[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:
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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.