[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Engrossed in Senate (ES)]
113th CONGRESS
2d Session
S. 1691
_______________________________________________________________________
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.
Passed the Senate September 18, 2014.
Attest:
Secretary.
113th CONGRESS
2d Session
S. 1691
_______________________________________________________________________
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.