HEN14474 S.L.C.

AMENDMENT NO.llll Calendar No.lll

Purpose: In the nature of a substitute.
IN THE SENATE OF THE UNITED STATES113th Cong., 2d Sess.
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.
Referred to the Committee on llllllllll and
ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT IN THE NATURE OF A SUBSTITUTE intended
to be proposed by Mr. TESTER (for himself and Mr. MCCAIN)
Viz:
Strike all after the enacting clause and insert the fol- 1
lowing: 2
SECTION 1. SHORT TITLE. 3
This Act may be cited as the Border Patrol Agent 4
Pay Reform Act of 2014. 5
SEC. 2. BORDER PATROL RATE OF PAY. 6
(a) PURPOSE.The purposes of this Act are 7
(1) to strengthen U.S. Customs and Border 8
Protection and ensure that border patrol agents are 9
sufficiently ready to conduct necessary work and will 10
perform overtime hours in excess of a 40-hour work- 11
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HEN14474 S.L.C.
week based on the needs of U.S. Customs and Bor- 1
der Protection; and 2
(2) to ensure U.S. Customs and Border Protec- 3
tion has the flexibility to cover shift changes and re- 4
tains the right to assign scheduled and unscheduled 5
work for mission requirements and planning based 6
on operational need. 7
(b) RATES OF PAY.Subchapter V of chapter 55 of 8
title 5, United States Code, is amended by inserting after 9
section 5549 the following: 10
5550. Border patrol rate of pay 11
(a) DEFINITIONS.In this section 12
(1) the term basic border patrol rate of pay 13
means the hourly rate of basic pay of the applicable 14
border patrol, as determined without regard to this 15
section; 16
(2) the term border patrol agent means an 17
individual who is appointed to a position assigned to 18
the Border Patrol Enforcement classification series 19
1896 or any successor series, consistent with classi- 20
fication standards established by the Office of Per- 21
sonnel Management; 22
(3) the term level 1 border patrol rate of pay 23
means the hourly rate of pay equal to 1.25 times the 24
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HEN14474 S.L.C.
otherwise applicable hourly rate of basic pay of the 1
applicable border patrol agent; 2
(4) the term level 2 border patrol rate of pay 3
means the hourly rate of pay equal to 1.125 times 4
the otherwise applicable hourly rate of basic pay of 5
the applicable border patrol agent; and 6
(5) the term work period means a 14-day bi- 7
weekly pay period. 8
(b) RECEIPT OF BORDER PATROL RATE OF PAY. 9
(1) VOLUNTARY ELECTION. 10
(A) IN GENERAL.Not later than 30 11
days before the first day of each year beginning 12
after the date of enactment of this section, a 13
border patrol agent shall make an election 14
whether the border patrol agent shall, for that 15
year, be assigned to 16
(i) the level 1 border patrol rate of 17
pay; 18
(ii) the level 2 border patrol rate of 19
pay; or 20
(iii) the basic border patrol rate of 21
pay, with additional overtime assigned as 22
needed by U.S. Customs and Border Pro- 23
tection. 24
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(B) REGULATIONS.The Director of the 1
Office of Personnel Management shall promul- 2
gate regulations establishing procedures for 3
elections under subparagraph (A). 4
(C) INFORMATION REGARDING ELEC- 5
TION.Not later than 60 days before the first 6
day of each year beginning after the date of en- 7
actment of this section, U.S. Customs and Bor- 8
der Protection shall provide each border patrol 9
agent with information regarding each type of 10
election available under subparagraph (A) and 11
how to make such an election. 12
(D) ASSIGNMENT IN LIEU OF ELEC- 13
TION.Notwithstanding subparagraph (A) 14
(i) a border patrol agent who fails to 15
make a timely election under subparagraph 16
(A) shall be assigned to the level 1 border 17
patrol rate of pay; 18
(ii) a border patrol agent who is as- 19
signed a canine shall be assigned to the 20
level 1 border patrol rate of pay; 21
(iii) if at any time U.S. Customs and 22
Border Protection concludes that a border 23
patrol agent is unable to perform overtime 24
on a daily basis in accordance with this 25
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section, U.S. Customs and Border Protec- 1
tion shall assign the border patrol agent to 2
the basic border patrol rate of pay until 3
such time as U.S. Customs and Border 4
Protection determines that the border pa- 5
trol agent is able to perform scheduled 6
overtime on a daily basis; and 7
(iv) a border patrol agent may be as- 8
signed to the level 1 border patrol rate of 9
pay or the level 2 border patrol rate of pay 10
in accordance with subparagraph (E). 11
(E) FLEXIBILITY. 12
(i) IN GENERAL.Except as pro- 13
vided in clauses (ii) and (iii), and notwith- 14
standing any other provision of law, U.S. 15
Customs and Border Protection shall take 16
such action as is necessary, including the 17
unilateral assignment of border patrol 18
agents to the level 1 border patrol rate of 19
pay or the level 2 border patrol rate of 20
pay, to ensure that not more than 10 per- 21
cent of the border patrol agents stationed 22
at a location are assigned to the level 2 23
border patrol rate of pay or the basic bor- 24
der patrol rate of pay. 25
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(ii) WAIVER.U.S. Customs and 1
Border Protection may waive the limitation 2
under clause (i) on the percent of border 3
patrol agents stationed at a location who 4
are assigned to the level 2 border patrol 5
rate of pay or the basic border patrol rate 6
of pay if, based on the analysis conducted 7
under section 2(e) of the Border Patrol 8
Agent Pay Reform Act of 2014, U.S. Cus- 9
toms and Border Protection determines it 10
may do so and adequately fulfill its oper- 11
ational requirements. 12
(iii) CERTAIN LOCATIONS.Clause 13
(i) shall not apply to border patrol agents 14
working at the headquarters of U.S. Cus- 15
toms and Border Protection or a training 16
location of U.S. Customs and Border Pro- 17
tection. 18
(F) CANINE CARE.For a border patrol 19
agent assigned to provide care for a canine and 20
assigned to the level 1 border patrol rate of pay 21
in accordance with subparagraph (D)(ii) 22
(i) that rate of pay covers all such 23
care; 24
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(ii) for the purposes of scheduled 1
overtime under paragraph (2)(A)(ii), such 2
care shall be counted as 1 hour of sched- 3
uled overtime on each regular workday 4
without regard to the actual duration of 5
such care or whether such care occurs on 6
the regular workday; and 7
(iii) no other pay shall be paid to the 8
border patrol agent for such care. 9
(G) PAY ASSIGNMENT CONTINUITY. 10
(i) IN GENERAL.Not later than 1 11
year after the date of enactment of the 12
Border Patrol Agent Pay Reform Act of 13
2014, and in consultation with the Office 14
of Personnel Management, U.S. Customs 15
and Border Protection shall develop and 16
implement a plan to ensure, to the greatest 17
extent practicable, that the assignment of 18
a border patrol agent under this section 19
during the 3 years of service before the 20
border patrol agent becomes eligible for 21
immediate retirement are consistent with 22
the average border patrol rate of pay level 23
to which the border patrol agent has been 24
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assigned during the course of the career of 1
the border patrol agent. 2
(ii) IMPLEMENTATION.Notwith- 3
standing any other provision of law, U.S. 4
Customs and Border Protection may take 5
such action as is necessary, including the 6
unilateral assignment of border patrol 7
agents to the level 1 border patrol rate of 8
pay, the level 2 border patrol rate of pay, 9
or the basic border patrol rate of pay, to 10
implement the plan developed under this 11
subparagraph. 12
(iii) REPORTING.U.S. Customs 13
and Border Protection shall submit the 14
plan developed under clause (i) to the ap- 15
propriate committees of Congress. 16
(iv) GAO REVIEW.Not later than 6 17
months after U.S. Customs and Border 18
Protection issues the plan required under 19
clause (i), the Comptroller General of the 20
United States shall submit to the appro- 21
priate committees of Congress a report on 22
the effectiveness of the plan in ensuring 23
that border patrol agents are not able to 24
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HEN14474 S.L.C.
artificially enhance their retirement annu- 1
ities. 2
(v) DEFINITION.In this subpara- 3
graph, the term appropriate committees of 4
Congress means 5
(I) the Committee on Homeland 6
Security and Governmental Affairs 7
and the Committee on Appropriations 8
of the Senate; and 9
(II) the Committee on Home- 10
land Security, the Committee on 11
Oversight and Government Reform, 12
and the Committee on Appropriations 13
of the House of Representatives. 14
(vi) RULE OF CONSTRUCTION. 15
Nothing in this subparagraph shall be con- 16
strued to limit the ability of U.S. Customs 17
and Border Protection to assign border pa- 18
trol agents to border patrol rates of pay as 19
necessary to meet operational require- 20
ments. 21
(2) LEVEL 1 BORDER PATROL RATE OF PAY. 22
For a border patrol agent who is assigned to the 23
level 1 border patrol rate of pay 24
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(A) the border patrol agent shall have a 1
regular tour of duty consisting of 5 workdays 2
per week with 3
(i) 8 hours of regular time per work- 4
day, which may be interrupted by an un- 5
paid off-duty meal break; and 6
(ii) 2 additional hours of scheduled 7
overtime during each day the agent per- 8
forms work under clause (i); 9
(B) for paid hours of regular time de- 10
scribed in subparagraph (A)(i), the border pa- 11
trol agent shall receive pay at the level 1 border 12
patrol rate of pay; 13
(C) compensation for the hours of regu- 14
larly scheduled overtime work described in sub- 15
paragraph (A)(ii) is provided indirectly through 16
the 25 percent supplement within the level 1 17
border patrol rate of pay, and the border patrol 18
agent may not receive for such hours 19
(i) any compensation in addition to 20
the compensation under subparagraph (B) 21
under this section or any other provision of 22
law; or 23
(ii) any compensatory time off; 24
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(D) the border patrol agent shall receive 1
compensatory time off or pay at the overtime 2
hourly rate of pay for hours of work in excess 3
of 100 hours during a work period, as deter- 4
mined in accordance with section 5542(g); 5
(E) the border patrol agent shall be 6
charged corresponding amounts of paid leave, 7
compensatory time off, or other paid time off 8
for each hour (or part thereof) the agent is ab- 9
sent from work during regular time (except that 10
full days off for military leave shall be charged 11
when required); 12
(F) if the border patrol agent is absent 13
during scheduled overtime described in subpara- 14
graph (A)(ii) 15
(i) the border patrol agent shall ac- 16
crue an obligation to perform other over- 17
time work for each hour (or part thereof) 18
the border patrol agency is absent; and 19
(ii) any overtime work applied to- 20
ward the obligation under clause (i) shall 21
not be credited as overtime work under 22
any other provision of law; and 23
(G) for the purposes of advanced train- 24
ing, the border patrol agent 25
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HEN14474 S.L.C.
(i) shall be paid at the level 1 border 1
patrol rate of pay for the first 60 days of 2
advanced training in a calendar year; and 3
(ii) for any advanced training in ad- 4
dition to the advanced training described 5
in clause (i), shall be paid at the basic bor- 6
der patrol rate of pay. 7
(3) LEVEL 2 BORDER PATROL RATE OF PAY. 8
For a border patrol agent who is assigned to the 9
level 2 border patrol rate of pay 10
(A) the border patrol agent shall have a 11
regular tour of duty consisting of 5 workdays 12
per week with 13
(i) 8 hours of regular time per work- 14
day, which may be interrupted by an un- 15
paid off-duty meal break; and 16
(ii) 1 additional hour of scheduled 17
overtime during each day the agent per- 18
forms work under clause (i); 19
(B) for paid hours of regular time de- 20
scribed in subparagraph (A)(i), the border pa- 21
trol agent shall receive pay at the level 2 border 22
patrol rate of pay; 23
(C) compensation for the hours of regu- 24
larly scheduled overtime work described in sub- 25
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paragraph (A)(ii) is provided indirectly through 1
the 12.5 percent supplement within the level 2 2
border patrol rate of pay, and the border patrol 3
agent may not receive for such hours 4
(i) any compensation in addition to 5
the compensation under subparagraph (B) 6
under this section or any other provision of 7
law; or 8
(ii) any compensatory time off; 9
(D) the border patrol agent shall receive 10
compensatory time off or pay at the overtime 11
hourly rate of pay for hours of work in excess 12
of 90 hours during a work period, as deter- 13
mined in accordance with section 5542(g); 14
(E) the border patrol agent shall be 15
charged corresponding amounts of paid leave, 16
compensatory time off, or other paid time off 17
for each hour (or part thereof) the agent is ex- 18
cused from work during regular time (except 19
that full days off for military leave shall be 20
charged when required); 21
(F) if the border patrol agent is absent 22
during scheduled overtime described in subpara- 23
graph (A)(ii) 24
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HEN14474 S.L.C.
(i) the border patrol agent shall ac- 1
crue an obligation to perform other over- 2
time work for each hour (or part thereof) 3
the border patrol agency is absent; and 4
(ii) any overtime work applied to- 5
ward the obligation under clause (i) shall 6
not be credited as overtime work under 7
any other provision of law; and 8
(G) for the purposes of advanced train- 9
ing, the border patrol agent 10
(i) shall be paid at the level 2 border 11
patrol rate of pay for the first 60 days of 12
advanced training in a calendar year; and 13
(ii) for any advanced training in ad- 14
dition to the advanced training described 15
in clause (i), shall be paid at the basic bor- 16
der patrol rate of pay. 17
(4) BASIC BORDER PATROL RATE OF PAY. 18
For a border patrol agent who is assigned to the 19
basic border patrol rate of pay 20
(A) the border patrol agent shall have a 21
regular tour of duty consisting of 5 workdays 22
per week with 8 hours of regular time per work- 23
day; and 24
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HEN14474 S.L.C.
(B) the border patrol agent shall receive 1
compensatory time off or pay at the overtime 2
hourly rate of pay for hours of work in excess 3
of 80 hours during a work period, as deter- 4
mined in accordance with section 5542(g). 5
(c) ELIGIBILITY FOR OTHER PREMIUM PAY.A 6
border patrol agent 7
(1) shall receive premium pay for nightwork in 8
accordance with subsections (a) and (b) of section 9
5545 and Sunday and holiday pay in accordance 10
with section 5546, without regard to the rate of pay 11
to which the border patrol agent is assigned under 12
this section, except that 13
(A) no premium pay for night, Sunday, 14
or holiday work shall be provided for hours of 15
regularly scheduled overtime work described in 16
paragraph (2)(A)(ii) or (3)(A)(ii) of subsection 17
(b), consistent with the requirements of para- 18
graph (2)(C) or (3)(C) of subsection (b); and 19
(B) section 5546(d) shall not apply and 20
instead eligibility for pay for, and the rate of 21
pay for, any overtime work on a Sunday or a 22
designated holiday shall be determined in ac- 23
cordance with this section and section 5542(g); 24
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(2) except as provided in paragraph (3) or sec- 1
tion 5542(g), shall not be eligible for any other form 2
of premium pay under this title; and 3
(3) shall be eligible for hazardous duty pay in 4
accordance with section 5545(d). 5
(d) TREATMENT AS BASIC PAY.Any pay in addi- 6
tion to the basic border patrol rate of pay for a border 7
patrol agent resulting from application of the level 1 bor- 8
der patrol rate of pay or the level 2 border patrol rate 9
of pay 10
(1) subject to paragraph (2), shall be treated 11
as part of basic pay solely for 12
(A) purposes of sections 5595(c), 13
8114(e), 8331(3)(I), and 8704(c); 14
(B) any other purpose that the Director 15
of the Office of Personnel Management may by 16
regulation prescribe; and 17
(C) any other purpose expressly provided 18
for by law; and 19
(2) shall not be treated as part of basic pay 20
for the purposes of calculating overtime pay, night 21
pay, Sunday pay, or holiday pay under section 5542, 22
5545, or 5546. 23
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HEN14474 S.L.C.
(e) TRAVEL TIME.Travel time to and from home 1
and duty station by a border patrol agent shall not be con- 2
sidered hours of work under any provision of law. 3
(f) LEAVE WITHOUT PAY AND SUBSTITUTION OF 4
HOURS. 5
(1) REGULAR TIME. 6
(A) IN GENERAL.For a period of leave 7
without pay during the regular time of a border 8
patrol agent (as described in paragraph 9
(2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b)) 10
within a work period, an equal period of work 11
outside the regular time of the border patrol 12
agent, but in the same work period 13
(i) shall be substituted and paid for 14
at the rate applicable for the regular time; 15
and 16
(ii) shall not be credited as overtime 17
hours for any purpose. 18
(B) PRIORITY FOR SAME DAY WORK.In 19
substituting hours of work under subparagraph 20
(A), work performed on the same day as the pe- 21
riod of leave without pay shall be substituted 22
first. 23
(C) PRIORITY FOR REGULAR TIME SUB- 24
STITUTION.Hours of work shall be sub- 25
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HEN14474 S.L.C.
stituted for regular time work under this para- 1
graph before being substituted for scheduled 2
overtime under paragraphs (2), (3), and (4). 3
(2) OVERTIME WORK. 4
(A) IN GENERAL.For a period of ab- 5
sence during scheduled overtime (as described 6
in paragraph (2)(F) or (3)(F) of subsection 7
(b)) within a work period, an equal period of 8
additional work in the same work period 9
(i) shall be substituted and credited 10
as scheduled overtime; and 11
(ii) shall not be credited as overtime 12
hours under any other provision of law. 13
(B) PRIORITY FOR SAME DAY WORK.In 14
substituting hours of work under subparagraph 15
(A), work performed on the same day as the pe- 16
riod of absence shall be substituted first. 17
(3) APPLICATION OF COMPENSATORY TIME. 18
If a border patrol agent does not have sufficient ad- 19
ditional work in a work period to substitute for all 20
periods of absence during scheduled overtime (as de- 21
scribed in paragraph (2)(F) or (3)(F) of subsection 22
(b)) within that work period, any accrued compen- 23
satory time off under section 5542(g) shall be ap- 24
plied to satisfy the hours obligation. 25
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(4) INSUFFICIENT HOURS.If a border patrol 1
agent has a remaining hours obligation of scheduled 2
overtime after applying paragraphs (2) and (3), any 3
additional work in subsequent work periods that 4
would otherwise be credited under section 5542(g) 5
shall be applied towards the hours obligation until 6
that obligation is satisfied. 7
(g) AUTHORITY TO REQUIRE OVERTIME WORK. 8
Nothing in this section shall be construed to limit the au- 9
thority of U.S. Customs and Border Protection to require 10
a border patrol agent to perform hours of overtime work 11
in accordance with the needs of U.S. Customs and Border 12
Protection, including if needed in the event of a local or 13
national emergency.. 14
(c) OVERTIME WORK. 15
(1) IN GENERAL.Section 5542 of title 5, 16
United States Code, is amended by adding at the 17
end the following: 18
(g) In applying subsection (a) with respect to a bor- 19
der patrol agent covered by section 5550, the following 20
rules apply: 21
(1) Notwithstanding the matter preceding 22
paragraph (1) in subsection (a), for a border patrol 23
agent who is assigned to the level 1 border patrol 24
rate of pay under section 5550 25
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HEN14474 S.L.C.
(A) hours of work in excess of 100 hours 1
during a 14-day biweekly pay period shall be 2
overtime work; and 3
(B) the border patrol agent 4
(i) shall receive pay at the overtime 5
hourly rate of pay (as determined in ac- 6
cordance with paragraphs (1) and (2) of 7
subsection (a)) for hours of overtime work 8
that are officially ordered or approved in 9
advance of the workweek; and 10
(ii) except as provided in paragraphs 11
(4) and (5), shall receive compensatory 12
time off for an equal amount of time spent 13
performing overtime work that is not over- 14
time work described in clause (i). 15
(2) Notwithstanding the matter preceding 16
paragraph (1) in subsection (a), for a border patrol 17
agent who is assigned to the level 2 border patrol 18
rate of pay under section 5550 19
(A) hours of work in excess of 90 hours 20
during a 14-day biweekly pay period shall be 21
overtime work; and 22
(B) the border patrol agent 23
(i) shall receive pay at the overtime 24
hourly rate of pay (as determined in ac- 25
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HEN14474 S.L.C.
cordance with paragraphs (1) and (2) of 1
subsection (a)) for hours of overtime work 2
that are officially ordered or approved in 3
advance of the workweek; and 4
(ii) except as provided in paragraphs 5
(4) and (5), shall receive compensatory 6
time off for an equal amount of time spent 7
performing overtime work that is not over- 8
time work described in clause (i). 9
(3) Notwithstanding the matter preceding 10
paragraph (1) in subsection (a), for a border patrol 11
agent who is assigned to the basic border patrol rate 12
of pay under section 5550 13
(A) hours of work in excess of 80 hours 14
during a 14-day biweekly pay period shall be 15
overtime work; and 16
(B) the border patrol agent 17
(i) shall receive pay at the overtime 18
hourly rate of pay (as determined in ac- 19
cordance with paragraphs (1) and (2) of 20
subsection (a)) for hours of overtime work 21
that are officially ordered or approved in 22
advance of the workweek; and 23
(ii) except as provided in paragraphs 24
(4) and (5), shall receive compensatory 25
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time off for an equal amount of time spent 1
performing overtime work that is not over- 2
time work described in clause (i). 3
(4)(A) Except as provided in subparagraph 4
(B), during a 14-day biweekly pay period, a border 5
patrol agent may not earn compensatory time off for 6
more than 10 hours of overtime work. 7
(B) U.S. Customs and Border Protection may, 8
as it determines appropriate, waive the limitation 9
under subparagraph (A) for an individual border pa- 10
trol agent for hours of irregular or occasional over- 11
time work, but such waiver must be approved in 12
writing in advance of the performance of any such 13
work for which compensatory time off is earned 14
under paragraph (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). 15
If a waiver request by a border patrol agent is de- 16
nied, the border patrol agent may not be ordered to 17
perform the associated overtime work. 18
(5) A border patrol agent 19
(A) may not earn more than 240 hours of 20
compensatory time off during a leave year; 21
(B) shall use any hours of compensatory 22
time off not later than the end of the 26th pay 23
period after the pay period during which the 24
compensatory time off was earned; 25
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(C) shall be required to use 1 hour of 1
compensatory time off for each hour of regular 2
time not worked for which the border patrol 3
agent is not on paid leave or other paid time off 4
or does not substitute time in accordance with 5
section 5550(f); 6
(D) shall forfeit any compensatory time 7
off not used in accordance with this paragraph 8
and, regardless of circumstances, shall not be 9
entitled to any cash value for compensatory 10
time earned under section 5550; 11
(E) shall not receive credit towards the 12
computation of the annuity of the border patrol 13
agent for compensatory time, whether used or 14
not; and 15
(F) shall not be credited with compen- 16
satory time off if the value of such time off 17
would cause the aggregate premium pay of the 18
border patrol agent to exceed the limitation es- 19
tablished under section 5547 in the period in 20
which it was earned.. 21
(2) MINIMIZATION OF OVERTIME.U.S. Cus- 22
toms and Border Protection shall, to the maximum 23
practical extent, avoid the use of overtime work by 24
border patrol agents, including through scheduling, 25
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transferring border patrol agents between sectors 1
and station locations, and adjusting the rate of pay 2
to which border patrol agents are assigned, based on 3
the analysis conducted under subsection (e). 4
(d) RETIREMENT.Section 8331(3) of title 5, United 5
States Code, is amended 6
(1) in subparagraph (G), by striking and; 7
(2) in subparagraph (H), by inserting and 8
after the semicolon; 9
(3) by inserting a new subparagraph after sub- 10
paragraph (H) as follows: 11
(I) with respect to a border pa- 12
trol agent, the amount of supple- 13
mental pay received through applica- 14
tion of the level 1 border patrol rate 15
of pay or the level 2 border patrol 16
rate of pay for scheduled overtime 17
within the regular tour of duty of the 18
border patrol agent as provided in 19
section 5550;; and 20
(4) in the undesignated matter following sub- 21
paragraph (H), by striking subparagraphs (B) 22
through (H) and inserting subparagraphs (B) 23
through (I). 24
(e) COMPREHENSIVE STAFFING ANALYSIS. 25
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(1) IN GENERAL.Not later than 1 year after 1
the date of enactment of this Act, U.S. Customs and 2
Border Protection shall conduct a comprehensive 3
analysis, and submit to the Comptroller General of 4
the United States a report, that 5
(A) examines the staffing requirements for 6
U.S. Border Patrol to most effectively meet its 7
operational requirements at each Border Patrol 8
duty station; 9
(B) estimates the cost of the staffing re- 10
quirements at each Border Patrol duty station; 11
and 12
(C) includes 13
(i) a position-by-position review at 14
each Border Patrol station to determine 15
(I) the duties assigned to each 16
position; 17
(II) how the duties relate to the 18
operational requirements of U.S. Bor- 19
der Patrol; and 20
(III) the number of hours border 21
patrol agents in that position would 22
need to work each pay period to meet 23
the operational requirements of U.S. 24
Border Patrol; 25
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(ii) the metrics used to determine the 1
number of hours of work performed at 2
each Border Patrol station, broken down 3
by the type of hours worked; 4
(iii) a cost analysis of the most recent 5
full fiscal year by the type of full-time 6
equivalent hours worked; and 7
(iv) a cost estimate by the type of full- 8
time equivalent hours expected to be 9
worked during the first full fiscal year 10
after the date of enactment of this Act. 11
(2) INDEPENDENT VALIDATOR.Not later than 12
90 days after the date on which the Comptroller 13
General receives the report under paragraph (1), the 14
Comptroller General shall submit to the appropriate 15
committees of Congress a report that 16
(A) examines the methodology used by 17
U.S. Customs and Border Protection to carry 18
out the analysis; and 19
(B) indicates whether the Comptroller 20
General concurs with the findings in the report 21
under paragraph (1). 22
(3) DEFINITION.In this subsection, the term 23
appropriate committees of Congress means 24
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(A) the Committee on Homeland Security 1
and Governmental Affairs and the Committee 2
on Appropriations of the Senate; and 3
(i) the Committee on Homeland Secu- 4
rity and Governmental Affairs and the 5
Committee on Appropriations of the House 6
of Representatives. 7
(f) RULES OF CONSTRUCTION.Nothing in this sec- 8
tion or the amendments made by this section shall be con- 9
strued to 10
(1) limit the right of U.S. Customs and Border 11
Protection to assign both scheduled and unscheduled 12
work to a border patrol agent based on the needs of 13
U.S. Customs and Border Protection in excess of the 14
hours of work normally applicable under the election 15
of the border patrol agent, regardless of what the 16
border patrol agent might otherwise have elected; 17
(2) require compensation of a border patrol 18
agent other than for hours during which the border 19
patrol agent is actually performing work or using 20
approved paid leave or other paid time off; or 21
(3) exempt a border patrol agent from any limi- 22
tations on pay, earnings, or compensation, including 23
the limitations under section 5547 of title 5, United 24
States Code. 25
28
HEN14474 S.L.C.
(g) TECHNICAL AND CONFORMING AMENDMENTS. 1
(1) Section 5547 of title 5, United States Code 2
is amended by 3
(A) in subsection (a), in the matter pre- 4
ceding paragraph (1) 5
(i) by striking, and before 5546; 6
and 7
(ii) by inserting , and 5550 after 8
5546 (a) and (b); and 9
(B) by adding at the end the following: 10
(e) Any supplemental pay resulting from receipt of 11
the level 1 border patrol rate of pay or the level 2 border 12
patrol rate of pay under section 5550 shall be considered 13
premium pay in applying this section.. 14
(2) Section 13(a) of the Fair Labor Standards 15
Act of 1938 (29 U.S.C. 213(a)) is amended 16
(A) in paragraph (16), by striking or 17
after the semicolon; 18
(B) in paragraph (17), by striking the pe- 19
riod at the end and inserting ; or; and 20
(C) by adding at the end the following: 21
(18) any employee who is a border patrol 22
agent, as defined in section 5550(a) of title 5, 23
United States Code.. 24
29
HEN14474 S.L.C.
(3) The table of sections for chapter 55 of title 1
5, United States Code, is amended by inserting after 2
the item relating to section 5549 the following: 3
5550. Border patrol rate of pay..
(h) REGULATIONS.The Director of the Office of 4
Personnel Management shall promulgate regulations to 5
carry out this Act and the amendments made by this Act. 6