[Congressional Record Volume 160, Number 134 (Thursday, September 18, 2014)]
[Senate]
[Pages S5865-S5872]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BORDER PATROL AGENT PAY REFORM ACT OF 2014
Mr. PRYOR. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 548, S. 1691.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 1691) 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.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Homeland Security and
Governmental Affairs with an amendment to strike all after the enacting
clause and insert in lieu thereof the following:
S. 1691
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--
[[Page S5866]]
``(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 agency 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 agency 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.
[[Page S5867]]
``(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
[[Page S5868]]
(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.
Mr. PRYOR. I further ask unanimous consent that the committee-
reported substitute amendment be considered; the Carper amendment,
which is at the desk, be agreed to; the committee substitute, as
amended, be agreed to; the bill, as amended, be read a third time and
the Senate proceed to vote on passage.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3931) was agreed to.
(The amendment is printed in Today's Record under ``Text of
Amendments.'')
The committee-reported amendment in the nature of a substitute, as
amended, was agreed to.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. If there is no further debate, the bill having
been read the third time, the question is, Shall it pass?
The bill (S. 1691), as amended, was passed, as follows:
S. 1691
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
[[Page S5869]]
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
[[Page S5870]]
``(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).
[[Page S5871]]
(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
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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.
Mr. PRYOR. I ask unanimous consent that the motion to reconsider be
considered made and laid upon the table with no intervening action or
debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________