FY 2009 Department Of Homeland Security Appropriations

4/28/2008

Subcommittee On Homeland Security Of The Senate Appropriations Committee

Chairman Byrd, Ranking Member Cochran, 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 22,000 Customs and Border Protection (CBP) Officers and trade enforcement specialists who are stationed at 327 land, sea and air ports of entry (POEs) across the United States. CBP employees make up our nation’s first line of defense in the wars on terrorism and drugs. In addition, CBP trade compliance personnel enforce over 400 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, expecting to collect an estimated $29 billion in federal revenue next year according to FY 2009 revenue estimates.

First, NTEU would like to thank the Committee for including language in its FY 2008 Department of Homeland Security (DHS) Appropriations bill that provides an enhanced retirement benefit to all eligible CBP Officers to address the concern that CBP was losing valuable law enforcement personnel to other agencies due to the disparity in retirement pay. The final funding bill included $50 million to cover the FY 2008 costs associated with this enhanced retirement benefit. Nothing that the Committee has done since the creation of the Department has had a more positive effect on the morale of the CBP Officer.

NTEU was alarmed that the President in his FY 2009 budget request sought to repeal this new law and rescind the $50 million appropriated in FY 2008 to begin this new program. NTEU members are grateful that, despite the President’s request, Congress remains firmly committed to this new program and fully supportive of funding it.

FUNDING FOR DHS HUMAN RESOURCES MANAGEMENT SYSTEM

NTEU continues to have concerns about funding priorities at DHS. The President’s 2009 Budget request includes an increase of $29.3 million for the Office of Chief Human Capital from $18.8 million in FY 2008 to $48.1 million in FY 2009 to fund the DHS personnel system. In a number of critical ways, the personnel system established by the Homeland Security Act and the subsequent regulations issued by 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 (P.L. 107-296), it granted the new department very broad discretion to create new personnel rules (5 U.S.C. 9701). 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 July 2005, a District Court ruled illegal the labor relations portion of the proposed DHS personnel regulations. The Appellate Court rejected DHS’s appeal of this District Court decision and DHS declined to appeal the ruling to the Supreme Court.

Title 5, Sec. 9701(h) states that, after passage of 5 years following the completion of the “transition period,” DHS/OPM will have no authority to issue regulations pertaining to the new human resource management system (formerly called MaxHR) authorized by Sec. 9701, including regulations that would modify, supersede, or terminate any regulations that were already issued. In other words, the regulations in place at the end of the 5-year period would stay in place and no new regulations could be issued without new statutory authority.

Right now, DHS drafted regulations are in place for adverse actions, appeals, performance management, and pay and classification. Assuming nothing changes between now and the end of the 5-year period (January 2009), the adverse action, appeals, performance management, pay, and classification regulations would be frozen in place and remain applicable.

NTEU has the following concerns about the remaining MaxHR regulations and requests that no funding be appropriated to implement any part of the regulations promulgated pursuant to Title 5, Section 9701.

Classification, Pay, and Pay Administration (Subparts B and C) Classification, Pay, and Pay Administration (Subparts B and C)

• Secretary has final say over allocation of pay between performance based pay and across-the- board General Schedule pay;

• Pay-for-performance schemes entail significant risk of discrimination in violation of Title VII and the Age Discrimination in Employment Act;

• Proposed pay system is vague and extremely subjective and will undermine employee morale.

Performance Management (Subpart D)

• DHS’ proposed Performance Management regulations abandon Title 5, Chapter 43’s requirement that a reasonable performance improvement period (PIP) be provided before imposing an adverse action based on unacceptable performance;

• A PIP provides employees with a chance for rehabilitation and, if successful, obviates the need for the employer to incur the time and expense of hiring and training a replacement.

Adverse Actions and Appeals (Subparts F and G)

• Proposed regulations unnecessarily extend the current one year probationary period;

• Includes no independent review of Mandatory Removal Offenses—Secretary appoints panel;

• Unreasonably shortens response time for adverse action appeals;

• Includes mitigation standards that are impossible to meet, but have been ruled “unripe” by the District Court.

Despite Congress’ clear intent to stop implementation of the failed DHS Human Resources Management System, DHS persists in seeking funds to implement these personnel regulations. NTEU urges the Appropriations Committee to ensure that no funding can be expended in FY 2009 to implement this failed, discredited personnel program.

CBP STAFFING AT THE PORTS OF ENTRY

CBP Officer and CBP Agriculture Specialists Staffing: CBP’s own staffing model, completed and delivered to Congress last summer, concludes that the agency needs to hire 1,600 to 4,000 more CBP Officers and CBP AS positions (Washington Post, November 6, 2007) in order to perform its dual anti-terrorism and trade and travel facilitation mission. The President, however, requested funding to hire only 539 additional CBP Officers and no additional CBP AS hires in his FY 2009 Budget, far short of the 4,000 additional hires needed.

Also, according to GAO (GAO-08-219, page 31), CBP's staffing model "showed that CBP would need up to several thousand additional CBP Officers and agriculture specialists at its ports of entry." And GAO testimony issued on October 3, 2007 stated that, "as of mid-August 2007, CBP had 2,116 agriculture specialists on staff, compared with 3,154 specialists needed, according to staffing model." (See GAO-08-96T page 1.) This is unacceptable. CBP needs to dramatically increase Agriculture Specialist staffing levels.

NTEU also recommends that Congress, through oversight and statutory language, make clear that the agricultural inspection mission is a priority and require DHS to report to them on how it is following U.S. Department of Agriculture procedures on agriculture inspections. The report should include wait times for clearing agricultural products and what measures could be implemented to shorten those wait times.

NTEU calls on the Committee to fund staffing levels for CBP Officers and CBP Agriculture Specialists at the ports of entry as specified in CBP’s own workforce staffing model.

CBP Trade Operations Staffing: 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.”

In Section 402 of the SAFE Port Act, Congress mandated CBP to prepare a Resource Allocation Model (RAM) to determine optimal staffing levels required to carry out the commercial operations of CBP, including commercial inspection and release of cargo. The RAM was delivered to Congress in July 2007 and proposes increases from the current floor of 2, 263 customs revenue function employees, which includes Fine, Penalty and Forfeiture Specialists, Import Specialists, International Trade Specialists, Customs Attorneys, Customs Auditors, Chemists and CBP Technician positions, but notes that the Model is not tied to any specific budget request and does not reflect the Department’s, CBP’s, or the President’s funding priorities.

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 CBP trade enforcement staffing shortages cost in terms of revenue loss to the U.S. Treasury.

NTEU urges the Committee to ensure that CBP trade enforcement personnel is increased to staffing levels sufficient to ensure effective performance of customs revenue functions as determined by CBP in its own July 2007 Trade Resource Allocation Model.

ONE FACE AT THE BORDER

In 2006, Congress requested that the Government Accountability Office(GAO) evaluate the “One Face at the Border” initiative and its impact on legacy customs, immigration and agricultural inspection and workload. GAO conducted its audit from August 2006 through September 2007 and issued its public report, Border Security:

Despite Progress, Weaknesses in Traveler Inspections Exist at Our Nation's Ports of Entry (GAO-08-219). An unredacted version of this report is available only to Congress.

The conclusions of the public report echo what NTEU has been saying for years--CBP needs several thousand additional CBP Officers and Agriculture Specialists, staffing challenges force ports to choose between port operations and providing critical training necessary for employees to do their jobs, and not having sufficient staff contributes to morale problems, fatigue, and safety issues for CBP Officers and CBP Agriculture Specialists. It is clear that CBP sees its “One Face at the Border” initiative as a means to “increase management flexibility” without increasing staffing levels.

NTEU again calls for Congress to end the failed One Face at the Border experiment and ensure that expertise is retained with respect to customs, immigration, and agriculture inspection functions.

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 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 327 POEs. Thank you for the opportunity to submit this testimony to the Committee on their behalf.