Senate Appropriations Committee Reports FY 2009 DHS Appropriations Bill Affecting CBP and ICE

The following are highlights of the CBP- and ICE-related provisions in S. 3181, as well as the Senate Appropriations Committee's (Committee's) report for S. 3181 (S. Rept. 110-396). (See future issue of ITT for details on Transportation Security Administration, etc. provisions in S. 3181 and the accompanying report.)

Although reports such as S. Rept. 110-396 do not have statutory force and departments and agencies are not legally bound by their declarations, they do explain congressional intent, and executive branch agencies take them seriously because they must justify their budget requests annually to the Appropriations Committees.

CBP

Automated systems (including ACE). CBP automated systems would receive $511,334,000, of which not less than $316,851,000 would be for the development of the Automated Commercial Environment (ACE). $16,000,000 of the amount for CBP automated systems would be for the International Trade Data System.

Of the total amount made available, $216,851,000 would not be able to be obligated for ACE until 30 days after the House and Senate Appropriations Committees receive a report on the results to date and plans for the program from the Secretary of Homeland Security.

CBP staffing for priority trade functions. CBP's Resource Optimization Model (ROM) projects that to adequately staff the needs for priority trade functions, the optimal level of staff would be 10,625 in fiscal year 2009. However, current staffing is at least 25 percent below the optimal level. CBP has identified the greatest risk for trade is through a lack of Fines, Penalties, and Forfeiture (FP&F) Specialists and International Trade Specialists. Additionally, there is a significant shortage of chemists.

The ROM indicates an optimal level of staffing for all three positions would be 1,015 in fiscal year 2009, yet approximately only 388 of those positions are currently on board. In order to enhance the staffing of these critical positions by 10%, S. 3181 would provide an additional $4,560,000. The Committee directs CBP to provide quarterly briefings on the progress in meeting this enhanced staffing level, by position, beginning no later than 60 days after the date of enactment. Additionally, the Committee encourages CBP to include in its fiscal year 2010 budget submission a plan to address the significant shortfalls in all of these customs revenue positions.

Agriculture specialists. In FY 2007, CBP hired 179 Agricultural Specialists and plans to hire an additional 137 more in FY 2008. CBP is working in partnership with the U.S. Department of Agriculture to determine the number of additional Agricultural Specialists needed. CBP expects this effort will contribute to a sounder basis for using the workforce staffing model to determine the optimal staffing levels for Agricultural Specialists at ports-of-entry.

OR&R staffing. CBP's Office of Regulations and Rulings (OR&R) has been responsible for developing important border security regulations since the creation of CBP. Therefore, the Committee recommends increased funding to enable CBP's Regulatory Program to hire an additional seven attorneys, two economists, two paralegals, and one mission support person.

Textile transshipment enforcement. $4,750,000 would be provided for textile transshipment enforcement. The Trade Act of 2002 authorizes appropriations for the hiring of 72 positions between CBP and ICE, including import specialists, auditors, and analytic staff, and funding would be provided for these positions.

AD/CV enforcement. The Committee has ensured that there will be sufficient funds to administer the on-going requirements of Byrd Amendment distributions. The Committee directs CBP to continue to work with the Departments of Commerce and Treasury, and the Office of the U.S. Trade Representative (and all other relevant agencies) to increase antidumping/countervailing duty collections, and provide a public report on an annual basis, within 30 days of each year's distributions under the law. The Committee further directs the DHS Secretary to work with the Secretary of Commerce to identify opportunities for the Commerce Department to improve the timeliness, accuracy, and clarity of liquidation instructions sent to CBP.

Radiation Portal Monitors. $42,532,000 would be provided for inspection and detection technology to expand the number of inspectors at ports to staff radiation portal monitors (RPMs). Included in the total is $8,200,000 for operations and maintenance of RPMs.

NII Systems. The Committee is concerned that CBP is only now proposing to begin building into its base budget a program for replacing obsolete non-intrusive inspection (NII) equipment. The Committee understands CBP possesses in excess of 3,100 small scale NII systems and the funds requested in the budget will replace 284 (less than 10%) of these systems which are over 10 years old and nearing the end of their life. The Committee strongly encourages CBP to develop a fully funded, long-term replacement strategy for these small-scale NII systems.

Border Fencing, Infrastructure, Technology, Etc. S. 3181 would provide $775,000,000 for expenses for customs and border protection fencing, infrastructure, and technology. The DHS Secretary would be required to submit to the House and Senate Appropriations Committees an expenditure plan within 90 days of enactment for a program to establish and maintain a security barrier along the border of the U.S. of fencing and vehicle barriers, where practicable, and other forms of tactical infrastructure and technology that includes certain specified information.

S. 3181 also states that for FY 2010 and thereafter, CBP's annual budget submission for "construction" must include a detailed 5-year plan for Federal land border port of entry projects with a yearly update of total projected future funding needs.

The Committee strongly supports the President's goal of a long-term land border port of entry modernization program, to begin the renovation and alteration of CBP-owned land border inspection facilities. Additionally, the Committee directs CBP to submit a plan, by port of entry, with milestones of when work is planned and the type of work to be done.

WHTI. The Western Hemisphere Travel Initiative (WHTI) is scheduled to become fully operational on June 1, 2009, assuming all of the previously enacted legislative conditions have been met. In order to ensure that progress continues to be made, the Committee notes that S. 3181 would provide a total of $139,973,000. The Committee directs the Office of Policy to provide quarterly briefings on the status of WHTI implementation beginning no later than 30 days after S. 3181's date of enactment.

US-VISIT. The Committee has been a strong supporter of the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) program and recognizes the benefits it has brought to CBP's ability to process international visitors at U.S. ports of entry while improving national security at the same time. S. 3181 would provide $62,800,000 for this activity.

Salaries and expenses. $7,536,314,000 would be appropriates for CBP salaries and expenses for the enforcement of laws relating to border security, immigration, customs, agricultural inspections and regulatory activities related to plant and animal imports, etc.

ICE

Commercial Fraud and IPR. The ICE Office of Investigations is required to identify, target, counter, and dismantle methods and vulnerabilities exploited by criminal organizations engaged in highly profitable trade crimes, such as trafficking counterfeit merchandise and pharmaceuticals. It also supports CBP and the Food and Drug Administration's efforts to target, interdict, and investigate the importation of substandard, tainted, and counterfeit products being imported from China. The Committee states that S. 3181 would provide $4,600,000.

Investigative Operations, Forced Child Labor. S. 3181 would provide ICE with $4,932,210,000 for enforcement of customs and immigration laws, detention and removals, investigations, etc. Of that amount, S. 3181 would provide $7,500,000 for conducting special operations under 19 USC 2081 (Undercover investigative operations of Customs Service) and provide $15,770,000 for activities to enforce laws against forced child labor in FY 2009.

National Security and Critical Infrastructure. As DHS' primary investigative authority, ICE recognizes the need to increase its national security and critical infrastructure investigations at ports of entry and other sensitive facilities that attract terrorists, illegal aliens, and undocumented workers. S. 3181 would provide $11,800,000 to support hiring 53 new Special Agents and 19 support personnel. These funds would support 12 investigative program areas, such as Arms and Strategic Technology Investigations, Identity and Benefit Fraud, Financial Investigations, the Forensic Document Lab, Asset Forfeiture, and Human Smuggling and Trafficking.

Cyber-Crime. Many ICE investigations and prosecutions are largely dependent upon the ability of the Cyber Crime Center to process and analyze data obtained from seized electronic devices and digital media. S. 3181 would provide $10,700,000 to, among other things, provide staffing to increase investigations of cyber-related crimes involving identity and benefit fraud, child exploitation, and money laundering.

Outbound Enforcement. With the explosive growth of drug cartel-related violence on the Southwest border, ICE recognizes the need to stem the illegal procurement and export of sophisticated U.S. technology and weapons. The requested funds would provide for five Special Agents to increase investigations that support outbound enforcement activities as well as support State and local law enforcement by aggressively investigating all aspects of local criminal activities exploiting vulnerabilities at the Southwest border. For these activities, the report notes that S. 3181 would provide $1,000,000.

¹19 USC 1675c (the Byrd Amendment) was repealed by section 7601 of the Deficit Reduction Act of 2005. However, the effect of the repeal is delayed for several years as Section 7601(b) states that duties collected on an entry filed before October 1, 2007 shall be distributed as if 19 USC 1675c had not been repealed. Since the duty on an entry is not available for distribution until the entry is liquidated and collected pursuant to the direction of the Commerce Department, the distribution process will continue until all entries made before October 1, 2007, are liquidated and the duties are collected. Because of the statutory constraints in the assessments of AD and CV duties, the distribution process will be continued for an undetermined period; however, the amount of money available for distribution can be expected to diminish over time.

S. 3181 available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3181pcs.txt.pdf.

Senate Appropriations Committee report (S. Rept. 110-396) available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_reports&docid=f:sr396.110.pdf.