### §5550. Border patrol rate of pay

(a) Definitions.—In this section—

(1) the term "basic border patrol rate of pay" means the hourly rate of basic pay of the applicable border patrol, as determined without regard to this section;

(2) the term "border patrol agent" means an individual who is appointed to a position assigned to the Border Patrol Enforcement classification series 1896 or any successor series, consistent with classification standards established by the Office of Personnel Management;

(3) the term "level 1 border patrol rate of pay" means the hourly rate of pay equal to 1.25 times the otherwise applicable hourly rate of basic pay of the applicable border patrol agent;

(4) the term "level 2 border patrol rate of pay" means the hourly rate of pay equal to 1.125 times the otherwise applicable hourly rate of basic pay of the applicable border patrol agent; and

(5) the term "work period" means a 14-day biweekly pay period.

(b) Receipt of Border Patrol Rate of Pay.—

(1) Voluntary election.—

(A) In general.—Not later than 30 days before the first day of each year beginning after the date of enactment of this section, a border patrol agent shall make an election whether the border patrol agent shall, for that year, be assigned to—

(i) the level 1 border patrol rate of pay;

(ii) the level 2 border patrol rate of pay; or

(iii) the basic border patrol rate of pay, with additional overtime assigned as needed by U.S. Customs and Border Protection.

(B) Regulations.—The Director of the Office of Personnel Management shall promulgate regulations establishing procedures for elections under subparagraph (A).

(C) Information regarding election.—Not later than 60 days before the first day of each year beginning after the date of enactment of this section, U.S. Customs and Border Protection shall provide each border patrol agent with information regarding each type of election available under subparagraph (A) and how to make such an election.

(D) Assignment in lieu of election.—Notwithstanding subparagraph (A)—

(i) a border patrol agent who fails to make a timely election under subparagraph (A) shall be assigned to the level 1 border patrol rate of pay;

(ii) a border patrol agent who is assigned a canine shall be assigned to the level 1 border patrol rate of pay;

(iii) if at any time U.S. Customs and Border Protection concludes that a border patrol agent is unable to perform overtime on a daily basis in accordance with this section, U.S. Customs and Border Protection shall assign the border patrol agent to the basic border patrol rate of pay until such time as U.S. Customs and Border Protection determines that the border patrol agent is able to perform scheduled overtime on a daily basis;

(iv) unless the analysis conducted under section 2(e) of the Border Patrol Agent Pay Reform Act of 2014 indicates that, in order to more adequately fulfill the operational requirements of U.S. Customs and Border Protection, such border patrol agents should be allowed to elect or be assigned to the level 1 border patrol rate of pay or the level 2 border patrol rate of pay, a border patrol agent shall be assigned to the basic border patrol rate of pay if the agent works—

(I) at U.S. Customs and Border Protection headquarters;

(II) as a training instructor at a U.S. Customs and Border Protection training facility;

(III) in an administrative position; or

(IV) as a fitness instructor; and

(v) a border patrol agent may be assigned to the level 1 border patrol rate of pay or the level 2 border patrol rate of pay in accordance with subparagraph (E).

(E) Flexibility.—

(i) In general.—Except as provided in clauses (ii) and (iii), and notwithstanding any other provision of law, U.S. Customs and Border Protection shall take such action as is necessary, including the unilateral assignment of border patrol agents to the level 1 border patrol rate of pay or the level 2 border patrol rate of pay, to ensure that not more than 10 percent of the border patrol agents stationed at a location are assigned to the level 2 border patrol rate of pay or the basic border patrol rate of pay.

(ii) Waiver.—U.S. Customs and Border Protection may waive the limitation under clause (i) on the percent of border patrol agents stationed at a location who are assigned to the level 2 border patrol rate of pay or the basic border patrol rate of pay if, based on the analysis conducted under section 2(e) of the Border Patrol Agent Pay Reform Act of 2014, U.S. Customs and Border Protection determines it may do so and adequately fulfill its operational requirements.

(iii) Certain locations.—Clause (i) shall not apply to border patrol agents working at the headquarters of U.S. Customs and Border Protection or a training location of U.S. Customs and Border Protection.

(F) Canine care.—For a border patrol agent assigned to provide care for a canine and assigned to the level 1 border patrol rate of pay in accordance with subparagraph (D)(ii)—

(i) that rate of pay covers all such care;

(ii) for the purposes of scheduled overtime under paragraph (2)(A)(ii), such care shall be counted as 1 hour of scheduled overtime on each regular workday without regard to the actual duration of such care or whether such care occurs on the regular workday; and

(iii) no other pay shall be paid to the border patrol agent for such care.

(G) Pay assignment continuity.—

(i) In general.—Not later than 1 year after the date of enactment of the Border Patrol Agent Pay Reform Act of 2014, and in consultation with the Office of Personnel Management, U.S. Customs and Border Protection shall 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.

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

(iii) Reporting.—U.S. Customs and Border Protection shall submit the plan developed under clause (i) to the appropriate committees of Congress.

(iv) GAO review.—Not later than 6 months after U.S. Customs and Border Protection issues the plan required under clause (i), the Comptroller General of the United States shall submit to the appropriate committees of Congress a report on the effectiveness of the plan in ensuring that border patrol agents are not able to artificially enhance their retirement annuities.

(v) Definition.—In this subparagraph, the term "appropriate committees of Congress" means—

(I) the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate; and

(II) the Committee on Homeland Security, the Committee on Oversight and Government Reform, and the Committee on Appropriations of the House of Representatives.

(vi) Rule of construction.—Nothing in this subparagraph shall be construed to limit the ability of U.S. Customs and Border Protection to assign border patrol agents to border patrol rates of pay as necessary to meet operational requirements.

(2) Level 1 border patrol rate of pay.—For a border patrol agent who is assigned to the level 1 border patrol rate of pay—

(A) the border patrol agent shall have a regular tour of duty consisting of 5 workdays per week with—

(i) 8 hours of regular time per workday, which may be interrupted by an unpaid off-duty meal break; and

(ii) 2 additional hours of scheduled overtime during each day the agent performs work under clause (i);

(B) for paid hours of regular time described in subparagraph (A)(i), the border patrol agent shall receive pay at the level 1 border patrol rate of pay;

(C) compensation for the hours of regularly scheduled overtime work described in subparagraph (A)(ii) is provided indirectly through the 25 percent supplement within the level 1 border patrol rate of pay, and the border patrol agent may not receive for such hours—

(i) any compensation in addition to the compensation under subparagraph (B) under this section or any other provision of law; or

(ii) any compensatory time off;

(D) the border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of 100 hours during a work period, as determined in accordance with section 5542(g);

(E) the border patrol agent shall be charged corresponding amounts of paid leave, compensatory time off, or other paid time off for each hour (or part thereof) the agent is absent from work during regular time (except that full days off for military leave shall be charged when required);

(F) if the border patrol agent is absent during scheduled overtime described in subparagraph (A)(ii)—

(i) the border patrol agent shall accrue an obligation to perform other overtime work for each hour (or part thereof) the border patrol agent is absent; and

(ii) any overtime work applied toward the obligation under clause (i) shall not be credited as overtime work under any other provision of law; and

(G) for the purposes of advanced training, the border patrol agent—

(i) shall be paid at the level 1 border patrol rate of pay for the first 60 days of advanced training in a calendar year; and

(ii) for any advanced training in addition to the advanced training described in clause (i), shall be paid at the basic border patrol rate of pay.

(3) Level 2 border patrol rate of pay.—For a border patrol agent who is assigned to the level 2 border patrol rate of pay—

(A) the border patrol agent shall have a regular tour of duty consisting of 5 workdays per week with—

(i) 8 hours of regular time per workday, which may be interrupted by an unpaid off-duty meal break; and

(ii) 1 additional hour of scheduled overtime during each day the agent performs work under clause (i);

(B) for paid hours of regular time described in subparagraph (A)(i), the border patrol agent shall receive pay at the level 2 border patrol rate of pay;

(C) compensation for the hours of regularly scheduled overtime work described in subparagraph (A)(ii) is provided indirectly through the 12.5 percent supplement within the level 2 border patrol rate of pay, and the border patrol agent may not receive for such hours—

(i) any compensation in addition to the compensation under subparagraph (B) under this section or any other provision of law; or

(ii) any compensatory time off;

(D) the border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of 90 hours during a work period, as determined in accordance with section 5542(g);

(E) the border patrol agent shall be charged corresponding amounts of paid leave, compensatory time off, or other paid time off for each hour (or part thereof) the agent is excused from work during regular time (except that full days off for military leave shall be charged when required);

(F) if the border patrol agent is absent during scheduled overtime described in subparagraph (A)(ii)—

(i) the border patrol agent shall accrue an obligation to perform other overtime work for each hour (or part thereof) the border patrol agent is absent; and

(ii) any overtime work applied toward the obligation under clause (i) shall not be credited as overtime work under any other provision of law; and

(G) for the purposes of advanced training, the border patrol agent—

(i) shall be paid at the level 2 border patrol rate of pay for the first 60 days of advanced training in a calendar year; and

(ii) for any advanced training in addition to the advanced training described in clause (i), shall be paid at the basic border patrol rate of pay.

(4) Basic border patrol rate of pay.—For a border patrol agent who is assigned to the basic border patrol rate of pay—

(A) the border patrol agent shall have a regular tour of duty consisting of 5 workdays per week with 8 hours of regular time per workday; and

(B) the border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of 80 hours during a work period, as determined in accordance with section 5542(g).

(c) Eligibility for Other Premium Pay.—A border patrol agent—

(1) shall receive premium pay for nightwork in accordance with subsections (a) and (b) of section 5545 and Sunday and holiday pay in accordance with section 5546, without regard to the rate of pay to which the border patrol agent is assigned under this section, except that—

(A) no premium pay for night, Sunday, or holiday work shall be provided for hours of regularly scheduled overtime work described in paragraph (2)(A)(ii) or (3)(A)(ii) of subsection (b), consistent with the requirements of paragraph (2)(C) or (3)(C) of subsection (b); and

(B) section 5546(d) shall not apply and instead eligibility for pay for, and the rate of pay for, any overtime work on a Sunday or a designated holiday shall be determined in accordance with this section and section 5542(g);

(2) except as provided in paragraph (3) or section 5542(g), shall not be eligible for any other form of premium pay under this title; and

(3) shall be eligible for hazardous duty pay in accordance with section 5545(d).

(d) Treatment as Basic Pay.—Any pay in addition to the basic border patrol rate of pay for a border patrol agent resulting from application of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay—

(1) subject to paragraph (2), shall be treated as part of basic pay solely for—

(A) purposes of sections 5595(c), 8114(e), 8331(3)(I), and 8704(c);

(B) any other purpose that the Director of the Office of Personnel Management may by regulation prescribe; and

(C) any other purpose expressly provided for by law; and

(2) shall not be treated as part of basic pay for the purposes of calculating overtime pay, night pay, Sunday pay, or holiday pay under section 5542, 5545, or 5546.

(e) Travel Time.—Travel time to and from home and duty station by a border patrol agent shall not be considered hours of work under any provision of law.

(f) Leave Without Pay and Substitution of Hours.—

(1) Regular time.—

(A) In general.—For a period of leave without pay during the regular time of a border patrol agent (as described in paragraph (2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b)) within a work period, an equal period of work outside the regular time of the border patrol agent, but in the same work period—

(i) shall be substituted and paid for at the rate applicable for the regular time; and

(ii) shall not be credited as overtime hours for any purpose.

(B) Priority for same day work.—In substituting hours of work under subparagraph (A), work performed on the same day as the period of leave without pay shall be substituted first.

(C) Priority for regular time substitution.—Hours of work shall be substituted for regular time work under this paragraph before being substituted for scheduled overtime under paragraphs (2), (3), and (4).

(2) Overtime work.—

(A) In general.—For a period of absence during scheduled overtime (as described in paragraph (2)(F) or (3)(F) of subsection (b)) within a work period, an equal period of additional work in the same work period—

(i) shall be substituted and credited as scheduled overtime; and

(ii) shall not be credited as overtime hours under any other provision of law.

(B) Priority for same day work.—In substituting hours of work under subparagraph (A), work performed on the same day as the period of absence shall be substituted first.

(3) Application of compensatory time.—If a border patrol agent does not have sufficient additional work in a work period to substitute for all periods of absence during scheduled overtime (as described in paragraph (2)(F) or (3)(F) of subsection (b)) within that work period, any accrued compensatory time off under section 5542(g) shall be applied to satisfy the hours obligation.

(4) Insufficient hours.—If a border patrol agent has a remaining hours obligation of scheduled overtime after applying paragraphs (2) and (3), any additional work in subsequent work periods that would otherwise be credited under section 5542(g) shall be applied towards the hours obligation until that obligation is satisfied.

(g) Authority To Require Overtime Work.—Nothing in this section shall be construed to limit the authority of U.S. Customs and Border Protection to require a border patrol agent to perform hours of overtime work in accordance with the needs of U.S. Customs and Border Protection, including if needed in the event of a local or national emergency.

(h) Special Overtime Pay for GS–12 Border Patrol Agents.—

(1) In general.—Notwithstanding paragraphs (1)(F), (2)(C), and (3)(C) of subsection (b), a border patrol agent encumbering a position at grade GS–12 shall receive a special overtime payment under this subsection for hours of regularly scheduled work described in paragraph (2)(A)(ii) or (3)(A)(ii) of subsection (b), as applicable, that are credited to the agent through actual performance of work, crediting under rules for canine agents under subsection (b)(1)(F), or substitution of overtime hours in the same work period under subsection (f)(2)(A), except that no such payment may be made for periods of absence resulting in an hours obligation under paragraph (3) or (4) of subsection (f).

(2) Computation.—The special overtime payment authorized under paragraph (1) shall be computed by multiplying the credited hours by 50 percent of the border patrol agent's hourly rate of basic pay, rounded to the nearest cent.

(3) Limitations.—The special overtime payment authorized under paragraph (1)—

(A) is not considered basic pay for retirement under section 8331(3) or 8401(4) or for any other purpose;

(B) is not payable during periods of paid leave or other paid time off; and

(C) is not considered in computing an agent's lump-sum annual leave payment under sections 5551 and 5552.

(Pub. L. 113–277, §2(b), Dec. 18, 2014, 128 Stat. 2995; Pub. L. 118–31, div. E, title LII, §5201, Dec. 22, 2023, 137 Stat. 939.)

#### **Editorial Notes**

#### References in Text

The date of enactment of this section, referred to in subsec. (b)(1)(A), (C), is the date of enactment of Pub. L. 113–277, which was approved Dec. 18, 2014.

Section 2(e) of the Border Patrol Agent Pay Reform Act of 2014, referred to in subsec. (b)(1)(D)(iv), (E)(ii), is section 2(e) of Pub. L. 113–277, Dec. 18, 2014, 128 Stat. 3003, which related to comprehensive staffing analysis and is not classified to the Code.

The date of enactment of the Border Patrol Agent Pay Reform Act of 2014, referred to in subsec. (b)(1)(G)(i), is the date of enactment of Pub. L. 113–277, which was approved Dec. 18, 2014.

GS–12, referred to in subsec. (h), is contained in the General Schedule which is set out under section 5332 of this title.

#### Prior Provisions

A prior section 5550, added Pub. L. 92–392, §10(a), Aug. 19, 1972, 86 Stat. 574, related to pay for Sunday and overtime work for employees of nonappropriated fund instrumentalities, prior to repeal by Pub. L. 102–378, §2(44)(A), Oct. 2, 1992, 106 Stat. 1352.

#### Amendments

2023—Subsec. (h). Pub. L. 118–31 added subsec. (h).

#### **Statutory Notes and Related Subsidiaries**

#### Change of Name

Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

#### Effective Date

Section effective on the first day of the first pay period beginning on or after Jan. 1, 2016, subject to certain exceptions, see section 2(i) of Pub. L. 113–277, set out as an Effective Date of 2014 Amendment note under section 5542 of this title.

#### Minimization of Overtime

Pub. L. 113–277, §2(c)(2), Dec. 18, 2014, 128 Stat. 3003, provided that: "U.S. Customs and Border Protection shall, to the maximum extent practicable, avoid the use of scheduled overtime work by border patrol agents."

[Section 2(c)(2) of Pub. L. 113–277, set out above, effective on the first day of the first pay period beginning on or after Jan. 1, 2016, with exception, see section 2(i) of Pub. L. 113–277, set out as an Effective Date of 2014 Amendment note under section 5542 of this title.]