Home Legislative Action Congressional Testimony Customs and Border Protection Issues (Senate)

Customs and Border Protection Issues (Senate)

4/06/2006

Senate Subcommittee on Homeland Security Appropriations

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Chairman Gregg, Ranking Member Byrd, 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 station 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 OF CBP AT THE PORTS OF ENTRY

The President’s FY 2007 budget proposal requests about $4.4 billion of the Department of Homeland Security’s (DHS) U.S. Customs and Border Protection. This is a 12 percent increase in CBP’s budget, but the bulk of the new money is to fund the hiring of 1,500 Border Patrol agents. For salaries and expenses for Border Security, Inspection and Trade Facilitation at the 317 Ports of Entry (POEs), the budget calls for an increase of only $32 million, adding just 21 Full Time Equivalents (FTEs).

According to the GAO, “as of June 2003, CBP has not increased staffing levels [at the POEs]” (see GAO-05-663 page 19) and that “CBP does not systematically assess the number of staff required to accomplish its mission at ports and airports nationwide or assure that officers are allocated to airports with the greatest needs…CBP is developing a staffing model…however the new model…will not be used assess optimal level of staff to ensure security while facilitating travel at individual port and port facilities, including airports. CBP officials told us that because…it is unlikely that additional inspection personnel will be forthcoming in the current budget climate…efforts to assess optimal staff levels would not be useful in the current budget environment “(pages 25-29)

GAO observes that “not identifying optimal staffing levels prevent CBP from performing workforce gap analyses, which could be used to justify budget and staffing requests.” This is information Congress needs in order to perform its oversight and appropriations function. CBP states that “absent additional resources, the only way to address these gaps would be to relocate officers…this is not a viable solution because of the costs associated with relocating CBP officers. CBP officials stated that they have not assessed overall staffing needs across ports or airports and do not plan to do so with the proposed model because they do not expect to receive any additional resources given the current budget climate.” (pages 28-29)

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 Nationalization 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 domestic terrorism, but also to make sure trade laws are enforcement and trade revenue collected.

The original deadline for completing the proposed staffing model was April 2005. NTEU asks the Committee to direct CBP not to spend any additional money on the CBP staffing model until it is designed to include overall staffing needs and to assess optimal staff levels at the 317 Ports of Entry to fulfill their mission, so that Congress will have information from CBP that justifies it’s budget and staffing request allowing Congress to adequately address its oversight and appropriations responsibilities.

CBP Staffing Shortages at the Airports:

According to GAO-05-663: International Air Passengers Staffing Model for Airport Inspections Personnel Can Be Improved, July 2005, there is much evidence that airports are experiencing staffing shortages. This report was prepared at the request of the House Subcommittee on Immigration, Border Security and Claims, Committee on Judiciary.

CBP has two overarching and sometimes conflicting goals: increasing security while facilitating trade and travel. 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).”

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 law enforcement 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 station, 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)

Staffing Shortages at the Seaports:

The Dubai Ports sale has recently put a spotlight on the issue of seaport security. The Administration states that Container Security Initiative (CSI) and the Customs-Trade Partnership Against Terrorism (C-TPAT) are ensuring that 100% of foreign cargo is being inspected for WMD or other terrorist contraband either at the foreign departure port or at the POE. According to GAO-05-557 on Container Security “CBP has developed a staffing model to determine staffing needs but has been unable to fully staff some ports…As a result, 35 percent of these shipments were not targeted and were therefore not subject to inspection overseas.” (see highlights page.)

On page 33, GAO states “CBP’s inability to staff all CSI ports to the level suggested by its staffing model and the model’s assumption that all staff should be located at the CSI ports have limited the program’s ability to target potentially high-risk shipments at some foreign seaports before they depart the United States. This problem may be exacerbated as CBP continues to expand CSI to additional overseas seaports.”

In GAO-05-466T report on Key Cargo Security Programs “several factor limit CBP’s ability to successfully target containers to determine if they are high-risk. One factor is staffing imbalances, caused by political and practical considerations, which impede CBP’s targeting efforts at CSI ports (see highlights page). On page 19, it states “CBP has not determined the number of supply chain specialists it needs or the extent to which validations are needed to provide reasonable assurance that the program is consistent with sound risk management approach to securing U.S.-bound goods.”

At port security hearings in both the House and Senate this month GAO testified that staffing issues continue to impede the effectiveness of CSI and C-TPAT.

The House-passed immigration and border security bill and the immigration and border security bill currently being debated on the floor of the Senate both authorize the hiring by CBP of 1250 new CBPOs at the POEs over the next five years. NTEU wholeheartedly supports this provision in these bills. Unfortunately, it is unclear that this legislation will become law before the end of the 109th Congress. NTEU urges the Committee to begin now in FY 2007 Appropriations legislation to add more federal dollars to increase the number of CBPOs at the POEs.

Weapons of Mass Destruction Detection Staffing:

In the FY 2007 DHS Budget $12 million and 106 positions is requested for Weapons of Mass Destruction (WMD) Detection Staffing to ensure CBP has dedicated personnel to resolve alarms from Radiation Portal Monitors (RPMs) and to conduct radiological examinations at our Nation’s busiest seaports. A total of 621 RPMs will be deployed by FY 2007, to 94 terminals within the 22 largest domestic seaports.

CBP has inferred that these new “WMD Detection Staffing” positions should be considered in CBP staffing tabulations as the same as Customs and Border Protection Officer (CBPO)? Does that mean that these WMD Detection staffing personnel will get the same training that CBPOs get at the Federal Law Enforcement Training Center (FLETC)? Will they be armed officers that are expected to have the same fungible job duties under the One Face at the Border Initiative that CBPOs have, (i.e. CBPOs are expected to move between primary passenger processing duties to secondary cargo inspection duties at the will of the port manager in the name of flexibility)? Will they have the same pay schedule as CBPOs? Or is this a completely new CBP position?

The Committee should ask these questions. The DHS budget request for WMD Detection staffing is $12 million for 53 FTEs, but the budget request for salaries and expenses for Border Security, Inspection and Trade Facilitation at the 317 POEs is $32 million, but only adds 21 FTEs.

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…”

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 provides a layered system that allows CBP security personnel to observe the travelers 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 have heard 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 thinks the Committee would not allow federal funding be spent 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 the study are fully vetted.

Also, who pays for the parking at the airports has recently become an issue for consternation for CBPOs. Both at Dulles and JFK International Airports, the Port Authorities that control the parking at these airports have 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 Authorities at these two international airports have assigned them parking spaces that are a significant distance from their assigned positions in the terminals—in both cases, over a half hour commute from parking lot to international terminals is added to their work day.

The Committee should stipulate that CBP pay for parking fees incurred by the Port Authorities on their employees and also stipulate that CBPOs be assigned parking that doesn’t add an additional commuting burden to workers that already commuting long distances in high cost areas.

Import Specialist 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.” CBP’s most recent data shows 892 full-time, plus 21 part-time Import Specialists—913 total employed by CBP

On March 30, 2006, legislation was introduced in both the House and Senate, S. 2481 and H.R. 5069, that would require the Department of Homeland Security to comply with Section 412(b) of the Homeland Security Act (P.L. 107-296).

Customs revenues are 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 cost in terms of revenue loss to the U.S. Treasury?

And second, the Committee should inquire of CBP their plans to become compliant with Section 412(b) and timeline to become compliant.

Import Specialist Redesign Model:

It has come to NTEU’s attention that Acting Commissioner Spero is in the process of reviewing the Import Specialist Redesign Model. It is our understanding this Import Specialist Redesign Model proposes to change the day-to-day operations of Import Specialists by migrating the physical verification of cargo from CBPOs to import specialists.

The Committee should be concerned that about CBP is planning to transfer some of the CBPO’s inspection duties to their unarmed commercial trade enforcement and duty collection specialists. Will this further dilute the trade and revenue functions at CBP? Will it dilute the security functions at the POEs?

What is the timeline for CBP’s development of its Import Specialist Redesign Model? How will CBP ensure that this redesign plan is in compliance with 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 possible diminution of a valuable U.S. Government funding source.

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 o f the Trade Act of 2002 (P.L. 107-210). 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. DHS appropriators also directed CBP to report not later than February 10, 2006 on how this additional funding has been used, as well as those appropriated in fiscal years 2004 and 2005, including staffing levels in fiscal years 2003 through 2006, differentiated by position. 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.

In a press release dated 2/16/06, CBP announced that it has hired 45 additional personnel to bolster U.S. textile law enforcement efforts. To date, NTEU has heard of no new textile transshipment enforcement personnel being added to the trade enforcement staff at the POEs. We do know that one of CBP’s scheduled basic import specialist training classes was cancelled last year. This year, 2006, there will be only one basic import specialist class offered in April. We also know that no one in the field has yet to meet any of these new 45 textile enforcement personnel.

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. How many of these positions are import specialist and entry specialists? Are these permanent positions?

MaxHR Funding:

NTEU continues to have concerns about funding priorities at DHS. The President is seeking an additional $41.7 million for implementation of MaxHR. This request is a 133% increase from $29.7 million in FY 2006 to $71.4 million in FY 2007 including $15 million for establishment of pay pools; $22 million in implementation and operational costs; and $4.75 million to fund the Homeland Security Labor Relations Board, the creation of which the District Court ruling has enjoined. The President’s budget funds an additional 16 FTEs to administer MaxHR.

Significant portions of DHS personnel regulations have been enjoined by the U.S. District Court ruling including the creation to the Homeland Security Labor Relations Board. Oral arguments on DHS’ appeal of this ruling are scheduled for today, April 6, 2006, with a decision not expected until later this year.

It is likely that legal activity involving the proposed pay and personnel system will continue through this year and next. How do appropriators justify this expenditure of taxpayer funds for an untested, partially illegal new personnel system when there is so much need at the frontlines in the Ports of Entry to protect the security of the American people? The Committee should look at the budget for implementing MaxHR to use instead to increase staffing at the land, sea and air ports of entry.

FLETC Sixth Day of Training Pay:

“The Committee is aware that legacy Customs inspectors and CBP officers who received basic training at FLETC between January 1, 2002, and October 1, 2004, were not compensated for the sixth day of training for each week during that period. The Committee directed the Department to report to the Committee no later than February 10, 2006, on its compliance with the recent arbitration ruling on this matter.” (Conference Report 109-241, page 43)

To date, NTEU has not aware as to whether this report has been submitted by DHS to the Committee. NTEU continues to pursue legal remedies to make CBP employees whole for their unpaid sixth day of FLETC training. CBP, however, continues to fight now two arbitration rulings rather than come to an acceptable settlement for these legacy Customs Inspectors and CBP officers.

Background on Arbitration Rulings:

1) On June 7, 2005, the arbitrator issued an award finding that legacy Customs Inspectors and Canine Enforcement Officers were covered by both the Fair Labor Standards Act (FLSA) and the Customs Officer Pay Reform Act (COPRA). The arbitrator also ruled that these employees were entitled to overtime pay under the FLSA for the unpaid sixth day of training at FLETC.

2) In this new decision, dated January 24, 2006, the arbitrator denied CBP's motion to dismiss the national grievance and granted NTEU's motion to define the remedial issues remaining before her. The arbitrator's ruling on these procedural matters will allow remedial issues concerning back pay and other damages for the sixth day of FLETC training and unpaid firearms and canine-related overtime to proceed to hearing.

NTEU seeks the Committees continued efforts to ensure that CBP complies with these arbitration rulings and that these CBP employees are made whole for their unpaid sixth day of FLETC training.

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 finding the staffing needs of the CBPOs at our 317 POEs. I urge each of you to visit the land, sea and air CBP 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.