[House Report 115-973]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-973
======================================================================
BORDER PATROL AGENT PAY REFORM AMENDMENTS ACT OF 2018
_______
September 25, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 5896]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 5896) to amend title 5, United
States Code, to modify the authority for pay and work schedules
of border patrol agents, and for other purposes, having
considered the same, report favorably thereon with amendments
and recommend that the bill as amended do pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 2
Background and Need for Legislation.............................. 3
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 7
Statement of General Performance Goals and Objectives............ 7
Legislative History.............................................. 7
Committee Consideration.......................................... 8
Roll Call Votes.................................................. 8
Explanation of Amendments........................................ 8
Application of Law to the Legislative Branch..................... 8
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Federal Advisory Committee Act................................... 8
Unfunded Mandates Statement...................................... 9
Earmark Identification........................................... 9
Committee Estimate............................................... 9
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 9
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 12
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 2, line 1, strike ``(1) In general.--'' (and promote
each subparagraph and clause by 1 level, respectively).
Page 6, line 7, strike ``(V)'' and insert ``(IV)''.
Page 15, line 7, strike ``(i)'' and insert ``(h)''.
Page 17, line 2, strike the quotation marks and the second
period.
Page 17, after line 2, insert the following:
``(4) Sunday pay; premium pay.--A border patrol agent
assigned to an alternative work schedule under this
subsection, may receive, as applicable--
``(A) Sunday pay for no more than 8 hours of
regular time associated with a given Sunday,
consistent with section 5546(a);
``(B) premium pay for work on a holiday for
no more than 8 hours of regular time associated
with a given holiday, consistent with section
5546(b); and
``(C) basic pay for all regular time hours
that qualify for holiday time off pay when an
agent is relieved or prevented from working
during such regular time on a day designated as
a holiday by Federal statute or Executive
order.
``(5) Application.--For purposes of administering
sections 6303(a), 6304, 6307(a) and (d), 6323, 6326,
6327, and 8339(m), in the case of an employee assigned
to an alternative work schedule under this subsection,
references to a day or workday (or to multiples or
parts thereof) contained in such sections shall be
considered to be references to 8 hours (or to the
respective multiples or parts thereof).
``(i) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations to carry out this
section, including regulations governing--
``(1) elections and assignments of a border patrol
rate of pay for newly hired border patrol agents who
complete initial training during an annual period;
``(2) situations in which an agent receives more than
one type of border patrol rate of pay in a biweekly pay
period or is employed as a border patrol agent for only
part of a biweekly pay period; and
``(3) the treatment of hours that are substituted for
nonpay status hours during regular time.''.
Page 17, strike lines 3 through 18.
Summary and Purpose of Legislation
H.R. 5896, the Border Patrol Agent Pay Reform Amendments
Act of 2018, revises aspects of the Border Patrol Agent Pay
Reform Act of 2014, including Border Patrol staffing analyses,
tours of duty for certain employees, monetary compensation for
canine care, advanced training, travel compensatory time, the
retirement control period, leave without pay, and alternative
work schedules, among other changes. The purpose of the
legislation is to address implementation issues related to the
2014 law and additional concerns raised by Border Patrol
agents.
Background and Need for Legislation
The Border Patrol, a component of the Department of
Homeland Security's U.S. Customs and Border Protection (CBP),
is a law enforcement agency responsible for preventing the
entry of terrorists and terrorist weapons into the United
States between official ports of entry. The agency's mission
also includes the enforcement of immigration laws and the
detection, interdiction, and apprehension of those who attempt
to illegally enter or smuggle people or contraband, including
illicit drugs, across U.S. borders. The Border Patrol guards
nearly 6,000 miles of land bordering Canada and Mexico and more
than 2,000 miles of coastal waters around Florida and Puerto
Rico.\1\
---------------------------------------------------------------------------
\1\Border Patrol Overview, https://www.cbp.gov/border-security/
along-us-borders/overview (last visited June 6, 2018).
---------------------------------------------------------------------------
Prior Border Patrol administration of its overtime system,
including use of administratively uncontrollable overtime
(AUO),\2\ resulted in overtime payment abuses at the agency.\3\
In response, on December 18, 2014, Congress enacted the Border
Patrol Agent Pay Reform Act of 2014 (BPAPRA).\4\ BPAPRA
simplified the pay system for employees of the Border Patrol by
creating a new system that ``results in more hours worked by
agents, provides more reliable schedules and paychecks for
agents, and saves taxpayers money.''\5\
---------------------------------------------------------------------------
\2\Administratively uncontrollable overtime is a type of premium
pay intended to compensate eligible federal employees for substantial
amounts of irregular, unscheduled overtime that cannot be controlled
administratively. 5 U.S.C. Sec. 5545(c).
\3\See Abuse of Overtime at DHS: Padding Paychecks and Pensions at
Taxpayer Expense: Hearing Before the Subcomm. on Nat'l Sec., H. Comm.
on Oversight & Gov't Reform, 113th Cong. (Nov. 20, 2013); See also S.
Comm. on Homeland Sec. & Governmental Affairs, Border Patrol Agent Pay
Reform Act 4-8, 113th Cong. (Aug. 26, 2014) (S. Rep. 113-248)
[hereinafter S. Rep. 113-248].
\4\Border Patrol Agent Pay Reform Act of 2014, Pub. L. No. 113-277,
128 Stat. 2995, 3010 [hereinafter Border Patrol Agent Pay Reform Act of
2014].
\5\S. Rep. 113-248 at 8.
---------------------------------------------------------------------------
Under BPAPRA, agents choose one of three tours of duty
commensurate with the amount of scheduled overtime the agents
elect or are assigned to work. The tours are:
Level 1--Agents work 100 hours per biweekly
pay period and receive 125 percent of their otherwise
applicable basic pay (80 hours of regular work and 20
hours of scheduled overtime).\6\ This equates to a ten-
hour day during a five-day work week with a 25 percent
overtime supplement payment.
---------------------------------------------------------------------------
\6\5 U.S.C. Sec. 5550(b)(2).
---------------------------------------------------------------------------
Level 2--Agents work 90 hours per biweekly
pay period and receive 112.5 percent of their otherwise
applicable basic pay (80 hours of regular work and 10
hours of scheduled overtime).\7\ This equates to a
nine-hour day during a five-day work week with a 12.5
percent overtime supplement payment.
---------------------------------------------------------------------------
\7\5 U.S.C. Sec. 5550(b)(3).
---------------------------------------------------------------------------
Basic--Agents work 80 hours per biweekly pay
period and receive their otherwise applicable basic
pay.\8\ This equates to an eight-hour day during a
five-day work week.
---------------------------------------------------------------------------
\8\5 U.S.C. Sec. 5550(b)(4).
---------------------------------------------------------------------------
No additional compensation beyond that provided under the
BPAPRA levels is authorized for the scheduled overtime required
on the selected tour of duty.\9\ AUO and overtime under the
Fair Labor Standards Act is prohibited.\10\ Any unscheduled
overtime that must be worked by agents beyond the level they
elected in their tour of duty is rewarded with compensatory
time off (up to ten hours per biweekly pay period but not to
exceed 240 hours in a year).\11\ Scheduled overtime beyond that
which is required in an agent's tour of duty can be compensated
under section 5542 of title 5, United States Code, but doing so
is highly discouraged.\12\
---------------------------------------------------------------------------
\9\5 U.S.C. Sec. Sec. 5550(b)(2)(C); (3)(C).
\10\29 U.S.C. Sec. 213(a)(18); 5 U.S.C. Sec. 5550(c)(2).
\11\5 U.S.C. Sec. 5542(g).
\12\Id.; Border Patrol Agent Pay Reform Act of 2014 at 2(c)(2).
---------------------------------------------------------------------------
BPAPRA was supported by the Obama Administration, as well
as the National Border Patrol Council (NBPC), the exclusive
bargaining representative of Border Patrol agents.\13\ As then-
Border Patrol Deputy Chief Ronald Vitiello testified, the new
law would create ``a system that controls costs, fairly
compensates certain agents for irregular and necessary work,
and maximizes agent capability for critical law enforcement and
border security responsibilities.''\14\ It passed both the
Senate and House of Representatives by voice vote.\15\
---------------------------------------------------------------------------
\13\Border Security: Examining the Implications of S. 1691, the
Border Patrol Pay Reform Act of 2013: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 113th Cong. 5-8 (June 9, 2014)
(statements of Ronald Vitiello, Deputy Chief, Border Patrol, and
Brandon Judd, President, National Border Patrol Council).
\14\Id., at 6 (statement of Ronald Vitiello, Deputy Chief, Border
Patrol).
\15\134 Cong. Rec. S5862-72 (Sept. 18, 2014); 150 Cong. Rec. H8945-
49 (Dec. 10, 2014).
---------------------------------------------------------------------------
BPAPRA assigned the Office of Personnel Management (OPM)
responsibility for promulgating and implementing
regulations.\16\ As OPM worked with CBP to execute the changes
mandated by the law, the agencies determined statutory changes
were necessary to address implementation challenges, as well as
to generally improve the human capital management system at
CBP.\17\ The initial implementation process culminated in a
joint CBP and OPM suggestion to Congress to amend aspects of
BPAPRA in November of 2016.\18\ Separately, the NBPC identified
three main issues with BPAPRA that Border Patrol agents felt
needed to be addressed: compensation for canine care,
alternative work schedules, and leave without pay overtime
obligations.\19\
---------------------------------------------------------------------------
\16\Border Patrol Agent Pay Reform Act of 2014 at Sec. 2(h).
\17\See Email from Office of Personnel Mgmt. staff to majority
staff, H. Comm. on Oversight & Gov't Reform (Nov. 10, 2016, 11:41 a.m.)
(on file with the Committee).
\18\Office of Personnel Mgmt. & U.S. Customs and Border Protection,
Technical Assistance on the Border Patrol Agent Pay Reform Act of 2014
(Nov. 7, 2016) [hereinafter ``OPM & CBP Joint Technical Assistance''].
\19\See e.g. Briefing by McAllister & Quinn staff to majority
staff, H. Comm. on Oversight & Gov't Reform (Apr. 18, 2016)
[hereinafter ``McAllister & Quinn Briefing''].
---------------------------------------------------------------------------
The Border Patrol Agent Pay Reform Amendments Act of 2018
is a compromise measure intended to address issues identified
by the implementing agencies, as well as the NBPC. Components
of the bill, as reported by the Committee, include:
Staffing Analysis. Under BPAPRA, no more
than 10 percent of Border Patrol agents at any given
location are allowed to work less than 100 hours in a
biweekly pay period by electing the level 2 or basic
tours of duty.\20\ This staffing floor may be waived if
a one-time staffing assessment required by BPAPRA
demonstrates the Border Patrol needs less hours to be
worked in order to meet its operational
requirements.\21\ However, in order to give CBP
additional flexibility, H.R. 5896 allows CBP to conduct
future staffing analyses, thus allowing the agency to
adjust the staffing floor based on future operational
requirements.
---------------------------------------------------------------------------
\20\5 U.S.C. Sec. 5550(b)(1)(E).
\21\Id. The staffing analysis was completed on January 19, 2016.
---------------------------------------------------------------------------
Tour of Duty Election for Certain Employees.
H.R. 5896 allows agents performing work at CBP
headquarters, as a training instructor, or in an
administrative or fitness instructor position to elect
level 1 or 2 tours of duty. Under BPAPRA, agents in
these positions are currently required to be assigned
to the basic tour of duty unless the staffing analysis
indicated a need for agents in these positions to work
additional hours.\22\ However, the OPM and CBP joint
technical assistance identified this requirement as a
disincentive for agents to take these important
positions, and CBP previously waived the requirement
due to the findings of its January 2016 staffing
analysis.\23\
---------------------------------------------------------------------------
\22\5 U.S.C. Sec. 5550(b)(1)(D)(iv).
\23\OPM & CBP Joint Technical Assistance; see also U.S. Customs and
Border Protection, Comprehensive Border Patrol Staffing Analysis:
Report to Comptroller General of the United States (Jan. 19, 2016).
---------------------------------------------------------------------------
Canine Care. According to NBPC, there are
nearly 1,000 agent-canine teams deployed in the Border
Patrol.\24\ BPAPRA makes clear that Border Patrol
agents assigned to care for canines must be placed at
the level 1 tour of duty.\25\ Additionally, it
specifies the associated level 1 rate of pay covers all
care the agent must give to the canine and no other pay
shall be given for such care.\26\ However, it does
allow a canine handler to receive one hour of credit
toward the agent's overtime obligations each work day,
effectively allowing the agent to work a nine-hour
day.\27\ NBPC identified the prohibition on monetary
compensation for canine care, specifically on non-work
days, as problematic for agents. NBPC told Committee
staff canine handlers historically received one hour of
overtime pay per day for care of the canine at
home.\28\ NBPC estimates the monetary prohibition for
care on non-workdays has led to a $1,700 decrease in
canine handler agent pay per year since the enactment
of BPAPRA, and told Committee staff agents were
beginning to kennel their canines due to lack of
compensation for care, which can bring additional costs
to CBP while reducing canine effectiveness and
availability for field operations.\29\ H.R. 5896
adjusts agent compensation for care of canines by
allowing agents to receive overtime compensation for
canine care under 5 U.S.C. 5542. On a work day, if the
agent does not use the one-hour canine care credit
under BPAPRA, he or she may receive overtime
compensation for that credit. On a non-work day, the
agent will receive one hour of overtime compensation.
---------------------------------------------------------------------------
\24\McAllister & Quinn Briefing.
\25\5 U.S.C. Sec. 5550(b)(1)(D)(ii).
\26\5 U.S.C. Sec. 5550(b)(1)(F).
\27\Id.
\28\Memorandum from Woodley & McGillivary LLP to Nat'l Border
Patrol Council staff, NBPC Revisions to the Border Patrol Agent Pay
Reform Technical Amendments Act of 2017 (Mar. 9, 2018) (on file with
the Committee).
\29\Id.; Briefing by Nat'l Border Patrol Council staff to majority
staff, H. Comm. on Oversight & Gov't Reform (Aug. 23, 2017)
[hereinafter NBPC Briefing].
---------------------------------------------------------------------------
Advanced Training. Under BPAPRA, agents at
the level 1 or level 2 tours of duty may be assigned to
advanced training up to a period of 60 days while
continuing to receive the compensation assigned to
their respective tours of duty. This applies regardless
of whether the agent meets the scheduled overtime
obligations necessary. Any additional advanced training
over the limit results in the agent earning pay under
the basic rate of pay.\30\ The joint technical
assistance from OPM and CBP identified the need to
avoid penalizing agents who perform their scheduled
overtime obligation on a day of advanced training, and
to allow an agent to accrue a scheduled overtime debt
in lieu of being paid at the lower basic border patrol
rate for advanced training above the 60-day limit.\31\
H.R. 5896 allows an agent to accrue a debt of hours for
scheduled overtime not worked after the agent reaches
the advanced training limit. Furthermore, it converts
and raises the 60-day limit to a limit of 180 hours
(approximately 90 days) for those on the level 1 tour
of duty and a limit of 90 hours (approximately 60 days)
for those on a level 2 tour of duty. Thus, agents can
get credit for partially meeting a scheduled overtime
requirement through the performance of actual work.
---------------------------------------------------------------------------
\30\5 U.S.C. Sec. Sec. 5550(b)(2)(G), 5550(b)(3)(G).
\31\OPM & CBP Joint Technical Assistance.
---------------------------------------------------------------------------
Travel Compensatory Time. BPAPRA did not
expressly allow compensatory time off for travel to be
applied toward an agent's scheduled overtime debt, even
though it allows other forms of overtime and earned
compensatory time to apply.\32\ H.R. 5896 allows
compensatory time off for travel to count toward an
agent's scheduled overtime debt.
---------------------------------------------------------------------------
\32\5 U.S.C. Sec. Sec. 5550(b)(2)(D), 5550(b)(3)(D).
---------------------------------------------------------------------------
Retirement Control Period. BPAPRA contains a
pay assignment continuity provision, under which CBP is
required to ensure, to the greatest extent practicable,
the tour assignment of a Border Patrol agent during the
control period is consistent with the career average
overtime supplement.\33\ The control period begins
three years before an agent becomes eligible for
immediate retirement, which generally captures the
period during which agents could be earning their high
three average salary, which determines their retirement
annuity. In its place, H.R. 5896 adds provisions to
limit the retirement creditability of the overtime
supplement during the control period based on the
career average overtime supplement. This allows CBP to
maximize agent effectiveness during the last three
years of an agent's service while still ensuring agents
do not artificially enhance their retirement pay.
---------------------------------------------------------------------------
\33\5 U.S.C. Sec. 5550(b)(1)(G).
---------------------------------------------------------------------------
Leave Without Pay. BPAPRA creates a
substitution arrangement whereby scheduled overtime
within the regular tour of duty is substituted for
leave without pay (LWOP) during regular time in the
same biweekly pay period.\34\ The substitution
arrangement generates additional basic pay, an
increased overtime supplement, and additional agency
Thrift Savings Plan contributions, but can also create
additional debt of obligated overtime hours, since
scheduled overtime on other non-LWOP days is
substituted for LWOP periods. NBPC communicated to
Committee staff agents would prefer receiving less pay
during a pay period while on LWOP--which agents take
to, among other things, fulfill National Guard duties--
in exchange for no overtime debt accrual.\35\ H.R. 5896
makes clear agents on LWOP shall not receive pay and
shall not accrue an overtime debt.
---------------------------------------------------------------------------
\34\5 U.S.C. Sec. 5550(f)(1)(A).
\35\NBPC Briefing.
---------------------------------------------------------------------------
Alternative Work Schedules. BPAPRA makes
clear Border Patrol agents must work a five day work
week.\36\ This is a departure from past Border Patrol
practice, as NBPC told Committee staff agents have
worked alternative work schedules for nearly 40
years.\37\ Alternative work schedules allow CBP to
partner agents who are on different tours of duty and
are consistent with CBP's preference for agents to work
ten-hour shifts.\38\ H.R. 5896 allows agents who elect
the level 2 or basic tours of duty to work ten-hour
shifts for nine or eight days per biweekly pay period,
respectively. Agents will still work the entire number
of hours they would otherwise work under a standard
schedule.
---------------------------------------------------------------------------
\36\5 U.S.C. Sec. Sec. Sec. 5550(b)(2)(A); (b)(3)(A); (b)(4)(A).
\37\NBPC Briefing.
\38\See S. Rep. 113-248 at 5.
---------------------------------------------------------------------------
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the previous section.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to amend title 5, United
States Code, to modify the authority for pay and work schedules
of Border Patrol agents, and for other purposes.
Legislative History
On May 21, 2018, Representative Will Hurd (R-TX) introduced
H.R. 5896, the Border Patrol Agent Pay Reform Amendments Act of
2018, with Representatives Filemon Vela (D-TX) and Martha
McSally (R-AZ). H.R. 5896 was referred to the Committee on
Oversight and Government Reform. The Committee considered H.R.
5896 at a business meeting on May 23, 2018, and ordered the
bill favorably reported with an amendment by voice vote.
Senator Jon Tester (D-MT) introduced S. 2338, a similar
bill to H.R. 5896, on January 25, 2018. The bill was referred
to the Senate Committee on Homeland Security and Governmental
Affairs.
Committee Consideration
On May 23, 2018, the Committee met in open session and,
with a quorum being present, ordered the bill favorably
reported with an amendment by voice vote.
Roll Call Votes
There were no roll call votes requested or conducted during
Committee consideration of H.R. 5896.
Explanation of Amendments
During Committee consideration of the bill, Representative
Will Hurd (R-TX), the sponsor of the bill, offered an amendment
that fixed two technical references in the bill. The amendment
also added instructions for applying certain pay provisions to
Border Patrol agents on alternative work schedules at the level
2 and basic rates of pay/tours of duty. Finally, it clarified
the Office of Personnel Management has the authority to
regulate implementation of the Border Patrol Agent Pay Reform
Act of 2014. The Hurd amendment was adopted by voice vote.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill amends title 5, United States Code, to modify the
authority for pay and work schedules of Border Patrol agents.
As such, this bill does not relate to employment or access to
public services and accommodations in the legislative branch.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
Section 2(a)(2) of the bill codifies a requirement that the
Office of Personnel Management promulgate regulations to carry
out the Border Patrol Agent Pay Reform Act of 2014 and the
amendments made by this bill.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget Act of
1974, the Committee has included a letter received from the
Congressional Budget Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 25, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5896, the Border
Patrol Agent Pay Reform Amendments Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 5896--Border Patrol Agent Pay Reform Amendments Act of 2018
H.R. 5896 would change the calculation of overtime
compensation for agents of the border patrol in Customs and
Border Protection (CBP). Specifically, the bill would
increase--by up to 14 hours for each pay period--the overtime
compensation available to agents who handle canines. That
change would take effect 90 days after enactment.
Currently about 900 canine handlers work in the border
patrol. Using information from CBP, CBO expects that
implementing H.R. 5896 would increase pay for each handler by
about $14,000 per year, on average. Thus, CBO estimates that
implementing the bill would cost about $10 million in fiscal
year 2019 and about $13 million annually thereafter, assuming
enactment near the end of 2018 and appropriation of the
necessary amounts. Most of the bill's other changes to overtime
pay could result in small costs or savings to CBP.
H.R. 5896 also would affect direct spending and revenues;
therefore, pay-as-you-go procedures apply. The bill would set a
limit on the amount of overtime that can be credited toward
retirement for border patrol agents during their control period
(the three years leading up to eligibility for retirement).
Enacting the bill would probably affect direct spending for
retirement benefits and revenues related to retirement
contributions made by CBP agents but, based on information from
the agency, CBO estimates that such effects would not be
significant over the 2019-2028 period.
CBO estimates that enacting H.R. 5896 would not
significantly affect direct spending or on-budget deficits in
any of the four consecutive 10-year periods beginning in 2029.
H.R. 5896 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contacts for this estimate are Amber
Marcelino (for retirement effects) and Mark Grabowicz (for
other effects). The estimate was reviewed by H. Samuel
Papenfuss, Deputy Assistant Director for Budget Analysis.
Section-by-Section Analysis
Section 1. Short title
Section 1 establishes the short title of the bill.
Sec. 2. Amendments to the Border Patrol Agent Pay Reform Act of 2014
Section 2 amends section 5550 of title 5, United States
Code, to make technical and clarifying changes related to the
timeline for the Border Patrol agent tour of duty election.
These changes are consistent with OPM regulations implementing
the original law.
The section removes the requirement for Border Patrol
agents serving at Customs and Border Protection (CBP)
headquarters as a training instructor, in an administrative
position, or as a fitness instructor be placed on the basic
tour of duty. Consistent with OPM regulations, it requires
newly hired agents to be placed on the basic tour of duty until
they complete initial training.
The section fixes a drafting error, which allowed CBP to
unilaterally assign Border Patrol agents to the ``level 2''
tour of duty to ensure not more than ten percent of the agents
at a particular location are assigned to the level 2 or basic
tours of duty. Additionally, CBP can now waive the ten percent
limitation based on future written staffing analyses, not just
the one analysis completed under section 2(e) of the original
law. The ten percent limitation does not apply to agents unable
to perform overtime as determined by CBP; any new agents
assigned to the basic rate of pay until completion of initial
training; and any agents who would be limited by the statutory
premium pay cap at 5 U.S.C. 5547, if they continue on the level
1 rate of pay. Finally, the ten percent limitation should be
applied at the beginning of the first pay period beginning on
or after January of each year, consistent with existing CBP
practice.
The section allows Border Patrol agents assigned as canine
handlers to receive overtime pay for canine care under 5 U.S.C.
5542(g). On a workday, the agent can receive up to one hour of
overtime pay if the agent does not use this canine care credit
to reduce his or her scheduled overtime obligation. On a non-
workday, the agent receives one hour of overtime pay for his or
her canine care credit. Before it can be paid, the canine care
credit must first be applied to cover a period of absence
during regular time or scheduled overtime if the absence is
within the work period in which the canine care credit was
generated. The canine care credit must also be applied to cover
a debt of obligated overtime hours before it may be paid.
The section allows Border Patrol agents to incur an
overtime debt in lieu of a decrease in pay for days in which
the agent is in advanced training and unable to perform
sufficient scheduled overtime. Furthermore, it converts and
raises the 60-day limit before such debt accrues under current
law to an hour-based limit--180 hours (approximately 90 days)
for those on the level 1 tour of duty and 90 hours
(approximately 60 days) for those on a level 2 tour of duty.
The section allows Border Patrol agents to reduce any debt
of scheduled overtime hours they have incurred by applying
accrued compensatory time off for travel. The agent must use
all other types of overtime or earned compensatory time off
credited to the agent before he or she may use compensatory
time off for travel.
The section removes the requirement for CBP to limit a
Border Patrol agent's tour of duty to control retirement
benefits. In exchange, it limits the amount of an overtime
supplement treated as retirement-creditable basic pay during an
agent's potential high-three period (``control period''). This
approach means regular tours of duty are assigned during an
agent's control period based on employee elections in the same
way as during other periods of the agent's career. This gives
CBP more stability and control over management of the agent
workforce based on operational requirements.
The section clarifies a Border Patrol agent who takes leave
without pay may not receive his or her normal tour of duty pay
during such time. In exchange, the agent does not accrue a
scheduled overtime debt. The amount of pay the agent would
normally receive in a pay period must be reduced proportional
to the amount of time the agent does not work while on leave
without pay.
The section allows CBP to assign agents at the level 2 or
basic tours of duty to alternative work schedules. An agent at
the level 2 tour of duty will work nine days per biweekly pay
period. The agent's workday will be lengthened to meet the
regular time and scheduled overtime obligations required of
other level 2 agents. An agent at the basic tour of duty will
work four days per week. The agent's workday is lengthened to
meet the regular time obligations required of other agents at
the basic tour of duty. Sunday premium pay and holiday premium
pay for regular time are limited to eight hours, which is the
normal limit. Holiday time off pay applies to all regular time
hours that constitute holiday work, which is the normal rule.
The section clarifies the authority of the Director of the
Office of Personnel Management to promulgate regulations to
carry out the Border Patrol Agent Pay Reform Act of 2014 and
the amendments made by this Act.
The section amends 5 U.S.C. 5542 to clarify unused
compensatory time off shall not be credited toward an annuity
computation. Used compensatory time off may apply since an
agent receives basic pay when compensatory time off is used.
The section amends 5 U.S.C. 5547 to clarify the overtime
supplement for Border Patrol agents is always subject to the
biweekly premium pay cap, consistent with the treatment of
other retirement-creditable premium payments, such as
administratively uncontrollable overtime and law enforcement
availability pay.
The section amends the Border Patrol Agent Pay Reform Act
of 2014 to clarify CBP should not use scheduled overtime work
by Border Patrol agents outside of an agent's regular tour.
Scheduled overtime within an agent's regular tour is required
under the statute.
Sec. 3. Effective date
The amendments made by this Act apply on the first day of
the first pay period beginning on or after the day that is 90
days after the date of enactment of this Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART D--PAY AND ALLOWANCES
* * * * * * *
CHAPTER 55--PAY ADMINISTRATION
* * * * * * *
SUBCHAPTER V--PREMIUM PAY
* * * * * * *
Sec. 5542. Overtime rates; computation
(a) For full-time, part-time and intermittent tours of duty,
hours of work officially ordered or approved in excess of 40
hours in an administrative workweek, or (with the exception of
an employee engaged in professional or technical engineering or
scientific activities for whom the first 40 hours of duty in an
administrative workweek is the basic workweek and an employee
whose basic pay exceeds the minimum rate for GS-10 (including
any applicable locality-based comparability payment under
section 5304 or similar provision of law and any applicable
special rate of pay under section 5305 or similar provision of
law) for whom the first 40 hours of duty in an administrative
workweek is the basic workweek) in excess of 8 hours in a day,
performed by an employee are overtime work and shall be paid
for, except as otherwise provided by this subchapter, at the
following rates:
(1) For an employee whose basic pay is at a rate
which does not exceed the minimum rate of basic pay for
GS-10 (including any applicable locality-based
comparability payment under section 5304 or similar
provision of law and any applicable special rate of pay
under section 5305 or similar provision of law), the
overtime hourly rate of pay is an amount equal to one
and one-half times the hourly rate of basic pay of the
employee, and all that amount is premium pay.
(2) For an employee whose basic pay is at a rate
which exceeds the minimum rate of basic pay for GS-10
(including any applicable locality-based comparability
payment under section 5304 or similar provision of law
and any applicable special rate of pay under section
5305 or similar provision of law), the overtime hourly
rate of pay is an amount equal to the greater of one
and one-half times the hourly rate of the minimum rate
of basic pay for GS-10 (including any applicable
locality-based comparability payment under section 5304
or similar provision of law and any applicable special
rate of pay under section 5305 or similar provision of
law), or the hourly rate of basic pay of the employee
and all that amount is premium pay.
(3) Notwithstanding paragraphs (1) and (2) of this
subsection for an employee of the Department of
Transportation who occupies a nonmanagerial position in
GS-14 or under and, as determined by the Secretary of
Transportation,
(A) the duties of which are critical to the
immediate daily operation of the air traffic
control system, directly affect aviation
safety, and involve physical or mental strain
or hardship;
(B) in which overtime work is therefore
unusually taxing; and
(C) in which operating requirements cannot be
met without substantial overtime work;
the overtime hourly rate of pay is an amount equal to
one and one-half times the hourly rate of basic pay of
the employee, and all that amount is premium pay.
(4) Notwithstanding paragraph (2) of this subsection,
for an employee who is a law enforcement officer, and
whose basic pay is at a rate which exceeds the minimum
rate of basic pay for GS-10 (including any applicable
locality-based comparability payment under section 5304
or similar provision of law and any applicable special
rate of pay under section 5305 or similar provision of
law), the overtime hourly rate of pay is an amount
equal to the greater of--
(A) one and one-half times the minimum hourly
rate of basic pay for GS-10 (including any
applicable locality-based comparability payment
under section 5304 or similar provision of law
and any applicable special rate of pay under
section 5305 or similar provision of law); or
(B) the hourly rate of basic pay of the
employee,
and all that amount is premium pay.
(5) Notwithstanding paragraphs (1) and (2), for an
employee of the Department of the Interior or the
United States Forest Service in the Department of
Agriculture engaged in emergency wildland fire
suppression activities, the overtime hourly rate of pay
is an amount equal to one and one-half times the hourly
rate of basic pay of the employee, and all that amount
is premium pay.
(6)(A) Notwithstanding paragraphs (1) and (2), for an
employee of the Department of the Navy who is assigned
to temporary duty to perform work aboard, or dockside
in direct support of, the nuclear aircraft carrier that
is forward deployed in Japan and who would be nonexempt
under the Fair Labor Standards Act but for the
application of the foreign area exemption in section
13(f) of that Act (29 U.S.C. 213(f)), the overtime
hourly rate of pay is an amount equal to one and one-
half times the hourly rate of basic pay of the
employee, and all that amount is premium pay.
(B) Subparagraph (A) shall expire on September 30,
2019.
(b) For the purpose of this subchapter--
(1) unscheduled overtime work performed by an
employee on a day when work was not scheduled for him,
or for which he is required to return to his place of
employment, is deemed at least 2 hours in duration; and
(2) time spent in a travel status away from the
official-duty station of an employee is not hours of
employment unless--
(A) the time spent is within the days and
hours of the regularly scheduled administrative
workweek of the employee, including regularly
scheduled overtime hours; or
(B) the travel (i) involves the performance
of work while traveling, (ii) is incident to
travel that involves the performance of work
while traveling, (iii) is carried out under
arduous conditions, or (iv) results from an
event which could not be scheduled or
controlled administratively, including travel
by an employee to such an event and the return
of such employee from such event to his or her
official-duty station.
(c) Subsection (a) shall not apply to an employee who is
subject to the overtime pay provisions of section 7 of the Fair
labor Standards Act of 1938. In the case of an employee who
would, were it not for the preceding sentence, be subject to
this section, the Office of Personnel Management shall by
regulation prescribe what hours shall be deemed to be hours of
work and what hours of work shall be deemed to be overtime
hours for the purpose of such section 7 so as to ensure that no
employee receives less pay by reason of the preceding sentence.
(d) In applying subsection (a) of this section with respect
to any criminal investigator who is paid availability pay under
section 5545a--
(1) such investigator shall be compensated under such
subsection (a), at the rates there provided, for
overtime work which is scheduled in advance of the
administrative workweek--
(A) in excess of 10 hours on a day during
such investigator's basic 40 hour workweek; or
(B) on a day outside such investigator's
basic 40 hour workweek; and
(2) such investigator shall be compensated for all
other overtime work under section 5545a.
(e) Notwithstanding subsection (d)(1) of this section, all
hours of overtime work scheduled in advance of the
administrative workweek shall be compensated under subsection
(a) if that work involves duties as authorized by section
3056(a) of title 18 or section 37(a)(3) of the State Department
Basic Authorities Act of 1956, and if the investigator
performs, on that same day, at least 2 hours of overtime work
not scheduled in advance of the administrative workweek.
(f) In applying subsection (a) of this section with respect
to a firefighter who is subject to section 5545b--
(1) such subsection shall be deemed to apply to hours
of work officially ordered or approved in excess of 106
hours in a biweekly pay period, or, if the agency
establishes a weekly basis for overtime pay
computation, in excess of 53 hours in an administrative
workweek; and
(2) the overtime hourly rate of pay is an amount
equal to one and one-half times the hourly rate of
basic pay under section 5545b (b)(1)(A) or (c)(1)(B),
as applicable, and such overtime hourly rate of pay may
not be less than such hourly rate of basic pay in
applying the limitation on the overtime rate provided
in paragraph (2) of such subsection (a).
(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] an
annual period, as described in section
5550(b)(1)(A);
(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]
(E) shall not receive credit towards
computation of the border patrol agent's
annuity based on unused compensatory time off;
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.
* * * * * * *
Sec. 5547. Limitation on premium pay
(a) An employee may be paid premium pay under sections 5542,
5545 (a), (b), and (c), 5545a, 5546 (a) and (b), and 5550 only
to the extent that the payment does not cause the aggregate of
basic pay and such premium pay for any pay period for such
employee to exceed the greater of--
(1) the maximum rate of basic pay payable for GS-15
(including any applicable locality-based comparability
payment under section 5304 or similar provision of law
and any applicable special rate of pay under section
5305 or similar provision of law); or
(2) the rate payable for level V of the Executive
Schedule.
(b)(1) Subject to regulations prescribed by the Office of
Personnel Management, subsection (a) shall not apply to an
employee who is paid premium pay by reason of work in
connection with an emergency (including a wildfire emergency)
that involves a direct threat to life or property, including
work performed in the aftermath of such an emergency.
(2) Notwithstanding paragraph (1), no employee referred to in
such paragraph may be paid premium pay under the provisions of
law cited in subsection (a) if, or to the extent that, the
aggregate of the basic pay and premium pay under those
provisions for such employee would, in any calendar year,
exceed the greater of--
(A) the maximum rate of basic pay payable for GS-15
in effect at the end of such calendar year (including
any applicable locality-based comparability payment
under section 5304 or similar provision of law and any
applicable special rate of pay under section 5305 or
similar provision of law); or
(B) the rate payable for level V of the Executive
Schedule in effect at the end of such calendar year.
(3) Subject to regulations prescribed by the Office of
Personnel Management, the head of an agency may determine that
subsection (a) shall not apply to an employee who is paid
premium pay to perform work that is critical to the mission of
the agency. Such employees may be paid premium pay under the
provisions of law cited in subsection (a) if, or to the extent
that, the aggregate of the basic pay and premium pay under
those provisions for such employee would not, in any calendar
year, exceed the greater of--
(A) the maximum rate of basic pay payable for GS-15
in effect at the end of such calendar year (including
any applicable locality-based comparability payment
under section 5304 or similar provision of law and any
applicable special rate of pay under section 5305 or
similar provision of law); or
(B) the rate payable for level V of the Executive
Schedule in effect at the end of such calendar year.
(c) The Office of Personnel Management shall prescribe
regulations governing the methods of applying subsection (b)(2)
and (b)(3) to employees who receive premium pay under section
5545(c) or 5545a, or to firefighters covered by section 5545b
who receive overtime pay for hours in their regular tour of
duty, or to border patrol agents who receive an overtime
supplement for overtime hours within their regular tour of duty
under section 5550, and the method of payment to such
employees. Such regulations may limit the payment of such
premium pay on a biweekly basis.
(d) This section shall not apply to any employee of the
Federal Aviation Administration or the Department of Defense
who is paid premium pay under section 5546a.
(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.
* * * * * * *
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 agent, 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] Not later than December 1
of each year, a border patrol agent shall make
an election whether the border patrol agent
shall, for the next annual period beginning on
the first day of the first pay period that
commences on or after January 1, 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] Not later than November 1 of each
year, 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]
(iv) a border patrol agent shall be
assigned a basic border patrol rate of
pay during the period of initial
training (including initial orientation
sessions, basic training, and other
preparatory activities) prior to the
agent's first regular work assignment;
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] a written
staffing analysis, 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.
(iv) Exclusion of certain
employees.--In applying any percentage
limit under clause (i) or (ii) to a
location population, U.S. Customs and
Border Protection shall exclude from
such population any border patrol agent
who is assigned a basic border patrol
rate of pay under subparagraph (D)(iii)
or (D)(iv) or who would reach the
premium pay cap under section 5547 if
assigned a level 1 border patrol rate
of pay.
(v) Application frequency.--The 10
percent limit under clause (i) or an
alternative percentage limit under a
waiver under clause (ii) shall be
applied at the beginning of the first
pay period beginning on or after
January 1 each year.
[(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.]
(F) Canine care.--(i) For a border patrol
agent assigned to provide care for a canine
while not on duty 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 and no other pay shall be paid to
the border patrol agent for such care
except as set forth in subclauses (II)
through (V);
(II) the agent shall be credited with
1 hour of such care for each calendar
day on which such care occurs (without
regard to the actual duration of such
care);
(III) canine care hours credited
under subclause (II) on a day when the
agent performs regular time work under
paragraph (2)(A)(i) shall--
(aa) be counted as up to 1
hour of scheduled overtime (as
described in paragraph
(2)(A)(ii)) on that work day if
the agent has not completed 2
hours of scheduled overtime
(excluding the canine care hour
credited under clause (ii)) on
that workday; or
(bb) be counted as up to 1
hour of overtime work that is
officially ordered or approved
in advance of the workweek
under section 5542(g) based on
the amount of canine care
credit for the workday that is
not converted to scheduled
overtime under item (aa);
(IV) canine care hours credited under
subclause (II) on a day when the agent
does not perform regular time work
under paragraph (2)(A)(i) shall be
counted as 1 hour of overtime work that
is officially ordered or approved in
advance of the workweek under section
5542(g); and
(V) notwithstanding subclauses
(III)(bb) and (IV), overtime work
credited under those subclauses is
subject to substitution or application
as provided in paragraph (2)(F) and
subsection (f) as follows:
(aa) Substitution for periods
of absence during regular time
or scheduled overtime (as
described in paragraph
(2)(A)(ii)) within the same
work period in which the canine
care credit was generated.
(bb) Application towards a
debt of obligated overtime
hours.
(ii) Canine care hours credited under
subclauses (III) or (IV) shall not be credited
as overtime work under any other provision of
law.
(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]
(i) any compensation under this
section or any other provision of law
in addition to the compensation
provided under subparagraph (B); 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] leave,
compensatory time off, or other paid time off
for each hour (or part thereof) the agent is
[absent from work] 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 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.]
(G) if the border patrol agent participates
in a full day of advanced training but does not
perform the entire required amount of scheduled
overtime work under subparagraph (A)(ii) on
that day, the border patrol agent shall be
deemed to have performed scheduled overtime
work during nonwork periods to the extent
necessary to reach the required amount, but
such deemed credit may be applied to no more
than 180 hours in a calendar year; otherwise,
the agent shall accrue a debt of hours for
scheduled overtime not worked on such a day;
and
(H) a border patrol agent may choose to
reduce any debt of obligated overtime hours
that the agent has incurred by applying any
accrued compensatory time off for travel
pursuant to section 5550b, and such
compensatory time off for travel may be applied
towards such debt only after other forms of
overtime or earned compensatory time credited
to the border patrol agent have been exhausted.
(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]
(i) any compensation under this
section or any other provision of law
in addition to the compensation
provided under subparagraph (B); 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] 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.]
(G) if the border patrol agent participates
in a full day of advanced training but does not
perform the entire required amount of scheduled
overtime work under subparagraph (A)(ii) on
that day, the border patrol agent shall be
deemed to have performed scheduled overtime
work during nonwork periods to the extent
necessary to reach the required amount, but
such deemed credit may be applied to no more
than 90 hours in a calendar year; otherwise,
the agent shall accrue a debt of hours for
scheduled overtime not worked on such a day;
and
(H) a border patrol agent may choose to
reduce any debt of obligated overtime hours
that the agent has incurred by applying any
accrued compensatory time off for travel
pursuant to section 5550b; such compensatory
time off for travel may be applied towards such
debt only after other forms of overtime or
earned compensatory time credited to the border
patrol agent have been exhausted.
(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.]
(d) Treatment as Basic Pay.--
(1) In general.--Any overtime supplement 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 shall be treated as part of basic pay
only--
(A) except as otherwise provided in paragraph
(3), for purposes of the definitions in section
8331(3) and 8401(4) and the provisions in
chapters 83 and 84 that rely on those
definitions (consistent with section
8331(3)(I));
(B) except as otherwise provided in paragraph
(3), for purposes of sections 5595(c) and
8704(c);
(C) for the purpose of section 8114(e); and
(D) subject to paragraph (2) and any
limitation established under paragraph (3), any
other purpose that the Director of the Office
of Personnel Management may by regulation
prescribe.
(2) Exclusions.--The overtime supplement described in
paragraph (1) shall not be treated as part of basic pay
for purposes not covered by that paragraph, including
the purposes of calculating--
(A) overtime pay, night pay, Sunday pay, or
holiday pay under section 5542, 5545, or 5546;
(B) locality-based comparability payments
under section 5304 or special rate supplements
under section 5305; or
(C) cost-of-living allowances in nonforeign
areas under section 5941.
(3) Limitations.--
(A) In general.--During the control period
described in subparagraph (B), the amount of
the overtime supplement that is considered
basic pay under paragraphs (1)(A) and (1)(B)
may not exceed the amount derived by
multiplying the border patrol agent's basic
border patrol rate of pay by the percentage
representing the agent's career average of
assigned overtime supplement percentages
(including 0 percent for periods of time during
which no overtime supplement was payable). That
career average percentage is computed without
regard to the effect of the limitation on
premium pay under section 5547, but the premium
pay limitation remains applicable in
determining the dollar amount of any overtime
supplement computed using the career average
percentage.
(B) Control period.--For the purposes of
applying subparagraph (A), the control period
described in this subparagraph is the period
that begins 3 years before the date a border
patrol agent will meet age and service
requirements associated with entitlement to an
immediate annuity and continues throughout the
remainder of the individual's career as a
border patrol agent.
(C) Assigned overtime supplement
percentages.--For the purpose of applying
subparagraph (A), a border patrol agent's
initial career average of assigned overtime
supplement percentages is the average for the
border patrol agent's career (excluding any
period of initial training prior to the agent's
first regular work assignment) prior to the
beginning of the control period described in
subparagraph (B). During such control period,
the career average shall be recomputed at the
end of each annual period (as described in
subsection (b)(1)(A)). In computing such career
average, any periods of service as a border
patrol agent prior to the first day of the
first pay period beginning on or after January
1, 2016, shall be included, and the agent's
assigned overtime supplement during such
periods shall be deemed to be 25 percent.
(4) Annual leave payment.--For the purpose of
computing an agent's lump-sum annual leave payment
under section 5551 or 5552, the pay the agent is
projected to receive shall include a deemed overtime
supplement derived under this paragraph. Such overtime
supplement shall be based on the lower of the agent's
actual overtime supplement percentage in effect at
separation or the average percentage of the agent's
overtime supplement over the 26 full biweekly pay
periods immediately preceding that separation, and
shall not exceed the amount that is or would be payable
under the premium pay limitation in section 5547.
(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] During
Regular Time; Absences During Scheduled Overtime.--
(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.
(5) Special rules for leave without pay.--
(A) At least 1 workday.--If a border patrol
agent takes leave without pay for a period of
at least 1 workday, the agent shall not receive
any pay for the hours during which the border
patrol agent took leave without pay.
(B) No accrual of overtime debt.--A border
patrol agent shall not accrue an overtime debt
for any full workdays during which a border
patrol agent uses leave without pay, regardless
of the border patrol rate of pay to which the
border patrol agent is assigned.
(C) Calculation of pay.--For pay periods
during which a border patrol agent takes 1 or
more full days of leave without pay, the amount
of border patrol pay that the agent would
normally receive shall be reduced
proportionally by the amount of overtime hours
that the agent has not worked due to being on
leave without pay. The total amount of border
patrol pay that a border patrol agent would
normally receive in a pay period described in
the preceding sentence shall be decreased based
on the percentage of work days for which the
border patrol agent takes leave without pay.
(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.
(h) Alternative Work Schedules.--
(1) In general.--Notwithstanding any other provision
in this section or section 6101, U.S. Customs and
Border Protection may assign a border patrol agent an
alternative work schedule as described in this
subsection, subject to any regulations prescribed by
the Director of the Office of Personnel Management. No
alternative work schedule may be established under
subchapter II of chapter 61.
(2) Level 2 border patrol agent.--A border patrol
agent receiving a level 2 border patrol rate of pay
may, in lieu of the standard work schedule described in
subsection (b)(3)(A), be assigned to an alternative
work schedule under the following terms and conditions:
(A) The alternative work schedule shall be a
regular tour of duty consisting of 9 workdays
per biweekly pay period, with--
(i) 8 workdays including 9 hours of
regular time per workday and 1
additional hour of scheduled overtime
for each day the agent performs work
during regular time; and
(ii) 1 workday including 8 hours of
regular time per workday and 2
additional hours of scheduled overtime
when the agent performs work during
such regular time.
(B) Subparagraphs (B) through (H) of
subsection (b)(3) shall continue to apply to an
agent assigned to an alternative work schedule
under this paragraph. References in this
section to regular time under subsection
(b)(3)(A)(i) and scheduled overtime under
subsection (b)(3)(A)(ii) shall be deemed to be
references to regular time and scheduled
overtime described in subparagraph (A),
respectively.
(3) Basic border patrol agent.--A border patrol agent
receiving a basic border patrol rate of pay may, in
lieu of the standard work schedule described in
subsection (b)(4)(A), be assigned to an alternative
work schedule that is a regular tour of duty consisting
of 4 workdays per week with 10 hours of regular time
per workday.
(4) Sunday pay; premium pay.--A border patrol agent
assigned to an alternative work schedule under this
subsection, may receive, as applicable--
(A) Sunday pay for no more than 8 hours of
regular time associated with a given Sunday,
consistent with section 5546(a);
(B) premium pay for work on a holiday for no
more than 8 hours of regular time associated
with a given holiday, consistent with section
5546(b); and
(C) basic pay for all regular time hours that
qualify for holiday time off pay when an agent
is relieved or prevented from working during
such regular time on a day designated as a
holiday by Federal statute or Executive order.
(5) Application.--For purposes of administering
sections 6303(a), 6304, 6307(a) and (d), 6323, 6326,
6327, and 8339(m), in the case of an employee assigned
to an alternative work schedule under this subsection,
references to a day or workday (or to multiples or
parts thereof) contained in such sections shall be
considered to be references to 8 hours (or to the
respective multiples or parts thereof).
(i) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations to carry out this
section, including regulations governing--
(1) elections and assignments of a border patrol rate
of pay for newly hired border patrol agents who
complete initial training during an annual period;
(2) situations in which an agent receives more than
one type of border patrol rate of pay in a biweekly pay
period or is employed as a border patrol agent for only
part of a biweekly pay period; and
(3) the treatment of hours that are substituted for
nonpay status hours during regular time.
* * * * * * *
SUBPART G--INSURANCE AND ANNUITIES
* * * * * * *
CHAPTER 83--RETIREMENT
* * * * * * *
SUBCHAPTER III--CIVIL SERVICE RETIREMENT
Sec. 8331. Definitions
For the purpose of this subchapter--
(1) ``employee'' means--
(A) an employee as defined by section 2105 of
this title;
(B) the Architect of the Capitol, an employee
of the Architect of the Capitol, and an
employee of the Botanic Garden;
(C) a Congressional employee as defined by
section 2107 of this title (other than the
Architect of the Capitol, an employee of the
Architect of the Capitol, and an employee of
the Botanic Garden), after he gives notice in
writing to the official by whom he is paid of
his desire to become subject to this
subchapter;
(D) a temporary Congressional employee
appointed at an annual rate of pay, after he
gives notice in writing to the official by whom
he is paid of his desire to become subject to
this subchapter;
(E) a United States Commissioner whose total
pay for services performed as Commissioner is
not less than $3,000 in each of the last 3
consecutive calendar years ending after
December 31, 1954;
(F) an individual employed by a county
committee established under section 590h(b) of
title 16;
(G) an individual first employed by the
government of the District of Columbia before
October 1, 1987;
(H) an individual employed by Gallaudet
College;
(I) an individual appointed to a position on
the office staff of a former President under
section 1(b) of the Act of August 25, 1958 (72
Stat. 838);
(J) an alien (i) who was previously employed
by the Government, (ii) who is employed full
time by a foreign government for the purpose of
protecting or furthering the interests of the
United States during an interruption of
diplomatic or consular relations, and (iii) for
whose services reimbursement is made to the
foreign government by the United States;
(K) an individual appointed to a position on
the office staff of a former President, or a
former Vice President under section 5 of the
Presidential Transition Act of 1963, as amended
(78 Stat. 153), who immediately before the date
of such appointment was an employee as defined
under any other subparagraph of this paragraph;
and
(L) an employee described in section 2105(c)
who has made an election under section
8347(q)(1) to remain covered under this
subchapter;
but does not include--
(i) a justice or judge of the United States
as defined by section 451 of title 28;
(ii) an employee subject to another
retirement system for Government employees
(besides any employee excluded by clause (x),
but including any employee who has made an
election under section 8347(q)(2) to remain
covered by a retirement system established for
employees described in section 2105(c));
(iii) an employee or group of employees in or
under an Executive agency excluded by the
Office of Personnel Management under section
8347(g) of this title;
(iv) an individual or group of individuals
employed by the government of the District of
Columbia excluded by the Office under section
8347(h) of this title;
(v) an employee of the Administrative Office
of the United States Courts, the Federal
Judicial Center, or a court named by section
610 of title 28, excluded by the Director of
the Administrative Office under section 8347(o)
of this title;
(vi) a construction employee or other
temporary, part-time, or intermittent employee
of the Tennessee Valley Authority;
(vii) an employee under the Office of the
Architect of the Capitol excluded by the
Architect of the Capitol under section 8347(i)
of this title;
(viii) an employee under the Library of
Congress excluded by the Librarian of Congress
under section 8347(j) of this title;
(ix) a student-employee as defined by section
5351 of this title;
(x) an employee subject to the Federal
Employees' Retirement System;
(xi) an employee under the Botanic Garden
excluded by the Director or Acting Director of
the Botanic Garden under section 8347(l) of
this title; or
(xii) a member of the Foreign Service (as
described in section 103(6) of the Foreign
Service Act of 1980), appointed after December
31, 1987.
Notwithstanding this paragraph, the employment of a
teacher in the recess period between two school years
in a position other than a teaching position in which
he served immediately before the recess period does not
qualify the individual as an employee for the purpose
of this subchapter. For the purpose of the preceding
sentence, ``teacher'' and ``teaching position'' have
the meanings given them by section 901 of title 20;
(2) ``Member'' means a Member of Congress as defined
by section 2106 of this title, after he gives notice in
writing to the official by whom he is paid of his
desire to become subject to this subchapter, but does
not include any such Member of Congress who is subject
to the Federal Employees' Retirement System or who
makes an election under section 8401(20) of this title
not to be subject to such System;
(3) ``basic pay'' includes--
(A) the amount a Member received from April
1, 1954, to February 28, 1955, as expense
allowance under section 601(b) of the
Legislative Reorganization Act of 1946 (60
Stat. 850), as amended; and that amount from
January 3, 1953, to March 31, 1954, if deposit
is made therefor as provided by section 8334 of
this title;
(B) additional pay provided by--
(i) subsection (a) of section 60e-7
of title 2 and the provisions of law
referred to by that subsection; and
(ii) sections 60e-8, 60e-9, 60e-10,
60e-11, 60e-12, 60e-13, and 60e-14 of
title 2;
(C) premium pay under section 5545(c)(1) of
this title;
(D) with respect to a law enforcement
officer, premium pay under section 5545(c)(2)
of this title;
(E) availability pay--
(i) received by a criminal
investigator under section 5545a of
this title; or
(ii) received after September 11,
2001, by a Federal air marshal of the
Department of Transportation, subject
to all restrictions and earning
limitations imposed on criminal
investigators under section 5545a;
(F) pay as provided in section 5545b (b)(2)
and (c)(2);
(G) with respect to a customs officer
(referred to in subsection (e)(1) of section 5
of the Act of February 13, 1911), compensation
for overtime inspectional services provided for
under subsection (a) of such section 5, but not
to exceed 50 percent of any statutory maximum
in overtime pay for customs officers which is
in effect for the year involved;
(H) any amount received under section 5948
(relating to physicians comparability
allowances); and
(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, subject to the limitation
prescribed in section 5550(d)(3);
but does not include bonuses, allowances, overtime pay,
military pay, pay given in addition to the base pay of
the position as fixed by law or regulation except as
provided by subparagraphs (B) through (I) of this
paragraph retroactive pay under section 5344 of this
title in the case of a retired or deceased employee,
uniform allowances under section 5901 of this title, or
lump-sum leave payments under subchapter VI of chapter
55 of this title. For an employee paid on a fee basis,
the maximum amount of basic pay which may be used is
$10,000;
(4) ``average pay'' means the largest annual rate
resulting from averaging an employee's or Member's
rates of basic pay in effect over any 3 consecutive
years of creditable service or, in the case of an
annuity under subsection (d) or (e)(1) of section 8341
of this title based on service of less than 3 years,
over the total service, with each rate weighted by the
time it was in effect;
(5) ``Fund'' means the Civil Service Retirement and
Disability Fund;
(7) ``Government'' means the Government of the United
States, the government of the District of Columbia,
Gallaudet University, and, in the case of an employee
described in paragraph (1)(L), a nonappropriated fund
instrumentality of the Department of Defense or the
Coast Guard described in section 2105(c);
(8) ``lump-sum credit'' means the unrefunded amount
consisting of--
(A) retirement deductions made from the basic
pay of an employee or Member;
(B) amounts deposited by an employee or
Member covering earlier service, including any
amounts deposited under section 8334(j) of this
title; and
(C) interest on the deductions and deposits
at 4 percent a year to December 31, 1947, and 3
percent a year thereafter compounded annually
to December 31, 1956, or, in the case of an
employee or Member separated or transferred to
a position in which he does not continue
subject to this subchapter before he has
completed 5 years of civilian service, to the
date of the separation or transfer;
but does not include interest--
(i) if the service covered thereby aggregates
1 year or less; or
(ii) for the fractional part of a month in
the total service;
(9) ``annuitant'' means a former employee or Member
who, on the basis of his service, meets all
requirements of this subchapter for title to annuity
and files claim therefor;
(10) ``survivor'' means an individual entitled to
annuity under this subchapter based on the service of a
deceased employee, Member, or annuitant;
(11) ``survivor annuitant'' means a survivor who
files claim for annuity;
(12) ``service'' means employment creditable under
section 8332 of this title;
(13) ``military service'' means honorable active
service--
(A) in the armed forces;
(B) in the Regular or Reserve Corps of the
Public Health Service after June 30, 1960; or
(C) as a commissioned officer of the
Environmental Science Services Administration
after June 30, 1961;
and includes service as a cadet at the United States
Military Academy, the United States Air Force Academy,
or the United States Coast Guard Academy, or as a
midshipman at the United States Naval Academy, but does
not include service in the National Guard except when
ordered to active duty in the service of the United
States or full-time National Guard duty (as such term
is defined in section 101(d) of title 10) if such
service interrupts creditable civilian service under
this subchapter and is followed by reemployment in
accordance with chapter 43 of title 38 that occurs on
or after August 1, 1990;
(14) ``Member service'' means service as a Member and
includes the period from the date of the beginning of
the term for which elected or appointed to the date on
which he takes office as a Member;
(15) ``price index'' means the Consumer Price Index
(all items - United States city average) published
monthly by the Bureau of Labor Statistics;
(16) ``base month'' means the month for which the
price index showed a percent rise forming the basis for
a cost-of-living annuity increase;
(17) ``normal-cost percentage'' means the entry-age
normal cost computed by the Office of Personnel
Management in accordance with generally accepted
actuarial practice and standards (using dynamic
assumptions) and expressed as a level percentage of
aggregate basic pay;
(18) ``Fund balance'' means the current net assets of
the Fund available for payment of benefits, as
determined by the Office in accordance with appropriate
accounting standards, but does not include any amount
attributable to--
(A) the Federal Employees' Retirement System;
or
(B) contributions made under the Federal
Employees' Retirement Contribution Temporary
Adjustment Act of 1983 by or on behalf of any
individual who became subject to the Federal
Employees' Retirement System;
(19) ``unfunded liability'' means the estimated
excess of the present value of all benefits payable
from the Fund to employees and Members, and former
employees and Members, subject to this subchapter, and
to their survivors, over the sum of--
(A) the present value of deductions to be
withheld from the future basic pay of employees
and Members currently subject to this
subchapter and of future agency contributions
to be made in their behalf; plus
(B) the present value of Government payments
to the Fund under section 8348(f) of this
title; plus
(C) the Fund balance as of the date the
unfunded liability is determined;
(20) ``law enforcement officer'' means an employee,
the duties of whose position are primarily the
investigation, apprehension, or detention of
individuals suspected or convicted of offenses against
the criminal laws of the United States, including an
employee engaged in this activity who is transferred to
a supervisory or administrative position. For the
purpose of this paragraph, ``detention'' includes the
duties of--
(A) employees of the Bureau of Prisons and
Federal Prison Industries, Incorporated;
(B) employees of the Public Health Service
assigned to the field service of the Bureau of
Prisons or of the Federal Prison Industries,
Incorporated;
(C) employees in the field service at Army or
Navy disciplinary barracks or at confinement
and rehabilitation facilities operated by any
of the armed forces; and
(D) employees of the Department of
Corrections of the District of Columbia, its
industries and utilities;
whose duties in connection with individuals in
detention suspected or convicted of offenses against
the criminal laws of the United States or of the
District of Columbia or offenses against the punitive
articles of the Uniformed Code of Military Justice
(chapter 47 of title 10) require frequent (as
determined by the appropriate administrative authority
with the concurrence of the Office) direct contact with
these individuals in their detention, direction,
supervision, inspection, training, employment, care,
transportation, or rehabilitation;
(21) ``firefighter'' means an employee, the duties of
whose position are primarily to perform work directly
connected with the control and extinguishment of fires
or the maintenance and use of firefighting apparatus
and equipment, including an employee engaged in this
activity who is transferred to a supervisory or
administrative position;
(22) ``bankruptcy judge'' means an individual--
(A) who is appointed under section 34 of the
Bankruptcy Act (11 U.S.C. 62) or under section
404(d) of the Act of November 6, 1978 (Public
Law 95-598; 92 Stat. 2549), and--
(i) who is serving as a United States
bankruptcy judge on March 31, 1984; or
(ii) whose service as a United States
bankruptcy judge at any time in the
period beginning on October 1, 1979,
and ending on July 10, 1984, is
terminated by reason of death or
disability; or
(B) who is appointed as a bankruptcy judge
under section 152 of title 28;
(23) ``former spouse'' means a former spouse of an
individual--
(A) if such individual performed at least 18
months of civilian service covered under this
subchapter as an employee or Member, and
(B) if the former spouse was married to such
individual for at least 9 months;
(24) ``Indian court'' means an Indian court as
defined by section 201(3) of the Act entitled ``An Act
to prescribe penalties for certain acts of violence or
intimidation, and for other purposes'', approved April
11, 1968 (25 U.S.C. 1301(3); 82 Stat. 77);
(25) ``magistrate judge'' or ``United States
magistrate judge'' means an individual appointed under
section 631 of title 28;
(26) ``Court of Federal Claims judge'' means a judge
of the United States Court of Federal Claims who is
appointed under chapter 7 of title 28 or who has served
under section 167 of the Federal Courts Improvement Act
of 1982;
(27) ``Nuclear materials courier''--
(A) means an employee of the Department of
Energy, the duties of whose position are
primarily to transport, and provide armed
escort and protection during transit of,
nuclear weapons, nuclear weapon components,
strategic quantities of special nuclear
materials or other materials related to
national security; and
(B) includes an employee who is transferred
directly to a supervisory or administrative
position within the same Department of Energy
organization, after performing duties referred
to in subparagraph (A) for at least 3 years;
(28) ``Government physician'' has the meaning given
that term under section 5948;
(29) ``dynamic assumptions'' means economic
assumptions that are used in determining actuarial
costs and liabilities of a retirement system and in
anticipating the effects of long-term future--
(A) investment yields;
(B) increases in rates of basic pay; and
(C) rates of price inflation;
(30) the term ``air traffic controller'' or
``controller'' means--
(A) a controller within the meaning of
section 2109(1); and
(B) a civilian employee of the Department of
Transportation or the Department of Defense who
is the immediate supervisor of a person
described in section 2109(1)(B);
(31) ``customs and border protection officer'' means
an employee in the Department of Homeland Security (A)
who holds a position within the GS-1895 job series
(determined applying the criteria in effect as of
September 1, 2007) or any successor position, and (B)
whose duties include activities relating to the arrival
and departure of persons, conveyances, and merchandise
at ports of entry, including any such employee who is
transferred directly to a supervisory or administrative
position in the Department of Homeland Security after
performing such duties (as described in subparagraph
(B)) in 1 or more positions (as described in
subparagraph (A)) for at least 3 years; and
(32) ``Director'' means the Director of the Office of
Personnel Management.
* * * * * * *
----------
BORDER PATROL AGENT PAY REFORM ACT OF 2014
* * * * * * *
SEC. 2. BORDER PATROL RATE OF PAY.
(a) Purpose.--The purposes of this Act are--
(1) to strengthen U.S. Customs and Border Protection
and ensure that border patrol agents are sufficiently
ready to conduct necessary work and will perform
overtime hours in excess of a 40-hour workweek based on
the needs of U.S. Customs and Border Protection; and
(2) to ensure U.S. Customs and Border Protection has
the flexibility to cover shift changes and retains the
right to assign scheduled and unscheduled work for
mission requirements and planning based on operational
need.
(b) Rates of Pay.--Subchapter V of chapter 55 of title 5,
United States Code, is amended by inserting after section 5549
the following:
``SEC. 5550. BORDER PATROL RATE OF PAY
``(a) Definitions.--In this section--
``(1) the term `basic border patrol rate of pay'
means the hourly rate of basic pay of the applicable
border patrol, as determined without regard to this
section;
``(2) the term `border patrol agent' means an
individual who is appointed to a position assigned to
the Border Patrol Enforcement classification series
1896 or any successor series, consistent with
classification standards established by the Office of
Personnel Management;
``(3) the term `level 1 border patrol rate of pay'
means the hourly rate of pay equal to 1.25 times the
otherwise applicable hourly rate of basic pay of the
applicable border patrol agent;
``(4) the term `level 2 border patrol rate of pay'
means the hourly rate of pay equal to 1.125 times the
otherwise applicable hourly rate of basic pay of the
applicable border patrol agent; and
``(5) the term `work period' means a 14-day biweekly
pay period.
``(b) Receipt of Border Patrol Rate of Pay.--
``(1) Voluntary election.--
``(A) In general.--Not later than 30 days
before the first day of each year beginning
after the date of enactment of this section, a
border patrol agent shall make an election
whether the border patrol agent shall, for that
year, be assigned to--
``(i) the level 1 border patrol rate
of pay;
``(ii) the level 2 border patrol rate
of pay; or
``(iii) the basic border patrol rate
of pay, with additional overtime
assigned as needed by U.S. Customs and
Border Protection.
``(B) Regulations.--The Director of the
Office of Personnel Management shall promulgate
regulations establishing procedures for
elections under subparagraph (A).
``(C) Information regarding election.--Not
later than 60 days before the first day of each
year beginning after the date of enactment of
this section, U.S. Customs and Border
Protection shall provide each border patrol
agent with information regarding each type of
election available under subparagraph (A) and
how to make such an election.
``(D) Assignment in lieu of election.--
Notwithstanding subparagraph (A)--
``(i) a border patrol agent who fails
to make a timely election under
subparagraph (A) shall be assigned to
the level 1 border patrol rate of pay;
``(ii) a border patrol agent who is
assigned a canine shall be assigned to
the level 1 border patrol rate of pay;
``(iii) if at any time U.S. Customs
and Border Protection concludes that a
border patrol agent is unable to
perform overtime on a daily basis in
accordance with this section, U.S.
Customs and Border Protection shall
assign the border patrol agent to the
basic border patrol rate of pay until
such time as U.S. Customs and Border
Protection determines that the border
patrol agent is able to perform
scheduled overtime on a daily basis;
``(iv) unless the analysis conducted
under section 2(e) of the Border Patrol
Agent Pay Reform Act of 2014 indicates
that, in order to more adequately
fulfill the operational requirements of
U.S. Customs and Border Protection,
such border patrol agents should be
allowed to elect or be assigned to the
level 1 border patrol rate of pay or
the level 2 border patrol rate of pay,
a border patrol agent shall be assigned
to the basic border patrol rate of pay
if the agent works--
``(I) at U.S. Customs and
Border Protection headquarters;
``(II) as a training
instructor at a U.S. Customs
and Border Protection training
facility;
``(III) in an administrative
position; or
``(IV) as a fitness
instructor; and
``(v) a border patrol agent may be
assigned to the level 1 border patrol
rate of pay or the level 2 border
patrol rate of pay in accordance with
subparagraph (E).
``(E) Flexibility.--
``(i) In general.--Except as provided
in clauses (ii) and (iii), and
notwithstanding any other provision of
law, U.S. Customs and Border Protection
shall take such action as is necessary,
including the unilateral assignment of
border patrol agents to the level 1
border patrol rate of pay or the level
2 border patrol rate of pay, to ensure
that not more than 10 percent of the
border patrol agents stationed at a
location are assigned to the level 2
border patrol rate of pay or the basic
border patrol rate of pay.
``(ii) Waiver.--U.S. Customs and
Border Protection may waive the
limitation under clause (i) on the
percent of border patrol agents
stationed at a location who are
assigned to the level 2 border patrol
rate of pay or the basic border patrol
rate of pay if, based on the analysis
conducted under section 2(e) of the
Border Patrol Agent Pay Reform Act of
2014, U.S. Customs and Border
Protection determines it may do so and
adequately fulfill its operational
requirements.
``(iii) Certain locations.--Clause
(i) shall not apply to border patrol
agents working at the headquarters of
U.S. Customs and Border Protection or a
training location of U.S. Customs and
Border Protection.
``(F) Canine care.--For a border patrol agent
assigned to provide care for a canine and
assigned to the level 1 border patrol rate of
pay in accordance with subparagraph (D)(ii)--
``(i) that rate of pay covers all
such care;
``(ii) for the purposes of scheduled
overtime under paragraph (2)(A)(ii),
such care shall be counted as 1 hour of
scheduled overtime on each regular
workday without regard to the actual
duration of such care or whether such
care occurs on the regular workday; and
``(iii) no other pay shall be paid to
the border patrol agent for such care.
``(G) Pay assignment continuity.--
``(i) In general.--Not later than 1
year after the date of enactment of the
Border Patrol Agent Pay Reform Act of
2014, and in consultation with the
Office of Personnel Management, U.S.
Customs and Border Protection shall
develop and implement a plan to ensure,
to the greatest extent practicable,
that the assignment of a border patrol
agent under this section during the 3
years of service before the border
patrol agent becomes eligible for
immediate retirement are consistent
with the average border patrol rate of
pay level to which the border patrol
agent has been assigned during the
course of the career of the border
patrol agent.
``(ii) Implementation.--
Notwithstanding any other provision of
law, U.S. Customs and Border Protection
may take such action as is necessary,
including the unilateral assignment of
border patrol agents to the level 1
border patrol rate of pay, the level 2
border patrol rate of pay, or the basic
border patrol rate of pay, to implement
the plan developed under this
subparagraph.
``(iii) Reporting.--U.S. Customs and
Border Protection shall submit the plan
developed under clause (i) to the
appropriate committees of Congress.
``(iv) GAO review.--Not later than 6
months after U.S. Customs and Border
Protection issues the plan required
under clause (i), the Comptroller
General of the United States shall
submit to the appropriate committees of
Congress a report on the effectiveness
of the plan in ensuring that border
patrol agents are not able to
artificially enhance their retirement
annuities.
``(v) Definition.--In this
subparagraph, the term `appropriate
committees of Congress' means--
``(I) the Committee on
Homeland Security and
Governmental Affairs and the
Committee on Appropriations of
the Senate; and
``(II) the Committee on
Homeland Security, the
Committee on Oversight and
Government Reform, and the
Committee on Appropriations of
the House of Representatives.
``(vi) Rule of construction.--Nothing
in this subparagraph shall be construed
to limit the ability of U.S. Customs
and Border Protection to assign border
patrol agents to border patrol rates of
pay as necessary to meet operational
requirements.
``(2) Level 1 border patrol rate of pay.--For a
border patrol agent who is assigned to the level 1
border patrol rate of pay--
``(A) the border patrol agent shall have a
regular tour of duty consisting of 5 workdays
per week with--
``(i) 8 hours of regular time per
workday, which may be interrupted by an
unpaid off-duty meal break; and
``(ii) 2 additional hours of
scheduled overtime during each day the
agent performs work under clause (i);
``(B) for paid hours of regular time
described in subparagraph (A)(i), the border
patrol agent shall receive pay at the level 1
border patrol rate of pay;
``(C) compensation for the hours of regularly
scheduled overtime work described in
subparagraph (A)(ii) is provided indirectly
through the 25 percent supplement within the
level 1 border patrol rate of pay, and the
border patrol agent may not receive for such
hours--
``(i) any compensation in addition to
the compensation under subparagraph (B)
under this section or any other
provision of law; or
``(ii) any compensatory time off;
``(D) the border patrol agent shall receive
compensatory time off or pay at the overtime
hourly rate of pay for hours of work in excess
of 100 hours during a work period, as
determined in accordance with section 5542(g);
``(E) the border patrol agent shall be
charged corresponding amounts of paid leave,
compensatory time off, or other paid time off
for each hour (or part thereof) the agent is
absent from work during regular time (except
that full days off for military leave shall be
charged when required);
``(F) if the border patrol agent is absent
during scheduled overtime described in
subparagraph (A)(ii)--
``(i) the border patrol agent shall
accrue an obligation to perform other
overtime work for each hour (or part
thereof) the border patrol agent is
absent; and
``(ii) any overtime work applied
toward the obligation under clause (i)
shall not be credited as overtime work
under any other provision of law; and
``(G) for the purposes of advanced training,
the border patrol agent--
``(i) shall be paid at the level 1
border patrol rate of pay for the first
60 days of advanced training in a
calendar year; and
``(ii) for any advanced training in
addition to the advanced training
described in clause (i), shall be paid
at the basic border patrol rate of pay.
``(3) Level 2 border patrol rate of pay.--For a
border patrol agent who is assigned to the level 2
border patrol rate of pay--
``(A) the border patrol agent shall have a
regular tour of duty consisting of 5 workdays
per week with--
``(i) 8 hours of regular time per
workday, which may be interrupted by an
unpaid off-duty meal break; and
``(ii) 1 additional hour of scheduled
overtime during each day the agent
performs work under clause (i);
``(B) for paid hours of regular time
described in subparagraph (A)(i), the border
patrol agent shall receive pay at the level 2
border patrol rate of pay;
``(C) compensation for the hours of regularly
scheduled overtime work described in
subparagraph (A)(ii) is provided indirectly
through the 12.5 percent supplement within the
level 2 border patrol rate of pay, and the
border patrol agent may not receive for such
hours--
``(i) any compensation in addition to
the compensation under subparagraph (B)
under this section or any other
provision of law; or
``(ii) any compensatory time off;
``(D) the border patrol agent shall receive
compensatory time off or pay at the overtime
hourly rate of pay for hours of work in excess
of 90 hours during a work period, as determined
in accordance with section 5542(g);
``(E) the border patrol agent shall be
charged corresponding amounts of paid leave,
compensatory time off, or other paid time off
for each hour (or part thereof) the agent is
excused from work during regular time (except
that full days off for military leave shall be
charged when required);
``(F) if the border patrol agent is absent
during scheduled overtime described in
subparagraph (A)(ii)--
``(i) the border patrol agent shall
accrue an obligation to perform other
overtime work for each hour (or part
thereof) the border patrol agent is
absent; and
``(ii) any overtime work applied
toward the obligation under clause (i)
shall not be credited as overtime work
under any other provision of law; and
``(G) for the purposes of advanced training,
the border patrol agent--
``(i) shall be paid at the level 2
border patrol rate of pay for the first
60 days of advanced training in a
calendar year; and
``(ii) for any advanced training in
addition to the advanced training
described in clause (i), shall be paid
at the basic border patrol rate of pay.
``(4) Basic border patrol rate of pay.--For a border
patrol agent who is assigned to the basic border patrol
rate of pay--
``(A) the border patrol agent shall have a
regular tour of duty consisting of 5 workdays
per week with 8 hours of regular time per
workday; and
``(B) the border patrol agent shall receive
compensatory time off or pay at the overtime
hourly rate of pay for hours of work in excess
of 80 hours during a work period, as determined
in accordance with section 5542(g).
``(c) Eligibility for Other Premium Pay.--A border patrol
agent--
``(1) shall receive premium pay for nightwork in
accordance with subsections (a) and (b) of section 5545
and Sunday and holiday pay in accordance with section
5546, without regard to the rate of pay to which the
border patrol agent is assigned under this section,
except that--
``(A) no premium pay for night, Sunday, or
holiday work shall be provided for hours of
regularly scheduled overtime work described in
paragraph (2)(A)(ii) or (3)(A)(ii) of
subsection (b), consistent with the
requirements of paragraph (2)(C) or (3)(C) of
subsection (b); and
``(B) section 5546(d) shall not apply and
instead eligibility for pay for, and the rate
of pay for, any overtime work on a Sunday or a
designated holiday shall be determined in
accordance with this section and section
5542(g);
``(2) except as provided in paragraph (3) or section
5542(g), shall not be eligible for any other form of
premium pay under this title; and
``(3) shall be eligible for hazardous duty pay in
accordance with section 5545(d).
``(d) Treatment as Basic Pay.--Any pay in addition to the
basic border patrol rate of pay for a border patrol agent
resulting from application of the level 1 border patrol rate of
pay or the level 2 border patrol rate of pay--
``(1) subject to paragraph (2), shall be treated as
part of basic pay solely for--
``(A) purposes of sections 5595(c), 8114(e),
8331(3)(I), and 8704(c);
``(B) any other purpose that the Director of
the Office of Personnel Management may by
regulation prescribe; and
``(C) any other purpose expressly provided
for by law; and
``(2) shall not be treated as part of basic pay for
the purposes of calculating overtime pay, night pay,
Sunday pay, or holiday pay under section 5542, 5545, or
5546.
``(e) Travel Time.--Travel time to and from home and duty
station by a border patrol agent shall not be considered hours
of work under any provision of law.
``(f) Leave Without Pay and Substitution of Hours.--
``(1) Regular time.--
``(A) In general.--For a period of leave
without pay during the regular time of a border
patrol agent (as described in paragraph
(2)(A)(i), (3)(A)(i), or (4)(A) of subsection
(b)) within a work period, an equal period of
work outside the regular time of the border
patrol agent, but in the same work period--
``(i) shall be substituted and paid
for at the rate applicable for the
regular time; and
``(ii) shall not be credited as
overtime hours for any purpose.
``(B) Priority for same day work.--In
substituting hours of work under subparagraph
(A), work performed on the same day as the
period of leave without pay shall be
substituted first.
``(C) Priority for regular time
substitution.--Hours of work shall be
substituted for regular time work under this
paragraph before being substituted for
scheduled overtime under paragraphs (2), (3),
and (4).
``(2) Overtime Work.--
``(A) In general.--For a period of absence
during scheduled overtime (as described in
paragraph (2)(F) or (3)(F) of subsection (b))
within a work period, an equal period of
additional work in the same work period--
``(i) shall be substituted and
credited as scheduled overtime; and
``(ii) shall not be credited as
overtime hours under any other
provision of law.
``(B) Priority for same day work.--In
substituting hours of work under subparagraph
(A), work performed on the same day as the
period of absence shall be substituted first.
``(3) Application of compensatory time.--If a border
patrol agent does not have sufficient additional work
in a work period to substitute for all periods of
absence during scheduled overtime (as described in
paragraph (2)(F) or (3)(F) of subsection (b)) within
that work period, any accrued compensatory time off
under section 5542(g) shall be applied to satisfy the
hours obligation.
``(4) Insufficient hours.--If a border patrol agent
has a remaining hours obligation of scheduled overtime
after applying paragraphs (2) and (3), any additional
work in subsequent work periods that would otherwise be
credited under section 5542(g) shall be applied towards
the hours obligation until that obligation is
satisfied.
``(g) Authority To Require Overtime Work.--Nothing in this
section shall be construed to limit the authority of U.S.
Customs and Border Protection to require a border patrol agent
to perform hours of overtime work in accordance with the needs
of U.S. Customs and Border Protection, including if needed in
the event of a local or national emergency.''.
(c) Overtime work.--
(1) In general.--Section 5542 of title 5, United
States Code, is amended by adding at the end the
following:
``(g) In applying subsection (a) with respect to a border
patrol agent covered by section 5550, the following rules
apply:
``(1) Notwithstanding the matter preceding paragraph
(1) in subsection (a), for a border patrol agent who is
assigned to the level 1 border patrol rate of pay under
section 5550--
``(A) hours of work in excess of 100 hours
during a 14-day biweekly pay period shall be
overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the
overtime hourly rate of pay (as
determined in accordance with
paragraphs (1) and (2) of subsection
(a)) for hours of overtime work that
are officially ordered or approved in
advance of the workweek; and
``(ii) except as provided in
paragraphs (4) and (5), shall receive
compensatory time off for an equal
amount of time spent performing
overtime work that is not overtime work
described in clause (i).
``(2) Notwithstanding the matter preceding paragraph
(1) in subsection (a), for a border patrol agent who is
assigned to the level 2 border patrol rate of pay under
section 5550--
``(A) hours of work in excess of 90 hours
during a 14-day biweekly pay period shall be
overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the
overtime hourly rate of pay (as
determined in accordance with
paragraphs (1) and (2) of subsection
(a)) for hours of overtime work that
are officially ordered or approved in
advance of the workweek; and
``(ii) except as provided in
paragraphs (4) and (5), shall receive
compensatory time off for an equal
amount of time spent performing
overtime work that is not overtime work
described in clause (i).
``(3) Notwithstanding the matter preceding paragraph
(1) in subsection (a), for a border patrol agent who is
assigned to the basic border patrol rate of pay under
section 5550--
``(A) hours of work in excess of 80 hours
during a 14-day biweekly pay period shall be
overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the
overtime hourly rate of pay (as
determined in accordance with
paragraphs (1) and (2) of subsection
(a)) for hours of overtime work that
are officially ordered or approved in
advance of the workweek; and
``(ii) except as provided in
paragraphs (4) and (5), shall receive
compensatory time off for an equal
amount of time spent performing
overtime work that is not overtime work
described in clause (i).
``(4)(A) Except as provided in subparagraph (B),
during a 14-day biweekly pay period, a border patrol
agent may not earn compensatory time off for more than
10 hours of overtime work.
``(B) U.S. Customs and Border Protection may,
as it determines appropriate, waive the
limitation under subparagraph (A) for an
individual border patrol agent for hours of
irregular or occasional overtime work, but such
waiver must be approved in writing in advance
of the performance of any such work for which
compensatory time off is earned under paragraph
(1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a
waiver request by a border patrol agent is
denied, the border patrol agent may not be
ordered to perform the associated overtime
work.
``(5) A border patrol agent--
``(A) may not earn more than 240 hours of
compensatory time off during a leave year;
``(B) shall use any hours of compensatory
time off not later than the end of the 26th pay
period after the pay period during which the
compensatory time off was earned;
``(C) shall be required to use 1 hour of
compensatory time off for each hour of regular
time not worked for which the border patrol
agent is not on paid leave or other paid time
off or does not substitute time in accordance
with section 5550(f);
``(D) shall forfeit any compensatory time off
not used in accordance with this paragraph and,
regardless of circumstances, shall not be
entitled to any cash value for compensatory
time earned under section 5550;
``(E) shall not receive credit towards the
computation of the annuity of the border patrol
agent for compensatory time, whether used or
not; and
``(F) shall not be credited with compensatory
time off if the value of such time off would
cause the aggregate premium pay of the border
patrol agent to exceed the limitation
established under section 5547 in the period in
which it was earned.''.
(2) Minimization of overtime.--U.S. Customs and
Border Protection shall, to the maximum extent
practicable, avoid the use of scheduled overtime work
(other than scheduled overtime work within the regular
tour of duty) by border patrol agents.
(d) Retirement.--Section 8331(3) of title 5, United States
Code, is amended--
(1) in subparagraph (G), by striking ``and'';
(2) in subparagraph (H), by inserting ``and'' after
the semicolon;
(3) by inserting a new subparagraph after
subparagraph (H) as follows:
``(I) with respect to a
border patrol agent, the amount
of supplemental pay received
through application of the
level 1 border patrol rate of
pay or the level 2 border
patrol rate of pay for
scheduled overtime within the
regular tour of duty of the
border patrol agent as provided
in section 5550;''; and
(4) in the undesignated matter following subparagraph
(H), by striking ``subparagraphs (B) through (H)'' and
inserting ``subparagraphs (B) through (I)''.
(e) Comprehensive Staffing Analysis.--
(1) In general.--Not later than 1 year after the date
of enactment of this Act, U.S. Customs and Border
Protection shall conduct a comprehensive analysis, and
submit to the Comptroller General of the United States
a report, that--
(A) examines the staffing requirements for
U.S. Border Patrol to most effectively meet its
operational requirements at each Border Patrol
duty station;
(B) estimates the cost of the staffing
requirements at each Border Patrol duty
station; and
(C) includes--
(i) a position-by-position review at
each Border Patrol station to
determine--
(I) the duties assigned to
each position;
(II) how the duties relate to
the operational requirements of
U.S. Border Patrol; and
(III) the number of hours
border patrol agents in that
position would need to work
each pay period to meet the
operational requirements of
U.S. Border Patrol;
(ii) the metrics used to determine
the number of hours of work performed
at each Border Patrol station, broken
down by the type of hours worked;
(iii) a cost analysis of the most
recent full fiscal year by the type of
full-time equivalent hours worked;
(iv) a cost estimate by the type of
full-time equivalent hours expected to
be worked during the first full fiscal
year after the date of enactment of
this Act; and
(v) an analysis that compares the
cost of assigning the full-time
equivalent hours needed to meet the
operational requirements of U.S. Border
Patrol to existing border patrol agents
through higher rates of pay versus
recruiting, hiring, training, and
deploying additional border patrol
agents.
(2) Independent validator.--Not later than 90 days
after the date on which the Comptroller General
receives the report under paragraph (1), the
Comptroller General shall submit to the appropriate
committees of Congress a report that--
(A) examines the methodology used by U.S.
Customs and Border Protection to carry out the
analysis; and
(B) indicates whether the Comptroller General
concurs with the findings in the report under
paragraph (1).
(3) Definition.--In this subsection, the term
``appropriate committees of Congress'' means--
(A) the Committee on Homeland Security and
Governmental Affairs and the Committee on
Appropriations of the Senate; and
(B) the Committee on Oversight and Government
Reform and the Committee on Appropriations of
the House of Representatives.
(f) Rules of Construction.--Nothing in this section or the
amendments made by this section shall be construed to--
(1) limit the right of U.S. Customs and Border
Protection to assign both scheduled and unscheduled
work to a border patrol agent based on the needs of
U.S. Customs and Border Protection in excess of the
hours of work normally applicable under the election of
the border patrol agent, regardless of what the border
patrol agent might otherwise have elected;
(2) require compensation of a border patrol agent
other than for hours during which the border patrol
agent is actually performing work or using approved
paid leave or other paid time off; or
(3) exempt a border patrol agent from any limitations
on pay, earnings, or compensation, including the
limitations under section 5547 of title 5, United
States Code.
(g) Technical and Conforming Amendments.--
(1) Section 5547 of title 5, United States Code is
amended by--
(A) in subsection (a), in the matter
preceding paragraph (1)--
(i) by striking, ``and'' before
``5546''; and
(ii) by inserting ``, and 5550''
after ``5546 (a) and (b)''; and
(B) by adding at the end the following:
``(e) Any supplemental pay resulting from receipt of the
level 1 border patrol rate of pay or the level 2 border patrol
rate of pay under section 5550 shall be considered premium pay
in applying this section.''.
(2) Section 13(a) of the Fair Labor Standards Act of
1938 (29 U.S.C. 213(a)) is amended--
(A) in paragraph (16), by striking ``or''
after the semicolon;
(B) in paragraph (17), by striking the period
at the end and inserting ``; or''; and
(C) by adding at the end the following:
``(18) any employee who is a border patrol agent, as
defined in section 5550(a) of title 5, United States
Code.''.
(3) The table of sections for chapter 55 of title 5,
United States Code, is amended by inserting after the
item relating to section 5549 the following:
``5550. Border patrol rate of pay.''.
(h) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations to carry out this Act
and the amendments made by this Act.
(i) Effective Date.--Subsections (b), (c), (d), and (g), and
the amendments made by such subsections, shall take effect on
the first day of the first pay period beginning on or after
January 1, 2016, except that--
(1) any provision in section 5550(b) of title 5,
United States Code, as added by subsection (b),
relating to administering elections and making advance
assignments to a regular tour of duty shall be
applicable before such effective date to the extent
determined necessary by the Director of the Office of
Personnel Management; and
(2) the Director may issue regulations as necessary
prior to such effective date.
* * * * * * *
[all]