[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/

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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.
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    \1\ The prepared statement of Mr. Miles appears in the Appendix on 
page 50.
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    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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