[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2338 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 2338

   To amend chapter 55 of title 5, United States Code, to reform the 
         manner in which Border Patrol agents are compensated.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 25, 2018

  Mr. Tester introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
   To amend chapter 55 of title 5, United States Code, to reform the 
         manner in which Border Patrol agents are compensated.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Border Patrol Agent Pay Reform 
Technical Amendments Act of 2018''.

SEC. 2. BORDER PATROL RATE OF PAY.

    Section 5550 of title 5, United States Code, is amended--
            (1) in subsection (a)(1), by inserting ``agent'' after 
        ``applicable border patrol'';
            (2) in subsection (b)--
                    (A) in paragraph (1)--
                            (i) in subparagraph (A)--
                                    (I) by striking ``Not later than 30 
                                days before the first day of each year 
                                beginning after the date of enactment 
                                of this section,'' and inserting ``Not 
                                later than December 1 of each year,''; 
                                and
                                    (II) by striking ``for that year'' 
                                and inserting ``for the next annual 
                                period beginning on the first day of 
                                the first pay period that commences on 
                                or after January 1'';
                            (ii) in subparagraph (C), by striking ``Not 
                        later than 60 days before the first day of each 
                        year beginning after the date of enactment of 
                        this section,'' and inserting ``Not later than 
                        November 1 of each year,'';
                            (iii) in subparagraph (D)--
                                    (I) in clause (iii), by inserting 
                                ``due to loss of law enforcement 
                                authority'' after ``this section''; and
                                    (II) in clause (v), by striking 
                                ``or the level 2 border patrol rate of 
                                pay'';
                            (iv) in subparagraph (E)--
                                    (I) in clause (i), by striking ``or 
                                the level 2 border patrol rate of 
                                pay'';
                                    (II) in clause (ii), by striking 
                                ``the analysis conducted under section 
                                2(e) of the Border Patrol Agent Pay 
                                Reform Act of 2014'' and inserting ``a 
                                written staffing analysis by the 
                                Commissioner of U.S. Customs and Border 
                                Protection''; and
                                    (III) by adding at the end the 
                                following:
                            ``(iv) Exclusion of certain employees.--In 
                        applying any percentage limit under clause (i) 
                        or (ii) to a base population, U.S. Customs and 
                        Border Protection shall exclude from such 
                        population any border patrol agent who--
                                    ``(I) is assigned a basic border 
                                patrol rate of pay under paragraph 
                                (iii) or (iv) of subparagraph (D); or
                                    ``(II) would reach the premium pay 
                                cap under section 5547 if assigned a 
                                level 1 border patrol rate of pay.
                            ``(v) Application frequency.--The 10 
                        percent limit under clause (i) or an 
                        alternative percentage limit under a waiver 
                        under clause (ii) shall be applied at the 
                        beginning of the first pay period beginning on 
                        or after January 1 of each year.''; and
                            (v) by striking subparagraphs (F) and (G) 
                        and inserting the following:
                    ``(F) Canine care.--For a border patrol agent 
                assigned to provide care for a canine while not on duty 
                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 
                        and no other pay shall be paid to the border 
                        patrol agent for such care except as set forth 
                        in clauses (ii) through (v);
                            ``(ii) the agent shall be credited with 1 
                        hour of such care for each calendar day on 
                        which such care occurs (without regard to the 
                        actual duration of such care);
                            ``(iii) 1 hour of canine care credited 
                        under clause (ii), as available, shall be 
                        substituted for 1 hour of scheduled overtime 
                        that the agent is obligated to perform under 
                        paragraph (2)(A)(ii) on the same regular work 
                        day;
                            ``(iv) 1 hour of canine care credited under 
                        clause (ii), if not needed to substitute for 
                        scheduled overtime under clause (iii), shall be 
                        paid to the border patrol agent as scheduled 
                        overtime for which the agent shall receive 
                        monetary compensation pursuant to the payment 
                        of overtime under section 5542(a)(4); and
                            ``(v) for canine care hours credited under 
                        clause (ii) on a day other than a regular 
                        workday, or on a regular workday on which an 
                        agent has no obligation to perform scheduled 
                        overtime work, the agent shall be credited with 
                        1 scheduled overtime work hour paid as monetary 
                        compensation under section 5542(a)(4) (defined 
                        as 1 hour of overtime work under section 
                        5542(g)(1)(B)(i)) for each hour of credited 
                        canine care.'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (C), by amending clause 
                        (i) to read as follows:
                            ``(i) any compensation under this section 
                        or under any other provision of law in addition 
                        to the compensation provided under subparagraph 
                        (B); or'';
                            (ii) in subparagraph (E), by striking 
                        ``paid leave'' and inserting ``leave'';
                            (iii) in subparagraph (F)(ii), by striking 
                        ``and'' at the end; and
                            (iv) by striking subparagraph (G) and 
                        inserting the following:
                    ``(G) if the border patrol agent participates in a 
                day of advanced training, but does not perform the 
                required amount of scheduled overtime work under 
                subparagraph (A)(ii) on that day, the border patrol 
                agent shall be deemed to have performed scheduled 
                overtime work during nonwork periods to the extent 
                necessary to reach the required amount; and
                    ``(H) any overtime obligation that the border 
                patrol agent has incurred can be met through the use of 
                any accrued compensatory time accrued for travel 
                pursuant to section 5550b.''; and
                    (C) in paragraph (3)--
                            (i) in subparagraph (C), by amending clause 
                        (i) to read as follows:
                            ``(i) any compensation under this section 
                        or under any other provision of law in addition 
                        to the compensation provided under subparagraph 
                        (B); or'';
                            (ii) in subparagraph (E)--
                                    (I) by striking ``paid leave'' and 
                                inserting ``leave''; and
                                    (II) by striking ``excused'' and 
                                inserting ``absent'';
                            (iii) in subparagraph (F)(ii); by striking 
                        ``and'' at the end;
                            (iv) by amending subparagraph (G) to read 
                        as follows:
                    ``(G) if the border patrol agent participates in a 
                day of advanced training, but does not perform the 
                required amount of scheduled overtime work under 
                subparagraph (A)(ii) on that day, the border patrol 
                agent shall be deemed to have performed scheduled 
                overtime work during nonwork periods to the extent 
                necessary to reach the required amount;''; and
                            (v) by adding at the end the following:
                    ``(H) if the border patrol agent is assigned to 
                provide canine care or assigned to marine duty and 
                participates in a day of advanced training and performs 
                more than the required amount of scheduled overtime 
                work under subparagraph (A)(ii) on that day, the border 
                patrol agent shall be compensated for all of the hours 
                worked on that day; and
                    ``(I) any overtime obligation that the border 
                patrol agent has incurred can be met through the use of 
                any accrued compensatory time accrued for travel 
                pursuant to section 5550b.'';
            (3) by amending subsection (d) to read as follows:
    ``(d) Treatment as Basic Pay.--
            ``(1) In general.--Any overtime supplement in addition to 
        the basic border patrol rate of pay for a border patrol agent 
        resulting from the application of the level 1 border patrol 
        rate of pay or the level 2 border patrol rate of pay shall be 
        treated, subject to paragraphs (2) and (3), as part of basic 
        pay solely--
                    ``(A) for purposes of the definition of basic pay 
                in sections 8331(3) and 8401(4) and the provisions in 
                chapters 83 and 84 that rely on those definitions;
                    ``(B) for purposes of sections 5595(c) (relating to 
                severance pay) and 8704(c) (relating to conversion of 
                pay), except as otherwise provided in paragraph (3);
                    ``(C) for the purpose of section 8114(e) (relating 
                to computation of pay); and
                    ``(D) for any other purpose that the Director of 
                the Office of Personnel Management may prescribe, by 
                regulation, subject to paragraph (2) and any limitation 
                established in accordance with paragraph (3).
            ``(2) Treatment of overtime supplement.--The overtime 
        supplement described in paragraph (1) may not be treated as 
        part of basic pay for purposes not described in paragraph (1), 
        including the purposes of calculating--
                    ``(A) overtime pay, night pay, Sunday pay, or 
                holiday pay under sections 5542, 5545, and 5546;
                    ``(B) locality-based comparability payments under 
                section 5304 or special rate supplements under section 
                5305; or
                    ``(C) cost-of-living allowances in nonforeign areas 
                under section 5941.
            ``(3) Limitations.--
                    ``(A) In general.--During the control period 
                described in subparagraph (B), the amount of the 
                overtime supplement that is considered basic pay under 
                subparagraphs (A) and (B) of paragraph (1) may not 
                exceed the amount computed by multiplying the border 
                patrol agent's basic border patrol rate of pay by the 
                percentage representing the agent's career average of 
                assigned overtime supplement percentages (including 0 
                percent for periods of time during which no overtime 
                supplement was payable). The career average percentage 
                shall be computed under this subparagraph without 
                regard to the effect of the limitation on premium pay 
                under section 5547. The premium pay limitation remains 
                applicable in determining the dollar amount of any 
                overtime supplement computed using the career average 
                percentage.
                    ``(B) Control period.--The control period referred 
                to in subparagraphs (A) and (C) is the period beginning 
                3 years before the date on which a border patrol agent 
                will meet age and service requirements associated with 
                entitlement to an immediate annuity and ending on the 
                last day of the individual's career as a border patrol 
                agent.
                    ``(C) Career average percentage.--For purposes of 
                subparagraph (A), a border patrol agent's initial 
                career average of assigned overtime supplement 
                percentages is the average for the border patrol 
                agent's career before the beginning of the control 
                period. During the control period, the career average 
                shall be recomputed at the end of each annual period 
                (as described in subsection (b)(1)(A)). In computing 
                the career average percentage, any periods of service 
                as a border patrol agent before the first day of the 
                first pay period beginning on or after January 1, 2016, 
                shall be included, and the agent's assigned overtime 
                supplement during such periods shall be deemed to be 25 
                percent. If the career average percentage is less than 
                25 percent, the precise amount of the career average 
                percentage shall be used for purposes of this 
                subsection.
            ``(4) Lump-sum annual leave payment.--In computing an 
        agent's lump-sum annual leave payment under section 5551 or 
        5552, the pay the agent is projected to receive shall include a 
        deemed overtime supplement under this paragraph, which--
                    ``(A) shall be based on the lower of--
                            ``(i) the agent's actual overtime 
                        supplement percentage in effect at separation; 
                        or
                            ``(ii) the average percentage of the 
                        agent's overtime supplement during the 26 
                        biweekly pay periods immediately preceding such 
                        separation; and
                    ``(B) may not exceed the amount that is, or would 
                be, payable under the premium pay limitation under 
                section 5547.'';
            (4) in the subsection (f) heading, by striking ``and 
        Substitution of Hours'' and inserting ``During Regular Time; 
        Guard and Reservist Duties; Absences During Scheduled 
        Overtime''; and
            (5) by adding at the end the following:
    ``(h) Leave Without Pay During Regular Time; Guard and Reservist 
Duties; Absences During Scheduled Overtime.--
            ``(1) At least 1 workday.--If a border patrol agent takes 
        leave without pay for a period of at least 1 workday, the agent 
        shall not receive any pay for the hours during which the border 
        patrol agent took leave without pay.
            ``(2) No accrual of overtime debt.--A border patrol agent 
        shall not accrue an overtime debt for any full workdays during 
        which a border patrol agent uses leave without pay, regardless 
        of the border patrol rate of pay to which the border patrol 
        agent is assigned.
            ``(3) Calculation of pay.--
                    ``(A) In general.--For pay periods during which a 
                border patrol agent takes one or more full days of 
                leave without pay, the amount of border patrol pay that 
                the agent would normally receive shall be reduced 
                proportionally by the amount of overtime hours that the 
                agent has not worked due to being on leave without pay.
                    ``(B) Percentage decrease.--The total amount of 
                border patrol pay that a border patrol agent would 
                normally receive in a pay period described in 
                subparagraph (A) shall be decreased based on the 
                percentage of work days for which the border patrol 
                agent takes leave without pay.
    ``(i) Compressed Work Schedule.--
            ``(1) In general.--Notwithstanding any other provision of 
        this section or section 6101, the Commissioner of U.S. Customs 
        and Border Protection may assign a border patrol agent a 
        compressed work schedule under this subsection, subject to any 
        regulations prescribed by the Director of the Office of 
        Personnel Management.
            ``(2) Level 1 border patrol rate of pay.--A border patrol 
        agent receiving the level 1 border patrol rate of pay may, in 
        lieu of the standard work schedule described in subsection 
        (b)(2)(A), be assigned a compressed work schedule under the 
        following terms and conditions:
                    ``(A) The compressed work schedule shall be a 
                regular tour of duty consisting of four 10-hour 
                workdays per week as his or her regular schedule and 
                shall include, in each pay period, 8 workdays of 10 
                hours of regular time per workday and a total of 20 
                additional hours of scheduled overtime on the other 
                days within the pay period in which the agent does not 
                perform regular time.
                    ``(B) Subparagraphs (B) through (G) of subsection 
                (b)(2) shall apply to an agent assigned a compressed 
                work schedule under this paragraph. References in this 
                section to regular time under subsection (b)(2)(A)(i) 
                and scheduled overtime under subsection (b)(2)(A)(ii) 
                shall be deemed to be references to regular time and 
                scheduled overtime, respectively, described in 
                subparagraph (A).
            ``(3) Level 2 border patrol rate of pay.--A border patrol 
        agent receiving the level 2 border patrol rate of pay may, in 
        lieu of the standard work schedule described in subsection 
        (b)(3)(A), be assigned a compressed work schedule under the 
        following terms and conditions:
                    ``(A) The compressed work schedule shall be a 
                regular tour of duty consisting of 9 workdays per 
                biweekly pay period, including--
                            ``(i) 8 workdays of 9 hours of regular time 
                        per workday and 1 additional hour of scheduled 
                        overtime for each day the agent performs work 
                        during such regular time; and
                            ``(ii) 1 workday of 8 hours of regular time 
                        per workday and 2 additional hours of scheduled 
                        overtime when the agent performs work during 
                        such regular time.
                    ``(B) Subparagraphs (B) through (H) of subsection 
                (b)(3) shall apply to an agent assigned a compressed 
                work schedule under this paragraph. References in this 
                section to regular time under subsection (b)(3)(A)(i) 
                and scheduled overtime under subsection (b)(3)(A)(ii) 
                shall be deemed to be references to regular time and 
                scheduled overtime, respectively, described in 
                subparagraph (A).
            ``(4) Basic border patrol rate of pay.--A border patrol 
        agent receiving the basic border patrol rate of pay, in lieu of 
        the standard work schedule described in subsection (b)(4)(A), 
        may be assigned a compressed work schedule that is a regular 
        tour of duty consisting of 4 workdays per week with 10 hours of 
        regular time per workday.
            ``(5) Sunday pay; premium pay.--A border patrol agent 
        assigned to a compressed work schedule under this subsection 
        may receive, as applicable--
                    ``(A) Sunday pay for up to 8 hours of regular time 
                associated with a given Sunday, in accordance with 
                section 5546(a);
                    ``(B) premium pay for work on a holiday for up to 8 
                hours of regular time associated with a given holiday, 
                in accordance with section 5546(b); and
                    ``(C) basic pay for all regular time hours that 
                qualify for holiday time off pay when an agent is 
                relieved or prevented from working during such regular 
                time on a day designated as a holiday by Federal 
                statute or Executive order.
            ``(6) Workday.--In applying sections 6303(a), 6304, 
        6307(a), 6307(d), 6323, 6326, 6327, and 8339(m) to an employee 
        assigned a compressed work schedule under this subsection, 
        references to a day or a workday (or to multiples or parts 
        thereof) shall be considered to be references to 8 hours (or to 
        the respective multiples or parts thereof).
            ``(7) Negotiations.--The provisions set forth in this 
        subsection shall be subject to collective bargaining 
        negotiations with the border patrol agents' collective 
        bargaining representative.
    ``(j) Rulemaking.--The Director of the Office of Personnel 
Management shall promulgate regulations to carry out this section, 
including regulations governing--
            ``(1) elections and assignments of a border patrol rate of 
        pay for newly hired border patrol agents who complete initial 
        training during an annual period;
            ``(2) situations in which an agent receives more than 1 
        type of border patrol rate of pay in a biweekly pay period or 
        is employed as a border patrol agent for only part of a 
        biweekly pay period; and
            ``(3) the treatment of hours that are substituted for 
        nonpay status hours during regular time.''.
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