Ending the Crisis: America's Borders and the Path to Security

2/07/2017

Committee on Homeland Security, U.S. House of Representatives

Chairman McCaul, Ranking Member Thompson, distinguished members of the Committee; thank you for the opportunity to submit 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 and trade enforcement specialists stationed at 328 land, sea and air ports of entry across the United States (U.S.) and 16 Preclearance stations currently at Ireland, the Caribbean, Canada and United Arab Emirates airports.

NTEU’s CBP members are very concerned about lack of adequate staffing at the ports of entry. The most recent results of CBP’s Workload Staffing Model – factoring in the additional 2,000 CBP Officers funded in FY 2014 appropriations, but not yet fully hired-- shows a need for an additional 2,107 CBP Officers through FY 2017. The Agriculture Resource Allocation Model (AgRAM) calculates a need for an additional 631 CBP Agriculture Specialists for a total of 3,045. There is no greater roadblock to legitimate trade and travel efficiency than the lack of sufficient staff at the ports. Understaffed ports lead to long delays in commercial lanes as cargo waits to enter U.S. commerce and also creates a significant hardship for CBP employees.

It is not yet known which CBP positions will be exempt from the freeze on the hiring of Federal civilian employees as directed by the President on January 23, 2017. NTEU strongly supports exempting all CBP operational positions from the President’s hiring freeze under the public safety exemption. CBP operational positions include not just CBP Officers, but also other uniformed and non-uniformed CBP employees that perform public safety work, such as CBP Agriculture Specialists that prevent plant and animal pests and diseases that could harm U.S. agriculture and CBP trade operations specialists that prevent illegal and dangerous counterfeit products from entering U.S. commerce.

Also, NTEU continues to have concerns about the slow pace of hiring at CBP. Despite appropriated funding for the hiring of 2,000 additional CBP Officers, CBP has realized a net gain of less than 900 Officers as of January 2017, due to attrition and the amount of time it takes to bring on new CBP Officers.

CBP Officer Hiring Challenges

As you know, CBP has struggled to fill the initial 2,000 positons 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 officers 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. The U.S. Drug Enforcement Administration failed 36 percent of applicants in the past two years.

NTEU commends Subcommittee Chair McSally’s work last year to enact legislation and to include a provision in the Defense authorization bill that authorizes the CBP Commissioner to waive polygraph examination requirements for certain veterans applying for CBP job openings.

NTEU does not seek to reduce the standards used by CBP in their hiring process, but believe that there may be a problem with how the polygraph is currently administered and asks 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.

Not only is CBP not meeting its current staffing targets for federally funded CBP positions, CBP’s Workload Staff Model calls for Congress to fund the hiring of an additional 2,100 CBP Officers. Both CBP and Congress must act to address significant delays in the current hiring process to meet both current and future hiring targets.

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.

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. 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 New York Field Office to send 12 CBP Officers to the San Diego Field and 13 CBP Officers to the Tucson Field Office from January 9 through April 7, 2017.

NTEU suggests Congress should ask that CBP supplement the TDY solicitation to include the following suggestions:

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 Tactical Terrorism Response Team and the Strategic Response Team, and by including all Officers who have graduated from 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.

Diversion of Customs User Fees

Because of the ongoing staffing shortage, CBP Officers’ funding streams cannot be compromised. 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 1,100 CBP Officers 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. CBP proposes 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.

In 2015, the highway bill enacted into law, 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, $140 million a year in additional customs user fees are being collected, but 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 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 and 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 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 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 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.

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 insist that all CBP operational employees be exempt from the hiring freeze. Congress should also authorize and fund an increase in the number of CBP Officers and other CBP employees as stipulated in CBP’s Workload Staffing Model.

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 NTEU supported legislation that will allow recent military personnel to be hired as CBP Officers without undergoing a polygraph will result in an increase in new hires.

However, in addition to our longer-term goals of securing the proper staffing at CBP to address workloads, NTEU recommends that Congress call for a series of immediate steps that CBP should take to alleviate the immediate burdens being placed on CBP Officers at the Southwest land ports of entry:

CBP should consider re-hiring recently retired CBP Officers (so called re-employed annuitants) who could be brought on board quickly without the need for extensive new training or background checks.
An immediate review should be undertaken of CBP’s 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; and
Immediate polygraph re-testing opportunities should be afforded to those with a No Opinion or Inconclusive result, including those with a No Opinion Counter Measures finding.

Lastly, NTEU recommends that Congress pursue additional funding when considering funding for the final months of FY 2017 and in the FY 2018 CBP funding bill to address the staffing and overtime funding shortages facing the ports of entry. The current demand for staffing at the Southwest land ports is causing CBP to burn through its overtime budget at a much higher than anticipated rate, which could result in extensive staffing shortages at large volume ports of entry nationwide during the peak travel season this summer.

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 the fees collected to other uses or projects.

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 those working at the Southwest border ports of entry especially 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 submit this testimony to the Committee on their behalf.