[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Reported in Senate (RS)]
Calendar No. 548
113th CONGRESS
2d Session
S. 1691
[Report No. 113-248]
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, Mr. McCain, Ms. Heitkamp, Ms. Ayotte, and Mr.
Flake) introduced the following bill; which was read twice and referred
to the Committee on Homeland Security and Governmental Affairs
August 26, 2014
Reported, under authority of the order of the Senate of August 5
(legislative day, August 1), 2014, by Mr. Carper, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Border Patrol Agent Pay
Reform Act of 2013''.</DELETED>
<DELETED>SEC. 2. BORDER PATROL RATE OF PAY.</DELETED>
<DELETED> (a) Purpose.--The purposes of this Act are--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Rates of Pay.--Subchapter V of chapter 55 of title 5,
United States Code, is amended by inserting after section 5549 the
following:</DELETED>
<DELETED>``Sec. 5550. Border patrol rate of pay</DELETED>
<DELETED> ``(a) Definitions.--In this section--</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(3) the term `covered border patrol activities'
means a border patrol agent is--</DELETED>
<DELETED> ``(A) detecting and preventing illegal
entry and smuggling of aliens, commercial goods,
narcotics, weapons, or contraband into the United
States;</DELETED>
<DELETED> ``(B) arresting individuals suspected of
conduct described in subparagraph (A);</DELETED>
<DELETED> ``(C) attending training authorized by
U.S. Customs and Border Protection;</DELETED>
<DELETED> ``(D) on approved annual, sick, or
administrative leave;</DELETED>
<DELETED> ``(E) on ordered travel status;</DELETED>
<DELETED> ``(F) on official time, within the meaning
of section 7131;</DELETED>
<DELETED> ``(G) on excused absence with pay for
relocation purposes;</DELETED>
<DELETED> ``(H) on light duty due to injury or
disability;</DELETED>
<DELETED> ``(I) performing administrative duties or
mission critical work assignments while maintaining law
enforcement authority;</DELETED>
<DELETED> ``(J) caring for the canine assigned to
the border patrol agent, which may not exceed 1 hour
per day; or</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(6) the term `work period' means a 14-day
biweekly pay period.</DELETED>
<DELETED> ``(b) Receipt of Border Patrol Rate of Pay.--</DELETED>
<DELETED> ``(1) Voluntary election.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) be assigned to the level 1
border patrol rate of pay;</DELETED>
<DELETED> ``(ii) be assigned the level 2
border patrol rate of pay; or</DELETED>
<DELETED> ``(iii) decline to be assigned the
level 1 border patrol rate of pay or the level
2 border patrol rate of pay.</DELETED>
<DELETED> ``(B) Procedures.--The Director of the
Office of Personnel Management shall establish
procedures for elections under subparagraph
(A).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) Level 1 border patrol rate of pay.--For a
border patrol agent who has in effect an election under
paragraph (1)(A)(i)--</DELETED>
<DELETED> ``(A) the border patrol agent shall be
scheduled to work, for 5 days per week--</DELETED>
<DELETED> ``(i) 8 hours of regular time per
day; and</DELETED>
<DELETED> ``(ii) 2 additional hours of
scheduled overtime during each day the border
patrol agent is scheduled to work under clause
(i);</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(C) for the hours of regularly scheduled
overtime work described in subparagraph (A)(ii), the
border patrol agent shall not receive--</DELETED>
<DELETED> ``(i) additional compensation
under this section or any other provision of
law; or</DELETED>
<DELETED> ``(ii) compensatory time
off;</DELETED>
<DELETED> ``(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);</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(F) shall be charged leave in increments
of 8 hours for 1 shift of leave, regardless of the
length of the shift.</DELETED>
<DELETED> ``(3) Level 2 border patrol rate of pay.--For a
border patrol agent who has in effect an election under
paragraph (1)(A)(ii)--</DELETED>
<DELETED> ``(A) the border patrol agent shall be
scheduled to work, for 5 days per week--</DELETED>
<DELETED> ``(i) 8 hours of regular time per
day; and</DELETED>
<DELETED> ``(ii) 1 additional hour of
scheduled overtime during each day the border
patrol agent is scheduled to work under clause
(i);</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(C) for the hours of regularly scheduled
overtime work described in subparagraph (A)(ii), the
border patrol agent shall not receive--</DELETED>
<DELETED> ``(i) additional compensation
under this section or any other provision of
law; or</DELETED>
<DELETED> ``(ii) compensatory time
off;</DELETED>
<DELETED> ``(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);</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(F) shall be charged leave in increments
of 8 hours for 1 shift of leave, regardless of the
length of the shift.</DELETED>
<DELETED> ``(4) Basic border patrol rate of pay.--For a
border patrol agent who has in effect an election under
paragraph (1)(A)(iii)--</DELETED>
<DELETED> ``(A) the border patrol agent shall be
scheduled to work 8 hours of regular time per day and 5
days per week;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(c) Eligibility for Other Premium Pay.--A border patrol
agent--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(2) shall not be eligible for any other form of
premium pay under this title, except as provided in section
5542(a)(7).</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) purposes of sections 5595(c), 8114(e),
8331(3), and 8704(c);</DELETED>
<DELETED> ``(2) any other purpose that the Office of
Personnel Management may by regulation prescribe; and</DELETED>
<DELETED> ``(3) any other purpose expressly provided for by
law.</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (c) Overtime Work.--Section 5542(a) of title 5, United
States Code, is amended by adding at the end the following:</DELETED>
<DELETED> ``(7)(A) In this paragraph, the term `border patrol agent'
has the meaning given that term in section 5550.</DELETED>
<DELETED> ``(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)--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) the border patrol agent--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(II) shall receive compensatory time off
for any hours of overtime work that are not hours of
overtime work described in subclause (I).</DELETED>
<DELETED> ``(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)--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) the border patrol agent--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(II) shall receive compensatory time off
for any hours of overtime work that are not hours of
overtime work described in subclause (I).</DELETED>
<DELETED> ``(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)--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) the border patrol agent--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(II) shall receive compensatory time off
for any hours of overtime work that are not hours of
overtime work described in subclause (I).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(F) A border patrol agent--</DELETED>
<DELETED> ``(i) may not earn more than 240 hours of
compensatory time off during a year; and</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (d) Technical and Conforming Amendments.--</DELETED>
<DELETED> (1) Section 13(a) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 213(a)) is amended--</DELETED>
<DELETED> (A) in paragraph (16), by striking ``or''
after the semicolon;</DELETED>
<DELETED> (B) in paragraph (17), by striking the
period at the end and inserting ``; or''; and</DELETED>
<DELETED> (C) by adding at the end the
following:</DELETED>
<DELETED> ``(18) any employee who is a border patrol agent,
as defined in section 5550(a) of title 5, United States
Code.''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED>``5550. Border patrol rate of pay.''.
</DELETED>SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Patrol Agent Pay Reform Act
of 2014''.
SEC. 2. BORDER PATROL RATE OF PAY.
(a) Purpose.--The purposes of this Act are--
(1) to strengthen U.S. Customs and Border Protection and
ensure that border patrol agents are sufficiently ready to
conduct necessary work and will perform overtime hours in
excess of a 40-hour workweek based on the needs of U.S. Customs
and Border Protection; and
(2) to ensure U.S. Customs and Border Protection has the
flexibility to cover shift changes and retains the right to
assign scheduled and unscheduled work for mission requirements
and planning based on operational need.
(b) Rates of Pay.--Subchapter V of chapter 55 of title 5, United
States Code, is amended by inserting after section 5549 the following:
``Sec. 5550. Border patrol rate of pay
``(a) Definitions.--In this section--
``(1) the term `basic border patrol rate of pay' means the
hourly rate of basic pay of the applicable border patrol, as
determined without regard to this section;
``(2) the term `border patrol agent' means an individual
who is appointed to a position assigned to the Border Patrol
Enforcement classification series 1896 or any successor series,
consistent with classification standards established by the
Office of Personnel Management;
``(3) the term `level 1 border patrol rate of pay' means
the hourly rate of pay equal to 1.25 times the otherwise
applicable hourly rate of basic pay of the applicable border
patrol agent;
``(4) the term `level 2 border patrol rate of pay' means
the hourly rate of pay equal to 1.125 times the otherwise
applicable hourly rate of basic pay of the applicable border
patrol agent; and
``(5) the term `work period' means a 14-day biweekly pay
period.
``(b) Receipt of Border Patrol Rate of Pay.--
``(1) Voluntary election.--
``(A) In general.--Not later than 30 days before
the first day of each year beginning after the date of
enactment of this section, a border patrol agent shall
make an election whether the border patrol agent shall,
for that year, be assigned to--
``(i) the level 1 border patrol rate of
pay;
``(ii) the level 2 border patrol rate of
pay; or
``(iii) the basic border patrol rate of
pay, with additional overtime assigned as
needed by U.S. Customs and Border Protection.
``(B) Regulations.--The Director of the Office of
Personnel Management shall promulgate regulations
establishing procedures for elections under
subparagraph (A).
``(C) Information regarding election.--Not later
than 60 days before the first day of each year
beginning after the date of enactment of this section,
U.S. Customs and Border Protection shall provide each
border patrol agent with information regarding each
type of election available under subparagraph (A) and
how to make such an election.
``(D) Assignment in lieu of election.--
Notwithstanding subparagraph (A)--
``(i) a border patrol agent who fails to
make a timely election under subparagraph (A)
shall be assigned to the level 1 border patrol
rate of pay;
``(ii) a border patrol agent who is
assigned a canine shall be assigned to the
level 1 border patrol rate of pay;
``(iii) if at any time U.S. Customs and
Border Protection concludes that a border
patrol agent is unable to perform overtime on a
daily basis in accordance with this section,
U.S. Customs and Border Protection shall assign
the border patrol agent to the basic border
patrol rate of pay until such time as U.S.
Customs and Border Protection determines that
the border patrol agent is able to perform
scheduled overtime on a daily basis;
``(iv) unless the analysis conducted under
section 2(e) of the Border Patrol Agent Pay
Reform Act of 2014 indicates that, in order to
more adequately fulfill the operational
requirements of U.S. Customs and Border
Protection, such border patrol agents should be
allowed to elect or be assigned to the level 1
border patrol rate of pay or the level 2 border
patrol rate of pay, a border patrol agent shall
be assigned to the basic border patrol rate of
pay if the agent works--
``(I) at U.S. Customs and Border
Protection headquarters;
``(II) as a training instructor at
a U.S. Customs and Border Protection
training facility;
``(III) in an administrative
position; or
``(IV) as a fitness instructor; and
``(v) a border patrol agent may be assigned
to the level 1 border patrol rate of pay or the
level 2 border patrol rate of pay in accordance
with subparagraph (E).
``(E) Flexibility.--
``(i) In general.--Except as provided in
clauses (ii) and (iii), and notwithstanding any
other provision of law, U.S. Customs and Border
Protection shall take such action as is
necessary, including the unilateral assignment
of border patrol agents to the level 1 border
patrol rate of pay or the level 2 border patrol
rate of pay, to ensure that not more than 10
percent of the border patrol agents stationed
at a location are assigned to the level 2
border patrol rate of pay or the basic border
patrol rate of pay.
``(ii) Waiver.--U.S. Customs and Border
Protection may waive the limitation under
clause (i) on the percent of border patrol
agents stationed at a location who are assigned
to the level 2 border patrol rate of pay or the
basic border patrol rate of pay if, based on
the analysis conducted under section 2(e) of
the Border Patrol Agent Pay Reform Act of 2014,
U.S. Customs and Border Protection determines
it may do so and adequately fulfill its
operational requirements.
``(iii) Certain locations.--Clause (i)
shall not apply to border patrol agents working
at the headquarters of U.S. Customs and Border
Protection or a training location of U.S.
Customs and Border Protection.
``(F) Canine care.--For a border patrol agent
assigned to provide care for a canine and assigned to
the level 1 border patrol rate of pay in accordance
with subparagraph (D)(ii)--
``(i) that rate of pay covers all such
care;
``(ii) for the purposes of scheduled
overtime under paragraph (2)(A)(ii), such care
shall be counted as 1 hour of scheduled
overtime on each regular workday without regard
to the actual duration of such care or whether
such care occurs on the regular workday; and
``(iii) no other pay shall be paid to the
border patrol agent for such care.
``(G) Pay assignment continuity.--
``(i) In general.--Not later than 1 year
after the date of enactment of the Border
Patrol Agent Pay Reform Act of 2014, and in
consultation with the Office of Personnel
Management, U.S. Customs and Border Protection
shall develop and implement a plan to ensure,
to the greatest extent practicable, that the
assignment of a border patrol agent under this
section during the 3 years of service before
the border patrol agent becomes eligible for
immediate retirement are consistent with the
average border patrol rate of pay level to
which the border patrol agent has been assigned
during the course of the career of the border
patrol agent.
``(ii) Implementation.--Notwithstanding any
other provision of law, U.S. Customs and Border
Protection may take such action as is
necessary, including the unilateral assignment
of border patrol agents to the level 1 border
patrol rate of pay, the level 2 border patrol
rate of pay, or the basic border patrol rate of
pay, to implement the plan developed under this
subparagraph.
``(iii) Reporting.--U.S. Customs and Border
Protection shall submit the plan developed
under clause (i) to the appropriate committees
of Congress.
``(iv) GAO review.--Not later than 6 months
after U.S. Customs and Border Protection issues
the plan required under clause (i), the
Comptroller General of the United States shall
submit to the appropriate committees of
Congress a report on the effectiveness of the
plan in ensuring that border patrol agents are
not able to artificially enhance their
retirement annuities.
``(v) Definition.--In this subparagraph,
the term `appropriate committees of Congress'
means--
``(I) the Committee on Homeland
Security and Governmental Affairs and
the Committee on Appropriations of the
Senate; and
``(II) the Committee on Homeland
Security, the Committee on Oversight
and Government Reform, and the
Committee on Appropriations of the
House of Representatives.
``(vi) Rule of construction.--Nothing in
this subparagraph shall be construed to limit
the ability of U.S. Customs and Border
Protection to assign border patrol agents to
border patrol rates of pay as necessary to meet
operational requirements.
``(2) Level 1 border patrol rate of pay.--For a border
patrol agent who is assigned to the level 1 border patrol rate
of pay--
``(A) the border patrol agent shall have a regular
tour of duty consisting of 5 workdays per week with--
``(i) 8 hours of regular time per workday,
which may be interrupted by an unpaid off-duty
meal break; and
``(ii) 2 additional hours of scheduled
overtime during each day the agent performs
work under clause (i);
``(B) for paid hours of regular time described in
subparagraph (A)(i), the border patrol agent shall
receive pay at the level 1 border patrol rate of pay;
``(C) compensation for the hours of regularly
scheduled overtime work described in subparagraph
(A)(ii) is provided indirectly through the 25 percent
supplement within the level 1 border patrol rate of
pay, and the border patrol agent may not receive for
such hours--
``(i) any compensation in addition to the
compensation under subparagraph (B) under this
section or any other provision of law; or
``(ii) any compensatory time off;
``(D) the border patrol agent shall receive
compensatory time off or pay at the overtime hourly
rate of pay for hours of work in excess of 100 hours
during a work period, as determined in accordance with
section 5542(g);
``(E) the border patrol agent shall be charged
corresponding amounts of paid leave, compensatory time
off, or other paid time off for each hour (or part
thereof) the agent is absent from work during regular
time (except that full days off for military leave
shall be charged when required);
``(F) if the border patrol agent is absent during
scheduled overtime described in subparagraph (A)(ii)--
``(i) the border patrol agent shall accrue
an obligation to perform other overtime work
for each hour (or part thereof) the border
patrol 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.''.
(c) Overtime Work.--
(1) In general.--Section 5542 of title 5, United States
Code, is amended by adding at the end the following:
``(g) In applying subsection (a) with respect to a border patrol
agent covered by section 5550, the following rules apply:
``(1) Notwithstanding the matter preceding paragraph (1) in
subsection (a), for a border patrol agent who is assigned to
the level 1 border patrol rate of pay under section 5550--
``(A) hours of work in excess of 100 hours during a
14-day biweekly pay period shall be overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the overtime
hourly rate of pay (as determined in accordance
with paragraphs (1) and (2) of subsection (a))
for hours of overtime work that are officially
ordered or approved in advance of the workweek;
and
``(ii) except as provided in paragraphs (4)
and (5), shall receive compensatory time off
for an equal amount of time spent performing
overtime work that is not overtime work
described in clause (i).
``(2) Notwithstanding the matter preceding paragraph (1) in
subsection (a), for a border patrol agent who is assigned to
the level 2 border patrol rate of pay under section 5550--
``(A) hours of work in excess of 90 hours during a
14-day biweekly pay period shall be overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the overtime
hourly rate of pay (as determined in accordance
with paragraphs (1) and (2) of subsection (a))
for hours of overtime work that are officially
ordered or approved in advance of the workweek;
and
``(ii) except as provided in paragraphs (4)
and (5), shall receive compensatory time off
for an equal amount of time spent performing
overtime work that is not overtime work
described in clause (i).
``(3) Notwithstanding the matter preceding paragraph (1) in
subsection (a), for a border patrol agent who is assigned to
the basic border patrol rate of pay under section 5550--
``(A) hours of work in excess of 80 hours during a
14-day biweekly pay period shall be overtime work; and
``(B) the border patrol agent--
``(i) shall receive pay at the overtime
hourly rate of pay (as determined in accordance
with paragraphs (1) and (2) of subsection (a))
for hours of overtime work that are officially
ordered or approved in advance of the workweek;
and
``(ii) except as provided in paragraphs (4)
and (5), shall receive compensatory time off
for an equal amount of time spent performing
overtime work that is not overtime work
described in clause (i).
``(4)(A) Except as provided in subparagraph (B), during a
14-day biweekly pay period, a border patrol agent may not earn
compensatory time off for more than 10 hours of overtime work.
``(B) U.S. Customs and Border Protection may, as it
determines appropriate, waive the limitation under subparagraph
(A) for an individual border patrol agent for hours of
irregular or occasional overtime work, but such waiver must be
approved in writing in advance of the performance of any such
work for which compensatory time off is earned under paragraph
(1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a waiver request by a
border patrol agent is denied, the border patrol agent may not
be ordered to perform the associated overtime work.
``(5) A border patrol agent--
``(A) may not earn more than 240 hours of
compensatory time off during a leave year;
``(B) shall use any hours of compensatory time off
not later than the end of the 26th pay period after the
pay period during which the compensatory time off was
earned;
``(C) shall be required to use 1 hour of
compensatory time off for each hour of regular time not
worked for which the border patrol agent is not on paid
leave or other paid time off or does not substitute
time in accordance with section 5550(f);
``(D) shall forfeit any compensatory time off not
used in accordance with this paragraph and, regardless
of circumstances, shall not be entitled to any cash
value for compensatory time earned under section 5550;
``(E) shall not receive credit towards the
computation of the annuity of the border patrol agent
for compensatory time, whether used or not; and
``(F) shall not be credited with compensatory time
off if the value of such time off would cause the
aggregate premium pay of the border patrol agent to
exceed the limitation established under section 5547 in
the period in which it was earned.''.
(2) Minimization of overtime.--U.S. Customs and Border
Protection shall, to the maximum extent practicable, avoid the
use of scheduled overtime work by border patrol agents.
(d) Retirement.--Section 8331(3) of title 5, United States Code, is
amended--
(1) in subparagraph (G), by striking ``and'';
(2) in subparagraph (H), by inserting ``and'' after the
semicolon;
(3) by inserting a new subparagraph after subparagraph (H)
as follows:
``(I) with respect to a border
patrol agent, the amount of
supplemental pay received through
application of the level 1 border
patrol rate of pay or the level 2
border patrol rate of pay for scheduled
overtime within the regular tour of
duty of the border patrol agent as
provided in section 5550;''; and
(4) in the undesignated matter following subparagraph (H),
by striking ``subparagraphs (B) through (H)'' and inserting
``subparagraphs (B) through (I)''.
(e) Comprehensive Staffing Analysis.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, U.S. Customs and Border Protection shall
conduct a comprehensive analysis, and submit to the Comptroller
General of the United States a report, that--
(A) examines the staffing requirements for U.S.
Border Patrol to most effectively meet its operational
requirements at each Border Patrol duty station;
(B) estimates the cost of the staffing requirements
at each Border Patrol duty station; and
(C) includes--
(i) a position-by-position review at each
Border Patrol station to determine--
(I) the duties assigned to each
position;
(II) how the duties relate to the
operational requirements of U.S. Border
Patrol; and
(III) the number of hours border
patrol agents in that position would
need to work each pay period to meet
the operational requirements of U.S.
Border Patrol;
(ii) the metrics used to determine the
number of hours of work performed at each
Border Patrol station, broken down by the type
of hours worked;
(iii) a cost analysis of the most recent
full fiscal year by the type of full-time
equivalent hours worked;
(iv) a cost estimate by the type of full-
time equivalent hours expected to be worked
during the first full fiscal year after the
date of enactment of this Act; and
(v) an analysis that compares the cost of
assigning the full-time equivalent hours needed
to meet the operational requirements of U.S.
Border Patrol to existing border patrol agents
through higher rates of pay versus recruiting,
hiring, training, and deploying additional
border patrol agents.
(2) Independent validator.--Not later than 90 days after
the date on which the Comptroller General receives the report
under paragraph (1), the Comptroller General shall submit to
the appropriate committees of Congress a report that--
(A) examines the methodology used by U.S. Customs
and Border Protection to carry out the analysis; and
(B) indicates whether the Comptroller General
concurs with the findings in the report under paragraph
(1).
(3) Definition.--In this subsection, the term ``appropriate
committees of Congress'' means--
(A) the Committee on Homeland Security and
Governmental Affairs and the Committee on
Appropriations of the Senate; and
(B) the Committee on Oversight and Government
Reform and the Committee on Appropriations of the House
of Representatives.
(f) Rules of Construction.--Nothing in this section or the
amendments made by this section shall be construed to--
(1) limit the right of U.S. Customs and Border Protection
to assign both scheduled and unscheduled work to a border
patrol agent based on the needs of U.S. Customs and Border
Protection in excess of the hours of work normally applicable
under the election of the border patrol agent, regardless of
what the border patrol agent might otherwise have elected;
(2) require compensation of a border patrol agent other
than for hours during which the border patrol agent is actually
performing work or using approved paid leave or other paid time
off; or
(3) exempt a border patrol agent from any limitations on
pay, earnings, or compensation, including the limitations under
section 5547 of title 5, United States Code.
(g) Technical and Conforming Amendments.--
(1) Section 5547 of title 5, United States Code is amended
by--
(A) in subsection (a), in the matter preceding
paragraph (1)--
(i) by striking, ``and'' before ``5546'';
and
(ii) by inserting ``, and 5550'' after
``5546 (a) and (b)''; and
(B) by adding at the end the following:
``(e) Any supplemental pay resulting from receipt of the level 1
border patrol rate of pay or the level 2 border patrol rate of pay
under section 5550 shall be considered premium pay in applying this
section.''.
(2) Section 13(a) of the Fair Labor Standards Act of 1938
(29 U.S.C. 213(a)) is amended--
(A) in paragraph (16), by striking ``or'' after the
semicolon;
(B) in paragraph (17), by striking the period at
the end and inserting ``; or''; and
(C) by adding at the end the following:
``(18) any employee who is a border patrol agent, as
defined in section 5550(a) of title 5, United States Code.''.
(3) The table of sections for chapter 55 of title 5, United
States Code, is amended by inserting after the item relating to
section 5549 the following:
``5550. Border patrol rate of pay.''.
(h) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations to carry out this Act and the
amendments made by this Act.
Calendar No. 548
113th CONGRESS
2d Session
S. 1691
[Report No. 113-248]
_______________________________________________________________________
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.
_______________________________________________________________________
August 26, 2014
Reported with an amendment