[Senate Report 118-251]
[From the U.S. Government Publishing Office]
Calendar No. 652
118th Congress} { Report
SENATE
2d Session } { 118-251
======================================================================
BORDER ENFORCEMENT, SECURITY, AND
TRADE (BEST) FACILITATION ACT OF 2024
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
S. 2278
TO ESTABLISH IMAGE ADJUDICATOR AND SUPERVISORY
IMAGE ADJUDICATOR POSITIONS IN THE U.S. CUSTOMS
AND BORDER PROTECTION OFFICE OF FIELD OPERATIONS
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
December 2, 2024.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2025
-----------------------------------------------------------------------------------
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA R. BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Christopher J. Mulkins, Director of Homeland Security
Katie A. Conley, Senior Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Megan M. Krynen, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 652
118th Congress} { Report
SENATE
2d Session } { 118-251
======================================================================
BORDER ENFORCEMENT, SECURITY, AND
TRADE (BEST) FACILITATION ACT OF 2024
_______
December 2, 2024.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2278]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2278) to establish
Image Adjudicator and Supervisory Image Adjudicator positions
in the U.S. Customs and Border Protection Office of Field
Operations, having considered the same, reports favorably
thereon with an amendment, in the nature of a substitute, and
an amendment to the title and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis of the Bill, as Reported.............4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6
I. Purpose and Summary
S. 2278, the Border Enforcement, Security, and Trade (BEST)
Facilitation Act of 2023, establishes an Image Technician Pilot
Program within Customs and Border Protection's (CBP) Office of
Field Operations (OFO), to review the images from non-intrusive
inspection (NII) systems and make recommendations to CBP
officers on whether the vehicle or cargo should be admitted or
subject to secondary, physical inspection. The bill specifies
that all image technicians in the pilot program must be
supervised by a Supervisory CBP Officer and that the
supervising CBP officer retains the authority to make a final
decision on whether to release cargo or to refer cargo for
further inspection.
Further, the bill includes annual training requirements for
all image technicians, in addition to any necessary ad hoc
training, and requires an annual assessment to be completed by
all technicians. Additionally, the bill requires the
establishment of 12 regional command centers for technicians to
review images. The pilot program established under this bill
would sunset 5-years after enactment, and image technicians may
transfer to other comparable OFO positions. Finally, the bill
requires a semiannual report be submitted to Congress that
includes data on image technician positions currently filled,
and where, training methodologies, assessment passage rates,
the impact of image technicians on interdiction rates, and
overall effectiveness of the program.
II. Background and Need for the Legislation
At 328 U.S. ports of entry and additional international
locations, CBP facilitates lawful trade and travel, processing
arriving passengers, cargo and vehicles.\1\ For example, on an
average day in fiscal year (FY) 2023, CBP processed over 1
million people arriving at U.S. ports of entry, over 100,000
truck, rail, and sea containers, and over 200,000 privately
owned vehicles.\2\ CBP uses NII systems to scan vehicles and
cargo entering the U.S. at ports of entry to detect the
presence of contraband or unclaimed goods without physically
opening or unloading them, increasing CBP's ability to
efficiently and effectively facilitate trade and travel.\3\ In
FY 2023, using large-scale NII systems, CBP scanned over 9.2
million conveyances, which led to the interdiction of more than
127,000 pounds of narcotics.\4\ In addition to enhancing CBP's
ability to interdict illicit goods, NII system utilization
results in operational efficiencies and saves CBP both time and
resources. According to CBP, examinations conducted using NII
systems can be done in 8 minutes, compared to 120 minutes for
physical examinations. Additionally, using NII systems and
other technology has contributed to $1 billion in savings in
annual operational costs and has saved industry $5.8 billion to
$17.5 billion in costs from delays.\5\
---------------------------------------------------------------------------
\1\U.S. Customs and Border Protection, On a Typical Day, Fiscal
Year 2022 (www.cbp.gov/newsroom/stats/typical-day-fy2022) (accessed
Sept. 3, 2024).
\2\U.S. Customs and Border Protection, On a Typical Day, Fiscal
Year 2023 (www.cbp.gov/newsroom/stats/typical-day-fy2023) (accessed
Sept. 3, 2024).
\3\Department of Homeland Security, U.S. Customs and Border
Protection, CBP Trade and Travel Report Fiscal Year 2022 (June 2023).
\4\Department of Homeland Security, U.S. Customs and Border
Protection, FY 2023 CBP Travel Sheet. (June 2024).
\5\Department of Homeland Security, U.S. Customs and Border
Protection, CBP Trade and Travel Report Fiscal Year 2022 (June 2023).
---------------------------------------------------------------------------
Congress has provided substantial funding for CBP to
acquire additional systems and increase scanning rates.\6\ When
these NII systems are fully installed and operational, CBP has
publicly reported it expects to achieve a 40% scanning rate for
passenger vehicles and a 90% scanning rate of commercial
vehicles where systems are deployed.\7\ While the use of NII
creates operational efficiencies, as compared to physical
inspections, additional scanning results in a substantial
increase in images that require analysis and adjudication.\8\
To assist with the adjudication of images, CBP is investing in
artificial intelligence and machine learning and the
development of anomaly detection algorithm capabilities.\9\
---------------------------------------------------------------------------
\6\Pub. L. No. 116-6 (2019); Explanatory Statement Submitted by
Representative Kay Granger, Chair of the House Committee on
Appropriations, Regarding H.R. 2882, Further Consolidated
Appropriations Act, 2024, Division C--Department of Homeland Security
Appropriations Act, 2024, Fentanyl Initiative and Non-Intrusive
Inspection (NII), Congressional Record H1811 (Mar. 22, 2024).
\7\Department of Homeland Security, U.S. Customs and Border
Protection, CBP Trade and Travel Report Fiscal Year 2021 (Apr. 2022).
\8\Department of Homeland Security, U.S. Customs and Border
Protection, Budget Overview Fiscal Year 2025 Congressional
Justification (April 2022).
\9\Id.
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The BEST Facilitation Act of 2023 will enable CBP to test
and determine the viability of an additional solution for
reviewing NII images as scanning rates and the number of NII
images that need to be adjudicated increase. The bill requires
CBP's OFO to conduct a pilot program to enable trained, non-law
enforcement personnel to review the images from NII systems and
make recommendations to CBP officers on whether the vehicle or
cargo should be admitted or subject to secondary, physical
inspection. It also requires CBP to submit reports to and
provide briefings to Congress throughout the pilot on the
performance and impact of the image technician position on CBP
operations at ports of entry to enable congressional oversight
of the pilot program.
III. Legislative History
Senator James Lankford (R-OK) introduced S. 2278, the
Border Enforcement, Security, and Trade (BEST) Facilitation Act
of 2023, on July 12, 2023, with original cosponsor Senator Mark
Kelly (D-AZ). The bill was referred to the Committee on
Homeland Security and Governmental Affairs. Senators Jon Ossoff
(D-GA) and John Cornyn (R-TX) joined as cosponsors on April 15,
2024.
The Committee considered S. 2278 at a business meeting on
April 10, 2024. During the business meeting, Senator Lankford
offered a substitute amendment to the bill, as well as a
modification to the substitute amendment. The Lankford
substitute amendment, as modified, made the image technician
positions a pilot program that sunsets 5-years after enactment.
It specified that the two positions created within the pilot
program are not law enforcement positions and cannot be
independent contractors. It also required that all image
technicians be supervised by a CBP officer and that the CBP
officer retain authority to make the final decision on the
release of cargo or to refer cargo for further inspection.
Additionally, the amendment required the establishment of 12
regional command centers for technicians to review images, as
well as incorporated technical drafting assistance from CBP.
The Committee adopted the modification to the Lankford
substitute amendment by unanimous consent, with Senators
Peters, Hassan, Sinema, Rosen, Ossoff, Blumenthal, Paul,
Lankford, Romney, Scott, Hawley, and Marshall present. The
Committee then adopted the Lankford substitute amendment, as
modified, by unanimous consent, with Senators Peters, Hassan,
Sinema, Rosen, Ossoff, Blumenthal, Paul, Lankford, Romney,
Scott, Hawley, and Marshall present.
Senator Lankford also offered Lankford amendment 2, which
changed the title of the bill to ``A bill to pilot the use of
image technician positions in the U.S. Customs and Border
Protection Office of Field Operations.'' The Committee adopted
Lankford amendment 2 by unanimous consent, with Senators
Peters, Hassan, Sinema, Rosen, Ossoff, Blumenthal, Paul,
Lankford, Romney, Scott, Hawley, and Marshall present.
The bill, as amended by the Lankford substitute amendment,
as modified, and Lankford amendment 2, was ordered reported
favorably by a roll call vote of 11 yeas to 2 nays, with
Senators Peters, Hassan, Sinema, Rosen, Ossoff, Blumenthal,
Lankford, Romney, Scott, Hawley and Marshall voting in the
affirmative, and Senators Butler and Paul voting in the
negative. Senators Carper and Johnson voted yea by proxy, for
the record only.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the title of the bill as the
``Border Enforcement, Security, and Trade (BEST) Facilitation
Act of 2023.''
Section 2. Office of Field Operations Image Technician Pilot program
Subsection (a) amends section 411(g) of the Homeland
Security Act of 2002 by adding the Image Technician Pilot
program with the positions of Image Technician 1 and Image
Technician 2, to review the images from NII systems, assess
whether the images appear to contain anomalies, and recommend
to CBP officers whether the vehicle or cargo should be admitted
or subject to secondary, physical inspection. The subsection
establishes the duties and qualifications for the positions
within the pilot program and clarifies that these positions are
not law enforcement positions and may not be filled by
independent contractors. It also requires that all image
technicians are supervised by a Supervisory CBP Officer. The
subsection also outlines annual training and assessment
requirements for the positions within the pilot program. It
also requires the Executive Assistant Commissioner of OFO to
establish 12 regional command centers at land, rail, air, and
sea ports for the image technicians to review images. This
subsection includes a rule of construction to clarify that CBP
Officers retain the discretion and final decision-making
authority to release conveyances or cargo for entry or exit or
to refer such conveyances or cargo for further inspection.
Subsection (b) provides a 5-year sunset to the pilot
program and allows the image technicians hired under the pilot
program to transfer to other comparable OFO positions upon
termination of the program.
Section 3. Reporting requirements
Subsection (a) requires the Commissioner of CBP to submit a
semiannual report to Congress, within 180 days of enactment,
identifying the staffing levels of the image technician
positions, the daily average number of images scanned, training
methodologies, assessment passage rates of technicians, the
impact of image technicians on interdiction rates, an
assessment on effectiveness in assigned duties, and
infrastructure and resource needs.
Subsection (b) requires the Executive Assistant
Commissioner of OFO to provide biannual briefings to Congress
on the reports required to be submitted under subsection (a).
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 2278 would require U.S. Customs and Border Protection
(CBP) to create image technician positions to review images of
vehicles and cargo entering or exiting the United States. Those
images are created by nonintrusive inspection (NII) systems,
such as largescale X-ray and Gamma-ray systems and handheld
scanners. CBP uses those systems to examine vehicles for
weapons, narcotics and other contraband.
Under the bill, technicians would assess whether vehicles
or cargo could contain contraband, weapons, and other illicit
goods and then make recommendations for further inspection and
work with the National Targeting Center within CBP. The bill
would require CBP to establish 12 regional command centers
where technicians would be stationed. S. 2278 also would
require CBP to report to the Congress every 180 days on the
activities of the program. The bill's requirements would expire
five years after enactment.
The costs of the legislation, detailed in Table 1, fall
within budget function 750 (administration of justice).
TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 2278
----------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
----------------------------------------------------------
2024 2025 2026 2027 2028 2029 2024-2029
----------------------------------------------------------------------------------------------------------------
Estimated Authorization.............................. * 25 25 38 47 47 182
Estimated Outlays.................................... * 12 27 37 46 46 168
----------------------------------------------------------------------------------------------------------------
* = between zero and $500,000.
In total, CBO estimates that implementing S. 2278 would
cost $168 million over the 2024-2029 period, assuming
appropriation of the estimated amounts CBO expects that CBP
would need to make infrastructure technology and bandwidth
improvements at ports of entry to integrate images of vehicles
and conveyances with its central network to allow technicians
to review the images remotely at the command centers. Based on
the costs of similar projects, CBO estimates that those
upgrades would cost $15 million over the 2024-2029 period.
Based on a variety of factors, including CBO's projections
of the volume of vehicles and conveyances entering and exiting
the United States, the number of images generated by NII
systems, and the percentage of images that would be reviewed by
technicians, CBO estimates that CBP would need 200 technicians
and 40 supervisors and support staff to implement the bill. CBO
expects that it would take several years for CBP to hire those
personnel. Based on the compensation costs for similar
positions, CBO estimates that CBP would incur $115 million in
personnel costs over the 2024-2029 period.
CBO expects that CBP would incur other operating costs,
including training, utilities, and other overhead expenses.
Based on the agency's historical spending for those activities,
CBO estimates that operating costs would total $38 million over
the 2024-2029 period.
Lastly, CBO estimates that the bill's reporting
requirements would cost less than $500,000.
CBO's estimate for S. 2278 is subject to significant
uncertainty related to the future volume of vehicles and
conveyances entering and exiting the United States. If the
actual volume differs from CBO's estimates, the personnel costs
could be more or less than we estimated.
The CBO staff contact for this estimate is Jeremy Crimm.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
* * * * * * *
TITLE IV--BORDER, MARITIME, AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle B--U.S. Customs and Border Protection
* * * * * * *
SEC. 411. ESTABLISHMENT OF U.S. CUSTOMS AND BORDER PROTECTION;
COMMISSIONER, DEPUTY COMMISSIONER, AND OPERATIONAL
OFFICES.
* * * * * * *
(g) Office of Field Operations.--
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) Image technician pilot program.--
(A) Image technician 1.--
(i) In general.--There shall be in
the Office of Field Operations, Image
Technician 1 positions, which shall be
filled in accordance with the
provisions under chapter 33 (relating
to appointments in the competitive
service) and chapters 51 and 53
(relating to classification and rates
of pay) of title 5, United States Code.
(ii) Conditions.--Image Technician 1
positions--
(I) may be filled by existing
U.S. Customs and Border
Protection employees;
(II) are not law enforcement
officer positions; and
(III) may not be filled by
independent contractors.
(iii) Duties.--The duties of an Image
Technician 1 shall include--
(I) reviewing non-intrusive
inspection images of
conveyances and containers
entering or exiting the United
States through a land, sea, or
air port of entry or
international rail crossing;
(II) assessing whether images
of conveyances and containers
appear to contain anomalies
indicating the potential
presence of contraband, persons
unlawfully seeking to enter or
exit the United States, or
illicitly concealed
merchandise, including illicit
drugs and terrorist weapons;
(III) recommending entry
release or exit release for any
conveyances and containers
whenever the images of such
items do not include noticeable
anomalies indicating the
potential presence of
contraband, persons seeking to
unlawfully enter or exit the
United States, or illicitly
concealed merchandise,
including illicit drugs or
terrorist weapons, to the U.S.
Customs and Border Protection
Officer responsible for
inspecting such conveyance or
container; and
(IV) recommending further
inspection of any conveyances
and containers whenever the
Image Technician reasonably
believes that an image of any
such item contains anomalies
indicating the potential
presence of contraband, persons
seeking to unlawfully enter or
exit the United States, or
illicitly concealed
merchandise, such as illicit
drugs or terrorist weapons, to
the U.S. Customs and Border
Protection officer who is
responsible for inspecting such
conveyance or container.
(B) Image technician 2.--
(i) In general.--There shall be in
the Office of Field Operations, Image
Technician 2 positions, which shall be
filled in accordance with the
provisions under chapter 33 (relating
to appointments in the competitive
service) and chapters 51 and 53
(relating to classification and rates
of pay) of title 5, United States Code.
(ii) Conditions.--Image Technician 2
positions--
(I) may be filled by existing
U.S. Customs and Border
Protection employees;
(II) are not law enforcement
officer positions; and
(III) may not be filled by
independent contractors.
(iii) Duties.--The duties of an Image
Technician 2 shall include--
(I) carrying out all of the
duties described in subclauses
(I) through (IV) of
subparagraph (A)(ii);
(II) receiving intelligence
from the National Targeting
Center regarding tactics,
techniques, and procedures
being used at ports of entry
and in the border environment
by malign actors to facilitate
the unlawful entry or exit of
contraband, persons, or
illicitly concealed
merchandise, such as illicit
drugs or terrorist weapons; and
(III) reporting new
information to the National
Targeting Center regarding
tactics, techniques, and
procedures being used at ports
of entry and in the border
environment by malign actors to
facilitate the unlawful entry
or exit of contraband, persons,
or concealed merchandise, such
as illicit drugs or terrorist
weapons.
(C) Supervisory u.s. customs and border
protection officers.--
(i) Supervision.--All image
technicians shall be supervised by a
Supervisory U.S. Customs and Border
Protection Officer.
(ii) Discretion and decision making
authority.--The appropriate Supervisory
U.S. Customs and Border Protection
Officer, while working with image
technicians, shall retain the
discretion and final decision-making
authority--
(I) to release conveyances or
cargo for entry; or
(II) to refer such conveyance
or cargo for further
inspection.
(iii) Training.--A Supervisory U.S.
Customs and Border Protection Officer
who supervises image technicians shall
receive additional training in
accordance with subparagraph (D).
(D) Training requirements.--All image
technicians shall receive annual training and
additional ad hoc training, to the extent
necessary based on current trends, regarding--
(i) respecting privacy, civil rights,
and civil liberties, including the
protections against unreasonable
searches and seizures afforded by the
First and Fourth Amendments to the
Constitution of the United States;
(ii) analyzing images generated by
non-intrusive inspection technologies
or any successor technologies deployed
by U.S. Customs and Border Protection;
(iii) identifying commodities and
merchandise in images generated by non-
intrusive inspection technologies or
any successor technologies deployed by
U.S. Customs and Border Protection;
(iv) identifying contraband, persons
who are seeking to unlawfully enter or
exit the United States, or illicitly
concealed merchandise, such as illicit
drugs or terrorist weapons, in images
generated by non-intrusive technologies
or any successor technologies deployed
by U.S. Customs and Border Protection;
(v) tactics, techniques, and
procedures being used at ports of entry
and in the border environment by malign
actors to facilitate the unlawful entry
or exit of contraband, persons, or
illicitly concealed merchandise, such
as illicit drugs or terrorist weapons;
and
(vi) any other training that the
Commissioner of U.S. Customs and Border
Protection determines to be relevant to
the duties described in subparagraphs
(A)(iii) or (B)(iii).
(E) Annual assessment.--All image technicians
shall receive annual testing with respect to
their--
(i) accuracy in image analysis;
(ii) timeliness in image analysis;
and
(iii) ability to ascertain tactics,
techniques, and procedures being used
at ports of entry and in the border
environment by malign actors to
facilitate the unlawful entry or exit
of contraband, persons, or illicitly
concealed merchandise, such as illicit
drugs or terrorist weapons.
(F) Command centers.--As part of the pilot
program established under this paragraph, the
Executive Assistant Commissioner of the Office
of Field Operations shall establish 12 regional
command centers at land, rail, air, and sea
ports in which image technicians shall review
non-intrusive inspection images.
(G) Rule of construction.--Nothing in this
paragraph may be construed to affect the
discretion and final decision-making authority
given to U.S. Customs and Border Protection
Officers to release conveyances or cargo for
entry or exit or to refer such conveyances or
cargo for further inspection.
* * * * * * *
[all]