H. Rept. 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 OPERATIONS114th Congress (2015-2016)
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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
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART D--PAY AND ALLOWANCES
* * * * * * *
CHAPTER 55--PAY ADMINISTRATION
* * * * * * *
SUBCHAPTER V--PREMIUM PAY
* * * * * * *
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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