
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC5545a]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           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 
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 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)''.

(Added Pub. L. 103-329, title VI, Sec. 633(b)(1), Sept. 30, 1994, 108 
Stat. 2425; amended Pub. L. 104-19, title I, Secs. 901, 902(a), July 27, 
1995, 109 Stat. 230; Pub. L. 104-208, div. A, title I, Sec. 101(f) 
[title VI, Sec. 659 [title II, Sec. 206(b)(2)]], Sept. 30, 1996, 110 
Stat. 3009-314, 3009-372, 3009-378; Pub. L. 105-277, div. A, Sec. 101(b) 
[title IV, Sec. 407(a), (c)(1)], div. G, subdiv. B, title XXIII, 
Sec. 2316(a), (c)(1), Oct. 21, 1998, 112 Stat. 2681-50, 2681-101, 2681-
102, 2681-828.)

                       References in Text

    Title II of Public Law 99-399, referred to in subsecs. (a)(2) and 
(k)(1), is title II of Pub. L. 99-399, Aug. 27, 1986, 100 Stat. 858, as 
amended, which is classified generally to subchapter II (Sec. 4821 et 
seq.) of chapter 58 of Title 22, Foreign Relations and Intercourse. For 
complete classification of this Act to the Code, see Short Title note 
set out under section 4801 of Title 22 and Tables.
    Sections 609(b)(1), 805, 806, and 856 of the Foreign Service Act of 
1980, referred to in subsec. (k)(2)(B), are classified to sections 
4009(b)(1), 4045, 4046, and 4071e, respectively, of Title 22, Foreign 
Relations and Intercourse.


                               Amendments

    1998--Subsec. (a)(2). Pub. L. 105-277, Sec. 101(b) [title IV, 
Sec. 407(c)(1)] and Sec. 2316(c)(1), amended subsec. (a)(2) identically, 
substituting ``Public Law 99-399, subject to subsection (k))'' for 
``Public Law 99-399)'' in introductory provisions.
    Subsec. (k). Pub. L. 105-277, Sec. 101(b) [title IV, Sec. 407(a)] 
and Sec. 2316(a), amended section identically, adding subsec. (k).
    1996--Subsec. (h)(2)(A). Pub. L. 104-208 struck out ``8431,'' after 
``8331(3),''.
    1995--Subsec. (a)(2). Pub. L. 104-19, Sec. 901(1)(A), inserted 
``who'' before ``is required to'' in introductory provisions.
    Subsec. (a)(2)(E)(v). Pub. L. 104-19, Sec. 901(1)(B), inserted 
``and'' at end.
    Subsec. (i). Pub. L. 104-19, Sec. 902(a), added subsec. (i).
    Subsec. (j). Pub. L. 104-19, Sec. 901(2), added subsec. (j).


                    Effective Date of 1998 Amendment

    For effective date of amendment by Pub. L. 105-277, see section 
101(b) [title IV, Sec. 407(d)] and section 2316(d) of Pub. L. 105-277, 
set out as a note under section 5542 of this title.


                    Effective Date of 1996 Amendment

    Section 101(f) [title VI, Sec. 659 [title II, Sec. 207]] of Pub. L. 
104-208 provided that: ``This title [title II (Secs. 201-207) of section 
659 of section 101(f) of Pub. L. 104-208, amending this section and 
sections 8351, 8401, 8433, 8435, and 8440a to 8440c of this title, 
repealing section 8431 of this title, enacting provisions set out as 
notes under sections 8401 and 8433 of this title, and amending 
provisions set out as a note under section 5343 of this title] shall 
take effect on the date of the enactment of this Act [Sept. 30, 1996] 
and withdrawals and elections as provided under the amendments made by 
this title shall be made at the earliest practicable date as determined 
by the Executive Director in regulations.''


                    Effective Date of 1995 Amendment

    Section 902(b) of Pub. L. 104-19 provided that: ``The amendment made 
by subsection (a) of this section [amending this section] shall take 
effect on the first day of the first applicable pay period which begins 
on or after the 30th day following the date of enactment of this Act 
[July 27, 1995].''


                             Effective Date

    Section 633(e) of Pub. L. 103-329 provided that: ``The amendments 
made by this section [enacting this section and amending sections 5542 
and 5547 of this title and section 213 of Title 29, Labor] shall take 
effect on the first day of the first applicable pay period which begins 
on or after the later of October 1, 1994, or the 30th day following the 
date of enactment of this Act [Sept. 30, 1994], except that:
        ``(1) Criminal investigators, employed in Offices of Inspectors 
    General, who are not receiving administratively uncontrollable 
    overtime compensation or who are receiving such premium pay at a 
    rate less than 25 percent prior to the date of enactment of this 
    Act, may implement availability pay at any time prior to September 
    30, 1995, after which date availability pay as authorized under this 
    section shall be provided to such criminal investigators.
        ``(2) Criminal investigators, employed by Offices of Inspectors 
    General, who are receiving administratively uncontrollable overtime 
    at a rate less than 25 percent, shall continue to receive this 
    compensation at the same rate or higher until availability pay 
    compensation is provided, which shall be no later than the last pay 
    period ending on or before September 30, 1995.''


                             Implementation

    Pub. L. 105-277, div. A, Sec. 101(b) [title IV, Sec. 407(b)], div. 
G, subdiv. B, title XXIII, Sec. 2316(b), Oct. 21, 1998, 112 Stat. 2681-
50, 2681-102, 2681-828, provided that: ``Not later than the date on 
which the amendments made by this section [amending this section and 
section 5542 of this title] take effect [see Effective Date of 1998 
Amendment note set out above], each special agent of the Diplomatic 
Security Service who satisfies the requirements of subsection (k)(1) of 
section 5545a of title 5, United States Code, as amended by this 
section, and the appropriate supervisory officer, to be designated by 
the Secretary of State, shall make an initial certification to the 
Secretary of State that the special agent is expected to meet the 
requirements of subsection (d) of such section 5545a. The Secretary of 
State may prescribe procedures necessary to administer this 
subsection.''


                 Certification of Criminal Investigators

    Section 633(f) of Pub. L. 103-329 provided that: ``Not later than 
the effective date of this section [see Effective Date note above], each 
criminal investigator under section 5545a of title 5, United States 
Code, as added by this section, and the appropriate supervisory officer, 
to be designated by the head of the agency, shall make an initial 
certification to the head of the agency that the criminal investigator 
is expected to meet the requirements of subsection (d) of such section 
5545a. The head of a law enforcement agency may prescribe procedures 
necessary to administer this paragraph.''

                  Section Referred to in Other Sections

    This section is referred to in sections 5542, 5547, 8331 of this 
title; title 2 section 1371; title 29 section 213.
