[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.''.
                                 <all>