Overtime Pay for Border Patrol Agents, 34540-34559 [2015-14809]

Download as PDF 34540 Proposed Rules Federal Register Vol. 80, No. 116 Wednesday, June 17, 2015 ‘‘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. 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. 5 CFR PARTS 410, 550, 551, and 870 Background RIN 3206–AN19 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 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 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. OFFICE OF PERSONNEL MANAGEMENT Overtime Pay for Border Patrol Agents Office of Personnel Management. ACTION: Proposed rule with request for comments. AGENCY: 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: pay-leave-policy@opm.gov. 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 pay-leave-policy@ opm.gov. 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 srobinson on DSK5SPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 40hour 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 FLSAexempt. This exemption applies to both the minimum wage and the maximum VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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 retirementcreditable 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, PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 34541 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.) § 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. § 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. § 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 § 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 E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 34542 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 × 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 § 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 § 550.1626(c)(1) or by applying outside-tour overtime hours VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 in future pay periods, as described in § 550.1626(c)(2). § 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. § 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. § 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 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 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 § 550.1612(a) and (b) apply to such agents. Initial training is defined in § 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. § 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 § 550.1622(b)). As provided in § 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 § 550.1611(f), CBP may assign instead a Level 2 or Basic tour. In addition, under § 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: E:\FR\FM\17JNP1.SGM 17JNP1 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules (1) The date the election was submitted; or (2) the date the agent completed initial training. Under § 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 § 550.1611(f) or § 550.1622(b). For example, CBP may change an assignment to comply with the pay assignment continuity requirement described in §§ 550.1611(f)(5) and 550.1615. § 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). srobinson on DSK5SPTVN1PROD with PROPOSALS § 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 § 550.1615 trumps that requirement in § 550.1614. VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 § 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 34543 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 E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 34544 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 § 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 § 550.1615(a)(3) that, if an agent is in a VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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 § 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 § 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 §§ 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/ PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 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 § 550.1611(f)(2) (which may be applied to make changes in an agent’s tour during an annual period, as provided by § 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), § 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 § 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 E:\FR\FM\17JNP1.SGM 17JNP1 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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. srobinson on DSK5SPTVN1PROD with PROPOSALS § 550.1616—Corrective Actions Section 550.1616 addresses corrective actions related to assignments made under the §§ 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 retirementcreditable basic pay, retroactive changes in the supplement would be disruptive and could adversely affect an employee’s anticipated retirement benefits. § 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 § 550.112, except that paid leave and other paid time off VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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 § 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.) § 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 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 34545 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 § 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 § 550.1622(b), we rely on the definition of advanced training found in § 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 § 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 § 550.1622(b)(4).) Section 550.1622(c) regulates a statutory provision providing special E:\FR\FM\17JNP1.SGM 17JNP1 34546 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules srobinson on DSK5SPTVN1PROD with PROPOSALS 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 § 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. § 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 § 550.1624; and (2) crediting of compensatory time off for irregular overtime hours under § 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 § 550.1623(b), unless there is a hybrid pay period, as described in § 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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 § 550.1621(a)(8) and (b)(8)) and for which no substitution is made under § 550.1626(b); (2) nonwork hours credited during obligated overtime hours on a day of advanced training (as provided in § 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 § 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 60day advanced training period or because CBP takes action under the circumstances described in § 550.1611(f), as allowed under § 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. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 § 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. § 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 § 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).) § 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 E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 § 550.1621(a)(4) and (b)(4) (when within-tour overtime is substituted for LWOP), regularly scheduled overtime hours under § 550.1624, or irregular overtime hours under § 550.1625, despite their original character prior to substitution. As provided in § 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 § 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), § 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), § 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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), § 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 § 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 § 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 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 34547 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 § 550.1624 or § 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. § 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). § 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). § 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. E:\FR\FM\17JNP1.SGM 17JNP1 34548 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules § 550.1634—Relationship to Leave and Other Paid Time Off creditable hours of work while traveling. 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. § 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 managementassigned 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 § 550.1621(e) and § 550.1638 that official time is included as ‘‘work’’ in applying those section 5550 provisions. This is consistent with how § 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). § 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. srobinson on DSK5SPTVN1PROD with PROPOSALS § 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 § 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 § 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 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 § 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 § 550.1623.) E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 § 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 § 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 § 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 § 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 § 551.216 and adding a new § 551.217. In § 551.216(c)(2), we are deleting references to Border Patrol agents, since they are no longer covered by the FLSA. In the new § 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 § 870.204 to provide that a Border Patrol agent overtime VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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. 5 CFR Part 410 Education, Government employees. 5 CFR Part 550 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 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 2. In § 410.402, add paragraph (b)(8) to read as follows: ■ Fmt 4702 * * * * (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 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. 4. Amend § 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: § 550.103 Administrative practice and procedure, Claims, Government employees, Wages. Frm 00010 Paying premium pay. * ■ List of Subjects PO 00000 § 410.402 34549 Sfmt 4702 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). * * * * * ■ 5. In § 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: E:\FR\FM\17JNP1.SGM 17JNP1 34550 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules § 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. * * * * * ■ 6. In § 550.111, add paragraph (j) to read as follows: § 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 § 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 § 550.1621; (2) Compensated by the earning of compensatory time off under § 550.1625; or (3) Used in substitution or application under § 550.1626. ■ 7. In § 550.122, add paragraph (e) to read as follows: § 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 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. 11. In § 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: ■ § 550.202 Definitions. * § 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. ■ 8. In § 550.132, add paragraph (d) to read as follows: * * * * 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 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. * srobinson on DSK5SPTVN1PROD with PROPOSALS § 550.132 Relation to overtime, night, and Sunday pay. 13. In § 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: § 550.703 * * * * (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. ■ 9. In § 550.172, designate the current text as paragraph (a) and add paragraph (b) to read as follows: VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 ■ 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 14. The authority citation for subpart L continues to read as follows: ■ PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 Authority: 5 U.S.C. 5553, 6306, and 6311. § 550.1204 [Amended] 15. In § 550.1204, amend paragraph (a) by removing the phrase ‘‘compensatory time off earned under 5 U.S.C. 5543 and § 550.114(d) or § 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 § 550.114(d) or § 551.531(d) of this chapter or under 5 U.S.C. 5542(g) and § 550.1625’’. ■ 16. In § 550.1205, amend paragraph (b)(5) by adding paragraph (iv) to read as follows: ■ § 550.1205 payment. Calculating a lump-sum * * * * * (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 § 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 § 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. * * * * * ■ 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. E:\FR\FM\17JNP1.SGM 17JNP1 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 550.1615 550.1616 Pay assignment continuity. Corrective actions. as a ‘‘Border Patrol agent’’ or ‘‘agent’’ in this subpart. 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 § 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. srobinson on DSK5SPTVN1PROD with PROPOSALS § 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 § 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 § 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 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 34551 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 § 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 E:\FR\FM\17JNP1.SGM 17JNP1 34552 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 § 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 40hour 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). § 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).) srobinson on DSK5SPTVN1PROD with PROPOSALS § 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. VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 Assignment of Regular Tour of Duty and Overtime Supplement § 550.1611 period. Assignments for an annual (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 § 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 § 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 § 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 § 550.1622(c); PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 (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 § 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 § 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 § 550.1615, notwithstanding any other provision of law or this subpart (including paragraphs (f)(1) through (4) of this section). § 550.1612 times. Assignments made at other (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 § 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 E:\FR\FM\17JNP1.SGM 17JNP1 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules circumstances described in paragraph (f) of § 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 § 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 § 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 § 550.1611 or paragraph (b) of § 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 § 550.1611(f)(5). srobinson on DSK5SPTVN1PROD with PROPOSALS § 550.1613 Selection of agents for assignment. If application of paragraphs (f)(3) and (4) of § 550.1611 (or application of those paragraphs through § 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. § 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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 § 550.1615. § 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 §§ 550.105 and 550.107. PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 34553 (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 3year 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 §§ 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 § 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 E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 34554 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 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 § 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. § 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 §§ 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. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 Treatment of Overtime Work § 550.1621 of duty. Rules for types of regular tour (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 §§ 550.105 and 550.107 and the restriction in § 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 § 550.1624, except as otherwise provided by § 550.1626; (6) For any irregular overtime hours, the agent is entitled to be credited with compensatory time off as provided in § 550.1625, except as otherwise provided by § 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 § 550.1634, except as otherwise provided in § 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 § 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: E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules (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 §§ 550.105 and 550.107 and the restriction in § 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 § 550.1624, except as otherwise provided by § 550.1626; (6) For any irregular overtime hours, the agent is entitled to be credited with compensatory time off as provided in § 550.1625, except as otherwise provided by § 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 § 550.1634, except as otherwise provided in § 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 § 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; VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 (3) For any regularly scheduled overtime hours, the agent is entitled to overtime pay as provided in § 550.1624, except as otherwise provided by § 550.1626; (4) For any irregular overtime hours, the agent is entitled to be credited with compensatory time off as provided in § 550.1625, except as otherwise provided by § 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 § 550.1634, except as otherwise provided in § 550.1626(a). (d) Effect of premium pay cap. If a premium pay cap established under 5 U.S.C. 5547 and §§ 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 § 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. § 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 § 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 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 34555 must be applied towards the obligated overtime hours, as provided in § 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 § 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 § 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 wholeworkday 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 E:\FR\FM\17JNP1.SGM 17JNP1 34556 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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. srobinson on DSK5SPTVN1PROD with PROPOSALS § 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 §§ 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 §§ 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 § 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 § 550.112 (establishing general rules), except that paragraphs (d) and (e) of § 550.112 are superseded by § 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 § 550.1626(b); (iv) Nonwork hours deemed to be hours of work during obligated overtime hours on a day of advanced training under § 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 § 550.1621). VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 (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 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 compensable under §§ 550.1624 through 550.1626. § 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 § 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 § 550.1626. (b) Rates. Agents receive overtime pay at the rates specified under 5 U.S.C. 5542(a) and § 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 §§ 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). § 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 § 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 § 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 § 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 § 550.112(h), an agent must be deemed to have performed 2 hours of irregular overtime work for a E:\FR\FM\17JNP1.SGM 17JNP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 §§ 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 10hour 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 § 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 VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 computation of the agent’s retirement annuity for unused compensatory time off. § 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 §§ 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. PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 34557 (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 §§ 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 § 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 § 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 §§ 550.1624 or section 550.1625 must be applied towards the overtime hours debt until E:\FR\FM\17JNP1.SGM 17JNP1 34558 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules 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 § 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). § 550.1632 Hazardous duty pay. srobinson on DSK5SPTVN1PROD with PROPOSALS 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. § 550.1633 Treatment of overtime supplement as basic pay. 16:32 Jun 16, 2015 Jkt 235001 § 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 § 550.1205(b)(5)(iv). § 550.1635 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; VerDate Sep<11>2014 (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. 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 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 times for an agent’s basic workday if it determines such flexibility is appropriate for the position in question. § 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.) § 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 § 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 § 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 § 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. § 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 § 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 § 550.1621. PART 551—PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT 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). E:\FR\FM\17JNP1.SGM 17JNP1 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules duty under 5 U.S.C. 5550 (as required by 5 U.S.C. 5550(d)). * * * * * 19. In § 551.216, revise paragraph (c)(2) to read as follows: ■ Subpart B—Exemptions and Exclusions * * * * [FR Doc. 2015–14809 Filed 6–16–15; 8:45 am] BILLING CODE 6325–39–P * § 551.216 Law enforcement activities and 7(k) coverage for FLSA pay and exemption determinations. NUCLEAR REGULATORY COMMISSION * 10 CFR Part 50 * * * * (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; * * * * * ■ 20. Add § 551.217 to subpart B to read as follows: § 551.217 agents. Exemption of Border Patrol PART 870—FEDERAL EMPLOYEES’ GROUP LIFE INSURANCE PROGRAM 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 22. In § 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: ■ srobinson on DSK5SPTVN1PROD with PROPOSALS RIN 3150–AJ43 Financial Qualifications for Reactor Licensing Nuclear Regulatory Commission. ACTION: Draft regulatory basis; public meeting and request for comment. AGENCY: The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on a draft regulatory basis for a proposed rulemaking to amend the current financial qualification requirements of ‘‘reasonable assurance’’ to the review standard of ‘‘appears to be financially qualified.’’ The NRC plans to hold a public meeting to promote full understanding of this regulatory basis and facilitate public comment. DATES: Submit comments by August 3, 2015. Comments received after this date will be considered if it is practical to do so, but the NRC is only able to ensure consideration of comments received on or before this date. In addition to providing this opportunity to submit written (and electronic) comments, the NRC plans to hold a public meeting to discuss the draft regulatory basis for the proposed rulemaking on July 8, 2015. See Section V, ‘‘Public Meeting,’’ of this document for additional information regarding the public meeting. ADDRESSES: You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject): • Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC–2014–0161. Address questions about NRC dockets to Carol Gallagher; telephone: 301–415–3463; email: Carol.Gallagher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document. • Email comments to: Rulemaking.Comments@nrc.gov. If you do not receive an automatic email reply confirming receipt, then contact us at 301–415–1677. SUMMARY: 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. § 870.204 [NRC–2014–0161] Annual rates of pay. * * * * * (a) * * * (2) * * * (xii) An overtime supplement for regularly scheduled overtime within a Border Patrol agent’s regular tour of VerDate Sep<11>2014 16:32 Jun 16, 2015 Jkt 235001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 34559 • Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301– 415–1101. • Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, ATTN: Rulemakings and Adjudications Staff. • Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301–415–1677. For additional direction on obtaining information and submitting comments, see ‘‘Obtaining Information and Submitting Comments’’ in the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Yanely Malave, telephone: 301–415– 1519, email: Yanely.Malave@nrc.gov; or Carolyn Lauron, telephone: 301–415– 2736, email: Carolyn.Lauron@nrc.gov; both of the Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. SUPPLEMENTARY INFORMATION: I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRC–2014– 0161 when contacting the NRC about the availability of information for this action. You may obtain publiclyavailable information related to this action by any of the following methods: • Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC–2014–0161. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may obtain publiclyavailable documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/ adams.html. To begin the search, select ‘‘ADAMS Public Documents’’ and then select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, 301–415–4737, or by email to pdr.resource@nrc.gov. The draft regulatory basis is available in ADAMS under Accession No. ML14324A706. • NRC’s PDR: You may examine and purchase copies of public documents at the NRC’s PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. B. Submitting Comments Please include Docket ID NRC–2014– 0161 in the subject line of your comment submission. The NRC cautions you not to include identifying or contact information that E:\FR\FM\17JNP1.SGM 17JNP1

Agencies

[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]


========================================================================
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.

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


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.

-----------------------------------------------------------------------

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: pay-leave-policy@opm.gov.
    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 pay-leave-policy@opm.gov.

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

[[Page 34542]]

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:

[[Page 34543]]

(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

[[Page 34545]]

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.

[[Page 34548]]

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