[Senate Report 113-248]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-248
_______________________________________________________________________

                                     

                                                       Calendar No. 548


                   BORDER PATROL AGENT PAY REFORM ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1691

 TO AMEND TITLE 5, UNITED STATES CODE, TO IMPROVE THE SECURITY OF THE 
 UNITED STATES BORDER AND TO PROVIDE FOR REFORMS AND RATES OF PAY FOR 
                          BORDER PATROL AGENTS




                August 26, 2014.--Ordered to be printed
     Filed, under authority of the order of the Senate of August 5 
                   (legislative day, August 1), 2014
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                  THOMAS R. CARPER, Delaware, Chairman
CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota

                  Gabrielle A. Batkin, Staff Director
               John P. Kilvington, Deputy Staff Director
                    Mary Beth Schultz, Chief Counsel
           Blas Nunez-Neto, Senior Professional Staff Member
                  Katherine C. Sybenga, Senior Counsel
               Keith B. Ashdown, Minority Staff Director
         Christopher J. Barkley, Minority Deputy Staff Director
               Andrew C. Dockham, Minority Chief Counsel
         Daniel P. Lips, Minority Director of Homeland Security
               Gabrielle D'Adamo Singer, Minority Counsel
                     Laura W. Kilbride, Chief Clerk


                                                       Calendar No. 548
113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-248

======================================================================



 
                   BORDER PATROL AGENT PAY REFORM ACT

                                _______
                                

                August 26, 2014.--Ordered to be printed

     Filed, under authority of the order of the Senate of August 5 
                    (legislative day, August1), 2014

                                _______
                                

 Mr. Carper, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1691]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1691) to amend 
title 5, United States Code, to improve the security of the 
United States border and to provide for reforms and rates of 
pay for border patrol agents, having considered the same, 
reports favorably thereon with an amendment in the nature of a 
substitute, and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History.............................................10
 IV. Section-by-Section Analysis of the bill, as Reported............12
  V. Evaluation of Regulatory Impact.................................18
 VI. Congressional Budget Office Estimate............................19
VII. Changes in Existing Law Made by the Bill, as Reported...........20

                         I. Purpose and Summary

    S. 1691 would reform the pay system for Border Patrol 
agents by updating it to reflect the number of hours those 
agents regularly work and the way in which those hours are 
scheduled. At the same time, the bill would provide those 
agents with more reliable schedules and predictable paychecks, 
while enabling them to spend more time patrolling the border 
and saving taxpayers an estimated $100 million annually.

              II. Background and Need for the Legislation


             COMPENSATION FOR FEDERAL EMPLOYEES IN GENERAL

    Federal law contains a number of different systems under 
which federal employees receive compensation for the hours they 
work. Most federal employees, including the BorderPatrol agents 
who are the subject of S. 1691, receive a base salary whose amount is 
set by their grade and step on the General Schedule, or GS.\1\ This 
salary generally compensates them for the first 40 hours they work each 
week. Depending on the type of work they perform, those working in 
excess of 40 hours in a given week may receive compensation under one 
or more of several statutes governing overtime pay.\2\
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    \1\Entry level agents are usually placed at GS 5, step 1, while the 
most experienced agents can reach GS 12, step 10.
    \2\Some workers, most notably those at a supervisory level are 
exempt from overtime pay requirements. See 29 U.S.C. Sec. 213(a)(1).
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    The Fair Labor Standards Act (FLSA), the primary federal 
statute regulating the wages and hours of most of the nation's 
workforce, requires most employees to receive an amount equal 
to one and one-half of their hourly rate of pay for each hour 
they work over 40 in any given week.\3\ The Federal Employee 
Pay Act (FEPA) authorizes overtime pay for scheduled overtime--
or overtime that is authorized by a manager in advance of the 
work being performed. FEPA overtime compensation is capped by 
law at the greater of the time-and-a-half at the GS-10, step 1 
rate (currently $69,344 before locality pay adjustments are 
factored in) or the straight time rate at the agent's own GS 
and step level.\4\
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    \3\Again, several types of employees not at issue in this bill are 
exempt from the FLSA's overtime rules. See 29 U.S.C. Sec. 213.
    \4\See 5 U.S.C. Sec. 5542(a).
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    In 1954, Congress established Administratively 
Uncontrollable Overtime (AUO) to compensate federal employees 
whose duties require irregular and unpredictable work extending 
beyond a normal shift.\5\ As explained in the Code of Federal 
Regulations, AUO premium pay is authorized for a position ``in 
which the hours of duty cannot be controlled administratively 
and which requires substantial amounts of irregular or 
occasional overtime work, with the employee generally being 
responsible for recognizing, without supervision, circumstances 
which require the employee to remain on duty.''\6\ Essentially, 
an employee is only allowed to use AUO if he or she is working 
hours that could not have been scheduled in advance and if it 
would be negligent to leave the job unfinished.
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    \5\See 5 U.S.C. Sec. 5545(c).
    \6\See 5 C.F.R. Sec. 550.151. As of 1974, AUO compensation is 
considered in an employee's retirement annuity calculation. See 5 
U.S.C. Sec. 8331(3)(D).
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    AUO provides additional pay for an employee--generally 
between 10 and 25 percent of the base salary--for self-directed 
hours of overtime worked that are unschedulable. For example, 
if an employee works an additional 10 hours of unscheduled work 
each week--for a total of 100 hours worked in a pay-period--
that employee would receive a 25 percent increase in their 
basic pay. Managers must certify that an employee is eligible 
to earn AUO pay--based on the characteristics of the tasks that 
they are performing--on a quarterly basis. AUO-eligible 
employees are then charged with determining on any given day 
whether the work that they are performing requires them to work 
additional hours beyond their regularly scheduled 8-hour 
shifts. An AUO-eligible employee may also receive other premium 
pay for ``regularly scheduled work'' hours--defined under 
federal regulations as the first 40 hours worked during a work-
week\7\--including night pay,\8\ Sunday pay,\9\ and holiday 
premium pay.\10\ The amount of AUO premium pay that any 
employee can generally receive in a pay-period is capped by 
law.\11\
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    \7\See 5 C.F.R. Sec. 610.111.
    \8\Employees eligible for night pay receive an additional 10 
percent of their hourly rate for each hour of regularly scheduled work 
performed at night. See 5 U.S.C. Sec. 5545(a).
    \9\Employees eligible for Sunday pay receive an additional 25 
percent of their hourly rate for each hour of regularly scheduled work 
when any part or the whole of that shift is performed on a Sunday See 5 
U.S.C. Sec. 5546(a).
    \10\According to OPM, ``employees who are required to work on a 
holiday receive their rate of basic pay, plus holiday premium pay, for 
each hour of holiday work. Holiday premium pay is equal to an 
employee's rate of basic pay.'' See 5 U.S.C. Sec. 5546(b). and [http://
www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-
sheets/holidays-work-schedules-and-pay/] last visited July 24, 2014.
    \11\According to OPM:
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        There is a biweekly pay limitation that limits the amount 
      of premium pay that can be paid during a biweekly pay 
      period. Under 5 U.S.C. Sec. 5547(a) and 5 C.F.R. 
      Sec. 550.105, premium pay cannot be paid to General 
      Schedule employees (including law enforcement officers and 
      other covered employees) to the extent that doing so would 
      cause an employee's basic pay, overtime pay, the dollar 
      value of compensatory time off, night pay, annual premium 
      pay, Sunday premium pay, and holiday premium pay to exceed 
      the greater of the biweekly rate for GS-15, step 10 
      (including any applicable special salary rate or locality 
      rate of pay), or level V of the Executive Schedule. 
      Exception: For employees performing emergency work (as 
      determined by the agency head or OPM), or mission-critical 
      work (as determined by the agency head), premium pay cannot 
      be paid which causes the total of basic pay and premium pay 
      to exceed the greater of the annual rate for- GS-15, step 
      10 (including any applicable special salary rate or 
      locality rate of pay); or level V of the Executive 
      Schedule. These limitations do not apply to wage employees 
      or to FLSA overtime pay.''
See http://www.opm.gov/policy-data-oversight/pay-leave/pay-
administration/fact-sheets/overtime-pay-title-5/], last visited on July 
29, 2014.
    AUO-certified employees may also receive FLSA-regulated 
compensation for overtime hours, in addition to the premium pay 
they receive through AUO.\12\ The FLSA generally requires 
employers to pay nonexempt employees\13\ one-and-a-half times 
their regular rate of pay for hours worked in excess of 40 in a 
workweek. Under the FLSA, law enforcement employees, including 
Border Patrol agents, are paid time-and-a-half for hours worked 
in excess of 42.75 hours in a week\14\--something virtually all 
AUO-eligible employees at the Border Patrol do.\15\ For 
unscheduled overtime hours worked above 85.5 per pay-period (up 
to 100 hours) the agency pays AUO at the agent's regular rate 
of pay plus an additional half-rate of pay through FLSA--
totaling time and a half.\16\ In the rare instance in which an 
agent exceeds 100 hours, for those additional hours they would 
receive only the half-rate FLSA compensation.\17\
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    \12\Some employees, generally managers, are exempt from earning 
FLSA overtime (See 29 U.S.C. Sec. 213) but can still receive AUO under 
5 U.S.C. Sec. 5545(c)(2).
    \13\Employees that are exempted from receiving FLSA overtime 
include most management personnel, including all personnel at the GS-14 
and GS-15 level. From email correspondence with CBP, July 29, 2014.
    \14\5 C.F.R. Sec. 551.216.
    \15\Briefing by Customs and Border Protection, May 11, 2014.
    \16\According to OPM, the guidelines for how FLSA interacts with 
AUO are as follows:
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      ``for AUO employees, the straight time rate of pay is equal 
      to basic pay plus AUO pay divided by the hours for which 
      the basic pay plus AUO pay are intended. (See 5 CFR 
      Sec. 551.512(b).) Thus, an AUO employee has received the 
      straight time rate of pay for the hours for which basic pay 
      and AUO pay are intended. In other words, the AUO employee 
      has been paid once for hours covered by basic pay and AUO 
      pay, leaving an agency with the obligation of straight time 
      pay for any regularly scheduled overtime hours (not covered 
      by AUO pay) plus a half-rate obligation for all overtime 
      hours to meet the FLSA time-and-one-half overtime 
      requirement.''
See [http://archive.opm.gov/oca/compmemo/html/cpm97-5a.htm], last 
visited on May 30, 2014.
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    \17\This is because AUO pays a maximum of 25 percent of an agent's 
basic pay--for example if an agent worked 110 hours in a pay-period 
that agent would get their 25 percent AUO rate, plus 24.5 hours of half 
rate FLSA overtime payments. Briefing by Customs and Border Protection, 
July 29, 2014.
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    Lastly, the Border Patrol uses a separate legal authority 
to pay for scheduled overtime--or overtime that is authorized 
by a manager, generally in advance of the work being performed. 
This compensation is authorized by the Federal Employee Pay Act 
of 1945 (FEPA). For example, an agent in the field may be 
scheduled to work a 6th shift in one work week in order to 
respond to an emergency--such as dealing with the current 
humanitarian challenge involving unaccompanied minors in south 
Texas. For that extra shift, the agent would be paid under the 
FEPA pay authority.\18\ In recent years, the Border Patrol has 
used scheduled FEPA overtime very sparingly, paying out only $4 
million in fiscal year 2012 and less than $1 million in fiscal 
year 2013.\19\
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    \18\Agents assigned to such a shift would be paid by FEPA, but are 
also subject to the FLSA requirements. This means that they often 
receive both FEPA and FLSA pay for this kind of scheduled overtime. 
FEPA overtime compensation is capped by law at the greater the time-
and-a-half of the GS-10, step 1 rate ($69,344 before locality pay 
adjustments are factored in) or the straight time rate at the agent's 
own GS and step level. However, agents paid with FEPA for scheduled 
overtime are also eligible for FLSA payments if they are non-exempt. In 
practice, the interplay between FEPA and FLSA means most agents who are 
scheduled overtime earn very close to time-and-a-half. From a telephone 
call with Customs and Border Protection, July 29, 2014.
    \19\Email correspondence with Customs and Border Protection, May 
28, 2014.
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              border patrol agents' overtime compensation
    The Border Patrol, a component of the Department of 
Homeland Security's (DHS's) U.S. Customs and Border Protection 
(CBP), is charged with securing our nation's borders against 
the illegal entry of terrorists, criminals, illicit contraband 
and undocumented immigrants. Over the years, the Border Patrol 
has become a prolific user--and as it turns out, often a 
misuser--of the AUO system, often using it to pay for overtime 
hours that are predictable and could have been scheduled in 
advance. Forty years ago, when the AUO system was last 
extensively modified, AUO offered an entirely appropriate means 
for awarding agents overtime pay based on the operational 
demands of the Border Patrol. Border Patrol agents were 
regularly in ``hot pursuit'' of a group of border crossers when 
their shift was scheduled to end. Because of the remoteness of 
the areas in which the agents routinely found themselves and 
the limits on communications systems at the time, those agents 
could not pause from their pursuit to seek approval of 
unscheduled overtime. AUO was a natural fit for this kind of 
work environment.
    However, the nature of the work performed by frontline 
agents has changed dramatically over the past 40 years--and 
particularly over the past decade, as apprehensions made by 
Border Patrol agents have declined to near historical lows. In 
1975 the Border Patrol had 1,746 agents who made 596,796 
apprehensions of individuals attempting to cross the border 
illegally.\20\ In fiscal year 2013, the most recent year for 
which data is available, the Border Patrol had a legislatively 
mandated floor of 21,370 agents who made 420,789 
apprehensions.\21\ In other words, the Border Patrol has more 
than 12 times more agents deployed to the border today than it 
did when AUO was created, but these agents make 30 percent 
fewer apprehensions overall. On the ground, this change has 
meant that agents needing regular AUO to continue ``hot 
pursuits'' no longer accurately reflects the work agents 
generally do today.
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    \20\University of Syracuse, Transactional Records Access 
Clearinghouse Immigration, National Trends in Apprehensions and 
Staffing, available at [http://trac.syr.edu/immigration/reports/141/
include/rep141table2.html], last visited June 3, 2014.
    \21\Briefing by Customs and Border Protection, May 11, 2014.
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    In the early 1990s, the Border Patrol began implementing a 
new strategy known as ``prevention through deterrence'' that 
focused its efforts on deploying agents and resources directly 
on the border in order to deter illegal border crossings. 
Starting in El Paso, Texas in 1993 with Operation Hold the 
Line, and later expanded to San Diego with Operation Gatekeeper 
in 1994, the Border Patrol began deploying agents, cameras and 
underground sensors, and fencing directly on the border in an 
effort to deter illegal border crossings. Over the next two 
decades, the Border Patrol continued to expand the resource-
intensive ``prevention through deterrence'' approach across the 
length of the border with Mexico, increasingly deploying its 
agents to the more remote parts of the southern border.\22\ In 
order to maximize their ability to cover the length of the 
border, managers began routinely assigning agents to work 10-
hour shifts--which allowed the agency to cover each day with 
three overlapping 10-hour shifts, instead of four overlapping 
8-hour shifts. Agents were paid for these extra hours using 
AUO, despite the fact that the extra hours they were working 
were largely predictable and essentially scheduled.\23\
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    \22\Seghetti, Lisa, Border Security: Immigration Enforcement 
Between Ports of Entry, R42138, Congressional Research Service, January 
16, 2014.
    \23\From a series of briefings by Customs and Border Protection, 
January to June 2014.
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    Over the past decade, the Border Patrol has increasingly 
begun to use intelligence gathering by its agents during a 
shift in order to focus the enforcement efforts of the next 
shift of agents. The 2012 Border Patrol Strategic Plan 
formalized this change in operations, shifting the agency away 
from the ``prevention through deterrence'' model and instead 
emphasizing the use of intelligence and risk analysis to guide 
deployments.\24\ Agents are now regularly tasked with 
generating real-time intelligence reports on the trends they 
encounter during their shift, including geo-locating their 
apprehensions and mapping them, in order to allow supervisors 
to more effectively deploy their personnel. They are also 
increasingly being deployed into remote, rugged environments 
where travel time from the station where they receive their 
instructions for the shift--known as the muster--to the border 
can take up to two hours each way. However, travel to and from 
their work station and generating reports to inform the next 
shift of agents are not activities that are authorized to be 
paid by the AUO statute and its implementing regulations. 
Additionally, communication systems along the border have 
increased dramatically over the past 40 years, making it far 
easier for an agent deployed to a remote part of the border to 
contact a supervisor in order to authorize their actions.\25\
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    \24\See: Customs and Border Protection, 2012-2016 Border Patrol 
Strategic Plan, Washington, DC, 2012.
    \25\From a series of briefings by Customs and Border Protection, 
January to June 2014.
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    While the nature of the work performed by the average agent 
has changed over the years, the Border Patrol has been slow to 
change how it administers its overtime system. Part of the 
issue is that for years, CBP reportedly promised agents that 
they would receive an additional 25 percent pay above their 
base salary each year, essentially guaranteeing them the 
maximum hours of AUO.\26\
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    \26\See testimony of Brandon Judd, President of the National Border 
Patrol Council, ``Border Security: Examining the Implications of S. 
1691, the Border Patrol Pay Reform Act of 2013,'' hearing before the 
Senate Committee on Homeland Security and Governmental Affairs, 113th 
Cong. (June 9, 2014). http://www.hsgac.senate.gov/hearings/border-
security-examining-the-implications-of-s-1691-the-border-patrol-agent-
pay-reform-act-of-2013.
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    As reported last year by the Office of Special Counsel 
(OSC), the independent federal agency charged with protecting 
federal employees and applicants from prohibited personnel 
practices, the Border Patrol has misused AUO to pay for work 
performed by agents that should have been paid using a 
different kind of overtime, or perhaps in some cases, for hours 
that were not worked and should not have been paid at all.
    On October 31, 2013, OSC issued a letter and report to the 
President detailing ``long-standing abuse of overtime payments 
by the Department of Homeland Security.''\27\ The report 
followed up on a 2008 OSC investigation that reached similar 
conclusions. In its report, OSC discussed 10 specific cases 
involving Border Patrol agents,\28\ and revealed that, for 
years, the Border Patrol misused AUO by using it to pay for 
activities that were not uncontrollable by their nature and not 
contemplated by the statute authorizing AUO. This misuse 
essentially means that either: (a) agents should have been 
compensated under the more generous FLSA or FEPA overtime 
systems; or (b) agents were performing work that was not time-
sensitive, could have been deferred to a subsequent shift, and 
thus should not have received overtime at all.
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    \27\Letter from Carolyn Lerner, Special Counsel, to President 
Barack Obama, October 31, 2013. Available at: https://osc.gov/
PublicFiles/FY2014/14-1%20DI-13-0002/14-1%20DI-13-0002%20-
%20Letter%20to%20the%20President.pdf, last visited August 20, 2014.
    \28\The OSC report also identified cases of AUO misuse at 
Immigration and Customs Enforcement (ICE), U.S. Citizenship and 
Immigration Services (USCIS) and other agencies within DHS.
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    One key way that AUO has been misused by Border Patrol 
managers is to compensate employees in the field for working a 
10-hour shift. As noted above, the Border Patrol prefers 
deploying three 10-hour shifts of agents in any given day 
because it believes this maximizes its ability to patrol the 
border in a 24-hour period. The Deputy Special Counsel for 
Policy and Congressional Affairs of the OSC, Adam Miles, 
testified before this Committee that Border Patrol managers in 
Laredo, Texas made a deliberate choice to ``continue with 
three, ten-hour shifts per day utilizing AUO to facilitate the 
shift changes. The managers insist that employing three, ten-
hour shifts is a more cost-effective approach to securing the 
border, even if AUO may not properly be used for routine 
activities.''\29\
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    \29\See testimony of Adam Miles, Deputy Special Counsel, Policy and 
Congressional Affairs, U.S. Office of Special Counsel, ``Border 
Security: Examining the Implications of S. 1691, the Border Patrol Pay 
Reform Act of 2013,'' hearing before the Senate Committee on Homeland 
Security and Governmental Affairs, 113th Cong. (June 9, 2014).
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    The OSC referred a total of ten cases to CBP's Office of 
Internal Affairs and the DHS Office of the Inspector General 
(OIG) alleging misuse of AUO by CBP personnel.\30\ Some of the 
allegations received by the OSC, and detailed in this report, 
claimed that Border Patrol agents were getting paid AUO for 
hours that they were not actually performing work, or for 
watching television or surfing the internet. In testimony 
before this Committee, Paul L. Hamrick, the Deputy Assistant 
Commissioner of the Office of Internal Affairs at the U.S. 
Customs and Border Protection noted that his office had 
investigated 6 of the 10 cases of AUO abuse identified by the 
OSC, and in at least one case had performed covert surveillance 
on employees. He noted that, ``[a]lthough the Office of Special 
Counsel received complaints that overtime hours compensated 
under AUO were not being worked--allegations that, if proven, 
could constitute criminal or administrative violations--our 
investigations did not substantiate any OSC allegations that 
employees had received AUO compensation for hours that were not 
worked.''\31\ In other words, these employees were, in fact, 
working the additional hours that they were paid for with AUO, 
but they should have been compensated for the work they 
performed using a different overtime system.\32\ Mr. Hamrick 
also stated that his office confirmed that CBP was misusing AUO 
in a number of locations, including at the Commissioner's 
Situation Room in U.S. Customs and Border Protection's 
Headquarters and the Federal Law Enforcement Training Academy 
in Artesia, New Mexico.
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    \30\One of the cases referred by OSC alleged misuse of AUO by 
personnel at the CBP Office of Internal Affairs. That case, and three 
others, are being investigated by the OIG.
    \31\See testimony of Paul L. Hamrick, Deputy Assistant Commissioner 
of the Office of Internal Affairs at the U.S. Customs and Border 
Protection, ``Border Security: Examining the Implications of S. 1691, 
the Border Patrol Pay Reform Act of 2013,'' hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, 113th Cong. 
(June 9, 2014).
    \32\``Border Security: Examining the Implications of S. 1691, the 
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, 113th Cong. 
(June 9, 2014). http://www.hsgac.senate.gov/hearings/border-security-
examining-the-implications-of-s-1691-the-border-patrol-agent-pay-
reform-act-of-2013.
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    In two cases referred by OSC and substantiated by Internal 
Affairs, Border Patrol agents were working alongside other CBP 
personnel and performing the same type of work. In these cases, 
the Border Patrol agents were receiving AUO but the other CBP 
personnel were not. For example, agents in San Ysidro, 
California were assigned to work paralegal duties alongside 
civilian paralegals, but the agents were regularly provided AUO 
while the civilian paralegals did not work overtime. Similarly, 
Border Patrol agents working as instructors at DHS training 
facilities regularly received AUO, while CBP officers\33\ 
working at the same facilities did not. The Border Patrol has 
argued that their instructors need to work overtime at these 
facilities in order to prepare for the 8-hour day of 
instruction that trainees receive.\34\ CBP officers at these 
facilities told Internal Affairs that they were generally able 
to complete their preparatory work without working overtime, 
but acknowledged that ``[w]hen it is not possible to complete 
all additional instructor duties within an 8-hour day, [CBP 
officer] instructors generally complete these types of duties 
without compensation because AUO is not available to 
them.''\35\
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    \33\CBP officers work at ports of entry and are not eligible to 
receive AUO.
    \34\See testimony of Ronald Vitiello, Deputy Chief of the Border 
Patrol, ``Border Security: Examining the Implications of S. 1691, the 
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, 113th Cong. 
(June 9, 2014).
    \35\See written testimony of Adam Miles, Deputy Special Counsel, 
Policy and Congressional Affairs U.S. Office of Special Counsel, 
``Border Security: Examining the Implications of S. 1691, the Border 
Patrol Pay Reform Act of 2013,'' hearing before the Senate Committee on 
Homeland Security and Governmental Affairs, 113th Cong. (June 9, 2014).
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    In response to this report, DHS undertook a series of 
internal reviews. These reviews culminated in a May 23 
memorandum issued by Deputy Secretary Alejandro Mayorkas to DHS 
components acknowledging that ``it is clear that the Department 
is not in compliance with the rules governing AUO.'' The memo 
goes on to outline a number of new steps that will have to be 
taken by DHS components that use AUO, including:
    1.  Reviewing and updating the positions that are eligible 
for AUO;
    2. Improving AUO record-keeping;
    3.  Systematically reviewing the hours of AUO that are 
claimed;
    4.  Requiring managers to take a more active role in 
managing overtime; and
    5.  Updating the practice of ``excluding'' hours to come 
into compliance with regulations.\36\
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    \36\Memo from Deputy Secretary Alejandro N. Mayorkas to DHS 
components entitled: ``Improving AUO Administration in the Department 
of Homeland Security,'' May 23, 2014. Hereafter referenced as ``May 23 
AUO Memo.''
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    However, as the OSC pointed out in its letter, the misuse 
of AUO has been a known problem at DHS generally--and the 
Border Patrol specifically--since at least 2008. In response to 
the initial OSC complaint in 2008, DHS initiated an interagency 
process that culminated in a legislative proposal attached to 
the 2012 budget request.\37\ Congress did not act on this 
proposal, and CBP continued to misuse AUO.\38\
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    \37\Briefing with DHS Office of Legislative Affairs and Customs and 
Border Protection, November 21, 2013.
    \38\The 2012 legislative proposal would have put Border Patrol 
agents on the Law Enforcement Availability Pay (LEAP) system that is 
used by criminal investigators across the federal government. LEAP 
allows criminal investigators to be compensated for time that they are 
``available'' to work, and reflects the uncertain nature of their work. 
Criminal investigators work irregular hours and generally need to be 
``on-call'', or available, even when they are not working. The LEAP 
system was created to reflect these realities, and to compensate them 
for the extra hours that they need to work to close a case. LEAP is 
easier to manage and would be an improvement over the use of AUO for 
CBP. However, CBP believes that the nature of a Border Patrol agent's 
work requires them to be present, not available. Securing the border, 
by its very nature, requires that agents either be physically working 
along the border, or supporting frontline agents at stations, 
checkpoints, or headquarters. S. 1691 is an improvement over LEAP 
because it would require that Border Patrol agents be provided with an 
hour of pay for an hour of work performed.
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        S. 1691, THE BORDER PATROL AGENT PAY REFORM ACT OF 2013

    S. 1691 would address the problems outlined above by 
dramatically simplifying the pay system used by Border Patrol 
agents. It would eliminate AUO and FLSA overtime for Border 
Patrol agents and create a new pay system that results in more 
hours worked by agents, provides more reliable schedules and 
paychecks for agents, and saves taxpayers money. According to 
the Congressoinal Budget Office, these savings are estimated at 
$100 million annually.
    The bill has the support of both CBP and the union 
representing most Border Patrol agents. At a hearing before 
this Committee on June 9, 2014, Border Patrol Deputy Chief 
Ronald Vitiello testified that the bill would enable his agency 
to better secure the border: ``S. 1691 would replace AUO with a 
system that controls costs, fairly compensates certain agents 
for irregular and necessary work, and maximizes agent 
capability for critical law enforcement and border security 
responsibilities.'' Additionally, Deputy Chief Vitiello 
testified that the bill would result in current Border Patrol 
agents working 2.5 million hours more than they do today--or 
the equivalent of adding 1,500 agents to its workforce.\39\
---------------------------------------------------------------------------
    \39\See testimony of Ronald Vitiello, Deputy Chief of the Border 
Patrol, ``Border Security: Examining the Implications of S. 1691, the 
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, 113th Cong. 
(June 9, 2014).
---------------------------------------------------------------------------
    The Border Patrol Council, which represents Border Patrol 
agents, has also been supportive of this bill, despite the fact 
that the average Border Patrol agent likely would be paid less 
each year under this new pay system. As Brandon Judd, President 
of the Border Patrol Council, said in his testimony before the 
Committee, ``I want to make it clear that no Border Patrol 
agent is happy about the prospect of losing $6,400 per year. . 
. . We are sacrificing a lot, but in the end, it will prove to 
be a boon for border security, the American public, the agency, 
and the agents whom I represent.''\40\
---------------------------------------------------------------------------
    \40\See testimony of Brandon Judd, President of the National Border 
Patrol Council, ``Border Security: Examining the Implications of S. 
1691, the Border Patrol Pay Reform Act of 2013,'' hearing before the 
Senate Committee on Homeland Security and Governmental Affairs, 113th 
Cong. (June 9, 2014).
---------------------------------------------------------------------------
    Key components of the bill, as reported by the Committee, 
include:
      No AUO or FLSA. The bill would make Border Patrol 
agents ineligible for compensation under AUO or for overtime 
pay through the FLSA.
      Election. Each year, Border Patrol agents would 
select one of three rates of pay--and number of hours--that 
they would like to work:
          Level 1 rate of pay. Agents would work 
        100 hours per two-week pay period and receive 125 
        percent of their basic pay under the GS scale;
          Level 2 rate of pay. Agents would work 90 
        hours over the two-week pay period and receive 112.5 
        percent of their basic pay under the GS scale;
          Basic rate of pay. Agents would work 80 
        hours over the two-week pay period and receive their 
        basic pay under the GS scale.
      Staffing Assessment. The bill requires the Border 
Patrol to undertake a detailed assessment of its operational 
requirements and staffing needs at every Border Patrol station 
within one year of enactment, and submit it to Congress for 
review.
      GAO Audit. The bill requires the Government 
Accountability Office (GAO) to examine CBP's methodology and 
analysis and, within 90 days, submit a report to Congress 
indicating whether GAO concurs with CBP's assessment.
      Staffing Floor. The bill initially requires that 
no more than 10 percent of the agents at any given location be 
allowed to work less than 100 hours per two-week pay period, 
and authorizes CBP to unilaterally assign agents to work 90 or 
100 hours per pay period in order to meet this staffing floor. 
This means that if fewer than 90 percent of agents elect to 
work 100 hours in a given location, CBP must unilaterally 
assign agents to work the extra hours in order to ensure that 
90 percent of Border Patrol agents in that location are working 
100 hours per pay-period. This will ensure that the Border 
Patrol has a stable floor of staffing, allowing managers with a 
steady annual base-line of hours to plan border security 
operations. The staffing floor initially set by the bill would 
result in the average agent working more hours than they have 
in recent years, increasing efforts to secure the border by the 
equivalent of more than 1,500 agents.
      Lowering the Staffing Floor. Based on the results 
of the staffing assessment required by the bill, the staffing 
floor--the requirement that 90 percent of Border Patrol agents 
work 100 hours in a given location--could be lowered at any 
location if the assessment shows that the Border Patrol needs 
less hours to be worked in order to meet its operational 
requirements.
      Ensuring Security. The bill authorizes CBP to 
unilaterally assign agents to work additional hours if the 
security situation along the border necessitates it.
      Management and Training Exemption. Border Patrol 
agents assigned to work at headquarters, as training 
instructors, or in an administrative or fitness instructor 
position at any location would initially be assigned to the 
Basic Rate of Pay set by the bill--or required to work 80 hours 
every two-week pay period. However, if the staffing assessment 
required by the bill shows a need for additional hours to be 
worked by these agents in order to meet the agency's 
operational requirements, CBP would be authorized to allow 
agents to elect--or be assigned to work 100 hours or 90 hours 
per pay period.
      Compensatory Time. The work of securing the 
border is highly unpredictable, and there may be weeks when 
conditions on the ground necessitate that agents in a given 
location work more hours than the amount they initially 
elected. Unscheduled overtime worked beyond those hours they 
elected (or were assigned) to work would entitle agents to 
compensatory time off that could not be cashed out upon 
departure or retirement from the Border Patrol. Agents could 
not receive overtime pay for these hours. This compensatory 
time would be capped at 10 hours per pay period--although a 
manager could waive this 10 hour cap for compensatory time per 
pay period in order to respond to an emergency. The bill would, 
however, set a hard cap of 240 hours in compensatory time that 
any agent could earn in a given year.
      Scheduled Overtime. The bill would allow for 
scheduled overtime in order to give managers the flexibility to 
deal with surges in workload that necessitate agents being 
scheduled to work an additional shift. Such overtime would be 
compensated under the FEPA overtime system, as described above. 
The bill directs CBP to limit the use of scheduled overtime. 
The Committee expects that the Border Patrol will continue to 
minimize the use of scheduled overtime under this bill, much as 
it has over the past three years.
      Retirement Continuity. The bill, as amended by 
the Committee, would require CBP, in consultation with the 
Office of Personnel Management, to develop a plan to ensure 
that agents are not able to artificially elevate their 
retirement annuities by selecting a higher rate of pay than 
they have historically once they are within three years of 
being eligible to retire. CBP would have the authority to 
unilaterally assign agents to rates of pay in order to 
implement this plan. GAO would be required to review this plan 
and report to Congress concerning whether the plan proposed by 
CBP is effective.

                        III. Legislative History

    On November 13, 2013, Senators Tester and McCain introduced 
the Border Patrol Pay Reform Act of 2013 (S. 1691). A companion 
bill, H.R. 3463, was introduced in the House of Representatives 
on the same day. S. 1691 was referred to the Senate Committee 
on Homeland Security and Governmental Affairs. Additional co-
sponsors are Senators Heitkamp, Ayotte and Flake.
    On January 28, 2014, the Subcommittee on the Efficiency and 
Effectiveness of Federal Programs and the Federal Workforce 
held a hearing on reported DHS abuses AUO.\41\ The hearing, 
entitled ``Examining the Use and Abuse of Administratively 
Uncontrollable Overtime at the Department of Homeland 
Security,'' examined the instances of AUO abuse raised in OSC's 
report, as well as how the DHS and CBP responded to OSC's 
findings, including the disciplinary actions taken. Some of the 
witnesses also discussed how the Border Patrol Pay Reform Act 
of 2013 would help address the concerns raised by the OSC 
report and eliminate the use of AUO at the Border Patrol. The 
Special Counsel, Carolyn Lerner, Deputy Chief of the U.S. 
Border Patrol, Ronald Vitiello, DHS's Chief Human Capital 
Officer, Catherine Emerson, and President of the National 
Border Patrol Council, Brandon Judd, testified at the hearing.
---------------------------------------------------------------------------
    \41\``Examining the Use and Abuse of Administratively 
Uncontrollable Overtime at the Department of Homeland Security,'' 
hearing before the Subcommittee on the Efficiency and Effectiveness of 
Federal Programs and the Federal Workforce of the Senate Committee on 
Homeland Security and Governmental Affairs, 113th Cong. (January 28, 
2014). See http://www. hsgac.senate.gov/subcommittees/fpfw/hearings/
examining-the-use-and-abuse-of-administratively-uncontrollable-
overtime-at-the-department-of-homeland-security.
---------------------------------------------------------------------------
    On June 9, 2014, the Committee held a hearing on the bill, 
entitled, ``Border Security: Examining the Implications of S. 
1691, the Border Patrol Pay Reform Act of 2013.''\42\ The 
hearing focused on the impact the bill would have on CBP's 
ability to secure the border, manage its workforce, and make 
the most effective use of taxpayer resources. The Committee 
heard testimony from Deputy Chief of the U.S. Border Patrol, 
Ronald Vitiello, President of the National Border Patrol 
Council, Brandon Judd, Deputy Assistant Commissioner of the 
Office of Internal Affairs at U.S. Customs and Border 
Protection, Paul L. Hamrick and OSC's Deputy Special Counsel 
for Policy and Congressional Affairs, Adam Miles.
---------------------------------------------------------------------------
    \42\``Border Security: Examining the Implications of S. 1691, the 
Border Patrol Pay Reform Act of 2013,'' hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, 113th Cong. 
(June 9, 2014). See http://www.hsgac.senate.gov/hearings/border-
security-examining-the-implications-of-s-1691-the-border-patrol-agent-
pay-reform-act-of-2013.
---------------------------------------------------------------------------
    The Committee considered S. 1691 at a business meeting on 
June 25, 2014.
    Senators Tester and McCain offered a substitute amendment 
that made a number of changes suggested by DHS and the Office 
of Personnel Management. These changes included a requirement 
that CBP perform a staffing assessment, which would be used to 
determine whether CBP could deviate in either direction from 
the bill's baseline requirement that 90 percent of agents at a 
location work 100 hours per pay period at the level 1 Border 
Patrol rate of pay; a requirement that CBP implement a plan to 
ensure agents cannot artificially inflate their retirement 
annuities through the election process in the bill; an 
exemption for Headquarters and training facilities from the 
bill's requirement that 90 percent of agents work 100 hours per 
pay period at the level 1 Border Patrol rate of pay; and a 
requirement that CBP try to limit or avoid the use of scheduled 
overtime by Border Patrol agents. The substitute amendment was 
adopted by voice vote, with Senators Carper, Levin, Pryor, 
McCaskill, Tester, Heitkamp, Coburn, McCain, Johnson, and 
Portman present.
    Senator Coburn offered an amendment that would have 
required that CBP employees who spend 50 percent or more of 
their work hours serving as a union representative in 
negotiations and representing employees in personnel disputes--
known as ``official time''\43\--be assigned to work 80 hours 
per pay period at the basic Border Patrol rate of pay. This 
amendment was not adopted by a roll call vote of 6-9. Senators 
Coburn, McCain, Johnson, and Portman voted in favor of the 
amendment, and Senators Carper, Levin, Pryor, McCaskill, Tester 
and Heitkamp voted against the amendment. In addition, Senators 
Enzi and Ayotte voted in favor of the amendment by proxy, and 
Senators Landrieu, Begich and Baldwin voted against the 
amendment by proxy. Senators present for the vote were Senators 
Carper, Levin, Pryor, McCaskill, Tester, Heitkamp, Coburn, 
McCain, Johnson, and Portman.
---------------------------------------------------------------------------
    \43\Official time is authorized under 5 U.S.C.Sec. 7131.
---------------------------------------------------------------------------
    Senator Coburn offered another amendment that was modified 
by a second degree amendment offered by Senators Tester, McCain 
and Heitkamp. As originally offered, the amendment would have 
required that all Border Patrol agents assigned to 
Headquarters, working as training instructors at a training 
facility, working in an administrative position, or working as 
a fitness instructor be assigned to work 80 hours per pay 
period at the basic Border Patrol rate of pay. Senators Tester, 
McCain and Heitkamp offered a second degree amendment that 
allowed the Border Patrol more flexibility to have those Border 
Patrol agents work 90 or 100 hours and receive the level 1 or 
level 2 Border Patrol rate of pay if the staffing assessment 
required by the bill showed additional hours to be necessary to 
fulfill operational requirements. The Tester, McCain, Heitkamp 
second degree amendment was adopted by voice vote, as was the 
Coburn amendment, as modified by the second degree amendment. 
Senators present for both votes were Senators Carper, Levin, 
Pryor, McCaskill, Tester, Heitkamp, Coburn, McCain, Johnson and 
Portman.
    The Committee ordered the bill, as amended, favorably 
reported by a roll call vote of 9-0. Senators Carper, Levin, 
Pryor, McCaskill, Tester, Heitkamp, McCain, Johnson, and 
Portman voted in favor of the bill, while Senator Coburn voted 
present. Senators Landrieu, Begich, Baldwin, Enzi and Ayotte 
asked to be recorded as voting in favor of the bill by proxy, 
while Senator Paul asked to be recorded against the bill by 
proxy.

        IV. Section-by-Section Analysis of the Bill, as Reported

    Section 1--This section establishes the title of the 
legislation as ``The Border Patrol agent Pay Reform Act of 
2014''.
    Section 2--Border Patrol Rate of Pay
    (a) Purpose--States that the purpose of this bill is to 
provide a pay system for Border Patrol agents that acknowledges 
that agents routinely work beyond 40 hours per week and ensures 
that Customs and Border Protection has the ability to schedule 
work to fit operational needs.
    (b) Rates of Pay--inserts a new section 5550 after 5 U.S.C. 
Sec. 5549:

    Sec. 5550 (a) Definitions
      (a)(1) defines the term ``basic Border Patrol 
pay'' as the hourly rate of basic pay based on a 40 hour work 
week.
      (a)(2) defines the term ``Border Patrol agent.''
      (a)(3) defines the term ``level 1 Border Patrol 
rate of pay'' as an hourly rate 1.25 times an agent's basic 
hourly rate of pay.
      (a)(4) defines the term ``level 2 Border Patrol 
rate of pay'' as an hourly rate 1.125 times an agent's basic 
hourly rate of pay.
      (a)(5) defines the term ``work period'' as a 14-
day bi-weekly pay period.

    Sec. 5550 (b) Receipt of Border Patrol Rate of Pay
    (b)(1) Voluntary Election
      (b)(1)(A) Voluntary Election. On an annual basis 
Border Patrol agents will elect whether to be assigned to 
receive the level 1, level 2 or basic Border Patrol rate of 
pay. An agent has 30 days to elect. If the agent elects the 
basic rate of pay, CBP can still assign overtime as needed.
      (b)(1)(B) Regulations. OPM shall promulgate 
procedures for the election process.
      (b)(1)(C) Information Regarding Election. Customs 
and Border Protection must provide information to the agents 
regarding each type of pay that they can elect to be assigned.
      (b)(1)(D) Assignment in Lieu of Election. If an 
agent fails to elect a pay level within 30 days, the agent is 
automatically assigned to the level 1 rate of pay. A Border 
Patrol agent who is assigned a patrol dog will be assigned to 
the level 1 rate of pay. CBP has the authority to assign an 
agent to the basic rate of pay if CBP thinks the agent is 
unable, for any reason, to work the additional hours, and may 
also assign agents to level 1 or level 2 to ensure that at 
least 90 percent of agents, or the floor indicated by the 
staffing plan, are at the level 1 or level 2 rate of pay. 
Border Patrol agents at Headquarters, working as training 
instructors at a training facility, working in an 
administrative position, or working as a fitness instructor 
will be assigned to the basic Border Patrol rate of pay unless 
the staffing analysis CBP is required to conduct indicates 
additional hours by those agents are necessary to fulfill 
operational requirements.
      (b)(1)(E) Flexibility. No more than 10 percent of 
the agents stationed at a particular CBP duty station can be 
assigned to the basic Border Patrol rate of pay. CBP should 
take whatever action is necessary to ensure these results. 
However, if the staffing analysis required by the bill 
determines that less than 10 percent of agents should be 
assigned to the basic Border Patrol rate of pay in order to 
meet operational requirements, CBP can waive the requirement 
that not more than 10 percent of agents be assigned to the 
basic Border Patrol rate of pay for that duty station. Further, 
this 10 percent threshold would not apply at headquarters or 
training locations.
      (b)(1)(F) Canine Care. If an agent is both 
assigned to provide care for a patrol dog and to the level 1 
rate of pay, that rate of pay covers all of the work the agent 
must do to care for his or her patrol dog. Each hour spent 
caring for the dog is counted as 1 hour of scheduled work on 
each regular workday.
      (b)(1)(G) Pay Assignment Continuity.
           (i) Since the amount of a federal employee's 
        retirement annuity is calculated based on the highest 
        three years of the employee's salary, CBP must develop 
        and implement a plan within one year of enactment to 
        ensure an agent is unable to artificially enhance his 
        or her retirement pay by electing level 1 pay during 
        his or her last three years of service when he or she 
        had previously consistently worked at a lower level of 
        pay.
           (ii) CBP must take the actions necessary to 
        implement the plan.
           (iii) CBP must submit the plan to the appropriate 
        Congressional committees.
           (iv) Within six months of CBP issuing this plan, GAO 
        is required to submit a report on the effectiveness of 
        the plan to the appropriate Congressional committees.
           (v) ``Appropriate committees of Congress'' means the 
        Senate Committee on Homeland Security and Governmental 
        Affairs and Committee on Appropriations, and the House 
        Committee on Homeland Security, Committee on Oversight 
        and Government Reform, and Committee on Appropriations.
           (vi) Clarifies that CBP would retain the ability to 
        assign Border Patrol agents to respond to operational 
        requirements.

    (b)(2) Level 1 Border Patrol Rate of Pay 
      (b)(2)(A) Agents electing the level 1 Border 
Patrol rate of pay will be compensated at 1.25 times the 
agent's hourly rate of pay for the 10 shifts they are assigned 
to work each pay period. Under this system, an agent is 
scheduled to work 5 days per week, and each shift lasts 10 
hours--or 8 hours regular time plus 2 additional hours of 
scheduled overtime per day. Agents choosing the level 1 Border 
Patrol rate of pay will thus work 100 hours per pay period.
      (b)(2)(B) The level 1 Border Patrol rate of pay 
compensates agents for working the 8 hours of regular time each 
work day at 1.25 times their base pay for these 8 hours.
      (b)(2)(C) Agents electing the level 1 Border 
Patrol rate of pay will also be scheduled to work 2 hours of 
overtime per work day. The agent shall not receive any 
additional compensation under this section nor compensatory 
time for these additional work hours.
      (b)(2)(D) If an agent being paid at level 1 
Border Patrol rate of pay works over 100 hours in a two-week 
pay period, he or she will receive compensatory time off for 
unscheduled overtime or pay at the overtime hourly rate for 
scheduled overtime.
      (b)(2)(E) If an agent is absent from work during 
regular time, he or she will be charged the corresponding 
amount of paid leave, compensatory time off, or other paid time 
off.
      (b)(2)(F) If an agent is absent during scheduled 
overtime, he or she will accrue an obligation to perform other 
overtime work for each hour he or she is absent. The intent of 
this section is not to penalize Border Patrol agents who can 
otherwise use allowable leave to cover absences during 
regularly scheduled workdays, but rather to provide a mechanism 
for allowing agents who must take unanticipated leave in the 
middle of a regularly scheduled workday to make up the overtime 
hours that they did not work that day.
      (b)(2)(G) When an agent who is paid at the level 
1 Border Patrol rate of pay is assigned to work that is 
classified as advanced training, the agent will be paid at the 
level 1 rate for the first 60 days of advanced training in a 
calendar year. If an agent's advanced training exceeds 60 days, 
the days beyond 60 will be paid at the basic Border Patrol rate 
of pay.

    (b)(3) Level 2 Border Patrol Rate of Pay
      (b)(3)(A) Agents electing the level 2 Border 
Patrol rate of pay will be compensated at 1.125 times the 
agent's hourly rate of pay for the ten shifts they are assigned 
to work each pay period. Under this system, an agent is 
scheduled to work 5 days per week, and each shift lasts 9 
hours--or 8 hours regular time plus 1 additional hour of 
scheduled overtime per day. Agents choosing the level 2 Border 
Patrol rate of pay will thus work 90 hours per pay period.
      (b)(3)(B) The level 2 Border Patrol rate of pay 
compensates agents for working the 8 hours of regular time each 
work day at 1.125 times their base pay for these 8 hours.
      (b)(3)(C) Agents electing the level 2 Border 
Patrol rate of pay will also be scheduled to work an additional 
hour of overtime per work day. The agent shall not receive any 
additional compensation under this section nor compensatory 
time for these work hours.
      (b)(3)(D) If an agent works over 90 hours in a 
pay period, he or she will receive compensatory time off for 
unscheduled overtime or pay at the overtime hourly rate for 
scheduled overtime.
      (b)(3)(E) If an agent is absent from work during 
regular time, he or she will be charged the corresponding 
amount of paid leave, compensatory time off, or other paid time 
off.
      (b)(3)(F) If an agent is absent during scheduled 
overtime, he or she will accrue an obligation to perform other 
overtime work for each hour he or she is absent. The intent of 
this section is not to penalize Border Patrol agents who can 
otherwise use allowable leave to cover absences during 
regularly scheduled workdays, but rather to provide a mechanism 
for allowing agents who must take unanticipated leave in the 
middle of a regularly scheduled workday to make up the overtime 
hours that they did not work that day.
      (b)(3)(G) When an agent who is paid at the level 
2 Border Patrol rate of pay is assigned to work that is 
classified as advanced training, the agent will be paid at the 
level 2 rate for the first 60 days of advanced training in a 
calendar year. If an agent's advanced training exceeds 60 days, 
the days beyond 60 will be paid at the basic Border Patrol rate 
of pay.

    (b)(4) Basic Border Patrol Rate of Pay 
      (b)(4)(A) For the basic Border Patrol rate of 
pay, an agent is scheduled to work 5 days per week and 8 hours 
of regular time per workday.
      (b)(4)(B) If an agent at the basic rate of pay 
works over 80 hours during a two-week pay period, he or she 
will receive compensatory time off for unscheduled overtime or 
pay at the overtime hourly rate for additional scheduled 
overtime.

    Sec. 5550 (c) Eligibility for Other Premium Pay 
      (c)(1) Border Patrol agents generally will 
continue to be eligible to receive premium pay for night 
shifts, holiday and Sunday shifts, except as described below.
      (c)(1)(A) Border Patrol agents are not eligible 
to receive premium pay for night, Sunday, or holiday work for 
hours of regularly scheduled overtime work covered by the level 
1 or level 2 Border Patrol rate of pay.
      (c)(1)(B) Any additional overtime worked on 
Sundays, holidays or at night will be compensated with 
compensatory time off for unscheduled overtime and pay at the 
overtime hourly rate for additional scheduled overtime.
      (c)(2/3) Border Patrol agents are not eligible 
for any other form of premium pay, except hazardous duty pay.

    Sec. 5550 (d) Treatment of Basic Pay 
      (d)(1) Level 1 and level 2 pay will be treated as 
basic pay for calculating retirement, worker's compensation and 
severance, as well as any other purpose that the Office of 
Personnel Management may prescribe.
      (d)(2) Level 1 and level 2 pay will not be 
treated as part of basic pay for the purposes of calculating 
overtime pay, night pay, Sunday pay, or holiday pay.

    Sec. 5550 (e) Travel Time 
      Travel time to and from an agent's home and duty 
station is not considered hours of work under any provision of 
law.

    Sec. 5550 (f) Leave Without Pay and Substitution of 
Hours\44\
---------------------------------------------------------------------------
    \44\For information on leave without pay generally, see http://
www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/leave-without-pay/, last visited August 13, 2014.
---------------------------------------------------------------------------
      (f)(1) Regular Time. In order to be compensated 
for a period of leave without pay during an agent's regular 
work time, and within a particular pay period, an agent may 
substitute an equal period of work outside of the agent's 
regular time paid at the regular rate, but those hours cannot 
be credited as overtime hours for any purpose.
      (f)(2) Overtime Work. In order to be compensated 
for a period of leave without pay during regularly scheduled 
overtime within a particular pay period, he or she must 
complete an equal period of work in the same pay period. This 
additional work will be substituted and credited as scheduled 
overtime. It cannot count as overtime hours under any other 
provision of law.
      (f)(3) Application of Compensatory Time. When an 
agent wishes to substitute work hours for a period of leave 
without pay, if an agent does not have enough additional work 
within a work period to substitute for his or her hours of 
absence during scheduled overtime, any accrued compensatory 
time off will be applied to make up for the hours of 
obligation.
      (f)(4) Insufficient Hours. If an agent wishes to 
substitute work hours for a period of leave without pay and 
still owes scheduled overtime hours after applying paragraphs 
(2) and (3), any additional work in subsequent pay periods that 
would otherwise be credited as compensatory time, will be 
applied towards the owed hours until the agent's obligation is 
satisfied.

    Sec. 5550 (g) Authority To Require Overtime Work
      Nothing in this section shall be construed to 
limit CBP's authority to require agents to work overtime in 
accordance with Agency needs, including in the event of a local 
or national emergency.
    (c) Overtime Work 
      (g)(1) If an agent is assigned the level 1 rate 
of pay, and he or she works over 100 hours in a pay period, the 
additional hours will be overtime work. The agent will receive 
pay at the overtime hourly rate of pay for hours that are 
officially ordered or approved in advance. For unscheduled 
overtime work up to 10 hours per pay period and 240 hours per 
year, the agent will receive compensatory time off.
      (g)(2) If an agent is assigned the level 2 rate 
of pay, and he or she works over 90 hours in a pay period, the 
additional hours will be overtime work. The agent will receive 
pay at the overtime hourly rate of pay for hours that are 
officially ordered or approved in advance. For unscheduled 
overtime work up to 10 hours per pay period and 240 hours per 
year, the agent will receive compensatory time off.
      (g)(3) If an agent is assigned the basic rate of 
pay, and he or she works over 80 hours in a pay period, the 
additional hours will be overtime work. The agent will receive 
pay at the overtime hourly rate of pay for hours that are 
officially ordered or approved in advance. For unscheduled 
overtime work up to 10 hours per pay period and 240 hours per 
year, the agent will receive compensatory time off.
      (g)(4)(A) Except when the limit is waived in 
writing by CBP, during a pay period, an agent cannot earn more 
than 10 hours of compensatory time off.
      (g)(4)(B) At the agent's request, CBP can waive 
the 10 hour limit per pay period for individual agents for 
hours of irregular or occasional overtime work. Such a request 
must be approved in writing in advance of the work by a 
manager. If an agent's waiver request is denied, he or she 
cannot be ordered to perform the associated overtime work.
      (g)(5) An agent cannot earn more than 240 hours 
of compensatory time during a leave year and any accrued 
compensatory time expires at the end of the 26th pay period 
after the pay period in which it was earned. An agent must use 
one hour of compensatory time for each hour of regular time he 
or she does not work. A Border Patrol agent is not entitled to 
any cash value and will not receive credit toward the 
computation of his or her annuity for compensatory time off 
earned under section 5550. An agent cannot receive compensatory 
time off if its value would cause the agent's total premium pay 
to exceed the statutory limits.\45\
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    \45\See 5 U.S.C. Sec. 5547.

    (c)(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--This section amends 5 U.S.C. Sec. 8331(3) 
to include the amount of supplemental pay from the level 1 and 
level 2 Border Patrol rate of pay as part of agents' basic pay 
for the purposes of calculating their retirement pay.

    (e) Comprehensive Staffing Analysis 
      (e)(1) CBP Analysis--Not later than one year 
after the date of enactment of this Act, CBP shall conduct a 
comprehensive analysis examining the staffing requirements of 
the U.S. Border Patrol and reporting on how to most effectively 
meet its operational requirements at each Border Patrol duty 
station. The analysis must include estimates of the cost of the 
staffing requirements at each Border Patrol duty station. CBP 
shall submit the report to the Government Accountability Office 
(GAO).
      (e)(2) Independent Validator--Not later than 90 
days after GAO receives CBP's report GAO shall submit to the 
appropriate committees of Congress a report examining CBP's 
methodology and analysis; and indicating whether GAO concurs 
with CBP's findings.
      (e)(3) Definition--in this subsection, the term 
``appropriate committees of Congress'' means the Committee on 
Homeland Security and Governmental Affairs and the Committee on 
Appropriations of the Senate; and 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--
      (f)(1) limit CBP's right to assign both scheduled 
and unscheduled work to a Border Patrol agent 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;
      (f)(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
      (f)(3) exempt a Border Patrol agent from any 
limitations on pay, earnings, or compensation, including the 
limitations on premium pay.

    (g) Technical and Conforming Amendments. This subsection 
makes technical and conforming amendments.

    (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.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                     July 30, 2014.
Hon. Tom Carper,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1691, the Border 
Patrol Agent Pay Reform Act of 2014.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1691--Border Patrol Agent Pay Reform Act of 2014

    S. 1691 would establish a new system for determining 
overtime compensation for agents of the border patrol in U.S. 
Customs and Border Protection (CBP). CBO estimates that 
implementing S. 1691 could save about $100 million annually, 
assuming future appropriations are reduced consistent with the 
bill's provisions. Enacting the legislation would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    Under current law, border patrol agents are eligible for 
Administratively Uncontrollable Overtime (AUO), which 
compensates employees for unscheduled but necessary overtime. 
Generally, the agents themselves are responsible for 
identifying circumstances that require them to remain on duty 
beyond regular hours. Under AUO, most agents earn up to 25 
percent of their base salary for time worked in excess of 80 
hours in a pay period. Agents may earn additional overtime 
compensation required by the Fair Labor Standards Act (FLSA) 
and the Federal Employee Pay Act (FEPA) that is generally paid 
at 50 percent above the regular rate. Total overtime costs for 
border patrol agents, including pay and benefits, was $627 
million in 2013, while total compensation costs for those 
agents was $3.1 billion in 2013.
    S. 1691 would replace AUO with three options that agents 
would choose from: (1) work 100 hours each pay period and 
increase base salary by 25 percent; (2) work 90 hours each pay 
period and increase base salary by 12.5 percent; or (3) work no 
overtime. Agents would no longer be eligible for overtime pay 
under the FLSA. In addition, the legislation would provide 
compensatory time off for unscheduled overtime above 80, 90, or 
100 hours per pay period, depending on the option chosen. That 
compensatory time would be limited to 240 hours a year and 
could not be redeemed for monetary compensation.
    The bill would generally require 90 percent of border 
patrol agents to work 100 hours each pay period, while CBP 
expects that most remaining agents would work 90 hours per pay 
period. According to the agency, if the overtime pay system in 
S. 1691 had been implemented for fiscal year 2013, then total 
overtime costs would have been about $525 million, or about 
$100 million lower than the actual overtime expense for that 
year. Costs would decline under S. 1691 mostly because border 
patrol agents would no longer receive compensation required 
under the FLSA.
    Budgetary savings under S. 1691 could be smaller or larger 
than CBO estimates. Potential savings in future years could be 
influenced by unanticipated incidents at U.S. borders that 
cause overtime use to be more or less than has occurred in the 
past. In addition, the CBP could curtail unnecessary use of AOU 
under current law or allow it to be used to a greater extent 
than it has been used in the past. Finally, under the bill, CBP 
would have the discretion to allow agents to earn FEPA overtime 
pay in addition to the options to increase base pay described 
earlier. This estimate assumes CBP would not approve the use of 
FEPA overtime pay under the bill beyond a few million dollars 
expended for that purpose in 2013.
    S. 1691 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

     VII. Changes in Existing Statute Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1691, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

TITLE V--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *



CHAPTER 55--PAY ADMINISTRATION

           *       *       *       *       *       *       *



Subchapter V--Premium Pay

           *       *       *       *       *       *       *



Sec. 5542--Overtime rates; computation

    (a) * * *

           *       *       *       *       *       *       *

    (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.

           *       *       *       *       *       *       *


Sec. 5547. Limitation on premium pay

    (a) An employee may be paid premium pay under sections 
5542, 5545 (a), (b), and (c), 5545a, [and] 5546 (a) and (b), 
and 5550 only to the extent that the payment does not cause the 
aggregate of basic pay and such premium pay for any pay period 
for such employee to exceed the greater of--
          (1) the maximum rate of basic pay payable for GS-15 
        (including any applicable locality-based comparability 
        payment under section 5304 or similar provision of law 
        and any applicable special rate of pay under section 
        5305 or similar provision of law); or
          (2) the rate payable for level V of the Executive 
        Schedule.
    (b) * * *

           *       *       *       *       *       *       *

    (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. 

           *       *       *       *       *       *       *


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 2013 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 2013, 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 
                        2013, 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.

CHAPTER 83--RETIREMENT

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Subchapter 3--Civil Service Retirement

           *       *       *       *       *       *       *



Sec. 8331--Definitions

    (1) * * *
    (2) * * *
    (3) ``basic pay'' includes--
          (A) * * *

           *       *       *       *       *       *       *

          (B) with respect to a customs officer (referred to in 
        subsection (e)(1) of section 5 of the Act of February 
        13, 1911), compensation for overtime inspectional 
        services provided for under subsection (a) of such 
        section 5, but not to exceed 50 percent of any 
        statutory maximum in overtime pay for customs officers 
        which is in effect for the year involved; [and]
          (C) any amount received under section 5948 (relating 
        to physicians comparability allowances); and
          (D) 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;
but does not include bonuses, allowances, overtime pay, 
military pay, pay given in addition to the base pay of the 
position as fixed by law or regulation except as provided by 
[subparagraphs (B) through (H)] subparagraphs (B) through (I) 
of this paragraph retroactive pay under section 5344 of this 
title in the case of a retired or deceased employee, uniform 
allowances under section 5901 of this title, or lump-sum leave 
payments under subchapter VI of chapter 55 of this title. For 
an employee paid on a fee basis, the maximum amount of basic 
pay which may be used is $10,000;
    (4) * * *

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TITLE XXIX--LABOR

           *       *       *       *       *       *       *



CHAPTER 8--FAIR LABOR STANDARDS

           *       *       *       *       *       *       *



Sec. 213--Exemptions

    (a) Minimum Wage and Maximum Hour Requirements
    The provisions of sections 206 (except subsection (d) in 
the case of paragraph (1) of this subsection) and 207 of this 
title shall not apply with respect to--
          (1) * * *

           *       *       *       *       *       *       *

          (16) a criminal investigator who is paid availability 
        pay under section 5545a of title 5; [or]
          (17) any employee who is a computer systems analyst, 
        computer programmer, software engineer, or other 
        similarly skilled worker, whose primary duty is--
                  (A) the application of systems analysis 
                techniques and procedures, including consulting 
                with users, to determine hardware, software, or 
                system functional specifications;
                  (B) the design, development, documentation, 
                analysis, creation, testing, or modification of 
                computer systems or programs, including 
                prototypes, based on and related to user or 
                system design specifications;
                  (C) the design, documentation, testing, 
                creation, or modification of computer programs 
                related to machine operating systems; or
                  (D) a combination of duties described in 
                subparagraphs (A), (B), and (C) the performance 
                of which requires the same level of skills, and
        who, in the case of an employee who is compensated on 
        an hourly basis, is compensated at a rate of not less 
        than $27.63 an hour[.]; or
          (18) any employee who is a Border Patrol agent, as 
        defined in section 5550(a) of title 5, United States 
        Code.

                                  
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