[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Enrolled Bill (ENR)]
S.1691
One Hundred Thirteenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Friday,
the third day of January, two thousand and fourteen
An Act
To amend title 5, United States Code, to improve the security of the
United States border and to provide for reforms and rates of pay for
border patrol agents.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Patrol Agent Pay Reform Act
of 2014''.
SEC. 2. BORDER PATROL RATE OF PAY.
(a) Purpose.--The purposes of this Act are--
(1) to strengthen U.S. Customs and Border Protection and ensure
that border patrol agents are sufficiently ready to conduct
necessary work and will perform overtime hours in excess of a 40-
hour workweek based on the needs of U.S. Customs and Border
Protection; and
(2) to ensure U.S. Customs and Border Protection has the
flexibility to cover shift changes and retains the right to assign
scheduled and unscheduled work for mission requirements and
planning based on operational need.
(b) Rates of Pay.--Subchapter V of chapter 55 of title 5, United
States Code, is amended by inserting after section 5549 the following:
``Sec. 5550. Border patrol rate of pay
``(a) Definitions.--In this section--
``(1) the term `basic border patrol rate of pay' means the
hourly rate of basic pay of the applicable border patrol, as
determined without regard to this section;
``(2) the term `border patrol agent' means an individual who is
appointed to a position assigned to the Border Patrol Enforcement
classification series 1896 or any successor series, consistent with
classification standards established by the Office of Personnel
Management;
``(3) the term `level 1 border patrol rate of pay' means the
hourly rate of pay equal to 1.25 times the otherwise applicable
hourly rate of basic pay of the applicable border patrol agent;
``(4) the term `level 2 border patrol rate of pay' means the
hourly rate of pay equal to 1.125 times the otherwise applicable
hourly rate of basic pay of the applicable border patrol agent; and
``(5) the term `work period' means a 14-day biweekly pay
period.
``(b) Receipt of Border Patrol Rate of Pay.--
``(1) Voluntary election.--
``(A) In general.--Not later than 30 days before the first
day of each year beginning after the date of enactment of this
section, a border patrol agent shall make an election whether
the border patrol agent shall, for that year, be assigned to--
``(i) the level 1 border patrol rate of pay;
``(ii) the level 2 border patrol rate of pay; or
``(iii) the basic border patrol rate of pay, with
additional overtime assigned as needed by U.S. Customs and
Border Protection.
``(B) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations establishing procedures
for elections under subparagraph (A).
``(C) Information regarding election.--Not later than 60
days before the first day of each year beginning after the date
of enactment of this section, U.S. Customs and Border
Protection shall provide each border patrol agent with
information regarding each type of election available under
subparagraph (A) and how to make such an election.
``(D) Assignment in lieu of election.--Notwithstanding
subparagraph (A)--
``(i) a border patrol agent who fails to make a timely
election under subparagraph (A) shall be assigned to the
level 1 border patrol rate of pay;
``(ii) a border patrol agent who is assigned a canine
shall be assigned to the level 1 border patrol rate of pay;
``(iii) if at any time U.S. Customs and Border
Protection concludes that a border patrol agent is unable
to perform overtime on a daily basis in accordance with
this section, U.S. Customs and Border Protection shall
assign the border patrol agent to the basic border patrol
rate of pay until such time as U.S. Customs and Border
Protection determines that the border patrol agent is able
to perform scheduled overtime on a daily basis;
``(iv) unless the analysis conducted under section 2(e)
of the Border Patrol Agent Pay Reform Act of 2014 indicates
that, in order to more adequately fulfill the operational
requirements of U.S. Customs and Border Protection, such
border patrol agents should be allowed to elect or be
assigned to the level 1 border patrol rate of pay or the
level 2 border patrol rate of pay, a border patrol agent
shall be assigned to the basic border patrol rate of pay if
the agent works--
``(I) at U.S. Customs and Border Protection
headquarters;
``(II) as a training instructor at a U.S. Customs
and Border Protection training facility;
``(III) in an administrative position; or
``(IV) as a fitness instructor; and
``(v) a border patrol agent may be assigned to the
level 1 border patrol rate of pay or the level 2 border
patrol rate of pay in accordance with subparagraph (E).
``(E) Flexibility.--
``(i) In general.--Except as provided in clauses (ii)
and (iii), and notwithstanding any other provision of law,
U.S. Customs and Border Protection shall take such action
as is necessary, including the unilateral assignment of
border patrol agents to the level 1 border patrol rate of
pay or the level 2 border patrol rate of pay, to ensure
that not more than 10 percent of the border patrol agents
stationed at a location are assigned to the level 2 border
patrol rate of pay or the basic border patrol rate of pay.
``(ii) Waiver.--U.S. Customs and Border Protection may
waive the limitation under clause (i) on the percent of
border patrol agents stationed at a location who are
assigned to the level 2 border patrol rate of pay or the
basic border patrol rate of pay if, based on the analysis
conducted under section 2(e) of the Border Patrol Agent Pay
Reform Act of 2014, U.S. Customs and Border Protection
determines it may do so and adequately fulfill its
operational requirements.
``(iii) Certain locations.--Clause (i) shall not apply
to border patrol agents working at the headquarters of U.S.
Customs and Border Protection or a training location of
U.S. Customs and Border Protection.
``(F) Canine care.--For a border patrol agent assigned to
provide care for a canine and assigned to the level 1 border
patrol rate of pay in accordance with subparagraph (D)(ii)--
``(i) that rate of pay covers all such care;
``(ii) for the purposes of scheduled overtime under
paragraph (2)(A)(ii), such care shall be counted as 1 hour
of scheduled overtime on each regular workday without
regard to the actual duration of such care or whether such
care occurs on the regular workday; and
``(iii) no other pay shall be paid to the border patrol
agent for such care.
``(G) Pay assignment continuity.--
``(i) In general.--Not later than 1 year after the date
of enactment of the Border Patrol Agent Pay Reform Act of
2014, and in consultation with the Office of Personnel
Management, U.S. Customs and Border Protection shall
develop and implement a plan to ensure, to the greatest
extent practicable, that the assignment of a border patrol
agent under this section during the 3 years of service
before the border patrol agent becomes eligible for
immediate retirement are consistent with the average border
patrol rate of pay level to which the border patrol agent
has been assigned during the course of the career of the
border patrol agent.
``(ii) Implementation.--Notwithstanding any other
provision of law, U.S. Customs and Border Protection may
take such action as is necessary, including the unilateral
assignment of border patrol agents to the level 1 border
patrol rate of pay, the level 2 border patrol rate of pay,
or the basic border patrol rate of pay, to implement the
plan developed under this subparagraph.
``(iii) Reporting.--U.S. Customs and Border Protection
shall submit the plan developed under clause (i) to the
appropriate committees of Congress.
``(iv) GAO review.--Not later than 6 months after U.S.
Customs and Border Protection issues the plan required
under clause (i), the Comptroller General of the United
States shall submit to the appropriate committees of
Congress a report on the effectiveness of the plan in
ensuring that border patrol agents are not able to
artificially enhance their retirement annuities.
``(v) Definition.--In this subparagraph, the term
`appropriate committees of Congress' means--
``(I) the Committee on Homeland Security and
Governmental Affairs and the Committee on
Appropriations of the Senate; and
``(II) the Committee on Homeland Security, the
Committee on Oversight and Government Reform, and the
Committee on Appropriations of the House of
Representatives.
``(vi) Rule of construction.--Nothing in this
subparagraph shall be construed to limit the ability of
U.S. Customs and Border Protection to assign border patrol
agents to border patrol rates of pay as necessary to meet
operational requirements.
``(2) Level 1 border patrol rate of pay.--For a border patrol
agent who is assigned to the level 1 border patrol rate of pay--
``(A) the border patrol agent shall have a regular tour of
duty consisting of 5 workdays per week with--
``(i) 8 hours of regular time per workday, which may be
interrupted by an unpaid off-duty meal break; and
``(ii) 2 additional hours of scheduled overtime during
each day the agent performs work under clause (i);
``(B) for paid hours of regular time described in
subparagraph (A)(i), the border patrol agent shall receive pay
at the level 1 border patrol rate of pay;
``(C) compensation for the hours of regularly scheduled
overtime work described in subparagraph (A)(ii) is provided
indirectly through the 25 percent supplement within the level 1
border patrol rate of pay, and the border patrol agent may not
receive for such hours--
``(i) any compensation in addition to the compensation
under subparagraph (B) under this section or any other
provision of law; or
``(ii) any compensatory time off;
``(D) the border patrol agent shall receive compensatory
time off or pay at the overtime hourly rate of pay for hours of
work in excess of 100 hours during a work period, as determined
in accordance with section 5542(g);
``(E) the border patrol agent shall be charged
corresponding amounts of paid leave, compensatory time off, or
other paid time off for each hour (or part thereof) the agent
is absent from work during regular time (except that full days
off for military leave shall be charged when required);
``(F) if the border patrol agent is absent during scheduled
overtime described in subparagraph (A)(ii)--
``(i) the border patrol agent shall accrue an
obligation to perform other overtime work for each hour (or
part thereof) the border patrol agent is absent; and
``(ii) any overtime work applied toward the obligation
under clause (i) shall not be credited as overtime work
under any other provision of law; and
``(G) for the purposes of advanced training, the border
patrol agent--
``(i) shall be paid at the level 1 border patrol rate
of pay for the first 60 days of advanced training in a
calendar year; and
``(ii) for any advanced training in addition to the
advanced training described in clause (i), shall be paid at
the basic border patrol rate of pay.
``(3) Level 2 border patrol rate of pay.--For a border patrol
agent who is assigned to the level 2 border patrol rate of pay--
``(A) the border patrol agent shall have a regular tour of
duty consisting of 5 workdays per week with--
``(i) 8 hours of regular time per workday, which may be
interrupted by an unpaid off-duty meal break; and
``(ii) 1 additional hour of scheduled overtime during
each day the agent performs work under clause (i);
``(B) for paid hours of regular time described in
subparagraph (A)(i), the border patrol agent shall receive pay
at the level 2 border patrol rate of pay;
``(C) compensation for the hours of regularly scheduled
overtime work described in subparagraph (A)(ii) is provided
indirectly through the 12.5 percent supplement within the level
2 border patrol rate of pay, and the border patrol agent may
not receive for such hours--
``(i) any compensation in addition to the compensation
under subparagraph (B) under this section or any other
provision of law; or
``(ii) any compensatory time off;
``(D) the border patrol agent shall receive compensatory
time off or pay at the overtime hourly rate of pay for hours of
work in excess of 90 hours during a work period, as determined
in accordance with section 5542(g);
``(E) the border patrol agent shall be charged
corresponding amounts of paid leave, compensatory time off, or
other paid time off for each hour (or part thereof) the agent
is excused from work during regular time (except that full days
off for military leave shall be charged when required);
``(F) if the border patrol agent is absent during scheduled
overtime described in subparagraph (A)(ii)--
``(i) the border patrol agent shall accrue an
obligation to perform other overtime work for each hour (or
part thereof) the border patrol agent is absent; and
``(ii) any overtime work applied toward the obligation
under clause (i) shall not be credited as overtime work
under any other provision of law; and
``(G) for the purposes of advanced training, the border
patrol agent--
``(i) shall be paid at the level 2 border patrol rate
of pay for the first 60 days of advanced training in a
calendar year; and
``(ii) for any advanced training in addition to the
advanced training described in clause (i), shall be paid at
the basic border patrol rate of pay.
``(4) Basic border patrol rate of pay.--For a border patrol
agent who is assigned to the basic border patrol rate of pay--
``(A) the border patrol agent shall have a regular tour of
duty consisting of 5 workdays per week with 8 hours of regular
time per workday; and
``(B) the border patrol agent shall receive compensatory
time off or pay at the overtime hourly rate of pay for hours of
work in excess of 80 hours during a work period, as determined
in accordance with section 5542(g).
``(c) Eligibility for Other Premium Pay.--A border patrol agent--
``(1) shall receive premium pay for nightwork in accordance
with subsections (a) and (b) of section 5545 and Sunday and holiday
pay in accordance with section 5546, without regard to the rate of
pay to which the border patrol agent is assigned under this
section, except that--
``(A) no premium pay for night, Sunday, or holiday work
shall be provided for hours of regularly scheduled overtime
work described in paragraph (2)(A)(ii) or (3)(A)(ii) of
subsection (b), consistent with the requirements of paragraph
(2)(C) or (3)(C) of subsection (b); and
``(B) section 5546(d) shall not apply and instead
eligibility for pay for, and the rate of pay for, any overtime
work on a Sunday or a designated holiday shall be determined in
accordance with this section and section 5542(g);
``(2) except as provided in paragraph (3) or section 5542(g),
shall not be eligible for any other form of premium pay under this
title; and
``(3) shall be eligible for hazardous duty pay in accordance
with section 5545(d).
``(d) Treatment as Basic Pay.--Any pay in addition to the basic
border patrol rate of pay for a border patrol agent resulting from
application of the level 1 border patrol rate of pay or the level 2
border patrol rate of pay--
``(1) subject to paragraph (2), shall be treated as part of
basic pay solely for--
``(A) purposes of sections 5595(c), 8114(e), 8331(3)(I),
and 8704(c);
``(B) any other purpose that the Director of the Office of
Personnel Management may by regulation prescribe; and
``(C) any other purpose expressly provided for by law; and
``(2) shall not be treated as part of basic pay for the
purposes of calculating overtime pay, night pay, Sunday pay, or
holiday pay under section 5542, 5545, or 5546.
``(e) Travel Time.--Travel time to and from home and duty station
by a border patrol agent shall not be considered hours of work under
any provision of law.
``(f) Leave Without Pay and Substitution of Hours.--
``(1) Regular time.--
``(A) In general.--For a period of leave without pay during
the regular time of a border patrol agent (as described in
paragraph (2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b))
within a work period, an equal period of work outside the
regular time of the border patrol agent, but in the same work
period--
``(i) shall be substituted and paid for at the rate
applicable for the regular time; and
``(ii) shall not be credited as overtime hours for any
purpose.
``(B) Priority for same day work.--In substituting hours of
work under subparagraph (A), work performed on the same day as
the period of leave without pay shall be substituted first.
``(C) Priority for regular time substitution.--Hours of
work shall be substituted for regular time work under this
paragraph before being substituted for scheduled overtime under
paragraphs (2), (3), and (4).
``(2) Overtime work.--
``(A) In general.--For a period of absence during scheduled
overtime (as described in paragraph (2)(F) or (3)(F) of
subsection (b)) within a work period, an equal period of
additional work in the same work period--
``(i) shall be substituted and credited as scheduled
overtime; and
``(ii) shall not be credited as overtime hours under
any other provision of law.
``(B) Priority for same day work.--In substituting hours of
work under subparagraph (A), work performed on the same day as
the period of absence shall be substituted first.
``(3) Application of compensatory time.--If a border patrol
agent does not have sufficient additional work in a work period to
substitute for all periods of absence during scheduled overtime (as
described in paragraph (2)(F) or (3)(F) of subsection (b)) within
that work period, any accrued compensatory time off under section
5542(g) shall be applied to satisfy the hours obligation.
``(4) Insufficient hours.--If a border patrol agent has a
remaining hours obligation of scheduled overtime after applying
paragraphs (2) and (3), any additional work in subsequent work
periods that would otherwise be credited under section 5542(g)
shall be applied towards the hours obligation until that obligation
is satisfied.
``(g) Authority To Require Overtime Work.--Nothing in this section
shall be construed to limit the authority of U.S. Customs and Border
Protection to require a border patrol agent to perform hours of
overtime work in accordance with the needs of U.S. Customs and Border
Protection, including if needed in the event of a local or national
emergency.''.
(c) Overtime Work.--
(1) In general.--Section 5542 of title 5, United States Code,
is amended by adding at the end the following:
``(g) In applying subsection (a) with respect to a border patrol
agent covered by section 5550, the following rules apply:
``(1) Notwithstanding the matter preceding paragraph (1) in
subsection (a), for a border patrol agent who is assigned to the
level 1 border patrol rate of pay under section 5550--
``(A) hours of work in excess of 100 hours during a 14-day
biweekly pay period shall be overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the overtime hourly rate of
pay (as determined in accordance with paragraphs (1) and
(2) of subsection (a)) for hours of overtime work that are
officially ordered or approved in advance of the workweek;
and
``(ii) except as provided in paragraphs (4) and (5),
shall receive compensatory time off for an equal amount of
time spent performing overtime work that is not overtime
work described in clause (i).
``(2) Notwithstanding the matter preceding paragraph (1) in
subsection (a), for a border patrol agent who is assigned to the
level 2 border patrol rate of pay under section 5550--
``(A) hours of work in excess of 90 hours during a 14-day
biweekly pay period shall be overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the overtime hourly rate of
pay (as determined in accordance with paragraphs (1) and
(2) of subsection (a)) for hours of overtime work that are
officially ordered or approved in advance of the workweek;
and
``(ii) except as provided in paragraphs (4) and (5),
shall receive compensatory time off for an equal amount of
time spent performing overtime work that is not overtime
work described in clause (i).
``(3) Notwithstanding the matter preceding paragraph (1) in
subsection (a), for a border patrol agent who is assigned to the
basic border patrol rate of pay under section 5550--
``(A) hours of work in excess of 80 hours during a 14-day
biweekly pay period shall be overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the overtime hourly rate of
pay (as determined in accordance with paragraphs (1) and
(2) of subsection (a)) for hours of overtime work that are
officially ordered or approved in advance of the workweek;
and
``(ii) except as provided in paragraphs (4) and (5),
shall receive compensatory time off for an equal amount of
time spent performing overtime work that is not overtime
work described in clause (i).
``(4)(A) Except as provided in subparagraph (B), during a 14-
day biweekly pay period, a border patrol agent may not earn
compensatory time off for more than 10 hours of overtime work.
``(B) U.S. Customs and Border Protection may, as it determines
appropriate, waive the limitation under subparagraph (A) for an
individual border patrol agent for hours of irregular or occasional
overtime work, but such waiver must be approved in writing in
advance of the performance of any such work for which compensatory
time off is earned under paragraph (1)(B)(ii), (2)(B)(ii), or
(3)(B)(ii). If a waiver request by a border patrol agent is denied,
the border patrol agent may not be ordered to perform the
associated overtime work.
``(5) A border patrol agent--
``(A) may not earn more than 240 hours of compensatory time
off during a leave year;
``(B) shall use any hours of compensatory time off not
later than the end of the 26th pay period after the pay period
during which the compensatory time off was earned;
``(C) shall be required to use 1 hour of compensatory time
off for each hour of regular time not worked for which the
border patrol agent is not on paid leave or other paid time off
or does not substitute time in accordance with section 5550(f);
``(D) shall forfeit any compensatory time off not used in
accordance with this paragraph and, regardless of
circumstances, shall not be entitled to any cash value for
compensatory time earned under section 5550;
``(E) shall not receive credit towards the computation of
the annuity of the border patrol agent for compensatory time,
whether used or not; and
``(F) shall not be credited with compensatory time off if
the value of such time off would cause the aggregate premium
pay of the border patrol agent to exceed the limitation
established under section 5547 in the period in which it was
earned.''.
(2) Minimization of overtime.--U.S. Customs and Border
Protection shall, to the maximum extent practicable, avoid the use
of scheduled overtime work by border patrol agents.
(d) Retirement.--Section 8331(3) of title 5, United States Code, is
amended--
(1) in subparagraph (G), by striking ``and'';
(2) in subparagraph (H), by inserting ``and'' after the
semicolon;
(3) by inserting a new subparagraph after subparagraph (H) as
follows:
``(I) with respect to a border patrol agent, the
amount of supplemental pay received through application
of the level 1 border patrol rate of pay or the level 2
border patrol rate of pay for scheduled overtime within
the regular tour of duty of the border patrol agent as
provided in section 5550;''; and
(4) in the undesignated matter following subparagraph (H), by
striking ``subparagraphs (B) through (H)'' and inserting
``subparagraphs (B) through (I)''.
(e) Comprehensive Staffing Analysis.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, U.S. Customs and Border Protection shall
conduct a comprehensive analysis, and submit to the Comptroller
General of the United States a report, that--
(A) examines the staffing requirements for U.S. Border
Patrol to most effectively meet its operational requirements at
each Border Patrol duty station;
(B) estimates the cost of the staffing requirements at each
Border Patrol duty station; and
(C) includes--
(i) a position-by-position review at each Border Patrol
station to determine--
(I) the duties assigned to each position;
(II) how the duties relate to the operational
requirements of U.S. Border Patrol; and
(III) the number of hours border patrol agents in
that position would need to work each pay period to
meet the operational requirements of U.S. Border
Patrol;
(ii) the metrics used to determine the number of hours
of work performed at each Border Patrol station, broken
down by the type of hours worked;
(iii) a cost analysis of the most recent full fiscal
year by the type of full-time equivalent hours worked;
(iv) a cost estimate by the type of full-time
equivalent hours expected to be worked during the first
full fiscal year after the date of enactment of this Act;
and
(v) an analysis that compares the cost of assigning the
full-time equivalent hours needed to meet the operational
requirements of U.S. Border Patrol to existing border
patrol agents through higher rates of pay versus
recruiting, hiring, training, and deploying additional
border patrol agents.
(2) Independent validator.--Not later than 90 days after the
date on which the Comptroller General receives the report under
paragraph (1), the Comptroller General shall submit to the
appropriate committees of Congress a report that--
(A) examines the methodology used by U.S. Customs and
Border Protection to carry out the analysis; and
(B) indicates whether the Comptroller General concurs with
the findings in the report under paragraph (1).
(3) Definition.--In this subsection, the term ``appropriate
committees of Congress'' means--
(A) the Committee on Homeland Security and Governmental
Affairs and the Committee on Appropriations of the Senate; and
(B) the Committee on Oversight and Government Reform and
the Committee on Appropriations of the House of
Representatives.
(f) Rules of Construction.--Nothing in this section or the
amendments made by this section shall be construed to--
(1) limit the right of U.S. Customs and Border Protection to
assign both scheduled and unscheduled work to a border patrol agent
based on the needs of U.S. Customs and Border Protection in excess
of the hours of work normally applicable under the election of the
border patrol agent, regardless of what the border patrol agent
might otherwise have elected;
(2) require compensation of a border patrol agent other than
for hours during which the border patrol agent is actually
performing work or using approved paid leave or other paid time
off; or
(3) exempt a border patrol agent from any limitations on pay,
earnings, or compensation, including the limitations under section
5547 of title 5, United States Code.
(g) Technical and Conforming Amendments.--
(1) Section 5547 of title 5, United States Code is amended by--
(A) in subsection (a), in the matter preceding paragraph
(1)--
(i) by striking, ``and'' before ``5546''; and
(ii) by inserting ``, and 5550'' after ``5546 (a) and
(b)''; and
(B) by adding at the end the following:
``(e) Any supplemental pay resulting from receipt of the level 1
border patrol rate of pay or the level 2 border patrol rate of pay
under section 5550 shall be considered premium pay in applying this
section.''.
(2) Section 13(a) of the Fair Labor Standards Act of 1938 (29
U.S.C. 213(a)) is amended--
(A) in paragraph (16), by striking ``or'' after the
semicolon;
(B) in paragraph (17), by striking the period at the end
and inserting ``; or''; and
(C) by adding at the end the following:
``(18) any employee who is a border patrol agent, as defined in
section 5550(a) of title 5, United States Code.''.
(3) The table of sections for chapter 55 of title 5, United
States Code, is amended by inserting after the item relating to
section 5549 the following:
``5550. Border patrol rate of pay.''.
(h) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations to carry out this Act and the
amendments made by this Act.
SEC. 3. CYBERSECURITY RECRUITMENT AND RETENTION.
(a) In General.--At the end of subtitle C of title II of the
Homeland Security Act of 2002 (6 U.S.C. 141 et seq.), add the
following:
``SEC. 226. CYBERSECURITY RECRUITMENT AND RETENTION.
``(a) Definitions.--In this section:
``(1) Appropriate committees of congress.--The term
`appropriate committees of Congress' means the Committee on
Homeland Security and Governmental Affairs and the Committee on
Appropriations of the Senate and the Committee on Homeland Security
and the Committee on Appropriations of the House of
Representatives.
``(2) Collective bargaining agreement.--The term `collective
bargaining agreement' has the meaning given that term in section
7103(a)(8) of title 5, United States Code.
``(3) Excepted service.--The term `excepted service' has the
meaning given that term in section 2103 of title 5, United States
Code.
``(4) Preference eligible.--The term `preference eligible' has
the meaning given that term in section 2108 of title 5, United
States Code.
``(5) Qualified position.--The term `qualified position' means
a position, designated by the Secretary for the purpose of this
section, in which the incumbent performs, manages, or supervises
functions that execute the responsibilities of the Department
relating to cybersecurity.
``(6) Senior executive service.--The term `Senior Executive
Service' has the meaning given that term in section 2101a of title
5, United States Code.
``(b) General Authority.--
``(1) Establish positions, appoint personnel, and fix rates of
pay.--
``(A) General authority.--The Secretary may--
``(i) establish, as positions in the excepted service,
such qualified positions in the Department as the Secretary
determines necessary to carry out the responsibilities of
the Department relating to cybersecurity, including
positions formerly identified as--
``(I) senior level positions designated under
section 5376 of title 5, United States Code; and
``(II) positions in the Senior Executive Service;
``(ii) appoint an individual to a qualified position
(after taking into consideration the availability of
preference eligibles for appointment to the position); and
``(iii) subject to the requirements of paragraphs (2)
and (3), fix the compensation of an individual for service
in a qualified position.
``(B) Construction with other laws.--The authority of the
Secretary under this subsection applies without regard to the
provisions of any other law relating to the appointment,
number, classification, or compensation of employees.
``(2) Basic pay.--
``(A) Authority to fix rates of basic pay.--In accordance
with this section, the Secretary shall fix the rates of basic
pay for any qualified position established under paragraph (1)
in relation to the rates of pay provided for employees in
comparable positions in the Department of Defense and subject
to the same limitations on maximum rates of pay established for
such employees by law or regulation.
``(B) Prevailing rate systems.--The Secretary may,
consistent with section 5341 of title 5, United States Code,
adopt such provisions of that title as provide for prevailing
rate systems of basic pay and may apply those provisions to
qualified positions for employees in or under which the
Department may employ individuals described by section
5342(a)(2)(A) of that title.
``(3) Additional compensation, incentives, and allowances.--
``(A) Additional compensation based on title 5
authorities.--The Secretary may provide employees in qualified
positions compensation (in addition to basic pay), including
benefits, incentives, and allowances, consistent with, and not
in excess of the level authorized for, comparable positions
authorized by title 5, United States Code.
``(B) Allowances in nonforeign areas.--An employee in a
qualified position whose rate of basic pay is fixed under
paragraph (2)(A) shall be eligible for an allowance under
section 5941 of title 5, United States Code, on the same basis
and to the same extent as if the employee was an employee
covered by such section 5941, including eligibility conditions,
allowance rates, and all other terms and conditions in law or
regulation.
``(4) Plan for execution of authorities.--Not later than 120
days after the date of enactment of this section, the Secretary
shall submit a report to the appropriate committees of Congress
with a plan for the use of the authorities provided under this
subsection.
``(5) Collective bargaining agreements.--Nothing in paragraph
(1) may be construed to impair the continued effectiveness of a
collective bargaining agreement with respect to an office,
component, subcomponent, or equivalent of the Department that is a
successor to an office, component, subcomponent, or equivalent of
the Department covered by the agreement before the succession.
``(6) Required regulations.--The Secretary, in coordination
with the Director of the Office of Personnel Management, shall
prescribe regulations for the administration of this section.
``(c) Annual Report.--Not later than 1 year after the date of
enactment of this section, and every year thereafter for 4 years, the
Secretary shall submit to the appropriate committees of Congress a
detailed report that--
``(1) discusses the process used by the Secretary in accepting
applications, assessing candidates, ensuring adherence to veterans'
preference, and selecting applicants for vacancies to be filled by
an individual for a qualified position;
``(2) describes--
``(A) how the Secretary plans to fulfill the critical need
of the Department to recruit and retain employees in qualified
positions;
``(B) the measures that will be used to measure progress;
and
``(C) any actions taken during the reporting period to
fulfill such critical need;
``(3) discusses how the planning and actions taken under
paragraph (2) are integrated into the strategic workforce planning
of the Department;
``(4) provides metrics on actions occurring during the
reporting period, including--
``(A) the number of employees in qualified positions hired
by occupation and grade and level or pay band;
``(B) the placement of employees in qualified positions by
directorate and office within the Department;
``(C) the total number of veterans hired;
``(D) the number of separations of employees in qualified
positions by occupation and grade and level or pay band;
``(E) the number of retirements of employees in qualified
positions by occupation and grade and level or pay band; and
``(F) the number and amounts of recruitment, relocation,
and retention incentives paid to employees in qualified
positions by occupation and grade and level or pay band; and
``(5) describes the training provided to supervisors of
employees in qualified positions at the Department on the use of
the new authorities.
``(d) Three-Year Probationary Period.--The probationary period for
all employees hired under the authority established in this section
shall be 3 years.
``(e) Incumbents of Existing Competitive Service Positions.--
``(1) In general.--An individual serving in a position on the
date of enactment of this section that is selected to be converted
to a position in the excepted service under this section shall have
the right to refuse such conversion.
``(2) Subsequent conversion.--After the date on which an
individual who refuses a conversion under paragraph (1) stops
serving in the position selected to be converted, the position may
be converted to a position in the excepted service.
``(f) Study and Report.--Not later than 120 days after the date of
enactment of this section, the National Protection and Programs
Directorate shall submit a report regarding the availability of, and
benefits (including cost savings and security) of using, cybersecurity
personnel and facilities outside of the National Capital Region (as
defined in section 2674 of title 10, United States Code) to serve the
Federal and national need to--
``(1) the Subcommittee on Homeland Security of the Committee on
Appropriations and the Committee on Homeland Security and
Governmental Affairs of the Senate; and
``(2) the Subcommittee on Homeland Security of the Committee on
Appropriations and the Committee on Homeland Security of the House
of Representatives.''.
(b) Conforming Amendment.--Section 3132(a)(2) of title 5, United
States Code, is amended in the matter following subparagraph (E)--
(1) in clause (i), by striking ``or'' at the end;
(2) in clause (ii), by inserting ``or'' after the semicolon;
and
(3) by inserting after clause (ii) the following:
``(iii) any position established as a qualified position in the
excepted service by the Secretary of Homeland Security under
section 226 of the Homeland Security Act of 2002;''.
(c) Table of Contents Amendment.--The table of contents in section
1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is
amended by inserting after the item relating to section 225 the
following:
``Sec. 226. Cybersecurity recruitment and retention.''.
SEC. 4. HOMELAND SECURITY CYBERSECURITY WORKFORCE ASSESSMENT.
(a) Short Title.--This section may be cited as the ``Homeland
Security Cybersecurity Workforce Assessment Act''.
(b) Definitions.--In this section:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(B) the Committee on Homeland Security of the House of
Representatives; and
(C) the Committee on House Administration of the House of
Representatives.
(2) Cybersecurity work category; data element code; specialty
area.--The terms ``Cybersecurity Work Category'', ``Data Element
Code'', and ``Specialty Area'' have the meanings given such terms
in the Office of Personnel Management's Guide to Data Standards.
(3) Department.--The term ``Department'' means the Department
of Homeland Security.
(4) Director.--The term ``Director'' means the Director of the
Office of Personnel Management.
(5) Secretary.--The term ``Secretary'' means the Secretary of
Homeland Security.
(c) National Cybersecurity Workforce Measurement Initiative.--
(1) In general.--The Secretary shall--
(A) identify all cybersecurity workforce positions within
the Department;
(B) determine the primary Cybersecurity Work Category and
Specialty Area of such positions; and
(C) assign the corresponding Data Element Code, as set
forth in the Office of Personnel Management's Guide to Data
Standards which is aligned with the National Initiative for
Cybersecurity Education's National Cybersecurity Workforce
Framework report, in accordance with paragraph (2).
(2) Employment codes.--
(A) Procedures.--Not later than 90 days after the date of
the enactment of this Act, the Secretary shall establish
procedures--
(i) to identify open positions that include
cybersecurity functions (as defined in the OPM Guide to
Data Standards); and
(ii) to assign the appropriate employment code to each
such position, using agreed standards and definitions.
(B) Code assignments.--Not later than 9 months after the
date of the enactment of this Act, the Secretary shall assign
the appropriate employment code to--
(i) each employee within the Department who carries out
cybersecurity functions; and
(ii) each open position within the Department that have
been identified as having cybersecurity functions.
(3) Progress report.--Not later than 1 year after the date of
the enactment of this Act, the Director shall submit a progress
report on the implementation of this subsection to the appropriate
congressional committees.
(d) Identification of Cybersecurity Specialty Areas of Critical
Need.--
(1) In general.--Beginning not later than 1 year after the date
on which the employment codes are assigned to employees pursuant to
subsection (c)(2)(B), and annually through 2021, the Secretary, in
consultation with the Director, shall--
(A) identify Cybersecurity Work Categories and Specialty
Areas of critical need in the Department's cybersecurity
workforce; and
(B) submit a report to the Director that--
(i) describes the Cybersecurity Work Categories and
Specialty Areas identified under subparagraph (A); and
(ii) substantiates the critical need designations.
(2) Guidance.--The Director shall provide the Secretary with
timely guidance for identifying Cybersecurity Work Categories and
Specialty Areas of critical need, including--
(A) current Cybersecurity Work Categories and Specialty
Areas with acute skill shortages; and
(B) Cybersecurity Work Categories and Specialty Areas with
emerging skill shortages.
(3) Cybersecurity critical needs report.--Not later than 18
months after the date of the enactment of this Act, the Secretary,
in consultation with the Director, shall--
(A) identify Specialty Areas of critical need for
cybersecurity workforce across the Department; and
(B) submit a progress report on the implementation of this
subsection to the appropriate congressional committees.
(e) Government Accountability Office Status Reports.--The
Comptroller General of the United States shall--
(1) analyze and monitor the implementation of subsections (c)
and (d); and
(2) not later than 3 years after the date of the enactment of
this Act, submit a report to the appropriate congressional
committees that describes the status of such implementation.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.