    [United States Statutes at Large, Volume 128, 113th Congress, 2nd Session]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    Public Law 113-277
    113th Congress

    An Act

    To amend title 5, United States Code, to improve the security of the
    United States border and to provide for reforms and rates of pay for
    border patrol agents. <>

    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.

    [[Page 2996]]

    ``(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

    [[Page 2997]]

    patrol rate of pay in accordance with subparagraph
    (E).
    ``(E) Flexibility.--
    ``(i) In general.--Except as provided in
    clauses (ii) and (iii), and notwithstanding any
    other provision of law, U.S. Customs and Border
    Protection shall take such action as is necessary,
    including the unilateral assignment of border
    patrol agents to the level 1 border patrol rate of
    pay or the level 2 border patrol rate of pay, to
    ensure that not more than 10 percent of the border
    patrol agents stationed at a location are assigned
    to the level 2 border patrol rate of pay or the
    basic border patrol rate of pay.
    ``(ii) Waiver.--U.S. Customs and Border
    Protection may waive the limitation under clause
    (i) on the percent of border patrol agents
    stationed at a location who are assigned to the
    level 2 border patrol rate of pay or the basic
    border patrol rate of pay if, based on the
    analysis conducted under section 2(e) of the
    Border Patrol Agent Pay Reform Act of 2014, U.S.
    Customs and Border Protection determines it may do
    so and adequately fulfill its operational
    requirements.
    ``(iii) Certain locations.--Clause (i) shall
    not apply to border patrol agents working at the
    headquarters of U.S. Customs and Border Protection
    or a training location of U.S. Customs and Border
    Protection.
    ``(F) Canine care.--For a border patrol agent
    assigned to provide care for a canine and assigned to
    the level 1 border patrol rate of pay in accordance with
    subparagraph (D)(ii)--
    ``(i) that rate of pay covers all such care;
    ``(ii) for the purposes of scheduled overtime
    under paragraph (2)(A)(ii), such care shall be
    counted as 1 hour of scheduled overtime on each
    regular workday without regard to the actual
    duration of such care or whether such care occurs
    on the regular workday; and
    ``(iii) no other pay shall be paid to the
    border patrol agent for such care.
    ``(G) Pay assignment continuity.--
    ``(i) <>
    In general.--Not later than 1 year after the date
    of enactment of the Border Patrol Agent Pay Reform
    Act of 2014, and in consultation with the Office
    of Personnel Management, U.S. Customs and Border
    Protection shall develop and implement a plan to
    ensure, to the greatest extent practicable, that
    the assignment of a border patrol agent under this
    section during the 3 years of service before the
    border patrol agent becomes eligible for immediate
    retirement are consistent with the average border
    patrol rate of pay level to which the border
    patrol agent has been assigned during the course
    of the career of the border patrol agent.
    ``(ii) Implementation.--Notwithstanding any
    other provision of law, U.S. Customs and Border
    Protection may take such action as is necessary,

    [[Page 2998]]

    including the unilateral assignment of border
    patrol agents to the level 1 border patrol rate of
    pay, the level 2 border patrol rate of pay, or the
    basic border patrol rate of pay, to implement the
    plan developed under this subparagraph.
    ``(iii) Reporting.--U.S. Customs and Border
    Protection shall submit the plan developed under
    clause (i) to the appropriate committees of
    Congress.
    ``(iv) <>  GAO
    review.--Not later than 6 months after U.S.
    Customs and Border Protection issues the plan
    required under clause (i), the Comptroller General
    of the United States shall submit to the
    appropriate committees of Congress a report on the
    effectiveness of the plan in ensuring that border
    patrol agents are not able to artificially enhance
    their retirement annuities.
    ``(v) Definition.--In this subparagraph, the
    term `appropriate committees of Congress' means--
    ``(I) the Committee on Homeland
    Security and Governmental Affairs and
    the Committee on Appropriations of the
    Senate; and
    ``(II) the Committee on Homeland
    Security, the Committee on Oversight and
    Government Reform, and the Committee on
    Appropriations of the House of
    Representatives.
    ``(vi) Rule of construction.--Nothing in this
    subparagraph shall be construed to limit the
    ability of U.S. Customs and Border Protection to
    assign border patrol agents to border patrol rates
    of pay as necessary to meet operational
    requirements.
    ``(2) Level 1 border patrol rate of pay.--For a border
    patrol agent who is assigned to the level 1 border patrol rate
    of pay--
    ``(A) the border patrol agent shall have a regular
    tour of duty consisting of 5 workdays per week with--
    ``(i) 8 hours of regular time per workday,
    which may be interrupted by an unpaid off-duty
    meal break; and
    ``(ii) 2 additional hours of scheduled
    overtime during each day the agent performs work
    under clause (i);
    ``(B) for paid hours of regular time described in
    subparagraph (A)(i), the border patrol agent shall
    receive pay at the level 1 border patrol rate of pay;
    ``(C) compensation for the hours of regularly
    scheduled overtime work described in subparagraph
    (A)(ii) is provided indirectly through the 25 percent
    supplement within the level 1 border patrol rate of pay,
    and the border patrol agent may not receive for such
    hours--
    ``(i) any compensation in addition to the
    compensation under subparagraph (B) under this
    section or any other provision of law; or
    ``(ii) any compensatory time off;
    ``(D) the border patrol agent shall receive
    compensatory time off or pay at the overtime hourly rate
    of pay for hours of work in excess of 100 hours during a
    work period, as determined in accordance with section
    5542(g);

    [[Page 2999]]

    ``(E) the border patrol agent shall be charged
    corresponding amounts of paid leave, compensatory time
    off, or other paid time off for each hour (or part
    thereof) the agent is absent from work during regular
    time (except that full days off for military leave shall
    be charged when required);
    ``(F) if the border patrol agent is absent during
    scheduled overtime described in subparagraph (A)(ii)--
    ``(i) the border patrol agent shall accrue an
    obligation to perform other overtime work for each
    hour (or part thereof) the border patrol agent is
    absent; and
    ``(ii) any overtime work applied toward the
    obligation under clause (i) shall not be credited
    as overtime work under any other provision of law;
    and
    ``(G) for the purposes of advanced training, the
    border patrol agent--
    ``(i) <>  shall be paid at
    the level 1 border patrol rate of pay for the
    first 60 days of advanced training in a calendar
    year; and
    ``(ii) for any advanced training in addition
    to the advanced training described in clause (i),
    shall be paid at the basic border patrol rate of
    pay.
    ``(3) Level 2 border patrol rate of pay.--For a border
    patrol agent who is assigned to the level 2 border patrol rate
    of pay--
    ``(A) the border patrol agent shall have a regular
    tour of duty consisting of 5 workdays per week with--
    ``(i) 8 hours of regular time per workday,
    which may be interrupted by an unpaid off-duty
    meal break; and
    ``(ii) 1 additional hour of scheduled overtime
    during each day the agent performs work under
    clause (i);
    ``(B) for paid hours of regular time described in
    subparagraph (A)(i), the border patrol agent shall
    receive pay at the level 2 border patrol rate of pay;
    ``(C) compensation for the hours of regularly
    scheduled overtime work described in subparagraph
    (A)(ii) is provided indirectly through the 12.5 percent
    supplement within the level 2 border patrol rate of pay,
    and the border patrol agent may not receive for such
    hours--
    ``(i) any compensation in addition to the
    compensation under subparagraph (B) under this
    section or any other provision of law; or
    ``(ii) any compensatory time off;
    ``(D) the border patrol agent shall receive
    compensatory time off or pay at the overtime hourly rate
    of pay for hours of work in excess of 90 hours during a
    work period, as determined in accordance with section
    5542(g);
    ``(E) the border patrol agent shall be charged
    corresponding amounts of paid leave, compensatory time
    off, or other paid time off for each hour (or part
    thereof) the agent is excused from work during regular
    time (except that full days off for military leave shall
    be charged when required);
    ``(F) if the border patrol agent is absent during
    scheduled overtime described in subparagraph (A)(ii)--

    [[Page 3000]]

    ``(i) the border patrol agent shall accrue an
    obligation to perform other overtime work for each
    hour (or part thereof) the border patrol agent is
    absent; and
    ``(ii) any overtime work applied toward the
    obligation under clause (i) shall not be credited
    as overtime work under any other provision of law;
    and
    ``(G) for the purposes of advanced training, the
    border patrol agent--
    ``(i) <>  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 3001]]

    ``(C) any other purpose expressly provided for by
    law; and
    ``(2) shall not be treated as part of basic pay for the
    purposes of calculating overtime pay, night pay, Sunday pay, or
    holiday pay under section 5542, 5545, or 5546.

    ``(e) Travel Time.--Travel time to and from home and duty station by
    a border patrol agent shall not be considered hours of work under any
    provision of law.
    ``(f) Leave Without Pay and Substitution of Hours.--
    ``(1) Regular time.--
    ``(A) In general.--For a period of leave without pay
    during the regular time of a border patrol agent (as
    described in paragraph (2)(A)(i), (3)(A)(i), or (4)(A)
    of subsection (b)) within a work period, an equal period
    of work outside the regular time of the border patrol
    agent, but in the same work period--
    ``(i) shall be substituted and paid for at the
    rate applicable for the regular time; and
    ``(ii) shall not be credited as overtime hours
    for any purpose.
    ``(B) Priority for same day work.--In substituting
    hours of work under subparagraph (A), work performed on
    the same day as the period of leave without pay shall be
    substituted first.
    ``(C) Priority for regular time substitution.--Hours
    of work shall be substituted for regular time work under
    this paragraph before being substituted for scheduled
    overtime under paragraphs (2), (3), and (4).
    ``(2) Overtime work.--
    ``(A) In general.--For a period of absence during
    scheduled overtime (as described in paragraph (2)(F) or
    (3)(F) of subsection (b)) within a work period, an equal
    period of additional work in the same work period--
    ``(i) shall be substituted and credited as
    scheduled overtime; and
    ``(ii) shall not be credited as overtime hours
    under any other provision of law.
    ``(B) Priority for same day work.--In substituting
    hours of work under subparagraph (A), work performed on
    the same day as the period of absence shall be
    substituted first.
    ``(3) Application of compensatory time.--If a border patrol
    agent does not have sufficient additional work in a work period
    to substitute for all periods of absence during scheduled
    overtime (as described in paragraph (2)(F) or (3)(F) of
    subsection (b)) within that work period, any accrued
    compensatory time off under section 5542(g) shall be applied to
    satisfy the hours obligation.
    ``(4) Insufficient hours.--If a border patrol agent has a
    remaining hours obligation of scheduled overtime after applying
    paragraphs (2) and (3), any additional work in subsequent work
    periods that would otherwise be credited under section 5542(g)
    shall be applied towards the hours obligation until that
    obligation is satisfied.

    ``(g) Authority To Require Overtime Work.--Nothing in this section
    shall be construed to limit the authority of U.S. Customs and Border
    Protection to require a border patrol agent to perform

    [[Page 3002]]

    hours of overtime work in accordance with the needs of U.S. Customs and
    Border Protection, including if needed in the event of a local or
    national emergency.''.
    (c) Overtime Work.--
    (1) In general.--Section 5542 of title 5, United States
    Code, is amended by adding at the end the following:

    ``(g) <>  In applying subsection
    (a) with respect to a border patrol agent covered by section 5550, the
    following rules apply:
    ``(1) Notwithstanding the matter preceding paragraph (1) in
    subsection (a), for a border patrol agent who is assigned to the
    level 1 border patrol rate of pay under section 5550--
    ``(A) hours of work in excess of 100 hours during a
    14-day biweekly pay period shall be overtime work; and
    ``(B) the border patrol agent--
    ``(i) shall receive pay at the overtime hourly
    rate of pay (as determined in accordance with
    paragraphs (1) and (2) of subsection (a)) for
    hours of overtime work that are officially ordered
    or approved in advance of the workweek; and
    ``(ii) except as provided in paragraphs (4)
    and (5), shall receive compensatory time off for
    an equal amount of time spent performing overtime
    work that is not overtime work described in clause
    (i).
    ``(2) Notwithstanding the matter preceding paragraph (1) in
    subsection (a), for a border patrol agent who is assigned to the
    level 2 border patrol rate of pay under section 5550--
    ``(A) hours of work in excess of 90 hours during a
    14-day biweekly pay period shall be overtime work; and
    ``(B) the border patrol agent--
    ``(i) shall receive pay at the overtime hourly
    rate of pay (as determined in accordance with
    paragraphs (1) and (2) of subsection (a)) for
    hours of overtime work that are officially ordered
    or approved in advance of the workweek; and
    ``(ii) except as provided in paragraphs (4)
    and (5), shall receive compensatory time off for
    an equal amount of time spent performing overtime
    work that is not overtime work described in clause
    (i).
    ``(3) Notwithstanding the matter preceding paragraph (1) in
    subsection (a), for a border patrol agent who is assigned to the
    basic border patrol rate of pay under section 5550--
    ``(A) hours of work in excess of 80 hours during a
    14-day biweekly pay period shall be overtime work; and
    ``(B) the border patrol agent--
    ``(i) shall receive pay at the overtime hourly
    rate of pay (as determined in accordance with
    paragraphs (1) and (2) of subsection (a)) for
    hours of overtime work that are officially ordered
    or approved in advance of the workweek; and
    ``(ii) except as provided in paragraphs (4)
    and (5), shall receive compensatory time off for
    an equal amount of time spent performing overtime
    work that is not overtime work described in clause
    (i).
    ``(4)(A) Except as provided in subparagraph (B), during a
    14-day biweekly pay period, a border patrol agent may not earn
    compensatory time off for more than 10 hours of overtime work.

    [[Page 3003]]

    ``(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--

    [[Page 3004]]

    (A) examines the staffing requirements for U.S.
    Border Patrol to most effectively meet its operational
    requirements at each Border Patrol duty station;
    (B) estimates the cost of the staffing requirements
    at each Border Patrol duty station; and
    (C) includes--
    (i) a position-by-position review at each
    Border Patrol station to determine--
    (I) the duties assigned to each
    position;
    (II) how the duties relate to the
    operational requirements of U.S. Border
    Patrol; and
    (III) the number of hours border
    patrol agents in that position would
    need to work each pay period to meet the
    operational requirements of U.S. Border
    Patrol;
    (ii) the metrics used to determine the number
    of hours of work performed at each Border Patrol
    station, broken down by the type of hours worked;
    (iii) a cost analysis of the most recent full
    fiscal year by the type of full-time equivalent
    hours worked;
    (iv) a cost estimate by the type of full-time
    equivalent hours expected to be worked during the
    first full fiscal year after the date of enactment
    of this Act; and
    (v) an analysis that compares the cost of
    assigning the full-time equivalent hours needed to
    meet the operational requirements of U.S. Border
    Patrol to existing border patrol agents through
    higher rates of pay versus recruiting, hiring,
    training, and deploying additional border patrol
    agents.
    (2) <>  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

    [[Page 3005]]

    performing work or using approved paid leave or other paid time
    off; or
    (3) exempt a border patrol agent from any limitations on
    pay, earnings, or compensation, including the limitations under
    section 5547 of title 5, United States Code.

    (g) Technical and Conforming Amendments.--
    (1) Section 5547 of title 5, United States Code is amended
    by--
    (A) in subsection (a), in the matter preceding
    paragraph (1)--
    (i) by striking, ``and'' before ``5546''; and
    (ii) by inserting ``, and 5550'' after ``5546
    (a) and (b)''; and
    (B) by adding at the end the following:

    ``(e) <>  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.

    [[Page 3006]]

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

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

    [[Page 3007]]

    is fixed under paragraph (2)(A) shall be eligible for an
    allowance under section 5941 of title 5, United States
    Code, on the same basis and to the same extent as if the
    employee was an employee covered by such section 5941,
    including eligibility conditions, allowance rates, and
    all other terms and conditions in law or regulation.
    ``(4) <>  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

    [[Page 3008]]

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

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

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

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

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

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

    SEC. 4. <>  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

    [[Page 3009]]

    (C) the Committee on House Administration of the
    House of Representatives.
    (2) Cybersecurity work category; data element code;
    specialty area.--The terms ``Cybersecurity Work Category'',
    ``Data Element Code'', and ``Specialty Area'' have the meanings
    given such terms in the Office of Personnel Management's Guide
    to Data Standards.
    (3) Department.--The term ``Department'' means the
    Department of Homeland Security.
    (4) Director.--The term ``Director'' means the Director of
    the Office of Personnel Management.
    (5) Secretary.--The term ``Secretary'' means the Secretary
    of Homeland Security.

    (c) National Cybersecurity Workforce Measurement Initiative.--
    (1) In general.--The Secretary shall--
    (A) identify all cybersecurity workforce positions
    within the Department;
    (B) <>  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

    [[Page 3010]]

    (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.

    Approved December 18, 2014.

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

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