[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

[[Page S5872]]

     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.

                          ____________________