[Federal Register Volume 80, Number 116 (Wednesday, June 17, 2015)]
[Proposed Rules]
[Pages 34540-34559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14809]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 /
Proposed Rules
[[Page 34540]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PARTS 410, 550, 551, and 870
RIN 3206-AN19
Overtime Pay for Border Patrol Agents
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management is issuing proposed
regulations to implement section 2 of the Border Patrol Agent Pay
Reform Act of 2014, as amended, which established a new method of
compensating Border Patrol agents for overtime work. Payments under
this new provision will become payable beginning with the first pay
period beginning in January 2016. These regulations affect only Border
Patrol agents in the U.S. Customs and Border Protection component of
the Department of Homeland Security.
DATES: Comments must be received on or before July 17, 2015.
ADDRESSES: You may submit comments, identified by RIN number ``3206-
AN19'' using any of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow the
instructions for submitting comments.
Email: [email protected].
Mail: Brenda Roberts, Deputy Associate Director, Pay and Leave,
Employee Services, U.S. Office of Personnel Management, Room 7H31, 1900
E Street NW., Washington, DC 20415-8200.
FOR FURTHER INFORMATION CONTACT: Bryce Baker by telephone at (202) 606-
2858 or by email at [email protected].
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing proposed regulations to implement section 2 of the Border
Patrol Agent Pay Reform Act of 2014 (Pub. L. 113-277, December 18,
2014, as amended by Pub. L. 114-13, May 19, 2015), hereafter referred
to as ``BPAPRA.'' BPAPRA established a new method of compensating
Border Patrol agents for overtime work. These regulations affect only
Border Patrol agents employed by the U.S. Customs and Border Protection
(CBP) component of the Department of Homeland Security (DHS). Most
BPAPRA provisions are effective on the first day of the first pay
period beginning on or after January 1, 2016.
Background
Currently, Border Patrol agents generally receive a special form of
overtime compensation called ``Administratively Uncontrollable
Overtime'' (AUO) under 5 U.S.C. 5545(c)(2) and 5 CFR 550.151-550.163.
AUO may be used for employees who perform substantial amounts of
irregular overtime (OT) work that cannot be controlled
administratively. AUO provides complete compensation under title 5 for
all irregular overtime hours--i.e., overtime that is not regularly
scheduled in advance of the workweek. AUO is paid as a percentage of
basic pay, generally ranging from 10 to 25 percent, with the exact
percentage depending on the average number of irregular overtime hours
per week--subject to the title 5 premium pay cap. An employee who is
nonexempt under the Fair Labor Standards Act (FLSA) also receives an
extra half rate for irregular overtime hours as FLSA overtime pay. AUO
recipients receive regular title 5 or FLSA overtime pay for regularly
scheduled overtime hours. AUO is basic pay for retirement purposes for
recipients who are covered under the special retirement program
provisions pertaining to law enforcement officers. Border Patrol agents
qualify as such law enforcement officers.
Recently, the use of AUO at DHS has been under scrutiny from the
Congress, the Office of Special Counsel, and the Government
Accountability Office. Various reviews indicated that AUO was being
used improperly for some DHS employees, and DHS has taken actions to
address the matter. As documented in the August 26, 2014, report on S.
1691 (i.e., the bill later enacted as BPAPRA) by the Senate Committee
on Homeland Security and Governmental Affairs (Senate Report 113-248),
the nature of the work performed by Border Patrol agents has changed
significantly since the AUO law was first enacted in 1954. In
particular, CBP prefers deploying agents for scheduled 10-hour shifts,
which is incompatible with AUO, which covers irregular overtime.
Congress determined that Border Patrol agents needed a reformed
overtime program that is consistent with the current nature of the work
and the desired work schedules, and therefore enacted BPAPRA.
Summary of BPAPRA
Under BPAPRA, in place of AUO, a new form of overtime compensation
would apply to Border Patrol agents. The key features of BPAPRA are
summarized below:
Most Border Patrol agents will have the opportunity each
year to elect to be assigned to one of three types of ``regular tour of
duty'' which provide different rates of compensation: (1) A Level 1
regular tour of duty, which provides an overtime supplement equal to 25
percent of basic pay for a regular schedule of 10 hours each regular
workday, including 2 overtime hours; (2) a Level 2 regular tour of
duty, which provides an overtime supplement equal to 12.5 percent of
basic pay for a regular schedule with 9 hours each regular workday,
including 1 overtime hour; and (3) a Basic regular tour of duty with a
regular 8-hour workday, which provides no overtime supplement.
CBP may assign regular tours of duty in certain
circumstances without regard to agent elections. For example, agents
assigned to care for canines must be assigned a Level 1 regular tour of
duty. Agents in certain positions--headquarters, administrative, or
training or fitness instructor--must be assigned a Basic regular tour
of duty unless a different tour is justified based on a staffing
analysis. In addition, generally no more than 10 percent of agents at a
location may have a Level 2 or Basic regular tour of duty. In other
words, generally at least 90 percent of agents at a location must have
a Level 1 regular tour of duty. CBP may revise the percentage
requirement for a location if justified based on a staffing analysis.
The requirement for 1 or 2 hours of scheduled overtime
within a Level 2 or Level 1 regular tour of duty, respectively, applies
only if the agent performs work during regular time on that same day.
For example, if an agent takes leave for a full 8-hour basic workday,
no obligation to perform those
[[Page 34541]]
scheduled overtime hours accrues on that day, and there is no loss of
pay.
The overtime supplement for regularly scheduled overtime
hours within the assigned Level 1 or Level 2 regular tour of duty is a
percentage of the agent's hourly rate of basic pay and is multiplied by
number of paid hours of basic pay (i.e., hours of regular time, whether
work or paid absence) in the biweekly pay period. Thus, the supplement
is payable during leave or other paid time off taken from the 40-hour
basic workweek.
The overtime supplement is subject to the title 5 premium
pay cap.
An agent may not receive other premium pay for regularly
scheduled overtime hours within his or her regular tour of duty (i.e.,
hours covered by the overtime supplement).
The overtime supplement is treated as part of basic pay
for retirement and certain other purposes, such as life insurance and
severance pay.
CBP must develop a plan to ensure that the assignment of
an overtime supplement to an agent during the period beginning 3 years
before the agent reaches retirement age and service requirements is
consistent with the agent's career average overtime supplement.
Overtime work in excess of the biweekly regular tour of
duty (generally 100, 90, or 80 hours, as applicable) would be
separately compensable. If the additional overtime work is regularly
scheduled in advance of the workweek, the work is compensated under the
regular title 5 overtime provisions (5 U.S.C. 5542). If the additional
overtime work is irregular, the work is compensated by crediting the
agent with compensatory time off. However, no more than 10 hours of
compensatory time off may be earned in a biweekly pay period (unless a
written waiver of this provision is approved in advance) and no more
than 240 hours may be earned during a leave year.
If the agent is absent during required scheduled overtime
within the regular tour of duty (i.e., obligated overtime hours),
payment of the overtime supplement is not affected but the agent
accrues an obligation (debt) to perform other overtime work to make up
for work not performed. Any accrued compensatory time off will be
applied against that overtime hours debt. Any additional overtime work
outside the regular tour of duty in future pay periods will also be
applied against that debt.
All Border Patrol agents are FLSA-exempt. This exemption
applies to both the minimum wage and the maximum hours and overtime
provisions of the FLSA.
Effective Date
BPAPRA was enacted on December 18, 2014 as Public Law 113-277. On
May 19, 2015, BPAPRA was amended by Public Law 114-13 to clarify the
effective date of certain provisions. Section 1(a) of Public Law 114-13
added a new subsection (i) in section 2 of BPAPRA. That section 2(i)
provided that subsections (b), (c), (d), and (g) of section 2 of BPAPRA
are effective on the first day of the first pay period beginning on or
after January 1, 2016, except that (1) any provision of 5 U.S.C.
5550(b) (as added by section 2(b) of BPAPRA) relating to administering
elections and making advance assignments to a regular tour of duty is
applicable before the January 2016 effective date to the extent
determined necessary by the OPM Director and (2) the OPM Director's
authority to issue regulations (in particular, the authority in 5
U.S.C. 5550(b)(1)(B) related to election procedures) is effective as
necessary before the January 2016 effective date.
As required by these proposed regulations, CBP must provide
election information notices to Border Patrol agents no later than
November 1 and agents must make elections for the upcoming annual
period no later than December 1. Thus, BPAPRA provisions related to
administering annual elections and advance assignments for the annual
period beginning in January 2016 must be applied before January 2016.
As provided by Public Law 114-13, regular tours of duty and any
associated overtime supplements established under 5 U.S.C. 5550 (as
added by section 2(b) of BPAPRA) will first take effect on the first
day the first pay period beginning or or after January 1, 2016. That
pay period begins on January 10, 2016. Other BPAPRA provisions that are
effective on January 10, 2016 include (1) the amendments to 5 U.S.C.
5542 (dealing with overtime pay and compensatory time off) made by
section 2(c) of BPAPRA, (2) the amendments to 5 U.S.C. 8331 (dealing
with retirement-creditable basic pay) made by section 2(d) of BPAPRA,
and (3) the amendments to 5 U.S.C. 5547 (dealing with the premium pay
cap) made by section 2(g)(1) of BPAPRA, and (4) the amendments to
section 13(a) of the FLSA (dealing with FLSA exemptions) made by
section 2(g)(2) of BPAPRA.
New Subpart P in 5 CFR Part 550
In order to implement BPAPRA, OPM is proposing to add a new subpart
P, Overtime Pay for Border Patrol Agents, in part 550 (Pay
Administration--General) of title 5, Code of Federal Regulations. A
section-by-section explanation of the proposed regulations follows.
(Note: The descriptions of the proposed regulations are stated in the
present tense for readability.)
Sec. 550.1601--Purpose and Authority
Section 550.1601 includes the purpose of the proposed regulations--
i.e., to implement BPAPRA. It also notes that OPM is relying on its
regulatory authority in 5 U.S.C. 5548 as well as section 2(h) of
BPAPRA.
Sec. 550.1602--Coverage
Section 550.1602 provides that subpart P applies to GS-1896 Border
Patrol agents holding a position in the U.S. Customs and Border
Protection (CBP) component of the Department of Homeland Security
(DHS). Coverage is not affected if a Border Patrol agent is temporarily
detailed to a non-CBP position, since the agent would continue to
officially hold a CBP Border Patrol agent position.
Sec. 550.1603--Definitions
Section 550.1603 provides definitions of terms for purposes of
subpart P. Certain definitions warrant explanation here. Other
definitions are addressed later in the supplementary information in the
context of the regulatory provisions in which they are used.
OPM defines the term annual period to mean the 1-year period that
begins on the first day of the first pay period beginning on or after
January 1 of a given year and ends on the day before the first day of
the first pay period beginning on or after January 1 of the next year.
The term year in 5 U.S.C. 5550(b)(1)(A) and (C) and the term leave year
in 5 U.S.C. 5542(g)(5)(A) are interpreted to be an annual period as
defined in Sec. 550.1603. Under BPAPRA, agents make an election for a
year, which we are interpreting to be an annual period consisting of
full biweekly pay periods. This prevents starting a new regular tour of
duty and associated overtime supplement in the middle of a pay period.
The definitions of irregular overtime work and regularly scheduled
work parallel the definitions of similar terms in the regular premium
pay regulations at 5 CFR 550.103. We are clarifying that irregular
overtime work must be ``officially ordered or approved,'' consistent
with the normal standards governing title 5 overtime in 5 U.S.C.
5542(a) and 5 CFR 550.111(a)(1). This means that, consistent with
agency policies, authorized management
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officials must ``order'' the overtime work in advance or ``approve''
the overtime work after the fact (when emergency circumstances
prevented advance approval). We include a term, regular time, that is
used in BPAPRA to refer to the regular basic hours within an agent's 8-
hour basic workday within the 40-hour basic workweek.
While BPAPRA used the terms level 1 border patrol rate of pay,
level 2 border patrol rate of pay, and basic border patrol rate of pay
to identify agents with different overtime supplements and regular
tours of duty, the subpart P regulations place the focus on an agent's
regular tour of duty and use the terms Level 1 regular tour of duty,
Level 2 regular tour of duty, and Basic regular tour of duty to
identify the three categories of agents. We also found it clearer to
focus on the overtime supplement as a separate payment rather than
being rolled into an aggregate rate of pay.
We define a term obligated overtime hours to describe the overtime
hours within an agent's regular tour of duty that an agent is obligated
to work because he or she had performed work (of any amount) during
regular time on the same day. For example, an agent with a Level 1 tour
of duty would normally be obligated to work 2 hours of scheduled
overtime work within the regular tour, which could add up to 20
overtime hours (10 days x 2 hours per day) in a biweekly pay period.
However, if the agent was on leave during all regular time for 2 basic
workdays (8 hours each day), the agent would not be obligated to
perform the 2 hours of scheduled overtime work within the regular tour
on each of those days. Thus, the total number of obligated overtime
hours during that pay period would be 16 hours (20 hours minus 4
unobligated hours). Because an agent may have such unobligated overtime
hours, the definition of regular tour of duty uses the word
``generally'' in describing the hours within a normal tour of duty.
The term overtime hours debt is defined as the unsatisfied balance
of obligated overtime hours not worked, which represents a debt of
hours for which an agent is accountable. As provided in Sec.
550.1626(b), outside-tour overtime hours in the same pay period may be
substituted for absences during obligated overtime hours for pay
computation purposes. Any remaining obligated overtime hours not worked
become part of the agent's overtime hours debt--a debt that the agent
can satisfy by applying compensatory time off, as described in Sec.
550.1626(c)(1) or by applying outside-tour overtime hours in future pay
periods, as described in Sec. 550.1626(c)(2).
Sec. 550.1604--CBP Authority
This section reflects various provisions in BPAPRA that give CBP
authority to assign work based on its assessment of mission
requirements and operational needs. (See BPAPRA section 2(a) and (f)(1)
and 5 U.S.C. 5550(g).) The BPAPRA provisions show that Congress
intended to ensure that CBP retains full authority to assign work as
needed, regardless of the assigned regular tours of duty.
Sec. 550.1605--Interpretation Instruction
Section 550.1605 restates the instruction found in section 2(f) of
BPAPRA, which provides that nothing in the Act shall be ``construed to
require compensation'' of an agent other than for hours during which
the agent is actually performing work or using approved paid time off.
This reflects Congressional concern regarding alleged abuses of AUO pay
that included some employees not performing work during claimed AUO
hours.
Sec. 550.1611--Assignments for an Annual Period
Section 550.1611 governs the assignment of regular tours of duty
for an upcoming annual period to individuals who are employed as agents
as of November 1 of the preceding year. The law generally envisions
assignments being made for an annual period after giving agents an
opportunity to state their preferred tour via an annual election. The
law provides that agents must (1) be given information about election
options and procedures no later than 60 days before the annual period
and (2) make an annual election no later than 30 days before the annual
period. Since the beginning of the annual period may vary (since it
corresponds to the beginning of the first full pay period in January),
we have regulated that the deadline for providing election information
is November 1 and the deadline for submitting elections is December 1.
These dates meet the statutory time requirements, and provide a
consistent set of deadlines that apply each year.
Consistent with the law, section 550.1611(d) provides that an agent
who fails to make a timely election must be assigned a Level 1 regular
tour of duty. Section 550.1611(e) provides that CBP must inform an
agent of an assignment to a tour not elected by the agent. Section
550.1611(f) lists the circumstances (as provided in BPAPRA) under which
management is required or allowed to unilaterally assign a regular tour
of duty for an annual period that may not match an agent's annual
election. For example, an agent assigned to care for a canine must be
assigned a Level 1 regular tour of duty. Also, an agent assigned to a
headquarters, administrative, training instructor, or fitness
instructor position must be assigned a Basic regular tour of duty (with
no overtime supplement), except as otherwise justified based on a CBP
staffing analysis.
Section 550.1611 does not apply to newly hired agents who--though
currently employed as agents on November 1--will be in initial training
status as of the first day of the annual period. Instead, special
provisions in Sec. 550.1612(a) and (b) apply to such agents. Initial
training is defined in Sec. 550.1603 as meaning initial orientation
sessions, basic training, and other preparatory activities provided
prior to an agent's first regular work assignment in which the agent
has authority to make arrests and carry a firearm.
Sec. 550.1612--Assignments at Other Times
Section 550.1612 addresses other situations in which an agent may
be assigned a regular tour of duty that were not addressed in BPAPRA.
An individual who is newly hired as an agent during an annual period
will generally undergo initial training before commencing a regular
work assignment. During any period of initial training, the agent must
be assigned a Basic regular tour of duty. (This is consistent with the
fact that agents currently do not receive AUO pay during initial
training.) Initial training is not ``advanced'' training during which
Level 1 or Level 2 overtime supplements continue for 60 days under the
BPAPRA law and regulations (5 U.S.C. 5550(b)(2)(G) or (b)(3)(G) and
Sec. 550.1622(b)). As provided in Sec. 550.1612(a), when a newly
hired agent begins a regular work assignment (after completing initial
training), the agent will have a Level 1 regular tour of duty as the
default schedule for the remainder of the annual period. Under
applicable circumstances described in Sec. 550.1611(f), CBP may assign
instead a Level 2 or Basic tour. In addition, under Sec. 550.1612(b),
a newly hired agent will be given an opportunity to submit an election
of a preferred type of regular tour of duty that would take effect
prospectively. Such election must be submitted no later than 30 days
after the agent begins a regular work assignment and, if approved by
CBP, would be effective on the first day of the first pay period
beginning on or after the later of:
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(1) The date the election was submitted; or (2) the date the agent
completed initial training.
Under Sec. 550.1612(c), an individual who is newly hired as an
agent between November 2 and the beginning of the annual period would
be allowed to make an election for the upcoming annual period, if the
agent will not be in initial training status on the first day of the
annual period. Instead of the December 1 election deadline, the
election may be submitted within 30 days after the agent received
election information, but no later than the day before the first day of
the annual period.
Section 550.1612(d) provides that CBP may change an agent's
assignment during an annual period under appropriate circumstances
described in Sec. 550.1611(f) or Sec. 550.1622(b). For example, CBP
may change an assignment to comply with the pay assignment continuity
requirement described in Sec. Sec. 550.1611(f)(5) and 550.1615.
Sec. 550.1613--Selection of Agents for Assignment
Section 550.1613 requires CBP to develop a written plan to guide
the selection of agents for assignment to a particular regular tour of
duty contrary to the agents' preferences, when only some agents'
preferences can be accommodated. For example, CBP may need to implement
the requirement that only 10 percent of agents in a location may have a
Level 2 or Basic regular tour of duty when more than 10 percent of
agents in that location want such a tour. For example, if 12 percent of
agents in a particular location want a Level 2 or Basic regular tour of
duty, 2 percent of agents will be required to have a Level 1 regular
tour of duty contrary to their personal preference. CBP must have a
plan for deciding which agents do not get assigned their desired tour
(or, stated differently, which agents are assigned their desired tour).
Sec. 550.1614--Percentage Limit on Agents With Level 2 or Basic Tour
Section 550.1614 regulates the statutory requirement that, except
when justified based on a CBP staffing analysis, no more than 10
percent of agents stationed at a location may be assigned a Level 2 or
Basic regular tour of duty (i.e., at least 90 percent of agents at a
location must be assigned a Level 1 regular tour of duty). Section
550.1614(d) provides that the pay assignment continuity requirement in
Sec. 550.1615 trumps that requirement in Sec. 550.1614.
Sec. 550.1615--Pay Assignment Continuity
Under 5 U.S.C. 5550(b)(1)(G) (titled ``Pay Assignment
Continuity''), as added by BPAPRA, not later than December 18, 2015 (1
year after the date of enactment), CBP must ``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.'' As indicated in 5
U.S.C. 5550(b)(1)(G)(iv), the purpose of this plan is to ensure that
``border patrol agents are not able to artificially enhance their
retirement annuities.'' By law, CBP must develop and implement this
plan in consultation with OPM. In addition, this plan and its
implementation are subject to any OPM regulations promulgated under its
authority to carry out BPAPRA and to administer section 5550.
OPM interprets section 5550(b)(1)(G) as establishing a period of
time during which CBP must control the assignment of regular tours of
duty to each agent (and thus the overtime supplement percentage) to
ensure consistency with the agent's career average overtime supplement
percentage. This ``control period'' is intended to cover the period of
time during which an agent could possibly have a high-3 ``average pay''
period as described in the retirement laws at 5 U.S.C. 8331(4) and
8401(3). The high-3 ``average pay period'' is a period of 3 consecutive
years of creditable service during which an employee has his or her
highest rates of retirement-creditable basic pay. The high-3 average
pay is used in computing an employee's retirement annuity.
Since the overtime supplement of 25 or 12.5 percent for a Level 1
or Level 2 regular tour of duty, respectively, is retirement-creditable
basic pay and may vary over time (and can be the outcome of an agent's
voluntary election), this introduces the possibility of an agent
electing overtime supplements during a potential high-3 period that
would maximize the agent's retirement benefit, without regard to the
average overtime supplement elected during the employee's career before
the control period. If the overtime supplement used in computing an
agent's high-3 average pay is significantly higher than the career
average overtime supplement, this means that the retirement fund has
not received sufficient employee and agency contributions to fund the
agent's annuity benefit. Not only does this pose problems for the
retirement fund on a macro level, but it also would result in
inequitable treatment of individual agents relative to one another.
Retirement eligibility is based on meeting applicable minimum age
and service requirements and an employee's separation. For a Border
Patrol agent under the Federal Employees' Retirement System, the
minimum age and service requirements for a regular law enforcement
officer retirement annuity are: (1) Any age with 25 years of service;
or (2) age 50 with 20 years of service. The date of an employee's
separation is uncertain until it takes effect. Thus, to achieve the
stated goal of this pay assignment continuity provision, it is
necessary to control overtime supplement assignments during any and all
periods of 3 consecutive years after an agent is within 3 years of
meeting age and service requirements. (We recognize that, in rare
circumstances, an agent's high-3 period may not be the agent's last 3
years before separation and could contain a period before the control
period. For ease of administration, the drafters of BPAPRA assumed that
the high-3 period would be the last 3 years before separation and thus
always be in the control period.)
Section 5550(b)(1)(G)(i) states that the control period applies
``during the 3 years of service before the border patrol agent becomes
eligible for immediate retirement.'' In one sense, an agent has
conditional retirement eligibility once he or she meets age and service
requirements, with separation being the condition. In another sense, an
agent is not truly retirement eligible until he or she separates. Given
the intent of this provision, and the context surrounding this
statutory language, we interpret the law as requiring a plan that
controls overtime supplement assignments during any possible 3-year
period that might precede an agent's separation, which would trigger
retirement eligibility. The statutory language cannot logically be
interpreted as establishing a control period only during the 3 years
preceding the date an agent meets age and service requirements, since
the actual high-3 period could be totally outside such a control
period, which would defeat the entire purpose of the provision. We note
that, in the section-by-section analysis in the Senate committee report
on the bill (S. 1691) later enacted as BPAPRA (Senate Report 113-248,
pages 13-14), the description of section 5550(b)(1)(G) states that the
pay assignment continuity plan is designed to ``ensure an agent is
unable to artificially enhance
[[Page 34544]]
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.'' [Italics added for emphasis.] Thus,
Congress was focused on the 3 years before separation (based on the
generally true assumption that an employee's high-3 period is during
those last 3 years). Since an agent's actual separation date is not
known in advance, it is necessary to provide pay assignment continuity
for all consecutive 3-year periods for any possible separation date.
The first possible separation date is when the agent meets retirement
age and service requirements; thus, the date 3 years before the first
possible separation date begins the control period.
Section 550.1615 regulates the pay assignment continuity
requirement found in law at 5 U.S.C. 5550(b)(1)(G). Section
550.1615(a)(1) provides that, in consultation with OPM, CBP must
implement a plan to ensure, to the greatest extent practicable, that an
agent's overtime supplement during all consecutive 3-year periods
within the control period is ``consistent'' with the agent's career
average percentage during his or her career prior to the beginning of
the control period. As provided in Sec. 550.1615(a)(2), the overtime
supplement percentage used in computing the career average percentage
is the assigned percentage (25, 12.5, or 0) without regard to whether a
premium pay cap prevents full payment based on that percentage.
Section 550.1615(a)(3) provides additional rules governing the
computation of an agent's career average overtime supplement
percentage. Based on the statutory language--``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''--
we are proposing that an agent's career be considered to encompass only
those periods during which the agent was covered by section 5550 and
subpart P. In other words, only overtime supplements established under
5 U.S.C. 5550 would be considered in computing the career average. We
recognize that many agents have received an AUO supplement, which if
considered, could increase or decrease the agent's career average. We
also recognize that some agents will be in the control period when the
provisions of subpart P first become applicable in January 2016 and
that a career average will be immediately needed to apply the pay
assignment continuity provisions. Based on the law, we have proposed in
Sec. 550.1615(a)(3) that, if an agent is in a control period when the
provisions of subpart P first become applicable to the agent, the
agent's initially assigned overtime supplement percentage must be
considered the agent's career average. We are aware that, under the
proposed rule, certain employees in headquarters or other positions for
which no overtime supplement is payable would be considered to have a 0
percent career average overtime supplement. We are specifically
inviting comments on proposed section 550.1615(a)(3) and will carefully
consider those comments in preparing the final regulations.
As provided in Sec. 550.1615(b), the ``control period'' is the
period beginning on the date 3 years before an agent first meets
retirement age and service requirements and remains in effect during
all subsequent service in a Border Patrol agent position.
As regulated in Sec. 550.1615(c)(1), the two averages are
considered to be ``consistent'' if they are within 2.5 percentage
points of one another. CBP must manage agents' assignments (i.e., make
unilateral assignments) during the control period as necessary to
achieve consistency, notwithstanding any other provision of law or
regulation in subpart P. Section 550.1615(c)(2) allows for two
exceptions. One exception applies if an agent's overtime supplement is
limited by the premium pay cap under Sec. Sec. 550.105 and 550.107 and
the agent voluntarily elects (and CBP approves) a regular tour that
results in an average overtime supplement percentage that is less than
the agent's career average. For example, an agent's rate of basic pay
could be at the premium pay cap (generally level IV of the Executive
Schedule) leaving no room for receipt of an overtime supplement. Such
an agent could choose to elect a Basic regular tour of duty that would
provide no overtime supplement and require no regular overtime work.
(The agent could still be ordered to work overtime as needed.) Since
the premium pay cap prevents manipulation of the high-3 average pay,
this exception poses little or no risk to the retirement fund. As
stated in 5 U.S.C. 5550(b)(1)(G)(iv), the goal of the pay assignment
continuity provision is to ensure that agents are not able to
artificially enhance their retirement annuities. The ability for an
agent to enhance his or her annuity is limited or eliminated when the
agent is subject to the premium pay cap.
We cannot allow an agent whose overtime supplement is not affected
by the premium pay cap to voluntarily elect a lesser percentage during
the control period, since the agent could later elect again to have a
higher percentage that is consistent with his/her career average. While
the overtime supplement used in the agent's high-3 average pay would
not exceed a percentage that is consistent with the agent's career
average, the agent (and CBP) will have made inadequate retirement
contributions during the portion of the control period when the lesser
percentage was in effect.
Section 550.1615(c)(2)(ii) provides a necessary exception in cases
where CBP determines an agent is unable to perform overtime work on a
daily basis due to a physical or medical condition affecting the agent
and assigns the agent a Basic regular tour of duty, as described in
Sec. 550.1611(f)(2) (which may be applied to make changes in an
agent's tour during an annual period, as provided by Sec.
550.1612(d)). This exception relieves CBP of applying the consistency
requirement to the affected agent, but only to the extent such
assignment makes it impossible to satisfy the consistency requirement
during any given consecutive 3-year period. Thus, if the period during
which the agent is unable to perform overtime work is short in
duration, it would be possible to fully comply with the consistency
requirement.
Section 550.1615(d) addresses CBP's authority in connection with
the pay assignment continuity requirement. Consistent with 5 U.S.C.
5550(b)(1)(G)(ii), Sec. 550.1615(d)(1) provides that CBP may take such
action as is necessary, including unilateral assignment of an agent's
regular tour of duty, to implement the pay assignment continuity plan,
notwithstanding any provision of BPAPRA or the subpart P regulations.
Section 550.1615(d)(2) reflects the provision in 5 U.S.C.
5550(b)(1)(G)(vi), which states that nothing in section 5550(b)(1)(G)
may be construed to limit the ability of CBP to assign regular tours as
necessary to meet operational requirements. At the same time, as
reflected in Sec. 550.1604, various provisions in BPAPRA (section 2(a)
and 2(f)(1) of BPAPRA and 5 U.S.C. 5550(g)) make clear that CBP has
authority to assign unscheduled work as needed to meet mission needs
and operational requirements, notwithstanding the regular tour assigned
to agents. Thus, as a general matter, OPM does not consider the need to
meet operational requirements as preventing CBP from also controlling
agents' regular tour as necessary to comply with the pay assignment
continuity requirement.
Section 550.1615(e) sets forth reporting requirements with which
CBP must comply so that OPM can monitor and evaluate the effectiveness
of CBP's pay assignment continuity plan and
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assess the actuarial impact on the retirement fund.
Section 550.1615(f) addresses corrective actions that CBP must take
if it determines that the consistency requirement is not being met for
a particular agent. Under this regulation, CBP is not required to
retroactively change an agent's assigned overtime supplement based on
violation of the consistency requirement unless there is evidence of
fraud, misrepresentation, fault, or lack of good faith on the part of
the affected agent in connection with an overtime supplement received
by that agent.
Sec. 550.1616--Corrective Actions
Section 550.1616 addresses corrective actions related to
assignments made under the Sec. Sec. 550.1611 through 550.1614. If it
is determined that CBP did not comply with applicable statutory or
regulatory requirements in assigning an agent to a regular tour of duty
under those sections, CBP must take corrective action as soon as
practicable. The corrective action would apply prospectively. CBP is
not required to retroactively change an agent's assigned tour or
overtime supplement, except when CBP determines there exists, in
connection with the agent's tour assignment, evidence of fraud,
misrepresentation, fault, or lack of good faith on the part of that
agent. Since the overtime supplement is retirement-creditable basic
pay, retroactive changes in the supplement would be disruptive and
could adversely affect an employee's anticipated retirement benefits.
Sec. 550.1621--Rules for Each Type of Regular Tour
Section 550.1621 lays out the sets of rules that apply to each type
of regular tour and provides cross references to those provisions that
are addressed in more detail in other places in subpart P. Paragraphs
(a)(3) and (b)(3) reflect the statutory rules in 5 U.S.C.
5550(b)(2)(A)(ii) and (b)(3)(A)(ii) that an agent with a Level 1 or
Level 2 regular tour of duty has an obligation to perform scheduled
overtime work within that tour only on a day the agent ``performs
work'' during the regular time (8-hour basic workday). Thus, for
example, if an agent with a Level 1 regular tour of duty takes 8 hours
of annual leave on a particular day, the agent does not have an
obligation to work 2 hours of scheduled overtime within the tour on
that day. Paragraph (e) makes clear that, in applying paragraphs (a)(3)
and (b)(3), the term ``work'' refers to paid hours of work, consistent
with Sec. 550.112, except that paid leave and other paid time off are
not considered to be work hours. Paragraph (e) also makes clear that
official time under 5 U.S.C. 7131 (related to employees representing a
labor organization) is ``work'' in applying paragraphs (a)(3) and
(b)(3).
Paragraphs (a)(4) and (b)(4) provide regulations governing the
computation of the overtime supplement (25 percent or 12.5 percent,
respectively). The overtime supplement is computed on an hourly basis
and is equal to 25 percent or 12.5 percent, respectively of an agent's
hourly rate of basic pay. The resulting hourly dollar amount is
multiplied by the number of paid hours of regular time in the biweekly
pay period to determine the biweekly dollar amount of the overtime
supplement before application of the premium pay cap. Also, as provided
in Sec. 550.1626(a)(5), any hours of regular time that are paid only
because of substitution of overtime hours for a period of absence
without approval (AWOL) or suspension are excluded from the hours
multiplied by the hourly overtime supplement.
Paragraph (d) states the overarching rule that the premium pay cap
in 5 U.S.C. 5547 applies to limit, as appropriate, the payment of the
overtime supplement or regularly scheduled overtime outside the regular
tour and the crediting of compensatory time off for irregular overtime
hours. (See 5 U.S.C. 5542(g)(5)(F) and 5547(a) and (e), as amended by
BPAPRA. See also section 2(f)(3) of BPAPRA.) Consistent with the
longstanding interpretation of 5 U.S.C. 5547, an agent affected by the
premium pay cap is still required to perform work as assigned. In
effect, an employee who reaches the premium pay cap is considered a
salaried employee and the combination of basic pay and any premium pay
is considered complete compensation for all hours of work. (In 2015,
the premium pay cap for most employees is based on the Executive
Schedule (EX) level IV annual rate of $158,700. An employee may receive
premium pay in a biweekly pay period only to the extent that the
premium pay does not cause the combination of basic pay and premium pay
to exceed the cap.)
Sec. 550.1622--Circumstances Requiring Special Treatment
Section 550.1622(b) regulates a statutory provision providing
special treatment of employees during the first 60 days of advanced
training in a calendar year. During those 60 days, an agent continues
to be assigned to the regular tour otherwise in effect, regardless of
the actual number of hours of work on a training day, and will continue
to receive the overtime supplement associated with that tour. As a
general rule, an agent will be deemed to have worked during any nonwork
period within obligated overtime hours on such a training day for the
purpose of determining the agent's total hours of work against the
applicable biweekly overtime threshold (i.e., 100 hours for a Level 1
tour and 90 hours for a Level 2 tour). (See also Sec.
550.1623(a)(2)(iv).) For example, if an agent with a Level 1 regular
tour of duty (requiring 2 obligated overtime hours each basic workday)
performs actual work for 0.5 hours during obligated overtime hours on a
day of advanced training, the agent would be deemed to work during the
remaining 1.5 hours and receive credit for those 1.5 hours in applying
the applicable overtime threshold. However, if an agent performs
creditable regularly scheduled overtime work outside the regular tour
(e.g., night work that is creditable under 5 CFR 410.402(b)(2) as an
exception to the normal bar on premium pay during training) on the same
day on which credit would otherwise be given for nonwork overtime
within the tour, those outside-tour overtime hours will be substituted
for any within-tour nonwork overtime hours and reduce the crediting of
nonwork hours accordingly.
Section 550.1622(b)(3) implements the statutory requirement that,
after an agent has 60 days of advanced training in a calendar year, CBP
must assign the agent to a Basic regular tour of duty for any
additional day of advanced training. When such an agent is no longer
engaged in advanced training, the agent reverts to his or her
previously applicable tour.
In applying Sec. 550.1622(b), we rely on the definition of
advanced training found in Sec. 550.1603. Advanced training is defined
to exclude initial training (i.e., initial orientation sessions, basic
training, and other preparatory activities) provided prior to an
agent's first regular work assignment in which the agent has authority
to make arrests and carry a firearm. The rules on advanced training
apply solely to whole-workday training that covers the entire 8-hour
block of regular time on a regular workday, since the statutory
provisions at Sec. 5550(b)(2)(G) and (b)(3)(G) apply to ``days'' of
advanced training. Training that takes part of a day does not trigger
application of the advanced training provision; instead, an agent with
such training remains under the normal rules with the normal overtime
obligations. (See also proposed Sec. 550.1622(b)(4).)
Section 550.1622(c) regulates a statutory provision providing
special
[[Page 34546]]
treatment of agents assigned to care for a canine as part of their
agent duties. During any period an agent is assigned canine care
duties, the agent must be assigned a Level 1 regular tour with a 25
percent overtime supplement (unless that requirement is trumped by the
pay assignment continuity requirement in Sec. 550.1615). As provided
by 5 U.S.C. 5550(b)(1)(F), an agent assigned canine care duties must be
credited with 1 hour of regularly scheduled overtime work within the
regular tour of duty on each regular workday, regardless of the actual
duration of any such care or when the care was actually provided. The
canine care may actually be provided anytime, including on a non-
workday. Regardless of the time or day the canine care is actually
provided or how much time is actually spent providing canine care, an
agent with canine care duties is automatically credited with 1 hour of
work for canine care on each regular workday. That leaves the agent
with an obligation to perform 1 additional overtime hour as part of the
agent's regular tour of duty to meet the 2-hour requirement for a Level
1 tour (on any regular workday on which the agent performs any work
during regular time). This means that an agent assigned canine care
duties actually has a 9-hour daily tour of duty for regular work
instead of the 10-hour daily tour that applies to other employees on a
Level 1 regular tour of duty.
If an agent is generally assigned to provide care for a canine, but
is temporarily relieved of that duty for any reason (e.g., no dog
available), the agent may not receive the 1-hour automatic credit for
canine care on an affected regular workday.
Sec. 550.1623--Overtime Work Outside the Regular Tour
Section 550.1623 provides rules governing the application of
biweekly overtime thresholds that are used to determine: (1) Overtime
pay for regularly scheduled overtime hours outside the regular tour
under Sec. 550.1624; and (2) crediting of compensatory time off for
irregular overtime hours under Sec. 550.1625. As a general rule, the
biweekly overtime threshold is 100 hours for a Level 1 tour, 90 hours
for a Level 2 tour, and 80 hours for a Basic tour, as provided in Sec.
550.1623(b), unless there is a hybrid pay period, as described in Sec.
550.1623(c),
Paragraph (a)(2) identifies the hours that are included in an
agent's total hours of work that are compared to the applicable
biweekly overtime threshold. In addition to time that qualifies as
actual hours of work under the normal title 5 rules and all types of
paid time off hours, we count: (1) Obligated overtime hours during
which no work is performed (creating a debt of hours as provided in
Sec. 550.1621(a)(8) and (b)(8)) and for which no substitution is made
under Sec. 550.1626(b); (2) nonwork hours credited during obligated
overtime hours on a day of advanced training (as provided in Sec.
550.1622(b)); and (3) overtime hours within the regular tour that an
agent is not obligated to work because he or she performs no work
during regular time on that day (as described in Sec. 550.1621(a)(3)
and (b)(3)). Crediting these three categories of hours is necessary to
align with the 100-hour and 90-hour biweekly overtime thresholds fixed
by law for a Level 1 tour and Level 2 tour, respectively. (See 5 U.S.C.
5542(g)(1)(A) and (2)(A).) Without this crediting, there could be hours
of work that are outside an agent's regular tour but below the
applicable overtime threshold, and there would be no authority to
compensate for those hours in any way--a result clearly not intended by
Congress. This crediting complies with section 2(f)(2) of BPAPRA, which
states that nothing in BPAPRA may be construed to require compensation
other than for hours during which an agent is actually performing work
or using approved paid time off. The crediting of the three categories
of hours is only for purposes of applying the overtime threshold and
does not generate any additional compensation for those hours, since
they are hours that only could have been potentially compensated by the
overtime supplement, the amount of which is not affected by the number
of regularly scheduled overtime hours within the regular tour.
Paragraph (c) addresses the possibility of ``hybrid pay periods.''
One type of hybrid pay period occurs when an agent has one type of
regular tour for part of the biweekly pay period and another type for
another part of that period--for example, a Level 1 tour for the first
week and a Basic tour for the second week. It is possible that an
agent's tour could change during a biweekly pay period due to the
expiration of the 60-day advanced training period or because CBP takes
action under the circumstances described in Sec. 550.1611(f), as
allowed under Sec. 550.1612(d). A second type of hybrid pay period
occurs when an individual is employed as a Border Patrol agent for only
part of the pay period. Since the drafters of BPAPRA did not consider
these possibilities, it is necessary to fill in the policy gap via
regulation.
Sec. 550.1624--Regularly Scheduled Overtime Outside the Regular Tour
Section 550.1624 provides rules governing the payment for regularly
scheduled overtime hours beyond the applicable overtime threshold
(outside the regular tour). Such hours are paid under the regular title
5 overtime rules in 5 U.S.C. 5542(a) and 5 CFR 550.113. Paragraph
(c)(1) reflects a statutory directive that CBP should, to the maximum
extent practicable, avoid the use of regularly scheduled overtime work
outside the regular tour of duty. However, paragraph (c)(2) makes clear
that the general restriction in paragraph (c)(1) does not prevent CBP
from assigning outside-tour regularly scheduled overtime work if an
agent volunteers to perform such work. For example, an agent may want
to work such overtime hours to eliminate an overtime hours debt.
Sec. 550.1625--Irregular Overtime and Compensatory Time Off
Section 550.1625 provides rules governing the crediting of
compensatory time off for irregular overtime hours beyond the
applicable overtime threshold. (By definition, any irregular overtime
hour is beyond that threshold and outside the regular tour of duty.)
The rules in Sec. 550.1625 largely reflect statutory requirements and
limitations. In addition, paragraph (c) shows that the call-back
overtime provision in 5 U.S.C. 5542(b)(1) remains applicable to agents.
In addition, since BPAPRA required that a value be assigned to
compensatory time for the purpose of applying the premium pay cap (5
U.S.C. 5542(g)(5)(F)), but did not specify what the value should be, we
are regulating that the value is equal to the amount of overtime pay
the agent would have received for the period during which the
compensatory time off was earned if the overtime had been regularly
scheduled overtime hours outside the agent's regular tour. This is
consistent with how OPM values compensatory time off under 5 U.S.C.
5543 and 5 CFR 550.114. (See 5 CFR 550.114(g).)
Sec. 550.1626--Leave Without Pay During Regular Time and Absences
During Obligated Overtime Hours
Section 550.1626 provides rules governing the handling of
circumstances where an agent has leave without pay during the basic
workweek or absences during obligated overtime hours, consistent with 5
U.S.C. 5550(f). Additional hours worked in a biweekly pay period that
are ``substituted'' for leave without pay or absences during obligated
overtime hours are, for pay
[[Page 34547]]
computations purposes, treated as if they are, respectively, regular
time hours or obligated overtime hours. Thus, substituted hours are not
overtime hours for any purpose, and they may not be considered to be
obligated overtime hours under Sec. 550.1621(a)(4) and (b)(4) (when
within-tour overtime is substituted for LWOP), regularly scheduled
overtime hours under Sec. 550.1624, or irregular overtime hours under
Sec. 550.1625, despite their original character prior to substitution.
As provided in Sec. 550.1603, the term leave without pay includes
all types of nonpay status, including normal approved leave without pay
(regular LWOP), absence without approval (AWOL), suspension, or
furlough. Consistent with the treatment of leave without pay under the
regular title 5 overtime rules (5 CFR 550.112(d)), these regulations
provide for substituting hours outside the basic workweek for leave
without pay within the basic workweek--for purposes of computing
overtime pay. This treatment is necessary so overtime thresholds are
properly applied. As specified in Sec. 550.1626(a)(4), the
substitution is done solely for pay computation purposes and does not
change the fact that an agent was in a particular nonpay status during
the designated hours. For other purposes, the hours that are
substituted are considered to have been performed when they were
worked, not during the leave without pay hours.
Consistent with 5 U.S.C. 5550(f)(1)(A), Sec. 550.1626(a)(1)
provides that an equal period of time outside regular time (which could
include work during obligated overtime hours or outside the regular
tour) must be substituted for leave without pay during regular time.
Consistent with 5 U.S.C. 5550(f)(1)(C), Sec. 550.1626(a)(2) provides
that substitutions for leave without pay during regular time must be
made before substitutions for absences during obligated overtime hours.
Section 550.1626(a)(3) further provides, by authority of regulation,
that overtime hours must be substituted in the following priority:
first, irregular overtime hours; second, regularly scheduled overtime
hours outside the regular tour of duty; and third, regularly scheduled
overtime hours within the regular tour of duty. Priority is given to
substituting irregular overtime hours, since those hours do not
generate a cash payment.
Section 550.1626(a)(5) mandates that overtime hours that are
substituted for absence without approval (AWOL) or suspension may not
be used in computing an agent's overtime supplement. BPAPRA did not
address how substituted hours would affect the computation of the
overtime supplement. By regulation, we are allowing hours that are
substituted for regular LWOP or furlough to be treated as regular time
hours that are multiplied by the hourly overtime supplement. We
determined that it would be inappropriate to allow AWOL or suspension
hours to generate an increased amount of overtime supplement even if
other hours of work are substituted for those hours.
We are not including a regulation to implement 5 U.S.C.
5550(f)(1)(B), which stated that work performed on the same day as a
period of leave without pay should be substituted first. We determined
that, since overtime pay is computed on a biweekly basis, it makes no
difference in an agent's pay entitlements if this same-day priority
were followed or not followed.
Section 550.1626(b) addresses substitution of other work outside
the regular tour of duty for absence during obligated overtime hours,
consistent with 5 U.S.C. 5550(f)(2). Consistent with 5 U.S.C.
5550(f)(2)(B), Sec. 550.1626(b)(2) provides that work performed on the
same day as a period of absence during obligated overtime hours must be
substituted first, but only in the circumstance where same-day
substitution rules make a difference--namely, the application of the
advanced training provision in Sec. 550.1622(b)(2) that is applied on
a daily basis. Section 550.1626(b)(3) further provides, by authority of
regulation, that overtime hours outside the regular tour of duty
(remaining after applying paragraphs (a) and (b)(2)) must be
substituted for obligated overtime hours not worked in the following
priority: first, irregular overtime hours; and second, regularly
scheduled overtime hours outside the regular tour of duty. Priority is
given to substituting irregular overtime hours, since those hours do
not generate a cash payment. Section 550.1626(b)(4) makes clear that
substitution of overtime hours is for pay computation purposes and does
not change when those hours were actually worked for other purposes.
Section 550.1626(c) addresses situations where an agent does not
have sufficient additional work in a biweekly pay period to substitute
for all periods of absence during obligated overtime hours, consistent
with 5 U.S.C. 5550(f)(3) and (4). It mandates that any unused balance
of compensatory time off accrued by an agent under Sec. 550.1625 must
be applied towards any overtime hours debt newly accrued in the current
pay period. It further mandates that, if an overtime hours debt remains
after substitution and after application of unused compensatory time
off, any additional work outside an agent's regular tour in future pay
periods (that would otherwise be considered overtime work under Sec.
550.1624 or Sec. 550.1625) must be applied towards the overtime hours
debt until that debt is satisfied.
Section 550.1626(d) addresses how to handle a situation where an
agent has an unsatisfied overtime hours debt at the time of transfer or
separation, which is not addressed in BPAPRA but is necessarily
addressed in our regulations. At the time of transfer or separation,
the overtime hours debt must be converted to a monetary debt equal to
the result of multiplying the agent's hourly rate of basic pay by the
number of hours owed by the agent. CBP would follow standard debt
collection procedures to recover any debt.
Sec. 550.1631--Relationship to Other Types of Premium Pay
Section 550.1631 provides rules regarding the circumstances under
which an agent may receive other premium pay (not addressed elsewhere
in subpart P), consistent with 5 U.S.C. 5550(c). It further provides
that an agent's regular rate of basic pay (without any overtime
supplement) must be used in computing any premium pay, consistent with
5 U.S.C. 5550(c)(1) and (d)(2).
Sec. 550.1632--Relationship to Hazardous Duty Pay
Section 550.1632 provides that an agent may receive hazardous duty
pay under 5 U.S.C. 5545(d), if otherwise eligible, consistent with 5
U.S.C. 5550(c)(3). It further provides that any hazard pay is computed
using an agent's regular rate of basic pay (without any overtime
supplement), consistent with 5 U.S.C. 5550(d).
Sec. 550.1633--Relationship to Other Provisions Using Basic Pay
Section 550.1633 identifies the limited purposes for which an
overtime supplement is treated as part of an agent's rate of basic pay,
consistent with 5 U.S.C. 5550(d). In addition to the purposes
prescribed in law (i.e., retirement, severance pay, workers'
compensation, and life insurance), OPM is regulating that the overtime
supplement is part of basic pay for purposes of advances in pay under 5
U.S.C. 5524a and 5 CFR part 550, subpart B.
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Sec. 550.1634--Relationship to Leave and Other Paid Time Off
Section 550.1634 makes clear that agents remain covered by title 5
provisions related to leave (5 U.S.C. chapter 63) and to other paid
time off (e.g., holidays under 5 U.S.C. chapter 61, compensatory time
off for religious purposes under 5 U.S.C. 5550a) and that the tour of
duty for accrual of leave and for usage of leave or other paid time off
is the 40-hour basic workweek.
Sec. 550.1635--Relationship to Alternative Work Schedules
Section 550.1635 provides that agents may not have a flexible or
compressed work schedule under 5 U.S.C. chapter 61, subchapter II. OPM
interprets BPAPRA as establishing a special work schedule for all
agents under 5 U.S.C. 5550, which supersedes any other authority to
establish special schedules. CBP is still permitted to have flexible
starting and stopping times for an agent's basic work day if it
determines that such flexibility is appropriate for the position in
question (e.g., a position with a Basic regular tour of duty that does
not require fixed shifts).
Sec. 550.1636--Relationship to FLSA
Section 550.1636 reflects the Fair Labor Standards Act (FLSA)
amendments made by BPAPRA, which provided that the minimum wage and
overtime provisions of the FLSA are not applicable to Border Patrol
agents (i.e., they are automatically exempt from FLSA by virtue of
being a Border Patrol agent). A conforming FLSA exemption is being
added to OPM's FLSA regulations at 5 CFR 551.217.
Sec. 550.1637--Relationship to Travel Time
Section 550.1637(a) provides that an agent's regular travel to and
from home and a work location within the agent's official duty station
(as defined in Sec. 550.112(j)) may not be considered hours of work,
which is consistent with 5 U.S.C. 5550(e) as added by BPAPRA. This is
also generally consistent with regular title 5 rules related to travel
at 5 CFR 550.112(j)(2).
Section 550.1637(b) addresses travel away from an agent's official
duty station (as defined in Sec. 550.112(j)). Such travel is subject
to the normally applicable hours-of-work rules in 5 U.S.C. 5542(b)(2)
and 5 CFR 550.112(g). When an agent travels directly between home and a
temporary duty location outside the limits of the agent's official duty
station, the time the agent would have spent in normal home to work
travel must be deducted from any creditable hours of work while
traveling.
Sec. 550.1638--Relationship to Official Time
Section 550.1638 addresses how official time under 5 U.S.C. 7131
relates to BPAPRA pay provisions. Under 5 U.S.C. 7131--
``Any employee representing an exclusive representative in
the negotiation of a collective bargaining agreement under this chapter
shall be authorized official time for such purposes, including
attendance at impasse proceeding, during the time the employee
otherwise would be in a duty status. The number of employees for whom
official time is authorized shall not exceed the number of individuals
designated as representing the agency for such purposes.'' (See 5
U.S.C. 7131(a).)
``The Authority shall determine whether any employee
participating for, or on behalf of, a labor organization in any phase
of proceedings before the Authority shall be authorized official time
for such purpose during the time the employee otherwise would be in a
duty status.'' (See 5 U.S.C. 7131(c).)
Except as provided in the previous subsections, any
employee representing an exclusive representative or in connection with
any other matter covered by this chapter ``shall be granted official
time in any amount the agency and the exclusive representative involved
agree to be reasonable, necessary, and in the public interest.'' (See 5
U.S.C. 7131(d).)
An employee using official time is paid a base salary even though not
in a regular duty status. Official time is also considered to be
``hours of work'' when the employee would otherwise be in a duty
status. Generally, official time is used during an employee's basic
(nonovertime) hours. Official time may also be used during management-
assigned overtime hours if an unplanned event occurs incident to
representational functions that must be dealt with during the overtime
hours.
In drafting proposed regulations to carry out BPAPRA, we determined
that certain issues related to official time needed to be addressed.
First, the rules in 5 U.S.C. 5550(b)(2)(A)(ii) and (b)(3)(A)(ii)
provide that the obligation to perform overtime hours of work as part
of an agent's regular tour of duty is triggered only when the agent
performs ``work'' during the 8-hour basic workday on that same day.
Thus, we provide in Sec. 550.1621(e) and Sec. 550.1638 that official
time is included as ``work'' in applying those section 5550 provisions.
This is consistent with how OPM treats official time during basic
(nonovertime) hours as hours of work in applying title 5 and FLSA
overtime provisions, based on 5 U.S.C. 7131.
In addition, we clarify in Sec. 550.1638 that Border Patrol agents
who use official time to perform union representational duties may
elect to have a Level 1 or Level 2 regular tour of duty, but generally
must perform regular agency work (as opposed to union representational
duties) during obligated overtime hours. However, use of official time
during obligated overtime hours or any other overtime hours is
permitted if an unplanned event arises incident to representational
functions that must be dealt with during the overtime hours.
Conforming Changes to Other Regulations
OPM is proposing conforming changes in a variety of regulations in
part 410, part 550, part 551, and part 870. (Note: The descriptions of
the proposed regulations below are stated in the present tense for
readability.)
Section 410.402 is amended to show the receipt of the Border Patrol
agent overtime supplement as a permitted exception to the general bar
on premium pay during periods of training.
Section 550.103 is amended to revise the definition of premium pay
and add a new definition of regular tour of duty so that these
definitions can be used in applying 5 CFR part 550, subpart A (Premium
Pay). The revised definition of premium pay makes clear the term
includes a Border Patrol agent overtime supplement and the dollar value
of compensatory time off earned by a Border Patrol agent, consistent
with 5 U.S.C. 5542(g)(5)(F) and 5547(a)(1) and (e) and section 2(f) of
BPAPRA.
Section 550.107 is amended to provide that the Border Patrol agent
overtime supplement is subject solely to the biweekly premium pay cap
(not the annual cap), consistent with the treatment of other premium
payments that are retirement-creditable basic pay. In prescribing this
treatment, OPM is relying on its broad authority to regulate the
premium pay subchapter in 5 U.S.C. 5548 plus its additional broad
authority in section 2(h) of BPAPRA to issue regulations to carry out
BPAPRA.
Section 550.111 is amended by adding a new paragraph (j), which
provides that special overtime thresholds apply to Border Patrol agents
for the purpose of paying overtime under the regular title 5 overtime
authority (for overtime not compensated by an overtime supplement or by
the earning of compensatory time off). (See 5 U.S.C. 5542(g) and Sec.
550.1623.)
[[Page 34549]]
Sections 550.122, 550.132, and 550.172 are amended by adding new
paragraphs, which provide that night pay differential, holiday premium
pay, and Sunday pay are not payable for regularly scheduled overtime
within a Border Patrol agent's regular tour duty (i.e., overtime hours
compensated via the overtime supplement), consistent with 5 U.S.C.
5550(b)(2)(C), (b)(3)(C), and (c)(1)(A). These new paragraphs also make
clear that a Border Patrol agent overtime supplement is not included in
the rate of basic pay used to compute the amount of these premium
payments for other hours that qualify for such payments, consistent
with 5 U.S.C. 5550(c)(1) and (d)(2).
In Sec. 550.202, we are amending the definition of rate of basic
pay used in applying the advances in pay regulations so that it
includes a Border Patrol agent overtime supplement. This amendment
relies on OPM's authority in 5 U.S.C. 5550(d)(1)(B) to regulate the
purposes for which the overtime supplement is treated as basic pay.
In Sec. 550.703, we are amending the definition of rate of basic
pay used in applying the severance pay regulations so that it includes
a Border Patrol agent overtime supplement, consistent with 5 U.S.C.
5550(d)(1)(A).
In Sec. 550.1204, we are amending paragraph (a) to provide that
Border Patrol agent compensatory time off does not extend the period of
leave used for calculating a lump-sum annual leave payment. This is
consistent with the treatment of regular title 5 compensatory time off
and with 5 U.S.C. 5542(g)(5)(D), which provides that an agent may not
receive any cash value for unused compensatory time off.
In Sec. 550.1205, we are adding a new paragraph (b)(5)(iv), which
provides a Border Patrol agent overtime supplement is used in computing
any annual leave lump-sum payment. This is an exercise of OPM's
regulatory authority in 5 U.S.C. 5553 and is consistent with the
treatment of AUO pay that Border Patrol agents have been receiving.
In OPM's FLSA regulations, we are amending Sec. 551.216 and adding
a new Sec. 551.217. In Sec. 551.216(c)(2), we are deleting references
to Border Patrol agents, since they are no longer covered by the FLSA.
In the new Sec. 551.217, we provide that Border Patrol agents are FLSA
exempt (for purposes of minimum wage and overtime provisions), as
required by the amendments to section 13(a) of the FLSA (29 U.S.C.
213(a)) made by section (g)(2) of BPAPRA.
In OPM's life insurance regulations, we are amending Sec. 870.204
to provide that a Border Patrol agent overtime supplement is treated as
part of an agent's ``annual pay'' used in computing life insurance
benefits, as required by 5 U.S.C. 5550(d)(1)(A). (Congress relied on
section 5550(d)(1)(A) rather than amend 5 U.S.C. 8704(c) to
specifically reference the Border Patrol agent overtime supplement.
Under section 8704(c), OPM may prescribe regulations governing the
types of pay included in annual pay.)
Executive Order 12866 and Executive Order 13563
The Office of Management and Budget has reviewed this proposed rule
in accordance with E.O. 12866 and E.O. 13563.
Regulatory Flexibility Act
I certify that these proposed regulations will not have a
significant economic impact on a substantial number of small entities
because they will apply only to Federal agencies and employees.
List of Subjects
5 CFR Part 410
Education, Government employees.
5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
5 CFR Part 551
Government employees, Wages.
5 CFR Part 870
Administrative practice and procedure, Government employees,
Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.
U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
For the reasons stated in the preamble, OPM is proposing to amend
parts 410, 550, 551, and 870 of title 5 of the Code of Federal
Regulations as follows:
PART 410--TRAINING
0
1. The authority citation for part 410 continues to read as follows:
Authority: 5 U.S.C. 1103(c), 2301, 2302, 4101, et seq.; E.O.
11348, 3 CFR, 1967 Comp., p. 275, E.O. 11478, 3 CFR 1966-1970 Comp.,
page 803, unless otherwise noted, E.O. 13087; and E.O. 13152.
Subpart D--Paying for Training Expenses
0
2. In Sec. 410.402, add paragraph (b)(8) to read as follows:
Sec. 410.402 Paying premium pay.
* * * * *
(b) * * *
(8) Border Patrol agent overtime supplement. A Border Patrol agent
may receive an overtime supplement under 5 U.S.C. 5550 and 5 CFR part
550, subpart P, during training, subject to the limitation in 5 U.S.C.
5550(b)(2)(G) and (b)(3)(G) and 5 CFR 550.1622(b).
* * * * *
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
0
3. The authority citation for subpart A of part 550 is revised to read
as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv),
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5
U.S.C. 5545a); section 2(h), Pub. L. 113-277, 128 Stat. 3005; E.O.
12748, 3 CFR, 1992 Comp., p. 316.
0
4. Amend Sec. 550.103 by adding a sentence at the end of the
definition of premium pay and adding in alphabetical order a definition
of regular tour of duty to read as follows:
Sec. 550.103 Definitions.
* * * * *
Premium pay * * * This includes an overtime supplement received by
a Border Patrol agent under 5 U.S.C. 5550 and subpart P of this part
for regularly scheduled overtime hours within the agent's regular tour
of duty and the dollar value of hours of compensatory time off earned
by such an agent.
* * * * *
Regular tour of duty, with respect to a Border Patrol agent covered
by 5 U.S.C. 5550 and subpart P of this part, means the basic 40-hour
workweek plus any regularly scheduled overtime work hours that the
agent is assigned to work as part of an officially established 5-day
weekly work schedule generally consisting of--
(1) 10-hour workdays (each including 2 overtime hours each day) in
exchange for a 25-percent overtime supplement (Level 1); or
(2) 9-hour workdays (each including 1 overtime hour each day) in
exchange for a 12.5-percent overtime supplement (Level 2).
* * * * *
0
5. In Sec. 550.107, amend paragraph (a)(3) by removing the word
``and'' at the end of paragraph, removing the period from the end of
paragraph (a)(4) and adding in its place ``; and'', and adding
paragraph (a)(5) to read as follows:
[[Page 34550]]
Sec. 550.107 Premium payments capped on a biweekly basis when an
annual limitation otherwise applies.
(a) * * *
(5) An overtime supplement for regularly scheduled overtime hours
within a Border Patrol agent's regular tour of duty under 5 U.S.C.
5550.
* * * * *
0
6. In Sec. 550.111, add paragraph (j) to read as follows:
Sec. 550.111 Authorization of overtime pay.
* * * * *
(j) For Border Patrol agents covered by 5 U.S.C. 5550 and subpart P
of this part, overtime work means hours of work in excess of applicable
thresholds, as specified in Sec. 550.1623, excluding hours that are--
(1) Compensated by payment of an overtime supplement for regularly
scheduled overtime within the agent's regular tour of duty under Sec.
550.1621;
(2) Compensated by the earning of compensatory time off under Sec.
550.1625; or
(3) Used in substitution or application under Sec. 550.1626.
0
7. In Sec. 550.122, add paragraph (e) to read as follows:
Sec. 550.122 Computation of night pay differential.
* * * * *
(e) Border Patrol agents. For a Border Patrol agent covered by 5
U.S.C. 5550 and subpart P of this part, no night pay differential is
payable for regularly scheduled overtime hours within the agent's
regular tour of duty, as required by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C),
and (c)(1)(A). The overtime supplement payable for such scheduled
overtime hours is not part of the agent's rate of basic pay used in
computing the night pay differential for other hours that qualify for
such a differential.
0
8. In Sec. 550.132, add paragraph (d) to read as follows:
Sec. 550.132 Relation to overtime, night, and Sunday pay.
* * * * *
(d) For a Border Patrol agent covered by 5 U.S.C. 5550 and subpart
P of this part, no holiday premium pay is payable for regularly
scheduled overtime hours within the agent's regular tour of duty, as
required by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C), and (c)(1)(A). The
overtime supplement payable for such scheduled overtime hours is not
part of the agent's rate of basic pay used in computing the holiday
premium pay for other hours that qualify for such premium pay.
0
9. In Sec. 550.172, designate the current text as paragraph (a) and
add paragraph (b) to read as follows:
Sec. 550.172 Relation to overtime, night, and holiday pay.
* * * * *
(b) For a Border Patrol agent covered by 5 U.S.C. 5550 and subpart
P of this part, no Sunday premium pay is payable for regularly
scheduled overtime hours within the agent's regular tour of duty, as
required by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C), and (c)(1)(A). The
overtime supplement payable for such scheduled overtime hours is not
part of the agent's rate of basic pay used in computing the Sunday
premium pay for other hours that qualify for such premium pay.
Subpart B--Advances in Pay
0
10. The authority citation for subpart B of part 550 is revised to read
as follows:
Authority: 5 U.S.C. 5524a, 5527, 5545a(h)(2)(B), 5550(d)(1)(B);
E.O. 12748, 3 CFR, 1992 comp., p. 316.
0
11. In Sec. 550.202, amend the definition of rate of basic pay by
removing ``and'' at the end of paragraph (3), removing the period at
the end of paragraph (4) and adding in its place ``; and'', and adding
paragraph (5) to read as follows:
Sec. 550.202 Definitions.
* * * * *
Rate of basic pay * * *
(5) An overtime supplement for regularly scheduled overtime within
a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550 (as
allowed under 5 U.S.C. 5550(d)(1)(B)).
Subpart G--Severance Pay
0
12. The authority citation for subpart G of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5595; E.O. 11257, 3 CFR, 1964-1965 Comp.,
p. 357.
0
13. In Sec. 550.703, amend the definition of rate of basic pay by
removing ``and'' at the end of paragraph (3), removing the period at
the end of paragraph (4) and adding in its place ``; and'', and adding
paragraph (5) to read as follows:
Sec. 550.703 Definitions.
* * * * *
Rate of basic pay * * *
(5) An overtime supplement for regularly scheduled overtime within
a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550 (as
required by 5 U.S.C. 5550(d)(1)(a)).
* * * * *
Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual
Leave
0
14. The authority citation for subpart L continues to read as follows:
Authority: 5 U.S.C. 5553, 6306, and 6311.
Sec. 550.1204 [Amended]
0
15. In Sec. 550.1204, amend paragraph (a) by removing the phrase
``compensatory time off earned under 5 U.S.C. 5543 and Sec. 550.114(d)
or Sec. 551.531(d) of this chapter'' from the third sentence and
inserting in its place the phrase ``unused compensatory time off earned
under 5 U.S.C. 5543 and Sec. 550.114(d) or Sec. 551.531(d) of this
chapter or under 5 U.S.C. 5542(g) and Sec. 550.1625''.
0
16. In Sec. 550.1205, amend paragraph (b)(5) by adding paragraph (iv)
to read as follows:
Sec. 550.1205 Calculating a lump-sum payment.
* * * * *
(b) * * *
(5) * * *
(iv) An overtime supplement for regularly scheduled overtime within
a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550, as in
effect immediately prior to the date the agent became eligible for a
lump-sum payment under Sec. 550.1203. The agency must base the lump-
sum payment on the agent's assigned overtime supplement percentage. The
assigned percentage will be considered fixed for the duration of the
lump-sum annual leave projection period described in Sec. 550.1204,
even if an annual period for elections under 5 U.S.C. 5550 begins
during that projection period. In cases where the amount of the
overtime supplement actually payable in a pay period was limited by a
statutory cap, the agency must base the lump-sum payment on a reduced
percentage rate that reflects the actual amount of the overtime
supplement the agent could receive in a pay period.
* * * * *
0
17. Add subpart P to part 550 to read as follows:
Subpart P--Overtime Pay for Border Patrol Agents
General Provisions
Sec.
550.1601 Purpose and authority.
550.1602 Coverage.
550.1603 Definitions.
550.1604 Authority of U.S. Customs and Border Protection.
550.1605 Interpretation instruction.
Assignment of Regular Tour of Duty and Overtime Supplement
550.1611 Assignments for an annual period.
550.1612 Assignments made at other times.
550.1613 Selection of agents for assignment.
550.1614 Limit on percentage of agents who do not have a Level 1
regular tour of duty.
[[Page 34551]]
550.1615 Pay assignment continuity.
550.1616 Corrective actions.
Treatment of Overtime Work
550.1621 Rules for types of regular tour of duty.
550.1622 Circumstances requiring special treatment.
550.1623 Overtime work outside the regular tour of duty.
550.1624 Regularly scheduled overtime outside the regular tour of
duty.
550.1625 Irregular overtime and compensatory time off.
550.1626 Leave without pay during regular time and absences during
obligated overtime hours.
Relationship to Other Provisions
550.1631 Other types of premium pay.
550.1632 Hazardous duty pay.
550.1633 Treatment of overtime supplement as basic pay.
550.1634 Leave and other paid time off.
550.1635 Alternative work schedule.
550.1636 Exemption from Fair Labor Standards Act.
550.1637 Travel time.
550.1638 Official time.
Subpart P--Overtime Pay for Border Patrol Agents
Authority: 5 U.S.C. 5548 and 5550(b)(1)(B) and (d)(1)(B);
section 2(h), Pub. L. 113-277, 128 Stat. 3005.
General Provisions
Sec. 550.1601 Purpose and authority.
This subpart contains OPM regulations to implement section 2 of the
Border Patrol Agent Pay Reform Act of 2014 (Pub. L. 113-277), which
added section 5550 in title 5, United States Code, and made related
statutory amendments. The Act created a special overtime pay program
for Border Patrol agents in the U.S. Customs and Border Protection
component within the Department of Homeland Security. OPM has authority
under 5 U.S.C. 5548(a) to regulate subchapter V (Premium Pay) of
chapter 55 of title 5, United States Code, including section 5550 and
the Act's amendments to sections 5542 and 5547. OPM was also granted
broad authority to promulgate necessary regulations to carry out the
Act and the amendments made by the Act under section 2(h) of the Act.
Sec. 550.1602 Coverage.
This subpart applies to an employee of the U.S. Customs and Border
Protection component of the Department of Homeland Security (or any
successor organization) who holds a position assigned to the Border
Patrol Enforcement classification series 1896 or any successor series,
consistent with classification standards established by OPM. Such an
employee is referred to as a ``Border Patrol agent'' or ``agent'' in
this subpart.
Sec. 550.1603 Definitions.
For the purpose of this subpart--
Advanced training means all training, other than initial training,
provided on a whole-workday basis. Advanced training excludes training
that covers only part of an 8-hour basic workday.
Agent means a Border Patrol agent.
Annual period means a 1-year period that begins on the first day of
the first pay period beginning on or after January 1 of a given year
and ends on the day before the first day of the first pay period
beginning on or after January 1 of the next year. The term ``year'' in
5 U.S.C. 5550(b)(1)(A) and (C) and the term ``leave year'' in 5 U.S.C.
5542(g)(5)(A) are interpreted to be an annual period as defined here.
Basic regular tour of duty means an officially established weekly
regular tour of duty consisting of five 8-hour workdays (including no
overtime hours) for which no overtime supplement is payable.
Basic workday means the 8 hours of nonovertime work on a day within
an agent's basic workweek.
Basic workweek, for full-time employees, means the 40-hour workweek
established in accordance with 5 CFR 610.111.
Border Patrol agent means an employee to whom this subpart applies,
as provided in Sec. 550.1602.
CBP means the component of the Department of Homeland Security
known as U.S. Customs and Border Protection (or any successor
organization). When this term is used in the context of CBP making
determinations or taking actions, it means management officials of CBP
who are authorized to make the given determination or take the given
action.
Hybrid pay period means a biweekly pay period within which--
(1) An agent has one type of established regular tour of duty for
one part of the pay period and another type of regular tour of duty for
a different part of the pay period; or
(2) An individual is employed as an agent for only a portion of the
pay period.
Initial training means training for newly hired agents--including
initial orientation sessions, basic training, and other preparatory
activities--provided prior to the agent's first regular work assignment
in which he or she will be authorized to make arrests and carry a
firearm.
Irregular overtime work means officially ordered or approved
overtime work that is not regularly scheduled overtime work--i.e.,
overtime work that is not part of the agent's regularly scheduled
administrative workweek.
Leave without pay means a period of time within an agent's basic
workweek during which the agent is in nonpay status, including periods
of unpaid voluntary absence with approval, absence without approval
(AWOL), suspension, or furlough.
Level 1 regular tour of duty means an officially established weekly
regular tour of duty generally consisting of five 10-hour workdays
(including 2 overtime hours each workday) that provides entitlement to
a 25 percent overtime supplement.
Level 2 regular tour of duty means an officially established weekly
regular tour of duty generally consisting of five 9-hour workdays
(including 1 overtime hour each workday) that provides entitlement to a
12.5 percent overtime supplement.
Obligated overtime hours means regularly scheduled overtime hours
that an agent with a Level 1 or Level 2 regular tour of duty is
obligated to work as part of the agent's regular tour of duty, if the
agent performs any amount of work during regular time on same day, and
that are converted into an overtime hours debt when the agent fails to
work the hours.
Overtime hours debt means the balance of obligated overtime hours
not worked for which the agent has not satisfied the hours obligation
by applying compensatory time off hours or other overtime hours of work
outside the agent's regular tour of duty.
Overtime supplement means a payment received in addition to the
regular amount of basic pay for nonovertime work in exchange for
regularly scheduled overtime work within an agent's Level 1 or Level 2
regular tour of duty. For an agent who is assigned a 10-hour workday as
part of the agent's Level 1 regular tour of duty, the overtime
supplement is 25 percent. For an agent who is assigned a 9-hour workday
as part of the agent's Level 2 regular tour of duty, the overtime
supplement is 12.5 percent. The overtime supplement is computed as
provided in Sec. 550.1621(a)(4) and (b)(4).
Pay period means a 14-day biweekly pay period.
Rate of basic pay means the regular nonovertime rate of pay payable
to an agent, excluding any overtime supplement, but including any
applicable locality payment under 5 CFR part 531, subpart F; special
rate supplement under 5 CFR part 530, subpart C; or similar payment or
supplement under other legal authority, before any deductions and
exclusive of
[[Page 34552]]
additional pay of any other kind. An overtime supplement is included as
part of an agent's rate of basic pay for purposes outside this subpart,
as provided in Sec. 550.1633.
Regularly scheduled administrative workweek, for a full-time
employee, means the period within an administrative workweek,
established in accordance with 5 CFR 610.111, within which the employee
is regularly scheduled to work.
Regularly scheduled work means work (including overtime work) that
is scheduled in advance of an administrative workweek under an agency's
procedures for establishing workweeks in accordance with 5 CFR 610.111.
Regular time means the regular basic (nonovertime) hours within an
agent's 8-hour basic workday within the 40-hour basic workweek.
Regular tour of duty means the basic 40-hour workweek plus any
regularly scheduled overtime work hours that the agent is assigned to
work as part of an officially established 5-day weekly work schedule
generally consisting of--
(1) 10-hour workdays (including 2 overtime hours each workday) in
exchange for a 25 percent overtime supplement (Level 1); or
(2) 9-hour workdays (including 1 overtime hour each workday) in
exchange for a 12.5 percent overtime supplement (Level 2).
Sec. 550.1604 Authority of U.S. Customs and Border Protection.
Authorized management officials of U.S. Customs and Border
Protection are responsible for determining the mission requirements and
operational needs of the organization and have the right to assign
scheduled and unscheduled work as necessary to meet those requirements
and needs, regardless of an agent's officially established regular tour
of duty. (See subsections (a) and (f)(1) of section 2 of Pub. L. 113-
277 and 5 U.S.C. 5550(g).)
Sec. 550.1605 Interpretation instruction.
As required by section 2(f) of the Border Patrol Agent Pay Reform
Act of 2014 (Pub. L. 113-277), nothing in section 2 of the Act or this
subpart may be construed to require compensation of an agent other than
for hours during which the agent is actually performing work or using
approved paid leave or other paid time off. This section does not
prevent CBP from granting paid excused absence from an agent's basic
workweek under other authority.
Assignment of Regular Tour of Duty and Overtime Supplement
Sec. 550.1611 Assignments for an annual period.
(a) Annual period. The assignment of a regular tour of duty and
overtime supplement to an agent is in effect for a full annual period
(or the portion of such period during which the individual is employed
as an agent), except as otherwise provided in this subpart. The annual
period is a 1-year period that begins on the first day of the first pay
period beginning on or after January 1 of a given year and ends on the
day before the first day of the first pay period beginning on or after
January 1 of the next year.
(b) Information regarding annual election opportunity. No later
than November 1 of each year, CBP must provide each currently employed
agent with information regarding the opportunity to elect a regular
tour of duty and corresponding overtime supplement for the next annual
period. The information must include an explanation of election options
and procedures. For an agent who will be in initial training status on
the first day of the annual period, this paragraph is not applicable,
and Sec. 550.1612(a) and (b) will apply instead.
(c) Annual election opportunity. No later than December 1 of each
year, an agent to whom paragraph (b) of this section is applicable may
make an election among three options for the regular tour of duty and
corresponding overtime supplement (as described in Sec. 550.1621) that
the agent wishes to be applicable to him or her during the next annual
period.
(d) Failure to make an election. If an agent fails to make a timely
election under paragraph (c) of this section, CBP must assign the agent
a Level 1 regular tour of duty with a 25 percent overtime supplement,
except as otherwise provided in paragraph (f) of this section.
(e) Effect of agent election. CBP must assign an agent the regular
tour of duty elected by the agent under paragraph (c) of this section
unless CBP informs the agent of an alternative assignment, as provided
under paragraph (f) of this section. CBP may change the assignment
during the annual period, as provided under Sec. 550.1612(d).
(f) Management assignment to tour. CBP may assign a different
regular tour of duty than that elected by the agent for an upcoming
annual period under the following circumstances:
(1) An agent who is assigned canine care duties must be assigned a
Level 1 regular tour of duty, subject to Sec. 550.1622(c);
(2) An agent who is unable to perform overtime on a daily basis, as
determined by CBP, must be assigned a Basic regular tour of duty with
no overtime supplement until such time as CBP determines the agent is
able to perform the required overtime on a daily basis;
(3) An agent who holds a position at CBP headquarters, as a
training instructor at a CBP training facility, or as a fitness
instructor--or who holds another type of administrative position-- must
be assigned a Basic regular tour of duty unless CBP determines a Level
1 or Level 2 regular tour of duty may be assigned to the agent based on
a comprehensive staffing analysis conducted for the agent's duty
station as required by section 2(e) of the Border Patrol Agent Pay
Reform Act of 2014 (Pub. L. 113-277);
(4) CBP determines that an agent must be assigned to a Level 1
regular tour of duty to ensure that not more than 10 percent (or higher
percentage established under Sec. 550.1614(b)) of agents stationed at
a location are assigned to a Level 2 regular tour of duty or a Basic
regular tour of duty, as required by 5 U.S.C. 5550(b)(1)(E) and Sec.
550.1614; or
(5) CBP determines that assignment of a different regular tour of
duty is necessary to comply with the pay assignment continuity
provisions in 5 U.S.C. 5550(b)(1)(G) and Sec. 550.1615,
notwithstanding any other provision of law or this subpart (including
paragraphs (f)(1) through (4) of this section).
Sec. 550.1612 Assignments made at other times.
(a) An individual who is newly hired as an agent must be assigned a
Basic regular tour of duty during any period of initial training. After
completing any period of initial training, an agent must be assigned a
Level 1 regular tour of duty for any portion of the annual period
remaining at that point, except under applicable circumstances
described in paragraph (f) of Sec. 550.1611 or paragraph (b) of this
section.
(b) An agent who would otherwise be assigned a regular tour of duty
under paragraph (a) of this section may submit an election of a
different regular tour of duty to be effective on a prospective basis
for the remaining portion of the annual period. CBP must provide the
agent with election information no later than the date the agent begins
a regular work assignment (i.e., after completing any period of initial
training). CBP must assign an agent the regular tour of duty elected by
the agent under this section unless CBP informs the agent of an
alternative assignment based on the
[[Page 34553]]
circumstances described in paragraph (f) of Sec. 550.1611. Such
election must be submitted to CBP no later than 30 days after the agent
begins a regular work assignment and, if approved by CBP, is effective
on the first day of the first pay period beginning on or after the
later of--
(1) The date the election was submitted; or
(2) The date the agent completed initial training.
(c) An individual who is newly hired as an agent during the period
beginning on November 2 and ending on the day before the first day of
the next annual period may make an election to take effect at the
beginning of the next annual period notwithstanding the normally
applicable December 1 election deadline, if the agent will not be in
initial training status on the first day of the annual period. Such
election must be submitted no later than 30 days after receiving
election information, but before the first day of the annual period.
Such an election is subject to the same requirements and conditions
that apply to an election for an annual period under paragraphs (e) and
(f) of Sec. 550.1611. If such election is not made, CBP must assign
the agent a Level 1 regular tour of duty with a 25 percent overtime
supplement for the next annual period, except under applicable
circumstances described in paragraph (f) of Sec. 550.1611.
(d) CBP may change an agent's assigned regular tour of duty during
an annual period under the circumstances described in paragraph (f) of
Sec. 550.1611 or paragraph (b) of Sec. 550.1622. For example, an
agent's regular tour of duty may be changed one or more times during an
annual period as necessary to comply with the pay assignment continuity
provision described in Sec. 550.1611(f)(5).
Sec. 550.1613 Selection of agents for assignment.
If application of paragraphs (f)(3) and (4) of Sec. 550.1611 (or
application of those paragraphs through Sec. 550.1612) requires CBP to
select agents for assignment to a particular regular tour of duty out
of a pool of agents who prefer a different assignment, CBP must make
any such selection consistent with an established written plan that
includes the criteria that will be considered and the priority of those
criteria. Such plan must be consistent with the requirements of this
subpart.
Sec. 550.1614 Limit on percentage of agents who do not have a Level 1
regular tour of duty.
(a) CBP must take such action as is necessary, including unilateral
assignment of agents to a Level 1 regular tour of duty, to ensure that
not more than 10 percent of agents stationed at a location are assigned
to a Level 2 regular tour of duty or a Basic regular tour of duty, as
required by 5 U.S.C. 5550(b)(1)(E), notwithstanding any other provision
of law or this subpart, except as provided by paragraphs (b), (c), and
(d) of this section. For the purpose of this paragraph, the term
``location'' means a Border Patrol sector, which includes all
subordinate organizational structures and related geographic areas
within the sector (e.g., stations).
(b) CBP may waive the 10 percent limit in paragraph (a) of this
section and apply a higher percentage limit if CBP determines it is
able to adequately fulfill its operational requirements under that
higher limit based on a comprehensive staffing analysis conducted for
the agent's duty station under section 2(e) of the Border Patrol Agent
Pay Reform Act of 2014 (Pub. L. 113-277).
(c) The 10 percent limit in paragraph (a) does not apply to agents
working at CBP headquarters or at a CBP training location.
(d) Regardless of the percentage limits set under this section,
assignments of regular tours of duty to individual agents must be made
consistent with the requirement to ensure pay assignment continuity
under Sec. 550.1615.
Sec. 550.1615 Pay assignment continuity.
(a) Plan. (1) In consultation with OPM, CBP must develop and
implement a plan to ensure, to the greatest extent practicable, that
the assignment of a regular tour of duty to an agent during all
consecutive 3-year periods within the control period specified in
paragraph (b) of this section produces an average overtime supplement
percentage (during each 3-year period) that is consistent with the
agent's average overtime supplement percentage during the course of the
agent's career prior to the beginning of that control period, subject
to paragraph (c) of this section. The goal of this plan is to ensure
that agents are not able to artificially enhance their retirement
annuities during the period when the high-3 average pay may be
determined (in accordance with 5 U.S.C. 8331(4) or 5 U.S.C. 8401(3)).
(2) In applying paragraph (a)(1) of this section, an agent's
assigned overtime supplement percentage (25 percent, 12.5 percent, or 0
percent) must be used in computing the career average supplement
regardless of whether or not the payable amount of the overtime
supplement is limited by a premium pay cap established under 5 U.S.C.
5547 and Sec. Sec. 550.105 and 550.107.
(3) For purpose of computing the career average overtime supplement
percentage, an agent's career is considered to encompass only those
periods during which the agent was covered by this subpart. If an agent
is in a control period specified in paragraph (b) of this section when
the provisions of this subpart first become applicable to the agent,
the agent's initially assigned overtime supplement percentage must be
considered the agent's career average.
(b) Control period. The period of time during which CBP must
control an agent's assignment to a regular tour of duty begins on the
date 3 years before the agent meets age and service requirements for an
immediate retirement and remains in effect during all subsequent
service in a Border Patrol agent position.
(c) Consistency requirement. (1) The consistency requirement in
paragraph (a) of this section is considered to be met when the agent's
average overtime supplement percentage during all consecutive 3-year
periods within the control period specified in paragraph (b) of this
section is within 2.5 percentage points of the agent's average overtime
supplement percentage during the course of the agent's career prior to
the beginning of that control period, except as provided in paragraph
(c)(2) of this section.
(2) Notwithstanding the consistency requirement in paragraph (a) of
this section, the CBP plan may allow an agent to be assigned a regular
tour of duty that provides an overtime supplement percentage that is
less than that necessary to produce an average percentage (during all
consecutive 3-year periods within the control period specified in
paragraph (b)) that is consistent with the agent's career average
percentage if--
(i) The agent's overtime supplement is limited by the premium pay
cap under Sec. Sec. 550.105 and 550.107 and the agent voluntarily
elects a regular tour of duty providing such a lesser overtime
supplement percentage that is approved by CBP; or
(ii) CBP determines an agent is unable to perform overtime on a
daily basis due to a physical or medical condition affecting the agent
and assigns the agent a Basic regular tour of duty, as described in
Sec. 550.1611(f)(2), (but only to the extent such assignment makes it
impossible to satisfy the consistency requirement during any given
consecutive 3-year period).
(d) CBP authority. (1) CBP may take such action as is necessary,
including the unilateral assignment of a regular tour of duty to
implement the plan
[[Page 34554]]
described in paragraph (a) of this section, except as provided in
paragraph (d)(2) of this section.
(2) Notwithstanding the requirements of 5 U.S.C. 5550(b)(1)(G) and
this section, CBP is authorized to assign agents to regular tours of
duty as necessary to meet operational requirements.
(e) Reporting requirements--(1) Annual data reporting for agents
subject to pay assignment continuity. For each agent within the control
period specified in paragraph (b) of this section, CBP must provide to
OPM no later than March 30th of each year the following information (in
a format specified by OPM) based on data compiled through the end of
the most recent annual period:
(i) The date the agent became subject to controls on the assignment
to a regular tour of duty;
(ii) The date the agent will become subject to mandatory separation
under 5 U.S.C. 8335(b) or 5 U.S.C. 8425(b);
(iii) The service computation date based on eligibility under 5
U.S.C. 8336(c) or 5 U.S.C. 8412(d);
(iv) The average overtime supplement percentage during the course
of the agent's career prior to the beginning of the control period
specified in paragraph (b);
(v) The average overtime supplement percentage for the time period
beginning with the date the agent became subject to controls on the
assignment to a regular tour of duty and ending on the last day of the
most recent annual period;
(vi) The average overtime supplement percentage for the last three
annual periods (excluding any time that was not within a control period
specified in paragraph (b) of this section);
(vii) The average overtime supplement percentage for the most
recent annual period (excluding any time that was not within a control
period specified in paragraph (b) of this section), and;
(viii) Any other information requested by OPM.
(2) Annual data reporting for all agents. No later than March 30th
of each year, CBP must provide to OPM the following information (in a
format specified by OPM) for each agent compiled for the preceding
calendar year based on salary payments made during that year:
(i) The amount of earnings subject to retirement deductions,
including overtime supplement payments, received during the most recent
calendar year;
(ii) The amount of earnings subject to retirement deductions during
the most recent calendar year minus the total amount of the overtime
supplement payments during that year;
(iii) The service computation date computed as though law
enforcement officer service is regular employee service (i.e., the
``regular'' SCD);
(iv) The service computation date computed with credit for law
enforcement officer service, and any other service creditable for
eligibility under 5 U.S.C. 8336(c) or 5 U.S.C. 8412(d) (i.e., the
``LEO'' SCD);
(v) Date of birth;
(vi) Gender;
(vii) Retirement system (e.g., CSRS, FERS, FERS-RAE, FERS-FRAE);
and
(viii) Any other information requested by OPM.
(3) Additional data. CBP must provide additional data as requested
by OPM at any time, including data on the percentage rate of
administratively uncontrollable overtime under Sec. 550.154 during the
period before the annual period that begins in January 2016.
(f) Corrective actions. If it is determined that the consistency
requirement described in paragraphs (a) and (c) of this section is not
being met for a particular agent, CBP must document why the
differential occurred and establish any necessary actions, including
the modification of the plan described in paragraph (a) of this
section, to ensure that the goal of pay assignment continuity is
achieved going forward. CBP is not required to retroactively correct an
agent's assigned tour or overtime supplement based on violation of the
consistency requirement, except when CBP determines there exists, in
connection with an agent's assigned overtime supplement, evidence of
fraud, misrepresentation, fault, or lack of good faith on the part of
that agent.
Sec. 550.1616 Corrective actions.
If it is determined that CBP did not comply with applicable
statutory or regulatory requirements in assigning an agent to a regular
tour of duty under Sec. Sec. 550.1611 through 550.1614, CBP must take
corrective action as soon as practicable. Such corrective action must
be applied on a prospective basis. CBP is not required to retroactively
change an agent's assigned tour or overtime supplement, except when CBP
determines there exists, in connection with the agent's tour
assignment, evidence of fraud, misrepresentation, fault, or lack of
good faith on the part of that agent.
Treatment of Overtime Work
Sec. 550.1621 Rules for types of regular tour of duty.
(a) Level 1 regular tour of duty. For an agent with a Level 1
regular tour of duty and a 25 percent overtime supplement, the
following rules apply:
(1) The agent has an officially established weekly regular tour of
duty generally consisting of five 10-hour workdays (an 8-hour basic
workday and 2 regularly scheduled overtime hours);
(2) The agent's 8-hour basic workday (regular time) may be
interrupted by an unpaid off-duty meal break;
(3) The obligation to perform 2 hours of overtime work on a day
including part of the agent's regular tour of duty does not apply if
the agent performs no work during regular time on that day, subject to
paragraph (e) of this section;
(4) As compensation for regularly scheduled overtime hours within
the regular tour of duty, the agent is entitled to an overtime
supplement equal to 25 percent of the agent's hourly rate of basic pay
times the number of paid hours of regular time for the agent in the pay
period (subject to the premium cap in Sec. Sec. 550.105 and 550.107
and the restriction in Sec. 550.1626(a)(5)), and no additional
compensation or compensatory time off may be provided for such overtime
hours;
(5) For any additional regularly scheduled overtime hours outside
the regular tour of duty, the agent is entitled to overtime pay as
provided in Sec. 550.1624, except as otherwise provided by Sec.
550.1626;
(6) For any irregular overtime hours, the agent is entitled to be
credited with compensatory time off as provided in Sec. 550.1625,
except as otherwise provided by Sec. 550.1626;
(7) The agent must be charged corresponding amounts of paid leave,
compensatory time off, other paid time off, or time in nonpay status
for each hour (or part thereof) the agent is absent from duty during
regular time, as provided in Sec. 550.1634, except as otherwise
provided in Sec. 550.1626(a); and
(8) If the agent is absent during regularly scheduled overtime
hours within the agent's regular tour of duty that the agent is
obligated to work, the agent accrues an obligation to perform other
overtime work for each hour (or part thereof) the agent is absent, and
such obligation must be satisfied as provided in Sec. 550.1626.
(b) Level 2 regular tour of duty. For an agent with a Level 2
regular tour of duty and a 12.5 percent overtime supplement, the
following rules apply:
[[Page 34555]]
(1) The agent has an officially established weekly regular tour of
duty generally consisting of five 9-hour workdays (an 8-hour basic
workday and 1 regularly scheduled overtime hour);
(2) The agent's 8-hour basic workday (regular time) may be
interrupted by an unpaid off-duty meal break;
(3) The obligation to perform 1 hour of overtime work on a day
including part of the agent's regular tour of duty does not apply if
the agent performs no work during regular time on that day, subject to
paragraph (e) of this section;
(4) As compensation for regularly scheduled overtime hours within
the regular tour of duty, the agent receives an overtime supplement
equal to 12.5 percent of the agent's hourly rate of basic pay times the
number of paid hours of regular time for the agent in the pay period
(subject to the premium cap in Sec. Sec. 550.105 and 550.107 and the
restriction in Sec. 550.1626(a)(5)), and no additional compensation or
compensatory time off may be provided for such overtime hours;
(5) For any additional regularly scheduled overtime hours outside
the regular tour of duty, the agent is entitled to overtime pay as
provided in Sec. 550.1624, except as otherwise provided by Sec.
550.1626;
(6) For any irregular overtime hours, the agent is entitled to be
credited with compensatory time off as provided in Sec. 550.1625,
except as otherwise provided by Sec. 550.1626;
(7) The agent must be charged corresponding amounts of paid leave,
compensatory time off, other paid time off, or time in nonpay status
for each hour (or part thereof) the agent is absent from duty during
regular time, as provided in Sec. 550.1634, except as otherwise
provided in Sec. 550.1626(a); and
(8) If the agent is absent during regularly scheduled overtime
hours within the agent's regular tour of duty that the agent is
obligated to work, the agent accrues an obligation to perform other
overtime work for each hour (or part thereof) the agent is absent, and
such obligation must be satisfied as provided in Sec. 550.1626.
(c) Basic regular tour of duty. For an agent with a Basic regular
tour of duty that includes no scheduled overtime hours and provides no
overtime supplement, the following rules apply:
(1) The agent has an officially established weekly regular tour of
duty generally consisting of five 8-hour basic workdays;
(2) The agent's 8-hour basic workday (regular time) may be
interrupted by an unpaid off-duty meal break;
(3) For any regularly scheduled overtime hours, the agent is
entitled to overtime pay as provided in Sec. 550.1624, except as
otherwise provided by Sec. 550.1626;
(4) For any irregular overtime hours, the agent is entitled to be
credited with compensatory time off as provided in Sec. 550.1625,
except as otherwise provided by Sec. 550.1626; and
(5) The agent must be charged corresponding amounts of paid leave,
compensatory time off, other paid time off, or time in nonpay status
for each hour (or part thereof) the agent is absent from duty during
regular time, as provided in Sec. 550.1634, except as otherwise
provided in Sec. 550.1626(a).
(d) Effect of premium pay cap. If a premium pay cap established
under 5 U.S.C. 5547 and Sec. Sec. 550.105 and 550.107 limits payment
of an overtime supplement or regularly scheduled overtime pay, or
limits crediting of compensatory time off, the affected agent is still
required to perform assigned overtime work.
(e) Meaning of ``work''. In applying paragraphs (a)(3) and (b)(3)
of this section, the term ``work'' refers to paid hours of work,
consistent with Sec. 550.112, except that paid leave and other paid
time off when an agent is excused from duty are not considered to be
work hours. Official time under 5 U.S.C. 7131 during regular time is
considered to be paid hours of ``work'' during the time an employee
otherwise would be in a duty status.
Sec. 550.1622 Circumstances requiring special treatment.
(a) General. The rules in paragraphs (b) and (c) of this section
provide for special treatment based on specified circumstances and
apply notwithstanding any other provision of this subpart.
(b) Advanced training. (1) During the first 60 days of advanced
training in a calendar year, an agent's assigned regular tour of duty
must be considered to continue and the agent must be deemed to have
worked during any nonwork period within obligated overtime hours for
the purpose of determining the agent's total hours to be compared to
the applicable overtime threshold (as provided in Sec.
550.1623(a)(2)(iv)), except as provided under paragraph (b)(2) of this
section.
(2) If an agent, during the period covered by paragraph (b)(1) of
this section, performs creditable overtime work outside the agent's
regular tour of duty on a day when the agent performed less than the
required amount of obligated overtime work, the overtime work outside
the regular tour of duty must be applied towards the obligated overtime
hours, as provided in Sec. 550.1626(b). After any such substitution,
CBP must credit the agent with hours of work for any remaining nonwork
time during obligated overtime hours on the same day for the purpose of
determining the agent's total hours to be compared to the applicable
overtime threshold. For example, if an agent performs 2 creditable
hours of regularly scheduled overtime work outside the agent's Level 1
regular tour of duty on a training day when the agent performed half an
hour of work during the 2 hours of obligated overtime, CBP would
substitute 1.5 hours of regularly scheduled overtime outside the
regular tour of duty for 1.5 hours of obligated overtime when no work
was performed. CBP would not provide the agent with any credit for
nonwork hours under paragraph (b)(1) of this section, since the 0.5
hours of actual work plus the 1.5 substituted hours account for the
entire 2-hour period. The agent would be paid for the unsubstituted
half hour of creditable regularly scheduled overtime work under Sec.
550.1624.
(3) For days of advanced training in excess of 60 days in a
calendar year, an agent must be assigned a Basic regular tour of duty
and be treated accordingly. If this results in a hybrid pay period in
which an agent has two types of regular tours of duty within the same
biweekly pay period, CBP must determine the number of overtime hours
outside the regular tour of duty as provided in Sec. 550.1623(c). For
an agent who is assigned a Basic regular tour of duty during advanced
training under this paragraph, CBP must change the agent's regular tour
of duty to the type in effect before the Basic tour was assigned when
the agent is no longer participating in advanced training.
(4) Paragraphs (b)(1) through (3) of this section apply solely to
advanced training that is provided in whole-workday increments (i.e.,
covering an entire 8-hour basic workday).
(c) Canine care. For an agent assigned to provide care for a canine
and assigned to the Level 1 regular tour of duty border patrol rate of
pay, the combined sum of basic pay plus the 25 percent overtime
supplement is considered to provide compensation for all canine care.
Such an agent must be credited with 1 hour of regularly scheduled
overtime work as part of the regular tour of duty on each day
containing a part of that tour, without regard to the actual duration
of such care or the time and day when such care was actually provided.
That leaves the agent with an additional obligation to perform 1 other
hour of regularly
[[Page 34556]]
scheduled overtime work as part of the agent's regular tour of duty on
any day containing a part of the employee's tour, if the agent performs
work during regular time on that day and thus has obligated overtime
hours. An agent may receive no other compensation or compensatory time
off for hours of canine care beyond what is specifically provided under
this paragraph. If an agent is generally assigned to provide care for a
canine, but is temporarily relieved of that duty for any reason (e.g.,
no dog available), the agent may not receive the 1-hour credit for
canine care on a day when the agent is relieved from providing canine
care.
Sec. 550.1623 Overtime work outside the regular tour of duty.
(a) General. (1) For the purpose of determining hours of overtime
work outside an agent's regular tour of duty in order to apply
Sec. Sec. 550.1624, 550.1625, and 550.1626, CBP must apply the
applicable biweekly overtime threshold prescribed in paragraphs (b) and
(c) of this section. An agent's total hours of work (as determined
under paragraph (a)(2) of this section) must be compared to the
applicable threshold, and hours in excess of that threshold are
overtime hours in applying Sec. Sec. 550.1624, 550.1625, and 550.1626.
The 8-hour daily and 40-hour weekly overtime thresholds under 5 U.S.C.
5542(a) and Sec. 550.111 are not applicable to agents.
(2) An agent's total hours of work in a pay period for the purpose
of applying applicable overtime thresholds is equal to the sum of:
(i) Time determined to be hours of work in duty status (regular
time or overtime), subject to this subpart, 5 U.S.C. 4109 and 5 CFR
410.402 (related to training periods), and 5 U.S.C. 5542(b) and Sec.
550.112 (establishing general rules), except that paragraphs (d) and
(e) of Sec. 550.112 are superseded by Sec. 550.1626;
(ii) Paid leave or other paid time off during a period of nonduty
status within an agent's regular time;
(iii) Obligated overtime hours during which no work is performed
(creating a debt of hours) and for which no substitution is made under
Sec. 550.1626(b);
(iv) Nonwork hours deemed to be hours of work during obligated
overtime hours on a day of advanced training under Sec. 550.1622(b);
and
(v) Overtime hours normally scheduled within an agent's regular
tour of duty that an agent is not obligated to work because the agent
performs no work during regular time on that day (as provided in
paragraphs (a)(3) and (b)(3) of Sec. 550.1621).
(b) Overtime thresholds for standard tours. (1) The applicable
biweekly overtime threshold prescribed in paragraph (b)(2) of this
section applies during a pay period to an agent whose regular tour of
duty is fixed at one of the three standard tours for the entire pay
period.
(2) For an agent covered by paragraph (b)(1) of this section, the
threshold used to determine whether an agent has performed overtime
work outside the regular tour of duty in a given pay period is--
(1) 100 hours for a Level 1 regular tour of duty;
(2) 90 hours for a Level 2 regular tour of duty; or
(3) 80 hours for a Basic regular tour of duty.
(c) Overtime threshold for hybrid pay period. (1) For a hybrid pay
period in which an agent has one type of regular tour of duty in effect
for one part of the period and another type for another part of the
period, the threshold used to determine whether an agent has performed
overtime work outside the regular tour of duty in a given pay period is
equal to the sum of the regular time hours (paid or unpaid) and the
number of normally scheduled overtime hours within a regular tour of
duty (whether obligated or not and whether worked or not) in the pay
period. For example, if an agent has a Level 1 regular tour of duty in
the first week of a pay period and a Level 2 regular tour of duty in
the second week, the agent's regular time hours would be 40 in the
first week and 40 in the second week and the normally scheduled
overtime hours within a regular tour of duty would be 10 (5 days times
2 hours each day) in the first week and 5 (5 days times 1 hour each
day) in second week, resulting in an biweekly overtime threshold of 95
hours.
(2) For a hybrid pay period in which an individual is employed as a
Border Patrol agent for only part of the pay period, the threshold used
to determine whether an agent has performed overtime work outside the
regular tour of duty in a given pay period is equal to the sum of the
paid regular time hours (paid or unpaid) and the number of normally
scheduled overtime hours within a regular tour of duty (whether
obligated or not and whether worked or not) during the portion of the
pay period the individual was employed as an agent. For example, if an
individual is employed as an agent only during the second week of a pay
period and has a Level 1 regular tour of duty, the overtime threshold
would be 50 hours in determining whether the agent has overtime hours
in that week that are compensable under Sec. Sec. 550.1624 through
550.1626.
Sec. 550.1624 Regularly scheduled overtime outside the regular tour
of duty.
(a) Coverage. Any regularly scheduled overtime hours outside an
agent's regular tour of duty, as specified in Sec. 550.1623, are
covered by this section, except that such hours are excluded from
coverage under this section when required by the superseding provisions
in Sec. 550.1626.
(b) Rates. Agents receive overtime pay at the rates specified under
5 U.S.C. 5542(a) and Sec. 550.113 for regularly scheduled overtime
hours covered by paragraph (a) of this section, subject to the premium
pay limitation established under 5 U.S.C. 5547 and Sec. Sec. 550.105
and 550.107. An agent's rate of basic pay (without any overtime
supplement) is used in computing overtime pay for such hours.
(c) Avoiding additional regularly scheduled overtime. (1) As
required by section 2(c)(2) of the Border Patrol Agent Pay Reform Act
of 2014 (Pub. L. 113-277), CBP must, to the maximum extent practicable,
avoid the use of regularly scheduled overtime work by agents outside of
the regular tour of duty.
(2) Notwithstanding paragraph (c)(1) of this section, CBP may allow
use of regularly scheduled overtime work outside an agent's regular
tour of duty if an agent volunteers to perform such overtime (e.g., to
reduce an overtime hours debt).
Sec. 550.1625 Irregular overtime and compensatory time off.
(a) Coverage. An agent is entitled to compensatory time off as
provided in this section for irregular overtime hours outside an
agent's regular tour of duty, as specified in Sec. 550.1623, except
that such hours are excluded from coverage under this section (except
paragraph (c) of this section) when required by the superseding
provisions in Sec. 550.1626. The compensatory time off provisions in 5
U.S.C. 5543 and 5 CFR 550.114 are not applicable to an agent.
(b) Earning on an hour-for-hour basis for irregular overtime.
Subject to the limitations specified in this section and the
superseding provisions in Sec. 550.1626, an agent must receive
compensatory time off for an equal amount of time spent performing
irregular overtime work.
(c) Call-back overtime work. Notwithstanding paragraph (b) of this
section, consistent with 5 U.S.C. 5542(b)(1) and Sec. 550.112(h), an
agent must be deemed to have performed 2 hours of irregular overtime
work for a
[[Page 34557]]
lesser amount of irregular overtime work if--
(1) An agent is required perform such work on a day when the agent
was not scheduled to work; or
(2) An agent is required to return to the agent's place of
employment to perform such work.
(d) Earning limited by premium pay cap. An agent may not be
credited with earning compensatory time off if the value of such time
off would cause the sum of the agent's basic pay and premium pay in the
given pay period to exceed the limitation established under 5 U.S.C.
5547 and Sec. Sec. 550.105 and 550.107 in the period in which it was
earned. The dollar value of compensatory time for the purpose of this
paragraph is the amount of overtime pay the agent would have received
for the period during which compensatory time off was earned if the
overtime had been regularly scheduled outside the agent's regular tour
of duty.
(e) Pay period limit. (1) An agent may not earn more than 10 hours
of compensatory time off during any pay period unless--
(i) CBP, as it determines appropriate, approves in writing a waiver
of the 10-hour limit; and
(ii) Such waiver approval is executed in advance of the performance
of any work for which compensatory time off is earned.
(2) If a waiver of the 10-hour limit described in paragraph (e)(1)
of this section is not granted, the agent involved may not be ordered
to perform the associated overtime work.
(f) Annual period limit. An agent may not earn more than 240 hours
of compensatory time off during an annual period.
(g) Usage. (1) An agent may use compensatory time off by being
excused from duty during regular time (in an amount equal to the
compensatory time being used) during the agent's basic workweek.
(2) An agent's balance of unused compensatory time off is used to
satisfy an overtime hours debt, as provided in Sec. 550.1626(c)(1).
(h) Time limit for usage and forfeiture. An agent must 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. Any compensatory time off not used within that time limit, or
prior to separation from an agent position, is forfeited and not
available for any purpose, regardless of the circumstances. An agent
may not receive any cash value for unused compensatory time off. An
agent may not receive credit towards the computation of the agent's
retirement annuity for unused compensatory time off.
Sec. 550.1626 Leave without pay during regular time and absences
during obligated overtime hours.
(a) Substitution for leave without pay during regular time. (1) For
any period of leave without pay during an agent's regular time (basic
workweek), an equal period of work outside the agent's regular time in
the same pay period must be substituted to the extent such work was
performed. Any time substituted for leave without pay must be treated
for all pay computation purposes as if it were regular time (except as
provided in paragraph (a)(5) of this section) and may not be considered
an overtime hour of work for any purpose, including Sec. Sec.
550.1621(a)(4) and (b)(4), 550.1624, and 550.1625.
(2) Hours of work must be substituted for regular time work under
paragraph (a)(1) of this section before being substituted for regularly
scheduled overtime within the agent's regular tour of duty under
paragraph (b) of this section.
(3) Hours used for substitution under paragraph (a)(1) of this
section must be substituted in the following priority order: First,
irregular overtime hours; second, regularly scheduled overtime hours
outside the regular tour of duty; and third, regularly scheduled
overtime hours within the regular tour of duty.
(4) The substitution of overtime hours for leave without pay is
solely for pay computation purposes. The substitution does not change
the hours of an agent's basic workweek or the fact that the agent was
in a particular type of nonpay status during those hours. The hours
that are substituted are considered to have been performed when they
were worked, not during the leave without pay hours for which they are
substituted. For example, if an agent performs 4 hours of overtime work
outside the agent's regular tour of duty during the first week of a pay
period and then is placed in leave without pay during the second week
due to a shutdown furlough caused by a lapse in appropriations, the 4
hours may be substituted for furlough hours for the purpose of
computing pay owed the agent for the week before the furlough began.
(5) If overtime hours are substituted for an absence without
approval (AWOL) or a suspension, the basic pay for such substituted
hours may not be used in computing an agent's overtime supplement.
(b) Substitution for absences during obligated overtime hours
within the regular tour of duty. (1) For a period of absence during
obligated overtime hours within an agent's regular tour of duty, an
equal period of work outside the agent's regular tour of duty in the
same pay period must be substituted to the extent such work was
performed. Any time so substituted must be treated for all pay
computation purposes as if it were obligated overtime work and may not
be considered an overtime hour of work for any other purpose, including
Sec. Sec. 550.1624 and 550.1625.
(2) In substituting hours of work under paragraph (b)(1) of this
section, work performed on the same day as the period of absence must
be substituted first in circumstances described in Sec.
550.1622(b)(2). Hours substituted under this paragraph must be
substituted in the following priority order: First, irregular overtime
hours; and second, regularly scheduled overtime hours outside the
regular tour of duty.
(3) After substituting hours under paragraph (b)(2) of this
section, any remaining hours used for substitution under paragraph
(b)(1) of this section must be substituted in the following priority
order: First, irregular overtime hours; and second, regularly scheduled
overtime hours outside the regular tour of duty.
(4) The substitution of overtime hours outside the regular tour of
duty for obligated overtime hours not worked is solely for pay
computation purposes. The substitution does not change the hours of an
agent's regular tour of duty. The hours that are substituted are
considered to have been performed when they were worked, not during the
obligated overtime hours for which they are substituted.
(c) Application of compensatory time off or future overtime work to
offset overtime hours debt. (1) If a Border Patrol agent does not have
sufficient additional work in a pay period to substitute for all
periods of absence during obligated overtime hours within the agent's
regular tour of duty for that pay period, any unused balance of
compensatory time off hours previously earned under Sec. 550.1625 must
be applied towards the newly accrued overtime hours debt.
(2) If an agent has a remaining overtime hours debt after applying
paragraphs (b) and (c)(1) of this section, any additional overtime work
outside the agent's regular tour of duty in subsequent pay periods that
would otherwise be credited under Sec. Sec. 550.1624 or section
550.1625 must be applied towards the overtime hours debt until
[[Page 34558]]
that debt is satisfied. The application of such hours must be done in
the following priority order: First, irregular overtime hours; and
second, regularly scheduled overtime hours outside the regular tour of
duty. Any overtime hour applied under this paragraph (c)(2) may not be
considered an overtime hour of work for any other purpose.
(d) Unsatisfied overtime hours debt at transfer or separation. Any
unsatisfied overtime hours debt that exists at the time of transfer to
a non-agent position or separation from Federal service must be
converted to a monetary debt equal to the result of multiplying the
agent's hourly rate of basic pay at the time of separation or transfer
by the number of hours in the overtime hours debt. CBP must follow
standard debt collection procedures to recover any debt.
Relationship to Other Provisions
Sec. 550.1631 Other types of premium pay.
(a) An agent may not receive premium pay for night, Sunday, or
holiday work for hours of regularly scheduled overtime work within the
agent's regular tour of duty.
(b) An agent may receive premium pay for night, Sunday, or holiday
work, as applicable, for hours not covered by paragraph (a) of this
section, in accordance with 5 U.S.C. 5545(a) and (b) and section 5546
and corresponding regulations, except that section 5546(d) does not
apply. (Contrary to section 5546(d), for an agent, pay for overtime
work on a Sunday or holiday is determined under 5 U.S.C. 5542(g), not
under section 5546(d).) The agent's rate of basic pay (without any
overtime supplement) must be used in computing such premium payments.
(c) An agent may not be paid standby duty premium pay under 5
U.S.C. 5545(c)(1) or administratively uncontrollable overtime pay under
5 U.S.C. 5545(c)(2).
Sec. 550.1632 Hazardous duty pay.
An agent is eligible for hazardous duty pay, subject to the
requirements in 5 U.S.C. 5545(d) and subpart I of this part. The
agent's rate of basic pay (without any overtime supplement) must be
used in computing any hazardous duty pay.
Sec. 550.1633 Treatment of overtime supplement as basic pay.
Regularly scheduled overtime pay with an agent's regular tour of
duty is treated as part of basic pay or basic salary only for the
following purposes:
(a) 5 U.S.C. 5524a and 5 CFR part 550, subpart B, pertaining to
advances in pay;
(b) 5 U.S.C. 5595(c) and 5 CFR part 550, subpart G, pertaining to
severance pay;
(c) 5 U.S.C. 8114(e), pertaining to workers' compensation;
(d) 5 U.S.C. 8331(3) and 5 U.S.C. 8401(4) and related provisions
that rely on the definition in those paragraphs, pertaining to
retirement benefits;
(e) Subchapter III of chapter 84 of title 5, United States Code,
pertaining to the Thrift Savings Plan;
(f) 5 U.S.C. 8704(c), pertaining to life insurance; and
(g) For any other purposes explicitly provided for by law or as the
Office of Personnel Management may prescribe by other regulation.
Sec. 550.1634 Leave and other paid time off.
(a) An agent is subject to the rules governing leave accrual and
usage under 5 U.S.C. chapter 63 on the same basis as other employees.
The tour of duty for leave accrual and usage purposes is the basic
workweek, which excludes regularly scheduled overtime hours within the
regular tour of duty established under this subpart. The agent must be
charged corresponding amounts of leave for each hour (or part thereof)
the agent is absent from duty during regular time (except that full
days off for military leave must be charged when required).
(b) An agent is subject to the normally applicable rules governing
other types of paid time off (such as holiday time off under 5 U.S.C.
chapter 61, compensatory time off for religious observances under
subpart J of this part, or compensatory time off for travel under
subpart N of this part) on the same basis as other covered employees.
The tour of duty used in applying those rules is the basic workweek,
which excludes regularly scheduled overtime hours within the regular
tour of duty established under this subpart. The agent must be charged
corresponding amounts of paid time off for each hour (or part thereof)
the agent is absent from duty during regular time.
(c) In computing a lump-sum annual leave payment under 5 U.S.C.
5551-5552, an overtime supplement for an agent's regularly scheduled
overtime hours within the agent's regular tour of duty is included, as
provided in Sec. 550.1205(b)(5)(iv).
Sec. 550.1635 Alternative work schedule.
An agent may not have a flexible or compressed work schedule under
5 U.S.C. chapter 61, subchapter II. The regular tour of duty
established under this subpart is a special work schedule established
under 5 U.S.C. 5550. CBP may allow flexible starting and stopping times
for an agent's basic workday if it determines such flexibility is
appropriate for the position in question.
Sec. 550.1636 Exemption from Fair Labor Standards Act.
The minimum wage and the hours of work and overtime pay provisions
of the Fair Labor Standards Act do not apply to Border Patrol agents.
(See also 5 CFR 551.217.)
Sec. 550.1637 Travel time.
(a) A Border Patrol agent's travel time to and from home and the
agent's regular duty station (or to an alternative work location within
the limits of the agent's official duty station, as defined in Sec.
550.112(j)) may not be considered hours of work under any provision of
law.
(b) Official travel time away from an agent's official duty station
may be creditable hours of work as provided in Sec. 550.112(g). When
an agent travels directly between home and a temporary duty location
outside the limits of the agent's official duty station (as defined in
Sec. 550.112(j)), the time the agent would have spent in normal home
to work travel must be deducted from any creditable hours of work while
traveling.
Sec. 550.1638 Official Time.
An agent who uses official time under 5 U.S.C. 7131 may be assigned
to a Level 1 or Level 2 regular tour of duty, but is required to
perform agency work during obligated overtime hours or to accrue an
overtime hours debt. Official time may be used during overtime hours
only when an event arises incident to representational functions that
must be dealt with during the overtime hours. If CBP determines that an
agent's official time duties during the basic workday make it
impracticable to perform agency work during the scheduled obligated
overtime hours, CBP must provide the agent with an opportunity to
eliminate any overtime hours debt by working at another time. As
provided in Sec. 550.1621(e), official time during regular time is
considered to be ``work'' when an agent otherwise would be in an duty
status in applying paragraphs (a)(3) and (b)(3) of Sec. 550.1621.
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
0
18. The authority citation for part 551 continues to read as follows:
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29
U.S.C. 204f).
[[Page 34559]]
0
19. In Sec. 551.216, revise paragraph (c)(2) to read as follows:
Subpart B--Exemptions and Exclusions
* * * * *
Sec. 551.216 Law enforcement activities and 7(k) coverage for FLSA
pay and exemption determinations.
* * * * *
(c) * * *
(2) Employees whose primary duties involve patrol and control
functions performed for the purpose of detecting and apprehending
persons suspected of violating criminal laws;
* * * * *
0
20. Add Sec. 551.217 to subpart B to read as follows:
Sec. 551.217 Exemption of Border Patrol agents.
A Border Patrol agent (as defined in 5 U.S.C. 5550(a)(2) and 5 CFR
550.1603) is exempt from the minimum wage and overtime provisions of
the Act.
PART 870--FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM
0
21. The authority citation for part 870 is revised to read as follows:
Authority: 5 U.S.C. 8704(c), 8716; Subpart J also issued under
section 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec.
870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104-134,
110 Stat. 1321; Sec. 870.302(a)(3) also issued under sections
11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105-33, 111
Stat. 251, and section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec.
870.302(a)(3) also issued under section 145 of Pub. L. 106-522, 114
Stat. 2472; Secs. 870.302(b)(8), 870.601(a), and 870.602(b) also
issued under Pub. L. 110-279, 122 Stat. 2604; Subpart E also issued
under 5 U.S.C. 8702(c); Sec. 870.601(d)(3) also issued under 5
U.S.C. 8706(d); Sec. 870.703(e)(1) also issued under section 502 of
Pub. L. 110-177, 121 Stat. 2542; Sec. 870.705 also issued under 5
U.S.C. 8714b(c) and 8714c(c); Pub. L. 104-106, 110 Stat. 521.
Subpart B--Types and Amount of Insurance
0
22. In Sec. 870.204, amend paragraph (a)(2) by removing the word
``and'' from the end of paragraph (x), removing the period at the end
of paragraph (xi) and adding in its place ``; and'', and adding a new
paragraph (xii) to read as follows:
Sec. 870.204 Annual rates of pay.
* * * * *
(a) * * *
(2) * * *
(xii) An overtime supplement for regularly scheduled overtime
within a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550
(as required by 5 U.S.C. 5550(d)).
* * * * *
[FR Doc. 2015-14809 Filed 6-16-15; 8:45 am]
BILLING CODE 6325-39-P