H. Rept. 111-373 - AUTHORITY TO CONVERT CERTAIN OVERSEAS LIMITED APPOINTMENTS TO PERMANENT APPOINTMENTS111th Congress (2009-2010)

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.