[Senate Report 114-111]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 191
114th Congress    }                                     {       Report
                                 SENATE
 1st Session      }                                     {      114-111

_______________________________________________________________________




          TSA OFFICE OF INSPECTION ACCOUNTABILITY ACT OF 2015

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                H.R. 719

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 August 4, 2015.--Ordered to be printed
                 
                                  ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

40-010                         WASHINGTON : 2015                  
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred fourteenth congress
                             first session

                   JOHN THUNE, South Dakota, Chairman
 ROGER F. WICKER, Mississippi         BILL NELSON, Florida
 ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
 MARCO RUBIO, Florida                 CLAIRE McCASKILL, Missouri
 KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR, Minnesota
 TED CRUZ, Texas                      RICHARD BLUMENTHAL, Connecticut
 DEB FISCHER, Nebraska                BRIAN SCHATZ, Hawaii
 JERRY MORAN, Kansas                  ED MARKEY, Massachusetts
 DAN SULLIVAN, Alaska                 CORY BOOKER, New Jersey
 RON JOHNSON, Wisconsin               TOM UDALL, New Mexico
 DEAN HELLER, Nevada                  JOE MANCHIN, West Virginia
 CORY GARDNER, Colorado               GARY PETERS, Michigan
 STEVE DAINES, Montana
                    David Schwietert, Staff Director
                   Nick Rossi, Deputy Staff Director
                    Rebecca Seidel, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director
                 Clint Odom, Democratic General Counsel
                 
                 
                 
                 
                 
                 
                 
                 
                 
                                                      Calendar No. 191
114th Congress    }                                     {       Report
                                 SENATE
 1st Session      }                                     {      114-111

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



 
          TSA OFFICE OF INSPECTION ACCOUNTABILITY ACT OF 2015

                                _______
                                

                 August 4, 2015.--Ordered to be printed

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 719]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (H. R. 719) to require the 
Transportation Security Administration to conform to existing 
Federal law and regulations regarding criminal investigator 
positions, and for other purposes, having considered the same, 
reports favorably thereon with an amendment (in the nature of a 
substitute) and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

    The purpose of H.R. 719 is to require the Transportation 
Security Administration (TSA) to conform to existing Federal 
law and regulations regarding criminal investigator positions, 
and for other purposes.

                          Background and Needs

    The Office of Inspection (OOI) at the TSA conducts 
inspections, internal reviews, and covert testing to ensure the 
effectiveness and efficiency of the TSA's operations and 
administrative activities, and to identify vulnerabilities in 
the TSA security systems. Additionally, the OOI carries out 
internal investigations of the TSA workforce to ensure its 
integrity. The OOI refers all potential investigations to the 
Department of Homeland Security's Office of Inspector General 
(DHS OIG), which then chooses which cases to pursue. After this 
determination is made, the cases that the DHS OIG decided not 
to investigate are referred back to the OOI. In 2014, the OOI 
referred 417 cases to the DHS OIG. The DHS OIG retained 33 
cases, or 7.9 percent, for investigation, referring 384 back to 
the OOI.\1\
---------------------------------------------------------------------------
    \1\Transportation Security Administration, Office of Legislative 
Affairs, 2014, (Information provided in response to request by the 
Committee on Commerce, Science, and Transportation of the Senate staff 
in June 2015).
---------------------------------------------------------------------------
    In September 2013, the DHS OIG issued a report entitled, 
``Transportation Security Administration Office of Inspection's 
Efforts to Enhance Transportation Security.''\2\ According to 
the DHS OIG report, roughly 100 criminal investigators in the 
OOI primarily monitor the results of criminal investigations 
conducted by other agencies, investigate administrative cases 
of TSA employee misconduct, and carry out inspections, covert 
tests, and internal reviews. While each of these functions is 
important, and in many cases, well-suited to some of those 
performed by a criminal investigator, they do not qualify a 
criminal investigator for enhanced retirement benefits afforded 
to law enforcement officers under Federal law and regulations. 
By law, only those Federal employees whose duties include 
``primarily the investigation, apprehension, or detention of 
individuals suspected or convicted of offenses against the 
criminal laws of the United States'' qualify as law enforcement 
officers.\3\
---------------------------------------------------------------------------
    \2\Department of Homeland Security, Office of Inspector General, 
Transportation Security Administration Office of Inspection's Efforts 
to Enhance Transportation Security, September 2013, at http://
www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-123_Sep13.pdf.
    \3\5 U.S.C. 8331(20), 8401(17), 5 C.F.R. 831.902; see also 5 C.F.R. 
842.802.
---------------------------------------------------------------------------
    The DHS OIG reported that the premium pay and other 
benefits afforded to TSA criminal investigators within the OOI 
who are incorrectly classified as such could cost taxpayers as 
much as $17.5 million over 5 years if the TSA fails to make any 
changes to the number of OOI criminal investigators. The DHS 
OIG projected even more savings in training, travel, supplies, 
and other special employment benefits if personnel were 
properly reclassified, but did not specify an amount.

                         Summary of Provisions

    H.R. 719 would require the TSA to certify to the Committee 
on Homeland Security of the House of Representatives and the 
Committee on Commerce, Science, and Transportation of the 
Senate, and the DHS OIG to validate, that only the TSA 
employees who meet the relevant legal and regulatory 
requirements specified in the legislation are classified as 
criminal investigators and therefore receive premium pay and 
other benefits. If the DHS OIG finds that the TSA is using 
inadequate or invalid data and methods to classify criminal 
investigators, the TSA may not hire any new employee to work in 
the OOI until the TSA makes a new certification and the DHS OIG 
submits to Congress a finding that the TSA utilized adequate 
and valid data and methods to make its certification. The bill 
also would require the TSA to reclassify any criminal 
investigators who do not, or are not expected to, spend an 
average of at least 50 percent of their time performing 
criminal investigative duties and report to Congress on any 
associated cost savings.
    In addition, this legislation would require the TSA to 
submit to Congress any materials in the possession or control 
of the Department of Homeland Security (DHS) associated with 
the OOI's review of instances in which Federal Air Marshal 
Service (FAMS) officials obtained discounted or free firearms 
for personal use, and information on specific actions that will 
be taken to prevent FAMS officials from using their official 
positions, or exploiting FAMS relationships with private 
vendors, to obtain discounted or free firearms for personal 
use.
    Lastly, as amended, H.R. 719 would require the DHS IG to 
submit a study to Congress comparing the employee requirements, 
responsibilities, and benefits of criminal investigators in the 
OOI with criminal investigators employed at agencies adhering 
to the Office of Personnel Management (OPM) employee 
classification system, and to identify any inconsistencies and 
cost implications for differences between the varying employee 
requirements, responsibilities, and benefits.

                          Legislative History

    H.R. 719 was introduced on February 4, 2015, by 
Representative John Katko (R-NY) and passed the House of 
Representatives on February 10, 2015, by a vote of 414-0. The 
bill is substantially similar to H.R. 4803, a bipartisan 
measure in the 113th Congress sponsored by Congressman Mark 
Sanford (R-SectionSC) that passed the House of Representatives 
by voice vote, but saw no action in the Senate.
    No legislative hearings were held on H.R. 719 in the 114th 
Congress. However, the Subcommittee on Transportation Security 
of the Homeland Security Committee of the House of 
Representatives held an oversight hearing on January 28, 2014, 
entitled ``Examining TSA's Cadre of Criminal Investigators.''
    On February 26, 2015, the Committee on Commerce, Science, 
and Transportation of the Senate held an Executive Session to 
consider H.R. 719, the TSA Office of Inspection Accountability 
Act of 2015, and ordered the bill to be reported to the Senate 
favorably, with an amendment in the nature of a substitute, by 
voice vote. Two first degree amendments were agreed to, 
including one sponsored by Chairman Thune and Ranking Member 
Nelson to make several changes to the bill reflecting agency 
feedback, and another sponsored by Senator Manchin to require 
the DHS OIG to conduct a study.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

H.R. 719--TSA Office of Inspection Accountability Act of 2015

    The Office of Inspection in the Transportation Security 
Administration (TSA) is responsible for ensuring the 
effectiveness and efficiency of TSA's operations and 
identifying vulnerabilities in the agency's security systems. 
In carrying out its mission, the office conducts internal 
inspections, investigations, and covert tests to assess the 
integrity of the agency's activities and staff. Under current 
law, roughly half of the office's employees are classified as 
criminal investigators and are eligible for certain statutory 
employment benefits because they are considered law enforcement 
officers. In particular, such individuals qualify for 
additional compensation (known as Law Enforcement Availability 
Pay) and enhanced retirement benefits.
    H.R. 719 would direct the Inspector General of the 
Department of Homeland Security (DHS) to review the data and 
methods that TSA uses to classify personnel as criminal 
investigators and to reclassify any staff of the Office of 
Inspection that are currently misclassified according to the 
results of that review. In addition, the legislation would 
require DHS to provide a variety of security-related updates 
and reports to the Congress.
    According to DHS, TSA is already undertaking a strategic 
analysis of the agency's workforce that, under current law, 
will serve as the basis for potential reclassifications of 
investigative staff of the Office of Inspection. As a result of 
that effort, TSA's future costs for salaries and benefits of 
criminal investigators (which are subject to appropriation) 
could increase or decrease, but CBO does not expect that 
enacting H.R. 719 would significantly affect the timing or 
outcome of that process. We estimate that complying with the 
legislation's reporting requirements would cost less than 
$500,000 and would be subject to the availability of 
appropriated funds. H.R. 719 would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 719 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 Megan Carroll. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

    The bill would not subject any individuals or businesses to 
additional regulations. It would address internal agency 
employee classification and benefits policies that could result 
in personnel treatment changes to no more than 125 existing TSA 
employees.

                            economic impact

    The bill would not have an adverse economic impact on the 
Nation and would not authorize any new spending by the Federal 
Government. On the contrary, it could save an estimated $17.5 
million over 5 years, plus additional projected savings in 
training, travel, supplies, and other special employment 
benefits if personnel are properly reclassified. According to 
the DHS, the TSA is already undertaking a strategic analysis of 
its workforce that will serve as the basis for potential 
reclassifications of investigative staff of the OOI, and 
compliance with the legislation's reporting requirements would 
cost less than $500,000, subject to the availability of 
appropriated funds.

                                privacy

    The bill would have no adverse impact on the personal 
privacy of individuals.

                               paperwork

    The bill would not significantly increase paperwork 
requirements for private individuals or businesses, and would 
require the Federal Government to produce a certification, an 
estimate, information, a finding, and a study to Congress. The 
TSA would be required to certify to Congress that only those 
OOI employees who meet the requirements of sections 8331(20), 
8401(17), and 5545a of title 5, United States Code, are 
classified as criminal investigators and are receiving premium 
pay and other benefits associated with such classification. The 
TSA would also be required to submit to Congress an estimate of 
total long-term savings to the Federal Government resulting 
from its employee reclassification, as well as materials and 
information related to its OOI review of FAMS misconduct. The 
DHS OIG would be required to produce to Congress a finding that 
the TSA used adequate and valid data and methods to make a 
positive certification to Congress, and a study comparing the 
OOI criminal investigators to other agencies' criminal 
investigators adhering to the OPM employee classification 
system.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title

    This section would provide that the bill may be cited as 
the ``TSA Office of Inspection Accountability Act of 2015.''

Section 2. Findings

    This section would make five findings based on a DHS OIG 
report regarding the TSA's inconsistent implementation of 
policies and best practices for designation of criminal 
investigators, and related inflated costs.

Section 3. Definitions

    This section would define the terms ``Administration'' as 
the Transportation Security Administration, ``Assistant 
Secretary'' as the Assistant Secretary of Homeland Security 
(Transportation Security), and ``Inspector General'' as the 
Inspector General of the Department of Homeland Security.

Section 4. Inspector General audit

    This section would direct the DHS OIG, within 60 days after 
the date of enactment, to analyze the data and methods that the 
TSA uses to identify OOI employees that meet the requirements 
of sections 8331(20), 8401(17), and 5545a of title 5, United 
States Code; and provide relevant findings to the Assistant 
Secretary, including whether the data and methods are adequate 
and valid.
    This section would further prohibit the TSA from hiring any 
new employee to work in the OOI if the DHS OIG finds that such 
data and methods are inadequate or invalid, until: (1) the TSA 
makes a certification to the Committee on Homeland Security of 
the House of Representatives and the Committee on Commerce, 
Science, and Transportation of the Senate that only TSA 
employees who meet such requirements are classified as criminal 
investigators and are receiving premium pay and other benefits 
associated with such classification; and (2) the DHS OIG 
submits a finding that the TSA utilized adequate and valid data 
and methods to make such certification.

Section 5. TSA Office of Inspection workforce certification

    This section would require the TSA, within 90 days after 
the date the DHS OIG provides its findings to the TSA, to 
document and certify in writing to the Committee on Homeland 
Security of the House of Representatives and the Committee on 
Commerce, Science, and Transportation of the Senate that only 
those OOI employees who meet the requirements of sections 
8331(20), 8401(17), and 5545a of title 5, United States Code, 
are classified as criminal investigators and are receiving 
premium pay and other benefits associated with such 
classification.
    The section would require the TSA to re-classify criminal 
investigator positions in the OOI as noncriminal investigator 
positions or non-law enforcement positions if the individuals 
in those positions do not, or are not expected to, spend an 
average of at least 50 percent of their time performing 
criminal investigative duties.
    This section would require the TSA to estimate the total 
long-term cost savings to the Federal Government resulting from 
its employee reclassification, and provide such estimate to the 
Committee on Homeland Security of the House of Representatives 
and the Committee on Commerce, Science, and Transportation of 
the Senate not later than 180 days after the date of enactment 
of this Act. Such estimate shall identify savings associated 
with the positions reclassified and include factors such as, 
law enforcement training; early retirement benefits; law 
enforcement availability and other premium pay; and weapons, 
vehicles, and communications devices.

Section 6. Investigation of Federal Air Marshal Service misconduct

    This section would require the TSA to submit to the 
Committee on Homeland Security of the House of Representatives 
and the Committee on Commerce, Science, and Transportation of 
the Senate, not later than 90 days after enactment, or as soon 
as practicable, materials in the possession or control of the 
DHS associated with the DHS OIG's review of instances in which 
FAMS officials obtained discounted or free firearms for 
personal use, and information on specific actions that will be 
taken to prevent FAMS officials from using their official 
positions or exploiting FAMS relationships with private vendors 
to obtain discounted or free firearms for personal use.

Section 7. Study

    As amended, this section would require the DHS OIG to 
submit to the Committee on Homeland Security of the House of 
Representatives and the Committee on Commerce, Science, and 
Transportation of the Senate, not later than 180 days after the 
TSA submits its certification to Congress, a study: (1) 
reviewing and comparing the employee requirements, 
responsibilities, and benefits of criminal investigators in the 
OOI with those of criminal investigators employed at agencies 
adhering to the OPM employee classification system; and (2) 
identifying any inconsistencies and costs implications for 
differences between the varying employee requirements, 
responsibilities, and benefits.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
bill as reported would make no change to existing law.

                                  [all]