House-Passed FY 2010 DHS Appropriations Conference Report (Part II - TSA, ICE, Etc.)

The Senate is scheduled to consider the conference report on October 20, 2009, and passage (agreement) is expected.

(The House and Senate had earlier passed different versions of H.R. 2892. A House-Senate conference was held to resolve the differences between the two versions, which resulted in one bill - the conference report for H.R. 2892. House and Senate conferees filed the H.R. 2892 conference report on October 13, 2009.)

This is Part II of a two-part series of summaries on the H.R. 2892 conference report and its accompanying Joint Explanatory Statement¹, and highlights the appropriations and related instructions for TSA, ICE, etc. (See ITT's Online Archives or 10/16/09 news, 09101605, for Part I regarding CBP.)

ICE Funding for Forced Child Labor, SW Border, and Textile Enforcement Activities

The conference report would provide over $5 billion in funding to DHS' Immigration and Customs Enforcement (ICE) for necessary expenses for enforcement of immigration and customs laws, detention and removals, and investigations, including funding for activities in fiscal year 2010 to enforce laws against forced child labor.

SW border strategy. The conferees note the vigor with which ICE has rapidly devoted resources toward the enhancement of law enforcement efforts along the Southwest border in response to the increase in cross-border crime in fiscal year 2009. While very supportive of these efforts, the conferees believe ICE must examine the broader resource implications and sustainability of this new operational posture in the context of achieving the objectives of the National Southwest Border Counternarcotics Strategy, released on June 5, 2009. ICE is directed to brief the Committees no later than December 15, 2009, on its efforts to effectively align resources to the Strategy's goals for border enforcement.

Textile transshipment enforcement. The conferees note that the conference report includes funding for textile transshipment enforcement, as authorized by Trade Act of 2002. Concurrent with its fiscal year 2011 budget submission, the conferees instruct ICE to report on this activity.

TSA Funding for Air Cargo Screening, Credentialing, Etc.

The conference report provides over $5 billion in funding for the Transportation Security Administration's (TSA's) activities, including surface transportation security and transportation threat assessment and credentialing.

Screening of fresh fruit air cargo, additional inspectors, etc. Within the funds provided to TSA, funds are dedicated to (i) testing, evaluation, and qualification of existing technologies for use in air cargo to assist the fresh fruit industry and others in complying with new cargo screening requirements; (ii) inspectors and canine teams to convert 35 legacy teams to proprietary teams; (iii) 50 new inspectors to address the additional inspection workload related to the 100% screening mandate and other regulatory responsibilities; and (iv) deployment of skid-level and palletized screening technologies, including vapor detection and metal detection technologies, to meet the 100% screening mandate.

Assistance for fresh fruit industry. The conferees encourage TSA to continue its efforts to assist the fresh fruit industry in complying with new cargo scanning requirements and to expedite the development and approval of efficient and effective cargo screening technologies.

Briefing on impediments to 100% air cargo screening. TSA is directed to regularly brief specified Committees on the results of its air cargo pilot before a nationwide rollout and identify any impediments it may have in meeting the 100% air cargo screening requirement by August 2010.

Increase cargo screening incrementally. The Assistant Secretary of Homeland Security (TSA) would be required to work with air carriers and airports to ensure that the screening of cargo carried on passenger aircraft, as defined in section 49 USC 44901(g)(5), increases incrementally each quarter.

Report on meeting screening targets. Not later than 45 days after the end of each quarter, the Assistant Secretary would have to submit to the Appropriations Committees a report on air cargo inspection statistics by airport and air carrier detailing the incremental progress being made to meet the requirements of section 49 USC 44901(g)(2).

(49 USC 44901(g)(2) requires the deployment of a minimum number of law enforcement personnel at airports.)

Plan for meeting screening targets. Not later than 180 days after the date of the enactment, the Assistant Secretary of Homeland Security (TSA) would be required to submit to the Appropriations Committees, a report on how TSA plans to meet the requirement for screening all air cargo on passenger aircraft by the deadline under 49 USC section 44901(g). The report would be required to identify the elements of the system to screen 100% of cargo transported between domestic airports at a level of security commensurate with the level of security for the screening of passenger checked baggage.

Funding for Maritime Security Pilot, Funding Restrictions for ASP Monitors

In the area of science and technology funding, the conference report would:

Fund pilot port security system program. The conference report would provide funding for a pilot program to develop a replicable port security system that would improve maritime domain awareness.

Place restrictions on funding for full-scale procurement of ASP monitors. The conference report would prohibit funding from being obligated for full-scale procurement of Advanced Spectroscopic Portal monitors (ASP) until the DHS Secretary submits to the Appropriations Committees a report certifying that a significant increase in operational effectiveness will be achieved by such obligation. The DHS Secretary would also be required to submit separate and distinct certifications prior to the procurement of ASP monitors for primary and secondary deployment that address the unique requirements for operational effectiveness of each type of deployment. In addition, the DHS Secretary would be required to continue to consult with the National Academy of Sciences before making such certifications. The conference report would further prohibit funding from being used for high-risk concurrent development and production of mutually dependent software and hardware.

Express conferees disappointment with DHS' slow progress on CSDs. The conferees express disappointment in the slow progress DHS has made in developing a viable container security device (CSD) and require S&T to continue its quarterly updates to the Committees on its efforts in this area.

Switchblade Provision Would Counter CBP's Expansion of New Entry Prohibition

The conference report would amend 15 USC 1244 by adding a new exception to the penalty provisions of the Switchblade Knife Act (15 USC 1242 and 1243) for knives that contain a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that require exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife.

(CBP's regulations in 19 CFR 12.97 state that importations of switchblade knives, except as permitted by 15 USC 1244, are importations contrary to law (prohibited entry) and are subject to forfeiture under 19 USC 1595a(c).

In May 2009, CBP proposed a new interpretation of the Switchblade Knife Act and associated regulations, which would result in additional styles of knives being prohibited entry under 19 CFR 12.95-12.103. The knives that would be affected by this CBP proposal have spring- and release-assisted opening mechanisms that require minimal ''human manipulation'' in order to instantly spring the blades to the fully open and locked position. According to the sponsors of H.R. 2892's knife provision, CBP went overboard in trying to interpret an outdated statute, and the Senate's provision would ensure that assisted-opening pocketknives are exempt.)

(See ITT's Online Archives or 07/17/09 news, 09071715, for previous BP summary on this provision, with links to other related CBP summaries.)

Miscellaneous Funding Provisions

The conference report would also provide funding for:

US-VISIT, biometric air exit capability - Funding for the development of the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) project. Funding would also be designated for implementation of a biometric air exit capability.

Miscellaneous Funding Prohibitions

The conference report would prohibit funding from being:

Buy American - used in contravention of the applicable provisions of the Buy American Act (41 USC 10a et seq.).

Butane lighters - used to enforce section 4025(1) of Public Law 108-458 unless the Assistant Secretary of Homeland Security (TSA) reverses the determination of July 19, 2007, that butane lighters are not a significant threat to civil aviation security.

Prescription drugs - used to prevent an individual not in the business of importing a prescription drug (within the meaning of section 801(g) of the Federal Food, Drug, and Cosmetic Act) from importing a prescription drug from Canada that complies with the Federal Food, Drug, and Cosmetic Act (with certain exceptions, etc.).

¹The Joint Statement explains the effect of the accompanying conference report.

(See ITT's Online Archives or 07/02/09 news, 09070215, for BP summary on the House-passed version of H.R. 2892. See ITT's Online Archives or July 14, 2009, 09071405, for BP summary of the Senate-passed version of H.R. 2892. See ITT's Online Archives or 07/17/09 news, 09071715, for BP summary of the Senate-passed version of H.R. 2892's provisions on switchblade provision.)

H.R. 2892 conference report, including Joint Explanatory Statement (H.Rept. 111-298) available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_reports&docid=f:hr298.111.pdf.