[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Introduced in Senate (IS)]
113th CONGRESS
1st Session
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 13, 2013
Mr. Tester (for himself and Mr. McCain) introduced the following bill;
which was read twice and referred to the Committee on Homeland Security
and Governmental Affairs
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to improve the security of the
United States border and to provide for reforms and rates of pay for
border patrol agents.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Patrol Agent Pay Reform Act
of 2013''.
SEC. 2. BORDER PATROL RATE OF PAY.
(a) Purpose.--The purposes of this Act are--
(1) to strengthen U.S. Customs and Border Protection and
ensure border patrol agents are sufficiently ready to conduct
necessary work and that agents will perform overtime hours in
excess of a 40-hour work week based on the needs of the
employing agency; and
(2) to ensure U.S. Customs and Border Protection has the
flexibility to cover shift changes and retains the right to
assign scheduled and unscheduled work for mission requirements
and planning based on operational need.
(b) Rates of Pay.--Subchapter V of chapter 55 of title 5, United
States Code, is amended by inserting after section 5549 the following:
``Sec. 5550. Border patrol rate of pay
``(a) Definitions.--In this section--
``(1) the term `available to work' means a border patrol
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 performing covered border patrol activities;
``(3) the term `covered border patrol activities' means a
border patrol agent is--
``(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) on approved annual, sick, or administrative
leave;
``(E) on ordered travel status;
``(F) on official time, within the meaning of
section 7131;
``(G) on excused absence with pay for relocation
purposes;
``(H) 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) engaged in an activity similar to an activity
described in subparagraphs (A) through (J) while
temporarily away from the regular duty assignment of
the border patrol agent;
``(4) 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;
``(5) 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
``(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 whether the border patrol agent shall,
for the following year--
``(i) be assigned to the level 1 border
patrol rate of pay;
``(ii) be assigned the level 2 border
patrol rate of pay; or
``(iii) decline to be assigned the level 1
border patrol rate of pay or the level 2 border
patrol rate of pay.
``(B) Procedures.--The Director of the Office of
Personnel Management shall establish 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) 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 to be assigned
to the level 1 border patrol rate of pay under
subparagraph (A)(i).
``(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 during each day the border patrol
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) 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) 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 each day the border patrol
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) 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) 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 and 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 that 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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