is assigned to the level 1 border patrol 

25 rate of pay under section 5550— 


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1 ‘‘(A) hours of work in excess of 100 hours 

2 during a 14-day biweekly pay period shall be 

3 overtime work; and 

4 ‘‘(B) the border patrol agent— 

5 ‘‘(i) shall receive pay at the overtime 

6 hourly rate of pay (as determined in ac7 cordance with paragraphs (1) and (2) of 

8 subsection (a)) for hours of overtime work 

9 that are officially ordered or approved in 

10 advance of the workweek; and 

11 ‘‘(ii) except as provided in paragraphs 

12 (4) and (5), shall receive compensatory 

13 time off for an equal amount of time spent 

14 performing overtime work that is not over15 time work described in clause (i). 

16 ‘‘(2) Notwithstanding the matter preceding 

17 paragraph (1) in subsection (a), for a border patrol 

18 agent who is assigned to the level 2 border patrol 

19 rate of pay under section 5550— 

20 ‘‘(A) hours of work in excess of 90 hours 

21 during a 14-day biweekly pay period shall be 

22 overtime work; and 

23 ‘‘(B) the border patrol agent— 

24 ‘‘(i) shall receive pay at the overtime 

25 hourly rate of pay (as determined in acVerDate Sep 11 2014 00:59 Sep 20, 2014 Jkt 039200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.RFH S1691

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1 cordance with paragraphs (1) and (2) of 

2 subsection (a)) for hours of overtime work 

3 that are officially ordered or approved in 

4 advance of the workweek; and 

5 ‘‘(ii) except as provided in paragraphs 

6 (4) and (5), shall receive compensatory 

7 time off for an equal amount of time spent 

8 performing overtime work that is not over9 time work described in clause (i). 

10 ‘‘(3) Notwithstanding the matter preceding 

11 paragraph (1) in subsection (a), for a border patrol 

12 agent who is assigned to the basic border patrol rate 

13 of pay under section 5550— 

14 ‘‘(A) hours of work in excess of 80 hours 

15 during a 14-day biweekly pay period shall be 

16 overtime work; and 

17 ‘‘(B) the border patrol agent— 

18 ‘‘(i) shall receive pay at the overtime 

19 hourly rate of pay (as determined in ac20 cordance with paragraphs (1) and (2) of 

21 subsection (a)) for hours of overtime work 

22 that are officially ordered or approved in 

23 advance of the workweek; and 

24 ‘‘(ii) except as provided in paragraphs 

25 (4) and (5), shall receive compensatory 


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1 time off for an equal amount of time spent 

2 performing overtime work that is not over3 time work described in clause (i). 

4 ‘‘(4)(A) Except as provided in subparagraph 

5 (B), during a 14-day biweekly pay period, a border 

6 patrol agent may not earn compensatory time off for 

7 more than 10 hours of overtime work. 

8 ‘‘(B) U.S. Customs and Border Protection may, 

9 as it determines appropriate, waive the limitation 

10 under subparagraph (A) for an individual border pa11 trol agent for hours of irregular or occasional over12 time work, but such waiver must be approved in 

13 writing in advance of the performance of any such 

14 work for which compensatory time off is earned 

15 under paragraph (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). 

16 If a waiver request by a border patrol agent is de17 nied, the border patrol agent may not be ordered to 

18 perform the associated overtime work. 

19 ‘‘(5) A border patrol agent— 

20 ‘‘(A) may not earn more than 240 hours of 

21 compensatory time off during a leave year; 

22 ‘‘(B) shall use any hours of compensatory 

23 time off not later than the end of the 26th pay 

24 period after the pay period during which the 

25 compensatory time off was earned; 


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1 ‘‘(C) shall be required to use 1 hour of 

2 compensatory time off for each hour of regular 

3 time not worked for which the border patrol 

4 agent is not on paid leave or other paid time off 

5 or does not substitute time in accordance with 

6 section 5550(f); 

7 ‘‘(D) shall forfeit any compensatory time 

8 off not used in accordance with this paragraph 

9 and, regardless of circumstances, shall not be 

10 entitled to any cash value for compensatory 

11 time earned under section 5550; 

12 ‘‘(E) shall not receive credit towards the 

13 computation of the annuity of the border patrol 

14 agent for compensatory time, whether used or 

15 not; and 

16 ‘‘(F) shall not be credited with compen17 satory time off if the value of such time off 

18 would cause the aggregate premium pay of the 

19 border patrol agent to exceed the limitation es20 tablished under section 5547 in the period in 

21 which it was earned.’’. 

22 (2) MINIMIZATION OF OVERTIME.—U.S. Cus23 toms and Border Protection shall, to the maximum 

24 extent practicable, avoid the use of scheduled over25 time work by border patrol agents. 


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1 (d) RETIREMENT.—Section 8331(3) of title 5, United 

2 States Code, is amended— 

3 (1) in subparagraph (G), by striking ‘‘and’’; 

4 (2) in subparagraph (H), by inserting ‘‘and’’ 

5 after the semicolon; 

6 (3) by inserting a new subparagraph after sub7 paragraph (H) as follows: 

8 ‘‘(I) with respect to a border pa9 trol agent, the amount of supple10 mental pay received through applica11 tion of the level 1 border patrol rate 

12 of pay or the level 2 border patrol 

13 rate of pay for scheduled overtime 

14 within the regular tour of duty of the 

15 border patrol agent as provided in 

16 section 5550;’’; and 

17 (4) in the undesignated matter following sub18 paragraph (H), by striking ‘‘subparagraphs (B) 

19 through (H)’’ and inserting ‘‘subparagraphs (B) 

20 through (I)’’. 

21 (e) COMPREHENSIVE STAFFING ANALYSIS.— 

22 (1) IN GENERAL.—Not later than 1 year after 

23 the date of enactment of this Act, U.S. Customs and 

24 Border Protection shall conduct a comprehensive 


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1 analysis, and submit to the Comptroller General of 

2 the United States a report, that— 

3 (A) examines the staffing requirements for 

4 U.S. Border Patrol to most effectively meet its 

5 operational requirements at each Border Patrol 

6 duty station; 

7 (B) estimates the cost of the staffing re8 quirements at each Border Patrol duty station; 

9 and 

10 (C) includes— 

11 (i) a position-by-position review at 

12 each Border Patrol station to determine— 

13 (I) the duties assigned to each 

14 position; 

15 (II) how the duties relate to the 

16 operational requirements of U.S. Bor17 der Patrol; and 

18 (III) the number of hours border 

19 patrol agents in that position would 

20 need to work each pay period to meet 

21 the operational requirements of U.S. 

22 Border Patrol; 

23 (ii) the metrics used to determine the 

24 number of hours of work performed at 


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1 each Border Patrol station, broken down 

2 by the type of hours worked; 

3 (iii) a cost analysis of the most recent 

4 full fiscal year by the type of full-time 

5 equivalent hours worked; 

6 (iv) a cost estimate by the type of full7 time equivalent hours expected to be 

8 worked during the first full fiscal year 

9 after the date of enactment of this Act; 

10 and 

11 (v) an analysis that compares the cost 

12 of assigning the full-time equivalent hours 

13 needed to meet the operational require14 ments of U.S. Border Patrol to existing 

15 border patrol agents through higher rates 

16 of pay versus recruiting, hiring, training, 

17 and deploying additional border patrol 

18 agents. 

19 (2) INDEPENDENT VALIDATOR.—Not later than 

20 90 days after the date on which the Comptroller 

21 General receives the report under paragraph (1), the 

22 Comptroller General shall submit to the appropriate 

23 committees of Congress a report that— 


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1 (A) examines the methodology used by 

2 U.S. Customs and Border Protection to carry 

3 out the analysis; and 

4 (B) indicates whether the Comptroller 

5 General concurs with the findings in the report 

6 under paragraph (1). 

7 (3) DEFINITION.—In this subsection, the term 

8 ‘‘appropriate committees of Congress’’ means— 

9 (A) the Committee on Homeland Security 

10 and Governmental Affairs and the Committee 

11 on Appropriations of the Senate; and 

12 (B) the Committee on Oversight and Gov13 ernment Reform and the Committee on Appro14 priations of the House of Representatives. 

15 (f) RULES OF CONSTRUCTION.—Nothing in this sec16 tion or the amendments made by this section shall be con17 strued to— 

18 (1) limit the right of U.S. Customs and Border 

19 Protection to assign both scheduled and unscheduled 

20 work to a border patrol agent based on the needs of 

21 U.S. Customs and Border Protection in excess of the 

22 hours of work normally applicable under the election 

23 of the border patrol agent, regardless of what the 

24 border patrol agent might otherwise have elected; 


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1 (2) require compensation of a border patrol 

2 agent other than for hours during which the border 

3 patrol agent is actually performing work or using 

4 approved paid leave or other paid time off; or 

5 (3) exempt a border patrol agent from any limi6 tations on pay, earnings, or compensation, including 

7 the limitations under section 5547 of title 5, United 

8 States Code. 

9 (g) TECHNICAL AND CONFORMING AMENDMENTS.— 

10 (1) Section 5547 of title 5, United States Code 

11 is amended by— 

12 (A) in subsection (a), in the matter pre13 ceding paragraph (1)— 

14 (i) by striking, ‘‘and’’ before ‘‘5546’’; 

15 and 

16 (ii) by inserting ‘‘, and 5550’’ after 

17 ‘‘5546 (a) and (b)’’; and 

18 (B) by adding at the end the following: 

19 ‘‘(e) Any supplemental pay resulting from receipt of 

20 the level 1 border patrol rate of pay or the level 2 border 

21 patrol rate of pay under section 5550 shall be considered 

22 premium pay in applying this section.’’. 

23 (2) Section 13(a) of the Fair Labor Standards 

24 Act of 1938 (29 U.S.C. 213(a)) is amended— 


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1 (A) in paragraph (16), by striking ‘‘or’’ 

2 after the semicolon; 

3 (B) in paragraph (17), by striking the pe4 riod at the end and inserting ‘‘; or’’; and 

5 (C) by adding at the end the following: 

6 ‘‘(18) any employee who is a border patrol 

7 agent, as defined in section 5550(a) of title 5, 

8 United States Code.’’. 

9 (3) The table of sections for chapter 55 of title 

10 5, United States Code, is amended by inserting after 

11 the item relating to section 5549 the following: 

‘‘5550. Border patrol rate of pay.’’. 

12 (h) REGULATIONS.—The Director of the Office of 

13 Personnel Management shall promulgate regulations to 

14 carry out this Act and the amendments made by this Act. 

15 SEC. 3. CYBERSECURITY RECRUITMENT AND RETENTION. 

16 (a) IN GENERAL.—At the end of subtitle C of title 

17 II of the Homeland Security Act of 2002 (6 U.S.C. 141 

18 et seq.), add the following: 

19 ‘‘SEC. 226. CYBERSECURITY RECRUITMENT AND RETEN20 TION. 

21 ‘‘(a) DEFINITIONS.—In this section: 

22 ‘‘(1) APPROPRIATE COMMITTEES OF CON23 GRESS.—The term ‘appropriate committees of Con24 gress’ means the Committee on Homeland Security 

25 and Governmental Affairs and the Committee on 


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1 Appropriations of the Senate and the Committee on 

2 Homeland Security and the Committee on Appro3 priations of the House of Representatives. 

4 ‘‘(2) COLLECTIVE BARGAINING AGREEMENT.— 

5 The term ‘collective bargaining agreement’ has the 

6 meaning given that term in section 7103(a)(8) of 

7 title 5, United States Code. 

8 ‘‘(3) EXCEPTED SERVICE.—The term ‘excepted 

9 service’ has the meaning given that term in section 

10 2103 of title 5, United States Code. 

11 ‘‘(4) PREFERENCE ELIGIBLE.—The term ‘pref12 erence eligible’ has the meaning given that term in 

13 section 2108 of title 5, United States Code. 

14 ‘‘(5) QUALIFIED POSITION.—The term ‘quali15 fied position’ means a position, designated by the 

16 Secretary for the purpose of this section, in which 

17 the incumbent performs, manages, or supervises 

18 functions that execute the responsibilities of the De19 partment relating to cybersecurity. 

20 ‘‘(6) SENIOR EXECUTIVE SERVICE.—The term 

21 ‘Senior Executive Service’ has the meaning given 

22 that term in section 2101a of title 5, United States 

23 Code. 

24 ‘‘(b) GENERAL AUTHORITY.— 


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1 ‘‘(1) ESTABLISH POSITIONS, APPOINT PER2 SONNEL, AND FIX RATES OF PAY.— 

3 ‘‘(A) GENERAL AUTHORITY.—The Sec4 retary may— 

5 ‘‘(i) establish, as positions in the ex6 cepted service, such qualified positions in 

7 the Department as the Secretary deter8 mines necessary to carry out the respon9 sibilities of the Department relating to cy10 bersecurity, including positions formerly 

11 identified as— 

12 ‘‘(I) senior level positions des13 ignated under section 5376 of title 5, 

14 United States Code; and 

15 ‘‘(II) positions in the Senior Ex16 ecutive Service; 

17 ‘‘(ii) appoint an individual to a quali18 fied position (after taking into consider19 ation the availability of preference eligibles 

20 for appointment to the position); and 

21 ‘‘(iii) subject to the requirements of 

22 paragraphs (2) and (3), fix the compensa23 tion of an individual for service in a quali24 fied position. 


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1 ‘‘(B) CONSTRUCTION WITH OTHER

2 LAWS.—The authority of the Secretary under 

3 this subsection applies without regard to the 

4 provisions of any other law relating to the ap5 pointment, number, classification, or compensa6 tion of employees. 

7 ‘‘(2) BASIC PAY.— 

8 ‘‘(A) AUTHORITY TO FIX RATES OF BASIC

9 PAY.—In accordance with this section, the Sec10 retary shall fix the rates of basic pay for any 

11 qualified position established under paragraph 

12 (1) in relation to the rates of pay provided for 

13 employees in comparable positions in the De14 partment of Defense and subject to the same 

15 limitations on maximum rates of pay estab16 lished for such employees by law or regulation. 

17 ‘‘(B) PREVAILING RATE SYSTEMS.—The 

18 Secretary may, consistent with section 5341 of 

19 title 5, United States Code, adopt such provi20 sions of that title as provide for prevailing rate 

21 systems of basic pay and may apply those pro22 visions to qualified positions for employees in or 

23 under which the Department may employ indi24 viduals described by section 5342(a)(2)(A) of 

25 that title. 


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1 ‘‘(3) ADDITIONAL COMPENSATION, INCENTIVES, 

2 AND ALLOWANCES.— 

3 ‘‘(A) ADDITIONAL COMPENSATION BASED

4 ON TITLE 5 AUTHORITIES.—The Secretary may 

5 provide employees in qualified positions com6 pensation (in addition to basic pay), including 

7 benefits, incentives, and allowances, consistent 

8 with, and not in excess of the level authorized 

9 for, comparable positions authorized by title 5, 

10 United States Code. 

11 ‘‘(B) ALLOWANCES IN NONFOREIGN

12 AREAS.—An employee in a qualified position 

13 whose rate of basic pay is fixed under para14 graph (2)(A) shall be eligible for an allowance 

15 under section 5941 of title 5, United States 

16 Code, on the same basis and to the same extent 

17 as if the employee was an employee covered by 

18 such section 5941, including eligibility condi19 tions, allowance rates, and all other terms and 

20 conditions in law or regulation. 

21 ‘‘(4) PLAN FOR EXECUTION OF AUTHORI22 TIES.—Not later than 120 days after the date of en23 actment of this section, the Secretary shall submit a 

24 report to the appropriate committees of Congress 


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1 with a plan for the use of the authorities provided 

2 under this subsection. 

3 ‘‘(5) COLLECTIVE BARGAINING AGREEMENTS.— 

4 Nothing in paragraph (1) may be construed to im5 pair the continued effectiveness of a collective bar6 gaining agreement with respect to an office, compo7 nent, subcomponent, or equivalent of the Depart8 ment that is a successor to an office, component, 

9 subcomponent, or equivalent of the Department cov10 ered by the agreement before the succession. 

11 ‘‘(6) REQUIRED REGULATIONS.—The Secretary, 

12 in coordination with the Director of the Office of 

13 Personnel Management, shall prescribe regulations 

14 for the administration of this section. 

15 ‘‘(c) ANNUAL REPORT.—Not later than 1 year after 

16 the date of enactment of this section, and every year there17 after for 4 years, the Secretary shall submit to the appro18 priate committees of Congress a detailed report that— 

19 ‘‘(1) discusses the process used by the Sec20 retary in accepting applications, assessing can21 didates, ensuring adherence to veterans’ preference, 

22 and selecting applicants for vacancies to be filled by 

23 an individual for a qualified position; 

24 ‘‘(2) describes— 


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1 ‘‘(A) how the Secretary plans to fulfill the 

2 critical need of the Department to recruit and 

3 retain employees in qualified positions; 

4 ‘‘(B) the measures that will be used to 

5 measure progress; and 

6 ‘‘(C) any actions taken during the report7 ing period to fulfill such critical need; 

8 ‘‘(3) discusses how the planning and actions 

9 taken under paragraph (2) are integrated into the 

10 strategic workforce planning of the Department; 

11 ‘‘(4) provides metrics on actions occurring dur12 ing the reporting period, including— 

13 ‘‘(A) the number of employees in qualified 

14 positions hired by occupation and grade and 

15 level or pay band; 

16 ‘‘(B) the placement of employees in quali17 fied positions by directorate and office within 

18 the Department; 

19 ‘‘(C) the total number of veterans hired; 

20 ‘‘(D) the number of separations of employ21 ees in qualified positions by occupation and 

22 grade and level or pay band; 

23 ‘‘(E) the number of retirements of employ24 ees in qualified positions by occupation and 

25 grade and level or pay band; and 


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1 ‘‘(F) the number and amounts of recruit2 ment, relocation, and retention incentives paid 

3 to employees in qualified positions by occupa4 tion and grade and level or pay band; and 

5 ‘‘(5) describes the training provided to super6 visors of employees in qualified positions at the De7 partment on the use of the new authorities. 

8 ‘‘(d) THREE-YEAR PROBATIONARY PERIOD.—The 

9 probationary period for all employees hired under the au10 thority established in this section shall be 3 years. 

11 ‘‘(e) INCUMBENTS OF EXISTING COMPETITIVE SERV12 ICE POSITIONS.— 

13 ‘‘(1) IN GENERAL.—An individual serving in a 

14 position on the date of enactment of this section 

15 that is selected to be converted to a position in the 

16 excepted service under this section shall have the 

17 right to refuse such conversion. 

18 ‘‘(2) SUBSEQUENT CONVERSION.—After the 

19 date on which an individual who refuses a conversion 

20 under paragraph (1) stops serving in the position se21 lected to be converted, the position may be converted 

22 to a position in the excepted service. 

23 ‘‘(f) STUDY AND REPORT.—Not later than 120 days 

24 after the date of enactment of this section, the National 

25 Protection and Programs Directorate shall submit a reVerDate Sep 11 2014 00:59 Sep 20, 2014 Jkt 039200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.RFH S1691

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1 port regarding the availability of, and benefits (including 

2 cost savings and security) of using, cybersecurity per3 sonnel and facilities outside of the National Capital Re4 gion (as defined in section 2674 of title 10, United States 

5 Code) to serve the Federal and national need to— 

6 ‘‘(1) the Subcommittee on Homeland Security 

7 of the Committee on Appropriations and the Com8 mittee on Homeland Security and Governmental Af9 fairs of the Senate; and 

10 ‘‘(2) the Subcommittee on Homeland Security 

11 of the Committee on Appropriations and the Com12 mittee on Homeland Security of the House of Rep13 resentatives.’’. 

14 (b) CONFORMING AMENDMENT.—Section 3132(a)(2) 

15 of title 5, United States Code, is amended in the matter 

16 following subparagraph (E)— 

17 (1) in clause (i), by striking ‘‘or’’ at the end; 

18 (2) in clause (ii), by inserting ‘‘or’’ after the 

19 semicolon; and 

20 (3) by inserting after clause (ii) the following: 

21 ‘‘(iii) any position established as a qualified po22 sition in the excepted service by the Secretary of 

23 Homeland Security under section 226 of the Home24 land Security Act of 2002;’’. 


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1 (c) TABLE OF CONTENTS AMENDMENT.—The table 

2 of contents in section 1(b) of the Homeland Security Act 

3 of 2002 (6 U.S.C. 101 et seq.) is amended by inserting 

4 after the item relating to section 225 the following: 

‘‘Sec. 226. Cybersecurity recruitment and retention.’’. 

5 SEC. 4. HOMELAND SECURITY CYBERSECURITY WORK6 FORCE ASSESSMENT. 

7 (a) SHORT TITLE.—This section may be cited as the 

8 ‘‘Homeland Security Cybersecurity Workforce Assessment 

9 Act’’. 

10 (b) DEFINITIONS.—In this section: 

11 (1) APPROPRIATE CONGRESSIONAL COMMIT12 TEES.—The term ‘‘appropriate congressional com13 mittees’’ means— 

14 (A) the Committee on Homeland Security 

15 and Governmental Affairs of the Senate; 

16 (B) the Committee on Homeland Security 

17 of the House of Representatives; and 

18 (C) the Committee on House Administra19 tion of the House of Representatives. 

20 (2) CYBERSECURITY WORK CATEGORY; DATA

21 ELEMENT CODE; SPECIALTY AREA.—The terms ‘‘Cy22 bersecurity Work Category’’, ‘‘Data Element Code’’, 

23 and ‘‘Specialty Area’’ have the meanings given such 

24 terms in the Office of Personnel Management’s 

25 Guide to Data Standards. 


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1 (3) DEPARTMENT.—The term ‘‘Department’’ 

2 means the Department of Homeland Security. 

3 (4) DIRECTOR.—The term ‘‘Director’’ means 

4 the Director of the Office of Personnel Management. 

5 (5) SECRETARY.—The term ‘‘Secretary’’ means 

6 the Secretary of Homeland Security. 

7 (c) NATIONAL CYBERSECURITY WORKFORCE MEAS8 UREMENT INITIATIVE.— 

9 (1) IN GENERAL.—The Secretary shall— 

10 (A) identify all cybersecurity workforce po11 sitions within the Department; 

12 (B) determine the primary Cybersecurity 

13 Work Category and Specialty Area of such posi14 tions; and 

15 (C) assign the corresponding Data Ele16 ment Code, as set forth in the Office of Per17 sonnel Management’s Guide to Data Standards 

18 which is aligned with the National Initiative for 

19 Cybersecurity Education’s National Cybersecu20 rity Workforce Framework report, in accord21 ance with paragraph (2). 

22 (2) EMPLOYMENT CODES.— 

23 (A) PROCEDURES.—Not later than 90 

24 days after the date of the enactment of this 

25 Act, the Secretary shall establish procedures— 


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1 (i) to identify open positions that in2 clude cybersecurity functions (as defined in 

3 the OPM Guide to Data Standards); and 

4 (ii) to assign the appropriate employ5 ment code to each such position, using 

6 agreed standards and definitions. 

7 (B) CODE ASSIGNMENTS.—Not later than 

8 9 months after the date of the enactment of 

9 this Act, the Secretary shall assign the appro10 priate employment code to— 

11 (i) each employee within the Depart12 ment who carries out cybersecurity func13 tions; and 

14 (ii) each open position within the De15 partment that have been identified as hav16 ing cybersecurity functions. 

17 (3) PROGRESS REPORT.—Not later than 1 year 

18 after the date of the enactment of this Act, the Di19 rector shall submit a progress report on the imple20 mentation of this subsection to the appropriate con21 gressional committees. 

22 (d) IDENTIFICATION OF CYBERSECURITY SPECIALTY

23 AREAS OF CRITICAL NEED.— 

24 (1) IN GENERAL.—Beginning not later than 1 

25 year after the date on which the employment codes 


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1 are assigned to employees pursuant to subsection 

2 (c)(2)(B), and annually through 2021, the Sec3 retary, in consultation with the Director, shall— 

4 (A) identify Cybersecurity Work Categories 

5 and Specialty Areas of critical need in the De6 partment’s cybersecurity workforce; and 

7 (B) submit a report to the Director that— 

8 (i) describes the Cybersecurity Work 

9 Categories and Specialty Areas identified 

10 under subparagraph (A); and 

11 (ii) substantiates the critical need des12 ignations. 

13 (2) GUIDANCE.—The Director shall provide the 

14 Secretary with timely guidance for identifying Cy15 bersecurity Work Categories and Specialty Areas of 

16 critical need, including— 

17 (A) current Cybersecurity Work Categories 

18 and Specialty Areas with acute skill shortages; 

19 and 

20 (B) Cybersecurity Work Categories and 

21 Specialty Areas with emerging skill shortages. 

22 (3) CYBERSECURITY CRITICAL NEEDS RE23 PORT.—Not later than 18 months after the date of 

24 the enactment of this Act, the Secretary, in con25 sultation with the Director, shall— 


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1 (A) identify Specialty Areas of critical need 

2 for cybersecurity workforce across the Depart3 ment; and 

4 (B) submit a progress report on the imple5 mentation of this subsection to the appropriate 

6 congressional committees. 

7 (e) GOVERNMENT ACCOUNTABILITY OFFICE STATUS

8 REPORTS.—The Comptroller General of the United States 

9 shall— 

10 (1) analyze and monitor the implementation of 

11 subsections (c) and (d); and 

12 (2) not later than 3 years after the date of the 

13 enactment of this Act, submit a report to the appro14 priate congressional committees that describes the 

15 status of such implementation. 

Passed the Senate September 18, 2014. 

Attest: NANCY ERICKSON, 

Secretary. 


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