80_FR_34656 80 FR 34540 - Overtime Pay for Border Patrol Agents

80 FR 34540 - Overtime Pay for Border Patrol Agents

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 80, Issue 116 (June 17, 2015)

Page Range34540-34559
FR Document2015-14809

The Office of Personnel Management is issuing proposed regulations to implement section 2 of the Border Patrol Agent Pay Reform Act of 2014, as amended, which established a new method of compensating Border Patrol agents for overtime work. Payments under this new provision will become payable beginning with the first pay period beginning in January 2016. These regulations affect only Border Patrol agents in the U.S. Customs and Border Protection component of the Department of Homeland Security.

Federal Register, Volume 80 Issue 116 (Wednesday, June 17, 2015)
[Federal Register Volume 80, Number 116 (Wednesday, June 17, 2015)]
[Proposed Rules]
[Pages 34540-34559]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-14809]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / 
Proposed Rules

[[Page 34540]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PARTS 410, 550, 551, and 870

RIN 3206-AN19


Overtime Pay for Border Patrol Agents

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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

SUMMARY: The Office of Personnel Management is issuing proposed 
regulations to implement section 2 of the Border Patrol Agent Pay 
Reform Act of 2014, as amended, which established a new method of 
compensating Border Patrol agents for overtime work. Payments under 
this new provision will become payable beginning with the first pay 
period beginning in January 2016. These regulations affect only Border 
Patrol agents in the U.S. Customs and Border Protection component of 
the Department of Homeland Security.

DATES: Comments must be received on or before July 17, 2015.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AN19'' using any of the following methods:
    Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: pay-leave-policy@opm.gov.
    Mail: Brenda Roberts, Deputy Associate Director, Pay and Leave, 
Employee Services, U.S. Office of Personnel Management, Room 7H31, 1900 
E Street NW., Washington, DC 20415-8200.

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

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing proposed regulations to implement section 2 of the Border 
Patrol Agent Pay Reform Act of 2014 (Pub. L. 113-277, December 18, 
2014, as amended by Pub. L. 114-13, May 19, 2015), hereafter referred 
to as ``BPAPRA.'' BPAPRA established a new method of compensating 
Border Patrol agents for overtime work. These regulations affect only 
Border Patrol agents employed by the U.S. Customs and Border Protection 
(CBP) component of the Department of Homeland Security (DHS). Most 
BPAPRA provisions are effective on the first day of the first pay 
period beginning on or after January 1, 2016.

Background

    Currently, Border Patrol agents generally receive a special form of 
overtime compensation called ``Administratively Uncontrollable 
Overtime'' (AUO) under 5 U.S.C. 5545(c)(2) and 5 CFR 550.151-550.163. 
AUO may be used for employees who perform substantial amounts of 
irregular overtime (OT) work that cannot be controlled 
administratively. AUO provides complete compensation under title 5 for 
all irregular overtime hours--i.e., overtime that is not regularly 
scheduled in advance of the workweek. AUO is paid as a percentage of 
basic pay, generally ranging from 10 to 25 percent, with the exact 
percentage depending on the average number of irregular overtime hours 
per week--subject to the title 5 premium pay cap. An employee who is 
nonexempt under the Fair Labor Standards Act (FLSA) also receives an 
extra half rate for irregular overtime hours as FLSA overtime pay. AUO 
recipients receive regular title 5 or FLSA overtime pay for regularly 
scheduled overtime hours. AUO is basic pay for retirement purposes for 
recipients who are covered under the special retirement program 
provisions pertaining to law enforcement officers. Border Patrol agents 
qualify as such law enforcement officers.
    Recently, the use of AUO at DHS has been under scrutiny from the 
Congress, the Office of Special Counsel, and the Government 
Accountability Office. Various reviews indicated that AUO was being 
used improperly for some DHS employees, and DHS has taken actions to 
address the matter. As documented in the August 26, 2014, report on S. 
1691 (i.e., the bill later enacted as BPAPRA) by the Senate Committee 
on Homeland Security and Governmental Affairs (Senate Report 113-248), 
the nature of the work performed by Border Patrol agents has changed 
significantly since the AUO law was first enacted in 1954. In 
particular, CBP prefers deploying agents for scheduled 10-hour shifts, 
which is incompatible with AUO, which covers irregular overtime. 
Congress determined that Border Patrol agents needed a reformed 
overtime program that is consistent with the current nature of the work 
and the desired work schedules, and therefore enacted BPAPRA.

Summary of BPAPRA

    Under BPAPRA, in place of AUO, a new form of overtime compensation 
would apply to Border Patrol agents. The key features of BPAPRA are 
summarized below:
     Most Border Patrol agents will have the opportunity each 
year to elect to be assigned to one of three types of ``regular tour of 
duty'' which provide different rates of compensation: (1) A Level 1 
regular tour of duty, which provides an overtime supplement equal to 25 
percent of basic pay for a regular schedule of 10 hours each regular 
workday, including 2 overtime hours; (2) a Level 2 regular tour of 
duty, which provides an overtime supplement equal to 12.5 percent of 
basic pay for a regular schedule with 9 hours each regular workday, 
including 1 overtime hour; and (3) a Basic regular tour of duty with a 
regular 8-hour workday, which provides no overtime supplement.
     CBP may assign regular tours of duty in certain 
circumstances without regard to agent elections. For example, agents 
assigned to care for canines must be assigned a Level 1 regular tour of 
duty. Agents in certain positions--headquarters, administrative, or 
training or fitness instructor--must be assigned a Basic regular tour 
of duty unless a different tour is justified based on a staffing 
analysis. In addition, generally no more than 10 percent of agents at a 
location may have a Level 2 or Basic regular tour of duty. In other 
words, generally at least 90 percent of agents at a location must have 
a Level 1 regular tour of duty. CBP may revise the percentage 
requirement for a location if justified based on a staffing analysis.
     The requirement for 1 or 2 hours of scheduled overtime 
within a Level 2 or Level 1 regular tour of duty, respectively, applies 
only if the agent performs work during regular time on that same day. 
For example, if an agent takes leave for a full 8-hour basic workday, 
no obligation to perform those

[[Page 34541]]

scheduled overtime hours accrues on that day, and there is no loss of 
pay.
     The overtime supplement for regularly scheduled overtime 
hours within the assigned Level 1 or Level 2 regular tour of duty is a 
percentage of the agent's hourly rate of basic pay and is multiplied by 
number of paid hours of basic pay (i.e., hours of regular time, whether 
work or paid absence) in the biweekly pay period. Thus, the supplement 
is payable during leave or other paid time off taken from the 40-hour 
basic workweek.
     The overtime supplement is subject to the title 5 premium 
pay cap.
     An agent may not receive other premium pay for regularly 
scheduled overtime hours within his or her regular tour of duty (i.e., 
hours covered by the overtime supplement).
     The overtime supplement is treated as part of basic pay 
for retirement and certain other purposes, such as life insurance and 
severance pay.
     CBP must develop a plan to ensure that the assignment of 
an overtime supplement to an agent during the period beginning 3 years 
before the agent reaches retirement age and service requirements is 
consistent with the agent's career average overtime supplement.
     Overtime work in excess of the biweekly regular tour of 
duty (generally 100, 90, or 80 hours, as applicable) would be 
separately compensable. If the additional overtime work is regularly 
scheduled in advance of the workweek, the work is compensated under the 
regular title 5 overtime provisions (5 U.S.C. 5542). If the additional 
overtime work is irregular, the work is compensated by crediting the 
agent with compensatory time off. However, no more than 10 hours of 
compensatory time off may be earned in a biweekly pay period (unless a 
written waiver of this provision is approved in advance) and no more 
than 240 hours may be earned during a leave year.
     If the agent is absent during required scheduled overtime 
within the regular tour of duty (i.e., obligated overtime hours), 
payment of the overtime supplement is not affected but the agent 
accrues an obligation (debt) to perform other overtime work to make up 
for work not performed. Any accrued compensatory time off will be 
applied against that overtime hours debt. Any additional overtime work 
outside the regular tour of duty in future pay periods will also be 
applied against that debt.
     All Border Patrol agents are FLSA-exempt. This exemption 
applies to both the minimum wage and the maximum hours and overtime 
provisions of the FLSA.

Effective Date

    BPAPRA was enacted on December 18, 2014 as Public Law 113-277. On 
May 19, 2015, BPAPRA was amended by Public Law 114-13 to clarify the 
effective date of certain provisions. Section 1(a) of Public Law 114-13 
added a new subsection (i) in section 2 of BPAPRA. That section 2(i) 
provided that subsections (b), (c), (d), and (g) of section 2 of BPAPRA 
are effective on the first day of the first pay period beginning on or 
after January 1, 2016, except that (1) any provision of 5 U.S.C. 
5550(b) (as added by section 2(b) of BPAPRA) relating to administering 
elections and making advance assignments to a regular tour of duty is 
applicable before the January 2016 effective date to the extent 
determined necessary by the OPM Director and (2) the OPM Director's 
authority to issue regulations (in particular, the authority in 5 
U.S.C. 5550(b)(1)(B) related to election procedures) is effective as 
necessary before the January 2016 effective date.
    As required by these proposed regulations, CBP must provide 
election information notices to Border Patrol agents no later than 
November 1 and agents must make elections for the upcoming annual 
period no later than December 1. Thus, BPAPRA provisions related to 
administering annual elections and advance assignments for the annual 
period beginning in January 2016 must be applied before January 2016.
    As provided by Public Law 114-13, regular tours of duty and any 
associated overtime supplements established under 5 U.S.C. 5550 (as 
added by section 2(b) of BPAPRA) will first take effect on the first 
day the first pay period beginning or or after January 1, 2016. That 
pay period begins on January 10, 2016. Other BPAPRA provisions that are 
effective on January 10, 2016 include (1) the amendments to 5 U.S.C. 
5542 (dealing with overtime pay and compensatory time off) made by 
section 2(c) of BPAPRA, (2) the amendments to 5 U.S.C. 8331 (dealing 
with retirement-creditable basic pay) made by section 2(d) of BPAPRA, 
and (3) the amendments to 5 U.S.C. 5547 (dealing with the premium pay 
cap) made by section 2(g)(1) of BPAPRA, and (4) the amendments to 
section 13(a) of the FLSA (dealing with FLSA exemptions) made by 
section 2(g)(2) of BPAPRA.

New Subpart P in 5 CFR Part 550

    In order to implement BPAPRA, OPM is proposing to add a new subpart 
P, Overtime Pay for Border Patrol Agents, in part 550 (Pay 
Administration--General) of title 5, Code of Federal Regulations. A 
section-by-section explanation of the proposed regulations follows. 
(Note: The descriptions of the proposed regulations are stated in the 
present tense for readability.)

Sec.  550.1601--Purpose and Authority

    Section 550.1601 includes the purpose of the proposed regulations--
i.e., to implement BPAPRA. It also notes that OPM is relying on its 
regulatory authority in 5 U.S.C. 5548 as well as section 2(h) of 
BPAPRA.

Sec.  550.1602--Coverage

    Section 550.1602 provides that subpart P applies to GS-1896 Border 
Patrol agents holding a position in the U.S. Customs and Border 
Protection (CBP) component of the Department of Homeland Security 
(DHS). Coverage is not affected if a Border Patrol agent is temporarily 
detailed to a non-CBP position, since the agent would continue to 
officially hold a CBP Border Patrol agent position.

Sec.  550.1603--Definitions

    Section 550.1603 provides definitions of terms for purposes of 
subpart P. Certain definitions warrant explanation here. Other 
definitions are addressed later in the supplementary information in the 
context of the regulatory provisions in which they are used.
    OPM defines the term annual period to mean the 1-year period that 
begins on the first day of the first pay period beginning on or after 
January 1 of a given year and ends on the day before the first day of 
the first pay period beginning on or after January 1 of the next year. 
The term year in 5 U.S.C. 5550(b)(1)(A) and (C) and the term leave year 
in 5 U.S.C. 5542(g)(5)(A) are interpreted to be an annual period as 
defined in Sec.  550.1603. Under BPAPRA, agents make an election for a 
year, which we are interpreting to be an annual period consisting of 
full biweekly pay periods. This prevents starting a new regular tour of 
duty and associated overtime supplement in the middle of a pay period.
    The definitions of irregular overtime work and regularly scheduled 
work parallel the definitions of similar terms in the regular premium 
pay regulations at 5 CFR 550.103. We are clarifying that irregular 
overtime work must be ``officially ordered or approved,'' consistent 
with the normal standards governing title 5 overtime in 5 U.S.C. 
5542(a) and 5 CFR 550.111(a)(1). This means that, consistent with 
agency policies, authorized management

[[Page 34542]]

officials must ``order'' the overtime work in advance or ``approve'' 
the overtime work after the fact (when emergency circumstances 
prevented advance approval). We include a term, regular time, that is 
used in BPAPRA to refer to the regular basic hours within an agent's 8-
hour basic workday within the 40-hour basic workweek.
    While BPAPRA used the terms level 1 border patrol rate of pay, 
level 2 border patrol rate of pay, and basic border patrol rate of pay 
to identify agents with different overtime supplements and regular 
tours of duty, the subpart P regulations place the focus on an agent's 
regular tour of duty and use the terms Level 1 regular tour of duty, 
Level 2 regular tour of duty, and Basic regular tour of duty to 
identify the three categories of agents. We also found it clearer to 
focus on the overtime supplement as a separate payment rather than 
being rolled into an aggregate rate of pay.
    We define a term obligated overtime hours to describe the overtime 
hours within an agent's regular tour of duty that an agent is obligated 
to work because he or she had performed work (of any amount) during 
regular time on the same day. For example, an agent with a Level 1 tour 
of duty would normally be obligated to work 2 hours of scheduled 
overtime work within the regular tour, which could add up to 20 
overtime hours (10 days x 2 hours per day) in a biweekly pay period. 
However, if the agent was on leave during all regular time for 2 basic 
workdays (8 hours each day), the agent would not be obligated to 
perform the 2 hours of scheduled overtime work within the regular tour 
on each of those days. Thus, the total number of obligated overtime 
hours during that pay period would be 16 hours (20 hours minus 4 
unobligated hours). Because an agent may have such unobligated overtime 
hours, the definition of regular tour of duty uses the word 
``generally'' in describing the hours within a normal tour of duty.
    The term overtime hours debt is defined as the unsatisfied balance 
of obligated overtime hours not worked, which represents a debt of 
hours for which an agent is accountable. As provided in Sec.  
550.1626(b), outside-tour overtime hours in the same pay period may be 
substituted for absences during obligated overtime hours for pay 
computation purposes. Any remaining obligated overtime hours not worked 
become part of the agent's overtime hours debt--a debt that the agent 
can satisfy by applying compensatory time off, as described in Sec.  
550.1626(c)(1) or by applying outside-tour overtime hours in future pay 
periods, as described in Sec.  550.1626(c)(2).

Sec.  550.1604--CBP Authority

    This section reflects various provisions in BPAPRA that give CBP 
authority to assign work based on its assessment of mission 
requirements and operational needs. (See BPAPRA section 2(a) and (f)(1) 
and 5 U.S.C. 5550(g).) The BPAPRA provisions show that Congress 
intended to ensure that CBP retains full authority to assign work as 
needed, regardless of the assigned regular tours of duty.

Sec.  550.1605--Interpretation Instruction

    Section 550.1605 restates the instruction found in section 2(f) of 
BPAPRA, which provides that nothing in the Act shall be ``construed to 
require compensation'' of an agent other than for hours during which 
the agent is actually performing work or using approved paid time off. 
This reflects Congressional concern regarding alleged abuses of AUO pay 
that included some employees not performing work during claimed AUO 
hours.

Sec.  550.1611--Assignments for an Annual Period

    Section 550.1611 governs the assignment of regular tours of duty 
for an upcoming annual period to individuals who are employed as agents 
as of November 1 of the preceding year. The law generally envisions 
assignments being made for an annual period after giving agents an 
opportunity to state their preferred tour via an annual election. The 
law provides that agents must (1) be given information about election 
options and procedures no later than 60 days before the annual period 
and (2) make an annual election no later than 30 days before the annual 
period. Since the beginning of the annual period may vary (since it 
corresponds to the beginning of the first full pay period in January), 
we have regulated that the deadline for providing election information 
is November 1 and the deadline for submitting elections is December 1. 
These dates meet the statutory time requirements, and provide a 
consistent set of deadlines that apply each year.
    Consistent with the law, section 550.1611(d) provides that an agent 
who fails to make a timely election must be assigned a Level 1 regular 
tour of duty. Section 550.1611(e) provides that CBP must inform an 
agent of an assignment to a tour not elected by the agent. Section 
550.1611(f) lists the circumstances (as provided in BPAPRA) under which 
management is required or allowed to unilaterally assign a regular tour 
of duty for an annual period that may not match an agent's annual 
election. For example, an agent assigned to care for a canine must be 
assigned a Level 1 regular tour of duty. Also, an agent assigned to a 
headquarters, administrative, training instructor, or fitness 
instructor position must be assigned a Basic regular tour of duty (with 
no overtime supplement), except as otherwise justified based on a CBP 
staffing analysis.
    Section 550.1611 does not apply to newly hired agents who--though 
currently employed as agents on November 1--will be in initial training 
status as of the first day of the annual period. Instead, special 
provisions in Sec.  550.1612(a) and (b) apply to such agents. Initial 
training is defined in Sec.  550.1603 as meaning initial orientation 
sessions, basic training, and other preparatory activities provided 
prior to an agent's first regular work assignment in which the agent 
has authority to make arrests and carry a firearm.

Sec.  550.1612--Assignments at Other Times

    Section 550.1612 addresses other situations in which an agent may 
be assigned a regular tour of duty that were not addressed in BPAPRA. 
An individual who is newly hired as an agent during an annual period 
will generally undergo initial training before commencing a regular 
work assignment. During any period of initial training, the agent must 
be assigned a Basic regular tour of duty. (This is consistent with the 
fact that agents currently do not receive AUO pay during initial 
training.) Initial training is not ``advanced'' training during which 
Level 1 or Level 2 overtime supplements continue for 60 days under the 
BPAPRA law and regulations (5 U.S.C. 5550(b)(2)(G) or (b)(3)(G) and 
Sec.  550.1622(b)). As provided in Sec.  550.1612(a), when a newly 
hired agent begins a regular work assignment (after completing initial 
training), the agent will have a Level 1 regular tour of duty as the 
default schedule for the remainder of the annual period. Under 
applicable circumstances described in Sec.  550.1611(f), CBP may assign 
instead a Level 2 or Basic tour. In addition, under Sec.  550.1612(b), 
a newly hired agent will be given an opportunity to submit an election 
of a preferred type of regular tour of duty that would take effect 
prospectively. Such election must be submitted no later than 30 days 
after the agent begins a regular work assignment and, if approved by 
CBP, would be effective on the first day of the first pay period 
beginning on or after the later of:

[[Page 34543]]

(1) The date the election was submitted; or (2) the date the agent 
completed initial training.
    Under Sec.  550.1612(c), an individual who is newly hired as an 
agent between November 2 and the beginning of the annual period would 
be allowed to make an election for the upcoming annual period, if the 
agent will not be in initial training status on the first day of the 
annual period. Instead of the December 1 election deadline, the 
election may be submitted within 30 days after the agent received 
election information, but no later than the day before the first day of 
the annual period.
    Section 550.1612(d) provides that CBP may change an agent's 
assignment during an annual period under appropriate circumstances 
described in Sec.  550.1611(f) or Sec.  550.1622(b). For example, CBP 
may change an assignment to comply with the pay assignment continuity 
requirement described in Sec. Sec.  550.1611(f)(5) and 550.1615.

Sec.  550.1613--Selection of Agents for Assignment

    Section 550.1613 requires CBP to develop a written plan to guide 
the selection of agents for assignment to a particular regular tour of 
duty contrary to the agents' preferences, when only some agents' 
preferences can be accommodated. For example, CBP may need to implement 
the requirement that only 10 percent of agents in a location may have a 
Level 2 or Basic regular tour of duty when more than 10 percent of 
agents in that location want such a tour. For example, if 12 percent of 
agents in a particular location want a Level 2 or Basic regular tour of 
duty, 2 percent of agents will be required to have a Level 1 regular 
tour of duty contrary to their personal preference. CBP must have a 
plan for deciding which agents do not get assigned their desired tour 
(or, stated differently, which agents are assigned their desired tour).

Sec.  550.1614--Percentage Limit on Agents With Level 2 or Basic Tour

    Section 550.1614 regulates the statutory requirement that, except 
when justified based on a CBP staffing analysis, no more than 10 
percent of agents stationed at a location may be assigned a Level 2 or 
Basic regular tour of duty (i.e., at least 90 percent of agents at a 
location must be assigned a Level 1 regular tour of duty). Section 
550.1614(d) provides that the pay assignment continuity requirement in 
Sec.  550.1615 trumps that requirement in Sec.  550.1614.

Sec.  550.1615--Pay Assignment Continuity

    Under 5 U.S.C. 5550(b)(1)(G) (titled ``Pay Assignment 
Continuity''), as added by BPAPRA, not later than December 18, 2015 (1 
year after the date of enactment), CBP must ``develop and implement a 
plan to ensure, to the greatest extent practicable, that the assignment 
of a border patrol agent under this section during the 3 years of 
service before the border patrol agent becomes eligible for immediate 
retirement are consistent with the average border patrol rate of pay 
level to which the border patrol agent has been assigned during the 
course of the career of the border patrol agent.'' As indicated in 5 
U.S.C. 5550(b)(1)(G)(iv), the purpose of this plan is to ensure that 
``border patrol agents are not able to artificially enhance their 
retirement annuities.'' By law, CBP must develop and implement this 
plan in consultation with OPM. In addition, this plan and its 
implementation are subject to any OPM regulations promulgated under its 
authority to carry out BPAPRA and to administer section 5550.
    OPM interprets section 5550(b)(1)(G) as establishing a period of 
time during which CBP must control the assignment of regular tours of 
duty to each agent (and thus the overtime supplement percentage) to 
ensure consistency with the agent's career average overtime supplement 
percentage. This ``control period'' is intended to cover the period of 
time during which an agent could possibly have a high-3 ``average pay'' 
period as described in the retirement laws at 5 U.S.C. 8331(4) and 
8401(3). The high-3 ``average pay period'' is a period of 3 consecutive 
years of creditable service during which an employee has his or her 
highest rates of retirement-creditable basic pay. The high-3 average 
pay is used in computing an employee's retirement annuity.
    Since the overtime supplement of 25 or 12.5 percent for a Level 1 
or Level 2 regular tour of duty, respectively, is retirement-creditable 
basic pay and may vary over time (and can be the outcome of an agent's 
voluntary election), this introduces the possibility of an agent 
electing overtime supplements during a potential high-3 period that 
would maximize the agent's retirement benefit, without regard to the 
average overtime supplement elected during the employee's career before 
the control period. If the overtime supplement used in computing an 
agent's high-3 average pay is significantly higher than the career 
average overtime supplement, this means that the retirement fund has 
not received sufficient employee and agency contributions to fund the 
agent's annuity benefit. Not only does this pose problems for the 
retirement fund on a macro level, but it also would result in 
inequitable treatment of individual agents relative to one another.
    Retirement eligibility is based on meeting applicable minimum age 
and service requirements and an employee's separation. For a Border 
Patrol agent under the Federal Employees' Retirement System, the 
minimum age and service requirements for a regular law enforcement 
officer retirement annuity are: (1) Any age with 25 years of service; 
or (2) age 50 with 20 years of service. The date of an employee's 
separation is uncertain until it takes effect. Thus, to achieve the 
stated goal of this pay assignment continuity provision, it is 
necessary to control overtime supplement assignments during any and all 
periods of 3 consecutive years after an agent is within 3 years of 
meeting age and service requirements. (We recognize that, in rare 
circumstances, an agent's high-3 period may not be the agent's last 3 
years before separation and could contain a period before the control 
period. For ease of administration, the drafters of BPAPRA assumed that 
the high-3 period would be the last 3 years before separation and thus 
always be in the control period.)
    Section 5550(b)(1)(G)(i) states that the control period applies 
``during the 3 years of service before the border patrol agent becomes 
eligible for immediate retirement.'' In one sense, an agent has 
conditional retirement eligibility once he or she meets age and service 
requirements, with separation being the condition. In another sense, an 
agent is not truly retirement eligible until he or she separates. Given 
the intent of this provision, and the context surrounding this 
statutory language, we interpret the law as requiring a plan that 
controls overtime supplement assignments during any possible 3-year 
period that might precede an agent's separation, which would trigger 
retirement eligibility. The statutory language cannot logically be 
interpreted as establishing a control period only during the 3 years 
preceding the date an agent meets age and service requirements, since 
the actual high-3 period could be totally outside such a control 
period, which would defeat the entire purpose of the provision. We note 
that, in the section-by-section analysis in the Senate committee report 
on the bill (S. 1691) later enacted as BPAPRA (Senate Report 113-248, 
pages 13-14), the description of section 5550(b)(1)(G) states that the 
pay assignment continuity plan is designed to ``ensure an agent is 
unable to artificially enhance

[[Page 34544]]

his or her retirement pay by electing Level 1 pay during his or her 
last three years of service when he or she had previously consistently 
worked at a lower level of pay.'' [Italics added for emphasis.] Thus, 
Congress was focused on the 3 years before separation (based on the 
generally true assumption that an employee's high-3 period is during 
those last 3 years). Since an agent's actual separation date is not 
known in advance, it is necessary to provide pay assignment continuity 
for all consecutive 3-year periods for any possible separation date. 
The first possible separation date is when the agent meets retirement 
age and service requirements; thus, the date 3 years before the first 
possible separation date begins the control period.
    Section 550.1615 regulates the pay assignment continuity 
requirement found in law at 5 U.S.C. 5550(b)(1)(G). Section 
550.1615(a)(1) provides that, in consultation with OPM, CBP must 
implement a plan to ensure, to the greatest extent practicable, that an 
agent's overtime supplement during all consecutive 3-year periods 
within the control period is ``consistent'' with the agent's career 
average percentage during his or her career prior to the beginning of 
the control period. As provided in Sec.  550.1615(a)(2), the overtime 
supplement percentage used in computing the career average percentage 
is the assigned percentage (25, 12.5, or 0) without regard to whether a 
premium pay cap prevents full payment based on that percentage.
    Section 550.1615(a)(3) provides additional rules governing the 
computation of an agent's career average overtime supplement 
percentage. Based on the statutory language--``the average border 
patrol rate of pay level to which the border patrol agent has been 
assigned during the course of the career of the border patrol agent''--
we are proposing that an agent's career be considered to encompass only 
those periods during which the agent was covered by section 5550 and 
subpart P. In other words, only overtime supplements established under 
5 U.S.C. 5550 would be considered in computing the career average. We 
recognize that many agents have received an AUO supplement, which if 
considered, could increase or decrease the agent's career average. We 
also recognize that some agents will be in the control period when the 
provisions of subpart P first become applicable in January 2016 and 
that a career average will be immediately needed to apply the pay 
assignment continuity provisions. Based on the law, we have proposed in 
Sec.  550.1615(a)(3) that, if an agent is in a control period when the 
provisions of subpart P first become applicable to the agent, the 
agent's initially assigned overtime supplement percentage must be 
considered the agent's career average. We are aware that, under the 
proposed rule, certain employees in headquarters or other positions for 
which no overtime supplement is payable would be considered to have a 0 
percent career average overtime supplement. We are specifically 
inviting comments on proposed section 550.1615(a)(3) and will carefully 
consider those comments in preparing the final regulations.
    As provided in Sec.  550.1615(b), the ``control period'' is the 
period beginning on the date 3 years before an agent first meets 
retirement age and service requirements and remains in effect during 
all subsequent service in a Border Patrol agent position.
    As regulated in Sec.  550.1615(c)(1), the two averages are 
considered to be ``consistent'' if they are within 2.5 percentage 
points of one another. CBP must manage agents' assignments (i.e., make 
unilateral assignments) during the control period as necessary to 
achieve consistency, notwithstanding any other provision of law or 
regulation in subpart P. Section 550.1615(c)(2) allows for two 
exceptions. One exception applies if an agent's overtime supplement is 
limited by the premium pay cap under Sec. Sec.  550.105 and 550.107 and 
the agent voluntarily elects (and CBP approves) a regular tour that 
results in an average overtime supplement percentage that is less than 
the agent's career average. For example, an agent's rate of basic pay 
could be at the premium pay cap (generally level IV of the Executive 
Schedule) leaving no room for receipt of an overtime supplement. Such 
an agent could choose to elect a Basic regular tour of duty that would 
provide no overtime supplement and require no regular overtime work. 
(The agent could still be ordered to work overtime as needed.) Since 
the premium pay cap prevents manipulation of the high-3 average pay, 
this exception poses little or no risk to the retirement fund. As 
stated in 5 U.S.C. 5550(b)(1)(G)(iv), the goal of the pay assignment 
continuity provision is to ensure that agents are not able to 
artificially enhance their retirement annuities. The ability for an 
agent to enhance his or her annuity is limited or eliminated when the 
agent is subject to the premium pay cap.
    We cannot allow an agent whose overtime supplement is not affected 
by the premium pay cap to voluntarily elect a lesser percentage during 
the control period, since the agent could later elect again to have a 
higher percentage that is consistent with his/her career average. While 
the overtime supplement used in the agent's high-3 average pay would 
not exceed a percentage that is consistent with the agent's career 
average, the agent (and CBP) will have made inadequate retirement 
contributions during the portion of the control period when the lesser 
percentage was in effect.
    Section 550.1615(c)(2)(ii) provides a necessary exception in cases 
where CBP determines an agent is unable to perform overtime work on a 
daily basis due to a physical or medical condition affecting the agent 
and assigns the agent a Basic regular tour of duty, as described in 
Sec.  550.1611(f)(2) (which may be applied to make changes in an 
agent's tour during an annual period, as provided by Sec.  
550.1612(d)). This exception relieves CBP of applying the consistency 
requirement to the affected agent, but only to the extent such 
assignment makes it impossible to satisfy the consistency requirement 
during any given consecutive 3-year period. Thus, if the period during 
which the agent is unable to perform overtime work is short in 
duration, it would be possible to fully comply with the consistency 
requirement.
    Section 550.1615(d) addresses CBP's authority in connection with 
the pay assignment continuity requirement. Consistent with 5 U.S.C. 
5550(b)(1)(G)(ii), Sec.  550.1615(d)(1) provides that CBP may take such 
action as is necessary, including unilateral assignment of an agent's 
regular tour of duty, to implement the pay assignment continuity plan, 
notwithstanding any provision of BPAPRA or the subpart P regulations. 
Section 550.1615(d)(2) reflects the provision in 5 U.S.C. 
5550(b)(1)(G)(vi), which states that nothing in section 5550(b)(1)(G) 
may be construed to limit the ability of CBP to assign regular tours as 
necessary to meet operational requirements. At the same time, as 
reflected in Sec.  550.1604, various provisions in BPAPRA (section 2(a) 
and 2(f)(1) of BPAPRA and 5 U.S.C. 5550(g)) make clear that CBP has 
authority to assign unscheduled work as needed to meet mission needs 
and operational requirements, notwithstanding the regular tour assigned 
to agents. Thus, as a general matter, OPM does not consider the need to 
meet operational requirements as preventing CBP from also controlling 
agents' regular tour as necessary to comply with the pay assignment 
continuity requirement.
    Section 550.1615(e) sets forth reporting requirements with which 
CBP must comply so that OPM can monitor and evaluate the effectiveness 
of CBP's pay assignment continuity plan and

[[Page 34545]]

assess the actuarial impact on the retirement fund.
    Section 550.1615(f) addresses corrective actions that CBP must take 
if it determines that the consistency requirement is not being met for 
a particular agent. Under this regulation, CBP is not required to 
retroactively change an agent's assigned overtime supplement based on 
violation of the consistency requirement unless there is evidence of 
fraud, misrepresentation, fault, or lack of good faith on the part of 
the affected agent in connection with an overtime supplement received 
by that agent.

Sec.  550.1616--Corrective Actions

    Section 550.1616 addresses corrective actions related to 
assignments made under the Sec. Sec.  550.1611 through 550.1614. If it 
is determined that CBP did not comply with applicable statutory or 
regulatory requirements in assigning an agent to a regular tour of duty 
under those sections, CBP must take corrective action as soon as 
practicable. The corrective action would apply prospectively. CBP is 
not required to retroactively change an agent's assigned tour or 
overtime supplement, except when CBP determines there exists, in 
connection with the agent's tour assignment, evidence of fraud, 
misrepresentation, fault, or lack of good faith on the part of that 
agent. Since the overtime supplement is retirement-creditable basic 
pay, retroactive changes in the supplement would be disruptive and 
could adversely affect an employee's anticipated retirement benefits.

Sec.  550.1621--Rules for Each Type of Regular Tour

    Section 550.1621 lays out the sets of rules that apply to each type 
of regular tour and provides cross references to those provisions that 
are addressed in more detail in other places in subpart P. Paragraphs 
(a)(3) and (b)(3) reflect the statutory rules in 5 U.S.C. 
5550(b)(2)(A)(ii) and (b)(3)(A)(ii) that an agent with a Level 1 or 
Level 2 regular tour of duty has an obligation to perform scheduled 
overtime work within that tour only on a day the agent ``performs 
work'' during the regular time (8-hour basic workday). Thus, for 
example, if an agent with a Level 1 regular tour of duty takes 8 hours 
of annual leave on a particular day, the agent does not have an 
obligation to work 2 hours of scheduled overtime within the tour on 
that day. Paragraph (e) makes clear that, in applying paragraphs (a)(3) 
and (b)(3), the term ``work'' refers to paid hours of work, consistent 
with Sec.  550.112, except that paid leave and other paid time off are 
not considered to be work hours. Paragraph (e) also makes clear that 
official time under 5 U.S.C. 7131 (related to employees representing a 
labor organization) is ``work'' in applying paragraphs (a)(3) and 
(b)(3).
    Paragraphs (a)(4) and (b)(4) provide regulations governing the 
computation of the overtime supplement (25 percent or 12.5 percent, 
respectively). The overtime supplement is computed on an hourly basis 
and is equal to 25 percent or 12.5 percent, respectively of an agent's 
hourly rate of basic pay. The resulting hourly dollar amount is 
multiplied by the number of paid hours of regular time in the biweekly 
pay period to determine the biweekly dollar amount of the overtime 
supplement before application of the premium pay cap. Also, as provided 
in Sec.  550.1626(a)(5), any hours of regular time that are paid only 
because of substitution of overtime hours for a period of absence 
without approval (AWOL) or suspension are excluded from the hours 
multiplied by the hourly overtime supplement.
    Paragraph (d) states the overarching rule that the premium pay cap 
in 5 U.S.C. 5547 applies to limit, as appropriate, the payment of the 
overtime supplement or regularly scheduled overtime outside the regular 
tour and the crediting of compensatory time off for irregular overtime 
hours. (See 5 U.S.C. 5542(g)(5)(F) and 5547(a) and (e), as amended by 
BPAPRA. See also section 2(f)(3) of BPAPRA.) Consistent with the 
longstanding interpretation of 5 U.S.C. 5547, an agent affected by the 
premium pay cap is still required to perform work as assigned. In 
effect, an employee who reaches the premium pay cap is considered a 
salaried employee and the combination of basic pay and any premium pay 
is considered complete compensation for all hours of work. (In 2015, 
the premium pay cap for most employees is based on the Executive 
Schedule (EX) level IV annual rate of $158,700. An employee may receive 
premium pay in a biweekly pay period only to the extent that the 
premium pay does not cause the combination of basic pay and premium pay 
to exceed the cap.)

Sec.  550.1622--Circumstances Requiring Special Treatment

    Section 550.1622(b) regulates a statutory provision providing 
special treatment of employees during the first 60 days of advanced 
training in a calendar year. During those 60 days, an agent continues 
to be assigned to the regular tour otherwise in effect, regardless of 
the actual number of hours of work on a training day, and will continue 
to receive the overtime supplement associated with that tour. As a 
general rule, an agent will be deemed to have worked during any nonwork 
period within obligated overtime hours on such a training day for the 
purpose of determining the agent's total hours of work against the 
applicable biweekly overtime threshold (i.e., 100 hours for a Level 1 
tour and 90 hours for a Level 2 tour). (See also Sec.  
550.1623(a)(2)(iv).) For example, if an agent with a Level 1 regular 
tour of duty (requiring 2 obligated overtime hours each basic workday) 
performs actual work for 0.5 hours during obligated overtime hours on a 
day of advanced training, the agent would be deemed to work during the 
remaining 1.5 hours and receive credit for those 1.5 hours in applying 
the applicable overtime threshold. However, if an agent performs 
creditable regularly scheduled overtime work outside the regular tour 
(e.g., night work that is creditable under 5 CFR 410.402(b)(2) as an 
exception to the normal bar on premium pay during training) on the same 
day on which credit would otherwise be given for nonwork overtime 
within the tour, those outside-tour overtime hours will be substituted 
for any within-tour nonwork overtime hours and reduce the crediting of 
nonwork hours accordingly.
    Section 550.1622(b)(3) implements the statutory requirement that, 
after an agent has 60 days of advanced training in a calendar year, CBP 
must assign the agent to a Basic regular tour of duty for any 
additional day of advanced training. When such an agent is no longer 
engaged in advanced training, the agent reverts to his or her 
previously applicable tour.
    In applying Sec.  550.1622(b), we rely on the definition of 
advanced training found in Sec.  550.1603. Advanced training is defined 
to exclude initial training (i.e., initial orientation sessions, basic 
training, and other preparatory activities) provided prior to an 
agent's first regular work assignment in which the agent has authority 
to make arrests and carry a firearm. The rules on advanced training 
apply solely to whole-workday training that covers the entire 8-hour 
block of regular time on a regular workday, since the statutory 
provisions at Sec.  5550(b)(2)(G) and (b)(3)(G) apply to ``days'' of 
advanced training. Training that takes part of a day does not trigger 
application of the advanced training provision; instead, an agent with 
such training remains under the normal rules with the normal overtime 
obligations. (See also proposed Sec.  550.1622(b)(4).)
    Section 550.1622(c) regulates a statutory provision providing 
special

[[Page 34546]]

treatment of agents assigned to care for a canine as part of their 
agent duties. During any period an agent is assigned canine care 
duties, the agent must be assigned a Level 1 regular tour with a 25 
percent overtime supplement (unless that requirement is trumped by the 
pay assignment continuity requirement in Sec.  550.1615). As provided 
by 5 U.S.C. 5550(b)(1)(F), an agent assigned canine care duties must be 
credited with 1 hour of regularly scheduled overtime work within the 
regular tour of duty on each regular workday, regardless of the actual 
duration of any such care or when the care was actually provided. The 
canine care may actually be provided anytime, including on a non-
workday. Regardless of the time or day the canine care is actually 
provided or how much time is actually spent providing canine care, an 
agent with canine care duties is automatically credited with 1 hour of 
work for canine care on each regular workday. That leaves the agent 
with an obligation to perform 1 additional overtime hour as part of the 
agent's regular tour of duty to meet the 2-hour requirement for a Level 
1 tour (on any regular workday on which the agent performs any work 
during regular time). This means that an agent assigned canine care 
duties actually has a 9-hour daily tour of duty for regular work 
instead of the 10-hour daily tour that applies to other employees on a 
Level 1 regular tour of duty.
    If an agent is generally assigned to provide care for a canine, but 
is temporarily relieved of that duty for any reason (e.g., no dog 
available), the agent may not receive the 1-hour automatic credit for 
canine care on an affected regular workday.

Sec.  550.1623--Overtime Work Outside the Regular Tour

    Section 550.1623 provides rules governing the application of 
biweekly overtime thresholds that are used to determine: (1) Overtime 
pay for regularly scheduled overtime hours outside the regular tour 
under Sec.  550.1624; and (2) crediting of compensatory time off for 
irregular overtime hours under Sec.  550.1625. As a general rule, the 
biweekly overtime threshold is 100 hours for a Level 1 tour, 90 hours 
for a Level 2 tour, and 80 hours for a Basic tour, as provided in Sec.  
550.1623(b), unless there is a hybrid pay period, as described in Sec.  
550.1623(c),
    Paragraph (a)(2) identifies the hours that are included in an 
agent's total hours of work that are compared to the applicable 
biweekly overtime threshold. In addition to time that qualifies as 
actual hours of work under the normal title 5 rules and all types of 
paid time off hours, we count: (1) Obligated overtime hours during 
which no work is performed (creating a debt of hours as provided in 
Sec.  550.1621(a)(8) and (b)(8)) and for which no substitution is made 
under Sec.  550.1626(b); (2) nonwork hours credited during obligated 
overtime hours on a day of advanced training (as provided in Sec.  
550.1622(b)); and (3) overtime hours within the regular tour that an 
agent is not obligated to work because he or she performs no work 
during regular time on that day (as described in Sec.  550.1621(a)(3) 
and (b)(3)). Crediting these three categories of hours is necessary to 
align with the 100-hour and 90-hour biweekly overtime thresholds fixed 
by law for a Level 1 tour and Level 2 tour, respectively. (See 5 U.S.C. 
5542(g)(1)(A) and (2)(A).) Without this crediting, there could be hours 
of work that are outside an agent's regular tour but below the 
applicable overtime threshold, and there would be no authority to 
compensate for those hours in any way--a result clearly not intended by 
Congress. This crediting complies with section 2(f)(2) of BPAPRA, which 
states that nothing in BPAPRA may be construed to require compensation 
other than for hours during which an agent is actually performing work 
or using approved paid time off. The crediting of the three categories 
of hours is only for purposes of applying the overtime threshold and 
does not generate any additional compensation for those hours, since 
they are hours that only could have been potentially compensated by the 
overtime supplement, the amount of which is not affected by the number 
of regularly scheduled overtime hours within the regular tour.
    Paragraph (c) addresses the possibility of ``hybrid pay periods.'' 
One type of hybrid pay period occurs when an agent has one type of 
regular tour for part of the biweekly pay period and another type for 
another part of that period--for example, a Level 1 tour for the first 
week and a Basic tour for the second week. It is possible that an 
agent's tour could change during a biweekly pay period due to the 
expiration of the 60-day advanced training period or because CBP takes 
action under the circumstances described in Sec.  550.1611(f), as 
allowed under Sec.  550.1612(d). A second type of hybrid pay period 
occurs when an individual is employed as a Border Patrol agent for only 
part of the pay period. Since the drafters of BPAPRA did not consider 
these possibilities, it is necessary to fill in the policy gap via 
regulation.

Sec.  550.1624--Regularly Scheduled Overtime Outside the Regular Tour

    Section 550.1624 provides rules governing the payment for regularly 
scheduled overtime hours beyond the applicable overtime threshold 
(outside the regular tour). Such hours are paid under the regular title 
5 overtime rules in 5 U.S.C. 5542(a) and 5 CFR 550.113. Paragraph 
(c)(1) reflects a statutory directive that CBP should, to the maximum 
extent practicable, avoid the use of regularly scheduled overtime work 
outside the regular tour of duty. However, paragraph (c)(2) makes clear 
that the general restriction in paragraph (c)(1) does not prevent CBP 
from assigning outside-tour regularly scheduled overtime work if an 
agent volunteers to perform such work. For example, an agent may want 
to work such overtime hours to eliminate an overtime hours debt.

Sec.  550.1625--Irregular Overtime and Compensatory Time Off

    Section 550.1625 provides rules governing the crediting of 
compensatory time off for irregular overtime hours beyond the 
applicable overtime threshold. (By definition, any irregular overtime 
hour is beyond that threshold and outside the regular tour of duty.) 
The rules in Sec.  550.1625 largely reflect statutory requirements and 
limitations. In addition, paragraph (c) shows that the call-back 
overtime provision in 5 U.S.C. 5542(b)(1) remains applicable to agents. 
In addition, since BPAPRA required that a value be assigned to 
compensatory time for the purpose of applying the premium pay cap (5 
U.S.C. 5542(g)(5)(F)), but did not specify what the value should be, we 
are regulating that the value is equal to the amount of overtime pay 
the agent would have received for the period during which the 
compensatory time off was earned if the overtime had been regularly 
scheduled overtime hours outside the agent's regular tour. This is 
consistent with how OPM values compensatory time off under 5 U.S.C. 
5543 and 5 CFR 550.114. (See 5 CFR 550.114(g).)

Sec.  550.1626--Leave Without Pay During Regular Time and Absences 
During Obligated Overtime Hours

    Section 550.1626 provides rules governing the handling of 
circumstances where an agent has leave without pay during the basic 
workweek or absences during obligated overtime hours, consistent with 5 
U.S.C. 5550(f). Additional hours worked in a biweekly pay period that 
are ``substituted'' for leave without pay or absences during obligated 
overtime hours are, for pay

[[Page 34547]]

computations purposes, treated as if they are, respectively, regular 
time hours or obligated overtime hours. Thus, substituted hours are not 
overtime hours for any purpose, and they may not be considered to be 
obligated overtime hours under Sec.  550.1621(a)(4) and (b)(4) (when 
within-tour overtime is substituted for LWOP), regularly scheduled 
overtime hours under Sec.  550.1624, or irregular overtime hours under 
Sec.  550.1625, despite their original character prior to substitution.
    As provided in Sec.  550.1603, the term leave without pay includes 
all types of nonpay status, including normal approved leave without pay 
(regular LWOP), absence without approval (AWOL), suspension, or 
furlough. Consistent with the treatment of leave without pay under the 
regular title 5 overtime rules (5 CFR 550.112(d)), these regulations 
provide for substituting hours outside the basic workweek for leave 
without pay within the basic workweek--for purposes of computing 
overtime pay. This treatment is necessary so overtime thresholds are 
properly applied. As specified in Sec.  550.1626(a)(4), the 
substitution is done solely for pay computation purposes and does not 
change the fact that an agent was in a particular nonpay status during 
the designated hours. For other purposes, the hours that are 
substituted are considered to have been performed when they were 
worked, not during the leave without pay hours.
    Consistent with 5 U.S.C. 5550(f)(1)(A), Sec.  550.1626(a)(1) 
provides that an equal period of time outside regular time (which could 
include work during obligated overtime hours or outside the regular 
tour) must be substituted for leave without pay during regular time. 
Consistent with 5 U.S.C. 5550(f)(1)(C), Sec.  550.1626(a)(2) provides 
that substitutions for leave without pay during regular time must be 
made before substitutions for absences during obligated overtime hours. 
Section 550.1626(a)(3) further provides, by authority of regulation, 
that overtime hours must be substituted in the following priority: 
first, irregular overtime hours; second, regularly scheduled overtime 
hours outside the regular tour of duty; and third, regularly scheduled 
overtime hours within the regular tour of duty. Priority is given to 
substituting irregular overtime hours, since those hours do not 
generate a cash payment.
    Section 550.1626(a)(5) mandates that overtime hours that are 
substituted for absence without approval (AWOL) or suspension may not 
be used in computing an agent's overtime supplement. BPAPRA did not 
address how substituted hours would affect the computation of the 
overtime supplement. By regulation, we are allowing hours that are 
substituted for regular LWOP or furlough to be treated as regular time 
hours that are multiplied by the hourly overtime supplement. We 
determined that it would be inappropriate to allow AWOL or suspension 
hours to generate an increased amount of overtime supplement even if 
other hours of work are substituted for those hours.
    We are not including a regulation to implement 5 U.S.C. 
5550(f)(1)(B), which stated that work performed on the same day as a 
period of leave without pay should be substituted first. We determined 
that, since overtime pay is computed on a biweekly basis, it makes no 
difference in an agent's pay entitlements if this same-day priority 
were followed or not followed.
    Section 550.1626(b) addresses substitution of other work outside 
the regular tour of duty for absence during obligated overtime hours, 
consistent with 5 U.S.C. 5550(f)(2). Consistent with 5 U.S.C. 
5550(f)(2)(B), Sec.  550.1626(b)(2) provides that work performed on the 
same day as a period of absence during obligated overtime hours must be 
substituted first, but only in the circumstance where same-day 
substitution rules make a difference--namely, the application of the 
advanced training provision in Sec.  550.1622(b)(2) that is applied on 
a daily basis. Section 550.1626(b)(3) further provides, by authority of 
regulation, that overtime hours outside the regular tour of duty 
(remaining after applying paragraphs (a) and (b)(2)) must be 
substituted for obligated overtime hours not worked in the following 
priority: first, irregular overtime hours; and second, regularly 
scheduled overtime hours outside the regular tour of duty. Priority is 
given to substituting irregular overtime hours, since those hours do 
not generate a cash payment. Section 550.1626(b)(4) makes clear that 
substitution of overtime hours is for pay computation purposes and does 
not change when those hours were actually worked for other purposes.
    Section 550.1626(c) addresses situations where an agent does not 
have sufficient additional work in a biweekly pay period to substitute 
for all periods of absence during obligated overtime hours, consistent 
with 5 U.S.C. 5550(f)(3) and (4). It mandates that any unused balance 
of compensatory time off accrued by an agent under Sec.  550.1625 must 
be applied towards any overtime hours debt newly accrued in the current 
pay period. It further mandates that, if an overtime hours debt remains 
after substitution and after application of unused compensatory time 
off, any additional work outside an agent's regular tour in future pay 
periods (that would otherwise be considered overtime work under Sec.  
550.1624 or Sec.  550.1625) must be applied towards the overtime hours 
debt until that debt is satisfied.
    Section 550.1626(d) addresses how to handle a situation where an 
agent has an unsatisfied overtime hours debt at the time of transfer or 
separation, which is not addressed in BPAPRA but is necessarily 
addressed in our regulations. At the time of transfer or separation, 
the overtime hours debt must be converted to a monetary debt equal to 
the result of multiplying the agent's hourly rate of basic pay by the 
number of hours owed by the agent. CBP would follow standard debt 
collection procedures to recover any debt.

Sec.  550.1631--Relationship to Other Types of Premium Pay

    Section 550.1631 provides rules regarding the circumstances under 
which an agent may receive other premium pay (not addressed elsewhere 
in subpart P), consistent with 5 U.S.C. 5550(c). It further provides 
that an agent's regular rate of basic pay (without any overtime 
supplement) must be used in computing any premium pay, consistent with 
5 U.S.C. 5550(c)(1) and (d)(2).

Sec.  550.1632--Relationship to Hazardous Duty Pay

    Section 550.1632 provides that an agent may receive hazardous duty 
pay under 5 U.S.C. 5545(d), if otherwise eligible, consistent with 5 
U.S.C. 5550(c)(3). It further provides that any hazard pay is computed 
using an agent's regular rate of basic pay (without any overtime 
supplement), consistent with 5 U.S.C. 5550(d).

Sec.  550.1633--Relationship to Other Provisions Using Basic Pay

    Section 550.1633 identifies the limited purposes for which an 
overtime supplement is treated as part of an agent's rate of basic pay, 
consistent with 5 U.S.C. 5550(d). In addition to the purposes 
prescribed in law (i.e., retirement, severance pay, workers' 
compensation, and life insurance), OPM is regulating that the overtime 
supplement is part of basic pay for purposes of advances in pay under 5 
U.S.C. 5524a and 5 CFR part 550, subpart B.

[[Page 34548]]

Sec.  550.1634--Relationship to Leave and Other Paid Time Off

    Section 550.1634 makes clear that agents remain covered by title 5 
provisions related to leave (5 U.S.C. chapter 63) and to other paid 
time off (e.g., holidays under 5 U.S.C. chapter 61, compensatory time 
off for religious purposes under 5 U.S.C. 5550a) and that the tour of 
duty for accrual of leave and for usage of leave or other paid time off 
is the 40-hour basic workweek.

Sec.  550.1635--Relationship to Alternative Work Schedules

    Section 550.1635 provides that agents may not have a flexible or 
compressed work schedule under 5 U.S.C. chapter 61, subchapter II. OPM 
interprets BPAPRA as establishing a special work schedule for all 
agents under 5 U.S.C. 5550, which supersedes any other authority to 
establish special schedules. CBP is still permitted to have flexible 
starting and stopping times for an agent's basic work day if it 
determines that such flexibility is appropriate for the position in 
question (e.g., a position with a Basic regular tour of duty that does 
not require fixed shifts).

Sec.  550.1636--Relationship to FLSA

    Section 550.1636 reflects the Fair Labor Standards Act (FLSA) 
amendments made by BPAPRA, which provided that the minimum wage and 
overtime provisions of the FLSA are not applicable to Border Patrol 
agents (i.e., they are automatically exempt from FLSA by virtue of 
being a Border Patrol agent). A conforming FLSA exemption is being 
added to OPM's FLSA regulations at 5 CFR 551.217.

Sec.  550.1637--Relationship to Travel Time

    Section 550.1637(a) provides that an agent's regular travel to and 
from home and a work location within the agent's official duty station 
(as defined in Sec.  550.112(j)) may not be considered hours of work, 
which is consistent with 5 U.S.C. 5550(e) as added by BPAPRA. This is 
also generally consistent with regular title 5 rules related to travel 
at 5 CFR 550.112(j)(2).
    Section 550.1637(b) addresses travel away from an agent's official 
duty station (as defined in Sec.  550.112(j)). Such travel is subject 
to the normally applicable hours-of-work rules in 5 U.S.C. 5542(b)(2) 
and 5 CFR 550.112(g). When an agent travels directly between home and a 
temporary duty location outside the limits of the agent's official duty 
station, the time the agent would have spent in normal home to work 
travel must be deducted from any creditable hours of work while 
traveling.

Sec.  550.1638--Relationship to Official Time

    Section 550.1638 addresses how official time under 5 U.S.C. 7131 
relates to BPAPRA pay provisions. Under 5 U.S.C. 7131--
     ``Any employee representing an exclusive representative in 
the negotiation of a collective bargaining agreement under this chapter 
shall be authorized official time for such purposes, including 
attendance at impasse proceeding, during the time the employee 
otherwise would be in a duty status. The number of employees for whom 
official time is authorized shall not exceed the number of individuals 
designated as representing the agency for such purposes.'' (See 5 
U.S.C. 7131(a).)
     ``The Authority shall determine whether any employee 
participating for, or on behalf of, a labor organization in any phase 
of proceedings before the Authority shall be authorized official time 
for such purpose during the time the employee otherwise would be in a 
duty status.'' (See 5 U.S.C. 7131(c).)
     Except as provided in the previous subsections, any 
employee representing an exclusive representative or in connection with 
any other matter covered by this chapter ``shall be granted official 
time in any amount the agency and the exclusive representative involved 
agree to be reasonable, necessary, and in the public interest.'' (See 5 
U.S.C. 7131(d).)

An employee using official time is paid a base salary even though not 
in a regular duty status. Official time is also considered to be 
``hours of work'' when the employee would otherwise be in a duty 
status. Generally, official time is used during an employee's basic 
(nonovertime) hours. Official time may also be used during management-
assigned overtime hours if an unplanned event occurs incident to 
representational functions that must be dealt with during the overtime 
hours.
    In drafting proposed regulations to carry out BPAPRA, we determined 
that certain issues related to official time needed to be addressed. 
First, the rules in 5 U.S.C. 5550(b)(2)(A)(ii) and (b)(3)(A)(ii) 
provide that the obligation to perform overtime hours of work as part 
of an agent's regular tour of duty is triggered only when the agent 
performs ``work'' during the 8-hour basic workday on that same day. 
Thus, we provide in Sec.  550.1621(e) and Sec.  550.1638 that official 
time is included as ``work'' in applying those section 5550 provisions. 
This is consistent with how OPM treats official time during basic 
(nonovertime) hours as hours of work in applying title 5 and FLSA 
overtime provisions, based on 5 U.S.C. 7131.
    In addition, we clarify in Sec.  550.1638 that Border Patrol agents 
who use official time to perform union representational duties may 
elect to have a Level 1 or Level 2 regular tour of duty, but generally 
must perform regular agency work (as opposed to union representational 
duties) during obligated overtime hours. However, use of official time 
during obligated overtime hours or any other overtime hours is 
permitted if an unplanned event arises incident to representational 
functions that must be dealt with during the overtime hours.

Conforming Changes to Other Regulations

    OPM is proposing conforming changes in a variety of regulations in 
part 410, part 550, part 551, and part 870. (Note: The descriptions of 
the proposed regulations below are stated in the present tense for 
readability.)
    Section 410.402 is amended to show the receipt of the Border Patrol 
agent overtime supplement as a permitted exception to the general bar 
on premium pay during periods of training.
    Section 550.103 is amended to revise the definition of premium pay 
and add a new definition of regular tour of duty so that these 
definitions can be used in applying 5 CFR part 550, subpart A (Premium 
Pay). The revised definition of premium pay makes clear the term 
includes a Border Patrol agent overtime supplement and the dollar value 
of compensatory time off earned by a Border Patrol agent, consistent 
with 5 U.S.C. 5542(g)(5)(F) and 5547(a)(1) and (e) and section 2(f) of 
BPAPRA.
    Section 550.107 is amended to provide that the Border Patrol agent 
overtime supplement is subject solely to the biweekly premium pay cap 
(not the annual cap), consistent with the treatment of other premium 
payments that are retirement-creditable basic pay. In prescribing this 
treatment, OPM is relying on its broad authority to regulate the 
premium pay subchapter in 5 U.S.C. 5548 plus its additional broad 
authority in section 2(h) of BPAPRA to issue regulations to carry out 
BPAPRA.
    Section 550.111 is amended by adding a new paragraph (j), which 
provides that special overtime thresholds apply to Border Patrol agents 
for the purpose of paying overtime under the regular title 5 overtime 
authority (for overtime not compensated by an overtime supplement or by 
the earning of compensatory time off). (See 5 U.S.C. 5542(g) and Sec.  
550.1623.)

[[Page 34549]]

    Sections 550.122, 550.132, and 550.172 are amended by adding new 
paragraphs, which provide that night pay differential, holiday premium 
pay, and Sunday pay are not payable for regularly scheduled overtime 
within a Border Patrol agent's regular tour duty (i.e., overtime hours 
compensated via the overtime supplement), consistent with 5 U.S.C. 
5550(b)(2)(C), (b)(3)(C), and (c)(1)(A). These new paragraphs also make 
clear that a Border Patrol agent overtime supplement is not included in 
the rate of basic pay used to compute the amount of these premium 
payments for other hours that qualify for such payments, consistent 
with 5 U.S.C. 5550(c)(1) and (d)(2).
    In Sec.  550.202, we are amending the definition of rate of basic 
pay used in applying the advances in pay regulations so that it 
includes a Border Patrol agent overtime supplement. This amendment 
relies on OPM's authority in 5 U.S.C. 5550(d)(1)(B) to regulate the 
purposes for which the overtime supplement is treated as basic pay.
    In Sec.  550.703, we are amending the definition of rate of basic 
pay used in applying the severance pay regulations so that it includes 
a Border Patrol agent overtime supplement, consistent with 5 U.S.C. 
5550(d)(1)(A).
    In Sec.  550.1204, we are amending paragraph (a) to provide that 
Border Patrol agent compensatory time off does not extend the period of 
leave used for calculating a lump-sum annual leave payment. This is 
consistent with the treatment of regular title 5 compensatory time off 
and with 5 U.S.C. 5542(g)(5)(D), which provides that an agent may not 
receive any cash value for unused compensatory time off.
    In Sec.  550.1205, we are adding a new paragraph (b)(5)(iv), which 
provides a Border Patrol agent overtime supplement is used in computing 
any annual leave lump-sum payment. This is an exercise of OPM's 
regulatory authority in 5 U.S.C. 5553 and is consistent with the 
treatment of AUO pay that Border Patrol agents have been receiving.
    In OPM's FLSA regulations, we are amending Sec.  551.216 and adding 
a new Sec.  551.217. In Sec.  551.216(c)(2), we are deleting references 
to Border Patrol agents, since they are no longer covered by the FLSA. 
In the new Sec.  551.217, we provide that Border Patrol agents are FLSA 
exempt (for purposes of minimum wage and overtime provisions), as 
required by the amendments to section 13(a) of the FLSA (29 U.S.C. 
213(a)) made by section (g)(2) of BPAPRA.
    In OPM's life insurance regulations, we are amending Sec.  870.204 
to provide that a Border Patrol agent overtime supplement is treated as 
part of an agent's ``annual pay'' used in computing life insurance 
benefits, as required by 5 U.S.C. 5550(d)(1)(A). (Congress relied on 
section 5550(d)(1)(A) rather than amend 5 U.S.C. 8704(c) to 
specifically reference the Border Patrol agent overtime supplement. 
Under section 8704(c), OPM may prescribe regulations governing the 
types of pay included in annual pay.)

Executive Order 12866 and Executive Order 13563

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

Regulatory Flexibility Act

    I certify that these proposed regulations will not have a 
significant economic impact on a substantial number of small entities 
because they will apply only to Federal agencies and employees.

List of Subjects

5 CFR Part 410

    Education, Government employees.

5 CFR Part 550

    Administrative practice and procedure, Claims, Government 
employees, Wages.

5 CFR Part 551

    Government employees, Wages.

5 CFR Part 870

    Administrative practice and procedure, Government employees, 
Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

U.S. Office of Personnel Management.
Katherine Archuleta,
Director.

    For the reasons stated in the preamble, OPM is proposing to amend 
parts 410, 550, 551, and 870 of title 5 of the Code of Federal 
Regulations as follows:

PART 410--TRAINING

0
1. The authority citation for part 410 continues to read as follows:

    Authority:  5 U.S.C. 1103(c), 2301, 2302, 4101, et seq.; E.O. 
11348, 3 CFR, 1967 Comp., p. 275, E.O. 11478, 3 CFR 1966-1970 Comp., 
page 803, unless otherwise noted, E.O. 13087; and E.O. 13152.

Subpart D--Paying for Training Expenses

0
2. In Sec.  410.402, add paragraph (b)(8) to read as follows:


Sec.  410.402  Paying premium pay.

* * * * *
    (b) * * *
    (8) Border Patrol agent overtime supplement. A Border Patrol agent 
may receive an overtime supplement under 5 U.S.C. 5550 and 5 CFR part 
550, subpart P, during training, subject to the limitation in 5 U.S.C. 
5550(b)(2)(G) and (b)(3)(G) and 5 CFR 550.1622(b).
* * * * *

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart A--Premium Pay

0
3. The authority citation for subpart A of part 550 is revised to read 
as follows:

    Authority:  5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv), 
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections 
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 
U.S.C. 5545a); section 2(h), Pub. L. 113-277, 128 Stat. 3005; E.O. 
12748, 3 CFR, 1992 Comp., p. 316.

0
4. Amend Sec.  550.103 by adding a sentence at the end of the 
definition of premium pay and adding in alphabetical order a definition 
of regular tour of duty to read as follows:


Sec.  550.103  Definitions.

* * * * *
    Premium pay * * * This includes an overtime supplement received by 
a Border Patrol agent under 5 U.S.C. 5550 and subpart P of this part 
for regularly scheduled overtime hours within the agent's regular tour 
of duty and the dollar value of hours of compensatory time off earned 
by such an agent.
* * * * *
    Regular tour of duty, with respect to a Border Patrol agent covered 
by 5 U.S.C. 5550 and subpart P of this part, means the basic 40-hour 
workweek plus any regularly scheduled overtime work hours that the 
agent is assigned to work as part of an officially established 5-day 
weekly work schedule generally consisting of--
    (1) 10-hour workdays (each including 2 overtime hours each day) in 
exchange for a 25-percent overtime supplement (Level 1); or
    (2) 9-hour workdays (each including 1 overtime hour each day) in 
exchange for a 12.5-percent overtime supplement (Level 2).
* * * * *
0
5. In Sec.  550.107, amend paragraph (a)(3) by removing the word 
``and'' at the end of paragraph, removing the period from the end of 
paragraph (a)(4) and adding in its place ``; and'', and adding 
paragraph (a)(5) to read as follows:

[[Page 34550]]

Sec.  550.107  Premium payments capped on a biweekly basis when an 
annual limitation otherwise applies.

    (a) * * *
    (5) An overtime supplement for regularly scheduled overtime hours 
within a Border Patrol agent's regular tour of duty under 5 U.S.C. 
5550.
* * * * *
0
6. In Sec.  550.111, add paragraph (j) to read as follows:


Sec.  550.111  Authorization of overtime pay.

* * * * *
    (j) For Border Patrol agents covered by 5 U.S.C. 5550 and subpart P 
of this part, overtime work means hours of work in excess of applicable 
thresholds, as specified in Sec.  550.1623, excluding hours that are--
    (1) Compensated by payment of an overtime supplement for regularly 
scheduled overtime within the agent's regular tour of duty under Sec.  
550.1621;
    (2) Compensated by the earning of compensatory time off under Sec.  
550.1625; or
    (3) Used in substitution or application under Sec.  550.1626.
0
7. In Sec.  550.122, add paragraph (e) to read as follows:


Sec.  550.122  Computation of night pay differential.

* * * * *
    (e) Border Patrol agents. For a Border Patrol agent covered by 5 
U.S.C. 5550 and subpart P of this part, no night pay differential is 
payable for regularly scheduled overtime hours within the agent's 
regular tour of duty, as required by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C), 
and (c)(1)(A). The overtime supplement payable for such scheduled 
overtime hours is not part of the agent's rate of basic pay used in 
computing the night pay differential for other hours that qualify for 
such a differential.
0
8. In Sec.  550.132, add paragraph (d) to read as follows:


Sec.  550.132  Relation to overtime, night, and Sunday pay.

* * * * *
    (d) For a Border Patrol agent covered by 5 U.S.C. 5550 and subpart 
P of this part, no holiday premium pay is payable for regularly 
scheduled overtime hours within the agent's regular tour of duty, as 
required by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C), and (c)(1)(A). The 
overtime supplement payable for such scheduled overtime hours is not 
part of the agent's rate of basic pay used in computing the holiday 
premium pay for other hours that qualify for such premium pay.
0
9. In Sec.  550.172, designate the current text as paragraph (a) and 
add paragraph (b) to read as follows:


Sec.  550.172  Relation to overtime, night, and holiday pay.

* * * * *
    (b) For a Border Patrol agent covered by 5 U.S.C. 5550 and subpart 
P of this part, no Sunday premium pay is payable for regularly 
scheduled overtime hours within the agent's regular tour of duty, as 
required by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C), and (c)(1)(A). The 
overtime supplement payable for such scheduled overtime hours is not 
part of the agent's rate of basic pay used in computing the Sunday 
premium pay for other hours that qualify for such premium pay.

Subpart B--Advances in Pay

0
10. The authority citation for subpart B of part 550 is revised to read 
as follows:

    Authority:  5 U.S.C. 5524a, 5527, 5545a(h)(2)(B), 5550(d)(1)(B); 
E.O. 12748, 3 CFR, 1992 comp., p. 316.

0
11. In Sec.  550.202, amend the definition of rate of basic pay by 
removing ``and'' at the end of paragraph (3), removing the period at 
the end of paragraph (4) and adding in its place ``; and'', and adding 
paragraph (5) to read as follows:


Sec.  550.202  Definitions.

* * * * *
    Rate of basic pay * * *
    (5) An overtime supplement for regularly scheduled overtime within 
a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550 (as 
allowed under 5 U.S.C. 5550(d)(1)(B)).

Subpart G--Severance Pay

0
12. The authority citation for subpart G of part 550 continues to read 
as follows:

    Authority:  5 U.S.C. 5595; E.O. 11257, 3 CFR, 1964-1965 Comp., 
p. 357.

0
13. In Sec.  550.703, amend the definition of rate of basic pay by 
removing ``and'' at the end of paragraph (3), removing the period at 
the end of paragraph (4) and adding in its place ``; and'', and adding 
paragraph (5) to read as follows:


Sec.  550.703  Definitions.

* * * * *
    Rate of basic pay * * *
    (5) An overtime supplement for regularly scheduled overtime within 
a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550 (as 
required by 5 U.S.C. 5550(d)(1)(a)).
* * * * *

Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual 
Leave

0
14. The authority citation for subpart L continues to read as follows:

    Authority: 5 U.S.C. 5553, 6306, and 6311.


Sec.  550.1204  [Amended]

0
15. In Sec.  550.1204, amend paragraph (a) by removing the phrase 
``compensatory time off earned under 5 U.S.C. 5543 and Sec.  550.114(d) 
or Sec.  551.531(d) of this chapter'' from the third sentence and 
inserting in its place the phrase ``unused compensatory time off earned 
under 5 U.S.C. 5543 and Sec.  550.114(d) or Sec.  551.531(d) of this 
chapter or under 5 U.S.C. 5542(g) and Sec.  550.1625''.
0
16. In Sec.  550.1205, amend paragraph (b)(5) by adding paragraph (iv) 
to read as follows:


Sec.  550.1205  Calculating a lump-sum payment.

* * * * *
    (b) * * *
    (5) * * *
    (iv) An overtime supplement for regularly scheduled overtime within 
a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550, as in 
effect immediately prior to the date the agent became eligible for a 
lump-sum payment under Sec.  550.1203. The agency must base the lump-
sum payment on the agent's assigned overtime supplement percentage. The 
assigned percentage will be considered fixed for the duration of the 
lump-sum annual leave projection period described in Sec.  550.1204, 
even if an annual period for elections under 5 U.S.C. 5550 begins 
during that projection period. In cases where the amount of the 
overtime supplement actually payable in a pay period was limited by a 
statutory cap, the agency must base the lump-sum payment on a reduced 
percentage rate that reflects the actual amount of the overtime 
supplement the agent could receive in a pay period.
* * * * *
0
17. Add subpart P to part 550 to read as follows:

Subpart P--Overtime Pay for Border Patrol Agents

General Provisions

Sec.
550.1601 Purpose and authority.
550.1602 Coverage.
550.1603 Definitions.
550.1604 Authority of U.S. Customs and Border Protection.
550.1605 Interpretation instruction.

Assignment of Regular Tour of Duty and Overtime Supplement

550.1611 Assignments for an annual period.
550.1612 Assignments made at other times.
550.1613 Selection of agents for assignment.
550.1614 Limit on percentage of agents who do not have a Level 1 
regular tour of duty.

[[Page 34551]]

550.1615 Pay assignment continuity.
550.1616 Corrective actions.

Treatment of Overtime Work

550.1621 Rules for types of regular tour of duty.
550.1622 Circumstances requiring special treatment.
550.1623 Overtime work outside the regular tour of duty.
550.1624 Regularly scheduled overtime outside the regular tour of 
duty.
550.1625 Irregular overtime and compensatory time off.
550.1626 Leave without pay during regular time and absences during 
obligated overtime hours.

Relationship to Other Provisions

550.1631 Other types of premium pay.
550.1632 Hazardous duty pay.
550.1633 Treatment of overtime supplement as basic pay.
550.1634 Leave and other paid time off.
550.1635 Alternative work schedule.
550.1636 Exemption from Fair Labor Standards Act.
550.1637 Travel time.
550.1638 Official time.

Subpart P--Overtime Pay for Border Patrol Agents

    Authority: 5 U.S.C. 5548 and 5550(b)(1)(B) and (d)(1)(B); 
section 2(h), Pub. L. 113-277, 128 Stat. 3005.

General Provisions


Sec.  550.1601  Purpose and authority.

    This subpart contains OPM regulations to implement section 2 of the 
Border Patrol Agent Pay Reform Act of 2014 (Pub. L. 113-277), which 
added section 5550 in title 5, United States Code, and made related 
statutory amendments. The Act created a special overtime pay program 
for Border Patrol agents in the U.S. Customs and Border Protection 
component within the Department of Homeland Security. OPM has authority 
under 5 U.S.C. 5548(a) to regulate subchapter V (Premium Pay) of 
chapter 55 of title 5, United States Code, including section 5550 and 
the Act's amendments to sections 5542 and 5547. OPM was also granted 
broad authority to promulgate necessary regulations to carry out the 
Act and the amendments made by the Act under section 2(h) of the Act.


Sec.  550.1602  Coverage.

    This subpart applies to an employee of the U.S. Customs and Border 
Protection component of the Department of Homeland Security (or any 
successor organization) who holds a position assigned to the Border 
Patrol Enforcement classification series 1896 or any successor series, 
consistent with classification standards established by OPM. Such an 
employee is referred to as a ``Border Patrol agent'' or ``agent'' in 
this subpart.


Sec.  550.1603  Definitions.

    For the purpose of this subpart--
    Advanced training means all training, other than initial training, 
provided on a whole-workday basis. Advanced training excludes training 
that covers only part of an 8-hour basic workday.
    Agent means a Border Patrol agent.
    Annual period means a 1-year period that begins on the first day of 
the first pay period beginning on or after January 1 of a given year 
and ends on the day before the first day of the first pay period 
beginning on or after January 1 of the next year. The term ``year'' in 
5 U.S.C. 5550(b)(1)(A) and (C) and the term ``leave year'' in 5 U.S.C. 
5542(g)(5)(A) are interpreted to be an annual period as defined here.
    Basic regular tour of duty means an officially established weekly 
regular tour of duty consisting of five 8-hour workdays (including no 
overtime hours) for which no overtime supplement is payable.
    Basic workday means the 8 hours of nonovertime work on a day within 
an agent's basic workweek.
    Basic workweek, for full-time employees, means the 40-hour workweek 
established in accordance with 5 CFR 610.111.
    Border Patrol agent means an employee to whom this subpart applies, 
as provided in Sec.  550.1602.
    CBP means the component of the Department of Homeland Security 
known as U.S. Customs and Border Protection (or any successor 
organization). When this term is used in the context of CBP making 
determinations or taking actions, it means management officials of CBP 
who are authorized to make the given determination or take the given 
action.
    Hybrid pay period means a biweekly pay period within which--
    (1) An agent has one type of established regular tour of duty for 
one part of the pay period and another type of regular tour of duty for 
a different part of the pay period; or
    (2) An individual is employed as an agent for only a portion of the 
pay period.
    Initial training means training for newly hired agents--including 
initial orientation sessions, basic training, and other preparatory 
activities--provided prior to the agent's first regular work assignment 
in which he or she will be authorized to make arrests and carry a 
firearm.
    Irregular overtime work means officially ordered or approved 
overtime work that is not regularly scheduled overtime work--i.e., 
overtime work that is not part of the agent's regularly scheduled 
administrative workweek.
    Leave without pay means a period of time within an agent's basic 
workweek during which the agent is in nonpay status, including periods 
of unpaid voluntary absence with approval, absence without approval 
(AWOL), suspension, or furlough.
    Level 1 regular tour of duty means an officially established weekly 
regular tour of duty generally consisting of five 10-hour workdays 
(including 2 overtime hours each workday) that provides entitlement to 
a 25 percent overtime supplement.
    Level 2 regular tour of duty means an officially established weekly 
regular tour of duty generally consisting of five 9-hour workdays 
(including 1 overtime hour each workday) that provides entitlement to a 
12.5 percent overtime supplement.
    Obligated overtime hours means regularly scheduled overtime hours 
that an agent with a Level 1 or Level 2 regular tour of duty is 
obligated to work as part of the agent's regular tour of duty, if the 
agent performs any amount of work during regular time on same day, and 
that are converted into an overtime hours debt when the agent fails to 
work the hours.
    Overtime hours debt means the balance of obligated overtime hours 
not worked for which the agent has not satisfied the hours obligation 
by applying compensatory time off hours or other overtime hours of work 
outside the agent's regular tour of duty.
    Overtime supplement means a payment received in addition to the 
regular amount of basic pay for nonovertime work in exchange for 
regularly scheduled overtime work within an agent's Level 1 or Level 2 
regular tour of duty. For an agent who is assigned a 10-hour workday as 
part of the agent's Level 1 regular tour of duty, the overtime 
supplement is 25 percent. For an agent who is assigned a 9-hour workday 
as part of the agent's Level 2 regular tour of duty, the overtime 
supplement is 12.5 percent. The overtime supplement is computed as 
provided in Sec.  550.1621(a)(4) and (b)(4).
    Pay period means a 14-day biweekly pay period.
    Rate of basic pay means the regular nonovertime rate of pay payable 
to an agent, excluding any overtime supplement, but including any 
applicable locality payment under 5 CFR part 531, subpart F; special 
rate supplement under 5 CFR part 530, subpart C; or similar payment or 
supplement under other legal authority, before any deductions and 
exclusive of

[[Page 34552]]

additional pay of any other kind. An overtime supplement is included as 
part of an agent's rate of basic pay for purposes outside this subpart, 
as provided in Sec.  550.1633.
    Regularly scheduled administrative workweek, for a full-time 
employee, means the period within an administrative workweek, 
established in accordance with 5 CFR 610.111, within which the employee 
is regularly scheduled to work.
    Regularly scheduled work means work (including overtime work) that 
is scheduled in advance of an administrative workweek under an agency's 
procedures for establishing workweeks in accordance with 5 CFR 610.111.
    Regular time means the regular basic (nonovertime) hours within an 
agent's 8-hour basic workday within the 40-hour basic workweek.
    Regular tour of duty means the basic 40-hour workweek plus any 
regularly scheduled overtime work hours that the agent is assigned to 
work as part of an officially established 5-day weekly work schedule 
generally consisting of--
    (1) 10-hour workdays (including 2 overtime hours each workday) in 
exchange for a 25 percent overtime supplement (Level 1); or
    (2) 9-hour workdays (including 1 overtime hour each workday) in 
exchange for a 12.5 percent overtime supplement (Level 2).


Sec.  550.1604  Authority of U.S. Customs and Border Protection.

    Authorized management officials of U.S. Customs and Border 
Protection are responsible for determining the mission requirements and 
operational needs of the organization and have the right to assign 
scheduled and unscheduled work as necessary to meet those requirements 
and needs, regardless of an agent's officially established regular tour 
of duty. (See subsections (a) and (f)(1) of section 2 of Pub. L. 113-
277 and 5 U.S.C. 5550(g).)


Sec.  550.1605  Interpretation instruction.

    As required by section 2(f) of the Border Patrol Agent Pay Reform 
Act of 2014 (Pub. L. 113-277), nothing in section 2 of the Act or this 
subpart may be construed to require compensation of an agent other than 
for hours during which the agent is actually performing work or using 
approved paid leave or other paid time off. This section does not 
prevent CBP from granting paid excused absence from an agent's basic 
workweek under other authority.

Assignment of Regular Tour of Duty and Overtime Supplement


Sec.  550.1611  Assignments for an annual period.

    (a) Annual period. The assignment of a regular tour of duty and 
overtime supplement to an agent is in effect for a full annual period 
(or the portion of such period during which the individual is employed 
as an agent), except as otherwise provided in this subpart. The annual 
period is a 1-year period that begins on the first day of the first pay 
period beginning on or after January 1 of a given year and ends on the 
day before the first day of the first pay period beginning on or after 
January 1 of the next year.
    (b) Information regarding annual election opportunity. No later 
than November 1 of each year, CBP must provide each currently employed 
agent with information regarding the opportunity to elect a regular 
tour of duty and corresponding overtime supplement for the next annual 
period. The information must include an explanation of election options 
and procedures. For an agent who will be in initial training status on 
the first day of the annual period, this paragraph is not applicable, 
and Sec.  550.1612(a) and (b) will apply instead.
    (c) Annual election opportunity. No later than December 1 of each 
year, an agent to whom paragraph (b) of this section is applicable may 
make an election among three options for the regular tour of duty and 
corresponding overtime supplement (as described in Sec.  550.1621) that 
the agent wishes to be applicable to him or her during the next annual 
period.
    (d) Failure to make an election. If an agent fails to make a timely 
election under paragraph (c) of this section, CBP must assign the agent 
a Level 1 regular tour of duty with a 25 percent overtime supplement, 
except as otherwise provided in paragraph (f) of this section.
    (e) Effect of agent election. CBP must assign an agent the regular 
tour of duty elected by the agent under paragraph (c) of this section 
unless CBP informs the agent of an alternative assignment, as provided 
under paragraph (f) of this section. CBP may change the assignment 
during the annual period, as provided under Sec.  550.1612(d).
    (f) Management assignment to tour. CBP may assign a different 
regular tour of duty than that elected by the agent for an upcoming 
annual period under the following circumstances:
    (1) An agent who is assigned canine care duties must be assigned a 
Level 1 regular tour of duty, subject to Sec.  550.1622(c);
    (2) An agent who is unable to perform overtime on a daily basis, as 
determined by CBP, must be assigned a Basic regular tour of duty with 
no overtime supplement until such time as CBP determines the agent is 
able to perform the required overtime on a daily basis;
    (3) An agent who holds a position at CBP headquarters, as a 
training instructor at a CBP training facility, or as a fitness 
instructor--or who holds another type of administrative position-- must 
be assigned a Basic regular tour of duty unless CBP determines a Level 
1 or Level 2 regular tour of duty may be assigned to the agent based on 
a comprehensive staffing analysis conducted for the agent's duty 
station as required by section 2(e) of the Border Patrol Agent Pay 
Reform Act of 2014 (Pub. L. 113-277);
    (4) CBP determines that an agent must be assigned to a Level 1 
regular tour of duty to ensure that not more than 10 percent (or higher 
percentage established under Sec.  550.1614(b)) of agents stationed at 
a location are assigned to a Level 2 regular tour of duty or a Basic 
regular tour of duty, as required by 5 U.S.C. 5550(b)(1)(E) and Sec.  
550.1614; or
    (5) CBP determines that assignment of a different regular tour of 
duty is necessary to comply with the pay assignment continuity 
provisions in 5 U.S.C. 5550(b)(1)(G) and Sec.  550.1615, 
notwithstanding any other provision of law or this subpart (including 
paragraphs (f)(1) through (4) of this section).


Sec.  550.1612  Assignments made at other times.

    (a) An individual who is newly hired as an agent must be assigned a 
Basic regular tour of duty during any period of initial training. After 
completing any period of initial training, an agent must be assigned a 
Level 1 regular tour of duty for any portion of the annual period 
remaining at that point, except under applicable circumstances 
described in paragraph (f) of Sec.  550.1611 or paragraph (b) of this 
section.
    (b) An agent who would otherwise be assigned a regular tour of duty 
under paragraph (a) of this section may submit an election of a 
different regular tour of duty to be effective on a prospective basis 
for the remaining portion of the annual period. CBP must provide the 
agent with election information no later than the date the agent begins 
a regular work assignment (i.e., after completing any period of initial 
training). CBP must assign an agent the regular tour of duty elected by 
the agent under this section unless CBP informs the agent of an 
alternative assignment based on the

[[Page 34553]]

circumstances described in paragraph (f) of Sec.  550.1611. Such 
election must be submitted to CBP no later than 30 days after the agent 
begins a regular work assignment and, if approved by CBP, is effective 
on the first day of the first pay period beginning on or after the 
later of--
    (1) The date the election was submitted; or
    (2) The date the agent completed initial training.
    (c) An individual who is newly hired as an agent during the period 
beginning on November 2 and ending on the day before the first day of 
the next annual period may make an election to take effect at the 
beginning of the next annual period notwithstanding the normally 
applicable December 1 election deadline, if the agent will not be in 
initial training status on the first day of the annual period. Such 
election must be submitted no later than 30 days after receiving 
election information, but before the first day of the annual period. 
Such an election is subject to the same requirements and conditions 
that apply to an election for an annual period under paragraphs (e) and 
(f) of Sec.  550.1611. If such election is not made, CBP must assign 
the agent a Level 1 regular tour of duty with a 25 percent overtime 
supplement for the next annual period, except under applicable 
circumstances described in paragraph (f) of Sec.  550.1611.
    (d) CBP may change an agent's assigned regular tour of duty during 
an annual period under the circumstances described in paragraph (f) of 
Sec.  550.1611 or paragraph (b) of Sec.  550.1622. For example, an 
agent's regular tour of duty may be changed one or more times during an 
annual period as necessary to comply with the pay assignment continuity 
provision described in Sec.  550.1611(f)(5).


Sec.  550.1613  Selection of agents for assignment.

    If application of paragraphs (f)(3) and (4) of Sec.  550.1611 (or 
application of those paragraphs through Sec.  550.1612) requires CBP to 
select agents for assignment to a particular regular tour of duty out 
of a pool of agents who prefer a different assignment, CBP must make 
any such selection consistent with an established written plan that 
includes the criteria that will be considered and the priority of those 
criteria. Such plan must be consistent with the requirements of this 
subpart.


Sec.  550.1614  Limit on percentage of agents who do not have a Level 1 
regular tour of duty.

    (a) CBP must take such action as is necessary, including unilateral 
assignment of agents to a Level 1 regular tour of duty, to ensure that 
not more than 10 percent of agents stationed at a location are assigned 
to a Level 2 regular tour of duty or a Basic regular tour of duty, as 
required by 5 U.S.C. 5550(b)(1)(E), notwithstanding any other provision 
of law or this subpart, except as provided by paragraphs (b), (c), and 
(d) of this section. For the purpose of this paragraph, the term 
``location'' means a Border Patrol sector, which includes all 
subordinate organizational structures and related geographic areas 
within the sector (e.g., stations).
    (b) CBP may waive the 10 percent limit in paragraph (a) of this 
section and apply a higher percentage limit if CBP determines it is 
able to adequately fulfill its operational requirements under that 
higher limit based on a comprehensive staffing analysis conducted for 
the agent's duty station under section 2(e) of the Border Patrol Agent 
Pay Reform Act of 2014 (Pub. L. 113-277).
    (c) The 10 percent limit in paragraph (a) does not apply to agents 
working at CBP headquarters or at a CBP training location.
    (d) Regardless of the percentage limits set under this section, 
assignments of regular tours of duty to individual agents must be made 
consistent with the requirement to ensure pay assignment continuity 
under Sec.  550.1615.


Sec.  550.1615  Pay assignment continuity.

    (a) Plan. (1) In consultation with OPM, CBP must develop and 
implement a plan to ensure, to the greatest extent practicable, that 
the assignment of a regular tour of duty to an agent during all 
consecutive 3-year periods within the control period specified in 
paragraph (b) of this section produces an average overtime supplement 
percentage (during each 3-year period) that is consistent with the 
agent's average overtime supplement percentage during the course of the 
agent's career prior to the beginning of that control period, subject 
to paragraph (c) of this section. The goal of this plan is to ensure 
that agents are not able to artificially enhance their retirement 
annuities during the period when the high-3 average pay may be 
determined (in accordance with 5 U.S.C. 8331(4) or 5 U.S.C. 8401(3)).
    (2) In applying paragraph (a)(1) of this section, an agent's 
assigned overtime supplement percentage (25 percent, 12.5 percent, or 0 
percent) must be used in computing the career average supplement 
regardless of whether or not the payable amount of the overtime 
supplement is limited by a premium pay cap established under 5 U.S.C. 
5547 and Sec. Sec.  550.105 and 550.107.
    (3) For purpose of computing the career average overtime supplement 
percentage, an agent's career is considered to encompass only those 
periods during which the agent was covered by this subpart. If an agent 
is in a control period specified in paragraph (b) of this section when 
the provisions of this subpart first become applicable to the agent, 
the agent's initially assigned overtime supplement percentage must be 
considered the agent's career average.
    (b) Control period. The period of time during which CBP must 
control an agent's assignment to a regular tour of duty begins on the 
date 3 years before the agent meets age and service requirements for an 
immediate retirement and remains in effect during all subsequent 
service in a Border Patrol agent position.
    (c) Consistency requirement. (1) The consistency requirement in 
paragraph (a) of this section is considered to be met when the agent's 
average overtime supplement percentage during all consecutive 3-year 
periods within the control period specified in paragraph (b) of this 
section is within 2.5 percentage points of the agent's average overtime 
supplement percentage during the course of the agent's career prior to 
the beginning of that control period, except as provided in paragraph 
(c)(2) of this section.
    (2) Notwithstanding the consistency requirement in paragraph (a) of 
this section, the CBP plan may allow an agent to be assigned a regular 
tour of duty that provides an overtime supplement percentage that is 
less than that necessary to produce an average percentage (during all 
consecutive 3-year periods within the control period specified in 
paragraph (b)) that is consistent with the agent's career average 
percentage if--
    (i) The agent's overtime supplement is limited by the premium pay 
cap under Sec. Sec.  550.105 and 550.107 and the agent voluntarily 
elects a regular tour of duty providing such a lesser overtime 
supplement percentage that is approved by CBP; or
    (ii) CBP determines an agent is unable to perform overtime on a 
daily basis due to a physical or medical condition affecting the agent 
and assigns the agent a Basic regular tour of duty, as described in 
Sec.  550.1611(f)(2), (but only to the extent such assignment makes it 
impossible to satisfy the consistency requirement during any given 
consecutive 3-year period).
    (d) CBP authority. (1) CBP may take such action as is necessary, 
including the unilateral assignment of a regular tour of duty to 
implement the plan

[[Page 34554]]

described in paragraph (a) of this section, except as provided in 
paragraph (d)(2) of this section.
    (2) Notwithstanding the requirements of 5 U.S.C. 5550(b)(1)(G) and 
this section, CBP is authorized to assign agents to regular tours of 
duty as necessary to meet operational requirements.
    (e) Reporting requirements--(1) Annual data reporting for agents 
subject to pay assignment continuity. For each agent within the control 
period specified in paragraph (b) of this section, CBP must provide to 
OPM no later than March 30th of each year the following information (in 
a format specified by OPM) based on data compiled through the end of 
the most recent annual period:
    (i) The date the agent became subject to controls on the assignment 
to a regular tour of duty;
    (ii) The date the agent will become subject to mandatory separation 
under 5 U.S.C. 8335(b) or 5 U.S.C. 8425(b);
    (iii) The service computation date based on eligibility under 5 
U.S.C. 8336(c) or 5 U.S.C. 8412(d);
    (iv) The average overtime supplement percentage during the course 
of the agent's career prior to the beginning of the control period 
specified in paragraph (b);
    (v) The average overtime supplement percentage for the time period 
beginning with the date the agent became subject to controls on the 
assignment to a regular tour of duty and ending on the last day of the 
most recent annual period;
    (vi) The average overtime supplement percentage for the last three 
annual periods (excluding any time that was not within a control period 
specified in paragraph (b) of this section);
    (vii) The average overtime supplement percentage for the most 
recent annual period (excluding any time that was not within a control 
period specified in paragraph (b) of this section), and;
    (viii) Any other information requested by OPM.
    (2) Annual data reporting for all agents. No later than March 30th 
of each year, CBP must provide to OPM the following information (in a 
format specified by OPM) for each agent compiled for the preceding 
calendar year based on salary payments made during that year:
    (i) The amount of earnings subject to retirement deductions, 
including overtime supplement payments, received during the most recent 
calendar year;
    (ii) The amount of earnings subject to retirement deductions during 
the most recent calendar year minus the total amount of the overtime 
supplement payments during that year;
    (iii) The service computation date computed as though law 
enforcement officer service is regular employee service (i.e., the 
``regular'' SCD);
    (iv) The service computation date computed with credit for law 
enforcement officer service, and any other service creditable for 
eligibility under 5 U.S.C. 8336(c) or 5 U.S.C. 8412(d) (i.e., the 
``LEO'' SCD);
    (v) Date of birth;
    (vi) Gender;
    (vii) Retirement system (e.g., CSRS, FERS, FERS-RAE, FERS-FRAE); 
and
    (viii) Any other information requested by OPM.
    (3) Additional data. CBP must provide additional data as requested 
by OPM at any time, including data on the percentage rate of 
administratively uncontrollable overtime under Sec.  550.154 during the 
period before the annual period that begins in January 2016.
    (f) Corrective actions. If it is determined that the consistency 
requirement described in paragraphs (a) and (c) of this section is not 
being met for a particular agent, CBP must document why the 
differential occurred and establish any necessary actions, including 
the modification of the plan described in paragraph (a) of this 
section, to ensure that the goal of pay assignment continuity is 
achieved going forward. CBP is not required to retroactively correct an 
agent's assigned tour or overtime supplement based on violation of the 
consistency requirement, except when CBP determines there exists, in 
connection with an agent's assigned overtime supplement, evidence of 
fraud, misrepresentation, fault, or lack of good faith on the part of 
that agent.


Sec.  550.1616  Corrective actions.

    If it is determined that CBP did not comply with applicable 
statutory or regulatory requirements in assigning an agent to a regular 
tour of duty under Sec. Sec.  550.1611 through 550.1614, CBP must take 
corrective action as soon as practicable. Such corrective action must 
be applied on a prospective basis. CBP is not required to retroactively 
change an agent's assigned tour or overtime supplement, except when CBP 
determines there exists, in connection with the agent's tour 
assignment, evidence of fraud, misrepresentation, fault, or lack of 
good faith on the part of that agent.

Treatment of Overtime Work


Sec.  550.1621  Rules for types of regular tour of duty.

    (a) Level 1 regular tour of duty. For an agent with a Level 1 
regular tour of duty and a 25 percent overtime supplement, the 
following rules apply:
    (1) The agent has an officially established weekly regular tour of 
duty generally consisting of five 10-hour workdays (an 8-hour basic 
workday and 2 regularly scheduled overtime hours);
    (2) The agent's 8-hour basic workday (regular time) may be 
interrupted by an unpaid off-duty meal break;
    (3) The obligation to perform 2 hours of overtime work on a day 
including part of the agent's regular tour of duty does not apply if 
the agent performs no work during regular time on that day, subject to 
paragraph (e) of this section;
    (4) As compensation for regularly scheduled overtime hours within 
the regular tour of duty, the agent is entitled to an overtime 
supplement equal to 25 percent of the agent's hourly rate of basic pay 
times the number of paid hours of regular time for the agent in the pay 
period (subject to the premium cap in Sec. Sec.  550.105 and 550.107 
and the restriction in Sec.  550.1626(a)(5)), and no additional 
compensation or compensatory time off may be provided for such overtime 
hours;
    (5) For any additional regularly scheduled overtime hours outside 
the regular tour of duty, the agent is entitled to overtime pay as 
provided in Sec.  550.1624, except as otherwise provided by Sec.  
550.1626;
    (6) For any irregular overtime hours, the agent is entitled to be 
credited with compensatory time off as provided in Sec.  550.1625, 
except as otherwise provided by Sec.  550.1626;
    (7) The agent must be charged corresponding amounts of paid leave, 
compensatory time off, other paid time off, or time in nonpay status 
for each hour (or part thereof) the agent is absent from duty during 
regular time, as provided in Sec.  550.1634, except as otherwise 
provided in Sec.  550.1626(a); and
    (8) If the agent is absent during regularly scheduled overtime 
hours within the agent's regular tour of duty that the agent is 
obligated to work, the agent accrues an obligation to perform other 
overtime work for each hour (or part thereof) the agent is absent, and 
such obligation must be satisfied as provided in Sec.  550.1626.
    (b) Level 2 regular tour of duty. For an agent with a Level 2 
regular tour of duty and a 12.5 percent overtime supplement, the 
following rules apply:

[[Page 34555]]

    (1) The agent has an officially established weekly regular tour of 
duty generally consisting of five 9-hour workdays (an 8-hour basic 
workday and 1 regularly scheduled overtime hour);
    (2) The agent's 8-hour basic workday (regular time) may be 
interrupted by an unpaid off-duty meal break;
    (3) The obligation to perform 1 hour of overtime work on a day 
including part of the agent's regular tour of duty does not apply if 
the agent performs no work during regular time on that day, subject to 
paragraph (e) of this section;
    (4) As compensation for regularly scheduled overtime hours within 
the regular tour of duty, the agent receives an overtime supplement 
equal to 12.5 percent of the agent's hourly rate of basic pay times the 
number of paid hours of regular time for the agent in the pay period 
(subject to the premium cap in Sec. Sec.  550.105 and 550.107 and the 
restriction in Sec.  550.1626(a)(5)), and no additional compensation or 
compensatory time off may be provided for such overtime hours;
    (5) For any additional regularly scheduled overtime hours outside 
the regular tour of duty, the agent is entitled to overtime pay as 
provided in Sec.  550.1624, except as otherwise provided by Sec.  
550.1626;
    (6) For any irregular overtime hours, the agent is entitled to be 
credited with compensatory time off as provided in Sec.  550.1625, 
except as otherwise provided by Sec.  550.1626;
    (7) The agent must be charged corresponding amounts of paid leave, 
compensatory time off, other paid time off, or time in nonpay status 
for each hour (or part thereof) the agent is absent from duty during 
regular time, as provided in Sec.  550.1634, except as otherwise 
provided in Sec.  550.1626(a); and
    (8) If the agent is absent during regularly scheduled overtime 
hours within the agent's regular tour of duty that the agent is 
obligated to work, the agent accrues an obligation to perform other 
overtime work for each hour (or part thereof) the agent is absent, and 
such obligation must be satisfied as provided in Sec.  550.1626.
    (c) Basic regular tour of duty. For an agent with a Basic regular 
tour of duty that includes no scheduled overtime hours and provides no 
overtime supplement, the following rules apply:
    (1) The agent has an officially established weekly regular tour of 
duty generally consisting of five 8-hour basic workdays;
    (2) The agent's 8-hour basic workday (regular time) may be 
interrupted by an unpaid off-duty meal break;
    (3) For any regularly scheduled overtime hours, the agent is 
entitled to overtime pay as provided in Sec.  550.1624, except as 
otherwise provided by Sec.  550.1626;
    (4) For any irregular overtime hours, the agent is entitled to be 
credited with compensatory time off as provided in Sec.  550.1625, 
except as otherwise provided by Sec.  550.1626; and
    (5) The agent must be charged corresponding amounts of paid leave, 
compensatory time off, other paid time off, or time in nonpay status 
for each hour (or part thereof) the agent is absent from duty during 
regular time, as provided in Sec.  550.1634, except as otherwise 
provided in Sec.  550.1626(a).
    (d) Effect of premium pay cap. If a premium pay cap established 
under 5 U.S.C. 5547 and Sec. Sec.  550.105 and 550.107 limits payment 
of an overtime supplement or regularly scheduled overtime pay, or 
limits crediting of compensatory time off, the affected agent is still 
required to perform assigned overtime work.
    (e) Meaning of ``work''. In applying paragraphs (a)(3) and (b)(3) 
of this section, the term ``work'' refers to paid hours of work, 
consistent with Sec.  550.112, except that paid leave and other paid 
time off when an agent is excused from duty are not considered to be 
work hours. Official time under 5 U.S.C. 7131 during regular time is 
considered to be paid hours of ``work'' during the time an employee 
otherwise would be in a duty status.


Sec.  550.1622  Circumstances requiring special treatment.

    (a) General. The rules in paragraphs (b) and (c) of this section 
provide for special treatment based on specified circumstances and 
apply notwithstanding any other provision of this subpart.
    (b) Advanced training. (1) During the first 60 days of advanced 
training in a calendar year, an agent's assigned regular tour of duty 
must be considered to continue and the agent must be deemed to have 
worked during any nonwork period within obligated overtime hours for 
the purpose of determining the agent's total hours to be compared to 
the applicable overtime threshold (as provided in Sec.  
550.1623(a)(2)(iv)), except as provided under paragraph (b)(2) of this 
section.
    (2) If an agent, during the period covered by paragraph (b)(1) of 
this section, performs creditable overtime work outside the agent's 
regular tour of duty on a day when the agent performed less than the 
required amount of obligated overtime work, the overtime work outside 
the regular tour of duty must be applied towards the obligated overtime 
hours, as provided in Sec.  550.1626(b). After any such substitution, 
CBP must credit the agent with hours of work for any remaining nonwork 
time during obligated overtime hours on the same day for the purpose of 
determining the agent's total hours to be compared to the applicable 
overtime threshold. For example, if an agent performs 2 creditable 
hours of regularly scheduled overtime work outside the agent's Level 1 
regular tour of duty on a training day when the agent performed half an 
hour of work during the 2 hours of obligated overtime, CBP would 
substitute 1.5 hours of regularly scheduled overtime outside the 
regular tour of duty for 1.5 hours of obligated overtime when no work 
was performed. CBP would not provide the agent with any credit for 
nonwork hours under paragraph (b)(1) of this section, since the 0.5 
hours of actual work plus the 1.5 substituted hours account for the 
entire 2-hour period. The agent would be paid for the unsubstituted 
half hour of creditable regularly scheduled overtime work under Sec.  
550.1624.
    (3) For days of advanced training in excess of 60 days in a 
calendar year, an agent must be assigned a Basic regular tour of duty 
and be treated accordingly. If this results in a hybrid pay period in 
which an agent has two types of regular tours of duty within the same 
biweekly pay period, CBP must determine the number of overtime hours 
outside the regular tour of duty as provided in Sec.  550.1623(c). For 
an agent who is assigned a Basic regular tour of duty during advanced 
training under this paragraph, CBP must change the agent's regular tour 
of duty to the type in effect before the Basic tour was assigned when 
the agent is no longer participating in advanced training.
    (4) Paragraphs (b)(1) through (3) of this section apply solely to 
advanced training that is provided in whole-workday increments (i.e., 
covering an entire 8-hour basic workday).
    (c) Canine care. For an agent assigned to provide care for a canine 
and assigned to the Level 1 regular tour of duty border patrol rate of 
pay, the combined sum of basic pay plus the 25 percent overtime 
supplement is considered to provide compensation for all canine care. 
Such an agent must be credited with 1 hour of regularly scheduled 
overtime work as part of the regular tour of duty on each day 
containing a part of that tour, without regard to the actual duration 
of such care or the time and day when such care was actually provided. 
That leaves the agent with an additional obligation to perform 1 other 
hour of regularly

[[Page 34556]]

scheduled overtime work as part of the agent's regular tour of duty on 
any day containing a part of the employee's tour, if the agent performs 
work during regular time on that day and thus has obligated overtime 
hours. An agent may receive no other compensation or compensatory time 
off for hours of canine care beyond what is specifically provided under 
this paragraph. If an agent is generally assigned to provide care for a 
canine, but is temporarily relieved of that duty for any reason (e.g., 
no dog available), the agent may not receive the 1-hour credit for 
canine care on a day when the agent is relieved from providing canine 
care.


Sec.  550.1623  Overtime work outside the regular tour of duty.

    (a) General. (1) For the purpose of determining hours of overtime 
work outside an agent's regular tour of duty in order to apply 
Sec. Sec.  550.1624, 550.1625, and 550.1626, CBP must apply the 
applicable biweekly overtime threshold prescribed in paragraphs (b) and 
(c) of this section. An agent's total hours of work (as determined 
under paragraph (a)(2) of this section) must be compared to the 
applicable threshold, and hours in excess of that threshold are 
overtime hours in applying Sec. Sec.  550.1624, 550.1625, and 550.1626. 
The 8-hour daily and 40-hour weekly overtime thresholds under 5 U.S.C. 
5542(a) and Sec.  550.111 are not applicable to agents.
    (2) An agent's total hours of work in a pay period for the purpose 
of applying applicable overtime thresholds is equal to the sum of:
    (i) Time determined to be hours of work in duty status (regular 
time or overtime), subject to this subpart, 5 U.S.C. 4109 and 5 CFR 
410.402 (related to training periods), and 5 U.S.C. 5542(b) and Sec.  
550.112 (establishing general rules), except that paragraphs (d) and 
(e) of Sec.  550.112 are superseded by Sec.  550.1626;
    (ii) Paid leave or other paid time off during a period of nonduty 
status within an agent's regular time;
    (iii) Obligated overtime hours during which no work is performed 
(creating a debt of hours) and for which no substitution is made under 
Sec.  550.1626(b);
    (iv) Nonwork hours deemed to be hours of work during obligated 
overtime hours on a day of advanced training under Sec.  550.1622(b); 
and
    (v) Overtime hours normally scheduled within an agent's regular 
tour of duty that an agent is not obligated to work because the agent 
performs no work during regular time on that day (as provided in 
paragraphs (a)(3) and (b)(3) of Sec.  550.1621).
    (b) Overtime thresholds for standard tours. (1) The applicable 
biweekly overtime threshold prescribed in paragraph (b)(2) of this 
section applies during a pay period to an agent whose regular tour of 
duty is fixed at one of the three standard tours for the entire pay 
period.
    (2) For an agent covered by paragraph (b)(1) of this section, the 
threshold used to determine whether an agent has performed overtime 
work outside the regular tour of duty in a given pay period is--
    (1) 100 hours for a Level 1 regular tour of duty;
    (2) 90 hours for a Level 2 regular tour of duty; or
    (3) 80 hours for a Basic regular tour of duty.
    (c) Overtime threshold for hybrid pay period. (1) For a hybrid pay 
period in which an agent has one type of regular tour of duty in effect 
for one part of the period and another type for another part of the 
period, the threshold used to determine whether an agent has performed 
overtime work outside the regular tour of duty in a given pay period is 
equal to the sum of the regular time hours (paid or unpaid) and the 
number of normally scheduled overtime hours within a regular tour of 
duty (whether obligated or not and whether worked or not) in the pay 
period. For example, if an agent has a Level 1 regular tour of duty in 
the first week of a pay period and a Level 2 regular tour of duty in 
the second week, the agent's regular time hours would be 40 in the 
first week and 40 in the second week and the normally scheduled 
overtime hours within a regular tour of duty would be 10 (5 days times 
2 hours each day) in the first week and 5 (5 days times 1 hour each 
day) in second week, resulting in an biweekly overtime threshold of 95 
hours.
    (2) For a hybrid pay period in which an individual is employed as a 
Border Patrol agent for only part of the pay period, the threshold used 
to determine whether an agent has performed overtime work outside the 
regular tour of duty in a given pay period is equal to the sum of the 
paid regular time hours (paid or unpaid) and the number of normally 
scheduled overtime hours within a regular tour of duty (whether 
obligated or not and whether worked or not) during the portion of the 
pay period the individual was employed as an agent. For example, if an 
individual is employed as an agent only during the second week of a pay 
period and has a Level 1 regular tour of duty, the overtime threshold 
would be 50 hours in determining whether the agent has overtime hours 
in that week that are compensable under Sec. Sec.  550.1624 through 
550.1626.


Sec.  550.1624  Regularly scheduled overtime outside the regular tour 
of duty.

    (a) Coverage. Any regularly scheduled overtime hours outside an 
agent's regular tour of duty, as specified in Sec.  550.1623, are 
covered by this section, except that such hours are excluded from 
coverage under this section when required by the superseding provisions 
in Sec.  550.1626.
    (b) Rates. Agents receive overtime pay at the rates specified under 
5 U.S.C. 5542(a) and Sec.  550.113 for regularly scheduled overtime 
hours covered by paragraph (a) of this section, subject to the premium 
pay limitation established under 5 U.S.C. 5547 and Sec. Sec.  550.105 
and 550.107. An agent's rate of basic pay (without any overtime 
supplement) is used in computing overtime pay for such hours.
    (c) Avoiding additional regularly scheduled overtime. (1) As 
required by section 2(c)(2) of the Border Patrol Agent Pay Reform Act 
of 2014 (Pub. L. 113-277), CBP must, to the maximum extent practicable, 
avoid the use of regularly scheduled overtime work by agents outside of 
the regular tour of duty.
    (2) Notwithstanding paragraph (c)(1) of this section, CBP may allow 
use of regularly scheduled overtime work outside an agent's regular 
tour of duty if an agent volunteers to perform such overtime (e.g., to 
reduce an overtime hours debt).


Sec.  550.1625  Irregular overtime and compensatory time off.

    (a) Coverage. An agent is entitled to compensatory time off as 
provided in this section for irregular overtime hours outside an 
agent's regular tour of duty, as specified in Sec.  550.1623, except 
that such hours are excluded from coverage under this section (except 
paragraph (c) of this section) when required by the superseding 
provisions in Sec.  550.1626. The compensatory time off provisions in 5 
U.S.C. 5543 and 5 CFR 550.114 are not applicable to an agent.
    (b) Earning on an hour-for-hour basis for irregular overtime. 
Subject to the limitations specified in this section and the 
superseding provisions in Sec.  550.1626, an agent must receive 
compensatory time off for an equal amount of time spent performing 
irregular overtime work.
    (c) Call-back overtime work. Notwithstanding paragraph (b) of this 
section, consistent with 5 U.S.C. 5542(b)(1) and Sec.  550.112(h), an 
agent must be deemed to have performed 2 hours of irregular overtime 
work for a

[[Page 34557]]

lesser amount of irregular overtime work if--
    (1) An agent is required perform such work on a day when the agent 
was not scheduled to work; or
    (2) An agent is required to return to the agent's place of 
employment to perform such work.
    (d) Earning limited by premium pay cap. An agent may not be 
credited with earning compensatory time off if the value of such time 
off would cause the sum of the agent's basic pay and premium pay in the 
given pay period to exceed the limitation established under 5 U.S.C. 
5547 and Sec. Sec.  550.105 and 550.107 in the period in which it was 
earned. The dollar value of compensatory time for the purpose of this 
paragraph is the amount of overtime pay the agent would have received 
for the period during which compensatory time off was earned if the 
overtime had been regularly scheduled outside the agent's regular tour 
of duty.
    (e) Pay period limit. (1) An agent may not earn more than 10 hours 
of compensatory time off during any pay period unless--
    (i) CBP, as it determines appropriate, approves in writing a waiver 
of the 10-hour limit; and
    (ii) Such waiver approval is executed in advance of the performance 
of any work for which compensatory time off is earned.
    (2) If a waiver of the 10-hour limit described in paragraph (e)(1) 
of this section is not granted, the agent involved may not be ordered 
to perform the associated overtime work.
    (f) Annual period limit. An agent may not earn more than 240 hours 
of compensatory time off during an annual period.
    (g) Usage. (1) An agent may use compensatory time off by being 
excused from duty during regular time (in an amount equal to the 
compensatory time being used) during the agent's basic workweek.
    (2) An agent's balance of unused compensatory time off is used to 
satisfy an overtime hours debt, as provided in Sec.  550.1626(c)(1).
    (h) Time limit for usage and forfeiture. An agent must use any 
hours of compensatory time off not later than the end of the 26th pay 
period after the pay period during which the compensatory time off was 
earned. Any compensatory time off not used within that time limit, or 
prior to separation from an agent position, is forfeited and not 
available for any purpose, regardless of the circumstances. An agent 
may not receive any cash value for unused compensatory time off. An 
agent may not receive credit towards the computation of the agent's 
retirement annuity for unused compensatory time off.


Sec.  550.1626  Leave without pay during regular time and absences 
during obligated overtime hours.

    (a) Substitution for leave without pay during regular time. (1) For 
any period of leave without pay during an agent's regular time (basic 
workweek), an equal period of work outside the agent's regular time in 
the same pay period must be substituted to the extent such work was 
performed. Any time substituted for leave without pay must be treated 
for all pay computation purposes as if it were regular time (except as 
provided in paragraph (a)(5) of this section) and may not be considered 
an overtime hour of work for any purpose, including Sec. Sec.  
550.1621(a)(4) and (b)(4), 550.1624, and 550.1625.
    (2) Hours of work must be substituted for regular time work under 
paragraph (a)(1) of this section before being substituted for regularly 
scheduled overtime within the agent's regular tour of duty under 
paragraph (b) of this section.
    (3) Hours used for substitution under paragraph (a)(1) of this 
section must be substituted in the following priority order: First, 
irregular overtime hours; second, regularly scheduled overtime hours 
outside the regular tour of duty; and third, regularly scheduled 
overtime hours within the regular tour of duty.
    (4) The substitution of overtime hours for leave without pay is 
solely for pay computation purposes. The substitution does not change 
the hours of an agent's basic workweek or the fact that the agent was 
in a particular type of nonpay status during those hours. The hours 
that are substituted are considered to have been performed when they 
were worked, not during the leave without pay hours for which they are 
substituted. For example, if an agent performs 4 hours of overtime work 
outside the agent's regular tour of duty during the first week of a pay 
period and then is placed in leave without pay during the second week 
due to a shutdown furlough caused by a lapse in appropriations, the 4 
hours may be substituted for furlough hours for the purpose of 
computing pay owed the agent for the week before the furlough began.
    (5) If overtime hours are substituted for an absence without 
approval (AWOL) or a suspension, the basic pay for such substituted 
hours may not be used in computing an agent's overtime supplement.
    (b) Substitution for absences during obligated overtime hours 
within the regular tour of duty. (1) For a period of absence during 
obligated overtime hours within an agent's regular tour of duty, an 
equal period of work outside the agent's regular tour of duty in the 
same pay period must be substituted to the extent such work was 
performed. Any time so substituted must be treated for all pay 
computation purposes as if it were obligated overtime work and may not 
be considered an overtime hour of work for any other purpose, including 
Sec. Sec.  550.1624 and 550.1625.
    (2) In substituting hours of work under paragraph (b)(1) of this 
section, work performed on the same day as the period of absence must 
be substituted first in circumstances described in Sec.  
550.1622(b)(2). Hours substituted under this paragraph must be 
substituted in the following priority order: First, irregular overtime 
hours; and second, regularly scheduled overtime hours outside the 
regular tour of duty.
    (3) After substituting hours under paragraph (b)(2) of this 
section, any remaining hours used for substitution under paragraph 
(b)(1) of this section must be substituted in the following priority 
order: First, irregular overtime hours; and second, regularly scheduled 
overtime hours outside the regular tour of duty.
    (4) The substitution of overtime hours outside the regular tour of 
duty for obligated overtime hours not worked is solely for pay 
computation purposes. The substitution does not change the hours of an 
agent's regular tour of duty. The hours that are substituted are 
considered to have been performed when they were worked, not during the 
obligated overtime hours for which they are substituted.
    (c) Application of compensatory time off or future overtime work to 
offset overtime hours debt. (1) If a Border Patrol agent does not have 
sufficient additional work in a pay period to substitute for all 
periods of absence during obligated overtime hours within the agent's 
regular tour of duty for that pay period, any unused balance of 
compensatory time off hours previously earned under Sec.  550.1625 must 
be applied towards the newly accrued overtime hours debt.
    (2) If an agent has a remaining overtime hours debt after applying 
paragraphs (b) and (c)(1) of this section, any additional overtime work 
outside the agent's regular tour of duty in subsequent pay periods that 
would otherwise be credited under Sec. Sec.  550.1624 or section 
550.1625 must be applied towards the overtime hours debt until

[[Page 34558]]

that debt is satisfied. The application of such hours must be done in 
the following priority order: First, irregular overtime hours; and 
second, regularly scheduled overtime hours outside the regular tour of 
duty. Any overtime hour applied under this paragraph (c)(2) may not be 
considered an overtime hour of work for any other purpose.
    (d) Unsatisfied overtime hours debt at transfer or separation. Any 
unsatisfied overtime hours debt that exists at the time of transfer to 
a non-agent position or separation from Federal service must be 
converted to a monetary debt equal to the result of multiplying the 
agent's hourly rate of basic pay at the time of separation or transfer 
by the number of hours in the overtime hours debt. CBP must follow 
standard debt collection procedures to recover any debt.

Relationship to Other Provisions


Sec.  550.1631  Other types of premium pay.

    (a) An agent may not receive premium pay for night, Sunday, or 
holiday work for hours of regularly scheduled overtime work within the 
agent's regular tour of duty.
    (b) An agent may receive premium pay for night, Sunday, or holiday 
work, as applicable, for hours not covered by paragraph (a) of this 
section, in accordance with 5 U.S.C. 5545(a) and (b) and section 5546 
and corresponding regulations, except that section 5546(d) does not 
apply. (Contrary to section 5546(d), for an agent, pay for overtime 
work on a Sunday or holiday is determined under 5 U.S.C. 5542(g), not 
under section 5546(d).) The agent's rate of basic pay (without any 
overtime supplement) must be used in computing such premium payments.
    (c) An agent may not be paid standby duty premium pay under 5 
U.S.C. 5545(c)(1) or administratively uncontrollable overtime pay under 
5 U.S.C. 5545(c)(2).


Sec.  550.1632  Hazardous duty pay.

    An agent is eligible for hazardous duty pay, subject to the 
requirements in 5 U.S.C. 5545(d) and subpart I of this part. The 
agent's rate of basic pay (without any overtime supplement) must be 
used in computing any hazardous duty pay.


Sec.  550.1633  Treatment of overtime supplement as basic pay.

    Regularly scheduled overtime pay with an agent's regular tour of 
duty is treated as part of basic pay or basic salary only for the 
following purposes:
    (a) 5 U.S.C. 5524a and 5 CFR part 550, subpart B, pertaining to 
advances in pay;
    (b) 5 U.S.C. 5595(c) and 5 CFR part 550, subpart G, pertaining to 
severance pay;
    (c) 5 U.S.C. 8114(e), pertaining to workers' compensation;
    (d) 5 U.S.C. 8331(3) and 5 U.S.C. 8401(4) and related provisions 
that rely on the definition in those paragraphs, pertaining to 
retirement benefits;
    (e) Subchapter III of chapter 84 of title 5, United States Code, 
pertaining to the Thrift Savings Plan;
    (f) 5 U.S.C. 8704(c), pertaining to life insurance; and
    (g) For any other purposes explicitly provided for by law or as the 
Office of Personnel Management may prescribe by other regulation.


Sec.  550.1634  Leave and other paid time off.

    (a) An agent is subject to the rules governing leave accrual and 
usage under 5 U.S.C. chapter 63 on the same basis as other employees. 
The tour of duty for leave accrual and usage purposes is the basic 
workweek, which excludes regularly scheduled overtime hours within the 
regular tour of duty established under this subpart. The agent must be 
charged corresponding amounts of leave for each hour (or part thereof) 
the agent is absent from duty during regular time (except that full 
days off for military leave must be charged when required).
    (b) An agent is subject to the normally applicable rules governing 
other types of paid time off (such as holiday time off under 5 U.S.C. 
chapter 61, compensatory time off for religious observances under 
subpart J of this part, or compensatory time off for travel under 
subpart N of this part) on the same basis as other covered employees. 
The tour of duty used in applying those rules is the basic workweek, 
which excludes regularly scheduled overtime hours within the regular 
tour of duty established under this subpart. The agent must be charged 
corresponding amounts of paid time off for each hour (or part thereof) 
the agent is absent from duty during regular time.
    (c) In computing a lump-sum annual leave payment under 5 U.S.C. 
5551-5552, an overtime supplement for an agent's regularly scheduled 
overtime hours within the agent's regular tour of duty is included, as 
provided in Sec.  550.1205(b)(5)(iv).


Sec.  550.1635  Alternative work schedule.

    An agent may not have a flexible or compressed work schedule under 
5 U.S.C. chapter 61, subchapter II. The regular tour of duty 
established under this subpart is a special work schedule established 
under 5 U.S.C. 5550. CBP may allow flexible starting and stopping times 
for an agent's basic workday if it determines such flexibility is 
appropriate for the position in question.


Sec.  550.1636  Exemption from Fair Labor Standards Act.

    The minimum wage and the hours of work and overtime pay provisions 
of the Fair Labor Standards Act do not apply to Border Patrol agents. 
(See also 5 CFR 551.217.)


Sec.  550.1637  Travel time.

    (a) A Border Patrol agent's travel time to and from home and the 
agent's regular duty station (or to an alternative work location within 
the limits of the agent's official duty station, as defined in Sec.  
550.112(j)) may not be considered hours of work under any provision of 
law.
    (b) Official travel time away from an agent's official duty station 
may be creditable hours of work as provided in Sec.  550.112(g). When 
an agent travels directly between home and a temporary duty location 
outside the limits of the agent's official duty station (as defined in 
Sec.  550.112(j)), the time the agent would have spent in normal home 
to work travel must be deducted from any creditable hours of work while 
traveling.


Sec.  550.1638  Official Time.

    An agent who uses official time under 5 U.S.C. 7131 may be assigned 
to a Level 1 or Level 2 regular tour of duty, but is required to 
perform agency work during obligated overtime hours or to accrue an 
overtime hours debt. Official time may be used during overtime hours 
only when an event arises incident to representational functions that 
must be dealt with during the overtime hours. If CBP determines that an 
agent's official time duties during the basic workday make it 
impracticable to perform agency work during the scheduled obligated 
overtime hours, CBP must provide the agent with an opportunity to 
eliminate any overtime hours debt by working at another time. As 
provided in Sec.  550.1621(e), official time during regular time is 
considered to be ``work'' when an agent otherwise would be in an duty 
status in applying paragraphs (a)(3) and (b)(3) of Sec.  550.1621.

PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT

0
18. The authority citation for part 551 continues to read as follows:

    Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor 
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29 
U.S.C. 204f).


[[Page 34559]]


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

Subpart B--Exemptions and Exclusions

* * * * *


Sec.  551.216  Law enforcement activities and 7(k) coverage for FLSA 
pay and exemption determinations.

* * * * *
    (c) * * *
    (2) Employees whose primary duties involve patrol and control 
functions performed for the purpose of detecting and apprehending 
persons suspected of violating criminal laws;
* * * * *
0
20. Add Sec.  551.217 to subpart B to read as follows:


Sec.  551.217  Exemption of Border Patrol agents.

    A Border Patrol agent (as defined in 5 U.S.C. 5550(a)(2) and 5 CFR 
550.1603) is exempt from the minimum wage and overtime provisions of 
the Act.

PART 870--FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM

0
21. The authority citation for part 870 is revised to read as follows:

    Authority:  5 U.S.C. 8704(c), 8716; Subpart J also issued under 
section 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 
870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104-134, 
110 Stat. 1321; Sec. 870.302(a)(3) also issued under sections 
11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105-33, 111 
Stat. 251, and section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 
870.302(a)(3) also issued under section 145 of Pub. L. 106-522, 114 
Stat. 2472; Secs. 870.302(b)(8), 870.601(a), and 870.602(b) also 
issued under Pub. L. 110-279, 122 Stat. 2604; Subpart E also issued 
under 5 U.S.C. 8702(c); Sec. 870.601(d)(3) also issued under 5 
U.S.C. 8706(d); Sec. 870.703(e)(1) also issued under section 502 of 
Pub. L. 110-177, 121 Stat. 2542; Sec. 870.705 also issued under 5 
U.S.C. 8714b(c) and 8714c(c); Pub. L. 104-106, 110 Stat. 521.

Subpart B--Types and Amount of Insurance

0
22. In Sec.  870.204, amend paragraph (a)(2) by removing the word 
``and'' from the end of paragraph (x), removing the period at the end 
of paragraph (xi) and adding in its place ``; and'', and adding a new 
paragraph (xii) to read as follows:


Sec.  870.204  Annual rates of pay.

* * * * *
    (a) * * *
    (2) * * *
    (xii) An overtime supplement for regularly scheduled overtime 
within a Border Patrol agent's regular tour of duty under 5 U.S.C. 5550 
(as required by 5 U.S.C. 5550(d)).
* * * * *
[FR Doc. 2015-14809 Filed 6-16-15; 8:45 am]
 BILLING CODE 6325-39-P



                                                  34540

                                                  Proposed Rules                                                                                                 Federal Register
                                                                                                                                                                 Vol. 80, No. 116

                                                                                                                                                                 Wednesday, June 17, 2015



                                                  This section of the FEDERAL REGISTER                    ‘‘BPAPRA.’’ BPAPRA established a new                   changed significantly since the AUO
                                                  contains notices to the public of the proposed          method of compensating Border Patrol                   law was first enacted in 1954. In
                                                  issuance of rules and regulations. The                  agents for overtime work. These                        particular, CBP prefers deploying agents
                                                  purpose of these notices is to give interested          regulations affect only Border Patrol                  for scheduled 10-hour shifts, which is
                                                  persons an opportunity to participate in the            agents employed by the U.S. Customs                    incompatible with AUO, which covers
                                                  rule making prior to the adoption of the final
                                                                                                          and Border Protection (CBP) component                  irregular overtime. Congress determined
                                                  rules.
                                                                                                          of the Department of Homeland Security                 that Border Patrol agents needed a
                                                                                                          (DHS). Most BPAPRA provisions are                      reformed overtime program that is
                                                  OFFICE OF PERSONNEL                                     effective on the first day of the first pay            consistent with the current nature of the
                                                  MANAGEMENT                                              period beginning on or after January 1,                work and the desired work schedules,
                                                                                                          2016.                                                  and therefore enacted BPAPRA.
                                                  5 CFR PARTS 410, 550, 551, and 870                                                                             Summary of BPAPRA
                                                                                                          Background
                                                  RIN 3206–AN19                                                                                                     Under BPAPRA, in place of AUO, a
                                                                                                             Currently, Border Patrol agents
                                                                                                          generally receive a special form of                    new form of overtime compensation
                                                  Overtime Pay for Border Patrol Agents                                                                          would apply to Border Patrol agents.
                                                                                                          overtime compensation called
                                                  AGENCY:  Office of Personnel                            ‘‘Administratively Uncontrollable                      The key features of BPAPRA are
                                                  Management.                                             Overtime’’ (AUO) under 5 U.S.C.                        summarized below:
                                                  ACTION: Proposed rule with request for                  5545(c)(2) and 5 CFR 550.151–550.163.                     • Most Border Patrol agents will have
                                                  comments.                                               AUO may be used for employees who                      the opportunity each year to elect to be
                                                                                                          perform substantial amounts of irregular               assigned to one of three types of
                                                  SUMMARY:   The Office of Personnel                      overtime (OT) work that cannot be                      ‘‘regular tour of duty’’ which provide
                                                  Management is issuing proposed                          controlled administratively. AUO                       different rates of compensation: (1) A
                                                  regulations to implement section 2 of                   provides complete compensation under                   Level 1 regular tour of duty, which
                                                  the Border Patrol Agent Pay Reform Act                  title 5 for all irregular overtime hours—              provides an overtime supplement equal
                                                  of 2014, as amended, which established                  i.e., overtime that is not regularly                   to 25 percent of basic pay for a regular
                                                  a new method of compensating Border                                                                            schedule of 10 hours each regular
                                                                                                          scheduled in advance of the workweek.
                                                  Patrol agents for overtime work.                                                                               workday, including 2 overtime hours;
                                                                                                          AUO is paid as a percentage of basic
                                                  Payments under this new provision will                                                                         (2) a Level 2 regular tour of duty, which
                                                                                                          pay, generally ranging from 10 to 25
                                                  become payable beginning with the first                                                                        provides an overtime supplement equal
                                                                                                          percent, with the exact percentage
                                                  pay period beginning in January 2016.                                                                          to 12.5 percent of basic pay for a regular
                                                                                                          depending on the average number of
                                                  These regulations affect only Border                                                                           schedule with 9 hours each regular
                                                                                                          irregular overtime hours per week—
                                                  Patrol agents in the U.S. Customs and                                                                          workday, including 1 overtime hour;
                                                                                                          subject to the title 5 premium pay cap.
                                                  Border Protection component of the                                                                             and (3) a Basic regular tour of duty with
                                                                                                          An employee who is nonexempt under
                                                  Department of Homeland Security.                                                                               a regular 8-hour workday, which
                                                                                                          the Fair Labor Standards Act (FLSA)
                                                  DATES: Comments must be received on                                                                            provides no overtime supplement.
                                                                                                          also receives an extra half rate for                      • CBP may assign regular tours of
                                                  or before July 17, 2015.                                irregular overtime hours as FLSA                       duty in certain circumstances without
                                                  ADDRESSES: You may submit comments,                     overtime pay. AUO recipients receive                   regard to agent elections. For example,
                                                  identified by RIN number ‘‘3206–AN19’’                  regular title 5 or FLSA overtime pay for               agents assigned to care for canines must
                                                  using any of the following methods:                     regularly scheduled overtime hours.
                                                     Federal eRulemaking Portal:                                                                                 be assigned a Level 1 regular tour of
                                                                                                          AUO is basic pay for retirement                        duty. Agents in certain positions—
                                                  www.regulations.gov. Follow the                         purposes for recipients who are covered
                                                  instructions for submitting comments.                                                                          headquarters, administrative, or training
                                                                                                          under the special retirement program                   or fitness instructor—must be assigned
                                                     Email: pay-leave-policy@opm.gov.                     provisions pertaining to law
                                                     Mail: Brenda Roberts, Deputy                                                                                a Basic regular tour of duty unless a
                                                                                                          enforcement officers. Border Patrol                    different tour is justified based on a
                                                  Associate Director, Pay and Leave,                      agents qualify as such law enforcement
                                                  Employee Services, U.S. Office of                                                                              staffing analysis. In addition, generally
                                                                                                          officers.                                              no more than 10 percent of agents at a
                                                  Personnel Management, Room 7H31,
                                                                                                             Recently, the use of AUO at DHS has                 location may have a Level 2 or Basic
                                                  1900 E Street NW., Washington, DC
                                                                                                          been under scrutiny from the Congress,                 regular tour of duty. In other words,
                                                  20415–8200.
                                                                                                          the Office of Special Counsel, and the                 generally at least 90 percent of agents at
                                                  FOR FURTHER INFORMATION CONTACT:                        Government Accountability Office.                      a location must have a Level 1 regular
                                                  Bryce Baker by telephone at (202) 606–                  Various reviews indicated that AUO                     tour of duty. CBP may revise the
                                                  2858 or by email at pay-leave-policy@                   was being used improperly for some                     percentage requirement for a location if
                                                  opm.gov.                                                DHS employees, and DHS has taken                       justified based on a staffing analysis.
srobinson on DSK5SPTVN1PROD with PROPOSALS




                                                  SUPPLEMENTARY INFORMATION: The Office                   actions to address the matter. As                         • The requirement for 1 or 2 hours of
                                                  of Personnel Management (OPM) is                        documented in the August 26, 2014,                     scheduled overtime within a Level 2 or
                                                  issuing proposed regulations to                         report on S. 1691 (i.e., the bill later                Level 1 regular tour of duty,
                                                  implement section 2 of the Border Patrol                enacted as BPAPRA) by the Senate                       respectively, applies only if the agent
                                                  Agent Pay Reform Act of 2014 (Pub. L.                   Committee on Homeland Security and                     performs work during regular time on
                                                  113–277, December 18, 2014, as                          Governmental Affairs (Senate Report                    that same day. For example, if an agent
                                                  amended by Pub. L. 114–13, May 19,                      113–248), the nature of the work                       takes leave for a full 8-hour basic
                                                  2015), hereafter referred to as                         performed by Border Patrol agents has                  workday, no obligation to perform those


                                             VerDate Sep<11>2014   16:32 Jun 16, 2015   Jkt 235001   PO 00000   Frm 00001   Fmt 4702   Sfmt 4702   E:\FR\FM\17JNP1.SGM   17JNP1


                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                           34541

                                                  scheduled overtime hours accrues on                     hours and overtime provisions of the                   Overtime Pay for Border Patrol Agents,
                                                  that day, and there is no loss of pay.                  FLSA.                                                  in part 550 (Pay Administration—
                                                     • The overtime supplement for                        Effective Date
                                                                                                                                                                 General) of title 5, Code of Federal
                                                  regularly scheduled overtime hours                                                                             Regulations. A section-by-section
                                                  within the assigned Level 1 or Level 2                     BPAPRA was enacted on December                      explanation of the proposed regulations
                                                  regular tour of duty is a percentage of                 18, 2014 as Public Law 113–277. On                     follows. (Note: The descriptions of the
                                                  the agent’s hourly rate of basic pay and                May 19, 2015, BPAPRA was amended                       proposed regulations are stated in the
                                                  is multiplied by number of paid hours                   by Public Law 114–13 to clarify the                    present tense for readability.)
                                                  of basic pay (i.e., hours of regular time,              effective date of certain provisions.
                                                                                                          Section 1(a) of Public Law 114–13                      § 550.1601—Purpose and Authority
                                                  whether work or paid absence) in the
                                                  biweekly pay period. Thus, the                          added a new subsection (i) in section 2                   Section 550.1601 includes the
                                                  supplement is payable during leave or                   of BPAPRA. That section 2(i) provided                  purpose of the proposed regulations—
                                                  other paid time off taken from the 40-                  that subsections (b), (c), (d), and (g) of             i.e., to implement BPAPRA. It also notes
                                                  hour basic workweek.                                    section 2 of BPAPRA are effective on the               that OPM is relying on its regulatory
                                                     • The overtime supplement is subject                 first day of the first pay period                      authority in 5 U.S.C. 5548 as well as
                                                  to the title 5 premium pay cap.                         beginning on or after January 1, 2016,                 section 2(h) of BPAPRA.
                                                     • An agent may not receive other                     except that (1) any provision of 5 U.S.C.
                                                                                                          5550(b) (as added by section 2(b) of                   § 550.1602—Coverage
                                                  premium pay for regularly scheduled
                                                                                                          BPAPRA) relating to administering                        Section 550.1602 provides that
                                                  overtime hours within his or her regular
                                                                                                          elections and making advance                           subpart P applies to GS–1896 Border
                                                  tour of duty (i.e., hours covered by the
                                                                                                          assignments to a regular tour of duty is               Patrol agents holding a position in the
                                                  overtime supplement).
                                                                                                          applicable before the January 2016                     U.S. Customs and Border Protection
                                                     • The overtime supplement is treated                                                                        (CBP) component of the Department of
                                                                                                          effective date to the extent determined
                                                  as part of basic pay for retirement and                                                                        Homeland Security (DHS). Coverage is
                                                                                                          necessary by the OPM Director and (2)
                                                  certain other purposes, such as life                                                                           not affected if a Border Patrol agent is
                                                                                                          the OPM Director’s authority to issue
                                                  insurance and severance pay.                                                                                   temporarily detailed to a non-CBP
                                                                                                          regulations (in particular, the authority
                                                     • CBP must develop a plan to ensure                  in 5 U.S.C. 5550(b)(1)(B) related to                   position, since the agent would
                                                  that the assignment of an overtime                      election procedures) is effective as                   continue to officially hold a CBP Border
                                                  supplement to an agent during the                       necessary before the January 2016                      Patrol agent position.
                                                  period beginning 3 years before the                     effective date.
                                                  agent reaches retirement age and service                   As required by these proposed                       § 550.1603—Definitions
                                                  requirements is consistent with the                     regulations, CBP must provide election                    Section 550.1603 provides definitions
                                                  agent’s career average overtime                         information notices to Border Patrol                   of terms for purposes of subpart P.
                                                  supplement.                                             agents no later than November 1 and                    Certain definitions warrant explanation
                                                     • Overtime work in excess of the                     agents must make elections for the                     here. Other definitions are addressed
                                                  biweekly regular tour of duty (generally                upcoming annual period no later than                   later in the supplementary information
                                                  100, 90, or 80 hours, as applicable)                    December 1. Thus, BPAPRA provisions                    in the context of the regulatory
                                                  would be separately compensable. If the                 related to administering annual                        provisions in which they are used.
                                                  additional overtime work is regularly                   elections and advance assignments for                     OPM defines the term annual period
                                                  scheduled in advance of the workweek,                   the annual period beginning in January                 to mean the 1-year period that begins on
                                                  the work is compensated under the                       2016 must be applied before January                    the first day of the first pay period
                                                  regular title 5 overtime provisions (5                  2016.                                                  beginning on or after January 1 of a
                                                  U.S.C. 5542). If the additional overtime                   As provided by Public Law 114–13,                   given year and ends on the day before
                                                  work is irregular, the work is                          regular tours of duty and any associated               the first day of the first pay period
                                                  compensated by crediting the agent with                 overtime supplements established under                 beginning on or after January 1 of the
                                                  compensatory time off. However, no                      5 U.S.C. 5550 (as added by section 2(b)                next year. The term year in 5 U.S.C.
                                                  more than 10 hours of compensatory                      of BPAPRA) will first take effect on the               5550(b)(1)(A) and (C) and the term leave
                                                  time off may be earned in a biweekly                    first day the first pay period beginning               year in 5 U.S.C. 5542(g)(5)(A) are
                                                  pay period (unless a written waiver of                  or or after January 1, 2016. That pay                  interpreted to be an annual period as
                                                  this provision is approved in advance)                  period begins on January 10, 2016.                     defined in § 550.1603. Under BPAPRA,
                                                  and no more than 240 hours may be                       Other BPAPRA provisions that are                       agents make an election for a year,
                                                  earned during a leave year.                             effective on January 10, 2016 include (1)              which we are interpreting to be an
                                                     • If the agent is absent during                      the amendments to 5 U.S.C. 5542                        annual period consisting of full
                                                  required scheduled overtime within the                  (dealing with overtime pay and                         biweekly pay periods. This prevents
                                                  regular tour of duty (i.e., obligated                   compensatory time off) made by section                 starting a new regular tour of duty and
                                                  overtime hours), payment of the                         2(c) of BPAPRA, (2) the amendments to                  associated overtime supplement in the
                                                  overtime supplement is not affected but                 5 U.S.C. 8331 (dealing with retirement-                middle of a pay period.
                                                  the agent accrues an obligation (debt) to               creditable basic pay) made by section                     The definitions of irregular overtime
                                                  perform other overtime work to make up                  2(d) of BPAPRA, and (3) the                            work and regularly scheduled work
                                                  for work not performed. Any accrued                     amendments to 5 U.S.C. 5547 (dealing                   parallel the definitions of similar terms
                                                  compensatory time off will be applied                   with the premium pay cap) made by                      in the regular premium pay regulations
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                                                  against that overtime hours debt. Any                   section 2(g)(1) of BPAPRA, and (4) the                 at 5 CFR 550.103. We are clarifying that
                                                  additional overtime work outside the                    amendments to section 13(a) of the                     irregular overtime work must be
                                                  regular tour of duty in future pay                      FLSA (dealing with FLSA exemptions)                    ‘‘officially ordered or approved,’’
                                                  periods will also be applied against that               made by section 2(g)(2) of BPAPRA.                     consistent with the normal standards
                                                  debt.                                                                                                          governing title 5 overtime in 5 U.S.C.
                                                     • All Border Patrol agents are FLSA-                 New Subpart P in 5 CFR Part 550                        5542(a) and 5 CFR 550.111(a)(1). This
                                                  exempt. This exemption applies to both                     In order to implement BPAPRA, OPM                   means that, consistent with agency
                                                  the minimum wage and the maximum                        is proposing to add a new subpart P,                   policies, authorized management


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                                                  34542                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  officials must ‘‘order’’ the overtime                   in future pay periods, as described in                 tour of duty for an annual period that
                                                  work in advance or ‘‘approve’’ the                      § 550.1626(c)(2).                                      may not match an agent’s annual
                                                  overtime work after the fact (when                                                                             election. For example, an agent assigned
                                                                                                          § 550.1604—CBP Authority
                                                  emergency circumstances prevented                                                                              to care for a canine must be assigned a
                                                  advance approval). We include a term,                     This section reflects various                        Level 1 regular tour of duty. Also, an
                                                  regular time, that is used in BPAPRA to                 provisions in BPAPRA that give CBP                     agent assigned to a headquarters,
                                                  refer to the regular basic hours within                 authority to assign work based on its                  administrative, training instructor, or
                                                  an agent’s 8-hour basic workday within                  assessment of mission requirements and                 fitness instructor position must be
                                                  the 40-hour basic workweek.                             operational needs. (See BPAPRA section                 assigned a Basic regular tour of duty
                                                     While BPAPRA used the terms level 1                  2(a) and (f)(1) and 5 U.S.C. 5550(g).) The             (with no overtime supplement), except
                                                  border patrol rate of pay, level 2 border               BPAPRA provisions show that Congress                   as otherwise justified based on a CBP
                                                  patrol rate of pay, and basic border                    intended to ensure that CBP retains full               staffing analysis.
                                                  patrol rate of pay to identify agents with              authority to assign work as needed,                       Section 550.1611 does not apply to
                                                  different overtime supplements and                      regardless of the assigned regular tours               newly hired agents who—though
                                                  regular tours of duty, the subpart P                    of duty.                                               currently employed as agents on
                                                  regulations place the focus on an agent’s               § 550.1605—Interpretation Instruction                  November 1—will be in initial training
                                                  regular tour of duty and use the terms                                                                         status as of the first day of the annual
                                                                                                            Section 550.1605 restates the                        period. Instead, special provisions in
                                                  Level 1 regular tour of duty, Level 2                   instruction found in section 2(f) of
                                                  regular tour of duty, and Basic regular                                                                        § 550.1612(a) and (b) apply to such
                                                                                                          BPAPRA, which provides that nothing                    agents. Initial training is defined in
                                                  tour of duty to identify the three                      in the Act shall be ‘‘construed to require
                                                  categories of agents. We also found it                                                                         § 550.1603 as meaning initial
                                                                                                          compensation’’ of an agent other than                  orientation sessions, basic training, and
                                                  clearer to focus on the overtime                        for hours during which the agent is
                                                  supplement as a separate payment                                                                               other preparatory activities provided
                                                                                                          actually performing work or using                      prior to an agent’s first regular work
                                                  rather than being rolled into an                        approved paid time off. This reflects
                                                  aggregate rate of pay.                                                                                         assignment in which the agent has
                                                                                                          Congressional concern regarding alleged                authority to make arrests and carry a
                                                     We define a term obligated overtime                  abuses of AUO pay that included some                   firearm.
                                                  hours to describe the overtime hours                    employees not performing work during
                                                  within an agent’s regular tour of duty                  claimed AUO hours.                                     § 550.1612—Assignments at Other
                                                  that an agent is obligated to work                                                                             Times
                                                  because he or she had performed work                    § 550.1611—Assignments for an Annual
                                                                                                                                                                    Section 550.1612 addresses other
                                                  (of any amount) during regular time on                  Period
                                                                                                                                                                 situations in which an agent may be
                                                  the same day. For example, an agent                        Section 550.1611 governs the                        assigned a regular tour of duty that were
                                                  with a Level 1 tour of duty would                       assignment of regular tours of duty for                not addressed in BPAPRA. An
                                                  normally be obligated to work 2 hours                   an upcoming annual period to                           individual who is newly hired as an
                                                  of scheduled overtime work within the                   individuals who are employed as agents                 agent during an annual period will
                                                  regular tour, which could add up to 20                  as of November 1 of the preceding year.                generally undergo initial training before
                                                  overtime hours (10 days × 2 hours per                   The law generally envisions                            commencing a regular work assignment.
                                                  day) in a biweekly pay period. However,                 assignments being made for an annual                   During any period of initial training, the
                                                  if the agent was on leave during all                    period after giving agents an                          agent must be assigned a Basic regular
                                                  regular time for 2 basic workdays (8                    opportunity to state their preferred tour              tour of duty. (This is consistent with the
                                                  hours each day), the agent would not be                 via an annual election. The law                        fact that agents currently do not receive
                                                  obligated to perform the 2 hours of                     provides that agents must (1) be given                 AUO pay during initial training.) Initial
                                                  scheduled overtime work within the                      information about election options and                 training is not ‘‘advanced’’ training
                                                  regular tour on each of those days. Thus,               procedures no later than 60 days before                during which Level 1 or Level 2
                                                  the total number of obligated overtime                  the annual period and (2) make an                      overtime supplements continue for 60
                                                  hours during that pay period would be                   annual election no later than 30 days                  days under the BPAPRA law and
                                                  16 hours (20 hours minus 4 unobligated                  before the annual period. Since the                    regulations (5 U.S.C. 5550(b)(2)(G) or
                                                  hours). Because an agent may have such                  beginning of the annual period may vary                (b)(3)(G) and § 550.1622(b)). As
                                                  unobligated overtime hours, the                         (since it corresponds to the beginning of              provided in § 550.1612(a), when a
                                                  definition of regular tour of duty uses                 the first full pay period in January), we              newly hired agent begins a regular work
                                                  the word ‘‘generally’’ in describing the                have regulated that the deadline for                   assignment (after completing initial
                                                  hours within a normal tour of duty.                     providing election information is                      training), the agent will have a Level 1
                                                     The term overtime hours debt is                      November 1 and the deadline for                        regular tour of duty as the default
                                                  defined as the unsatisfied balance of                   submitting elections is December 1.                    schedule for the remainder of the
                                                  obligated overtime hours not worked,                    These dates meet the statutory time                    annual period. Under applicable
                                                  which represents a debt of hours for                    requirements, and provide a consistent                 circumstances described in
                                                  which an agent is accountable. As                       set of deadlines that apply each year.                 § 550.1611(f), CBP may assign instead a
                                                  provided in § 550.1626(b), outside-tour                    Consistent with the law, section                    Level 2 or Basic tour. In addition, under
                                                  overtime hours in the same pay period                   550.1611(d) provides that an agent who                 § 550.1612(b), a newly hired agent will
                                                  may be substituted for absences during                  fails to make a timely election must be                be given an opportunity to submit an
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                                                  obligated overtime hours for pay                        assigned a Level 1 regular tour of duty.               election of a preferred type of regular
                                                  computation purposes. Any remaining                     Section 550.1611(e) provides that CBP                  tour of duty that would take effect
                                                  obligated overtime hours not worked                     must inform an agent of an assignment                  prospectively. Such election must be
                                                  become part of the agent’s overtime                     to a tour not elected by the agent.                    submitted no later than 30 days after the
                                                  hours debt—a debt that the agent can                    Section 550.1611(f) lists the                          agent begins a regular work assignment
                                                  satisfy by applying compensatory time                   circumstances (as provided in BPAPRA)                  and, if approved by CBP, would be
                                                  off, as described in § 550.1626(c)(1) or                under which management is required or                  effective on the first day of the first pay
                                                  by applying outside-tour overtime hours                 allowed to unilaterally assign a regular               period beginning on or after the later of:


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                             34543

                                                  (1) The date the election was submitted;                § 550.1615—Pay Assignment Continuity                   annuity benefit. Not only does this pose
                                                  or (2) the date the agent completed                        Under 5 U.S.C. 5550(b)(1)(G) (titled                problems for the retirement fund on a
                                                  initial training.                                       ‘‘Pay Assignment Continuity’’), as added               macro level, but it also would result in
                                                    Under § 550.1612(c), an individual                    by BPAPRA, not later than December                     inequitable treatment of individual
                                                  who is newly hired as an agent between                  18, 2015 (1 year after the date of                     agents relative to one another.
                                                                                                                                                                    Retirement eligibility is based on
                                                  November 2 and the beginning of the                     enactment), CBP must ‘‘develop and
                                                                                                                                                                 meeting applicable minimum age and
                                                  annual period would be allowed to                       implement a plan to ensure, to the
                                                                                                                                                                 service requirements and an employee’s
                                                  make an election for the upcoming                       greatest extent practicable, that the
                                                                                                                                                                 separation. For a Border Patrol agent
                                                  annual period, if the agent will not be                 assignment of a border patrol agent
                                                                                                                                                                 under the Federal Employees’
                                                  in initial training status on the first day             under this section during the 3 years of
                                                                                                                                                                 Retirement System, the minimum age
                                                  of the annual period. Instead of the                    service before the border patrol agent
                                                                                                                                                                 and service requirements for a regular
                                                  December 1 election deadline, the                       becomes eligible for immediate
                                                                                                                                                                 law enforcement officer retirement
                                                  election may be submitted within 30                     retirement are consistent with the
                                                                                                                                                                 annuity are: (1) Any age with 25 years
                                                  days after the agent received election                  average border patrol rate of pay level to
                                                                                                                                                                 of service; or (2) age 50 with 20 years
                                                  information, but no later than the day                  which the border patrol agent has been                 of service. The date of an employee’s
                                                  before the first day of the annual period.              assigned during the course of the career               separation is uncertain until it takes
                                                    Section 550.1612(d) provides that                     of the border patrol agent.’’ As indicated             effect. Thus, to achieve the stated goal
                                                  CBP may change an agent’s assignment                    in 5 U.S.C. 5550(b)(1)(G)(iv), the                     of this pay assignment continuity
                                                  during an annual period under                           purpose of this plan is to ensure that                 provision, it is necessary to control
                                                  appropriate circumstances described in                  ‘‘border patrol agents are not able to                 overtime supplement assignments
                                                  § 550.1611(f) or § 550.1622(b). For                     artificially enhance their retirement                  during any and all periods of 3
                                                  example, CBP may change an                              annuities.’’ By law, CBP must develop                  consecutive years after an agent is
                                                  assignment to comply with the pay                       and implement this plan in consultation                within 3 years of meeting age and
                                                  assignment continuity requirement                       with OPM. In addition, this plan and its               service requirements. (We recognize
                                                  described in §§ 550.1611(f)(5) and                      implementation are subject to any OPM                  that, in rare circumstances, an agent’s
                                                  550.1615.                                               regulations promulgated under its                      high-3 period may not be the agent’s last
                                                                                                          authority to carry out BPAPRA and to                   3 years before separation and could
                                                  § 550.1613—Selection of Agents for                      administer section 5550.                               contain a period before the control
                                                  Assignment                                                 OPM interprets section 5550(b)(1)(G)                period. For ease of administration, the
                                                                                                          as establishing a period of time during                drafters of BPAPRA assumed that the
                                                    Section 550.1613 requires CBP to                      which CBP must control the assignment
                                                  develop a written plan to guide the                                                                            high-3 period would be the last 3 years
                                                                                                          of regular tours of duty to each agent                 before separation and thus always be in
                                                  selection of agents for assignment to a                 (and thus the overtime supplement
                                                  particular regular tour of duty contrary                                                                       the control period.)
                                                                                                          percentage) to ensure consistency with                    Section 5550(b)(1)(G)(i) states that the
                                                  to the agents’ preferences, when only                   the agent’s career average overtime
                                                  some agents’ preferences can be                                                                                control period applies ‘‘during the 3
                                                                                                          supplement percentage. This ‘‘control                  years of service before the border patrol
                                                  accommodated. For example, CBP may                      period’’ is intended to cover the period
                                                  need to implement the requirement that                                                                         agent becomes eligible for immediate
                                                                                                          of time during which an agent could                    retirement.’’ In one sense, an agent has
                                                  only 10 percent of agents in a location                 possibly have a high-3 ‘‘average pay’’                 conditional retirement eligibility once
                                                  may have a Level 2 or Basic regular tour                period as described in the retirement                  he or she meets age and service
                                                  of duty when more than 10 percent of                    laws at 5 U.S.C. 8331(4) and 8401(3).                  requirements, with separation being the
                                                  agents in that location want such a tour.               The high-3 ‘‘average pay period’’ is a                 condition. In another sense, an agent is
                                                  For example, if 12 percent of agents in                 period of 3 consecutive years of                       not truly retirement eligible until he or
                                                  a particular location want a Level 2 or                 creditable service during which an                     she separates. Given the intent of this
                                                  Basic regular tour of duty, 2 percent of                employee has his or her highest rates of               provision, and the context surrounding
                                                  agents will be required to have a Level                 retirement-creditable basic pay. The                   this statutory language, we interpret the
                                                  1 regular tour of duty contrary to their                high-3 average pay is used in computing                law as requiring a plan that controls
                                                  personal preference. CBP must have a                    an employee’s retirement annuity.                      overtime supplement assignments
                                                  plan for deciding which agents do not                      Since the overtime supplement of 25                 during any possible 3-year period that
                                                  get assigned their desired tour (or, stated             or 12.5 percent for a Level 1 or Level 2               might precede an agent’s separation,
                                                  differently, which agents are assigned                  regular tour of duty, respectively, is                 which would trigger retirement
                                                  their desired tour).                                    retirement-creditable basic pay and may                eligibility. The statutory language
                                                  § 550.1614—Percentage Limit on Agents                   vary over time (and can be the outcome                 cannot logically be interpreted as
                                                  With Level 2 or Basic Tour                              of an agent’s voluntary election), this                establishing a control period only
                                                                                                          introduces the possibility of an agent                 during the 3 years preceding the date an
                                                     Section 550.1614 regulates the                       electing overtime supplements during a                 agent meets age and service
                                                  statutory requirement that, except when                 potential high-3 period that would                     requirements, since the actual high-3
                                                  justified based on a CBP staffing                       maximize the agent’s retirement benefit,               period could be totally outside such a
                                                  analysis, no more than 10 percent of                    without regard to the average overtime                 control period, which would defeat the
                                                  agents stationed at a location may be                   supplement elected during the                          entire purpose of the provision. We note
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                                                  assigned a Level 2 or Basic regular tour                employee’s career before the control                   that, in the section-by-section analysis
                                                  of duty (i.e., at least 90 percent of agents            period. If the overtime supplement used                in the Senate committee report on the
                                                  at a location must be assigned a Level                  in computing an agent’s high-3 average                 bill (S. 1691) later enacted as BPAPRA
                                                  1 regular tour of duty). Section                        pay is significantly higher than the                   (Senate Report 113–248, pages 13–14),
                                                  550.1614(d) provides that the pay                       career average overtime supplement,                    the description of section 5550(b)(1)(G)
                                                  assignment continuity requirement in                    this means that the retirement fund has                states that the pay assignment
                                                  § 550.1615 trumps that requirement in                   not received sufficient employee and                   continuity plan is designed to ‘‘ensure
                                                  § 550.1614.                                             agency contributions to fund the agent’s               an agent is unable to artificially enhance


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                                                  34544                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  his or her retirement pay by electing                   control period when the provisions of                  her career average. While the overtime
                                                  Level 1 pay during his or her last three                subpart P first become applicable to the               supplement used in the agent’s high-3
                                                  years of service when he or she had                     agent, the agent’s initially assigned                  average pay would not exceed a
                                                  previously consistently worked at a                     overtime supplement percentage must                    percentage that is consistent with the
                                                  lower level of pay.’’ [Italics added for                be considered the agent’s career average.              agent’s career average, the agent (and
                                                  emphasis.] Thus, Congress was focused                   We are aware that, under the proposed                  CBP) will have made inadequate
                                                  on the 3 years before separation (based                 rule, certain employees in headquarters                retirement contributions during the
                                                  on the generally true assumption that an                or other positions for which no overtime               portion of the control period when the
                                                  employee’s high-3 period is during                      supplement is payable would be                         lesser percentage was in effect.
                                                  those last 3 years). Since an agent’s                   considered to have a 0 percent career                     Section 550.1615(c)(2)(ii) provides a
                                                  actual separation date is not known in                  average overtime supplement. We are                    necessary exception in cases where CBP
                                                  advance, it is necessary to provide pay                 specifically inviting comments on                      determines an agent is unable to
                                                  assignment continuity for all                           proposed section 550.1615(a)(3) and                    perform overtime work on a daily basis
                                                  consecutive 3-year periods for any                      will carefully consider those comments                 due to a physical or medical condition
                                                  possible separation date. The first                     in preparing the final regulations.                    affecting the agent and assigns the agent
                                                  possible separation date is when the                       As provided in § 550.1615(b), the                   a Basic regular tour of duty, as described
                                                  agent meets retirement age and service                  ‘‘control period’’ is the period beginning             in § 550.1611(f)(2) (which may be
                                                  requirements; thus, the date 3 years                    on the date 3 years before an agent first              applied to make changes in an agent’s
                                                  before the first possible separation date               meets retirement age and service                       tour during an annual period, as
                                                  begins the control period.                              requirements and remains in effect                     provided by § 550.1612(d)). This
                                                     Section 550.1615 regulates the pay                   during all subsequent service in a                     exception relieves CBP of applying the
                                                  assignment continuity requirement                       Border Patrol agent position.                          consistency requirement to the affected
                                                  found in law at 5 U.S.C. 5550(b)(1)(G).                    As regulated in § 550.1615(c)(1), the               agent, but only to the extent such
                                                  Section 550.1615(a)(1) provides that, in                two averages are considered to be                      assignment makes it impossible to
                                                  consultation with OPM, CBP must                         ‘‘consistent’’ if they are within 2.5                  satisfy the consistency requirement
                                                  implement a plan to ensure, to the                      percentage points of one another. CBP
                                                                                                                                                                 during any given consecutive 3-year
                                                  greatest extent practicable, that an                    must manage agents’ assignments (i.e.,
                                                                                                                                                                 period. Thus, if the period during which
                                                  agent’s overtime supplement during all                  make unilateral assignments) during the
                                                                                                                                                                 the agent is unable to perform overtime
                                                  consecutive 3-year periods within the                   control period as necessary to achieve
                                                                                                                                                                 work is short in duration, it would be
                                                  control period is ‘‘consistent’’ with the               consistency, notwithstanding any other
                                                                                                                                                                 possible to fully comply with the
                                                  agent’s career average percentage during                provision of law or regulation in subpart
                                                                                                                                                                 consistency requirement.
                                                  his or her career prior to the beginning                P. Section 550.1615(c)(2) allows for two
                                                                                                          exceptions. One exception applies if an                   Section 550.1615(d) addresses CBP’s
                                                  of the control period. As provided in
                                                                                                          agent’s overtime supplement is limited                 authority in connection with the pay
                                                  § 550.1615(a)(2), the overtime
                                                                                                          by the premium pay cap under                           assignment continuity requirement.
                                                  supplement percentage used in
                                                  computing the career average percentage                 §§ 550.105 and 550.107 and the agent                   Consistent with 5 U.S.C.
                                                  is the assigned percentage (25, 12.5, or                voluntarily elects (and CBP approves) a                5550(b)(1)(G)(ii), § 550.1615(d)(1)
                                                  0) without regard to whether a premium                  regular tour that results in an average                provides that CBP may take such action
                                                  pay cap prevents full payment based on                  overtime supplement percentage that is                 as is necessary, including unilateral
                                                  that percentage.                                        less than the agent’s career average. For              assignment of an agent’s regular tour of
                                                     Section 550.1615(a)(3) provides                      example, an agent’s rate of basic pay                  duty, to implement the pay assignment
                                                  additional rules governing the                          could be at the premium pay cap                        continuity plan, notwithstanding any
                                                  computation of an agent’s career average                (generally level IV of the Executive                   provision of BPAPRA or the subpart P
                                                  overtime supplement percentage. Based                   Schedule) leaving no room for receipt of               regulations. Section 550.1615(d)(2)
                                                  on the statutory language—‘‘the average                 an overtime supplement. Such an agent                  reflects the provision in 5 U.S.C.
                                                  border patrol rate of pay level to which                could choose to elect a Basic regular                  5550(b)(1)(G)(vi), which states that
                                                  the border patrol agent has been                        tour of duty that would provide no                     nothing in section 5550(b)(1)(G) may be
                                                  assigned during the course of the career                overtime supplement and require no                     construed to limit the ability of CBP to
                                                  of the border patrol agent’’—we are                     regular overtime work. (The agent could                assign regular tours as necessary to meet
                                                  proposing that an agent’s career be                     still be ordered to work overtime as                   operational requirements. At the same
                                                  considered to encompass only those                      needed.) Since the premium pay cap                     time, as reflected in § 550.1604, various
                                                  periods during which the agent was                      prevents manipulation of the high-3                    provisions in BPAPRA (section 2(a) and
                                                  covered by section 5550 and subpart P.                  average pay, this exception poses little               2(f)(1) of BPAPRA and 5 U.S.C. 5550(g))
                                                  In other words, only overtime                           or no risk to the retirement fund. As                  make clear that CBP has authority to
                                                  supplements established under 5 U.S.C.                  stated in 5 U.S.C. 5550(b)(1)(G)(iv), the              assign unscheduled work as needed to
                                                  5550 would be considered in computing                   goal of the pay assignment continuity                  meet mission needs and operational
                                                  the career average. We recognize that                   provision is to ensure that agents are not             requirements, notwithstanding the
                                                  many agents have received an AUO                        able to artificially enhance their                     regular tour assigned to agents. Thus, as
                                                  supplement, which if considered, could                  retirement annuities. The ability for an               a general matter, OPM does not consider
                                                  increase or decrease the agent’s career                 agent to enhance his or her annuity is                 the need to meet operational
                                                  average. We also recognize that some                    limited or eliminated when the agent is                requirements as preventing CBP from
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                                                  agents will be in the control period                    subject to the premium pay cap.                        also controlling agents’ regular tour as
                                                  when the provisions of subpart P first                     We cannot allow an agent whose                      necessary to comply with the pay
                                                  become applicable in January 2016 and                   overtime supplement is not affected by                 assignment continuity requirement.
                                                  that a career average will be                           the premium pay cap to voluntarily                        Section 550.1615(e) sets forth
                                                  immediately needed to apply the pay                     elect a lesser percentage during the                   reporting requirements with which CBP
                                                  assignment continuity provisions. Based                 control period, since the agent could                  must comply so that OPM can monitor
                                                  on the law, we have proposed in                         later elect again to have a higher                     and evaluate the effectiveness of CBP’s
                                                  § 550.1615(a)(3) that, if an agent is in a              percentage that is consistent with his/                pay assignment continuity plan and


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34545

                                                  assess the actuarial impact on the                      are not considered to be work hours.                   continue to receive the overtime
                                                  retirement fund.                                        Paragraph (e) also makes clear that                    supplement associated with that tour.
                                                     Section 550.1615(f) addresses                        official time under 5 U.S.C. 7131                      As a general rule, an agent will be
                                                  corrective actions that CBP must take if                (related to employees representing a                   deemed to have worked during any
                                                  it determines that the consistency                      labor organization) is ‘‘work’’ in                     nonwork period within obligated
                                                  requirement is not being met for a                      applying paragraphs (a)(3) and (b)(3).                 overtime hours on such a training day
                                                  particular agent. Under this regulation,                   Paragraphs (a)(4) and (b)(4) provide                for the purpose of determining the
                                                  CBP is not required to retroactively                    regulations governing the computation                  agent’s total hours of work against the
                                                  change an agent’s assigned overtime                     of the overtime supplement (25 percent                 applicable biweekly overtime threshold
                                                  supplement based on violation of the                    or 12.5 percent, respectively). The                    (i.e., 100 hours for a Level 1 tour and 90
                                                  consistency requirement unless there is                 overtime supplement is computed on an                  hours for a Level 2 tour). (See also
                                                  evidence of fraud, misrepresentation,                   hourly basis and is equal to 25 percent                § 550.1623(a)(2)(iv).) For example, if an
                                                  fault, or lack of good faith on the part                or 12.5 percent, respectively of an                    agent with a Level 1 regular tour of duty
                                                  of the affected agent in connection with                agent’s hourly rate of basic pay. The                  (requiring 2 obligated overtime hours
                                                  an overtime supplement received by                      resulting hourly dollar amount is                      each basic workday) performs actual
                                                  that agent.                                             multiplied by the number of paid hours                 work for 0.5 hours during obligated
                                                                                                          of regular time in the biweekly pay                    overtime hours on a day of advanced
                                                  § 550.1616—Corrective Actions
                                                                                                          period to determine the biweekly dollar                training, the agent would be deemed to
                                                     Section 550.1616 addresses corrective                amount of the overtime supplement                      work during the remaining 1.5 hours
                                                  actions related to assignments made                     before application of the premium pay                  and receive credit for those 1.5 hours in
                                                  under the §§ 550.1611 through                           cap. Also, as provided in                              applying the applicable overtime
                                                  550.1614. If it is determined that CBP                  § 550.1626(a)(5), any hours of regular                 threshold. However, if an agent
                                                  did not comply with applicable                          time that are paid only because of                     performs creditable regularly scheduled
                                                  statutory or regulatory requirements in                 substitution of overtime hours for a                   overtime work outside the regular tour
                                                  assigning an agent to a regular tour of                 period of absence without approval                     (e.g., night work that is creditable under
                                                  duty under those sections, CBP must                     (AWOL) or suspension are excluded                      5 CFR 410.402(b)(2) as an exception to
                                                  take corrective action as soon as                       from the hours multiplied by the hourly                the normal bar on premium pay during
                                                  practicable. The corrective action would                overtime supplement.                                   training) on the same day on which
                                                  apply prospectively. CBP is not required                   Paragraph (d) states the overarching                credit would otherwise be given for
                                                  to retroactively change an agent’s                      rule that the premium pay cap in 5                     nonwork overtime within the tour, those
                                                  assigned tour or overtime supplement,                   U.S.C. 5547 applies to limit, as                       outside-tour overtime hours will be
                                                  except when CBP determines there                        appropriate, the payment of the                        substituted for any within-tour nonwork
                                                  exists, in connection with the agent’s                  overtime supplement or regularly                       overtime hours and reduce the crediting
                                                  tour assignment, evidence of fraud,                     scheduled overtime outside the regular                 of nonwork hours accordingly.
                                                  misrepresentation, fault, or lack of good               tour and the crediting of compensatory                    Section 550.1622(b)(3) implements
                                                  faith on the part of that agent. Since the              time off for irregular overtime hours.                 the statutory requirement that, after an
                                                  overtime supplement is retirement-                      (See 5 U.S.C. 5542(g)(5)(F) and 5547(a)                agent has 60 days of advanced training
                                                  creditable basic pay, retroactive changes               and (e), as amended by BPAPRA. See                     in a calendar year, CBP must assign the
                                                  in the supplement would be disruptive                   also section 2(f)(3) of BPAPRA.)                       agent to a Basic regular tour of duty for
                                                  and could adversely affect an                           Consistent with the longstanding                       any additional day of advanced training.
                                                  employee’s anticipated retirement                       interpretation of 5 U.S.C. 5547, an agent              When such an agent is no longer
                                                  benefits.                                               affected by the premium pay cap is still               engaged in advanced training, the agent
                                                  § 550.1621—Rules for Each Type of                       required to perform work as assigned. In               reverts to his or her previously
                                                                                                          effect, an employee who reaches the                    applicable tour.
                                                  Regular Tour
                                                                                                          premium pay cap is considered a                           In applying § 550.1622(b), we rely on
                                                    Section 550.1621 lays out the sets of                 salaried employee and the combination                  the definition of advanced training
                                                  rules that apply to each type of regular                of basic pay and any premium pay is                    found in § 550.1603. Advanced training
                                                  tour and provides cross references to                   considered complete compensation for                   is defined to exclude initial training
                                                  those provisions that are addressed in                  all hours of work. (In 2015, the premium               (i.e., initial orientation sessions, basic
                                                  more detail in other places in subpart P.               pay cap for most employees is based on                 training, and other preparatory
                                                  Paragraphs (a)(3) and (b)(3) reflect the                the Executive Schedule (EX) level IV                   activities) provided prior to an agent’s
                                                  statutory rules in 5 U.S.C.                             annual rate of $158,700. An employee                   first regular work assignment in which
                                                  5550(b)(2)(A)(ii) and (b)(3)(A)(ii) that an             may receive premium pay in a biweekly                  the agent has authority to make arrests
                                                  agent with a Level 1 or Level 2 regular                 pay period only to the extent that the                 and carry a firearm. The rules on
                                                  tour of duty has an obligation to perform               premium pay does not cause the                         advanced training apply solely to
                                                  scheduled overtime work within that                     combination of basic pay and premium                   whole-workday training that covers the
                                                  tour only on a day the agent ‘‘performs                 pay to exceed the cap.)                                entire 8-hour block of regular time on a
                                                  work’’ during the regular time (8-hour                                                                         regular workday, since the statutory
                                                  basic workday). Thus, for example, if an                § 550.1622—Circumstances Requiring                     provisions at § 5550(b)(2)(G) and
                                                  agent with a Level 1 regular tour of duty               Special Treatment                                      (b)(3)(G) apply to ‘‘days’’ of advanced
                                                  takes 8 hours of annual leave on a                         Section 550.1622(b) regulates a                     training. Training that takes part of a
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                                                  particular day, the agent does not have                 statutory provision providing special                  day does not trigger application of the
                                                  an obligation to work 2 hours of                        treatment of employees during the first                advanced training provision; instead, an
                                                  scheduled overtime within the tour on                   60 days of advanced training in a                      agent with such training remains under
                                                  that day. Paragraph (e) makes clear that,               calendar year. During those 60 days, an                the normal rules with the normal
                                                  in applying paragraphs (a)(3) and (b)(3),               agent continues to be assigned to the                  overtime obligations. (See also proposed
                                                  the term ‘‘work’’ refers to paid hours of               regular tour otherwise in effect,                      § 550.1622(b)(4).)
                                                  work, consistent with § 550.112, except                 regardless of the actual number of hours                  Section 550.1622(c) regulates a
                                                  that paid leave and other paid time off                 of work on a training day, and will                    statutory provision providing special


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                                                  34546                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  treatment of agents assigned to care for                title 5 rules and all types of paid time               § 550.1624—Regularly Scheduled
                                                  a canine as part of their agent duties.                 off hours, we count: (1) Obligated                     Overtime Outside the Regular Tour
                                                  During any period an agent is assigned                  overtime hours during which no work is                    Section 550.1624 provides rules
                                                  canine care duties, the agent must be                   performed (creating a debt of hours as                 governing the payment for regularly
                                                  assigned a Level 1 regular tour with a                  provided in § 550.1621(a)(8) and (b)(8))               scheduled overtime hours beyond the
                                                  25 percent overtime supplement (unless                  and for which no substitution is made                  applicable overtime threshold (outside
                                                  that requirement is trumped by the pay                  under § 550.1626(b); (2) nonwork hours                 the regular tour). Such hours are paid
                                                  assignment continuity requirement in                    credited during obligated overtime                     under the regular title 5 overtime rules
                                                  § 550.1615). As provided by 5 U.S.C.                    hours on a day of advanced training (as                in 5 U.S.C. 5542(a) and 5 CFR 550.113.
                                                  5550(b)(1)(F), an agent assigned canine                 provided in § 550.1622(b)); and (3)                    Paragraph (c)(1) reflects a statutory
                                                  care duties must be credited with 1 hour                overtime hours within the regular tour                 directive that CBP should, to the
                                                  of regularly scheduled overtime work                    that an agent is not obligated to work                 maximum extent practicable, avoid the
                                                  within the regular tour of duty on each                 because he or she performs no work                     use of regularly scheduled overtime
                                                  regular workday, regardless of the actual               during regular time on that day (as                    work outside the regular tour of duty.
                                                  duration of any such care or when the                   described in § 550.1621(a)(3) and (b)(3)).             However, paragraph (c)(2) makes clear
                                                  care was actually provided. The canine                  Crediting these three categories of hours              that the general restriction in paragraph
                                                  care may actually be provided anytime,
                                                                                                          is necessary to align with the 100-hour                (c)(1) does not prevent CBP from
                                                  including on a non-workday. Regardless
                                                                                                          and 90-hour biweekly overtime                          assigning outside-tour regularly
                                                  of the time or day the canine care is
                                                                                                          thresholds fixed by law for a Level 1                  scheduled overtime work if an agent
                                                  actually provided or how much time is
                                                  actually spent providing canine care, an                tour and Level 2 tour, respectively. (See              volunteers to perform such work. For
                                                  agent with canine care duties is                        5 U.S.C. 5542(g)(1)(A) and (2)(A).)                    example, an agent may want to work
                                                  automatically credited with 1 hour of                   Without this crediting, there could be                 such overtime hours to eliminate an
                                                  work for canine care on each regular                    hours of work that are outside an agent’s              overtime hours debt.
                                                  workday. That leaves the agent with an                  regular tour but below the applicable                  § 550.1625—Irregular Overtime and
                                                  obligation to perform 1 additional                      overtime threshold, and there would be                 Compensatory Time Off
                                                  overtime hour as part of the agent’s                    no authority to compensate for those
                                                  regular tour of duty to meet the 2-hour                 hours in any way—a result clearly not                    Section 550.1625 provides rules
                                                  requirement for a Level 1 tour (on any                  intended by Congress. This crediting                   governing the crediting of compensatory
                                                  regular workday on which the agent                      complies with section 2(f)(2) of                       time off for irregular overtime hours
                                                  performs any work during regular time).                 BPAPRA, which states that nothing in                   beyond the applicable overtime
                                                  This means that an agent assigned                       BPAPRA may be construed to require                     threshold. (By definition, any irregular
                                                  canine care duties actually has a 9-hour                compensation other than for hours                      overtime hour is beyond that threshold
                                                  daily tour of duty for regular work                     during which an agent is actually                      and outside the regular tour of duty.)
                                                  instead of the 10-hour daily tour that                  performing work or using approved paid                 The rules in § 550.1625 largely reflect
                                                  applies to other employees on a Level 1                 time off. The crediting of the three                   statutory requirements and limitations.
                                                  regular tour of duty.                                   categories of hours is only for purposes               In addition, paragraph (c) shows that the
                                                     If an agent is generally assigned to                 of applying the overtime threshold and                 call-back overtime provision in 5 U.S.C.
                                                  provide care for a canine, but is                       does not generate any additional                       5542(b)(1) remains applicable to agents.
                                                  temporarily relieved of that duty for any               compensation for those hours, since                    In addition, since BPAPRA required that
                                                  reason (e.g., no dog available), the agent              they are hours that only could have                    a value be assigned to compensatory
                                                  may not receive the 1-hour automatic                    been potentially compensated by the                    time for the purpose of applying the
                                                  credit for canine care on an affected                   overtime supplement, the amount of                     premium pay cap (5 U.S.C.
                                                  regular workday.                                        which is not affected by the number of                 5542(g)(5)(F)), but did not specify what
                                                                                                          regularly scheduled overtime hours                     the value should be, we are regulating
                                                  § 550.1623—Overtime Work Outside the                                                                           that the value is equal to the amount of
                                                  Regular Tour                                            within the regular tour.
                                                                                                                                                                 overtime pay the agent would have
                                                    Section 550.1623 provides rules                          Paragraph (c) addresses the possibility             received for the period during which the
                                                  governing the application of biweekly                   of ‘‘hybrid pay periods.’’ One type of                 compensatory time off was earned if the
                                                  overtime thresholds that are used to                    hybrid pay period occurs when an agent                 overtime had been regularly scheduled
                                                  determine: (1) Overtime pay for                         has one type of regular tour for part of               overtime hours outside the agent’s
                                                  regularly scheduled overtime hours                      the biweekly pay period and another                    regular tour. This is consistent with how
                                                  outside the regular tour under                          type for another part of that period—for               OPM values compensatory time off
                                                  § 550.1624; and (2) crediting of                        example, a Level 1 tour for the first                  under 5 U.S.C. 5543 and 5 CFR 550.114.
                                                  compensatory time off for irregular                     week and a Basic tour for the second                   (See 5 CFR 550.114(g).)
                                                  overtime hours under § 550.1625. As a                   week. It is possible that an agent’s tour
                                                                                                          could change during a biweekly pay                     § 550.1626—Leave Without Pay During
                                                  general rule, the biweekly overtime
                                                                                                          period due to the expiration of the 60-                Regular Time and Absences During
                                                  threshold is 100 hours for a Level 1 tour,
                                                                                                          day advanced training period or because                Obligated Overtime Hours
                                                  90 hours for a Level 2 tour, and 80 hours
                                                  for a Basic tour, as provided in                        CBP takes action under the                               Section 550.1626 provides rules
                                                  § 550.1623(b), unless there is a hybrid                 circumstances described in                             governing the handling of circumstances
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                                                  pay period, as described in                             § 550.1611(f), as allowed under                        where an agent has leave without pay
                                                  § 550.1623(c),                                          § 550.1612(d). A second type of hybrid                 during the basic workweek or absences
                                                    Paragraph (a)(2) identifies the hours                 pay period occurs when an individual is                during obligated overtime hours,
                                                  that are included in an agent’s total                   employed as a Border Patrol agent for                  consistent with 5 U.S.C. 5550(f).
                                                  hours of work that are compared to the                  only part of the pay period. Since the                 Additional hours worked in a biweekly
                                                  applicable biweekly overtime threshold.                 drafters of BPAPRA did not consider                    pay period that are ‘‘substituted’’ for
                                                  In addition to time that qualifies as                   these possibilities, it is necessary to fill           leave without pay or absences during
                                                  actual hours of work under the normal                   in the policy gap via regulation.                      obligated overtime hours are, for pay


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34547

                                                  computations purposes, treated as if                    how substituted hours would affect the                 application of unused compensatory
                                                  they are, respectively, regular time                    computation of the overtime                            time off, any additional work outside an
                                                  hours or obligated overtime hours.                      supplement. By regulation, we are                      agent’s regular tour in future pay
                                                  Thus, substituted hours are not overtime                allowing hours that are substituted for                periods (that would otherwise be
                                                  hours for any purpose, and they may not                 regular LWOP or furlough to be treated                 considered overtime work under
                                                  be considered to be obligated overtime                  as regular time hours that are multiplied              § 550.1624 or § 550.1625) must be
                                                  hours under § 550.1621(a)(4) and (b)(4)                 by the hourly overtime supplement. We                  applied towards the overtime hours debt
                                                  (when within-tour overtime is                           determined that it would be                            until that debt is satisfied.
                                                  substituted for LWOP), regularly                        inappropriate to allow AWOL or
                                                  scheduled overtime hours under                          suspension hours to generate an                           Section 550.1626(d) addresses how to
                                                  § 550.1624, or irregular overtime hours                 increased amount of overtime                           handle a situation where an agent has
                                                  under § 550.1625, despite their original                supplement even if other hours of work                 an unsatisfied overtime hours debt at
                                                  character prior to substitution.                        are substituted for those hours.                       the time of transfer or separation, which
                                                    As provided in § 550.1603, the term                      We are not including a regulation to                is not addressed in BPAPRA but is
                                                  leave without pay includes all types of                 implement 5 U.S.C. 5550(f)(1)(B), which                necessarily addressed in our
                                                  nonpay status, including normal                         stated that work performed on the same                 regulations. At the time of transfer or
                                                  approved leave without pay (regular                     day as a period of leave without pay                   separation, the overtime hours debt
                                                  LWOP), absence without approval                         should be substituted first. We                        must be converted to a monetary debt
                                                  (AWOL), suspension, or furlough.                        determined that, since overtime pay is                 equal to the result of multiplying the
                                                  Consistent with the treatment of leave                  computed on a biweekly basis, it makes                 agent’s hourly rate of basic pay by the
                                                  without pay under the regular title 5                   no difference in an agent’s pay                        number of hours owed by the agent.
                                                  overtime rules (5 CFR 550.112(d)), these                entitlements if this same-day priority                 CBP would follow standard debt
                                                  regulations provide for substituting                    were followed or not followed.                         collection procedures to recover any
                                                  hours outside the basic workweek for                       Section 550.1626(b) addresses
                                                                                                                                                                 debt.
                                                  leave without pay within the basic                      substitution of other work outside the
                                                  workweek—for purposes of computing                      regular tour of duty for absence during                § 550.1631—Relationship to Other
                                                  overtime pay. This treatment is                         obligated overtime hours, consistent                   Types of Premium Pay
                                                  necessary so overtime thresholds are                    with 5 U.S.C. 5550(f)(2). Consistent with
                                                  properly applied. As specified in                       5 U.S.C. 5550(f)(2)(B), § 550.1626(b)(2)                 Section 550.1631 provides rules
                                                  § 550.1626(a)(4), the substitution is done              provides that work performed on the                    regarding the circumstances under
                                                  solely for pay computation purposes                     same day as a period of absence during                 which an agent may receive other
                                                  and does not change the fact that an                    obligated overtime hours must be                       premium pay (not addressed elsewhere
                                                  agent was in a particular nonpay status                 substituted first, but only in the                     in subpart P), consistent with 5 U.S.C.
                                                  during the designated hours. For other                  circumstance where same-day                            5550(c). It further provides that an
                                                  purposes, the hours that are substituted                substitution rules make a difference—                  agent’s regular rate of basic pay (without
                                                  are considered to have been performed                   namely, the application of the advanced                any overtime supplement) must be used
                                                  when they were worked, not during the                   training provision in § 550.1622(b)(2)                 in computing any premium pay,
                                                  leave without pay hours.                                that is applied on a daily basis. Section              consistent with 5 U.S.C. 5550(c)(1) and
                                                    Consistent with 5 U.S.C. 5550(f)(1)(A),               550.1626(b)(3) further provides, by                    (d)(2).
                                                  § 550.1626(a)(1) provides that an equal                 authority of regulation, that overtime
                                                  period of time outside regular time                     hours outside the regular tour of duty                 § 550.1632—Relationship to Hazardous
                                                  (which could include work during                        (remaining after applying paragraphs (a)               Duty Pay
                                                  obligated overtime hours or outside the                 and (b)(2)) must be substituted for
                                                  regular tour) must be substituted for                   obligated overtime hours not worked in                    Section 550.1632 provides that an
                                                  leave without pay during regular time.                  the following priority: first, irregular               agent may receive hazardous duty pay
                                                  Consistent with 5 U.S.C. 5550(f)(1)(C),                 overtime hours; and second, regularly                  under 5 U.S.C. 5545(d), if otherwise
                                                  § 550.1626(a)(2) provides that                          scheduled overtime hours outside the                   eligible, consistent with 5 U.S.C.
                                                  substitutions for leave without pay                     regular tour of duty. Priority is given to             5550(c)(3). It further provides that any
                                                  during regular time must be made before                 substituting irregular overtime hours,                 hazard pay is computed using an agent’s
                                                  substitutions for absences during                       since those hours do not generate a cash               regular rate of basic pay (without any
                                                  obligated overtime hours. Section                       payment. Section 550.1626(b)(4) makes                  overtime supplement), consistent with 5
                                                  550.1626(a)(3) further provides, by                     clear that substitution of overtime hours              U.S.C. 5550(d).
                                                  authority of regulation, that overtime                  is for pay computation purposes and
                                                  hours must be substituted in the                        does not change when those hours were                  § 550.1633—Relationship to Other
                                                  following priority: first, irregular                    actually worked for other purposes.                    Provisions Using Basic Pay
                                                  overtime hours; second, regularly                          Section 550.1626(c) addresses
                                                                                                          situations where an agent does not have                   Section 550.1633 identifies the
                                                  scheduled overtime hours outside the
                                                  regular tour of duty; and third, regularly              sufficient additional work in a biweekly               limited purposes for which an overtime
                                                  scheduled overtime hours within the                     pay period to substitute for all periods               supplement is treated as part of an
                                                  regular tour of duty. Priority is given to              of absence during obligated overtime                   agent’s rate of basic pay, consistent with
                                                  substituting irregular overtime hours,                  hours, consistent with 5 U.S.C.                        5 U.S.C. 5550(d). In addition to the
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                                                  since those hours do not generate a cash                5550(f)(3) and (4). It mandates that any               purposes prescribed in law (i.e.,
                                                  payment.                                                unused balance of compensatory time                    retirement, severance pay, workers’
                                                    Section 550.1626(a)(5) mandates that                  off accrued by an agent under                          compensation, and life insurance), OPM
                                                  overtime hours that are substituted for                 § 550.1625 must be applied towards any                 is regulating that the overtime
                                                  absence without approval (AWOL) or                      overtime hours debt newly accrued in                   supplement is part of basic pay for
                                                  suspension may not be used in                           the current pay period. It further                     purposes of advances in pay under 5
                                                  computing an agent’s overtime                           mandates that, if an overtime hours debt               U.S.C. 5524a and 5 CFR part 550,
                                                  supplement. BPAPRA did not address                      remains after substitution and after                   subpart B.


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                                                  34548                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  § 550.1634—Relationship to Leave and                    creditable hours of work while                         OPM treats official time during basic
                                                  Other Paid Time Off                                     traveling.                                             (nonovertime) hours as hours of work in
                                                     Section 550.1634 makes clear that                                                                           applying title 5 and FLSA overtime
                                                                                                          § 550.1638—Relationship to Official
                                                                                                                                                                 provisions, based on 5 U.S.C. 7131.
                                                  agents remain covered by title 5                        Time                                                     In addition, we clarify in § 550.1638
                                                  provisions related to leave (5 U.S.C.                      Section 550.1638 addresses how                      that Border Patrol agents who use
                                                  chapter 63) and to other paid time off                  official time under 5 U.S.C. 7131 relates              official time to perform union
                                                  (e.g., holidays under 5 U.S.C. chapter                  to BPAPRA pay provisions. Under 5                      representational duties may elect to
                                                  61, compensatory time off for religious                 U.S.C. 7131—                                           have a Level 1 or Level 2 regular tour
                                                  purposes under 5 U.S.C. 5550a) and that                    • ‘‘Any employee representing an                    of duty, but generally must perform
                                                  the tour of duty for accrual of leave and               exclusive representative in the                        regular agency work (as opposed to
                                                  for usage of leave or other paid time off               negotiation of a collective bargaining                 union representational duties) during
                                                  is the 40-hour basic workweek.                          agreement under this chapter shall be                  obligated overtime hours. However, use
                                                  § 550.1635—Relationship to Alternative                  authorized official time for such                      of official time during obligated
                                                  Work Schedules                                          purposes, including attendance at                      overtime hours or any other overtime
                                                                                                          impasse proceeding, during the time the                hours is permitted if an unplanned
                                                    Section 550.1635 provides that agents                 employee otherwise would be in a duty                  event arises incident to representational
                                                  may not have a flexible or compressed                   status. The number of employees for                    functions that must be dealt with during
                                                  work schedule under 5 U.S.C. chapter                    whom official time is authorized shall                 the overtime hours.
                                                  61, subchapter II. OPM interprets                       not exceed the number of individuals
                                                  BPAPRA as establishing a special work                   designated as representing the agency                  Conforming Changes to Other
                                                  schedule for all agents under 5 U.S.C.                  for such purposes.’’ (See 5 U.S.C.                     Regulations
                                                  5550, which supersedes any other                        7131(a).)                                                 OPM is proposing conforming
                                                  authority to establish special schedules.                  • ‘‘The Authority shall determine                   changes in a variety of regulations in
                                                  CBP is still permitted to have flexible                 whether any employee participating for,                part 410, part 550, part 551, and part
                                                  starting and stopping times for an                      or on behalf of, a labor organization in               870. (Note: The descriptions of the
                                                  agent’s basic work day if it determines                 any phase of proceedings before the                    proposed regulations below are stated in
                                                  that such flexibility is appropriate for                Authority shall be authorized official                 the present tense for readability.)
                                                  the position in question (e.g., a position              time for such purpose during the time                     Section 410.402 is amended to show
                                                  with a Basic regular tour of duty that                  the employee otherwise would be in a                   the receipt of the Border Patrol agent
                                                  does not require fixed shifts).                         duty status.’’ (See 5 U.S.C. 7131(c).)                 overtime supplement as a permitted
                                                                                                             • Except as provided in the previous                exception to the general bar on premium
                                                  § 550.1636—Relationship to FLSA
                                                                                                          subsections, any employee representing                 pay during periods of training.
                                                     Section 550.1636 reflects the Fair                   an exclusive representative or in                         Section 550.103 is amended to revise
                                                  Labor Standards Act (FLSA)                              connection with any other matter                       the definition of premium pay and add
                                                  amendments made by BPAPRA, which                        covered by this chapter ‘‘shall be                     a new definition of regular tour of duty
                                                  provided that the minimum wage and                      granted official time in any amount the                so that these definitions can be used in
                                                  overtime provisions of the FLSA are not                 agency and the exclusive representative                applying 5 CFR part 550, subpart A
                                                  applicable to Border Patrol agents (i.e.,               involved agree to be reasonable,                       (Premium Pay). The revised definition
                                                  they are automatically exempt from                      necessary, and in the public interest.’’               of premium pay makes clear the term
                                                  FLSA by virtue of being a Border Patrol                 (See 5 U.S.C. 7131(d).)                                includes a Border Patrol agent overtime
                                                  agent). A conforming FLSA exemption                     An employee using official time is paid                supplement and the dollar value of
                                                  is being added to OPM’s FLSA                            a base salary even though not in a                     compensatory time off earned by a
                                                  regulations at 5 CFR 551.217.                           regular duty status. Official time is also             Border Patrol agent, consistent with 5
                                                                                                          considered to be ‘‘hours of work’’ when                U.S.C. 5542(g)(5)(F) and 5547(a)(1) and
                                                  § 550.1637—Relationship to Travel
                                                                                                          the employee would otherwise be in a                   (e) and section 2(f) of BPAPRA.
                                                  Time
                                                                                                          duty status. Generally, official time is                  Section 550.107 is amended to
                                                     Section 550.1637(a) provides that an                 used during an employee’s basic                        provide that the Border Patrol agent
                                                  agent’s regular travel to and from home                 (nonovertime) hours. Official time may                 overtime supplement is subject solely to
                                                  and a work location within the agent’s                  also be used during management-                        the biweekly premium pay cap (not the
                                                  official duty station (as defined in                    assigned overtime hours if an                          annual cap), consistent with the
                                                  § 550.112(j)) may not be considered                     unplanned event occurs incident to                     treatment of other premium payments
                                                  hours of work, which is consistent with                 representational functions that must be                that are retirement-creditable basic pay.
                                                  5 U.S.C. 5550(e) as added by BPAPRA.                    dealt with during the overtime hours.                  In prescribing this treatment, OPM is
                                                  This is also generally consistent with                     In drafting proposed regulations to                 relying on its broad authority to regulate
                                                  regular title 5 rules related to travel at              carry out BPAPRA, we determined that                   the premium pay subchapter in 5 U.S.C.
                                                  5 CFR 550.112(j)(2).                                    certain issues related to official time                5548 plus its additional broad authority
                                                     Section 550.1637(b) addresses travel                 needed to be addressed. First, the rules               in section 2(h) of BPAPRA to issue
                                                  away from an agent’s official duty                      in 5 U.S.C. 5550(b)(2)(A)(ii) and                      regulations to carry out BPAPRA.
                                                  station (as defined in § 550.112(j)). Such              (b)(3)(A)(ii) provide that the obligation                 Section 550.111 is amended by
                                                  travel is subject to the normally                       to perform overtime hours of work as                   adding a new paragraph (j), which
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                                                  applicable hours-of-work rules in 5                     part of an agent’s regular tour of duty is             provides that special overtime
                                                  U.S.C. 5542(b)(2) and 5 CFR 550.112(g).                 triggered only when the agent performs                 thresholds apply to Border Patrol agents
                                                  When an agent travels directly between                  ‘‘work’’ during the 8-hour basic                       for the purpose of paying overtime
                                                  home and a temporary duty location                      workday on that same day. Thus, we                     under the regular title 5 overtime
                                                  outside the limits of the agent’s official              provide in § 550.1621(e) and § 550.1638                authority (for overtime not compensated
                                                  duty station, the time the agent would                  that official time is included as ‘‘work’’             by an overtime supplement or by the
                                                  have spent in normal home to work                       in applying those section 5550                         earning of compensatory time off). (See
                                                  travel must be deducted from any                        provisions. This is consistent with how                5 U.S.C. 5542(g) and § 550.1623.)


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                                34549

                                                     Sections 550.122, 550.132, and                       supplement is treated as part of an                    § 410.402   Paying premium pay.
                                                  550.172 are amended by adding new                       agent’s ‘‘annual pay’’ used in computing               *     *     *    *     *
                                                  paragraphs, which provide that night                    life insurance benefits, as required by 5                (b) * * *
                                                  pay differential, holiday premium pay,                  U.S.C. 5550(d)(1)(A). (Congress relied                   (8) Border Patrol agent overtime
                                                  and Sunday pay are not payable for                      on section 5550(d)(1)(A) rather than                   supplement. A Border Patrol agent may
                                                  regularly scheduled overtime within a                   amend 5 U.S.C. 8704(c) to specifically                 receive an overtime supplement under 5
                                                  Border Patrol agent’s regular tour duty                 reference the Border Patrol agent                      U.S.C. 5550 and 5 CFR part 550, subpart
                                                  (i.e., overtime hours compensated via                   overtime supplement. Under section                     P, during training, subject to the
                                                  the overtime supplement), consistent                    8704(c), OPM may prescribe regulations                 limitation in 5 U.S.C. 5550(b)(2)(G) and
                                                  with 5 U.S.C. 5550(b)(2)(C), (b)(3)(C),                 governing the types of pay included in                 (b)(3)(G) and 5 CFR 550.1622(b).
                                                  and (c)(1)(A). These new paragraphs                     annual pay.)                                           *     *     *    *     *
                                                  also make clear that a Border Patrol
                                                  agent overtime supplement is not                        Executive Order 12866 and Executive
                                                                                                          Order 13563                                            PART 550—PAY ADMINISTRATION
                                                  included in the rate of basic pay used                                                                         (GENERAL)
                                                  to compute the amount of these                            The Office of Management and Budget
                                                  premium payments for other hours that                   has reviewed this proposed rule in                     Subpart A—Premium Pay
                                                  qualify for such payments, consistent                   accordance with E.O. 12866 and E.O.
                                                  with 5 U.S.C. 5550(c)(1) and (d)(2).                    13563.                                                 ■ 3. The authority citation for subpart A
                                                     In § 550.202, we are amending the                                                                           of part 550 is revised to read as follows:
                                                  definition of rate of basic pay used in                 Regulatory Flexibility Act
                                                                                                                                                                   Authority: 5 U.S.C. 5304 note, 5305 note,
                                                  applying the advances in pay                              I certify that these proposed                        5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i),
                                                  regulations so that it includes a Border                regulations will not have a significant                5547(b) and (c), 5548, and 6101(c); sections
                                                  Patrol agent overtime supplement. This                  economic impact on a substantial                       407 and 2316, Pub. L. 105–277, 112 Stat.
                                                  amendment relies on OPM’s authority                     number of small entities because they                  2681–101 and 2681–828 (5 U.S.C. 5545a);
                                                  in 5 U.S.C. 5550(d)(1)(B) to regulate the                                                                      section 2(h), Pub. L. 113–277, 128 Stat. 3005;
                                                                                                          will apply only to Federal agencies and                E.O. 12748, 3 CFR, 1992 Comp., p. 316.
                                                  purposes for which the overtime                         employees.
                                                  supplement is treated as basic pay.                                                                            ■ 4. Amend § 550.103 by adding a
                                                     In § 550.703, we are amending the                    List of Subjects                                       sentence at the end of the definition of
                                                  definition of rate of basic pay used in                 5 CFR Part 410                                         premium pay and adding in
                                                  applying the severance pay regulations                                                                         alphabetical order a definition of regular
                                                  so that it includes a Border Patrol agent                   Education, Government employees.                   tour of duty to read as follows:
                                                  overtime supplement, consistent with 5                  5 CFR Part 550
                                                  U.S.C. 5550(d)(1)(A).                                                                                          § 550.103   Definitions.
                                                     In § 550.1204, we are amending                         Administrative practice and                          *      *    *     *      *
                                                  paragraph (a) to provide that Border                    procedure, Claims, Government                             Premium pay * * * This includes an
                                                  Patrol agent compensatory time off does                 employees, Wages.                                      overtime supplement received by a
                                                  not extend the period of leave used for                 5 CFR Part 551                                         Border Patrol agent under 5 U.S.C. 5550
                                                  calculating a lump-sum annual leave                                                                            and subpart P of this part for regularly
                                                  payment. This is consistent with the                        Government employees, Wages.                       scheduled overtime hours within the
                                                  treatment of regular title 5                            5 CFR Part 870                                         agent’s regular tour of duty and the
                                                  compensatory time off and with 5 U.S.C.                                                                        dollar value of hours of compensatory
                                                  5542(g)(5)(D), which provides that an                     Administrative practice and                          time off earned by such an agent.
                                                  agent may not receive any cash value for                procedure, Government employees,
                                                                                                          Hostages, Iraq, Kuwait, Lebanon, Life                  *      *    *     *      *
                                                  unused compensatory time off.                                                                                     Regular tour of duty, with respect to
                                                     In § 550.1205, we are adding a new                   insurance, Retirement.
                                                                                                                                                                 a Border Patrol agent covered by 5
                                                  paragraph (b)(5)(iv), which provides a                  U.S. Office of Personnel Management.                   U.S.C. 5550 and subpart P of this part,
                                                  Border Patrol agent overtime                            Katherine Archuleta,                                   means the basic 40-hour workweek plus
                                                  supplement is used in computing any                     Director.                                              any regularly scheduled overtime work
                                                  annual leave lump-sum payment. This
                                                                                                            For the reasons stated in the                        hours that the agent is assigned to work
                                                  is an exercise of OPM’s regulatory
                                                                                                          preamble, OPM is proposing to amend                    as part of an officially established 5-day
                                                  authority in 5 U.S.C. 5553 and is
                                                                                                          parts 410, 550, 551, and 870 of title 5                weekly work schedule generally
                                                  consistent with the treatment of AUO
                                                                                                          of the Code of Federal Regulations as                  consisting of—
                                                  pay that Border Patrol agents have been
                                                  receiving.                                              follows:                                                  (1) 10-hour workdays (each including
                                                     In OPM’s FLSA regulations, we are                                                                           2 overtime hours each day) in exchange
                                                  amending § 551.216 and adding a new                     PART 410—TRAINING                                      for a 25-percent overtime supplement
                                                  § 551.217. In § 551.216(c)(2), we are                                                                          (Level 1); or
                                                  deleting references to Border Patrol                    ■ 1. The authority citation for part 410                  (2) 9-hour workdays (each including 1
                                                  agents, since they are no longer covered                continues to read as follows:                          overtime hour each day) in exchange for
                                                  by the FLSA. In the new § 551.217, we                     Authority: 5 U.S.C. 1103(c), 2301, 2302,             a 12.5-percent overtime supplement
                                                  provide that Border Patrol agents are                   4101, et seq.; E.O. 11348, 3 CFR, 1967 Comp.,          (Level 2).
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                                                  FLSA exempt (for purposes of minimum                    p. 275, E.O. 11478, 3 CFR 1966–1970 Comp.,             *      *    *     *      *
                                                                                                          page 803, unless otherwise noted, E.O.                 ■ 5. In § 550.107, amend paragraph
                                                  wage and overtime provisions), as
                                                                                                          13087; and E.O. 13152.
                                                  required by the amendments to section                                                                          (a)(3) by removing the word ‘‘and’’ at
                                                  13(a) of the FLSA (29 U.S.C. 213(a))                    Subpart D—Paying for Training                          the end of paragraph, removing the
                                                  made by section (g)(2) of BPAPRA.                       Expenses                                               period from the end of paragraph (a)(4)
                                                     In OPM’s life insurance regulations,                                                                        and adding in its place ‘‘; and’’, and
                                                  we are amending § 870.204 to provide                    ■ 2. In § 410.402, add paragraph (b)(8) to             adding paragraph (a)(5) to read as
                                                  that a Border Patrol agent overtime                     read as follows:                                       follows:


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                                                  34550                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  § 550.107 Premium payments capped on a                  § 550.172 Relation to overtime, night, and                 Authority: 5 U.S.C. 5553, 6306, and 6311.
                                                  biweekly basis when an annual limitation                holiday pay.
                                                  otherwise applies.                                                                                             § 550.1204    [Amended]
                                                                                                          *     *     *     *     *
                                                    (a) * * *                                               (b) For a Border Patrol agent covered                ■  15. In § 550.1204, amend paragraph
                                                    (5) An overtime supplement for                        by 5 U.S.C. 5550 and subpart P of this                 (a) by removing the phrase
                                                  regularly scheduled overtime hours                      part, no Sunday premium pay is payable                 ‘‘compensatory time off earned under 5
                                                  within a Border Patrol agent’s regular                  for regularly scheduled overtime hours                 U.S.C. 5543 and § 550.114(d) or
                                                  tour of duty under 5 U.S.C. 5550.                       within the agent’s regular tour of duty,               § 551.531(d) of this chapter’’ from the
                                                                                                          as required by 5 U.S.C. 5550(b)(2)(C),                 third sentence and inserting in its place
                                                  *     *     *     *    *
                                                                                                          (b)(3)(C), and (c)(1)(A). The overtime                 the phrase ‘‘unused compensatory time
                                                  ■ 6. In § 550.111, add paragraph (j) to
                                                                                                          supplement payable for such scheduled                  off earned under 5 U.S.C. 5543 and
                                                  read as follows:
                                                                                                          overtime hours is not part of the agent’s              § 550.114(d) or § 551.531(d) of this
                                                  § 550.111   Authorization of overtime pay.              rate of basic pay used in computing the                chapter or under 5 U.S.C. 5542(g) and
                                                  *      *    *     *    *                                Sunday premium pay for other hours                     § 550.1625’’.
                                                                                                                                                                 ■ 16. In § 550.1205, amend paragraph
                                                    (j) For Border Patrol agents covered by               that qualify for such premium pay.
                                                  5 U.S.C. 5550 and subpart P of this part,                                                                      (b)(5) by adding paragraph (iv) to read
                                                  overtime work means hours of work in                    Subpart B—Advances in Pay                              as follows:
                                                  excess of applicable thresholds, as                     ■ 10. The authority citation for subpart               § 550.1205    Calculating a lump-sum
                                                  specified in § 550.1623, excluding hours                B of part 550 is revised to read as                    payment.
                                                  that are—                                               follows:                                               *     *     *     *     *
                                                    (1) Compensated by payment of an                                                                               (b) * * *
                                                  overtime supplement for regularly                         Authority: 5 U.S.C. 5524a, 5527,                       (5) * * *
                                                  scheduled overtime within the agent’s                   5545a(h)(2)(B), 5550(d)(1)(B); E.O. 12748, 3             (iv) An overtime supplement for
                                                                                                          CFR, 1992 comp., p. 316.
                                                  regular tour of duty under § 550.1621;                                                                         regularly scheduled overtime within a
                                                    (2) Compensated by the earning of                     ■ 11. In § 550.202, amend the definition               Border Patrol agent’s regular tour of
                                                  compensatory time off under                             of rate of basic pay by removing ‘‘and’’               duty under 5 U.S.C. 5550, as in effect
                                                  § 550.1625; or                                          at the end of paragraph (3), removing                  immediately prior to the date the agent
                                                    (3) Used in substitution or application               the period at the end of paragraph (4)                 became eligible for a lump-sum
                                                  under § 550.1626.                                       and adding in its place ‘‘; and’’, and                 payment under § 550.1203. The agency
                                                  ■ 7. In § 550.122, add paragraph (e) to                 adding paragraph (5) to read as follows:               must base the lump-sum payment on
                                                  read as follows:                                                                                               the agent’s assigned overtime
                                                                                                          § 550.202    Definitions.
                                                                                                                                                                 supplement percentage. The assigned
                                                  § 550.122 Computation of night pay                      *     *    *     *     *                               percentage will be considered fixed for
                                                  differential.                                             Rate of basic pay * * *                              the duration of the lump-sum annual
                                                  *     *     *     *     *                                 (5) An overtime supplement for
                                                                                                                                                                 leave projection period described in
                                                    (e) Border Patrol agents. For a Border                regularly scheduled overtime within a
                                                                                                                                                                 § 550.1204, even if an annual period for
                                                  Patrol agent covered by 5 U.S.C. 5550                   Border Patrol agent’s regular tour of
                                                                                                                                                                 elections under 5 U.S.C. 5550 begins
                                                  and subpart P of this part, no night pay                duty under 5 U.S.C. 5550 (as allowed
                                                                                                                                                                 during that projection period. In cases
                                                  differential is payable for regularly                   under 5 U.S.C. 5550(d)(1)(B)).
                                                                                                                                                                 where the amount of the overtime
                                                  scheduled overtime hours within the                                                                            supplement actually payable in a pay
                                                  agent’s regular tour of duty, as required               Subpart G—Severance Pay
                                                                                                                                                                 period was limited by a statutory cap,
                                                  by 5 U.S.C. 5550(b)(2)(C), (b)(3)(C), and               ■ 12. The authority citation for subpart               the agency must base the lump-sum
                                                  (c)(1)(A). The overtime supplement                      G of part 550 continues to read as                     payment on a reduced percentage rate
                                                  payable for such scheduled overtime                     follows:                                               that reflects the actual amount of the
                                                  hours is not part of the agent’s rate of                                                                       overtime supplement the agent could
                                                                                                            Authority: 5 U.S.C. 5595; E.O. 11257, 3
                                                  basic pay used in computing the night                   CFR, 1964–1965 Comp., p. 357.                          receive in a pay period.
                                                  pay differential for other hours that
                                                                                                          ■ 13. In § 550.703, amend the definition               *     *     *     *     *
                                                  qualify for such a differential.                                                                               ■ 17. Add subpart P to part 550 to read
                                                                                                          of rate of basic pay by removing ‘‘and’’
                                                  ■ 8. In § 550.132, add paragraph (d) to
                                                                                                          at the end of paragraph (3), removing                  as follows:
                                                  read as follows:
                                                                                                          the period at the end of paragraph (4)
                                                  § 550.132 Relation to overtime, night, and              and adding in its place ‘‘; and’’, and                 Subpart P—Overtime Pay for Border Patrol
                                                  Sunday pay.                                             adding paragraph (5) to read as follows:               Agents
                                                  *      *    *      *    *                                                                                      General Provisions
                                                                                                          § 550.703    Definitions.
                                                    (d) For a Border Patrol agent covered                                                                        Sec.
                                                  by 5 U.S.C. 5550 and subpart P of this                  *     *    *     *     *                               550.1601 Purpose and authority.
                                                                                                            Rate of basic pay * * *                              550.1602 Coverage.
                                                  part, no holiday premium pay is payable
                                                                                                            (5) An overtime supplement for                       550.1603 Definitions.
                                                  for regularly scheduled overtime hours
                                                                                                          regularly scheduled overtime within a                  550.1604 Authority of U.S. Customs and
                                                  within the agent’s regular tour of duty,                                                                            Border Protection.
                                                                                                          Border Patrol agent’s regular tour of
                                                  as required by 5 U.S.C. 5550(b)(2)(C),                                                                         550.1605 Interpretation instruction.
                                                                                                          duty under 5 U.S.C. 5550 (as required
                                                  (b)(3)(C), and (c)(1)(A). The overtime
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                                                                                                          by 5 U.S.C. 5550(d)(1)(a)).                            Assignment of Regular Tour of Duty and
                                                  supplement payable for such scheduled
                                                                                                          *     *    *     *     *                               Overtime Supplement
                                                  overtime hours is not part of the agent’s
                                                  rate of basic pay used in computing the                                                                        550.1611 Assignments for an annual period.
                                                                                                          Subpart L—Lump-Sum Payment for                         550.1612 Assignments made at other times.
                                                  holiday premium pay for other hours
                                                                                                          Accumulated and Accrued Annual                         550.1613 Selection of agents for
                                                  that qualify for such premium pay.                                                                                 assignment.
                                                                                                          Leave
                                                  ■ 9. In § 550.172, designate the current                                                                       550.1614 Limit on percentage of agents who
                                                  text as paragraph (a) and add paragraph                 ■ 14. The authority citation for subpart                   do not have a Level 1 regular tour of
                                                  (b) to read as follows:                                 L continues to read as follows:                            duty.



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                                                                          Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                           34551

                                                  550.1615     Pay assignment continuity.                   as a ‘‘Border Patrol agent’’ or ‘‘agent’’ in           overtime work—i.e., overtime work that
                                                  550.1616     Corrective actions.                          this subpart.                                          is not part of the agent’s regularly
                                                  Treatment of Overtime Work                                                                                       scheduled administrative workweek.
                                                                                                            § 550.1603    Definitions.                                Leave without pay means a period of
                                                  550.1621 Rules for types of regular tour of
                                                                                                               For the purpose of this subpart—                    time within an agent’s basic workweek
                                                      duty.
                                                  550.1622 Circumstances requiring special                     Advanced training means all training,               during which the agent is in nonpay
                                                      treatment.                                            other than initial training, provided on               status, including periods of unpaid
                                                  550.1623 Overtime work outside the regular                a whole-workday basis. Advanced                        voluntary absence with approval,
                                                      tour of duty.                                         training excludes training that covers                 absence without approval (AWOL),
                                                  550.1624 Regularly scheduled overtime                     only part of an 8-hour basic workday.                  suspension, or furlough.
                                                      outside the regular tour of duty.                        Agent means a Border Patrol agent.                     Level 1 regular tour of duty means an
                                                  550.1625 Irregular overtime and                              Annual period means a 1-year period                 officially established weekly regular
                                                      compensatory time off.                                that begins on the first day of the first
                                                  550.1626 Leave without pay during regular
                                                                                                                                                                   tour of duty generally consisting of five
                                                      time and absences during obligated
                                                                                                            pay period beginning on or after January               10-hour workdays (including 2 overtime
                                                      overtime hours.                                       1 of a given year and ends on the day                  hours each workday) that provides
                                                                                                            before the first day of the first pay                  entitlement to a 25 percent overtime
                                                  Relationship to Other Provisions                          period beginning on or after January 1                 supplement.
                                                  550.1631 Other types of premium pay.                      of the next year. The term ‘‘year’’ in 5                  Level 2 regular tour of duty means an
                                                  550.1632 Hazardous duty pay.                              U.S.C. 5550(b)(1)(A) and (C) and the                   officially established weekly regular
                                                  550.1633 Treatment of overtime                            term ‘‘leave year’’ in 5 U.S.C.                        tour of duty generally consisting of five
                                                      supplement as basic pay.
                                                  550.1634 Leave and other paid time off.                   5542(g)(5)(A) are interpreted to be an                 9-hour workdays (including 1 overtime
                                                  550.1635 Alternative work schedule.                       annual period as defined here.                         hour each workday) that provides
                                                  550.1636 Exemption from Fair Labor                           Basic regular tour of duty means an                 entitlement to a 12.5 percent overtime
                                                      Standards Act.                                        officially established weekly regular                  supplement.
                                                  550.1637 Travel time.                                     tour of duty consisting of five 8-hour                    Obligated overtime hours means
                                                  550.1638 Official time.                                   workdays (including no overtime hours)                 regularly scheduled overtime hours that
                                                                                                            for which no overtime supplement is                    an agent with a Level 1 or Level 2
                                                  Subpart P—Overtime Pay for Border                         payable.                                               regular tour of duty is obligated to work
                                                  Patrol Agents                                                Basic workday means the 8 hours of                  as part of the agent’s regular tour of
                                                                                                            nonovertime work on a day within an                    duty, if the agent performs any amount
                                                    Authority: 5 U.S.C. 5548 and 5550(b)(1)(B)              agent’s basic workweek.                                of work during regular time on same
                                                  and (d)(1)(B); section 2(h), Pub. L. 113–277,                Basic workweek, for full-time                       day, and that are converted into an
                                                  128 Stat. 3005.                                           employees, means the 40-hour                           overtime hours debt when the agent
                                                  General Provisions                                        workweek established in accordance                     fails to work the hours.
                                                                                                            with 5 CFR 610.111.                                       Overtime hours debt means the
                                                  § 550.1601       Purpose and authority.                      Border Patrol agent means an                        balance of obligated overtime hours not
                                                    This subpart contains OPM                               employee to whom this subpart applies,                 worked for which the agent has not
                                                  regulations to implement section 2 of                     as provided in § 550.1602.                             satisfied the hours obligation by
                                                  the Border Patrol Agent Pay Reform Act                       CBP means the component of the                      applying compensatory time off hours
                                                  of 2014 (Pub. L. 113–277), which added                    Department of Homeland Security                        or other overtime hours of work outside
                                                  section 5550 in title 5, United States                    known as U.S. Customs and Border                       the agent’s regular tour of duty.
                                                  Code, and made related statutory                          Protection (or any successor                              Overtime supplement means a
                                                  amendments. The Act created a special                     organization). When this term is used in               payment received in addition to the
                                                  overtime pay program for Border Patrol                    the context of CBP making                              regular amount of basic pay for
                                                  agents in the U.S. Customs and Border                     determinations or taking actions, it                   nonovertime work in exchange for
                                                  Protection component within the                           means management officials of CBP who                  regularly scheduled overtime work
                                                  Department of Homeland Security. OPM                      are authorized to make the given                       within an agent’s Level 1 or Level 2
                                                  has authority under 5 U.S.C. 5548(a) to                   determination or take the given action.                regular tour of duty. For an agent who
                                                  regulate subchapter V (Premium Pay) of                       Hybrid pay period means a biweekly                  is assigned a 10-hour workday as part of
                                                  chapter 55 of title 5, United States Code,                pay period within which—                               the agent’s Level 1 regular tour of duty,
                                                  including section 5550 and the Act’s                         (1) An agent has one type of                        the overtime supplement is 25 percent.
                                                  amendments to sections 5542 and 5547.                     established regular tour of duty for one               For an agent who is assigned a 9-hour
                                                  OPM was also granted broad authority                      part of the pay period and another type                workday as part of the agent’s Level 2
                                                  to promulgate necessary regulations to                    of regular tour of duty for a different                regular tour of duty, the overtime
                                                  carry out the Act and the amendments                      part of the pay period; or                             supplement is 12.5 percent. The
                                                  made by the Act under section 2(h) of                        (2) An individual is employed as an                 overtime supplement is computed as
                                                  the Act.                                                  agent for only a portion of the pay                    provided in § 550.1621(a)(4) and (b)(4).
                                                                                                            period.                                                   Pay period means a 14-day biweekly
                                                  § 550.1602       Coverage.                                   Initial training means training for                 pay period.
                                                    This subpart applies to an employee                     newly hired agents—including initial                      Rate of basic pay means the regular
                                                  of the U.S. Customs and Border                            orientation sessions, basic training, and              nonovertime rate of pay payable to an
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                                                  Protection component of the                               other preparatory activities—provided                  agent, excluding any overtime
                                                  Department of Homeland Security (or                       prior to the agent’s first regular work                supplement, but including any
                                                  any successor organization) who holds a                   assignment in which he or she will be                  applicable locality payment under 5
                                                  position assigned to the Border Patrol                    authorized to make arrests and carry a                 CFR part 531, subpart F; special rate
                                                  Enforcement classification series 1896                    firearm.                                               supplement under 5 CFR part 530,
                                                  or any successor series, consistent with                     Irregular overtime work means                       subpart C; or similar payment or
                                                  classification standards established by                   officially ordered or approved overtime                supplement under other legal authority,
                                                  OPM. Such an employee is referred to                      work that is not regularly scheduled                   before any deductions and exclusive of


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                                                  34552                   Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  additional pay of any other kind. An                      Assignment of Regular Tour of Duty                       (2) An agent who is unable to perform
                                                  overtime supplement is included as part                   and Overtime Supplement                                overtime on a daily basis, as determined
                                                  of an agent’s rate of basic pay for                                                                              by CBP, must be assigned a Basic
                                                  purposes outside this subpart, as                         § 550.1611    Assignments for an annual                regular tour of duty with no overtime
                                                                                                            period.
                                                  provided in § 550.1633.                                                                                          supplement until such time as CBP
                                                                                                               (a) Annual period. The assignment of                determines the agent is able to perform
                                                    Regularly scheduled administrative                      a regular tour of duty and overtime
                                                  workweek, for a full-time employee,                                                                              the required overtime on a daily basis;
                                                                                                            supplement to an agent is in effect for                  (3) An agent who holds a position at
                                                  means the period within an                                a full annual period (or the portion of                CBP headquarters, as a training
                                                  administrative workweek, established in                   such period during which the                           instructor at a CBP training facility, or
                                                  accordance with 5 CFR 610.111, within                     individual is employed as an agent),                   as a fitness instructor—or who holds
                                                  which the employee is regularly                           except as otherwise provided in this                   another type of administrative
                                                  scheduled to work.                                        subpart. The annual period is a 1-year                 position— must be assigned a Basic
                                                    Regularly scheduled work means                          period that begins on the first day of the             regular tour of duty unless CBP
                                                  work (including overtime work) that is                    first pay period beginning on or after                 determines a Level 1 or Level 2 regular
                                                  scheduled in advance of an                                January 1 of a given year and ends on                  tour of duty may be assigned to the
                                                  administrative workweek under an                          the day before the first day of the first              agent based on a comprehensive staffing
                                                  agency’s procedures for establishing                      pay period beginning on or after January               analysis conducted for the agent’s duty
                                                  workweeks in accordance with 5 CFR                        1 of the next year.                                    station as required by section 2(e) of the
                                                  610.111.                                                     (b) Information regarding annual                    Border Patrol Agent Pay Reform Act of
                                                    Regular time means the regular basic                    election opportunity. No later than                    2014 (Pub. L. 113–277);
                                                  (nonovertime) hours within an agent’s                     November 1 of each year, CBP must                        (4) CBP determines that an agent must
                                                  8-hour basic workday within the 40-                       provide each currently employed agent                  be assigned to a Level 1 regular tour of
                                                  hour basic workweek.                                      with information regarding the                         duty to ensure that not more than 10
                                                                                                            opportunity to elect a regular tour of                 percent (or higher percentage
                                                    Regular tour of duty means the basic                    duty and corresponding overtime                        established under § 550.1614(b)) of
                                                  40-hour workweek plus any regularly                       supplement for the next annual period.                 agents stationed at a location are
                                                  scheduled overtime work hours that the                    The information must include an                        assigned to a Level 2 regular tour of
                                                  agent is assigned to work as part of an                   explanation of election options and                    duty or a Basic regular tour of duty, as
                                                  officially established 5-day weekly work                  procedures. For an agent who will be in                required by 5 U.S.C. 5550(b)(1)(E) and
                                                  schedule generally consisting of—                         initial training status on the first day of            § 550.1614; or
                                                    (1) 10-hour workdays (including 2                       the annual period, this paragraph is not                 (5) CBP determines that assignment of
                                                  overtime hours each workday) in                           applicable, and § 550.1612(a) and (b)                  a different regular tour of duty is
                                                  exchange for a 25 percent overtime                        will apply instead.                                    necessary to comply with the pay
                                                  supplement (Level 1); or                                     (c) Annual election opportunity. No                 assignment continuity provisions in 5
                                                    (2) 9-hour workdays (including 1                        later than December 1 of each year, an                 U.S.C. 5550(b)(1)(G) and § 550.1615,
                                                  overtime hour each workday) in                            agent to whom paragraph (b) of this                    notwithstanding any other provision of
                                                  exchange for a 12.5 percent overtime                      section is applicable may make an                      law or this subpart (including
                                                  supplement (Level 2).                                     election among three options for the                   paragraphs (f)(1) through (4) of this
                                                                                                            regular tour of duty and corresponding                 section).
                                                  § 550.1604 Authority of U.S. Customs and                  overtime supplement (as described in
                                                  Border Protection.                                        § 550.1621) that the agent wishes to be                § 550.1612   Assignments made at other
                                                                                                            applicable to him or her during the next               times.
                                                    Authorized management officials of                                                                                (a) An individual who is newly hired
                                                                                                            annual period.
                                                  U.S. Customs and Border Protection are                       (d) Failure to make an election. If an              as an agent must be assigned a Basic
                                                  responsible for determining the mission                   agent fails to make a timely election                  regular tour of duty during any period
                                                  requirements and operational needs of                     under paragraph (c) of this section, CBP               of initial training. After completing any
                                                  the organization and have the right to                    must assign the agent a Level 1 regular                period of initial training, an agent must
                                                  assign scheduled and unscheduled work                     tour of duty with a 25 percent overtime                be assigned a Level 1 regular tour of
                                                  as necessary to meet those requirements                   supplement, except as otherwise                        duty for any portion of the annual
                                                  and needs, regardless of an agent’s                       provided in paragraph (f) of this section.             period remaining at that point, except
                                                  officially established regular tour of                       (e) Effect of agent election. CBP must              under applicable circumstances
                                                  duty. (See subsections (a) and (f)(1) of                  assign an agent the regular tour of duty               described in paragraph (f) of § 550.1611
                                                  section 2 of Pub. L. 113–277 and 5                        elected by the agent under paragraph (c)               or paragraph (b) of this section.
                                                  U.S.C. 5550(g).)                                          of this section unless CBP informs the                    (b) An agent who would otherwise be
                                                                                                            agent of an alternative assignment, as                 assigned a regular tour of duty under
                                                  § 550.1605       Interpretation instruction.
                                                                                                            provided under paragraph (f) of this                   paragraph (a) of this section may submit
                                                    As required by section 2(f) of the                      section. CBP may change the assignment                 an election of a different regular tour of
                                                  Border Patrol Agent Pay Reform Act of                     during the annual period, as provided                  duty to be effective on a prospective
                                                  2014 (Pub. L. 113–277), nothing in                        under § 550.1612(d).                                   basis for the remaining portion of the
                                                  section 2 of the Act or this subpart may                     (f) Management assignment to tour.                  annual period. CBP must provide the
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                                                  be construed to require compensation of                   CBP may assign a different regular tour                agent with election information no later
                                                  an agent other than for hours during                      of duty than that elected by the agent for             than the date the agent begins a regular
                                                  which the agent is actually performing                    an upcoming annual period under the                    work assignment (i.e., after completing
                                                  work or using approved paid leave or                      following circumstances:                               any period of initial training). CBP must
                                                  other paid time off. This section does                       (1) An agent who is assigned canine                 assign an agent the regular tour of duty
                                                  not prevent CBP from granting paid                        care duties must be assigned a Level 1                 elected by the agent under this section
                                                  excused absence from an agent’s basic                     regular tour of duty, subject to                       unless CBP informs the agent of an
                                                  workweek under other authority.                           § 550.1622(c);                                         alternative assignment based on the


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34553

                                                  circumstances described in paragraph (f)                assignment of agents to a Level 1 regular                 (3) For purpose of computing the
                                                  of § 550.1611. Such election must be                    tour of duty, to ensure that not more                  career average overtime supplement
                                                  submitted to CBP no later than 30 days                  than 10 percent of agents stationed at a               percentage, an agent’s career is
                                                  after the agent begins a regular work                   location are assigned to a Level 2 regular             considered to encompass only those
                                                  assignment and, if approved by CBP, is                  tour of duty or a Basic regular tour of                periods during which the agent was
                                                  effective on the first day of the first pay             duty, as required by 5 U.S.C.                          covered by this subpart. If an agent is in
                                                  period beginning on or after the later                  5550(b)(1)(E), notwithstanding any other               a control period specified in paragraph
                                                  of—                                                     provision of law or this subpart, except               (b) of this section when the provisions
                                                     (1) The date the election was                        as provided by paragraphs (b), (c), and                of this subpart first become applicable
                                                  submitted; or                                           (d) of this section. For the purpose of                to the agent, the agent’s initially
                                                     (2) The date the agent completed                     this paragraph, the term ‘‘location’’                  assigned overtime supplement
                                                  initial training.                                       means a Border Patrol sector, which                    percentage must be considered the
                                                     (c) An individual who is newly hired                 includes all subordinate organizational                agent’s career average.
                                                  as an agent during the period beginning                 structures and related geographic areas                   (b) Control period. The period of time
                                                  on November 2 and ending on the day                     within the sector (e.g., stations).                    during which CBP must control an
                                                  before the first day of the next annual                    (b) CBP may waive the 10 percent                    agent’s assignment to a regular tour of
                                                  period may make an election to take                     limit in paragraph (a) of this section and             duty begins on the date 3 years before
                                                  effect at the beginning of the next                     apply a higher percentage limit if CBP                 the agent meets age and service
                                                  annual period notwithstanding the                       determines it is able to adequately fulfill            requirements for an immediate
                                                  normally applicable December 1                          its operational requirements under that                retirement and remains in effect during
                                                  election deadline, if the agent will not                higher limit based on a comprehensive                  all subsequent service in a Border Patrol
                                                  be in initial training status on the first              staffing analysis conducted for the                    agent position.
                                                  day of the annual period. Such election                 agent’s duty station under section 2(e) of                (c) Consistency requirement. (1) The
                                                  must be submitted no later than 30 days                 the Border Patrol Agent Pay Reform Act                 consistency requirement in paragraph
                                                  after receiving election information, but               of 2014 (Pub. L. 113–277).                             (a) of this section is considered to be
                                                  before the first day of the annual period.                 (c) The 10 percent limit in paragraph               met when the agent’s average overtime
                                                  Such an election is subject to the same                 (a) does not apply to agents working at                supplement percentage during all
                                                  requirements and conditions that apply                  CBP headquarters or at a CBP training                  consecutive 3-year periods within the
                                                  to an election for an annual period                     location.                                              control period specified in paragraph (b)
                                                  under paragraphs (e) and (f) of                            (d) Regardless of the percentage limits             of this section is within 2.5 percentage
                                                  § 550.1611. If such election is not made,               set under this section, assignments of                 points of the agent’s average overtime
                                                  CBP must assign the agent a Level 1                     regular tours of duty to individual                    supplement percentage during the
                                                  regular tour of duty with a 25 percent                  agents must be made consistent with the                course of the agent’s career prior to the
                                                  overtime supplement for the next                        requirement to ensure pay assignment                   beginning of that control period, except
                                                  annual period, except under applicable                  continuity under § 550.1615.                           as provided in paragraph (c)(2) of this
                                                  circumstances described in paragraph (f)                                                                       section.
                                                  of § 550.1611.                                          § 550.1615    Pay assignment continuity.                  (2) Notwithstanding the consistency
                                                     (d) CBP may change an agent’s                           (a) Plan. (1) In consultation with                  requirement in paragraph (a) of this
                                                  assigned regular tour of duty during an                 OPM, CBP must develop and implement                    section, the CBP plan may allow an
                                                  annual period under the circumstances                   a plan to ensure, to the greatest extent               agent to be assigned a regular tour of
                                                  described in paragraph (f) of § 550.1611                practicable, that the assignment of a                  duty that provides an overtime
                                                  or paragraph (b) of § 550.1622. For                     regular tour of duty to an agent during                supplement percentage that is less than
                                                  example, an agent’s regular tour of duty                all consecutive 3-year periods within                  that necessary to produce an average
                                                  may be changed one or more times                        the control period specified in                        percentage (during all consecutive 3-
                                                  during an annual period as necessary to                 paragraph (b) of this section produces                 year periods within the control period
                                                  comply with the pay assignment                          an average overtime supplement                         specified in paragraph (b)) that is
                                                  continuity provision described in                       percentage (during each 3-year period)                 consistent with the agent’s career
                                                  § 550.1611(f)(5).                                       that is consistent with the agent’s                    average percentage if—
                                                                                                          average overtime supplement                               (i) The agent’s overtime supplement is
                                                  § 550.1613 Selection of agents for
                                                  assignment.
                                                                                                          percentage during the course of the                    limited by the premium pay cap under
                                                                                                          agent’s career prior to the beginning of               §§ 550.105 and 550.107 and the agent
                                                    If application of paragraphs (f)(3) and               that control period, subject to paragraph              voluntarily elects a regular tour of duty
                                                  (4) of § 550.1611 (or application of those              (c) of this section. The goal of this plan             providing such a lesser overtime
                                                  paragraphs through § 550.1612) requires
                                                                                                          is to ensure that agents are not able to               supplement percentage that is approved
                                                  CBP to select agents for assignment to a
                                                                                                          artificially enhance their retirement                  by CBP; or
                                                  particular regular tour of duty out of a
                                                                                                          annuities during the period when the                      (ii) CBP determines an agent is unable
                                                  pool of agents who prefer a different
                                                                                                          high-3 average pay may be determined                   to perform overtime on a daily basis due
                                                  assignment, CBP must make any such
                                                                                                          (in accordance with 5 U.S.C. 8331(4) or                to a physical or medical condition
                                                  selection consistent with an established
                                                                                                          5 U.S.C. 8401(3)).                                     affecting the agent and assigns the agent
                                                  written plan that includes the criteria                    (2) In applying paragraph (a)(1) of this            a Basic regular tour of duty, as described
                                                  that will be considered and the priority                section, an agent’s assigned overtime                  in § 550.1611(f)(2), (but only to the
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                                                  of those criteria. Such plan must be
                                                                                                          supplement percentage (25 percent, 12.5                extent such assignment makes it
                                                  consistent with the requirements of this
                                                                                                          percent, or 0 percent) must be used in                 impossible to satisfy the consistency
                                                  subpart.
                                                                                                          computing the career average                           requirement during any given
                                                  § 550.1614 Limit on percentage of agents                supplement regardless of whether or not                consecutive 3-year period).
                                                  who do not have a Level 1 regular tour of               the payable amount of the overtime                        (d) CBP authority. (1) CBP may take
                                                  duty.                                                   supplement is limited by a premium                     such action as is necessary, including
                                                    (a) CBP must take such action as is                   pay cap established under 5 U.S.C. 5547                the unilateral assignment of a regular
                                                  necessary, including unilateral                         and §§ 550.105 and 550.107.                            tour of duty to implement the plan


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                                                  34554                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  described in paragraph (a) of this                      recent calendar year minus the total                   Treatment of Overtime Work
                                                  section, except as provided in paragraph                amount of the overtime supplement
                                                  (d)(2) of this section.                                                                                        § 550.1621   Rules for types of regular tour
                                                                                                          payments during that year;
                                                                                                                                                                 of duty.
                                                    (2) Notwithstanding the requirements                     (iii) The service computation date
                                                  of 5 U.S.C. 5550(b)(1)(G) and this                                                                                (a) Level 1 regular tour of duty. For an
                                                                                                          computed as though law enforcement                     agent with a Level 1 regular tour of duty
                                                  section, CBP is authorized to assign                    officer service is regular employee
                                                  agents to regular tours of duty as                                                                             and a 25 percent overtime supplement,
                                                                                                          service (i.e., the ‘‘regular’’ SCD);                   the following rules apply:
                                                  necessary to meet operational
                                                  requirements.                                              (iv) The service computation date                      (1) The agent has an officially
                                                    (e) Reporting requirements—(1)                        computed with credit for law                           established weekly regular tour of duty
                                                  Annual data reporting for agents subject                enforcement officer service, and any                   generally consisting of five 10-hour
                                                  to pay assignment continuity. For each                  other service creditable for eligibility               workdays (an 8-hour basic workday and
                                                  agent within the control period                         under 5 U.S.C. 8336(c) or 5 U.S.C.                     2 regularly scheduled overtime hours);
                                                  specified in paragraph (b) of this                      8412(d) (i.e., the ‘‘LEO’’ SCD);                          (2) The agent’s 8-hour basic workday
                                                  section, CBP must provide to OPM no                        (v) Date of birth;                                  (regular time) may be interrupted by an
                                                  later than March 30th of each year the                                                                         unpaid off-duty meal break;
                                                                                                             (vi) Gender;
                                                  following information (in a format                                                                                (3) The obligation to perform 2 hours
                                                  specified by OPM) based on data                            (vii) Retirement system (e.g., CSRS,                of overtime work on a day including
                                                  compiled through the end of the most                    FERS, FERS–RAE, FERS–FRAE); and                        part of the agent’s regular tour of duty
                                                  recent annual period:                                      (viii) Any other information requested              does not apply if the agent performs no
                                                     (i) The date the agent became subject                by OPM.                                                work during regular time on that day,
                                                  to controls on the assignment to a                                                                             subject to paragraph (e) of this section;
                                                  regular tour of duty;                                      (3) Additional data. CBP must
                                                                                                          provide additional data as requested by                   (4) As compensation for regularly
                                                     (ii) The date the agent will become                                                                         scheduled overtime hours within the
                                                  subject to mandatory separation under 5                 OPM at any time, including data on the
                                                                                                          percentage rate of administratively                    regular tour of duty, the agent is entitled
                                                  U.S.C. 8335(b) or 5 U.S.C. 8425(b);                                                                            to an overtime supplement equal to 25
                                                     (iii) The service computation date                   uncontrollable overtime under § 550.154
                                                                                                          during the period before the annual                    percent of the agent’s hourly rate of
                                                  based on eligibility under 5 U.S.C.                                                                            basic pay times the number of paid
                                                  8336(c) or 5 U.S.C. 8412(d);                            period that begins in January 2016.
                                                                                                                                                                 hours of regular time for the agent in the
                                                     (iv) The average overtime supplement                    (f) Corrective actions. If it is                    pay period (subject to the premium cap
                                                  percentage during the course of the                     determined that the consistency                        in §§ 550.105 and 550.107 and the
                                                  agent’s career prior to the beginning of                requirement described in paragraphs (a)                restriction in § 550.1626(a)(5)), and no
                                                  the control period specified in                         and (c) of this section is not being met               additional compensation or
                                                  paragraph (b);                                          for a particular agent, CBP must                       compensatory time off may be provided
                                                     (v) The average overtime supplement                  document why the differential occurred                 for such overtime hours;
                                                  percentage for the time period beginning                and establish any necessary actions,                      (5) For any additional regularly
                                                  with the date the agent became subject                  including the modification of the plan                 scheduled overtime hours outside the
                                                  to controls on the assignment to a                      described in paragraph (a) of this                     regular tour of duty, the agent is entitled
                                                  regular tour of duty and ending on the                  section, to ensure that the goal of pay                to overtime pay as provided in
                                                  last day of the most recent annual                      assignment continuity is achieved going                § 550.1624, except as otherwise
                                                  period;                                                 forward. CBP is not required to                        provided by § 550.1626;
                                                     (vi) The average overtime supplement                 retroactively correct an agent’s assigned
                                                  percentage for the last three annual                                                                              (6) For any irregular overtime hours,
                                                                                                          tour or overtime supplement based on                   the agent is entitled to be credited with
                                                  periods (excluding any time that was                    violation of the consistency
                                                  not within a control period specified in                                                                       compensatory time off as provided in
                                                                                                          requirement, except when CBP                           § 550.1625, except as otherwise
                                                  paragraph (b) of this section);                         determines there exists, in connection
                                                     (vii) The average overtime                                                                                  provided by § 550.1626;
                                                                                                          with an agent’s assigned overtime                         (7) The agent must be charged
                                                  supplement percentage for the most
                                                                                                          supplement, evidence of fraud,                         corresponding amounts of paid leave,
                                                  recent annual period (excluding any
                                                                                                          misrepresentation, fault, or lack of good              compensatory time off, other paid time
                                                  time that was not within a control
                                                                                                          faith on the part of that agent.                       off, or time in nonpay status for each
                                                  period specified in paragraph (b) of this
                                                  section), and;                                                                                                 hour (or part thereof) the agent is absent
                                                                                                          § 550.1616    Corrective actions.
                                                     (viii) Any other information requested                                                                      from duty during regular time, as
                                                  by OPM.                                                    If it is determined that CBP did not                provided in § 550.1634, except as
                                                     (2) Annual data reporting for all                    comply with applicable statutory or                    otherwise provided in § 550.1626(a);
                                                  agents. No later than March 30th of each                regulatory requirements in assigning an                and
                                                  year, CBP must provide to OPM the                       agent to a regular tour of duty under                     (8) If the agent is absent during
                                                  following information (in a format                      §§ 550.1611 through 550.1614, CBP                      regularly scheduled overtime hours
                                                  specified by OPM) for each agent                        must take corrective action as soon as                 within the agent’s regular tour of duty
                                                  compiled for the preceding calendar                     practicable. Such corrective action must               that the agent is obligated to work, the
                                                  year based on salary payments made                      be applied on a prospective basis. CBP                 agent accrues an obligation to perform
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                                                  during that year:                                       is not required to retroactively change                other overtime work for each hour (or
                                                     (i) The amount of earnings subject to                an agent’s assigned tour or overtime                   part thereof) the agent is absent, and
                                                  retirement deductions, including                        supplement, except when CBP                            such obligation must be satisfied as
                                                  overtime supplement payments,                           determines there exists, in connection                 provided in § 550.1626.
                                                  received during the most recent                         with the agent’s tour assignment,                         (b) Level 2 regular tour of duty. For an
                                                  calendar year;                                          evidence of fraud, misrepresentation,                  agent with a Level 2 regular tour of duty
                                                     (ii) The amount of earnings subject to               fault, or lack of good faith on the part               and a 12.5 percent overtime
                                                  retirement deductions during the most                   of that agent.                                         supplement, the following rules apply:


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34555

                                                     (1) The agent has an officially                        (3) For any regularly scheduled                      must be applied towards the obligated
                                                  established weekly regular tour of duty                 overtime hours, the agent is entitled to               overtime hours, as provided in
                                                  generally consisting of five 9-hour                     overtime pay as provided in § 550.1624,                § 550.1626(b). After any such
                                                  workdays (an 8-hour basic workday and                   except as otherwise provided by                        substitution, CBP must credit the agent
                                                  1 regularly scheduled overtime hour);                   § 550.1626;                                            with hours of work for any remaining
                                                     (2) The agent’s 8-hour basic workday                   (4) For any irregular overtime hours,                nonwork time during obligated overtime
                                                  (regular time) may be interrupted by an                 the agent is entitled to be credited with              hours on the same day for the purpose
                                                  unpaid off-duty meal break;                             compensatory time off as provided in                   of determining the agent’s total hours to
                                                     (3) The obligation to perform 1 hour                 § 550.1625, except as otherwise                        be compared to the applicable overtime
                                                  of overtime work on a day including                     provided by § 550.1626; and                            threshold. For example, if an agent
                                                  part of the agent’s regular tour of duty                  (5) The agent must be charged                        performs 2 creditable hours of regularly
                                                  does not apply if the agent performs no                 corresponding amounts of paid leave,                   scheduled overtime work outside the
                                                  work during regular time on that day,                   compensatory time off, other paid time                 agent’s Level 1 regular tour of duty on
                                                  subject to paragraph (e) of this section;               off, or time in nonpay status for each                 a training day when the agent performed
                                                     (4) As compensation for regularly                    hour (or part thereof) the agent is absent             half an hour of work during the 2 hours
                                                  scheduled overtime hours within the                     from duty during regular time, as                      of obligated overtime, CBP would
                                                  regular tour of duty, the agent receives                provided in § 550.1634, except as                      substitute 1.5 hours of regularly
                                                  an overtime supplement equal to 12.5                    otherwise provided in § 550.1626(a).                   scheduled overtime outside the regular
                                                  percent of the agent’s hourly rate of                     (d) Effect of premium pay cap. If a                  tour of duty for 1.5 hours of obligated
                                                  basic pay times the number of paid                      premium pay cap established under 5                    overtime when no work was performed.
                                                  hours of regular time for the agent in the              U.S.C. 5547 and §§ 550.105 and 550.107                 CBP would not provide the agent with
                                                  pay period (subject to the premium cap                  limits payment of an overtime                          any credit for nonwork hours under
                                                  in §§ 550.105 and 550.107 and the                       supplement or regularly scheduled                      paragraph (b)(1) of this section, since
                                                  restriction in § 550.1626(a)(5)), and no                overtime pay, or limits crediting of                   the 0.5 hours of actual work plus the 1.5
                                                  additional compensation or                              compensatory time off, the affected                    substituted hours account for the entire
                                                  compensatory time off may be provided                   agent is still required to perform                     2-hour period. The agent would be paid
                                                  for such overtime hours;                                assigned overtime work.                                for the unsubstituted half hour of
                                                     (5) For any additional regularly                       (e) Meaning of ‘‘work’’. In applying                 creditable regularly scheduled overtime
                                                  scheduled overtime hours outside the                    paragraphs (a)(3) and (b)(3) of this                   work under § 550.1624.
                                                  regular tour of duty, the agent is entitled             section, the term ‘‘work’’ refers to paid                 (3) For days of advanced training in
                                                  to overtime pay as provided in                          hours of work, consistent with                         excess of 60 days in a calendar year, an
                                                                                                          § 550.112, except that paid leave and                  agent must be assigned a Basic regular
                                                  § 550.1624, except as otherwise
                                                                                                          other paid time off when an agent is                   tour of duty and be treated accordingly.
                                                  provided by § 550.1626;
                                                                                                          excused from duty are not considered to                If this results in a hybrid pay period in
                                                     (6) For any irregular overtime hours,
                                                                                                          be work hours. Official time under 5                   which an agent has two types of regular
                                                  the agent is entitled to be credited with
                                                                                                          U.S.C. 7131 during regular time is                     tours of duty within the same biweekly
                                                  compensatory time off as provided in
                                                                                                          considered to be paid hours of ‘‘work’’                pay period, CBP must determine the
                                                  § 550.1625, except as otherwise
                                                                                                          during the time an employee otherwise                  number of overtime hours outside the
                                                  provided by § 550.1626;
                                                                                                          would be in a duty status.                             regular tour of duty as provided in
                                                     (7) The agent must be charged                                                                               § 550.1623(c). For an agent who is
                                                  corresponding amounts of paid leave,                    § 550.1622 Circumstances requiring                     assigned a Basic regular tour of duty
                                                  compensatory time off, other paid time                  special treatment.                                     during advanced training under this
                                                  off, or time in nonpay status for each                     (a) General. The rules in paragraphs                paragraph, CBP must change the agent’s
                                                  hour (or part thereof) the agent is absent              (b) and (c) of this section provide for                regular tour of duty to the type in effect
                                                  from duty during regular time, as                       special treatment based on specified                   before the Basic tour was assigned when
                                                  provided in § 550.1634, except as                       circumstances and apply                                the agent is no longer participating in
                                                  otherwise provided in § 550.1626(a);                    notwithstanding any other provision of                 advanced training.
                                                  and                                                     this subpart.                                             (4) Paragraphs (b)(1) through (3) of
                                                     (8) If the agent is absent during                       (b) Advanced training. (1) During the               this section apply solely to advanced
                                                  regularly scheduled overtime hours                      first 60 days of advanced training in a                training that is provided in whole-
                                                  within the agent’s regular tour of duty                 calendar year, an agent’s assigned                     workday increments (i.e., covering an
                                                  that the agent is obligated to work, the                regular tour of duty must be considered                entire 8-hour basic workday).
                                                  agent accrues an obligation to perform                  to continue and the agent must be                         (c) Canine care. For an agent assigned
                                                  other overtime work for each hour (or                   deemed to have worked during any                       to provide care for a canine and
                                                  part thereof) the agent is absent, and                  nonwork period within obligated                        assigned to the Level 1 regular tour of
                                                  such obligation must be satisfied as                    overtime hours for the purpose of                      duty border patrol rate of pay, the
                                                  provided in § 550.1626.                                 determining the agent’s total hours to be              combined sum of basic pay plus the 25
                                                     (c) Basic regular tour of duty. For an               compared to the applicable overtime                    percent overtime supplement is
                                                  agent with a Basic regular tour of duty                 threshold (as provided in                              considered to provide compensation for
                                                  that includes no scheduled overtime                     § 550.1623(a)(2)(iv)), except as provided              all canine care. Such an agent must be
                                                  hours and provides no overtime                          under paragraph (b)(2) of this section.                credited with 1 hour of regularly
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                                                  supplement, the following rules apply:                     (2) If an agent, during the period                  scheduled overtime work as part of the
                                                     (1) The agent has an officially                      covered by paragraph (b)(1) of this                    regular tour of duty on each day
                                                  established weekly regular tour of duty                 section, performs creditable overtime                  containing a part of that tour, without
                                                  generally consisting of five 8-hour basic               work outside the agent’s regular tour of               regard to the actual duration of such
                                                  workdays;                                               duty on a day when the agent performed                 care or the time and day when such care
                                                     (2) The agent’s 8-hour basic workday                 less than the required amount of                       was actually provided. That leaves the
                                                  (regular time) may be interrupted by an                 obligated overtime work, the overtime                  agent with an additional obligation to
                                                  unpaid off-duty meal break;                             work outside the regular tour of duty                  perform 1 other hour of regularly


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                                                  34556                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  scheduled overtime work as part of the                     (b) Overtime thresholds for standard                compensable under §§ 550.1624 through
                                                  agent’s regular tour of duty on any day                 tours. (1) The applicable biweekly                     550.1626.
                                                  containing a part of the employee’s tour,               overtime threshold prescribed in
                                                  if the agent performs work during                       paragraph (b)(2) of this section applies               § 550.1624 Regularly scheduled overtime
                                                                                                                                                                 outside the regular tour of duty.
                                                  regular time on that day and thus has                   during a pay period to an agent whose
                                                  obligated overtime hours. An agent may                  regular tour of duty is fixed at one of the               (a) Coverage. Any regularly scheduled
                                                  receive no other compensation or                        three standard tours for the entire pay                overtime hours outside an agent’s
                                                  compensatory time off for hours of                      period.                                                regular tour of duty, as specified in
                                                  canine care beyond what is specifically                    (2) For an agent covered by paragraph               § 550.1623, are covered by this section,
                                                  provided under this paragraph. If an                    (b)(1) of this section, the threshold used             except that such hours are excluded
                                                  agent is generally assigned to provide                  to determine whether an agent has                      from coverage under this section when
                                                  care for a canine, but is temporarily                   performed overtime work outside the                    required by the superseding provisions
                                                  relieved of that duty for any reason (e.g.,             regular tour of duty in a given pay                    in § 550.1626.
                                                  no dog available), the agent may not                    period is—                                                (b) Rates. Agents receive overtime pay
                                                  receive the 1-hour credit for canine care                  (1) 100 hours for a Level 1 regular tour            at the rates specified under 5 U.S.C.
                                                  on a day when the agent is relieved from                of duty;                                               5542(a) and § 550.113 for regularly
                                                  providing canine care.                                     (2) 90 hours for a Level 2 regular tour             scheduled overtime hours covered by
                                                                                                          of duty; or                                            paragraph (a) of this section, subject to
                                                  § 550.1623 Overtime work outside the                       (3) 80 hours for a Basic regular tour               the premium pay limitation established
                                                  regular tour of duty.                                   of duty.                                               under 5 U.S.C. 5547 and §§ 550.105 and
                                                    (a) General. (1) For the purpose of                      (c) Overtime threshold for hybrid pay               550.107. An agent’s rate of basic pay
                                                  determining hours of overtime work                      period. (1) For a hybrid pay period in                 (without any overtime supplement) is
                                                  outside an agent’s regular tour of duty                 which an agent has one type of regular                 used in computing overtime pay for
                                                  in order to apply §§ 550.1624, 550.1625,                tour of duty in effect for one part of the             such hours.
                                                  and 550.1626, CBP must apply the                        period and another type for another part                  (c) Avoiding additional regularly
                                                  applicable biweekly overtime threshold                  of the period, the threshold used to                   scheduled overtime. (1) As required by
                                                  prescribed in paragraphs (b) and (c) of                 determine whether an agent has                         section 2(c)(2) of the Border Patrol
                                                  this section. An agent’s total hours of                 performed overtime work outside the                    Agent Pay Reform Act of 2014 (Pub. L.
                                                  work (as determined under paragraph                     regular tour of duty in a given pay                    113–277), CBP must, to the maximum
                                                  (a)(2) of this section) must be compared                period is equal to the sum of the regular              extent practicable, avoid the use of
                                                  to the applicable threshold, and hours                  time hours (paid or unpaid) and the                    regularly scheduled overtime work by
                                                  in excess of that threshold are overtime                number of normally scheduled overtime                  agents outside of the regular tour of
                                                  hours in applying §§ 550.1624,                          hours within a regular tour of duty                    duty.
                                                  550.1625, and 550.1626. The 8-hour                      (whether obligated or not and whether                     (2) Notwithstanding paragraph (c)(1)
                                                  daily and 40-hour weekly overtime                       worked or not) in the pay period. For                  of this section, CBP may allow use of
                                                  thresholds under 5 U.S.C. 5542(a) and                   example, if an agent has a Level 1                     regularly scheduled overtime work
                                                  § 550.111 are not applicable to agents.                 regular tour of duty in the first week of              outside an agent’s regular tour of duty
                                                     (2) An agent’s total hours of work in                a pay period and a Level 2 regular tour                if an agent volunteers to perform such
                                                  a pay period for the purpose of applying                of duty in the second week, the agent’s                overtime (e.g., to reduce an overtime
                                                  applicable overtime thresholds is equal                 regular time hours would be 40 in the                  hours debt).
                                                  to the sum of:                                          first week and 40 in the second week
                                                     (i) Time determined to be hours of                   and the normally scheduled overtime                    § 550.1625 Irregular overtime and
                                                  work in duty status (regular time or                    hours within a regular tour of duty                    compensatory time off.
                                                  overtime), subject to this subpart, 5                   would be 10 (5 days times 2 hours each                    (a) Coverage. An agent is entitled to
                                                  U.S.C. 4109 and 5 CFR 410.402 (related                  day) in the first week and 5 (5 days                   compensatory time off as provided in
                                                  to training periods), and 5 U.S.C.                      times 1 hour each day) in second week,                 this section for irregular overtime hours
                                                  5542(b) and § 550.112 (establishing                     resulting in an biweekly overtime                      outside an agent’s regular tour of duty,
                                                  general rules), except that paragraphs                  threshold of 95 hours.                                 as specified in § 550.1623, except that
                                                  (d) and (e) of § 550.112 are superseded                    (2) For a hybrid pay period in which                such hours are excluded from coverage
                                                  by § 550.1626;                                          an individual is employed as a Border                  under this section (except paragraph (c)
                                                     (ii) Paid leave or other paid time off               Patrol agent for only part of the pay                  of this section) when required by the
                                                  during a period of nonduty status                       period, the threshold used to determine                superseding provisions in § 550.1626.
                                                  within an agent’s regular time;                         whether an agent has performed                         The compensatory time off provisions in
                                                     (iii) Obligated overtime hours during                overtime work outside the regular tour                 5 U.S.C. 5543 and 5 CFR 550.114 are not
                                                  which no work is performed (creating a                  of duty in a given pay period is equal                 applicable to an agent.
                                                  debt of hours) and for which no                         to the sum of the paid regular time                       (b) Earning on an hour-for-hour basis
                                                  substitution is made under                              hours (paid or unpaid) and the number                  for irregular overtime. Subject to the
                                                  § 550.1626(b);                                          of normally scheduled overtime hours                   limitations specified in this section and
                                                     (iv) Nonwork hours deemed to be                      within a regular tour of duty (whether                 the superseding provisions in
                                                  hours of work during obligated overtime                 obligated or not and whether worked or                 § 550.1626, an agent must receive
                                                  hours on a day of advanced training                     not) during the portion of the pay period              compensatory time off for an equal
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                                                  under § 550.1622(b); and                                the individual was employed as an                      amount of time spent performing
                                                     (v) Overtime hours normally                          agent. For example, if an individual is                irregular overtime work.
                                                  scheduled within an agent’s regular tour                employed as an agent only during the                      (c) Call-back overtime work.
                                                  of duty that an agent is not obligated to               second week of a pay period and has a                  Notwithstanding paragraph (b) of this
                                                  work because the agent performs no                      Level 1 regular tour of duty, the                      section, consistent with 5 U.S.C.
                                                  work during regular time on that day (as                overtime threshold would be 50 hours                   5542(b)(1) and § 550.112(h), an agent
                                                  provided in paragraphs (a)(3) and (b)(3)                in determining whether the agent has                   must be deemed to have performed 2
                                                  of § 550.1621).                                         overtime hours in that week that are                   hours of irregular overtime work for a


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                                                                        Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34557

                                                  lesser amount of irregular overtime                     computation of the agent’s retirement                     (b) Substitution for absences during
                                                  work if—                                                annuity for unused compensatory time                   obligated overtime hours within the
                                                     (1) An agent is required perform such                off.                                                   regular tour of duty. (1) For a period of
                                                  work on a day when the agent was not                                                                           absence during obligated overtime hours
                                                  scheduled to work; or                                   § 550.1626 Leave without pay during                    within an agent’s regular tour of duty,
                                                     (2) An agent is required to return to                regular time and absences during obligated
                                                                                                                                                                 an equal period of work outside the
                                                                                                          overtime hours.
                                                  the agent’s place of employment to                                                                             agent’s regular tour of duty in the same
                                                  perform such work.                                         (a) Substitution for leave without pay              pay period must be substituted to the
                                                     (d) Earning limited by premium pay                   during regular time. (1) For any period                extent such work was performed. Any
                                                  cap. An agent may not be credited with                  of leave without pay during an agent’s                 time so substituted must be treated for
                                                  earning compensatory time off if the                    regular time (basic workweek), an equal                all pay computation purposes as if it
                                                  value of such time off would cause the                  period of work outside the agent’s                     were obligated overtime work and may
                                                  sum of the agent’s basic pay and                        regular time in the same pay period                    not be considered an overtime hour of
                                                  premium pay in the given pay period to                  must be substituted to the extent such                 work for any other purpose, including
                                                  exceed the limitation established under                 work was performed. Any time                           §§ 550.1624 and 550.1625.
                                                  5 U.S.C. 5547 and §§ 550.105 and                        substituted for leave without pay must                    (2) In substituting hours of work
                                                  550.107 in the period in which it was                   be treated for all pay computation                     under paragraph (b)(1) of this section,
                                                  earned. The dollar value of                             purposes as if it were regular time                    work performed on the same day as the
                                                  compensatory time for the purpose of                    (except as provided in paragraph (a)(5)                period of absence must be substituted
                                                  this paragraph is the amount of overtime                of this section) and may not be                        first in circumstances described in
                                                  pay the agent would have received for                   considered an overtime hour of work for                § 550.1622(b)(2). Hours substituted
                                                  the period during which compensatory                    any purpose, including                                 under this paragraph must be
                                                  time off was earned if the overtime had                 §§ 550.1621(a)(4) and (b)(4), 550.1624,                substituted in the following priority
                                                  been regularly scheduled outside the                    and 550.1625.                                          order: First, irregular overtime hours;
                                                  agent’s regular tour of duty.                              (2) Hours of work must be substituted               and second, regularly scheduled
                                                     (e) Pay period limit. (1) An agent may               for regular time work under paragraph                  overtime hours outside the regular tour
                                                  not earn more than 10 hours of                          (a)(1) of this section before being                    of duty.
                                                  compensatory time off during any pay                    substituted for regularly scheduled                       (3) After substituting hours under
                                                  period unless—                                          overtime within the agent’s regular tour               paragraph (b)(2) of this section, any
                                                     (i) CBP, as it determines appropriate,               of duty under paragraph (b) of this                    remaining hours used for substitution
                                                  approves in writing a waiver of the 10-                 section.                                               under paragraph (b)(1) of this section
                                                  hour limit; and                                            (3) Hours used for substitution under               must be substituted in the following
                                                     (ii) Such waiver approval is executed                paragraph (a)(1) of this section must be               priority order: First, irregular overtime
                                                  in advance of the performance of any                    substituted in the following priority                  hours; and second, regularly scheduled
                                                  work for which compensatory time off                    order: First, irregular overtime hours;                overtime hours outside the regular tour
                                                  is earned.                                                                                                     of duty.
                                                                                                          second, regularly scheduled overtime
                                                     (2) If a waiver of the 10-hour limit                                                                           (4) The substitution of overtime hours
                                                                                                          hours outside the regular tour of duty;
                                                  described in paragraph (e)(1) of this                                                                          outside the regular tour of duty for
                                                                                                          and third, regularly scheduled overtime                obligated overtime hours not worked is
                                                  section is not granted, the agent
                                                                                                          hours within the regular tour of duty.                 solely for pay computation purposes.
                                                  involved may not be ordered to perform
                                                  the associated overtime work.                              (4) The substitution of overtime hours              The substitution does not change the
                                                     (f) Annual period limit. An agent may                for leave without pay is solely for pay                hours of an agent’s regular tour of duty.
                                                  not earn more than 240 hours of                         computation purposes. The substitution                 The hours that are substituted are
                                                  compensatory time off during an annual                  does not change the hours of an agent’s                considered to have been performed
                                                  period.                                                 basic workweek or the fact that the                    when they were worked, not during the
                                                     (g) Usage. (1) An agent may use                      agent was in a particular type of nonpay               obligated overtime hours for which they
                                                  compensatory time off by being excused                  status during those hours. The hours                   are substituted.
                                                  from duty during regular time (in an                    that are substituted are considered to                    (c) Application of compensatory time
                                                  amount equal to the compensatory time                   have been performed when they were                     off or future overtime work to offset
                                                  being used) during the agent’s basic                    worked, not during the leave without                   overtime hours debt. (1) If a Border
                                                  workweek.                                               pay hours for which they are                           Patrol agent does not have sufficient
                                                     (2) An agent’s balance of unused                     substituted. For example, if an agent                  additional work in a pay period to
                                                  compensatory time off is used to satisfy                performs 4 hours of overtime work                      substitute for all periods of absence
                                                  an overtime hours debt, as provided in                  outside the agent’s regular tour of duty               during obligated overtime hours within
                                                  § 550.1626(c)(1).                                       during the first week of a pay period                  the agent’s regular tour of duty for that
                                                     (h) Time limit for usage and forfeiture.             and then is placed in leave without pay                pay period, any unused balance of
                                                  An agent must use any hours of                          during the second week due to a                        compensatory time off hours previously
                                                  compensatory time off not later than the                shutdown furlough caused by a lapse in                 earned under § 550.1625 must be
                                                  end of the 26th pay period after the pay                appropriations, the 4 hours may be                     applied towards the newly accrued
                                                  period during which the compensatory                    substituted for furlough hours for the                 overtime hours debt.
                                                  time off was earned. Any compensatory                   purpose of computing pay owed the                         (2) If an agent has a remaining
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                                                  time off not used within that time limit,               agent for the week before the furlough                 overtime hours debt after applying
                                                  or prior to separation from an agent                    began.                                                 paragraphs (b) and (c)(1) of this section,
                                                  position, is forfeited and not available                   (5) If overtime hours are substituted               any additional overtime work outside
                                                  for any purpose, regardless of the                      for an absence without approval                        the agent’s regular tour of duty in
                                                  circumstances. An agent may not                         (AWOL) or a suspension, the basic pay                  subsequent pay periods that would
                                                  receive any cash value for unused                       for such substituted hours may not be                  otherwise be credited under §§ 550.1624
                                                  compensatory time off. An agent may                     used in computing an agent’s overtime                  or section 550.1625 must be applied
                                                  not receive credit towards the                          supplement.                                            towards the overtime hours debt until


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                                                  34558                   Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                  that debt is satisfied. The application of                   (b) 5 U.S.C. 5595(c) and 5 CFR part                 times for an agent’s basic workday if it
                                                  such hours must be done in the                            550, subpart G, pertaining to severance                determines such flexibility is
                                                  following priority order: First, irregular                pay;                                                   appropriate for the position in question.
                                                  overtime hours; and second, regularly                        (c) 5 U.S.C. 8114(e), pertaining to
                                                  scheduled overtime hours outside the                      workers’ compensation;                                 § 550.1636 Exemption from Fair Labor
                                                                                                               (d) 5 U.S.C. 8331(3) and 5 U.S.C.                   Standards Act.
                                                  regular tour of duty. Any overtime hour
                                                  applied under this paragraph (c)(2) may                   8401(4) and related provisions that rely                 The minimum wage and the hours of
                                                  not be considered an overtime hour of                     on the definition in those paragraphs,                 work and overtime pay provisions of the
                                                  work for any other purpose.                               pertaining to retirement benefits;                     Fair Labor Standards Act do not apply
                                                     (d) Unsatisfied overtime hours debt at                    (e) Subchapter III of chapter 84 of title           to Border Patrol agents. (See also 5 CFR
                                                  transfer or separation. Any unsatisfied                   5, United States Code, pertaining to the               551.217.)
                                                  overtime hours debt that exists at the                    Thrift Savings Plan;
                                                                                                                                                                   § 550.1637   Travel time.
                                                  time of transfer to a non-agent position                     (f) 5 U.S.C. 8704(c), pertaining to life
                                                  or separation from Federal service must                   insurance; and                                            (a) A Border Patrol agent’s travel time
                                                  be converted to a monetary debt equal                        (g) For any other purposes explicitly               to and from home and the agent’s
                                                  to the result of multiplying the agent’s                  provided for by law or as the Office of                regular duty station (or to an alternative
                                                  hourly rate of basic pay at the time of                   Personnel Management may prescribe                     work location within the limits of the
                                                  separation or transfer by the number of                   by other regulation.                                   agent’s official duty station, as defined
                                                  hours in the overtime hours debt. CBP                                                                            in § 550.112(j)) may not be considered
                                                                                                            § 550.1634    Leave and other paid time off.           hours of work under any provision of
                                                  must follow standard debt collection
                                                                                                              (a) An agent is subject to the rules                 law.
                                                  procedures to recover any debt.
                                                                                                            governing leave accrual and usage under                   (b) Official travel time away from an
                                                  Relationship to Other Provisions                          5 U.S.C. chapter 63 on the same basis                  agent’s official duty station may be
                                                                                                            as other employees. The tour of duty for               creditable hours of work as provided in
                                                  § 550.1631       Other types of premium pay.              leave accrual and usage purposes is the                § 550.112(g). When an agent travels
                                                    (a) An agent may not receive premium                    basic workweek, which excludes                         directly between home and a temporary
                                                  pay for night, Sunday, or holiday work                    regularly scheduled overtime hours                     duty location outside the limits of the
                                                  for hours of regularly scheduled                          within the regular tour of duty                        agent’s official duty station (as defined
                                                  overtime work within the agent’s regular                  established under this subpart. The                    in § 550.112(j)), the time the agent
                                                  tour of duty.                                             agent must be charged corresponding                    would have spent in normal home to
                                                    (b) An agent may receive premium                        amounts of leave for each hour (or part                work travel must be deducted from any
                                                  pay for night, Sunday, or holiday work,                   thereof) the agent is absent from duty                 creditable hours of work while
                                                  as applicable, for hours not covered by                   during regular time (except that full                  traveling.
                                                  paragraph (a) of this section, in                         days off for military leave must be
                                                  accordance with 5 U.S.C. 5545(a) and                      charged when required).                                § 550.1638   Official Time.
                                                  (b) and section 5546 and corresponding                      (b) An agent is subject to the normally                An agent who uses official time under
                                                  regulations, except that section 5546(d)                  applicable rules governing other types                 5 U.S.C. 7131 may be assigned to a
                                                  does not apply. (Contrary to section                      of paid time off (such as holiday time off             Level 1 or Level 2 regular tour of duty,
                                                  5546(d), for an agent, pay for overtime                   under 5 U.S.C. chapter 61,                             but is required to perform agency work
                                                  work on a Sunday or holiday is                            compensatory time off for religious                    during obligated overtime hours or to
                                                  determined under 5 U.S.C. 5542(g), not                    observances under subpart J of this part,              accrue an overtime hours debt. Official
                                                  under section 5546(d).) The agent’s rate                  or compensatory time off for travel                    time may be used during overtime hours
                                                  of basic pay (without any overtime                        under subpart N of this part) on the                   only when an event arises incident to
                                                  supplement) must be used in computing                     same basis as other covered employees.                 representational functions that must be
                                                  such premium payments.                                    The tour of duty used in applying those                dealt with during the overtime hours. If
                                                    (c) An agent may not be paid standby                    rules is the basic workweek, which                     CBP determines that an agent’s official
                                                  duty premium pay under 5 U.S.C.                           excludes regularly scheduled overtime                  time duties during the basic workday
                                                  5545(c)(1) or administratively                            hours within the regular tour of duty                  make it impracticable to perform agency
                                                  uncontrollable overtime pay under 5                       established under this subpart. The                    work during the scheduled obligated
                                                  U.S.C. 5545(c)(2).                                        agent must be charged corresponding                    overtime hours, CBP must provide the
                                                                                                            amounts of paid time off for each hour                 agent with an opportunity to eliminate
                                                  § 550.1632       Hazardous duty pay.                      (or part thereof) the agent is absent from             any overtime hours debt by working at
                                                    An agent is eligible for hazardous                      duty during regular time.                              another time. As provided in
                                                  duty pay, subject to the requirements in                    (c) In computing a lump-sum annual                   § 550.1621(e), official time during
                                                  5 U.S.C. 5545(d) and subpart I of this                    leave payment under 5 U.S.C. 5551–                     regular time is considered to be ‘‘work’’
                                                  part. The agent’s rate of basic pay                       5552, an overtime supplement for an                    when an agent otherwise would be in an
                                                  (without any overtime supplement)                         agent’s regularly scheduled overtime                   duty status in applying paragraphs (a)(3)
                                                  must be used in computing any                             hours within the agent’s regular tour of               and (b)(3) of § 550.1621.
                                                  hazardous duty pay.                                       duty is included, as provided in
                                                                                                            § 550.1205(b)(5)(iv).                                  PART 551—PAY ADMINISTRATION
                                                  § 550.1633 Treatment of overtime
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                                                  supplement as basic pay.
                                                                                                                                                                   UNDER THE FAIR LABOR
                                                                                                            § 550.1635    Alternative work schedule.
                                                                                                                                                                   STANDARDS ACT
                                                     Regularly scheduled overtime pay                         An agent may not have a flexible or
                                                  with an agent’s regular tour of duty is                   compressed work schedule under 5                       ■ 18. The authority citation for part 551
                                                  treated as part of basic pay or basic                     U.S.C. chapter 61, subchapter II. The                  continues to read as follows:
                                                  salary only for the following purposes:                   regular tour of duty established under                   Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the
                                                     (a) 5 U.S.C. 5524a and 5 CFR part 550,                 this subpart is a special work schedule                Fair Labor Standards Act of 1938, as
                                                  subpart B, pertaining to advances in                      established under 5 U.S.C. 5550. CBP                   amended by Pub. L. 93–259, 88 Stat. 55 (29
                                                  pay;                                                      may allow flexible starting and stopping               U.S.C. 204f).



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                                                                           Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                        34559

                                                  ■ 19. In § 551.216, revise paragraph                    duty under 5 U.S.C. 5550 (as required                     • Fax comments to: Secretary, U.S.
                                                  (c)(2) to read as follows:                              by 5 U.S.C. 5550(d)).                                  Nuclear Regulatory Commission at 301–
                                                                                                          *    *     *    *     *                                415–1101.
                                                  Subpart B—Exemptions and                                [FR Doc. 2015–14809 Filed 6–16–15; 8:45 am]               • Mail comments to: Secretary, U.S.
                                                  Exclusions                                              BILLING CODE 6325–39–P                                 Nuclear Regulatory Commission,
                                                                                                                                                                 Washington, DC 20555–0001, ATTN:
                                                  *      *     *       *      *
                                                                                                                                                                 Rulemakings and Adjudications Staff.
                                                  § 551.216 Law enforcement activities and                NUCLEAR REGULATORY                                        • Hand deliver comments to: 11555
                                                  7(k) coverage for FLSA pay and exemption                COMMISSION                                             Rockville Pike, Rockville, Maryland
                                                  determinations.                                                                                                20852, between 7:30 a.m. and 4:15 p.m.
                                                  *     *     *    *    *                                 10 CFR Part 50                                         (Eastern Time) Federal workdays;
                                                    (c) * * *                                                                                                    telephone: 301–415–1677.
                                                                                                          [NRC–2014–0161]                                           For additional direction on obtaining
                                                    (2) Employees whose primary duties
                                                  involve patrol and control functions                    RIN 3150–AJ43                                          information and submitting comments,
                                                  performed for the purpose of detecting                                                                         see ‘‘Obtaining Information and
                                                  and apprehending persons suspected of                   Financial Qualifications for Reactor                   Submitting Comments’’ in the
                                                  violating criminal laws;                                Licensing                                              SUPPLEMENTARY INFORMATION section of
                                                  *     *     *    *    *                                                                                        this document.
                                                                                                          AGENCY: Nuclear Regulatory
                                                  ■ 20. Add § 551.217 to subpart B to read                Commission.                                            FOR FURTHER INFORMATION CONTACT:
                                                  as follows:                                             ACTION: Draft regulatory basis; public
                                                                                                                                                                 Yanely Malave, telephone: 301–415–
                                                                                                          meeting and request for comment.                       1519, email: Yanely.Malave@nrc.gov; or
                                                  § 551.217   Exemption of Border Patrol                                                                         Carolyn Lauron, telephone: 301–415–
                                                  agents.                                                 SUMMARY:   The U.S. Nuclear Regulatory                 2736, email: Carolyn.Lauron@nrc.gov;
                                                     A Border Patrol agent (as defined in                 Commission (NRC) is soliciting public                  both of the Office of New Reactors, U.S.
                                                  5 U.S.C. 5550(a)(2) and 5 CFR 550.1603)                 comment on a draft regulatory basis for                Nuclear Regulatory Commission,
                                                  is exempt from the minimum wage and                     a proposed rulemaking to amend the                     Washington, DC 20555–0001.
                                                  overtime provisions of the Act.                         current financial qualification                        SUPPLEMENTARY INFORMATION:
                                                                                                          requirements of ‘‘reasonable assurance’’
                                                  PART 870—FEDERAL EMPLOYEES’                             to the review standard of ‘‘appears to be              I. Obtaining Information and
                                                  GROUP LIFE INSURANCE PROGRAM                            financially qualified.’’ The NRC plans to              Submitting Comments

                                                  ■  21. The authority citation for part 870              hold a public meeting to promote full                  A. Obtaining Information
                                                  is revised to read as follows:                          understanding of this regulatory basis                    Please refer to Docket ID NRC–2014–
                                                                                                          and facilitate public comment.                         0161 when contacting the NRC about
                                                     Authority: 5 U.S.C. 8704(c), 8716; Subpart
                                                                                                          DATES: Submit comments by August 3,                    the availability of information for this
                                                  J also issued under section 599C of Pub. L.
                                                  101–513, 104 Stat. 2064, as amended; Sec.               2015. Comments received after this date                action. You may obtain publicly-
                                                  870.302(a)(3)(ii) also issued under section             will be considered if it is practical to do            available information related to this
                                                  153 of Pub. L. 104–134, 110 Stat. 1321; Sec.            so, but the NRC is only able to ensure                 action by any of the following methods:
                                                  870.302(a)(3) also issued under sections                consideration of comments received on                     • Federal rulemaking Web site: Go to
                                                  11202(f), 11232(e), and 11246(b) and (c) of             or before this date.                                   http://www.regulations.gov and search
                                                  Pub. L. 105–33, 111 Stat. 251, and section                 In addition to providing this                       for Docket ID NRC–2014–0161.
                                                  7(e) of Pub. L. 105–274, 112 Stat. 2419; Sec.           opportunity to submit written (and                        • NRC’s Agencywide Documents
                                                  870.302(a)(3) also issued under section 145 of          electronic) comments, the NRC plans to
                                                  Pub. L. 106–522, 114 Stat. 2472; Secs.                                                                         Access and Management System
                                                                                                          hold a public meeting to discuss the                   (ADAMS): You may obtain publicly-
                                                  870.302(b)(8), 870.601(a), and 870.602(b) also
                                                  issued under Pub. L. 110–279, 122 Stat. 2604;
                                                                                                          draft regulatory basis for the proposed                available documents online in the
                                                  Subpart E also issued under 5 U.S.C. 8702(c);           rulemaking on July 8, 2015. See Section                ADAMS Public Documents collection at
                                                  Sec. 870.601(d)(3) also issued under 5 U.S.C.           V, ‘‘Public Meeting,’’ of this document                http://www.nrc.gov/reading-rm/
                                                  8706(d); Sec. 870.703(e)(1) also issued under           for additional information regarding the               adams.html. To begin the search, select
                                                  section 502 of Pub. L. 110–177, 121 Stat.               public meeting.                                        ‘‘ADAMS Public Documents’’ and then
                                                  2542; Sec. 870.705 also issued under 5 U.S.C.           ADDRESSES: You may submit comments                     select ‘‘Begin Web-based ADAMS
                                                  8714b(c) and 8714c(c); Pub. L. 104–106, 110             by any of the following methods (unless                Search.’’ For problems with ADAMS,
                                                  Stat. 521.
                                                                                                          this document describes a different                    please contact the NRC’s Public
                                                  Subpart B—Types and Amount of                           method for submitting comments on a                    Document Room (PDR) reference staff at
                                                  Insurance                                               specific subject):                                     1–800–397–4209, 301–415–4737, or by
                                                                                                             • Federal rulemaking Web site: Go to                email to pdr.resource@nrc.gov. The draft
                                                  ■ 22. In § 870.204, amend paragraph                     http://www.regulations.gov and search                  regulatory basis is available in ADAMS
                                                  (a)(2) by removing the word ‘‘and’’ from                for Docket ID NRC–2014–0161. Address                   under Accession No. ML14324A706.
                                                  the end of paragraph (x), removing the                  questions about NRC dockets to Carol                      • NRC’s PDR: You may examine and
                                                  period at the end of paragraph (xi) and                 Gallagher; telephone: 301–415–3463;                    purchase copies of public documents at
                                                  adding in its place ‘‘; and’’, and adding               email: Carol.Gallagher@nrc.gov. For                    the NRC’s PDR, Room O1–F21, One
                                                  a new paragraph (xii) to read as follows:               technical questions, contact the                       White Flint North, 11555 Rockville
srobinson on DSK5SPTVN1PROD with PROPOSALS




                                                                                                          individual listed in the FOR FURTHER                   Pike, Rockville, Maryland 20852.
                                                  § 870.204   Annual rates of pay.                        INFORMATION CONTACT section of this
                                                  *     *    *     *     *                                document.                                              B. Submitting Comments
                                                    (a) * * *                                                • Email comments to:                                  Please include Docket ID NRC–2014–
                                                    (2) * * *                                             Rulemaking.Comments@nrc.gov. If you                    0161 in the subject line of your
                                                    (xii) An overtime supplement for                      do not receive an automatic email reply                comment submission.
                                                  regularly scheduled overtime within a                   confirming receipt, then contact us at                   The NRC cautions you not to include
                                                  Border Patrol agent’s regular tour of                   301–415–1677.                                          identifying or contact information that


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Document Created: 2015-12-15 14:23:07
Document Modified: 2015-12-15 14:23:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule with request for comments.
DatesComments must be received on or before July 17, 2015.
ContactBryce Baker by telephone at (202) 606- 2858 or by email at [email protected]
FR Citation80 FR 34540 
RIN Number3206-AN19
CFR Citation5 CFR 410
5 CFR 550
5 CFR 551
5 CFR 870
CFR AssociatedEducation; Government Employees; Administrative Practice and Procedure; Claims; Wages; Hostages; Iraq; Kuwait; Lebanon; Life Insurance and Retirement

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