[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2776 Introduced in House (IH)]

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117th CONGRESS
  1st Session
                                H. R. 2776

 To amend title 5, United States Code, to modify the authority for pay 
  and work schedules of border patrol agents, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 22, 2021

Mr. Tony Gonzales of Texas (for himself, Ms. Herrell, and Mr. Cuellar) 
 introduced the following bill; which was referred to the Committee on 
                          Oversight and Reform

_______________________________________________________________________

                                 A BILL


 
 To amend title 5, United States Code, to modify the authority for pay 
  and work schedules of border patrol agents, and for other purposes.

    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 
Amendments Act of 2021''.

SEC. 2. AMENDMENTS TO THE BORDER PATROL AGENT PAY REFORM ACT OF 2014.

    (a) Border Patrol Agent 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)(1)--
                    (A) in subparagraph (A), by striking ``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'' and inserting ``Not later than December 1 
                of each year, a border patrol agent shall make an 
                election whether the border patrol agent shall, for the 
                next annual period beginning on the first day of the 
                first pay period that commences on or after January 1, 
                be assigned to'';
                    (B) 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 in its place ``Not later than November 1 
                of each year'';
                    (C) in subparagraph (D)--
                            (i) by amending clause (iv) to read as 
                        follows:
                            ``(iv) a border patrol agent shall be 
                        assigned a basic border patrol rate of pay 
                        during the period of initial training 
                        (including initial orientation sessions, basic 
                        training, and other preparatory activities) 
                        prior to the agent's first regular work 
                        assignment; and''; and
                            (ii) in clause (v), by striking ``or the 
                        level 2 border patrol rate of pay'';
                    (D) 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 in its place ``a written staffing 
                        analysis''; 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 location population, U.S. Customs 
                        and Border Protection shall exclude from such 
                        population any border patrol agent who is 
                        assigned a basic border patrol rate of pay 
                        under subparagraph (D)(iii) or (D)(iv) or who 
                        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 each year.''; and
                    (E) by striking subparagraph (G);
            (3) in subsection (b)(2)--
                    (A) by amending subparagraph (C)(i) to read as 
                follows:
                            ``(i) any compensation under this section 
                        or any other provision of law in addition to 
                        the compensation provided under subparagraph 
                        (B); or'';
                    (B) in subparagraph (E)--
                            (i) by striking ``paid leave'' and 
                        inserting ``leave''; and
                            (ii) by striking ``absent from work'' and 
                        inserting ``excused from work'';
                    (C) in subparagraph (F)(ii), by striking ``and'';
                    (D) by amending subparagraph (G) to read as 
                follows:
                    ``(G) if the border patrol agent participates in a 
                full day of advanced training but does not perform the 
                entire 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, but such deemed 
                credit may be applied to no more than 180 hours in a 
                calendar year; otherwise, the agent shall accrue a debt 
                of hours for scheduled overtime not worked on such a 
                day; and''; and
                    (E) by adding at the end the following:
                    ``(H) a border patrol agent may choose to reduce 
                any debt of obligated overtime hours that the agent has 
                incurred by applying any accrued compensatory time off 
                for travel pursuant to section 5550b, and such 
                compensatory time off for travel may be applied towards 
                such debt only after other forms of overtime or earned 
                compensatory time credited to the border patrol agent 
                have been exhausted.'';
            (4) in subsection (b)(3)--
                    (A) by amending subparagraph (C)(i) to read as 
                follows:
                            ``(i) any compensation under this section 
                        or any other provision of law in addition to 
                        the compensation provided under subparagraph 
                        (B); or'';
                    (B) in subparagraph (E), by striking ``paid leave'' 
                and inserting ``leave'';
                    (C) in subparagraph (F)(ii), by striking ``and'';
                    (D) by amending subparagraph (G) to read as 
                follows:
                    ``(G) if the border patrol agent participates in a 
                full day of advanced training but does not perform the 
                entire 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, but such deemed 
                credit may be applied to no more than 90 hours in a 
                calendar year; otherwise, the agent shall accrue a debt 
                of hours for scheduled overtime not worked on such a 
                day; and''; and
                    (E) by adding at the end the following:
                    ``(H) a border patrol agent may choose to reduce 
                any debt of obligated overtime hours that the agent has 
                incurred by applying any accrued compensatory time off 
                for travel pursuant to section 5550b; such compensatory 
                time off for travel may be applied towards such debt 
                only after other forms of overtime or earned 
                compensatory time credited to the border patrol agent 
                have been exhausted.'';
            (5) 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 application of the level 1 border patrol rate of 
        pay or the level 2 border patrol rate of pay shall be treated 
        as part of basic pay only--
                    ``(A) except as otherwise provided in paragraph 
                (3), for purposes of the definitions in section 8331(3) 
                and 8401(4) and the provisions in chapters 83 and 84 
                that rely on those definitions (consistent with section 
                8331(3)(I));
                    ``(B) except as otherwise provided in paragraph 
                (3), for purposes of sections 5595(c) and 8704(c);
                    ``(C) for the purpose of section 8114(e); and
                    ``(D) subject to paragraph (2) and any limitation 
                established under paragraph (3), any other purpose that 
                the Director of the Office of Personnel Management may 
                by regulation prescribe.
            ``(2) Exclusions.--The overtime supplement described in 
        paragraph (1) shall not be treated as part of basic pay for 
        purposes not covered by that paragraph, including the purposes 
        of calculating--
                    ``(A) overtime pay, night pay, Sunday pay, or 
                holiday pay under section 5542, 5545, or 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 
                paragraphs (1)(A) and (1)(B) may not exceed the amount 
                derived 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). That career average percentage is 
                computed without regard to the effect of the limitation 
                on premium pay under section 5547, but the premium pay 
                limitation remains applicable in determining the dollar 
                amount of any overtime supplement computed using the 
                career average percentage.
                    ``(B) Control period.--For the purposes of applying 
                subparagraph (A), the control period described in this 
                subparagraph is the period that begins 3 years before 
                the date a border patrol agent will meet age and 
                service requirements associated with entitlement to an 
                immediate annuity and continues throughout the 
                remainder of the individual's career as a border patrol 
                agent.
                    ``(C) Assigned overtime supplement percentages.--
                For the purpose of applying 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 (excluding any period of 
                initial training prior to the agent's first regular 
                work assignment) prior to the beginning of the control 
                period described in subparagraph (B). During such 
                control period, the career average shall be recomputed 
                at the end of each annual period (as described in 
                subsection (b)(1)(A)). In computing such career 
                average, any periods of service as a border patrol 
                agent prior to 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.
            ``(4) Annual leave payment.--For the purpose of 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 derived under this paragraph. Such 
        overtime supplement shall be based on the lower of the agent's 
        actual overtime supplement percentage in effect at separation 
        or the average percentage of the agent's overtime supplement 
        over the 26 full biweekly pay periods immediately preceding 
        that separation, and shall not exceed the amount that is or 
        would be payable under the premium pay limitation in section 
        5547.'';
            (6) in subsection (f)--
                    (A) in the heading of such subsection, by striking 
                ``and Substitution of Hours'' and inserting ``During 
                Regular Time; Absences During Scheduled Overtime''; and
                    (B) by adding at the end the following:
            ``(5) Application.--
                    ``(A) Limitation on substitution.--Notwithstanding 
                paragraph (1), scheduled overtime (as described in 
                paragraph (2)(A)(ii) or (3)(A)(ii) of subsection (b)) 
                may not be substituted for leave without pay on a day 
                when a border patrol agent has a full day of leave 
                without pay.
                    ``(B) Leave without pay.--As provided in paragraphs 
                (2)(A)(ii) and (3)(A)(ii) of subsection (b), a border 
                patrol agent shall incur no scheduled overtime 
                obligation on a day when the agent has a full day of 
                leave without pay.''; and
            (7) by adding at the end the following:
    ``(h) Alternative Work Schedules.--
            ``(1) In general.--Notwithstanding any other provision in 
        this section or section 6101, U.S. Customs and Border 
        Protection may assign a border patrol agent an alternative work 
        schedule as described in this subsection, subject to any 
        regulations prescribed by the Director of the Office of 
        Personnel Management. No alternative work schedule may be 
        established under subchapter II of chapter 61.
            ``(2) Level 2 border patrol agent.--A border patrol agent 
        receiving a level 2 border patrol rate of pay may, in lieu of 
        the standard work schedule described in subsection (b)(3)(A), 
        be assigned to an alternative work schedule under the following 
        terms and conditions:
                    ``(A) The alternative work schedule shall be a 
                regular tour of duty consisting of 9 workdays per 
                biweekly pay period, with--
                            ``(i) 8 workdays including 9 hours of 
                        regular time per workday and 1 additional hour 
                        of scheduled overtime for each day the agent 
                        performs work during regular time; and
                            ``(ii) 1 workday including 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 continue to apply to an agent assigned to 
                an alternative 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 
                described in subparagraph (A), respectively.
            ``(3) Basic border patrol agent.--A border patrol agent 
        receiving a basic border patrol rate of pay may, in lieu of the 
        standard work schedule described in subsection (b)(4)(A), be 
        assigned to an alternative work schedule that is a regular tour 
        of duty consisting of 4 workdays per week with 10 hours of 
        regular time per workday.
            ``(4) Sunday pay; premium pay.--A border patrol agent 
        assigned to an alternative work schedule under this subsection, 
        may receive, as applicable--
                    ``(A) Sunday pay for no more than 8 hours of 
                regular time associated with a given Sunday, consistent 
                with section 5546(a);
                    ``(B) premium pay for work on a holiday for no more 
                than 8 hours of regular time associated with a given 
                holiday, consistent 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.
            ``(5) Application.--For purposes of administering sections 
        6303(a), 6304, 6307(a) and (d), 6323, 6326, 6327, and 8339(m), 
        in the case of an employee assigned to an alternative work 
        schedule under this subsection, references to a day or workday 
        (or to multiples or parts thereof) contained in such sections 
        shall be considered to be references to 8 hours (or to the 
        respective multiples or parts thereof).
    ``(i) Regulations.--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 one 
        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.''.
    (b) Overtime Rates.--Section 5542(g)(5) of title 5, United States 
Code, is amended--
            (1) in subparagraph (A), by striking ``leave year'' and 
        inserting ``an annual period, as described in section 
        5550(b)(1)(A)''; and
            (2) by amending subparagraph (E) to read as follows:
                    ``(E) shall not receive credit towards computation 
                of the border patrol agent's annuity based on unused 
                compensatory time off; and''.
    (c) Premium Pay Cap.--Section 5547(c) of title 5, United States 
Code, is amended by inserting after ``duty,'' the following: ``or to 
border patrol agents who receive an overtime supplement for overtime 
hours within their regular tour of duty under section 5550,''.
    (d) Basic Pay for Retirement.--Section 8331(3)(I) of title 5, 
United States Code, is amended by adding before the semicolon at the 
end the following: ``, subject to the limitation prescribed in section 
5550(d)(3)''.
    (e) Scheduled Overtime Work.--Section 2(c)(2) of the Border Patrol 
Agent Pay Reform Act of 2014 (Public Law 113-277) is amended by 
inserting after ``scheduled overtime work'' the following: ``(other 
than scheduled overtime work within the regular tour of duty)''.

SEC. 3. EFFECTIVE DATE.

    The amendments made by section 2 shall take effect on the first day 
of the first pay period beginning on or after the day that is 90 days 
after the date of the enactment of this Act.
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