Pay Reform for Customs Inspectional Services

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 4, 24, 122, 123, and 134

[T.D. 94-74]

RIN 1515-AB30

Pay Reform for Customs Inspectional Services

AGENCY: U.S. Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the Customs Regulations by adopting final

rules to implement, in part, those provisions of the Omnibus Budget

Reconciliation Act of 1993 that provide for overtime and premium pay

for Customs Officers performing inspectional services. This document

addresses the public comments submitted in response to the interim

regulations which initially implemented the pay reform provisions, and

makes certain changes to those interim regulations in response to the

public comments and in order to add clarity and improve the readability

of the final regulations.

EFFECTIVE DATE: October 12, 1994.

FOR FURTHER INFORMATION CONTACT: Kevin Cummings, Office of Workforce

Effectiveness and Development (202) 927-1391.

SUPPLEMENTARY INFORMATION:

Background

On August 10, 1993, the Omnibus Budget Reconciliation Act of 1993

(Pub. L. 103-66, 107 Stat. 312) (the 1993 Act) was signed into law.

Part II of Subchapter D of Title XIII of the 1993 Act (107 Stat. 668)--

popularly referred to as the Customs Officer Pay Reform Amendments

(COPRA)--amended section 5 of the Act of February 13, 1911 (19 U.S.C.

261 and 267) to reform the overtime--and establish a premium--pay

system by which Customs Officers who perform inspectional services

would be compensated. In general, while the COPRA retained the basic

double-time compensation rate for overtime services, its three sections

(sections 13811-13813) made certain changes concerning how and when

such Customs Officers would be compensated.

Section 13811 (codified, in part, at 19 U.S.C. 267) amended 19

U.S.C. 261, 267, and 1450 (and repealed 19 U.S.C. 1451a) to create a

new and exclusive overtime compensation and premium pay schedule for

Customs Officers performing inspectional services, and required the

Secretary of the Treasury to promulgate regulations to prevent certain

abuses that developed under the old pay system. Section 13812 amended 5

U.S.C. 8331(3) to provide additional benefits for Customs Officers; it

allows overtime compensation to be included in the calculation of

Federal retirement annuities, up to an amount equal to 50 percent of

the applicable statutory pay limitation, and authorizes the payment of

cash awards to Customs Officers for foreign language proficiency.

Section 13813 amended 19 U.S.C. 13031(f)(3) to make certain adjustments

concerning reimbursements from the Customs User Fee Account.

On December 28, 1993, Customs published as T.D. 94-2 interim

regulations in the Federal Register (58 FR 68520) to implement the

provisions of section 13811 of the 1993 Act. (The provisions of

sections 13812 and 13813 of the 1993 Act were not dealt with in that

document; the regulations implementing those aspects of the pay reform

provisions will be issued by the Office of Personnel Management and

Customs at a later date.) The interim regulations amended and revised

certain sections in parts 4, 24, 122, 123, and 134 of the Customs

Regulations (19 CFR parts 4, 24, 122, 123, and 134) and solicited

comments concerning these changes.

Three parties submitted comments regarding one or more aspects of

the interim regulations. The comments received, and Customs responses

to them, are set forth below.

Discussion of Comments

The comments received raised, in part, six areas of concern that

will be responded to in this document:

(1) Customs interpretation of the exclusivity clause (19 U.S.C.

267(c)(2)) regarding when and how shift differential allowances would

be paid (19 CFR 24.16(a));

(2) whether the definition of ``regularly-scheduled administrative

workweek'' precluded considerations of other, alternative work

schedules (19 CFR 24.16(b)(16));

(3) the propriety of defining ``work assignment priorities'' in

agency regulations (19 CFR 24.16(d));

(4) the inclusion of workers compensation benefits in the listing

of categories for which Customs Officers may receive pay for work not

performed (19 CFR 24.16(e)(2)(ii));

(5) the payment of commute compensation when the overtime

assignment begins 16 hours or more after the last regularly scheduled

assignment (19 CFR 24.16(f)(2)(v)), and;

(6) the exclusion of workers compensation benefits from any

applicable pay cap calculations (19 CFR 24.16(h)).

Certain other issues raised by the National Treasury Employees

Union (NTEU, one of the parties submitting comments) are the subject of

pending litigation before the United States District Court for the

District of Columbia (Civil Action No. 94-0163, filed January 31,

1994). As it would be inappropriate for Customs to discuss those issues

at this time, those comments are not addressed in this document. We now

address the identified areas of concern in turn.

24.16(a)--Interpretation of exclusivity clause

Comment: Although the 1993 Act prohibits employees who are paid

overtime under subsection (a) of the statute or premium pay under

subsection (b) of the statute from receiving ``* * * pay or other

compensation for that work under any other provision of law'' (emphasis

in original), the exclusivity clause contained in the 1993 Act does not

divest employees of their right to receive payment under other

applicable pay statutes for work performed during periods for which no

1993 Act payments are received. For example, an employee may be

assigned to a night shift for which no night work differential is

payable under the 1993 Act (11:00 a.m. to 7:00 p.m.). That employee

should still be paid night shift differential from 6:00 p.m. to 7:00

p.m. under the Federal Employees Pay Act (FEPA) or other applicable

law. The interim regulations should be modified to reflect this

entitlement.

Customs Response: Customs disagrees. With enactment of the COPRA in

the 1993 Act, Congress created a total pay and compensation system

unique to the inspectional duties performed by Customs Officers. The

establishment of this new system effectively removed those officers

from coverage under any other statute for pay and compensation

purposes. Accordingly, no change to Sec. 24.16(a) is made.

When the COPRA were promulgated, Congress reasoned that its purpose

in requiring Customs Officers to work 40 hours in a week or 8 hours in

a day, without regard to the hour of the day or the day of the week,

before they qualify for overtime pay, was to encourage Customs to

adjust its inspectional resources to meet actual trade patterns, rather

than forcing the trade community to adjust to a predetermined Customs

workday. Also, Congress wanted Customs to measure workload and trade

patterns at each of its ports and then adjust work schedules to meet

that demand while using as little overtime as possible. See, ``Report

of the Committee on the Budget House of Representatives on Omnibus

Budget Reconciliation Act of 1993'', Report 103-111 (May 25, 1993), p.

573. Since section 267(c)(2) clearly provides that a Customs Officer

who receives overtime pay under subsection (a) (19 U.S.C. 267(a)) or

premium pay under subsection (b) (19 U.S.C. 267(b)) for time worked may

not receive pay or other compensation for that work under any other

provision of law, it is axiomatic that Congress' explanation in the

context of overtime pay is equally applicable to the payment of premium

pay differentials, i.e., night shift pay. And, as no allowance for

night work differential premium pay is authorized under the Customs

Officer Pay Reform provisions where less than a majority of night work

hours is worked during the specified time periods (19 U.S.C. 267(b)(1)-

(3), 19 CFR 24.16(g)(3)(i)-(iii)), it is clear that the 1993 Act does

divest Customs Officers--but not other Customs employees--of their

right to receive payment under other applicable pay statutes for work

performed. Any other interpretation of section 267(c)(2) would render

the express limitation meaningless.

In the scenario presented in the commenter's example, the payment

of night differential premium pay is not authorized because the Customs

Officer, as defined at 19 U.S.C. 267(e)(1) and subject to the overtime

and premium pay provisions of 19 U.S.C. 267, does not work a majority

of hours between any of the three time frames established by Congress

for payment of such premium pay. See, 19 U.S.C. 267(b)(1)(A) through

(C). Although the Customs Officer is officially assigned to work an 8-

hour shift which goes past the, heretofore, traditional working day of

6:00 p.m., no night work differential is authorized under the

exclusivity of pay provision under the COPRA (19 U.S.C. 267(c)(2)); the

terms of the exclusivity provision expressly preclude dual pay/

compensation entitlement considerations under other Federal pay

statutes.

24.16(b)(16)--Definition of ``Regularly-scheduled administrative

workweek''

Comment: Regarding the definition of ``regularly-scheduled

administrative workweek'', the following sentence should be added,

``This section is not meant to prohibit consideration of alternative

work schedules at a local level'' to reflect the provisions of 5 CFR

610.121 and Article 21, Section 3A of the National Agreement between

Customs and the National Treasury Employees Union (NTEU).

Customs Response: The pay reform provisions of the 1993 Act do not

affect or otherwise address the question of alternate work schedules

(AWS), which has a separate statutory basis. See, 5 U.S.C. 6120 et seq.

We believe that the addition of the requested sentence is unnecessary.

Accordingly, no change to Sec. 24.16(b)(16) is made.

24.16(d)--``Work assignment priorities''/(annuity integrity)

Comment: The NTEU objects to the inclusion of work assignment

priorities provisions in the regulations (Sec. 24.16(d)), as these

issues are negotiable under the terms of the Civil Service Reform Act.

Especially objectionable is the inclusion of the overtime earnings

``band'' in Sec. 24.16(d)(2).

Response: Customs agrees that the inclusion of the equalization

provision in the work assignment priorities may be overbroad as written

and could be subject to negotiations under the terms of the Civil

Service Reform Act; however, Customs believes that the other two

principles (alignment and least cost) are properly contained in the

regulations, as they are in accordance with the provisions of 19 U.S.C.

267(d)(1), which require the Secretary of the Treasury to promulgate

such regulations as will prevent the abuse of callback work assignments

and commuting time compensation. Accordingly, Sec. 24.16(d) is revised

by deleting the equalization principle and replacing it with a more

restricted ``annuity integrity'' principle that is more in accordance

with the provisions of 19 U.S.C. 267(d)(2), which requires the

Secretary to promulgate such regulations as will prevent the

disproportionately more frequent assignment of overtime work to Customs

Officers who are near to their retirement.

Annuity integrity is based on the average yearly amount of overtime

Customs Officers worked during their career with Customs. Under annuity

integrity the amount of overtime that can be worked by a Customs

Officer who is within 3 years of his/her statutory retirement

eligibility, see, 5 U.S.C. chapters 83 or 84, is limited to the average

yearly number of overtime hours the Customs Officer worked during his/

her career with the Customs Service. If the dollar value of the average

yearly number of overtime hours worked by such Customs Officer exceeds

50 percent of the applicable statutory pay cap, then no overtime

earning limitation based on this annuity integrity provision would

apply. Waivers concerning this annuity integrity limitation may be

granted by the Commissioner of Customs or the Commissioner's designee

in individual cases in order to prevent excessive costs or to meet

emergency requirements of Customs. Customs believes that this principle

of annuity integrity is in accordance with the provisions of 19 U.S.C.

267(d)(2) and, as such, properly belongs in the regulations.

24.16(e)(2)(ii)--Including workers compensation benefits in list of

payment categories for work not performed

Comment: The NTEU requests the inclusion of workers compensation

benefits to the listing of categories for which Customs Officers may

receive payment for work that is not performed.

Customs Response: Unlike the form of workers compensation

enumerated in this section (continuation of pay under the workers

compensation law, which is paid by the employing agency), workers

compensation benefits--in the form of compensation for lost wages--are

paid by the Department of Labor. See, 5 U.S.C. 8101 and 20 CFR part 10.

As this latter form of workers compensation is not within the direct

control of the Secretary of the Treasury, its inclusion at

Sec. 24.16(e)(2)(ii) would be inappropriate. Accordingly, no change to

Sec. 24.16(e)(2)(ii) is made.

24.16(f)(2)(v)--Payment of commute compensation

Comment: The commute compensation provisions include a section that

a Customs Officer will not be paid for commute time if the overtime

assignment begins 16 hours or more after the last regularly scheduled

assignment. This section makes it extremely difficult for those

inspectors that work Monday through Friday to serve the public on

Saturdays and Sundays.

Customs Response: This eligibility condition for commute

compensation is statutory. See, 19 U.S.C. 267(a)(2)(B)(ii)(I). Thus,

Customs cannot deviate from the statutory requirements, but does note

that the additional compensation--a flat 3 hours at the basic pay

rate--is in addition to callback pay. Accordingly, no change to

Sec. 24.16(f)(2)(v) is made.

24.16(h)--Excluding workers compensation benefits from list of payment

categories subject to pay cap limitations

Comment: The NTEU requests the exclusion of workers compensation

benefits and back pay awards and settlements from the listing of

categories not subject to any applicable pay cap calculations.

Customs Response: Regarding the exclusion of workers compensation

benefits from the list of payment categories subject to pay cap

limitations, for the reasons given above at Sec. 24.16(e)(2)(ii), no

change to Sec. 24.16(h) is made. Regarding the exclusion of back pay

awards and settlements, the current regulatory language provides that

``awards made in accordance with back pay settlements'' shall not be

applied to any applicable pay cap calculations. This correctly conveys

the fact that such awards are exempt. Accordingly, no change to

Sec. 24.16(h) is made concerning this point.

Additional Changes to the Regulations

In addition to the changes discussed above in connection with the

analysis of comments, the regulatory texts as set forth below

incorporate certain editorial or other non-substantive changes to the

interim regulations to add clarity and improve the readability of the

final regulations. The sections of the interim regulations affected by

these changes are indicated below.

24.16(b)--Definitions

As the definitions of ``commute compensation'' (19 CFR

24.16(b)(5)), ``overtime pay'' (19 CFR 24.16(b)(13)), and ``premium pay

differential'' (19 CFR 24.16(b)(15))--now denominated

Sec. 24.16(b)(14), see next paragraph below for explanation on

redenomination--encompass similar elements pertaining to compensation,

the wording of these three sections is recast to employ a parallel

construction for ease of readability and to add clarity to their

exclusive meanings.

Because of the change to Sec. 24.16(d) discussed above under the

Discussion of Comments, a definition for ``participating group'' (19

CFR 24.16(b)(14)) is no longer needed. Accordingly, in Sec. 24.16(b),

paragraphs (15) and (16) are redenominated paragraphs (14) and (15),

respectively.

24.16(c)--Application and bond

Although the interim regulations did not make any changes to the

provisions of Sec. 24.16(c), because this section references Customs

``employees'' rather than Customs ``Officers'', the term ``employee''

in paragraphs (1) through (3) is replaced with the term ``Officer'' to

reflect the new restricted application of Sec. 24.16, as amended by the

COPRA provisions of the 1993 Act. This change is made to make the

provisions of paragraph (c) more harmonious with the rest of the

provisions in Sec. 24.16.

24.16(e)--Overtime pay

In paragraph (2)(i) of Sec. 24.16(e), the second sentence regarding

the rounding off of overtime work performed in increments other than a

full quarter hour is deleted because it seeks to address a problem that

is subject to negotiations under the terms of the Civil Service Reform

Act.

In paragraph (2)(ii) of Sec. 24.16(e), the last sentence is revised

by deleting the words ``for the work assignment'' after ``reports'' and

adding the words ``as assigned'' to make it clear that overtime pay is

now restricted to hours assigned and worked.

24.16(f)--Commute Compensation

In paragraph (3) of Sec. 24.16(f), the last sentence regarding the

treatment of certain overtime work to prevent the inappropriate payment

of commute compensation is deleted because it represents a regulatory

attempt to correct a scheduling issue. The district director is

responsible for and has discretion in scheduling appropriate overtime

assignments.

In paragraph (4) of Sec. 24.16(f), a stylistic change is made in

the first sentence (changing the reference from ``he'' to ``the

officer'') and a modification is made in the second sentence (allowing

less than all overtime assignments to be treated as one continuous

callback assignment) to give management more flexibility in the

assignment of overtime work.

24.16(g)--Premium pay differentials

For the reasons given above concerning recasting three provisions

in Sec. 24.16(b) because the terms defined encompassed similar elements

pertaining to compensation, the three provisions in Sec. 24.16(g)

pertaining to premium pay --paragraphs(g)(1) (Holiday differential),

(g)(2) (Sunday differential), and (g)(3) (Night work differential)--are

recast to employ a parallel construction for ease of readability and to

add clarity to their exclusive meanings.

In paragraph (1)(iv) of Sec. 24.16(g), the first sentence is

revised and a second sentence is added to make it clear that where only

one assigned shift is worked and any of those hours occur during the

24-hour calendar day of a holiday, the entire shift will be designated

as a holiday and compensated at the holiday rate of pay. Also, a new

paragraph (vi) is added to clarify the compensation computation where

only a portion of a regularly-scheduled, non-overtime, holiday shift is

worked.

134.55--Compensation of Customs Officers and employees

In paragraphs (b)(1) and (2) of Sec. 134.55, a grammatical change

is made to clarify which regulatory provisions (COPRA or FEPA) are

applicable to provide compensation for which Customs personnel. The

change provides that the COPRA compensation provisions of Sec. 24.16

are applicable regarding overtime compensation and premium pay for

Customs Officers, and that the FEPA compensation provisions of

Sec. 24.17 are applicable regarding overtime compensation for other

Customs employees.

Conclusion

In consideration of the comments received, Customs believes that

the interim Pay Reform for Customs Inspectional Services regulations,

published as T.D. 94-2 in the Federal Register on December 28, 1993 (58

FR 68520), should be adopted as a final rule with certain changes

thereto, as discussed above and set forth below.

The Regulatory Flexibility Act, and Executive Order 12866

Based on the supplementary information set forth above and because

the amendments contained in this document reflect existing statutory

requirements or merely implement interpretations and policies that are

already in effect under interim regulations, pursuant to the provisions

of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., it is

certified that the regulations will not have a significant economic

impact on a substantial number of small entities. Accordingly, the

regulations are not subject to the regulatory analysis or other

requirements of 5 U.S.C. 603 and 604. This document does not meet the

criteria for a ``significant regulatory action'' as specified in E.O.

12866.

Drafting Information

The principal author of this document was Gregory R. Vilders,

Regulations Branch. However, personnel from other offices participated

in its development.

List of Subjects

19 CFR Part 4

Cargo vessels, Customs duties and inspection, Fishing vessels,

Harbors, Imports, Maritime carriers, Merchandise, Passenger vessels,

Reporting and recordkeeping requirements, Vessels.

19 CFR Part 24

Accounting, Claims, Customs duties and inspection, Financial and

accounting procedures, Reporting and recordkeeping requirements, Wages.

19 CFR Part 122

Administrative practice and procedure, Air carriers, Aircraft,

Airports, Air transportation, Baggage, Bonds, Customs duties and

inspection, Freight, Imports, Reporting and recordkeeping requirements.

19 CFR Part 123

Administrative practice and procedure, Aircraft, Bonds, Canada,

Customs duties and inspection, Imports, Mexico, Reporting and

recordkeeping requirements, Vessels.

19 CFR Part 134

Country of origin, Customs duties and inspection, Labeling,

Marking, Packaging and containers.

Amendments to the Regulations

For the reasons stated above, the interim rule amending parts 4,

24, 122, 123, and 134 of the Customs Regulations (19 CFR parts 4, 24,

122, 123, and 134), which was published at 58 FR 68520-68526 on

December 28, 1993 (T.D. 94-2), is adopted as a final rule with the

following changes:

PART 24--CUSTOMS FINANCIAL AND ACCOUNTING PROCEDURE

1. The general authority citation for part 24 continues to read as

follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 261, 267, 1202

(General Note 17, Harmonized Tariff Schedule of the United States

(HTSUS)), 1450, 1624; 31 U.S.C. 9701, unless otherwise noted.

2. In Sec. 24.16:

a. Paragraph (b)(14) is removed, and paragraphs (b)(15) and (16)

are redesignated paragraphs (b)(14) and (15) respectively;

b. Paragraphs (b)(5) and (13) and newly designated paragraph

(b)(14) are revised;

c. The first two sentences in paragraph (c)(1), the first sentence

in paragraph (c)(2), and paragraph (c)(3) are revised;

d. Paragraph (d) is amended by removing paragraph (d)(2),

redesignating paragraph (d)(3) as paragraph (d)(2), and by adding a new

paragraph (d)(3);

e. Paragraph (e) is amended by removing the second sentence in

paragraph (e)(2)(i), and by revising paragraph (e)(2)(ii);

f. Paragraph (f) is amended by removing the last sentence in

paragraph (f)(3), and by revising paragraph (f)(4);

g. Paragraph (g) is amended by revising the last sentence in the

introductory text, revising the introductory text of paragraph (g)(1),

revising paragraph (g)(1)(iv), adding a new paragraph (g)(1)(vi),

revising paragraph (g)(2), and revising the introductory text of

paragraph (g)(3).

The revisions and additions to read as follows:

Sec. 24.16 Overtime services; overtime compensation and premium pay

for Customs Officers; rate of compensation.

* * * * *

(b) * * *

(5) ``Commute compensation'' means the compensation which a Customs

Officer is entitled to receive, in excess of the officer's base pay,

for returning to work, under certain conditions, to perform an overtime

work assignment. Commute compensation, within the limits prescribed by

the Act, shall be treated as overtime compensation, and is includable

for Federal retirement benefit purposes.

* * * * *

(13) ``Overtime pay'' means the compensation which a Customs

Officer is entitled to receive, in excess of the officer's base pay,

for performing officially-assigned work in excess of the 40 hours of

the officer's regularly-scheduled administrative workweek or in excess

of 8 hours in a day, which may include commute compensation as defined

at paragraph (b)(5) of this section. Overtime pay, within the limits

prescribed by the Act, is includable for Federal retirement benefit

purposes.

(14) ``Premium pay differential'' means the compensation which a

Customs Officer is entitled to receive, in excess of the officer's base

pay, for performing officially-assigned work on holidays, Sundays and

at night. Premium pay is not includable for Federal retirement benefit

purposes.

* * * * *

(c) Application and bond. (1) Except as provided for in paragraphs

(c)(2) and (4) of this section, an application for inspectional

services of Customs Officers at night or on a Sunday or holiday,

Customs Form 3171, supported by the required cash deposit or bond,

shall be filed in the office of the district director of Customs before

the assignment of such officers for reimbursable overtime services. The

cash deposit to secure reimbursement shall be fixed by the district

director or authorized representative in an amount sufficient to pay

the maximum probable compensation and expenses of the Customs Officers,

or the maximum amount which may be charged by law, whichever is less,

in connection with the particular services requested. * * *

(2) Prior to the expected arrival of a pleasure vessel or private

aircraft the district director of Customs may designate a Customs

Officer to proceed to the place of expected arrival to receive an

application for night, Sunday, or holiday services in connection with

the arrival of such vessel or aircraft, together with the required cash

deposit or bond. * * *

(3) An application on Customs Form 3171 for overtime services of

Customs Officers, when supported by the required cash deposit or a

continuous bond, may be granted for a period not longer than for 1

year. In such a case, the application must show the exact times when

the overtime services will be needed, unless arrangements are made so

that the proper Customs Officer will be notified timely during official

hours in advance of the services requested as to the exact times that

the services will be needed.

* * * * *

(d) * * *

(3) Annuity integrity. For Customs Officers within 3 years of their

statutory retirement eligibility, the amount of overtime that can be

worked is limited to the average yearly number of overtime hours the

Customs Officer worked during his/her career with the Customs Service.

If the dollar value of the average yearly number of overtime hours

worked by such Customs Officer exceeds 50 percent of the applicable

statutory pay cap, then no overtime earning limitation based on this

annuity integrity provision would apply. Waivers concerning this

annuity integrity limitation may be granted by the Commissioner of

Customs or the Commissioner's designee in individual cases in order to

prevent excessive costs or to meet emergency requirements of Customs.

(e) * * *

(2) * * *

(ii) Absence during overtime. Except as expressly authorized by

statute, regulation, or court order (i.e., military leave, court leave,

continuation of pay under the workers compensation law, and back pay

awards), a Customs Officer shall be paid for overtime work only when

the officer reports as assigned.

(f) * * *

(4) Maximum Compensation for Multiple Assignments. If a Customs

Officer is assigned to perform more than one overtime assignment, in

which the officer is required to return to a place of work more than

once in order to complete the assignment, and otherwise satisfies the

callback requirements of paragraph (f)(1) of this section, then the

officer shall be entitled to commute compensation each time the officer

returns to the place of work provided that each assignment commences

less than 16 hours after the officer's last regularly-scheduled work

assignment. However, in no case shall the compensation be greater than

if some or all of the assignments were treated as one continuous

callback assignment.

(g) Premium pay differentials. * * * The order of precedence for

the payment of premium pay differentials is holiday, Sunday, and night

work.

(1) Holiday differential. A Customs Officer who performs any

regularly-scheduled work on a holiday shall receive pay for that work

at the officer's hourly rate of base pay, which includes authorized

locality pay, plus premium pay amounting to 100 percent of that base

rate.

Holiday differential premium pay will be paid only for time worked.

Intermittent employees are not entitled to holiday differentials.

* * * * *

(iv) If a Customs Officer is assigned to a regularly-scheduled,

non-overtime, tour of duty which contains hours within and outside the

24-hour calendar day of a holiday--for example, a tour of duty starting

at 8 p.m. on a Monday holiday following a scheduled day off on Sunday

and ending at 4 a.m. on Tuesday--the Customs Officer shall receive the

holiday differential (up to 8 hours) for work performed during that

shift. If the Customs Officer is assigned more than one regularly-

scheduled, non-overtime, tour of duty which contains hours within and

outside the 24-hour calendar day of a holiday--for example, a tour of

duty starting at 8 p.m. on the Wednesday before a Thursday holiday and

ending at 4 a.m. on Thursday with another regularly-scheduled, non-

overtime, tour of duty starting at 8 p.m. on the Thursday holiday and

ending at 4 a.m. on Friday--the management official in charge of

assigning work shall designate one of the tours of duty as the

officer's holiday shift and the officer shall receive holiday

differential (up to 8 hours) for work performed during the entire

period of the designated holiday shift. The Customs Officer shall not

receive holiday differential for any of the work performed on the tour

of duty which has not been designated as the holiday shift but will be

eligible for Sunday or night differential as appropriate.

* * * * *

(vi) A Customs Officer who works only a portion of a regularly-

scheduled, non-overtime, holiday shift will be paid the holiday

differential for the actual hours worked and the appropriate

differential (Sunday or night) for the remaining portion of the shift

such officer was not required to work. The night differential premium

pay shall be calculated based on the rate applicable to the entire

shift.

(2) Sunday differential. A Customs Officer who performs any

regularly-scheduled work on a Sunday that is not a Federal holiday

shall receive pay for that work at the officer's hourly rate of base

pay, which includes authorized locality pay, plus premium pay amounting

to 50 percent of that base rate. Sunday differential premium pay will

be paid only for time worked and is not applicable to overtime work

performed on a Sunday. A Customs Officer whose regularly-scheduled work

occurs in part on a Sunday, that is not a Federal holiday, and in part

on the preceding or following day, will receive the Sunday differential

premium pay for the hours worked between 12:01 a.m. and 12 Midnight on

Sunday. Intermittent employees are not entitled to Sunday

differentials.

(3) Night work differentials. A Customs Officer who performs any

regularly-scheduled night work shall receive pay for that work at the

officer's hourly rate of base pay, including locality pay as

authorized, plus the applicable premium pay differential, as specified

below, but shall not receive such night differential for work performed

during overtime assignments. When all or the majority of the hours of a

Customs Officer's regularly-scheduled work occur between 3 p.m. and 8

a.m., the officer shall receive a night differential premium for all

the hours worked during that assignment. Intermittent employees are not

entitled to night differentials.

* * * * *

PART 134--COUNTRY OF ORIGIN MARKING

1. The authority citation for part 134 continues to read as

follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 17,

Harmonized Tariff Schedule of the United States (HTSUS)), 1304,

1624.

2. In Sec. 134.55, paragraph (b) is revised to read as follows:

Sec. 134.55 Compensation of Customs Officers and employees.

* * * * *

(b) Applicability--(1) Official hours. The compensation of Customs

Officers or employees assigned to supervise the exportation,

destruction, or marking of articles so as to exempt them from the

application of marking duties shall be computed in accordance with the

provisions of Secs. 24.16 or 24.17(a)(3), respectively, of this chapter

when such supervision is performed during a regularly-scheduled tour of

duty.

(2) Overtime. When such supervision is performed by a Customs

Officer or employee in an overtime status, the compensation with

respect to the overtime shall be computed in accordance with the

provisions of Sec. 24.16 or Sec. 24.17, respectively, of this chapter.

* * * * *

George J. Weise,

Commissioner of Customs.

Approved: August 12, 1994.

John P. Simpson,

Deputy Assistant Secretary of the Treasury.

[FR Doc. 94-22415 Filed 9-9-94; 8:45 am]

BILLING CODE 4820-02-P