[Senate Report 111-248]
[From the U.S. Government Publishing Office]
111th Congress
2d Session SENATE Report
111-248
_______________________________________________________________________
Calendar No. 516
TO ALLOW CERTAIN U.S. CUSTOMS AND BORDER PROTECTION EMPLOYEES WHO SERVE
UNDER AN OVERSEAS LIMITED APPOINTMENT FOR AT LEAST 2 YEARS, AND WHOSE
SERVICE IS RATED FULLY SUCCESSFUL OR HIGHER THROUGHOUT THAT TIME, TO BE
CONVERTED TO A PERMANENT APPOINTMENT IN THE COMPETITIVE SERVICE
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 1517
TO ALLOW CERTAIN U.S. CUSTOMS AND BORDER PROTECTION EMPLOYEES WHO SERVE
UNDER AN OVERSEAS LIMITED APPOINTMENT FOR AT LEAST 2 YEARS, AND WHOSE
SERVICE IS RATED FULLY SUCCESSFUL OR HIGHER THROUGHOUT THAT TIME, TO BE
CONVERTED TO A PERMANENT APPOINTMENT IN THE COMPETITIVE SERVICE
August 5, 2010.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Blas Nunez-Neto, Professional Staff Member
Nicole M. Martinez, Legislative Aide
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director for Governmental Affairs
Matthew L. Hanna, Minority CBP Detailee
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 516
111th Congress
SENATE
Report
2d Session 111-248
======================================================================
TO ALLOW CERTAIN U.S. CUSTOMS AND BORDER PROTECTION EMPLOYEES WHO SERVE
UNDER AN OVERSEAS LIMITED APPOINTMENT FOR AT LEAST 2 YEARS, AND WHOSE
SERVICE IS RATED FULLY SUCCESSFUL OR HIGHER THROUGHOUT THAT TIME, TO BE
CONVERTED TO A PERMANENT APPOINTMENT IN THE COMPETITIVE SERVICE
_______
August 5, 2010.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 1517]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 1517) to allow
certain U.S. Customs and Border Protection employees who serve
under an overseas limited appointment for at least 2 years, and
whose service is rated fully successful or higher throughout
that time, to be converted to a permanent appointment in the
competitive service, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................2
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes to Existing Law Made by the Bill, as Reported............6
I. PURPOSE AND SUMMARY
The purpose of H.R. 1517 is to allow the U.S. Customs and
Border Protection (CBP) to resolve a longstanding issue
involving twenty-five employees stationed abroad. These
employees initially received temporary appointments, but have
remained in their jobs between eight and twenty years. Under
international agreements reached after their hiring, and to
address potential liabilities under the laws of the countries
in which they work, they now must hold permanent positions or
face termination of their employment. This bill would give CBP
a very targeted exception from civil service rules that require
agencies to use a competitive process to hire for permanent
jobs. It will thereby allow this small group of long-time
employees to keep their jobs and allow the United States to
retain their expertise.
II. BACKGROUND AND NEED FOR LEGISLATION
H.R. 1517 will allow CBP to rectify mistakes made by the
Immigration and Naturalization Service (INS) and the Department
of Agriculture, which employed the individuals covered by the
bill prior to the creation of the Department of Homeland
Security. The twenty-five CBP employees at issue work in Aruba,
The Bahamas, Bermuda, Canada, and the Republic of Ireland.\1\
The INS and the Department of Agriculture originally hired the
employees, all United States citizens residing permanently in
these countries, as overseas temporary part-time
appointments.\2\ Under Department of State rules, such
appointments are supposed to last a specified period of time,
not to exceed one year, and are aimed at meeting a temporary
employment need in a foreign country. Over time, however these
25 employees' work gradually evolved, and their jobs became
full-time and permanent but their jobs remained in a gray area
between typical civil service positions and locally engaged
staff (who are typically hired locally and compensated in local
currency). These 25 employees receive compensation as if they
were in the U.S. civil service system, but since they were
hired locally, outside the civil service competition rules,
they are ineligible for actual civil service positions.
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\1\One of these employees is in the process of retiring, so the
overall number of employees affected by this bill may be 24 by the time
it is enacted.
\2\17 of these employees were originally hired by the INS to
undertake immigration inspections. 8 of them were originally hired by
the Department of Agriculture to undertake agricultural inspections.
See 5 C.F.R. Part 301.
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One unintended consequence of this situation is that it may
put the United States government in violation of local
employment laws. Because these individuals' positions are
technically not considered U.S. government civil service
positions, the U.S. government's employment relationship with
these permanent resident employees is subject to the laws of
the host country in question. The U.S. government could thus be
in violation of local law if the benefits provided to the
employees do not meet the requirements of the host country's
employment laws (e.g., a certain number of holidays per year
and paid maternity leave, among other things).\3\ The CBP
employees in question are currently paid in accordance with the
General Schedule System (GS) rather than the Local Compensation
Plan developed in accordance with each country's prevailing
compensation practices. As such, the Department of State has
raised concerns about this potential violation and has
requested that CBP correct the employees' status.
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\3\CBP believes that this is in fact the case for Ireland.
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All twenty-five employees work in ``pre-clearance
operations,'' an important component of the United States
government's ongoing efforts to secure international travel. At
pre-clearance ports in foreign countries, CBP officers conduct
immigration, customs, and agricultural inspections of travelers
before they travel to the United States. This allows the U.S.
government to better identify dangerous or inadmissible
individuals before they actually board an airplane bound for
the United States. In order to place a pre-clearance facility
in a foreign country, CBP must enter into an agreement with
that country governing how pre-clearance operations will be
carried out.
Apart from the Department of State's general concerns about
whether the U.S. is violating local employment laws, there is a
specific issue relating to an international agreement between
the United States and Ireland, where 15 of the employees in
question work. The agreement between the United States and
Ireland that allows U.S. personnel to conduct pre-clearance
operations requires that the CBP employees stationed in Ireland
be in the U.S. civil service system. Because the CBP pre-
clearance individuals addressed by H.R. 1517 were hired in
Ireland to work there on overseas limited appointments, even
though they are receiving pay and benefits as if they are
permanent employees, CBP is technically in violation of the two
countries' agreement.
Unfortunately, the executive branch cannot solve this
international disagreement on its own. Civil service laws
prohibit agencies from non-competitively promoting an
individual from a limited overseas appointment to a permanent
civil service position.\4\ To provide an equitable solution
that recognizes the work done by these employees for the United
States, H.R. 1517 provides CBP the authority to convert this
select group of employees non-competitively to the competitive
service. Congress has previously granted the Internal Revenue
Service\5\ and the Library of Congress\6\ the authority to
convert employees from limited positions to permanent, civil
service positions.
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\4\5 CFR Part 301.
\5\P.L. 105-206, section 1201, 112 Stat. 685, 717 (1998).
\6\P.L. 106-554, 114 Stat. 2763 (2000).
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In late 2007, the Department of State requested that CBP
either convert the employees to Locally Engaged Staff (LES),
who work for the U.S. government but are compensated in local
currency and typically pay local taxes, or to place the
employees into competitive positions. Since then, CBP and the
Department of Homeland Security have been working with the
Department of State and the Office of Personnel Management to
develop a solution that would allow the employees to continue
their work in their current positions and avoid adverse impacts
to the employees.
In June 2009, an interim administration action was taken to
bring the affected positions under the purview of the National
Security Decision Directive (NSDD) 38, which gives the Chief of
Mission--the head of our diplomatic representation in a foreign
country (usually the Ambassador)--control over the size,
composition, and mandate of overseas full-time mission staffing
for all United States government agencies. With respect to the
employees working in Ireland, this interim action brought the
positions under the umbrella of the U.S. Embassy in Ireland to
allow CBP additional time to take official action to convert
these positions to competitive status, while allowing CBP to
increase staffing at pre-clearance operations, per the United
States government's agreement with Ireland. The Department of
State has given CBP a June 2011 deadline for adhering to the
requirements of the international agreement.
Neither CBP nor the Department of State have been able to
provide the Committee with a satisfactory answer as to how
these individuals could have been hired outside of State's
usual process for overseas limited appointments and why their
status has not been addressed before now. Nevertheless, the
individuals in question have, by all accounts, been exemplary
employees and should not be held responsible for irregularities
and inconsistencies in the hiring processes for overseas
limited appointments at the INS, the Department of Agriculture,
and the Department of State.
H.R. 1517, as passed by the House, provides discrete
authority to the CBP Commissioner to convert these positions
from limited overseas appointments to permanent civil service
positions. The Senate substitute to H.R. 1517 makes two minor
changes to the bill: it clarifies that the bill should not be
construed as allowing for grants of retroactive pay or
benefits, and it places a two-year sunset on CBP's authority to
convert temporary employees. CBP has assured the Committee that
converting these employees will not take longer than two years.
The Committee urges CBP and the Department of State to work
together in order to minimize the impact on these individuals
and their families.
III. LEGISLATIVE HISTORY
H.R. 1517 was introduced on March 16, 2009, by Congressmen
Eliot Engel and Peter King. The bill was passed by the House on
December 14, 2009, and referred to the Committee on Homeland
Security and Governmental Affairs in the Senate. The Committee
considered the bill on July 28, 2010, and ordered the bill
reported favorably by voice vote with an amendment in the
nature of a substitute. Members present for the vote on the
bill were Senators Lieberman, Levin, Akaka, Carper, Pryor,
Landrieu, McCaskill, Tester, Kaufman, Collins, and McCain.
IV. SECTION-BY-SECTION ANALYSIS
Section 1. Definitions
This section defines, for the purposes of this Act, the
terms `Commissioner', `U.S. Customs and Border Protection',
`competitive service', and `overseas limited appointment'.
Section 2. Authority to convert certain overseas limited appointments
to permanent appointments
This section grants special authority to the Commissioner
of CBP to adjust the appointment for certain CBP employees
stationed overseas in order to correct their employment
category and protect their Federal benefits and retirement.
Specifically, this section gives the Commissioner authority
to noncompetitively convert CBP employees hired under an
overseas limited appointment to permanent status if the
employee has two or more years of continuous service and the
service has been rated successful or an equivalent.
The section also requires the United States to indemnify
and hold harmless employees covered under the Act from claims
arising from the exercise of their duties before, on, and after
enactment of the Act, including, but not limited to, claims
arising from their residency status.
Further, the section requires that employees covered under
this Act and their dependents receive services and monetary
payments equivalent to those provided to other CBP employees in
similar positions in the same country of assignment.
Lastly, the section provides guidance to the Commissioner
with regard to the implementation of the conversion of an
employee under this Act and specifically states that the
implementation should meet the operations needs of CBP while at
the same time, and to the greatest extent practicable, not be
disruptive to the affected employees.
Section 3. Rule of construction
This section clarifies that nothing in the bill shall be
construed as intending to authorize the payment of back wages
or benefits to employees who undergo a status conversion.
Section 4. Termination
This section states that the authority of the Commissioner
to covert the status of employees shall terminate 2 years after
the date of enactment.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The
Congressional Budget Office states that the bill contains no
intergovernmental or private sector mandates as defined in the
Unfunded Mandate Reform Act and would not effect state, local,
and tribal governments. The enactment of this legislation will
not have significant regulatory impact.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
July 30, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1517, an act to
allow certain U.S. Customs and Border Protection employees who
serve under an overseas limited appointment for at least two
years, and whose service is rated successful or higher
throughout that time, to be converted to a permanent
appointment in the competitive service.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1517--An act to allow certain U.S. Customs and Border Protection
employees who serve under an overseas limited appointment for
at least two years, and whose service is rated successful or
higher throughout that time, to be converted to a permanent
appointment in the competitive service
CBO estimates that implementing H.R. 1517 would have no
significant cost to the federal government. Enacting the
legislation would not affect revenues or direct spending;
therefore, pay-as-you-go procedures would not apply.
H.R. 1517 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.
H.R. 1517 would authorize U.S. Customs and Border
Protection (CBP) in the Department of Homeland Security to
change the employment status of certain individuals stationed
overseas; this authority would expire two years after enactment
of the legislation. The act would change those employees'
status from ``overseas limited appointment'' to ``permanent
appointment in the competitive service'' to comply with certain
international agreements between the United States and other
countries. The legislation would apply to 35 employees who
began service with the former Immigration and Naturalization
Service. H.R. 1517 would not change the salaries or
significantly alter the benefits of those individuals. Thus,
CBO estimates that implementing the act would have no
significant effect on spending by CBP.
On December 3, 2009, CBO transmitted a cost estimate for
H.R. 1517 as ordered reported by the House Committee on
Homeland Security on November 17, 2009. The two versions of the
legislation are similar, as are the CBO cost estimates.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
H.R. 1517 as reported are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
H.R. 1517 does not make any changes to existing law.