II 115th CONGRESS 2d Session S. 2338 IN THE SENATE OF THE UNITED STATES January 25, 2018 Mr. Tester introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend chapter 55 of title 5, United States Code, to reform the manner in which Border Patrol agents are compensated.

1. Short title This Act may be cited as the Border Patrol Agent Pay Reform Technical Amendments Act of 2018 . 2. Border patrol rate of pay Section 5550 of title 5, United States Code, is amended— (1) in subsection (a)(1), by inserting agent after applicable border patrol ; (2) in subsection (b)— (A) in paragraph (1)— (i) in subparagraph (A)— (I) by striking Not later than 30 days before the first day of each year beginning after the date of enactment of this section, and inserting Not later than December 1 of each year, ; and (II) by striking for that year and inserting for the next annual period beginning on the first day of the first pay period that commences on or after January 1 ; (ii) in subparagraph (C), by striking Not later than 60 days before the first day of each year beginning after the date of enactment of this section, and inserting Not later than November 1 of each year, ; (iii) in subparagraph (D)— (I) in clause (iii), by inserting due to loss of law enforcement authority after this section ; and (II) in clause (v), by striking or the level 2 border patrol rate of pay ; (iv) in subparagraph (E)— (I) in clause (i), by striking or the level 2 border patrol rate of pay ; (II) in clause (ii), by striking the analysis conducted under section 2(e) of the Border Patrol Agent Pay Reform Act of 2014 and inserting a written staffing analysis by the Commissioner of U.S. Customs and Border Protection ; and (III) by adding at the end the following: (iv) Exclusion of certain employees In applying any percentage limit under clause (i) or (ii) to a base population, U.S. Customs and Border Protection shall exclude from such population any border patrol agent who— (I) is assigned a basic border patrol rate of pay under paragraph (iii) or (iv) of subparagraph (D); or (II) would reach the premium pay cap under section 5547 if assigned a level 1 border patrol rate of pay. (v) Application frequency The 10 percent limit under clause (i) or an alternative percentage limit under a waiver under clause (ii) shall be applied at the beginning of the first pay period beginning on or after January 1 of each year. ; and (v) by striking subparagraphs (F) and (G) and inserting the following: (F) Canine care For a border patrol agent assigned to provide care for a canine while not on duty and assigned to the level 1 border patrol rate of pay in accordance with subparagraph (D)(ii)— (i) that rate of pay covers all such care and no other pay shall be paid to the border patrol agent for such care except as set forth in clauses (ii) through (v); (ii) the agent shall be credited with 1 hour of such care for each calendar day on which such care occurs (without regard to the actual duration of such care); (iii) 1 hour of canine care credited under clause (ii), as available, shall be substituted for 1 hour of scheduled overtime that the agent is obligated to perform under paragraph (2)(A)(ii) on the same regular work day; (iv) 1 hour of canine care credited under clause (ii), if not needed to substitute for scheduled overtime under clause (iii), shall be paid to the border patrol agent as scheduled overtime for which the agent shall receive monetary compensation pursuant to the payment of overtime under section 5542(a)(4); and (v) for canine care hours credited under clause (ii) on a day other than a regular workday, or on a regular workday on which an agent has no obligation to perform scheduled overtime work, the agent shall be credited with 1 scheduled overtime work hour paid as monetary compensation under section 5542(a)(4) (defined as 1 hour of overtime work under section 5542(g)(1)(B)(i)) for each hour of credited canine care. ; (B) in paragraph (2)— (i) in subparagraph (C), by amending clause (i) to read as follows: (i) any compensation under this section or under any other provision of law in addition to the compensation provided under subparagraph (B); or ; (ii) in subparagraph (E), by striking paid leave and inserting leave ; (iii) in subparagraph (F)(ii), by striking and at the end; and (iv) by striking subparagraph (G) and inserting the following: (G) if the border patrol agent participates in a day of advanced training, but does not perform the required amount of scheduled overtime work under subparagraph (A)(ii) on that day, the border patrol agent shall be deemed to have performed scheduled overtime work during nonwork periods to the extent necessary to reach the required amount; and (H) any overtime obligation that the border patrol agent has incurred can be met through the use of any accrued compensatory time accrued for travel pursuant to section 5550b. ; and (C) in paragraph (3)— (i) in subparagraph (C), by amending clause (i) to read as follows: (i) any compensation under this section or under any other provision of law in addition to the compensation provided under subparagraph (B); or ; (ii) in subparagraph (E)— (I) by striking paid leave and inserting leave ; and (II) by striking excused and inserting absent ; (iii) in subparagraph (F)(ii); by striking and at the end; (iv) by amending subparagraph (G) to read as follows: (G) if the border patrol agent participates in a day of advanced training, but does not perform the required amount of scheduled overtime work under subparagraph (A)(ii) on that day, the border patrol agent shall be deemed to have performed scheduled overtime work during nonwork periods to the extent necessary to reach the required amount; ; and (v) by adding at the end the following: (H) if the border patrol agent is assigned to provide canine care or assigned to marine duty and participates in a day of advanced training and performs more than the required amount of scheduled overtime work under subparagraph (A)(ii) on that day, the border patrol agent shall be compensated for all of the hours worked on that day; and (I) any overtime obligation that the border patrol agent has incurred can be met through the use of any accrued compensatory time accrued for travel pursuant to section 5550b. ; (3) by amending subsection (d) to read as follows: (d) Treatment as basic pay (1) In general Any overtime supplement in addition to the basic border patrol rate of pay for a border patrol agent resulting from the application of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay shall be treated, subject to paragraphs (2) and (3), as part of basic pay solely— (A) for purposes of the definition of basic pay in sections 8331(3) and 8401(4) and the provisions in chapters 83 and 84 that rely on those definitions; (B) for purposes of sections 5595(c) (relating to severance pay) and 8704(c) (relating to conversion of pay), except as otherwise provided in paragraph (3); (C) for the purpose of section 8114(e) (relating to computation of pay); and (D) for any other purpose that the Director of the Office of Personnel Management may prescribe, by regulation, subject to paragraph (2) and any limitation established in accordance with paragraph (3). (2) Treatment of overtime supplement The overtime supplement described in paragraph (1) may not be treated as part of basic pay for purposes not described in paragraph (1), including the purposes of calculating— (A) overtime pay, night pay, Sunday pay, or holiday pay under sections 5542, 5545, and 5546; (B) locality-based comparability payments under section 5304 or special rate supplements under section 5305; or (C) cost-of-living allowances in nonforeign areas under section 5941. (3) Limitations (A) In general During the control period described in subparagraph (B), the amount of the overtime supplement that is considered basic pay under subparagraphs (A) and (B) of paragraph (1) may not exceed the amount computed by multiplying the border patrol agent’s basic border patrol rate of pay by the percentage representing the agent’s career average of assigned overtime supplement percentages (including 0 percent for periods of time during which no overtime supplement was payable). The career average percentage shall be computed under this subparagraph without regard to the effect of the limitation on premium pay under section 5547. The premium pay limitation remains applicable in determining the dollar amount of any overtime supplement computed using the career average percentage. (B) Control period The control period referred to in subparagraphs (A) and (C) is the period beginning 3 years before the date on which a border patrol agent will meet age and service requirements associated with entitlement to an immediate annuity and ending on the last day of the individual’s career as a border patrol agent. (C) Career average percentage For purposes of subparagraph (A), a border patrol agent’s initial career average of assigned overtime supplement percentages is the average for the border patrol agent’s career before the beginning of the control period. During the control period, the career average shall be recomputed at the end of each annual period (as described in subsection (b)(1)(A)). In computing the career average percentage, any periods of service as a border patrol agent before the first day of the first pay period beginning on or after January 1, 2016, shall be included, and the agent’s assigned overtime supplement during such periods shall be deemed to be 25 percent. If the career average percentage is less than 25 percent, the precise amount of the career average percentage shall be used for purposes of this subsection. (4) Lump-sum annual leave payment In computing an agent’s lump-sum annual leave payment under section 5551 or 5552, the pay the agent is projected to receive shall include a deemed overtime supplement under this paragraph, which— (A) shall be based on the lower of— (i) the agent’s actual overtime supplement percentage in effect at separation; or (ii) the average percentage of the agent’s overtime supplement during the 26 biweekly pay periods immediately preceding such separation; and (B) may not exceed the amount that is, or would be, payable under the premium pay limitation under section 5547. ; (4) in the subsection (f) heading, by striking and substitution of hours and inserting during regular time; Guard and Reservist duties; absences during scheduled overtime ; and (5) by adding at the end the following: (h) Leave without pay during regular time; Guard and Reservist duties; absences during scheduled overtime (1) At least 1 workday If a border patrol agent takes leave without pay for a period of at least 1 workday, the agent shall not receive any pay for the hours during which the border patrol agent took leave without pay. (2) No accrual of overtime debt A border patrol agent shall not accrue an overtime debt for any full workdays during which a border patrol agent uses leave without pay, regardless of the border patrol rate of pay to which the border patrol agent is assigned. (3) Calculation of pay (A) In general For pay periods during which a border patrol agent takes one or more full days of leave without pay, the amount of border patrol pay that the agent would normally receive shall be reduced proportionally by the amount of overtime hours that the agent has not worked due to being on leave without pay. (B) Percentage decrease The total amount of border patrol pay that a border patrol agent would normally receive in a pay period described in subparagraph (A) shall be decreased based on the percentage of work days for which the border patrol agent takes leave without pay. (i) Compressed work schedule (1) In general Notwithstanding any other provision of this section or section 6101, the Commissioner of U.S. Customs and Border Protection may assign a border patrol agent a compressed work schedule under this subsection, subject to any regulations prescribed by the Director of the Office of Personnel Management. (2) Level 1 border patrol rate of pay A border patrol agent receiving the level 1 border patrol rate of pay may, in lieu of the standard work schedule described in subsection (b)(2)(A), be assigned a compressed work schedule under the following terms and conditions: (A) The compressed work schedule shall be a regular tour of duty consisting of four 10-hour workdays per week as his or her regular schedule and shall include, in each pay period, 8 workdays of 10 hours of regular time per workday and a total of 20 additional hours of scheduled overtime on the other days within the pay period in which the agent does not perform regular time. (B) Subparagraphs (B) through (G) of subsection (b)(2) shall apply to an agent assigned a compressed work schedule under this paragraph. References in this section to regular time under subsection (b)(2)(A)(i) and scheduled overtime under subsection (b)(2)(A)(ii) shall be deemed to be references to regular time and scheduled overtime, respectively, described in subparagraph (A). (3) Level 2 border patrol rate of pay A border patrol agent receiving the level 2 border patrol rate of pay may, in lieu of the standard work schedule described in subsection (b)(3)(A), be assigned a compressed work schedule under the following terms and conditions: (A) The compressed work schedule shall be a regular tour of duty consisting of 9 workdays per biweekly pay period, including— (i) 8 workdays of 9 hours of regular time per workday and 1 additional hour of scheduled overtime for each day the agent performs work during such regular time; and (ii) 1 workday of 8 hours of regular time per workday and 2 additional hours of scheduled overtime when the agent performs work during such regular time. (B) Subparagraphs (B) through (H) of subsection (b)(3) shall apply to an agent assigned a compressed work schedule under this paragraph. References in this section to regular time under subsection (b)(3)(A)(i) and scheduled overtime under subsection (b)(3)(A)(ii) shall be deemed to be references to regular time and scheduled overtime, respectively, described in subparagraph (A). (4) Basic border patrol rate of pay A border patrol agent receiving the basic border patrol rate of pay, in lieu of the standard work schedule described in subsection (b)(4)(A), may be assigned a compressed work schedule that is a regular tour of duty consisting of 4 workdays per week with 10 hours of regular time per workday. (5) Sunday pay; premium pay A border patrol agent assigned to a compressed work schedule under this subsection may receive, as applicable— (A) Sunday pay for up to 8 hours of regular time associated with a given Sunday, in accordance with section 5546(a); (B) premium pay for work on a holiday for up to 8 hours of regular time associated with a given holiday, in accordance with section 5546(b); and (C) basic pay for all regular time hours that qualify for holiday time off pay when an agent is relieved or prevented from working during such regular time on a day designated as a holiday by Federal statute or Executive order. (6) Workday In applying sections 6303(a), 6304, 6307(a), 6307(d), 6323, 6326, 6327, and 8339(m) to an employee assigned a compressed work schedule under this subsection, references to a day or a workday (or to multiples or parts thereof) shall be considered to be references to 8 hours (or to the respective multiples or parts thereof). (7) Negotiations The provisions set forth in this subsection shall be subject to collective bargaining negotiations with the border patrol agents’ collective bargaining representative. (j) Rulemaking The Director of the Office of Personnel Management shall promulgate regulations to carry out this section, including regulations governing— (1) elections and assignments of a border patrol rate of pay for newly hired border patrol agents who complete initial training during an annual period; (2) situations in which an agent receives more than 1 type of border patrol rate of pay in a biweekly pay period or is employed as a border patrol agent for only part of a biweekly pay period; and (3) the treatment of hours that are substituted for nonpay status hours during regular time. .