[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