II 

115TH CONGRESS 

2D SESSION S. 2338 

To amend chapter 55 of title 5, United States Code, to reform the manner 

in which Border Patrol agents are compensated. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 25, 2018 

Mr. TESTER introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend chapter 55 of title 5, United States Code, to 

reform the manner in which Border Patrol agents are 

compensated. 

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 Technical Amendments Act of 2018’’. 

6 SEC. 2. BORDER PATROL RATE OF PAY. 

7 Section 5550 of title 5, United States Code, is 

8 amended— 

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

10 after ‘‘applicable border patrol’’; 


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1 (2) in subsection (b)— 

2 (A) in paragraph (1)— 

3 (i) in subparagraph (A)— 

4 (I) by striking ‘‘Not later than 

5 30 days before the first day of each 

6 year beginning after the date of enact7 ment of this section,’’ and inserting 

8 ‘‘Not later than December 1 of each 

9 year,’’; and 

10 (II) by striking ‘‘for that year’’ 

11 and inserting ‘‘for the next annual pe12 riod beginning on the first day of the 

13 first pay period that commences on or 

14 after January 1’’; 

15 (ii) in subparagraph (C), by striking 

16 ‘‘Not later than 60 days before the first 

17 day of each year beginning after the date 

18 of enactment of this section,’’ and insert19 ing ‘‘Not later than November 1 of each 

20 year,’’; 

21 (iii) in subparagraph (D)— 

22 (I) in clause (iii), by inserting 

23 ‘‘due to loss of law enforcement au24 thority’’ after ‘‘this section’’; and 


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1 (II) in clause (v), by striking ‘‘or 

2 the level 2 border patrol rate of pay’’; 

3 (iv) in subparagraph (E)— 

4 (I) in clause (i), by striking ‘‘or 

5 the level 2 border patrol rate of pay’’; 

6 (II) in clause (ii), by striking 

7 ‘‘the analysis conducted under section 

8 2(e) of the Border Patrol Agent Pay 

9 Reform Act of 2014’’ and inserting ‘‘a 

10 written staffing analysis by the Com11 missioner of U.S. Customs and Bor12 der Protection’’; and 

13 (III) by adding at the end the 

14 following: 

15 ‘‘(iv) EXCLUSION OF CERTAIN EM16 PLOYEES.—In applying any percentage 

17 limit under clause (i) or (ii) to a base pop18 ulation, U.S. Customs and Border Protec19 tion shall exclude from such population 

20 any border patrol agent who— 

21 ‘‘(I) is assigned a basic border 

22 patrol rate of pay under paragraph 

23 (iii) or (iv) of subparagraph (D); or 

24 ‘‘(II) would reach the premium 

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1 signed a level 1 border patrol rate of 

2 pay. 

3 ‘‘(v) APPLICATION FREQUENCY.—The 

4 10 percent limit under clause (i) or an al5 ternative percentage limit under a waiver 

6 under clause (ii) shall be applied at the be7 ginning of the first pay period beginning 

8 on or after January 1 of each year.’’; and 

9 (v) by striking subparagraphs (F) and 

10 (G) and inserting the following: 

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

12 agent assigned to provide care for a canine 

13 while not on duty and assigned to the level 1 

14 border patrol rate of pay in accordance with 

15 subparagraph (D)(ii)— 

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

17 care and no other pay shall be paid to the 

18 border patrol agent for such care except as 

19 set forth in clauses (ii) through (v); 

20 ‘‘(ii) the agent shall be credited with 

21 1 hour of such care for each calendar day 

22 on which such care occurs (without regard 

23 to the actual duration of such care); 

24 ‘‘(iii) 1 hour of canine care credited 

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1 stituted for 1 hour of scheduled overtime 

2 that the agent is obligated to perform 

3 under paragraph (2)(A)(ii) on the same 

4 regular work day; 

5 ‘‘(iv) 1 hour of canine care credited 

6 under clause (ii), if not needed to sub7 stitute for scheduled overtime under clause 

8 (iii), shall be paid to the border patrol 

9 agent as scheduled overtime for which the 

10 agent shall receive monetary compensation 

11 pursuant to the payment of overtime under 

12 section 5542(a)(4); and 

13 ‘‘(v) for canine care hours credited 

14 under clause (ii) on a day other than a 

15 regular workday, or on a regular workday 

16 on which an agent has no obligation to 

17 perform scheduled overtime work, the 

18 agent shall be credited with 1 scheduled 

19 overtime work hour paid as monetary com20 pensation under section 5542(a)(4) (de21 fined as 1 hour of overtime work under 

22 section 5542(g)(1)(B)(i)) for each hour of 

23 credited canine care.’’; 

24 (B) in paragraph (2)— 


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1 (i) in subparagraph (C), by amending 

2 clause (i) to read as follows: 

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

5 addition to the compensation provided 

6 under subparagraph (B); or’’; 

7 (ii) in subparagraph (E), by striking 

8 ‘‘paid leave’’ and inserting ‘‘leave’’; 

9 (iii) in subparagraph (F)(ii), by strik10 ing ‘‘and’’ at the end; and 

11 (iv) by striking subparagraph (G) and 

12 inserting the following: 

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

14 in a day of advanced training, but does not per15 form the required amount of scheduled overtime 

16 work under subparagraph (A)(ii) on that day, 

17 the border patrol agent shall be deemed to have 

18 performed scheduled overtime work during non19 work periods to the extent necessary to reach 

20 the required amount; and 

21 ‘‘(H) any overtime obligation that the bor22 der patrol agent has incurred can be met 

23 through the use of any accrued compensatory 

24 time accrued for travel pursuant to section 

25 5550b.’’; and 


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1 (C) in paragraph (3)— 

2 (i) in subparagraph (C), by amending 

3 clause (i) to read as follows: 

4 ‘‘(i) any compensation under this sec5 tion or under any other provision of law in 

6 addition to the compensation provided 

7 under subparagraph (B); or’’; 

8 (ii) in subparagraph (E)— 

9 (I) by striking ‘‘paid leave’’ and 

10 inserting ‘‘leave’’; and 

11 (II) by striking ‘‘excused’’ and 

12 inserting ‘‘absent’’; 

13 (iii) in subparagraph (F)(ii); by strik14 ing ‘‘and’’ at the end; 

15 (iv) by amending subparagraph (G) to 

16 read as follows: 

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

18 in a day of advanced training, but does not per19 form the required amount of scheduled overtime 

20 work under subparagraph (A)(ii) on that day, 

21 the border patrol agent shall be deemed to have 

22 performed scheduled overtime work during non23 work periods to the extent necessary to reach 

24 the required amount;’’; and 

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


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1 ‘‘(H) if the border patrol agent is assigned 

2 to provide canine care or assigned to marine 

3 duty and participates in a day of advanced 

4 training and performs more than the required 

5 amount of scheduled overtime work under sub6 paragraph (A)(ii) on that day, the border patrol 

7 agent shall be compensated for all of the hours 

8 worked on that day; and 

9 ‘‘(I) any overtime obligation that the bor10 der patrol agent has incurred can be met 

11 through the use of any accrued compensatory 

12 time accrued for travel pursuant to section 

13 5550b.’’; 

14 (3) by amending subsection (d) to read as fol15 lows: 

16 ‘‘(d) TREATMENT AS BASIC PAY.— 

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

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

19 a border patrol agent resulting from the application 

20 of the level 1 border patrol rate of pay or the level 

21 2 border patrol rate of pay shall be treated, subject 

22 to paragraphs (2) and (3), as part of basic pay sole23 ly— 

24 ‘‘(A) for purposes of the definition of basic 

25 pay in sections 8331(3) and 8401(4) and the 


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1 provisions in chapters 83 and 84 that rely on 

2 those definitions; 

3 ‘‘(B) for purposes of sections 5595(c) (re4 lating to severance pay) and 8704(c) (relating 

5 to conversion of pay), except as otherwise pro6 vided in paragraph (3); 

7 ‘‘(C) for the purpose of section 8114(e) 

8 (relating to computation of pay); and 

9 ‘‘(D) for any other purpose that the Direc10 tor of the Office of Personnel Management may 

11 prescribe, by regulation, subject to paragraph 

12 (2) and any limitation established in accordance 

13 with paragraph (3). 

14 ‘‘(2) TREATMENT OF OVERTIME SUPPLE15 MENT.—The overtime supplement described in para16 graph (1) may not be treated as part of basic pay 

17 for purposes not described in paragraph (1), includ18 ing the purposes of calculating— 

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

20 or holiday pay under sections 5542, 5545, and 

21 5546; 

22 ‘‘(B) locality-based comparability payments 

23 under section 5304 or special rate supplements 

24 under section 5305; or 


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

2 areas under section 5941. 

3 ‘‘(3) LIMITATIONS.— 

4 ‘‘(A) IN GENERAL.—During the control pe5 riod described in subparagraph (B), the amount 

6 of the overtime supplement that is considered 

7 basic pay under subparagraphs (A) and (B) of 

8 paragraph (1) may not exceed the amount com9 puted by multiplying the border patrol agent’s 

10 basic border patrol rate of pay by the percent11 age representing the agent’s career average of 

12 assigned overtime supplement percentages (in13 cluding 0 percent for periods of time during 

14 which no overtime supplement was payable). 

15 The career average percentage shall be com16 puted under this subparagraph without regard 

17 to the effect of the limitation on premium pay 

18 under section 5547. The premium pay limita19 tion remains applicable in determining the dol20 lar amount of any overtime supplement com21 puted using the career average percentage. 

22 ‘‘(B) CONTROL PERIOD.—The control pe23 riod referred to in subparagraphs (A) and (C) 

24 is the period beginning 3 years before the date 

25 on which a border patrol agent will meet age 


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1 and service requirements associated with enti2 tlement to an immediate annuity and ending on 

3 the last day of the individual’s career as a bor4 der patrol agent. 

5 ‘‘(C) CAREER AVERAGE PERCENTAGE.— 

6 For purposes of subparagraph (A), a border pa7 trol agent’s initial career average of assigned 

8 overtime supplement percentages is the average 

9 for the border patrol agent’s career before the 

10 beginning of the control period. During the con11 trol period, the career average shall be recom12 puted at the end of each annual period (as de13 scribed in subsection (b)(1)(A)). In computing 

14 the career average percentage, any periods of 

15 service as a border patrol agent before the first 

16 day of the first pay period beginning on or after 

17 January 1, 2016, shall be included, and the 

18 agent’s assigned overtime supplement during 

19 such periods shall be deemed to be 25 percent. 

20 If the career average percentage is less than 25 

21 percent, the precise amount of the career aver22 age percentage shall be used for purposes of 

23 this subsection. 

24 ‘‘(4) LUMP-SUM ANNUAL LEAVE PAYMENT.—In 

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1 ment under section 5551 or 5552, the pay the agent 

2 is projected to receive shall include a deemed over3 time supplement under this paragraph, which— 

4 ‘‘(A) shall be based on the lower of— 

5 ‘‘(i) the agent’s actual overtime sup6 plement percentage in effect at separation; 

7 or 

8 ‘‘(ii) the average percentage of the 

9 agent’s overtime supplement during the 26 

10 biweekly pay periods immediately pre11 ceding such separation; and 

12 ‘‘(B) may not exceed the amount that is, 

13 or would be, payable under the premium pay 

14 limitation under section 5547.’’; 

15 (4) in the subsection (f) heading, by striking 

16 ‘‘AND SUBSTITUTION OF HOURS’’ and inserting 

17 ‘‘DURING REGULAR TIME; GUARD AND RESERVIST

18 DUTIES; ABSENCES DURING SCHEDULED OVER19 TIME’’; and 

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

21 ‘‘(h) LEAVE WITHOUT PAY DURING REGULAR TIME; 

22 GUARD AND RESERVIST DUTIES; ABSENCES DURING

23 SCHEDULED OVERTIME.— 

24 ‘‘(1) AT LEAST 1 WORKDAY.—If a border patrol 

25 agent takes leave without pay for a period of at least 


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1 1 workday, the agent shall not receive any pay for 

2 the hours during which the border patrol agent took 

3 leave without pay. 

4 ‘‘(2) NO ACCRUAL OF OVERTIME DEBT.—A bor5 der patrol agent shall not accrue an overtime debt 

6 for any full workdays during which a border patrol 

7 agent uses leave without pay, regardless of the bor8 der patrol rate of pay to which the border patrol 

9 agent is assigned. 

10 ‘‘(3) CALCULATION OF PAY.— 

11 ‘‘(A) IN GENERAL.—For pay periods dur12 ing which a border patrol agent takes one or 

13 more full days of leave without pay, the amount 

14 of border patrol pay that the agent would nor15 mally receive shall be reduced proportionally by 

16 the amount of overtime hours that the agent 

17 has not worked due to being on leave without 

18 pay. 

19 ‘‘(B) PERCENTAGE DECREASE.—The total 

20 amount of border patrol pay that a border pa21 trol agent would normally receive in a pay pe22 riod described in subparagraph (A) shall be de23 creased based on the percentage of work days 

24 for which the border patrol agent takes leave 

25 without pay. 


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1 ‘‘(i) COMPRESSED WORK SCHEDULE.— 

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

3 provision of this section or section 6101, the Com4 missioner of U.S. Customs and Border Protection 

5 may assign a border patrol agent a compressed work 

6 schedule under this subsection, subject to any regu7 lations prescribed by the Director of the Office of 

8 Personnel Management. 

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

10 A border patrol agent receiving the level 1 border 

11 patrol rate of pay may, in lieu of the standard work 

12 schedule described in subsection (b)(2)(A), be as13 signed a compressed work schedule under the fol14 lowing terms and conditions: 

15 ‘‘(A) The compressed work schedule shall 

16 be a regular tour of duty consisting of four 10- 

17 hour workdays per week as his or her regular 

18 schedule and shall include, in each pay period, 

19 8 workdays of 10 hours of regular time per 

20 workday and a total of 20 additional hours of 

21 scheduled overtime on the other days within the 

22 pay period in which the agent does not perform 

23 regular time. 

24 ‘‘(B) Subparagraphs (B) through (G) of 

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1 signed a compressed work schedule under this 

2 paragraph. References in this section to regular 

3 time under subsection (b)(2)(A)(i) and sched4 uled overtime under subsection (b)(2)(A)(ii) 

5 shall be deemed to be references to regular time 

6 and scheduled overtime, respectively, described 

7 in subparagraph (A). 

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

9 A border patrol agent receiving the level 2 border 

10 patrol rate of pay may, in lieu of the standard work 

11 schedule described in subsection (b)(3)(A), be as12 signed a compressed work schedule under the fol13 lowing terms and conditions: 

14 ‘‘(A) The compressed work schedule shall 

15 be a regular tour of duty consisting of 9 work16 days per biweekly pay period, including— 

17 ‘‘(i) 8 workdays of 9 hours of regular 

18 time per workday and 1 additional hour of 

19 scheduled overtime for each day the agent 

20 performs work during such regular time; 

21 and 

22 ‘‘(ii) 1 workday of 8 hours of regular 

23 time per workday and 2 additional hours 

24 of scheduled overtime when the agent per25 forms work during such regular time. 


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

2 subsection (b)(3) shall apply to an agent as3 signed a compressed work schedule under this 

4 paragraph. References in this section to regular 

5 time under subsection (b)(3)(A)(i) and sched6 uled overtime under subsection (b)(3)(A)(ii) 

7 shall be deemed to be references to regular time 

8 and scheduled overtime, respectively, described 

9 in subparagraph (A). 

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

11 border patrol agent receiving the basic border patrol 

12 rate of pay, in lieu of the standard work schedule 

13 described in subsection (b)(4)(A), may be assigned a 

14 compressed work schedule that is a regular tour of 

15 duty consisting of 4 workdays per week with 10 

16 hours of regular time per workday. 

17 ‘‘(5) SUNDAY PAY; PREMIUM PAY.—A border 

18 patrol agent assigned to a compressed work schedule 

19 under this subsection may receive, as applicable— 

20 ‘‘(A) Sunday pay for up to 8 hours of reg21 ular time associated with a given Sunday, in ac22 cordance with section 5546(a); 

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

24 for up to 8 hours of regular time associated 


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1 with a given holiday, in accordance with section 

2 5546(b); and 

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

4 that qualify for holiday time off pay when an 

5 agent is relieved or prevented from working 

6 during such regular time on a day designated 

7 as a holiday by Federal statute or Executive 

8 order. 

9 ‘‘(6) WORKDAY.—In applying sections 6303(a), 

10 6304, 6307(a), 6307(d), 6323, 6326, 6327, and 

11 8339(m) to an employee assigned a compressed 

12 work schedule under this subsection, references to a 

13 day or a workday (or to multiples or parts thereof) 

14 shall be considered to be references to 8 hours (or 

15 to the respective multiples or parts thereof). 

16 ‘‘(7) NEGOTIATIONS.—The provisions set forth 

17 in this subsection shall be subject to collective bar18 gaining negotiations with the border patrol agents’ 

19 collective bargaining representative. 

20 ‘‘(j) RULEMAKING.—The Director of the Office of 

21 Personnel Management shall promulgate regulations to 

22 carry out this section, including regulations governing— 

23 ‘‘(1) elections and assignments of a border pa24 trol rate of pay for newly hired border patrol agents 


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1 who complete initial training during an annual pe2 riod; 

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

4 than 1 type of border patrol rate of pay in a bi5 weekly pay period or is employed as a border patrol 

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

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

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

Æ 


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