Overtime Pay for Border Patrol Agents, 58093-58121 [2015-24199]

Agencies

• Office of Personnel Management

[Federal Register Volume 80, Number 186 (Friday, September 25, 2015)]
[Rules and Regulations]
[Pages 58093-58121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24199]



[[Page 58093]]

Vol. 80

Friday,

No. 186

September 25, 2015

Part IV





Office of Personnel Management





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5 CFR Parts 410, 550, 551, et al.





 Overtime Pay for Border Patrol Agents; Final Rule

Federal Register / Vol. 80 , No. 186 / Friday, September 25, 2015 / 
Rules and Regulations

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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: Final rule.

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SUMMARY: The Office of Personnel Management is issuing final 
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: Effective date: This rule is effective October 15, 2015.
    Applicability dates: This rule is applicable beginning on January 
10, 2016, except that Sec. Sec.  550.1602-550.1605 and 550.1611-
550.1615 are applicable on the effective date of this rule, as provided 
by section 2(i) of Public Law 113-277, as amended.

FOR FURTHER INFORMATION CONTACT: Bryce Baker by telephone at (202) 606-
2858 or by email at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION: On June 17, 2015, the Office of Personnel 
Management (OPM) published proposed regulations (80 FR 34540) 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. Most 
BPAPRA provisions are effective on the first day of the first pay 
period beginning on or after January 1, 2016.
    The 30-day comment period for the proposed regulations ended on 
July 17, 2015. We received comments from 1 agency, 1 union, and 66 
individuals. This Federal Register notice provides general information, 
addresses the comments received, and issues final regulations that 
reflect changes to the proposed regulations. OPM is adding a new 
subpart P, Overtime Pay for Border Patrol Agents, in part 550 (Pay 
Administration--General) of title 5, Code of Federal Regulations, and 
revising other related regulations.

Summary of BPAPRA

    Under BPAPRA, a new form of overtime compensation will apply to 
Border Patrol agents employed by the U.S. Customs and Border Protection 
(CBP) component of the Department of Homeland Security (DHS). 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 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 
the 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 paid 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.
 In consultation with OPM, 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) is 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.

Statutory 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

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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 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 (Sec. Sec.  550.1602-550.1605 and 550.1611-
550.1615) must be effective as necessary 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 on 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, 
(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.
    The ``Applicability Dates'' shown at the beginning of the Preamble 
reflect the statutory effective dates.

Comments on Proposed Regulations

    Below we will summarize and respond to comments on the proposed 
regulations, organized by the affected regulatory section number. We 
received 68 comments, including comments from CBP, the agency employing 
Border Patrol agents, and from the National Border Patrol Council 
(NBPC), a labor union that represents Border Patrol agents. Comments 
from CBP and NBPC are identified, while comments from individuals are 
not. Also, we address below certain clarifying changes we are making 
that are not a response to a specific comment but provide a general 
response to comments requesting greater clarity.

General Comments on BPAPRA

    A number of commenters expressed general concerns and objections 
about the content of the BPAPRA statute. Some objected to the loss of 
entitlement to overtime pay under FLSA rules and the resulting loss in 
pay. Some objected to being paid the equivalent of a straight rate for 
within-tour overtime work through the Border Patrol overtime 
supplement. Some objected to the title 5 capped overtime hourly rate 
that would be applied to regularly scheduled overtime hours outside the 
agent's regular tour. Some objected to the use of compensatory time off 
to compensate agents for irregular overtime hours and to the statutory 
rules governing such compensatory time off. Some believed it was unfair 
that other categories of employees have more generous overtime pay 
entitlements--for example, Customs and Border Protection officers who 
receive a double overtime rate. Some stated they would prefer receiving 
law enforcement availability pay. Some objected to the fact that the 
Basic tour was the default tour for employees in headquarters and 
certain other positions, which penalizes them for providing critically 
important services to CBP. One commenter objected to changes in the pay 
rules being made in mid-career. Another objected to having three 
possible types of tours, stating that all agents should work the same 
hours. A couple of commenters objected to the general requirement that 
90 percent of agents have a Level 1 tour (100 hours per pay period). 
One commenter objected to the requirement to make up for absences from 
within-tour obligated overtime hours. Some commenters acknowledged that 
their union supported the bill, but asserted that many agents opposed 
it. Several commenters stated their belief that the new overtime pay 
system would result in morale and staffing problems.
    The above-described comments relate to provisions in the law 
itself. OPM regulations must implement those provisions and cannot make 
changes to address these comments.

Sec.  550.1603--Definitions

    NBPC commented that the definitions of irregular overtime work and 
regularly scheduled work (which includes regularly scheduled overtime 
work) require that the work be officially ordered or approved, a title 
5 concept that is different than the ``suffered-or-permitted'' standard 
used under FLSA. NBPC stated that agents frequently must extend their 
work hours to pursue illegal aliens or drug smugglers without 
supervisory approval due to lack of radio communications. NBPC 
recommended that the regulations be revised to provide that agents be 
compensated for hours when they voluntarily extend their workday, 
especially if they are unable to contact a supervisor.
    By law, agents are no longer subject to FLSA rules, including the 
suffered-or-permitted standard, but are instead under title 5 rules; 
therefore, we are applying the longstanding ``ordered-or-approved'' 
standard that applies to normal overtime (5 U.S.C. 5542(a)). Under the 
title 5 standard, overtime work is either ordered in advance or 
approved after the fact based on agency policies. CBP should clearly 
communicate to agents its policies regarding when an agent's activities 
will be retroactively approved as compensable hours of work. We note 
that agents were formerly covered by the administratively 
uncontrollable overtime (AUO) provision in 5 U.S.C. 5545(c)(2), which 
expressly recognizes that an employee is generally responsible for 
recognizing, without supervision, circumstances that require the 
employee to remain on duty. While the AUO provisions no longer apply, 
CBP may provide agents with similar discretion (subject to after-the-
fact agency approval) under agency policies as necessary to support its 
mission. Some matters relating to overtime work, such as procedures and 
appropriate arrangements for adversely affected employees, may be 
subject to collective bargaining.
    We are making a clarifying change to the definition of overtime 
supplement to state that, for an agent with a Basic regular tour of 
duty, the overtime supplement is 0 percent. This change has been made 
to clarify that the 0 percent overtime supplement should be used in 
career average calculations under Sec.  550.1615. Under 5 U.S.C. 
5550(b)(1)(G)(i), the career average is based on the ``average border 
patrol rate of pay level,'' where the Border Patrol rate of pay may be 
a Level 1 rate (Basic rate plus 25 percent overtime supplement), Level 
2 (Basic rate plus

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12.5 percent overtime supplement), or Basic rate (0 percent overtime 
supplement). In drafting our regulations, we found it clearer to focus 
on the overtime supplement as a separate payment rather than refer to 
an aggregate rate. Thus, in the regulations on the career average 
computation, we are computing a career average overtime supplement, but 
that average must include any periods where a 0 percent supplement was 
in effect.

Sec.  550.1604--CBP Authority

    CBP commented that the regulations should specifically reassert 
that nothing in the statute or regulations may be construed to affect 
the requirement that a Border Patrol agent must work overtime as 
assigned as a condition of employment. CBP was concerned that some may 
think that only overtime work within the regular tour of duty was 
required. CBP cited 5 U.S.C. 5550(g) and BPAPRA section 2(f) to show 
that agents are required to perform outside-tour overtime work in 
accordance with CBP needs.
    We agree that CBP has clear authority to require agents to work 
outside-tour overtime based on CBP needs. In fact, the proposed 
regulations addressed this matter in Sec.  550.1604, which explicitly 
cited 5 U.S.C. 5550(g) and BPAPRA section 2(f). This provision is 
unchanged in the final regulations. In general, OPM regulations do not 
address when a work requirement is a ``condition of employment,'' since 
that is a matter of agency policy under its broad management authority 
in 5 U.S.C. 301-302.

Sec. Sec.  550.1611 and 550.1612--Tour Assignments

    An individual commented that employees working at training centers 
have functions to perform that require overtime beyond the regular 8-
hour basic workday.
    We understand this comment to be directed at the fact that a Basic 
tour (40 hours a week) is the default tour assignment for an agent 
holding a training instructor position at a CBP training facility. This 
is a matter of law, but both the law and the regulations recognize the 
possibility of assigning training instructors a Level 1 or Level 2 tour 
based on a comprehensive staffing analysis under BPAPRA section 2(e). 
(See 5 U.S.C. 5550(b)(1)(D)(iv) and 5 CFR 550.1611(f)(3).) We note that 
CBP may assign scheduled and irregular overtime to training instructors 
as necessary to perform needed work beyond the assigned tour. (See 
BPAPRA sections 2(a) and 2(f)(1).)
    One individual explained how it was unfair and harmful to CBP to 
deny headquarters and academy training staff the option of receiving an 
overtime supplement (Level 1 or 2). The individual observed that, faced 
with drastic pay reductions, agents would not seek promotions to 
headquarter/academy positions or would seek demotions to leave those 
positions. Another individual commented that some headquarters agents 
have duties that are more operational than administrative and that it 
is unfair to deny such agents a Level 1 or Level 2 tour.
    The BPAPRA statute expressly provides that a Basic tour (40-hour 
week) is the default tour for agents in certain positions, including 
agents in a position at CBP headquarters, a position as a training 
instructor at a CBP training facility, an administrative position, or a 
position as a fitness instructor (5 U.S.C. 5550(b)(1)(D)(iv)). A 
headquarters position, regardless of whether it is considered primarily 
operational or administrative is covered by this provision. Congress 
determined that all headquarters positions should be treated the same 
in terms of the default tour. However, a Level 1 or Level 2 tour may be 
assigned to agents holding a headquarters position based on a 
comprehensive staffing analysis showing such tours are necessary to 
more adequately fulfill CBP operational requirements.
    Two individuals commented that the term ``administrative position'' 
is vague and should be defined in regulation.
    We considered whether we should attempt to define the term 
``administrative position'' when we drafted the proposed regulations. 
We concluded then, and continue to believe now, that CBP is in the best 
position to determine whether a particular position is primarily 
administrative in nature. We have revised Sec.  550.1611(f)(3) to 
clarify that CBP is responsible for making that determination.
    CBP provided comments requesting clarification regarding how long 
an agent with an assigned Level 1 or Level 2 tour could be detailed to 
a position that is authorized only for a Basic tour, such as a 
headquarters position and a training academy position. CBP noted that 
the proposed regulations did not address this issue and recommended 
that, at a minimum, the time limit be 60 workdays.
    We agree that the proposed regulations did not address the 
treatment of a temporary detail of an agent to a position that requires 
a Basic regular tour of duty under 5 U.S.C. 5550(b)(1)(D)(iv) and Sec.  
550.1611(f)(3). We do not believe that a short temporary detail should 
affect an agent's otherwise applicable assigned tour. Rather than 
establish a rule based on the number of workdays, we are establishing a 
rule based on the number of calendar days to simplify administration. 
We believe that it would be reasonable to establish 90 days as the 
calendar day limit. Ninety calendar days is roughly equivalent to the 
60 workdays that CBP originally requested as a minimum. Accordingly, we 
are adding a new paragraph (g) in Sec.  550.1611 to address temporary 
details that involve (i.e., detail to or from) a position of the type 
described in Sec.  550.1611(f)(3). For consistency, this treatment must 
work in both directions. If an agent officially in a position not 
requiring a Basic tour (i.e., noncovered position) is serving under a 
temporary detail to a position whose incumbent is normally required to 
have a Basic tour (i.e., covered position), the agent will be 
considered to be serving in a noncovered position during the first 90 
days of the detail. Likewise, if an agent in a covered position 
requiring a Basic tour is serving under a temporary detail to a 
noncovered position, the agent will be considered to be in a covered 
position during the first 90 days of the detail. After completing 90 
days under a temporary detail, an agent will be considered, for the 
purpose of applying paragraph (f)(3), to hold the position to which 
temporarily detailed for the remainder of the detail, notwithstanding 
the agent's official position of record.
    NBPC commented that Sec.  550.1611(f)(2) is not clear. Consistent 
with law, that provision states that an agent who is ``unable to 
perform overtime on a daily basis, as determined by CBP,'' must be 
assigned a Basic tour. NBPC states that the regulation should be 
clarified to state that this provision is triggered only when an 
agent's law enforcement authority is revoked and asserts that this was 
always the intent.
    The plain language of the law does not limit an ``inability'' 
finding to situations where an agent's law enforcement authority is 
revoked (e.g., due to an investigation, loss of security clearance, or 
suspension or other disciplinary action). The law simply states ``if at 
any time U.S. Customs and Border Protection concludes that a border 
patrol agent is unable to perform overtime on a daily basis'' it must 
assign the agent a Basic tour. If Congress intended to limit the 
application to situations where law enforcement authority is revoked, 
it could have easily so stated that. The Senate committee report on 
BPAPRA states that CBP has authority to assign a Basic tour

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``if CBP thinks the agent is unable, for any reason, to work the 
additional hours'' (emphasis added). S. Rep. No. 113-248, p. 13 (August 
26, 2014). Given the clear language of the law and intent of Congress, 
CBP is permitted to make these determinations for any reason, subject 
to any limitations prescribed by OPM in regulation. The proposed 
regulations included no such limitations.
    CBP also commented on Sec.  550.1611(f)(2), requesting that OPM 
provide guidance on what constitutes being ``unable to perform'' the 
obligated overtime hours. CBP stated its belief that, at a minimum, the 
term included situations in which an agent's law enforcement authority 
is revoked. CBP also asked for clarification regarding situations where 
an agent is on light duty for physical or medical reasons (e.g., 
working an 8-hour basic workday, but not overtime hours). CBP pointed 
out that such an agent may have unused compensatory time off that could 
be applied against the accruing overtime hours debt. CBP also asked for 
clarification regarding whether the ``inability'' provision could be 
applied to an agent who is on paid leave for a full day and therefore 
is not accruing an overtime hours debt.
    Given the requests for clarification from both CBP and NBPC, we are 
making revisions in these final regulations. We are adding a new a 
paragraph (e) in Sec.  550.1612 and amending paragraph (f)(2) in Sec.  
550.1611 to reference that new paragraph. Paragraph (e) addresses the 
bases on which CBP may make a determination regarding an employee's 
inability to perform overtime work and the effective date of such an 
inability determination. In paragraph (e)(1), we provide that an 
inability determination may be made (i) when an agent's law enforcement 
authority is revoked, (ii) when an agent's inability will last for an 
extended period due to physical or health reasons, or (iii) for any 
other appropriate reason, as determined by CBP, but excluding inability 
based on lack of work, rather than the employee's availability to work. 
The second condition parallels a similar provision that applies to 
recipients of law enforcement availability pay under 5 CFR 550.184(d). 
CBP will determine what constitutes an ``extended period'' under its 
policies. CBP would not be required to make an inability determination 
for a short-term medical condition. The third condition provides CBP 
with discretion, as intended by Congress, but clarifies that an 
inability determination cannot be based on lack of work (workload), but 
must be based solely on the employee's ability and availability to 
work. Workload management is the responsibility of CBP, which should 
adjust staffing levels and assignments as necessary to ensure that 
agents have sufficient work to fill agents' assigned regular tours of 
duty at any location. The third condition provides a broad, catch-all 
authority to cover any other appropriate situations where CBP 
determines that it is reasonable to find that an agent is unable to 
regularly perform overtime work. Some matters relating to overtime 
assignments, such as procedures and appropriate arrangements for 
adversely affected employees, may be subject to collective bargaining.
    In paragraph (e)(2) of Sec.  550.1612, we state a general rule that 
the change to a Basic tour takes effect on the agent's next workday; 
however, we provide for the possibility of exceptions. CBP may delay 
the effective date until the beginning of the next week or biweekly pay 
period (which simplifies administration). CBP may delay the effective 
date to allow an employee who is working during regular time to use up 
unused compensatory time off hours by applying those hours against the 
debt resulting from the agent's absences during obligated overtime 
hours. CBP may delay the effective date to allow an employee to use 
accrued paid leave or other paid time off if the agent will be 
performing no work during regular time for a continuous block of time. 
CBP may also delay the effective date during a continuous leave without 
pay period granted under the Family and Medical Leave Act. The above-
described delays are approved at CBP's discretion; however, we provide 
that CBP must delay the effective date when the employee's inability to 
perform overtime work is based on a job-related injury covered by 
workers' compensation provisions.
    CBP commented that the regulations should allow an agent to 
request, during an annual period, a change to a regular tour of duty 
with a lesser number of hours, notwithstanding the agent's election for 
that annual period. CBP noted that OPM regulations for the law 
enforcement availability pay (LEAP) program allows criminal 
investigators to request that LEAP be temporarily discontinued due to a 
personal or family hardship. (See 5 CFR 550.182(f), ``Voluntary opt-
out.'')
    The BPAPRA law is very specific regarding the circumstances under 
which types of regular tours of duty are assigned. In particular, the 
BPAPRA specifically provides that tours are elected/assigned for a full 
annual period, with a limited set of superseding rules. Thus, the 
statutory framework differs from that found in the LEAP law. 
Fortunately, the concern CBP raises can largely be addressed within the 
BPAPRA statutory framework. Under 5 U.S.C. 5550(b)(1)(D)(iii), CBP may 
determine that an agent is ``unable to perform overtime on a daily 
basis'' and then assign a Basic tour. The law does not prescribe the 
specific reasons the agent is ``unable'' to perform overtime. As 
discussed above, we are adding a new paragraph (e) in Sec.  550.1612, 
which provides additional parameters for this CBP authority. Paragraph 
(e)(1)(iii) allows CBP to base an inability determination on other 
appropriate reasons, as determined by CBP. This broad language would 
allow CBP to approve a requested mid-year change in an agent's tour 
based on personal or family hardship situation, if CBP determines that 
the hardship makes the agent unable to work the otherwise applicable 
tour.
    CBP raised the idea that perhaps an agent's tour election or 
assignment could be changed pursuant to a directed assignment to 
another agent position in situations not covered by Sec.  550.1612(d). 
CBP pointed out that OPM regulations allow elections to be made 
regarding the tour a new agent will have after completing basic 
training--even though the law is silent about such elections.
    We don't believe a change in an agent's position provides any basis 
for changing the agent's tour election or assignment unless one of the 
superseding rules cited in Sec.  550.1612(d) are applicable. Those 
superseding rules are found in Sec.  550.1611(f) and Sec.  550.1622 and 
are based on statutory provisions. (We have revised Sec.  550.1612(d) 
to reference all of Sec.  550.1622, rather than just paragraph (b), to 
avoid confusion. Paragraph (c) of Sec.  550.1622 (dealing with canine 
handlers) is already implicated by paragraph (f)(1) of Sec.  550.1611.) 
The BPAPRA law clearly anticipates that tour elections will be 
applicable for a full annual period absent a superseding tour 
assignment. If an agent changes positions, CBP is responsible for 
ensuring that the agent is assigned sufficient work in the new position 
to fill the agent's assigned tour.
    In contrast, since the BPAPRA law did not address the assignment of 
tours to newly hired agents, there was a clear policy gap that OPM 
needed to fill by regulation. The law was focused on agents who were 
already on board as of November 1 and able to make elections for the 
next annual period. It did not address agents hired during the annual 
period. Also, the law addressed periods of ``advanced training'' but 
not periods

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of ``initial training.'' Regulations were necessary to cover these 
unaddressed circumstances.
    Based on comments received regarding Sec.  550.1622(c) (dealing 
with canine handlers), we are making changes in Sec.  550.1611(e) and 
Sec.  550.1612(d). Those changes address the canine handler issues but 
also apply generally to other circumstances. (See section of this 
Supplementary Information dealing with comments on Sec.  550.1622.)

Sec.  550.1614--10 Percent Limit on Agents at Location Without a Level 
1 Tour

    Several commenters objected to the default 10 percent limit on the 
number of agents in any location who could have less than a Level 1 
tour (i.e., Basic or Level 2). They had understood that the limit was 
going to be 20 percent (allowing 10 percent in the Basic tour category 
and 10 percent in the Level 2 category). They objected to being forced 
to have a Level 1 tour (10-hour workday) with a 25 percent overtime 
supplement, which they equated to receiving the equivalent of the 
regular straight rate for within-tour overtime hours. One individual 
was concerned that seniority would be used to determine which employees 
could have a Level 2 or Basic tour and that he/she would not be able to 
have a Basic tour that would allow him/her to spend time with a new 
child. Some commenters questioned whether there was sufficient work to 
justify requiring 90 percent of agents to have a Level 1 tour.
    The BPAPRA law clearly provides that, as a default rule, not more 
than 10 percent of agents (i.e., combined count) at any location may be 
assigned to a Level 2 tour or a Basic tour (5 U.S.C. 5550(b)(1)(E)). 
Congressional intent is also clear. The Senate committee report on the 
bill that was later enacted as BPAPRA provides: ``The bill initially 
requires that no more than 10 percent of the agents at any given 
location be allowed to work less than 100 hours per two-week pay 
period. . . . CBP must unilaterally assign agents to work the extra 
hours in order to ensure that 90 percent of Border Patrol agents in 
that location are working 100 hours per pay period.'' S. Rep. No. 113-
248, p. 9. The report also refers to ``the bill's baseline requirement 
that 90 percent of agents at a location work 100 hours per pay period 
at the level 1 Border Patrol rate of pay.'' Id. at 11. Under 5 U.S.C. 
5550(b)(1)(E), the baseline requirement may be waived at a particular 
location based on a comprehensive staffing analysis conducted under 
BPAPRA section 2(e). OPM's regulations in Sec.  550.1614(b) address 
this waiver authority and allow CBP to establish a higher percentage 
limit than 10 percent based on the staffing analysis. OPM regulations 
do not establish specific criteria for selecting which agents can have 
a tour of less than Level 1; however, in Sec.  550.1613, we require 
that CBP establish a written selection plan that identifies selection 
criteria and the priority of those criteria.
    NBPC questioned the regulation at Sec.  550.1614(d), which provides 
that assignments of tours to individual agents must be consistent with 
the pay assignment continuity requirement in Sec.  550.1615, regardless 
of the percentage limits set under Sec.  550.1614. NBPC commented that 
it was completely contrary to the express intent of Congress that the 
pay assignment continuity requirement trump the Sec.  550.1614 
percentage limits (i.e., 10 percent baseline or alternative percentage 
limit under the waiver authority). NBPC stated that it was beyond the 
authority of OPM--even given its authority to regulate BPAPRA--to craft 
an exception to an express direction of Congress.
    Section 550.1614(d) relies on express language in the law stating 
that, ``notwithstanding any other provision of law,'' CBP ``may take 
such action as is necessary'' to implement the pay assignment 
continuity plan, including the unilateral assignment of agents to any 
of three tours (5 U.S.C. 5550(b)(1)(G)(ii)). In addition, Congress 
granted OPM broad authority to regulate BPAPRA (section 2(h); see also 
5 U.S.C. 5548). The ``notwithstanding any other provision of law'' 
language gives ample authority to trump the percentage limits 
established under 5 U.S.C. 5550(b)(1)(E). Any CBP selection plan under 
Sec.  550.1613 must be ``consistent with the requirements of this 
subpart,'' and thus must incorporate the superseding rule in Sec.  
550.1614(d). If agents are in their ``control period'' (i.e., have met 
retirement age and service requirements or are within 3 years of 
meeting those requirements), the average of assigned overtime 
supplement percentages over any 3-year period must be consistent with 
their career average overtime supplement percentage in order to protect 
the retirement fund.

Sec.  550.1615--Pay Assignment Continuity

    We received general comments regarding Sec.  550.1615 and 
retirement-related matters.
    One commenter made general comments on the obvious administrative 
complexities of implementing and administering the pay assignment 
continuity provisions of BPAPRA.
    Three commenters noted CBP's actions to decertify some positions 
from receiving AUO pay will create a ``gap'' in pay received by agents 
spanning the period when AUO ceased being paid and continuing through 
the implementation of BPAPRA, which lowers the amount of retirement-
creditable basic pay that agents receive during this period of time 
compared to what they expected. A commenter noted that this could 
reduce an agent's high-3 average pay. Another commenter asked if ``pay 
reform has included a gap measure'' to make up for the loss of AUO pay 
and noted that AUO decertification would result in agents not reaching 
their ``high 3 target.'' This commenter suggested that any period when 
an agent's AUO pay was decertified should not be included in the 
calculation of the agent's high-3 average pay for retirement 
calculation purposes.
    As noted in the Supplementary Information published with the 
proposed rule, various reviews indicated that AUO was being used 
improperly for some DHS employees, and DHS has taken actions to address 
the matter. The suggestions concerning ways to address the ``gap'' in 
retirement-creditable pay caused by the decertification of certain 
positions for AUO pay is beyond the scope of the regulations. There is 
no provision in BPAPRA to provide replacement retirement-creditable pay 
to agents occupying positions decertified from receiving AUO during the 
period covering the decertification until the implementation of BPAPRA. 
In addition, there is no legal authority to disregard a period of 
creditable service and retirement-creditable basic pay from 
consideration for the computation of the high-3 ``average pay period'' 
as if the period of service and the pay received during that service 
never existed. Under 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. In effect, the commenter's suggested 
solution appears to be an attempt to avoid the word ``consecutive'' in 
the statutory definition of ``average pay.'' The calculation of the 
high-3 ``average pay period'' entails the consideration of all possible 
periods of 3 consecutive years of creditable service and retirement-
creditable basic pay to determine which of the periods comprises the 
high-3 ``average pay period.'' If decertification of an agent's

[[Page 58099]]

position causes the agent's retirement-creditable basic pay to be less 
than what he or she otherwise expected, the high-3 ``average pay 
period'' may shift to a period of 3 consecutive years that is different 
from what would have otherwise comprised the high-3 ``average pay 
period.'' Furthermore, we note that the statutory definition of the 
high-3 ``average pay'' does not always result in the high-3 ``average 
pay'' being based on an employee's final three years of creditable 
service, since an agent's high-3 average salary period is the period 
when the agent had his/her highest average retirement-creditable basic 
pay over 3 consecutive years of creditable service, whenever that is.
    One commenter posed a series of questions about the effects of the 
regulation. First, the commenter asked how the Border Patrol Interim 
Pay (which excludes AUO pay) affects the control period. Second, the 
commenter asked if Sec.  550.1615 means that an agent cannot be 
promoted after age 50 or after 22 years of service because a promotion 
would also ``inflate'' the high-3 average pay via a pay increase that 
would not have been paid into the retirement system over the agent's 
career. Third, the commenter asked whether a change of duty stations 
with different locality pay would not be allowed because an agent would 
make more money not previously paid into the retirement system. Fourth, 
the commenter asked whether, under the 2.5 percent consistency standard 
stated in the proposed rule, an agent who worked 17 years with 25 
percent AUO, and who elected 12.5 percent (Level 2 regular tour of 
duty) or 0 percent (Basic regular tour of duty) for a year just prior 
to his or her last year of service before retirement, would not be 
allowed to elect 25 percent (Level 1 regular tour of duty) during that 
last year.
    In response to the first question, once the new overtime program 
for Border Patrol agents takes effect on January 10, 2016, CBP must 
control an agent's tour assignments (and associated overtime 
supplements) during the ``control period'' that begins when the agent 
is within 3 years of meeting age and service requirements for an 
immediate retirement annuity. During the control period, the CBP must 
ensure that an agent's average overtime supplement during any 3-year 
period is consistent with the agent's career-average overtime 
supplement percentage. Under the proposed rule, an agent's career 
average is based solely on periods of time during which an agent is 
covered by the new overtime program. (See proposed Sec.  
550.1615(a)(3). See also discussion of this in the Supplementary 
Information of the proposed rule, 80 FR 34544.) Thus, under the 
proposed rule, the interim period of time when agents are not receiving 
AUO pay but are, instead, receiving overtime pay under standard title 5 
overtime provisions (May 17, 2015-January 9, 2016) would not have 
affected the career average used during the control period. However, we 
have made significant changes to Sec.  550.1615(a), which are discussed 
below. The changes will not result in any agent's career average 
overtime supplement being less than it would have been under the 
proposed regulations, since we are providing for the use of the greater 
of two computations, one of which is the computation used in the 
proposed regulations. As explained below, the other computation will 
consider an agent's whole career prior to the beginning of the control 
period; thus, that computation would be affected by the loss of AUO pay 
during the interim period.
    In response to the second question, Sec.  550.1615 has no effect on 
promotions. Section 550.1615 deals with CBP controlling tour 
assignments and the resulting overtime supplement percentage during an 
agent's control period. It focuses on the career-average overtime 
supplement percentage, not the dollar amount of the supplement or the 
total rate. OPM actuarial calculations that determine the level of 
agency retirement contributions take into account average salary growth 
due to grade progression.
    In response to the third question, Sec.  550.1615 has no effect on 
the ability of agents to make geographic moves. Section 550.1615 deals 
with CBP controlling tour assignments and the resulting overtime 
supplement percentage during an agent's control period. It focuses on 
the career average overtime supplement percentage, not the dollar 
amount of the supplement or the total rate. OPM actuarial calculations 
that determine the level of agency retirement contributions take into 
account average locality pay that reflects geographic moves.
    In response to the fourth question, during an agent's control 
period, the CBP must ensure that an agent's average overtime supplement 
percentage during any 3-year period is consistent with (within 2.5 
percentage points of) the agent's career-average overtime supplement 
percentage. Under the proposed regulations, an agent's career average 
is based solely on periods of time during which an agent is covered by 
the new overtime program. (See proposed rule at Sec.  550.1615(a)(3)). 
See also discussion of this in the Supplementary Information of the 
proposed rule, 80 FR 34544.) Thus, under the proposed rule, prior 
periods of time when an agent was receiving AUO pay would not have 
affected the career average used during the control period. However, we 
have made significant changes to Sec.  550.1615(a) in the final rule, 
which are discussed below. The changes will not result in any agent's 
career average overtime supplement being less than it would have been 
under the proposed regulations, since we are providing for the use of 
the greater of two computations, one of which is the computation used 
in the proposed regulations. As explained below, the other computation 
will consider an agent's whole career prior to the beginning of the 
control period and would include an agent's AUO percentages in 
computing the career average overtime supplement.
    The greater of the two computations will be used as the career 
average overtime supplement that will limit what tour and overtime 
supplement can be assigned to an agent during his or her control 
period. While an agent's retirement-creditable basic pay will be 
controlled during the control period, it is possible that some or all 
of an agent's high-3 average salary period will be outside that control 
period and could reach back to periods when an agent was receiving AUO 
pay, especially in the case of agents retiring in the next several 
years.
    One commenter expressed the opinion that the regulations on pay 
assignment continuity are ``particularly confusing and vague'' and 
requested clarification. The commenter also stated that ``controlling 
the work levels accessible to covered employees in the three-years 
before their retirement seem[s] discriminatory and arbitrary.''
    BPAPRA places the responsibility for developing and implementing a 
plan to ensure, to the greatest extent practicable, pay assignment 
continuity with CBP, subject to consultation with OPM. OPM's 
regulations provide a basic framework, metrics, and a consistency 
standard for CBP to utilize in the design of its plan. The only means 
under BPAPRA to maintain pay continuity is through CBP's plan to 
concurrently control the assignment of agents to one of three types of 
``regular tour of duty'' which provide one of three rates of pay 
(reflecting an overtime supplement of 25, 12.5, or 0 percent). 
Therefore, the law requires that pay continuity be maintained through 
assignments of agents to one of three types of fixed ``regular tour of 
duty''; other means of

[[Page 58100]]

maintaining pay continuity are precluded by BPAPRA.
    One commenter stated that ``pay reform'' is changing the ``pension 
plan'' and asked if there were ``any plans to grandfather agents that 
have more than 10 years of service.'' This commenter also asked where 
``the language that spells out and authorizes the drastic changes to 
the current retirement/pension plans for Border Patrol Agents'' could 
be found in BPAPRA.
    BPAPRA makes only one significant change to subchapter III of 
chapter 83 of title 5, United States Code, the provisions for the Civil 
Service Retirement System (CSRS), and chapter 84 of title 5, United 
States Code, the provisions for the Federal Employees' Retirement 
System (FERS). Section 2(d) of BPAPRA amends the definition of ``basic 
pay'' for CSRS and FERS retirement purposes to provide that a Border 
Patrol overtime supplement is basic pay for retirement purposes. (See 
also 5 U.S.C. 5550(d).) Section 2(b) of BPAPRA added a new section 5550 
in title 5, which includes a pay assignment continuity provision in 
section 5550(b)(1)(G). That provision requires that an agent's average 
overtime supplement during the agent's control period be consistent 
with the agent's career average overtime supplement in order to protect 
the retirement fund and provide equitable treatment of agents. By 
design, BPAPRA has an effect on agents' retirement-creditable basic 
pay, which in turn affects the agents' high-3 average pay used to 
compute the agents' retirement annuity. BPAPRA included no 
grandfathering provision related to retirement matters.
    Another commenter raised issues with the designation of certain 
Border Patrol positions as headquarters positions that are only 
entitled to the Basic border patrol rate of pay. This comment refers to 
determinations made by CBP that are beyond the scope of the 
regulations.
    One commenter was concerned about the ``cryptic, opaque language'' 
describing the high-3 ``average pay period'' in the proposed rule, and 
in the Supplementary Information published with the proposed rule. This 
commenter asked for a clarification of the concept of the high-3 
``average pay period.'' Under 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. Further explanation of the high-3 
``average pay period'' is provided in the context of our responses to 
other comments.
    One commenter asserted, generally, that the pay assignment 
continuity provisions at Sec.  550.1615 are unjust, unfair, and are 
``OPM's attempt to further harm the U.S. Border Patrol by implementing 
ideas and standards that are not in the law.'' The pay assignment 
continuity provisions are an implementation of the statute at 5 U.S.C. 
5550(b)(1)(G). Within the statutory framework provided by Congress, we 
have striven to implement the law in a reasonable and fair way, while 
also recognizing OPM's fiduciary responsibilities to protect the 
retirement fund.
    One commenter asked, generally, how BPAPRA will affect retirement, 
specifically the high-3 ``average pay period'' used in retirement 
annuity calculations. How BPAPRA affects the computation of an agent's 
high-3 ``average pay period'' of an agent will depend on the particular 
work and pay history of the agent. In general, because of the statutory 
requirement that generally no more than 10 percent of agents at a 
location may have a Level 2 or Basic regular tour of duty, most agents 
should be consistently assigned to Level 1 regular tour of duty, and 
their high-3 average pay will reflect that. BPAPRA does require that an 
agent assigned to a headquarters, administrative, training instructor, 
or fitness instructor position be assigned a Basic regular tour of duty 
(with no overtime supplement), except as otherwise justified based on a 
CBP staffing analysis or the need to comply with the pay assignment 
continuity provision. This statutory requirement might affect the 
amount of retirement-creditable additional pay that the agent would 
otherwise receive.
    We also received comments on specific sections of the proposed 
rule. Several commenters, including CBP, had concerns about proposed 
Sec.  550.1615(a)(3), which provided, in part, that ``[i]f an agent is 
in a control period . . . 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.'' 
One commenter believed that proposed Sec.  550.1615(a)(3) appears to 
artificially compute an agent's career average. Other commenters were 
concerned that this provision would harm agents who are in their 
control period when BPAPRA is implemented and who are assigned to 
positions at the Office of Border Patrol Headquarters, the CBP Border 
Patrol Academy, and other positions generally excluded from a Level 1 
or Level 2 regular tour of duty. CBP and one commenter noted that it 
will be difficult to find agents willing to accept assignments to 
headquarters, and other positions limited to a 0 percent overtime 
supplement. A commenter also noted that these agents in headquarters, 
administrative, training instructor, or fitness instructor positions 
can only be assigned to a Basic regular tour of duty despite the fact 
that they have been working a large amount of overtime in the field for 
many years. Another commenter stated that agents working in a 
headquarters or academy position would be harmed by the implementation 
of the pay assignment continuity regulation. For example, some agents 
would have a career average overtime supplement ``locked'' at 0 percent 
because they will already be in their control period and have a Basic 
tour (due to holding a headquarters position) when BPAPRA takes effect, 
even if they later work another 5, 8 or 10 years out in the field. The 
commenter pointed out that these agents may have been working 
significant overtime (and receiving AUO pay) over most of their career 
and stated that all hours of overtime worked during the agents' career 
should be considered.
    One of the most challenging implementation issues BPAPRA presents 
is the logical quandary of how to establish a career average border 
patrol rate of pay for agents who are immediately in their control 
period when BPAPRA is implemented, when no agent will have any history 
of being paid under 5 U.S.C. 5550. As a solution (hereafter ``Option 
1''), one commenter proposed that an agent ``should be allowed to 
choose their level of overtime supplement, but at retirement then OPM 
can determine if those years were inflated compared to the rest of his/
her career. If they were, then there should be a calculation as to the 
average over the previous ten years, or something to that effect. If 
he/she has regularly worked 15-25 hours of overtime whether on AUO or 
FEPA, and is at level 1 at retirement, then there is no artificial 
inflation.''
    Another commenter proposed a second solution (hereafter ``Option 
2'') to address the problem of establishing a career average border 
patrol rate of pay for agents who are in their control period and who 
are assigned to a headquarters, administrative, training instructor, or 
fitness instructor position restricted to a Basic regular tour of duty. 
Option 2 would create a ``waiver period'' until the comprehensive 
staffing analysis CBP is required to complete under section 2(e) of 
BPAPRA is completed. During the proposed ``waiver period'' an agent's 
retirement high-3 average pay would be ``based off

[[Page 58101]]

of whatever election they chose, even though they may be in a 
Headquarters, Instructor, etc., position.''
    The proposed Option 1 solution is not consistent with the statutory 
framework because it would necessitate a determination, after the fact, 
regarding whether the agent artificially inflated his or her average 
pay for the purposes of increasing his or her annuity. BPAPRA does not 
provide OPM with authority to modify an employee's retirement-
creditable basic pay or high-3 average pay. Limiting the creditability 
of the overtime supplement to an average amount over some period of 
years would conflict with 5 U.S.C. 5550(d), which provides that ``[a]ny 
pay in addition to the basic border patrol rate of pay for a border 
patrol agent resulting from application of the level 1 border patrol 
rate of pay or the level 2 border patrol rate of pay'' shall be treated 
as basic pay for retirement purposes. The only means under BPAPRA to 
maintain pay continuity is through CBP's plan to concurrently control 
the assignment of agents to one of three types of ``regular tour of 
duty,'' which provides one of three rates of pay (reflecting three 
levels of overtime supplement).
    The proposed Option 2 solution is also legally impermissible. The 
comprehensive staffing analysis CBP is required to complete under 
section 2(e) of BPAPRA might determine that certain headquarters, 
administrative, training instructor, or fitness instructor positions at 
certain duty stations require assignment to other than a Basic border 
patrol rate of pay. However, there is no assurance that this would be 
the result of the comprehensive staffing analysis for every affected 
position. If we attempted to set a waiver period of a fixed length, it 
would be viewed as arbitrary and would leave some agents just outside 
the period who are arguably just as deserving of the special treatment. 
Furthermore, one important implementation issue under BPAPRA regarding 
pay continuity is how to establish a career average border patrol rate 
of pay for agents who are immediately in their control period when 
BPAPRA is implemented when no agent has any history of having received 
pay under 5 U.S.C. 5550. A ``waiver period'' where the agent's 
retirement high-3 average pay would be based on whatever election they 
chose (with no relationship to what the agent actually receives as 
retirement-creditable pay) does not address the issue of how to 
establish the career average of an agent who is immediately in his or 
her control period, especially for those who are limited to the Basic 
border patrol pay rate when BPAPRA is implemented. Section 
5550(b)(1)(G)(i) requires use of the average border patrol rate of pay 
level ``to which the border patrol agent has been assigned''--not the 
level the employee elected, but was not actually assigned. Option 2 
also conflicts with what is permitted by the statutory definitions of 
``basic pay'' and ``average pay.'' ``Basic pay'' for retirement is pay 
actually received for which retirement deductions and agency 
contributions have been paid to the retirement fund. ``Average pay'' is 
the 3 consecutive years of creditable service during which an employee 
has his or her highest rates of retirement-creditable basic pay. These 
definitions do not permit basic pay to be deemed to have been received, 
and deeming basic pay, without employee retirement deductions or agency 
contributions, would itself produce an unfunded liability of the 
retirement fund.
    Another commenter and CBP suggested that any period, of any length 
of time, when an agent cannot be assigned to a Level 1 or Level 2 
regular tour of duty (and a 25 or 12.5 percent overtime supplement) 
should be excluded from calculation of the agent's career average 
overtime supplement. However, it is not possible to disregard periods 
of pay within an agent's career and still be consistent with the goals 
of pay assignment continuity provisions of BPAPRA.
    CBP expressed concerns about Sec.  550.1615 similar to those 
expressed by other commenters. CBP's comments on this aspect of the 
proposed rule focused on language of the pay assignment continuity 
provisions of BPAPRA which state the purpose of the provisions are to 
assure that an agent is ``not able to artificially enhance his/her 
retirement annuity.'' CBP argued that limiting consideration of the 
agent's career for pay assignment continuity only to time under Border 
Patrol rate of pay is inherently unfair to those agents who are 
currently at or near the control period on the effective date of BPAPRA 
and who are assigned to positions statutorily limited to Basic rate of 
Border Patrol pay because these agents will forever be limited to the 
Basic tour of duty regardless of how many additional years the employee 
continues to work as a Border Patrol agent. CBP noted that these 
agents, along with the agency, have already paid years of retirement 
contributions to the retirement fund based on AUO pay.
    CBP also expressed concern that agents assigned to a position (such 
as headquarters, at training facilities, or in initial training) that 
is precluded, by statute or regulation, from receiving other than Basic 
border patrol rate of pay, or was similarly precluded from receiving 
AUO pay (available to other Border Patrol agents) that would have been 
included in their basic pay for retirement purposes, would experience a 
reduction of their career average because they will have the periods of 
0 percent overtime supplement percentage factored into their career 
average calculation. CBP noted that this would discourage agents from 
accepting assignments to headquarters, administrative, training 
instructor, or fitness instructor positions.
    CBP stated that ``the stated statutory language [concerning pay 
assignment continuity] is too simplistic to comport with the clear 
statutory purpose [i.e., to assure that an agent is ``not able to 
artificially enhance his/her retirement annuity.''].'' CBP argued that 
the career average intended by Congress allows the regulatory 
provisions establishing an agent's career average to not be limited to 
overtime under the BPAPRA. CBP reasoned that this is permissible, 
particularly considering agents who have already completed the majority 
of their careers (and made attendant deposits into the retirement fund) 
based on AUO pay, in light of statutory language which provides that an 
agent's pay should be 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.'' CBP's argument 
relied on the dictionary definition of the word ``career,'' which, in 
CBP's analysis, requires consideration of pay prior to implementation 
of the new overtime supplement. CBP argued that the statutory language, 
which provides that pay assignment continuity is to be achieved ``to 
the greatest extent practicable,'' implies some leeway in setting 
rules. CBP also noted that the general purpose of the pay assignment 
continuity provision is to prevent an agent from artificially enhancing 
his or her annuity, which should be the guide for establishing rules. 
In general, CBP argued that consideration of AUO as career pay is 
within the spirit of pay assignment continuity and that AUO is, in 
fact, basic pay for retirement and cannot be considered an 
``artificial'' enhancement of an agent's retirement benefit.
    CBP suggested several alternative changes to the regulations. 
First, CBP proposed that ``[a]t a minimum, CBP believes it should be 
free to consider AUO pay at least since the start-up of DHS (when CBP 
has clear electronic pay records [i.e., from CY 2003]) for those 
individuals who will have less than 4

[[Page 58102]]

years under border patrol pay at the time they are within 3 years of 
retirement eligibility and, because of their assigned positions they 
are not free to receive other than basic border patrol rate of pay.'' 
As another alternative, CBP suggested that OPM define ``career'' for 
the purpose of the regulations as a period of at least 10 years under 
the Border Patrol rate of pay or AUO as the minimum basis of what 
constitutes a career, but only for those employees who are currently at 
or near the control period and who hold a position that is required by 
law to have a Basic tour with a 0 percent overtime supplement. CBP 
suggested a 10-year career because it roughly coincides with the period 
for which DHS has electronic pay records.
    Alternatively, CBP suggested, ``in light of Congressional intent 
that the agent not be able to `artificially enhance' their own 
retirement annuities,'' that the rule should be changed to define 
career ``to exclude periods when the agent, for the good of the agency 
(and not of their own volition), is assigned to a position (such as 
headquarters, at training facilities, or in initial training) that is 
precluded, by statute or regulation, from receiving other than basic 
border patrol rate of pay or was similarly precluded from receiving 
other overtime pay (available to other border patrol agent) that would 
have been included in their base pay for retirement purposes.''
    CBP suggested another alternative for employees who have more than 
20 years of service as a Border Patrol agent. CBP suggested allowing 
consideration of only the 20 years that produced the employee's largest 
percentages of AUO pay and the Border Patrol overtime supplement in 
determining the career average.
    We understand CBP's concerns; however, we emphasize that the 
underlying purpose of pay assignment continuity provisions of BPAPRA--
the purpose behind the objective of ensuring that ``agents are not able 
to artificially enhance their retirement annuities'' (5 U.S.C. 
5550(b)(1)(G)(iv))--is ultimately to protect the Civil Service 
Retirement and Disability Fund. To make this express, we have added the 
goal of protecting the retirement fund to Sec.  550.1615(a)(1). We note 
that section 5550(b)(1)(G)(i) requires that tour assignments during an 
agent's control period be consistent with the ``average border patrol 
rate of pay level to which the border patrol agent has been assigned'' 
during the agent's career up to that point, regardless of how that tour 
was assigned. The pay assignment continuity provision is designed to 
protect the retirement fund by controlling tour assignments (including 
those made by employee elections) during the control period, which in 
turn controls the overtime supplement percentages during that control 
period, thus ensuring consistency with the career average.
    After considering all of the comments on Sec.  550.1615, we have 
decided to change Sec.  550.1615 to establish a rule for computing the 
career average overtime supplement percentage that we believe is a 
reasonable interpretation of the statute and that is consistent with 
legislative intent. This rule will operate so as not to artificially 
inflate or deflate retirement calculations, while providing fair 
treatment of agents. In this final rule, Sec.  550.1615(a)(2) has been 
changed so that the career average overtime supplement percentage of an 
agent is the greater of (1) the average overtime supplement percentages 
(25 percent, 12.5 percent, or 0 percent) assigned during service as an 
agent on or after January 10, 2016, that is prior to the beginning of 
the agent's control period; or (2) the average of the assigned overtime 
supplement percentages during all service as an agent that is prior to 
the beginning of the agent's control period, with assigned overtime 
supplement percentages (25, 12.5, or 0 percent) assigned during service 
on or after January 10, 2016, and with assigned percentages of AUO 
under 5 U.S.C. 5545(c)(2) treated as overtime supplement percentages 
for any period of service prior to January 10, 2016. This change 
addresses the concerns expressed by CBP and various individual 
commenters. The first method is the same that was included in the 
proposed regulations. Because of the ``greater of'' approach, no agent 
will be treated worse than he would have been treated under the 
proposed rule, and some agents will be treated better. For example, 
agents who have a Basic tour under the new overtime program established 
under BPAPRA, but who had years of service before January 2016 during 
which they received 25 percent AUO pay, will have their career average 
based on their total Border Patrol agent career prior to the beginning 
of their control period; thus, the career average will reflect the 
years when 25 percent AUO pay was received.
    The second method is based on an interpretation of section 
5550(b)(1)(G)(i) that gives weight to the language ``course of the 
career'' by reaching back to the portion of an agent's career before 
the BPAPRA overtime program takes effect on January 10, 2016. Since 
both AUO pay and the Border Patrol overtime supplement are retirement-
creditable basic pay, inclusion of AUO pay is appropriate and fair and 
does not have a negative impact on the retirement fund. Given the 
extremely negative impact that considering only periods on or after 
January 1, 2016, in computing the career average would have had on 
certain agents and given the lack of any apparent Congressional intent 
to create such a negative impact, we concluded it would be reasonable 
to create a second method, while preserving the first method that 
relied on a narrower reading of the statutory language. The ``greater 
of'' approach ensures that no employee is disadvantaged.
    The revised Sec.  550.1615(a)(3) addresses a matter previously 
addressed in Sec.  550.1615(a)(2) of the proposed regulations. 
Paragraph (a)(3) provides that, in applying 550.1615(a)(2), the 
assigned overtime supplement percentage is used regardless of whether 
or not the payable amount of the overtime supplement is limited by a 
premium pay cap. This protects an agent's career average from 
decreasing when a pay cap is imposed.
    Section 550.1615(a)(4) has been added to provide that, in applying 
paragraph (a)(2) of this section, if an agent's control period begins 
on January 10, 2016, the agent's initially assigned overtime supplement 
percentage must be considered the agent's career average under Sec.  
550.1615(a)(2)(i). This provision is consistent with the second 
sentence in Sec.  550.1615(a)(3) of the proposed rule.
    A sentence has been added at the end of Sec.  550.1615(b) to 
clarify that if, as of January 10, 2016, the date that is 3 years 
before the agent first met age and service requirements for an 
immediate retirement has already passed, then the agent's control 
period is considered to have begun on January 10, 2016.
    In deciding on the revisions to Sec.  550.1615 described above, we 
have necessarily had to reject the other alternative changes suggested 
by CBP and other commenters. We do not believe that it is reasonable to 
limit the definition of ``career'' for the purpose of the regulations 
as a period of at least 10 years under section 5550 or the AUO program 
simply because the electronic payroll records of DHS are conveniently 
available for this period. OPM has made its electronic retirement 
records available to DHS, which should allow CBP access to information 
more than 10 years old. As we explained in response to other 
commenters, the goals of pay assignment continuity do not allow periods 
of 0 percent overtime supplement to be disregarded for the calculation 
of an agent's career average overtime supplement or the high-3 average 
pay. We appreciate the difficulties presented by the statutory

[[Page 58103]]

exclusion of headquarters, administrative, training instructor, or 
fitness instructor positions from being assigned to Level 1 or Level 2 
regular tours of duty, at least in the absence of a CBP staffing 
analysis allowing those assignments, but that is a consequence of the 
law which regulations cannot remedy.
    One commenter expressed concern about the definition of control 
period at Sec.  550.1615(b) and length of time he or she would have to 
spend in the control period. This commenter was also concerned about a 
statement made in the Supplementary Information published with the 
proposed rule regarding the two exceptions allowed at Sec.  
550.1615(c)(2) to the requirement that an agent's career average 
overtime supplement must be ``consistent'' with the agent's assigned 
overtime supplement during all consecutive 3-year periods within the 
``control period.'' We stated: ``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.'' The 
commenter noted that he or she will be eligible for retirement in 6 
years but will not be mandated to retire for 16 years. The commenter 
stated: ``If this statement along with the entire section covering Pay 
Assignment Continuity 550.1615 stands as written I will be forced to 
maintain 1 overtime level for the duration of my career starting in 3 
years and potentially continuing for 13 more years as the entire time 
in service will be considered a control period.'' CBP, however, stated 
that it ``agree[d] with OPM both that 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,' and that the primary reason for the provisions under 5 
U.S.C. 5550(b)(1)(G) are to assure that the employee is `not able to 
artificially enhance his/her retirement annuity.''' As we explained in 
the Supplementary Information for the proposed rule, OPM interprets the 
``eligible for immediate retirement'' language in section 
5550(b)(1)(G)(i) to refer to eligibility based on meeting all 
eligibility requirements, including the condition of separation from 
service. Since an employee's future separation date is unknown, all 
possible 3-year periods preceding all possible separation dates are 
included in the control period. (See 80 FR 34543-34544.) This approach 
achieves the desired objective of controlling agents' high-3 average 
pay based on the last 3 years of service.
    One commenter expressed concern that agents who consistently have a 
Level 1 tour and are promoted to grade GS-15 where they are reaching 
the premium pay cap will be unfairly forced to continue to work a Level 
1 tour because they have a high career average overtime supplement 
percentage and must be consistent with that. The commenter pointed out 
that, because of the premium pay cap, the agent will still be 
depositing the same amount of money into the retirement account whether 
he/she is at the Level 1 or the Level 2. The commenter recommended that 
such agents be allowed to have a reduced tour.
    This issue was already addressed in the proposed regulations. Under 
Sec.  550.1615(c)(2)(i) (in both the proposed and final regulations), 
if an agent's overtime supplement is limited by the premium pay cap, 
the agent may elect a regular tour of duty with lesser hours providing 
an overtime supplement that is less than the agent's career average, as 
a permitted exception to the consistency requirement.
    NBPC commented that the definition at Sec.  550.1615(b) of 
``control period'' would control an agent's overtime supplement 
assignments for many years. NBPC suggested that lengthy control periods 
could be instead addressed by ``a process by which an Agent would 
acknowledge that he or she does not intend to retire at the first 
eligible date and instead state an anticipated retirement date.''
    The supplementary information published with the proposed rule 
includes a lengthy explanation of our statutory interpretation for the 
definition of ``control period'' in the rule. (See 80 FR 34543-34544.) 
The regulations allow a 2.5 percent variation between an agent's career 
average overtime supplement and the agent's assigned overtime 
supplement to allow for a reasonable divergence between the two 
averages.
    NBPC's proposed suggestion concerning the definition at Sec.  
550.1615(b) of ``control period'' is not a practical solution to the 
potential problem of agents ``artificially enhance[ing] their 
retirement annuities.'' An agent could, with the best of intentions, 
decide on an anticipated retirement date, only to see his or her 
personal circumstances change unexpectedly, necessitating a sudden 
change in his or her retirement date. An employee's decision to retire 
at a certain date can be revoked as late as the planned last day of 
service. This could result in the agent never being subject to pay 
assignment continuity before his or her retirement.
    NBPC also commented on the relationship between Sec.  550.1615 and 
Sec.  550.1614(d), which addresses CBP's authority in connection with 
the pay assignment continuity requirement. Section 550.1614(d) provides 
that the pay assignment continuity requirement in Sec.  550.1615 trumps 
that requirement in Sec.  550.1614, which 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). The NBPC commented, ``[t]he idea that pay continuity trumps 
the staffing requirement, or any operational requirement or necessity, 
is completely contrary to the expressed intent of Congress. Throughout 
the entire legislative process the primary concern that Congress 
articulated with the BPAPRA was whether it would diminish border 
security. . . [T]he NBPC and the Administration proposed that the 
legislation be altered to provide that at least 90% of the Agents must 
be at Level 1 to ensure that Border Patrol had adequate manpower.''
    The purpose of the statutory provision at 5 U.S.C. 5550(b)(1)(E), 
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, is to 
``ensure that the Border Patrol has a stable floor of staffing, 
allowing managers with a steady annual base-line of hours to plan 
border security operations.'' S. Rep. No. 113-248, at 9. In addition, 
the NBPC comment does not consider that the statutory provisions of pay 
assignment continuity include the provision at 5 U.S.C. 
5550(b)(1)(G)(ii) of title 5, United States Code, which provides:

    (ii) Implementation.--Notwithstanding any other provision of 
law, U.S. Customs and Border Protection may take such action as is 
necessary, including the unilateral assignment of border patrol 
agents to the level 1 border patrol rate of pay, the level 2 border 
patrol rate of pay, or the basic border

[[Page 58104]]

patrol rate of pay, to implement the plan developed under this 
subparagraph.

(emphasis added) This statutory provision is discussed in the 
supplementary information (at 80 FR 34544, June 17, 2015). The 
introductory phrase of Sec.  5550(b)(1)(G)(ii)--``Notwithstanding any 
other provision of law''--is the statutory basis for Sec.  550.1614(d) 
providing that the pay assignment continuity requirement in Sec.  
550.1615 takes precedence over the percentage limit requirement in 
Sec.  550.1614. For clarification, we are revising Sec.  550.1614(d)(1) 
by adding the phrase ``notwithstanding any other provision of law or 
this subpart,'' consistent with the Sec.  5550(b)(1)(G)(ii) statutory 
provision upon which paragraph (d) is based.

    As noted in the Supplementary Information for the proposed 
regulations, Sec.  550.1615(d)(2) implements 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. Section 550.1604, reflects 
various provisions in BPAPRA (section 2(a) and 2(f)(1) of BPAPRA and 5 
U.S.C. 5550(g)) that 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. As necessary to meet its operational 
requirements, CBP may assign outside-tour overtime work to an agent 
whose tour is limited due to the pay assignment continuity provision. 
Given the comments regarding the extent to which the pay assignment 
continuity takes precedence over other rules governing tour 
assignments, we are further clarifying in Sec.  550.1615(d)(2) that, 
before exercising the authority in paragraph (d)(2) to allow assignment 
of a regular tour of duty that does not comply with the pay assignment 
continuity plan, CBP must first determine that it cannot adequately 
address the specific operational requirements in question by other 
means. For example, CBP could assign the affected agent outside-tour 
overtime work to address the specific operational requirements at 
issue. Also, CBP could possibly assign outside-tour overtime work to 
other agents to meet those work requirements. As part of the 
clarification of Sec.  550.1615(d)(2), we have added language stating 
that, if the authority under paragraph (d)(2) is exercised, CBP must 
return the affected agent to a regular tour of duty that complies with 
pay assignment continuity plan as soon as possible.
    CBP also noted the statutory primacy of pay assignment continuity 
requirements and asked if pay assignment continuity would take 
precedence over the statutory requirement that agents in certain 
positions (i.e., a headquarters, administrative, training instructor, 
or fitness instructor position) can only be assigned a Basic border 
patrol rate of pay and a 0 percent overtime supplement.
    The introductory phrase of Sec.  5550(b)(1)(G)(ii)--
``Notwithstanding any other provision of law''--allows an agent who is 
assigned to a headquarters, administrative, training instructor, or 
fitness instructor position during their control period to be assigned 
to a Level 1 or Level 2 border patrol rate of pay, if such an 
assignment is required to maintain pay assignment continuity under the 
plan developed by CBP.
    NBPC also commented on Sec.  550.1615(c), which provides that the 
average overtime supplement for all consecutive 3-year periods within 
the ``control period'' is considered to be ``consistent'' with the 
career average percentage of overtime supplement if the two averages 
are within 2.5 percentage points of each other. NBPC faults the 
regulations because ``[n]owhere in the proposed regulations is there an 
explanation for how OPM determined this 2.5 [percent] metric. . . The 
NBPC believes that a more reasonable metric would be to use the level 
at which an agent spends half or more of his or her career.''
    We do not view half of a career as a reasonable interpretation of 
the word ``consistent'' with the ``average border patrol rate of pay 
level . . . assigned during the course of the career of the border 
patrol agent'' (5 U.S.C. 5550(b)(1)(G)(i)). A simple example shows how 
the NBPC's proposed alternative would not produce consistency. In this 
example, an agent enters the control period after serving 20-years as 
an agent, where the agent was assigned a 25 percent overtime supplement 
for 10 years and a 0 percent overtime supplement for 10 years. Under 
the proposed rule, the career average would be 12.5 percent; however, 
NBPC's proposed alternative would allow the agent to have a 25 percent 
overtime supplement during the control period, which would not be 
consistent with the career average and would not protect the retirement 
fund.
    OPM continues to believe that it is reasonable to allow an agent's 
average overtime supplement percentage during any 3-year period within 
the agent's control period to be considered ``consistent'' if it is 
within 2.5 percentage points of the agents' career average overtime 
supplement percentage. In our view, requiring a 0 percentage point 
difference would not be feasible given that the CBP can only affect the 
average during the control period by using combinations of 25, 12.5, 
and 0 percent overtime supplements. On the other side, we do not view a 
5 percentage point difference as close enough to be considered 
consistent. However, the final rule provides that CBP must provide 
reports so that OPM can evaluate whether the CBP's pay assignment 
continuity plan and the 2.5 percent consistency requirement are 
adequately protecting the retirement fund.

Sec.  550.1616--Corrective Actions

    NBPC requested clarification of Sec.  550.1616, which addresses 
corrective actions in connection with tour assignments and allows 
retroactive corrections in cases of fraud or fault on the part of the 
agent. NBPC stated the proposed regulation should be changed to also 
allow for retroactive correction of tour assignments when (1) an agent 
worked the requisite hours but has not been paid properly (e.g., 
working Level 1 hours but only being provided Level 2 pay) and (2) an 
agent elected to work a higher level tour but the agency erroneously 
did not assign it. NBPC was concerned that the proposed regulation 
would relieve CBP for any liability for financial detriment to an 
agent.
    We agree that clarification is needed. First, let us address the 
two scenarios raised by NBPC. First, NBPC described a scenario in which 
agents worked the ``requisite hours'' but did not receive pay for those 
hours, such as working Level 1 hours but getting Level 2. In fact, it 
is possible for an agent who elected Level 2 to be assigned outside-
tour overtime hours that result in the agent having in some pay periods 
aggregate hours that may be equivalent to those of a Level 1 tour. 
However, that does not change the tour that the agent elected and that, 
by law, must be implemented. No retroactive correction would be 
appropriate. By law, if an agent works overtime hours beyond the 
assigned tour, the agent is entitled to overtime pay (for regularly 
scheduled overtime) or compensatory time off (for irregular overtime 
hours). Thus, the agent will receive compensation for

[[Page 58105]]

those outside-tour overtime hours, but any regularly scheduled overtime 
pay received will not be retirement-creditable basic pay.
    Second, NBPC described a scenario in which an agent elected to work 
a higher level tour but the agency erroneously did not assign it. We 
did not intend to bar retroactive correction in cases where CBP failed 
to implement an employee's valid tour election (when no superseding 
tour assignment applies under Sec.  550.1611(f)). We would expect an 
employee to quickly identify such an error after receiving a Leave and 
Earnings Statement for an affected pay period. However, there could be 
a short period of time during which the payroll system improperly pays 
the employee before the error is corrected. In such a case, a 
retroactive correction should be made, since the employee made a valid 
election, which must be implemented (absent a superseding rule). If, as 
expected, the employee worked the correct tour despite the payroll 
system error, the retroactive correction will be simple.
    Upon review of proposed Sec.  550.1616, we believe that the bar on 
retroactive corrections is too broadly stated. We are revising Sec.  
550.1616 to specifically identity circumstances in which retroactive 
correction of a tour assignment may not be made. In other situations 
involving assignment of an incorrect tour (whether an error in terms of 
the actual scheduling of work or merely an error in payroll system), a 
retroactive correction will be required and appropriate adjustments in 
pay (including adjustments in retirement contributions) must be made. 
If the employee was underpaid, the normal principles governing back pay 
under 5 U.S.C. 5596 and 5 CFR part 550, subpart H will apply. If the 
employee was overpaid, the debt will be subject to collection under 
normal debt collection procedures (including 5 U.S.C. 5514 and 5 CFR 
part 550, subpart K).
    We reviewed possible scenarios in which an agent might be assigned 
the incorrect tour, including failure to implement a valid election or 
to apply the superseding rules in Sec.  550.1611(f) or Sec.  
550.1622(b). We determined that the bar on retroactive corrections of a 
tour assignment should be limited to two scenarios: (1) Misapplication 
of the consistency requirement under the pay assignment continuity 
provision and (2) misapplication of the 10 percent limit (or authorized 
alternative limit) on the number of agents at a location with a Basic 
or Level 2 tour. The bar on retroactive correction does not apply if 
the error is related to fraud or misrepresentation on the part of the 
affected agent. These scenarios are defined as involving a tour 
assignment error that is an error in the actual scheduling of work, not 
just a payroll system error. Both of these scenarios involve 
mathematical computations in determining the appropriate tour 
assignment. Mathematical errors could go undetected for a long period 
and it would be disruptive to retroactively change a tour assignment 
under these circumstances. An erroneous tour assignment in connection 
with the percentage limitation described in Sec.  550.1614 could also 
be due to misapplication of selection procedures established under 
Sec.  550.1613. Under Sec.  550.1614, CBP could force one agent to have 
a Level 1 tour instead of a preferred shorter tour, while another agent 
would get a preferred shorter tour. If those tour assignments were 
incorrect due to a CBP error in applying selection procedures, the 
error would be corrected prospectively. However, CBP would not 
retroactively change the Level 1 tour assignment for the agent who 
worked that tour, nor would CBP retroactively change the other agent's 
preferred shorter tour to a Level 1 tour.
    Retroactive tour assignment corrections would be possible with 
respect to determinations regarding whether an agent should or should 
not be categorized as (1) a canine handler under Sec.  550.1611(f)(1), 
(2) unable to perform overtime on a daily basis under Sec.  
550.1611(f)(2), or (3) holding a headquarters or other position 
requiring a Basic tour under Sec.  550.1611(f)(3). Making 
determinations under these provisions is more straightforward, and tour 
assignments should be consistent with the agent's actual status. The 
retroactive correction could result in an agent being assigned a longer 
or a shorter tour.

Sec.  550.1621--Rules Governing Pay for Agents on Level 1 or 2 Tour

    A few commenters were concerned that an agent with a Level 1 or 2 
tour would accrue an overtime hours debt if the agent takes a full day 
of leave (e.g., annual, sick, or military leave). They believe it would 
be unfair to be required to make up for overtime hours associated with 
a day of leave.
    This concern is misplaced. The BPAPRA law and regulations provide 
that there is no accrual of an overtime hours debt on a day when an 
agent is on leave for the full 8-hour basic workday. By law, the 
obligation to work within-tour overtime on a regular workday (2 hours 
for Level 1, and 1 hour for level 2) applies only if the agent performs 
``work'' during the 8 hours of regular time on that same day. (See 
Sec.  550.1621(a)(3), (b)(3), and (e).)
    Another commenter expressed concern that pay received during paid 
leave would not include overtime pay. This commenter understood that 
there was no obligation to work overtime during a full-day of leave; 
however, he thought that the exclusion of those hours would affect the 
pay received during paid leave.
    This concern is also misplaced. An agent with a Level 1 or 2 tour 
will receive the applicable overtime supplement during periods of paid 
leave. An agent's overtime supplement (25 percent or 12.5 percent) is 
computed by multiplying the applicable percentage times the agent's 
hourly rate of basic pay and multiplying the result times the number of 
paid hours of regular time in the pay period (subject to the biweekly 
premium pay cap). (See Sec.  550.1621(a)(4) and (b)(4).) Paid hours of 
regular time would include any paid hours of leave during that time. 
Thus, for example, if an agent with a Level 1 tour is on paid leave for 
the full 80 hours of a biweekly pay period, the overtime supplement 
will equal 25 percent of the agent's biweekly rate of basic pay 
(subject to the biweekly premium pay cap). The fact that the agent does 
not have any obligated overtime hours during full days of paid leave 
has no effect on the computation of the overtime supplement, since the 
overtime supplement is based on the number of paid regular time hours.
    While a number of commenters were critical of the fact that BPAPRA 
provides the equivalent of ``straight pay'' (i.e., regular rate of pay 
with no overtime premium) for within-tour overtime through the payment 
of the overtime supplement, the commenters did not consider the added 
value of receiving overtime pay during periods of paid time off 
(including paid leave and paid holiday time off) when no overtime is 
worked. Based on available data, on average, a Federal employee might 
use about 340 hours of paid time off during a year. Thus, during the 
course of a year, a typical agent might receive extra pay equal to 25 
percent of his or her rate of basic pay for 340 hours, attributable to 
receiving credit for overtime pay during paid leave hours, which 
produces extra annual pay equal to about 4 percent of total annual 
basic pay. In addition, commenters did not recognize the added value of 
the overtime supplement being treated as retirement-creditable basic 
pay--a treatment that is contrary to normal retirement rules that 
exclude overtime pay from basic pay (5 U.S.C. 8331(3)). Based on the 
FERS normal cost

[[Page 58106]]

contribution rates, treating a 25 percent overtime supplement as 
retirement-creditable basic pay has a present value of about 7 percent 
of total annual basic pay.
    CBP expressed concern that the substitution of overtime hours for 
absences during the regular tour of duty might be misconstrued as 
supplanting the normal management functions related to approval of 
absences. CBP recommended that OPM confirm in the regulations that 
absences during the regular tour of duty (in particular, during 
obligated overtime hours) are subject to approval by the employee's 
supervisor.
    We do not believe we need to add anything to the regulations 
regarding the fact that absences during the basic workweek are subject 
to management approval under agency policies. (Management handling of 
absences is not specifically addressed in law or OPM regulations, but 
is left to agency policies established under the agency head's broad 
authority to manage agency employees under 5 U.S.C. 301-302.) The 
existence of a leave without pay substitution rule in 5 CFR 550.112(d) 
has never raised any issues regarding the need for management approval 
of absences during the basic workweek. However, we recognize that the 
concept of obligated overtime hours under the Border Patrol overtime 
program is new and unique. Therefore, to avoid any confusion, we are 
adding a paragraph (f) in Sec.  550.1621, which expressly states that 
any absence during obligated overtime hours is subject to management 
approval under CBP policies. This is consistent with the treatment of 
absences during the basic workweek.
    CBP expressed concern that, under the proposed regulations, an 
agent with a Level 1 or 2 tour could use 8 hours of compensatory time 
off during regular time and not have an overtime obligation on that 
same day, since an overtime obligation is triggered only when an agent 
performs ``work'' during regular time. CBP viewed this as essentially 
providing an agent with 10 hours of paid time off when the agent was 
charged for only 8 hours of compensatory time off. CBP offered the view 
that this outcome was contrary to BPAPRA section 2(f), which provides 
that nothing in the Act shall be ``construed to require compensation of 
a border patrol agent for hours during which the border patrol agent is 
actually performing work or using approved paid leave or other paid 
time off''--since it believed the language in 5 U.S.C. 5542(g)(5)(C) 
could be interpreted to mean that compensatory time off is not ``paid 
time off.'' CBP also asserted that providing 10 hours of paid time off 
for 8 hours of compensatory time off was in conflict with 5 U.S.C. 
5542(g)(5)(D), which precludes an agent from receiving ``any cash 
value'' for compensatory time off, and with 5 U.S.C. 5542(g)(1)(B)(ii) 
and (g)(2)(B)(ii), which provide that an agent receives compensatory 
time off for an equal amount of irregular overtime work. CBP 
recommended that OPM revise its regulations in Sec.  550.1621 to 
provide that usage of compensatory time off constitutes ``work'' in 
applying Sec.  550.1621(a)(3) and (b)(3) similar to the way that OPM 
provided that union ``official time'' is work for that purpose. (See 
Sec.  550.1621(e).)
    We do not agree with CBP's analysis or its recommendation. Use of 
compensatory time off excuses an agent from duty only during regular 
time (i.e., the 8-hour basic workday). An agent is getting 8 hours of 
paid time off in exchange for using 8 hours of compensatory time off. 
The rule in question--providing that an agent with a Level 1 or 2 tour 
has a within-tour overtime obligation only on a day on which the agent 
performs work during regular time--deals with the overtime supplement 
and the hours obligations associated with that supplement. The overtime 
supplement is not paid on an hour-for-hour basis, but is paid for a set 
of ``obligated overtime hours'' where the obligation accrues under 
specific conditions. The number of obligated overtime hours can vary 
pay period to pay period. For example, for an agent with a Level 1 
tour, the number of obligated overtime hours in a biweekly pay period 
may range anywhere from 0 to 20 hours. The rule that an overtime 
obligation is created only when an agent with a Level 1 or 2 tour 
performs work provides a benefit to agents within the new overtime 
program--a benefit which has a monetary value, as discussed in the 
above paragraph responding to criticisms that the overtime supplement 
effectively provides straight rate compensation.
    Our regulations treat usage of compensatory time off in the same 
manner they treat annual leave or other paid time off. If an agent with 
a Level 1 tour has a full day (8 hours) of annual leave, the obligation 
to perform 2 hours of within-tour overtime does not accrue. We don't 
view this as giving the agent 10 hours of annual leave. Rather, we are 
just applying BPAPRA's rules regarding the overtime supplement and the 
associated hours obligations. Likewise, when an agent has 8 hours of 
holiday time off, we don't view the agent as receiving 10 hours of 
holiday time off merely because there are no obligated overtime hours 
on that day. The same logic applies to compensatory time off. We see no 
basis under the law for treating compensatory time off differently than 
other types of paid time off. (We understand CBP's policy perspective 
that it is inappropriate to allow agents to work irregular overtime 
hours and earn compensatory time off and then to bundle those 
compensatory time off hours in a way that reduces within-tour overtime 
obligations. However, we believe a law change would be needed to 
achieve CBP's desired policy. For example, Congress could revise BPAPRA 
to specifically provide that the normal overtime obligation will accrue 
on any day when an agent uses any amount of compensatory time off.)
    Under 5 U.S.C. 5550(b)(2)(A)(ii) and (3)(A)(ii), the within-tour 
overtime hours obligation accrues only if the employee ``performs 
work'' during regular time on that day. In our view, the term ``work'' 
cannot reasonably be interpreted to include use of compensatory time 
off which allows an employee to be excused from duty. In contrast, 
union ``official time'' under 5 U.S.C. 7131 involves specific 
activities that Congress has deemed to support Government objectives. 
While using official time, an employee is in a special duty status and 
is accountable for the time, not excused from all duty. Thus, official 
time has always been treated as work time for various purposes, 
including the application of overtime thresholds.
    We do not interpret 5 U.S.C. 5542(g)(5)(C) as meaning that 
compensatory time off is not paid time off. That provision states: 
``[the agent] shall be required to use 1 hour of compensatory time off 
for each hour of regular time not worked for which the border patrol 
agent is not on paid leave or other paid time off.'' CBP believes that 
the word ``other'' implies that compensatory time off is not paid time 
off. We believe it is clear that this provision is simply stating that 
compensatory time off is used in place of time not worked when other 
paid time off is not being used.
    We do not believe that 5 U.S.C. 5542(g)(5)(D) is in conflict with 
the proposed regulations. The language stating that an employee is not 
``entitled to any cash value'' for compensatory time off clearly refers 
to unused compensatory time off, since the use of compensatory time off 
generates basic pay. (See implementing regulation at Sec.  
550.1625(h).) Moreover, as explained above, the rule providing that an 
overtime obligation does not accrue

[[Page 58107]]

when no work is performed during regular time is not an application of 
compensatory time off against an overtime hours debt. There is no 
overtime hours debt if the agent performs no work during regular time 
on the same day. Thus, while unused compensatory time off may be 
applied (not used) against an overtime hours debt, there is no such 
application in the absence of such a debt.
    We do not view 5 U.S.C. 5542(g)(1)(B)(ii) and (g)(2)(B)(ii) as 
relevant. Those clauses provide that an agent receives compensatory 
time off for an equal amount of irregular overtime work. In other 
words, they deal with the earning of compensatory time off, not its 
usage. OPM regulation at Sec.  550.1625(b) implements the hour-for-hour 
earning requirement. Section 5542(g)(5)(C) deals with usage and 
requires that 1 hour of compensatory time off be used for each hour of 
``regular time'' not worked. That is exactly what OPM's regulation at 
Sec.  550.1625(g) provides, and the fact that an agent has no overtime 
obligation on a day when he or she uses compensatory time off during 8 
hours of regular time is not inconsistent with that requirement. The 
removal of an overtime obligation by operation of 5 U.S.C. 
5550(b)(2)(A)(ii) and (3)(A)(ii) is not the same as using compensatory 
time off. By definition, compensatory time off may be used only during 
regular time. (As explained above, compensatory time off may be applied 
against an overtime hours debt, but only if the debt exists.)

Sec.  550.1622--Canine Handlers

    Two individual commenters questioned whether Border Patrol agents 
would receive 1 hour of regularly scheduled overtime work for providing 
canine care on a scheduled day off under proposed Sec.  550.1622(c).
    Under both the law and proposed Sec.  550.1622(c), Border Patrol 
agents do not receive additional pay beyond the 25 percent overtime 
supplement for canine care duties performed on a scheduled day off. 
BPAPRA expressly addresses how Border Patrol agents are compensated for 
canine care duties. BPAPRA states that any canine care provided by an 
agent, without regard to the actual duration or ``whether such care 
occurs on the regular workday,'' is counted as 1 hour of scheduled 
overtime within the agent's regular tour of duty (5 U.S.C. 
5550(b)(1)(F)(ii)). Thus, 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 scheduled overtime for canine 
care on each regular workday. Thus, these credited hours count toward 
the within-tour overtime obligation associated with a Level 1 tour and 
the corresponding 25 percent overtime supplement.
    NBPC also commented on proposed Sec.  550.1622(c). NBPC expressed 
concern that, if a Border Patrol agent is temporarily relieved of 
canine care duties, he or she could see a diminution in pay under 
proposed Sec.  550.1622(c).
    Based on NBPC's comment, we are revising proposed Sec.  550.1611(e) 
and proposed Sec.  550.1612(d) to clarify how a change in an agent's 
circumstances (in relation to Sec.  550.1611(f) or Sec.  550.1622) 
during the annual period affects the agent's assigned tour. We are also 
adding a paragraph (2) to in Sec.  550.1622(c) to further clarify what 
tour of duty applies to an agent who is temporarily relieved of canine 
care duties. Under revised Sec.  550.1611(e), we provide that an annual 
election superseded by operation of the superseding provisions of Sec.  
550.1611(f) or Sec.  550.1622 remains the default election in the event 
there is a change in the circumstances that triggered application of 
those superseding provisions. Thus, while Sec.  550.1611(f)(1) states 
that ``an agent who is assigned canine care duties must be assigned a 
Level 1 regular tour of duty,'' the agent's annual election remains the 
default election made under Sec.  550.1611(c) or (d) if Sec.  
550.1611(f)(1) ceases to be applicable during the annual period. In 
revised Sec.  550.1612(d), we further clarify that CBP may change an 
agent's tour of duty based on a change in circumstances, such as being 
temporarily relieved of canine care duties, during the annual period. 
The circumstances in Sec. Sec.  550.1611(f) and 550.1622 could become 
applicable during the annual period or could cease to be applicable 
during the annual period. In either case, the affected agent's assigned 
tour would be changed accordingly.
    Further, we are adding a paragraph (2) to Sec.  550.1622(c) to make 
clear that when an agent is temporarily relieved of canine care duties 
for more than 2 full pay periods, the agent's tour of duty will 
automatically revert to his or her default election under Sec.  
550.1611(c) or (d). For example, consider a Border Patrol agent with 
canine care duties who had elected a Level 2 tour when making an annual 
election, but who now has a Level 1 tour based on application of Sec.  
550.1611(f)(1). If the agent is temporarily relieved of his or her 
canine care duties for more than 2 full pay periods during the annual 
period, the agent's tour of duty will revert to default election (Level 
2 tour of duty) made under Sec.  550.1611(c) or (d). The agent will 
return to a Level 1 tour under Sec.  550.1611(f)(1) when resuming 
canine care responsibilities. Further, paragraph (2) of Sec.  
550.1622(c) states that, when an agent is temporarily relieved of 
canine care duties for a time period shorter than 2 full pay periods, 
he or she may either remain at the Level 1 tour with a 25 percent 
overtime or temporarily return to his or her default election for the 
annual period under Sec.  550.1611(c) or (d). Note that, if an agent 
remains at the Level 1 tour while temporarily relieved of canine care 
duties, he or she does not receive the 1 hour of regularly scheduled 
overtime canine care credit and must work 2 hours of regularly 
scheduled overtime for each day on which the agent performs work during 
regular time.
    NBPC further commented that OPM should add clarifying language in 
Sec.  550.1622(c) to make clear that canine handlers will always be 
assigned to a Level 1 tour regardless of pay assignment continuity.
    We disagree. As stated previously concerning NBPC's comment on 
proposed Sec.  550.1614(d), OPM's regulations rely on express language 
in the BPAPRA stating that, ``notwithstanding any other provision of 
law,'' CBP ``may take such action as is necessary'' to implement the 
pay assignment continuity plan, including the unilateral assignment of 
agents to any of three tours (5 U.S.C. 5550(b)(1)(G)(ii)). Thus, in 
Sec.  550.1611(f)(5), we provide that the pay assignment continuity 
provision will take precedence over tour assignments that would 
otherwise be made under paragraphs (f)(1)-(4) (where paragraph (f)(1) 
addresses canine handlers). The purpose of the pay assignment 
continuity provision is to protect the retirement fund. In order to 
provide that protection, an agent's tour assignments during his or her 
control period must be consistent with the agent's career average 
overtime supplement percentage. It would be detrimental to the 
retirement fund and to principles of equity if an agent could 
circumvent the career average consistency requirement by obtaining a 
canine handler position. Therefore, we are not revising proposed Sec.  
550.1622(c) or the related regulation at Sec.  550.1611(f)(5).

Sec.  550.1625--Irregular Overtime and Compensatory Time Off

    Two individuals objected to the rules governing compensatory time 
off, including the biweekly 10-hour limit on earning compensatory time 
off and 26

[[Page 58108]]

pay period time limit on using compensatory time off.
    The rules cited by the two individuals are statutory, and OPM has 
no authority to revise them by regulation. (See 5 U.S.C. 5542(g)(4) and 
(5).)
    An individual commented that OPM regulations should require that 
compensatory time off be treated in the same manner as annual leave 
(i.e., a right vs. a privilege) to ensure that agents are allowed to 
use the compensatory time off they earn before expiration of the 26-
pay-period time limit on using such time off.
    The exact timing regarding when compensatory time off is used is 
subject to management approval. The same rule applies to annual leave. 
Just as OPM has not issued specific regulations regarding when an 
agency may deny an employee's request to use annual leave at a 
particular time, we are not issuing specific regulations regarding when 
a Border Patrol agent's request to use compensatory time off at a 
particular time may be denied. We expect CBP will issue supplemental 
guidance to address such matters.
    NBPC commented that, for the purpose of applying the premium pay 
cap, compensatory time off should be assigned a value based on the 
agent's hourly rate of basic pay. NBPC stated this would be more 
consistent with Congressional intent than the approach in the proposed 
regulations.
    In the proposed regulations at Sec.  550.1625(d), we provided that, 
for the purpose of applying the premium pay cap under 5 U.S.C. 5547, 
Border Patrol compensatory time off hours would be assigned a dollar 
value based on the overtime pay that would have been payable if the 
hours had been regularly scheduled outside the agent's tour. This is 
consistent with the treatment of compensatory time off earned under the 
title 5 provision (5 U.S.C. 5543) that applies to most Federal 
employees. The definition of ``premium pay'' in 5 CFR 550.103 states 
that it includes the dollar value of earned hours of compensatory time 
off, and that value is set in 5 CFR 550.114(g) as the amount of 
``overtime pay'' the employee would have otherwise received. Thus, we 
have a long-established precedent for computing the value of 
compensatory time off at an overtime rate for the purpose of applying 
the premium pay cap. Congress reflected its knowledge of the existing 
OPM regulations when it specifically provided in BPAPRA that the value 
of Border Patrol compensatory time off must be counted in applying the 
premium pay cap (5 U.S.C. 5542(g)(5)(F); see also BPAPRA section 
2(f)(3)). In exercising its broad regulatory authority under 5 U.S.C. 
5548 and BPAPRA section 2(h), OPM has chosen to be consistent with its 
longstanding regulations and assign the value of Border Patrol 
compensatory time off based on an overtime rate. We decline to make the 
change recommended by NBPC.

Sec.  550.1626--Absences During the Regular Tour of Duty

    Two commenters asked how long an agent has to repay an overtime 
hours debt resulting from absences during obligated overtime hours.
    Our regulations do not mandate a specific time limit for repaying 
an overtime hours debt. However, the law and the regulations require 
that any unused compensatory time off and future outside-tour overtime 
work must be automatically applied against the debt. Since CBP has 
authority to assign outside-tour overtime work, it has the ability to 
ensure that an employee's debt is being eliminated over a reasonable 
period of time. The absence of a regulatory time limit does not 
preclude CBP from establishing a time limit by agency policy, but the 
enforcement mechanism would be for CBP to order the agent to perform 
outside-tour overtime work. Under the regulations, CBP does not have 
authority to require a monetary repayment until movement to a non-agent 
position or separation (including separation upon death). (See Sec.  
550.1626(d).)
    An individual recommended revising Sec.  550.1626(d) to allow an 
agent's positive balances of certain other types of paid time off 
(i.e., annual leave and sick leave, but not military leave) to be 
applied against an overtime hours debt at the end of each year. The 
individual stated that this would prevent an excessive amount of debt 
from accruing over the course of a career and being payable upon 
retirement.
    As explained above, CBP has authority to assign outside-tour 
overtime work and thereby prevent an excessive debt of overtime hours. 
We are not inclined to take the step of requiring liquidation of the 
debt at the end of each year. This matter could be revisited after we 
have a chance to see how the program is working. However, we agree 
partially with the commenter's suggestion that an agent's positive 
balances of certain paid time off should be applied to offset any debt 
of overtime hours before converting the hours to a monetary debt. We 
are revising Sec.  550.1626(d) to require that, at movement to a non-
agent position or separation, any positive balance of annual leave, 
time-off awards, or compensatory time off for travel be applied to 
reduce the hours debt before it is converted to a monetary debt. We are 
including only types of accrued paid time off that can be used for any 
purpose. Thus, we did not include sick leave, military leave, or 
religious compensatory time off.
    CBP commented that there should be a cap on the overtime hours debt 
such as 80 hours. CBP suggested that an agent who reached the debt 
limit would be automatically assigned a Basic tour based on a finding 
that the agent was unable to perform overtime on a daily basis (Sec.  
550.1611(f)(2)).
    We do not agree that a regulatory limit on the number of overtime 
debt hours should be established. As explained in our above responses 
to comments about the idea of time limits on eliminating an overtime 
hours debt, CBP has authority to assign outside-tour overtime work and 
thereby prevent an excessive debt of overtime hours. CBP also has 
authority to make a determination that an agent is unable to perform 
overtime on a daily basis, which would place the agent on a Basic tour 
with no within-tour overtime and prevent adding to an overtime hours 
debt going forward. Such a determination should be based on the agent's 
ability to work, not on a mathematical rule. CBP also has authority to 
disapprove an agent's request to be absent during obligated overtime 
hours and to take appropriate disciplinary action if an agent is absent 
without approval.
    CBP commented that the regulations should not allow agents to 
receive compensation for hours substituted for periods of suspension or 
absence without leave approval (AWOL), since it would provide cash 
value for compensatory time off (earned by working irregular overtime 
hours). CBP cited 5 U.S.C. 5542(g)(5)(D), which provides that an agent 
``shall not be entitled to any cash value for compensatory time off 
earned under section 5550.''
    We do not agree with CBP's position. The substitution of outside-
tour overtime hours is merely a device to implement overtime hours 
thresholds. In other words, substitution recognizes that, due to a 
period of nonpay status, an outside-tour hour cannot be treated as an 
overtime hour for pay purposes, since the hours are below the overtime 
threshold. Under 5 U.S.C. 5550(f), substitution of outside-tour 
overtime hours for ``leave without pay'' is required, and the term 
``leave without pay'' includes all periods of nonpay status. (See 
definition in Sec.  550.1603, which is consistent with OPM's 
longstanding application of the leave without pay substitution rule in 
5 CFR

[[Page 58109]]

550.112(d), as necessary to ensure proper application of overtime 
thresholds.) The substitution of an irregular overtime hour is done 
before creating compensatory time off hours. Section 5550(f)(1)(A)(ii) 
states that an hour substituted for a leave without pay hour ``shall 
not be credited as overtime hours for any purpose.'' Thus, an outside-
tour overtime hour that would otherwise be an irregular overtime hour 
loses its character as an overtime hour for any purpose, including the 
provisions regarding the conversion of irregular overtime hours to 
compensatory time off hours. OPM's regulation at Sec.  550.1626(a) 
states that an hour substituted for leave without pay may not be 
considered to be an overtime hour for any purpose, and specifically 
cites Sec.  550.1625, which is the section dealing with compensatory 
time off.
    Thus, section 5542(g)(5)(D) is not violated by the substitution of 
what would otherwise be an irregular overtime hour for leave without 
pay. If used in substitution, the irregularly scheduled outside-tour 
hour is not treated as an overtime hour and cannot be converted to a 
compensatory time off hour. Since it is never a compensatory time off 
hour, there is no violation of the rule that no cash value be provided 
for a compensatory time off hour. (In any event, as we have explained 
above, OPM interprets section 5542(g)(5)(D) as barring cash payments 
for unused compensatory time off, since use of compensatory time off 
necessarily generates basic pay.)
    We understand CBP's concern to be that agents appear to be 
receiving compensation for suspension and AWOL through substitution of 
other hours of work. But, again substitution is merely a device to 
ensure that overtime thresholds are being applied and that overtime pay 
is not provided for hours below the overtime threshold. A suspension or 
AWOL hour (or any other type of leave without pay) is not actually 
generating any compensation. Compensation is generated by the hour that 
is being substituted for the nonpay status hour. The nonpay status 
still has the effect of reducing pay for the pay period.
    If CBP's concern is that an employee who is suspended or placed in 
AWOL status may have an accrued balance of compensatory time off (based 
on irregular overtime hours worked in a previous pay period) and that 
such compensatory time off may be used during a period of suspension or 
AWOL, that concern is misplaced. There is no authority to use 
compensatory time off during a period of suspension or AWOL. The 
designation of a period of time as a period of suspension or AWOL 
precludes use of any other type of time off.

Sec.  550.1632--Hazardous Duty Pay

    One commenter requested that OPM specifically detail when an agent 
would be eligible to earn hazardous duty pay.
    As provided in Sec.  550.1632, agents are eligible for hazardous 
duty pay, subject to the requirements of 5 U.S.C. 5545(d) and subpart I 
of this part. An agent is eligible for hazardous duty pay if he or she 
meets the statutory and regulatory requirements as applicable to a 
specific set of circumstances. We are not amending proposed Sec.  
550.1632, since hazardous duty pay is addressed in subpart I.

Sec.  550.1633--Treatment of Overtime Supplement as Basic Pay

    NBPC commented that OPM should clarify that the Level 1 or Level 2 
overtime supplement is considered ``premium pay'' for workers' 
compensation purposes. NBPC noted the BPAPRA statute clearly addressed 
this.
    We agree that the treatment of the overtime supplement for workers' 
compensation purposes is addressed in law at 5 U.S.C. 5550(d), where 
the workers' compensation provision in title 5 (section 8114(e)) is 
referenced. Section 5550(d) provides that the overtime supplement is 
``basic pay'' (not premium pay) for purposes of applying the workers' 
compensation law. OPM regulations address this in Sec.  550.1633(c). No 
further clarification is needed.

Sec.  550.1635--Alternative Work Schedules

    NBPC provided comments in opposition to proposed Sec.  550.1635 
prohibiting Border Patrol agents from having a flexible or compressed 
work schedule under 5 U.S.C. chapter 61, subchapter II. NBPC commented 
that both BPAPRA and the committee report were silent in regards to 
whether an employee could work an alternative work schedule and do not 
expressly exclude it. NBPC stated that OPM should not bar the ability 
of the NBPC to negotiate for alternative work schedules on behalf of 
its members. NBPC conceded that while BPAPRA does say that agents 
working the three types of regular tours of duty ``shall have a regular 
tour of duty consisting of 5 workdays per week,'' it also states that 
nothing shall ``be construed to limit the right of U.S. Customs and 
Border Protection to assign both scheduled and unscheduled work to a 
border patrol agent based on the needs of U.S. Customs and Border 
Protection.'' NBPC suggests that by limiting agents to 8 hour daily 
tours, Sec.  550.1635 would limit the right of CBP to schedule work as 
needed. NBPC states that recent legal interpretations of the word 
``shall'' have also shown that an employer is not required to follow a 
certain provision, but instead has a choice of whether or not to do so. 
NBPC suggests that the term ``shall'' in BPAPRA should be read in a 
similar manner. NBPC further commented that BPAPRA does not rescind the 
title 5 provisions in subchapter II or chapter 61 that permits 
compressed work schedules.
    Several individuals also provided comments in opposition to the 
proposed Sec.  550.1635. Several individual commenters specifically 
mentioned CBP's Overtime Transitional Plan which has allowed Border 
Patrol agents to work compressed work schedules. Other commenters 
stated that allowing agents to work a compressed work schedule would 
boost the morale of the agents. Several commenters suggested that a 
compressed work scheduled would allow better coverage of shifts by 
allowing supervisors to schedule all agents to work 10 hours. Both NBPC 
and several commenters suggest OPM's regulations permit alternative 
work schedules, particularly a compressed work schedule.
    We disagree with the commenters and are making no changes to 
proposed Sec.  550.1635. We believe the clear language of BPAPRA does 
not allow a Border Patrol agent to have a flexible or compressed work 
schedule under 5 U.S.C. chapter 61, subchapter II. BPAPRA states that 
all Border Patrol agents ``shall'' have a regular tour of duty 
consisting of 5 workdays per week with an 8 hour regular tour of duty 
and either zero, one, or two hours of regularly scheduled overtime per 
day depending upon the employee election. We believe that word 
``shall'' in BPAPRA is both clear and unambiguous. We also do not 
believe that Sec.  550.1635 limits the ability of CBP to assign work. 
CBP may still assign Border Patrol agents to perform work as necessary, 
including additional irregular and regularly scheduled overtime hours. 
The flexibility to assign scheduled tours of duty linked to the 
overtime supplement is limited to the options provided under the law. 
Further, while CBP's Overtime Transitional Plan may have allowed Border 
Patrol agents to work compressed work schedules, the clear language of 
BPAPRA does not permit agents to work compressed work schedules. 
Similarly, any potential improvement in employee morale via alternative 
work schedules cannot

[[Page 58110]]

overcome the clear language of BPAPRA barring their usage.
    NBPC's comments cite a court case, Abbey v. United States, 745 F.3d 
1363 (Fed. Cir. 2014), to support its position that the word ``shall'' 
can be interpreted to mean ``may'' (not necessarily required). As a 
general principle, the use of ``shall'' in statute means ``must.'' The 
Abbey case involved a specific set of circumstances that are not 
applicable in interpreting BPAPRA. BPAPRA expressly provides that 
Border Patrol agents ``shall'' have one of three types of fixed regular 
tours of duty. BPAPRA links a specific rate of pay to a specific 
regular tour of duty with fixed number of hours each regular workday as 
an absolute and mandatory requirement. Any flexibility CBP has with 
respect to regular tours of duty is in choosing which tour to assign to 
which employee, not in changing the nature of the tour itself.
    We also note that the laws governing flexible and compressed work 
schedules include special rules related to overtime hours, compensatory 
time off, and night pay that are inconsistent with the BPAPRA rules, 
and Congress did not amend chapter 61 to address those inconsistencies, 
indicating that Congress did not intend for chapter 61 to be 
applicable. For example, section 6123(a)(1) provides that, for 
employees with a flexible work schedule, an agency head may grant 
compensatory time off for regularly scheduled overtime hours 
notwithstanding any other provision of law; however, section 5542(g) 
(as added by BPAPRA) provides that agents must be paid for regularly 
scheduled overtime and can receive compensatory time off only for 
irregular overtime hours.

Sec.  550.1636--Exemption From Fair Labor Standards Act

    Several commenters generally opposed Border Patrol agents being 
exempt from the minimum wage and overtime provisions of the Fair labor 
Standards Act (FLSA) under proposed Sec.  550.1636. One individual 
stated that agents were being treated differently than other law 
enforcement officers and requested that agents be eligible for FLSA 
overtime pay. Another commenter suggested that exempting agents from 
the minimum wage and overtime provisions of the FLSA was contrary to 
labor laws of the United States. Another commenter stated the CBP 
officers receive better pay than Border Patrol agents and work shorter 
hours and questioned the fairness of Border Patrol agents being exempt 
under the FLSA. Several commenters requested that OPM's proposed 
regulations be amended to allow Border Patrol agents to remain eligible 
for the wage and overtime provisions of the FLSA.
    We are not amending proposed Sec.  550.1636. BPAPRA specifically 
provides that the minimum wage and overtime provisions of the FLSA are 
not applicable to Border Patrol agents.

Sec.  550.1637--Travel Time

    One individual provided a comment in opposition to an agent's 
travel time not being considered hours of work and stated that agents, 
while traveling, continue to carry their firearm and are prepared to 
perform their law enforcement functions should the situation arise. The 
individual recommended that any travel time by an agent be considered 
hours of work.
    We disagree. Certain travel time is considered hours of work under 
Sec.  550.112(g). However, we do not agree that carrying a firearm and 
being prepared to perform law enforcement functions constitute the 
performance of actual work by an agent while traveling. We are not 
amending proposed Sec.  550.1637.

Sec.  550.1638--Official Time

    NBPC commented that the requirement that agents serving as union 
representatives perform agency work during any period of regularly 
scheduled overtime is impractical and ``makes little operational 
sense'' because agents are normally deployed in the field ``often more 
than an hour away from the station.'' The union stated that it believes 
the regulations should be amended to make clear that scheduled overtime 
may be either official time or agency work in the field, or that the 
regulations should allow agents to work on average one day in the field 
per week to fulfill the overtime requirement.
    We understand this comment to mean that, for example, an agent 
could request a weekly schedule consisting of four days with a 10-hour 
daily basic work requirement and a fifth day containing 10 within-tour 
overtime hours. However, such a schedule does not comply with any of 
the three schedules allowed under BPAPRA, since those schedules require 
an 8-hour basic workday with a fixed amount of within-tour overtime 
each workday (one within-tour overtime hour under Level 2 or two 
within-tour overtime hours under Level 1). (See the section of this 
Supplementary Information addressing Sec.  550.1635, which further 
addresses issues related to alternative work schedules.)
    A schedule of the type requested by the NBPC comment cannot be 
accommodated in these regulations and, further, it is required that 
agency work be conducted during periods of overtime. Nevertheless, we 
acknowledge the unique operational environment at CBP and balance it 
with these constraints. In response to the NBPC comment on this topic, 
along with its comments on Sec.  550.1603 (which are further addressed 
in the section of the Supplementary Information addressing Sec.  
550.1603), we have made some clarifying modifications to Sec.  
550.1638. The final regulation provides additional clarification 
regarding the specific circumstances under which agents may engage in 
representational work while in an obligated overtime status. In 
addition, the final regulation makes clear that when CBP determines an 
agent's official time duties during the basic workday make it 
impracticable to perform agency work during scheduled obligated 
overtime hours, and CBP excuses the agent from working those hours as a 
result, the agent will accrue an overtime hours debt. CBP would then 
provide the agent with an opportunity to eliminate the resulting 
overtime hours debt by performing agency work outside the agent's 
regular tour of duty at another time. In addition to this opportunity, 
we note that an agent may opt to eliminate an overtime hours debt by 
substituting available compensatory time off that the agent has earned 
in the past.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and E.O. 12866.

Regulatory Flexibility Act

    I certify that these 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.


[[Page 58111]]


U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    For the reasons stated in the preamble, OPM is amending 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 (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).
* * * * *

0
5. In Sec.  550.107, remove ``and'' at the end of paragraph (a)(3), 
remove the period at the end of paragraph (a)(4) and add in its place 
``; and'', and add paragraph (a)(5).
    The addition reads as follows:


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, add the designation ``(a)'' at the beginning of 
the existing paragraph 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).
    The additions reads 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)).

[[Page 58112]]

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).
    The addition reads 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 ``compensatory 
time off earned under 5 U.S.C. 5543 and Sec.  550.114(d) or Sec.  
551.531(d) of this chapter'' and adding in its place ``unused 
compensatory time off earned under 5 U.S.C. 5543 and Sec.  550.114(d) 
or Sec.  551.531(d) or under 5 U.S.C. 5542(g) and Sec.  550.1625''.


0
16. In Sec.  550.1205, remove ``; and'' at the end of paragraph 
(b)(5)(ii) and add a period in its place and add paragraph (b)(5)(iv).
    The addition reads 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 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.
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 nonovertime hours 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.

[[Page 58113]]

    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). For an agent with a Basic 
regular tour of duty, the overtime supplement is 0 percent.
    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 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 (Public Law 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

[[Page 58114]]

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 for the annual period (i.e., deemed 
election) with a 25 percent overtime supplement, except as otherwise 
provided in paragraph (f) of this section or Sec.  550.1622.
    (e) Effect of agent election. CBP must assign an agent the regular 
tour of duty elected by the agent under paragraph (c) or (d) of this 
section unless CBP informs the agent of an alternative assignment, as 
provided under paragraph (f) of this section or Sec.  550.1622. CBP may 
change the assignment during the annual period, as provided under Sec.  
550.1612(d). An annual election under paragraph (c) or (d) of this 
section that is superseded as provided under paragraph (f) of this 
section or Sec.  550.1622 remains as the default election in the event 
that the superseding circumstances cease to be applicable, subject to 
Sec.  550.1612(d).
    (f) Management assignment to tour. CBP may assign a different 
regular tour of duty than that elected by the agent under paragraph (c) 
or (d) of this section 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, subject to the 
rules in Sec.  550.1612(e);
    (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 position that CBP has 
determined to be an 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 (Public 
Law 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).
    (g) Temporary detail. If an agent is serving in a position under a 
temporary detail, that position may not be considered, for the purpose 
of applying paragraph (f)(3) of this section, to be the position held 
by the agent during the first 90 days of the detail. After completing 
90 days under a temporary detail, an agent will be considered, for the 
purpose of applying paragraph (f)(3) of this section, to hold the 
position to which temporarily detailed for the remainder of the detail, 
notwithstanding the agent's official position of record.


Sec.  550.1612  Assignments made at other times.

    (a) Initial training period. 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) Election by new agent. 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 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) Belated election for new agent's first annual period. 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) Change in tour during annual period. CBP may change an agent's 
assigned regular tour of duty during an annual period based on a change 
in the circumstances described in Sec.  550.1611(f) or in 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). As provided in Sec.  550.1611(e), an annual election 
under Sec.  550.1611(c) or (d) that is superseded by operation of Sec.  
550.1611(f) or Sec.  550.1622 remains as the default election and 
becomes effective in the event that Sec.  550.1611(f) or Sec.  550.1622 
ceases to be applicable. A tour change under this paragraph is 
effective with the change in circumstances, as determined by CBP, 
except as otherwise provided in paragraph (e)(2) of this section and 
Sec.  550.1622(c)(2).
    (e) Inability determination and effective date of tour change. The 
action to assign a Basic regular tour of duty based on a determination 
that an agent is unable to perform overtime on a daily basis under 
Sec.  550.1611(f)(2) is subject to the following rules:
    (1) The inability determination may be made--
    (i) When an agent's law enforcement authority is revoked (e.g., in 
connection with an investigation, loss of security clearance, or a 
suspension);
    (ii) When an agent is unable to perform overtime duties for an 
extended

[[Page 58115]]

period due to physical or health reasons; or
    (iii) For any other appropriate reason, as determined by CBP, but 
excluding inability based on lack of work (as opposed to inability 
based on the employee's availability).
    (2) The change to a Basic regular tour of duty is effective on the 
next workday following a CBP inability determination, except that--
    (i) CBP may delay the effective date to coincide with the beginning 
of a week or a biweekly pay period;
    (ii) CBP may delay the effective date as necessary to allow an 
agent who is able to work during regular time to exhaust a positive 
balance of unused compensatory time off (by applying that balance 
against the newly accruing overtime hours debt resulting from work 
during regular time);
    (iii) CBP may delay the effective date as necessary to allow an 
agent to use accrued paid leave or other paid time off if the agent 
will be performing no work during regular time for a continuous period;
    (iv) CBP may delay the effective date during a continuous period of 
leave without pay granted under 5 U.S.C. chapter 63, subchapter V 
(dealing with family and medical leave); and
    (v) CBP must delay the effective date during any period of paid 
leave, continuation of pay, or leave without pay granted in connection 
with application of 5 U.S.C. chapter 81 (dealing with workers' 
compensation due to a job-related injury).


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 purpose of this plan is to 
protect the retirement fund and 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, the career 
average overtime supplement percentage for an agent is the greater of--
    (i) The average of overtime supplement percentages (25 percent, 
12.5 percent, or 0 percent) assigned during service as an agent on or 
after January 10, 2016, that is prior to the beginning of the agent's 
control period (as specified in paragraph (b) of this section); or
    (ii) The average of the overtime supplement percentages during all 
service as an agent that is prior to the beginning of the agent's 
control period (as specified in paragraph (b) of this section), with 
assigned overtime supplement percentages (25, 12.5, or 0 percent) 
assigned during service on or after January 10, 2016, and with assigned 
percentages of administratively uncontrollable overtime under 5 U.S.C. 
5545(c)(2) treated as overtime supplement percentages for any period of 
service prior to January 10, 2016.
    (3) In applying paragraph (a)(2) of this section, the assigned 
overtime supplement percentage is used regardless of whether or not the 
payable amount of the overtime supplement is limited by a premium pay 
cap.
    (4) In applying paragraph (a)(2) of this section, if an agent's 
control period begins on January 10, 2016, as provided in paragraph 
(b), the agent's initially assigned overtime supplement percentage must 
be considered the agent's career average under paragraph (a)(2)(i).
    (b) Control period. The period of time during which CBP must 
control an agent's assignment to a regular tour of duty (i.e., the 
control period) 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. 
If, as of January 10, 2016, the date that is 3 years before the agent 
first met age and service requirements for an immediate retirement has 
already passed, then the agent's control period is considered to have 
begun on January 10, 2016.
    (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

[[Page 58116]]

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 if 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 described in paragraph (a) of this section, 
notwithstanding any other provision of law or this subpart, 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. Before exercising 
the authority to allow assignment of a regular tour of duty that does 
not comply with the plan described in paragraph (a) of this section, 
CBP must first determine that it cannot adequately address the specific 
operational requirements in question by other means, such as the 
assignment of overtime work outside the regular tour of duty to the 
affected agent or other agents. If this authority is exercised, CBP 
must return an affected agent to a regular tour of duty that complies 
with the plan described in paragraph (a) of this section as soon as 
possible.
    (e) Reporting requirements--(1) Annual data reporting for agents 
within their control period. 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. Consistent with Sec.  550.1616(b), 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.

    (a) Except at provided in paragraph (b) of this section, an error 
made in connection with the assignment of an agent's regular tour of 
duty (including any associated overtime supplement) must be corrected 
as soon as possible.
    (b) A retroactive correction of a tour assignment (i.e., actual 
assigned work schedule as opposed to an error in the payroll system) 
may not be made in the following circumstances, unless CBP determines 
there exists, in connection with an agent's assigned tour, evidence of 
fraud, misrepresentation, fault, or lack of good faith on the part of 
the affected agent:
    (1) Correction of an error in applying the consistency requirement 
described in Sec. Sec.  550.1611(f)(5) and 550.1615; and
    (2) Correction of an error that caused an employee to have a Level 
1 regular tour of duty based solely on misapplication of the applicable 
percentage limitation described in Sec. Sec.  550.1611(f)(4) and 
550.1614.

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

[[Page 58117]]

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:
    (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.
    (f) Approval of absences. Any absence during obligated overtime 
hours (as described in paragraphs (a)(8) and (b)(8) of this section) is 
subject to management approval under CBP policies.


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

[[Page 58118]]

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. (1) 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 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.
    (2) 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. If the 
period during which the agent is temporarily relieved from providing 
canine care lasts more than two full pay periods, CBP must assign the 
agent's tour based on the agent's default election for the annual 
period as provided in Sec.  550.1611(c) or (d) unless other 
circumstances described in paragraph (f) of Sec.  550.1611 are 
applicable. For shorter periods, the Level 1 regular tour of duty 
assigned based on canine care responsibilities will continue unless the 
agent requests a different tour based on the agent's default election 
for the annual period.


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--
    (i) 100 hours for a Level 1 regular tour of duty;
    (ii) 90 hours for a Level 2 regular tour of duty; or
    (iii) 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 (40 regular time hours plus 10 normally scheduled 
overtime hours) in determining whether the agent has overtime hours in 
that week that are compensable under Sec. Sec.  550.1624, 550.1625, and 
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

[[Page 58119]]

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 (Public Law 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 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 off 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 off 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 must 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

[[Page 58120]]

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.  550.1624 or Sec.  550.1625 must 
be applied towards the overtime hours debt until 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 movement to a non-agent 
position or separation. (1) Any unsatisfied overtime hours debt that 
exists at the time of movement to a non-agent position or separation 
from Federal service must be recovered to the extent possible by 
offsetting the affected employee's positive balance (if any) of annual 
leave, time-off awards, or compensatory time off for travel. In cases 
where the offset will totally eliminate the debt, an agent's balances 
must be applied in the following order: first, the balance of annual 
leave; second, the balance of time-off awards; and third, the balance 
of compensatory time off for travel.
    (2) Any unsatisfied overtime hours debt that exists at the time of 
movement to a non-agent position or separation from Federal service 
after applying paragraph (d)(1) of this section 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 movement to a non-agent position or 
separation 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. (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 within 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

[[Page 58121]]

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, while the agent is engaged in the performance of agency 
work, an event arises incident to representational functions that must 
be immediately addressed during the overtime hours. CBP may excuse the 
agent from duty during scheduled obligated overtime hours if it 
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 on that day. The agent will accrue 
an overtime hours debt for that excused time. If CBP excuses the agent 
in this manner, then it must provide the agent with an opportunity to 
eliminate the resulting overtime hours debt by performing agency work 
outside the agent's regular tour of duty 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 a 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).

Subpart B--Exemptions and Exclusions

0
19. In Sec.  551.216, revise paragraph (c)(2) to read as follows:
* * * * *


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 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 the hours of work and 
overtime pay 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; Sec. 870.510 also 
issued under Sec. 1622(b) of Public Law 104-106, 110 Stat. 515; 
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); Public Law 104-
106, 110 Stat. 521.

Subpart B--Types and Amount of Insurance

0
22. In Sec.  870.204, remove ``and'' at the end of paragraph (a)(2)(x), 
remove the period at the end of paragraph (a)(2)(xi) and add in its 
place ``; and'', and add paragraph (a)(2)(xii).
    The addition reads 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. 2015-24199 Filed 9-24-15; 8:45 am]
BILLING CODE 6325-39-P