[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3463 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 3463
To amend title 5, United States Code, to ensure proper manpower on the
United States border and to provide for reforms to rates of pay for
Border Patrol agents.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 13, 2013
Mr. Chaffetz (for himself, Mrs. Miller of Michigan, Mr. Farenthold, Mr.
O'Rourke, Mr. Barber, and Ms. Jackson Lee) introduced the following
bill; which was referred to the Committee on Oversight and Government
Reform
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to ensure proper manpower on the
United States border and to provide for reforms to rates of pay for
Border Patrol agents.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Patrol Pay Reform Act of
2013''.
SEC. 2. BORDER PATROL RATE OF PAY.
(a) Purpose.--The purposes of this section are--
(1) to strengthen the U.S. Customs and Border Protection
and to ensure that Border Patrol agents are sufficiently ready
to conduct necessary work and will perform overtime hours in
excess of a 40-hour workweek based on the needs of the
employing agency; and
(2) to ensure that U.S. Customs and Border Protection has
the flexibility to cover shift changes and retains the right to
assign scheduled and unscheduled work for mission requirements
and planning based on operational need.
(b) Rates of Pay.--Subchapter V of chapter 55 of title 5, United
States Code, is amended by inserting after section 5549 the following:
``Sec. 5550. Border patrol rate of pay
``(a) Definitions.--In this section--
``(1) the term `available to work', as used with respect to
a Border Patrol agent, means that such agent is generally and
reasonably accessible by U.S. Customs and Border Protection to
perform unscheduled duty based on the needs of U.S. Customs and
Border Protection;
``(2) the term `Border Patrol agent' means an individual
who is performing functions included under position
classification series 1896 (Border Patrol Enforcement) of the
Office of Personnel Management, or any successor thereto,
including, in the case of an individual performing the
aforementioned functions, while such individual is performing
covered border patrol activities;
``(3) the term `covered border patrol activities', as used
with respect to a Border Patrol agent, means--
``(A) detecting and preventing illegal entry and
smuggling of aliens, commercial goods, narcotics,
weapons, or contraband into the United States;
``(B) arresting individuals suspected of conduct
described in subparagraph (A);
``(C) attending training authorized by U.S. Customs
and Border Protection;
``(D) being on approved annual, sick, or
administrative leave;
``(E) being on ordered travel status;
``(F) being on official time, within the meaning of
section 7131;
``(G) being on excused absence with pay for
relocation purposes;
``(H) being on light duty due to injury or
disability;
``(I) performing administrative duties or mission
critical work assignments while maintaining law
enforcement authority;
``(J) caring for the canine assigned to the Border
Patrol agent, which may not exceed 1 hour per day; or
``(K) engaging in an activity similar to an
activity described in any of the preceding
subparagraphs while temporarily away from the regular
duty assignment of the Border Patrol agent;
``(4) the term `level 1 border patrol rate of pay', as used
with respect to a Border Patrol agent, means the rate equal to
1.25 times the hourly rate of basic pay otherwise applicable to
such agent;
``(5) the term `level 2 border patrol rate of pay', as used
with respect to a Border Patrol agent, means the rate equal to
1.125 times the hourly rate of basic pay otherwise applicable
to such agent; and
``(6) 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 as to whether such agent shall, for
such year--
``(i) be assigned to the level 1 border
patrol rate of pay;
``(ii) be assigned to the level 2 border
patrol rate of pay; or
``(iii) decline both the level 1 and the
level 2 border patrol rates of pay.
``(B) Procedures.--The Director of the Office of
Personnel Management shall establish procedures for an
election under subparagraph (A).
``(C) Information regarding election.--Not later
than 60 days before the first day of each year
beginning after the date of the 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) Failure to elect.--A Border Patrol agent who
fails to make a timely election under subparagraph (A)
shall be deemed to have made an election under clause
(i) thereof.
``(E) Sense of congress.--It is the sense of
Congress that U.S. Customs and Border Protection should
take such action as is necessary to ensure that not
more than 10 percent of the Border Patrol agents
stationed at a location decline to be assigned to the
level 1 border patrol rate of pay or the level 2 border
patrol rate of pay.
``(2) Level 1 border patrol rate of pay.--For a Border
Patrol agent who has in effect an election under paragraph
(1)(A)(i)--
``(A) the Border Patrol agent shall be scheduled to
work for 5 days per week--
``(i) 8 hours of regular time per day; and
``(ii) 2 additional hours of scheduled
overtime on each day such agent is scheduled to
work under clause (i);
``(B) for the hours of regular time work described
in subparagraph (A)(i), the Border Patrol agent shall
receive pay at the level 1 border patrol rate of pay;
``(C) for the hours of regularly scheduled overtime
work described in subparagraph (A)(ii), the Border
Patrol agent shall not receive--
``(i) additional compensation under this
section or any other provision of law; or
``(ii) compensatory time off;
``(D) any hours during which the Border Patrol
agent is available to work during a work period shall
be included in the hours of regular time or regularly
scheduled overtime scheduled under subparagraph (A);
``(E) 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(a)(7); and
``(F) the Border Patrol agent shall be charged
leave in increments of 8 hours for 1 shift of leave,
regardless of the length of the shift.
``(3) Level 2 border patrol rate of pay.--For a Border
Patrol agent who has in effect an election under paragraph
(1)(A)(ii)--
``(A) the Border Patrol agent shall be scheduled to
work for 5 days per week--
``(i) 8 hours of regular time per day; and
``(ii) 1 additional hour of scheduled
overtime during on each day such agent is
scheduled to work under clause (i);
``(B) for the hours of regular time work described
in subparagraph (A)(i), the Border Patrol agent shall
receive pay at the level 2 border patrol rate of pay;
``(C) for the hours of regularly scheduled overtime
work described in subparagraph (A)(ii), the Border
Patrol agent shall not receive--
``(i) additional compensation under this
section or any other provision of law; or
``(ii) compensatory time off;
``(D) any hours during which the Border Patrol
agent is available to work during a work period shall
be included in the hours of regular time or regularly
scheduled overtime scheduled under subparagraph (A);
``(E) 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(a)(7); and
``(F) the Border Patrol agent shall be charged
leave in increments of 8 hours for 1 shift of leave,
regardless of the length of the shift.
``(4) Basic border patrol rate of pay.--For a Border Patrol
agent who has in effect an election under paragraph
(1)(A)(iii)--
``(A) the Border Patrol agent shall be scheduled to
work 8 hours of regular time per day, 5 days per week;
``(B) any hours during which the Border Patrol
agent is available to work during a work period shall
be included in the hours of regular time scheduled
under subparagraph (A); and
``(C) 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(a)(7).
``(c) Eligibility for Other Premium Pay.--A Border Patrol agent--
``(1) shall receive premium pay for night work in
accordance with subsections (a) and (b) of section 5545 and
Sunday and holiday pay in accordance with section 5546, without
regard to the election of the Border Patrol agent under
subsection (b)(1)(A), except that section 5546(d) shall not
apply and eligibility for pay for, and the rate of pay for, any
overtime work shall be determined in accordance with this
section and section 5542(a)(7); and
``(2) shall not be eligible for any other form of premium
pay under this title, except as provided in section 5542(a)(7).
``(d) Treatment as Basic Pay.--Any pay received at the level 1
border patrol rate of pay or the level 2 border patrol rate of pay or
pay described in subsection (b)(3)(B) shall be treated as part of basic
pay for--
``(1) purposes of sections 5595(c), 8114(e), 8331(3), and
8704(c);
``(2) any other purpose that the Office of Personnel
Management may by regulation prescribe; and
``(3) any other purpose expressly provided for by law.
``(e) Authority To Require Overtime Work.--Nothing in this section
shall be construed to limit the authority of U.S. Customs and Border
Protection to require a Border Patrol agent to perform hours of
overtime work in accordance with the needs of U.S. Customs and Border
Protection, including if needed in the event of a local or national
emergency.''.
(c) Overtime Work.--Section 5542(a) of title 5, United States Code,
is amended by adding at the end the following:
``(7)(A) In this paragraph, the term `Border Patrol agent' has the
meaning given such term in section 5550.
``(B) Notwithstanding the matter preceding paragraph (1) or
paragraphs (1) and (2), for a Border Patrol agent who has in effect an
election to be assigned to the level 1 border patrol rate of pay under
section 5550(b)(1)(A)(i)--
``(i) except as provided in subparagraph (E), hours of work
in excess of 100 hours during a 14-day biweekly pay period
shall be overtime work; and
``(ii) the Border Patrol agent--
``(I) shall receive pay at the overtime hourly rate
of pay (as determined in accordance with paragraphs (1)
and (2)) for hours of overtime work that are officially
ordered or approved in advance of the work assignment;
and
``(II) shall receive compensatory time off for any
hours of overtime work that are not hours of overtime
work described in subclause (I).
``(C) Notwithstanding the matter preceding paragraph (1) or
paragraphs (1) and (2), for a Border Patrol agent who has in effect an
election to be eligible for the level 2 border patrol rate of pay under
section 5550(b)(1)(A)(ii)--
``(i) except as provided in subparagraph (E), hours of work
in excess of 90 hours during a 14-day biweekly pay period shall
be overtime work; and
``(ii) the Border Patrol agent--
``(I) shall receive pay at the overtime hourly rate
of pay (as determined in accordance with paragraphs (1)
and (2)) for hours of overtime work that are officially
ordered or approved in advance of the work assignment;
and
``(II) shall receive compensatory time off for any
hours of overtime work that are not hours of overtime
work described in subclause (I).
``(D) Notwithstanding the matter preceding paragraph (1) or
paragraphs (1) and (2), for a Border Patrol agent who has in effect an
election under section 5550(b)(1)(A)(iii)--
``(i) except as provided in subparagraph (E), hours of work
in excess of 80 hours during a 14-day biweekly pay period shall
be overtime work; and
``(ii) the Border Patrol agent--
``(I) shall receive pay at the overtime hourly rate
of pay (as determined in accordance with paragraphs (1)
and (2)) for hours of overtime work that are officially
ordered or approved in advance of the work assignment;
and
``(II) shall receive compensatory time off for any
hours of overtime work that are not hours of overtime
work described in subclause (I).
``(E)(i) Except as provided in clause (ii), during a 14-day
biweekly pay period, a Border Patrol agent shall not perform and may
not receive compensatory time off for more than 8 hours of overtime
work.
``(ii) U.S. Customs and Border Protection may, as it determines
appropriate, waive the limitation under clause (i) for hours of
overtime work, but such waiver must be approved in advance of any work
being performed that would be subject to compensatory time under
subsection (B)(ii)(II), (C)(ii)(II), or (D)(ii)(II).
``(F) A Border Patrol agent--
``(i) may not earn more than 240 hours of compensatory time
off during a year; and
``(ii) shall use any hours of compensatory time off not
later than 1 year after the date on which the compensatory time
off is accrued.''.
(d) Technical and Conforming Amendments.--
(1) Section 13(a) of the Fair Labor Standards Act of 1938
(29 U.S.C. 213(a)) is amended--
(A) in paragraph (16), by striking ``or'' after the
semicolon;
(B) in paragraph (17), by striking the period at
the end and inserting ``; or''; and
(C) by adding at the end the following:
``(18) any employee who is a Border Patrol agent, as
defined in section 5550(a) of title 5, United States Code.''.
(2) The table of sections for chapter 55 of title 5, United
States Code, is amended by inserting after the item relating to
section 5549 the following:
``5550. Border patrol rate of pay.''.
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