1.National Guard support for
border control activities
(a)
(1)Not fewer than 6,000 National Guard personnel shall
continue to be deployed along the international border between the United
States and Mexico under Operation Jump Start until the date on which the
Federal Government has achieved operational control of such border (as defined
in section 2(b) of the Secure Fence Act of 2006 (Public Law 109–367)).
(2)National
Guard personnel deployed pursuant to paragraph (1) shall not be included in the
calculation to determine compliance with—
(A)limits on end
strength; or
(B)limits on the
number of National Guard personal that may be placed on active duty for
operational support.
(b)Chapter 1 of title
32, United States Code, is amended by inserting after section 112 the
following:
112a.Border
control activities
(a)The Secretary of Defense may provide funds
to the Governor of a State who submits to the Secretary a State border control
activities plan satisfying the requirements of subsection (c). Such funds shall
be used for the following:
(1)The pay,
allowances, clothing, subsistence, gratuities, travel, and related expenses, as
authorized by State law, of personnel of the National Guard of that State used,
while not in Federal service, for the purpose of border control
activities.
(2)The operation and
maintenance of the equipment and facilities of the National Guard of that State
used for the purpose of border control activities.
(3)The procurement
of services and equipment, and the leasing of equipment, for the National Guard
of that State used for the purpose of border control activities. However, the
use of such funds for the procurement of equipment may not exceed $5,000 per
item, unless approval for procurement of equipment in excess of that amount is
granted in advance by the Secretary of Defense.
(b)Use of
personnel performing full-time national guard duty(1)Under regulations
prescribed by the Secretary of Defense, personnel of the National Guard of a
State may, in accordance with the State border control activities plan referred
to in subsection (c), be ordered to perform full-time National Guard duty under
section 502(f) of this title for the purpose of carrying out border control
activities.
(2)(A)A member of the
National Guard serving on full-time National Guard duty under orders authorized
under paragraph (1) shall participate in the training required under section
502(a) of this title in addition to the duty performed for the purpose
authorized under that paragraph. The pay, allowances, and other benefits of the
member while participating in the training shall be the same as those to which
the member is entitled while performing duty for the purpose of carrying out
border control activities. The member is not entitled to additional pay,
allowances, or other benefits for participation in training required under
section 502(a)(1) of this title.
(B)Appropriations available for the
Department of Defense for homeland defense may be used for paying costs
associated with a member's participation in training described in subparagraph
(A). The appropriation shall be reimbursed in full, out of appropriations
available for paying those costs, for the amounts paid. Appropriations
available for paying those costs shall be available for making the
reimbursements.
(C)To ensure that the use of units and
personnel of the National Guard of a State pursuant to a State border control
activities plan does not degrade the training and readiness of such units and
personnel, the following requirements shall apply in determining the border
control activities that units and personnel of the National Guard of a State
may perform:
(i)The performance of the activities may
not adversely affect the quality of that training or otherwise interfere with
the ability of a member or unit of the National Guard to perform the military
functions of the member or unit.
(ii)National Guard personnel will not
degrade their military skills as a result of performing the activities.
(iii)The performance of the activities
will not result in a significant increase in the cost of training.
(iv)In the case of border control
activities performed by a unit organized to serve as a unit, the activities
will support valid unit training requirements.
(c)A State border control activities plan shall—
(1)specify how
personnel of the National Guard of that State are to be used in border control
activities in support of the mission of the United States Customs and Border
Protection of the Department of Homeland Security;
(2)certify that
those operations are to be conducted at a time when the personnel involved are
not in Federal service;
(3)certify that
participation by National Guard personnel in those operations is service in
addition to training required under section 502 of this title;
(4)certify that any
engineer-type activities (as defined by the Secretary of Defense) under the
plan will be performed only by units and members of the National Guard;
(5)include a
certification by the Attorney General of the State (or, in the case of a State
with no position of Attorney General, a civilian official of the State
equivalent to a State attorney general) that the use of the National Guard of
the State for the activities proposed under the plan is authorized by, and is
consistent with, State law; and
(6)certify that the
Governor of the State or a civilian law enforcement official of the State
designated by the Governor has determined that any activities included in the
plan that are carried out in conjunction with Federal law enforcement agencies
serve a State law enforcement purpose.
(d)Before funds are provided to the Governor of a State under
this section and before members of the National Guard of that State are ordered
to full-time National Guard duty as authorized in subsection (b), the Secretary
of Defense shall, in consultation with the Secretary of Homeland Security,
examine the adequacy of the plan submitted by the Governor under subsection
(c). The plan as approved by the Secretary of Defense may provide for the use
of personnel and equipment of the National Guard of that State to assist United
States Customs and Border Protection in the transportation of aliens who have
violated a Federal immigration law.
(e)(1)Except as provided in
paragraphs (2) and (3), at the end of a fiscal year there may not be more than
6,000 members of the National Guard—
(A)on full-time National Guard duty under
section 502(f) of this title to perform border control activities pursuant to
an order to duty; or
(B)on duty under State authority to
perform border control activities pursuant to an order to duty with State pay
and allowances being reimbursed with funds provided under subsection
(a)(1).
(2)The Secretary of Defense may increase
the end strength authorized under paragraph (1) by not more than 20 percent for
any fiscal year if the Secretary determines that such an increase is necessary
in the national security interests of the United States.
(3)National Guard personnel deployed
pursuant to paragraph (1) shall not be included in the calculation to determine
compliance with—
(A)limits on end strength; or
(B)limits on the number of National Guard
personal that may be placed on active duty for operational support.
(f)The Secretary of Defense shall submit to Congress an
annual report regarding assistance provided and activities carried out under
this section during the preceding fiscal year. The report shall include the
following:
(1)The number of
members of the National Guard excluded under subsection (e) from the
computation of end strengths.
(2)A description of
the border control activities conducted under State border control activities
plans referred to in subsection (c) with funds provided under this
section.
(3)An accounting of
the amount of funds provided to each State.
(4)A description of
the effect on military training and readiness of using units and personnel of
the National Guard to perform activities under the State border control
activities plans.
(g)Nothing in this section shall be construed as a
limitation on the authority of any unit of the National Guard of a State, when
such unit is not in Federal service, to perform law enforcement functions
authorized to be performed by the National Guard by the laws of the State
concerned.
(h)In
this section:
(1)The term
border control activities, with respect to the National Guard of a
State, means the use of National Guard personnel in border control activities
authorized by the law of the State and requested by the Governor of the State
in support of the mission of the United States Customs and Border Protection of
the Department of Homeland Security, including activities as follows:
(A)Construction of
roads, fences, and vehicle barriers.
(B)Search and rescue
operations.
(C)Intelligence
gathering, surveillance, and reconnaissance.
(D)Communications
and information technology support.
(E)Installation and
operation of cameras.
(F)Repair and
maintenance of infrastructure.
(G)Administrative
support.
(H)Aviation support,
including maintenance.
(I)Logistics
support.
(2)The term
Governor of a State means, in the case of the District of
Columbia, the Commanding General of the National Guard of the District of
Columbia.
(3)The term
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, or a territory or possession of the United
States.
.
(c)The table of sections at the beginning of chapter 1 of
such title is amended by inserting after the item relating to section 112 the
following:
112a. Border control
activities.
.
March 6, 2008
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