[House Report 114-600]
[From the U.S. Government Publishing Office]


114th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                      {      114-600

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

 
    AMENDING 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

                                _______
                                

  May 31, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4902]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 4902) 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, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.








                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     2
Explanation of Amendments........................................     3
Committee Consideration..........................................     3
Roll Call Votes..................................................     3
Application of Law to the Legislative Branch.....................     3
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     3
Statement of General Performance Goals and Objectives............     3
Duplication of Federal Programs..................................     3
Disclosure of Directed Rule Makings..............................     4
Federal Advisory Committee Act...................................     4
Unfunded Mandate Statement.......................................     4
Earmark Identification...........................................     4
Committee Estimate...............................................     4
Budget Authority and Congressional Budget Office Cost Estimate...     4
Changes in Existing Law Made by the Bill, as Reported............     5

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 4902 amends title 5, United States Code, to expand law 
enforcement availability pay to law enforcement officers of the 
U.S. Customs and Border Protection's Air and Marine Operations.

                  BACKGROUND AND NEED FOR LEGISLATION

    U.S. Customs and Border Protection's (CBP) Air and Marine 
Operations (AMO) is a federal law enforcement organization with 
over 1,200 federal agents, 250 aircraft, and over 280 marine 
vessels operating from 91 locations throughout the United 
States and Puerto Rico. AMO law enforcement officers utilize 
aircraft and marine vessels to serve and protect the American 
people at, and beyond, the borders of the United States.
    AMO law enforcement officers are often required to work 
long, unpredictable hours and are compensated through a number 
of different premium pay systems to account for their overtime. 
For instance, AMO pilots are covered by Law Enforcement 
Availability Pay (LEAP), but other AMO law enforcement 
officers, such as Air Enforcement and Marine Agents, are 
covered by administratively uncontrollable overtime.
    Under the current system, two law enforcement officers 
working together can be compensated under different premium pay 
systems, presenting challenges for the CBP when administering 
multiple pay systems, as well as for shift planning and 
budgeting purposes.
    H.R. 4902 addresses these problems by standardizing premium 
pay and expanding LEAP applicability so that it covers all AMO 
law enforcement officers. To ensure pay is standardized 
swiftly, the legislation would require that the change come 
into force on the first day of the pay period that begins at 
least 14 days after the date of enactment. Finally, it is also 
important to note that this legislation is supported both by 
the CBP and by the Federal Law Enforcement Officers 
Association.

                          LEGISLATIVE HISTORY

    H.R. 4902 was introduced on April 12, 2016, by Congressman 
Will Hurd (R-TX) and referred to the Committee on Oversight and 
Government Reform. Congressman Gerald Connolly (D-VA), 
Congressman Michael McCaul (R-TX), Congresswoman Michelle Lujan 
Grisham (D-NM), Congressman Blake Farenthold (R-TX), and 
Congresswoman Martha McSally (R-AZ) are original cosponsors.
    On April 14, 2016, the Committee ordered H.R. 4902 
favorably reported, without amendment, by voice vote, a quorum 
being present.

                           Section-by-Section


Section 1. Law enforcement availability pay for employees of Customs 
        and Border Protection's Air and Marine Operations

    Amends 5 U.S.C. 5545a(i) by providing for availability pay 
for any employee of the U.S. Customs and Border Protection's 
Air and Marine Operations, or any successor organization, who 
is a law enforcement officer.
    Requires that the amendments made by this subsection take 
effect on the first day of the first applicable pay period 
beginning on or after the date that is 14 days after date of 
enactment.

                       Explanation of Amendments

    No amendments were offered during Full Committee 
consideration of H.R. 4902.

                        Committee Consideration

    On April 14, 2016, the Committee met in open session and 
ordered reported favorably the bill, H.R. 4902, by voice vote, 
a quorum being present.

                            Roll Call Votes

    No roll call votes were requested or conducted during Full 
Committee consideration of H.R. 4902.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill expands law enforcement availability pay to law 
enforcement officers of the U.S. Customs and Border 
Protection's Air and Marine Operations. As such this bill does 
not relate to employment or access to public services and 
accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal and objective of the bill is 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.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. 551.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement, the Committee 
has received a letter from the Congressional Budget Office 
included herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 2016.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed 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.
    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.

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

    H.R. 4902 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 H.R. 4902 
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 H.R. 4902 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 the same year.
    Under H.R. 4902, 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 H.R. 4902 mostly because the affected officers would no 
longer receive compensation required under the FLSA. According 
to CBP, if the overtime pay system in H.R. 4902 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.
    H.R. 4902 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.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE




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PART III--EMPLOYEES

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SUBPART D--PAY AND ALLOWANCES

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CHAPTER 55--PAY ADMINISTRATION

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SUBCHAPTER V--PREMIUM PAY

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Sec. 5545a. Availability pay for criminal investigators

  (a) For purposes of this section--
          (1) the term ``available'' refers to the availability 
        of a criminal investigator and means that an 
        investigator shall be considered generally and 
        reasonably accessible by the agency employing such 
        investigator to perform unscheduled duty based on the 
        needs of an agency;
          (2) the term ``criminal investigator'' means a law 
        enforcement officer as defined under section 5541(3) 
        (other than an officer occupying a position under title 
        II of Public Law 99-399, subject to subsection (k)) who 
        is required to--
                  (A) possess a knowledge of investigative 
                techniques, laws of evidence, rules of criminal 
                procedure, and precedent court decisions 
                concerning admissibility of evidence, 
                constitutional rights, search and seizure, and 
                related issues;
                  (B) recognize, develop, and present evidence 
                that reconstructs events, sequences and time 
                elements for presentation in various legal 
                hearings and court proceedings;
                  (C) demonstrate skills in applying 
                surveillance techniques, undercover work, and 
                advising and assisting the United States 
                Attorney in and out of court;
                  (D) demonstrate the ability to apply the full 
                range of knowledge, skills, and abilities 
                necessary for cases which are complex and 
                unfold over a long period of time (as 
                distinguished from certain other occupations 
                that require the use of some investigative 
                techniques in short-term situations that may 
                end in arrest or detention);
                  (E) possess knowledge of criminal laws and 
                Federal rules of procedure which apply to cases 
                involving crimes against the United States, 
                including--
                          (i) knowledge of the elements of a 
                        crime;
                          (ii) evidence required to prove the 
                        crime;
                          (iii) decisions involving arrest 
                        authority;
                          (iv) methods of criminal operations; 
                        and
                          (v) availability of detection 
                        devices; and
                  (F) possess the ability to follow leads that 
                indicate a crime will be committed rather than 
                initiate an investigation after a crime is 
                committed;
          (3) the term ``unscheduled duty'' means hours of duty 
        a criminal investigator works, or is determined to be 
        available for work, that are not--
                  (A) part of the 40 hours in the basic work 
                week of the investigator; or
                  (B) overtime hours paid under section 5542; 
                and
          (4) the term ``regular work day'' means each day in 
        the investigator's basic work week during which the 
        investigator works at least 4 hours that are not 
        overtime hours paid under section 5542 or hours 
        considered part of section 5545a.
  (b) The purpose of this section is to provide premium pay to 
criminal investigators to ensure the availability of criminal 
investigators for unscheduled duty in excess of a 40 hour work 
week based on the needs of the employing agency.
  (c) Each criminal investigator shall be paid availability pay 
as provided under this section. Availability pay shall be paid 
to ensure the availability of the investigator for unscheduled 
duty. The investigator is generally responsible for 
recognizing, without supervision, circumstances which require 
the investigator to be on duty or be available for unscheduled 
duty based on the needs of the agency. Availability pay 
provided to a criminal investigator for such unscheduled duty 
shall be paid instead of premium pay provided by other 
provisions of this subchapter, except premium pay for regularly 
scheduled overtime work as provided under section 5542, night 
duty, Sunday duty, and holiday duty.
  (d)(1) A criminal investigator shall be paid availability 
pay, if the average of hours described under paragraph (2)(A) 
and (B) is equal to or greater than 2 hours.
  (2) The hours referred to under paragraph (1) are--
          (A) the annual average of unscheduled duty hours 
        worked by the investigator in excess of each regular 
        work day; and
          (B) the annual average of unscheduled duty hours such 
        investigator is available to work on each regular work 
        day upon request of the employing agency.
  (3) Unscheduled duty hours which are worked by an 
investigator on days that are not regular work days shall be 
considered in the calculation of the annual average of 
unscheduled duty hours worked or available for purposes of 
certification.
  (4) An investigator shall be considered to be available when 
the investigator cannot reasonably and generally be accessible 
due to a status or assignment which is the result of an agency 
direction, order, or approval as provided under subsection 
(f)(1).
  (e)(1) Each criminal investigator receiving availability pay 
under this section and the appropriate supervisory officer, to 
be designated by the head of the agency, shall make an annual 
certification to the head of the agency that the investigator 
has met, and is expected to meet, the requirements of 
subsection (d). The head of a law enforcement agency may 
prescribe regulations necessary to administer this subsection.
  (2) Involuntary reduction in pay resulting from a denial of 
certification under paragraph (1) shall be a reduction in pay 
for purposes of section 7512(4) of this title.
  (f)(1) A criminal investigator who is eligible for 
availability pay shall receive such pay during any period such 
investigator is--
          (A) attending agency sanctioned training;
          (B) on agency approved sick leave or annual leave;
          (C) on agency ordered travel status; or
          (D) on excused absence with pay for relocation 
        purposes.
  (2) Notwithstanding paragraph (1)(A), agencies or departments 
may provide availability pay to investigators during training 
which is considered initial, basic training usually provided in 
the first year of service.
  (3) Agencies or departments may provide availability pay to 
investigators when on excused absence with pay, except as 
provided in paragraph (1)(D).
  (g) Section 5545(c) shall not apply to any criminal 
investigator who is paid availability pay under this section.
  (h) Availability pay under this section shall be--
          (1) 25 percent of the rate of basic pay for the 
        position; and
          (2) treated as part of the basic pay for purposes 
        of--
                  (A) sections 5595(c), 8114(e), 8331(3), and 
                8704(c); and
                  (B) such other purposes as may be expressly 
                provided for by law or as the Office of 
                Personnel Management may by regulation 
                prescribe.
  (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 U.S. 
Customs and Border Protection's Air and Marine Operations, or 
any successor organization, 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.
  (j) Notwithstanding any other provision of this section, any 
Office of Inspector General which employs fewer than 5 criminal 
investigators may elect not to cover such criminal 
investigators under this section.
  (k)(1) For purposes of this section, the term ``criminal 
investigator'' includes a special agent occupying a position 
under title II of Public Law 99-399 if such special agent--
          (A) meets the definition of such term under paragraph 
        (2) of subsection (a) (applied disregarding the 
        parenthetical matter before subparagraph (A) thereof); 
        and
          (B) such special agent satisfies the requirements of 
        subsection (d) without taking into account any hours 
        described in paragraph (2)(B) thereof.
  (2) In applying subsection (h) with respect to a special 
agent under this subsection--
          (A) any reference in such subsection to ``basic pay'' 
        shall be considered to include amounts designated as 
        ``salary'';
          (B) paragraph (2)(A) of such subsection shall be 
        considered to include (in addition to the provisions of 
        law specified therein) sections 609(b)(1), 805, 806, 
        and 856 of the Foreign Service Act of 1980; and
          (C) paragraph (2)(B) of such subsection shall be 
        applied by substituting for ``Office of Personnel 
        Management'' the following: ``Office of Personnel 
        Management or the Secretary of State (to the extent 
        that matters exclusively within the jurisdiction of the 
        Secretary are concerned)''.

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