[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.
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\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.
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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\
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\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.
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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\
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\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).
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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\
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\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.
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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\
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\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.
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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\
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\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.
* * * * * * *