U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 111th Congress 

2d Session 

REPORT

2010

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 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

EDWARD E. KAUFMAN, Delaware 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

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 


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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 


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1One 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. 3 CBP believes that this is in fact the case for Ireland. 

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. 

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 preVerDate Mar 15 2010 04:59 Aug 07, 2010 Jkt 089010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR248.XXX SR248

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4 5 CFR Part 301. 

5P.L. 105–206, section 1201, 112 Stat. 685, 717 (1998). 

6P.L. 106–554, 114 Stat. 2763 (2000). 

vailing compensation practices. As such, the Department of State 

has raised concerns about this potential violation and has requested that CBP correct the employees’ status. 

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. 

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 


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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. 


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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. 


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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-yougo 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. 

Æ 


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