U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–010 

" ! SENATE 

114TH CONGRESS

2d Session 

REPORT

2016

114–344 

Calendar No. 615 

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 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

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 


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Calendar No. 615 

114TH CONGRESS SENATE REPORT " ! 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. 


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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/FSl2015lAMOl0.pdf. 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. 3See 5 U.S.C. § 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, § 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. 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. § 5545(a). 9Memorandum from U.S. Customs and Border Protection Office of Air and Marine Human 

Resources on AUO Decertification (Oct. 15, 2014). 10Letter 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. §§ 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. 

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. 

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

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

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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12Memorandum 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). 13October 15, 2014, Memorandum, supra note 10. 14Memorandum 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. § 5545a(i). 16October 15, 2014, Memorandum, supra note 10. 17See 5 C.F.R. § 550.111. 18Letter 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. 

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

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

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 


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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. 


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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 

* * * * * * * 


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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 øpilot 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)), øsuch 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. 

* * * * * * * 

Æ 


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