II 

113TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 13, 2013 

Mr. TESTER (for himself and Mr. MCCAIN) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Border Patrol Agent 

5 Pay Reform Act of 2013’’. 

6 SEC. 2. BORDER PATROL RATE OF PAY. 

7 (a) PURPOSE.—The purposes of this Act are— 

8 (1) to strengthen U.S. Customs and Border 

9 Protection and ensure border patrol agents are suffiVerDate Mar 15 2010 02:03 Nov 14, 2013 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.IS S1691

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1 ciently ready to conduct necessary work and that 

2 agents will perform overtime hours in excess of a 40- 

3 hour work week based on the needs of the employing 

4 agency; and 

5 (2) to ensure U.S. Customs and Border Protec6 tion has the flexibility to cover shift changes and re7 tains the right to assign scheduled and unscheduled 

8 work for mission requirements and planning based 

9 on operational need. 

10 (b) RATES OF PAY.—Subchapter V of chapter 55 of 

11 title 5, United States Code, is amended by inserting after 

12 section 5549 the following: 

13 ‘‘§ 5550. Border patrol rate of pay 

14 ‘‘(a) DEFINITIONS.—In this section— 

15 ‘‘(1) the term ‘available to work’ means a bor16 der patrol agent is generally and reasonably acces17 sible by U.S. Customs and Border Protection to per18 form unscheduled duty based on the needs of U.S. 

19 Customs and Border Protection; 

20 ‘‘(2) the term ‘border patrol agent’ means an 

21 individual who is performing functions included 

22 under position classification series 1896 (Border Pa23 trol Enforcement) of the Office of Personnel Man24 agement, or any successor thereto, including per25 forming covered border patrol activities; 


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1 ‘‘(3) the term ‘covered border patrol activities’ 

2 means a border patrol agent is— 

3 ‘‘(A) detecting and preventing illegal entry 

4 and smuggling of aliens, commercial goods, nar5 cotics, weapons, or contraband into the United 

6 States; 

7 ‘‘(B) arresting individuals suspected of 

8 conduct described in subparagraph (A); 

9 ‘‘(C) attending training authorized by U.S. 

10 Customs and Border Protection; 

11 ‘‘(D) on approved annual, sick, or adminis12 trative leave; 

13 ‘‘(E) on ordered travel status; 

14 ‘‘(F) on official time, within the meaning 

15 of section 7131; 

16 ‘‘(G) on excused absence with pay for relo17 cation purposes; 

18 ‘‘(H) on light duty due to injury or dis19 ability; 

20 ‘‘(I) performing administrative duties or 

21 mission critical work assignments while main22 taining law enforcement authority; 

23 ‘‘(J) caring for the canine assigned to the 

24 border patrol agent, which may not exceed 1 

25 hour per day; or 


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1 ‘‘(K) engaged in an activity similar to an 

2 activity described in subparagraphs (A) through 

3 (J) while temporarily away from the regular 

4 duty assignment of the border patrol agent; 

5 ‘‘(4) the term ‘level 1 border patrol rate of pay’ 

6 means the hourly rate of pay equal to 1.25 times the 

7 otherwise applicable hourly rate of basic pay of the 

8 applicable border patrol agent; 

9 ‘‘(5) the term ‘level 2 border patrol rate of pay’ 

10 means the hourly rate of pay equal to 1.125 times 

11 the otherwise applicable hourly rate of basic pay of 

12 the applicable border patrol agent; and 

13 ‘‘(6) the term ‘work period’ means a 14-day bi14 weekly pay period. 

15 ‘‘(b) RECEIPT OF BORDER PATROL RATE OF PAY.— 

16 ‘‘(1) VOLUNTARY ELECTION.— 

17 ‘‘(A) IN GENERAL.—Not later than 30 

18 days before the first day of each year beginning 

19 after the date of enactment of this section, a 

20 border patrol agent shall make an election 

21 whether the border patrol agent shall, for the 

22 following year— 

23 ‘‘(i) be assigned to the level 1 border 

24 patrol rate of pay; 


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1 ‘‘(ii) be assigned the level 2 border pa2 trol rate of pay; or 

3 ‘‘(iii) decline to be assigned the level 

4 1 border patrol rate of pay or the level 2 

5 border patrol rate of pay. 

6 ‘‘(B) PROCEDURES.—The Director of the 

7 Office of Personnel Management shall establish 

8 procedures for elections under subparagraph 

9 (A). 

10 ‘‘(C) INFORMATION REGARDING ELEC11 TION.—Not later than 60 days before the first 

12 day of each year beginning after the date of en13 actment of this section, U.S. Customs and Bor14 der Protection shall provide each border patrol 

15 agent with information regarding each type of 

16 election available under subparagraph (A) and 

17 how to make such an election. 

18 ‘‘(D) FAILURE TO ELECT.—A border pa19 trol agent who fails to make a timely election 

20 under subparagraph (A) shall be deemed to 

21 have made an election to be assigned to the 

22 level 1 border patrol rate of pay under subpara23 graph (A)(i). 

24 ‘‘(E) SENSE OF CONGRESS.—It is the 

25 sense of Congress that U.S. Customs and BorVerDate Mar 15 2010 02:03 Nov 14, 2013 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1691.IS S1691

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1 der Protection should take such action as is 

2 necessary to ensure that not more than 10 per3 cent of the border patrol agents stationed at a 

4 location decline to be assigned to the level 1 

5 border patrol rate of pay or the level 2 border 

6 patrol rate of pay. 

7 ‘‘(2) LEVEL 1 BORDER PATROL RATE OF PAY.— 

8 For a border patrol agent who has in effect an elec9 tion under paragraph (1)(A)(i)— 

10 ‘‘(A) the border patrol agent shall be 

11 scheduled to work, for 5 days per week— 

12 ‘‘(i) 8 hours of regular time per day; 

13 and 

14 ‘‘(ii) 2 additional hours of scheduled 

15 overtime during each day the border patrol 

16 agent is scheduled to work under clause 

17 (i); 

18 ‘‘(B) for the hours of regular time work 

19 described in subparagraph (A)(i), the border 

20 patrol agent shall receive pay at the level 1 bor21 der patrol rate of pay; 

22 ‘‘(C) for the hours of regularly scheduled 

23 overtime work described in subparagraph 

24 (A)(ii), the border patrol agent shall not re25 ceive— 


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1 ‘‘(i) additional compensation under 

2 this section or any other provision of law; 

3 or 

4 ‘‘(ii) compensatory time off; 

5 ‘‘(D) any hours during which the border 

6 patrol agent is available to work during a work 

7 period shall be included in the hours of regular 

8 time or regularly scheduled overtime scheduled 

9 under subparagraph (A); 

10 ‘‘(E) shall receive compensatory time off or 

11 pay at the overtime hourly rate of pay for hours 

12 of work in excess of 100 hours during a work 

13 period, as determined in accordance with sec14 tion 5542(a)(7); and 

15 ‘‘(F) shall be charged leave in increments 

16 of 8 hours for 1 shift of leave, regardless of the 

17 length of the shift. 

18 ‘‘(3) LEVEL 2 BORDER PATROL RATE OF PAY.— 

19 For a border patrol agent who has in effect an elec20 tion under paragraph (1)(A)(ii)— 

21 ‘‘(A) the border patrol agent shall be 

22 scheduled to work, for 5 days per week— 

23 ‘‘(i) 8 hours of regular time per day; 

24 and 


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1 ‘‘(ii) 1 additional hour of scheduled 

2 overtime during each day the border patrol 

3 agent is scheduled to work under clause 

4 (i); 

5 ‘‘(B) for the hours of regular time work 

6 described in subparagraph (A)(i), the border 

7 patrol agent shall receive pay at the level 2 bor8 der patrol rate of pay; 

9 ‘‘(C) for the hours of regularly scheduled 

10 overtime work described in subparagraph 

11 (A)(ii), the border patrol agent shall not re12 ceive— 

13 ‘‘(i) additional compensation under 

14 this section or any other provision of law; 

15 or 

16 ‘‘(ii) compensatory time off; 

17 ‘‘(D) any hours during which the border 

18 patrol agent is available to work during a work 

19 period shall be included in the hours of regular 

20 time or regularly scheduled overtime scheduled 

21 under subparagraph (A); 

22 ‘‘(E) shall receive compensatory time off or 

23 pay at the overtime hourly rate of pay for hours 

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1 riod, as determined in accordance with section 

2 5542(a)(7); and 

3 ‘‘(F) shall be charged leave in increments 

4 of 8 hours for 1 shift of leave, regardless of the 

5 length of the shift. 

6 ‘‘(4) BASIC BORDER PATROL RATE OF PAY.— 

7 For a border patrol agent who has in effect an elec8 tion under paragraph (1)(A)(iii)— 

9 ‘‘(A) the border patrol agent shall be 

10 scheduled to work 8 hours of regular time per 

11 day and 5 days per week; 

12 ‘‘(B) any hours during which the border 

13 patrol agent is available to work during a work 

14 period shall be included in the hours of regular 

15 time scheduled under subparagraph (A); and 

16 ‘‘(C) the border patrol agent shall receive 

17 compensatory time off or pay at the overtime 

18 hourly rate of pay for hours of work in excess 

19 of 80 hours during a work period, as deter20 mined in accordance with section 5542(a)(7). 

21 ‘‘(c) ELIGIBILITY FOR OTHER PREMIUM PAY.—A 

22 border patrol agent— 

23 ‘‘(1) shall receive premium pay for night work 

24 in accordance with subsections (a) and (b) of section 

25 5545 and Sunday and holiday pay in accordance 


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1 with section 5546, without regard to the election of 

2 the border patrol agent under subsection (b)(1)(A), 

3 except that section 5546(d) shall not apply and eligi4 bility for pay for, and the rate of pay for, any over5 time work shall be determined in accordance with 

6 this section and section 5542(a)(7); and 

7 ‘‘(2) shall not be eligible for any other form of 

8 premium pay under this title, except as provided in 

9 section 5542(a)(7). 

10 ‘‘(d) TREATMENT AS BASIC PAY.—Any pay received 

11 at the level 1 border patrol rate of pay or the level 2 border 

12 patrol rate of pay or pay described in subsection (b)(3)(B) 

13 shall be treated as part of basic pay for— 

14 ‘‘(1) purposes of sections 5595(c), 8114(e), 

15 8331(3), and 8704(c); 

16 ‘‘(2) any other purpose that the Office of Per17 sonnel Management may by regulation prescribe; 

18 and 

19 ‘‘(3) any other purpose expressly provided for 

20 by law. 

21 ‘‘(e) AUTHORITY TO REQUIRE OVERTIME WORK.— 

22 Nothing in this section shall be construed to limit the au23 thority of U.S. Customs and Border Protection to require 

24 a border patrol agent to perform hours of overtime work 

25 in accordance with the needs of U.S. Customs and Border 


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1 Protection, including if needed in the event of a local or 

2 national emergency.’’. 

3 (c) OVERTIME WORK.—Section 5542(a) of title 5, 

4 United States Code, is amended by adding at the end the 

5 following: 

6 ‘‘(7)(A) In this paragraph, the term ‘border patrol 

7 agent’ has the meaning given that term in section 5550. 

8 ‘‘(B) Notwithstanding the matter preceding para9 graph (1) or paragraphs (1) and (2), for a border patrol 

10 agent who has in effect an election to be assigned to the 

11 level 1 border patrol rate of pay under section 

12 5550(b)(1)(A)(i)— 

13 ‘‘(i) except as provided in subparagraph (E), 

14 hours of work in excess of 100 hours during a 14- 

15 day biweekly pay period shall be overtime work; and 

16 ‘‘(ii) the border patrol agent— 

17 ‘‘(I) shall receive pay at the overtime hour18 ly rate of pay (as determined in accordance 

19 with paragraphs (1) and (2)) for hours of over20 time work that are officially ordered or ap21 proved in advance of the work assignment; and 

22 ‘‘(II) shall receive compensatory time off 

23 for any hours of overtime work that are not 

24 hours of overtime work described in subclause 

25 (I). 


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1 ‘‘(C) Notwithstanding the matter preceding para2 graph (1) or paragraphs (1) and (2), for a border patrol 

3 agent who has in effect an election to be eligible for the 

4 level 2 border patrol rate of pay under section 

5 5550(b)(1)(A)(ii)— 

6 ‘‘(i) except as provided in subparagraph (E), 

7 hours of work in excess of 90 hours during a 14-day 

8 biweekly pay period shall be overtime work; and 

9 ‘‘(ii) the border patrol agent— 

10 ‘‘(I) shall receive pay at the overtime hour11 ly rate of pay (as determined in accordance 

12 with paragraphs (1) and (2)) for hours of over13 time work that are officially ordered or ap14 proved in advance of the work assignment; and 

15 ‘‘(II) shall receive compensatory time off 

16 for any hours of overtime work that are not 

17 hours of overtime work described in subclause 

18 (I). 

19 ‘‘(D) Notwithstanding the matter preceding para20 graph (1) or paragraphs (1) and (2), for a border patrol 

21 agent who has in effect an election under section 

22 5550(b)(1)(A)(iii)— 

23 ‘‘(i) except as provided in subparagraph (E), 

24 hours of work in excess of 80 hours during a 14-day 

25 biweekly pay period shall be overtime work; and 


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1 ‘‘(ii) the border patrol agent— 

2 ‘‘(I) shall receive pay at the overtime hour3 ly rate of pay (as determined in accordance 

4 with paragraphs (1) and (2)) for hours of over5 time work that are officially ordered or ap6 proved in advance of the work assignment; and 

7 ‘‘(II) shall receive compensatory time off 

8 for any hours of overtime work that are not 

9 hours of overtime work described in subclause 

10 (I). 

11 ‘‘(E)(i) Except as provided in clause (ii), during a 

12 14-day biweekly pay period, a border patrol agent shall 

13 not perform and may not receive compensatory time off 

14 for more than 8 hours of overtime work. 

15 ‘‘(ii) U.S. Customs and Border Protection may, as 

16 it determines appropriate, waive the limitation under 

17 clause (i) for hours of overtime work, but such waiver 

18 must be approved in advance of any work being performed 

19 that would be subject to compensatory time under sub20 section (B)(ii)(II), (C)(ii)(II), or (D)(ii)(II). 

21 ‘‘(F) A border patrol agent— 

22 ‘‘(i) may not earn more than 240 hours of com23 pensatory time off during a year; and 


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1 ‘‘(ii) shall use any hours of compensatory time 

2 off not later than 1 year after the date on which the 

3 compensatory time off is accrued.’’. 

4 (d) TECHNICAL AND CONFORMING AMENDMENTS.— 

5 (1) Section 13(a) of the Fair Labor Standards 

6 Act of 1938 (29 U.S.C. 213(a)) is amended— 

7 (A) in paragraph (16), by striking ‘‘or’’ 

8 after the semicolon; 

9 (B) in paragraph (17), by striking the pe10 riod at the end and inserting ‘‘; or’’; and 

11 (C) by adding at the end the following: 

12 ‘‘(18) any employee who is a border patrol 

13 agent, as defined in section 5550(a) of title 5, 

14 United States Code.’’. 

15 (2) The table of sections for chapter 55 of title 

16 5, United States Code, is amended by inserting after 

17 the item relating to section 5549 the following: 

‘‘5550. Border patrol rate of pay.’’. 

Æ 


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