Border Patrol Agent Pay Reform Act of 2014
PL 113-277 (S.1691), enacted 12/18/2014

[113th Congress Public Law 277]
[From the U.S. Government Publishing Office]



[[Page 128 STAT. 2995]]

Public Law 113-277
113th Congress

                                 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. <<NOTE: Dec. 18, 2014 -  [S. 1691]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Border Patrol 
Agent Pay Reform Act of 2014.>> 
SECTION 1. <<NOTE: 5 USC 101 note.>>  SHORT TITLE.

    This Act may be cited as the ``Border Patrol Agent Pay Reform Act of 
2014''.
SEC. 2. <<NOTE: 5 USC 5542 note.>>  BORDER PATROL RATE OF PAY.

    (a) Purpose.--The purposes of this Act are--
            (1) to strengthen U.S. Customs and Border Protection and 
        ensure that border patrol agents are sufficiently ready to 
        conduct necessary work and will perform overtime hours in excess 
        of a 40-hour workweek based on the needs of U.S. Customs and 
        Border Protection; and
            (2) to ensure U.S. Customs and Border Protection has the 
        flexibility to cover shift changes and retains the right to 
        assign scheduled and unscheduled work for mission requirements 
        and planning based on operational need.

    (b) Rates of Pay.--Subchapter V of chapter 55 of title 5, United 
States Code, is amended by inserting after section 5549 the following:
``Sec. 5550. <<NOTE: 5 USC 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.

[[Page 128 STAT. 2996]]

    ``(b) Receipt of Border Patrol Rate of Pay.--
            ``(1) Voluntary election.--
                    ``(A) <<NOTE: Deadline. Effective date.>>  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) <<NOTE: Procedures.>>  Regulations.--The 
                Director of the Office of Personnel Management shall 
                promulgate regulations establishing procedures for 
                elections under subparagraph (A).
                    ``(C) <<NOTE: Deadline. Effective date.>>  
                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

[[Page 128 STAT. 2997]]

                      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) <<NOTE: Deadline. Consultation. Plan.>>  
                      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,

[[Page 128 STAT. 2998]]

                      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) <<NOTE: Deadline. Reports.>>  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);

[[Page 128 STAT. 2999]]

                    ``(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) <<NOTE: Time period.>>  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)--

[[Page 128 STAT. 3000]]

                          ``(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) <<NOTE: Time period.>>  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

[[Page 128 STAT. 3001]]

                    ``(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

[[Page 128 STAT. 3002]]

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) <<NOTE: Applicability. Regulations.>>  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.

[[Page 128 STAT. 3003]]

            ``(B) <<NOTE: Waiver authority.>>  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) <<NOTE: 5 USC 5550 note.>>  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) <<NOTE: Deadline. Reports.>>  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--

[[Page 128 STAT. 3004]]

                    (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) <<NOTE: Deadline. Reports.>>  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) <<NOTE: 5 USC 5542 note.>>  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

[[Page 128 STAT. 3005]]

        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) <<NOTE: Applicability.>>  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) <<NOTE: 5 USC prec. 5501.>>  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) <<NOTE: 5 USC 5542 note.>>  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. <<NOTE: 6 USC 147.>>  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.

[[Page 128 STAT. 3006]]

            ``(5) Qualified position.--The term `qualified position' 
        means a position, designated by the Secretary for the purpose of 
        this section, in which the incumbent performs, manages, or 
        supervises functions that execute the responsibilities of the 
        Department relating to cybersecurity.
            ``(6) Senior executive service.--The term `Senior Executive 
        Service' has the meaning given that term in section 2101a of 
        title 5, United States Code.

    ``(b) General Authority.--
            ``(1) Establish positions, appoint personnel, and fix rates 
        of pay.--
                    ``(A) General authority.--The Secretary may--
                          ``(i) establish, as positions in the excepted 
                      service, such qualified positions in the 
                      Department as the Secretary determines necessary 
                      to carry out the responsibilities of the 
                      Department relating to cybersecurity, including 
                      positions formerly identified as--
                                    ``(I) senior level positions 
                                designated under section 5376 of title 
                                5, United States Code; and
                                    ``(II) positions in the Senior 
                                Executive Service;
                          ``(ii) appoint an individual to a qualified 
                      position (after taking into consideration the 
                      availability of preference eligibles for 
                      appointment to the position); and
                          ``(iii) subject to the requirements of 
                      paragraphs (2) and (3), fix the compensation of an 
                      individual for service in a qualified position.
                    ``(B) Construction with other laws.--The authority 
                of the Secretary under this subsection applies without 
                regard to the provisions of any other law relating to 
                the appointment, number, classification, or compensation 
                of employees.
            ``(2) Basic pay.--
                    ``(A) Authority to fix rates of basic pay.--In 
                accordance with this section, the Secretary shall fix 
                the rates of basic pay for any qualified position 
                established under paragraph (1) in relation to the rates 
                of pay provided for employees in comparable positions in 
                the Department of Defense and subject to the same 
                limitations on maximum rates of pay established for such 
                employees by law or regulation.
                    ``(B) Prevailing rate systems.--The Secretary may, 
                consistent with section 5341 of title 5, United States 
                Code, adopt such provisions of that title as provide for 
                prevailing rate systems of basic pay and may apply those 
                provisions to qualified positions for employees in or 
                under which the Department may employ individuals 
                described by section 5342(a)(2)(A) of that title.
            ``(3) Additional compensation, incentives, and allowances.--
                    ``(A) Additional compensation based on title 5 
                authorities.--The Secretary may provide employees in 
                qualified positions compensation (in addition to basic 
                pay), including benefits, incentives, and allowances, 
                consistent with, and not in excess of the level 
                authorized for, comparable positions authorized by title 
                5, United States Code.
                    ``(B) Allowances in nonforeign areas.--An employee 
                in a qualified position whose rate of basic pay

[[Page 128 STAT. 3007]]

                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) <<NOTE: Deadline. Reports.>>  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) <<NOTE: Coordination.>>  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

[[Page 128 STAT. 3008]]

            ``(5) describes the training provided to supervisors of 
        employees in qualified positions at the Department on the use of 
        the new authorities.

    ``(d) Three-Year Probationary Period.--The probationary period for 
all employees hired under the authority established in this section 
shall be 3 years.
    ``(e) Incumbents of Existing Competitive Service Positions.--
            ``(1) In general.--An individual serving in a position on 
        the date of enactment of this section that is selected to be 
        converted to a position in the excepted service under this 
        section shall have the right to refuse such conversion.
            ``(2) Subsequent conversion.--After the date on which an 
        individual who refuses a conversion under paragraph (1) stops 
        serving in the position selected to be converted, the position 
        may be converted to a position in the excepted service.

    ``(f) Study and Report.--Not later than 120 days after the date of 
enactment of this section, the National Protection and Programs 
Directorate shall submit a report regarding the availability of, and 
benefits (including cost savings and security) of using, cybersecurity 
personnel and facilities outside of the National Capital Region (as 
defined in section 2674 of title 10, United States Code) to serve the 
Federal and national need to--
            ``(1) the Subcommittee on Homeland Security of the Committee 
        on Appropriations and the Committee on Homeland Security and 
        Governmental Affairs of the Senate; and
            ``(2) the Subcommittee on Homeland Security of the Committee 
        on Appropriations and the Committee on Homeland Security of the 
        House of Representatives.''.

    (b) Conforming Amendment.--Section 3132(a)(2) of title 5, United 
States Code, is amended in the matter following subparagraph (E)--
            (1) in clause (i), by striking ``or'' at the end;
            (2) in clause (ii), by inserting ``or'' after the semicolon; 
        and
            (3) by inserting after clause (ii) the following:
            ``(iii) any position established as a qualified position in 
        the excepted service by the Secretary of Homeland Security under 
        section 226 of the Homeland Security Act of 2002;''.

    (c) Table of Contents Amendment.--The table of contents in section 
1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is 
amended by inserting after the item relating to section 225 the 
following:

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

SEC. 4. <<NOTE: Homeland Security Cybersecurity Workforce 
                    Assessment Act.>>  HOMELAND SECURITY 
                    CYBERSECURITY WORKFORCE ASSESSMENT.

    (a) <<NOTE: 6 USC 146 note.>>  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

[[Page 128 STAT. 3009]]

                    (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) <<NOTE: Determination.>>  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) <<NOTE: Deadlines.>>  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) <<NOTE: Effective date. Deadline.>>  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

[[Page 128 STAT. 3010]]

                    (B) <<NOTE: Reports.>>  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) <<NOTE: Deadline. Consultation. Reports.>>  
        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.

    Approved December 18, 2014.

LEGISLATIVE HISTORY--S. 1691:
---------------------------------------------------------------------------

SENATE REPORTS: No. 113-248 (Comm. on Homeland Security and Governmental 
Affairs).
CONGRESSIONAL RECORD, Vol. 160 (2014):
            Sept. 18, considered and passed Senate.
            Dec. 10, considered and passed House.

                                  <all>