Home Legislative Action Congressional Testimony On the Line: Border Security from an Agent and Office Perspective

On the Line: Border Security from an Agent and Office Perspective

1/09/2018

House Subcommittee on Border and Maritime Security

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Chairwoman McSally, Ranking Member Vela, distinguished members of the Subcommittee, 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 across the United States (U.S.) and 16 Preclearance stations currently in Ireland, the Caribbean, Canada and United Arab Emirates airports.  CBP’s Office of Field Operations (OFO) pursues a dual mission of safeguarding American ports, by protecting the public from dangerous people and materials, while enhancing the Nation’s global and economic competitiveness by enabling legitimate trade and travel.

In addition to CBP’s trade and travel security, processing and facilitation mission, CBP OFO 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 the border security issue of utmost concern to CBP OFO employees--hiring and funding challenges that contribute to ports of entry being chronically understaffed. 

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 approximately 900 Officers as of December 2017, due to attrition and the amount of time it takes to onboard new CBP Officers.

As you know, the President’s January 2017 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 2017 recorded over 216,370 apprehensions and seized over 444,000 pounds of illegal drugs, and over $96 million in illicit currency, while processing over 390 million travelers and $2.2 trillion in imports through the ports. 

In response to the President’s January 2017 Executive Order, Congress included funding to hire 500 new Border Patrol Agents despite the fact that there is no workload staffing model justifying this increase.  In fact, the Inspector General for Homeland Security issued a report in November 2017 that said CBP could not provide enough data to justify the hiring of additional Border Patrol Agents.  Increasing staffing between the ports will just funnel more criminals, terrorists, drug and human smugglers into the ports of entry further exacerbating the current staffing crisis at the ports.  It is essential to recognize that CBP OFO has a workload staffing model that shows a staffing shortage of 2,500 CBP Officers and 721 Agriculture Specialists at the ports of entry (not including the 1,200 current CBP Officer vacancies), yet Congress has not provided any funding to address this staffing gap.   

The risk of successful incursions through the ports of entry by terrorists, smugglers and other criminals increase when ports are under constant pressure to limit wait times while working short staffed.  If port traffic increases significantly due to squeezing illegal activity there, it will become impossible for CBP Officers and Agriculture Specialists to stop bad actors and bad things from coming through the ports without significantly increasing wait times, which will harm legal international trade and travel.  Ports need to hire up to the level specified in CBP’s OFO workload staffing model in order to address existing trade and travel traffic. 

According to the Joint Economic Committee (JEC), every day 1.1 million people and $5.9 billion in goods legally enter and exit through the ports of entry.  The volume of commerce crossing our borders has more than tripled in the past 25 years.  Long wait times lead to delays and travel time uncertainty, which can increase supply chain and transportation costs.  According to the Department of Commerce, border delays result in losses to output, wages, jobs and tax revenue due to decreases in spending by companies, suppliers and consumers.  JEC research finds border delays cost the U.S. economy between $90 million and $5.8 billion each year.

CBP Officer Hiring Challenges

CBP Officer Overtime

Also, due to the ongoing current staffing shortage of over 3,700 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 $45,000 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.

 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 significantly disrupt CBP Officers’ family life, erode morale and are not a solution for staffing shortages at the ports.

Temporary Duty Assignments at Southwest Land Ports of Entry

Due to CBP’s ongoing staffing shortage, since 2015, CBP has been diverting CBP Officers from other air, sea and land ports to severely short-staffed Southwest land ports for 90-day temporary duty assignments (TDYs). Owing to the failure to fill CBP Officer positions, neither the San Ysidro (see attached) nor the Nogales land ports can safely function without these TDYs.  On December 13, 2017, CBP sent the following message to all OFO Field Offices:

 “The Tucson Field Office is currently experiencing critical shortages of frontline personnel.  These long-term staffing shortfalls continue to stretch the limits of operational, enforcement and training capabilities at the ports of entry. In support of this, Headquarters is soliciting 175 CBP Non-Supervisory Officers to serve in a Temporary Duty (TDY) capacity to support the Tucson Field Office with Operation Overflow Fiscal Year 2018 Phase 2 from January 7, 2018 (travel day in) through March 30, 2018 (travel day out).

In response to CBP’s TDY reassignments, Orlando International Airport (OIA) officials sent a December 22 letter to their Congressional delegation expressing concerns about losing 10 CBP Officers to these TDYs …“We believe taking 10 CBP officers from their important and critical duties at OIA will pose a serious and noticeable safety and security problem for the traveling public and the thousands of employees at OIA…This directive will seriously diminish the security at OIA by adding more demands on already overburdened CBP officers who have been stretched to the limit to meet ever increasing international visitation demands.”

To end TDYs, CBP must fill the 1,200 CBP Officer vacancies and fund the hiring of the additional 2,500 CBP Officers.  In the meantime, to encourage volunteers for these TDYs and avoid forced TDYs, NTEU suggests Congress ask CBP to supplement the TDY solicitation to include:

• The TDY pool should be 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, and 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;

• 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;

• 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.)

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. 

Impact on Officer Safety

Fortunately, this situation happened outside where Vehicle Hard Secondary Officers could see the subject forcibly resisting and attempting to get away from the lone Officer.  However, had this event transpired inside the enclosed Pedestrian walkway, this lone Officer could have been seriously injured or even disarmed. 

It took five CBP Officers to finally subdue this subject and place him in handcuffs. The lone Officer was injured during this confrontation and was taken to the hospital for treatment for a shoulder injury he suffered while trying to subdue this subject. 

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.

At many ports, including the port of Brownsville, there are not enough Agriculture Specialists to staff all shifts and CBP Officers are backfilling for Agriculture Specialists despite a December 10, 2007 directive that states “Directors, Field Operations must ensure that CBPAS are assigned to agricultural inspectional activities at the individual ports of entry.  It is imperative that assignments for these employees are dedicated to the mission of protecting the nation’s food supply and agricultural industry from pests and diseases absent exigent operational circumstances.”     

NTEU worked with Congress to include in the recent CBP Trade Facilitation and Enforcement Act (P.L. 114-125) a provision that required 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 Agriculture Resource Allocation Model (AgRAM) shows a need for an additional 721 frontline CBP Agriculture Specialists and supervisors to address current workloads through FY 2018; however, even with the 2016 increase in AQI user fees, CBP proposed to fund 2,418 CBP Agriculture Specialist positions in FY 2018, not the 3,149 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 authorize the hiring of these 731 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 into the country 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 the port only has 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.

Synthetic Opioid Interdiction

CBP plays a major role in addressing the nation’s opioid epidemic--a crisis that is getting worse, as the deadly chemical fentanyl is being manufactured in China and is either funneled through Mexico or sent by mail and express consignment operators directly to addresses in the U.S.  Under the Trade Act of 2002, Congress required all carriers, including express consignment operators (like FedEx and DHL) to work with CBP to inspect inbound international express cargo and mail.  CBP collects advanced electronic data collection to use to target inspections and rolled out the implementation in phases.  Express consignment operators are required to provide “electronic advance data” (EAD)—such as the shipper's and recipient's name and address—for all inbound express cargo. The data collection requirements were to be implemented by CBP in three phases.

Phase 1 required electronic manifests to CBP for international travel four hours prior to arrival and for Canada, Mexico, the Caribbean, parts of Central and South America at “wheels up.”  However, every day these manifests are inaccurate with countless “overages.” An overage is a shipment that is not included on the manifest.   In other words, an overage is an un-manifested, unknown shipment which is in violation of the law.  A manifested shipment may have 1 or 500 overages, but the highest penalty for “overages” is $5,000 and these penalties are routinely mitigated to $50 for a first violation and $100 for subsequent violations.

Phase 2 required express consignment operators to provide quality shipper/consignee data.  Express consignment operators that provide an electronic manifest that does not show the packages are received from legit businesses/addresses and are delivered to legit businesses/addresses are subject to a penalty.

In 2007, CBP drafted the phase 3 implementation plan, but to date has not implemented it.  Phase 3 would allow CBP Officers to impose a monetary penalty for incorrect manifest descriptions.  Without implementation of Phase 3, CBP Officers cannot penalize carriers for bringing in items manifested as one thing that turn out to be another.  Many of these shipments are not concealed well and are often simply mis-manifested.   Narcotic chemicals are labeled “car parts” or “Supplement powder” and CBP cannot impose a penalty for this mislabeling.

In addition to providing additional needed CBP OFO staffing at the express consignment hubs, Congress should direct CBP to provide a report to the House Committee on Homeland Security on an annual basis on the individuals and companies that violate the Trade Act (19 USC 1436 and 19 USC 1584.)  The annual report would require the violator’s name; the violation committed; the port of entry/location through which the items entered; an inventory of the items seized including description of the item and quantity; place of origination including address of the violator; the amount in penalties assessed by CBP for each violation by violator name and port of entry/location; the amount of penalties that CBP could have levied for each violation by violator name and port of entry/location and the rationale for negotiating down the penalty for each violation by violator name and port of entry/location.

Congress, by requiring CBP to report this useful information on violators and violator penalty assessments, would enhance CBP’s interdiction of prohibited items from entering the U.S. through express consignment operators.

Reimbursable Service Agreements

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.   Prior to 2003, the supervisor to frontline ratio was closer to 1 supervisor to 12. It is also 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 2019 Budget

According to the report, OMB has notified DHS that the Department will need to shave $88 million from its internal budget request for CBP OFO in FY 2019.  The report further notes that OMB has proposed a hiring increase solely for Border Patrol agents, and is ignoring the need to fill thousands of CBP Officer vacancies or fund new hires at the ports of entries.

Additionally, the documents indicate that while DHS requested a pay raise for its employees, including CBP Officers, Border Patrol and ICE agents, OMB denied DHS’ request to provide additional pay, and instead stated that the Administration plans to issue a government wide pay freeze for all federal civilian employees for calendar year 2019.  NTEU would strongly oppose a pay freeze proposal for all federal employees, including for DHS and CPB, which have already struggled to recruit and retain law enforcement officers in recent years, and which comes amidst the backup of planned private-sector average 3 percent pay increases in 2018.

As Congress finalizes FY 2018 funding in the next few weeks, and begins consideration of FY 2019 funding for CBP, NTEU urges Committee members to ensure the funding necessary to meet the CBP Officer and CBP Agriculture Specialist staffing requirements through FY 2018 and 2019, as stipulated in CBP’s own Workload Staffing Model and to oppose a calendar year 2019 pay freeze.

Recommendations

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 workload staffing model. 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:

• Fill 1,200 CBP Officer current vacancies;

• Fund the additional 2,500 CBP Officer needed new hires;

• Address the polygraph process to mitigate excessive (60%) applicant polygraph failures;

• Fund 721 CBP Agriculture Specialists needed new hires;

• Restore recruitment and retention awards, and other incentives; 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 employees work hard and care deeply about their jobs and their country. 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.