Isnt here. If if there wanted to be an audit done and that audit showed that that 90 floor was too high or not high enough, that might be be a way to go, but i think to put it as a ceiling put it as a ceiling would be dangerous. Okay. Rchltsz i yield. I have other questions for mr. Hamrick. There are six cases of misuse under your office, is that right . My office has conducted six investigations that were referred to us by the osc. There were ten total referrals, right . I thats the number. Okay. So where are the other four cases and whos investigating those . Because there was an allegation of auo misuse against the office of internal affairs, we are no longer our agents are no longer investigating those. I understand. Thank you. I want to go back in time to 2012 and i know the problem with the administratively and patrolable overtime is not a new one. Back then i think the president in his fiscal 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 or l. E. A. P. And as i understand it the Law Enforcement availability pay proposal generally applies to criminal investigations such as the fbi, Drug Enforcement agency or secret service agents, gives them a 25 Salary Increase 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. Botello and 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 custom mccain bill is an improvement over the 2012 legislative improvement to put Border Patrol on l. E. A. P. Along with dea, the fbi, secret service. Mr. Botello . So the agency and through the request advocated for conversion to l. E. A. P. In the sense that it did offer the same kind of savings that are contemplated here, but there were several voices, take holders that were not enamored with the way l. E. A. P. Is used. Who might those stakeholders be . The national Border Patrol council among others seated to my left. Okay. What were their reservations . Well, like whats contemplated here, flsa was not going to be remuneration Going Forward. They were concerned d ill let brandon speak for himself. The concerns we heard from them was there wasnt a threshold to which to manage against or to and they were concerned that people like me would abuse that. Whats 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 he whats here is much improved from that experience. This borrows a lot from l. E. A. P. In the sense that it so he llid the macro budget and it allows us not to use flsa as an unpredictable cost in the future. Mr. Judd, do you agree . Did you approve this message . I absolutely agree that it was the national Border Patrol council that was adamantly opposed to l. E. A. P. The simple reason that were opposed to l. E. A. P. 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 certain number of hours that you have to be scheduled. The problem with l. E. A. P. Is you can schedule me for ten hours, if you work over ten hours, its free. Its free. There is no mechanism to force them to let me go after ten hours. In other words, in a real world sense, if im 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 didnt schedule this to happen. We need you to work a double shift. By the way, that double shift is now going to be free. So, we needed a we needed a mechanism to ensure that the agency was not going to work us beyond ten hours per day and work us for free, and thats 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. Okay. Thanks. I have another question. In fact, i have a couple more. Let me use my time and ill yield back to you, senator tester, if youd like to take more time. A question on operational tempo, the number of shifts worked per day if i could. And i think ill probably address these couple of questions to you in this regard, mr. Cotello. 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 im told three ten hour shifts at many locations rather than four eighthour shifts. In fact, the office of special counsel noted in its written testimony that Border Patrol, this is a quote, i think, managers insist that employing three tenhour shifts is a more costeffective approach to securing the border even if administratively uncontrollable overtime may not properly be used for routine activities. Thats a quote. And a couple of questions if i could. Mr. Kellogg, id 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 . So i agree with the managers in san diego who pointed that out in these in those interviews. In an ideal setting 24 7 sevenday a week workload along the border you would have to transition between shifts however they are, and its better to have three with the overhead, the managers and the supervisors versus four or five to predict and then schedule that overlap. Its better to have a threeshift model. When you have a threeshift model, the shifts have to transfer information to each other before one starts and the other and people have to be relieved. Under the Current System auo is not designed is not the rubric doesnt allow for relief to be paid for using auo. So whatever system we went Going Forward, its always better to have three shifts than four. You have better capability that way but you would still need to figure out how to transfer that knowledge and that means time. Let me just follow up on this. You address this in part but im 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 border as a result of not being able to use administratively and controllable overtime to pay for shift changes . You would just need more agents to do the same amount of work. We would prefer and its most advantageous to the organization in predicting costs and future stability to have three shifts than four. Its more Cost Effective. You have to hire the more agents to get the same coverage across the same time period. Finally, how will the testermccain bill were considering today impact your ability to schedule the shifts at the border. Whats contemplated here, it will allow this model to compensation 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 days deployment, the next shifts deployment, the trends that are happening in real time. We want them to record that at the end of their shift so the next shift is 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 thats required based on the information that they develop while in their shift. Thanks much. 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 it is seldom in the u. S. Senate that we get a bill that makes a situation simpler, that the agencies want, that then people that are employed by the agencies want, that saves money, that increases efficiency, that increases predictability, and we dont 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 wont get this problem solved. And the ultimate thing that will happen if we dont get this solved, the borders will be lessee secure, well be looking around pointing at you guys saying, why didnt you do this, why didnt do you that, when in fact its our obligation to make sure you have the tools to do your job to protect the border in the way 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 dont 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 whether ask you when will there be a markup on this bill . Im going to cone 49fer with coburn later this week we should have a markup. Let me make it very, very clear. This is not something we should screw around with. Weve got people out here watching us on cspan now wanting to know what were going to do. Weve got folks who work for cbp that like their job, are proud of their job, and that if we dont set some certainty down for these folks, theyre going to go to work somewhere else. We need to fix it so it can be audited, so that we know what were doing and so that these folks have some predictability. We can put it off to the end of the month, but keep in mind, the longer we put this off, we have to get it off the senate floor, weve got to see if the house can get it done and then we need to get it implemented and time is awaiting. We have 11 weeks left. I think, senator tester, you know theres been a lot of discussion about whether or not this bill saves as much money as were told it might, there might be available to serve as an offset to strengthen our Cyber Alliance within the department of Homeland Security. Believe me, i understand the need to move it along. Mr. Chairman, i would tell you if this bill doesnt save one thin dime, if its revenue neutral, we ought to do it. Fair enough. I hope it saves more than a few thin dimes. I thanks very much for all the work you and your staff have done and senator mccain. Well put our Heads Together and talk this week. If we can do it early this week, well do it early this week. Im free tomorrow afternoon just so you know. All right. Thats good. Im getting your drift. All right. This might be my last question. It deals with the surge that weve seen in unauthorized migration from central america, particularly the record numbers of unaccompanied minors that are coming and the effect theyre having on the Border Patrols ability to carry out their mission. The surge were seeing, this is a quote, compromising dhss capabilities to address other transborder capabilities such as human smuggling, trafficking, drugs, commercial and financial operations. Who is this from vitello, im going to ask you to please expand on this for us if you would. What exactly has the impact of this current surge in unauthorized migration been on the Border Patrols capacity to carry out its mission . Start with that and then ill ask a second question. So as it relates to the conditions specifically in the rio grande valley, we are facing the situation where the facilities that are available for the eight stations that are in the valley are insufficiently large enough to accommodate the people who we find ourselves arresting and so given the time frame that we need to book people in and to treat juveniles via the statute to turn them over to hhs before the 72hour clock runs out, we were unsufficiently prepared to do that given the space thats available there. Thats why the secretary immediately designated it as a level 4 event, made myself the coordinator for the dhs response and liaison with the inner agency and then the president since has designated it since as a humanitarian event and put administrator fugate into the federal coordinator role to drive more resources. As we started to the valley to do what fema calls wrap around services for our facilities in the valley and then to 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 have 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 city setting for the people who were in custody. That help is down range considerably. Its changed considerably since the end of may and early june and since the president s designation as administrator fugate to coordinate the inner agency, its 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 inner Agency Coordinating group but it was a concern that has been existed in the valley for a while and weve moved forward to fix that since the time of the writing. Let me move forward. 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 woi Border Patrols capacity. Weve seen other threats in the Border Patrol region and i think youve addressed this at least in part. If you want to take another shot at it, then im going to ask mr. Judd if he would share his thoughts with us, too. So in late 12 we looked at the 13 and 14 budget picture before sequestration and looked at the savings based on our emerging awareness and understanding of the challenge that we had with the auo rubric. We decided we could take some risks in reducing hours in order to drive savings from those accounts. We decided in 13 to do that as an experiment to see how well we could monitor what is by statute uncontrollable. I think we did a fair amount of that. Before and after sequester that made that ultimately more difficult. In 13 we derive more savings but what that means is shrinking hours of agent deployment. The overlaps, you go from a threeshift model to fourshift model or more and then youre pulling hours out of the work force in order not to make flsa pag payments to agents. We think the risks we were taking were adequate and substantial but manageable. In the situation that as it relates to rgb, we recognize that cant be the way forward. The work step thats down there and in other places, we cant continue to do that. Weve reduced those costs to meet the targets in 13 and a ste tempted to do the same in 14. Thats just not an acceptable risk anymore. Mr. Judd, any thoughts on this . Absolutely. To those watching on cspan to keep this in laymans terms, what were seeing with this surge thats coming over in rgb, its pulling agents out of the field. Theyre no longer patrolling the border. Theyre having to deal with this huge influx of minors that are coming in and theyre having to process them, theyre having to watch them, theyre having to feed them, theyre having to do all of these Different Things instead of actually being out and patrolling the border. Not only is that happening in rgb, but because they dont have the facilities to manage the influx of crossings, theyre now sending them to places like el paso, the tucson sector. What thats doing, thats also pulling resources out of the field, Border Patrol agents out of the field that would normally be patrolling the border and theyre having to do the same thing, having to process these illegal aliens, having to watch them, having to feed them, having to take care of all of the needs while theyre in our custody. What its doing, its straining to the breaking point the number of agents were able to deploy out to the field and its hurting us. All right. Thanks. How will the testermccain bill address this issue or these issues . Specifically the hours past the flsa is not part of the remuneration Going Forward. Straight ten hours would give us more capability. Its given us 1500 more agents. It allows us to flex in that overlap, it allows us to have a core capability across the force so i dont have to shrink hours in order to reduce the payments, that budget picture. In essence, youll be paying me the same amount of money to work ten hours as what youre currently paying me to work 9. 3 hours, thats where the additional 1,000, 1200 agents comes in. Because youre paying me flsa right now, im evenly able to work 9. 3 hours because we have an overtime budget. We cant exceed that. Senator mccain and senator tester bill will allow me to work 10 hours for the exact same amount of pay of what i would work at 9. 3, 9. 25 hours. Okay. Last question i have is relates to something dr. Coburn said to me early in the hearing, and it dealt with calculation of pension benefits for those that are working under this kind of arrangement pay arrangement. And he suggested that it would save or he thought 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 like. Mr. Miles, do you have anything you want to say on that front . No, sir. Okay. Mr. Hamrick . No, sir. Why not . I have nothing to add, sir. All right. Mr. Judd . Thats absolutely incorrect. Our pension right now is based upon 25 auo plus our base pay. This would this would keep everything exactly the same. This wouldnt change anything, it wouldnt cost more, it wouldnt cost less. The pension would be the same. All right. Chief . It isnt a change as it re