I 

116TH CONGRESS 

1ST SESSION H. R. 1392 

To amend title 5, United States Code, to modify the authority for pay 

and work schedules of border patrol agents, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 27, 2019 

Mr. HURD of Texas (for himself, Ms. TORRES SMALL of New Mexico, and Mr. 

CUELLAR) introduced the following bill; which was referred to the Committee on Oversight and Reform 

A BILL 

To amend title 5, United States Code, to modify the authority for pay and work schedules of border patrol agents, 

and for other purposes. 

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 Amendments Act of 2019’’. 

6 SEC. 2. AMENDMENTS TO THE BORDER PATROL AGENT PAY 

7 REFORM ACT OF 2014. 

8 (a) BORDER PATROL AGENT PAY.—Section 5550 of 

9 title 5, United States Code, is amended— 


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1 (1) in subsection (a)(1), by inserting ‘‘agent’’ 

2 after ‘‘applicable border patrol’’; 

3 (2) in subsection (b)(1)— 

4 (A) in subparagraph (A), by striking ‘‘Not 

5 later than 30 days before the first day of each 

6 year beginning after the date of enactment of 

7 this section, a border patrol agent shall make 

8 an election whether the border patrol agent 

9 shall, for that year, be assigned to’’ and insert10 ing ‘‘Not later than December 1 of each year, 

11 a border patrol agent shall make an election 

12 whether the border patrol agent shall, for the 

13 next annual period beginning on the first day of 

14 the first pay period that commences on or after 

15 January 1, be assigned to’’; 

16 (B) in subparagraph (C), by striking ‘‘Not 

17 later than 60 days before the first day of each 

18 year beginning after the date of enactment of 

19 this section’’ and inserting in its place ‘‘Not 

20 later than November 1 of each year’’; 

21 (C) in subparagraph (D)— 

22 (i) by amending clause (iv) to read as 

23 follows: 

24 ‘‘(iv) a border patrol agent shall be 

25 assigned a basic border patrol rate of pay 


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1 during the period of initial training (in2 cluding initial orientation sessions, basic 

3 training, and other preparatory activities) 

4 prior to the agent’s first regular work as5 signment; and’’; and 

6 (ii) in clause (v), by striking ‘‘or the 

7 level 2 border patrol rate of pay’’; 

8 (D) in subparagraph (E)— 

9 (i) in clause (i), by striking ‘‘or the 

10 level 2 border patrol rate of pay’’; 

11 (ii) in clause (ii), by striking ‘‘the 

12 analysis conducted under section 2(e) of 

13 the Border Patrol Agent Pay Reform Act 

14 of 2014’’ and inserting in its place ‘‘a writ15 ten staffing analysis’’; and 

16 (iii) by adding at the end the fol17 lowing: 

18 ‘‘(iv) EXCLUSION OF CERTAIN EM19 PLOYEES.—In applying any percentage 

20 limit under clause (i) or (ii) to a location 

21 population, U.S. Customs and Border Pro22 tection shall exclude from such population 

23 any border patrol agent who is assigned a 

24 basic border patrol rate of pay under sub25 paragraph (D)(iii) or (D)(iv) or who would 


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1 reach the premium pay cap under section 

2 5547 if assigned a level 1 border patrol 

3 rate of pay. 

4 ‘‘(v) APPLICATION FREQUENCY.—The 

5 10 percent limit under clause (i) or an al6 ternative percentage limit under a waiver 

7 under clause (ii) shall be applied at the be8 ginning of the first pay period beginning 

9 on or after January 1 each year.’’; and 

10 (E) by striking subparagraph (G); 

11 (3) in subsection (b)(2)— 

12 (A) by amending subparagraph (C)(i) to 

13 read as follows: 

14 ‘‘(i) any compensation under this sec15 tion or any other provision of law in addi16 tion to the compensation provided under 

17 subparagraph (B); or’’; 

18 (B) in subparagraph (E)— 

19 (i) by striking ‘‘paid leave’’ and in20 serting ‘‘leave’’; and 

21 (ii) by striking ‘‘absent from work’’ 

22 and inserting ‘‘excused from work’’; 

23 (C) in subparagraph (F)(ii), by striking 

24 ‘‘and’’; 


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1 (D) by amending subparagraph (G) to 

2 read as follows: 

3 ‘‘(G) if the border patrol agent participates 

4 in a full day of advanced training but does not 

5 perform the entire required amount of sched6 uled overtime work under subparagraph (A)(ii) 

7 on that day, the border patrol agent shall be 

8 deemed to have performed scheduled overtime 

9 work during nonwork periods to the extent nec10 essary to reach the required amount, but such 

11 deemed credit may be applied to no more than 

12 180 hours in a calendar year; otherwise, the 

13 agent shall accrue a debt of hours for scheduled 

14 overtime not worked on such a day; and’’; and 

15 (E) by adding at the end the following: 

16 ‘‘(H) a border patrol agent may choose to 

17 reduce any debt of obligated overtime hours 

18 that the agent has incurred by applying any ac19 crued compensatory time off for travel pursuant 

20 to section 5550b, and such compensatory time 

21 off for travel may be applied towards such debt 

22 only after other forms of overtime or earned 

23 compensatory time credited to the border patrol 

24 agent have been exhausted.’’; 

25 (4) in subsection (b)(3)— 


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1 (A) by amending subparagraph (C)(i) to 

2 read as follows: 

3 ‘‘(i) any compensation under this sec4 tion or any other provision of law in addi5 tion to the compensation provided under 

6 subparagraph (B); or’’; 

7 (B) in subparagraph (E), by striking ‘‘paid 

8 leave’’ and inserting ‘‘leave’’; 

9 (C) in subparagraph (F)(ii), by striking 

10 ‘‘and’’; 

11 (D) by amending subparagraph (G) to 

12 read as follows: 

13 ‘‘(G) if the border patrol agent participates 

14 in a full day of advanced training but does not 

15 perform the entire required amount of sched16 uled overtime work under subparagraph (A)(ii) 

17 on that day, the border patrol agent shall be 

18 deemed to have performed scheduled overtime 

19 work during nonwork periods to the extent nec20 essary to reach the required amount, but such 

21 deemed credit may be applied to no more than 

22 90 hours in a calendar year; otherwise, the 

23 agent shall accrue a debt of hours for scheduled 

24 overtime not worked on such a day; and’’; and 

25 (E) by adding at the end the following: 


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1 ‘‘(H) a border patrol agent may choose to 

2 reduce any debt of obligated overtime hours 

3 that the agent has incurred by applying any ac4 crued compensatory time off for travel pursuant 

5 to section 5550b; such compensatory time off 

6 for travel may be applied towards such debt 

7 only after other forms of overtime or earned 

8 compensatory time credited to the border patrol 

9 agent have been exhausted.’’; 

10 (5) by amending subsection (d) to read as fol11 lows: 

12 ‘‘(d) TREATMENT AS BASIC PAY.— 

13 ‘‘(1) IN GENERAL.—Any overtime supplement 

14 in addition to the basic border patrol rate of pay for 

15 a border patrol agent resulting from application of 

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

17 border patrol rate of pay shall be treated as part of 

18 basic pay only— 

19 ‘‘(A) except as otherwise provided in para20 graph (3), for purposes of the definitions in sec21 tion 8331(3) and 8401(4) and the provisions in 

22 chapters 83 and 84 that rely on those defini23 tions (consistent with section 8331(3)(I)); 


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1 ‘‘(B) except as otherwise provided in para2 graph (3), for purposes of sections 5595(c) and 

3 8704(c); 

4 ‘‘(C) for the purpose of section 8114(e); 

5 and 

6 ‘‘(D) subject to paragraph (2) and any 

7 limitation established under paragraph (3), any 

8 other purpose that the Director of the Office of 

9 Personnel Management may by regulation pre10 scribe. 

11 ‘‘(2) EXCLUSIONS.—The overtime supplement 

12 described in paragraph (1) shall not be treated as 

13 part of basic pay for purposes not covered by that 

14 paragraph, including the purposes of calculating— 

15 ‘‘(A) overtime pay, night pay, Sunday pay, 

16 or holiday pay under section 5542, 5545, or 

17 5546; 

18 ‘‘(B) locality-based comparability payments 

19 under section 5304 or special rate supplements 

20 under section 5305; or 

21 ‘‘(C) cost-of-living allowances in nonforeign 

22 areas under section 5941. 

23 ‘‘(3) LIMITATIONS.— 

24 ‘‘(A) IN GENERAL.—During the control pe25 riod described in subparagraph (B), the amount 


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1 of the overtime supplement that is considered 

2 basic pay under paragraphs (1)(A) and (1)(B) 

3 may not exceed the amount derived by multi4 plying the border patrol agent’s basic border 

5 patrol rate of pay by the percentage rep6 resenting the agent’s career average of assigned 

7 overtime supplement percentages (including 0 

8 percent for periods of time during which no 

9 overtime supplement was payable). That career 

10 average percentage is computed without regard 

11 to the effect of the limitation on premium pay 

12 under section 5547, but the premium pay limi13 tation remains applicable in determining the 

14 dollar amount of any overtime supplement com15 puted using the career average percentage. 

16 ‘‘(B) CONTROL PERIOD.—For the purposes 

17 of applying subparagraph (A), the control pe18 riod described in this subparagraph is the pe19 riod that begins 3 years before the date a bor20 der patrol agent will meet age and service re21 quirements associated with entitlement to an 

22 immediate annuity and continues throughout 

23 the remainder of the individual’s career as a 

24 border patrol agent. 


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1 ‘‘(C) ASSIGNED OVERTIME SUPPLEMENT

2 PERCENTAGES.—For the purpose of applying 

3 subparagraph (A), a border patrol agent’s ini4 tial career average of assigned overtime supple5 ment percentages is the average for the border 

6 patrol agent’s career (excluding any period of 

7 initial training prior to the agent’s first regular 

8 work assignment) prior to the beginning of the 

9 control period described in subparagraph (B). 

10 During such control period, the career average 

11 shall be recomputed at the end of each annual 

12 period (as described in subsection (b)(1)(A)). In 

13 computing such career average, any periods of 

14 service as a border patrol agent prior to the 

15 first day of the first pay period beginning on or 

16 after January 1, 2016, shall be included, and 

17 the agent’s assigned overtime supplement dur18 ing such periods shall be deemed to be 25 per19 cent. 

20 ‘‘(4) ANNUAL LEAVE PAYMENT.—For the pur21 pose of computing an agent’s lump-sum annual leave 

22 payment under section 5551 or 5552, the pay the 

23 agent is projected to receive shall include a deemed 

24 overtime supplement derived under this paragraph. 

25 Such overtime supplement shall be based on the 


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1 lower of the agent’s actual overtime supplement per2 centage in effect at separation or the average per3 centage of the agent’s overtime supplement over the 

4 26 full biweekly pay periods immediately preceding 

5 that separation, and shall not exceed the amount 

6 that is or would be payable under the premium pay 

7 limitation in section 5547.’’; 

8 (6) in subsection (f)— 

9 (A) in the heading of such subsection, by 

10 striking ‘‘AND SUBSTITUTION OF HOURS’’ and 

11 inserting ‘‘DURING REGULAR TIME; ABSENCES

12 DURING SCHEDULED OVERTIME’’; and 

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

14 ‘‘(5) APPLICATION.— 

15 ‘‘(A) LIMITATION ON SUBSTITUTION.— 

16 Notwithstanding paragraph (1), scheduled over17 time (as described in paragraph (2)(A)(ii) or 

18 (3)(A)(ii) of subsection (b)) may not be sub19 stituted for leave without pay on a day when a 

20 border patrol agent has a full day of leave with21 out pay. 

22 ‘‘(B) LEAVE WITHOUT PAY.—As provided 

23 in paragraphs (2)(A)(ii) and (3)(A)(ii) of sub24 section (b), a border patrol agent shall incur no 

25 scheduled overtime obligation on a day when 


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1 the agent has a full day of leave without pay.’’; 

2 and 

3 (7) by adding at the end the following: 

4 ‘‘(h) ALTERNATIVE WORK SCHEDULES.— 

5 ‘‘(1) IN GENERAL.—Notwithstanding any other 

6 provision in this section or section 6101, U.S. Cus7 toms and Border Protection may assign a border pa8 trol agent an alternative work schedule as described 

9 in this subsection, subject to any regulations pre10 scribed by the Director of the Office of Personnel 

11 Management. No alternative work schedule may be 

12 established under subchapter II of chapter 61. 

13 ‘‘(2) LEVEL 2 BORDER PATROL AGENT.—A bor14 der patrol agent receiving a level 2 border patrol 

15 rate of pay may, in lieu of the standard work sched16 ule described in subsection (b)(3)(A), be assigned to 

17 an alternative work schedule under the following 

18 terms and conditions: 

19 ‘‘(A) The alternative work schedule shall 

20 be a regular tour of duty consisting of 9 work21 days per biweekly pay period, with— 

22 ‘‘(i) 8 workdays including 9 hours of 

23 regular time per workday and 1 additional 

24 hour of scheduled overtime for each day 


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1 the agent performs work during regular 

2 time; and 

3 ‘‘(ii) 1 workday including 8 hours of 

4 regular time per workday and 2 additional 

5 hours of scheduled overtime when the 

6 agent performs work during such regular 

7 time. 

8 ‘‘(B) Subparagraphs (B) through (H) of 

9 subsection (b)(3) shall continue to apply to an 

10 agent assigned to an alternative work schedule 

11 under this paragraph. References in this section 

12 to regular time under subsection (b)(3)(A)(i) 

13 and scheduled overtime under subsection 

14 (b)(3)(A)(ii) shall be deemed to be references to 

15 regular time and scheduled overtime described 

16 in subparagraph (A), respectively. 

17 ‘‘(3) BASIC BORDER PATROL AGENT.—A border 

18 patrol agent receiving a basic border patrol rate of 

19 pay may, in lieu of the standard work schedule de20 scribed in subsection (b)(4)(A), be assigned to an al21 ternative work schedule that is a regular tour of 

22 duty consisting of 4 workdays per week with 10 

23 hours of regular time per workday. 

24 ‘‘(4) SUNDAY PAY; PREMIUM PAY.—A border 

25 patrol agent assigned to an alternative work schedVerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392

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1 ule under this subsection, may receive, as applica2 ble— 

3 ‘‘(A) Sunday pay for no more than 8 hours 

4 of regular time associated with a given Sunday, 

5 consistent with section 5546(a); 

6 ‘‘(B) premium pay for work on a holiday 

7 for no more than 8 hours of regular time asso8 ciated with a given holiday, consistent with sec9 tion 5546(b); and 

10 ‘‘(C) basic pay for all regular time hours 

11 that qualify for holiday time off pay when an 

12 agent is relieved or prevented from working 

13 during such regular time on a day designated 

14 as a holiday by Federal statute or Executive 

15 order. 

16 ‘‘(5) APPLICATION.—For purposes of admin17 istering sections 6303(a), 6304, 6307(a) and (d), 

18 6323, 6326, 6327, and 8339(m), in the case of an 

19 employee assigned to an alternative work schedule 

20 under this subsection, references to a day or work21 day (or to multiples or parts thereof) contained in 

22 such sections shall be considered to be references to 

23 8 hours (or to the respective multiples or parts 

24 thereof). 


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1 ‘‘(i) REGULATIONS.—The Director of the Office of 

2 Personnel Management shall promulgate regulations to 

3 carry out this section, including regulations governing— 

4 ‘‘(1) elections and assignments of a border pa5 trol rate of pay for newly hired border patrol agents 

6 who complete initial training during an annual pe7 riod; 

8 ‘‘(2) situations in which an agent receives more 

9 than one type of border patrol rate of pay in a bi10 weekly pay period or is employed as a border patrol 

11 agent for only part of a biweekly pay period; and 

12 ‘‘(3) the treatment of hours that are substituted 

13 for nonpay status hours during regular time.’’. 

14 (b) OVERTIME RATES.—Section 5542(g)(5) of title 

15 5, United States Code, is amended— 

16 (1) in subparagraph (A), by striking ‘‘leave 

17 year’’ and inserting ‘‘an annual period, as described 

18 in section 5550(b)(1)(A)’’; and 

19 (2) by amending subparagraph (E) to read as 

20 follows: 

21 ‘‘(E) shall not receive credit towards com22 putation of the border patrol agent’s annuity 

23 based on unused compensatory time off; and’’. 

24 (c) PREMIUM PAY CAP.—Section 5547(c) of title 5, 

25 United States Code, is amended by inserting after ‘‘duty,’’ 


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1 the following: ‘‘or to border patrol agents who receive an 

2 overtime supplement for overtime hours within their reg3 ular tour of duty under section 5550,’’. 

4 (d) BASIC PAY FOR RETIREMENT.—Section 

5 8331(3)(I) of title 5, United States Code, is amended by 

6 adding before the semicolon at the end the following: ‘‘, 

7 subject to the limitation prescribed in section 5550(d)(3)’’. 

8 (e) SCHEDULED OVERTIME WORK.—Section 2(c)(2) 

9 of the Border Patrol Agent Pay Reform Act of 2014 (Pub10 lic Law 113–277) is amended by inserting after ‘‘sched11 uled overtime work’’ the following: ‘‘(other than scheduled 

12 overtime work within the regular tour of duty)’’. 

13 SEC. 3. EFFECTIVE DATE. 

14 The amendments made by section 2 shall take effect 

15 on the first day of the first pay period beginning on or 

16 after the day that is 90 days after the date of the enact17 ment of this Act. 

Æ 


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