[House Report 105-541]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-541
_______________________________________________________________________
DRUG FREE BORDERS ACT OF 1998
_______
May 18, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Archer, from the Committee on Ways and Means, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3809]
[Including cost estimate of the Congressional Budget Office]
The Committee on Ways and Means, to whom was referred the
bill (H.R. 3809) to authorize appropriations for the United
States Customs Service for fiscal years 1999 and 2000, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
I. Introduction.....................................................7
A. Purpose and Summary................................... 7
B. Background and Need for Legislation................... 7
C. Legislative History................................... 9
II. Explanation of the Bill.........................................11
A. Title I--Authorization of Appropriations for U.S.
Customs Service...................................... 11
1. Authorization of Appropriations................... 11
2. Narcotics Detection Equipment for the United
States-Mexico Border, United States-Canada
Border, and Florida and the Gulf Coast Seaports.. 12
3. Peak Hours and Investigative Resource Enhancement
for the United States-Mexico and United States-
Canada Borders................................... 13
4. Compliance with Performance Plan Requirements..... 13
B. Title II--Overtime and Premium Pay of Officers of the
United States Customs Service; Miscellaneous
Provisions........................................... 13
1. Subtitle A--Overtime Pay and Premium Pay of
Officers of the United States Customs Service.... 13
a. Fiscal Year Cap............................... 13
b. Restriction on Payment of Overtime Pay to
Hours Actually Worked........................ 15
c. Premium Pay................................... 16
i. Restriction on Payment of Premium Pay to
Hours Actually Worked...................... 16
ii. Revision of Night Work Differential
Provisions................................. 17
d. Use of Amounts for Additional Overtime
Enforcement Activities of the Customs Service
Resulting from Savings from Payment of
Overtime and Premium Pay..................... 19
2. Subtitle B--Miscellaneous Provisions.............. 19
a. Rotation of Duty Stations and Temporary Duty
Assignments of Officers of the U.S. Customs
Service for Integrity and Drug Interdiction
Purposes..................................... 19
b. Effect of Collective Bargaining Agreements on
Ability of U.S. Customs Service to Interdict
Contraband................................... 20
III. Vote of the Committee...........................................22
IV. Budget Effects of the Bill......................................23
A. Committee Estimates of Budgetary Effects.............. 23
B. Budget Authority and Tax Expenditures................. 23
C. Cost Estimate Prepared by the Congressional Budget
Office............................................... 23
V. Other Matters To Be Discussed Under the Rules of the House......25
A. Committee Oversight Findings and Recommendations...... 25
B. Summary of Findings and Recommendations of the
Committee on Government Reform and Oversight......... 25
C. Constitutional Authority Statement.................... 25
VI. Changes in Existing Law Made by the Bill, as Amended............25
VII. Additional Views................................................31
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Drug Free Borders Act of 1998''.
TITLE I--AUTHORIZATION OF APPROPRIATIONS FOR UNITED STATES CUSTOMS
SERVICE
SEC. 101. AUTHORIZATION OF APPROPRIATIONS.
(a) Drug Enforcement and Other Noncommercial Operations.--
Subparagraphs (A) and (B) of section 301(b)(1) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(b)(1)(A) and (B)) are amended to read as follows:
``(A) $964,587,584 for fiscal year 1999.
``(B) $1,072,928,328 for fiscal year 2000.''.
(b) Commercial Operations.--Clauses (i) and (ii) of section
301(b)(2)(A) of such Act (19 U.S.C. 2075(b)(2)(A)(i) and (ii)) are
amended to read as follows:
``(i) $970,838,000 for fiscal year 1999.
``(ii) $999,963,000 for fiscal year 2000.''.
(c) Air Interdiction.--Subparagraphs (A) and (B) of section 301(b)(3)
of such Act (19 U.S.C. 2075(b)(3)(A) and (B)) are amended to read as
follows:
``(A) $98,488,000 for fiscal year 1999.
``(B) $101,443,000 for fiscal year 2000.''.
(d) Submission of Out-Year Budget Projections.--Section 301(a) of
such Act (19 U.S.C. 2075(a)) is amended by adding at the end the
following:
``(3) By no later than the date on which the President submits to the
Congress the budget of the United States Government for a fiscal year,
the Commissioner of Customs shall submit to the Committee on Ways and
Means of the House of Representatives and the Committee on Finance of
the Senate the projected amount of funds for the succeeding fiscal year
that will be necessary for the operations of the Customs Service as
provided for in subsection (b).''.
SEC. 102. NARCOTICS DETECTION EQUIPMENT FOR THE UNITED STATES-MEXICO
BORDER, UNITED STATES-CANADA BORDER, AND FLORIDA
AND THE GULF COAST SEAPORTS.
(a) Fiscal Year 1999.--Of the amounts made available for fiscal year
1999 under section 301(b)(1)(A) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(A)), as amended by
section 101(a) of this Act, $90,244,000 shall be available until
expended for acquisition and other expenses associated with
implementation and deployment of narcotics detection equipment along
the United States-Mexico border, the United States-Canada border, and
Florida and the Gulf Coast seaports, as follows:
(1) United states-mexico border.--For the United States-
Mexico border, the following:
(A) $6,000,000 for 8 Vehicle and Container Inspection
Systems (VACIS).
(B) $11,000,000 for 5 mobile truck x-rays with
transmission and backscatter imaging.
(C) $12,000,000 for the upgrade of 8 fixed-site truck
x-rays from the present energy level of 450,000
electron volts to 1,000,000 electron volts (1-MeV).
(D) $7,200,000 for 8 1-MeV pallet x-rays.
(E) $1,000,000 for 200 portable contraband detectors
(busters) to be distributed among ports where the
current allocations are inadequate.
(F) $600,000 for 50 contraband detection kits to be
distributed among all southwest border ports based on
traffic volume.
(G) $500,000 for 25 ultrasonic container inspection
units to be distributed among all ports receiving
liquid-filled cargo and to ports with a hazardous
material inspection facility.
(H) $2,450,000 for 7 automated targeting systems.
(I) $360,000 for 30 rapid tire deflator systems to be
distributed to those ports where port runners are a
threat.
(J) $480,000 for 20 portable Treasury Enforcement
Communications Systems (TECS) terminals to be moved
among ports as needed.
(K) $1,000,000 for 20 remote watch surveillance
camera systems at ports where there are suspicious
activities at loading docks, vehicle queues, secondary
inspection lanes, or areas where visual surveillance or
observation is obscured.
(L) $1,254,000 for 57 weigh-in-motion sensors to be
distributed among the ports with the greatest volume of
outbound traffic.
(M) $180,000 for 36 AM traffic information radio
stations, with 1 station to be located at each border
crossing.
(N) $1,040,000 for 260 inbound vehicle counters to be
installed at every inbound vehicle lane.
(O) $950,000 for 38 spotter camera systems to counter
the surveillance of customs inspection activities by
persons outside the boundaries of ports where such
surveillance activities are occurring.
(P) $390,000 for 60 inbound commercial truck
transponders to be distributed to all ports of entry.
(Q) $1,600,000 for 40 narcotics vapor and particle
detectors to be distributed to each border crossing.
(R) $400,000 for license plate reader automatic
targeting software to be installed at each port to
target inbound vehicles.
(S) $1,000,000 for a demonstration site for a high-
energy relocatable rail car inspection system with an
x-ray source switchable from 2,000,000 electron volts
(2-MeV) to 6,000,000 electron volts (6-MeV) at a shared
Department of Defense testing facility for a two-month
testing period.
(2) United states-canada border.--For the United States-
Canada border, the following:
(A) $3,000,000 for 4 Vehicle and Container Inspection
Systems (VACIS).
(B) $8,800,000 for 4 mobile truck x-rays with
transmission and backscatter imaging.
(C) $3,600,000 for 4 1-MeV pallet x-rays.
(D) $250,000 for 50 portable contraband detectors
(busters) to be distributed among ports where the
current allocations are inadequate.
(E) $300,000 for 25 contraband detection kits to be
distributed among ports based on traffic volume.
(F) $240,000 for 10 portable Treasury Enforcement
Communications Systems (TECS) terminals to be moved
among ports as needed.
(G) $400,000 for 10 narcotics vapor and particle
detectors to be distributed to each border crossing
based on traffic volume.
(3) Florida and gulf coast seaports.--For Florida and the
Gulf Coast seaports, the following:
(A) $4,500,000 for 6 Vehicle and Container Inspection
Systems (VACIS).
(B) $11,800,000 for 5 mobile truck x-rays with
transmission and backscatter imaging.
(C) $7,200,000 for 8 1-MeV pallet x-rays.
(D) $250,000 for 50 portable contraband detectors
(busters) to be distributed among ports where the
current allocations are inadequate.
(E) $300,000 for 25 contraband detection kits to be
distributed among ports based on traffic volume.
(b) Fiscal Year 2000.--Of the amounts made available for fiscal year
2000 under section 301(b)(1)(B) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(B)), as amended by
section 101(a) of this Act, $8,924,500 shall be for the maintenance and
support of the equipment and training of personnel to maintain and
support the equipment described in subsection (a).
(c) Acquisition of Technologically Superior Equipment; Transfer of
Funds.--
(1) In general.--The Commissioner of Customs may use amounts
made available for fiscal year 1999 under section 301(b)(1)(A)
of the Customs Procedural Reform and Simplification Act of 1978
(19 U.S.C. 2075(b)(1)(A)), as amended by section 101(a) of this
Act, for the acquisition of equipment other than the equipment
described in subsection (a) if such other equipment--
(A)(i) is technologically superior to the equipment
described in subsection (a); and
(ii) will achieve at least the same results at a cost
that is the same or less than the equipment described
in subsection (a); or
(B) can be obtained at a lower cost than the
equipment described in subsection (a).
(2) Transfer of funds.--Notwithstanding any other provision
of this section, the Commissioner of Customs may reallocate an
amount not to exceed 10 percent of--
(A) the amount specified in any of subparagraphs (A)
through (R) of subsection (a)(1) for equipment
specified in any other of such subparagraphs (A)
through (R);
(B) the amount specified in any of subparagraphs (A)
through (G) of subsection (a)(2) for equipment
specified in any other of such subparagraphs (A)
through (G); and
(C) the amount specified in any of subparagraphs (A)
through (E) of subsection (a)(3) for equipment
specified in any other of such subparagraphs (A)
through (E).
SEC. 103. PEAK HOURS AND INVESTIGATIVE RESOURCE ENHANCEMENT FOR THE
UNITED STATES-MEXICO AND UNITED STATES-CANADA
BORDERS.
Of the amounts made available for fiscal years 1999 and 2000 under
subparagraphs (A) and (B) of section 301(b)(1) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(b)(1)(A) and (B)), as amended by section 101(a) of this Act,
$117,644,584 for fiscal year 1999 and $184,110,928 for fiscal year 2000
shall be available for the following:
(1) A net increase of 535 inspectors, 120 special agents, and
10 intelligence analysts for the United States-Mexico border
and 375 inspectors for the United States-Canada border, in
order to open all primary lanes on such borders during peak
hours and enhance investigative resources.
(2) A net increase of 285 inspectors and canine enforcement
officers to be distributed at large cargo facilities as needed
to process and screen cargo (including rail cargo) and reduce
commercial waiting times on the United States-Mexico border.
(3) A net increase of 40 inspectors at sea ports in southeast
Florida to process and screen cargo.
(4) A net increase of 300 special agents, 30 intelligence
analysts, and additional resources to be distributed among
offices that have jurisdiction over major metropolitan drug or
narcotics distribution and transportation centers for
intensification of efforts against drug smuggling and money-
laundering organizations.
(5) A net increase of 50 positions and additional resources
to the Office of Internal Affairs to enhance investigative
resources for anticorruption efforts.
(6) The costs incurred as a result of the increase in
personnel hired pursuant to this section.
SEC. 104. COMPLIANCE WITH PERFORMANCE PLAN REQUIREMENTS.
As part of the annual performance plan for each of the fiscal years
1999 and 2000 covering each program activity set forth in the budget of
the United States Customs Service, as required under section 1115 of
title 31, United States Code, the Commissioner of the Customs Service
shall establish performance goals, performance indicators, and comply
with all other requirements contained in paragraphs (1) through (6) of
subsection (a) of such section with respect to each of the activities
to be carried out pursuant to sections 102 and 103 of this Act.
TITLE II--OVERTIME AND PREMIUM PAY OF OFFICERS OF THE UNITED STATES
CUSTOMS SERVICE; MISCELLANEOUS PROVISIONS
Subtitle A--Overtime Pay and Premium Pay of Officers of the United
States Customs Service
SEC. 201. CORRECTION RELATING TO FISCAL YEAR CAP.
Section 5(c)(1) of the Act of February 13, 1911 (19 U.S.C. 267(c)(1))
is amended to read as follows:
``(1) Fiscal year cap.--The aggregate of overtime pay under
subsection (a) (including commuting compensation under
subsection (a)(2)(B)) that a customs officer may be paid in any
fiscal year may not exceed $30,000, except that--
``(A) the Commissioner of Customs or his or her
designee may waive this limitation in individual cases
in order to prevent excessive costs or to meet
emergency requirements of the Customs Service; and
``(B) upon certification by the Commissioner of
Customs to the Chairmen of the Committee on Ways and
Means of the House of Representatives and the Committee
on Finance of the Senate that the Customs Service has
in operation a system that provides accurate and
reliable data on a daily basis on overtime and premium
pay that is being paid to customs officers, the
Commissioner is authorized to pay any customs officer
for one work assignment that would result in the
overtime pay of that officer exceeding the $30,000
limitation imposed by this paragraph, in addition to
any overtime pay that may be received pursuant to a
waiver under subparagraph (A).''.
SEC. 202. CORRECTION RELATING TO OVERTIME PAY.
Section 5(a)(1) of the Act of February 13, 1911 (19 U.S.C.
267(a)(1)), is amended by inserting after the first sentence the
following new sentence: ``Overtime pay provided under this subsection
shall not be paid to any customs officer unless such officer actually
performed work during the time corresponding to such overtime pay.''.
SEC. 203. CORRECTION RELATING TO PREMIUM PAY.
(a) In General.--Section 5(b)(4) of the Act of February 13, 1911 (19
U.S.C. 267(b)(4)), is amended by adding after the first sentence the
following new sentence: ``Premium pay provided under this subsection
shall not be paid to any customs officer unless such officer actually
performed work during the time corresponding to such premium pay.''.
(b) Corrections to Night Work Differential Provisions.--Section
5(b)(1) of such Act (19 U.S.C. 267(b)(1)) is amended to read as
follows:
``(1) Night work differential.--
``(A) 6 p.m. to midnight.--If any hours of regularly
scheduled work of a customs officer occur during the
hours of 6 p.m. and 12 a.m., the officer is entitled to
pay for such hours of work (except for work to which
paragraph (2) or (3) applies) at the officer's hourly
rate of basic pay plus premium pay amounting to 15
percent of that basic rate.
``(B) Midnight to 6 a.m.--If any hours of regularly
scheduled work of a customs officer occur during the
hours of 12 a.m. and 6 a.m., the officer is entitled to
pay for such hours of work (except for work to which
paragraph (2) or (3) applies) at the officer's hourly
rate of basic pay plus premium pay amounting to 20
percent of that basic rate.
``(C) Midnight to 8 a.m.--If the regularly scheduled
work assignment of a customs officer is 12 a.m. to 8:00
a.m., the officer is entitled to pay for work during
such period (except for work to which paragraph (2) or
(3) applies) at the officer's hourly rate of basic pay
plus premium pay amounting to 20 percent of that basic
rate.''.
SEC. 204. USE OF SAVINGS FROM PAYMENT OF OVERTIME AND PREMIUM PAY FOR
ADDITIONAL OVERTIME ENFORCEMENT ACTIVITIES OF THE
CUSTOMS SERVICE.
Section 5 of the Act of February 13, 1911 (19 U.S.C. 267), is
amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following:
``(e) Use of Savings From Payment of Overtime and Premium Pay for
Additional Overtime Enforcement Activities.--
``(1) Use of amounts.--For fiscal year 1999 and each
subsequent fiscal year, the Secretary of the Treasury--
``(A) shall determine under paragraph (2) the amount
of savings from the payment of overtime and premium pay
to customs officers; and
``(B) shall use an amount from the Customs User Fee
Account equal to such amount determined under paragraph
(2) for additional overtime enforcement activities of
the Customs Service.
``(2) Determination of savings amount.--For each fiscal year,
the Secretary shall calculate an amount equal to the difference
between--
``(A) the estimated cost for overtime and premium pay
that would have been incurred during that fiscal year
if this section, as in effect on the day before the
date of the enactment of sections 202 and 203 of the
Drug Free Borders Act of 1998, had governed such costs;
and
``(B) the actual cost for overtime and premium pay
that is incurred during that fiscal year under this
section, as amended by sections 202 and 203 of the Drug
Free Borders Act of 1998.''.
SEC. 205. EFFECTIVE DATE.
This subtitle, and the amendments made by this subtitle, shall apply
with respect to pay periods beginning on or after 15 days after the
date of the enactment of this Act.
Subtitle B--Miscellaneous Provisions
SEC. 211. ROTATION OF DUTY STATIONS AND TEMPORARY DUTY ASSIGNMENTS OF
OFFICERS OF THE UNITED STATES CUSTOMS SERVICE TO
PROMOTE INTEGRITY.
(a) In General.--Section 5 of the Act of February 13, 1911 (19 U.S.C.
267), as amended by this Act, is further amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following:
``(f) Rotation of Duty Stations and Temporary Duty Assignments of
Customs Officers.--
``(1) In general.--Notwithstanding any other provision of
law, bargaining agreement, or Executive order, in order to
ensure the integrity of the United States Customs Service, the
Secretary of the Treasury--
``(A) may transfer up to 5 percent of the customs
officers employed as of the beginning of each fiscal
year to new duty stations in that fiscal year on a
permanent basis; and
``(B) may transfer customs officers to temporary duty
assignments for not more than 90 days.
``(2) Voluntary and other transfers.--A transfer of a customs
officer to a new duty station or a temporary duty assignment
under paragraph (1) is in addition to any voluntary transfer or
transfer for other reasons.
``(3) Rule of construction.--The requirements of this
subsection, including any regulations established by the
Secretary to carry out this subsection, are not subject to
collective bargaining.
``(4) Availability of amounts.--Of the amounts made available
for fiscal year 2000 under section 301(b)(1)(B) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(b)(1)(B)), not more than $25,000,000 for such fiscal year
shall be available to carry out this subsection. Amounts made
available under the preceding sentence are authorized to remain
available until expended.''.
(b) Effective Date.--Section 5(f) of the Act of February 13, 1911, as
added by subsection (a), shall take effect on October 1, 1999.
SEC. 212. EFFECT OF COLLECTIVE BARGAINING AGREEMENTS ON ABILITY OF
UNITED STATES CUSTOMS SERVICE TO INTERDICT
CONTRABAND.
Section 5 of the Act of February 13, 1911 (19 U.S.C. 267), as amended
by this Act, is further amended--
(1) by redesignating subsection (g) as subsection (h); and
(2) by inserting after subsection (f) the following:
``(g) Effect of Collective Bargaining Agreements on Ability of
Customs Service To Interdict Contraband.--
``(1) Sense of the congress.--It is the sense of the Congress
that collective bargaining agreements should not have any
adverse impact on the ability of the United States Customs
Service to interdict contraband, including controlled
substances.
``(2) Provisions causing adverse impact to interdict
contraband.--
``(A) Requirement to meet.--If the Commissioner of
the Customs Service determines that any collective
bargaining agreement with the recognized bargaining
representative of its employees has an adverse impact
upon the interdiction of contraband, including
controlled substances, the parties shall meet to
eliminate the provision causing the adverse impact from
the agreement.
``(B) Failure to reach agreement.--If the parties do
not reach agreement within 90 days of the date that the
Commissioner of Customs made the determination of
adverse impact, the negotiations shall be considered at
impasse and the Commissioner of Customs may immediately
implement the last offer of the Customs Service. Such
implementation shall not result in an unfair labor
practice or, except as may be provided under the
following sentence, the imposition of any status quo
ante remedy against the Customs Service. Either party
may then pursue the impasse to the Federal Service
Impasses Panel pursuant to section 7119(c) of title 5,
United States Code, for ultimate resolution.
``(C) Rule of construction.--Nothing in this
paragraph shall be construed to limit the authority of
the Commissioner of Customs to implement immediately
any proposed changes without waiting 90 days, if
exigent circumstances warrant such immediate
implementation, or if an impasse is reached in less
than 90 days.''.
I. INTRODUCTION
A. Purpose and Summary
H.R. 3809 would better enable the U.S. Customs Service to
interdict drugs along the U.S. borders by increasing Custom's
authorization by 31% for drug enforcement over the President's
request for fiscal years 1999 and 2000 and give the Customs
Service the ability to rotate Customs officers to different
assignments, in emergency cases, to help fight the war on
drugs. H.R. 3809 would also revise Customs overtime and premium
pay to reflect the original Congressional intent where Customs
officers are paid only for overtime and premium time worked and
clarify that officers are only paid premium pay between the
hours of 6 p.m. and 6 a.m. and would devote any savings to fund
additional drug enforcement related overtime pay. It would also
relax the manner in which the fiscal-year $30,000 cap for
overtime pay is calculated by removing premium pay from the
cap. Finally, the bill would allow the Commissioner of Customs
to require Customs and its unions to bargain on any issue or
agreement which would have an adverse impact on the
interdiction of contraband. The parties would have 90 days to
resolve the problem. If no agreement is reached, the
Commissioner of Customs would then be able to implement
Customs' last offer, and either party could then pursue the
impasse to the Federal Service Impasses Panel.
B. Background and Need for Legislation
Drug use among teenagers is now skyrocketing. According to
official statistics, more children are using marijuana,
cocaine, and heroin. More children are dying as a result. This
legislation is designed to help keep drugs out of our nation's
children's hands by stopping drugs from coming across U.S.
borders. The various provisions of the bill are each aimed at
accomplishing this essential national goal.
H.R. 3809 would provide a two-year authorization of
appropriations for Customs. The statutory basis for the
authorizations of appropriations for Customs is section 301(b)
of the Customs Procedural Reform and Simplification Act of 1978
(19 U.S.C. 2075(b)). The most recent authorizations of
appropriations for Customs were included in the Customs and
Trade Act of 1990 [P.L. 101-382]. These authorizations expired
at the end of FY92. Legislation is necessary to authorize
subsequent appropriations to fund the operations of Customs for
FY 1999 and FY 2000.
The Committee on Ways and Means has adopted a two-year
authorization process to provide Customs with predictable
guidance as they plan their budgets as well as guidance from
the Committees for the appropriations process. In preparation
for consideration of the H.R. 3809, the Subcommittee on Trade
considered the President's budget for FY 1999 and requested
projected budget summaries for FY 2000. Customs was able to
provide the Subcommittee with unofficial projections for FY
2000, reflecting the funding levels which these agencies
anticipate submitting to OMB. However, in prior years, the
Committee has had considerable difficulty in obtaining a budget
summary for the second year.
The Act of February 13, 1911, as amended, known as the
``1911 Act,'' created the original overtime pay system for
Customs inspectors. The Act authorized Customs to compensate
officers at a rate of two days of basic hourly pay for Sundays,
and a rate of two days of basic hourly pay plus the basic
hourly rate for holidays. Minimum compensation for nighttime
pay--5 p.m to 8 a.m.--was 4 to 12 hours of pay.
Section 13811 of the Consolidated Omnibus Budget
Reconciliation Act (COBRA) of 1993, known as the Customs
Officer Pay Reform Amendments (COPRA), amended the 1911 Act
with regard to the overtime and premium pay system for Customs
inspectors and canine enforcement officers, effective January
1, 1994. Only inspectors and canine officers are covered by the
reforms, and only when performing inspections. Clerical and
support staff are no longer eligible for double time and are
covered--as are most other Federal employees--under the Federal
Employees Pay Act (FEPA), at 1\1/2\ regular pay. The FEPA
overtime rate is not to exceed $25.07 per hour, or 1\1/2\ times
the basic hourly rate of a GS-10, Step 1 employee.
The Consolidated Omnibus Budget Reconciliation Act (COBRA)
of 1993 also amended overtime compensation paid to Customs
officers as part of the basic pay for the Civil Service
Retirement System. Compensation may not exceed 50 percent of
the statutory maximum in overtime pay for Customs officers
(i.e., $15,000 or 50 percent of $30,000).
Because of a number of arbitration rulings, Customs has
been required to pay both overtime and night pay to Customs
officers for work not performed. Further, the changes Congress
made to the night pay system for Customs in 1993 has resulted
in an unforseen circumstance where Customs officers can receive
night pay for working at 12:00 noon. These situations have cost
Customs in excess of $6 million annually. The Treasury
Inspector General has called for a legislative change to
correct the night pay system.
Customs has also entered into agreements with its unions
which prevent it from making permanent changes of duty stations
for its Customs officers, affecting its ability to ensure
Customs officers' integrity. Customs has also given up its
right, through union agreements, to respond effectively to
significant problems at various locations by transferring
Customs officers on a temporary basis to locations needing
additional resources, especially for drug interdiction efforts.
Finally, there is a need to ensure that Customs is not
prevented from implementing needed interdiction activities
because of collective bargaining agreements with the union that
adversely affect the ability of Customs to fight the war on
drugs.
C. Legislative History
Legislative hearing
The Subcommittee on Trade of the Committee on Ways and
Means held public hearings on March 11, 1997, May 15, 1998 and
April 30, 1998 on Customs, including budget authorizations and
oversight issues.
On March 11, 1997, both the General Accounting Office (GAO)
and the National Treasury Employees Union (NTEU) provided
testimony before the Subcommittee on Trade. GAO's testimony,
given by Norman J. Rabkin, Director, Administration of Justice
Issues, General Government Division, focused on the labor-
management activities within the U.S. Customs Service. NTEU's
testimony, given by Robert M. Tobias, National President,
focused on improving benefits for Customs officers.
GAO testified that Executive Order 12871, issued October 1,
1993, required the head of each agency to create labor-
management councils at appropriate levels to help involve
employees and their union representatives as full partners with
management representatives to identify problems and craft
solutions to better serve the agency's customers and accomplish
its mission. The Order further required agencies to bargain
with unions on issues formerly bargained on only at the
agency's discretion. These issues include ``numbers, types and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the
technology, methods, and means of performing work.''
GAO further testified that some Customs management and
union officials believed that partnership between Customs and
the union was working well. Other managers believed that the
process took too long, that management had to bargain even on
small issues, and that managers remained accountable for
actions and results but that there was no union accountability.
Union officials also expressed concern that management did not
understand and was not fully trained on the concept of
partnership, that managers did not want to involve union
representatives in the decision making process, and that
managers continued to make unilateral decisions.
NTEU testified that it supported the funding needed to
support the rapidly increasing demands placed on the Customs
Service for illegal narcotics and drug interdiction, trade law
enforcement, revenue collection, and export enhancement.
NTEUfurther testified as to the need for improved retirement benefits
for Customs officers, an increase in the overtime earnings cap, and the
restoration of Sunday and night premium pay while Treasury Department
employees were on sick or annual leave.
On May 15, 1997, the Trade Subcommittee held an oversight
hearing on Customs issues. GAO again testified on Customs drug
interdiction efforts, labor-management relations, and overtime
issues. GAO identified problems with the night and premium pay
provisions of the Customs officers pay system and cited a study
by the Treasury Inspector General (IG) which identified
additional concerns regarding night and Sunday premium pay.
On April 30, 1998, the Trade Subcommittee held a budget
authorization and oversight hearing on the Customs Service.
Both the Treasury IG and NTEU provided testimony at the
hearing. The Treasury IG gave testimony expressing concern that
Customs officers could earn night pay at noon or for almost any
hour of the day or night depending on when a particular shift
began. The IG testified that when Congress changed night pay
for Customs officers in 1993, its intention was that savings
would occur. However, instead of producing any savings, night
pay provisions resulted in an increase from $51,000 per year in
fiscal year 1993 to $8.9 million a year in fiscal year 1995.
The IG testified, ``Clearly, this was not the expected result
when COPRA (Customs officer pay reform amendments) was passed
in 1993.''
NTEU President, Robert M. Tobias, testified that by working
with the union, Customs has been able to implement Operation
Brass Ring, a highly successful drug interdiction operation.
Mr. Tobias also testified that NTEU supported some of the
provisions of H.R. 2262 (now subtitle A of Title II of H.R.
3809). However, the NTEU believed that other parts of the bill
were counterproductive to an effective Customs Service. NTEU
was very firm in its opposition to the provisions establishing
no overtime pay for work not performed and no premium pay for
work not performed.
Subcommittee bill
On May 7, 1998, Mr. Crane introduced H.R. 3809, the ``Drug
Free Borders Act of 1998.'' The bill was referred to the
Committee on Ways and Means.
The Subcommittee on Trade of the Committee on Ways and
Means marked up the bill on May 12, 1998, and ordered it to be
favorably reported by a roll call vote of 12 ayes and 3 nays,
as amended.
On May 14, 1998, the Committee met to consider H.R. 3809,
as reported by the Subcommittee on Trade. At that time,
Chairman Crane offered an amendment in the nature of a
substitute to H.R. 3809. The amendment was agreed to by voice
vote. The Committee then ordered the bill favorably reported,
as amended, by a roll call vote of 29 ayes, 0 nays, and 1
present.
II. EXPLANATION OF THE BILL
A. Title I--Authorization of Appropriations for U.S. Customs Service
1. Sec. 101. Authorization of Appropriations
Present law.--The Customs Procedural Reform and
Simplification Act of 1978 [P.L. 95-110] provides for a two-
year authorization of appropriations for the U.S. Customs
Service. That law, as amended by section 8102 of the Omnibus
Budget Reconciliation Act of 1986 [P.L. 99-509], first outlined
separate amounts for commercial and noncommercial operations
for the salaries and expenses portion of the Customs
authorizations.
The most recent authorization of appropriations for Customs
(under section 101 of the Customs and Trade Act of 1990 [P.L.
101-382]) provided $1,247,884,000 for salaries and expenses and
$150,199,000 for operations and maintenance of the air
interdiction program in FY 1992.
Appropriations for Customs for FY 1998 were included in
P.L. 105-61 and totaled $1,522,165,000 for salaries and
expenses and $92,758,000 for operations and maintenance of the
air and marine interdiction programs.
On May 6, 1997, the House passed H.R. 1463, providing for
authorization of appropriations for the Customs Service for
noncommercial operations ($668,397,000 for FY 1998;
$684,018,000 for FY 1999), commercial operations ($901,441,000
for FY 1998; $930,447,000 for FY 1999), and air and marine
interdiction ($95,258,000 for FY 1998; $98,226,000 for FY
1999). The Senate has not acted on this legislation.
Separate minimum and maximum amounts for commercial and
noncommercial operations for the salaries and expenses portion
of Customs authorization, and maximum amounts for the air and
marine interdiction programs, are intended to provide guidance
to Customs in the allocation of resources.
Explanation of provision.--Section 101 of H.R. 3809 would
amend section 301(b)(1) of the Customs Procedural Reform and
Simplification Act of 1978 to authorize appropriations for
Customs, not to exceed $964,587,584 in FY 1999 and
$1,072,928,328 in FY 2000 for salaries and expenses incurred in
drug enforcement and other noncommercial operations, and not
less than $970,838,000 in FY 1999 and $999,963,000 for FY 2000
for salaries and expenses incurred in commercial operations.
For operation and maintenance of the air and marine
interdiction programs, H.R. 3809 would authorize appropriations
not to exceed $98,488,000 in FY 1999 and $101,443,000 in FY
2000.
Section 101 would also require out-year budget projections
such that, no later than the date on which the President
submits the budget to the Congress for a fiscal year, Customs
would be required to submit to the Committee on Ways and Means
of the House of Representatives and the Committee on Finance of
the Senate projected amounts of funds necessary for the
succeeding fiscal year. In addition, Customs would be required
to provide projections for minimum amounts requested to be
authorized for commercial operations under the salaries and
expenses account; maximum amounts to be authorized for drug
enforcement and other noncommercial operations under the
salaries and expenses account; and maximum amounts to be
appropriated for the operation of Customs air and marine
interdiction programs.
Reason for change.--The Committee recognizes the efforts of
the U.S. Customs Service in reorganizing and modernizing its
operations. The significant changes in culture and process
underway at Customs promise to improve the delivery of services
to the trade community and benefit American taxpayers in cost
savings. The Committee supports Customs'' reorganization and
modernization efforts and will continue to follow these plans
closely as they unfold.
In addition, the Committee is concerned about the need for
Customs to increase the overall level of Customs officers and
special agents dedicated to counter-narcotics and anti-money
laundering activities. The Committee is also concerned that
Customs has the necessary resources for drug and other
enforcement activities. The authorization of both fiscal year
1999 and 2000 is substantially larger than the President's
request, providing the Customs Service with the needed
resources to stop drugs from entering this country while at the
same time expediting the entry of legitimate of persons and
cargo.
2. Sec. 102. Narcotics Detection Equipment for the United States-Mexico
Border, United States-Canada Border, and Florida and the Gulf Coast
Seaports.
Present law.--No applicable section.
Explanation of provision.--Section 102 of H.R. 3809 would
require that $90,244,000 of the FY 1999 appropriations be
available until expended for acquisition and other expenses
associated with implementation and deployment of narcotics
detection equipment along the United States-Mexico border, the
United States-Canada border, andFlorida and the Gulf seaports.
The equipment would include vehicle and container inspection systems,
mobile truck x-rays, upgrades to fixed-site truck x-rays, pallet x-
rays, busters, contraband detection kits, ultrasonic container
inspection units, automated targeting systems, rapid tire deflator
systems, portable Treasury Enforcement Communications Systems
terminals, remote surveillance camera systems, weigh-in-motion sensors,
vehicle counters, spotter camera systems, inbound commercial truck
transponders, narcotics vapor and particle detectors, and license plate
reader automatic targeting software. It would also provide funding to
test a high-energy relocatable rail car inspection system.
The provision would further require that $8,924,500 of the
FY 2000 appropriations be used for the maintenance of equipment
described above. This section would also provide the
Commissioner of Customs with some flexibility in using these
funds and would allow for the acquisition of new updated
technology not anticipated when this bill was drafted.
Reason for change.--The Committee recognizes the needs of
the Customs Service to effectively interdict drugs entering
this country. Customs currently lacks sufficient equipment
along the Canada, Mexico and Gulf areas to effectively
interdict the drugs entering this country while at the same
time ensuring that trade flows in a timely manner. This section
provides the necessary equipment to improve the facilitation of
trade and passengers entering this country, while at the same
time increasing its narcotics interdiction efforts.
3. Sec. 103--Peak Hours and Investigative Resource Enhancement for the
United States-Mexico and United States-Canada Borders
Present law.--No applicable section.
Explanation of provision.--Section 103 of H.R. 3809 would
require that $117.6 million of funds authorized for FY 1999 and
$184.1 million for FY 2000 be made available for a net increase
of 1745 inspectors, canine enforcement officers, special
agents, intelligence analysts, and internal affairs agents to
increase inspectional and investigative resources and to
improve inspection times and effectiveness during peak crossing
hours.
Reason for change.--The Committee recognizes the need of
the Customs Service to quickly facilitate the entry of persons
and goods entering this country while at the same time
preventing contraband, including drugs, from entering the
United States. Customs currently lacks sufficient personnel
along the U.S.-Canada and U.S.-Mexico borders as well as sea
ports in southeast Florida and major narcotics distribution and
money laundering centers around the country. This section
provides the necessary personnel to improve the facilitation of
cargo and persons entering this country, while at the same time
increasing its narcotics interdiction efforts.
4. Sec. 104--Compliance with Performance Plan Requirements
Present law.--No applicable section.
Explanation of provision.--Section 104 of H.R. 3809 would
require Customs to specifically measure the effectiveness of
the resources dedicated in sections 102 and 103 as part to its
annual performance plan.
Reason for change.--The Committee recognizes the needs of
the Customs Service to assess and measure the effectiveness of
its limited resources. This provision ensures that Customs
evaluates how it used these additional resources to achieve the
goals of Congress.
B. Title II--Overtime and Premium Pay of Officers of the United States
Customs Service; Miscellaneous Provisions
1. Subtitle A--Overtime Pay and Premium Pay of Officers of the United
States Customs Service
a. Sec. 201--Fiscal year cap
Current law.--Section 5(c)(1) of the Act of February 13,
1911 (19 U.S.C. 267(c)(1)) states that the aggregate amount of
a Customs officer's overtime pay, including commuting
compensation and premium pay, is $30,000. 1 A
Customs officer who receives overtime or premium pay (holidays,
Sundays, or night work) for time worked is prohibited from
receiving compensation for that work under any other provision
of law. The Commissioner may grant waivers to prevent excessive
costs or to meet emergency requirements of the Customs Service.
---------------------------------------------------------------------------
\1\ The fiscal year cap was increased as of October 1, 1997, from
$25,000 to $30,000 by P.L. 105-61 (the FY 98 Treasury appropriations
act) over the objections of the Committee on Ways and Means because it
did not comprehensively address overtime and premium pay issues.
---------------------------------------------------------------------------
Section 5(a)(1) of the Act of February 13, 1911 (19 U.S.C.
267(a)(1)) outlines the general overtime pay system for Customs
officers. Basic overtime compensation for work not regularly
scheduled is provided as follows:
a. Work in excess of 8 hours per day or 40 hours per
week at twice the basic hourly rate of basic pay;
b. ``Callback'' pay at twice the basic hourly rate.
An officer will receive at least two hours of callback
pay for any call back of two hours of work or less, if
the work begins at least one hour after the end of any
previously scheduled work and ends at least one hour
before the beginning of regularly scheduled work.
c. Compensation for the commute, in addition to
callback time, at three times the basic hourly rate.
Compensation for the commute is not payable if the work
does not begin within 16 hours of the Customs officer's
last regularly scheduled work assignment, or if the
work begins within two hours of the officers's next
regularly scheduled work assignment.
Explanation of provision.--Section 201 of H.R. 3809 would
amend section 5(c)(1) of the Act of February 13, 1911 (19
U.S.C. 267(c)(1)) to remove premium pay from the calculation of
the $30,000 fiscal-year cap, thus increasing the amount of
overtime pay a Customs officer may receive, with no annual
limit on the amount of premium pay. The provision also would
allow the Commissioner the authority to waive the $30,000
fiscal-year cap to prevent excessive costs or to meet
emergencies, and to pay a Customs officer for one work
assignment that would result in the overtime pay of that
officer exceeding the $30,000 fiscal-year cap. This authority
would be granted only upon certification to the Chairmen of the
Committee on Ways and Means in the House and the Committee on
Finance of the Senate that Customs has in operation a system
that provides accurate and reliable data on a daily basis on
overtime and premium pay being paid to Customs officers.
Reason for change.--Administration of the fiscal-year cap
has posed a considerable challenge for Customs, which has been
generally scrupulous in its observance of the statute.
Eliminating premium pay from the calculation of the fiscal-year
cap will facilitate Customs administration as fewer Customs
officers will approach the level of the cap by working overtime
alone.
Should an officer reach the fiscal-year cap, the provision
would allow the Commissioner to pay that officer for one
additional work assignment that would result in the overtime
pay of the officer exceeding the cap. Thereafter, no additional
overtime would be assigned to that officer, except to meet
emergency requirements of the Customs Service. Under the
National Inspectional Assignment Policy (NIAP) contracts
negotiated with the National Treasury Employees Union (NTEU),
Customs has agreed to assign overtime to Customs officers based
on daily tracking of each officers overtime- and premium-pay
earnings. Section 201 therefore also requires that authority to
exceed thecap by one assignment will be granted to the
Commissioner only upon certification to the Chairmen of the Committee
on Ways and Means and the Committee on Finance of the Senate that
Customs has in operation a system that provides accurate and reliable
data on a daily basis on overtime and premium pay that is being paid to
each Customs officer. As such, the Committee urges Customs to complete
the development and implementation of a system such as the Customs
Overtime Scheduling System (COSS), an automated system intended to
provide accurate and reliable data on a daily basis on overtime and
premium pay that is being paid to each Customs officer. The current
manual administration of overtime costs is inefficient and wasteful,
costing more than $4.5 million in FY 1997, which corresponds to 125
inspectors working full time at an average GS-10, Step 1 level. An
accurate and reliable system would permit these expenses to be used to
perform more appropriate functions, including drug interdiction.
b. Sec. 202--Restriction on payment of overtime pay to hours actually
worked
Present law.--No applicable statutory provision. On October
30, 1997, an arbitration ruling required the Customs Service to
pay overtime to a Customs officer for work not performed if
that officer was not permitted to work that time due to an
administrative error. An earlier arbitration ruling required
Customs to pay overtime to a Customs officer for work not
performed if Customs had prevented that officer from working
right up to the fiscal year salary cap, a practice Customs has
in place to prevent an Anti-Deficiency Act violation.
Explanation of provision.--Section 202 of H.R. 3809 would
prevent Customs from paying overtime pay to Customs officers
for work not actually performed. However, as described above,
section 201 would allow the Commissioner the authority to pay a
Customs officer for one work assignment that would result in
the overtime pay of that officer exceeding the fiscal-year cap.
Reason for change.--The Committee is greatly concerned that
three arbitral decisions require Customs to pay overtime for
work not performed. Specifically, as a result of a decision by
a labor arbitrator in August 1982, Customs is required to pay
overtime plus interest for hours not actually worked to
officers denied overtime assignments because they have reached
the level set by the port directors. The amount paid by Customs
pursuant to the arbitral decision equals the difference between
the fiscal-year cap and the level which the officer had reached
at the time the port director stopped assigning additional
overtime to that officer. As a result of a decision by a labor
arbitrator in November 1993, Customs is required to pay for
overtime not actually worked to officers whose overtime is
inappropriately assigned to part-time employees. In yet another
decision by a labor arbitrator in October 1997, Customs is now
required to pay overtime to Customs officers for work not
performed when the officer was not assigned an overtime
assignment due to an inadvertent administrative error. The
current practice of paying overtime for work not performed
replaces the practice of providing the next comparable overtime
assignment to the officer who was inadvertently skipped over.
The provision would clarify Congressional intent with
regard to overtime for Customs officers by preventing Customs
from paying overtime to officers for hours not actually worked.
Specifically, this section would exclude payment to Customs
officers who do not perform work due to: (1) administrative
error that can be remedied by an alternative work assignment;
(2) Customs administration of the statutory overtime cap; and
(3) an employee on any leave status. This section would not
prevent overtime awards where there has been a violation of
Title V or Title VI, including EEOC. Specifically, settlements
made due to arbitrator rulings, including on such issues as EEO
or other discrimination violations are considered settlements
and are paid out of the Customs Salaries and Expenses account.
Customs inspectional overtime as defined by H.R. 3809 is only
paid for inspectional work (as defined by P.L. 103-66). Thus,
limitations preventing premium pay and overtime for work not
performed would not apply to violations of other provisions of
law because funding comes out of an unaffected account.
Customs would achieve savings by prohibiting these payments
which it has been required to make since the 1982 arbitral
decision. Between fiscal years 1994 and 1996, Customs paid in
excess of $350,000 pursuant to the requirements of the first
two arbitral decision cited above, and it is unclear yet what
the third arbitral decision will cost the taxpayers.
Accordingly, Customs would achieve considerable savings in
prohibiting these payments--savings which can pay for hours
actually worked.
c. Sec. 203--Premium pay
i. (a) Restriction on payment of premium pay to hours
actually worked
Current law.--An arbitration ruling required Customs to
grant premium pay to officers for regularly scheduled premium
pay hours even if the officer subsequently takes sick or annual
leave and does not actually work those hours. P.L. 105-61,
making appropriations for the Treasury Department, the United
States Postal Service, the Executive Office of the President,
and certain Independent Agencies for the fiscal year ending
September 30, 1998, restricts Customs for fiscal year 1998 from
paying Sunday premium pay to an employee if the employee has
not actually performed work on a Sunday.
Explanation of provision.--Section 203(a) of H.R. 3809
would make permanent the current appropriation restriction for
fiscal year 1998 and would also include night and holiday
premium pay by amending section 5(b)(4) of the Act of February
13, 1911 (19 U.S.C. 267(b)(4)) to prohibit Customs from paying
premium pay to an employee if the employee has not actually
performed work during the time corresponding to such premium
pay.
Reason for change.--The Committee is greatly concerned that
an arbitral decision requires Customs to pay premium pay for
hours not actually worked. Specifically, due to the decision by
a labor arbitrator in September 1996, Customs is required to
pay premium pay to officers for regularly-scheduled premium pay
hours even if the officer subsequently fails to work those
hours due to annual leave, sick leave, or National Guard duty
leave.
As with the restriction on payment of overtime pay outlined
in section 201, this provision would clarify Congressional
intent with regard to premium pay for Customs officers by
preventing Customs from paying premium pay to officers for
hours not actually worked. The provision would make permanent
the Congressional intent expressed in the current appropriation
restriction for fiscal year 1997 outlined in P.L. 104-208, the
bill making omnibus consolidated appropriations for the fiscal
year ending September 30, 1997.
The provision would clarify Congressional intent with
regard to the requirement that Customs officers actually
perform work during the time corresponding to overtime and
premium pay. The provision would clarify Congressional intent
with regard to premium pay for Customs officers by preventing
Customs from paying premium pay to officers for hours not
actually worked. Specifically, this section would exclude
payment to Customs officers who do not perform work due to: (1)
administrative error that can be remedied by an alternative
work assignment; (2) Customs administration of the statutory
overtime cap; and (3) an employee on any leave status, except
for an employee who is on leave pursuant to 5 U.S.C. 6322 or
6323. Further, this section would not prevent premium pay
awards where there has been a violation of Title V or Title VI,
including EEOC.
As with section 202, settlements made due to arbitral
rulings are paid out of the Customs Salaries and Expenses
account and are thus unaffected by this provision limiting
premium pay, which is paid out of the user fee account.
Between fiscal years 1994 and 1996, Customs paid in excess
of $2.9 million pursuant to the requirements of the arbitral
decision cited above. It is the view of the Committee that
these resources would be better utilized by Customs in other
areas.
ii. (b) Revision of night work differential provisions
Current law.--Section 5(b)(1) of the Act of February 13,
1911 (19 U.S.C. 267(b)(1))provides that, if an officer works
the majority of his or her hours between 3 p.m. and midnight,
compensation equals the basic hourly rate plus 15 percent of the basic
hourly rate for the entire eight hour shift. If an officer works the
majority of his or her hours between 11 p.m. and 8 a.m., compensation
equals the basic hourly rate plus 20 percent for the entire eight hour
shift. If the officer's regularly scheduled work assignment falls
between 7:30 p.m. and 3:30 a.m., compensation equals the basic hourly
rate plus 15 percent for the period from 7:30 p.m. to 11:30 p.m., and
the basic hourly rate plus 20 percent for the period from 11:30 p.m. to
3:30 a.m.
For example, if a Customs officer is scheduled to work a
shift that starts at 12:00 noon and ends at 8 p.m., five of the
eight hours of that shift, or the majority of hours, occur
during the 3 p.m. to 11 p.m. night premium pay hours. Thus, the
Customs officer is paid night pay (an additional 15 percent)
for all eight hours of the shift that starts at noon.
Explanation of provision.--Section 203(b) of H.R. 3809
would amend section 5(b)(1) of the Act of February 13, 1911 (19
U.S.C. 267(b)(1)) to provide that, if any hour of an officer's
regularly scheduled work hours occur between 6 p.m. and
midnight, compensation would equal the basic hourly rate plus
15 percent for those hours only. If any work hours occur
between midnight and 6 a.m., compensation would equal the basic
hourly rate plus 20 percent for those hours only. The remaining
hours would be compensated at regular pay. The bill also would
allow for a Customs officer regularly scheduled to work the
shift from 12:00 midnight to 8 a.m. to be paid at a premium
rate of 20 percent over his or her base salary for the entire
shift.
In the example given above, a Customs officer working noon
to 8 p.m. would earn night premium pay only between the hours
of 6 p.m. and 8 p.m.
Reason for change.--The COPRA greatly increased the number
of available hours in which a Customs Officer can earn premium
pay for night work. COPRA also increased the 10 percent night
differential compensation to 15 percent and 20 percent,
depending on the time of day that the assignment is worked.
Among Federal employees, only Customs officers are compensated
at a premium pay rate of 15 percent or 20 percent (depending on
the hours of the shift) of basic hourly pay for night work.
Furthermore, only Customs officers are compensated at the 15
percent premium pay rate during the entire period for a shift
running from noon to 8 p.m. In fact COPRA allows Customs to pay
night differential premium payments for 23 hours of the day (12
p.m. to 11 a.m.), rather than 12 hours of the day (6 p.m. to 6
a.m.) as was previously the case under FEPA. Premium pay for
night work by most other Federal employees is provided at a
rate of 10 percent for the hours from 6 p.m. to 6 a.m. and is
available only for those hours worked during that period, not
the entire shift.
The Congressional intent of the COPRA was to ensure that
Customs officers' schedules met customer demand. A recent
report by the Treasury Inspector General concluded that Customs
schedules do correspond to its workload and to its customers'
needs and that Customs did not change their schedules
specifically in order to earn night differential. ``Customs
Officer Pay Reform Amendments (COPRA),'' OIG-96-094 (September
13, 1996). Instead, the report concluded, the COPRA itself has
caused the increase in night differential spending. The report
suggested that
The Assistant Secretary (Enforcement) should direct
Customs to seek legislation that would lessen the
number of hours available for Customs officers to earn
night differential and reduce the night work
differentials to a 10 percent premium on base pay. The
change to the COPRA should create a night differential
payment package that would more accurately reimburse
Customs officers for hours actually worked at night, as
was done previously under FEPA (p. 9).
Testimony by the General Accounting Office (GAO) before the
Subcommittee on Trade supported the principle behind the
Treasury Inspector General's position by stating: ``Although we
believed that inspectors should be paid extra for working
overtime, we recommend that (1) the 1911 Act be amended so that
inspector overtime would be more directly linked to actual
hours worked, and (2) Customs management focus on achieving a
more efficient use of overtime.'' ``U.S. Customs Service:
Oversight Issues,'' GAO/T-GGD-97-107 (May 15, 1997).
However, the Committee believes that the Inspector
General's recommendation that the night differential premium be
reduced to 10 percent of basic hourly pay does not provide
sufficient compensation for these officers. Instead, the
Committee believes that the current 15 percent or 20 percent
premiums, depending on the actual hours worked, should be
continued but that they be limited to the hours actually worked
during the premium period. The Committee recognized the
additional hardship that the midnight to 8:00 a.m. shift places
on Customs officers and provided for that with a provision that
would grant premium pay of 20 percent for all 8 hours of that
shift.
In fiscal year 1997, Customs paid more than $2.5 million
pursuant to the requirement to pay night differential premiums
outside the FEPA hours of 6 p.m. to 6 a.m. It is the view of
the Committee that Customs officers should be afforded
treatment similar to that of other Federal employees with
regard to pay for hours actually worked, while recognizing the
original intent of COPRA that the unique nature of Customs
inspectional work may require higher premiums.
d. Sec. 204--Use of amounts for additional overtime enforcement
activities of the customs service resulting from savings from
payment of overtime and premium pay
Present law.--No applicable section.
Explanation of provision.--Section 204 of H.R. 3809 would
require the Secretary of the Treasury to calculate any savings
created as a result of sections 202 and 203 of this bill.
Customs would be required to use the savings to provide
additional overtime for enforcement purposes.
Reason for change.--The Committee wants to ensure that
savings from sections 202 and 203 from this bill are used for
additional overtime enforcement activities at the ports where
the savings occurred.
Sec. 205--Effective date
Present law.--No applicable section.
Explanation of provision.--Section 205 of H.R. 3809
provides that the effective date of subtitle A to be the first
pay period beginning on or after 15 days after the date of
enactment.
2. Subtitle B--Miscellaneous Provisions
a. Sec. 211--Rotation of duty stations and temporary duty assignments
of officers of the United States Customs Service for integrity
and drug interdiction purposes
Present law.--No applicable section. Currently, Customs
cannot rotate a Customs officer permanently or for temporary
duty unless the officer agrees to the change, as per the
current bargaining agreement.
Explanation of provision.--Section 211 of H.R. 3809 would
grant authority to the Secretary of the Treasury to transfer
permanently up to five percent of the number of Customs
officers employed at the beginning of each fiscal year. The
Secretary also may transfer Customs officers to temporary duty
assignments for not more than 90 days. This section would
become effective on October 1, 1999. Of the amount authorized
for the Customs Service in section 101, $25 million would be
earmarked in fiscal year 2000 to carry out this subsection and
would remain available until expended. The authoritywould not
be subject to collective bargaining.
Reason for change.--The Committee believes that the Customs
Service should be able to ensure the integrity of its workforce
and address critical problems in a timely manner. By granting
authority to rotate Customs officers the Committee is enhancing
the integrity of the Customs Service. Transferring Customs
officers to temporary duty assignments allows Customs the
ability to react to the changing drug smuggling threat.
The Committee believes that specifically granting the
Secretary of the Treasury the authority to permanently relocate
Customs officers for integrity purposes and to temporarily
assign Customs officers for drug interdiction purposes would
limit Customs from negotiating away that authority during
future union negotiations. However, the Committee believes that
the effective date of this provision should be on October 1,
1999 to allow for the current national contract between the
National Treasury Employees Union and the Customs Service to
expire. With this effective date, the Committee believes that
it cannot be argued that H.R. 3809 abrogates the national
contract with the NTEU. To achieve the purpose of this
subsection, the Committee would authorize $25 million in fiscal
year 2000 and remain available until expended.
b. Sec. 212--Effect of collective bargaining agreements on ability of
United States Customs Service to interdict contraband
Present law.--No applicable section. Currently, there is no
time limit to the collective bargaining process.
Explanation of provision.--Section 212 of H.R. 3809
expresses the sense of the Congress that collective bargaining
agreements should not have any adverse impact on the ability of
Customs to interdict contraband, including controlled
substances. The provision further provides that if the Customs
Commissioner determines that any collective bargaining
agreement has an adverse impact upon the interdiction of
contraband, the parties shall meet to eliminate the provision
causing the adverse impact from the agreement. If the parties
cannot reach agreement within 90 days, the Commissioner of
Customs may implement Customs' last offer. Either party may
then bring the impasse to the Federal Service Impasses Panel
for ultimate resolution. The Commissioner of Customs may
implement immediately any proposed changes without waiting 90
days if exigent circumstances warrant such immediate
implementation or if an impasse is reached in fewer than 90
days.
Reason for change.--The Committee strongly believes that
Congress should ensure that union agreements do not prevent or
interfere with the ability of the Customs Service to interdict
contraband. There are too many examples in which negotiations
between Customs and its union have been unreasonably extended
to the detriment of the interdiction of contraband, including
narcotics. For example, since early 1995 in El Paso, Texas,
Customs and the National Treasury Employees Union (NTEU) local
have been negotiating over work conditions at the three bridges
between Mexico and El Paso. One of the most significant
problems that has occurred involves the use of a very
successful drug interdiction approach called pre-primary roving
for Canine Enforcement Officers (CEO) and Inspectors. This
approach, used in almost every other location along the
Southwest border, involves sending a team of CEOs (with at
least one drug dog) and inspectors working traffic in front of
the primary entry booths to ``pre screen'' vehicles. The
vehicles continue moving towards the primary booths while the
screening takes place. Thus, traffic is not halted but instead
facilitated while Customs has a much improved opportunity to
detect drugs entering the United States. In locations such as
San Ysidro, California, more than 50 percent of all drug
seizures occur due to this technique.
However, in El Paso, the Committee understands that the
union has been unwilling to allow this technique. Instead, the
union insists that only ten vehicles per lane be allowed in
front of the primary booths with all other traffic stopped. The
cars in these lanes are then turned off while traffic behind
them waits. Finally, only when all traffic is stopped and the
ten cars per lane are shut off will the CEOs come out and run
their dogs on these vehicles. This practice insisted upon by
the union does not effectively add the element of surprise to
pre primary inspections and does not improve facilitation of
legitimate traffic.
The Committee is concerned about other instances of union
delays which affect the ability of Customs to interdict
contraband. For example, at the Miami, Florida international
airport, Customs management sought to ensure better use of
overtime for drug interdiction purposes and to align the work
force with the work load. A large number of international
flights arrive, primarily from South America, between the hours
of 4:00 a.m. and 6:00 a.m. during a period of time which
Customs does not currently have a regularly scheduled shift
established. These flights are currently handled exclusively by
Customs officers working overtime. To address the workload
issue and to free this overtime for even higher priority drug
interdiction work, Customs has been attempting to negotiate
with the union representatives in Miami to create a 4:00 a.m.
to 12:00 noon shift at Miami International Airport. However,
these negotiations have been ongoing for nearly four years
without success. A brief outline of negotiations is listed
below:
December 1994--Negotiations begin to address local
assignment policy issues as required by the National
Inspectional Assignment Policy (NIAP).
March 26, 1996--Discussion on shift issues.
August 5-8, 1996--Peer Facilitation Team composed of union
and management members of the NIAP negotiating team work with
local parties to attempt to resolve issues. Unable to achieve
progress.
February 10, 1997--Parties formed new negotiating teams.
June 18, 1997--Customs management believes impasse is again
reached.
September 16, 1997--Parties jointly request assistance of
Federal Mediation and Conciliation Service.
December 11-12, 1997--Mediator meets with parties, but no
progress made. Mediator recommends parties resume negotiations
without assistance six more times.
Jan.-Feb. 1998--Parties meet three more times. No progress
made. Additional meetings canceled by the union.
March 24, 1998--Management persuades mediator to return.
After meeting with both sides, mediator declares that there has
been no progress and said that there was nothing more that he
could do.
March 26, 1998--Management informed union that it would
implement last offer on April 20, 1998.
March 27, 1998--Union states intent to file a request for
assistance of the Federal Service Impasses Panel (FSIP).
April 2, 1998--Union filed with FSIP and indicated its
belief that the FSIP should decline jurisdiction because
parties are not at impasse.
May 4, 1998--In response to request by FSIP for Customs'
position regarding impasse, Customs responded that it believes
an impasse exists.
Almost four years later, the parties are still bargaining
over issues without implementation of the needed shift and as
of May 14, 1998, the FSIP has not yet accepted the case for
settlement. The Committee strongly believes that this situation
is untenable.
There are more examples at other Customs locations. The
Committee believes that these examples show how the union may
intentionally or unintentionally thwart drug interdiction
efforts through bargaining, or the unwillingness to bargain. It
further demonstrates the need for greater cooperation between
Customs management and employees in negotiating and
implementing collective bargaining agreements in order to
ensure the most effective drug interdiction efforts.
Effective date.--Upon date of enactment.
III. VOTE OF THE COMMITTEE
In compliance with clause 2(l)(2)(B) of rule XI of the
Rules of the House of Representatives, the following statements
are made concerning the vote of the Committee on Ways and Means
in its consideration of the bill H.R. 3809:
Motion To Report the Bill
The bill, H.R. 3809, as amended, was ordered favorably
reported by a rollcall vote of 29 yeas to 0 nays, and 1 voting
present (with a quorum being present). The vote was as follows:
----------------------------------------------------------------------------------------------------------------
Representatives Yea Nay Present Representatives Yea Nay Present
----------------------------------------------------------------------------------------------------------------
Mr. Archer..................... X ........ ......... Mr. Rangel....... X ........ .........
Mr. Crane...................... X ........ ......... Mr. Stark........ X ........ .........
Mr. Thomas..................... X ........ ......... Mr. Matsui....... ........ ........ .........
Mr. Shaw....................... X ........ ......... Mrs. Kennelly.... X ........ .........
Mrs. Johnson................... X ........ ......... Mr. Coyne........ ........ ........ .........
Mr. Bunning.................... ........ ........ ......... Mr Levin......... X ........ .........
Mr. Houghton................... X ........ ......... Mr. Cardin....... ........ ........ .........
Mr. Herger..................... X ........ ......... Mr. McDermott.... X ........ .........
Mr. McCrery.................... X ........ ......... Mr. Kleczka...... ........ ........ .........
Mr. Camp....................... X ........ ......... Mr. Lewis........ ........ ........ .........
Mr. Ramstad.................... X ........ ......... Mr. Neal......... ........ ........ .........
Mr. Nussle..................... X ........ ......... Mr. McNulty...... ........ ........ .........
Mr. Johnson.................... X ........ ......... Mr. Jefferson.... X ........ .........
Ms. Dunn....................... X ........ ......... Mr. Tanner....... X ........ .........
Mr. Collins.................... X ........ ......... Mr. Becerra...... ........ ........ X
Mr. Portman.................... ........ ........ ......... Mrs Thurman...... X ........ .........
Mr. English.................... X ........ .........
Mr. Ensign..................... X ........ .........
Mr. Christensen................ X ........ .........
Mr. Watkins.................... X ........ .........
Mr. Hayworth................... X ........ .........
Mr. Weller..................... X ........ .........
Mr. Hulshof.................... X ........ .........
----------------------------------------------------------------------------------------------------------------
XIV. BUDGET EFFECTS OF THE BILL
A. Committee Estimates of Budgetary Effect
In compliance with clause 7(a) of rule XIII of the Rules of
the House of Representatives, the following statement is made
concerning the effects on the budget of the bill H.R. 3809, as
reported: The Committee agrees with the cost estimate furnished
by the Congressional Budget Office set forth below.
B. Budget Authority and Tax Expenditures
In compliance with clause 2(l)(3)(B) of rule XI of the
Rules of the House of Representatives, the Committee states
that the bill would affect direct spending by less than
$500,000 per year, and contains no new tax expenditures, or
change in revenues.
C. Cost Estimate Prepared by the Congressional Budget Office
Pursuant to clause 2(l)(3)(C) of rule XI of the Rules of
the House of Representatives, requiring a cost estimate
prepared by the Congressional Budget Office (CBO), the
following report prepared by CBO is provided:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 18, 1998.
Hon. Bill Archer,
Chairman, Committee on Ways and Means,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3809, the Drug
Free Borders Act of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Enclosure.
H.R. 3809--Drug Free Borders Act of 1998
Summary: H.R. 3809 would authorize appropriations for 1999
and 2000 for the U.S. Customs Service, including funds for
salaries and expenses, acquisitions, and the air interdiction
program. In addition, the bill would make several changes to
the current laws relating to overtime and premium pay for
Customs officers.
Assuming appropriation of the authorized amounts, CBO
estimates that enacting H.R. 3809 would result in additional
discretionary spending of about $4.2 billion over the 1999-2003
period. H.R. 3809 could affect direct spending; therefore pay-
as-you-go procedures would apply. However, we estimate that any
increases in direct spending would be less than $500,000 per
year. The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act of 1995
(UMRA) and would have no impact on the budgets of state, local,
or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3809 is shown in the following table.
For the purposes of this estimate, CBO assumes that the amounts
authorized by the bill will be appropriated by the start of
each fiscal year and that outlays generally will follow the
historical spending rates for the authorized activities. We
expect that some funds will be spent more slowly than the
historical rates because the bill would provide substantial
increases in authorizations relative to 1998 funding levels.
The costs of this legislation fall within budget function 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal years, in millions of dollars--
-----------------------------------------------------
1998 1999 2000 2001 2002 2003
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending Under Current Law:
Budget Authority \1\.................................. 1,715 0 0 0 0 0
Estimated Outlays..................................... 1,712 190 0 0 0 0
Proposed Changes:
Authorization Level................................... 0 2,034 2,174 0 0 0
Estimated Outlays..................................... 0 1,673 2,171 364 0 0
Spending Under H.R. 3809:
Authorization Level \1\............................... 1,715 2,034 2,174 0 0 0
Estimated Outlays..................................... 1,712 1,863 2,171 364 0 0
----------------------------------------------------------------------------------------------------------------
\1\ The 1998 level is the amount appropriated for that year for the Customs Service's salaries and expenses and
air interdiction accounts.
The provisions of H.R. 3809 that modify overtime and
premium pay for Customs officers could affect direct spending
since such costs are paid out of a direct spending account
(that is, from funds not subject to annual appropriation). Some
of the bill's provisions could increase these personnel costs,
while other provisions probably would yield small savings. CBO
estimates that the net effect of H.R. 3809 on direct spending
would be less than $500,000 annually.
Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-
as-you-go procedures for legislation affecting direct spending
or receipts. Enacting H.R. 3809 could affect direct spending,
but CBO estimates that the net changes would be less than
$500,000 a year.
Intergovernmental and private-sector impact: H.R. 3809
contains no intergovernmental or private-sector mandates as
defined in UMRA and would have no impact on the budgets of
state, local, or tribal governments.
Estimate prepared by: Mark Grabowicz.
Estimate approved by: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE
A. Committee Oversight Findings and Recommendations
With respect to subdivision (A) of clause 2(l)(3) of rule
XI of the Rules of the House of Representatives (relating to
oversight findings), the Committee concludes that the actions
taken in this legislation are appropriate given its oversight
of the U.S. Customs Service.
B. Summary of Findings and Recommendations of the Committee on
Government Reform and Oversight
With respect to subdivision (D) of clause 2(l)(4) of rule
XI of the Rules of the House of Representatives (relating to
oversight findings), the Committee advises that no oversight
findings or recommendations have been submitted to this
Committee by the Committee on Government Reform and Oversight
with respect to the provisions contained in H.R. 3809.
C. Constitutional Authority Statement
With respect to clause 2(l)(4) of rule XI of the Rules of
the House of Representatives, relating to Constitutional
Authority, the Committee states that the Committee's action in
reporting the bill is derived from Article 1 of the
Constitution, Section 8 (``The Congress shall have power to lay
and collect taxes, duties, imposts and excises, to pay the
debts and to provide for * * * the general Welfare of the
United States * * *), and the 16th amendment to the
Constitution.
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
SECTION 301 OF THE CUSTOMS PROCEDURAL REFORM AND SIMPLIFICATION ACT OF
1978
Sec. 301. (a)(1) * * *
* * * * * * *
(3) By no later than the date on which the President submits
to the Congress the budget of the United States Government for
a fiscal year, the Commissioner of Customs shall submit to the
Committee on Ways and Means of the House of Representatives and
the Committee on Finance of the Senate the projected amount of
funds for the succeeding fiscal year that will be necessary for
the operations of the Customs Service as provided for in
subsection (b).
(b) Authorization of Appropriations.--
(1) For noncommercial operations.--There are
authorized to be appropriated for the salaries and
expenses of the Customs Service that are incurred in
noncommercial operations not to exceed the following:
[(A) $516,217,000 for fiscal year 1991.
[(B) $542,091,000 for fiscal year 1992.]
(A) $964,587,584 for fiscal year 1999.
(B) $1,072,928,328 for fiscal year 2000.
(2) For commercial operations.--(A) There are
authorized to be appropriated for the salaries and
expenses of the Customs Service that are incurred in
commercial operations not less than the following:
[(i) $672,021,000 for fiscal year 1991.
[(ii) $705,793,000 for fiscal year 1992.]
(i) $970,838,000 for fiscal year 1999.
(ii) $999,963,000 for fiscal year 2000.
* * * * * * *
(3) For air interdiction.--There are authorized to be
appropriated for the operation (including salaries and
expenses) and maintenance of the air interdiction
program of the Customs Service not to exceed the
following:
[(A) $143,047,000 for fiscal year 1991.
[(B) $150,199,000 for fiscal year 1992.]
(A) $98,488,000 for fiscal year 1999.
(B) $101,443,000 for fiscal year 2000.
----------
THE ACT OF FEBRUARY 13, 1911
An ACT To diminish the expense of proceedings on appeal and writ of
error or of certiorari.
* * * * * * *
SEC. 5. OVERTIME AND PREMIUM PAY FOR CUSTOMS OFFICERS.
(a) Overtime Pay.--
(1) In general.--Subject to paragraph (2) and
subsection (c), a customs officer who is officially
assigned to perform work in excess of 40 hours in the
administrative workweek of the officer or in excess of
8 hours in a day shall be compensated for that work at
an hourly rate of pay that is equal to 2 times the
hourly rate of the basic pay of the officer. Overtime
pay provided under this subsection shall not be paid to
any customs officer unless such officer actually
performed work during the time corresponding to such
overtime pay. For purposes of this paragraph, the
hourly rate of basic pay for a customs officer does not
include any premium pay provided for under subsection
(b).
* * * * * * *
(b) Premium Pay for Customs Officers.--
[(1) Night work differential.--
[(A) 3 p.m. to midnight shiftwork.--If the
majority of the hours of regularly scheduled
work of a customs officer occurs during the
period beginning at 3 p.m. and ending at 12
a.m., the officer is entitled to pay for work
during such period (except for work to which
paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay
amounting to 15 percent of that basic rate.
[(B) 11 p.m. to 8 a.m. shiftwork.--If the
majority of the hours of regularly scheduled
work of a customs officer occurs during the
period beginning at 11 p.m. and ending at 8
a.m., the officer is entitled to pay for work
during such period (except for work to which
paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay
amounting to 20 percent of that basic rate.
[(C) 7:30 p.m. to 3:30 a.m. shiftwork.--If
the regularly scheduled work assignment of a
customs officer is 7:30 p.m. to 3:30 a.m., the
officer is entitled to pay for work during such
period (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 15
percent of that basic rate for the period from
7:30 p.m. to 11:30 p.m. and at the officer's
hourly rate of basic pay plus premium pay
amounting to 20 percent of that basic rate for
the period from 11:30 p.m. to 3:30 a.m.]
(1) Night work differential.--
(A) 6 p.m. to midnight.--If any hours of
regularly scheduled work of a customs officer
occur during the hours of 6 p.m. and 12 a.m.,
the officer is entitled to pay for such hours
of work (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 15
percent of that basic rate.
(B) Midnight to 6 a.m.--If any hours of
regularly scheduled work of a customs officer
occur during the hours of 12 a.m. and 6 a.m.,
the officer is entitled to pay for such hours
of work (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 20
percent of that basic rate.
(C) Midnight to 8 a.m.--If the regularly
scheduled work assignment of a customs officer
is 12 a.m. to 8:00 a.m., the officer is
entitled to pay for work during such period
(except for work to which paragraph (2) or (3)
applies) at the officer's hourly rate of basic
pay plus premium pay amounting to 20 percent of
that basic rate.
* * * * * * *
(4) Treatment of premium pay.--Premium pay provided
for under this subsection may not be treated as being
overtime pay or compensation for any purpose. Premium
pay provided under this subsection shall not be paid to
any customs officer unless such officer actually
performed work during the time corresponding to such
premium pay.
(c) Limitations.--
[(1) Fiscal year cap.--The aggregate of overtime pay
under subsection (a) (including commuting compensation
under subsection (a)(2)(B)) and premium pay under
subsection (b) that a customs officer may be paid in
any fiscal year may not exceed $25,000; except that the
Commissioner of Customs or his designee may waive this
limitation in individual cases in order to prevent
excessive costs or to meet emergency requirements of
the Customs Service.]
(1) Fiscal year cap.--The aggregate of overtime pay
under subsection (a) (including commuting compensation
under subsection (a)(2)(B)) that a customs officer may
be paid in any fiscal year may not exceed $30,000,
except that--
(A) the Commissioner of Customs or his or her
designee may waive this limitation in
individual cases in order to prevent excessive
costs or to meet emergency requirements of the
Customs Service; and
(B) upon certification by the Commissioner of
Customs to the Chairmen of the Committee on
Ways and Means of the House of Representatives
and the Committee on Finance of the Senate that
the Customs Service has in operation a system
that provides accurate and reliable data on a
daily basis on overtime and premium pay that is
being paid to customs officers, the
Commissioner is authorized to pay any customs
officer for one work assignment that would
result in the overtime pay of that officer
exceeding the $30,000 limitation imposed by
this paragraph, in addition to any overtime pay
that may be received pursuant to a waiver under
subparagraph (A).
* * * * * * *
(e) Use of Savings From Payment of Overtime and Premium Pay
for Additional Overtime Enforcement Activities.--
(1) Use of amounts.--For fiscal year 1999 and each
subsequent fiscal year, the Secretary of the Treasury--
(A) shall determine under paragraph (2) the
amount of savings from the payment of overtime
and premium pay to customs officers; and
(B) shall use an amount from the Customs User
Fee Account equal to such amount determined
under paragraph (2) for additional overtime
enforcement activities of the Customs Service.
(2) Determination of savings amount.--For each fiscal
year, the Secretary shall calculate an amount equal to
the difference between--
(A) the estimated cost for overtime and
premium pay that would have been incurred
during that fiscal year if this section, as in
effect on the day before the date of the
enactment of sections 202 and 203 of the Drug
Free Borders Act of 1998, had governed such
costs; and
(B) the actual cost for overtime and premium
pay that is incurred during that fiscal year
under this section, as amended by sections 202
and 203 of the Drug Free Borders Act of 1998.
(f) Rotation of Duty Stations and Temporary Duty Assignments
of Customs Officers.--
(1) In general.--Notwithstanding any other provision
of law, bargaining agreement, or Executive order, in
order to ensure the integrity of the United States
Customs Service, the Secretary of the Treasury--
(A) may transfer up to 5 percent of the
customs officers employed as of the beginning
of each fiscal year to new duty stations in
that fiscal year on a permanent basis; and
(B) may transfer customs officers to
temporary duty assignments for not more than 90
days.
(2) Voluntary and other transfers.--A transfer of a
customs officer to a new duty station or a temporary
duty assignment under paragraph (1) is in addition to
any voluntary transfer or transfer for other reasons.
(3) Rule of construction.--The requirements of this
subsection, including any regulations established by
the Secretary to carry out this subsection, are not
subject to collective bargaining.
(4) Availability of amounts.--Of the amounts made
available for fiscal year 2000 under section
301(b)(1)(B) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(B)),
not more than $25,000,000 for such fiscal year shall be
available to carry out this subsection. Amounts made
available under the preceding sentence are authorized
to remain available until expended.
(g) Effect of Collective Bargaining Agreements on Ability of
Customs Service To Interdict Contraband.--
(1) Sense of the congress.--It is the sense of the
Congress that collective bargaining agreements should
not have any adverse impact on the ability of the
United States Customs Service to interdict contraband,
including controlled substances.
(2) Provisions causing adverse impact to interdict
contraband.--
(A) Requirement to meet.--If the Commissioner
of the Customs Service determines that any
collective bargaining agreement with the
recognized bargaining representative of its
employees has an adverse impact upon the
interdiction of contraband, including
controlled substances, the parties shall meet
to eliminate the provision causing the adverse
impact from the agreement.
(B) Failure to reach agreement.--If the
parties do not reach agreement within 90 days
of the date that the Commissioner of Customs
made the determination of adverse impact, the
negotiations shall be considered at impasse and
the Commissioner of Customs may immediately
implement the last offer of the Customs
Service. Such implementation shall not result
in an unfair labor practice or, except as may
be provided under the following sentence, the
imposition of any status quo ante remedy
against the Customs Service. Either party may
then pursue the impasse to the Federal Service
Impasses Panel pursuant to section 7119(c) of
title 5, United States Code, for ultimate
resolution.
(C) Rule of construction.--Nothing in this
paragraph shall be construed to limit the
authority of the Commissioner of Customs to
implement immediately any proposed changes
without waiting 90 days, if exigent
circumstances warrant such immediate
implementation, or if an impasse is reached in
less than 90 days.
[(e)] (h) Definitions.--As used in this section:
(1) * * *
* * * * * * *
VII. ADDITIONAL VIEWS
We strongly support the authorizations of appropriations in
Title I of H.R. 3608 to provide additional resources needed by
the U.S. Customs Service to combat illegal drug traffic across
our borders. The interdiction efforts of the Customs Service
and the Immigration and Naturalization Service represent an
integral component of the National Drug Control Strategy issued
by the Clinton Administration in February. Additional
equipment, the latest technology, and increased numbers of
inspectors and other personnel are essential for more effective
anti-drug enforcement, as well as to facilitate entry of
legitimate cargo. The war against drugs is not a partisan
issue. Rather, it is a national priority with strong bipartisan
support.
We also support provisions in Title II to prevent ``pay for
no work.'' Our concerns focus on the proposed changes in labor-
management relations of the Customs Service and the potential
impact of these changes on the war against drugs.
We are concerned about two provisions in H.R. 3809 which
would authorize the Customs Service to negate the effects of
collective bargaining agreements entered into by Customs
management and Customs employees, as relates to the transfer
and temporary assignment of Customs inspectors and to the
interdiction of contraband.
Specifically, sections 211 and 212 of the bill authorize
the Customs Service to negate the status and importance of the
collective bargaining process with its employees. These two
sections would allow Customs managers to abrogate unilaterally
certain collective bargaining and partnership agreements which
were developed, as recently as a year and a half ago, to
coordinate joint efforts by Customs managers and employees to
interdict drugs effectively.
Section 211 authorizes the Customs Service to reassign
Customs employees without regard to any existing law, or
collective bargaining agreement. While this reassignment may be
attractive to those who do not like unions, it is important to
remember that the provision may well have a serious negative
effect and demoralize the very workforce we are asking to fight
our war on drugs.
Section 212 authorizes the Customs Service to determine
whether a collective bargaining agreement has ``an adverse
impact on the interdiction of contraband'' and, if so, to
implement a management action and talk to the union later.
These provisions are clearly an attempt by some to attack
our Federal employees, in this case Customs union members,
under the guise of supporting drug interdiction. The two
provisions about which we are concerned are just plain ``anti-
union'' text with a ``drug interdiction'' cover.
It would seem that Customs management has an upfront
obligation to negotiate an agreement with its employees in good
faith. Even so, it is clear that these two provisions will set
the unacceptable precedent of making Federal employee
bargaining contracts essentially a useless exercise.
Abrogation of a contract is a serious matter under the rule
of law. This bill provides the power to abrogate contracts--
alone a dangerous precedent--without any standards to determine
when that power can be exercised.
We do not agree with insulting Customs employees by telling
them that the Congress wants Customs management to ignore the
agreements they have reached with their employees. These
provisions do not make sense when the Congress, in another
breath, is telling Customs inspectors to put their lives on the
line and do whatever it takes to stop drugs.
Maybe Customs management needs to better identify its
priorities and negotiate accordingly. The solution is not to
give Customs the power to negotiate with its employees and then
allow management to say ``we changed our mind.'' Customs
collective bargaining agreements are unique in the Federal
Government in that the agreements are ``open'' to changes at
any time, at the request of either party. We are not confident
that Customs has utilized all the authorities it has under
current law, or under the terms of the bargaining agreement, to
address whatever management problems may exist.
It is important to remember that legislation in 1993 to
reform the pay structure and responsibilities of the Customs
inspectors was approved by this Committee on a bipartisan basis
and was supported by both Customs management and the employees'
union. This is not the case with H.R. 3809. Sections 211 and
212 have not been agreed to by the Committee on a bipartisan
basis, and the provisions have not been agreed to by Customs
management and employees. Nor did the Committee hold hearings
on these particular provisions and the issues they raise. And,
it is not clear what the Administration's views are on these
provisions.
We have applauded the Customs Service for having one of the
most effective, if not be the best, partnership arrangements in
Government. We are concerned that sections 211 and 212 imply
that the commitment by Customs employees to drug interdiction
is less than sincere. This is not the message we wish to send
to those putting their lives on the line each day at our
borders, in our airports, and on our docks.
These provisions were put together and considered hastily.
Consequently, their potential effect on the workforce is
unknown. The last thing any of us want to do is promote
legislation which would undercut the morale, commitment, and
enforcement efforts of the Customs inspectors from whom we
expect so much.
Robert T. Matsui.
Karen L. Thurman.
Wm. J. Jefferson.
Barbara B. Kennelly.
Charles B. Rangel.
William J. Coyne.
Jim McDermott.
Jerry Kleczka.
Xavier Becerra.
John Lewis.
Pete Stark.
Benjamin J. Cardin.
Michael R. McNulty.
Richard E. Neal.
Sander Levin.