[Senate Report 114-344]
[From the U.S. Government Publishing Office]


                                                             Calendar No. 615

114th Congress   }                                        {   Report
                                SENATE
 2d Session      }                                        {   114-344
                                                               
_______________________________________________________________________

                                     

                                                       


                 TO AMEND TITLE 5, UNITED STATES CODE,

                       TO EXPAND LAW ENFORCEMENT

                 AVAILABILITY PAY TO EMPLOYEES OF U.S.

       CUSTOMS AND BORDER PROTECTION'S AIR AND MARINE OPERATIONS

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2970





               September 6, 2016.--Ordered to be printed
               
               
               
                            _________ 
                                  
                U.S. GOVERNMENT PUBLISHING OFFICE
                         WASHINGTON : 2016                     
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                       Courtney J. Allen, Counsel
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
        Ellen W. Harrington, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     

                                                       Calendar No. 615
                                                       
                                                       
114th Congress  }                                         {    Report
                                 SENATE
                                                                
 2d Session     }                                         {    114-344

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



 
    TO AMEND TITLE 5, UNITED STATES CODE, TO EXPAND LAW ENFORCEMENT 
 AVAILABILITY PAY TO EMPLOYEES OF U.S. CUSTOMS AND BORDER PROTECTION'S 
                       AIR AND MARINE OPERATIONS

                                _______
                                

               September 6, 2016.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2970]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2970) to amend 
title 5, United States Code, to expand law enforcement 
availability pay to employees of of the Air and Marine 
Operations of U.S. Customs and Border Protection, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for Legislation..............................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............5

                         I. Purpose and Summary

    The purpose of S. 2970 is to expand law enforcement 
availability pay (LEAP) to all law enforcement employees of the 
Air and Marine Operations (AMO) of U.S. Customs and Border 
Protection (CBP). This bill will allow all CBP AMO law 
enforcement employees to be compensated for overtime hours 
worked under the same pay system, creating a more efficient and 
equitable system for overtime pay.

              II. Background and the Need for Legislation

    CBP AMO is a Federal law enforcement organization that 
provides ``advanced aeronautical and maritime capabilities . . 
. to detect, sort, intercept, track and apprehend criminals in 
diverse environments at and beyond U.S. borders.''\1\ The 
organization of CBP AMO has evolved since the creation of the 
Department of Homeland Security (DHS), with each new formation 
affecting the compensation structure for overtime hours worked 
by CBP AMO employees.
---------------------------------------------------------------------------
    \1\Air and Marine Operations Fact Sheet, U.S. Customs and Border 
Protection, https://www.cbp.gov/sites/default/files/documents/
FS_2015_AMO_0.pdf.
---------------------------------------------------------------------------
    Prior to the establishment of DHS, AMO employees operated 
under the Air and Marine Interdiction Division of the 
Department of Treasury.\2\ The majority of AMO employees were 
eligible for overtime compensation through LEAP.\3\ When the 
Air and Marine Interdiction Division transitioned to DHS 
Immigration and Customs Enforcement (ICE), the office was 
renamed the Office of Air and Marine Operations.\4\ At ICE, 
those same employees remained under the LEAP overtime pay 
system.\5\
---------------------------------------------------------------------------
    \2\Air and Marine: A Rich and Varied History of Service, U.S. 
Customs and Border Protection, https://www.cbp.gov/border-security/air-
sea/air-and-marine-rich-and-varied-history-service.
    \3\See 5 U.S.C. Sec. 5545(a). Created by the Law Enforcement 
Availability Pay Act of 1994, LEAP pay allows criminal investigators to 
receive 25 percent of basic pay for unscheduled duty hours worked in 
excess of the basic 40-hour work week. See Treasury, Postal Service, 
and General Government Appropriations Act, Pub. L. No. 103-329, 
Sec. 633, 108 Stat. 2425 (1994); see also U.S. Customs and Border 
Protection Office of Air and Marine, Briefing with Comm. staff on 
premium pay reform (Apr. 14, 2016).
    \4\Air and Marine: A Rich and Varied History of Service, supra note 
2.
    \5\Briefing with Comm. staff on premium pay reform, supra note 3.
---------------------------------------------------------------------------
    In 2005, DHS completed the transfer of the Office of Air 
and Marine Operations to CBP, where it currently remains.\6\ As 
a result of this transfer, CBP AMO employees' General Schedule 
(GS) pay scale levels were converted from the GS-1811 criminal 
investigation series to the GS-1801 general inspection, 
investigation, enforcement, and compliance series.\7\ This GS 
level conversion disqualified many CBP AMO law enforcement 
agents from LEAP pay, which is only available for employees 
classified as criminal investigators or customs pilots.\8\ 
Instead, these CBP AMO employees were eligible for 
Administratively Uncontrollable Overtime (AUO) compensation.\9\
---------------------------------------------------------------------------
    \6\Air and Marine: A Rich and Varied History of Service, supra note 
2.
    \7\Briefing with Comm. staff on premium pay reform, supra note 3.
    \8\Id. See also 5 U.S.C. Sec. 5545(a).
    \9\Memorandum from U.S. Customs and Border Protection Office of Air 
and Marine Human Resources on AUO Decertification (Oct. 15, 2014).
---------------------------------------------------------------------------
    On October 31, 2013, the Office of Special Counsel (OSC) 
issued a letter and investigative report to the President on 
abuse of AUO payments in DHS.\10\ Such payments are meant to be 
limited to occasional overtime work that cannot be predicted or 
controlled, but the Special Counsel found that in many 
instances it was being used for routine and predictable 
assignments.\11\
---------------------------------------------------------------------------
    \10\Letter from Carolyn N. Lerner, Special Counsel, Off. of Special 
Counsel, to President Barack Obama, OSC File No. DI-13-0002 (Oct. 31, 
2013) (with enclosed report).
    \11\Id. See 5 C.F.R. Sec. Sec. 550.151, 550.153. Several 
whistleblowers alleged that at least some of the time compensated with 
AUO was not spent performing work-related activities. Letter from 
Carolyn N. Lerner, Special Counsel, Off. of Special Counsel, to 
President Barack Obama, OSC File No. DI-13-0002 (Oct. 31, 2013) (with 
enclosed report). Although the allegations of employees being 
compensated for not performing work related activities were not 
confirmed, in many instances the Special Counsel found that it was not 
proper to pay AUO for this work because the work was routine and 
predictable.
---------------------------------------------------------------------------
    In response to the Special Counsel's findings, DHS and CBP 
modified and reduced the number and types of employees eligible 
for AUO compensation.\12\ In 2014, CBP AMO law enforcement 
employees in headquarters, training, and some supervisory 
positions were decertified from receiving AUO pay.\13\ As a 
result of this change, CBP AMO must utilize several different 
overtime pay structures for its employees:\14\ CBP AMO pilots 
are authorized by statute for LEAP pay;\15\ CBP AMO non-
supervisory marine interdiction agents and non-supervisory 
aviation enforcement agents are still eligible for AUO 
compensation;\16\ and some first-line supervisory oversight 
employees within CBP AMO receive AUO while others are 
compensated through the Federal Employees Pay Act.\17\
---------------------------------------------------------------------------
    \12\Memorandum from Randolph D. Alles, Assistant Commissioner, U.S. 
Customs and Border Protection Office of Air and Marine, on Ensuring 
Compliance with the Rules Governing Administratively Uncontrollable 
Overtime (Sept. 19, 2014). See also Memorandum from Alejandro N. 
Mayorkas, Deputy Sec., Dep't of Homeland Sec., on Improving AUO 
Administration in the Department of Homeland Security (May 23, 2014).
    \13\October 15, 2014, Memorandum, supra note 10.
    \14\Memorandum from Randolph D. Alles, Assistant Commissioner, U.S. 
Customs and Border Protection Office of Air and Marine, on Pay 
Compensation Authorities Compliance Plan (Oct. 17, 2014).
    \15\5 U.S.C. Sec. 5545a(i).
    \16\October 15, 2014, Memorandum, supra note 10.
    \17\See 5 C.F.R. Sec. 550.111.
---------------------------------------------------------------------------
    According to CBP AMO officials, the current status of 
having employees with different compensation systems working 
side-by-side ``has led to inefficiencies and inequities and can 
be problematic in managing operations.''\18\ Officials believe 
these pay differences ``may contribute to morale issues and 
retention and recruitment challenges.''\19\ Additionally, since 
each overtime system is required to be budgeted and reported 
differently, ``there can be an operational impact to the 
mission if, due to budget constraints, overtime is not 
authorized and an aircraft or vessel is required to return to 
base for a crew change.''\20\ Having all CBP AMO law 
enforcement employees on a single overtime pay system would 
``alleviate[ ] such scenarios where unpredictable budgets 
inherent to other compensation systems can cause an operation 
to be suspended.''\21\
---------------------------------------------------------------------------
    \18\Letter from M. Tia Johnson, Assistant Secretary for Legislative 
Affairs, U.S. Dep't of Homeland Sec., to Ron Johnson, Chairman, S. 
Comm. on Homeland Sec. and Governmental Affairs (Feb. 29, 2016) (on 
file with Comm. staff).
    \19\Id.
    \20\Id.
    \21\Id.
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                        III. Legislative History

    S. 2970, a bill to amend title 5, United States Code, to 
expand law enforcement availability pay to employees of the Air 
and Marine Operations of U.S. Customs and Border Protection, 
was introduced on May 23, 2016, by Chairman Ron Johnson and 
Senators Heidi Heitkamp and Tammy Baldwin. The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs.
    The Committee considered S. 2970 at a business meeting on 
May 25, 2016. The legislation was passed by voice vote with 
Senators Johnson, Portman, Paul, Lankford, Ayotte, Ernst, 
Sasse, Carper, McCaskill, Tester, Baldwin, Heitkamp, Booker, 
and Peters present.
    On June 21, 2016, the companion to S. 2970, H.R. 4902, 
sponsored by Representatives Will Hurd, Gerald Connolly, Blake 
Farenthold, Michelle Lujan Grisham, Michael McCaul, and Martha 
McSally, passed the House of Representatives by a voice vote 
and was referred to the Committee.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Law enforcement ability pay for employees of the Air and 
        Marine Operations of U.S. Customs and Border Protection

    This section modifies title 5 of the United States Code so 
that all CBP AMO law enforcement employees, not just CBP AMO 
pilots, are authorized to receive LEAP pay to compensate for 
overtime hours worked.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                     June 14, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2970, a bill to 
amend title 5, United States Code, to expand law enforcement 
availability pay to employees of the Air and Marine Operations 
of U.S. Customs and Border Protection.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 2970--A bill to amend title 5, United States Code, to expand law 
        enforcement availability pay to employees of the Air and Marine 
        Operations of U.S. Customs and Border Protection

    S. 2970 would change the system for determining overtime 
compensation for certain employees of Air and Marine Operations 
in U.S. Customs and Border Protection (CBP). Based on 
information from CBP, CBO estimates that implementing S. 2970 
would reduce costs by about $2 million annually or $10 million 
over the 2017-2021 period, assuming future appropriations are 
reduced consistent with the bill's provisions. Enacting the 
legislation would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply. CBO estimates 
that enacting S. 2970 would not increase net direct spending or 
on-budget deficits in any of the four consecutive 10-year 
periods beginning in 2027.
    Under current law, about 500 law enforcement officers in 
Air and Marine Operations are eligible for overtime 
compensation under three different schedules: the 
Administratively Uncontrollable Overtime (AUO), the Fair Labor 
Standards Act (FLSA), and the Federal Employee Pay Act (FEPA). 
Total overtime costs for those officers, including pay and 
benefits, totaled $18 million in 2015. Their total base pay was 
$46 million in that year.
    Under S. 2970, law enforcement officers in Air and Marine 
Operations would no longer be eligible for overtime 
compensation under AUO or the FLSA. The bill would make them 
eligible for Law Enforcement Availability Pay, and they would 
remain eligible for FEPA overtime pay. Costs would decline 
under S. 2970 mostly because the affected officers would no 
longer receive compensation required under the FLSA. According 
to CBP, if the overtime pay system in S. 2970 had been 
implemented for fiscal year 2015, total overtime costs for the 
affected officers would have been about $16 million, or about 
$2 million lower than the actual overtime expense for that year 
for those officers.
    S. 2970 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On May 16, 2016, CBO transmitted a cost estimate for H.R. 
4902, a bill to amend title 5, United States Code, to expand 
law enforcement availability pay to employees of U.S. Customs 
and Border Protection's Air and Marine Operations, as ordered 
reported by the House Committee on Oversight and Government 
Reform on April 14, 2016. The two bills are similar and CBO's 
estimates of their budgetary effects are the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *



Subpart D--Pay and Allowances

           *       *       *       *       *       *       *



CHAPTER 55--PAY ADMINISTRATION

           *       *       *       *       *       *       *



Subchapter V--Premium Pay

           *       *       *       *       *       *       *



SEC. 5545A. AVAILABILITY PAY FOR CRIMINAL INVESTIGATORS

    (a) * * *

           *       *       *       *       *       *       *

    (i) The provisions of subsections (a)-(h) providing for 
availability pay shall apply to a [pilot employed by the United 
States Customs Service] apply to any employee of the Air and 
Marine Operations of U.S. Customs and Border Protection, or any 
successor thereto, who is a law enforcement officer as defined 
under section 5541(3). For the purpose of this section, section 
5542(d) of this title and section 13(a)(16) and (b)(30) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(16) and 
(b)(30)), [such pilot] such employee shall be deemed to be a 
criminal investigator as defined in this section. The Office of 
Personnel Management may prescribe regulations to carry out 
this subsection.

           *       *       *       *       *       *       *