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Customs And Border Protection Issues
Customs And Border Protection Issues
4/09/2008
The House Subcommittee On Homeland Security Appropriations Of The House Of Representatives
Chairman Price, Ranking Member Rogers, 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 hundred 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 according to FY 2009 revenue estimates.
First, NTEU would like to thank the Committee for including language in its FY 2008 DHS Appropriations bill that provides an enhanced retirement benefit to all eligible GS-1895 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 extremely grateful that, despite the President’s request, the Committee remains firmly committed to this new program and fully supportive of funding this program. All NTEU members commend the Committee on its forethought and perseverance in enacting this seminal legislation.
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 the Department of Homeland Security (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 (HSA), it granted the new department very broad discretion to create new personnel rules. 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 U.S. District Court for the District of Columbia ruled that the Labor Relations portion and parts of the adverse action and appeals portions of the proposed DHS personnel regulations infringed on employees’ collective bargaining rights, failed to provide an independent third-party review of labor-management disputes and lacked a fair process to resolve appeals of adverse management actions. The Appellate Court rejected DHS’s appeal of this District Court decision and DHS declined to appeal the ruling to the Supreme Court.
In February 2008, DHS notified the District Court that it had abandoned its effort to implement the Labor Relations portion of its new personnel regulations. This means that Title 5, Chapter 71, collective bargaining rights remain in effect for all DHS employees. DHS cannot come up with new Labor Relations regulations. However, there are 6 parts to the DHS Human Resource Management System (formerly called MAX-HR) established pursuant to Title 5, Chapter 97. Only one part of Max-HR--Labor Relations--has been ruled illegal and will not go into effect.
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 authorized by Sec. 9701 (formerly called MAX-HR), 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.
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, 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, Chapter 97.
Classification, Pay, and Pay Administration (Subparts B and C)
DHS cannot justify deviation from the classification and basic pay system set forth in 5 U.S.C. Chapters 51 and 53. The Title 5 system has, for decades, provided an objective, transparent basis for making pay decisions. It has ensured that employees doing the same jobs receive the same basic pay. It does not permit an employee’s pay to be determined by factors unrelated to the performance of his or her duties. It does not permit a federal employer to favor one employee or group over another in setting basic pay. And, if administered properly, it permits agencies to reward high performers. These objectives are just as important and vital today as they were when the General Schedule system was designed.
While many of the details of the DHS pay and classification system are still unknown, it is clear that DHS would abandon these bedrock principles in favor of an unproven “pay for performance” system. Such a system would present significant funding concerns as the Secretary would retain final decision making authority in such matters as the annual allocation of funds between market and performance pay adjustments and the annual adjustment of rate ranges and locality supplements. This, of course, allows for the possibility that performance-based increases for a select few would be funded with money that would otherwise be used to provide an across-the-board General Schedule increase for all employees.
Moreover, DHS cannot show that such a system could be implemented in a fair and objective manner. Indeed, NTEU’s experience with a similar “pay for performance” system at the Securities and Exchange Commission shows that pay schemes like the one contemplated by DHS entail a significant risk of discrimination in violation of Title VII and the Age Discrimination in Employment Act. Subjective pay systems also undermine employee morale.
Performance Management (Subpart D)
There has been no showing that the provisions of Chapter 43 and 5 C.F.R. Part 430, which require agencies to develop performance appraisal systems that include standards and procedures that protect employees from arbitrary or unfair treatment in the evaluation of their performance, is inadequate for DHS’ needs. Particularly troubling is the regulations’ abandonment of 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)
The current one-year probationary period provides sufficient time to assess a new employee. DHS’ need for a longer “Initial Service Period” (up to two years) during which employees would have no adverse action rights, has never been established. Adverse action rights, as currently available under Chapter 75, should remain available to DHS employees.
The “mandatory removal offense” concept must be eliminated. DHS has never demonstrated why generally applicable adverse action procedures are inadequate to address these types of serious offenses. Neither has it demonstrated why arbitrators and the Merit Systems Protection Board (MSPB) are incapable of adjudicating these types of adverse actions fairly. Employees can have no confidence in the objectivity of a Mandatory Removal Panel with members appointed and retained solely at the Secretary’s discretion.
Current law requires at least 30 days notice of adverse actions appealable to the MSPB. DHS cannot justify reducing that time to 15 days, thereby depriving DHS employees of the same opportunity to prepare a reply to a proposed adverse action that other federal employees have.
DHS employees should be subject to the same MSPB appeal filing limits as other federal employees. It is both unfair and unnecessary to reduce the current 30-day filing time limit to 20 days, thereby depriving DHS employees of valuable time for preparing their appeal and making arrangements for adequate representation.
By requiring all MSPB “case suspension” requests to be jointly submitted, the DHS regulations permit one party to prevent the other party from seeking a suspension for good cause, such as the illness of the party or a party’s representative. DHS cannot show why the MSPB should be divested of its discretion to rule on the merits of unilateral case suspension requests.
Summary judgment is not currently available in MSPB appeals. Appellants are entitled to a hearing in any appeal over which the MSPB has jurisdiction. Plainly, the DHS regulation making summary judgment available will prejudice appellants. Summary judgment is a concept imported from civil litigation. Agencies, with staffs of attorneys who are familiar with summary judgment principles, will take advantage of the opportunity to have appeals dismissed. Many appellants are pro se or represented by non-attorneys. They lack the expertise to draft or reply to a summary judgment motion.
DHS’ penalty mitigation standard (an arbitrator, presiding official, or MSPB may not modify a penalty imposed by the employer “unless such penalty is so disproportionate to the basis for the action as to be wholly without justification”) constitutes an unfair and unwarranted departure from the current mitigation standard that was first established in Douglas v. Veterans Administration, 5 M.S.P.R. 1981. In fact, DHS’s mitigation standard was enjoined by Judge Collyer in the U.S. District Court for the District of Columbia as being contrary to the Homeland Security Act’s requirement that DHS employees be entitled to “fair treatment” in employment appeals. The D.C. Circuit set aside NTEU’s challenge to the mitigation standard as being “unripe.” NTEU stands ready to renew its challenge in the event that DHS applies this unreasonable and illegal standard to employees.
From the beginning of discussions over personnel regulations with DHS, it was clear that the only system that would work in this agency is one that is fair, credible and transparent. These remaining regulations promulgated under the statute fail miserably to provide any of those critical elements. It is time to end this flawed personnel experiment.
The Committee has been extremely thoughtful and deliberative in allocating funds for implementing the new DHS personnel system. The FY 2006, 2007 and 2008 appropriations were well below the President’s budget request.
Last session, the DHS Authorizers also acted. At NTEU’s request, the House Homeland Security Committee approved an amendment to the FY 2008 DHS Authorization bill that repeals the DHS Human Resources Management System. The full House passed the FY 2008 DHS Authorization bill, but the Senate failed to act on this legislation last session.
Despite Congress’ clear intent to stop implementation of the failed DHS Human Resources Management System, DHS persists in seeking funds to implement these compromised personnel regulations. NTEU urges the Appropriations Committee ensure that no funding can be expended in FY 2009 to implement this failed, discredited personnel program.
An ongoing example of DHS’s abuse of personnel “flexibilities” that are in place government-wide is the Federal Career Intern Program (FCIP). NTEU has filed a lawsuit challenging the legality of one of FCIP alleging that there is no justification for FCIP’s broad exemption from the competitive examination and selection requirements fundamental to the federal civil service. CBP now uses FCIP authority as its exclusive mean of hiring new CBP Officers. The FCIP was originally created in 2000 as a limited special focus hiring program to provide formally structured two-year training and development “internships” as a strategic recruitment tool. Since then, however, because OPM placed very few restrictions on the program, its use by agencies has increased so dramatically that it amounts to a frontal assault on the competitive examination process as the primary method of hiring for competitive civil service positions.
As established by Office of Personnel Management (OPM), the FCIP allows agencies to hire “interns” for almost any entry-level position. FCIP vacancies are not required to be posted for internal candidates or on OPM’s USAJOBS web site. The FCIP authority threatens to undermine fundamental merit systems principles. These principles require that selection and advancement be determined on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. NTEU’s lawsuit asks the court to declare FCIP’s hiring authority illegal. Since the lawsuit was filed, NTEU has filed an amicus brief in the U.S. Court of Appeals for the Federal Circuit supporting a disabled veteran’s challenge to the legality of the excepted service hiring allowed under the FCIP. The petitioner, a 30% disabled veteran who had applied for an auditor position in the Department of Defense, was passed over in favor of two non-preference eligible applicants who were hired under the FCIP.
Based on DHS’s abuse of this existing flexibility and on more than five years of fruitless consultation regarding personnel regulations to create new and broader personnel flexibilities, NTEU has no confidence in the agency and asks the Committee to stop funding these failed personnel experiments.
CBP STAFFING AT THE PORTS OF ENTRY
For years, NTEU has said that CBP needs several thousand additional CBP Officers and CBP Agriculture Specialists (AS) at its ports of entry; that insufficient staffing and scheduling abuses are contributing to morale problems, fatigue, and safety issues for CBP Officers and CBP AS’s and that CBP is losing personnel faster than it can hire replacements.
NTEU was very grateful that the Committee, in its FY 2007 DHS appropriations conference report, directed CBP to submit a resource allocation model for current and future year staffing requirements.
CBP’s 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.
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.
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), on November 5, 2007. The conclusions of this report echo what NTEU has been saying for years:
• CBP needs several thousand additional CBP Officers and Agriculture Specialists at its ports of entry.
• Not having sufficient staff contributes to morale problems, fatigue, and safety issues for CBP Officers.
• Staffing challenges force ports to choose between port operations and providing training. In these instances…training is often sacrificed.
• CBP's onboard staffing level is below budgeted levels, partly due to high attrition, with ports of entry losing officers faster than they can hire replacements.
• One of the major reasons for high attrition is that CBP Officers are leaving to take positions in other federal agencies to obtain law enforcement officer benefits notprovided to them at CBP. (The Committee rectified this in P.L. 110-161)
The Homeland Security Appropriations Committee added report language to the FY 2007 DHS Appropriations bill that, with regard to CBP's One Face at the Border initiative, directs "CBP to ensure that all personnel assigned to primary and secondary
inspection duties at ports of entry have received adequate training in all relevant
inspection functions."
It is my understanding that CBP has not reported to the Committee pursuant to this language, but NTEU's CBP members have told us that CBP Officer cross-training and on-the-job training is woefully inadequate. In addition, staffing shortages force managers to choose between performing port operations and providing training. In these instances, it is training that is sacrificed.
GAO reports extensively in GAO-08-219, pages 35-41, on the shortcomings with CBP's on-the-job and cross training programs and I urge you to review this information. With regard to the One Face at the Border initiative, CBP’s training policy calls for no officer to be placed in an area without receiving the proper cross training module, officers and supervisors “told us that officers are placed in situations for which they had not been trained.” See GAO-08-219, page 37)
It is apparent 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.
Agriculture Specialists Staffing:
NTEU was certified as the labor union representative of CBP Agriculture Specialists in May 2007as the result of an election to represent all CBP employees that had been consolidated into one bargaining unit by merging the port of entry inspection functions of Customs, INS and the Animal, Plant and Health Inspection Service as part of DHS' One Face at the Border initiative.
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.
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.”
When CBP was created, it was given a dual mission of not only safeguarding our nation’s borders and ports from terrorist attacks, but also the mission of regulating and facilitating international trade; collecting import duties; and enforcing U.S. trade laws. In 2005, CBP processed 29 million trade entries and collected $31.4 billion in revenue. In 2009, the estimated revenue collected is projected to be $29 billion—a drop of over $2 billion in revenue collected.
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 states that currently, CBP has over 8,200 employees that are involved in commercial trade operations, but suggests that to carry out these commercial operations and to adequately staff the needs for priority trade functions, the optimal staff level in FY 2008 would be over 10,000. These numbers include CBP Officers and CBP Agriculture Specialists involved in the commercial inspection and release of cargo.
The Model 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.
The President’s FY 2009 Budget requests funds for an additional 7 attorneys, 2 economists, 2 paralegals and 1 mission support personnel to support CBP’s regulatory program.
According to a GAO report on Customs Revenue Functions (GAO-07-529), CBP collected nearly $30 billion customs duties in FY 2006, but did not collect approximately $150 million in antidumping duties alone in 2006. CBP has been unable to collect more than $500 million in antidumping duties over the past 5 years. (See GAO-07-529, page 23 and pages 29-30.) GAO also concluded that CBP’s shift in mission contributed to reduced focus and resources devoted to customs revenue functions.
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 trade compliance personnel is increased to the staffing levels that CBP itself states in the July 2007 RAM are sufficient to ensure effective performance of customs revenue functions.
Conclusion:
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 more than 22,000 CBP employees represented by the NTEU are capable and committed to the varied missions of DHS from border control to the facilitation of trade into and out of the United States. They are proud of their part in keeping our country free from terrorism, our neighborhoods safe from drugs and our economy safe from illegal trade. These men and women are deserving of more resources and technology to perform their jobs better and more efficiently.
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. I urge each of you to visit the land, sea and air ports of entry in your home districts. Talk to the CBPOs, canine officers, and trade entry and import specialists there to fully comprehend the jobs they do and what their work lives are like. Thank you for the opportunity to submit this testimony to the Committee on their behalf.