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111th Congress Rept. 111-373
HOUSE OF REPRESENTATIVES
1st Session Part 1
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AUTHORITY TO CONVERT CERTAIN OVERSEAS LIMITED APPOINTMENTS TO PERMANENT
APPOINTMENTS
_______
December 14, 2009.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Thompson of Mississippi, from the Committee on Homeland Security,
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, to whom 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, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 5
New Budget Authority, Entitlement Authority, and Tax Expenditures 5
Congressional Budget Office Estimate............................. 5
Statement of General Performance Goals and Objectives............ 6
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 6
Federal Mandates Statement....................................... 6
Advisory Committee Statement..................................... 6
Constitutional Authority Statement............................... 6
Applicability to Legislative Branch.............................. 6
Section-by-Section Analysis of the Legislation................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Committee Correspondence......................................... 9
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. DEFINITIONS.
For purposes of this Act--
(1) the term ``Commissioner'' means the Commissioner of U.S.
Customs and Border Protection;
(2) the term ``U.S. Customs and Border Protection'' means
U.S. Customs and Border Protection of the Department of
Homeland Security;
(3) the term ``competitive service'' has the meaning given
such term by section 2102 of title 5, United States Code; and
(4) the term ``overseas limited appointment'' means an
appointment under--
(A) subpart B of part 301 of title 5 of the Code of
Federal Regulations, as in effect on January 1, 2008;
or
(B) any similar antecedent or succeeding authority,
as determined by the Commissioner.
SEC. 2. AUTHORITY TO CONVERT CERTAIN OVERSEAS LIMITED APPOINTMENTS TO
PERMANENT APPOINTMENTS.
(a) In General.--Notwithstanding chapter 33 of title 5, United States
Code, or any other provision of law relating to the examination,
certification, and appointment of individuals in the competitive
service, the Commissioner may convert an employee serving under an
overseas limited appointment within U.S. Customs and Border Protection
to a permanent appointment in the competitive service within U.S.
Customs and Border Protection, if--
(1) as of the time of conversion, the employee has completed
at least 2 years of current continuous service under 1 or more
overseas limited appointments; and
(2) the employee's performance has, throughout the period of
continuous service referred to in paragraph (1), been rated at
least fully successful or the equivalent.
An employee whose appointment is converted under the preceding sentence
acquires competitive status upon conversion.
(b) Indemnification and Privileges.--
(1) Indemnification.--The United States shall, in the case of
any individual whose appointment is converted under subsection
(a), indemnify and hold such individual harmless from any claim
arising from any event, act, or omission--
(A) that arises from the exercise of such
individual's official duties, including by reason of
such individual's residency status, in the foreign
country in which such individual resides at the time of
conversion,
(B) for which the individual would not have been
liable had the individual enjoyed the same privileges
and immunities in the foreign country as an individual
who either was a permanent employee, or was not a
permanent resident, in the foreign country at the time
of the event, act, or omission involved, and
(C) that occurs before, on, or after the date of the
enactment of this Act, including any claim for taxes
owed to the foreign country or a subdivision thereof.
(2) Services and payments.--
(A) In general.--In the case of any individual whose
appointment is converted under subsection (a), the
United States shall provide to such individual
(including any dependents) services and monetary
payments--
(i) equivalent to the services and monetary
payments provided to other Customs and Border
Protection employees in similar positions (and
their dependents) in the same country of
assignment by international agreement, an
exchange of notes, or other diplomatic policy;
and
(ii) for which such individual (including any
dependents) was not eligible by reason of such
individual's overseas limited appointment.
(B) Applicability.--Services and payments under this
paragraph shall be provided to an individual (including
any dependents) to the same extent and in the same
manner as if such individual had held a permanent
appointment in the competitive service throughout the
period described in subsection (a)(1). The preceding
sentence shall, in the case of any individual, be
effective as of the first day of the period described
in subsection (a)(1) with respect to such individual.
(c) Guidance on Implementation.--The Commissioner shall implement the
conversion of an employee serving under an overseas limited appointment
to a permanent appointment in the competitive service in a manner
that--
(1) meets the operational needs of the U.S. Customs and
Border Protection; and
(2) to the greatest extent practicable, is not disruptive to
the employees affected under this Act.
PURPOSE AND SUMMARY
The purpose of H.R. 1517 is to allow certain U.S. Customs
and Border Protection (CBP) employees who serve under an
overseas limited appointment for at least 2 years, and whose
service was rated fully successful or higher through that time,
to be converted to a permanent appointment in the competitive
service.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 1517 addresses a small population of 35 employees at
CBP currently in overseas limited positions in Aruba, Bahamas,
Bermuda, Canada and Ireland who were hired under the legacy
Immigration and Naturalization Service (INS) under different
terms and conditions than those that are currently required.
The appointments date as far back as 1987 with legacy INS.
These employees were originally hired on overseas temporary
part-time appointments to work in pre-clearance operations, but
the requirements of the work evolved into full-time on a
permanent basis.
This issue came to the attention of the Committee in 2007
when it was realized that due to an agreement between the
United States and Ireland, all pre-clearance employees at CBP
are required to be permanent employees. By definition, these
select groups of CBP employees on overseas appointments are
termed as limited employees. Therefore, CBP is in violation of
the two countries' agreement.
An agency is prohibited from non-competitively promoting an
individual from a limited overseas appointment to a permanent,
civil service position under 5 CFR Part 301. Therefore, H.R.
1517 provides CBP the authority to convert this select group of
employees. This situation is not new. In fact, Congress granted
the Internal Revenue Service and the Library of Congress the
authority to convert similarly-situated employees from limited
positions to permanent, civil service positions.
In late 2007, the Department of State requested that CBP
either convert the employees to Locally Engaged Staff, who are
compensated by and receive benefits from the Irish Government,
or to place the employees into competitive positions that would
require CBP to return the employees to the United States. 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 control of the size, composition, and mandate of
overseas full-time mission staffing for all United States
Government agencies. 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 legislation provides discrete authority to the CBP
Commissioner to convert these legacy positions from limited
overseas appointments to permanent civil service positions.
HEARINGS
No hearings were held on H.R. 1517. However, the
Subcommittee on Border, Maritime and Global Counterterrorism
held two oversight hearings that touched upon staffing and
workforce issues at CBP.
On June 11, 2009, the Subcommittee on Border, Maritime, and
Global Counterterrorism held a hearing entitled ``The FY 2010
Budget for Immigration and Customs Enforcement, Customs and
Border Protection, and the U.S. Coast Guard.'' The Subcommittee
received testimony from Mr. John T. Morton, Assistant
Secretary, U.S. Immigration and Customs Enforcement, Department
of Homeland Security; Mr. Jayson P. Ahern, Acting Commissioner,
U.S. Customs and Border Protection, Department of Homeland
Security; and Adm. Thad W. Allen, Commandant, U.S. Coast Guard,
Department of Homeland Security.
On October 22, 2009, the Subcommittee on Border, Maritime,
and Global Counterterrorism held a hearing entitled ``Cargo
Security at Land Ports of Entry: Are We Meeting the
Challenge?'' The Subcommittee received testimony from Mr. Todd
Owen, Executive Director, Cargo and Conveyance Security, Office
of Field Operations, Customs and Border Protection, Department
of Homeland Security; Ms. Janice Ayala, Deputy Assistant
Director, Office of Investigations, Immigration and Customs
Enforcement, Department of Homeland Security; Ms. Colleen M.
Kelley, National President, National Treasury Employees Union;
and Mr. Stephen Russell, Chairman and CEO, Celadon Group, Inc.,
testifying on behalf of the American Trucking Associations.
COMMITTEE CONSIDERATION
The Subcommittee on Border, Maritime, and Global
Counterterrorism considered H.R. 1517 on July 23, 2009, and
forwarded the measure to the Full Committee for consideration
with the recommendation that it pass, without amendment, by
voice vote. The Subcommittee adopted the H.R. 1517 by unanimous
consent.
The Committee met on November 17, 2009, to consider H.R.
1517, and ordered the measure to be reported to the House with
a favorable recommendation, amended, by voice vote. The
Committee took the following actions:
The Committee adopted the measure, as amended, by unanimous
consent.
The following amendments were offered:
An Amendment in the Nature of a Substitute offered by
Mr. Thompson (#1); was AGREED TO by unanimous consent.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
No recorded voted were requested during consideration of
H.R. 1517.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the
Rules of the House of Representatives, the Committee finds that
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, would result in no new
or increased budget authority, entitlement authority, or tax
expenditures or revenues.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
December 3, 2009.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1517, a bill 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--A bill 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 bill
would not affect revenues or direct spending. 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. The bill 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 bill would have no significant effect on
spending by CBP.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 1517, contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized: To authorize the
Commission of Customs and Border Protection to non-
competitively convert certain CBP employees from their overseas
limited appointments to permanent civil service positions;
provide the converted employees the same indemnity protections,
services, and payments as they would have had if they were
hired as permanent employees; and ensure that the
implementation of the conversion meets the operational needs of
CBP and is not disruptive to the affected employees.
CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF
BENEFITS
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 1, which grants Congress the power
to provide for the common Defense of the United States.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate
to the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Definitions
This section defines, for 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 customs and border
protection employees
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 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 and that
such services and monetary payments be provided for the period
dating from their initial overseas limited appointments.
Lastly, the section provides guidance to the Commissioner
with regards 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, is not
disruptive to the affected employees.
The Committee believes that the legislation is necessary
and will provide the needed authority for the Commissioner to
convert these overseas limited appointments to permanent
appointments. The Committee urges the Commissioner to affect
such conversions immediately following enactment.
Further, the Committee notes that these employees were in a
personnel ``limbo'' for the past fifteen to twenty years and
were not covered by the protections and immunities afforded to
permanent CBP employees engaged in similar work. The Committee
believes that the legislation rightly provides the employees
the proper protections and immunities afforded to permanent
employees. It is the Committee's intent that no employee will
see a loss of pay or benefit in this conversion.
The Committee recognizes that there is a general rotation
policy in place for CBP employees but believes that this small,
distinct group is in a unique position that warrants special
consideration. Therefore, the Committee encourages the
Commissioner to ensure that this conversion of these employees
shall be implemented in a manner that does not negatively
affect employees currently serving in these posts. In
particular, it is the Committee's intent that the Commissioner
should take the past histories and individual circumstances of
each employee into consideration to the greatest extent
practicable, especially with respect to CBP's personnel
rotation policy. Further, it is the Committee's intent that
employees covered by this Act should not be involuntarily
relocated from their current posts of duty, unless the
Commissioner demonstrates that doing so is necessary to meet
CBP's operational requirements.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
H.R. 1517 does not make any changes to existing law.
