(**Note: See Director's Order 162 for amendments to this chapter related to the Office of Law Enforcement.)
10.1 Purpose. This promulgates policy and procedures for the administration and payment of law enforcement availability pay (hereafter referred to as "availability pay") to criminal investigators.
10.2 Scope.
A. This chapter applies to criminal investigators in the GS-1811 and GS-1812 (e.g., special agents) occupational series within the U.S. Fish and Wildlife Service (Service) who:
(1) Are covered under the special retirement provisions for law enforcement officers or who meet the definition for law enforcement officer in 5 U.S.C. 5541(3) and 5 CFR 550.103(t) (i.e., serve in secondary law enforcement positions but are not individually covered due to failure to meet the transfer requirement); and
(2) Meet the eligibility requirements for availability pay.
B. Availability pay is authorized for criminal investigators as defined in 5 U.S.C. 5545a and in 10.6F below. Because special agents in the Service embody this definition, the term "criminal investigator" will be hereafter referred to as "special agent" where deemed appropriate.
10.3 Policy. It is the policy of the Service to:
A. Administer availability pay in accordance with governing regulations and guidance published in this chapter;
B. Pay availability pay to ensure the availability of a special agent for all hours of duty in excess of 40 hours in an administrative workweek, except for regularly scheduled overtime and work at night and on Sundays and holidays; and
C. Distribute available hours among special agents in a fair and equitable manner.
10.4 Authority.
A. 5 U.S.C. 5541(2) - (3) (Definitions)
B. 5 U.S.C. 5545 (Night, standby, irregular, and hazardous duty differential
C. 5 CFR 550.181 - 550.187 (Law enforcement availability pay)
10.5 Responsibilities.
A. The Director is responsible for the overall administration and direction of the provisions governing availability pay within the Service.
B. The Assistant Director - Policy, Budget and Administration (APBA) serves as technical advisor to the Director and is responsible for the overall administration of policy and procedures pertaining to availability pay.
C. The Chief, Division of Personnel Management (DPM), under the direction of the APBA, is responsible for the development, implementation, and management of Service policy and procedures on availability pay.
D. Regional Directors and the Assistant Director - Refuges and Wildlife will:
(1) Properly administer and manage availability pay within their respective Regions or organizational area, as applicable;
(2) Ensure that:
(a) Availability pay is administered and applied to special agent positions equitably and consistently throughout the Service; and
(b) Subordinate managers and supervisors are accountable for the day-to-day management of availability pay and that appropriate action is taken against officials who fail to comply with the availability pay provisions.
(3) Certify annually that each special agent meets or is expected to meet the required 2-hour average of unscheduled duty hours during the next 12 months. At their discretion, these officials may designate subordinate supervisors to assume part or all of this responsibility provided the designation is made in writing and no designated official executes his/her/their own certification; and
(4) Review written requests from special agents requesting that no overtime work, including unscheduled duty, be assigned for a specified period due to a personal or family hardship situation and make a determination regarding the merits of the request.
E. Immediate Supervisors will:
(1) Ensure that each special agent has sufficient hours of unscheduled duty to enable the special agent to meet the average hours requirement and make the necessary certification or recommend certification to the designated approving official;
(2) Monitor the administration of availability pay to determine if a special agent is performing the required amount of unscheduled duty as assigned or reported;
(3) Monitor the administration of availability pay to identify deficiencies that need to be minimized or eliminated;
(4) Institute a procedure for monitoring unscheduled duty hours and making a documented differentiation between the number of hours worked and the number of hours available with no work being performed;
(5) Use sound management practices to keep scheduled overtime hours sufficient to accomplish the law enforcement mission.
F. Criminal Investigators/Special Agents will:
(1) Annually certify that they are available to work or will work an annual average equal to or greater than 2 hours beyond the regular 8-hour workday to accomplish work needs of the Service;
(2) Be generally responsible for recognizing those circumstances that require the performance of work or being available for duty to carry out the law enforcement mission and that require remaining on or returning to duty to contend with an operational necessity;
(3) Maintain a complete and accurate record of all hours spent in the performance of work, overtime, training, and travel on a daily basis and document such information on Form 3-2172, Availability Pay Bi-weekly Sheet (Exhibit 1), on a bi-weekly basis; and
(4) Monitor the amount of available hours designated by the supervisor to ensure that the actual performance or expected performance agrees with the annual certification and meets regulatory requirements.
G. Regional Personnel Officers and the Chief, Branch of Headquarters Personnel Operations, DPM, are responsible for conducting personnel management functions associated with the administration and payment of availability pay.
10.6 Definitions.
A. Actual work means the performance of work as officially ordered or approved or without specific supervisory approval when the circumstances require a special agent to perform the duty to meet the needs of the Service.
B. Availability Certification is the required written certification (initial or annual, as appropriate) for each special agent indicating that the special agent is required to work or be available to work and is expected to work during the 1-year period an average of at least 2 hours beyond the regular 8-hour workday.
C. Availability hours means the hours on a regular workday that are not part of a special agent's basic workweek (i.e., were not scheduled in advance of the special agent's administrative workweek) for which management has designated as the period during which a special agent must be available to perform unscheduled duty. During the designated availability period(s), the special agent is considered generally and reasonably accessible to perform unscheduled duty based upon the needs of the Service. The placing of a special agent in availability status is not to be construed as scheduling the employee for overtime hours. Availability hours also includes hours during which a special agent places him/her/themselves in availability status to accomplish law enforcement work or activities precipitated by unexpected situations or circumstances.
D. Availability pay is a form of premium pay that is paid on an annual basis as a flat rate to a special agent to ensure his/her/their availability for unscheduled duty during hours in excess of 40 in a workweek to contend with the needs of the Service's law enforcement work. Availability pay guarantees compensation to criminal investigators who are faced with unique conditions of employment.
E. Covered positions, for purposes of retirement coverage, are positions subject to the provisions of 5 U.S.C. 8336(c) or 5 U.S.C. 8412(d) that meet the statutory description of a law enforcement officer as provided below:
(1) An employee who occupies a primary or rigorous position and whose primary duties are the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States and, in the case of an employee subject to the Federal Employees Retirement System, the protection of officials of the United States against threats to personal safety as required by 5 U.S.C. 8401(17)(B); or
(2) An employee who moves directly from a primary or rigorous law enforcement position to a secondary position that:
(a) Is clearly in the law enforcement or firefighting field;
(2) Is in an organization having a law enforcement or firefighting mission;
(3) Is either:
(a) Supervisory (i.e., a position whose primary duties are as a first-level supervisor to law enforcement officers or firefighters in primary or rigorous positions); or
(b) Administrative (i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary or rigorous law enforcement or firefighting position, or equivalent non-Federal experience is a prerequisite).
(3) This definition does not include an employee whose primary duties involve maintaining order, protecting life and property, guarding against or inspecting for violations of law, or investigating persons other than those who are suspected or convicted of offenses against the criminal laws of the United States.
F. Criminal investigator means a law enforcement officer who:
(1) Is subject to the General Schedule and is properly classified to the GS-1811 or GS-1812 series;
(2) Possesses 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;
(3) Recognizes, develops, and presents evidence that reconstructs events, sequences, and time elements for presentation in various legal hearings and court proceedings;
(4) Demonstrates skills in applying surveillance techniques, undercover work, and advising and assisting the United States Attorney in and out of court;
(5) Demonstrates the ability to apply the full range of knowledge, skills, and abilities necessary for cases that 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);
(6) Possesses knowledge of criminal laws and Federal rules of procedure that apply to cases involving crimes against the United States, including--
(a) Knowledge of the elements of a crime;
(b) Evidence required to prove the crime;
(c) Decisions involving arrest authority;
(d) Methods of criminal operations; and
(e) Availability of detection devices; and
(7) Possesses the ability to follow leads that indicate a crime will be committed rather than initiate an investigation after a crime is committed.
G. Law Enforcement Officer means an employee who:
(1) Is a law enforcement officer within the meaning of the definition in 5 U.S.C. 8331(20) or 5 U.S.C. 8401(17) as indicated in 10.6E, above; and, for purposes of administering availability pay,
(2) Is an employee who serves in a covered secondary law enforcement position, but:
(a) Does not meet the definition of law enforcement officer as provided in 5 U.S.C. 8331 because he/she/they did not transfer directly to the secondary position (i.e., without a break in service exceeding 3 days) from a primary law enforcement position; or
(b) Is an employee who serves in a covered secondary law enforcement position, but who does not meet the definition of law enforcement officer as provided in 5 U.S.C. 8401 because he/she/they did not transfer directly to the secondary position after performing duties in a rigorous law enforcement position for at least 3 years.
H. Regularly scheduled work means work that is scheduled in advance of an administrative workweek (see chapter on Hours of Duty, 226 FW 1), excluding any work qualifying for availability pay.
I. Regular workday means a day in the basic 40-hour workweek on which a special agent performs at least 4 hours of actual work. Actual work excludes overtime hours compensated under 5 U.S.C. 5542 and 5 CFR 550.111, unscheduled duty hours compensated by availability pay, approved training hours, approved leave hours, excused absence hours, and hours engaged in travel under official travel orders. Travel hours are limited only to the hours during which the special agent is traveling away from the official duty station under official travel orders and only for the period of time the special agent is actually traveling.
J. Substantial hours requirement means an annual average of 2 hours of unscheduled duty per regular workday (see 10.6I above).
K. Unscheduled duty hours are hours outside the 40-hour basic workweek during which a special agent performs work or is determined by appropriate authority to be available for work. This time includes the time when the special agent cannot be reasonably and generally accessible due to certain Service-controlled assignments or circumstances and approved absences due to training, travel status, official leave granted during relocation periods, and sick and annual leave. This time does not include regularly scheduled overtime hours (i.e., overtime scheduled in advance of the employee's administrative workweek) authorized under 5 U.S.C. 5542, except for the first 2 hours of overtime work on any day containing a part of the special agent's basic workweek.
L. Workweek, for purposes of this chapter, is a 40-hour week that includes five 8-hour workdays and does not include alternative work schedules (e.g., 5/4-9, 4/10, or maxiflex) of any kind.
10.7 Payment of Availability Pay.
A. Payment of availability pay equals 25 percent of a special agent's rate of basic pay. Basic pay includes any special salary rates, locality pay, interim geographic adjustments, special pay adjustments for law enforcement officers, and retained pay.
B. The payment of availability pay is nondiscretionary when all statutory and regulatory conditions for payment are satisfied, including the required certification and the requirement for the performance of a substantial amount of unscheduled hours.
C. Availability pay is payable only if the annual number of hours of unscheduled duty, including available duty, averages 2 hours or more per regular workday as certified in the initial or annual certification (see 10.8 below).
D. For purposes of availability pay, an average is derived by dividing the total unscheduled duty hours for the annual period (numerator) by the number of regular workdays (denominator). When computing average hours, the total unscheduled hours in the numerator shall include any unscheduled duty hours on a regular workday and any unscheduled duty hours actually worked by a special agent on days that were not regular workdays.
E. Availability pay continues mandatorily during periods of:
(1) Approved absence with pay on sick or annual leave;
(2) Officially approved training, except for initial basic training;
(3) Official travel; and
(4) Excused absence with pay for relocation purposes.
F. Availability pay continues at the discretion of the Service during periods of:
(1) Approved absence with pay (e.g., military or court leave);
(2) Basic training usually provided the first year of service;
(3) Other excused absences with pay.
G. A special agent in receipt of availability pay is automatically exempt of the Fair Labor Standards Act (FLSA) and is not eligible to receive:
(1) Overtime pay for unscheduled duty under 5 U.S.C. 5542 (i.e., pay for irregular or occasional overtime work) or night differential;
(2) Overtime pay under the FLSA;
(3) Pay for administratively uncontrollable overtime work or regularly scheduled standby duty; or
(4) Hazardous duty differential.
H. Availability pay is basic pay for purposes of severance pay, retirement deductions and benefits, life insurance premiums and benefits, Thrift Savings Plan contributions, Workers' Compensation benefits, advances in pay, and lump sum payments for accrued annual leave.
I. Availability pay is subject to the maximum earnings limitations on premium pay published in chapter 225 FW 7 (section 7.23C) of the Fish and Wildlife Service Manual.
10.8 Availability Pay Certification. A special agent shall be eligible for availability pay only if an average of the hours of unscheduled duty worked per regular workday is 2 hours or more over the next 12 months. Certification of a special agent's intention to satisfy eligibility requirements for availability pay and a similar certification to this effect by the supervisor is a mandatory requirement that must be executed in accordance with the guidance outlined below:
A. Initial Certification.
(1) Each newly hired special agent who will receive availability pay and the appropriate supervisory official will make an initial certification that the special agent is expected to meet the substantial hours requirement (i.e., an average of 2 hours of unscheduled duty) during the upcoming 1-year period.
(2) A similar certification must be made for the special agent who will resume receiving availability pay following a period of nonreceipt (e.g., designated voluntary opt-out period).
(3) Within 30 days of appointment to a special agent position, the special agent and the designated Service official must certify in writing that the special agent is expected to satisfy the requirement for averaging at least 2 hours of unscheduled duty during the next 12 months.
(4) The initial certification will be documented on Form 3-2173, Initial Certification of Availability Pay (Exhibit 2).
B. Annual Certification. By October 31 of each year, each special agent and the appropriate designated official must certify in writing that the special agent met the required 2-hour average of unscheduled duty hours for the period following the last certification. Certifications will be documented on Form 3-2171, Annual Certification of Availability Pay (Exhibit 3).
10.9 Voluntary Opt-out Provision from Overtime. The opt-out provision affords special agents with personal or family problems the opportunity to request a temporary suspension of the annual average hours requirement for availability pay as well as other work demands that would require the performance of work outside of the 40-hour basic workweek. The opt-out provision is intended to apply to situations where the expected duration of the designated opt-out period is so long that a special agent would not be likely to satisfy the substantial hours requirement.
A. A special agent facing a personal or family hardship situation may voluntarily submit a written request to be temporarily relieved of the requirement to be available for unscheduled overtime duty and other scheduled overtime work.
B. An opt-out request must be for a minimum period of 120 days. Requests for an extension of the opt-out period may be submitted for consideration.
C. The request is submitted through supervisory channels to the designated approving official. Each request should describe the personal or family hardship, its expected duration, and acknowledge that the special agent understands that availability pay will be discontinued during the period designated for the emergency. The request should also state that the special agent waives the right to adverse action procedures under 5 U.S.C. 7513(b) since the reduction in pay is precipitated by a voluntary request.
D. At his/her/their discretion, the designated official may make a decision concerning the disposition of a special agent's request after giving careful consideration to the recommendations for approval or disapproval received from supervisors in the special agent's management chain (e.g., Senior Resident Agent or Assistant Regional Director - Law Enforcement).
E. During the period availability pay is suspended, a supervisor's responsibility to ensure that the special agent has sufficient hours of unscheduled duty (see 10.5E above) to meet the substantial hours requirement (see 10.6J above) is also suspended.
10.10 Light Duty/Limited Duty/Excused Absence with Pay.
A. Depending on the reason for which the voluntary opt-out was approved, a special agent may be assigned light or limited duty or be excused with pay.
B. A special agent who is temporarily unavailable to perform the full range of assigned duties due to a physical or health condition may be assigned light duties on a temporary basis provided such duties are available within the District/Division and the special agent is expected to resume full duty responsibility within a reasonable period of time. What constitutes a "reasonable period of time" should be determined based upon the nature of the physical or health condition and information obtained from the special agent's physician.
C. A special agent who is approved for a voluntary opt-out to contend with a personal (nonmedical) or family hardship for a temporary period may be assigned limited duties. The length of the opt-out for one of these reasons is discretionary with the approving official.
D. A special agent who is assigned temporary light or limited duties will receive availability pay for 120 days initially. The special agent will continue to receive availability pay pending a review of the light or limited duty situation and the expected date of return to the full range of law enforcement duties. If the review results in a determination that the continuation of light or limited duty is inappropriate, the special agent may continue to receive availability pay as long as he/she/they is in an approved paid leave status or returns to performing the full range of law enforcement duties.
E. While on light duty, the special agent is expected to work or be available to perform work assignments that are appropriately within the constraints of his/her/their physical capacity as medically certified by a physician. While on limited duty, the special agent will be expected to work or be available to work limited duty assignments, as is deemed appropriate, during unscheduled duty hours.
F. A special agent may be excused from duty with pay when he/she/they cannot be reasonably and generally accessible due to a status (e.g., training, approved leave with pay, travel) or certain Service-controlled assignments or circumstances.
G. A special agent who has been certified for availability pay will continue to receive availability pay while in an excused absence with pay status for 120 days initially. The special agent may continue to receive availability pay pending a review of the conditions that resulted in the excused absence with pay determination. If the review results in a determination that availability pay is no longer warranted, decertification procedures may be initiated by an appropriate Service official.
H. A special agent's light duty or excused absence with pay status does not obviate the need to comply with the annual certification requirement.
10.11 Cancellation or Denial of Certification.
A. The cancellation of a valid certification or the denial of a recertification must be based upon a special agent's:
(1) Failure to perform unscheduled duty as assigned or reported; or
(2) Inability to perform unscheduled duty for an extended period because of a physical or health condition.
C. A special agent who fails to meet, or is expected to fail to meet, the required 2-hour average of unscheduled duty hours for the period since the last certification will be notified of management's intent to discontinue availability pay under adverse action procedures as provided by 5 U.S.C. 7513(b). This authority mandates that employees decertified under these procedures will be advised in writing of their rights to appeal or grieve the action (i.e., decertification). The suspension of a valid certification will be effected prospectively.
D. Employees who are on approved leave will not be deemed unavailable.
E. A certification will no longer apply when an employee:
(1) Separates from Federal service;
(2) Is employed by another agency;
(3) Moves to a position that does not qualify as a criminal investigator position; or
(4) Begins a voluntary opt-out period (see 10.9 above).
10.12 Records Management/Maintenance.
A. The forms in Exhibits 1, 2, and 3 may be reproduced locally.
B. Unless otherwise determined by appropriate authority, approved copies of the required certification forms for availability pay for each special agent will be maintained by supervisory officials locally in a file that allows for easy reference and retrieval should the need arise.