II 

Calendar No. 548 

113TH CONGRESS 

2D SESSION S. 1691 

[Report No. 113–248] 

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, Mr. MCCAIN, Ms. HEITKAMP, Ms. AYOTTE, and Mr. 

FLAKE) introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

AUGUST 26, 2014 

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

day, August 1), 2014, by Mr. CARPER, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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, 


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1 SECTION 1. SHORT TITLE. 

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

3 Pay Reform Act of 2013’’. 

4 SEC. 2. BORDER PATROL RATE OF PAY. 

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

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

7 Protection and ensure border patrol agents are suffi8 ciently ready to conduct necessary work and that 

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

10 hour work week based on the needs of the employing 

11 agency; and 

12 (2) to ensure U.S. Customs and Border Protec13 tion has the flexibility to cover shift changes and re14 tains the right to assign scheduled and unscheduled 

15 work for mission requirements and planning based 

16 on operational need. 

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

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

19 section 5549 the following: 

20 ‘‘§ 5550. Border patrol rate of pay 

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

22 ‘‘(1) the term ‘available to work’ means a bor23 der patrol agent is generally and reasonably acces24 sible by U.S. Customs and Border Protection to per25 form unscheduled duty based on the needs of U.S. 

26 Customs and Border Protection; 


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

2 individual who is performing functions included 

3 under position classification series 1896 (Border Pa4 trol Enforcement) of the Office of Personnel Man5 agement, or any successor thereto, including per6 forming covered border patrol activities; 

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

8 means a border patrol agent is— 

9 ‘‘(A) detecting and preventing illegal entry 

10 and smuggling of aliens, commercial goods, nar11 cotics, weapons, or contraband into the United 

12 States; 

13 ‘‘(B) arresting individuals suspected of 

14 conduct described in subparagraph (A); 

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

16 Customs and Border Protection; 

17 ‘‘(D) on approved annual, sick, or adminis18 trative leave; 

19 ‘‘(E) on ordered travel status; 

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

21 of section 7131; 

22 ‘‘(G) on excused absence with pay for relo23 cation purposes; 

24 ‘‘(H) on light duty due to injury or dis25 ability; 


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1 ‘‘(I) performing administrative duties or 

2 mission critical work assignments while main3 taining law enforcement authority; 

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

5 border patrol agent, which may not exceed 1 

6 hour per day; or 

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

8 activity described in subparagraphs (A) through 

9 (J) while temporarily away from the regular 

10 duty assignment of the border patrol agent; 

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

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

13 otherwise applicable hourly rate of basic pay of the 

14 applicable border patrol agent; 

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

16 means the hourly rate of pay equal to 1.125 times 

17 the otherwise applicable hourly rate of basic pay of 

18 the applicable border patrol agent; and 

19 ‘‘(6) the term ‘work period’ means a 14-day bi20 weekly pay period. 

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

22 ‘‘(1) VOLUNTARY ELECTION.— 

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

24 days before the first day of each year beginning 

25 after the date of enactment of this section, a 


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1 border patrol agent shall make an election 

2 whether the border patrol agent shall, for the 

3 following year— 

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

5 patrol rate of pay; 

6 ‘‘(ii) be assigned the level 2 border pa7 trol rate of pay; or 

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

9 1 border patrol rate of pay or the level 2 

10 border patrol rate of pay. 

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

12 Office of Personnel Management shall establish 

13 procedures for elections under subparagraph 

14 (A). 

15 ‘‘(C) INFORMATION REGARDING ELEC16 TION.—Not later than 60 days before the first 

17 day of each year beginning after the date of en18 actment of this section, U.S. Customs and Bor19 der Protection shall provide each border patrol 

20 agent with information regarding each type of 

21 election available under subparagraph (A) and 

22 how to make such an election. 

23 ‘‘(D) FAILURE TO ELECT.—A border pa24 trol agent who fails to make a timely election 

25 under subparagraph (A) shall be deemed to 


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1 have made an election to be assigned to the 

2 level 1 border patrol rate of pay under subpara3 graph (A)(i). 

4 ‘‘(E) SENSE OF CONGRESS.—It is the 

5 sense of Congress that U.S. Customs and Bor6 der Protection should take such action as is 

7 necessary to ensure that not more than 10 per8 cent of the border patrol agents stationed at a 

9 location decline to be assigned to the level 1 

10 border patrol rate of pay or the level 2 border 

11 patrol rate of pay. 

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

13 For a border patrol agent who has in effect an elec14 tion under paragraph (1)(A)(i)— 

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

16 scheduled to work, for 5 days per week— 

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

18 and 

19 ‘‘(ii) 2 additional hours of scheduled 

20 overtime during each day the border patrol 

21 agent is scheduled to work under clause 

22 (i); 

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

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


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1 patrol agent shall receive pay at the level 1 bor2 der patrol rate of pay; 

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

4 overtime work described in subparagraph 

5 (A)(ii), the border patrol agent shall not re6 ceive— 

7 ‘‘(i) additional compensation under 

8 this section or any other provision of law; 

9 or 

10 ‘‘(ii) compensatory time off; 

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

12 patrol agent is available to work during a work 

13 period shall be included in the hours of regular 

14 time or regularly scheduled overtime scheduled 

15 under subparagraph (A); 

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

17 pay at the overtime hourly rate of pay for hours 

18 of work in excess of 100 hours during a work 

19 period, as determined in accordance with sec20 tion 5542(a)(7); and 

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

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

23 length of the shift. 


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

2 For a border patrol agent who has in effect an elec3 tion under paragraph (1)(A)(ii)— 

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

5 scheduled to work, for 5 days per week— 

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

7 and 

8 ‘‘(ii) 1 additional hour of scheduled 

9 overtime during each day the border patrol 

10 agent is scheduled to work under clause 

11 (i); 

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

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

14 patrol agent shall receive pay at the level 2 bor15 der patrol rate of pay; 

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

17 overtime work described in subparagraph 

18 (A)(ii), the border patrol agent shall not re19 ceive— 

20 ‘‘(i) additional compensation under 

21 this section or any other provision of law; 

22 or 

23 ‘‘(ii) compensatory time off; 

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

25 patrol agent is available to work during a work 


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1 period shall be included in the hours of regular 

2 time or regularly scheduled overtime scheduled 

3 under subparagraph (A); 

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

5 pay at the overtime hourly rate of pay for hours 

6 of work in excess of 90 hours during a work pe7 riod, as determined in accordance with section 

8 5542(a)(7); and 

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

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

11 length of the shift. 

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

13 For a border patrol agent who has in effect an elec14 tion under paragraph (1)(A)(iii)— 

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

16 scheduled to work 8 hours of regular time per 

17 day and 5 days per week; 

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

19 patrol agent is available to work during a work 

20 period shall be included in the hours of regular 

21 time scheduled under subparagraph (A); and 

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

23 compensatory time off or pay at the overtime 

24 hourly rate of pay for hours of work in excess 


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1 of 80 hours during a work period, as deter2 mined in accordance with section 5542(a)(7). 

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

4 border patrol agent— 

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

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

7 5545 and Sunday and holiday pay in accordance 

8 with section 5546, without regard to the election of 

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

10 except that section 5546(d) shall not apply and eligi11 bility for pay for, and the rate of pay for, any over12 time work shall be determined in accordance with 

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

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

15 premium pay under this title, except as provided in 

16 section 5542(a)(7). 

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

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

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

20 shall be treated as part of basic pay for— 

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

22 8331(3), and 8704(c); 

23 ‘‘(2) any other purpose that the Office of Per24 sonnel Management may by regulation prescribe; 

25 and 


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

2 by law. 

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

4 Nothing in this section shall be construed to limit the au5 thority of U.S. Customs and Border Protection to require 

6 a border patrol agent to perform hours of overtime work 

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

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

9 national emergency.’’. 

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

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

12 following: 

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

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

15 ‘‘(B) Notwithstanding the matter preceding para16 graph (1) or paragraphs (1) and (2), for a border patrol 

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

18 level 1 border patrol rate of pay under section 

19 5550(b)(1)(A)(i)— 

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

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

22 day biweekly pay period shall be overtime work; and 

23 ‘‘(ii) the border patrol agent— 

24 ‘‘(I) shall receive pay at the overtime hour25 ly rate of pay (as determined in accordance 


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1 with paragraphs (1) and (2)) for hours of over2 time work that are officially ordered or ap3 proved in advance of the work assignment; and 

4 ‘‘(II) shall receive compensatory time off 

5 for any hours of overtime work that are not 

6 hours of overtime work described in subclause 

7 (I). 

8 ‘‘(C) 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 eligible for the 

11 level 2 border patrol rate of pay under section 

12 5550(b)(1)(A)(ii)— 

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

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

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

3 agent who has in effect an election under section 

4 5550(b)(1)(A)(iii)— 

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

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

7 biweekly pay period shall be overtime work; and 

8 ‘‘(ii) the border patrol agent— 

9 ‘‘(I) shall receive pay at the overtime hour10 ly rate of pay (as determined in accordance 

11 with paragraphs (1) and (2)) for hours of over12 time work that are officially ordered or ap13 proved in advance of the work assignment; and 

14 ‘‘(II) shall receive compensatory time off 

15 for any hours of overtime work that are not 

16 hours of overtime work described in subclause 

17 (I). 

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

19 14-day biweekly pay period, a border patrol agent shall 

20 not perform and may not receive compensatory time off 

21 for more than 8 hours of overtime work. 

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

23 it determines appropriate, waive the limitation under 

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

25 must be approved in advance of any work being performed 


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1 that would be subject to compensatory time under sub2 section (B)(ii)(II), (C)(ii)(II), or (D)(ii)(II). 

3 ‘‘(F) A border patrol agent— 

4 ‘‘(i) may not earn more than 240 hours of com5 pensatory time off during a year; and 

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

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

8 compensatory time off is accrued.’’. 

9 (d) TECHNICAL AND CONFORMING AMENDMENTS.— 

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

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

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

13 after the semicolon; 

14 (B) in paragraph (17), by striking the pe15 riod at the end and inserting ‘‘; or’’; and 

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

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

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

19 United States Code.’’. 

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

21 5, United States Code, is amended by inserting after 

22 the item relating to section 5549 the following: 

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

23 SECTION 1. SHORT TITLE. 

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

25 Pay Reform Act of 2014’’. 


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1 SEC. 2. BORDER PATROL RATE OF PAY. 

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

3 (1) to strengthen U.S. Customs and Border Pro4 tection and ensure that border patrol agents are suffi5 ciently ready to conduct necessary work and will per6 form overtime hours in excess of a 40-hour workweek 

7 based on the needs of U.S. Customs and Border Pro8 tection; and 

9 (2) to ensure U.S. Customs and Border Protec10 tion has the flexibility to cover shift changes and re11 tains the right to assign scheduled and unscheduled 

12 work for mission requirements and planning based on 

13 operational need. 

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

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

16 section 5549 the following: 

17 ‘‘§ 5550. Border patrol rate of pay 

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

19 ‘‘(1) the term ‘basic border patrol rate of pay’ 

20 means the hourly rate of basic pay of the applicable 

21 border patrol, as determined without regard to this 

22 section; 

23 ‘‘(2) the term ‘border patrol agent’ means an in24 dividual who is appointed to a position assigned to 

25 the Border Patrol Enforcement classification series 

26 1896 or any successor series, consistent with classiVerDate Mar 15 2010 00:59 Aug 27, 2014 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6203 E:\BILLS\S1691.RS S1691

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1 fication standards established by the Office of Per2 sonnel Management; 

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

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

5 otherwise applicable hourly rate of basic pay of the 

6 applicable border patrol agent; 

7 ‘‘(4) the term ‘level 2 border patrol rate of pay’ 

8 means the hourly rate of pay equal to 1.125 times the 

9 otherwise applicable hourly rate of basic pay of the 

10 applicable border patrol agent; and 

11 ‘‘(5) the term ‘work period’ means a 14-day bi12 weekly pay period. 

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

14 ‘‘(1) VOLUNTARY ELECTION.— 

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

16 before the first day of each year beginning after 

17 the date of enactment of this section, a border 

18 patrol agent shall make an election whether the 

19 border patrol agent shall, for that year, be as20 signed to— 

21 ‘‘(i) the level 1 border patrol rate of 

22 pay; 

23 ‘‘(ii) the level 2 border patrol rate of 

24 pay; or 


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1 ‘‘(iii) the basic border patrol rate of 

2 pay, with additional overtime assigned as 

3 needed by U.S. Customs and Border Protec4 tion. 

5 ‘‘(B) REGULATIONS.—The Director of the 

6 Office of Personnel Management shall promul7 gate regulations establishing procedures for elec8 tions under subparagraph (A). 

9 ‘‘(C) INFORMATION REGARDING ELEC10 TION.—Not later than 60 days before the first 

11 day of each year beginning after the date of en12 actment of this section, U.S. Customs and Bor13 der Protection shall provide each border patrol 

14 agent with information regarding each type of 

15 election available under subparagraph (A) and 

16 how to make such an election. 

17 ‘‘(D) ASSIGNMENT IN LIEU OF ELECTION.— 

18 Notwithstanding subparagraph (A)— 

19 ‘‘(i) a border patrol agent who fails to 

20 make a timely election under subparagraph 

21 (A) shall be assigned to the level 1 border 

22 patrol rate of pay; 

23 ‘‘(ii) a border patrol agent who is as24 signed a canine shall be assigned to the level 

25 1 border patrol rate of pay; 


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1 ‘‘(iii) if at any time U.S. Customs and 

2 Border Protection concludes that a border 

3 patrol agent is unable to perform overtime 

4 on a daily basis in accordance with this 

5 section, U.S. Customs and Border Protec6 tion shall assign the border patrol agent to 

7 the basic border patrol rate of pay until 

8 such time as U.S. Customs and Border Pro9 tection determines that the border patrol 

10 agent is able to perform scheduled overtime 

11 on a daily basis; 

12 ‘‘(iv) unless the analysis conducted 

13 under section 2(e) of the Border Patrol 

14 Agent Pay Reform Act of 2014 indicates 

15 that, in order to more adequately fulfill the 

16 operational requirements of U.S. Customs 

17 and Border Protection, such border patrol 

18 agents should be allowed to elect or be as19 signed to the level 1 border patrol rate of 

20 pay or the level 2 border patrol rate of pay, 

21 a border patrol agent shall be assigned to 

22 the basic border patrol rate of pay if the 

23 agent works— 

24 ‘‘(I) at U.S. Customs and Border 

25 Protection headquarters; 


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1 ‘‘(II) as a training instructor at a 

2 U.S. Customs and Border Protection 

3 training facility; 

4 ‘‘(III) in an administrative posi5 tion; or 

6 ‘‘(IV) as a fitness instructor; and 

7 ‘‘(v) a border patrol agent may be as8 signed to the level 1 border patrol rate of 

9 pay or the level 2 border patrol rate of pay 

10 in accordance with subparagraph (E). 

11 ‘‘(E) FLEXIBILITY.— 

12 ‘‘(i) IN GENERAL.—Except as provided 

13 in clauses (ii) and (iii), and notwith14 standing any other provision of law, U.S. 

15 Customs and Border Protection shall take 

16 such action as is necessary, including the 

17 unilateral assignment of border patrol 

18 agents to the level 1 border patrol rate of 

19 pay or the level 2 border patrol rate of pay, 

20 to ensure that not more than 10 percent of 

21 the border patrol agents stationed at a loca22 tion are assigned to the level 2 border patrol 

23 rate of pay or the basic border patrol rate 

24 of pay. 


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1 ‘‘(ii) WAIVER.—U.S. Customs and 

2 Border Protection may waive the limitation 

3 under clause (i) on the percent of border pa4 trol agents stationed at a location who are 

5 assigned to the level 2 border patrol rate of 

6 pay or the basic border patrol rate of pay 

7 if, based on the analysis conducted under 

8 section 2(e) of the Border Patrol Agent Pay 

9 Reform Act of 2014, U.S. Customs and Bor10 der Protection determines it may do so and 

11 adequately fulfill its operational require12 ments. 

13 ‘‘(iii) CERTAIN LOCATIONS.—Clause (i) 

14 shall not apply to border patrol agents 

15 working at the headquarters of U.S. Cus16 toms and Border Protection or a training 

17 location of U.S. Customs and Border Pro18 tection. 

19 ‘‘(F) CANINE CARE.—For a border patrol 

20 agent assigned to provide care for a canine and 

21 assigned to the level 1 border patrol rate of pay 

22 in accordance with subparagraph (D)(ii)— 

23 ‘‘(i) that rate of pay covers all such 

24 care; 


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1 ‘‘(ii) for the purposes of scheduled over2 time under paragraph (2)(A)(ii), such care 

3 shall be counted as 1 hour of scheduled over4 time on each regular workday without re5 gard to the actual duration of such care or 

6 whether such care occurs on the regular 

7 workday; and 

8 ‘‘(iii) no other pay shall be paid to the 

9 border patrol agent for such care. 

10 ‘‘(G) PAY ASSIGNMENT CONTINUITY.— 

11 ‘‘(i) IN GENERAL.—Not later than 1 

12 year after the date of enactment of the Bor13 der Patrol Agent Pay Reform Act of 2014, 

14 and in consultation with the Office of Per15 sonnel Management, U.S. Customs and Bor16 der Protection shall develop and implement 

17 a plan to ensure, to the greatest extent prac18 ticable, that the assignment of a border pa19 trol agent under this section during the 3 

20 years of service before the border patrol 

21 agent becomes eligible for immediate retire22 ment are consistent with the average border 

23 patrol rate of pay level to which the border 

24 patrol agent has been assigned during the 


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1 course of the career of the border patrol 

2 agent. 

3 ‘‘(ii) IMPLEMENTATION.—Notwith4 standing any other provision of law, U.S. 

5 Customs and Border Protection may take 

6 such action as is necessary, including the 

7 unilateral assignment of border patrol 

8 agents to the level 1 border patrol rate of 

9 pay, the level 2 border patrol rate of pay, 

10 or the basic border patrol rate of pay, to 

11 implement the plan developed under this 

12 subparagraph. 

13 ‘‘(iii) REPORTING.—U.S. Customs and 

14 Border Protection shall submit the plan de15 veloped under clause (i) to the appropriate 

16 committees of Congress. 

17 ‘‘(iv) GAO REVIEW.—Not later than 6 

18 months after U.S. Customs and Border Pro19 tection issues the plan required under clause 

20 (i), the Comptroller General of the United 

21 States shall submit to the appropriate com22 mittees of Congress a report on the effective23 ness of the plan in ensuring that border pa24 trol agents are not able to artificially en25 hance their retirement annuities. 


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1 ‘‘(v) DEFINITION.—In this subpara2 graph, the term ‘appropriate committees of 

3 Congress’ means— 

4 ‘‘(I) the Committee on Homeland 

5 Security and Governmental Affairs 

6 and the Committee on Appropriations 

7 of the Senate; and 

8 ‘‘(II) the Committee on Homeland 

9 Security, the Committee on Oversight 

10 and Government Reform, and the Com11 mittee on Appropriations of the House 

12 of Representatives. 

13 ‘‘(vi) RULE OF CONSTRUCTION.—Noth14 ing in this subparagraph shall be construed 

15 to limit the ability of U.S. Customs and 

16 Border Protection to assign border patrol 

17 agents to border patrol rates of pay as nec18 essary to meet operational requirements. 

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

20 For a border patrol agent who is assigned to the level 

21 1 border patrol rate of pay— 

22 ‘‘(A) the border patrol agent shall have a 

23 regular tour of duty consisting of 5 workdays per 

24 week with— 


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1 ‘‘(i) 8 hours of regular time per work2 day, which may be interrupted by an un3 paid off-duty meal break; and 

4 ‘‘(ii) 2 additional hours of scheduled 

5 overtime during each day the agent per6 forms work under clause (i); 

7 ‘‘(B) for paid hours of regular time de8 scribed in subparagraph (A)(i), the border patrol 

9 agent shall receive pay at the level 1 border pa10 trol rate of pay; 

11 ‘‘(C) compensation for the hours of regu12 larly scheduled overtime work described in sub13 paragraph (A)(ii) is provided indirectly through 

14 the 25 percent supplement within the level 1 bor15 der patrol rate of pay, and the border patrol 

16 agent may not receive for such hours— 

17 ‘‘(i) any compensation in addition to 

18 the compensation under subparagraph (B) 

19 under this section or any other provision of 

20 law; or 

21 ‘‘(ii) any compensatory time off; 

22 ‘‘(D) the border patrol agent shall receive 

23 compensatory time off or pay at the overtime 

24 hourly rate of pay for hours of work in excess of 


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1 100 hours during a work period, as determined 

2 in accordance with section 5542(g); 

3 ‘‘(E) the border patrol agent shall be 

4 charged corresponding amounts of paid leave, 

5 compensatory time off, or other paid time off for 

6 each hour (or part thereof) the agent is absent 

7 from work during regular time (except that full 

8 days off for military leave shall be charged when 

9 required); 

10 ‘‘(F) if the border patrol agent is absent 

11 during scheduled overtime described in subpara12 graph (A)(ii)— 

13 ‘‘(i) the border patrol agent shall ac14 crue an obligation to perform other overtime 

15 work for each hour (or part thereof) the bor16 der patrol agency is absent; and 

17 ‘‘(ii) any overtime work applied to18 ward the obligation under clause (i) shall 

19 not be credited as overtime work under any 

20 other provision of law; and 

21 ‘‘(G) for the purposes of advanced training, 

22 the border patrol agent— 

23 ‘‘(i) shall be paid at the level 1 border 

24 patrol rate of pay for the first 60 days of 

25 advanced training in a calendar year; and 


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1 ‘‘(ii) for any advanced training in ad2 dition to the advanced training described in 

3 clause (i), shall be paid at the basic border 

4 patrol rate of pay. 

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

6 For a border patrol agent who is assigned to the level 

7 2 border patrol rate of pay— 

8 ‘‘(A) the border patrol agent shall have a 

9 regular tour of duty consisting of 5 workdays per 

10 week with— 

11 ‘‘(i) 8 hours of regular time per work12 day, which may be interrupted by an un13 paid off-duty meal break; and 

14 ‘‘(ii) 1 additional hour of scheduled 

15 overtime during each day the agent per16 forms work under clause (i); 

17 ‘‘(B) for paid hours of regular time de18 scribed in subparagraph (A)(i), the border patrol 

19 agent shall receive pay at the level 2 border pa20 trol rate of pay; 

21 ‘‘(C) compensation for the hours of regu22 larly scheduled overtime work described in sub23 paragraph (A)(ii) is provided indirectly through 

24 the 12.5 percent supplement within the level 2 


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1 border patrol rate of pay, and the border patrol 

2 agent may not receive for such hours— 

3 ‘‘(i) any compensation in addition to 

4 the compensation under subparagraph (B) 

5 under this section or any other provision of 

6 law; or 

7 ‘‘(ii) any compensatory time off; 

8 ‘‘(D) the border patrol agent shall receive 

9 compensatory time off or pay at the overtime 

10 hourly rate of pay for hours of work in excess of 

11 90 hours during a work period, as determined in 

12 accordance with section 5542(g); 

13 ‘‘(E) the border patrol agent shall be 

14 charged corresponding amounts of paid leave, 

15 compensatory time off, or other paid time off for 

16 each hour (or part thereof) the agent is excused 

17 from work during regular time (except that full 

18 days off for military leave shall be charged when 

19 required); 

20 ‘‘(F) if the border patrol agent is absent 

21 during scheduled overtime described in subpara22 graph (A)(ii)— 

23 ‘‘(i) the border patrol agent shall ac24 crue an obligation to perform other overtime 


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1 work for each hour (or part thereof) the bor2 der patrol agency is absent; and 

3 ‘‘(ii) any overtime work applied to4 ward the obligation under clause (i) shall 

5 not be credited as overtime work under any 

6 other provision of law; and 

7 ‘‘(G) for the purposes of advanced training, 

8 the border patrol agent— 

9 ‘‘(i) shall be paid at the level 2 border 

10 patrol rate of pay for the first 60 days of 

11 advanced training in a calendar year; and 

12 ‘‘(ii) for any advanced training in ad13 dition to the advanced training described in 

14 clause (i), shall be paid at the basic border 

15 patrol rate of pay. 

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

17 a border patrol agent who is assigned to the basic bor18 der patrol rate of pay— 

19 ‘‘(A) the border patrol agent shall have a 

20 regular tour of duty consisting of 5 workdays per 

21 week with 8 hours of regular time per workday; 

22 and 

23 ‘‘(B) the border patrol agent shall receive 

24 compensatory time off or pay at the overtime 

25 hourly rate of pay for hours of work in excess of 


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1 80 hours during a work period, as determined in 

2 accordance with section 5542(g). 

3 ‘‘(c) ELIGIBILITY FOR OTHER PREMIUM PAY.—A bor4 der patrol agent— 

5 ‘‘(1) shall receive premium pay for nightwork in 

6 accordance with subsections (a) and (b) of section 

7 5545 and Sunday and holiday pay in accordance 

8 with section 5546, without regard to the rate of pay 

9 to which the border patrol agent is assigned under 

10 this section, except that— 

11 ‘‘(A) no premium pay for night, Sunday, or 

12 holiday work shall be provided for hours of regu13 larly scheduled overtime work described in para14 graph (2)(A)(ii) or (3)(A)(ii) of subsection (b), 

15 consistent with the requirements of paragraph 

16 (2)(C) or (3)(C) of subsection (b); and 

17 ‘‘(B) section 5546(d) shall not apply and 

18 instead eligibility for pay for, and the rate of 

19 pay for, any overtime work on a Sunday or a 

20 designated holiday shall be determined in ac21 cordance with this section and section 5542(g); 

22 ‘‘(2) except as provided in paragraph (3) or sec23 tion 5542(g), shall not be eligible for any other form 

24 of premium pay under this title; and 


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1 ‘‘(3) shall be eligible for hazardous duty pay in 

2 accordance with section 5545(d). 

3 ‘‘(d) TREATMENT AS BASIC PAY.—Any pay in addi4 tion to the basic border patrol rate of pay for a border pa5 trol agent resulting from application of the level 1 border 

6 patrol rate of pay or the level 2 border patrol rate of pay— 

7 ‘‘(1) subject to paragraph (2), shall be treated as 

8 part of basic pay solely for— 

9 ‘‘(A) purposes of sections 5595(c), 8114(e), 

10 8331(3)(I), and 8704(c); 

11 ‘‘(B) any other purpose that the Director of 

12 the Office of Personnel Management may by reg13 ulation prescribe; and 

14 ‘‘(C) any other purpose expressly provided 

15 for by law; and 

16 ‘‘(2) shall not be treated as part of basic pay for 

17 the purposes of calculating overtime pay, night pay, 

18 Sunday pay, or holiday pay under section 5542, 

19 5545, or 5546. 

20 ‘‘(e) TRAVEL TIME.—Travel time to and from home 

21 and duty station by a border patrol agent shall not be con22 sidered hours of work under any provision of law. 

23 ‘‘(f) LEAVE WITHOUT PAY AND SUBSTITUTION OF

24 HOURS.— 

25 ‘‘(1) REGULAR TIME.— 


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1 ‘‘(A) IN GENERAL.—For a period of leave 

2 without pay during the regular time of a border 

3 patrol agent (as described in paragraph 

4 (2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b)) 

5 within a work period, an equal period of work 

6 outside the regular time of the border patrol 

7 agent, but in the same work period— 

8 ‘‘(i) shall be substituted and paid for 

9 at the rate applicable for the regular time; 

10 and 

11 ‘‘(ii) shall not be credited as overtime 

12 hours for any purpose. 

13 ‘‘(B) PRIORITY FOR SAME DAY WORK.—In 

14 substituting hours of work under subparagraph 

15 (A), work performed on the same day as the pe16 riod of leave without pay shall be substituted 

17 first. 

18 ‘‘(C) PRIORITY FOR REGULAR TIME SUBSTI19 TUTION.—Hours of work shall be substituted for 

20 regular time work under this paragraph before 

21 being substituted for scheduled overtime under 

22 paragraphs (2), (3), and (4). 

23 ‘‘(2) OVERTIME WORK.— 

24 ‘‘(A) IN GENERAL.—For a period of absence 

25 during scheduled overtime (as described in paraVerDate Mar 15 2010 00:59 Aug 27, 2014 Jkt 039200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6203 E:\BILLS\S1691.RS S1691

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1 graph (2)(F) or (3)(F) of subsection (b)) within 

2 a work period, an equal period of additional 

3 work in the same work period— 

4 ‘‘(i) shall be substituted and credited 

5 as scheduled overtime; and 

6 ‘‘(ii) shall not be credited as overtime 

7 hours under any other provision of law. 

8 ‘‘(B) PRIORITY FOR SAME DAY WORK.—In 

9 substituting hours of work under subparagraph 

10 (A), work performed on the same day as the pe11 riod of absence shall be substituted first. 

12 ‘‘(3) APPLICATION OF COMPENSATORY TIME.—If 

13 a border patrol agent does not have sufficient addi14 tional work in a work period to substitute for all pe15 riods of absence during scheduled overtime (as de16 scribed in paragraph (2)(F) or (3)(F) of subsection 

17 (b)) within that work period, any accrued compen18 satory time off under section 5542(g) shall be applied 

19 to satisfy the hours obligation. 

20 ‘‘(4) INSUFFICIENT HOURS.—If a border patrol 

21 agent has a remaining hours obligation of scheduled 

22 overtime after applying paragraphs (2) and (3), any 

23 additional work in subsequent work periods that 

24 would otherwise be credited under section 5542(g) 


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1 shall be applied towards the hours obligation until 

2 that obligation is satisfied. 

3 ‘‘(g) AUTHORITY TO REQUIRE OVERTIME WORK.— 

4 Nothing in this section shall be construed to limit the au5 thority of U.S. Customs and Border Protection to require 

6 a border patrol agent to perform hours of overtime work 

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

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

9 national emergency.’’. 

10 (c) OVERTIME WORK.— 

11 (1) IN GENERAL.—Section 5542 of title 5, 

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

13 the following: 

14 ‘‘(g) In applying subsection (a) with respect to a bor15 der patrol agent covered by section 5550, the following rules 

16 apply: 

17 ‘‘(1) Notwithstanding the matter preceding para18 graph (1) in subsection (a), for a border patrol agent 

19 who is assigned to the level 1 border patrol rate of 

20 pay under section 5550— 

21 ‘‘(A) hours of work in excess of 100 hours 

22 during a 14-day biweekly pay period shall be 

23 overtime work; and 

24 ‘‘(B) the border patrol agent— 


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1 ‘‘(i) shall receive pay at the overtime 

2 hourly rate of pay (as determined in ac3 cordance with paragraphs (1) and (2) of 

4 subsection (a)) for hours of overtime work 

5 that are officially ordered or approved in 

6 advance of the workweek; and 

7 ‘‘(ii) except as provided in paragraphs 

8 (4) and (5), shall receive compensatory time 

9 off for an equal amount of time spent per10 forming overtime work that is not overtime 

11 work described in clause (i). 

12 ‘‘(2) Notwithstanding the matter preceding para13 graph (1) in subsection (a), for a border patrol agent 

14 who is assigned to the level 2 border patrol rate of 

15 pay under section 5550— 

16 ‘‘(A) hours of work in excess of 90 hours 

17 during a 14-day biweekly pay period shall be 

18 overtime work; and 

19 ‘‘(B) the border patrol agent— 

20 ‘‘(i) shall receive pay at the overtime 

21 hourly rate of pay (as determined in ac22 cordance with paragraphs (1) and (2) of 

23 subsection (a)) for hours of overtime work 

24 that are officially ordered or approved in 

25 advance of the workweek; and 


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1 ‘‘(ii) except as provided in paragraphs 

2 (4) and (5), shall receive compensatory time 

3 off for an equal amount of time spent per4 forming overtime work that is not overtime 

5 work described in clause (i). 

6 ‘‘(3) Notwithstanding the matter preceding para7 graph (1) in subsection (a), for a border patrol agent 

8 who is assigned to the basic border patrol rate of pay 

9 under section 5550— 

10 ‘‘(A) hours of work in excess of 80 hours 

11 during a 14-day biweekly pay period shall be 

12 overtime work; and 

13 ‘‘(B) the border patrol agent— 

14 ‘‘(i) shall receive pay at the overtime 

15 hourly rate of pay (as determined in ac16 cordance with paragraphs (1) and (2) of 

17 subsection (a)) for hours of overtime work 

18 that are officially ordered or approved in 

19 advance of the workweek; and 

20 ‘‘(ii) except as provided in paragraphs 

21 (4) and (5), shall receive compensatory time 

22 off for an equal amount of time spent per23 forming overtime work that is not overtime 

24 work described in clause (i). 


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1 ‘‘(4)(A) Except as provided in subparagraph 

2 (B), during a 14-day biweekly pay period, a border 

3 patrol agent may not earn compensatory time off for 

4 more than 10 hours of overtime work. 

5 ‘‘(B) U.S. Customs and Border Protection may, 

6 as it determines appropriate, waive the limitation 

7 under subparagraph (A) for an individual border pa8 trol agent for hours of irregular or occasional over9 time work, but such waiver must be approved in writ10 ing in advance of the performance of any such work 

11 for which compensatory time off is earned under 

12 paragraph (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a 

13 waiver request by a border patrol agent is denied, the 

14 border patrol agent may not be ordered to perform the 

15 associated overtime work. 

16 ‘‘(5) A border patrol agent— 

17 ‘‘(A) may not earn more than 240 hours of 

18 compensatory time off during a leave year; 

19 ‘‘(B) shall use any hours of compensatory 

20 time off not later than the end of the 26th pay 

21 period after the pay period during which the 

22 compensatory time off was earned; 

23 ‘‘(C) shall be required to use 1 hour of com24 pensatory time off for each hour of regular time 

25 not worked for which the border patrol agent is 


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1 not on paid leave or other paid time off or does 

2 not substitute time in accordance with section 

3 5550(f); 

4 ‘‘(D) shall forfeit any compensatory time off 

5 not used in accordance with this paragraph and, 

6 regardless of circumstances, shall not be entitled 

7 to any cash value for compensatory time earned 

8 under section 5550; 

9 ‘‘(E) shall not receive credit towards the 

10 computation of the annuity of the border patrol 

11 agent for compensatory time, whether used or 

12 not; and 

13 ‘‘(F) shall not be credited with compen14 satory time off if the value of such time off would 

15 cause the aggregate premium pay of the border 

16 patrol agent to exceed the limitation established 

17 under section 5547 in the period in which it was 

18 earned.’’. 

19 (2) MINIMIZATION OF OVERTIME.—U.S. Customs 

20 and Border Protection shall, to the maximum extent 

21 practicable, avoid the use of scheduled overtime work 

22 by border patrol agents. 

23 (d) RETIREMENT.—Section 8331(3) of title 5, United 

24 States Code, is amended— 

25 (1) in subparagraph (G), by striking ‘‘and’’; 


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1 (2) in subparagraph (H), by inserting ‘‘and’’ 

2 after the semicolon; 

3 (3) by inserting a new subparagraph after sub4 paragraph (H) as follows: 

5 ‘‘(I) with respect to a border pa6 trol agent, the amount of supplemental 

7 pay received through application of the 

8 level 1 border patrol rate of pay or the 

9 level 2 border patrol rate of pay for 

10 scheduled overtime within the regular 

11 tour of duty of the border patrol agent 

12 as provided in section 5550;’’; and 

13 (4) in the undesignated matter following sub14 paragraph (H), by striking ‘‘subparagraphs (B) 

15 through (H)’’ and inserting ‘‘subparagraphs (B) 

16 through (I)’’. 

17 (e) COMPREHENSIVE STAFFING ANALYSIS.— 

18 (1) IN GENERAL.—Not later than 1 year after 

19 the date of enactment of this Act, U.S. Customs and 

20 Border Protection shall conduct a comprehensive 

21 analysis, and submit to the Comptroller General of 

22 the United States a report, that— 

23 (A) examines the staffing requirements for 

24 U.S. Border Patrol to most effectively meet its 


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1 operational requirements at each Border Patrol 

2 duty station; 

3 (B) estimates the cost of the staffing require4 ments at each Border Patrol duty station; and 

5 (C) includes— 

6 (i) a position-by-position review at 

7 each Border Patrol station to determine— 

8 (I) the duties assigned to each po9 sition; 

10 (II) how the duties relate to the 

11 operational requirements of U.S. Bor12 der Patrol; and 

13 (III) the number of hours border 

14 patrol agents in that position would 

15 need to work each pay period to meet 

16 the operational requirements of U.S. 

17 Border Patrol; 

18 (ii) the metrics used to determine the 

19 number of hours of work performed at each 

20 Border Patrol station, broken down by the 

21 type of hours worked; 

22 (iii) a cost analysis of the most recent 

23 full fiscal year by the type of full-time 

24 equivalent hours worked; 


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1 (iv) a cost estimate by the type of full2 time equivalent hours expected to be worked 

3 during the first full fiscal year after the 

4 date of enactment of this Act; and 

5 (v) an analysis that compares the cost 

6 of assigning the full-time equivalent hours 

7 needed to meet the operational requirements 

8 of U.S. Border Patrol to existing border pa9 trol agents through higher rates of pay 

10 versus recruiting, hiring, training, and de11 ploying additional border patrol agents. 

12 (2) INDEPENDENT VALIDATOR.—Not later than 

13 90 days after the date on which the Comptroller Gen14 eral receives the report under paragraph (1), the 

15 Comptroller General shall submit to the appropriate 

16 committees of Congress a report that— 

17 (A) examines the methodology used by U.S. 

18 Customs and Border Protection to carry out the 

19 analysis; and 

20 (B) indicates whether the Comptroller Gen21 eral concurs with the findings in the report 

22 under paragraph (1). 

23 (3) DEFINITION.—In this subsection, the term 

24 ‘‘appropriate committees of Congress’’ means— 


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1 (A) the Committee on Homeland Security 

2 and Governmental Affairs and the Committee on 

3 Appropriations of the Senate; and 

4 (B) the Committee on Oversight and Gov5 ernment Reform and the Committee on Appro6 priations of the House of Representatives. 

7 (f) RULES OF CONSTRUCTION.—Nothing in this sec8 tion or the amendments made by this section shall be con9 strued to— 

10 (1) limit the right of U.S. Customs and Border 

11 Protection to assign both scheduled and unscheduled 

12 work to a border patrol agent based on the needs of 

13 U.S. Customs and Border Protection in excess of the 

14 hours of work normally applicable under the election 

15 of the border patrol agent, regardless of what the bor16 der patrol agent might otherwise have elected; 

17 (2) require compensation of a border patrol 

18 agent other than for hours during which the border 

19 patrol agent is actually performing work or using ap20 proved paid leave or other paid time off; or 

21 (3) exempt a border patrol agent from any limi22 tations on pay, earnings, or compensation, including 

23 the limitations under section 5547 of title 5, United 

24 States Code. 

25 (g) TECHNICAL AND CONFORMING AMENDMENTS.— 


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1 (1) Section 5547 of title 5, United States Code 

2 is amended by— 

3 (A) in subsection (a), in the matter pre4 ceding paragraph (1)— 

5 (i) by striking, ‘‘and’’ before ‘‘5546’’; 

6 and 

7 (ii) by inserting ‘‘, and 5550’’ after 

8 ‘‘5546 (a) and (b)’’; and 

9 (B) by adding at the end the following: 

10 ‘‘(e) Any supplemental pay resulting from receipt of 

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

12 patrol rate of pay under section 5550 shall be considered 

13 premium pay in applying this section.’’. 

14 (2) Section 13(a) of the Fair Labor Standards 

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

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

17 after the semicolon; 

18 (B) in paragraph (17), by striking the pe19 riod at the end and inserting ‘‘; or’’; and 

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

21 ‘‘(18) any employee who is a border patrol agent, 

22 as defined in section 5550(a) of title 5, United States 

23 Code.’’. 


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1 (3) The table of sections for chapter 55 of title 

2 5, United States Code, is amended by inserting after 

3 the item relating to section 5549 the following: 

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

4 (h) REGULATIONS.—The Director of the Office of Per5 sonnel Management shall promulgate regulations to carry 

6 out this Act and the amendments made by this Act. 


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Calendar No. 548 

113TH CONGRESS 

2D SESSION S. 1691 

[Report No. 113–248] 

A BILL 

To amend title 5, United States Code, to improve 

patrol agents. provide for reforms and rates of pay for border the security of the United States border and to 

AUGUST 26, 2014 

Reported with an amendment 


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