[Senate Report 113-248]
[From the U.S. Government Publishing Office]
113th Congress Report
SENATE
2d Session 113-248
_______________________________________________________________________
Calendar No. 548
BORDER PATROL AGENT PAY REFORM ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1691
TO AMEND TITLE 5, UNITED STATES CODE, TO IMPROVE THE SECURITY OF THE
UNITED STATES BORDER AND TO PROVIDE FOR REFORMS AND RATES OF PAY FOR
BORDER PATROL AGENTS
August 26, 2014.--Ordered to be printed
Filed, under authority of the order of the Senate of August 5
(legislative day, August 1), 2014
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware, Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota
Gabrielle A. Batkin, Staff Director
John P. Kilvington, Deputy Staff Director
Mary Beth Schultz, Chief Counsel
Blas Nunez-Neto, Senior Professional Staff Member
Katherine C. Sybenga, Senior Counsel
Keith B. Ashdown, Minority Staff Director
Christopher J. Barkley, Minority Deputy Staff Director
Andrew C. Dockham, Minority Chief Counsel
Daniel P. Lips, Minority Director of Homeland Security
Gabrielle D'Adamo Singer, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 548
113th Congress Report
SENATE
2d Session 113-248
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BORDER PATROL AGENT PAY REFORM ACT
_______
August 26, 2014.--Ordered to be printed
Filed, under authority of the order of the Senate of August 5
(legislative day, August1), 2014
_______
Mr. Carper, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1691]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1691) to amend
title 5, United States Code, to improve the security of the
United States border and to provide for reforms and rates of
pay for border patrol agents, having considered the same,
reports favorably thereon with an amendment in the nature of a
substitute, and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History.............................................10
IV. Section-by-Section Analysis of the bill, as Reported............12
V. Evaluation of Regulatory Impact.................................18
VI. Congressional Budget Office Estimate............................19
VII. Changes in Existing Law Made by the Bill, as Reported...........20
I. Purpose and Summary
S. 1691 would reform the pay system for Border Patrol
agents by updating it to reflect the number of hours those
agents regularly work and the way in which those hours are
scheduled. At the same time, the bill would provide those
agents with more reliable schedules and predictable paychecks,
while enabling them to spend more time patrolling the border
and saving taxpayers an estimated $100 million annually.
II. Background and Need for the Legislation
COMPENSATION FOR FEDERAL EMPLOYEES IN GENERAL
Federal law contains a number of different systems under
which federal employees receive compensation for the hours they
work. Most federal employees, including the BorderPatrol agents
who are the subject of S. 1691, receive a base salary whose amount is
set by their grade and step on the General Schedule, or GS.\1\ This
salary generally compensates them for the first 40 hours they work each
week. Depending on the type of work they perform, those working in
excess of 40 hours in a given week may receive compensation under one
or more of several statutes governing overtime pay.\2\
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\1\Entry level agents are usually placed at GS 5, step 1, while the
most experienced agents can reach GS 12, step 10.
\2\Some workers, most notably those at a supervisory level are
exempt from overtime pay requirements. See 29 U.S.C. Sec. 213(a)(1).
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The Fair Labor Standards Act (FLSA), the primary federal
statute regulating the wages and hours of most of the nation's
workforce, requires most employees to receive an amount equal
to one and one-half of their hourly rate of pay for each hour
they work over 40 in any given week.\3\ The Federal Employee
Pay Act (FEPA) authorizes overtime pay for scheduled overtime--
or overtime that is authorized by a manager in advance of the
work being performed. FEPA overtime compensation is capped by
law at the greater of the time-and-a-half at the GS-10, step 1
rate (currently $69,344 before locality pay adjustments are
factored in) or the straight time rate at the agent's own GS
and step level.\4\
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\3\Again, several types of employees not at issue in this bill are
exempt from the FLSA's overtime rules. See 29 U.S.C. Sec. 213.
\4\See 5 U.S.C. Sec. 5542(a).
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In 1954, Congress established Administratively
Uncontrollable Overtime (AUO) to compensate federal employees
whose duties require irregular and unpredictable work extending
beyond a normal shift.\5\ As explained in the Code of Federal
Regulations, AUO premium pay is authorized for a position ``in
which the hours of duty cannot be controlled administratively
and which requires substantial amounts of irregular or
occasional overtime work, with the employee generally being
responsible for recognizing, without supervision, circumstances
which require the employee to remain on duty.''\6\ Essentially,
an employee is only allowed to use AUO if he or she is working
hours that could not have been scheduled in advance and if it
would be negligent to leave the job unfinished.
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\5\See 5 U.S.C. Sec. 5545(c).
\6\See 5 C.F.R. Sec. 550.151. As of 1974, AUO compensation is
considered in an employee's retirement annuity calculation. See 5
U.S.C. Sec. 8331(3)(D).
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AUO provides additional pay for an employee--generally
between 10 and 25 percent of the base salary--for self-directed
hours of overtime worked that are unschedulable. For example,
if an employee works an additional 10 hours of unscheduled work
each week--for a total of 100 hours worked in a pay-period--
that employee would receive a 25 percent increase in their
basic pay. Managers must certify that an employee is eligible
to earn AUO pay--based on the characteristics of the tasks that
they are performing--on a quarterly basis. AUO-eligible
employees are then charged with determining on any given day
whether the work that they are performing requires them to work
additional hours beyond their regularly scheduled 8-hour
shifts. An AUO-eligible employee may also receive other premium
pay for ``regularly scheduled work'' hours--defined under
federal regulations as the first 40 hours worked during a work-
week\7\--including night pay,\8\ Sunday pay,\9\ and holiday
premium pay.\10\ The amount of AUO premium pay that any
employee can generally receive in a pay-period is capped by
law.\11\
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\7\See 5 C.F.R. Sec. 610.111.
\8\Employees eligible for night pay receive an additional 10
percent of their hourly rate for each hour of regularly scheduled work
performed at night. See 5 U.S.C. Sec. 5545(a).
\9\Employees eligible for Sunday pay receive an additional 25
percent of their hourly rate for each hour of regularly scheduled work
when any part or the whole of that shift is performed on a Sunday See 5
U.S.C. Sec. 5546(a).
\10\According to OPM, ``employees who are required to work on a
holiday receive their rate of basic pay, plus holiday premium pay, for
each hour of holiday work. Holiday premium pay is equal to an
employee's rate of basic pay.'' See 5 U.S.C. Sec. 5546(b). and [http://
www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-
sheets/holidays-work-schedules-and-pay/] last visited July 24, 2014.
\11\According to OPM:
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There is a biweekly pay limitation that limits the amount
of premium pay that can be paid during a biweekly pay
period. Under 5 U.S.C. Sec. 5547(a) and 5 C.F.R.
Sec. 550.105, premium pay cannot be paid to General
Schedule employees (including law enforcement officers and
other covered employees) to the extent that doing so would
cause an employee's basic pay, overtime pay, the dollar
value of compensatory time off, night pay, annual premium
pay, Sunday premium pay, and holiday premium pay to exceed
the greater of the biweekly rate for GS-15, step 10
(including any applicable special salary rate or locality
rate of pay), or level V of the Executive Schedule.
Exception: For employees performing emergency work (as
determined by the agency head or OPM), or mission-critical
work (as determined by the agency head), premium pay cannot
be paid which causes the total of basic pay and premium pay
to exceed the greater of the annual rate for- GS-15, step
10 (including any applicable special salary rate or
locality rate of pay); or level V of the Executive
Schedule. These limitations do not apply to wage employees
or to FLSA overtime pay.''
See http://www.opm.gov/policy-data-oversight/pay-leave/pay-
administration/fact-sheets/overtime-pay-title-5/], last visited on July
29, 2014.
AUO-certified employees may also receive FLSA-regulated
compensation for overtime hours, in addition to the premium pay
they receive through AUO.\12\ The FLSA generally requires
employers to pay nonexempt employees\13\ one-and-a-half times
their regular rate of pay for hours worked in excess of 40 in a
workweek. Under the FLSA, law enforcement employees, including
Border Patrol agents, are paid time-and-a-half for hours worked
in excess of 42.75 hours in a week\14\--something virtually all
AUO-eligible employees at the Border Patrol do.\15\ For
unscheduled overtime hours worked above 85.5 per pay-period (up
to 100 hours) the agency pays AUO at the agent's regular rate
of pay plus an additional half-rate of pay through FLSA--
totaling time and a half.\16\ In the rare instance in which an
agent exceeds 100 hours, for those additional hours they would
receive only the half-rate FLSA compensation.\17\
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\12\Some employees, generally managers, are exempt from earning
FLSA overtime (See 29 U.S.C. Sec. 213) but can still receive AUO under
5 U.S.C. Sec. 5545(c)(2).
\13\Employees that are exempted from receiving FLSA overtime
include most management personnel, including all personnel at the GS-14
and GS-15 level. From email correspondence with CBP, July 29, 2014.
\14\5 C.F.R. Sec. 551.216.
\15\Briefing by Customs and Border Protection, May 11, 2014.
\16\According to OPM, the guidelines for how FLSA interacts with
AUO are as follows:
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``for AUO employees, the straight time rate of pay is equal
to basic pay plus AUO pay divided by the hours for which
the basic pay plus AUO pay are intended. (See 5 CFR
Sec. 551.512(b).) Thus, an AUO employee has received the
straight time rate of pay for the hours for which basic pay
and AUO pay are intended. In other words, the AUO employee
has been paid once for hours covered by basic pay and AUO
pay, leaving an agency with the obligation of straight time
pay for any regularly scheduled overtime hours (not covered
by AUO pay) plus a half-rate obligation for all overtime
hours to meet the FLSA time-and-one-half overtime
requirement.''
See [http://archive.opm.gov/oca/compmemo/html/cpm97-5a.htm], last
visited on May 30, 2014.
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\17\This is because AUO pays a maximum of 25 percent of an agent's
basic pay--for example if an agent worked 110 hours in a pay-period
that agent would get their 25 percent AUO rate, plus 24.5 hours of half
rate FLSA overtime payments. Briefing by Customs and Border Protection,
July 29, 2014.
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Lastly, the Border Patrol uses a separate legal authority
to pay for scheduled overtime--or overtime that is authorized
by a manager, generally in advance of the work being performed.
This compensation is authorized by the Federal Employee Pay Act
of 1945 (FEPA). For example, an agent in the field may be
scheduled to work a 6th shift in one work week in order to
respond to an emergency--such as dealing with the current
humanitarian challenge involving unaccompanied minors in south
Texas. For that extra shift, the agent would be paid under the
FEPA pay authority.\18\ In recent years, the Border Patrol has
used scheduled FEPA overtime very sparingly, paying out only $4
million in fiscal year 2012 and less than $1 million in fiscal
year 2013.\19\
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\18\Agents assigned to such a shift would be paid by FEPA, but are
also subject to the FLSA requirements. This means that they often
receive both FEPA and FLSA pay for this kind of scheduled overtime.
FEPA overtime compensation is capped by law at the greater the time-
and-a-half of the GS-10, step 1 rate ($69,344 before locality pay
adjustments are factored in) or the straight time rate at the agent's
own GS and step level. However, agents paid with FEPA for scheduled
overtime are also eligible for FLSA payments if they are non-exempt. In
practice, the interplay between FEPA and FLSA means most agents who are
scheduled overtime earn very close to time-and-a-half. From a telephone
call with Customs and Border Protection, July 29, 2014.
\19\Email correspondence with Customs and Border Protection, May
28, 2014.
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border patrol agents' overtime compensation
The Border Patrol, a component of the Department of
Homeland Security's (DHS's) U.S. Customs and Border Protection
(CBP), is charged with securing our nation's borders against
the illegal entry of terrorists, criminals, illicit contraband
and undocumented immigrants. Over the years, the Border Patrol
has become a prolific user--and as it turns out, often a
misuser--of the AUO system, often using it to pay for overtime
hours that are predictable and could have been scheduled in
advance. Forty years ago, when the AUO system was last
extensively modified, AUO offered an entirely appropriate means
for awarding agents overtime pay based on the operational
demands of the Border Patrol. Border Patrol agents were
regularly in ``hot pursuit'' of a group of border crossers when
their shift was scheduled to end. Because of the remoteness of
the areas in which the agents routinely found themselves and
the limits on communications systems at the time, those agents
could not pause from their pursuit to seek approval of
unscheduled overtime. AUO was a natural fit for this kind of
work environment.
However, the nature of the work performed by frontline
agents has changed dramatically over the past 40 years--and
particularly over the past decade, as apprehensions made by
Border Patrol agents have declined to near historical lows. In
1975 the Border Patrol had 1,746 agents who made 596,796
apprehensions of individuals attempting to cross the border
illegally.\20\ In fiscal year 2013, the most recent year for
which data is available, the Border Patrol had a legislatively
mandated floor of 21,370 agents who made 420,789
apprehensions.\21\ In other words, the Border Patrol has more
than 12 times more agents deployed to the border today than it
did when AUO was created, but these agents make 30 percent
fewer apprehensions overall. On the ground, this change has
meant that agents needing regular AUO to continue ``hot
pursuits'' no longer accurately reflects the work agents
generally do today.
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\20\University of Syracuse, Transactional Records Access
Clearinghouse Immigration, National Trends in Apprehensions and
Staffing, available at [http://trac.syr.edu/immigration/reports/141/
include/rep141table2.html], last visited June 3, 2014.
\21\Briefing by Customs and Border Protection, May 11, 2014.
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In the early 1990s, the Border Patrol began implementing a
new strategy known as ``prevention through deterrence'' that
focused its efforts on deploying agents and resources directly
on the border in order to deter illegal border crossings.
Starting in El Paso, Texas in 1993 with Operation Hold the
Line, and later expanded to San Diego with Operation Gatekeeper
in 1994, the Border Patrol began deploying agents, cameras and
underground sensors, and fencing directly on the border in an
effort to deter illegal border crossings. Over the next two
decades, the Border Patrol continued to expand the resource-
intensive ``prevention through deterrence'' approach across the
length of the border with Mexico, increasingly deploying its
agents to the more remote parts of the southern border.\22\ In
order to maximize their ability to cover the length of the
border, managers began routinely assigning agents to work 10-
hour shifts--which allowed the agency to cover each day with
three overlapping 10-hour shifts, instead of four overlapping
8-hour shifts. Agents were paid for these extra hours using
AUO, despite the fact that the extra hours they were working
were largely predictable and essentially scheduled.\23\
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\22\Seghetti, Lisa, Border Security: Immigration Enforcement
Between Ports of Entry, R42138, Congressional Research Service, January
16, 2014.
\23\From a series of briefings by Customs and Border Protection,
January to June 2014.
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Over the past decade, the Border Patrol has increasingly
begun to use intelligence gathering by its agents during a
shift in order to focus the enforcement efforts of the next
shift of agents. The 2012 Border Patrol Strategic Plan
formalized this change in operations, shifting the agency away
from the ``prevention through deterrence'' model and instead
emphasizing the use of intelligence and risk analysis to guide
deployments.\24\ Agents are now regularly tasked with
generating real-time intelligence reports on the trends they
encounter during their shift, including geo-locating their
apprehensions and mapping them, in order to allow supervisors
to more effectively deploy their personnel. They are also
increasingly being deployed into remote, rugged environments
where travel time from the station where they receive their
instructions for the shift--known as the muster--to the border
can take up to two hours each way. However, travel to and from
their work station and generating reports to inform the next
shift of agents are not activities that are authorized to be
paid by the AUO statute and its implementing regulations.
Additionally, communication systems along the border have
increased dramatically over the past 40 years, making it far
easier for an agent deployed to a remote part of the border to
contact a supervisor in order to authorize their actions.\25\
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\24\See: Customs and Border Protection, 2012-2016 Border Patrol
Strategic Plan, Washington, DC, 2012.
\25\From a series of briefings by Customs and Border Protection,
January to June 2014.
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While the nature of the work performed by the average agent
has changed over the years, the Border Patrol has been slow to
change how it administers its overtime system. Part of the
issue is that for years, CBP reportedly promised agents that
they would receive an additional 25 percent pay above their
base salary each year, essentially guaranteeing them the
maximum hours of AUO.\26\
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\26\See testimony of Brandon Judd, President of the National Border
Patrol Council, ``Border Security: Examining the Implications of S.
1691, the Border Patrol Pay Reform Act of 2013,'' hearing before the
Senate Committee on Homeland Security and Governmental Affairs, 113th
Cong. (June 9, 2014). http://www.hsgac.senate.gov/hearings/border-
security-examining-the-implications-of-s-1691-the-border-patrol-agent-
pay-reform-act-of-2013.
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As reported last year by the Office of Special Counsel
(OSC), the independent federal agency charged with protecting
federal employees and applicants from prohibited personnel
practices, the Border Patrol has misused AUO to pay for work
performed by agents that should have been paid using a
different kind of overtime, or perhaps in some cases, for hours
that were not worked and should not have been paid at all.
On October 31, 2013, OSC issued a letter and report to the
President detailing ``long-standing abuse of overtime payments
by the Department of Homeland Security.''\27\ The report
followed up on a 2008 OSC investigation that reached similar
conclusions. In its report, OSC discussed 10 specific cases
involving Border Patrol agents,\28\ and revealed that, for
years, the Border Patrol misused AUO by using it to pay for
activities that were not uncontrollable by their nature and not
contemplated by the statute authorizing AUO. This misuse
essentially means that either: (a) agents should have been
compensated under the more generous FLSA or FEPA overtime
systems; or (b) agents were performing work that was not time-
sensitive, could have been deferred to a subsequent shift, and
thus should not have received overtime at all.
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\27\Letter from Carolyn Lerner, Special Counsel, to President
Barack Obama, October 31, 2013. Available at: https://osc.gov/
PublicFiles/FY2014/14-1%20DI-13-0002/14-1%20DI-13-0002%20-
%20Letter%20to%20the%20President.pdf, last visited August 20, 2014.
\28\The OSC report also identified cases of AUO misuse at
Immigration and Customs Enforcement (ICE), U.S. Citizenship and
Immigration Services (USCIS) and other agencies within DHS.
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One key way that AUO has been misused by Border Patrol
managers is to compensate employees in the field for working a
10-hour shift. As noted above, the Border Patrol prefers
deploying three 10-hour shifts of agents in any given day
because it believes this maximizes its ability to patrol the
border in a 24-hour period. The Deputy Special Counsel for
Policy and Congressional Affairs of the OSC, Adam Miles,
testified before this Committee that Border Patrol managers in
Laredo, Texas made a deliberate choice to ``continue with
three, ten-hour shifts per day utilizing AUO to facilitate the
shift changes. The managers insist that employing three, ten-
hour shifts is a more cost-effective approach to securing the
border, even if AUO may not properly be used for routine
activities.''\29\
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\29\See testimony of Adam Miles, Deputy Special Counsel, Policy and
Congressional Affairs, U.S. Office of Special Counsel, ``Border
Security: Examining the Implications of S. 1691, the Border Patrol Pay
Reform Act of 2013,'' hearing before the Senate Committee on Homeland
Security and Governmental Affairs, 113th Cong. (June 9, 2014).
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The OSC referred a total of ten cases to CBP's Office of
Internal Affairs and the DHS Office of the Inspector General
(OIG) alleging misuse of AUO by CBP personnel.\30\ Some of the
allegations received by the OSC, and detailed in this report,
claimed that Border Patrol agents were getting paid AUO for
hours that they were not actually performing work, or for
watching television or surfing the internet. In testimony
before this Committee, Paul L. Hamrick, the Deputy Assistant
Commissioner of the Office of Internal Affairs at the U.S.
Customs and Border Protection noted that his office had
investigated 6 of the 10 cases of AUO abuse identified by the
OSC, and in at least one case had performed covert surveillance
on employees. He noted that, ``[a]lthough the Office of Special
Counsel received complaints that overtime hours compensated
under AUO were not being worked--allegations that, if proven,
could constitute criminal or administrative violations--our
investigations did not substantiate any OSC allegations that
employees had received AUO compensation for hours that were not
worked.''\31\ In other words, these employees were, in fact,
working the additional hours that they were paid for with AUO,
but they should have been compensated for the work they
performed using a different overtime system.\32\ Mr. Hamrick
also stated that his office confirmed that CBP was misusing AUO
in a number of locations, including at the Commissioner's
Situation Room in U.S. Customs and Border Protection's
Headquarters and the Federal Law Enforcement Training Academy
in Artesia, New Mexico.
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\30\One of the cases referred by OSC alleged misuse of AUO by
personnel at the CBP Office of Internal Affairs. That case, and three
others, are being investigated by the OIG.
\31\See testimony of Paul L. Hamrick, Deputy Assistant Commissioner
of the Office of Internal Affairs at the U.S. Customs and Border
Protection, ``Border Security: Examining the Implications of S. 1691,
the Border Patrol Pay Reform Act of 2013,'' hearing before the Senate
Committee on Homeland Security and Governmental Affairs, 113th Cong.
(June 9, 2014).
\32\``Border Security: Examining the Implications of S. 1691, the
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate
Committee on Homeland Security and Governmental Affairs, 113th Cong.
(June 9, 2014). http://www.hsgac.senate.gov/hearings/border-security-
examining-the-implications-of-s-1691-the-border-patrol-agent-pay-
reform-act-of-2013.
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In two cases referred by OSC and substantiated by Internal
Affairs, Border Patrol agents were working alongside other CBP
personnel and performing the same type of work. In these cases,
the Border Patrol agents were receiving AUO but the other CBP
personnel were not. For example, agents in San Ysidro,
California were assigned to work paralegal duties alongside
civilian paralegals, but the agents were regularly provided AUO
while the civilian paralegals did not work overtime. Similarly,
Border Patrol agents working as instructors at DHS training
facilities regularly received AUO, while CBP officers\33\
working at the same facilities did not. The Border Patrol has
argued that their instructors need to work overtime at these
facilities in order to prepare for the 8-hour day of
instruction that trainees receive.\34\ CBP officers at these
facilities told Internal Affairs that they were generally able
to complete their preparatory work without working overtime,
but acknowledged that ``[w]hen it is not possible to complete
all additional instructor duties within an 8-hour day, [CBP
officer] instructors generally complete these types of duties
without compensation because AUO is not available to
them.''\35\
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\33\CBP officers work at ports of entry and are not eligible to
receive AUO.
\34\See testimony of Ronald Vitiello, Deputy Chief of the Border
Patrol, ``Border Security: Examining the Implications of S. 1691, the
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate
Committee on Homeland Security and Governmental Affairs, 113th Cong.
(June 9, 2014).
\35\See written testimony of Adam Miles, Deputy Special Counsel,
Policy and Congressional Affairs U.S. Office of Special Counsel,
``Border Security: Examining the Implications of S. 1691, the Border
Patrol Pay Reform Act of 2013,'' hearing before the Senate Committee on
Homeland Security and Governmental Affairs, 113th Cong. (June 9, 2014).
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In response to this report, DHS undertook a series of
internal reviews. These reviews culminated in a May 23
memorandum issued by Deputy Secretary Alejandro Mayorkas to DHS
components acknowledging that ``it is clear that the Department
is not in compliance with the rules governing AUO.'' The memo
goes on to outline a number of new steps that will have to be
taken by DHS components that use AUO, including:
1. Reviewing and updating the positions that are eligible
for AUO;
2. Improving AUO record-keeping;
3. Systematically reviewing the hours of AUO that are
claimed;
4. Requiring managers to take a more active role in
managing overtime; and
5. Updating the practice of ``excluding'' hours to come
into compliance with regulations.\36\
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\36\Memo from Deputy Secretary Alejandro N. Mayorkas to DHS
components entitled: ``Improving AUO Administration in the Department
of Homeland Security,'' May 23, 2014. Hereafter referenced as ``May 23
AUO Memo.''
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However, as the OSC pointed out in its letter, the misuse
of AUO has been a known problem at DHS generally--and the
Border Patrol specifically--since at least 2008. In response to
the initial OSC complaint in 2008, DHS initiated an interagency
process that culminated in a legislative proposal attached to
the 2012 budget request.\37\ Congress did not act on this
proposal, and CBP continued to misuse AUO.\38\
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\37\Briefing with DHS Office of Legislative Affairs and Customs and
Border Protection, November 21, 2013.
\38\The 2012 legislative proposal would have put Border Patrol
agents on the Law Enforcement Availability Pay (LEAP) system that is
used by criminal investigators across the federal government. LEAP
allows criminal investigators to be compensated for time that they are
``available'' to work, and reflects the uncertain nature of their work.
Criminal investigators work irregular hours and generally need to be
``on-call'', or available, even when they are not working. The LEAP
system was created to reflect these realities, and to compensate them
for the extra hours that they need to work to close a case. LEAP is
easier to manage and would be an improvement over the use of AUO for
CBP. However, CBP believes that the nature of a Border Patrol agent's
work requires them to be present, not available. Securing the border,
by its very nature, requires that agents either be physically working
along the border, or supporting frontline agents at stations,
checkpoints, or headquarters. S. 1691 is an improvement over LEAP
because it would require that Border Patrol agents be provided with an
hour of pay for an hour of work performed.
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S. 1691, THE BORDER PATROL AGENT PAY REFORM ACT OF 2013
S. 1691 would address the problems outlined above by
dramatically simplifying the pay system used by Border Patrol
agents. It would eliminate AUO and FLSA overtime for Border
Patrol agents and create a new pay system that results in more
hours worked by agents, provides more reliable schedules and
paychecks for agents, and saves taxpayers money. According to
the Congressoinal Budget Office, these savings are estimated at
$100 million annually.
The bill has the support of both CBP and the union
representing most Border Patrol agents. At a hearing before
this Committee on June 9, 2014, Border Patrol Deputy Chief
Ronald Vitiello testified that the bill would enable his agency
to better secure the border: ``S. 1691 would replace AUO with 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.'' Additionally, Deputy Chief Vitiello
testified that the bill would result in current Border Patrol
agents working 2.5 million hours more than they do today--or
the equivalent of adding 1,500 agents to its workforce.\39\
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\39\See testimony of Ronald Vitiello, Deputy Chief of the Border
Patrol, ``Border Security: Examining the Implications of S. 1691, the
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate
Committee on Homeland Security and Governmental Affairs, 113th Cong.
(June 9, 2014).
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The Border Patrol Council, which represents Border Patrol
agents, has also been supportive of this bill, despite the fact
that the average Border Patrol agent likely would be paid less
each year under this new pay system. As Brandon Judd, President
of the Border Patrol Council, said in his testimony before the
Committee, ``I want to make it clear that no Border Patrol
agent is happy about the prospect of losing $6,400 per year. .
. . We are sacrificing a lot, but in the end, it will prove to
be a boon for border security, the American public, the agency,
and the agents whom I represent.''\40\
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\40\See testimony of Brandon Judd, President of the National Border
Patrol Council, ``Border Security: Examining the Implications of S.
1691, the Border Patrol Pay Reform Act of 2013,'' hearing before the
Senate Committee on Homeland Security and Governmental Affairs, 113th
Cong. (June 9, 2014).
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Key components of the bill, as reported by the Committee,
include:
No AUO or FLSA. The bill would make Border Patrol
agents ineligible for compensation under AUO or for overtime
pay through the FLSA.
Election. Each year, Border Patrol agents would
select one of three rates of pay--and number of hours--that
they would like to work:
Level 1 rate of pay. Agents would work
100 hours per two-week pay period and receive 125
percent of their basic pay under the GS scale;
Level 2 rate of pay. Agents would work 90
hours over the two-week pay period and receive 112.5
percent of their basic pay under the GS scale;
Basic rate of pay. Agents would work 80
hours over the two-week pay period and receive their
basic pay under the GS scale.
Staffing Assessment. The bill requires the Border
Patrol to undertake a detailed assessment of its operational
requirements and staffing needs at every Border Patrol station
within one year of enactment, and submit it to Congress for
review.
GAO Audit. The bill requires the Government
Accountability Office (GAO) to examine CBP's methodology and
analysis and, within 90 days, submit a report to Congress
indicating whether GAO concurs with CBP's assessment.
Staffing Floor. The bill initially requires that
no more than 10 percent of the agents at any given location be
allowed to work less than 100 hours per two-week pay period,
and authorizes CBP to unilaterally assign agents to work 90 or
100 hours per pay period in order to meet this staffing floor.
This means that if fewer than 90 percent of agents elect to
work 100 hours in a given location, CBP must unilaterally
assign agents to work the extra hours in order to ensure that
90 percent of Border Patrol agents in that location are working
100 hours per pay-period. This will ensure that the Border
Patrol has a stable floor of staffing, allowing managers with a
steady annual base-line of hours to plan border security
operations. The staffing floor initially set by the bill would
result in the average agent working more hours than they have
in recent years, increasing efforts to secure the border by the
equivalent of more than 1,500 agents.
Lowering the Staffing Floor. Based on the results
of the staffing assessment required by the bill, the staffing
floor--the requirement that 90 percent of Border Patrol agents
work 100 hours in a given location--could be lowered at any
location if the assessment shows that the Border Patrol needs
less hours to be worked in order to meet its operational
requirements.
Ensuring Security. The bill authorizes CBP to
unilaterally assign agents to work additional hours if the
security situation along the border necessitates it.
Management and Training Exemption. Border Patrol
agents assigned to work at headquarters, as training
instructors, or in an administrative or fitness instructor
position at any location would initially be assigned to the
Basic Rate of Pay set by the bill--or required to work 80 hours
every two-week pay period. However, if the staffing assessment
required by the bill shows a need for additional hours to be
worked by these agents in order to meet the agency's
operational requirements, CBP would be authorized to allow
agents to elect--or be assigned to work 100 hours or 90 hours
per pay period.
Compensatory Time. The work of securing the
border is highly unpredictable, and there may be weeks when
conditions on the ground necessitate that agents in a given
location work more hours than the amount they initially
elected. Unscheduled overtime worked beyond those hours they
elected (or were assigned) to work would entitle agents to
compensatory time off that could not be cashed out upon
departure or retirement from the Border Patrol. Agents could
not receive overtime pay for these hours. This compensatory
time would be capped at 10 hours per pay period--although a
manager could waive this 10 hour cap for compensatory time per
pay period in order to respond to an emergency. The bill would,
however, set a hard cap of 240 hours in compensatory time that
any agent could earn in a given year.
Scheduled Overtime. The bill would allow for
scheduled overtime in order to give managers the flexibility to
deal with surges in workload that necessitate agents being
scheduled to work an additional shift. Such overtime would be
compensated under the FEPA overtime system, as described above.
The bill directs CBP to limit the use of scheduled overtime.
The Committee expects that the Border Patrol will continue to
minimize the use of scheduled overtime under this bill, much as
it has over the past three years.
Retirement Continuity. The bill, as amended by
the Committee, would require CBP, in consultation with the
Office of Personnel Management, to develop a plan to ensure
that agents are not able to artificially elevate their
retirement annuities by selecting a higher rate of pay than
they have historically once they are within three years of
being eligible to retire. CBP would have the authority to
unilaterally assign agents to rates of pay in order to
implement this plan. GAO would be required to review this plan
and report to Congress concerning whether the plan proposed by
CBP is effective.
III. Legislative History
On November 13, 2013, Senators Tester and McCain introduced
the Border Patrol Pay Reform Act of 2013 (S. 1691). A companion
bill, H.R. 3463, was introduced in the House of Representatives
on the same day. S. 1691 was referred to the Senate Committee
on Homeland Security and Governmental Affairs. Additional co-
sponsors are Senators Heitkamp, Ayotte and Flake.
On January 28, 2014, the Subcommittee on the Efficiency and
Effectiveness of Federal Programs and the Federal Workforce
held a hearing on reported DHS abuses AUO.\41\ The hearing,
entitled ``Examining the Use and Abuse of Administratively
Uncontrollable Overtime at the Department of Homeland
Security,'' examined the instances of AUO abuse raised in OSC's
report, as well as how the DHS and CBP responded to OSC's
findings, including the disciplinary actions taken. Some of the
witnesses also discussed how the Border Patrol Pay Reform Act
of 2013 would help address the concerns raised by the OSC
report and eliminate the use of AUO at the Border Patrol. The
Special Counsel, Carolyn Lerner, Deputy Chief of the U.S.
Border Patrol, Ronald Vitiello, DHS's Chief Human Capital
Officer, Catherine Emerson, and President of the National
Border Patrol Council, Brandon Judd, testified at the hearing.
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\41\``Examining the Use and Abuse of Administratively
Uncontrollable Overtime at the Department of Homeland Security,''
hearing before the Subcommittee on the Efficiency and Effectiveness of
Federal Programs and the Federal Workforce of the Senate Committee on
Homeland Security and Governmental Affairs, 113th Cong. (January 28,
2014). See http://www. hsgac.senate.gov/subcommittees/fpfw/hearings/
examining-the-use-and-abuse-of-administratively-uncontrollable-
overtime-at-the-department-of-homeland-security.
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On June 9, 2014, the Committee held a hearing on the bill,
entitled, ``Border Security: Examining the Implications of S.
1691, the Border Patrol Pay Reform Act of 2013.''\42\ The
hearing focused on the impact the bill would have on CBP's
ability to secure the border, manage its workforce, and make
the most effective use of taxpayer resources. The Committee
heard testimony from Deputy Chief of the U.S. Border Patrol,
Ronald Vitiello, President of the National Border Patrol
Council, Brandon Judd, Deputy Assistant Commissioner of the
Office of Internal Affairs at U.S. Customs and Border
Protection, Paul L. Hamrick and OSC's Deputy Special Counsel
for Policy and Congressional Affairs, Adam Miles.
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\42\``Border Security: Examining the Implications of S. 1691, the
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate
Committee on Homeland Security and Governmental Affairs, 113th Cong.
(June 9, 2014). See http://www.hsgac.senate.gov/hearings/border-
security-examining-the-implications-of-s-1691-the-border-patrol-agent-
pay-reform-act-of-2013.
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The Committee considered S. 1691 at a business meeting on
June 25, 2014.
Senators Tester and McCain offered a substitute amendment
that made a number of changes suggested by DHS and the Office
of Personnel Management. These changes included a requirement
that CBP perform a staffing assessment, which would be used to
determine whether CBP could deviate in either direction from
the bill's baseline requirement that 90 percent of agents at a
location work 100 hours per pay period at the level 1 Border
Patrol rate of pay; a requirement that CBP implement a plan to
ensure agents cannot artificially inflate their retirement
annuities through the election process in the bill; an
exemption for Headquarters and training facilities from the
bill's requirement that 90 percent of agents work 100 hours per
pay period at the level 1 Border Patrol rate of pay; and a
requirement that CBP try to limit or avoid the use of scheduled
overtime by Border Patrol agents. The substitute amendment was
adopted by voice vote, with Senators Carper, Levin, Pryor,
McCaskill, Tester, Heitkamp, Coburn, McCain, Johnson, and
Portman present.
Senator Coburn offered an amendment that would have
required that CBP employees who spend 50 percent or more of
their work hours serving as a union representative in
negotiations and representing employees in personnel disputes--
known as ``official time''\43\--be assigned to work 80 hours
per pay period at the basic Border Patrol rate of pay. This
amendment was not adopted by a roll call vote of 6-9. Senators
Coburn, McCain, Johnson, and Portman voted in favor of the
amendment, and Senators Carper, Levin, Pryor, McCaskill, Tester
and Heitkamp voted against the amendment. In addition, Senators
Enzi and Ayotte voted in favor of the amendment by proxy, and
Senators Landrieu, Begich and Baldwin voted against the
amendment by proxy. Senators present for the vote were Senators
Carper, Levin, Pryor, McCaskill, Tester, Heitkamp, Coburn,
McCain, Johnson, and Portman.
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\43\Official time is authorized under 5 U.S.C.Sec. 7131.
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Senator Coburn offered another amendment that was modified
by a second degree amendment offered by Senators Tester, McCain
and Heitkamp. As originally offered, the amendment would have
required that all Border Patrol agents assigned to
Headquarters, working as training instructors at a training
facility, working in an administrative position, or working as
a fitness instructor be assigned to work 80 hours per pay
period at the basic Border Patrol rate of pay. Senators Tester,
McCain and Heitkamp offered a second degree amendment that
allowed the Border Patrol more flexibility to have those Border
Patrol agents work 90 or 100 hours and receive the level 1 or
level 2 Border Patrol rate of pay if the staffing assessment
required by the bill showed additional hours to be necessary to
fulfill operational requirements. The Tester, McCain, Heitkamp
second degree amendment was adopted by voice vote, as was the
Coburn amendment, as modified by the second degree amendment.
Senators present for both votes were Senators Carper, Levin,
Pryor, McCaskill, Tester, Heitkamp, Coburn, McCain, Johnson and
Portman.
The Committee ordered the bill, as amended, favorably
reported by a roll call vote of 9-0. Senators Carper, Levin,
Pryor, McCaskill, Tester, Heitkamp, McCain, Johnson, and
Portman voted in favor of the bill, while Senator Coburn voted
present. Senators Landrieu, Begich, Baldwin, Enzi and Ayotte
asked to be recorded as voting in favor of the bill by proxy,
while Senator Paul asked to be recorded against the bill by
proxy.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1--This section establishes the title of the
legislation as ``The Border Patrol agent Pay Reform Act of
2014''.
Section 2--Border Patrol Rate of Pay
(a) Purpose--States that the purpose of this bill is to
provide a pay system for Border Patrol agents that acknowledges
that agents routinely work beyond 40 hours per week and ensures
that Customs and Border Protection has the ability to schedule
work to fit operational needs.
(b) Rates of Pay--inserts a new section 5550 after 5 U.S.C.
Sec. 5549:
Sec. 5550 (a) Definitions
(a)(1) defines the term ``basic Border Patrol
pay'' as the hourly rate of basic pay based on a 40 hour work
week.
(a)(2) defines the term ``Border Patrol agent.''
(a)(3) defines the term ``level 1 Border Patrol
rate of pay'' as an hourly rate 1.25 times an agent's basic
hourly rate of pay.
(a)(4) defines the term ``level 2 Border Patrol
rate of pay'' as an hourly rate 1.125 times an agent's basic
hourly rate of pay.
(a)(5) defines the term ``work period'' as a 14-
day bi-weekly pay period.
Sec. 5550 (b) Receipt of Border Patrol Rate of Pay
(b)(1) Voluntary Election
(b)(1)(A) Voluntary Election. On an annual basis
Border Patrol agents will elect whether to be assigned to
receive the level 1, level 2 or basic Border Patrol rate of
pay. An agent has 30 days to elect. If the agent elects the
basic rate of pay, CBP can still assign overtime as needed.
(b)(1)(B) Regulations. OPM shall promulgate
procedures for the election process.
(b)(1)(C) Information Regarding Election. Customs
and Border Protection must provide information to the agents
regarding each type of pay that they can elect to be assigned.
(b)(1)(D) Assignment in Lieu of Election. If an
agent fails to elect a pay level within 30 days, the agent is
automatically assigned to the level 1 rate of pay. A Border
Patrol agent who is assigned a patrol dog will be assigned to
the level 1 rate of pay. CBP has the authority to assign an
agent to the basic rate of pay if CBP thinks the agent is
unable, for any reason, to work the additional hours, and may
also assign agents to level 1 or level 2 to ensure that at
least 90 percent of agents, or the floor indicated by the
staffing plan, are at the level 1 or level 2 rate of pay.
Border Patrol agents at Headquarters, working as training
instructors at a training facility, working in an
administrative position, or working as a fitness instructor
will be assigned to the basic Border Patrol rate of pay unless
the staffing analysis CBP is required to conduct indicates
additional hours by those agents are necessary to fulfill
operational requirements.
(b)(1)(E) Flexibility. No more than 10 percent of
the agents stationed at a particular CBP duty station can be
assigned to the basic Border Patrol rate of pay. CBP should
take whatever action is necessary to ensure these results.
However, if the staffing analysis required by the bill
determines that less than 10 percent of agents should be
assigned to the basic Border Patrol rate of pay in order to
meet operational requirements, CBP can waive the requirement
that not more than 10 percent of agents be assigned to the
basic Border Patrol rate of pay for that duty station. Further,
this 10 percent threshold would not apply at headquarters or
training locations.
(b)(1)(F) Canine Care. If an agent is both
assigned to provide care for a patrol dog and to the level 1
rate of pay, that rate of pay covers all of the work the agent
must do to care for his or her patrol dog. Each hour spent
caring for the dog is counted as 1 hour of scheduled work on
each regular workday.
(b)(1)(G) Pay Assignment Continuity.
(i) Since the amount of a federal employee's
retirement annuity is calculated based on the highest
three years of the employee's salary, CBP must develop
and implement a plan within one year of enactment to
ensure an agent is unable to artificially enhance his
or her retirement pay by electing level 1 pay during
his or her last three years of service when he or she
had previously consistently worked at a lower level of
pay.
(ii) CBP must take the actions necessary to
implement the plan.
(iii) CBP must submit the plan to the appropriate
Congressional committees.
(iv) Within six months of CBP issuing this plan, GAO
is required to submit a report on the effectiveness of
the plan to the appropriate Congressional committees.
(v) ``Appropriate committees of Congress'' means the
Senate Committee on Homeland Security and Governmental
Affairs and Committee on Appropriations, and the House
Committee on Homeland Security, Committee on Oversight
and Government Reform, and Committee on Appropriations.
(vi) Clarifies that CBP would retain the ability to
assign Border Patrol agents to respond to operational
requirements.
(b)(2) Level 1 Border Patrol Rate of Pay
(b)(2)(A) Agents electing the level 1 Border
Patrol rate of pay will be compensated at 1.25 times the
agent's hourly rate of pay for the 10 shifts they are assigned
to work each pay period. Under this system, an agent is
scheduled to work 5 days per week, and each shift lasts 10
hours--or 8 hours regular time plus 2 additional hours of
scheduled overtime per day. Agents choosing the level 1 Border
Patrol rate of pay will thus work 100 hours per pay period.
(b)(2)(B) The level 1 Border Patrol rate of pay
compensates agents for working the 8 hours of regular time each
work day at 1.25 times their base pay for these 8 hours.
(b)(2)(C) Agents electing the level 1 Border
Patrol rate of pay will also be scheduled to work 2 hours of
overtime per work day. The agent shall not receive any
additional compensation under this section nor compensatory
time for these additional work hours.
(b)(2)(D) If an agent being paid at level 1
Border Patrol rate of pay works over 100 hours in a two-week
pay period, he or she will receive compensatory time off for
unscheduled overtime or pay at the overtime hourly rate for
scheduled overtime.
(b)(2)(E) If an agent is absent from work during
regular time, he or she will be charged the corresponding
amount of paid leave, compensatory time off, or other paid time
off.
(b)(2)(F) If an agent is absent during scheduled
overtime, he or she will accrue an obligation to perform other
overtime work for each hour he or she is absent. The intent of
this section is not to penalize Border Patrol agents who can
otherwise use allowable leave to cover absences during
regularly scheduled workdays, but rather to provide a mechanism
for allowing agents who must take unanticipated leave in the
middle of a regularly scheduled workday to make up the overtime
hours that they did not work that day.
(b)(2)(G) When an agent who is paid at the level
1 Border Patrol rate of pay is assigned to work that is
classified as advanced training, the agent will be paid at the
level 1 rate for the first 60 days of advanced training in a
calendar year. If an agent's advanced training exceeds 60 days,
the days beyond 60 will be paid at the basic Border Patrol rate
of pay.
(b)(3) Level 2 Border Patrol Rate of Pay
(b)(3)(A) Agents electing the level 2 Border
Patrol rate of pay will be compensated at 1.125 times the
agent's hourly rate of pay for the ten shifts they are assigned
to work each pay period. Under this system, an agent is
scheduled to work 5 days per week, and each shift lasts 9
hours--or 8 hours regular time plus 1 additional hour of
scheduled overtime per day. Agents choosing the level 2 Border
Patrol rate of pay will thus work 90 hours per pay period.
(b)(3)(B) The level 2 Border Patrol rate of pay
compensates agents for working the 8 hours of regular time each
work day at 1.125 times their base pay for these 8 hours.
(b)(3)(C) Agents electing the level 2 Border
Patrol rate of pay will also be scheduled to work an additional
hour of overtime per work day. The agent shall not receive any
additional compensation under this section nor compensatory
time for these work hours.
(b)(3)(D) If an agent works over 90 hours in a
pay period, he or she will receive compensatory time off for
unscheduled overtime or pay at the overtime hourly rate for
scheduled overtime.
(b)(3)(E) If an agent is absent from work during
regular time, he or she will be charged the corresponding
amount of paid leave, compensatory time off, or other paid time
off.
(b)(3)(F) If an agent is absent during scheduled
overtime, he or she will accrue an obligation to perform other
overtime work for each hour he or she is absent. The intent of
this section is not to penalize Border Patrol agents who can
otherwise use allowable leave to cover absences during
regularly scheduled workdays, but rather to provide a mechanism
for allowing agents who must take unanticipated leave in the
middle of a regularly scheduled workday to make up the overtime
hours that they did not work that day.
(b)(3)(G) When an agent who is paid at the level
2 Border Patrol rate of pay is assigned to work that is
classified as advanced training, the agent will be paid at the
level 2 rate for the first 60 days of advanced training in a
calendar year. If an agent's advanced training exceeds 60 days,
the days beyond 60 will be paid at the basic Border Patrol rate
of pay.
(b)(4) Basic Border Patrol Rate of Pay
(b)(4)(A) For the basic Border Patrol rate of
pay, an agent is scheduled to work 5 days per week and 8 hours
of regular time per workday.
(b)(4)(B) If an agent at the basic rate of pay
works over 80 hours during a two-week pay period, he or she
will receive compensatory time off for unscheduled overtime or
pay at the overtime hourly rate for additional scheduled
overtime.
Sec. 5550 (c) Eligibility for Other Premium Pay
(c)(1) Border Patrol agents generally will
continue to be eligible to receive premium pay for night
shifts, holiday and Sunday shifts, except as described below.
(c)(1)(A) Border Patrol agents are not eligible
to receive premium pay for night, Sunday, or holiday work for
hours of regularly scheduled overtime work covered by the level
1 or level 2 Border Patrol rate of pay.
(c)(1)(B) Any additional overtime worked on
Sundays, holidays or at night will be compensated with
compensatory time off for unscheduled overtime and pay at the
overtime hourly rate for additional scheduled overtime.
(c)(2/3) Border Patrol agents are not eligible
for any other form of premium pay, except hazardous duty pay.
Sec. 5550 (d) Treatment of Basic Pay
(d)(1) Level 1 and level 2 pay will be treated as
basic pay for calculating retirement, worker's compensation and
severance, as well as any other purpose that the Office of
Personnel Management may prescribe.
(d)(2) Level 1 and level 2 pay will not be
treated as part of basic pay for the purposes of calculating
overtime pay, night pay, Sunday pay, or holiday pay.
Sec. 5550 (e) Travel Time
Travel time to and from an agent's home and duty
station is not considered hours of work under any provision of
law.
Sec. 5550 (f) Leave Without Pay and Substitution of
Hours\44\
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\44\For information on leave without pay generally, see http://
www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/leave-without-pay/, last visited August 13, 2014.
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(f)(1) Regular Time. In order to be compensated
for a period of leave without pay during an agent's regular
work time, and within a particular pay period, an agent may
substitute an equal period of work outside of the agent's
regular time paid at the regular rate, but those hours cannot
be credited as overtime hours for any purpose.
(f)(2) Overtime Work. In order to be compensated
for a period of leave without pay during regularly scheduled
overtime within a particular pay period, he or she must
complete an equal period of work in the same pay period. This
additional work will be substituted and credited as scheduled
overtime. It cannot count as overtime hours under any other
provision of law.
(f)(3) Application of Compensatory Time. When an
agent wishes to substitute work hours for a period of leave
without pay, if an agent does not have enough additional work
within a work period to substitute for his or her hours of
absence during scheduled overtime, any accrued compensatory
time off will be applied to make up for the hours of
obligation.
(f)(4) Insufficient Hours. If an agent wishes to
substitute work hours for a period of leave without pay and
still owes scheduled overtime hours after applying paragraphs
(2) and (3), any additional work in subsequent pay periods that
would otherwise be credited as compensatory time, will be
applied towards the owed hours until the agent's obligation is
satisfied.
Sec. 5550 (g) Authority To Require Overtime Work
Nothing in this section shall be construed to
limit CBP's authority to require agents to work overtime in
accordance with Agency needs, including in the event of a local
or national emergency.
(c) Overtime Work
(g)(1) If an agent is assigned the level 1 rate
of pay, and he or she works over 100 hours in a pay period, the
additional hours will be overtime work. The agent will receive
pay at the overtime hourly rate of pay for hours that are
officially ordered or approved in advance. For unscheduled
overtime work up to 10 hours per pay period and 240 hours per
year, the agent will receive compensatory time off.
(g)(2) If an agent is assigned the level 2 rate
of pay, and he or she works over 90 hours in a pay period, the
additional hours will be overtime work. The agent will receive
pay at the overtime hourly rate of pay for hours that are
officially ordered or approved in advance. For unscheduled
overtime work up to 10 hours per pay period and 240 hours per
year, the agent will receive compensatory time off.
(g)(3) If an agent is assigned the basic rate of
pay, and he or she works over 80 hours in a pay period, the
additional hours will be overtime work. The agent will receive
pay at the overtime hourly rate of pay for hours that are
officially ordered or approved in advance. For unscheduled
overtime work up to 10 hours per pay period and 240 hours per
year, the agent will receive compensatory time off.
(g)(4)(A) Except when the limit is waived in
writing by CBP, during a pay period, an agent cannot earn more
than 10 hours of compensatory time off.
(g)(4)(B) At the agent's request, CBP can waive
the 10 hour limit per pay period for individual agents for
hours of irregular or occasional overtime work. Such a request
must be approved in writing in advance of the work by a
manager. If an agent's waiver request is denied, he or she
cannot be ordered to perform the associated overtime work.
(g)(5) An agent cannot earn more than 240 hours
of compensatory time during a leave year and any accrued
compensatory time expires at the end of the 26th pay period
after the pay period in which it was earned. An agent must use
one hour of compensatory time for each hour of regular time he
or she does not work. A Border Patrol agent is not entitled to
any cash value and will not receive credit toward the
computation of his or her annuity for compensatory time off
earned under section 5550. An agent cannot receive compensatory
time off if its value would cause the agent's total premium pay
to exceed the statutory limits.\45\
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\45\See 5 U.S.C. Sec. 5547.
(c)(2) Minimization of Overtime
U.S. Customs and Border Protection shall, to the
maximum extent practicable, avoid the use of scheduled overtime
work by Border Patrol agents.
(d) Retirement--This section amends 5 U.S.C. Sec. 8331(3)
to include the amount of supplemental pay from the level 1 and
level 2 Border Patrol rate of pay as part of agents' basic pay
for the purposes of calculating their retirement pay.
(e) Comprehensive Staffing Analysis
(e)(1) CBP Analysis--Not later than one year
after the date of enactment of this Act, CBP shall conduct a
comprehensive analysis examining the staffing requirements of
the U.S. Border Patrol and reporting on how to most effectively
meet its operational requirements at each Border Patrol duty
station. The analysis must include estimates of the cost of the
staffing requirements at each Border Patrol duty station. CBP
shall submit the report to the Government Accountability Office
(GAO).
(e)(2) Independent Validator--Not later than 90
days after GAO receives CBP's report GAO shall submit to the
appropriate committees of Congress a report examining CBP's
methodology and analysis; and indicating whether GAO concurs
with CBP's findings.
(e)(3) Definition--in this subsection, the term
``appropriate committees of Congress'' means the Committee on
Homeland Security and Governmental Affairs and the Committee on
Appropriations of the Senate; and the Committee on 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--
(f)(1) limit CBP's right to assign both scheduled
and unscheduled work to a Border Patrol agent 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;
(f)(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
(f)(3) exempt a Border Patrol agent from any
limitations on pay, earnings, or compensation, including the
limitations on premium pay.
(g) Technical and Conforming Amendments. This subsection
makes technical and conforming amendments.
(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.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
July 30, 2014.
Hon. Tom Carper,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1691, the Border
Patrol Agent Pay Reform Act of 2014.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1691--Border Patrol Agent Pay Reform Act of 2014
S. 1691 would establish a new system for determining
overtime compensation for agents of the border patrol in U.S.
Customs and Border Protection (CBP). CBO estimates that
implementing S. 1691 could save about $100 million annually,
assuming future appropriations are reduced consistent with the
bill's provisions. Enacting the legislation would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
Under current law, border patrol agents are eligible for
Administratively Uncontrollable Overtime (AUO), which
compensates employees for unscheduled but necessary overtime.
Generally, the agents themselves are responsible for
identifying circumstances that require them to remain on duty
beyond regular hours. Under AUO, most agents earn up to 25
percent of their base salary for time worked in excess of 80
hours in a pay period. Agents may earn additional overtime
compensation required by the Fair Labor Standards Act (FLSA)
and the Federal Employee Pay Act (FEPA) that is generally paid
at 50 percent above the regular rate. Total overtime costs for
border patrol agents, including pay and benefits, was $627
million in 2013, while total compensation costs for those
agents was $3.1 billion in 2013.
S. 1691 would replace AUO with three options that agents
would choose from: (1) work 100 hours each pay period and
increase base salary by 25 percent; (2) work 90 hours each pay
period and increase base salary by 12.5 percent; or (3) work no
overtime. Agents would no longer be eligible for overtime pay
under the FLSA. In addition, the legislation would provide
compensatory time off for unscheduled overtime above 80, 90, or
100 hours per pay period, depending on the option chosen. That
compensatory time would be limited to 240 hours a year and
could not be redeemed for monetary compensation.
The bill would generally require 90 percent of border
patrol agents to work 100 hours each pay period, while CBP
expects that most remaining agents would work 90 hours per pay
period. According to the agency, if the overtime pay system in
S. 1691 had been implemented for fiscal year 2013, then total
overtime costs would have been about $525 million, or about
$100 million lower than the actual overtime expense for that
year. Costs would decline under S. 1691 mostly because border
patrol agents would no longer receive compensation required
under the FLSA.
Budgetary savings under S. 1691 could be smaller or larger
than CBO estimates. Potential savings in future years could be
influenced by unanticipated incidents at U.S. borders that
cause overtime use to be more or less than has occurred in the
past. In addition, the CBP could curtail unnecessary use of AOU
under current law or allow it to be used to a greater extent
than it has been used in the past. Finally, under the bill, CBP
would have the discretion to allow agents to earn FEPA overtime
pay in addition to the options to increase base pay described
earlier. This estimate assumes CBP would not approve the use of
FEPA overtime pay under the bill beyond a few million dollars
expended for that purpose in 2013.
S. 1691 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VII. Changes in Existing Statute Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1691, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE V--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
CHAPTER 55--PAY ADMINISTRATION
* * * * * * *
Subchapter V--Premium Pay
* * * * * * *
Sec. 5542--Overtime rates; computation
(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;
(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.
* * * * * * *
Sec. 5547. Limitation on premium pay
(a) An employee may be paid premium pay under sections
5542, 5545 (a), (b), and (c), 5545a, [and] 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) * * *
* * * * * * *
(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, 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 2013 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 2013, 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
2013, and in consultation with the
Office of Personnel Management, U.S.
Customs and Border Protection shall
develop and implement a plan to ensure,
to the greatest extent practicable,
that the assignment of a Border Patrol
agent under this section during the 3
years of service before the Border
Patrol agent becomes eligible for
immediate retirement are consistent
with the average Border Patrol rate of
pay level to which the Border Patrol
agent has been assigned during the
course of the career of the Border
Patrol agent.
(ii) Implementation.--Notwithstanding
any other provision of law, U.S.
Customs and Border Protection may take
such action as is necessary, including
the unilateral assignment of Border
Patrol agents to the level 1 Border
Patrol rate of pay, the level 2 Border
Patrol rate of pay, or the basic Border
Patrol rate of pay, to implement the
plan developed under this subparagraph.
(iii) Reporting.--U.S. Customs and
Border Protection shall submit the plan
developed under clause (i) to the
appropriate committees of Congress.
(iv) GAO review.--Not later than 6
months after U.S. Customs and Border
Protection issues the plan required
under clause (i), the Comptroller
General of the United States shall
submit to the appropriate committees of
Congress a report on the effectiveness
of the plan in ensuring that Border
Patrol agents are not able to
artificially enhance their retirement
annuities.
(v) Definition.--In this
subparagraph, the term `appropriate
committees of Congress' means--
(I) the Committee on Homeland
Security and Governmental
Affairs and the Committee on
Appropriations of the Senate;
and
(II) the Committee on
Homeland Security, the
Committee on Oversight and
Government Reform, and the
Committee on Appropriations of
the House of Representatives.
(vi) Rule of construction.--Nothing
in this subparagraph shall be construed
to limit the ability of U.S. Customs
and Border Protection to assign Border
Patrol agents to Border Patrol rates of
pay as necessary to meet operational
requirements.
(2) Level 1 border patrol rate of pay.--For a Border
Patrol agent who is assigned to the level 1 Border
Patrol rate of pay--
(A) the Border Patrol agent shall have a
regular tour of duty consisting of 5 workdays
per week with--
(i) 8 hours of regular time per
workday, which may be interrupted by an
unpaid off-duty meal break; and
(ii) 2 additional hours of scheduled
overtime during each day the agent
performs work under clause (i);
(B) for paid hours of regular time described
in subparagraph (A)(i), the Border Patrol agent
shall receive pay at the level 1 Border Patrol
rate of pay;
(C) compensation for the hours of regularly
scheduled overtime work described in
subparagraph (A)(ii) is provided indirectly
through the 25 percent supplement within the
level 1 Border Patrol rate of pay, and the
Border Patrol agent may not receive for such
hours--
(i) any compensation in addition to
the compensation under subparagraph (B)
under this section or any other
provision of law; or
(ii) any compensatory time off;
(D) the Border Patrol agent shall receive
compensatory time off or pay at the overtime
hourly rate of pay for hours of work in excess
of 100 hours during a work period, as
determined in accordance with section 5542(g);
(E) the Border Patrol agent shall be charged
corresponding amounts of paid leave,
compensatory time off, or other paid time off
for each hour (or part thereof) the agent is
absent from work during regular time (except
that full days off for military leave shall be
charged when required);
(F) if the Border Patrol agent is absent
during scheduled overtime described in
subparagraph (A)(ii)--
(i) the Border Patrol agent shall
accrue an obligation to perform other
overtime work for each hour (or part
thereof) the Border Patrol agency is
absent; and
(ii) any overtime work applied toward
the obligation under clause (i) shall
not be credited as overtime work under
any other provision of law; and
(G) for the purposes of advanced training,
the Border Patrol agent--
(i) shall be paid at the level 1
Border Patrol rate of pay for the first
60 days of advanced training in a
calendar year; and
(ii) for any advanced training in
addition to the advanced training
described in clause (i), shall be paid
at the basic Border Patrol rate of pay.
(3) Level 2 border patrol rate of pay.--For a Border
Patrol agent who is assigned to the level 2 Border
Patrol rate of pay--
(A) the Border Patrol agent shall have a
regular tour of duty consisting of 5 workdays
per week with--
(i) 8 hours of regular time per
workday, which may be interrupted by an
unpaid off-duty meal break; and
(ii) 1 additional hour of scheduled
overtime during each day the agent
performs work under clause (i);
(B) for paid hours of regular time described
in subparagraph (A)(i), the Border Patrol agent
shall receive pay at the level 2 Border Patrol
rate of pay;
(C) compensation for the hours of regularly
scheduled overtime work described in
subparagraph (A)(ii) is provided indirectly
through the 12.5 percent supplement within the
level 2 Border Patrol rate of pay, and the
Border Patrol agent may not receive for such
hours--
(i) any compensation in addition to
the compensation under subparagraph (B)
under this section or any other
provision of law; or
(ii) any compensatory time off;
(D) the Border Patrol agent shall receive
compensatory time off or pay at the overtime
hourly rate of pay for hours of work in excess
of 90 hours during a work period, as determined
in accordance with section 5542(g);
(E) the Border Patrol agent shall be charged
corresponding amounts of paid leave,
compensatory time off, or other paid time off
for each hour (or part thereof) the agent is
excused from work during regular time (except
that full days off for military leave shall be
charged when required);
(F) if the Border Patrol agent is absent
during scheduled overtime described in
subparagraph (A)(ii)--
(i) the Border Patrol agent shall
accrue an obligation to perform other
overtime work for each hour (or part
thereof) the Border Patrol agency is
absent; and
(ii) any overtime work applied toward
the obligation under clause (i) shall
not be credited as overtime work under
any other provision of law; and
(G) for the purposes of advanced training,
the Border Patrol agent--
(i) shall be paid at the level 2
Border Patrol rate of pay for the first
60 days of advanced training in a
calendar year; and
(ii) for any advanced training in
addition to the advanced training
described in clause (i), shall be paid
at the basic Border Patrol rate of pay.
(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.
CHAPTER 83--RETIREMENT
* * * * * * *
Subchapter 3--Civil Service Retirement
* * * * * * *
Sec. 8331--Definitions
(1) * * *
(2) * * *
(3) ``basic pay'' includes--
(A) * * *
* * * * * * *
(B) 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; [and]
(C) any amount received under section 5948 (relating
to physicians comparability allowances); and
(D) 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;
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 (H)] 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) * * *
* * * * * * *
TITLE XXIX--LABOR
* * * * * * *
CHAPTER 8--FAIR LABOR STANDARDS
* * * * * * *
Sec. 213--Exemptions
(a) Minimum Wage and Maximum Hour Requirements
The provisions of sections 206 (except subsection (d) in
the case of paragraph (1) of this subsection) and 207 of this
title shall not apply with respect to--
(1) * * *
* * * * * * *
(16) a criminal investigator who is paid availability
pay under section 5545a of title 5; [or]
(17) any employee who is a computer systems analyst,
computer programmer, software engineer, or other
similarly skilled worker, whose primary duty is--
(A) the application of systems analysis
techniques and procedures, including consulting
with users, to determine hardware, software, or
system functional specifications;
(B) the design, development, documentation,
analysis, creation, testing, or modification of
computer systems or programs, including
prototypes, based on and related to user or
system design specifications;
(C) the design, documentation, testing,
creation, or modification of computer programs
related to machine operating systems; or
(D) a combination of duties described in
subparagraphs (A), (B), and (C) the performance
of which requires the same level of skills, and
who, in the case of an employee who is compensated on
an hourly basis, is compensated at a rate of not less
than $27.63 an hour[.]; or
(18) any employee who is a Border Patrol agent, as
defined in section 5550(a) of title 5, United States
Code.