[Federal Register Volume 69, Number 121 (Thursday, June 24, 2004)]
[Rules and Regulations]
[Pages 35229-35235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14415]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 103

19 CFR Part 24

[CBP Dec. 04-19]
RIN 1651-AA59


Overtime Compensation and Premium Pay for Customs Officers

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: This rule amends the definition of ``customs officer'' for the 
purpose of eligibility for overtime compensation and premium pay. In 
addition, a conforming change is made to the definition of 
``immigration officer.'' These revisions are necessary to reflect 
recent changes in the functions and organizational structure of U.S. 
Customs and Border Protection consistent with the Homeland Security Act 
of 2002.

DATES: Effective Date: July 24, 2004.

FOR FURTHER INFORMATION CONTACT: Richard Balaban, Financial Analyst, 
Office of Field Operations, (202) 927-0031.

SUPPLEMENTARY INFORMATION:

Background

    Section 24.16 of the Customs Regulations (19 CFR 24.16) sets forth 
the procedure that U.S. Customs and Border Protection (CBP) must follow 
to furnish overtime and premium pay to customs officers, as required by 
the Customs Officer Pay Reform Act, 19 U.S.C. 267 (``COPRA''). The 
statutory language at 19 U.S.C. 267(e)(1) provides that overtime 
compensation and premium pay may be paid to an individual performing 
those functions specified by regulation by the Secretary of the 
Treasury for a customs inspector or canine enforcement officer. Since 
the enactment of the Homeland Security Act of 2002 (Pub. L. 107-296, 
116 Stat. 2135, 6 U.S.C. 101 et seq.), these regulations are now 
promulgated by the Secretary of Homeland Security.
    The enabling regulation, specifically 19 CFR 24.16(b)(7), Customs 
Regulations, currently defines those eligible for COPRA coverage by 
specifying only four position

[[Page 35230]]

descriptions: ``Customs Inspector,'' ``Supervisory Customs Inspector,'' 
``Canine Enforcement Officer,'' and ``Supervisory Canine Enforcement 
Officer.'' This definition does not encompass the expanded border 
security and inspection functions brought into CBP by the government 
reorganization consistent with the Homeland Security Act of 2002. (See 
Homeland Security Act and the President's Reorganization Plan of 
November 25, 2002, as amended by the President's January 30, 2003 
modification.)
    When CBP was established on March 1, 2003, it brought together some 
18,000 inspection personnel from different agencies and disciplines at 
the nation's ports of entry, with the priority mission of preventing 
terrorists and terrorist weapons from entering the United States. At 
present, three different overtime and premium pay systems are required 
to administer overtime compensation and premium pay for inspection 
personnel.

Proposal

    On April 7, 2004, CBP published a document in the Federal Register 
(69 FR 18296) proposing to amend the definition of ``customs officer'' 
for the purpose of eligibility for overtime compensation and premium 
pay. If this proposed regulatory change to the definition of ``customs 
officer'' in 19 CFR and a conforming change to the definition of 
``immigration officer'' in 8 CFR is adopted, the Department of Homeland 
Security (DHS) would make COPRA (the current overtime and premium pay 
system for customs officers) the overtime and premium pay system for 
the other inspectors working in CBP, in effect creating a single 
overtime and premium pay system instead of the three different systems 
that are now in place. This change would eliminate the inequities and 
disparities in pay and scheduling under the three different systems.
    A new position, Customs and Border Protection Officer (CBP 
Officer), was recently established to merge the expanded border and 
inspection functions formerly performed within three separate agencies: 
The former Immigration and Naturalization Service of the Department of 
Justice, the former United States Customs Service of the Department of 
the Treasury, and the Animal and Plant Health Inspection Service of the 
Department of Agriculture. The CBP Officer is the principal front line 
officer carrying out the priority mission and the traditional customs, 
immigration and some agriculture inspection functions which are now the 
responsibility of CBP. The establishment of the new position enables 
the agency to perform its mission more efficiently and to provide 
better protection and service to the public at the ports of entry. In 
addition, CBP established the CBP Agriculture Specialist position with 
responsibilities for agriculture inspection of passengers and cargo as 
well as analysis of agriculture imports. In order to assure that these 
officers meet their responsibilities to the public, they are required 
to be available for overtime as a condition of employment.
    To enable CBP to furnish overtime compensation and premium pay for 
these new positions, it proposed to include ``Customs and Border 
Protection Officer'' and related positions within the definition of 
``customs officer'' in 19 CFR 24.16(b)(7). It is noted that the 
continued usage of the term ``customs officer'' does not reflect any 
reorganization within DHS. Rather, it occurs because it reflects the 
pertinent statutory authority, 19 U.S.C. 267, regarding overtime 
compensation and premium pay. Including the ``Customs and Border 
Protection Officer'' within the definition of ``customs officer'' in 19 
CFR 24.16(b)(7) does not affect the authority of a ``Customs and Border 
Protection Officer'' to engage in customs, immigration, and agriculture 
inspection functions. Instead, it is a key step to implementing the 
``one face at the border'' initiative by harmonizing the pay systems 
for the personnel who perform those functions.
    Furthermore, CBP proposed to include a technical change in 8 CFR 
103.1 to authorize a customs officer, as defined in 19 CFR 24.16(b)(7), 
to perform immigration inspection functions, without a separate 
designation. Currently, customs officers perform such immigration 
functions pursuant to a designation as an immigration officer.
    Finally, it is important to note that CBP's proposed rule was 
tangentially related but separate and distinct from the proposed rule 
published on February 20, 2004 in the Federal Register by DHS and the 
Office of Personnel Management regarding the establishment of a new 
human capital system for DHS. The two proposed rules addressed 
different human resources issues. The proposed rule regarding COPRA 
expands the eligibility of certain employees to receive overtime 
compensation and premium pay under 19 U.S.C. 267; however, it has no 
impact on setting any employee's basic rate of pay. The human capital 
rule, on the other hand, proposes to create a new system for setting 
basic pay within DHS.

Discussion of Comments

    CBP solicited written comments on its proposal regarding overtime 
compensation and premium pay. It received a total of 8 comments in 
response to the April 7, 2004 notice of proposed rulemaking. What 
follows is a review of and CBP's response to the issues and questions 
that were presented by the comments concerning the proposed 
regulations.
    Five of eight respondents were specifically in favor of the 
consolidation and offered suggestions and clarifications on the 
proposal. The remaining three comments, though not negative, offered 
suggestions for further improvements to the implementation of this 
change. None of the commenters were opposed to the conversion into 
COPRA; however, they raised questions regarding the implementation of 
the conversion. To facilitate the conversion, CBP plans to post further 
guidance on its internet page (http://www.cbp.gov) upon publication of 
this final rule.
    Comment: Several commenters suggested that Agriculture Technicians 
should also be covered by COPRA based on the nature of the work that 
they perform.
    CBP Response: The ``one face at the border'' concept addressed the 
work and pay of the legacy Customs Inspector, the Immigration Inspector 
and the Agriculture Inspector occupations. Similar to the inspectional 
occupations, there are three legacy technician occupations. A review of 
the work performed by these employees is planned. After the review is 
complete, a determination will be made as to whether overtime changes 
are necessary. In the interim, Agriculture Technicians will continue to 
receive overtime compensation as they have in the past.
    Comment: Some CBP Agriculture Specialists (formerly Agriculture 
Inspectors) commented that, while they were generally in favor of being 
included under COPRA, they did not appreciate that commuting time would 
be limited to one hour (paid at three times the hourly rate). They felt 
that, due to the specialized nature of their work, they would be 
required to incur longer commutes than CBP Officers.
    CBP Response: The rules for commuting time compensation under COPRA 
are set forth in 19 CFR 24.16(e)(3). COPRA provides an employee three 
hours of base pay for an overtime assignment involving a commute 
regardless of the length of time needed for the commute. CBP believes 
that this provision is fair and administratively efficient. 
Furthermore,

[[Page 35231]]

the majority of commuting instances for CBP Officers and CBP 
Agriculture Specialists fall within the three-hour timeframe.
    Comment: A commenter inquired as to the effective date for the 
COPRA conversion.
    CBP Response: The effective date of the regulation will be 30 days 
after publication of this final rule in the Federal Register. Employees 
will be covered thereafter at the earliest date practicable dependent 
on administrative contingencies. In the interest of fairness and 
equity, the change will be implemented for all CBP Officers and CBP 
Agriculture Specialists at the same time. This implementation is an 
important step for the agency to move forward in unifying the 
workforce.
    Comment: One commenter was concerned that the COPRA overtime cap 
would be applied, in mid-year, to the affected employees. Further, 
concern was expressed about the $25,000 limit on overtime earnings 
under COPRA which is lower than the $30,000 cap that currently applies 
to CBP employees.
    CBP Response: For those converting to COPRA during the current 
fiscal year, the COPRA overtime cap will only be applicable for the 
remainder of the fiscal year. Overtime earned by CBP Agriculture 
Specialists and Immigration Inspectors prior to conversion to COPRA is 
limited to the CBP $30,000 cap. The $25,000 cap under COPRA is an 
annual cap but it will only apply to earnings during the period between 
conversion to COPRA and the end of the fiscal year (approximately three 
months). Therefore, it is not expected that individual overtime 
earnings will be impacted.
    The $25,000 limit on overtime and premiums under COPRA is 
established by statute. In prior years, specific appropriations 
language increased this limit to $30,000. Action is underway to 
reestablish the COPRA limit at $30,000.
    Comment: Two commenters asked about the effect of the annuity 
provisions of COPRA and whether these provisions could be applied 
retroactively to past overtime earnings under a different pay system.
    CBP Response: As originally noted in the Notice of Proposed 
Rulemaking, COPRA provides up to one half of the statutory cap in 
calculating retirement pay. However, this provision is applicable only 
to COPRA earnings. Earnings under other overtime systems would be 
creditable toward an annuity only if those systems also included such a 
provision. Consequently, employees moving to COPRA will be unable to 
``grandfather'' in previous overtime earnings toward retirement if 
their former system did not provide for such credit.
    Comment: Two comments expressed concern about Senior Immigration 
Inspectors (SRI) receiving only COPRA pay in lieu of Administratively 
Uncontrollable Overtime (AUO). One of these comments spoke specifically 
to the perceived similarities between the Border Patrol Agent and SRI 
positions, both of whom currently earn AUO.
    CBP Response: After a review of the requirements of the SRI 
position, it was determined that the nature of the work falls within 
the duties defined for the CBP Officer occupation. (It should be noted 
that although Border Patrol Agents and SRIs currently receive AUO, the 
two occupations have different functions and operate in different 
environments. SRIs work at ports of entry and handle inspections as 
well as specialized enforcement functions. Border Patrol Agents operate 
between the ports and focus on interdicting, tracking, deterring, and 
apprehending illegal immigrants.) The work performed by SRIs will 
continue in CBP Officers whose position description includes 
specialized law enforcement responsibilities as well as inspection 
duties. Just as the CBP Officer occupation will also include officers 
who specialize in training (CBP Officer, Training), or handling canines 
(CBP Officer, K-9), the specialized functions currently performed by 
the SRIs will be performed by a CBP Officer with the requisite 
specialized skills. Due to the exclusive nature of COPRA (employees 
covered by COPRA are not eligible for other forms of overtime) and the 
amount of inspectional work required within the duties of this 
position, all work beyond the normal work day will be paid through the 
provisions of COPRA. It should be noted that of the entire inspectional 
workforce in CBP (over 18,000), approximately 250 are SRIs. Only about 
half of these SRIs earn AUO, with the others earning other forms of 
inspectional overtime.

Adoption of Proposal as Final Rule

    In view of the foregoing, following careful consideration of the 
comments received and upon further review of the matter, CBP has 
concluded that the proposed regulations should be adopted as a final 
rule.

Executive Order 12866

    This rule is considered by DHS to be a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), Regulatory Planning 
and Review. Accordingly, this rule has been submitted to the Office of 
Management and Budget (OMB) for review. DHS assessed the impacts of 
this rulemaking and its alternatives, as presented in the April 7, 2004 
notice of proposed rulemaking. CBP did not receive contradictory 
information pertaining to the preliminary regulatory impact analysis 
published with the proposed rule. Accordingly, CBP is restating those 
findings in final form below.

Impact on User Fees

    At present, three user fees, supplemented by appropriations, fund 
the three different overtime pay systems that, in turn, govern the 
three traditional inspection disciplines. CBP will assure that there 
will be no impact on fees or service levels. CBP will track and account 
by activity how the fees are spent to ensure the proper transfer of 
immigration and agriculture funds to reimburse the Customs User Fee 
Account to cover costs incurred for immigration and agriculture 
overtime services. CBP plans to use the Cost Management Information 
System (CMIS) to track expenses by activity. CMIS is an activity-based 
cost accounting system that has been audited and endorsed by the 
General Accounting Office. Employees use established activity codes to 
track their time through the Customs Time and Attendance System. Fee 
payers that are currently providing the traditional user fee funding 
for customs, immigration and agriculture inspection services will 
continue to pay and benefit as they have in the past.

Impact on Employees

    As noted, when CBP was established on March 1, 2003, it brought 
together inspection personnel from three different agencies 
(Agriculture, Immigration and Naturalization Service, and Customs). 
Inspectors in each of these workforces earn overtime and premium pay 
based on three different statutes. In order to establish ``one face at 
the border,'' CBP is creating a new frontline officer corps to unify 
and integrate the inspectional work of these three legacy agencies. The 
unified occupations require a single compensation system. Today, while 
the officers are still classified in the three legacy occupations, they 
are paid under three sets of overtime rules, which has resulted in 
disparate earnings for virtually the same work. In addition, the three 
separate occupations and overtime rules have created significant 
administrative inefficiencies, as well as work assignment and payroll 
problems. The impact of this rule on the inspectional workforce is that 
officers who perform the same functions at the

[[Page 35232]]

ports of entry will be paid overtime and premium pay under the same 
computational rules.
    This rule does not address the number of overtime hours the 
officers will be required to work, which varies by individual, by port, 
and by other factors such as workload fluctuations, staffing levels at 
a particular location, and changes to the national threat alert level. 
Instead, this rule adds currently classified immigration and 
agriculture officers (approximately 8,000 inspectors) to the COPRA 
system, and thus affects their rates of overtime and premium pay for 
actual hours worked. (Over 10,000 inspectors, all former Customs 
Service, are already covered by COPRA.)
    The impact of this rule will be that, for some work schedules, 
certain employees will earn more, while for other work schedules, they 
will earn less. For example, current agriculture inspectors who work 
overtime on a weekday will earn ``double time'' under COPRA instead of 
``time-and-a-half'' under their current system. On the other hand, 
these same inspectors may earn less under COPRA than under their 
current system for work on a Sunday. The chart below provides 
additional examples of how the three overtime systems differ when 
comparing hours worked. On the whole, the impact of this rule on the 
overall earnings for the same or similar number of hours worked is 
expected to be minimal. While some features of COPRA are less generous 
than those of other systems, there are compensating features that are 
more generous. Thus, the differences between COPRA and the other 
systems balance out in terms of earnings for hours worked. However, it 
is noted that this rule affects only one aspect of overtime and premium 
pay earnings of employees. Other factors, such as the total number of 
hours worked and when the overtime is worked, impact the aggregate 
earnings of officers on an annual basis. The explanation provided 
herein, both in text and in the accompanying Table, represent a good 
faith effort to explain the potential impact of this rule on the 
employees. However, due to the complexities of the different systems 
and the differing work schedules of individual inspectors, the exact 
impact of the proposed rule on a specific employee is speculative and 
incapable of exact computation. The difficulty of comparing these 
systems was highlighted in the November 2001 GAO Report titled Customs 
and INS--Comparison of Officer's Pay (GAO-02-21). The GAO Report 
compared two of these systems and concluded that ``straightforward and 
generalizable comparisons in relation to these pay provisions are 
infeasible.''
    CBP does not anticipate that the amendment will have an impact on 
private entities because the changes pertain to the agency's internal 
operating procedures and because overtime compensation will be funded 
with existing user fees the expenditure of which will be subject to 
normal accounting within the government. However, DHS has determined 
this action is a ``significant'' regulatory action within the meaning 
of Executive Order 12866 because it may be perceived to relate to the 
revisions of the Federal employment system DHS is presently considering 
under the Homeland Security Act. This rule is separate from those 
revisions, which do not address overtime compensation.

Similarities and Differences Between COPRA and Other Overtime Systems

    There are a number of similarities and differences between COPRA 
and the overtime systems under which legacy immigration and agriculture 
inspectors have been covered.
    The following chart compares the major provisions of the three 
systems. The chart contains a high-level overview of the practices 
established by legacy agencies in their implementation of their 
overtime systems. It is not intended to contain all the details 
relevant to determining the rate of pay in specific situations.

                                 Table.--General Comparison of Overtime Systems
----------------------------------------------------------------------------------------------------------------
        Pay provision/term             Customs inspectors      Immigration inspectors    Agriculture inspectors
----------------------------------------------------------------------------------------------------------------
Basic pay........................  General Schedule pay with  Same as Customs.........  Same as Customs.
                                    locality pay adjustment
                                    based on geographic area.
Basic hourly rate................  General Schedule hourly    Same as Customs.........  Same as Customs.
                                    rate with locality pay
                                    included.
Basic workweek...................  7-day....................  6-day (Monday-Saturday).   6-day (Monday-
                                                                                         Saturday).
Basic overtime...................  Compensation in addition   Compensation in addition  Compensation in addition
                                    to basic pay for work in   to basic pay for work     to basic pay for work
                                    excess of the 40-hour      in excess of the 40-      in excess of the 40-
                                    regularly scheduled work   hour regularly            hour week or work in
                                    week or work in excess     scheduled workweek.       excess of 8 hours in a
                                    of 8 hours in a day.       Applies to inspection     day. Overtime pay is
                                    Overtime pay is 2 times    overtime hours worked     1.5 times the basic
                                    the basic hourly rate--a   between 5:00 p.m. and     hourly rate not to
                                    100-percent premium        8:00 a.m., Monday-        exceed a GS-10.1 pay
                                    (COPRA).                   Saturday and anytime on   for overtime Monday
                                                               Sunday or a holiday.      through Saturday (Title
                                                               Overtime pay is 4 hours   5).
                                                               pay for each additional
                                                               2 hours or fraction
                                                               thereof (1931 Act).
Other overtime...................  Not applicable...........   Compensation in          Not applicable.
                                                               addition to basic pay
                                                               for (1) overtime
                                                               inspection work between
                                                               8:00 a.m. and 5:00 p.m.
                                                               Monday-Saturday and (2)
                                                               non-inspection overtime
                                                               outside these hours.
                                                               Overtime is paid at 1.5
                                                               times the basic hourly
                                                               rate (50- percent
                                                               premium.) Maximum rate
                                                               is based on salary for
                                                               GS-10, step 1--(the
                                                               1945 Act, FEPA).

[[Page 35233]]

 
Premium pay......................  Overall term referring to  In addition to Sunday,    Overtime term referring
                                    extra compensation or      holiday, and nigh pay,    to extra compensation
                                    ``premium'' paid for       INS includes overtime     or ``premium'' paid for
                                    work performed on          in its definition of      work performed on
                                    Sunday, holiday, or at     premium pay.              holiday or at night.
                                    night. (The term does                                (The term does not
                                    not cover overtime pay.).                            cover overtime pay.)
Sunday pay.......................  Premium paid in addition   Compensation for Sunday   Compensation for Sunday
                                    to basic hourly rate for   work. Sunday pay is 2-    work. Sunday pay is 2
                                    Sunday work. Sunday pay    days' pay for 8 or        times the hourly rate
                                    is 1.5 times the basic     fewer hours worked.       for actual hours
                                    hourly rate (50-percent    Sunday is not a           worked. Sunday is not a
                                    premium). Sunday can be    regularly scheduled       regularly scheduled
                                    a regularly scheduled      workday. Sunday work is   workday. Sunday work is
                                    workday. Officers are      scheduled in addition     scheduled in addition
                                    paid for actual hours      to the regular workweek   to the regular workweek
                                    worked.                    and is always staffed     and is always staffed
                                                               with overtime.            with overtime.
                                                               Immigration inspectors
                                                               are paid based on
                                                               minimum periods of time
                                                               worked.
Holiday pay......................  Premium paid in addition   Premium paid in addition  Premium paid in addition
                                    to basic hourly rate for   to basic hourly rate      to basic hourly rate
                                    work on a holiday.         for hourly rate for       for work on a holiday.
                                    Holiday pay is 2 times     work on a holiday. Two    Holiday pay is 2 times
                                    the basic hourly rate      days' pay for 8 or        the basic hourly (100-
                                    (100-percent premium).     fewer hours worked        percent premium).
                                                               (Mon.-Sat.), in
                                                               addition to basic pay.
Night pay (night differential)...  Premium paid in addition   Premium paid in addition  Same as Immigration.
                                    to basic hourly rate for   to basic hourly rate
                                    night work. Night          for night work.
                                    differential pay rates     Officers are paid 10-
                                    differ based on the time   percent premium or
                                    or shift hours worked.     ``differential'' for
                                    Officers paid 1.15 or      hours worked between 6
                                    1.2 times the basic        p.m. and 6 a.m.
                                    hourly rate (15- or 20-
                                    percent differential).
                                    ``Majority of hours''
                                    provision applies
                                    depending on actual
                                    hours worked.
Night pay on leave...............  Customs inspectors are     Immigration inspectors    Same as Immigration.
                                    paid night differential    are paid limited night
                                    for work assigned on       differential (if less
                                    night shifts when they     than 8 hours per pay
                                    are on annual, sick, or    period) for work
                                    other leave.               assigned to night
                                                               shifts when they are on
                                                               leave. INS does not pay
                                                               night differential to
                                                               officers on vacation
                                                               (extended annual leave).
Commute Compensation.............  Compensation for           Not authorized..........  Compensation for
                                    returning to work                                    returning to work
                                    (commute) to perform an                              (commute) to perform an
                                    overtime work assignment.                            overtime work perform
                                   Commute compensation is 3                             an assignment.
                                    times the basic hourly                              Commute compensation is
                                    rate.                                                based on local rates.
                                                                                         It is generally between
                                                                                         1 to 3 times the basic
                                                                                         hourly rate.
Callback.........................  Additional overtime paid   See rollback............  Additional overtime paid
                                    for reporting early or                               for returning to work
                                    returning to work for                                for unscheduled
                                    unscheduled inspections.                             inspections. Callback
                                    Callback is 2 times the                              is 2 times the basic
                                    basic hourly rate.                                   hourly rate for Sundays
                                                                                         but capped at GS-10.1
                                                                                         pay for overtime work
                                                                                         between Monday and
                                                                                         Saturday.
Rollback.........................  See callback.............  Additional overtime paid  See callback.
                                                               for reporting early or
                                                               returning to work for
                                                               unscheduled
                                                               inspections. Rollback
                                                               is 2-hours' additional
                                                               pay at basic overtime
                                                               rate.
Foreign language proficiency       Premium paid for           Not authorized..........  Not authorized.
 Award.                             proficiency and use of
                                    foreign language while
                                    performing inspection
                                    duties. Foreign language
                                    award is between 3 and 5
                                    percent of basic pay.
Retirement annuity (overtime       Customs includes overtime  Not authorized..........  Not authorized.
 earnings included).                earnings (up to \1/2\
                                    the Statutory Cap) in
                                    calculating retirement
                                    pay.
Alternate work schedule..........  Regularly scheduled work   Same as Customs.........  Same as Customs.
                                    during a pay period
                                    based on a 9- or 10-hour
                                    workday totaling 80
                                    hours per pay period
                                    (every 2 weeks)..
----------------------------------------------------------------------------------------------------------------


[[Page 35234]]

Increased Efficiency

    The adoption of a single overtime system in lieu of the three 
overtime systems now in place provides greater efficiencies in 
scheduling, monitoring and tracking overtime. Thus, CBP anticipates no 
net costs from this regulation, either to the public at large or to 
user fee payers interested in maintaining levels of services and 
facilitation. In fact, CBP anticipates savings both to the government 
and to the public as the systems for paying officers for overtime and 
clearing goods and passengers are made more effective and efficient.

Alternatives Considered

    A key objective in establishing DHS was to unify border security 
functions at the nation's ports of entry. In DHS, the three separate 
agencies whose employees previously worked side by side at these ports 
of entry are now united. They are unified not only in the same 
organization, with the same management chain of command--they are also 
united around a common priority mission. In addition, these employees, 
with appropriate cross-training, will merge to perform the traditional 
missions that came together at the ports of entry from the legacy 
agencies of U.S. Customs, the Immigration and Naturalization Service, 
and the Animal and Plant Health Inspection Service. Thus, a well-
trained and well-integrated workforce serves as a ``force multiplier'' 
in carrying out both the priority mission and the traditional missions 
of CBP. However, in order to integrate the workforce, a common overtime 
and premium pay system is required.
    In order to implement the new frontline positions of CBP Officer 
and CBP Agriculture Specialist, it is necessary and appropriate to have 
the incumbents of these positions work under the same overtime system. 
That is, it is not feasible to pay incumbents of the same position 
under different overtime systems. Notwithstanding the feasibility, it 
is also not fair to employees to pay them differently when they are 
working side by side, performing the same type of work. Thus, the 
alternative of maintaining three overtime systems was not considered 
viable under the Secretary's ``one face at the border'' initiative.
    CBP undertook a review of available options for the overtime system 
and selected COPRA as the best available compensation system for the 
new positions because of the advantages it offers management, 
employees, and the traveling public. It is the most modern of the three 
systems, implemented only 10 years ago; in contrast, the statutes 
governing the other legacy systems were each enacted over 50 years ago, 
before the exponential growth of international trade and travel. COPRA 
more closely aligns pay to actual work performed, enabling the agency 
to more efficiently manage overtime. It establishes a 7-day workweek 
under which Sunday is not considered an overtime day, thereby providing 
greater flexibility in managing work assignments since officers can be 
regularly scheduled for any day of the week based on operational needs. 
Further, it is not statutorily permissible to use the overtime systems 
governing the immigration (1931 Act) and agriculture (Pub. L. 107-171) 
inspectors to cover all inspectional activities performed by these new 
unified officer positions.
    CBP considered, but rejected, the option of converting all 
inspectors to a totally new overtime and premium pay system. In order 
to do so, CBP would have needed to seek authorizing legislation. As a 
result, it is not certain whether, or when, appropriate legislation 
would have been enacted. This option would have involved unacceptable 
delays in the implementation of the ``one face at the border'' 
initiative.
    For the employee, COPRA offers better premium pay rates than the 
other systems for employees who work night shifts (as outlined in the 
comparison chart above). Another significant advantage over the other 
systems is that COPRA provides a retirement benefit. Under the statute, 
up to 50% of the statutory cap (Pub. L. 103-66) on overtime earnings is 
credited as base pay for retirement purposes, yielding a higher annuity 
that is more aligned with the officer's annual earnings. COPRA also 
authorizes payment of a foreign language proficiency award (up to 5% of 
base pay) to officers who maintain and use their language skills as 
part of their job duties.

Regulatory Flexibility Act

    DHS has determined that, as this rule applies only internally to 
CBP employees, it will not have a significant economic impact on a 
substantial number of small entities, pursuant to the provisions of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates

    These regulations will not result in the expenditure by State, 
local, or tribal governments of more than $100 million annually. Thus, 
no written assessment of unfunded mandates is required.

E.O. 13132, Federalism

    DHS has determined these regulations will not have Federalism 
implications because they will apply only to Federal agencies and 
employees. The regulations will not have financial or other effects on 
States, the relationship between the Federal Government and the States, 
or the distribution of power and responsibilities among the various 
levels of government.

E.O. 12988, Civil Justice Reform

    This proposed rule is consistent with the requirements of E.O. 
12988. Among other things, the regulation would not preempt, repeal or 
modify any federal statute; provides clear standards; has no 
retroactive effects; defines key terms; and is drafted clearly.

Paperwork Reduction Act

    The regulations do not involve any information collection from any 
member of the public.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Immigration, Reporting and recordkeeping 
requirements.

19 CFR Part 24

    Accounting, Customs duties and inspection, Financial and accounting 
procedures, User fees, Wages.

Amendments to the Regulations

0
For the reasons stated above, chapter I of Title 8 and chapter I of 
Title 19 of the Code of Federal Regulations are amended as set forth 
below.

TITLE 8, CHAPTER I

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

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1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552A; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 
8 CFR part 2.
* * * * *

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2. In Sec.  103.1, paragraph (a) is republished and paragraph (b) is 
amended by adding a sentence at the end to read as follows:


Sec.  103.1  Delegations of authority; designation of immigration 
officers.

    (a) Delegations of authority. Delegations of authority to perform 
functions and exercise authorities under

[[Page 35235]]

the immigration laws may be made by the Secretary of Homeland Security 
as provided by Sec.  2.1 of this chapter.
    (b) Immigration Officer. * * * Any customs officer, as defined in 
19 CFR 24.16, is hereby authorized to exercise the powers and duties of 
an immigration officer as specified by the Act and this chapter.

TITLE 19, CHAPTER I

PART 24--CUSTOMS FINANCIAL AND ACCOUNTING PROCEDURE

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3. The general authority citation for part 24 is revised and the 
specific authority citation for Sec.  24.16 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General 
Note 23, Harmonized Tariff Schedule of the United States) 1505, 
1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107-
296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).
* * * * *

    Section Sec.  24.16 also issued under 19 U.S.C. 261, 267, 1450, 
1451, 1452, 1623; 46 U.S.C. 2111, 2112;

* * * * *

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4. In Sec.  24.16, paragraph (b)(7) is revised to read as follows:


Sec.  24.16  Overtime services; overtime compensation and premium pay 
for Customs Officers; rate of compensation.

* * * * *
    (b) * * *
    (7) Customs Officer means only those individuals assigned to 
position descriptions entitled ``Customs Inspector,'' ``Supervisory 
Customs Inspector,'' ``Canine Enforcement Officer,'' ``Supervisory 
Canine Enforcement Officer,'' ``Customs and Border Protection 
Officer,'' ``Supervisory Customs and Border Protection Officer,'' 
``Customs and Border Protection Agriculture Specialist,'' or 
``Supervisory Customs and Border Protection Agriculture Specialist.''

Robert C. Bonner,
Commissioner, Customs and Border Protection.
Tom Ridge,
Secretary, Department of Homeland Security.
[FR Doc. 04-14415 Filed 6-23-04; 8:45 am]
BILLING CODE 4820-02-P