[House Report 112-274]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-274
======================================================================
SECURE BORDER ACT OF 2011
_______
November 10, 2011.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. King of New York, from the Committee on Homeland Security,
submitted the following
R E P O R T
[To accompany H.R. 1299]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 1299) to achieve operational control of and
improve security at the international land borders of the
United States, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 4
Committee Consideration.......................................... 5
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 6
New Budget Authority, Entitlement Authority, and Tax Expenditures 6
Congressional Budget Office Estimate............................. 6
Statement of General Performance Goals and Objectives............ 7
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 8
Federal Mandates Statement....................................... 8
Preemption Clarification......................................... 8
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Secure Border Act of 2011''.
SEC. 2. STRATEGY TO ACHIEVE OPERATIONAL CONTROL OF THE BORDER.
(a) Strategy to Secure the Border Between the Ports of Entry.--Not
later than 180 days after the date of the enactment of this Act, the
Secretary of Homeland Security shall submit to the appropriate
congressional committees a comprehensive strategy for gaining, within
five years, operational control of the international borders between
the ports of entry of the United States. The strategy shall include an
analysis of the following:
(1) Staffing requirements for all border security functions.
(2) Investment in infrastructure, including pedestrian
fencing, vehicle barriers, and roads.
(3) The use of unmanned aerial vehicles, camera technology,
sensors, and other innovative technology as the Secretary may
determine.
(4) Cooperative agreements with international, State, local,
tribal, and other Federal law enforcement agencies that have
jurisdiction on the northern border and southern border.
(5) Other means designed to detect, respond to, and interdict
unlawful cross-border activity and to reduce the level of
violence.
(6) A schedule for implementing security measures, including
a prioritization for future investments.
(7) A comprehensive technology plan for major surveillance
and detection technology programs, including a justification
and rationale for technology choices and deployment locations.
(8) The recommendations made in the December 2010 Government
Accountability Office report entitled ``Enhanced DHS Oversight
and Assessment of Interagency Coordination is Needed for the
Northern Border''.
(b) Securing the Border at Ports of Entry.--Not later than 180 days
after the date of the enactment of this Act, the Secretary of Homeland
Security shall develop metrics to measure the effectiveness of security
at ports of entry, which shall consider, at minimum, the following:
(1) The number of infractions related to personnel and cargo
committed by major violators who are apprehended by U.S.
Customs and Border Protection at such ports of entry.
(2) The estimated number of such infractions committed by
major violators who are not so apprehended.
(3) The required number of U.S. Customs and Border Protection
Officers, Agricultural Specialists, and Canine Enforcement
Officers necessary to achieve operational control at such ports
of entry.
(4) Infrastructure improvements required to achieve
operational control at such ports of entry, including the
installation of nonintrusive detection equipment, radiation
portal monitors, biometrics, and other sensors and technology
that the Secretary determines necessary.
(5) The deployment of resources based on the overall
commercial and passenger traffic, cargo volume, and threat
environment at such ports of entry.
(6) The recommendations made in the December 2010 Government
Accountability Office report entitled ``Enhanced DHS Oversight
and Assessment of Interagency Coordination is Needed for the
Northern Border''.
(c) Evaluation by Department of Energy National Laboratory.--The
Secretary of Homeland Security shall request the head of an appropriate
Department of Energy National Laboratory with prior expertise in border
security to evaluate the measurement system required under subsection
(b) to ensure its suitability and statistical validity for analyzing
progress for the interdiction of illegal crossing and contraband at
ports of entry.
(d) Consideration of Alternative Border Security Standards.--If in
developing the strategic plan required under subsection (a) the
Secretary of Homeland Security makes a determination to measure
security between border ports of entry by a standard other than
operational control, the Secretary shall request the head of an
appropriate Department of Energy National Laboratory with prior
expertise in border security to evaluate such alternative standard to
ensure the suitability and statistical validity of such standard with
respect to measuring the progress for the interdiction of illegal
crossings and contraband that pass between such ports of entry.
(e) Reports.--Not later than 60 days after the date of the enactment
of this Act and annually thereafter, the Secretary of Homeland Security
shall submit the appropriate congressional committee a report on the
following:
(1) A resource allocation model for current and future year
staffing requirements that includes optimal staffing levels at
all land, air, and sea ports of entry and an explanation of
U.S. Customs and Border Protection methodology for aligning
staffing levels and workload to threats and vulnerabilities
across all mission areas.
(2) Detailed information on the level of manpower data
available at all land, air, and sea ports of entry, including
the number of canine and agricultural officers assigned to each
such port of entry.
(f) Definitions.--In this Act:
(1) Appropriate congressional committee.--The term
``appropriate congressional committee'' means the Committee on
Homeland Security of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the
Senate.
(2) Major violator.--The term ``major violator'' means a
person or entity that is or has engaged in serious criminal
activities at any land, air, or sea port of entry, including
possession of narcotics, smuggling of prohibited products,
human smuggling, weapons possession, use of fraudulent United
States documents, and other offenses serious enough to result
in arrest.
(3) Operational control.--The term ``operational control''
has the meaning given such term in section 2(b) of the Secure
Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109-367).
Purpose and Summary
The purpose of H.R. 1299 is to achieve operational control
of and improve security at the international land borders of
the United States, and for other purposes.
Background and Need for Legislation
The 2004 National Border Patrol Strategy, produced by the
U.S. Border Patrol, was predicated on the concept of gaining
and maintaining operational control of the borders. The
Department of Homeland Security in the Fiscal Year 2012 Budget
Justification documents provided to Congress indicated that the
Department had no plans to gain additional miles of operational
control during Fiscal Year 2011 or 2012.
The Government Accountability Office report, ``Preliminary
Observations on Border Control Measures for the Southwest
Border'' (GAO-11-374T), indicated that only 44 percent of the
southwest border was under operational control, and an earlier
report, ``Enhanced DHS Oversight and Assessment of Interagency
Coordination Is Needed for the Northern Border'' (GAO-11-97),
indicated that only 32 of the nearly 4,000 northern border
miles in fiscal year 2010 had reached an acceptable level of
security.
Since September 11th, 2001, Congress has spent billions of
dollars to secure the borders through investments in personnel,
technology and infrastructure. The Committee believes that
investments in border security should not be ad hoc; rather
investments should only be made as part of a larger strategic
plan.
The Committee believes that the Department of Homeland
Security should produce a comprehensive and coherent plan to
gain and maintain operational control, as defined by the Secure
Fence Act of 2006, to guide future investments for the Nation's
border security efforts.
Security at the ports of entry is also of concern to the
Committee. The Department of Justice reports that 90 percent of
the illegal drugs that enter the Nation come though just 20
ports of entry. Customs and Border Protection's Office of Field
Operations has no National measurement tool to gauge security
progress at the ports of entry. Government Accountability
Office ``red team'' exercises indicate that security challenges
exist at the Nation's ports of entry. A clear and verifiable
way to measure security progress at the ports of entry is
needed to inform training requirements, infrastructure spending
and staffing requirements.
The Department of Homeland Security is currently working on
a metric called the Border Condition Index, which has been
explained as a means to capture several disparate indicators of
border security to present a more holistic view of the
conditions along the Nation's borders. While the Committee does
not oppose such work, we believe that any proposed replacement
for the statutorily defined operational control standard should
be vigorously vetted by a Department of Energy National
Laboratory to ensure its suitability.
Hearings
No hearings were held on H.R. 1299 in the 112th Congress,
however the Committee conducted oversight hearings on the
issues involved.
On February 15, 2011, the Subcommittee on Border and
Maritime Security held a hearing entitled ``Securing Our
Borders--Operational Control and the Path Forward.'' The
Subcommittee received testimony from Mr. Michael J. Fisher,
Chief, Border Patrol, U.S. Customs and Border Protection,
Department of Homeland Security; Mr. Richard M. Stana,
Director, Homeland Security and Justice, Government
Accountability Office; and Hon. Raul G. Salinas, Mayor, City of
Laredo, Texas. The hearing focused on the Department's efforts
to gain and maintain operational control of the borders. It
examined the effectiveness of the U.S. Border Patrol's measures
for obtaining operational control including statistics on
apprehensions, contraband seized, and number of Border Patrol
Agents assigned to the southwest border. Additionally, the
hearing provided Members an opportunity to explore whether a
Department-wide strategy to secure the borders exists.
On March 15, 2011, the Subcommittee Border and Maritime
Security held a hearing entitled ``Strengthening the Border--
Finding the Right Mix of Personnel, Infrastructure, and
Technology.'' The Subcommittee received testimony from Mr.
Michael J. Fisher, Chief of the Border Patrol, U.S. Customs and
Border Protection, Department of Homeland Security; Mr. Mark
Borkowski, Assistant Commissioner, Office of Technology
Innovation and Acquisition, U.S. Customs and Border Protection,
Department of Homeland Security; Mr. Michael C. Kostelnik,
(Maj. Gen. Ret.) Assistant Commissioner, Office of Air &
Marine, U.S. Customs and Border Protection, Department of
Homeland Security; Major General Hugo E. Salazar, Adjutant
General, Arizona National Guard; and Mr. Richard M. Stana,
Director, Homeland Security and Justice, Government
Accountability Office.
On April 5, 2011, the Subcommittee Border and Maritime
Security held a hearing entitled ``Using Resources Effectively
to Secure Our Border at Ports of Entry--Stopping the Illicit
Flow of Money, Guns, and Drugs.'' The Subcommittee received
testimony from Mr. Thomas Winkowski, Assistant Commissioner,
U.S. Customs and Border Protection, Department of Homeland
Security; Mr. Stan Korosec, Vice President, Operations, Blue
Water Bridge Canada; Mr. Timothy J. Koerner, Vice President &
Chief Security Officer, Canadian National Railway Company; and
Hon. Richard F. Cortez, Mayor, City of McAllen, Texas.
Committee Consideration
The Subcommittee on Border and Maritime Security met on
June 2, 2011, to consider H.R. 1299, and ordered the measure to
be reported to the Full Committee with a favorable
recommendation, amended, by voice vote. The Committee took the
following actions:
The following amendments were offered:
An Amendment in the Nature of a Substitute to H.R. 1299
offered by Mrs. Miller (#1); was AGREED TO by voice vote.
A unanimous consent request by Mrs. Miller to consider the
Amendment in the Nature of a Substitute as base text for
purposes of amendment was not objected to.
An amendment to the Amendment in the Nature of a
Substitute to H.R. 1299 offered by Ms. Jackson Lee (#1A); was
NOT AGREED TO by voice vote.
Page 1, beginning line 7, strike ``The border shared by the United
States and Mexico, and numerous Mexican towns in close proximity to
that border,'' and insert ``Numerous Mexican towns in close proximity
to the United States border.''
Page 1, beginning line 14, insert a new paragraph (2) (and
redesignate subsequent paragraphs accordingly).
An amendment to the Amendment in the Nature of a Substitute
to H.R. 1299 offered by Ms. Jackson Lee (#1B); WAS NOT AGREED
TO by a roll call vote of 4 yeas and 7 nays (Roll Call Vote No.
1).
Page 3, beginning line 16, insert the following new paragraph (and
redesignate subsequent paragraphs accordingly): ``(8) Efforts to
protect the civil and constitutional rights of persons encountered
along the United States border.''
An amendment to the Amendment in the Nature of a Substitute
to H.R. 1299 offered by Ms. Jackson Lee (#1C); was NOT AGREED
TO by a roll call vote of 4 yeas and 7 nays (Roll Call Vote No.
2).
Page 3, beginning line 16, insert the following new paragraph (and
redesignate subsequent paragraphs accordingly): ``(8) Efforts to
protect the life and safety of persons who may be subjected to harsh
and life-threatening weather conditions and terrain.''
The Committee met on September 21, 2011, to consider H.R.
1299, and ordered the measure to be reported to the House with
a favorable recommendation, amended, by voice vote. The
Committee took the following actions:
The following amendments were offered:
An Amendment in the Nature of a Substitute offered by Mrs.
Miller (#1); was AGREED TO by voice vote.
An amendment offered by Ms. Hochul to the Amendment in the
Nature of a Substitute (#1A); was AGREED TO by voice vote.
Page 2, beginning line 18, insert the following:
(8) The recommendations made in the December 2010 Government
Accountability Office report entitled ``Enhanced DRS Oversight and
Assessmentof Interagency Coordination is Needed for the Northern
Border''.
Page 3, beginning line 19, insert the following:
(6) The recommendations made in the December 2010 Government
Accountability Office report entitled ``Enhanced DRS Oversight and
Assessment of Interagency Coordination is Needed for the Northern
Border''.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
The Subcommittee on Border and Maritime Security considered
H.R. 1299 on June 2, 2011. The following recorded votes were
requested:
An Amendment to the Amendment in the Nature of a Substitute
offered by Ms. Jackson Lee (#1B); was NOT AGREED TO by Recorded
vote of 4 yeas and 7 nays (Roll Call Vote No. 1). The vote was
as follows:
YEAS NAYS
Mr. Cuellar Mrs. Miller
Ms. Sanchez Mr. Rogers
Ms. Jackson Lee Mr. McCaul
Mr. Clarke Mr. Broun
Mr. Quayle
Mr. Rigell
Mr. Duncan
An Amendment to the Amendment in the Nature of a Substitute
offered by Ms. Jackson Lee (#1C); was NOT AGREED TO by Recorded
vote of 4 yeas and 7 nays (Roll Call Vote No. 2). The vote was
as follows:
YEAS NAYS
Mr. Cuellar Mrs. Miller
Ms. Sanchez Mr. Rogers
Ms. Jackson Lee Mr. McCaul
Mr. Clarke Mr. Broun
Mr. Quayle
Mr. Rigell
Mr. Duncan
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
1299, the Secure Border Act of 2011, would result in no new or
increased budget authority, entitlement authority, or tax
expenditures or revenues.
Congressional Budget Office Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
The Committee believes that the de minimis costs associated
with development of a strategy to gain operational control of
the border and the requirement for a new security measurement
at the ports of entry as required by H.R. 1299 should be
supported using existing funds appropriated for border
security.
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 21, 2011.
Hon. Peter T. King,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1299. the Secure
Border Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1299--Secure Border Act of 2011
H.R. 1299 would require the Department of Homeland Security
(DHS), within 60 days of the bill's enactment and annually
thereafter, to submit to the Congress a report on staffing
levels at U.S. ports of entry. Within 180 days of enactment,
DHS would have to devise a comprehensive strategy to gain
control of United States borders and develop metrics to
evaluate the effectiveness of security measures at ports of
entry. In addition, H.R. 1299 would require a Department of
Energy (DOE) national laboratory to evaluate the port security
metrics developed by DHS.
In recent years, DHS has made considerable planning and
operational efforts to gain control of U.S. borders and has
collaborated with DOE to identify ways to improve border and
port security. CBO expects that many of the departmental
activities that are currently underway would be useful in
meeting the bill's reporting requirements and deadlines. Thus,
we estimate that implementing H.R. 1299 would cost less than
$500,000 annually from appropriated funds. Enacting the bill
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
H.R. 1299 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 1299 contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized.
The performance goals and objectives of H.R. 1299 are the
development of a strategy to secure the Nation's borders both
between, and at, the ports of entry along with associated
measurements which will inform and guide future investments in
border security.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Preemption Clarification
In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution in intended to preempt State,
local, or Tribal law, the Committee finds that H.R. 1299 does
not preempt any State, local, or Tribal law.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate
to the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides that bill may be cited as the
``Secure Border Act of 2011.''
Section 2. Strategy to achieve operational control of the
border
(a) Strategy To Secure the Border Between the Ports of
Entry.
This section requires the Secretary of Homeland Security to
submit a comprehensive strategy within 180 days to gain and
maintain operational control of the U.S. Borders within five
(5) years.
This section requires the Secretary of Homeland Security to
submit a comprehensive strategy within 180 days to gain and
maintain operational control of the U.S. Borders within five
(5) years.
In preparing this strategy the Secretary of Homeland
Security shall take into account: staffing requirements;
investment in infrastructure, including pedestrian fencing,
vehicle barriers, and roads; the use of unmanned aerial
vehicles, camera technology, and sensors; cooperative
agreements with international, State, local, tribal, and other
Federal law enforcement agencies that have jurisdiction on the
border; and a comprehensive technology lay down plan for major
surveillance and detection technology programs, including a
justification and rationale for technology choices and
deployment locations.
(b) Securing the Border at Ports of Entry.
This section requires the Secretary of Homeland Security to
submit a comprehensive measurement system to the Committee
within 180 days that analyzes the effectiveness of security at
all land, air, and sea ports of entry. The measurement system
shall take into account: infractions by major violators,
related to personnel and cargo, apprehended by U.S. Customs and
Border Protection; estimates of infractions by major violators,
related to personnel and cargo, not apprehended by U.S. Customs
and Border Protection; staffing requirements for all U.S.
Customs and Border Protection Officers, Agricultural
Specialists, and Canine Enforcement Officers for use in the
detection of contraband, including agricultural products,
drugs, currency, and explosives at such ports of entry;
infrastructure; the use of technology, including nonintrusive
detection equipment, radiation portal monitors, biometrics, and
other sensors and technology as the Secretary may determine at
such ports of entry; commercial, and passenger traffic, and
cargo volume; and consideration of the threat environment.
(c) Evaluation by Department of Energy National Laboratory.
The Secretary of Homeland Security shall request the head
of an appropriate Department of Energy National Laboratory with
prior expertise in border security to evaluate the measurement
system required under subsection (b) to ensure its suitability
and statistical validity for analyzing progress for the
interdiction of illegal crossing and contraband at ports of
entry.
(d) Consideration of Alternative Border Security Standards.
If the Secretary of Homeland Security makes a determination
to measure security between border ports of entry by a standard
other than operational control, the Secretary shall request an
appropriate Department of Energy National Laboratory with prior
expertise in border security to evaluate such alternative
standard.
(f) Reports.
The Secretary of Homeland Security shall submit to the
Committee on Homeland Security of the House of Representatives
and the Committee on Homeland Security and Governmental Affairs
of the Senate a report that includes information on the
resource allocation model for current and future year staffing
requirements at all land, air, and sea ports of entry and an
explanation of U.S. Customs and Border Protection methodology.
Additionally, the Secretary shall submit detailed information
on the level of manpower available at all land, air, and sea
ports of entry.
(g) Definitions.
This section defines the terms appropriate ``Congressional
Committee'', ``major violator'' and ``operational control''.
Changes in Existing Law Made by the Bill, as Reported
H.R. 1299 makes no changes to existing law.