59–006 

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 


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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. 


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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. 


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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 


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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): 


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TITLE 5, UNITED STATES CODE 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

SUBPART D—PAY AND ALLOWANCES 

* * * * * * * 

CHAPTER 55—PAY ADMINISTRATION 

* * * * * * * 

SUBCHAPTER V—PREMIUM PAY 

* * * * * * * 

§ 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 


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(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. 


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(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 øapply 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)), 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. 

(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 


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(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)’’. 

* * * * * * * 

Æ 


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