U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

39–010

" ! SENATE 113TH CONGRESS

2d Session 

REPORT

2014

113–248 

Calendar No. 548 

BORDER PATROL AGENT PAY REFORM ACT 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 1691 

TO AMEND TITLE 5, UNITED STATES CODE, TO IMPROVE THE SECURITY OF THE UNITED STATES BORDER AND TO PROVIDE FOR 

REFORMS AND RATES OF PAY FOR BORDER PATROL AGENTS 

AUGUST 26, 2014.—Ordered to be printed 

Filed, under authority of the order of the Senate of August 5 (legislative 

day, August 1), 2014 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

THOMAS R. CARPER, Delaware, Chairman 

CARL LEVIN, Michigan 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

GABRIELLE A. BATKIN, Staff Director 

JOHN P. KILVINGTON, Deputy Staff Director 

MARY BETH SCHULTZ, Chief Counsel 

BLAS NUNEZ-NETO, Senior Professional Staff Member 

KATHERINE C. SYBENGA, Senior Counsel 

KEITH B. ASHDOWN, Minority Staff Director 

CHRISTOPHER J. BARKLEY, Minority Deputy Staff Director 

ANDREW C. DOCKHAM, Minority Chief Counsel 

DANIEL P. LIPS, Minority Director of Homeland Security 

GABRIELLE D’ADAMO SINGER, Minority Counsel 

LAURA W. KILBRIDE, Chief Clerk 


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Calendar No. 548 

113TH CONGRESS SENATE REPORT " ! 2d Session 113–248 

BORDER PATROL AGENT PAY REFORM ACT 

AUGUST 26, 2014.—Ordered to be printed 

Filed, under authority of the order of the Senate of August 5 (legislative day, 

August 1), 2014 

Mr. CARPER, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 1691] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 1691) to amend title 5, United 

States Code, to improve the security of the United States border 

and to provide for reforms and rates of pay for border patrol 

agents, having considered the same, reports favorably thereon with 

an amendment in the nature of a substitute, and recommends that 

the bill, as amended, do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 10 

IV. Section-by-Section Analysis of the bill, as Reported ................................... 12 

V. Evaluation of Regulatory Impact .................................................................. 18 

VI. Congressional Budget Office Estimate ......................................................... 19 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 20 

I. PURPOSE AND SUMMARY

S. 1691 would reform the pay system for Border Patrol agents by 

updating it to reflect the number of hours those agents regularly 

work and the way in which those hours are scheduled. At the same 

time, the bill would provide those agents with more reliable schedules and predictable paychecks, while enabling them to spend more 

time patrolling the border and saving taxpayers an estimated $100 

million annually. 


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1 Entry level agents are usually placed at GS 5, step 1, while the most experienced agents 

can reach GS 12, step 10. 2Some workers, most notably those at a supervisory level are exempt from overtime pay requirements. See 29 U.S.C. § 213(a)(1). 3 Again, several types of employees not at issue in this bill are exempt from the FLSA’s overtime rules. See 29 U.S.C. § 213. 4See 5 U.S.C. § 5542(a). 

5See 5 U.S.C. § 5545(c). 

6See 5 C.F.R. § 550.151. As of 1974, AUO compensation is considered in an employee’s retirement annuity calculation. See 5 U.S.C. § 8331(3)(D). 

II. BACKGROUND AND NEED FOR THE LEGISLATION

COMPENSATION FOR FEDERAL EMPLOYEES IN GENERAL

Federal law contains a number of different systems under which 

federal employees receive compensation for the hours they work. 

Most federal employees, including the Border Patrol agents who 

are the subject of S. 1691, receive a base salary whose amount is 

set by their grade and step on the General Schedule, or GS.1 This 

salary generally compensates them for the first 40 hours they work 

each week. Depending on the type of work they perform, those 

working in excess of 40 hours in a given week may receive compensation under one or more of several statutes governing overtime 

pay.2

The Fair Labor Standards Act (FLSA), the primary federal statute regulating the wages and hours of most of the nation’s workforce, requires most employees to receive an amount equal to one 

and one-half of their hourly rate of pay for each hour they work 

over 40 in any given week.3 The Federal Employee Pay Act (FEPA) 

authorizes overtime pay for scheduled overtime—or overtime that 

is authorized by a manager in advance of the work being performed. FEPA overtime compensation is capped by law at the 

greater of the time-and-a-half at the GS–10, step 1 rate (currently 

$69,344 before locality pay adjustments are factored in) or the 

straight time rate at the agent’s own GS and step level.4

In 1954, Congress established Administratively Uncontrollable 

Overtime (AUO) to compensate federal employees whose duties require irregular and unpredictable work extending beyond a normal 

shift.5 As explained in the Code of Federal Regulations, AUO premium pay is authorized for a position ‘‘in which the hours of duty 

cannot be controlled administratively and which requires substantial amounts of irregular or occasional overtime work, with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on 

duty.’’ 6 Essentially, an employee is only allowed to use AUO if he 

or she is working hours that could not have been scheduled in advance and if it would be negligent to leave the job unfinished. 

AUO provides additional pay for an employee—generally between 10 and 25 percent of the base salary—for self-directed hours 

of overtime worked that are unschedulable. For example, if an employee works an additional 10 hours of unscheduled work each 

week—for a total of 100 hours worked in a pay-period—that employee would receive a 25 percent increase in their basic pay. Managers must certify that an employee is eligible to earn AUO pay— 

based on the characteristics of the tasks that they are performing— 

on a quarterly basis. AUO-eligible employees are then charged with 

determining on any given day whether the work that they are performing requires them to work additional hours beyond their reguVerDate Mar 15 2010 04:50 Aug 28, 2014 Jkt 039010 PO 00000 Frm 00004 Fmt 6659 Sfmt 5601 E:\HR\OC\SR248.XXX SR248

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7See 5 C.F.R. § 610.111. 

8 Employees eligible for night pay receive an additional 10 percent of their hourly rate for each 

hour of regularly scheduled work performed at night. See 5 U.S.C. § 5545(a). 9 Employees eligible for Sunday pay receive an additional 25 percent of their hourly rate for 

each hour of regularly scheduled work when any part or the whole of that shift is performed 

on a Sunday See 5 U.S.C. § 5546(a). 10 According to OPM, ‘‘employees who are required to work on a holiday receive their rate of 

basic pay, plus holiday premium pay, for each hour of holiday work. Holiday premium pay is 

equal to an employee’s rate of basic pay.’’ See 5 U.S.C. § 5546(b). and [http://www.opm.gov/policydata-oversight/pay-leave/pay-administration/fact-sheets/holidays-work-schedules-and-pay/] last 

visited July 24, 2014. 11 According to OPM: 

There is a biweekly pay limitation that limits the amount of premium pay that can 

be paid during a biweekly pay period. Under 5 U.S.C. § 5547(a) and 5 C.F.R. § 550.105, 

premium pay cannot be paid to General Schedule employees (including law enforcement 

officers and other covered employees) to the extent that doing so would cause an employee’s basic pay, overtime pay, the dollar value of compensatory time off, night pay, 

annual premium pay, Sunday premium pay, and holiday premium pay to exceed the 

greater of the biweekly rate for GS–15, step 10 (including any applicable special salary 

rate or locality rate of pay), or level V of the Executive Schedule. Exception: For employees performing emergency work (as determined by the agency head or OPM), or mission-critical work (as determined by the agency head), premium pay cannot be paid 

which causes the total of basic pay and premium pay to exceed the greater of the annual rate for- GS–15, step 10 (including any applicable special salary rate or locality 

rate of pay); or level V of the Executive Schedule. These limitations do not apply to 

wage employees or to FLSA overtime pay.’’ 

See http://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/overtimepay-title-5/], last visited on July 29, 2014. 12Some employees, generally managers, are exempt from earning FLSA overtime (See 29 

U.S.C. § 213) but can still receive AUO under 5 U.S.C. § 5545(c)(2). 13 Employees that are exempted from receiving FLSA overtime include most management personnel, including all personnel at the GS–14 and GS–15 level. From email correspondence with 

CBP, July 29, 2014. 14 5 C.F.R. § 551.216. 15 Briefing by Customs and Border Protection, May 11, 2014. 16 According to OPM, the guidelines for how FLSA interacts with AUO are as follows: 

‘‘for AUO employees, the straight time rate of pay is equal to basic pay plus AUO pay 

divided by the hours for which the basic pay plus AUO pay are intended. (See 5 CFR 

§ 551.512(b).) Thus, an AUO employee has received the straight time rate of pay for the 

hours for which basic pay and AUO pay are intended. In other words, the AUO employee has been paid once for hours covered by basic pay and AUO pay, leaving an 

agency with the obligation of straight time pay for any regularly scheduled overtime 

hours (not covered by AUO pay) plus a half-rate obligation for all overtime hours to 

meet the FLSA time-and-one-half overtime requirement.’’ 

See [http://archive.opm.gov/oca/compmemo/html/cpm97-5a.htm], last visited on May 30, 2014. 17This is because AUO pays a maximum of 25 percent of an agent’s basic pay—for example 

if an agent worked 110 hours in a pay-period that agent would get their 25 percent AUO rate, 

Continued 

larly scheduled 8-hour shifts. An AUO-eligible employee may also 

receive other premium pay for ‘‘regularly scheduled work’’ hours— 

defined under federal regulations as the first 40 hours worked during a work-week 7—including night pay,8 Sunday pay,9 and holiday 

premium pay.10 The amount of AUO premium pay that any employee can generally receive in a pay-period is capped by law.11

AUO-certified employees may also receive FLSA-regulated compensation for overtime hours, in addition to the premium pay they 

receive through AUO.12 The FLSA generally requires employers to 

pay nonexempt employees 13 one-and-a-half times their regular rate 

of pay for hours worked in excess of 40 in a workweek. Under the 

FLSA, law enforcement employees, including Border Patrol agents, 

are paid time-and-a-half for hours worked in excess of 42.75 hours 

in a week 14—something virtually all AUO-eligible employees at the 

Border Patrol do.15 For unscheduled overtime hours worked above 

85.5 per pay-period (up to 100 hours) the agency pays AUO at the 

agent’s regular rate of pay plus an additional half-rate of pay 

through FLSA—totaling time and a half.16 In the rare instance in 

which an agent exceeds 100 hours, for those additional hours they 

would receive only the half-rate FLSA compensation.17


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plus 24.5 hours of half rate FLSA overtime payments. Briefing by Customs and Border Protection, July 29, 2014. 18 Agents assigned to such a shift would be paid by FEPA, but are also subject to the FLSA 

requirements. This means that they often receive both FEPA and FLSA pay for this kind of 

scheduled overtime. FEPA overtime compensation is capped by law at the greater the time-anda-half of the GS–10, step 1 rate ($69,344 before locality pay adjustments are factored in) or the 

straight time rate at the agent’s own GS and step level. However, agents paid with FEPA for 

scheduled overtime are also eligible for FLSA payments if they are non-exempt. In practice, the 

interplay between FEPA and FLSA means most agents who are scheduled overtime earn very 

close to time-and-a-half. From a telephone call with Customs and Border Protection, July 29, 

2014. 19 Email correspondence with Customs and Border Protection, May 28, 2014. 20 University of Syracuse, Transactional Records Access Clearinghouse Immigration, National 

Trends in Apprehensions and Staffing, available at [http://trac.syr.edu/immigration/reports/141/ 

include/rep141table2.html], last visited June 3, 2014. 21 Briefing by Customs and Border Protection, May 11, 2014. 

Lastly, the Border Patrol uses a separate legal authority to pay 

for scheduled overtime—or overtime that is authorized by a manager, generally in advance of the work being performed. This compensation is authorized by the Federal Employee Pay Act of 1945 

(FEPA). For example, an agent in the field may be scheduled to 

work a 6th shift in one work week in order to respond to an emergency—such as dealing with the current humanitarian challenge 

involving unaccompanied minors in south Texas. For that extra 

shift, the agent would be paid under the FEPA pay authority.18 In 

recent years, the Border Patrol has used scheduled FEPA overtime 

very sparingly, paying out only $4 million in fiscal year 2012 and 

less than $1 million in fiscal year 2013.19

BORDER PATROL AGENTS’ OVERTIME COMPENSATION

The Border Patrol, a component of the Department of Homeland 

Security’s (DHS’s) U.S. Customs and Border Protection (CBP), is 

charged with securing our nation’s borders against the illegal entry 

of terrorists, criminals, illicit contraband and undocumented immigrants. Over the years, the Border Patrol has become a prolific 

user—and as it turns out, often a misuser—of the AUO system, 

often using it to pay for overtime hours that are predictable and 

could have been scheduled in advance. Forty years ago, when the 

AUO system was last extensively modified, AUO offered an entirely 

appropriate means for awarding agents overtime pay based on the 

operational demands of the Border Patrol. Border Patrol agents 

were regularly in ‘‘hot pursuit’’ of a group of border crossers when 

their shift was scheduled to end. Because of the remoteness of the 

areas in which the agents routinely found themselves and the limits on communications systems at the time, those agents could not 

pause from their pursuit to seek approval of unscheduled overtime. 

AUO was a natural fit for this kind of work environment. 

However, the nature of the work performed by frontline agents 

has changed dramatically over the past 40 years—and particularly 

over the past decade, as apprehensions made by Border Patrol 

agents have declined to near historical lows. In 1975 the Border 

Patrol had 1,746 agents who made 596,796 apprehensions of individuals attempting to cross the border illegally.20 In fiscal year 

2013, the most recent year for which data is available, the Border 

Patrol had a legislatively mandated floor of 21,370 agents who 

made 420,789 apprehensions.21 In other words, the Border Patrol 

has more than 12 times more agents deployed to the border today 

than it did when AUO was created, but these agents make 30 percent fewer apprehensions overall. On the ground, this change has 


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22Seghetti, Lisa, Border Security: Immigration Enforcement Between Ports of Entry, R42138, 

Congressional Research Service, January 16, 2014. 23From a series of briefings by Customs and Border Protection, January to June 2014. 24See: Customs and Border Protection, 2012–2016 Border Patrol Strategic Plan, Washington, 

DC, 2012. 25From a series of briefings by Customs and Border Protection, January to June 2014. 

meant that agents needing regular AUO to continue ‘‘hot pursuits’’ 

no longer accurately reflects the work agents generally do today. 

In the early 1990s, the Border Patrol began implementing a new 

strategy known as ‘‘prevention through deterrence’’ that focused its 

efforts on deploying agents and resources directly on the border in 

order to deter illegal border crossings. Starting in El Paso, Texas 

in 1993 with Operation Hold the Line, and later expanded to San 

Diego with Operation Gatekeeper in 1994, the Border Patrol began 

deploying agents, cameras and underground sensors, and fencing 

directly on the border in an effort to deter illegal border crossings. 

Over the next two decades, the Border Patrol continued to expand 

the resource-intensive ‘‘prevention through deterrence’’ approach 

across the length of the border with Mexico, increasingly deploying 

its agents to the more remote parts of the southern border.22 In 

order to maximize their ability to cover the length of the border, 

managers began routinely assigning agents to work 10-hour 

shifts—which allowed the agency to cover each day with three overlapping 10-hour shifts, instead of four overlapping 8-hour shifts. 

Agents were paid for these extra hours using AUO, despite the fact 

that the extra hours they were working were largely predictable 

and essentially scheduled.23

Over the past decade, the Border Patrol has increasingly begun 

to use intelligence gathering by its agents during a shift in order 

to focus the enforcement efforts of the next shift of agents. The 

2012 Border Patrol Strategic Plan formalized this change in operations, shifting the agency away from the ‘‘prevention through deterrence’’ model and instead emphasizing the use of intelligence 

and risk analysis to guide deployments.24 Agents are now regularly 

tasked with generating real-time intelligence reports on the trends 

they encounter during their shift, including geo-locating their apprehensions and mapping them, in order to allow supervisors to 

more effectively deploy their personnel. They are also increasingly 

being deployed into remote, rugged environments where travel time 

from the station where they receive their instructions for the 

shift—known as the muster—to the border can take up to two 

hours each way. However, travel to and from their work station 

and generating reports to inform the next shift of agents are not 

activities that are authorized to be paid by the AUO statute and 

its implementing regulations. Additionally, communication systems 

along the border have increased dramatically over the past 40 

years, making it far easier for an agent deployed to a remote part 

of the border to contact a supervisor in order to authorize their actions.25

While the nature of the work performed by the average agent 

has changed over the years, the Border Patrol has been slow to 

change how it administers its overtime system. Part of the issue 

is that for years, CBP reportedly promised agents that they would 


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26See testimony of Brandon Judd, President of the National Border Patrol Council, ‘‘Border 

Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act of 2013,’’ 

hearing before the Senate Committee on Homeland Security and Governmental Affairs, 113th 

Cong. (June 9, 2014). http://www.hsgac.senate.gov/hearings/border-security-examining-the-implications-of-s-1691-the-border-patrol-agent-pay-reform-act-of-2013. 27Letter from Carolyn Lerner, Special Counsel, to President Barack Obama, October 31, 2013. 

Available at: https://osc.gov/PublicFiles/FY2014/14-1%20DI-13-0002/14-1%20DI-13-0002%20- 

%20Letter%20to%20the%20President.pdf, last visited August 20, 2014. 28The OSC report also identified cases of AUO misuse at Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS) and other agencies within DHS. 29See testimony of Adam Miles, Deputy Special Counsel, Policy and Congressional Affairs, 

U.S. Office of Special Counsel, ‘‘Border Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act of 2013,’’ hearing before the Senate Committee on Homeland Security 

and Governmental Affairs, 113th Cong. (June 9, 2014). 30One of the cases referred by OSC alleged misuse of AUO by personnel at the CBP Office 

of Internal Affairs. That case, and three others, are being investigated by the OIG. 

receive an additional 25 percent pay above their base salary each 

year, essentially guaranteeing them the maximum hours of AUO.26

As reported last year by the Office of Special Counsel (OSC), the 

independent federal agency charged with protecting federal employees and applicants from prohibited personnel practices, the 

Border Patrol has misused AUO to pay for work performed by 

agents that should have been paid using a different kind of overtime, or perhaps in some cases, for hours that were not worked and 

should not have been paid at all. 

On October 31, 2013, OSC issued a letter and report to the President detailing ‘‘long-standing abuse of overtime payments by the 

Department of Homeland Security.’’ 27 The report followed up on a 

2008 OSC investigation that reached similar conclusions. In its report, OSC discussed 10 specific cases involving Border Patrol 

agents,28 and revealed that, for years, the Border Patrol misused 

AUO by using it to pay for activities that were not uncontrollable 

by their nature and not contemplated by the statute authorizing 

AUO. This misuse essentially means that either: (a) agents should 

have been compensated under the more generous FLSA or FEPA 

overtime systems; or (b) agents were performing work that was not 

time-sensitive, could have been deferred to a subsequent shift, and 

thus should not have received overtime at all. 

One key way that AUO has been misused by Border Patrol managers is to compensate employees in the field for working a 10-hour 

shift. As noted above, the Border Patrol prefers deploying three 10- 

hour shifts of agents in any given day because it believes this 

maximizes its ability to patrol the border in a 24-hour period. The 

Deputy Special Counsel for Policy and Congressional Affairs of the 

OSC, Adam Miles, testified before this Committee that Border Patrol managers in Laredo, Texas made a deliberate choice to ‘‘continue with three, ten-hour shifts per day utilizing AUO to facilitate 

the shift changes. The managers insist that employing three, tenhour shifts is a more cost-effective approach to securing the border, 

even if AUO may not properly be used for routine activities.’’ 29

The OSC referred a total of ten cases to CBP’s Office of Internal 

Affairs and the DHS Office of the Inspector General (OIG) alleging 

misuse of AUO by CBP personnel.30 Some of the allegations received by the OSC, and detailed in this report, claimed that Border 

Patrol agents were getting paid AUO for hours that they were not 

actually performing work, or for watching television or surfing the 

internet. In testimony before this Committee, Paul L. Hamrick, the 

Deputy Assistant Commissioner of the Office of Internal Affairs at 

the U.S. Customs and Border Protection noted that his office had 


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31See testimony of Paul L. Hamrick, Deputy Assistant Commissioner of the Office of Internal 

Affairs at the U.S. Customs and Border Protection, ‘‘Border Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act of 2013,’’ hearing before the Senate Committee on Homeland Security and Governmental Affairs, 113th Cong. (June 9, 2014). 32 ‘‘Border Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act 

of 2013,’’ hearing before the Senate Committee on Homeland Security and Governmental Affairs, 

113th Cong. (June 9, 2014). http://www.hsgac.senate.gov/hearings/border-security-examining-theimplications-of-s-1691-the-border-patrol-agent-pay-reform-act-of-2013. 33 CBP officers work at ports of entry and are not eligible to receive AUO. 34See testimony of Ronald Vitiello, Deputy Chief of the Border Patrol, ‘‘Border Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act of 2013,’’ hearing before 

the Senate Committee on Homeland Security and Governmental Affairs, 113th Cong. (June 9, 

2014). 35See written testimony of Adam Miles, Deputy Special Counsel, Policy and Congressional Affairs U.S. Office of Special Counsel, ‘‘Border Security: Examining the Implications of S. 1691, 

the Border Patrol Pay Reform Act of 2013,’’ hearing before the Senate Committee on Homeland 

Security and Governmental Affairs, 113th Cong. (June 9, 2014). 

investigated 6 of the 10 cases of AUO abuse identified by the OSC, 

and in at least one case had performed covert surveillance on employees. He noted that, ‘‘[a]lthough the Office of Special Counsel received complaints that overtime hours compensated under AUO 

were not being worked—allegations that, if proven, could constitute 

criminal or administrative violations—our investigations did not 

substantiate any OSC allegations that employees had received 

AUO compensation for hours that were not worked.’’ 31 In other 

words, these employees were, in fact, working the additional hours 

that they were paid for with AUO, but they should have been compensated for the work they performed using a different overtime 

system.32 Mr. Hamrick also stated that his office confirmed that 

CBP was misusing AUO in a number of locations, including at the 

Commissioner’s Situation Room in U.S. Customs and Border Protection’s Headquarters and the Federal Law Enforcement Training 

Academy in Artesia, New Mexico. 

In two cases referred by OSC and substantiated by Internal Affairs, Border Patrol agents were working alongside other CBP personnel and performing the same type of work. In these cases, the 

Border Patrol agents were receiving AUO but the other CBP personnel were not. For example, agents in San Ysidro, California 

were assigned to work paralegal duties alongside civilian paralegals, but the agents were regularly provided AUO while the civilian paralegals did not work overtime. Similarly, Border Patrol 

agents working as instructors at DHS training facilities regularly 

received AUO, while CBP officers 33 working at the same facilities 

did not. The Border Patrol has argued that their instructors need 

to work overtime at these facilities in order to prepare for the 8- 

hour day of instruction that trainees receive.34 CBP officers at 

these facilities told Internal Affairs that they were generally able 

to complete their preparatory work without working overtime, but 

acknowledged that ‘‘[w]hen it is not possible to complete all additional instructor duties within an 8-hour day, [CBP officer] instructors generally complete these types of duties without compensation 

because AUO is not available to them.’’ 35

In response to this report, DHS undertook a series of internal reviews. These reviews culminated in a May 23 memorandum issued 

by Deputy Secretary Alejandro Mayorkas to DHS components acknowledging that ‘‘it is clear that the Department is not in compliance with the rules governing AUO.’’ The memo goes on to outline 

a number of new steps that will have to be taken by DHS components that use AUO, including: 


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36Memo from Deputy Secretary Alejandro N. Mayorkas to DHS components entitled: ‘‘Improving AUO Administration in the Department of Homeland Security,’’ May 23, 2014. Hereafter 

referenced as ‘‘May 23 AUO Memo.’’ 37 Briefing with DHS Office of Legislative Affairs and Customs and Border Protection, November 21, 2013. 38The 2012 legislative proposal would have put Border Patrol agents on the Law Enforcement 

Availability Pay (LEAP) system that is used by criminal investigators across the federal government. LEAP allows criminal investigators to be compensated for time that they are ‘‘available’’ 

to work, and reflects the uncertain nature of their work. Criminal investigators work irregular 

hours and generally need to be ‘‘on-call’’, or available, even when they are not working. The 

LEAP system was created to reflect these realities, and to compensate them for the extra hours 

that they need to work to close a case. LEAP is easier to manage and would be an improvement 

over the use of AUO for CBP. However, CBP believes that the nature of a Border Patrol agent’s 

work requires them to be present, not available. Securing the border, by its very nature, requires that agents either be physically working along the border, or supporting frontline agents 

at stations, checkpoints, or headquarters. S. 1691 is an improvement over LEAP because it 

would require that Border Patrol agents be provided with an hour of pay for an hour of work 

performed. 39See testimony of Ronald Vitiello, Deputy Chief of the Border Patrol, ‘‘Border Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act of 2013,’’ hearing before 

the Senate Committee on Homeland Security and Governmental Affairs, 113th Cong. (June 9, 

2014). 

1. Reviewing and updating the positions that are eligible for 

AUO; 

2. Improving AUO record-keeping; 

3. Systematically reviewing the hours of AUO that are claimed; 

4. Requiring managers to take a more active role in managing 

overtime; and 

5. Updating the practice of ‘‘excluding’’ hours to come into compliance with regulations.36

However, as the OSC pointed out in its letter, the misuse of AUO 

has been a known problem at DHS generally—and the Border Patrol specifically—since at least 2008. In response to the initial OSC 

complaint in 2008, DHS initiated an interagency process that culminated in a legislative proposal attached to the 2012 budget request.37 Congress did not act on this proposal, and CBP continued 

to misuse AUO.38

S. 1691, THE BORDER PATROL AGENT PAY REFORM ACT OF 2013

S. 1691 would address the problems outlined above by dramatically simplifying the pay system used by Border Patrol agents. It 

would eliminate AUO and FLSA overtime for Border Patrol agents 

and create a new pay system that results in more hours worked by 

agents, provides more reliable schedules and paychecks for agents, 

and saves taxpayers money. According to the Congressoinal Budget 

Office, these savings are estimated at $100 million annually. 

The bill has the support of both CBP and the union representing 

most Border Patrol agents. At a hearing before this Committee on 

June 9, 2014, Border Patrol Deputy Chief Ronald Vitiello testified 

that the bill would enable his agency to better secure the border: 

‘‘S. 1691 would replace AUO with a system that controls costs, fairly compensates certain agents for irregular and necessary work, 

and maximizes agent capability for critical law enforcement and 

border security responsibilities.’’ Additionally, Deputy Chief Vitiello 

testified that the bill would result in current Border Patrol agents 

working 2.5 million hours more than they do today—or the equivalent of adding 1,500 agents to its workforce.39

The Border Patrol Council, which represents Border Patrol 

agents, has also been supportive of this bill, despite the fact that 

the average Border Patrol agent likely would be paid less each year 


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40See testimony of Brandon Judd, President of the National Border Patrol Council, ‘‘Border 

Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act of 2013,’’ 

hearing before the Senate Committee on Homeland Security and Governmental Affairs, 113th 

Cong. (June 9, 2014). 

under this new pay system. As Brandon Judd, President of the 

Border Patrol Council, said in his testimony before the Committee, 

‘‘I want to make it clear that no Border Patrol agent is happy about 

the prospect of losing $6,400 per year. . . . We are sacrificing a lot, 

but in the end, it will prove to be a boon for border security, the 

American public, the agency, and the agents whom I represent.’’ 40

Key components of the bill, as reported by the Committee, include: • No AUO or FLSA. The bill would make Border Patrol agents 

ineligible for compensation under AUO or for overtime pay 

through the FLSA. • Election. Each year, Border Patrol agents would select one of 

three rates of pay—and number of hours—that they would like 

to work: 

» Level 1 rate of pay. Agents would work 100 hours per twoweek pay period and receive 125 percent of their basic pay 

under the GS scale; » Level 2 rate of pay. Agents would work 90 hours over the 

two-week pay period and receive 112.5 percent of their basic 

pay under the GS scale; » Basic rate of pay. Agents would work 80 hours over the twoweek pay period and receive their basic pay under the GS 

scale. • Staffing Assessment. The bill requires the Border Patrol to undertake a detailed assessment of its operational requirements 

and staffing needs at every Border Patrol station within one 

year of enactment, and submit it to Congress for review. • GAO Audit. The bill requires the Government Accountability 

Office (GAO) to examine CBP’s methodology and analysis and, 

within 90 days, submit a report to Congress indicating whether 

GAO concurs with CBP’s assessment. • Staffing Floor. The bill initially requires that no more than 10 

percent of the agents at any given location be allowed to work 

less than 100 hours per two-week pay period, and authorizes 

CBP to unilaterally assign agents to work 90 or 100 hours per 

pay period in order to meet this staffing floor. This means that 

if fewer than 90 percent of agents elect to work 100 hours in 

a given location, CBP must unilaterally assign agents to work 

the extra hours in order to ensure that 90 percent of Border 

Patrol agents in that location are working 100 hours per payperiod. This will ensure that the Border Patrol has a stable 

floor of staffing, allowing managers with a steady annual baseline of hours to plan border security operations. The staffing 

floor initially set by the bill would result in the average agent 

working more hours than they have in recent years, increasing 

efforts to secure the border by the equivalent of more than 

1,500 agents. 

• Lowering the Staffing Floor. Based on the results of the staffing assessment required by the bill, the staffing floor—the requirement that 90 percent of Border Patrol agents work 100 

hours in a given location—could be lowered at any location if 


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the assessment shows that the Border Patrol needs less hours 

to be worked in order to meet its operational requirements. 

• Ensuring Security. The bill authorizes CBP to unilaterally assign agents to work additional hours if the security situation 

along the border necessitates it. 

• Management and Training Exemption. Border Patrol agents 

assigned to work at headquarters, as training instructors, or in 

an administrative or fitness instructor position at any location 

would initially be assigned to the Basic Rate of Pay set by the 

bill—or required to work 80 hours every two-week pay period. 

However, if the staffing assessment required by the bill shows 

a need for additional hours to be worked by these agents in 

order to meet the agency’s operational requirements, CBP 

would be authorized to allow agents to elect—or be assigned to 

work 100 hours or 90 hours per pay period. 

• Compensatory Time. The work of securing the border is highly 

unpredictable, and there may be weeks when conditions on the 

ground necessitate that agents in a given location work more 

hours than the amount they initially elected. Unscheduled 

overtime worked beyond those hours they elected (or were assigned) to work would entitle agents to compensatory time off 

that could not be cashed out upon departure or retirement 

from the Border Patrol. Agents could not receive overtime pay 

for these hours. This compensatory time would be capped at 10 

hours per pay period—although a manager could waive this 10 

hour cap for compensatory time per pay period in order to respond to an emergency. The bill would, however, set a hard 

cap of 240 hours in compensatory time that any agent could 

earn in a given year. 

• Scheduled Overtime. The bill would allow for scheduled overtime in order to give managers the flexibility to deal with 

surges in workload that necessitate agents being scheduled to 

work an additional shift. Such overtime would be compensated 

under the FEPA overtime system, as described above. The bill 

directs CBP to limit the use of scheduled overtime. The Committee expects that the Border Patrol will continue to minimize 

the use of scheduled overtime under this bill, much as it has 

over the past three years. 

• Retirement Continuity. The bill, as amended by the Committee, would require CBP, in consultation with the Office of 

Personnel Management, to develop a plan to ensure that 

agents are not able to artificially elevate their retirement annuities by selecting a higher rate of pay than they have historically once they are within three years of being eligible to retire. CBP would have the authority to unilaterally assign 

agents to rates of pay in order to implement this plan. GAO 

would be required to review this plan and report to Congress 

concerning whether the plan proposed by CBP is effective. 

III. LEGISLATIVE HISTORY

On November 13, 2013, Senators Tester and McCain introduced 

the Border Patrol Pay Reform Act of 2013 (S. 1691). A companion 

bill, H.R. 3463, was introduced in the House of Representatives on 

the same day. S. 1691 was referred to the Senate Committee on 


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41 ‘‘Examining the Use and Abuse of Administratively Uncontrollable Overtime at the Department of Homeland Security,’’ hearing before the Subcommittee on the Efficiency and Effectiveness of Federal Programs and the Federal Workforce of the Senate Committee on Homeland Security and Governmental Affairs, 113th Cong. (January 28, 2014). See http://www. 

hsgac.senate.gov/subcommittees/fpfw/hearings/examining-the-use-and-abuse-of-administrativelyuncontrollable-overtime-at-the-department-of-homeland-security. 42 ‘‘Border Security: Examining the Implications of S. 1691, the Border Patrol Pay Reform Act 

of 2013,’’ hearing before the Senate Committee on Homeland Security and Governmental Affairs, 

113th Cong. (June 9, 2014). See http://www.hsgac.senate.gov/hearings/border-securityexamining-the-implications-of-s-1691-the-border-patrol-agent-pay-reform-act-of-2013. 

Homeland Security and Governmental Affairs. Additional co-sponsors are Senators Heitkamp, Ayotte and Flake. 

On January 28, 2014, the Subcommittee on the Efficiency and 

Effectiveness of Federal Programs and the Federal Workforce held 

a hearing on reported DHS abuses AUO.41 The hearing, entitled 

‘‘Examining the Use and Abuse of Administratively Uncontrollable 

Overtime at the Department of Homeland Security,’’ examined the 

instances of AUO abuse raised in OSC’s report, as well as how the 

DHS and CBP responded to OSC’s findings, including the disciplinary actions taken. Some of the witnesses also discussed how the 

Border Patrol Pay Reform Act of 2013 would help address the concerns raised by the OSC report and eliminate the use of AUO at 

the Border Patrol. The Special Counsel, Carolyn Lerner, Deputy 

Chief of the U.S. Border Patrol, Ronald Vitiello, DHS’s Chief 

Human Capital Officer, Catherine Emerson, and President of the 

National Border Patrol Council, Brandon Judd, testified at the 

hearing. 

On June 9, 2014, the Committee held a hearing on the bill, entitled, ‘‘Border Security: Examining the Implications of S. 1691, the 

Border Patrol Pay Reform Act of 2013.’’ 42 The hearing focused on 

the impact the bill would have on CBP’s ability to secure the border, manage its workforce, and make the most effective use of taxpayer resources. The Committee heard testimony from Deputy 

Chief of the U.S. Border Patrol, Ronald Vitiello, President of the 

National Border Patrol Council, Brandon Judd, Deputy Assistant 

Commissioner of the Office of Internal Affairs at U.S. Customs and 

Border Protection, Paul L. Hamrick and OSC’s Deputy Special 

Counsel for Policy and Congressional Affairs, Adam Miles. 

The Committee considered S. 1691 at a business meeting on 

June 25, 2014. 

Senators Tester and McCain offered a substitute amendment 

that made a number of changes suggested by DHS and the Office 

of Personnel Management. These changes included a requirement 

that CBP perform a staffing assessment, which would be used to 

determine whether CBP could deviate in either direction from the 

bill’s baseline requirement that 90 percent of agents at a location 

work 100 hours per pay period at the level 1 Border Patrol rate of 

pay; a requirement that CBP implement a plan to ensure agents 

cannot artificially inflate their retirement annuities through the 

election process in the bill; an exemption for Headquarters and 

training facilities from the bill’s requirement that 90 percent of 

agents work 100 hours per pay period at the level 1 Border Patrol 

rate of pay; and a requirement that CBP try to limit or avoid the 

use of scheduled overtime by Border Patrol agents. The substitute 

amendment was adopted by voice vote, with Senators Carper, 

Levin, Pryor, McCaskill, Tester, Heitkamp, Coburn, McCain, Johnson, and Portman present. 


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43Official time is authorized under 5 U.S.C. § 7131. 

Senator Coburn offered an amendment that would have required 

that CBP employees who spend 50 percent or more of their work 

hours serving as a union representative in negotiations and representing employees in personnel disputes—known as ‘‘official 

time’’ 43—be assigned to work 80 hours per pay period at the basic 

Border Patrol rate of pay. This amendment was not adopted by a 

roll call vote of 6–9. Senators Coburn, McCain, Johnson, and 

Portman voted in favor of the amendment, and Senators Carper, 

Levin, Pryor, McCaskill, Tester and Heitkamp voted against the 

amendment. In addition, Senators Enzi and Ayotte voted in favor 

of the amendment by proxy, and Senators Landrieu, Begich and 

Baldwin voted against the amendment by proxy. Senators present 

for the vote were Senators Carper, Levin, Pryor, McCaskill, Tester, 

Heitkamp, Coburn, McCain, Johnson, and Portman. 

Senator Coburn offered another amendment that was modified 

by a second degree amendment offered by Senators Tester, McCain 

and Heitkamp. As originally offered, the amendment would have 

required that all Border Patrol agents assigned to Headquarters, 

working as training instructors at a training facility, working in an 

administrative position, or working as a fitness instructor be assigned to work 80 hours per pay period at the basic Border Patrol 

rate of pay. Senators Tester, McCain and Heitkamp offered a second degree amendment that allowed the Border Patrol more flexibility to have those Border Patrol agents work 90 or 100 hours and 

receive the level 1 or level 2 Border Patrol rate of pay if the staffing assessment required by the bill showed additional hours to be 

necessary to fulfill operational requirements. The Tester, McCain, 

Heitkamp second degree amendment was adopted by voice vote, as 

was the Coburn amendment, as modified by the second degree 

amendment. Senators present for both votes were Senators Carper, 

Levin, Pryor, McCaskill, Tester, Heitkamp, Coburn, McCain, Johnson and Portman. 

The Committee ordered the bill, as amended, favorably reported 

by a roll call vote of 9–0. Senators Carper, Levin, Pryor, McCaskill, 

Tester, Heitkamp, McCain, Johnson, and Portman voted in favor of 

the bill, while Senator Coburn voted present. Senators Landrieu, 

Begich, Baldwin, Enzi and Ayotte asked to be recorded as voting 

in favor of the bill by proxy, while Senator Paul asked to be recorded against the bill by proxy. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1—This section establishes the title of the legislation as 

‘‘The Border Patrol agent Pay Reform Act of 2014’’. 

Section 2—Border Patrol Rate of Pay 

(a) Purpose—States that the purpose of this bill is to provide a 

pay system for Border Patrol agents that acknowledges that agents 

routinely work beyond 40 hours per week and ensures that Customs and Border Protection has the ability to schedule work to fit 

operational needs. 

(b) Rates of Pay—inserts a new section 5550 after 5 U.S.C. 

§ 5549: 

§ 5550 (a) Definitions 


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• (a)(1) defines the term ‘‘basic Border Patrol pay’’ as the hourly 

rate of basic pay based on a 40 hour work week. 

• (a)(2) defines the term ‘‘Border Patrol agent.’’ 

• (a)(3) defines the term ‘‘level 1 Border Patrol rate of pay’’ as 

an hourly rate 1.25 times an agent’s basic hourly rate of pay. 

• (a)(4) defines the term ‘‘level 2 Border Patrol rate of pay’’ as 

an hourly rate 1.125 times an agent’s basic hourly rate of pay. 

• (a)(5) defines the term ‘‘work period’’ as a 14-day bi-weekly pay 

period. 

§ 5550 (b) Receipt of Border Patrol Rate of Pay 

(b)(1) Voluntary Election 

• (b)(1)(A) Voluntary Election. On an annual basis Border Patrol 

agents will elect whether to be assigned to receive the level 1, 

level 2 or basic Border Patrol rate of pay. An agent has 30 

days to elect. If the agent elects the basic rate of pay, CBP can 

still assign overtime as needed. 

• (b)(1)(B) Regulations. OPM shall promulgate procedures for the 

election process. 

• (b)(1)(C) Information Regarding Election. Customs and Border 

Protection must provide information to the agents regarding 

each type of pay that they can elect to be assigned. 

• (b)(1)(D) Assignment in Lieu of Election. If an agent fails to 

elect a pay level within 30 days, the agent is automatically assigned to the level 1 rate of pay. A Border Patrol agent who 

is assigned a patrol dog will be assigned to the level 1 rate of 

pay. CBP has the authority to assign an agent to the basic rate 

of pay if CBP thinks the agent is unable, for any reason, to 

work the additional hours, and may also assign agents to level 

1 or level 2 to ensure that at least 90 percent of agents, or the 

floor indicated by the staffing plan, are at the level 1 or level 

2 rate of pay. Border Patrol agents at Headquarters, working 

as training instructors at a training facility, working in an administrative position, or working as a fitness instructor will be 

assigned to the basic Border Patrol rate of pay unless the staffing analysis CBP is required to conduct indicates additional 

hours by those agents are necessary to fulfill operational requirements. 

• (b)(1)(E) Flexibility. No more than 10 percent of the agents stationed at a particular CBP duty station can be assigned to the 

basic Border Patrol rate of pay. CBP should take whatever action is necessary to ensure these results. However, if the staffing analysis required by the bill determines that less than 10 

percent of agents should be assigned to the basic Border Patrol 

rate of pay in order to meet operational requirements, CBP can 

waive the requirement that not more than 10 percent of agents 

be assigned to the basic Border Patrol rate of pay for that duty 

station. Further, this 10 percent threshold would not apply at 

headquarters or training locations. 

• (b)(1)(F) Canine Care. If an agent is both assigned to provide 

care for a patrol dog and to the level 1 rate of pay, that rate 

of pay covers all of the work the agent must do to care for his 

or her patrol dog. Each hour spent caring for the dog is counted as 1 hour of scheduled work on each regular workday. 

• (b)(1)(G) Pay Assignment Continuity. 


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Æ (i) Since the amount of a federal employee’s retirement annuity is calculated based on the highest three years of the 

employee’s salary, CBP must develop and implement a plan 

within one year of enactment to ensure an agent is unable 

to artificially enhance 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. 

Æ (ii) CBP must take the actions necessary to implement the 

plan. 

Æ (iii) CBP must submit the plan to the appropriate Congressional committees. 

Æ (iv) Within six months of CBP issuing this plan, GAO is required to submit a report on the effectiveness of the plan to 

the appropriate Congressional committees. 

Æ (v) ‘‘Appropriate committees of Congress’’ means the Senate 

Committee on Homeland Security and Governmental Affairs 

and Committee on Appropriations, and the House Committee on Homeland Security, Committee on Oversight and 

Government Reform, and Committee on Appropriations. 

Æ (vi) Clarifies that CBP would retain the ability to assign 

Border Patrol agents to respond to operational requirements. 

(b)(2) Level 1 Border Patrol Rate of Pay • (b)(2)(A) Agents electing the level 1 Border Patrol rate of pay 

will be compensated at 1.25 times the agent’s hourly rate of 

pay for the 10 shifts they are assigned to work each pay period. Under this system, an agent is scheduled to work 5 days 

per week, and each shift lasts 10 hours—or 8 hours regular 

time plus 2 additional hours of scheduled overtime per day. 

Agents choosing the level 1 Border Patrol rate of pay will thus 

work 100 hours per pay period. 

• (b)(2)(B) The level 1 Border Patrol rate of pay compensates 

agents for working the 8 hours of regular time each work day 

at 1.25 times their base pay for these 8 hours. 

• (b)(2)(C) Agents electing the level 1 Border Patrol rate of pay 

will also be scheduled to work 2 hours of overtime per work 

day. The agent shall not receive any additional compensation 

under this section nor compensatory time for these additional 

work hours. 

• (b)(2)(D) If an agent being paid at level 1 Border Patrol rate 

of pay works over 100 hours in a two-week pay period, he or 

she will receive compensatory time off for unscheduled overtime or pay at the overtime hourly rate for scheduled overtime. 

• (b)(2)(E) If an agent is absent from work during regular time, 

he or she will be charged the corresponding amount of paid 

leave, compensatory time off, or other paid time off. 

• (b)(2)(F) If an agent is absent during scheduled overtime, he or 

she will accrue an obligation to perform other overtime work 

for each hour he or she is absent. The intent of this section is 

not to penalize Border Patrol agents who can otherwise use allowable leave to cover absences during regularly scheduled 

workdays, but rather to provide a mechanism for allowing 

agents who must take unanticipated leave in the middle of a 

regularly scheduled workday to make up the overtime hours 

that they did not work that day. 


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• (b)(2)(G) When an agent who is paid at the level 1 Border Patrol rate of pay is assigned to work that is classified as advanced training, the agent will be paid at the level 1 rate for 

the first 60 days of advanced training in a calendar year. If an 

agent’s advanced training exceeds 60 days, the days beyond 60 

will be paid at the basic Border Patrol rate of pay. 

(b)(3) Level 2 Border Patrol Rate of Pay 

• (b)(3)(A) Agents electing the level 2 Border Patrol rate of pay 

will be compensated at 1.125 times the agent’s hourly rate of 

pay for the ten shifts they are assigned to work each pay period. Under this system, an agent is scheduled to work 5 days 

per week, and each shift lasts 9 hours—or 8 hours regular time 

plus 1 additional hour of scheduled overtime per day. Agents 

choosing the level 2 Border Patrol rate of pay will thus work 

90 hours per pay period. 

• (b)(3)(B) The level 2 Border Patrol rate of pay compensates 

agents for working the 8 hours of regular time each work day 

at 1.125 times their base pay for these 8 hours. 

• (b)(3)(C) Agents electing the level 2 Border Patrol rate of pay 

will also be scheduled to work an additional hour of overtime 

per work day. The agent shall not receive any additional compensation under this section nor compensatory time for these 

work hours. 

• (b)(3)(D) If an agent works over 90 hours in a pay period, he 

or she will receive compensatory time off for unscheduled overtime or pay at the overtime hourly rate for scheduled overtime. 

• (b)(3)(E) If an agent is absent from work during regular time, 

he or she will be charged the corresponding amount of paid 

leave, compensatory time off, or other paid time off. 

• (b)(3)(F) If an agent is absent during scheduled overtime, he or 

she will accrue an obligation to perform other overtime work 

for each hour he or she is absent. The intent of this section is 

not to penalize Border Patrol agents who can otherwise use allowable leave to cover absences during regularly scheduled 

workdays, but rather to provide a mechanism for allowing 

agents who must take unanticipated leave in the middle of a 

regularly scheduled workday to make up the overtime hours 

that they did not work that day. 

• (b)(3)(G) When an agent who is paid at the level 2 Border Patrol rate of pay is assigned to work that is classified as advanced training, the agent will be paid at the level 2 rate for 

the first 60 days of advanced training in a calendar year. If an 

agent’s advanced training exceeds 60 days, the days beyond 60 

will be paid at the basic Border Patrol rate of pay. 

(b)(4) Basic Border Patrol Rate of Pay 

• (b)(4)(A) For the basic Border Patrol rate of pay, an agent is 

scheduled to work 5 days per week and 8 hours of regular time 

per workday. 

• (b)(4)(B) If an agent at the basic rate of pay works over 80 

hours during a two-week pay period, he or she will receive 

compensatory time off for unscheduled overtime or pay at the 

overtime hourly rate for additional scheduled overtime. 

§ 5550 (c) Eligibility for Other Premium Pay 


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44For information on leave without pay generally, see http://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/leave-without-pay/, last visited August 13, 2014. 

• (c)(1) Border Patrol agents generally will continue to be eligible 

to receive premium pay for night shifts, holiday and Sunday 

shifts, except as described below. 

• (c)(1)(A) Border Patrol agents are not eligible to receive premium pay for night, Sunday, or holiday work for hours of regularly scheduled overtime work covered by the level 1 or level 

2 Border Patrol rate of pay. 

• (c)(1)(B) Any additional overtime worked on Sundays, holidays 

or at night will be compensated with compensatory time off for 

unscheduled overtime and pay at the overtime hourly rate for 

additional scheduled overtime. 

• (c)(2/3) Border Patrol agents are not eligible for any other form 

of premium pay, except hazardous duty pay. 

§ 5550 (d) Treatment of Basic Pay 

• (d)(1) Level 1 and level 2 pay will be treated as basic pay for 

calculating retirement, worker’s compensation and severance, 

as well as any other purpose that the Office of Personnel Management may prescribe. 

• (d)(2) Level 1 and level 2 pay will not be treated as part of 

basic pay for the purposes of calculating overtime pay, night 

pay, Sunday pay, or holiday pay. 

§ 5550 (e) Travel Time 

• Travel time to and from an agent’s home and duty station is 

not considered hours of work under any provision of law. 

§ 5550 (f) Leave Without Pay and Substitution of Hours 44

• (f)(1) Regular Time. In order to be compensated for a period of 

leave without pay during an agent’s regular work time, and 

within a particular pay period, an agent may substitute an 

equal period of work outside of the agent’s regular time paid 

at the regular rate, but those hours cannot be credited as overtime hours for any purpose. 

• (f)(2) Overtime Work. In order to be compensated for a period 

of leave without pay during regularly scheduled overtime within a particular pay period, he or she must complete an equal 

period of work in the same pay period. This additional work 

will be substituted and credited as scheduled overtime. It cannot count as overtime hours under any other provision of law. 

• (f)(3) Application of Compensatory Time. When an agent wishes to substitute work hours for a period of leave without pay, 

if an agent does not have enough additional work within a 

work period to substitute for his or her hours of absence during 

scheduled overtime, any accrued compensatory time off will be 

applied to make up for the hours of obligation. 

• (f)(4) Insufficient Hours. If an agent wishes to substitute work 

hours for a period of leave without pay and still owes scheduled overtime hours after applying paragraphs (2) and (3), any 

additional work in subsequent pay periods that would otherwise be credited as compensatory time, will be applied towards 

the owed hours until the agent’s obligation is satisfied. 

§ 5550 (g) Authority To Require Overtime Work 


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45See 5 U.S.C. § 5547. 

• Nothing in this section shall be construed to limit CBP’s authority to require agents to work overtime in accordance with 

Agency needs, including in the event of a local or national 

emergency. 

(c) Overtime Work 

• (g)(1) If an agent is assigned the level 1 rate of pay, and he 

or she works over 100 hours in a pay period, the additional 

hours will be overtime work. The agent will receive pay at the 

overtime hourly rate of pay for hours that are officially ordered 

or approved in advance. For unscheduled overtime work up to 

10 hours per pay period and 240 hours per year, the agent will 

receive compensatory time off. 

• (g)(2) If an agent is assigned the level 2 rate of pay, and he 

or she works over 90 hours in a pay period, the additional 

hours will be overtime work. The agent will receive pay at the 

overtime hourly rate of pay for hours that are officially ordered 

or approved in advance. For unscheduled overtime work up to 

10 hours per pay period and 240 hours per year, the agent will 

receive compensatory time off. 

• (g)(3) If an agent is assigned the basic rate of pay, and he or 

she works over 80 hours in a pay period, the additional hours 

will be overtime work. The agent will receive pay at the overtime hourly rate of pay for hours that are officially ordered or 

approved in advance. For unscheduled overtime work up to 10 

hours per pay period and 240 hours per year, the agent will 

receive compensatory time off. 

• (g)(4)(A) Except when the limit is waived in writing by CBP, 

during a pay period, an agent cannot earn more than 10 hours 

of compensatory time off. 

• (g)(4)(B) At the agent’s request, CBP can waive the 10 hour 

limit per pay period for individual agents for hours of irregular 

or occasional overtime work. Such a request must be approved 

in writing in advance of the work by a manager. If an agent’s 

waiver request is denied, he or she cannot be ordered to perform the associated overtime work. 

• (g)(5) An agent cannot earn more than 240 hours of compensatory time during a leave year and any accrued compensatory 

time expires at the end of the 26th pay period after the pay 

period in which it was earned. An agent must use one hour of 

compensatory time for each hour of regular time he or she does 

not work. A Border Patrol agent is not entitled to any cash 

value and will not receive credit toward the computation of his 

or her annuity for compensatory time off earned under section 

5550. An agent cannot receive compensatory time off if its 

value would cause the agent’s total premium pay to exceed the 

statutory limits.45

(c)(2) Minimization of Overtime 

• U.S. Customs and Border Protection shall, to the maximum extent practicable, avoid the use of scheduled overtime work by 

Border Patrol agents. 

(d) Retirement—This section amends 5 U.S.C. § 8331(3) to include 

the amount of supplemental pay from the level 1 and level 2 BorVerDate Mar 15 2010 04:50 Aug 28, 2014 Jkt 039010 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\SR248.XXX SR248

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der Patrol rate of pay as part of agents’ basic pay for the purposes 

of calculating their retirement pay. 

(e) Comprehensive Staffing Analysis 

• (e)(1) CBP Analysis—Not later than one year after the date of 

enactment of this Act, CBP shall conduct a comprehensive 

analysis examining the staffing requirements of the U.S. Border Patrol and reporting on how to most effectively meet its 

operational requirements at each Border Patrol duty station. 

The analysis must include estimates of the cost of the staffing 

requirements at each Border Patrol duty station. CBP shall 

submit the report to the Government Accountability Office 

(GAO). 

• (e)(2) Independent Validator—Not later than 90 days after 

GAO receives CBP’s report GAO shall submit to the appropriate committees of Congress a report examining CBP’s methodology and analysis; and indicating whether GAO concurs 

with CBP’s findings. 

• (e)(3) Definition—in this subsection, the term ‘‘appropriate 

committees of Congress’’ means the Committee on Homeland 

Security and Governmental Affairs and the Committee on Appropriations of the Senate; and the Committee on Oversight 

and Government Reform and the Committee on Appropriations 

of the House of Representatives. 

(f) Rules of Construction. Nothing in this section or the amendments made by this section shall be construed to— 

• (f)(1) limit CBP’s right to assign both scheduled and unscheduled work to a Border Patrol agent in excess of the hours of 

work normally applicable under the election of the Border Patrol agent, regardless of what the Border Patrol agent might 

otherwise have elected; 

• (f)(2) require compensation of a Border Patrol agent other than 

for hours during which the Border Patrol agent is actually performing work or using approved paid leave or other paid time 

off; or 

• (f)(3) exempt a Border Patrol agent from any limitations on 

pay, earnings, or compensation, including the limitations on 

premium pay. 

(g) Technical and Conforming Amendments. This subsection 

makes technical and conforming amendments. 

(h) Regulations. The Director of the Office of Personnel Management shall promulgate regulations to carry out this Act and the 

amendments made by this Act. 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill and determined that the bill will 

have no regulatory impact within the meaning of the rules. The 

Committee agrees with the Congressional Budget Office’s statement that the bill contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would impose no costs on state, local, or tribal governments. 


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VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

JULY 30, 2014. 

Hon. TOM CARPER, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1691, the Border Patrol 

Agent Pay Reform Act of 2014. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 1691—Border Patrol Agent Pay Reform Act of 2014 

S. 1691 would establish a new system for determining overtime 

compensation for agents of the border patrol in U.S. Customs and 

Border Protection (CBP). CBO estimates that implementing S. 

1691 could save about $100 million annually, assuming future appropriations are reduced consistent with the bill’s provisions. Enacting the legislation would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

Under current law, border patrol agents are eligible for Administratively Uncontrollable Overtime (AUO), which compensates employees for unscheduled but necessary overtime. Generally, the 

agents themselves are responsible for identifying circumstances 

that require them to remain on duty beyond regular hours. Under 

AUO, most agents earn up to 25 percent of their base salary for 

time worked in excess of 80 hours in a pay period. Agents may 

earn additional overtime compensation required by the Fair Labor 

Standards Act (FLSA) and the Federal Employee Pay Act (FEPA) 

that is generally paid at 50 percent above the regular rate. Total 

overtime costs for border patrol agents, including pay and benefits, 

was $627 million in 2013, while total compensation costs for those 

agents was $3.1 billion in 2013. 

S. 1691 would replace AUO with three options that agents would 

choose from: (1) work 100 hours each pay period and increase base 

salary by 25 percent; (2) work 90 hours each pay period and increase base salary by 12.5 percent; or (3) work no overtime. Agents 

would no longer be eligible for overtime pay under the FLSA. In 

addition, the legislation would provide compensatory time off for 

unscheduled overtime above 80, 90, or 100 hours per pay period, 

depending on the option chosen. That compensatory time would be 

limited to 240 hours a year and could not be redeemed for monetary compensation. 

The bill would generally require 90 percent of border patrol 

agents to work 100 hours each pay period, while CBP expects that 

most remaining agents would work 90 hours per pay period. According to the agency, if the overtime pay system in S. 1691 had 

been implemented for fiscal year 2013, then total overtime costs 

would have been about $525 million, or about $100 million lower 

than the actual overtime expense for that year. Costs would decline 

under S. 1691 mostly because border patrol agents would no longer 

receive compensation required under the FLSA. 


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Budgetary savings under S. 1691 could be smaller or larger than 

CBO estimates. Potential savings in future years could be influenced by unanticipated incidents at U.S. borders that cause overtime use to be more or less than has occurred in the past. In addition, the CBP could curtail unnecessary use of AOU under current 

law or allow it to be used to a greater extent than it has been used 

in the past. Finally, under the bill, CBP would have the discretion 

to allow agents to earn FEPA overtime pay in addition to the options to increase base pay described earlier. This estimate assumes 

CBP would not approve the use of FEPA overtime pay under the 

bill beyond a few million dollars expended for that purpose in 2013. 

S. 1691 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Mark Grabowicz. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

VII. CHANGES IN EXISTING STATUTE MADE BY THE BILL, AS

REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 1691, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, and 

existing law in which no change is proposed is shown in roman): 

TITLE V—GOVERNMENT ORGANIZATION AND 

EMPLOYEES 

* * * * * * * 

CHAPTER 55—PAY ADMINISTRATION 

* * * * * * * 

Subchapter V—Premium Pay 

* * * * * * * 

§ 5542—Overtime rates; computation 

(a) * * * 

* * * * * * * 

(g) In applying subsection (a) with respect to a Border Patrol 

agent covered by section 5550, the following rules apply: 

(1) Notwithstanding the matter preceding paragraph (1) in 

subsection (a), for a Border Patrol agent who is assigned to the 

level 1 Border Patrol rate of pay under section 5550— 

(A) hours of work in excess of 100 hours during a 14-day 

biweekly pay period shall be overtime work; and 

(B) the Border Patrol agent— 

(i) shall receive pay at the overtime hourly rate of 

pay (as determined in accordance with paragraphs (1) 

and (2) of subsection (a)) for hours of overtime work 

that are officially ordered or approved in advance of 

the workweek; and 


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(ii) except as provided in paragraphs (4) and (5), 

shall receive compensatory time off for an equal 

amount of time spent performing overtime work that is 

not overtime work described in clause (i). 

(2) Notwithstanding the matter preceding paragraph (1) in 

subsection (a), for a Border Patrol agent who is assigned to the 

level 2 Border Patrol rate of pay under section 5550— 

(A) hours of work in excess of 90 hours during a 14-day 

biweekly pay period shall be overtime work; and 

(B) the Border Patrol agent— 

(i) shall receive pay at the overtime hourly rate of 

pay (as determined in accordance with paragraphs (1) 

and (2) of subsection (a)) for hours of overtime work 

that are officially ordered or approved in advance of 

the workweek; and 

(ii) except as provided in paragraphs (4) and (5), 

shall receive compensatory time off for an equal 

amount of time spent performing overtime work that is 

not overtime work described in clause (i). 

(3) Notwithstanding the matter preceding paragraph (1) in 

subsection (a), for a Border Patrol agent who is assigned to the 

basic Border Patrol rate of pay under section 5550— 

(A) hours of work in excess of 80 hours during a 14-day 

biweekly pay period shall be overtime work; and 

(B) the Border Patrol agent— 

(i) shall receive pay at the overtime hourly rate of 

pay (as determined in accordance with paragraphs (1) 

and (2) of subsection (a)) for hours of overtime work 

that are officially ordered or approved in advance of 

the workweek; and 

(ii) except as provided in paragraphs (4) and (5), 

shall receive compensatory time off for an equal 

amount of time spent performing overtime work that is 

not overtime work described in clause (i). 

(4)(A) Except as provided in subparagraph (B), during a 14- 

day biweekly pay period, a Border Patrol agent may not earn 

compensatory time off for more than 10 hours of overtime work. 

(B) U.S. Customs and Border Protection may, as it determines appropriate, waive the limitation under subparagraph 

(A) for an individual Border Patrol agent for hours of irregular 

or occasional overtime work, but such waiver must be approved 

in writing in advance of the performance of any such work for 

which compensatory time off is earned under paragraph 

(1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a waiver request by a Border 

Patrol agent is denied, the Border Patrol agent may not be ordered to perform the associated overtime work. 

(5) A Border Patrol agent— 

(A) may not earn more than 240 hours of compensatory 

time off during a leave year; 

(B) shall 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; 

(C) shall be required to use 1 hour of compensatory time 

off for each hour of regular time not worked for which the 

Border Patrol agent is not on paid leave or other paid time 


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off or does not substitute time in accordance with section 

5550(f); 

(D) shall forfeit any compensatory time off not used in accordance with this paragraph and, regardless of circumstances, shall not be entitled to any cash value for compensatory time earned under section 5550; 

(E) shall not receive credit towards the computation of 

the annuity of the Border Patrol agent for compensatory 

time, whether used or not; and 

(F) shall not be credited with compensatory time off if the 

value of such time off would cause the aggregate premium 

pay of the Border Patrol agent to exceed the limitation established under section 5547 in the period in which it was 

earned. 

* * * * * * * 

§ 5547. Limitation on premium pay 

(a) An employee may be paid premium pay under sections 5542, 

5545 (a), (b), and (c), 5545a, øand¿ 5546 (a) and (b), and 5550 only 

to the extent that the payment does not cause the aggregate of 

basic pay and such premium pay for any pay period for such employee to exceed the greater of— 

(1) the maximum rate of basic pay payable for GS–15 (including any applicable locality-based comparability payment 

under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision 

of law); or 

(2) the rate payable for level V of the Executive Schedule. 

(b) * * * 

* * * * * * * 

(e) Any supplemental pay resulting from receipt of the level 1 Border Patrol rate of pay or the level 2 Border Patrol rate of pay under 

section 5550 shall be considered premium pay in applying this section. 

* * * * * * * 

§ 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 


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(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 2013 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 


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(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 2013, 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 2013, 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 


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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); 


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(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 agency 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)— 


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(i) the Border Patrol agent shall accrue an obligation 

to perform other overtime work for each hour (or part 

thereof) the Border Patrol agency 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 


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(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 


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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. 

CHAPTER 83—RETIREMENT 

* * * * * * * 

Subchapter 3—Civil Service Retirement 

* * * * * * * 

§ 8331—Definitions 

(1) * * * 

(2) * * * 

(3) ‘‘basic pay’’ includes— 

(A) * * * 

* * * * * * * 

(B) with respect to a customs officer (referred to in subsection (e)(1) of section 5 of the Act of February 13, 1911), compensation for overtime inspectional services provided for under 

subsection (a) of such section 5, but not to exceed 50 percent 

of any statutory maximum in overtime pay for customs officers 

which is in effect for the year involved; øand¿ 

(C) any amount received under section 5948 (relating to physicians comparability allowances); and 

(D) with respect to a Border Patrol agent, the amount of supplemental pay received through application of the level 1 Border 

Patrol rate of pay or the level 2 Border Patrol rate of pay for 

scheduled overtime within the regular tour of duty of the Border 

Patrol agent as provided in section 5550; 

but does not include bonuses, allowances, overtime pay, military 

pay, pay given in addition to the base pay of the position as fixed 

by law or regulation except as provided by øsubparagraphs (B) 

through (H)¿ subparagraphs (B) through (I) of this paragraph retroactive pay under section 5344 of this title in the case of a retired 

or deceased employee, uniform allowances under section 5901 of 

this title, or lump-sum leave payments under subchapter VI of 

chapter 55 of this title. For an employee paid on a fee basis, the 

maximum amount of basic pay which may be used is $10,000; 

(4) * * * 

* * * * * * * 

TITLE XXIX—LABOR 

* * * * * * * 

CHAPTER 8—FAIR LABOR STANDARDS 

* * * * * * * 

§ 213—Exemptions 

(a) MINIMUM WAGE AND MAXIMUM HOUR REQUIREMENTS

The provisions of sections 206 (except subsection (d) in the case 

of paragraph (1) of this subsection) and 207 of this title shall not 

apply with respect to— 


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(1) * * * 

* * * * * * * 

(16) a criminal investigator who is paid availability pay 

under section 5545a of title 5; øor¿ 

(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled 

worker, whose primary duty is— 

(A) the application of systems analysis techniques and 

procedures, including consulting with users, to determine 

hardware, software, or system functional specifications; 

(B) the design, development, documentation, analysis, 

creation, testing, or modification of computer systems or 

programs, including prototypes, based on and related to 

user or system design specifications; 

(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or 

(D) a combination of duties described in subparagraphs 

(A), (B), and (C) the performance of which requires the 

same level of skills, and 

who, in the case of an employee who is compensated on an 

hourly basis, is compensated at a rate of not less than $27.63 

an hourø.¿; or 

(18) any employee who is a Border Patrol agent, as defined 

in section 5550(a) of title 5, United States Code. 

Æ 


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