    [Senate Hearing 113-735]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-735

                         BORDER SECURITY: EXAMINING THE
    IMPLICATIONS OF S. 1691, THE BORDER PATROL AGENT PAY REFORM ACT OF 2013

    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                   HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  JUNE 9, 2014

                                   __________

            Available via the World Wide Web: http://www.fdsys.gov/

                           Printed for the use of the
            Committee on Homeland Security and Governmental Affairs

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            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                              THOMAS R. CARPER, Delaware Chairman
    CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
    MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
    MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
    CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
    JON TESTER, Montana                  RAND PAUL, Kentucky
    MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
    TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
    HEIDI HEITKAMP, North Dakota

                      Gabrielle A. Batkin. Staff Director
                   John P. Kilvington, Deputy Staff Director
                        Mary Beth Schultz, Chief Counsel
                      Katherine C. Sybena, Senior Counsel
               Blas Nunez-Neto, Senior Professional Staff Member
                   Keith B. Ashdown, Minority Staff Director
             Christopher J. Barkley, Minority Deputy Staff Director
                   Andrew C. Dockham, Minority Chief Counsel
                   Gabrielle D'Adamo Singer, Minority Counsel
                Cory P. Wilson, Minority Secret Service Detailee
                         Laura W. Kilbride, Chief Clerk
                       Lauren M. Corcoran, Hearing Clerk

                                C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Carper...............................................     1
        Senator Coburn...............................................     3
        Senator Tester...............................................     4
    Prepared statements:
        Senator Carper...............................................    35
        Senator Coburn...............................................    37

                                   WITNESSES
                              Monday, June 9, 2014

    Ronald D. Vitiello, Deputy Chief, U.S. Border Patrol, U.S.
      Customs and Border Protection, U.S. Department of Homeland
      Security.......................................................     5
    Brandon Judd, President, National Border Patrol Council..........     7
    Paul L. Hamrick, Deputy Assistant Commissioner, Office of
      Internal Affairs, U.S. Customs and Border Protection, U.S.
      Department of Homeland Security................................     8
    Adam Miles, Deputy Special Counsel for Policy and Congressional
      Affairs, U.S. Office of Special Counsel........................    10

                         Alphabetical List of Witnesses

    Hamrick, Paul L.:
        Testimony....................................................     8
        Joint prepared statement with attachment.....................    41
    Judd, Brandon:
        Testimony....................................................     7
        Prepared statement...........................................    48
    Miles, Adam:
        Testimony....................................................    10
        Prepared statement...........................................    50
    Vitiello, Ronald D.:
        Testimony....................................................     5
        Joint prepared statement with attachment.....................    41

                                    APPENDIX

    Papers submitted by Senator Coburn...............................    56
    Prepared statement submitted by Deputy Secretary Alejandro
      Mayorkas.......................................................    60
    Responses to post-hearing questions for the Record:
        Mr. Vitiello and Mr. Hamrick.................................    61
        Mr. Judd.....................................................    85
        Mr. Miles....................................................    98

                         BORDER SECURITY: EXAMINING THE

       IMPLICATIONS OF S. 1691, THE BORDER PATROL PAY REFORM ACT OF 2013

                                  ----------

                              MONDAY, JUNE 9, 2014

                                         U.S. Senate,
                               Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 3:34 p.m., in
    room SD-342, Dirksen Senate Office Building, Hon. Thomas R.
    Carper, Chairman of the Committee, presiding.
        Present: Senators Carper, Tester, and Coburn.

                  OPENING STATEMENT OF CHAIRMAN CARPER

        Chairman Carper. The hearing will come to order.
        Welcome, everyone. I am going to make a pretty short
    statement here and turn it to Dr. Coburn, and Senator Tester,
    if you would like to make a statement, as well, that would be
    great. I understand that Senator McCain is tied up. My thanks
    to our colleagues, our witnesses, for working with our staffs
    to enable us to put this hearing together fairly quickly.
        The purpose, as you know, of this hearing is to examine the
    merits of S. 1691, the Border Patrol Agent Pay Reform Act
    (BPAPRA) of 2014, introduced by Senators Tester and McCain,
    cosponsored by Senators Heitkamp and Ayotte. This bill would
    make badly needed reforms to the overtime system of the Border
    Patrol, which is currently too complicated and too difficult to
    manage.
        Before I get into the bill, I want to briefly talk about
    what is happening currently along our borders. Over the past
    few years, we have seen a surge in unauthorized migration from
    Central America, which is nearing record highs. An
    unprecedented number of people we are apprehending at the
    border are unaccompanied children, some as young as 10 years of
    age. Our laws--appropriately--require that these vulnerable
    children be treated differently than other migrants. They must
    be transferred to the Department of Health and Human Services
    (HHS) and there are strict rules about their care. Secretary
    Johnson, last week, announced that he was creating an
    interagency task force and devoting additional resources to
    coordinate the care and resettling of these children. I commend
    that announcement.
        Since I became Chairman of this Committee 18 months ago, I
    visited the Southern Border with Mexico in Arizona and Texas on
    a number of occasions. I have seen firsthand the crowded
    conditions at our Border Patrol stations in the Rio Grande
    Valley (RGV). I have also visited Mexico, Guatemala, and El
    Salvador, and I hope to spend some time down in Honduras.
        What I have come to understand is that what happens along
    our borders is only a symptom of the problem. It is not the
    underlying cause. Today's hearing will focus on how we can
    better address one of these symptoms by increasing enforcement.
    The Tester-McCain bill we are examining today will save, we
    hope--taxpayers money, hopefully a good deal of it, and
    increase our ability to patrol--and secure--our borders. In
    fact, one estimate I have seen shows that this bill would add
    the equivalent of 1,400 agents to the border. That is a lot.
        Given the challenges we face on the border, which have only
    been underscored by recent events, I have to say that moving
    this bill would seem like, on the surface, to be a no-brainer.
    I fully support moving forward with the bill as soon as
    possible.
        And, while we need to do all we can to treat these
    symptoms, we cannot stop there. It is critical that we
    understand and address the root causes of why all these people
    are willing to literally risk everything, life and limb, to
    come here in the first place and to struggle through Mexico to
    get here. Based on what I have seen in my trips to some of
    these countries, those root causes are lack of economic
    opportunity and hope and deteriorating security situations in
    El Salvador, Guatemala, and Honduras. I describe it as
    squeezing the balloon in one place, Northern Mexico. The bad
    guys go south. A lot of them ended up in those three Central
    American countries and they are creating not just mischief, but
    mayhem.
        Nearly one year ago, the Senate passed a bipartisan
    comprehensive immigration reform measure that addresses many of
    the root causes of undocumented immigration. And while the bill
    is imperfect, it is a significant improvement over the status
    quo and provides our Nation with an important opportunity to
    fix our broken immigration system and grow our Nation's economy
    by almost one trillion dollars. But, in order for this solution
    to become law, we need our colleagues in the House to act. We
    also need to do a better job at helping Central American
    countries improve their prospects for their young people and
    those not so young by helping provide them with jobs and safe
    and secure communities and a future, so they stay and build
    their own countries instead of trying to get to ours.
        On June 19, I will be convening a roundtable of experts
    from across the U.S. Government, to multilateral banks, as well
    as private institutions to discuss how we continue to improve
    the prospects of young people and not-so-young people in these
    Central American countries, and I would urge and invite all of
    our colleagues in this Committee to join us for this
    roundtable.\1\
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Coburn appears in the
    Appendix on page 35.
    ---------------------------------------------------------------------------
        Dr. Coburn, please.

                  OPENING STATEMENT OF SENATOR COBURN

        Senator Coburn. Well, first of all, thank you, Mr.
    Chairman, and thanks to Senator Tester and Senator McCain as
    well as Senator Portman. Senators Portman and Tester held an
    important hearing on this in January and I am the one that
    asked for this hearing because--two points I would make.
        One is, with the Administratively Uncontrollable Overtime
    (AUO), my goal is not to take anything away from our Border
    Patrol Agents, and we have, I think, about 900 or so that AUO
    is no longer authorized for. The goal should be adequate pay
    for the risk and effort that they put in. But, I am really
    concerned about what we are doing here in terms of setting up a
    system that could become governmentwide, and the question I ask
    as both a former accountant and a former business manager is
    if, in fact, we need to have about $28,000 above, or $29,000
    above a GS-12 maxed out the way we are going to do this, why
    would we not just change the base pay? Why would we not just
    change the base pay system rather than have this overtime
    system?
        The other question that I have associated with what we are
    doing is, things change, and what we are doing is we are
    talking about putting a payment system into statute that
    guarantees a certain amount of overtime every pay period that
    is not a part of contractual obligations. This is statute. So,
    I am a little concerned about that, as well, because if, in
    fact, the border becomes more difficult, requiring greater
    risk, requiring greater expertise, we are going to be somewhat
    limited by how we have done this.
        So, I am looking forward to asking questions to try to get
    settled in my mind: how do we compensate our Border Patrol
    Agents at the level at which they have been being compensated
    and make sure they are secure in the future? I do not want to
    take 25 percent of anybody's pay away, and that is not our
    intent. Our intent is to make sure it does not go away as we
    reform AUO.
        The other point that I would make is there are a lot of
    positions within the Border Patrol that do not have to do a
    write-up at the end of the day, do not have to travel back from
    a position assignment, and yet we are including all those in
    this that should not have an AUO payment. In other words, their
    jobs should not require it. And so the characteristics of the
    mix is important to me, as well.
        So, what I want to do is get answers to critical questions
    today. I have a statement that is written for the record.\1\
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Coburn appears in the
    Appendix on page 37.
    ---------------------------------------------------------------------------
        And, again, I want to fix this. I am not trying to stop it
    from getting fixed. My understanding is a very limited number
    of people no longer have AUO as a comparison to the total
    workforce, and I want to make sure when we fix it, we fix it
    right, and we also fix it in a way that the House is going to
    accede to so that we actually solve the problem.
        So, I appreciate, really, Senator Tester's acquiescence on
    not moving this bill on the last markup and pledge my support
    to get this problem solved when I get my questions answered.
        Chairman Carper. Good enough.
        All right. Senator Tester, good to see you.

                  OPENING STATEMENT OF SENATOR TESTER

        Senator Tester. Well, thank you, Chairman Carper, Ranking
    Member Coburn, and I think I could answer your questions now,
    but I think it would be better left to the expert panelists to
    answer the questions about things changing, because I think you
    are right. Things do change. That is really why we are here
    today, is because things have changed.
        Senator McCain and I introduced this legislation a little
    over a year ago, and we did have a hearing back in January.
    Since our initial introduction, we have worked closely with the
    Customs and Border Protection (CBP), the Border Patrol Union,
    the Department of Homeland Security (DHS), the Office of
    Personnel Management (OPM), and others to make this bill even
    stronger. We have worked together, something that is fairly
    uncommon in the Senate these days. It is cosponsored by
    Senators Heitkamp and Ayotte, and a companion bill is in the
    House, sponsored by Representative Chaffetz and a host of
    others, both Democrats and Republicans. The bill is supported
    by both the CBP and the Border Patrol Union, which represents
    16,500 agents in the field.
        It saves money. It creates more stability for Border Agents
    and their families, and it increases manpower along the border,
    so the security is increased and the agents are better equipped
    to do those jobs that are so very important to all of us.
        The reform of the Border Patrol pay system is long overdue.
    The operational needs from 40 years ago are quite different
    from the criminal operations that we see on the border today.
    Things have changed. We have waited long enough. We need to
    move forward with this bill because it ensures stability for
    our Border Patrol Agents and makes sure that our borders are
    properly manned.
        In the end, I appreciate the opportunity to have a full
    Committee hearing on this bill. I can tell you that as I look
    at this bill, it increases enforcement, it saves money, and I
    think it makes--it allows for our borders to be as secure as
    they possibly can to meet the dangers of terrorism, drugs, and
    illegal immigration that is so common on both Northern and
    Southern Borders.
        So, with that, Mr. Chairman and Ranking Member Coburn, I
    appreciate the opportunity to hear from our witnesses and be
    able to ask them questions about this important issue and
    hopefully end up being able to get this bill out of this
    Committee and off the floor of the Senate and over to the
    House.
        Thank you, Mr. Chairman.
        Chairman Carper. You bet. Thank you very much, Senator
    Tester.
        Let me just take a minute to welcome our panel of
    distinguished witnesses and I will just give very brief
    introductions.
        Our first witness is Ron Vitiello. Mr. Vitiello is Deputy
    Chief in the U.S. Border Patrol. In this capacity, he is
    responsible for the daily operation of the Border Patrol and
    routinely assists in planning and directing nationwide
    enforcement and administrative operations. Deputy Chief
    Vitiello was one of the contributors to the unification of U.S.
    Customs and Border Protection and the creation of the
    Department of Homeland Security. Is that true?
        Mr. Vitiello. I was on detail with the Department during
    the stand-up.
        Chairman Carper. OK. Good. Thank you. Good to see you.
        Our second witness is Brandon Judd. Mr. Judd has more than
    15 years of experience as a Border Patrol Agent. He currently
    serves as President of the National Border Patrol Council,
    representing more than 17,000 Border Patrol Agents and support
    staff. Mr. Judd has spent much of his career on the Southwest
    Border in the El Centro, California, and Tucson, Arizona,
    Sectors. In the past, he has been stationed as a Field Training
    Officer and Canine Officer at one of the busiest border
    crossings in Naco, Arizona. And, from 2001 to 2002, he was an
    instructor at the Border Patrol Academy. Welcome, Mr. Judd.
    Nice to see you.
        Our next witness is Paul Hamrick. Mr. Hamrick is the Deputy
    Assistant Commissioner of the Office of Internal Affairs (OIA)
    for U.S. Customs and Border Protection, a post he has held
    since 2012. I understand that Mr. Hamrick just became our
    witness this morning due to some leadership changes announced
    by the Commissioner today. That is not much warning, but thanks
    for joining us. We very much appreciate Mr. Hamrick stepping up
    to serve as our witness, given his extensive knowledge of the
    issue we are going to discuss today. He joined the Customs
    Service in 1986 as a Special Agent. He has been with the Office
    of Internal Affairs since 2007. Thank you again for joining us
    on such short notice.
        Our final witness is Adam Miles. Mr. Miles is the Director
    of Policy and Congressional Affairs at the U.S. Office of
    Special Counsel (OSC). Prior to joining the Office of Special
    Counsel, he was on the staff of the House Committee on
    Oversight and Government Reform. We thank you for your service.
        We thank all of you for your service and for your testimony
    today. If you want to give us your testimony in roughly 5
    minutes, that would be fine. If you run a little over it, that
    is OK. If you run way over that, we will have to rein you in,
    and then we will start some questions. But, we are glad you
    here and look forward to an informative hearing. Thank you all
    for joining us.
        And, Mr. Vitiello, why do you not go first.

     TESTIMONY OF RONALD D. VITIELLO,\1\ DEPUTY CHIEF, U.S. BORDER
    PATROL, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF
                           HOMELAND SECURITY

        Mr. Vitiello. Thank you, Chairman Carper, Ranking Member
    Coburn, distinguished Members of the Committee. Thank you for
    the opportunity to appear before you today to address the need
    for Border Patrol Agent pay reform.
    ---------------------------------------------------------------------------
        \1\ The prepared joint statement of Mr. Vitiello appears in the
    Appendix on page 41.
    ---------------------------------------------------------------------------
        This is a matter of concern to the Department of Homeland
    Security, U.S. Customs and Border Protection, and the U.S.
    Border Patrol. We welcome the opportunity to work with you in
    finding solutions at an affordable cost.
        The DHS and the Border Patrol missions require properly
    paying our border security personnel and properly managing
    their pay system. Our application of overtime, specifically
    Administratively Uncontrollable Overtime, stretches back many
    years, but existing AUO authorities no longer meet the needs of
    a modern Border Patrol.
        S. 1691, Border Patrol Agent Pay Reform Act, would replace
    AUO with a system that controls costs, fairly compensates
    certain agents for irregular and necessary work, and maximizes
    agent capability for critical law enforcement and border
    security responsibilities. If enacted, it would ensure that the
    entire Border Patrol workforce is scheduled to continue work
    and meet mission requirements beyond the eighth hour of his or
    her shift while providing predictable rotations around the
    clock. Agents would receive compensation for any work over 8
    hours per day and would remain eligible for other types of
    scheduled overtime when emergencies occur or special mission
    sets require it.
        In addition to increasing patrol hour capacity by over 2.5
    million hours, the Act would reduce overall costs. It would
    eliminate Fair Labor Standard Act (FLSA) pay, FLSA
    compensation, for most agent assignments, which totaled $105
    million in 2013. Based on the cost estimates briefed by CBP,
    BPAPRA would save $38 to $67 million annually.
        Border Patrol has a business practice and leadership
    development requirement that relies on agents rotating into and
    out of headquarters assignments and the training environment.
    This maintains up-to-date field experience in those positions.
    It prepares leaders as they advance. Like other Federal law
    enforcement agencies, this bill contemplates portable pay for
    employees who cycle through those assignments and back out into
    the field. The cost to train and maintain an agent's skills is
    considerable, and scheduling overtime is much more cost
    effective than getting the equivalent number of hours via more
    agents. CBP moves resources around the country to maximize
    their impact and is committed to continuing to do so.
        The bill also provides strict thresholds and management
    controls, which will ensure cost savings and mission
    capability. Without relief legislatively, effectiveness will
    suffer and morale is very likely to take a downward turn.
        We commend the Committee's commitment to modernizing the
    pay structure for Border Patrol Agents and for proposing
    legislation that would provide CBP the flexibility to
    administer a credible, cost efficient, and equitable
    compensation system that would meet the needs of a 21st Century
    Border Patrol. We look forward to continuing to work with
    Congress on this endeavor.
        Chairman Carper, Ranking Member Coburn, Members of the
    Committee, I look forward to this opportunity and answering all
    your questions.
        Chairman Carper. OK. Thanks, Mr. Vitiello.
        Mr. Judd, you are recognized. Please proceed.

    TESTIMONY OF BRANDON JUDD,\1\ PRESIDENT, NATIONAL BORDER PATROL
                                COUNCIL

        Mr. Judd. Chairman Carper, Ranking Member Coburn, Senator
    Tester, on behalf of the 16,500 Border Patrol Agents whom I
    represent, I would like to thank you for having this hearing
    today to discuss S. 1691. I would especially like to thank
    Senator Tester, and if Senator McCain were here, I would like
    to thank them for introducing this important legislation.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Judd appears in the Appendix on
    page 48.
    ---------------------------------------------------------------------------
        Instead of reading a prepared statement--I have given that
    to you last Thursday--I would like to speak with you. I am
    looking forward more to answering your questions than to giving
    you a prepared statement that you already have. But, there are
    a couple key issues that I would like to point out.
        The first issue is we are no longer dealing with mom and
    pop smuggling organizations on the border. We are dealing with
    sophisticated criminal cartels. They control all traffic that
    is happening that comes into the United States and that goes
    into Mexico. They also control the illegal activity that
    happens on the Northern Border and on the Coastal Border.
        Approximately a year ago, all Border Patrol agents were
    notified that their hours per 2-week pay period would be cut
    from 100-plus down to approximately 95. Since that time, we
    have seen almost an immediate increase of smuggling across the
    border. In fact, on the map up here,\2\ not only are we seeing
    an increase in the RGV Sector--we know about that tidal wave
    that is currently happening--but we have seen an increase in
    important corridors like El Paso, Texas, San Diego, California.
    These were considered operationally controlled areas. They have
    increased in arrests in the last year since we have cut these
    hours by nearly 15 percent.
    ---------------------------------------------------------------------------
        \2\ The map referenced by Mr. Judd appears in the Appendix on page
    47.
    ---------------------------------------------------------------------------
        We have also seen, Senator Tester, in your neck of the
    woods, in Havre, Montana, we have seen an increase in arrests
    since these hours were cut by nearly 50 percent. That is a huge
    increase. We have also seen an increase on the Coastal Border,
    in Miami, Florida. We have seen an increase by almost 30
    percent on the Coastal Border. These cartels know what we do,
    how we do it, and when we do it. They know when we are
    vulnerable, and right now, due to the hours that have been cut,
    we are vulnerable. Fifty percent in Havre, Montana--that is
    huge.
        The second point that I would like to address is the
    retention. In Senator McCain's neck of the woods, the busiest
    station in the Tucson Sector, historically, one of the busiest
    stations in the entire Nation--I believe it currently seizes
    more drugs than any other Border Patrol station in the Nation--
    we have seen 5 percent of the workforce leave in the last year
    due to the number of hours that have been cut and the pay
    reduction that we are experiencing. We also have another 15
    percent at this station alone who have pending applications in
    for other agencies. We cannot afford to lose 20 percent of a
    station, especially a station that is so important to the
    Tucson Sector, but that is what is happening under the economic
    climate.
        The last point that I would like to make, and I would like
    to read this statement, back in 1997, when I came into the
    Border Patrol, the recruitment that I was offered was 25
    percent Administratively Uncontrollable Overtime for the rest
    of my career. That is what we were told we were going to get.
    That has now been cut. We no longer have that, and there are
    two reasons, budgetary issues and legal issues.
        We approached Congress 4 years ago and we tried to get the
    powers that be to amend the AUO laws to allow us to continue to
    do what we need to do to control the border. Unfortunately,
    because it is an expensive system, we could not get any
    traction. Because of that, we have worked diligently with the
    agency to come up with a plan that will satisfy all parties. It
    will satisfy the taxpayers in a huge cost savings. It will
    satisfy the agency, as it will give the number of hours that
    are needed on the border to secure the border. And, it will
    satisfy the Border Patrol Agents as we will have a consistent
    and constant paycheck that we will know what it is year to
    year.
        I want to make it clear that no Border Patrol Agent is
    happy about the prospect of losing $6,400 per year. We recently
    made another push to keep FLSA, but we were again unsuccessful.
    We are sacrificing a lot, but in the end, it will prove to be a
    boon for border security, the American public, the agency, and
    the agents whom I represent. It is very rare that Congress has
    the opportunity to consider a piece of legislation that saves
    money and enhances the agency's capability, and that is exactly
    what this does.
        I look forward to answering your questions. Thank you.
        Chairman Carper. Thanks for your testimony.
        Mr. Hamrick, please proceed.

    TESTIMONY OF PAUL L. HAMRICK,\1\ DEPUTY ASSISTANT COMMISSIONER,
    OFFICE OF INTERNAL AFFAIRS, U.S. CUSTOMS AND BORDER PROTECTION,
                  U.S. DEPARTMENT OF HOMELAND SECURITY

        Mr. Hamrick. Chairman Carper, Ranking Member Coburn,
    Senator Tester, it is a privilege to appear before you today to
    discuss the ongoing review of Customs and Border Protection's
    overtime compensation systems, specifically those used by the
    U.S. Border Patrol. Properly paying our border security
    personnel and appropriately managing our pay systems are
    essential to the CBP mission.
    ---------------------------------------------------------------------------
        \1\ The prepared joint statement of Mr. Hamrick appears in the
    Appendix on page 41.
    ---------------------------------------------------------------------------
        CBP's application of overtime, specifically AUO, the
    primary compensation system used by the Border Patrol,
    stretches back many years. Established more than 40 years ago,
    AUO is a payment mechanism that allows for the compensation of
    certain employees for irregular, unscheduled, but necessary
    overtime. Approximately 77 percent of AUO paid at DHS goes to
    employees of CBP, including more than 20,000 Border Patrol
    Agents. In order to be eligible for AUO, an employee must be in
    a position in which the hours of duty cannot be controlled
    administratively and which require substantial amounts of
    irregular or occasional overtime work.
        CBP takes seriously its responsibility to ensure the proper
    use of taxpayer funds. While many front-line officers and
    agents across the Department require work hour flexibility,
    often through the use of AUO, misuse of these funds is not
    tolerated. Within DHS components, allegations of misconduct
    that are raised by employees are typically provided to and
    handled by component internal affairs offices and/or the DHS
    Office of Inspector General, in conjunction with the
    component's human resources office. If merited, employees found
    to have engaged in misconduct are subject to disciplinary
    action.
        CBP's Office of Internal Affairs conducted a series of
    investigative inquiries regarding the alleged improper use of
    AUO by specific entities within CBP. Internal Affairs field
    offices in Washington, D.C., Houston, Texas, San Diego,
    California, and Seattle, Washington, conducted AUO-related
    investigations at specific Border Patrol sector headquarters,
    stations, training entities, and the CBP Commissioner's
    situation room.
        Although the Office of Special Counsel received complaints
    that overtime hours compensated under AUO were not being
    worked--allegations that, if proven, could constitute criminal
    or administrative violations--our investigations did not
    substantiate any OSC allegations that employees had received
    AUO compensation for hours that were not worked. The
    investigations did, however, substantiate aspects of the
    allegations that questioned whether AUO was the appropriate
    mechanism for specific overtime compensation.
        In short, the investigations determined that work was
    conducted, and, importantly, even where AUO was not the proper
    overtime mechanism, CBP had an obligation and CBP employees had
    an entitlement to be appropriately compensated for the overtime
    hours worked.
        DHS and CBP have taken steps to address the situation. On
    January 27, Secretary Johnson issued a memorandum directing
    component leadership to take immediate action to suspend AUO
    for certain categories of employees on an interim basis. As a
    result, approximately 600 CBP headquarters personnel, full-time
    trainers, and employees found to have misused AUO in completed
    investigations were suspended from receiving AUO.
        After additional review, on May 23, Deputy Secretary
    Mayorkas issued a memo directing components to develop a
    comprehensive agency plan within 30 days to address AUO
    compliance issues. The components will also work with the DHS
    Management Directorate to develop a Department-wide directive
    formalizing these efforts and new reforms. The directive will
    include requirements for independent audits of AUO records and
    mandate disciplinary measures for those who violate AUO
    policies in the future, including supervisors and managers who
    permit employees to misuse AUO.
        Until such time the CBP can address all of its AUO
    compliance issues, CBP leadership has directed additional
    interim measures, such as a comprehensive position review of
    AUO eligibility, to eliminate CBP's use of AUO where the
    available evidence suggests that its use is impermissible.
        Chairman Carper, Ranking Member Coburn, Senator Tester,
    thank you for the opportunity to testify here today. I look
    forward to answering your questions.
        Chairman Carper. Mr. Hamrick, thanks again for showing up
    on such short notice and testifying.
        The next and final witness is Adam Miles. Please proceed.

     TESTIMONY OF ADAM MILES,\1\ DEPUTY SPECIAL COUNSEL FOR POLICY
       AND CONGRESSIONAL AFFAIRS, U.S. OFFICE OF SPECIAL COUNSEL

        Mr. Miles. Chairman Carper, Ranking Member Coburn, and
    Senator Tester, thanks very much for inviting me to testify
    today on behalf of the United States Office of Special Counsel.
    I am pleased to have the opportunity to discuss OSC's cases and
    our ongoing work to address widespread misuse of overtime
    payments to DHS employees.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Miles appears in the Appendix on
    page 50.
    ---------------------------------------------------------------------------
        I want to acknowledge quickly OSC's DHS Overtime Team, many
    of whom are sitting behind me: Catherine McMullen, Lynn
    Alexander, Johanna Oliver, Nadia Pluta, and Treyer Mason Gale.
    Together, their work with whistleblowers has helped to identify
    and address over $37 million in annual misuse of overtime pay.
        Special Counsel Carolyn Lerner's October 31, 2013,
    communication to Congress and the President outlined
    longstanding concerns about systemic misuse of Administratively
    Uncontrollable Overtime. This is an issue OSC first addressed
    in 2007.
        The communication in October 2013 prompted significant
    debate on the legitimacy and legality of AUO payments to DHS
    employees, and particularly within CBP. Encouraging this type
    of discussion, with the goal of rooting out waste and achieving
    meaningful reform, is at the heart of OSC's mission. As stated
    in OSC's October 31 letter, abuse of overtime pay is a
    violation of the public trust and a gross waste of scarce
    government funds. It is incumbent upon DHS to take effective
    steps to curb the abuse, and it is up to the administration and
    Congress to develop a revised pay system, if warranted, that
    ensures fair compensation for employees who are legitimately
    working overtime.
        Since October 2013, and particularly in response to Senator
    Tester's Subcommittee hearing in January 2014, DHS has taken
    steps to place better controls on AUO use. This includes
    decertifying at least some of the positions where employees
    should not be collecting AUO payments. While it has taken many
    years and more needs to be done, we are encouraged by the steps
    that DHS is now taking.
        In addition, as OSC told Senator Tester's Subcommittee in
    January, we are also pleased that Congress is helping CBP to
    find ways to solve this longstanding problem, including through
    legislative reform. While OSC does not have a position on the
    Border Patrol Pay Reform Act of 2013, our update today on
    pending cases will provide some context for the Committee as it
    considers the legislation.
        In particular, I want to compare and contrast two recent
    reports that were prepared by OIA and set sort of the legal and
    factual framework for this discussion. These were in response
    to whistleblower disclosures at an asset forfeiture office in
    San Diego, California, and CBP's Laredo North Station in
    Laredo, Texas.
        The whistleblowers in these cases and in 14 others that
    came to OSC separately from locations all around the country
    had basically the identical disclosures, that Border Patrol
    Agents or Immigration and Custom Enforcement (ICE) Officers
    claimed 2 hours of AUO each day, but the extra 2 hours of
    overtime work are unlawful because they do not meet the
    requirements for AUO.
        The reports to OSC, again, prepared by OIA substantiated
    the core allegations. The reports confirmed that agents in
    these locations basically just extend their regular shifts by 2
    hours every day, routinely, and that is in violation of AUO
    rules that require unpredictable or irregular law enforcement
    or compelling reasons to stay on duty.
        In addition to the across-the-board substantiation of the
    AUO misuse, there are key differences in the reports that I
    think are worth going through, and these are based on the
    duties of the agents in those locations.
        I want to start by addressing the Border Patrol Agents in
    Laredo, Texas. The OIA report noted that the agents claimed AUO
    in order to complete the post-shift work necessary to travel
    back and forth from a border assignment to the station. They
    call it routine post-shift activities. The agents that were
    interviewed by OIA all indicated that the post-shift activity
    simply cannot be completed in 8 hours. Border Patrol managers
    insisted in the report that employing 10-hour shifts is the
    most cost-effective approach to securing the border, even if
    that means misusing AUO as it is currently used.
        As Congress considers legislative proposals to address AUO
    misuse, it may want to consider the arguments in support of a
    10-hour shift and the unique demands on agents in areas like
    Laredo, Texas.
        The reports on San Diego, California, and a similar report
    addressing AUO abuse at the training facility in Glynco,
    Georgia, present different issues. They illustrate simply how
    broadly AUO misuse extends within CBP. For example, the report
    states that some Border Patrol Agents in San Diego work as
    paralegals. The Border Patrol Agents assigned to paralegal
    duties work a scheduled 10-hour shift and claim 2 hours of AUO
    daily, just like agents in the field. The report notes that
    Border Patrol Agents in the parallel section have the same
    duties as non-Border Patrol Agents in the section, who are
    referred to as civilians. For example, the paralegal Border
    Patrol Agents, they send out notices on seized properties and
    they draft correspondence and do other tasks in support of law
    enforcement efforts, but they are basically in an office
    setting. The non-Border Patrol Agents with the same duties are
    not eligible for AUO and do not work 10-hour shifts, yet, they
    sit side-by-side with the Border Patrol Agents who are working
    the 10-hour shift.
        So, again, as Congress considers pay reform, it may want to
    consider whether and to what extent pay reform should cover
    Border Patrol Agents assigned to paralegal or other office
    roles where non-Border Patrol Agents have the same duties, but
    are not eligible for AUO. And the same issue is present with
    instructors at the Glynco, Georgia, Training Academy and is
    summarized in detail in my written statement.
        I hope this information is useful to the Committee's
    deliberations and would be pleased to answer your questions.
    Thanks very much for having me.
        Chairman Carper. Thank you very much for your testimony.
    Thanks to all of you.
        I see we have a couple of cameras here, and I presume this
    may be broadcast on C-SPAN. There are some people watching this
    around the country, or will later tonight or tomorrow, and they
    are going to want to know, what are they talking about? And, I
    am just going to start off, and I asked our staff, I said, who
    among these four witnesses can actually explain this so that
    someone watching on television, somebody who is maybe not even
    here on this Committee, somebody who might have stumbled into
    the room could actually understand what is the problem we are
    trying to fix, all right. What is it? And, do not use acronyms.
    Use just regular language and just explain it.
        Mr. Vitiello, what are we trying to fix here? What is the
    problem we are trying to fix?
        Mr. Vitiello. We are trying to get ourselves in a situation
    where Border Patrol Agents are sufficiently ready and capable
    and authorized, in whatever format, to engage in post-shift
    activities. And so all agents are scheduled for 8 hours a day,
    and if you were on a factory floor and your boss came in at the
    end of the shift and said, ``I need you to stay. Someone is not
    coming for the next shift,'' they would ask you to stay and
    perform that same activity for the subsequent 8 hours, and in
    most factory settings, that would be double-time. That would be
    considered overtime.
        The government is not different in the sense that it
    requires people to stay on their shift or to do things at the
    end of their shift that prepare the rest of the team to be
    better informed and prepared as they deploy. So, there needs to
    be an overlap, an exchange of information, and so the
    government calls that overtime.
        In the current configuration, that is called
    Administratively Uncontrollable Overtime. It is more complex as
    it relates to AUO, because the statute allows for individual
    agents to assess what mission requirements are in front of them
    and, in essence, self-deploy against the work that is in front
    of them.
        Now, that is a good thing back in the day when it was
    established because it allowed agents the flexibility to work,
    even though their shift might have been over. The other good
    thing it does is it allows for people not to watch the clock.
    If there is work in front of them that is necessary for the
    mission, they can complete that work.
        What this legislation proposes is to continue that
    practice, but it covers all the work post-shift, so, whether it
    is, in fact, chasing a group, or arresting people, or
    preserving the chain of custody for evidence, or informing the
    next shift, or things that are in an administrative setting
    that prepare the next team to be more capable in the shift.
        Now, I think it is important to recognize that in this
    setting, both for AUO and what is contemplated in the
    legislation, it is straight time. So, the compensation for the
    first hour of the shift and the compensation for the tenth hour
    of the shift in this configuration would be the same rate of
    pay.
        Chairman Carper. All right. What concerns have been raised,
    and you can answer this if you want, or if someone else is
    better prepared, that would be fine. But, the concerns about
    abuse, how the current system has been abused or rewarded
    people who should not be rewarded in this manner. Could someone
    just speak to that for us? And, maybe, Mr. Miles, you might be
    the best person to do so.
        Mr. Miles. So----
        Chairman Carper. Concerns have been raised. Talk to us
    about those concerns.
        Mr. Miles. They have----
        Chairman Carper. And, the next question I am going to ask
    is, what has the Department tried to do about this on its own,
    and then talk with us about the legislation. So, what are the
    concerns about abuses?
        Mr. Miles. So, the CBP witnesses are going to be in a much
    better position to discuss the changed circumstances and why it
    is that this overtime authority is being misused. But, in
    general, decades ago, when AUO was first developed, the idea
    was that the border was very big and there were not a whole lot
    of agents, and so if somebody needed to stay after hours to
    arrest somebody or to follow a lead, then they were able to do
    that, and they did not have to report back to headquarters,
    they did not have to call up their boss and ask, ``Can I stay
    on the job?''
        Now, the situation has changed. There are more agents and
    the border has not grown, but technology has been developed
    quite a bit. And so the way in which the border is being
    guarded has changed significantly, and again, I am way out of
    my lane in talking about law enforcement issues, but now, it is
    much more regular, it is much more routine, and it is much more
    predictable, the way that agents are being told to fulfill
    their duties. And so the legal framework, the statutory
    framework that allows for this overtime compensation authority
    says that it has to be unpredictable.
        But, when you look at the reports that have come into OSC
    and what 16 whistleblowers from across the country have told us
    is that, basically, the way that AUO is being used is the exact
    opposite of how it was intended. It is routine. It is daily. It
    is 2 hours a day. And, it is, in contrast to the rules that
    require irregular, unpredictable, and you cannot control it,
    you cannot manage it. And so there is a core legal problem with
    the way that AUO is being used.
        And then we have had secondary allegations that were
    addressed by CBP testimony that said that people are staying on
    the clock just to fulfill those hours, just so that they can
    work a 10-hour day, but they are not doing any work. And those
    allegations, to date, have not been substantiated, that,
    basically, people are goofing off, that they are surfing the
    Internet during the extra 2 hours and not doing any law
    enforcement work. And that has been a concern. It has been one
    that we have not been able to pin down, but that is the
    secondary concern that is going on here.
        Chairman Carper. OK. My next question is, what can the
    Department do to address the abuses but make sure that we are
    treating our Border Patrol Officers fairly, making sure we have
    the human resources we need, on the border? What can the
    Department do itself? What have they tried to do themselves to
    address these concerns?
        Mr. Vitiello. So, I think previously that Paul mentioned
    that the Secretary's memo of January 27, which suspended AUO in
    specific categories. Prior to that and since then, CBP, the
    Department, and others have undertaken a position-by-position
    review to try to discriminate which of the job categories,
    specifically in the Border Patrol in our instance, are still
    eligible, given the rubric for AUO, and which are not. And so
    that suspension went forward January 28 for those discrete
    categories and the position-by-position review.
        Additional training has been authorized and deployed to the
    field. We need to put ourselves in a place, based on the
    subsequent memo of May 23 from the Deputy Secretary, put
    ourselves in a place to better document the actual use and the
    correct use of AUO, even in the field, where it is understood
    that the field is the biggest user of AUO, but there are other
    problems with the way we have been documenting the use of it.
        And in the other categories that are referenced in these
    allegations and the findings of the investigations, there has
    been this overall generalization of how AUO is used and
    authorized, and so we have gotten ourselves in a place where it
    was used in the training environment, it was used at the
    headquarter environment, which sometimes is unpredictable, but
    more often than not, and in the current interpretation, it is,
    in a sense, work that can be scheduled. And so we are getting
    smarter about how we teach ourselves that, and going forward,
    we will have better documentation about the work that is being
    done, whether it is irregular or otherwise.
        So, the work is still there in each of the environments,
    both in the field and at the administrative and training
    regiments, but we are going to use different types of
    compensation, and in either case, in both environments, we want
    to be able to document it more specifically.
        Chairman Carper. OK. I have a number of other questions in
    a second round, and I will just telegraph some of those now.
    They include how would the legislation that Senators Tester and
    McCain crafted, how would it address these concerns? Why is it
    fair to folks who work in Border Patrol and to taxpayers? Are
    there any unintended consequences that flow from the
    legislation?
        Actually, we are told that this is legislation that would
    save anywhere from $25 to $50 million a year--that is a lot of
    money--and, at the same time, effectively put another 1,000 to
    1,200 Border Patrol Officers on the border. That is a pretty
    attractive combination. So, I want to find out just how that
    works.
        All right. Dr. Coburn.
        Senator Coburn. Thank you.
        Mr. Judd, would you say again what you said in your opening
    statement, when you were recruited, that you, in fact, were
    told that you would have guaranteed overtime.
        Mr. Judd. Yes. There were----
        Senator Coburn. And that was what year?
        Mr. Judd. That was back in 1997.
        Senator Coburn. OK.
        Mr. Judd. And, I do not remember what the specific
    announcement that was on the OPM website was, but there were--
    we do job recruitments--we still do job recruitments where we
    send recruiters out to different college campuses and different
    areas and, yes, at that time, we were told we would earn 25
    percent AUO.
        Senator Coburn. And, I understand, that is the expectation.
        Mr. Judd. Yes.
        Senator Coburn. I am not critical of that, I am just
    wanting to get that in the record.
        Mr. Judd. Certainly.
        Senator Coburn. Chief, you said that you need to reform the
    post-shift activities. What about jobs that do not have post-
    shift activities but receive AUO?
        Mr. Vitiello. So, I think we are talking about where the
    suspensions are now, right, the headquarters and the training
    environment. It is the normal course of business at the
    academies and in headquarters that people regularly have
    assignments that carry them past the eighth hour of their
    shift. I will give you some specific examples.
        Over the weekend, I was on several conference calls dealing
    with the situation in which we were moving individual
    unprocessed illegal aliens from South Texas to points west,
    namely El Paso and specifically Tucson Sector. And so arranging
    for the flights, that was being coordinated in the interagency
    not just by me and my team, but arranging for the flights,
    arranging for the destination location so that it was
    sufficiently prepared, that it was sufficiently staffed by
    Border Patrol Agents and others in the interagency, and then
    giving the specific instructions to the Rio Grande Valley
    Sector to make sure that those people were----
        Senator Coburn. I understand that. I am just saying, your
    testimony, then, is that all the departments, all the
    management, all the training facilities need extra time.
    Everybody that works for CBP in a management or training
    facility is going to have at least 2 hours of overtime
    everyday.
        Mr. Vitiello. I think they regularly exceed the shift that
    they are assigned for the specific purposes of preparing for
    the classroom work--again, this work that we did over the
    weekend, we were managing other incidents at the same time that
    required cross-sector coordination, and my team was----
        Senator Coburn. Well, can you imagine, what about other
    areas of the Federal Government? What about the military? They
    are doing that stuff all the time, are they not?
        Mr. Vitiello. They are.
        Senator Coburn. Yes. What about the FDA, if they are having
    a drug problem? They are doing it. To me, it is
    incomprehensible that somebody in a training facility needs to
    be working an extra 2 hours a day to meet the requirements of
    that training facility. That either says we have poor
    management or we have not structured our force right.
        Mr. Vitiello. So, it may require a different force
    structure, but what I am saying is that the Academy curriculum
    is an 8-hour day, so instructors need some time to prepare for
    the intake of those students----
        Senator Coburn. How long have they been being instructors?
        Mr. Vitiello. It just depends. That is an individual
    specific data point and, we assign hundreds of people. When we
    were doing the surge, there were over a thousand instructors at
    the Academy.
        Senator Coburn. Yes.
        Mr. Vitiello. And they stay for rotations of three to five,
    sometimes longer. The portability comment in my opening
    statement was about having people who have sufficiently spent
    time in the field and recognize the challenges that individual
    journeyman agents and supervisors struggle with on a day-to-day
    basis. It is very prudent and desirable and necessary for our
    business practice to develop those people.
        Those make your best instructors, people who are successful
    in that environment. They also make the best staff officers
    that I have at the headquarters because they recognize the
    challenges in the field so that when we send a question
    downrange, when we push a requirement downrange for cross-
    sector coordination, that the people who are sending and
    receiving the information have sufficient experience to know
    what it means. They can fill in the blanks. They can provide
    informed counsel with a requisite level of expertise. That is a
    desirable business model for us.
        Senator Coburn. OK. So, even the administrative assistants
    in the training facilities would need to have two extra hours,
    and even the janitors in the training facilities would need
    to----
        Mr. Vitiello. No, my experience is that----
        Senator Coburn. My point is, is when you ask the American
    public about people in administrative offices getting
    guaranteed two extra hours a day, and all of them have jobs,
    and I am kind of wishing--I would rather go back to the Federal
    labor portion of this and either pay them or increase the
    number so that we adequately reflect it. I just find it a bit
    hard to swallow that everybody that works in management at the
    Border Patrol and everybody that works in the training
    facilities at Border Patrol have a need to have 20 percent
    more, or 25 percent more time added to get their job done, and
    that, to me, says we are not staffed correctly, one, or we are
    managed improperly.
        Mr. Vitiello. Well, I think that the staffing at the
    Academy locations is adequate for the mission at hand. At
    headquarters, in my environment, the staff that I manage, we
    have a very light footprint about 200 officer corps people in
    my headquarters----
        Senator Coburn. But, the point is, if you bring somebody in
    to train, they know how to train or you would not have brought
    them in to train. And, to sit here and make the point that they
    have to have two extra hours at the end of the day to prepare
    for tomorrow in terms of training when they are not consuming
    the whole 8 hours during the training anyway just does not make
    sense. It does not pass the smell test, to me. And, again, I do
    not want any cut in pay. I want this stuff restored.
        My question is, is the assumptions under which we are doing
    all this do not pass muster for common sense. Now, your
    testimony is that everybody at the Border Patrol needs an extra
    2 hours a day to get their job done, and that is whether they
    are on the border or they are not, and I am not sure, even with
    your statement, that you can justify it.
        Mr. Miles, how many allegations of AUO abuse at CBP has
    your office received?
        Mr. Miles. Sixteen, at 16 different locations dating back
    to 2007.
        Senator Coburn. And, what percentage of those cases did the
    whistleblower allege not just that overtime was being mis-
    billed as AUO, but that overtime was actually not being worked
    by some agents, whether agents left early or they were doing
    non-work activities like watching TV or surfing the Internet or
    hanging out?
        Mr. Miles. Some variation of that disclosure was made in
    eight of those cases.
        Senator Coburn. OK. And, have you been satisfied with CBP's
    reports concluding they cannot substantiate allegations that
    agents were billing hours they did not actually work?
        Mr. Miles. Umm, I may not give you a direct yes or no, but
    we have been very satisfied with the----
        Senator Coburn. OK. I do not want to get that going.
        Mr. Miles. Yes.
        Senator Coburn. I will withdraw that question.
        Some of the allegations substantiated by CBP involve cases
    where CBP agents were working alongside CBP Officers or other
    civilians who are not entitled to overtime pay. You talked
    about that.
        Mr. Miles. Right.
        Senator Coburn. Did not the CBP Agents have the exact same
    job as those that were not CBP Agents?
        Mr. Miles. Yes, and that is why I think that the framework
    that OIA has put forth has been helpful for this conversation.
        Senator Coburn. OK.
        Mr. Miles. We can go into more detail about the training
    facility. For example, the Border Patrol Agents who testified
    they were in the instructor position said that they needed 10
    hours a day in order to get the work done, and I am sorry for
    the acronym, Chairman Carper, but as a Customs and Border
    Protection Officer (CBPO), who is not eligible for AUO but is
    in the same instructor position, they routinely testified that
    they can get the work done within 8 hours----
        Senator Coburn. That is my point.
        Mr. Miles [continuing]. And they----
        Senator Coburn. That is my point. To your knowledge, has
    management ever tried to stop agents who perform these job
    responsibilities from working past 8 hours a day?
        Mr. Miles. I am not aware of any.
        Senator Coburn. OK. Mr. Hamrick, describe for me your
    investigation of the OSC referrals in terms of those people who
    were not working. How did you go about the investigation to
    substantiate or to not substantiate those claims?
        Mr. Hamrick. The Office of Internal Affairs conducted six
    separate investigations regarding allegations of AUO misuse by
    CBP employees. In each of those investigations, our Internal
    Affairs Agents collected all the relevant documentary evidence
    that was available. We conducted interviews with all the
    relevant employees, interviewed complainants where the
    complainants were identified, interviewed all available
    witnesses as well as employees who were alleged to be misusing
    the AUO compensation system, documented those investigated
    steps, in at least one case, conducted surveillance out in the
    field, documented----
        Senator Coburn. Describe that.
        Mr. Hamrick. Our agents actually were in the field watching
    employees at a----
        Senator Coburn. Were the employees aware?
        Mr. Hamrick. No. Covert surveillance, sir. Watching the
    employees to see what time they reported to work, what time
    they left work, and then comparing those activities with the
    hours that were documented.
        Senator Coburn. OK.
        Mr. Hamrick. Once our investigations were complete, all the
    investigative activities were fully documented. The
    investigative reports went through a series of management
    reviews within the Office of Internal Affairs, both at the
    field office level as well as at headquarters. Once our
    Internal Affairs managers were satisfied that the
    investigations were adequate and complete, the investigative
    reports were subject to a second level of review at the Office
    of Chief Counsel at CBP. Once that level of review was
    complete, the reports were forwarded through the leadership to
    the Office of Special Counsel.
        Senator Coburn. But, the employees, in general, were aware
    that AUO was a hot topic.
        Mr. Hamrick. Sir----
        Senator Coburn. This had been in the press.
        Mr. Hamrick. Yes, sir.
        Senator Coburn. Yes. So, basically, observing agents at
    work, you determined that everything else that the
    whistleblower said, other than eligibility, was not accurate--
    --
        Mr. Hamrick. In----
        Senator Coburn [continuing]. In most instances.
        Mr. Hamrick. In each of the six investigations that we
    conducted regarding allegations of AUO misuse, what we
    confirmed was that the hours claimed were being worked. We also
    confirmed that those hours that were worked were not properly
    compensated under the AUO provisions and that another overtime
    compensation mechanism should have been used.
        Senator Coburn. OK. I am way over time. Senator Tester,
    sorry.
        Chairman Carper. Jon, you are on.
        Senator Tester. That is perfectly all right.
        I will just start out a little bit talking about the
    benefits of the bill and then we will get into some meat here
    in a second. I think all of us can agree this is an antiquated
    pay system, set up 40 years ago, that does not meet the needs
    today. I think the Border Patrol has come to us asking for some
    reforms. I think it is appropriate that we listen to their work
    that they are doing in the field. I went through border
    stations several times, but I have to tell you, I have never
    packed a gun on the Northern Border and faced what you guys
    face, putting your lives on the line everyday.
        But, yet, coming to us in support of a pay cut--and we will
    get into that in a second--I would just say that one thing that
    this bill does--and it does many things--is it gives stability
    to the hours that they need, and I think that stability in
    hours is very important. When you have folks up there, the last
    thing they need to be thinking about is when the shift goes
    off.
        But, at any rate, I would ask you, Deputy Chief Vitiello,
    is the CBP supportive of this legislation?
        Mr. Vitiello. Yes, sir.
        Senator Tester. How about you, Mr. Judd? Is your
    organization supportive?
        Mr. Judd. Yes, sir.
        Senator Tester. For both Mr. Judd and Mr. Vitiello, do you
    believe this legislation increases the Border Patrol's
    operational capacity and its effectiveness?
        Mr. Vitiello. It will.
        Mr. Judd. I do not believe it will, I know it will.
        Senator Tester. OK. Will it help or hurt recruitment and
    retention of Border Patrol Agents?
        Mr. Vitiello. I think it will help.
        Mr. Judd. It will help.
        Senator Tester. Does it provide more certainty for the
    agents and their families, both of you?
        Mr. Vitiello. Agree, it does.
        Mr. Judd. Absolutely.
        Senator Tester. And, we are probably going to get into cost
    savings in a minute, but does your group and your agency
    believe that this saves money?
        Mr. Vitiello. It does. The key provision of eliminating
    FLSA for overtime work, as the workforce is now entitled, would
    save us considerably.
        Senator Tester. OK. I want to talk about training for just
    a little bit. Mr. Vitiello, who do you use for training?
        Mr. Vitiello. There are a variety of assignments at the
    Academy, but some of the instructors are, in fact, Border
    Patrol Agents that teach operational aspects of the work in the
    Academy setting.
        Senator Tester. OK. And, you said these are 8-hour
    sessions?
        Mr. Vitiello. The curriculum is 8 hours, plus lunch, et
    cetera.
        Senator Tester. OK. One thing that I would really like to
    point out is that if I am on a Northern Border and somebody
    asks me to become a trainer--and, by the way, I applaud the
    fact that you guys are using Border Patrol Agents to train
    with--there is no way I am going to take a reduction in pay to
    come here. And, I think furthermore, if, in fact, you are using
    agents, that solves a problem that I have with a lot of the
    agencies around here that actually have people in training
    positions that do not know what is going on out in the field.
    You are using folks that know what is going on in the field to
    train the folks that are going to be out in the field, that is
    correct?
        Mr. Vitiello. Correct. We use lawyers to teach the law. We
    use physical training (PT) instructors to teach physical
    techniques. We use Border Patrol Agents who have driven in the
    field and know how to operate our vehicles and systems, et
    cetera. And then the whole range of operational techniques are
    taught by agents, as well.
        Senator Tester. OK.
        Mr. Judd. Senator, may I----
        Senator Tester. Yes. Sure.
        Mr. Judd. I taught at the Academy. I would have never went
    to the Academy if I was going to lose 25 percent of my pay. It
    would not have happened.
        Senator Tester. OK. We are currently, in this day and age,
    using--I hate to even bring this up--but unmanned aircraft and
    drones to secure our borders, and we have been successful using
    technology to fight against terrorism. The question is, with
    this age of technology, why do we need more agents? Go ahead.
        Mr. Judd. Senator, the technology is fantastic, but the
    technology does not arrest anybody. When I am dealing with
    groups of illegal aliens or drug smugglers, I am dealing with
    anywhere between 20 to 40 persons and those drones cannot put
    hands on those individuals to arrest them. Normally, when I am
    dealing with these groups, it is me and one other person. And
    so the drones do a phenomenal job of spotting the groups, but
    now I have to get to the groups and I have to actually arrest
    them. Those drones cannot do that. That is why we have to have
    the manpower to effectuate the arrests.
        Senator Tester. OK. Mr. Miles, I believe in your testimony
    you said that the research bore out that five 10-hour shifts--
    correct me if I am wrong--five 10-hour shifts is optimal?
        Mr. Miles. We received a report back, and again, a very
    helpful report from OIA discussing the San Diego Sector, and
    managers there--I am sorry, Laredo North Station, Laredo,
    Texas.
        In Laredo, the managers insist, and they provide--they do
    an extensive discussion on the costs and benefits of doing a
    10-hour shift versus an 8-hour shift.
        Senator Tester. Right.
        Mr. Miles. And, I think that is a legitimate area for
    Congress to consider. What the report confirms is that that 10-
    hour shift is currently being compensated with AUO, and that is
    not lawful, and so----
        Senator Tester. Yes, I have that.
        Mr. Miles [continuing]. We need to figure out if 10 hours
    really is the best way in that particular----
        Senator Tester. And the reason it is not lawful is because
    when AUO was set up, it was set up for conditions that were
    unpredictable, correct?
        Mr. Miles. Correct.
        Senator Tester. If it would have been set up and said, we
    are going to make it predictable. You use the AUO whenever you
    want and do whatever, it would have been fine. But, the fact
    is, unpredictability.
        Mr. Miles. Right, and that is why, I think, we wanted to
    flag that, because it really is worth understanding from the
    CBP witnesses why 10 hours is the most cost-effective approach
    to securing the border.
        Senator Tester. OK. Mr. Judd, when discussing pay reform,
    and we are discussing this bill, we are talking about how much
    money it is going to save, why would your folks be in favor of
    it?
        Mr. Judd. Because the alternative is worse. What we have
    found is, again, Mr. Miles has testified that what we are doing
    is not actual AUO. Mr. Hamrick has testified that the hours are
    being worked, but it is being improperly compensated.
        Senator Tester. Yes.
        Mr. Judd. If it was properly compensated, you would
    actually be paying me more money than what AUO pays. I would
    love to keep AUO. In fact, if I could convince you to amend the
    AUO laws so that I can keep AUO and FLSA, I would do that. But,
    unfortunately, we have this budgetary constraint where nobody
    is willing to consider a time-and-a-half overtime system, and,
    therefore, we are asking you for this.
        Senator Tester. Fine. We are going to have several rounds,
    right, so my time is up.
        Chairman Carper. I was about halfway through my questioning
    when I yielded to Dr. Coburn. I want to just come back and pick
    up where I left off.
        The next question I want to come back, and we have talked
    about this a little bit, but I want to talk about it some more,
    and the question I would ask--let me just start with you, Mr.
    Miles, and come from my right to my left--what concerns have
    been raised about--well, let us just go back. What concerns
    were raised about the original policy that has been in place
    for a number of years? What concerns have been raised? And how
    does this legislation address those concerns?
        Mr. Miles. Yes. So, I think, three separate concerns. One,
    that AUO is unlawful, because it is being used routinely
    instead of for unpredictable work. Two, a lot of the
    whistleblowers were concerned that AUO was being used in an
    office setting or in an administrative setting and by managers
    in those types of settings. And, three, which we have discussed
    in some detail, that AUO is being claimed for hours that are
    not worked at all or while people are doing various things.
        So, the legislation would clearly address the first issue,
    on whether or not the hours that are being worked that can be
    scheduled in advance, it would provide a legal framework for
    compensating the individuals who are working those hours.
        Chairman Carper. All right. Mr. Hamrick, same question,
    please.
        Mr. Hamrick. I would echo Mr. Miles. The legislation will
    allow CBP to properly compensate employees for their overtime
    work, which they are entitled to, while alleviating the issues
    that we are currently experiencing with the limitations on AUO
    and what type of overtime hours can be worked under AUO and how
    those can be paid.
        Chairman Carper. OK. Mr. Judd.
        Mr. Judd. Simply, this would make what we do legal. I do
    not know how better to state it.
        Chairman Carper. All right. Mr. Vitiello.
        Mr. Vitiello. I agree. There are specific mission
    requirements that, in the system like what is contemplated in
    the legislation, would allow for us to do. And then, if we--and
    avoid some of the transactions that occur if you were on a fee-
    for-service issue. You would change what the expectations are
    of both managers and individual agents and they would always be
    watching the clock versus what we can accomplish now, which is
    to continue the work until the end of the shift.
        Chairman Carper. OK. I am just going to lay out an example.
    Let us just say, instead of Senator Coburn and myself and
    Senator Tester being Senators, let us just say we are Border
    Patrol Officers, and we will say that Dr. Coburn is over in
    California along the border there. Maybe I am in the Tucson
    Sector, and Senator Tester is in South Texas.
        There is not much going on along the California border, and
    after 8 hours, Senator Coburn is done. I am on a part of the
    border where there is a lot going on and I have maybe 20 people
    that I am tracking across the border and trying to catch up
    with them, and I am working well beyond my shift and maybe work
    an extra 4 hours just to try to track them down and hold them
    until somebody can come and relieve me. And Senator Tester is
    actually going the other way, down into--maybe across the
    border and trying to apprehend somebody who slipped back across
    the border and he uses up an extra 2 or 3 hours.
        I think most people who are familiar with overtime issues
    know that people working in similar kinds of jobs do not always
    have to work as long every day. So, common sense--my dad always
    used to say, just use some common sense. I think somebody using
    some common sense here would say, well, somebody is working--
    Officer Coburn over here is working an extra 4 hours to track
    down and hold 20 people, or I am and he is not, whatever, why
    do we not just pay people along those lines? I think I know the
    answer, but I would like to hear you say it anyway.
        Mr. Judd. If you would, I would like to take that question.
        Chairman Carper. Please. In fact, I want each of you to.
        Mr. Judd. OK. If you were a Border Patrol Agent, you would
    love your job. You may not like where you live, but you love
    your job. What we have seen, again, since we have cut the
    number of hours, we have seen that these criminal cartels are
    exploiting the holes that we have created.
        Just because you are in a patrol function and you might not
    be arresting somebody does not mean that you are not performing
    an essential job. What you are doing is you are actually
    deterring the entrance of illegal aliens. So, if you are out
    there and you are patrolling the border, just because you are
    not putting hands on somebody who is committing crime, you are
    letting them know that your presence is there and that you are
    ready to put hands on them, if need be. And when I say, ``put
    hands on them,'' I am talking in a legal and lawful way. But,
    we are ready and we are prepared to deal with the threat that
    will present itself if we are there.
        Chairman Carper. Let me hear from others, please.
        Mr. Vitiello. So, in the simple example in San Diego,
    before you were done with the assignment at the line, even if
    there is not anything specifically spectacular going on, we
    want someone to relieve you, and so there needs to be a
    compensation mechanism that allows for that relief and so that
    I can use a three-shift model to expand the deployment versus
    some kind of four-or five-shift model where there is an overlap
    before the end of your shift for relief. So, AUO is not suited,
    and we have been called on that administratively and in the
    legal framework, for using it as relief, and so you cannot. So,
    AUO is not specifically for that.
        In the tracking example in Laredo or elsewhere, that is
    pretty straightforward. That is what AUO was designed to do.
    But, in the AUO construct, when you have 85.5 hours, when you
    hit the 85.5-hour threshold, we are going to pay you more for
    those extra hours beyond 85.5. That is what FLSA compensation
    and the law allows for. So, it would be more expensive at that
    point going forward, and the same is true for RGV. There are
    additional hours. It is not just the 25 percent. It gets you up
    to 25 percent, and once you get beyond that 85.5 hours, then
    you are getting closer to a time-and-a-half model versus what
    is contemplated in the legislation, which is straight pay for
    the first 10 hours.
        Chairman Carper. Mr. Miles, Mr. Hamrick, can you add or
    take away to this, please.
        Mr. Miles. So, I think the only thing that we would want to
    add to the conversation is a fourth and a fifth example. It is
    the instructor at the training facility and the paralegal in
    San Diego. And, I think Mr. Judd makes really good arguments,
    that from a recruitment and retention standpoint, maybe you
    cannot get a Border Patrol Agent to go to Glynco, Georgia, if
    he is not going to get a promised ninth and tenth hour.
        But, that is really a cost-benefit analysis that we do not
    feel comfortable making, but just wanted to flag that issue and
    put it out there as far as whether, in all three of your
    examples plus the additional two administrative or office
    settings or training settings, whether that is something that
    should be institutionalized.
        Chairman Carper. Could we not just say, if you want to have
    somebody who is really experienced out in the field, he would
    make a good instructor, in order to induce him or her to come
    and be an instructor, pay them a stipend. Pay something extra.
    What is wrong with that?
        Mr. Vitiello. I think that would work in a general sense.
    We are just not equipped--the tools do not exist for us to do
    that now.
        Chairman Carper. OK. Before I yield to Dr. Coburn, just
    very briefly, unintended consequences. Any unintended
    consequences that would flow from the legislation that Senators
    Tester and McCain have worked on, please? Mr. Judd.
        Mr. Judd. We have looked at this every way imaginable. This
    is a 4-year process that we are seeing and I think that we have
    attacked this the best that we possibly can and I just do not
    see any unintended consequences.
        Chairman Carper. Others, please.
        Mr. Vitiello. I would just say that we have learned from
    the mistakes and the problems with AUO. This legislation
    borrows from existing structures. The rest of Federal law
    enforcement, both in the Academy and in the headquarters
    setting, use the Law Enforcement Availability Pay (LEAP) model,
    which is 25 percent compensation for those formats. So, we have
    looked at that. It resonates a bit in this, but this is, I
    think, a better scenario for CBP and the Border Patrol because
    it contemplates not being available as in some of the other
    statutes but actually being assigned.
        Chairman Carper. OK. Mr. Hamrick or Mr. Miles, please, and
    then I will yield.
        Mr. Hamrick. I have nothing to add, sir.
        Chairman Carper. OK. Mr. Miles.
        Mr. Miles. And, we have tried to flag the issues that we
    think are worth all of you considering as you debate and
    discuss this bill, so do not want to go into those again.
        Chairman Carper. OK. When I come back, I would like to talk
    about--Dr. Coburn may have already raised this issue--but the
    issue of the calculation of pensions and how it works now and
    how it would change under this legislation. Dr. Coburn.
        Senator Coburn. Chief Vitiello, would you support capping
    the number of agents getting 100 hours at 90 percent until an
    audit is done that would say you need to go above that?
        Mr. Vitiello. What is contemplated in the legislation is
    for Border Patrol to have a baseline requirement in every
    location, at least 90 percent of the core workforce to be at
    the level one, which is maximum capability.
        Senator Coburn. Yes.
        Mr. Vitiello. We think that is important for stability and
    projection of cost.
        Senator Coburn. You mentioned availability pay by the
    Federal Bureau of Investigation (FBI), Secret Service, and some
    of these other law enforcement agencies, but are they not
    required to be available on a 24-hour basis to get that
    availability pay?
        Mr. Vitiello. They are required, but the difference between
    that statute and my understanding of it, because I do not
    administer it, and what is contemplated here is this compels a
    10-hour day. LEAP does not.
        Senator Coburn. OK. I just wanted to put something in the
    record. In 2013, we had 21,391 Border Patrol agents. In 2005,
    we had 11,264. Arrests were 1,189,000 in 2005. They were
    420,789 in 2013. Technology has helped us a great deal, but we
    have doubled the Border Patrol and yet our arrests are down.
    Part of that is because we do not have the ingress, I would
    think you would agree. It had decreased for a period of time
    due to the economic condition that we went under.
        The other thing I want to enter into the record is the
    National Journeyman Border Patrol gross earnings and agency
    cost. This is a comparison of AUO versus Federal Employee Pay
    Act (FEPA) FLSA and the bill as put forward, and it does
    document some savings that will be there.
        And, I will come back again to you, Chief. Until we can
    know just from a common sense standpoint who really needs
    overtime within your organization--I agree that the 90 percent
    number is a good number, Jon. I do not have any problem. I have
    a problem getting above that in some of these other areas where
    it would not seem fair to people that work in other areas of
    the Federal Government that we are going to compensate people
    who are not doing things that require extra time, that they get
    paid for that. So, in your written answers to our Committee,
    you said that you would support that. I am trying to get you to
    answer that question now.
        Mr. Vitiello. So, I think it is appropriate, given your
    description of the growth over the last several years, that the
    Border Patrol, CBP, and the Department take time now to refine
    how we use the hours that are available. I prefer maximum
    capability in every location, and we are building a system by
    which we can show you and others how many hours are spent at
    each location, and not only that, but in discrete categories of
    work.
        And so I think that is important, and we are happy to be a
    part of a demonstration to this body and others that says, here
    are where all the 21,000 agents are, here is where they spent
    all the time, hour by hour. That is a refinement that we are
    pursuing. We think it is important. Given the growth that we
    have had, the increase in capability, we agree that the
    environment has changed. But, it is still a dynamic place, and
    over time, we would like to be in a position to account for
    hours worked and attribute them to the work being done. I think
    it would be easy for us to substantiate the maximum capability.
        Senator Coburn. So, does that tie in with the study that
    you all are doing now in terms of the AUO and everything, in
    terms of--you are trying to get a better management handle by
    metrics and by location and by area. Does that tie in with what
    the Secretary has asked in terms of an AUO evaluation and the
    study that you all are doing now?
        Mr. Vitiello. They are independent in the sense that one
    was started with in mind to reform the situation that we are
    in, and to the extent that we can improve the AUO condition, we
    are going to do that. The management requirements determination
    process will support our effort to refine and demonstrate to
    you the capabilities that are being used and how they are being
    used, but it will also inform the Secretary's work and the task
    that he has given us to reform this issue going forward. We
    will be able to quantify and justify the hours as they are
    being used.
        Senator Coburn. OK. All right. I just have a couple other
    pieces of paper I would like to put into the record for
    comparison.\1\
    ---------------------------------------------------------------------------
        \1\ The papers submitted by Senator Coburn appears in the Appendix
    on page 56.
    ---------------------------------------------------------------------------
        Chairman Carper. Without objection.
        Senator Coburn. And, I have no other questions.
        Chairman Carper. All right. Senator Tester.
        Senator Tester. Yes, thank you, Mr. Chairman.
        A couple questions for Mr. Miles real quick. We have two
    Special Counsel reports that outline the abuse and misuses of
    AUO. Your office has published two reports on the issue, one in
    2008 and, I think, one in October of this last year. Do you
    think DHS has provided adequate redress during the 5-years the
    agency has known about the problem?
        Mr. Miles. I think our October letter outlined a lot of
    concerns with the pace that DHS was making reforms and, for
    example, in 2007 and 2008, DHS committed to issuing a
    Department-wide directive to address the AUO issue, and in then
    in the 2013 communication, we noted that the directive was
    still lacking. However, since you held your hearing on AUO----
        Senator Tester. Yes.
        Mr. Miles [continuing]. They have taken a lot of productive
    steps and a lot of those are making a difference.
        Senator Tester. I want to talk a little bit about a
    suggestion that Senator Coburn brought up in his opening
    remarks, and you guys can add to it. He talked about just
    changing the base pay, not doing all this, what we are doing in
    this bill, but just changing the base pay, and my take on that
    is that we do need to address the extra hours needed on the
    border that that would not address. And we do need to address
    the overtime issue that that would not address. And, we need to
    provide some stability in the schedule because the previous
    two, that would not address. Would either Mr. Judd or Mr.
    Vitiello want to add to that at all.
        Mr. Judd. In essence, we are, in fact, changing the base
    pay. The overtime hours, although it is beyond 8 hours, it is
    still being paid at straight time, so, in essence, you are just
    changing the base pay. What you are doing is you are putting a
    guarantee in there that this is what we are going to make,
    which is what we do not currently have. So, you are changing
    the base pay. This will become part of the base package.
        Senator Tester. Mr. Vitiello.
        Mr. Vitiello. The current system supports a regular work--
    what is contemplated in the legislation better supports
    irregular work, but it also gives us management controls that
    Border Patrol leadership does not have now in the self-
    deployable overtime and it gives us greater accountability with
    regard to where people are in relation to their base pay and
    then the extra hours that they are putting in each day.
        Senator Tester. Mr. Hamrick, do you believe, and I do not
    want to put words in your mouth, but do you think part of the
    problem with AUO is just bad management?
        Mr. Hamrick. No, Senator Tester, I believe that the biggest
    issue is the challenge in identifying what overtime hours are
    legally compensated through AUO and what overtime hours are
    not. I once was an AUO earner myself, many years ago, before
    the LEAP law came into effect, and in nearly 28 years in
    Federal law enforcement, I have learned more about LEAP, or
    AUO, in the last 12 months than I ever knew as an AUO earner.
    So, it is a complicated pay system that is difficult to
    navigate.
        Senator Tester. Would you agree this would simplify that
    pay system?
        Mr. Hamrick. Yes, sir.
        Senator Tester. Make it easier to audit?
        Mr. Hamrick. Yes, sir.
        Senator Tester. I want to talk about retention and
    recruitment for just a second. I should have brought a picture
    of my farm in here. I live about 75, 80 miles south of the
    Northern Border. What impact do you think--you already said
    that this would help with retention and recruitment, Mr. Judd,
    and Senator Coburn has always said he does not want to reduce
    pay, and I believe both of you, OK. The question becomes, if
    we--I am very concerned about retention and recruitment, and
    kind of, Mr. Judd, could you give me your take on how this will
    be accepted versus completely redoing the system and not giving
    the kind of predictability that I think this bill does.
        Mr. Judd. Senator, it is very simple. Back in 1997, when I
    pursued a career with the Border Patrol, I was in the process
    of two other local law enforcement agencies. These local law
    enforcement agencies were in very desirable locations in which
    to live. The only reason that I took the Border Patrol job was
    because with the AUO, it was more money.
        Senator Tester. OK.
        Mr. Judd. I moved to a very, well, frankly, a less
    desirable location to live, but I did that because I was making
    more money, and over the long term and with retirement, it
    would have been better for me. If you get rid of this 25
    percent, you will not be able to recruit quality individuals to
    do this job.
        Senator Tester. OK. I appreciate that. I would just like to
    make one real quick statement. It deals with making the floor
    the cap that Senator Coburn had talked about. And, I would just
    say, we really depend on Customs and Border Protection and the
    folks that are out in the field to determine what their needs
    are the same way we depend upon the military to tell us what
    their needs are and we act. We are hearing from the agency and
    we are hearing from the folks that are working on the ground
    that 90 percent is a reasonable floor.
        And, I think it would be dangerous to use it as a cap,
    because these are the guys that are out there. They know the
    impacts that are happening every day. They know the kind of
    intrusions on that border that, quite frankly, I do not hear
    about and most of the folks that live closer to the border than
    I do not hear about.
        I do not speak for Senator McCain, and it is too bad he is
    not here. If there wanted to be an audit done and that audit
    showed that that 90 percent floor was too high or not high
    enough, that might be a way to go. But, I think, to put it as a
    ceiling would be dangerous.
        Senator Coburn. That is fine with me.
        Senator Tester. OK. I yield.
        Senator Coburn. I just have a couple other questions for
    Mr. Hamrick. OSC has referred 10 cases of AUO abuse to CBP, and
    six of those are under your office. That is my understanding.
    Is that right?
        Mr. Hamrick. My office has conducted six investigations
    that were referred to us by the OSC----
        Senator Coburn. There were 10 total referrals, right?
        Mr. Hamrick. I----
        Senator Coburn. Yes, that is the number.
        Mr. Hamrick. OK.
        Senator Coburn. So, where are the other four cases, and who
    is investigating those?
        Mr. Hamrick. Because there was an allegation of AUO misuse
    against the Office of Internal Affairs, our agents are no
    longer----
        Senator Coburn. Got you.
        Mr. Hamrick [continuing]. Conducting those investigations.
    They have been referred to the IG----
        Senator Coburn. That is fine. I understand that. Thank you.
        Chairman Carper. I want us to go back in time a couple of
    years, I think, to 2012. I know the problem with
    Administratively Uncontrollable Overtime is not a new one. In
    fact, I think the President, I want to say it was in his fiscal
    year 2012 budget request included a legislative proposal that
    attempted to address this problem by putting Border Patrol into
    a system, as you know, known as the Law Enforcement
    Availability Pay. And, as I understand it, the Law Enforcement
    Availability Pay proposal generally applies to criminal
    investigators such as the FBI, such as the Drug Enforcement
    Agency (DEA) or Secret Service Agents, gives them a 25 percent
    increase in their base salary based on the expectation that
    they will be available to work as needed. And, that was a
    proposal in 2012. Congress failed to act.
        Let me just ask, if I could, Mr. Vitiello, and then Mr.
    Judd, could you explain to us what happened in 2012 with this
    legislative proposal, and if you would, please explain why you
    believe the Tester-McCain bill is an improvement over the 2012
    legislative proposal to put Border Patrol on LEAP along with
    DEA, the FBI, and the Secret Service. Mr. Vitiello.
        Mr. Vitiello. So, the agency and through the request
    advocated for conversion to LEAP in the sense that it did offer
    the same kind of savings that are contemplated here. But, there
    were several stakeholders that were opposed to the way LEAP is
    used, and for our work on----
        Chairman Carper. Who might those stakeholders be?
        Mr. Vitiello. The National Border Patrol Council, among
    others, seated to my left.
        Chairman Carper. OK. [Laughter.]
        And, what were their reservations?
        Mr. Vitiello. Well, like what is contemplated here, FLSA
    was not going to be remuneration going forward, and they were
    concerned, and I will let Brandon speak for himself, but the
    concerns we heard from them was that there was not a threshold
    to which to manage against or to. And, they were concerned that
    management could abuse that.
        What is contemplated in the legislation are thresholds and
    unilateral ability for management right to assign folks to keep
    them below or near or at the threshold. And so what is here is
    much improved from that experience. This borrows a lot from
    LEAP in the sense that it solidifies the macro budget picture.
    It allows us to forecast going forward without using FLSA as an
    unpredictable cost in the future.
        Chairman Carper. Mr. Judd, do you agree? Did you approve
    this message? [Laughter.]
        Mr. Judd. I absolutely agree that it was the National
    Border Patrol Council that was adamantly opposed to LEAP. The
    simple reason that we are opposed to LEAP is because this whole
    notion that all you have to do is be available to be paid,
    somebody needs to go back and read the law and I think that you
    need to start investigating some other agencies.
        In fact, the law specifically states that you must maintain
    a certain number of hours that you have to be scheduled. The
    problem with LEAP is you can schedule me for 10 hours, but if I
    work over 10 hours for that day, it is free. And there is no
    mechanism to force them to let me go after 10 hours.
        So, in other words, in a real world sense, if I am in a
    certain area on the border and the relief that is going to
    relieve me for today calls in sick, the agency could call me up
    and say, hey, your relief just called in sick. We did not
    schedule this to happen. We need you to work a double shift.
    And, by the way, that double shift is now going to be free.
        So, we needed a mechanism to ensure that the agency was not
    going to work us beyond 10 hours per day and work us for free,
    and that is what this legislation does. This gives us what we
    call back-end protections to ensure that we get compensated for
    the work that we do.
        Chairman Carper. OK. Thanks. I have another question. In
    fact, I have a couple more. Let me just use my time and then I
    will yield back to you, Senator Tester, if you would like to
    take more time.
        I have a question on operational tempo, the number of
    shifts worked per day, if I could, and I think I will probably
    address these couple questions to you in this regard, to you,
    Mr. Vitiello. But, I understand that one of the most widespread
    misuses of Administratively Uncontrollable Overtime at the
    Border Patrol has been to pay for the extra time it takes
    employees to transition from one shift to another, and this has
    allowed the Border Patrol to use three, I am told, three 10-
    hour shifts at many locations rather than four 8-hour shifts.
    In fact, the Office of Special Counsel noted in its written
    testimony that Border Patrol, and this is a quote, I think,
    ``managers insist that employing three 10-hour shifts is a more
    cost-effective approach to securing the border, even if
    Administratively Uncontrollable Overtime may not properly be
    used for routine activities.'' That is a quote.
        A couple of questions, if I could. Mr. Vitiello, I would
    like to ask you to explain why the Border Patrol believes that
    using three shifts instead of four is a more cost effective
    approach to securing the border.
        Mr. Vitiello. So, I agree with the managers in San Diego
    who pointed that out in those interviews. In an ideal setting,
    24-by-7, 7-day-a-week workload along the border, you would have
    to transition between shifts, however it is better to have
    three shifts with the overhead, the managers, and the
    supervisors, versus four or five shifts to predict and then
    schedule that overlap. It is better to have a three-shift
    model, with time for one shift to transfer information to each
    other before one starts and the previous shift is relieved.
    Under the current system, AUO does not allow for relief to be
    paid for using AUO.
        So, whatever system we went going forward, it is always
    better to have three shifts instead of four. You have better
    capability that way. But, you would still need to figure out
    how to transfer that knowledge, and that requires time.
        Chairman Carper. Let me just followup on this. You
    addressed this, at least in part, but I am going to ask it
    anyway. What would be the impact on your operations and your
    ability to secure the border if you were forced to move to four
    shifts across the board as a result of not being able to use
    Administratively Uncontrollable Overtime to pay for shift
    changes?
        Mr. Vitiello. You would just need more agents to do the
    same amount of work. We would prefer, and it is most
    advantageous to the organization as it relates to predicting
    costs and the future stability that you have three shifts
    instead of four. It is more cost effective. You would have to
    hire more agents to get the same level of deployment across the
    24-hour period.
        Chairman Carper. And, finally, Mr. Vitiello, how will the
    Tester-McCain bill we are considering today impact your ability
    to schedule fewer shifts and, thus, deploy additional agents to
    the border each day?
        Mr. Vitiello. What is contemplated here is that it would
    allow for using this model to compensate people for that
    relief. There are also lots of missions that occur after the
    shift is over--transferring information, landmarking
    apprehensions, developing trends to inform the next day's
    deployment, the next shift's deployment, the trends that are
    happening in real time. We want agents to record and transfer
    that at the end of their shift so that the next shift is more
    capable, and so that as they deploy the next day, they are
    smarter about where they place their assets and how supervisors
    move people from one side of a deployment area to another. So,
    you need to have that transfer of knowledge. You need that
    overlap, not only for the physical presence, but for the
    information and the rapid response that is required based on
    the information that they develop while in their shift.
        Chairman Carper. Thanks very much. Senator Tester.
        Senator Tester. Thank you, Mr. Chairman.
        I want to thank each one of the witnesses today for your
    testimony and for your straightforward answers.
        I would just like to say, it is seldom in the U.S. Senate
    that we get a bill that makes a situation simpler, that the
    agencies want, that the people that are employed by the
    agencies want, that saves money, that increases efficiency,
    that increases predictability, and we do not throw it out of
    here as quick as we can.
        We have a problem. I think all four of the witnesses have
    pointed out what the problem is. And, I think that if the
    Senate does what it does so very well, and that is talk it to
    death and delay it to death, we will not get this problem
    solved. And the ultimate thing that will happen if we do not
    get this problem solved is our borders will be less secure and
    we will be looking around, pointing our fingers at you guys,
    saying, why did you not do this or why did you not do that,
    when, in fact, it is our obligation to make sure you have the
    tools to be able to do your job to protect the border in a way
    that you know how it needs to be protected.
        With that, Mr. Chairman, I would say that we are in the
    first or second week in June. If we do not get this bill out of
    Committee and if things go upside down on our border, we can
    reconvene this Committee of Homeland Security and talk about
    how we have screwed up.
        With that, Mr. Chairman, I will ask you, when will there be
    a markup on this bill?
        Chairman Carper. I am going to confer with Dr. Coburn. We
    will let you know later this week.
        Senator Tester. Later this week, we ought to have a markup
    on this bill, Mr. Chairman.
        Chairman Carper. I will confer with Dr. Coburn. We will let
    you know later this week, and we will invite you to be part of
    that conversation, along with Senator McCain.
        Senator Tester. Well, just let me make it very clear. This
    is not something we should screw around with. We have people
    out here that were probably watching this on C-SPAN right now
    wanting to know what we are going to do. We have folks who work
    for CBP that like their job, are proud of their job, and that
    if we do not set some certainty down for these folks, they are
    going to go to work somewhere else. We need to fix it so it can
    be audited, so that we know what we are doing, and so that
    these folks have some predictability.
        Chairman Carper. OK.
        Senator Tester. Now, we can put it off until the end of the
    month, but keep in mind, the longer we put this off, we have to
    get it off the Senate floor, we have to see if the House can
    get it done, and then we need to get it implemented, and time
    is a waiting. We have 11 weeks left.
        Chairman Carper. OK. Well, I think, Senator Tester, I think
    you know that there has been a lot of discussion about whether
    or not--if this bill saves as much money as we are told it
    might, that it might be available to serve as an offset to
    strengthen our cyber capabilities----
        Senator Tester. I appreciate that.
        Chairman Carper [continuing]. Within the Department of
    Homeland Security. So, believe me, I understand the need for
    moving it along.
        Senator Tester. Mr. Chairman, I would tell you, if this
    bill does not save one thin dime, if it is revenue neutral, we
    ought to do it.
        Chairman Carper. Fair enough. I hope it saves more than a
    few thin dimes. And I thank you very much for all the work that
    you and your staff and that of Senator McCain have done. I wish
    he could be here. I understand he could not, but we will put
    our heads together and talk this week, and if we can do it
    early this week, we will do it early this week.
        Senator Tester. I am free tomorrow afternoon, just so you
    know.
        Chairman Carper. All right. Well, that is good. [Laughter.]
        I am getting your drift. All right. This might be my last
    question. It deals with the surge that we have seen in
    unauthorized migration from Central America, particularly the
    record numbers of unaccompanied minors that are coming, and the
    effect they are having on the Border Patrol's ability to carry
    out other parts of its mission. Specifically, I think you noted
    that the surge we are seeing is, and I think this is a quote,
    ``compromising DHS's capabilities to address other trans-border
    criminal activity, such as human smuggling and trafficking, and
    illicit drugs, weapons, and commercial and financial
    operations.''
        Mr. Vitiello, I am going to ask you to please expand on
    this, if you would. What exactly has the impact of this current
    surge in unauthorized migration been on the Border Patrol's
    capacity to carry out its mission? Let us start with that, and
    then I will ask a second question.
        Mr. Vitiello. So, as it relates to the conditions
    specifically in the Rio Grande Valley, we are faced in a
    situation where the facilities that are available for the eight
    stations that are in the Valley are insufficiently large enough
    to accommodate the number of people who we find ourselves
    arresting. And so given the timeframe that we need to book
    people in and to treat juveniles via the statute, to turn them
    over to HHS before the 72-hour clock runs out, we were
    insufficiently prepared to do that given the space that is
    available there.
        That is why the Secretary immediately designated it as a
    level four event, made myself the coordinator for the DHS
    response and the liaison with the interagency, and then the
    President since has designated as a humanitarian event and put
    Administrator Fugate into the Federal coordination role to
    drive more resources as we started to the Valley to do what the
    Federal Emergency Management Agency (FEMA) calls wrap-around
    services for our facilities in the Valley, and then to make the
    system work more efficiently, to have more placement for these
    children. And what it means to the operations down there is
    that we were using enforcement resources in order to do this
    care and to make these facilities as safe and as useful as
    possible and to provide the right setting for the people who
    were in custody.
        That help is downrange considerably. It has changed
    considerably since the end of May and early June, and since the
    President's designation of Administrator Fugate to coordinate
    the interagency, it has gotten much better. We were concerned--
    the text that you speak of is a draft that my staff had
    prepared for me. We had not sent it to the Interagency
    Coordinating Group (ICG), but it was a concern that has been
    existing in the Valley for a while and we have moved forward to
    improve those conditions since the time of that writing.
        Chairman Carper. All right. Let me followup with this. I
    understand that due to budgetary constraints in the past couple
    of years, the Border Patrol has had to reduce the amount of
    hours worked by its agents to reduce overtime costs. What
    impact has this had on the Border Patrol's capacity to deal
    with the surge and migration we are currently seeing as well as
    other threats in the border region? I think you have addressed
    this, at least in part. Do you want to take another shot at it,
    and then I am going to ask Mr. Judd if he would just share his
    thoughts with us, too.
        Mr. Vitiello. So, in late 2012, we looked at the 2013 and
    the 2014 budget picture before sequestration and recognized
    that there was some savings based on our emerging awareness and
    understanding of the challenge we had with the AUO rule book,
    and we decided that we could take some risk in reducing hours
    in order to drive savings from those accounts.
        We decided in 2013 to do that as an experiment, to see how
    well we could monitor what is by statute uncontrollable. I
    think we did a fair job of that before and after sequester, and
    the sequester plans made that ultimately more difficult. In
    2014, we drive for more savings. But, what that means, really,
    is shrinking hours of agent deployment, and so the overlaps.
    You go from a three-shift model to a four-shift model or more.
    And then you are pulling hours out of the workforce in order
    not to make FLSA payments to agents. And so what that means is
    you are reducing capability.
        Now, we think that those risks that we were taking were
    adequate and substantial, but manageable. And in the situation
    as it relates to RGV, we recognize now that that cannot be the
    way forward. The work set that is down there, and in other
    places, we cannot continue to do that. So, we have reduced
    those costs to meet the targets in 2013 and attempted to do the
    same in 2014, but there are certain locations where that is
    just not an acceptable risk anymore.
        Chairman Carper. All right. Mr. Judd, any thoughts on this?
        Mr. Judd. Absolutely. To those that are watching on C-SPAN,
    to keep this in layman's terms, what we are seeing with this
    surge that is coming over in RGV, it is pulling agents out of
    the field. They are no longer patrolling the border. They are
    having to deal with this huge influx of minors that are coming
    in. They are having to process them. They are having to watch
    them. They are having to feed them. They are having to do all
    of these different things instead of actually being out and
    patrolling the border.
        Not only is that happening in RGV, but because they do not
    have the facilities to manage the influx of crossings, they are
    now sending them to places like El Paso, the Tucson Sector, and
    what that is doing, that is also pulling resources out of the
    field, Border Patrol Agents out of the field, that would
    normally be patrolling the border and they are now having to do
    those same things. They are having to process these illegal
    aliens. They are having to watch them. They are having to feed
    them. They are having to take care of all of the needs while
    they are in our custody, and what it is doing is it is
    straining to the breaking point the number of agents that we
    are able to deploy out into the field and it is hurting us.
        Chairman Carper. All right. Thanks. How will the Tester-
    McCain bill address this issue, or these issues?
        Mr. Vitiello. So, specifically, the hours past--the FLSA
    remuneration is not part of the compensation package going
    forward, so straight time for the assigned 8 hours, or for the
    assigned 10 hours through the shift. That would give us more
    capability. It is, in essence, giving us nearly 1,500 agents
    more capability along the borders with current staffing levels.
    So, it allows us to flex in that overlap. It allows us to have
    a core capability across the force, and so I do not have to
    shrink hours in order to reduce those payments of that budget
    picture.
        Mr. Judd. In essence, you will be paying me the same amount
    of money to work 10 hours as what you are currently paying me
    to work 9.3 hours, and that is where the additional 1,000,
    1,200 agents comes in. Because you are paying me FLSA right
    now, I am only able to work 9.3 hours because we have this
    overtime budget and we cannot exceed that overtime budget. So,
    I am working 9.3 hours. The Senator McCain and Senator Tester
    bill will allow me to work 10 hours for the exact same amount
    of pay as what I would work at 9.3, 9.25 hours.
        Chairman Carper. OK. The last question I have relates to
    something Dr. Coburn said to me early in the hearing, and it
    dealt with the calculation of pension benefits for those that
    work under this kind of pay arrangement. And he suggested that
    it would save--he felt it would save money in the near term,
    but in the long term, may cost money because of additional
    pension payments. Can somebody just speak to that? In fact, all
    of you are welcome to address that, if you would like. Mr.
    Miles, do you have anything you want to say on that front?
        Mr. Miles. No, sir.
        Chairman Carper. OK. Mr. Hamrick.
        Mr. Hamrick. No, sir.
        Chairman Carper. Why not? [Laughter.]
        Mr. Hamrick. I have nothing to add, sir.
        Chairman Carper. All right. Mr. Judd.
        Mr. Judd. That is absolutely incorrect. Our pension right
    now is based upon 25 percent AUO plus our base pay. This would
    keep everything exactly the same. This would not change
    anything. It would not cost more. It would not cost less. The
    pension would be the same.
        Chairman Carper. All right. Chief.
        Mr. Vitiello. It is not a change as it relates to AUO
    payments or other statutes that are out there like LEAP.
        Chairman Carper. OK. I think we are going to wrap it up
    here. I think we are just about to start some votes over in the
    Senate.
        I think, with that, I want to thank each of you for coming
    today. Thanks for making time to be with us, probably on fairly
    short notice--one of you, at least, very short notice. We
    appreciate your testimony. We appreciate your answering our
    questions.
        The hearing record is going to remain open for 15 days--
    that is until June 24 at 5 p.m.--for the submission of
    statements and questions for the record. I am going to urge my
    colleagues, if they have any additional questions, to submit
    them well before June 24 so that we can get very prompt answers
    to those questions.
        But, with that having been said, it has been a good
    hearing. I am appreciative of the time that has been invested
    by our witnesses, by our staff, and by the Members.
        This hearing is adjourned. Thanks so much.
        [Whereupon, at 5:21 p.m., the Committee was adjourned.]

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