The Need for More Resources for CBP and ICE
Senate Committee on Homeland Security and Governmental Affairs
Chairman Johnson, Ranking Member McCaskill, distinguished members of the Committee; thank you for the opportunity to deliver this testimony. As President of the National Treasury Employees Union (NTEU), I have the honor of leading a union that represents over 25,000 Customs and Border Protection (CBP) Officers, Agriculture Specialists and trade enforcement personnel stationed at 328 land, sea and air ports of entry (POE) across the United States (U.S.) and 16 Preclearance stations currently in Ireland, the Caribbean, Canada and United Arab Emirates airports.
In addition to CBP’s trade and travel security, processing and facilitation mission, CBP employees at the ports of entry are the second largest source of revenue collection for the U.S. government. In 2016, CBP processed more than $2.2 trillion in imports and collected more than $44 billion in duties, taxes, and other fees. Thank you for this opportunity to address ongoing issues that affect CBP in fulfilling its critical mission—hiring and funding challenges that contribute to ports of entry being chronically understaffed.
There is no greater roadblock to legitimate trade and travel efficiency and stopping illicit trafficking in people, drugs, illegal weapons and money than the lack of sufficient staff at the ports and the current CBP Officer shortage is staggering. There is an existing vacancy rate of nearly 1,400 funded CBP Officers at the ports and, according to CBP’s analytic workload staffing model (WSM), an additional 2,100 CBP Officers need to be funded and hired in order to meet 2017 staffing needs—translating into a total CBP Officer staffing shortage of 3,500 today.
The economic cost of this shortage is also staggering. For every 33 additional CBP Officers hired, the U.S. can potentially gain over 1,000 private sector jobs. If Congress fully staffed the ports with the needed 3,500 additional CBP Officers, 106,000 private sector jobs could be created. Understaffed ports lead to long delays in travel and cargo lanes and also create a significant hardship for frontline employees. Both involuntary overtime and involuntary work assignments far from home disrupt CBP Officers’ family life and destroy morale. Ongoing CBP staffing shortages directly contribute to CBP’s perennial low ranking in federal employee workforce satisfaction surveys.
As you know, the President’s January Executive Order calls for hiring 5,000 additional Border Patrol Agents (BPAs) and 10,000 new Immigration and Customs Enforcement (ICE) Agents, but does not ask for one additional CBP officer new hire, despite the fact that CBP officers at the ports of entry in 2016 interdicted over 274,000 undocumented immigrants and seized over 600,000 pounds of illegal drugs, and over $62 million in illicit currency, while processing over 390 million travelers and $2.2 trillion in imports through the ports.
CBP employees at the ports of entry are not only the frontline for illegal trade and travel enforcement, but their role of facilitating legal trade and travel is a significant economic driver for private sector jobs and economic growth (see attachment 1.) According to CBP Fiscal Year (FY) 2013 data, for every 1,000 CBP officers hired the following estimated outcomes could be expected:
$2 billion increase in Gross Domestic Product (GDP)
$642 million in opportunity costs saved (the quantification of time that a traveler could be using for other purposes than waiting in line, such as working or enjoying leisure activities)
33,148 annual jobs added
If the full 3,500 CBP Officers were funded and hired according to the same study, the impact could be as high as:
$7 billion increase in GDP
$2 billion in opportunity costs saved
115,000 annual jobs added
Noting the positive impact of hiring additional CBP officers, it is troubling that even though Congress actually appropriated funding to hire 2,000 additional CBP Officers in FY 2014, CBP has only realized a net gain of less than 600 Officers as of January 2017, due to attrition and the amount of time it takes to onboard new CBP Officers.
CBP Officer Hiring Challenges
NTEU continues to have significant concerns about the slow pace of hiring at CBP. CBP has struggled to fill the initial 2,000 positions Congress authorized in 2014. One factor that may be hindering hiring is that CBP is not utilizing available pay flexibilities, such as recruitment awards and special salary rates, to incentivize new and existing CBP Officers to seek vacant positions at these hard to fill ports, such as Nogales.
Another major impediment to fulfilling CBP’s hiring goal is that CBP is the only federal agency with a congressional mandate that all front-line officer applicants receive a polygraph test. Two out of three applicants fail its polygraph—about 65 percent--more than double the average rate of eight law enforcement agencies according to data provided to the Associated Press. The eight law enforcement agencies that supplied information showed an average failure rate of 28 percent. As an example, the U.S. Drug Enforcement Administration failed 36 percent of applicants in the past two years.
NTEU commends Congress for including in the FY 2017 Defense authorization bill a provision that authorized the CBP Commissioner to waive polygraph examination requirements for certain veterans applying for CBP job openings. NTEU also commends the Chairman, and Senators McCain (R-AZ) and Flake (R-AZ), for introducing S. 595, a bill that expands the authority to waive polygraph examinations to expand exemptions for veterans and allow exemptions for existing state and local law enforcement officers who apply for these positions at CBP.
NTEU does not seek to reduce the standards used by CBP in their hiring process, but believes that there is a problem with how the polygraph is currently administered. We ask for CBP to review its current polygraph policy to understand why CBP is failing applicants at a much higher rate than individuals applying to work at other federal law enforcement agencies. Also, because ICE does not require polygraphs for job applicants, it is likely that CBP will not be competitive with ICE in attracting new hires.
Improving the current polygraph program should help in expediting the CBP Officer hiring process so that the existing 1,400 vacancies can be filled and CBP can move forward with funding and hiring the 2,107 additional Officers as required by the WSM. NTEU also recommends that CBP allow immediate polygraph re-testing opportunities to those with a No Opinion or Inconclusive result, including those with a No Opinion Counter Measures finding.
Lastly, the best recruiters are likely current CBP Officers. Unfortunately, morale continues to suffer because of staffing shortages. In addition to being overworked due to excessive overtime requirements, temporary duty assignments are a major drag on employees, especially those with families. Based on their experiences, many officers are reluctant to encourage their family members or friends to seek employment with CBP. I have suggested to CBP leadership that they look at why this is the case.
CBP Officer Overtime
Also due to this ongoing current staffing shortage of over 3,500 CBP Officers, CBP Officers nationwide are working excessive overtime to maintain basic port staffing. Currently, CBP Officer overtime pay is funded 100% through user fees and is statutorily capped at $35,000 per year. All CBP Officers are aware that overtime assignments are an aspect of their jobs. However, long periods of overtime hours can severely disrupt an officer’s family life, morale and ultimately their job performance protecting our nation.
Because of the ongoing staffing shortages, CBP Officers are required to regularly work overtime which results in individual Officers hitting the $35,000 overtime cap very early in the fiscal year. This leaves no overtime funding available for peak season travel, holidays and other times when CBP Officers are expected to work overtime resulting in critical staffing shortages in the third and fourth quarter of the fiscal year that usually coincide with peak travel at the ports.
At many ports, CBP has granted overtime exemptions to over one half of the workforce to allow managers to assign overtime to Officers that have already reached the statutory overtime cap, but cap waivers only force CBP Officers already working long daily shifts to continue working these shifts for more days. Officers are required to come in hours before their regular shifts, to stay an indeterminate number of hours after their shifts (on the same day) and compelled to come in for more overtime hours on their regular days off as well. Both involuntary overtime--resulting in 12 to 16 hour shifts, day after day, for months on end--and involuntary work assignments far from home disrupt CBP Officers’ family life and erode morale.
There are some CBP Officers who want to work as much overtime as possible, but are thwarted from this goal because of the $35,000 cap on overtime. Last Congress, the House Homeland Appropriations Committee approved a raise of the overtime cap to $45,000, but the Senate did not include this provision in its FY 2017 appropriations bill. Neither bill made it to the floor in either the House or Senate.
NTEU supports raising the annual overtime cap to $45,000 and asks Congress to add this provision to its FY 2018 appropriations legislation.
Temporary Duty Assignments at Southwest Land Ports of Entry
Due to CBP’s ongoing hiring delays, CBP has been diverting CBP Officers from other air, sea and land ports to the severely short-staffed Southwest land ports, such as the San Ysidro land POE (see attachment 2.) Since 2015, CBP has diverted Officers from their assigned ports to San Ysidro and more recently to Nogales POEs for 90-day temporary duty assignments (TDYs.) In November 2016, CBP issued an updated TDY solicitation that directs 14 CBP Field Offices to provide 200 CBP Officers for TDYs to the San Diego and Tucson Field Office. For example, in this solicitation, CBP directed the Detroit Field Office to send 7 CBP Officers to the San Diego Field and 6 CBP Officers to the Tucson Field Office from January 9 through April 7, 2017. To encourage volunteers for these TDYs and avoid forced TDYs, NTEU suggests Congress ask CBP to supplement the TDY solicitation to include:
The size of the TDY pool should be immediately increased by including non-bargaining unit personnel such as qualified Headquarters staff, supervisors, and other employees on special teams such as the Tactical Terrorism Response Team and the Strategic Response Team, and by including all Officers who have graduated from the Federal Law Enforcement Training Center and who have received a sufficient amount of post-academy training;
CBP should schedule TDYs in such a way that the supplemental staffing through TDYs remains constant, so there is not a gap between the departure of one round of TDYs and the arrival of the next;
CBP should establish an advertised cash award for individuals who volunteer for a TDY and should offer available incentives such as student loan repayments, overtime cap waivers, and home leave;
A surplus of volunteers for a TDY from one Field Office should be allowed to make up for a shortage of volunteers in another Field Office; and
Approved leave should continue to be allowed during a TDY.
Impact of Staffing Shortages
As cited in a 2008 GAO report, "[CBP] officers and managers told us that not having sufficient staff contributes to morale problems, fatigue, lack of backup support and safety issues when officers inspect travelers--increasing the potential that terrorists, inadmissible travelers and illicit goods could enter the country." (See GAO-08-2 19, page 7.)
"Due to staffing shortages, ports of entry rely on overtime to accomplish their inspection responsibilities. Double shifts can result in officer fatigue…officer fatigue caused by excessive overtime negatively affected inspections at ports of entry. On occasion, officers said they are called upon to work 16-hour shifts, spending long stints in primary passenger processing lanes in order to keep lanes open, in part to minimize traveler wait times. Further evidence of fatigue came from officers who said that CBP officers call in sick due to exhaustion, in part to avoid mandatory overtime, which in turn exacerbates the staffing challenges faced by the ports." (See GAO-08-219, page 33.)
These impacts, as reported to Congress by GAO, have changed little as CBP Officer staffing continues to lag far behind pedestrian, vehicle and commercial traffic volume at the ports. In fact, with 1,400 vacancies and 2,100 CBP Officer positions yet to be authorized and funded, the situation is even worse today.
Staffing shortages have also reduced the number of CBP Officers available to conduct more in depth secondary inspections. In the past, there were three inspectors in secondary processing for every one inspector in primary processing. Now there is a one to one ratio.
Without adequate personnel at secondary, wait times increase and searches are not done to specification. This is a significant cargo security issue. For example, a full search of one vehicle for counterfeit currency will take two officers on average a minimum of 45 minutes. Frequently, only one CBP Officer is available for this type of search and this type of search will then take well over an hour.
Ongoing staff shortages directly contribute to CBP’s perennial ranking at the very bottom of the Partnership for Public Service’s “Best Places to Work” Survey--291 out of 305 agency subcomponents on the latest survey.
Diversion of Customs User Fees
In addition to appropriated funding, CBP collects customs user fees which include fees authorized by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) to recover certain costs incurred for processing, among other things, air and sea passengers, and various private and commercial land, sea, air, and rail carriers and shipments. The source of these user fees are commercial vessels, commercial vehicles, rail cars, private aircraft, private vessels, air passengers, sea passengers, cruise vessel passengers, dutiable mail, customs brokers and barge/bulk carriers.
COBRA fees are deposited into the Customs User Fee Account and are designated by statute to pay for services provided to the user, such as 100% of inspectional overtime for passenger and commercial vehicle inspection during overtime shift hours. Of the 23,775 CBP Officers currently funded, customs user fees fund 2,859 full-time equivalent CBP Officers.
In addition to the ongoing staffing shortage of over 1,400 CBP Officer funded positions, CBP estimates that it would need an additional 2,107 CBP Officers, over and above the 2,000 Officers funded in FY 2014, through FY 2017 to meet optimal staffing. In the Administration’s past budget submission, CBP proposed to pay for these additional Officers with a $2 increase in both the immigration and customs user fees. NTEU reiterates that any increases to the Customs User Fee Account should be properly used for much-needed CBP staffing and not diverted to unrelated projects and should not result in any reduction in CBP appropriated funding.
The highway bill enacted into law in 2015, indexed customs user fees to inflation, but diverted this increase in fees to pay for infrastructure projects and not to CBP Officer pay and staffing, as intended. Indexing customs user fees to inflation raises $1.4 billion over ten years-creating a $140 million per year funding stream that could have helped pay for the hiring of additional CBP Officers to perform CBP’s national security, law enforcement and trade and travel facilitation missions.
By diverting this fee, while $140 million a year in additional customs user fees are still being collected, CBP is not receiving one additional dime to fund much needed new CBP Officer personnel needed to provide inspection and enforcement services to the users of these services.
On February 1, 2017, Senator Deb Fischer (R-NE) introduced a bill that diverts the first $21.4 million of annual customs user fees collected to the Highway Trust Fund beginning in 2020. NTEU strongly opposes any attempts by Congress to raid customs user fees to pay for infrastructure projects.
If Congress is serious about border security, wait times, international trade, travel enforcement, and job creation, Congress must reject any further attempts to divert custom user fees to fund other programs and restore the use of the fees collected from indexing to inflation to their original purpose.
Agriculture Specialist Staffing
CBP employees also perform critically important agriculture inspections to prevent the entry of animal and plant pests or diseases at ports of entry. For years, NTEU has championed the CBP Agriculture Specialists’ Agriculture Quality Inspection (AQI) mission within the agency and has fought for increased staffing to fulfill that mission. The U.S. agriculture sector is a crucial component of the American economy generating over $1 trillion in annual economic activity. According to the U.S. Department of Agriculture, foreign pests and diseases cost the American economy tens of billions of dollars annually.
NTEU believes that staffing shortages and lack of mission priority for the critical work performed by CBP Agriculture Specialists, CBP agriculture detector dog teams and CBP Technicians assigned to the ports is a continuing threat to the U.S. economy.
NTEU worked with Congress to include in the recent CBP Trade Facilitation and Enforcement Act (P.L. 114-125) a provision that requires CBP to submit, by the end of February 2017, a plan to create an agricultural specialist career track that includes a “description of education, training, experience, and assignments necessary for career progression as an agricultural specialist; recruitment and retention goals for agricultural specialists, including a timeline for fulfilling staffing deficits identified in agricultural resource allocation models; and, an assessment of equipment and other resources needed to support agricultural specialists.”
CBP’s FY 16 Agriculture Resource Allocation Model (AgRAM), shows a need for an additional 631 frontline CBP Agriculture Specialists and supervisors to address current workloads through FY 2017; however, even with the 2016 increase in AQI user fees, CBP only will fund a total of 2,414 CBP Agriculture Specialist positions in FY 2017, not the 3,045 called for by the AgRAM.
Because of CBP’s key mission to protect the nation’s agriculture from pests and disease, NTEU urges the Committee to exempt CBP Agriculture Specialist positions from the hiring freeze and authorize the hiring of these 631 CBP Agriculture Specialists to address this critical staffing shortage that threatens the U.S. agriculture sector.
CBP Canine Program
The CBP Canine Program is also critical to CBP’s mission. The primary goal of the CBP Canine Program is terrorist detection and apprehension. The working CBP canine team is one of the best tools available to detect and apprehend persons attempting entry to organize, incite, and carry out acts of terrorism. The Canine Program's secondary goal is detection and seizure of controlled substances and other contraband, often used to finance terrorist and/or criminal drug trafficking organizations.
Currently, there are 1,500 authorized canine teams but, as with all CBP resources, there is a shortage of canine teams at the ports of entry. At one high-volume southwest border port, NTEU was told that they only have 24 of the 38 authorized canine teams. By CBP's own allocation, this port is short 14 dogs and handlers. NTEU supports Congress fully funding and staffing the CBP canine detection program.
Reimbursable Service Agreements
In recent years, in order to find alternative sources of funding to address serious CBP Officer and Agriculture Specialist staffing shortages, CBP received authorization and has entered into Reimbursable Service Agreements (RSAs) with the private sector as well as with state and local governmental entities. These stakeholders reimburse CBP for additional inspection services including overtime pay and the hiring of new CBP Officer and Agriculture Specialist personnel that in the past have been paid for entirely by user fees or appropriated funding. According to CBP, since the program began in 2013, CBP has entered into agreements with 36 stakeholders, providing more than 106,000 additional processing hours for incoming commercial and cargo traffic.
The Cross-Border Trade Enhancement Act signed into law on December 16, 2016, amended the Homeland Security Act of 2002 to expand CBP’s RSA program by making CBP’s ability to enter into RSAs permanent; removing the annual limit on the number of agreements at air ports of entry; and allowing small air ports of entry with fewer than 100,000 international passenger arrivals annually to offset CBP for the salaries and expenses of up to five full-time officers.
NTEU’s RSA Concerns
NTEU believes that the RSA program would be entirely unnecessary if Congress, when it authorized CBP user fees collected to be indexed to inflation, had provided that the $140 million a year funding stream be used to increase CBP overtime, staffing and other resources, as set forth in existing statute. NTEU also believes that the RSA program is a band aid approach and cannot replace the need for Congress to either appropriate new funding or authorize an increase in customs and immigration user fees to adequately address CBP staffing needs at the ports.
Further, NTEU strongly believes that CBP should not enter into a RSA if it would negatively impact or alter services funded under any Appropriations Acts, or services provided from any Treasury account derived by the collection of fees. RSAs simply cannot replace CBP appropriated or user fee funding--making CBP a “pay to play” agency. NTEU remains concerned with CBP’s new Preclearance expansion program that also relies heavily on “pay to play”.
NTEU also believes that the use of RSAs to fund CBP staffing shortages raises significant equity and other issues, which calls for an engaged Congress conducting active oversight.For example:
How does CBP ensure that RSAs are not only available to ports of entry with wealthy private sector partners? (When RSAs were first considered, there was a proposal to require 30% of the total RSA funds collected be reserved for ports with greatest need, not just those that have partners with the greatest ability to pay.)
How does CBP ensure that RSA funds pay for the hiring of new CBP Officer and Agriculture Specialist personnel and are not simply used to pay for relocating existing CBP personnel from other ports (robbing from Port A to staff Port B without hiring additional staff)?
How does CBP ensure a long-term public-private funding stream? (When RSAs were first considered, there was a proposal to have RSA pay up front for ten years over 3 installments.)
Ratio of Supervisors to Frontline Personnel
Another concern is that CBP continues to be a top-heavy management organization. In terms of real numbers, since its creation, the number of new managers has increased at a much higher rate than the number of new frontline CBP hires. CBP’s own FY 15 end of year workforce profile (dated 10/3/15),shows that the Supervisor to frontline employee ratio was 1 to 5.6 for the total CBP workforce, 1 to 5.7 for CBP Officers and 1 to 6.6 for CBP Agriculture Specialists.
It is NTEU’s understanding that nearly 1,000 CBP Officers are serving either at CBP headquarters or non-Office of Field Operations locations. This means that nearly 4,000 CBP Officers are serving in supervisory positions.
The tremendous increase in CBP managers and supervisors has come at the expense of national security preparedness and frontline positions. Also, these highly paid management positions are straining the CBP budget. CBP’s top heavy management structure contributes to the lack of adequate staffing at the ports, excessive overtime schedules and flagging morale among the rank and file.
FY 2017 Supplemental Appropriations and FY 2018 Budget Requests
The Administration released its FY 2018 budget submission to Congress that recommends $44.1 billion in discretionary budget authority for DHS. This is an increase of $2.8 billion or 6.8 percent over the 2017 annualized Continuing Resolution level.
The bill requests $314 million to recruit, hire and train 500 new Border Patrol Agents and 1,000 new Immigration and Customs Enforcement Agents and support personnel. There is no mention of new funding to hire additional CBP Officers at the ports of entry.
In addition to the FY 2018 budget request, the Administration submitted a $30 billion supplemental appropriations request for the remainder of FY 2017. This appropriations request would provide an additional $3 billion for DHS implementation of the President’s January 25, 2017 “Border Security and Immigration Enforcement Improvements” Executive Order. Of this $3 billion increase, $1.4 billion will be used to fund planning, design and construction of a physical wall along the southern border, $1.2 billion to increase immigration detention and removal facilities, and $286 million for CBP’s border surge operations. The remainder of the $3 billion supplemental appropriations request will be used to fund other programs related to meeting the goals of the President’s January 25 EO
NTEU is asking Congress to also prioritize and fund CBP staffing at the nation’s air, sea and land ports by appropriating additional funding in the final months of FY 2017 and in the FY 2018 DHS appropriations bill to fully meet CBP staffing, resource and new mission needs at the 328 U.S. ports of entry.
To address the dire staffing situation at the Southwest land ports, as well as other staffing shortages around the country, it is clearly in the nation’s interest for Congress to authorize and fund an increase in the number of CBP Officers, CBP Agriculture Specialists and other CBP employees as stipulated in CBP’s WSM.
Over the years, NTEU has worked with Congress on a variety of proposals that would increase CBP’s funding to support additional personnel, as well as to address other hiring challenges that create barriers to adding staff in a timely and efficient manner. For instance, we are hopeful that the recently enacted NTEU-supported legislation that allows recent military personnel to be hired as CBP Officers without undergoing a polygraph will result in an increase in new hires.
In order to achieve the long-term goal of securing the proper staffing at CBP to address workloads, NTEU recommends that Congress take the following actions:
Fix the broken and segmented hiring process;
Address the reason for excessive (60%) applicant polygraph failures;
Fill 1,400 CBP Officer current vacancies;
Fund the additional 2,100 CBP Officer needed new hires;
Fund 631 CBP Agriculture Specialists needed new hires;
Restore recruitment and retention awards, and other incentives;
Raise the yearly CBP Officer overtime cap from $35,000 to $45,000; and
Restore cuts in mission support personnel that will free CBP Officers from performing administrative duties such as payroll processing, data entry and human resources to increase the numbers available for trade and travel security and facilitation.
Congress should also redirect the recently enacted increase in customs user fees from offsetting transportation spending to its original purpose of providing funding for CBP Officer staffing and overtime and oppose any legislation to divert additional fees collected to other uses or projects.
The employees I represent are frustrated and their morale is indeed low. These employee work hard and care deeply about their jobs. The more than 25,000 CBP employees represented by NTEU are proud of their part in keeping our country free from terrorism, our neighborhoods safe from drugs, and our economy safe from illegal trade, while ensuring that legal trade and travelers move expeditiously through our air, sea and land ports, but frontline CBP Officers and Agriculture Specialists at our nation’s ports of entry need relief. These men and women are deserving of more staffing and resources to perform their jobs better and more efficiently.
Thank you for the opportunity to deliver this testimony to the Committee on their behalf.