[Congressional Record Volume 164, Number 159 (Wednesday, September 26, 2018)]
[House]
[Pages H9078-H9080]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BORDER PATROL AGENT PAY REFORM AMENDMENTS ACT OF 2018
Mr. RUSSELL. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 5896) to amend title 5, United States Code, to modify the
authority for pay and work schedules of border patrol agents, and for
other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5896
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Patrol Agent Pay
Reform Amendments Act of 2018''.
SEC. 2. AMENDMENTS TO THE BORDER PATROL AGENT PAY REFORM ACT
OF 2014.
(a) Border Patrol Agent Pay.--Section 5550 of title 5,
United States Code, is amended--
(1) in subsection (a)(1), by inserting ``agent'' after
``applicable border patrol'';
(2) in subsection (b)(1)--
(A) in subparagraph (A), by striking ``Not later than 30
days before the first day of each year beginning after the
date of enactment of this section, a border patrol agent
shall make an election whether the border patrol agent shall,
for that year, be assigned to'' and inserting ``Not later
than December 1 of each year, a border patrol agent shall
make an election whether the border patrol agent shall, for
the next annual period beginning on the first day of the
first pay period that commences on or after January 1, be
assigned to'';
(B) in subparagraph (C), by striking ``Not later than 60
days before the first day of each year beginning after the
date of enactment of this section'' and inserting in its
place ``Not later than November 1 of each year'';
(C) in subparagraph (D)--
(i) by amending clause (iv) to read as follows:
``(iv) a border patrol agent shall be assigned a basic
border patrol rate of pay during the period of initial
training (including initial orientation sessions, basic
training, and other preparatory activities) prior to the
agent's first regular work assignment; and'';
(ii) in clause (v), by striking ``or the level 2 border
patrol rate of pay'';
(D) in subparagraph (E)--
(i) in clause (i), by striking ``or the level 2 border
patrol rate of pay'';
(ii) in clause (ii), by striking ``the analysis conducted
under section 2(e) of the Border Patrol Agent Pay Reform Act
of 2014'' and inserting in its place ``a written staffing
analysis''; and
(iii) by adding at the end the following:
``(iv) Exclusion of certain employees.--In applying any
percentage limit under clause (i) or (ii) to a location
population, U.S. Customs and Border Protection shall exclude
from such population any border patrol agent who is assigned
a basic border patrol rate of pay under subparagraph (D)(iii)
or (D)(iv) or who would reach the premium pay cap under
section 5547 if assigned a level 1 border patrol rate of pay.
``(v) Application frequency.--The 10 percent limit under
clause (i) or an alternative percentage limit under a waiver
under clause (ii) shall be applied at the beginning of the
first pay period beginning on or after January 1 each
year.'';
(E) by striking subparagraph (G);
(3) in subsection (b)(2)--
(A) by amending subparagraph (C)(i) to read as follows:
``(i) any compensation under this section or any other
provision of law in addition to the compensation provided
under subparagraph (B); or'';
(B) in subparagraph (E)--
(i) by striking ``paid leave'' and inserting ``leave''; and
(ii) by striking ``absent from work'' and inserting
``excused from work'';
(C) in subparagraph (F)(ii), by striking ``and'';
(D) by amending subparagraph (G) to read as follows:
``(G) if the border patrol agent participates in a full day
of advanced training but does not perform the entire required
amount of scheduled overtime work under subparagraph (A)(ii)
on that day, the border patrol agent shall be deemed to have
performed scheduled overtime work during nonwork periods to
the extent necessary to reach the required amount, but such
deemed credit may be applied to no more than 180 hours in a
calendar year; otherwise, the agent shall accrue a debt of
hours for scheduled overtime not worked on such a day; and'';
(E) by adding at the end the following:
``(H) a border patrol agent may choose to reduce any debt
of obligated overtime hours that the agent has incurred by
applying any accrued compensatory time off for travel
pursuant to section 5550b, and such compensatory time off for
travel may be applied towards such debt only after other
forms of overtime or earned compensatory time credited to the
border patrol agent have been exhausted.'';
(4) in subsection (b)(3)--
(A) by amending subparagraph (C)(i) to read as follows:
``(i) any compensation under this section or any other
provision of law in addition to the compensation provided
under subparagraph (B); or'';
(B) in subparagraph (E), by striking ``paid leave'' and
inserting ``leave'';
(C) in subparagraph (F)(ii), by striking ``and'';
(D) by amending subparagraph (G) to read as follows:
``(G) if the border patrol agent participates in a full day
of advanced training but does not perform the entire required
amount of scheduled overtime work under subparagraph (A)(ii)
on that day, the border patrol agent shall be deemed to have
performed scheduled overtime work during nonwork periods to
the extent necessary to reach the required amount, but such
deemed credit may be applied to no more than 90 hours in a
calendar year; otherwise, the agent shall accrue a debt of
hours for scheduled overtime not worked on such a day; and'';
(E) by adding at the end the following:
``(H) a border patrol agent may choose to reduce any debt
of obligated overtime hours that the agent has incurred by
applying any accrued compensatory time off for travel
pursuant to section 5550b; such compensatory time off for
travel may be applied towards such debt only after other
forms of overtime or earned compensatory time credited to the
border patrol agent have been exhausted.'';
(5) by amending subsection (d) to read as follows:
``(d) Treatment as Basic Pay.--
``(1) In general.--Any overtime supplement in addition to
the basic border patrol rate of pay for a border patrol agent
resulting from application of the level 1 border patrol rate
of pay or the level 2 border patrol rate of pay shall be
treated as part of basic pay only--
``(A) except as otherwise provided in paragraph (3), for
purposes of the definitions in section 8331(3) and 8401(4)
and the provisions in chapters 83 and 84 that rely on those
definitions (consistent with section 8331(3)(I));
``(B) except as otherwise provided in paragraph (3), for
purposes of sections 5595(c) and 8704(c);
``(C) for the purpose of section 8114(e); and
``(D) subject to paragraph (2) and any limitation
established under paragraph (3), any other purpose that the
Director of the Office of Personnel Management may by
regulation prescribe.
``(2) Exclusions.--The overtime supplement described in
paragraph (1) shall not be treated as part of basic pay for
purposes not covered by that paragraph, including the
purposes of calculating--
``(A) overtime pay, night pay, Sunday pay, or holiday pay
under section 5542, 5545, or 5546;
``(B) locality-based comparability payments under section
5304 or special rate supplements under section 5305; or
``(C) cost-of-living allowances in nonforeign areas under
section 5941.
``(3) Limitations.--
``(A) In general.--During the control period described in
subparagraph (B), the amount of the overtime supplement that
is considered basic pay under paragraphs (1)(A) and (1)(B)
may not exceed the amount derived by multiplying the border
patrol agent's basic border patrol rate of pay by the
percentage representing the agent's career average of
assigned overtime supplement percentages (including 0 percent
for periods
[[Page H9079]]
of time during which no overtime supplement was payable).
That career average percentage is computed without regard to
the effect of the limitation on premium pay under section
5547, but the premium pay limitation remains applicable in
determining the dollar amount of any overtime supplement
computed using the career average percentage.
``(B) Control period.--For the purposes of applying
subparagraph (A), the control period described in this
subparagraph is the period that begins 3 years before the
date a border patrol agent will meet age and service
requirements associated with entitlement to an immediate
annuity and continues throughout the remainder of the
individual's career as a border patrol agent.
``(C) Assigned overtime supplement percentages.--For the
purpose of applying subparagraph (A), a border patrol agent's
initial career average of assigned overtime supplement
percentages is the average for the border patrol agent's
career (excluding any period of initial training prior to the
agent's first regular work assignment) prior to the beginning
of the control period described in subparagraph (B). During
such control period, the career average shall be recomputed
at the end of each annual period (as described in subsection
(b)(1)(A)). In computing such career average, any periods of
service as a border patrol agent prior to the first day of
the first pay period beginning on or after January 1, 2016,
shall be included, and the agent's assigned overtime
supplement during such periods shall be deemed to be 25
percent.
``(4) Annual leave payment.--For the purpose of computing
an agent's lump-sum annual leave payment under section 5551
or 5552, the pay the agent is projected to receive shall
include a deemed overtime supplement derived under this
paragraph. Such overtime supplement shall be based on the
lower of the agent's actual overtime supplement percentage in
effect at separation or the average percentage of the agent's
overtime supplement over the 26 full biweekly pay periods
immediately preceding that separation, and shall not exceed
the amount that is or would be payable under the premium pay
limitation in section 5547.'';
(6) in subsection (f)--
(A) in the heading of such subsection, by striking ``and
Substitution of Hours'' and inserting ``During Regular Time;
Absences During Scheduled Overtime''; and
(B) by adding at the end the following:
``(5) Application.--
``(A) Limitation on substitution.--Notwithstanding
paragraph (1), scheduled overtime (as described in paragraph
(2)(A)(ii) or (3)(A)(ii) of subsection (b)) may not be
substituted for leave without pay on a day when a border
patrol agent has a full day of leave without pay.
``(B) Leave without pay.--As provided in paragraphs
(2)(A)(ii) and (3)(A)(ii) of subsection (b), a border patrol
agent shall incur no scheduled overtime obligation on a day
when the agent has a full day of leave without pay.''; and
(7) by adding at the end the following:
`` (h) Alternative Work Schedules.--
``(1) In general.--Notwithstanding any other provision in
this section or section 6101, U.S. Customs and Border
Protection may assign a border patrol agent an alternative
work schedule as described in this subsection, subject to any
regulations prescribed by the Director of the Office of
Personnel Management. No alternative work schedule may be
established under subchapter II of chapter 61.
``(2) Level 2 border patrol agent.--A border patrol agent
receiving a level 2 border patrol rate of pay may, in lieu of
the standard work schedule described in subsection (b)(3)(A),
be assigned to an alternative work schedule under the
following terms and conditions:
``(A) The alternative work schedule shall be a regular tour
of duty consisting of 9 workdays per biweekly pay period,
with--
``(i) 8 workdays including 9 hours of regular time per
workday and 1 additional hour of scheduled overtime for each
day the agent performs work during regular time; and
``(ii) 1 workday including 8 hours of regular time per
workday and 2 additional hours of scheduled overtime when the
agent performs work during such regular time.
``(B) Subparagraphs (B) through (H) of subsection (b)(3)
shall continue to apply to an agent assigned to an
alternative work schedule under this paragraph. References in
this section to regular time under subsection (b)(3)(A)(i)
and scheduled overtime under subsection (b)(3)(A)(ii) shall
be deemed to be references to regular time and scheduled
overtime described in subparagraph (A), respectively.
``(3) Basic border patrol agent.--A border patrol agent
receiving a basic border patrol rate of pay may, in lieu of
the standard work schedule described in subsection (b)(4)(A),
be assigned to an alternative work schedule that is a regular
tour of duty consisting of 4 workdays per week with 10 hours
of regular time per workday.
``(4) Sunday pay; premium pay.--A border patrol agent
assigned to an alternative work schedule under this
subsection, may receive, as applicable--
``(A) Sunday pay for no more than 8 hours of regular time
associated with a given Sunday, consistent with section
5546(a);
``(B) premium pay for work on a holiday for no more than 8
hours of regular time associated with a given holiday,
consistent with section 5546(b); and
``(C) basic pay for all regular time hours that qualify for
holiday time off pay when an agent is relieved or prevented
from working during such regular time on a day designated as
a holiday by Federal statute or Executive order.
``(5) Application.--For purposes of administering sections
6303(a), 6304, 6307(a) and (d), 6323, 6326, 6327, and
8339(m), in the case of an employee assigned to an
alternative work schedule under this subsection, references
to a day or workday (or to multiples or parts thereof)
contained in such sections shall be considered to be
references to 8 hours (or to the respective multiples or
parts thereof).
``(i) Regulations.--The Director of the Office of Personnel
Management shall promulgate regulations to carry out this
section, including regulations governing--
``(1) elections and assignments of a border patrol rate of
pay for newly hired border patrol agents who complete initial
training during an annual period;
``(2) situations in which an agent receives more than one
type of border patrol rate of pay in a biweekly pay period or
is employed as a border patrol agent for only part of a
biweekly pay period; and
``(3) the treatment of hours that are substituted for
nonpay status hours during regular time.''.
(b) Overtime Rates.--Section 5542(g)(5) of title 5, United
States Code, is amended--
(1) in subparagraph (A), by striking ``leave year'' and
inserting ``an annual period, as described in section
5550(b)(1)(A)''; and
(2) by amending subparagraph (E) to read as follows:
``(E) shall not receive credit towards computation of the
border patrol agent's annuity based on unused compensatory
time off; and''.
(c) Premium Pay Cap.--Section 5547(c) of title 5, United
States Code, is amended by inserting after ``duty,'' the
following: ``or to border patrol agents who receive an
overtime supplement for overtime hours within their regular
tour of duty under section 5550,''.
(d) Basic Pay for Retirement.--Section 8331(3)(I) of title
5, United States Code, is amended by adding before the
semicolon at the end the following: ``, subject to the
limitation prescribed in section 5550(d)(3)''.
(e) Scheduled Overtime Work.--Section 2(c)(2) of the Border
Patrol Agent Pay Reform Act of 2014 (Public Law 113-277) is
amended by inserting after ``scheduled overtime work'' the
following: ``(other than scheduled overtime work within the
regular tour of duty)''.
SEC. 3. EFFECTIVE DATE.
The amendments made by section 2 shall take effect on the
first day of the first pay period beginning on or after the
day that is 90 days after the date of the enactment of this
Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Oklahoma (Mr. Russell) and the gentleman from California (Mr. Gomez)
each will control 20 minutes.
The Chair recognizes the gentleman from Oklahoma.
General Leave
Mr. RUSSELL. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
to include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Oklahoma?
There was no objection.
Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I urge support of H.R. 5896, the Border Patrol Agent Pay
Reform Amendments Act of 2018, introduced by my friend, the gentleman
from Texas (Mr. Hurd).
{time} 1930
The U.S. Border Patrol is vital to the Nation's security interests.
Border Patrol agents secure the international land border and the
coastal waters of the United States. They protect the American public
from dangerous people and dangerous materials.
Previous human capital management systems at the agency resulted in
uncertain hours and overtime pay abuses. In 2014, Congress passed the
Border Patrol Agency Reform Act to create a new pay system. This new
system was designed to help the Border Patrol meet its mission by
increasing the number of hours worked by agents, providing more
reliable schedules and paychecks for agents and saving taxpayers around
$100 million, annually.
Since enactment, several organizations have identified problems with
the law's implementation, including U.S. Customs and Border Protection,
the Office of Personnel Management, and the National Border Patrol
Council.
H.R. 5896 seeks to address some of these implementation changes. It
gives the Border Patrol additional flexibility to meet its staffing
needs at specific locations. It removes the disincentive for agents to
receive advanced training by
[[Page H9080]]
allowing them to incur an overtime debt in lieu of a decrease in pay
and by raising the amount of training an agent can receive before the
debt accrues. H.R. 5896 allows agents to apply compensatory time off
accrued for travel toward the overtime debt.
To prevent gaming the system, the bill retains limitations on
overtime pay during an agent's control period, which is the period of
highest pay, generally just prior to retirement. However, the bill
switches from the current system, where the CBP controls the agent's
schedule, to a method which lets the agent work any of these three pay
levels, but with only a portion of their overtime pay computed into
their retirement.
The bill allows agents to take leave without pay, often used for
fulfilling National Guard and Reserve training requirements, without
incurring an overtime debt that they must make up, as they do under the
current system.
It allows Border Patrol agents at the level 2 and basic rates of pay
to work compressed schedules, as they did prior to the 2014 pay system
change. Agents will still work the required number of overtime hours
ordered under the Border Patrol Agent Pay Reform Act.
Finally, the bill makes a series of final changes resulting from OPM
and CBP experiences in implementing the law.
I would like to thank Representative Hurd for his enormous work on
this important legislation. In addition, I would like to thank the CBP,
OPM, and the National Border Patrol Council for working with the
committee to get the bill where it is today.
Mr. Speaker, I urge my colleagues to support this bill, and I reserve
the balance of my time.
Mr. GOMEZ. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, H.R. 5896 would address issues that arose from
implementation of the 2014 version of the bill by making technical and
clarifying changes. The bill would require that newly hired workers
receive the basic rate of pay until they complete initial training. It
would also allow workers to elect to perform 90 or 100 hours per pay
period and receive premium pay above their basic rate. This would help
incentivize workers to move into these important positions.
The bill would also remove the requirement that the agency limit a
worker's tour of duty to control retirement benefits. In exchange, it
would limit the amount of overtime treated as retirement-credible basic
pay during the period used to calculate annuities.
Mr. Speaker, I reserve the balance of my time.
Mr. RUSSELL. Mr. Speaker, I yield 4 minutes to the gentleman from
Texas (Mr. Hurd), the sponsor of this bill.
Mr. HURD. Mr. Speaker, I appreciate the gentleman from Oklahoma
yielding.
Since the birth of our Nation, brave, selfless, and patriotic
individuals have committed to putting their lives on the line to keep
America safe, including along the border. No matter which side of the
aisle you are on, there is no debating the fact that our selfless
Border Patrol agents play a vital role in our national security. We, as
lawmakers, owe a debt of gratitude to ensure our Border Patrol agents
are treated fairly.
As a Member of Congress who represents a district with over 800 miles
of the southern border, I am all too aware of the day-to-day dangers
and obstacles our Border Patrol agents face. As a result of
bureaucratic inefficiencies, many Border Patrol agents are not
receiving the pay they have rightfully earned and, in some cases, are
being forced to work dangerously long shifts to make up for the onerous
and arcane regulations handed down to them from OPM. The purpose of the
Border Patrol Agent Pay Reform Amendments Act of 2018 is to fix this
broken system and allow our agents to receive the pay they have earned.
I want to thank my colleagues on the House Oversight and Government
Reform Committee for recognizing the urgency of these problems and
passing this bill with a voice vote in May.
Additionally, I appreciate the willingness of Customs and Border
Protection, the Office of Personnel Management, and the Border Patrol
Council to sit down and work out an agreement on these pressing issues.
I have to thank my colleagues Martha McSally and Filemon Vela for
their support and work on this piece of legislation.
I strongly urge my colleagues to support this bipartisan bill.
Mr. GOMEZ. Mr. Speaker, I yield back the balance of my time.
Mr. RUSSELL. Mr. Speaker, I urge adoption of the bill, and I yield
back the balance of my time.
The SPEAKER pro tempore (Mr. Higgins of Louisiana). The question is
on the motion offered by the gentleman from Oklahoma (Mr. Russell) that
the House suspend the rules and pass the bill, H.R. 5896, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________