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Customs And Border Protection Issues

3/30/2007

The House Subcommittee On Homeland Security Appropriations

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Chairman Price, Ranking Member Rogers, distinguished members of the Subcommittee; I would like to thank the Subcommittee for the opportunity to provide this testimony. As President of the National Treasury Employees Union (NTEU), I have the honor of leading a union that represents over 15,000 Customs and Border Protection Officers (CBPOs) and trade enforcement specialists who are stationed at 317 land, sea and air ports of entry (POEs) across the United States. CBPOs make up our nation’s first line of defense in the wars on terrorism and drugs.

In addition, Customs and Border Protection (CBP) entry specialists and trade compliance personnel enforce over 400 hundred U.S. trade and tariff laws and regulations in order to ensure a fair and competitive trade environment pursuant to existing international agreements and treaties, as well as stemming the flow of illegal contraband such as child pornography, illegal arms, weapons of mass destruction and laundered money. CBP is also a revenue collection agency, collecting an estimated $31.4 billion in revenue on over 29 million trade entries in 2005.

FUNDING FOR DHS HUMAN RESOURCES MANAGEMENT SYSTEM

NTEU continues to have concerns about funding priorities at DHS. On March 7, 2007, DHS announced that it will put into effect portions of its compromised personnel system. Just a few weeks earlier, DHS outlined plans to move slower on its controversial personnel overhaul, formerly known as MaxHR, but now called the Human Capital Operations Plan. The President’s FY 2008 budget calls for only $15 million to fund the renamed MaxHR personnel plan.

In July 2005, a U.S. District Court for the District of Columbia ruled that portions of the proposed DHS personnel regulations infringed on employees’ collective bargaining rights, failed to provide an independent third-party review of labor-management disputes and lacked a fair process to resolve appeals of adverse management actions. The Appellate Court rejected DHS appeal of this District Court decision and DHS declined to appeal the ruling to the Supreme Court.

In a number of critical ways, the personnel system established by the Homeland Security Act and the subsequent regulations issued by the Department of Homeland Security (DHS) have been a litany of failure because the law and the regulations effectively gut employee due process rights and put in serious jeopardy the agency’s ability to recruit and retain a workforce capable of accomplishing its critical missions.

When Congress passed the Homeland Security Act in 2002 (HSA), it granted the new department very broad discretion to create new personnel rules. It basically said that DHS could come up with new systems as long as employees were treated fairly and continued to be able to organize and bargain collectively.

The regulations DHS came up with were subsequently found by the Courts to not even comply with these two very minimal and basic requirements.

In February of this year, DHS received the lowest scores of any federal agency on a federal survey for job satisfaction, leadership and workplace performance. Of the 36 agencies surveyed, DHS ranked 36th on job satisfaction, 35th on leadership and knowledge management, 36th on results-oriented performance culture, and 33rd on talent management. As I have stated previously widespread dissatisfaction with DHS management and leadership creates a morale problem that affects the safety of this nation.

It should be clear to the Committee that the Department of Homeland Security has learned little from these Court losses and repeated survey results and will continue to overreach in its attempts to implement the personnel provisions included in the Homeland Security Act of 2002.

With the abysmal morale and extensive recruitment and retention challenges at DHS, implementing these personnel changes now will only further undermine the agency's employees and mission. From the beginning of discussions over personnel regulations with DHS more than four years ago, it was clear that the only system that would work in this agency is one that is fair, credible and transparent. These regulations promulgated under the statute fail miserably to provide any of those critical elements. It is time to end this flawed personnel experiment.

The Committee has been extremely thoughtful and deliberative in allocating funds for implementing MaxHR in the FY 2006 and FY 2007 DHS Appropriations bill and the Continuing Resolution for FY 2007. Acknowledging that NTEU-initiated litigation had stalled implementation of portions of MaxHR and in response to NTEU’s request to redirect scarce federal dollars for DHS staffing and programs that benefit the nation’s security, the Committee allocated $29.4 million in FY 2006, $25 million in FY 2007 and then reallocated $5 million of that $25 million to other programs in the FY 2007 Continuing Resolution legislation. These appropriations were well below the President’s FY 2006 and FY 2007 budget request.

Now the DHS Authorizers have acted. At NTEU’s request, the House Homeland Security Committee approved an amendment to the FY 2008 DHS Authorization bill that repeals the DHS Human Resources Management System. On March 28, 2007, the House Homeland Security Committee approved H.R. 1684, the DHS Authorization legislation, by a vote of 26-0 that includes this MaxHR repeal language.

Despite Congress’ clear intent to stop implementation of the failed DHS Human Resources Management System, DHS continues to persist in implementing these compromised personnel regulations. NTEU urges the Appropriations Committee to comply with the DHS Authorization bill and prohibit the expenditure of any FY 2008 DHS appropriations to implement this failed, discredited personnel program.

FUNDING OF CBP AT THE PORTS OF ENTRY

One of the most significant reasons for low morale at CBP is the continuing shortage of staff at the 317 POEs. The President’s FY 2008 budget proposal requests $647.8 million to fund the hiring of 3000 Border Patrol agents. But, for salaries and expenses for Border Security, Inspection and Trade Facilitation at the 317 Ports of Entry (POEs), funding is woefully inadequate.

The President’s FY 2008 budget calls for an increase of only $8.24 million, for annualization of 450 CBPOs appropriated in the FY 2007 DHS Appropriations Conference Report. NTEU is extremely grateful to the Committee for including funding for an additional 450 CBPOs in the FY 2007 DHS Appropriations bill. In that bill, the House and Senate Appropriations Conferees agreed to “provide $181,800,000 for an additional 450 CBP officers and critical non-intrusive inspection equipment and fully fund the budget request for all cargo security and trade facilitation programs within CBP.”

In addition, on March 15, 2007, the House Appropriations Committee approved an Emergency Supplemental Appropriations bill for fiscal year ending September 30, 2007, that among other things, “recommends an additional $100,000,000 to improve significantly the ability of CBP to target and analyze US-bound cargo containers, achieve a capacity to screen 100 percent of such cargo overseas, and double the number of containers that are subject to physical inspections. The funding would support hiring up to 1,000 additional CBP Officers, Intelligence Analysts and support staff, to be located at Container Security Initiative locations overseas, U.S. ports of entry, or the National Targeting Center.”

The Senate Appropriations Committee approved similar language in its version of the Supplemental on March 22, 2006. NTEU again is extremely grateful to the Committee for funding the hiring of additional CBPOs at sea ports and land ports.

CBP Understaffing at Airports:

First let me comment on the severe security risks our nation takes by understaffing. Customs and Border Protection has two overarching and sometimes conflicting goals: increasing security while facilitating trade and travel. NTEU has noted the diminution of secondary inspection in favor of passenger facilitation at primary inspection since the creation of the Department of Homeland Security. Why has there been this decrease in secondary inspections? NTEU believes that it is because of a decrease in CBP staffing levels. According to the Government Accountability Office (GAO) Report (GAO-05-663), International Air Passengers Staffing Model for Airport Inspections Personnel Can Be Improved, there is much evidence that airports are experiencing staffing shortages.

There has been expressed to NTEU and Congress considerable concern about clearing international passengers within 45 minutes which is being done at the expense of specialized secondary inspection. Prior to 9/11 there was a law on the books requiring INS to process incoming international passengers within 45 minutes. The Enhanced Border Security and Visa Protection Act of 2002 repealed the 45 minute standard, however “it added a provision specifying that staffing levels estimated by CBP in workforce models be based upon the goal of providing immigration services within 45 minutes (page 12-13).”

It has also come to NTEU’s attention that the U.S. Travel and Tourism industry has called for a further reduction in passenger clearance time to 30 minutes. The industry’s recently announced plan, called "A Blueprint to Discover America," includes a provision for “modernizing and securing U.S. ports of entry by hiring customs and border [protection] officers at the top 12 entry ports to process inbound visitors through customs within 30 minutes.” This CANNOT be achieved at current staffing levels without jeopardizing security.

On pages 16-19, GAO states “The number of CBP staff available to perform primary inspections is also a primary factor that affects wait times at airports…(Note: the number of CBP officers at individual airports is considered security sensitive information)…For example, CBP and airline officials in Houston stated that the increase in the number of inspection stations at George Bush Intercontinental Airport, in combination with the addition of new CBP officers has reduced passenger wait times…However, the benefit of adding inspection stations has been limited because, as of June 2003, CBP has not increased staffing levels.”

Regarding the building of new inspection stations, GAO states, “Airport and airline officials said that these projects were planned, funded, and completed with the expectation that CBP would increase staff for the new facilities as passenger volume increased. However, CBP officials stated that the agency is not legally or contractually required to allocate new staff when inspection facilities are constructed or expanded and the agency is to make no commitment implicitly or explicitly regarding the future staffing levels in approving new inspection facility design proposals.” (page 21)

NTEU is very grateful that the Congress in its FY 07 DHS appropriations conference report directed CBP to submit by January 23, 2007 a resource allocation model for current and future year staffing requirements as specified by the House and Senate Appropriations Conference Report. Specifically, this report should assess optimal staffing levels at all land, air and sea ports of entry and provide a complete explanation of CBP’s methodology for aligning staffing levels to threats, vulnerabilities, and workload across all mission areas.” (See September 28, 2006 Congressional Record page H7817) It is NTEU’s understanding that, to date, the Appropriations Committee has not received this report from CBP.

Congress also mandated CBP to perform a Resource Allocation Model in Section 402 of the SAFE Port Act. This report is due June 2007. NTEU will look to Congress to continue oversight in reviewing how CBP is conducting staff allocations.

It is instructive here to note that the former U.S. Customs Service’s last internal review of staffing for Fiscal Years 2000-2002 dated February 25, 2000, known as the Resource Allocation Model or R.A.M., shows that the Customs Service needed over 14,776 new hires just to fulfill its basic mission—and that was before September 11. Since then the Department of Homeland Security was created and the U.S. Customs Service was merged with the Immigration and Naturalization Service and parts of the Agriculture Plant Health Inspection Service to create Customs and Border Protection and given an expanded mission of providing the first line of defense against terrorism, in addition to making sure trade laws are enforced and trade revenue collected.

One Face at the Border Initiative:

On September 2, 2003, CBP announced the misguided One Face at the Border (OFAB) initiative. The initiative was designed to eliminate the pre-9/11 separation of immigration, customs, and agriculture functions at US land, sea and air ports of entry. In practice the OFAB initiative has resulted in diluting customs, immigration and agriculture inspection specialization and quality of passenger and cargo inspections. Under OFAB, former INS agents that are experts in identifying counterfeit foreign visas are now at seaports reviewing bills of lading from foreign container ships, while expert seaport Customs inspectors are now reviewing passports at airports. The processes, procedures and skills are very different at land, sea and air ports, as are the training and skills sets needed for passenger processing and cargo inspection.

It is apparent that CBP sees its One Face at the Border initiative as a means to “increase management flexibility” without increasing staffing levels. For this reason, Congress, in the Immigration and Border Security bill passed by the House last year, HR 4437, section 105, requires the Secretary of Homeland Security to submit a report to Congress “describing the tangible and quantifiable benefits of the One Face at the Border Initiative…outlining the steps taken by the Department to ensure that expertise is retained with respect to customs, immigration, and agriculture inspection functions…”

In addition, the Committee added report language to the FY 2007 DHS Appropriations bill that as part of CBP’s One Face at the Border Initiative directs “CBP to ensure that all personnel assigned to primary and secondary inspection duties at ports of entry have received adequate training in all relevant inspection function.” GAO will be issuing a report in the next few months evaluating the adequacy of cross training under the One Face at the Border Initiative, its impact on legacy customs, immigration and agricultural inspection specialization. NTEU urges the Committee to take action to ensure that inspection specialization is not further diminished by the misguided One Face at the Border Initiative.

A related issue that the Committee should be aware of is the recent completion by CBP of a new “Airport Technical Standards Guide” that outlines airports terminal design changes and other changes, including who would pay for CBPOs parking at the airports.

Right now a new airline terminal at JFK in New York City is being designed that eliminates the three checkpoints (passport check, roving check at baggage carousels and Customs check) for all incoming foreign travelers arriving at existing U.S. international air terminals to just one checkpoint after baggage is picked up.

These current three opportunities to check foreign travelers coming into the country provide a layered system that allows CBP security personnel to observe the traveler’s behavior at three separate junctures—when presenting their entry papers, when picking up their luggage at the carousel (usually by a canine team and roving undercover personnel), and when presenting their luggage for inspection. We believe that these three checkpoints are important for CBP personnel to observe passenger behavior for suspicious activity.

The new international arrival terminal design apparently approved by CBP in the Airport Technical Standards Guide will result in only one opportunity for CBPOs to look at a foreign traveler, his documents and his baggage. This new airport terminal model would standardize this security infrastructure for the next fifty years. It would also make permanent the One Face at the Border initiative before it is even known whether this is an effective model for POE security.

With increasing pressure to speed up passenger processing, this one checkpoint puts unimaginable pressure on the CBPO to do cursory review of documents, baggage and behavior and has no provision for a back up review by another set of eyes. NTEU urges the Committee to prohibit the expenditure of federal funds on the new international arrival terminal design until the OFAB study as authorized in the House-passed immigration and border security bill is completed and security issues outlined in the study are fully vetted.

Also, who pays for the parking at the airports has recently become an issue for consternation for CBPOs. At Dulles International Airport, the Metropolitan Washington Port Authority that controls the parking at Dulles has placed the burden of parking fees on the CBP employee. Not only is this significant additional financial burden on these national security frontline employees, but the Port Authority has assigned them parking spaces that are a significant distance from their assigned positions in the terminals—over a half-hour commute from parking lot to international terminals is added to their work day.

NTEU asks that the Committee appropriate $65,000 for CBP to pay for parking fees incurred by the Port Authorities on behalf of CBP employees at Dulles International Airport, and also stipulate that CBPOs be assigned parking that doesn’t add an additional commuting burden to workers already commuting long distances in high cost areas.

Trade Operations Staffing:

When CBP was created, it was given a dual mission of not only safeguarding our nation’s borders and ports from terrorist attacks, but also the mission of regulating and facilitating international trade; collecting import duties; and enforcing U.S. trade laws. In 2005, CBP processed 29 million trade entries and collected $31.4 billion in revenue.

Section 412(b) of the Homeland Security Act of 2002 (P.L. 107-296) mandates that “the Secretary [of Homeland Security] may not consolidate, discontinue, or diminish those functions...performed by the United States Customs Service…on or after the effective date of this Act, reduce the staffing level, or reduce the resources attributable to such functions, and the Secretary shall ensure that an appropriate management structure is implemented to carry out such functions.”

When questioned on compliance with Sec. 412(b), then-CBP Commissioner Bonner stated in a June 16, 2005 letter to Representative Rangel that “While overall spending has increased, budget constraints and competing priorities have caused overall personnel levels to decline.” The bottom line is that DHS is non-compliant with Section 412(b) of the HSA. As stated in the June 16, 2005 letter, “CBP employed 1,080 non-supervisory import specialists in FY 2001 and 948 as of March 2005.”

NTEU continues to have concerns about CBP’s most recent data shortchanges how many trade operations personnel should be in place to be compliant with Section 412(b). For example, CBP most recent data shows 892 full-time, plus 21 part-time Import Specialists—913 total employed by CBP. In the Resource Allocation Model issued by the U.S. Customs Service in 2000, there were 1249 Import Specialists employed by the federal government to ensure trade compliance. The same Resource Allocation Model calls for the hiring of 240 additional Import Specialists by 2002 to maintain trade workload. CBP has stated that they need only 984 Import Specialists to be in compliance with Section 412(b). NTEU challenges that assertion and Congress in the SAFE Port Act of 2006 calls for a new Resource Allocation Model to be completed by the Agency. GAO has also been commissioned by the SAFE Port Act to conduct a study to determine if the Agency trade function is indeed being maintained. Both these reports are due later this year. NTEU asks the Committee to carefully scrutinize these studies in determining CBP trade function funding needs.

Customs revenues are the second largest source of federal revenues that are collected by the U.S. Government. The Committee depends on this revenue source to fund federal priority programs. The Committee should be concerned as to how much DHS non–compliance with Section 412(b) of the HSA costs in terms of revenue loss to the U.S. Treasury.

Import Specialist Redesign Model:

NTEU believes that the Import Specialist Redesign Model announced by CBP in October 2006 diminishes resources attributable to trade functions in violation of Section 412(b) of the HSA that prohibits the Secretary from “consolidating, discontinuing or diminishing trade functions or reducing the staffing level, or resources attributable to such functions.”

NTEU urges the Committee to look into this diminution of a valuable U.S. Government funding source and discontinue funding for further implementation of the Import Specialist Redesign Model until this compliance issue is resolved.

Textile Transshipment Enforcement:

In FY 2006, the Committee appropriated (P.L. 108-90) an additional $4.75 million for CBP to increase textile transshipment enforcement as authorized in section 352 of the Trade Act of 2002 (P.L. 107-210). Illegal textile transshipment is one form of illegal activity that occurs when false “country-of-origin” information is provided for imported goods in order to evade U.S. textile quotas and customs duties. Section 352 specifically provides for the hiring of up to 72 new CBP personnel designated to enforce the textile provisions of our international trade agreements.

NTEU suspects CBP is using these appropriated funds for textile enforcement to fill vacancies and not for dedicated new hires. It is incumbent on the Committee to now ask to what ports of entry these additional textile transshipment enforcement personnel have been assigned.

Conclusion:

Each year, with trade and travel increasing at astounding rates, CBP personnel have been asked to do more work with fewer personnel, training and resources. The more than 15,000 CBP employees represented by the NTEU are capable and committed to the varied missions of DHS from border control to the facilitation of trade into and out of the United States. They are proud of their part in keeping our country free from terrorism, our neighborhoods safe from drugs and our economy safe from illegal trade. These men and women are deserving of more resources and technology to perform their jobs better and more efficiently.

The American public expects its borders and ports be properly defended. Congress must show the public that it is serious about protecting the homeland by fully funding the staffing needs of the CBPOs at our 317 POEs. I urge each of you to visit the land, sea and air ports of entry in your home districts. Talk to the CBPOs, canine officers, and trade entry and import specialists there to fully comprehend the jobs they do and what their work lives are like. Thank you for the opportunity to submit this testimony to the Committee on their behalf.