I 

113TH CONGRESS 

1ST SESSION H. R. 3463 

To amend title 5, United States Code, to ensure proper manpower on the 

United States border and to provide for reforms to rates of pay for 

Border Patrol agents. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 13, 2013 

Mr. CHAFFETZ (for himself, Mrs. MILLER of Michigan, Mr. FARENTHOLD, 

Mr. O’ROURKE, Mr. BARBER, and Ms. JACKSON LEE) introduced the following bill; which was referred to the Committee on Oversight and Government Reform 

A BILL 

To amend title 5, United States Code, to ensure proper 

manpower on the United States border and to provide 

for reforms to 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 Pay Re5 form Act of 2013’’. 

6 SEC. 2. BORDER PATROL RATE OF PAY. 

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

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

2 Protection and to ensure that Border Patrol agents 

3 are sufficiently ready to conduct necessary work and 

4 will perform overtime hours in excess of a 40-hour 

5 workweek based on the needs of the employing agen6 cy; and 

7 (2) to ensure that U.S. Customs and Border 

8 Protection has the flexibility to cover shift changes 

9 and retains the right to assign scheduled and un10 scheduled work for mission requirements and plan11 ning based on operational need. 

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

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

14 section 5549 the following: 

15 ‘‘§ 5550. Border patrol rate of pay 

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

17 ‘‘(1) the term ‘available to work’, as used with 

18 respect to a Border Patrol agent, means that such 

19 agent is generally and reasonably accessible by U.S. 

20 Customs and Border Protection to perform unsched21 uled duty based on the needs of U.S. Customs and 

22 Border Protection; 

23 ‘‘(2) the term ‘Border Patrol agent’ means an 

24 individual who is performing functions included 

25 under position classification series 1896 (Border Pamstockstill on DSK4VPTVN1PROD with BILLS

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1 trol Enforcement) of the Office of Personnel Man2 agement, or any successor thereto, including, in the 

3 case of an individual performing the aforementioned 

4 functions, while such individual is performing cov5 ered border patrol activities; 

6 ‘‘(3) the term ‘covered border patrol activities’, 

7 as used with respect to a Border Patrol agent, 

8 means— 

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) being on approved annual, sick, or 

18 administrative leave; 

19 ‘‘(E) being on ordered travel status; 

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

21 meaning of section 7131; 

22 ‘‘(G) being on excused absence with pay 

23 for relocation purposes; 

24 ‘‘(H) being on light duty due to injury or 

25 disability; 

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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) engaging in an activity similar to an 

8 activity described in any of the preceding sub9 paragraphs while temporarily away from the 

10 regular duty assignment of the Border Patrol 

11 agent; 

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

13 as used with respect to a Border Patrol agent, 

14 means the rate equal to 1.25 times the hourly rate 

15 of basic pay otherwise applicable to such agent; 

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

17 as used with respect to a Border Patrol agent, 

18 means the rate equal to 1.125 times the hourly rate 

19 of basic pay otherwise applicable to such agent; and 

20 ‘‘(6) the term ‘work period’ means a 14-day bi21 weekly pay period. 

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

23 ‘‘(1) VOLUNTARY ELECTION.— 

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

25 days before the first day of each year beginning 

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1 after the date of enactment of this section, a 

2 Border Patrol agent shall make an election as 

3 to whether such agent shall, for such year— 

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

5 patrol rate of pay; 

6 ‘‘(ii) be assigned to the level 2 border 

7 patrol rate of pay; or 

8 ‘‘(iii) decline both the level 1 and the 

9 level 2 border patrol rates of pay. 

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

11 Office of Personnel Management shall establish 

12 procedures for an election under subparagraph 

13 (A). 

14 ‘‘(C) INFORMATION REGARDING ELEC15 TION.—Not later than 60 days before the first 

16 day of each year beginning after the date of the 

17 enactment of this section, U.S. Customs and 

18 Border Protection shall provide each Border 

19 Patrol agent with information regarding each 

20 type of election available under subparagraph 

21 (A) and how to make such an election. 

22 ‘‘(D) FAILURE TO ELECT.—A Border Pa23 trol agent who fails to make a timely election 

24 under subparagraph (A) shall be deemed to 

25 have made an election under clause (i) thereof. 

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1 ‘‘(E) SENSE OF CONGRESS.—It is the 

2 sense of Congress that U.S. Customs and Bor3 der Protection should take such action as is 

4 necessary to ensure that not more than 10 per5 cent of the Border Patrol agents stationed at a 

6 location decline to be assigned to the level 1 

7 border patrol rate of pay or the level 2 border 

8 patrol rate of pay. 

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

10 For a Border Patrol agent who has in effect an elec11 tion under paragraph (1)(A)(i)— 

12 ‘‘(A) the Border Patrol agent shall be 

13 scheduled to work for 5 days per week— 

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

15 and 

16 ‘‘(ii) 2 additional hours of scheduled 

17 overtime on each day such agent is sched18 uled to work under clause (i); 

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

20 described in subparagraph (A)(i), the Border 

21 Patrol agent shall receive pay at the level 1 bor22 der patrol rate of pay; 

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

24 overtime work described in subparagraph 

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1 (A)(ii), the Border Patrol agent shall not re2 ceive— 

3 ‘‘(i) additional compensation under 

4 this section or any other provision of law; 

5 or 

6 ‘‘(ii) compensatory time off; 

7 ‘‘(D) any hours during which the Border 

8 Patrol agent is available to work during a work 

9 period shall be included in the hours of regular 

10 time or regularly scheduled overtime scheduled 

11 under subparagraph (A); 

12 ‘‘(E) the Border Patrol agent shall receive 

13 compensatory time off or pay at the overtime 

14 hourly rate of pay for hours of work in excess 

15 of 100 hours during a work period, as deter16 mined in accordance with section 5542(a)(7); 

17 and 

18 ‘‘(F) the Border Patrol agent shall be 

19 charged leave in increments of 8 hours for 1 

20 shift of leave, regardless of the length of the 

21 shift. 

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

23 For a Border Patrol agent who has in effect an elec24 tion under paragraph (1)(A)(ii)— 

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1 ‘‘(A) the Border Patrol agent shall be 

2 scheduled to work for 5 days per week— 

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

4 and 

5 ‘‘(ii) 1 additional hour of scheduled 

6 overtime during on each day such agent is 

7 scheduled to work under clause (i); 

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

9 described in subparagraph (A)(i), the Border 

10 Patrol agent shall receive pay at the level 2 bor11 der patrol rate of pay; 

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

13 overtime work described in subparagraph 

14 (A)(ii), the Border Patrol agent shall not re15 ceive— 

16 ‘‘(i) additional compensation under 

17 this section or any other provision of law; 

18 or 

19 ‘‘(ii) compensatory time off; 

20 ‘‘(D) any hours during which the Border 

21 Patrol agent is available to work during a work 

22 period shall be included in the hours of regular 

23 time or regularly scheduled overtime scheduled 

24 under subparagraph (A); 

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1 ‘‘(E) the Border Patrol agent shall receive 

2 compensatory time off or pay at the overtime 

3 hourly rate of pay for hours of work in excess 

4 of 90 hours during a work period, as deter5 mined in accordance with section 5542(a)(7); 

6 and 

7 ‘‘(F) the Border Patrol agent shall be 

8 charged leave in increments of 8 hours for 1 

9 shift of leave, regardless of the length of the 

10 shift. 

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

12 For a Border Patrol agent who has in effect an elec13 tion under paragraph (1)(A)(iii)— 

14 ‘‘(A) the Border Patrol agent shall be 

15 scheduled to work 8 hours of regular time per 

16 day, 5 days per week; 

17 ‘‘(B) 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 scheduled under subparagraph (A); and 

21 ‘‘(C) the Border Patrol agent shall receive 

22 compensatory time off or pay at the overtime 

23 hourly rate of pay for hours of work in excess 

24 of 80 hours during a work period, as deter25 mined in accordance with section 5542(a)(7). 

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

2 Border Patrol agent— 

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

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

5 5545 and Sunday and holiday pay in accordance 

6 with section 5546, without regard to the election of 

7 the Border Patrol agent under subsection (b)(1)(A), 

8 except that section 5546(d) shall not apply and eligi9 bility for pay for, and the rate of pay for, any over10 time work shall be determined in accordance with 

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

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

13 premium pay under this title, except as provided in 

14 section 5542(a)(7). 

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

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

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

18 shall be treated as part of basic pay for— 

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

20 8331(3), and 8704(c); 

21 ‘‘(2) any other purpose that the Office of Per22 sonnel Management may by regulation prescribe; 

23 and 

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

25 by law. 

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

2 Nothing in this section shall be construed to limit the au3 thority of U.S. Customs and Border Protection to require 

4 a Border Patrol agent to perform hours of overtime work 

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

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

7 national emergency.’’. 

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

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

10 following: 

11 ‘‘(7)(A) In this paragraph, the term ‘Border Patrol 

12 agent’ has the meaning given such term in section 5550. 

13 ‘‘(B) Notwithstanding the matter preceding para14 graph (1) or paragraphs (1) and (2), for a Border Patrol 

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

16 level 1 border patrol rate of pay under section 

17 5550(b)(1)(A)(i)— 

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

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

20 day biweekly pay period shall be overtime work; and 

21 ‘‘(ii) the Border Patrol agent— 

22 ‘‘(I) shall receive pay at the overtime hour23 ly rate of pay (as determined in accordance 

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1 time work that are officially ordered or ap2 proved in advance of the work assignment; and 

3 ‘‘(II) shall receive compensatory time off 

4 for any hours of overtime work that are not 

5 hours of overtime work described in subclause 

6 (I). 

7 ‘‘(C) Notwithstanding the matter preceding para8 graph (1) or paragraphs (1) and (2), for a Border Patrol 

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

10 level 2 border patrol rate of pay under section 

11 5550(b)(1)(A)(ii)— 

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

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

14 biweekly pay period shall be overtime work; and 

15 ‘‘(ii) the Border Patrol agent— 

16 ‘‘(I) shall receive pay at the overtime hour17 ly rate of pay (as determined in accordance 

18 with paragraphs (1) and (2)) for hours of over19 time work that are officially ordered or ap20 proved in advance of the work assignment; and 

21 ‘‘(II) shall receive compensatory time off 

22 for any hours of overtime work that are not 

23 hours of overtime work described in subclause 

24 (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.’’. 

Æ 

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